best form of society.

a8 a thinkingindividual and as a political being.

Aristotle rather than Plato

enlightened by the experiences of a mature ..,GPeece in a Btate of deep social and political crisi8,

“ second-best state”

Platonic thought must have helped Aristotle

man as part and maer;r of nature

It is for positive law,

the measu*re

Punishment must redress crime, reparation mu8t redress civil wrong, damages must restore wrongful gain.

The former derives its force from being laid.down as law, whether just or unjust;

nature

necessarily generalising and often harsh in application to the individual case.

e degenerating

connon good

oligarchical element ... democratic element

? Legal theory takes its intellectual categories from philosoyhY'itsideas of.jnsticefrompoliticaltheory. Its own specificcontribution consiste in formulating political ideas in terms of legal principles.

Jurists bitterly opposed to each other on one iss,'e, \might stand together on another.

the subject i8 seized by the object, is, for a more profound analysis,very much like the question of domination which is the theme of politics. ?

Ethical and legal ideals are therefore a matter of will not of thought, although the categorical imperative attempts to give them an absolute direction.

Time and again belief in the power of reason has been followed by distrust of reason and corresponding faith in instinct.

self-complacency.of positivism,

, grades of truth,

stability and certainty

constitution is designed to keep legal change within bounds,

interpret

idealists,

volition

certain economic conditions.

Disillueioned

absolute duty of obedience of the people to the government, internationally to reate s basis for legally binding and stabIe relations among the sta tes.

protector

preferred autocratic rule to liberty, or as a result of war

the ruler is bound by natural law which 18 valid even without promise. And the keeping of promiseg is, as we have aeen, a paramount principle of natmal law.

the equivalence of different forms of government established by different peoples,

stressing the absolute force of a promise once given,

Living during the civil wars in England, Hobbes was convinced of the overwhelming importance of state authority

natural law as an objective order to natural right as 8 subjective claim based on the nature of man

escape from thi8 sta.te of permanent insecurity. He does so by transferring all his.iaturul rights

obligations by the 'ruler.

last a8 long,

he i8 able to protect them."

all law is dependent upon sanction. '

A theory which would express the beliefs, interests and aspirations of this class, could not be,hka that of Hobbes, of ruthless and uncompromising logic

far ashe madeit superior to and immutable by pOBitive law.

inalienable natural rights,

property

to justify by majority and to show that governments hold their power in trust, with the duty to preserve the individual rights whose protection the individuals have entrusted to them.

Estate,

elaboration of the natural rights of man to that with which he bas mixed the labour of his body, for example, by tilling land.

majority agreement i8 identical with an act of the whole 8ociety,

obliges him to submit to the majority. Thus majority vote can take away property rights and other supposedly inalienable rights.

faithful to this pledge,

His greatest efiect wa8 to be upon the French and, in particular,upon the American Revolution. The characteristic combination of ideals and acquisitiveness,

ahnds in contradictions; it would be easy to quote him as a champion of inalienable individual rights a8 well as of the absolute supremacy of the community;

with his emotional enthusiasm for the primitive 8elf-contained com-munity in which people live harmoniously together, satisfied in their with nature through their hard but contenting work and the simplicity of tb.eir life.

t freedom and equality of men were the basis of happiness,

task i8 to find a form of 80cial organisation which Suarantees those natural rights of freedom and equality.

a po8tula.te.)

solely from the guarantee of freedom and equality. Having received these from men, it restores them not

his own Svviss homeland

8 TWILIGHT OF NATURAL LAW IDEOLOGY

individualistic

First, an individualistic conception of Bociety as put forward by the rationalism of the 18th century was giving way to a collectiya 8timulated by the rising tide of nationalism.

Third, the new aml increasingly complex European 80ciety demanded a comparative and sociological approach to problems of aciety, rather than an abstract one.

there i8 a standard of absolute justice prior to positivq law, B

that law, although vaguely based on some principles of natural law, must be infiuenced by environment and conditions such as climate, soil, religion, customy commerce, etc. It was with this idea in his mind that Montesquieu embarked upon his compara.tive study of laws and governments, a atudy in many wap incomplete,unsystematic and jncorrect,

Genranistic school of junsprudence-a product.of the romantic moveraent-Much of its own theory is inarticulate, absorbed in judicial law making. But the actual moulding force

, the struggle between common 1aw judges and Parliament for legislative supremacy, on one hand an.d the intro-duction of equitable considerations, of “ Justice between man and man ” on the other.

the supervi8ion of administrative acts and decisions by the Law Courts, the recognition of foreign judgments and the recognition of custom,

A.eustom will not be admitted by the Courtsif it is unreason-able,and the test is “ whether as Buchit is fair,proper, and such as rsonable, honest and fair-minded man would adopt,”4or,with more direct reference to natural law “ whether it i8 in accordance with the fundamental principles of right and wrong.”

certain principles

fair trial, freedom of person, freedom of action,

.equity in the sense in which Aristotle conceives ESVIEIXEltt, i.e., as an aspect of justice, and, at the same time as a corrective, in individual cams, of the 8everity and rigidity of the justice o{ the generallaw.

as Equityi8 conceived as a matter of conscience betweenindividuals,

unjust enrichment

accordance with the economic conception cb'minating the 8ociety of the day. The present English law is still largely the reKection of economic liberalism.

In the second place, the function of “ reasonableness” is to enable the judge to be creative where a gap in the law, conflicting authorities, or a. widely-framed provision of a statute allows him to be creative. The test of reasona'oleness thus is nothing su'ostuntially.difierent from “ social engineering,” “ balancing of teres+s,”

no other legal 8ystem

both a Federal aud forty-eight state constitutions, all framed under the influence of natitral right formulated in general and 8weeping terms,

anmarised the principal motives of 8uch dicta as being:-

(1) Distrast of legislative power.
(2) Protection of minorities.
(3j Protection of property rights.

new financial and industrial interests

The technical instrument chosen was the “ Due Process ” clause of the 5th and 14th Amendments.lS Th18 clause had originally had a purely procedural significance

transport developments. They embarked upon public fmancinS of many private enterprises supported by popular vote.

taxes was restricted_ to ." public purposes" and public purposes were what the judges understood them to be,

expropriation

“ eminent domain.”

can only be exercised for public purposes, and with adequate compensation.

by restricting the power of states and public authoritie8 to participate in economic development, the Courts did not check recklessness but cleared the road for the exclusive development of economic resources through private interests, which they protected with the help of the natural right of the individual and the sanctity of vested interests.

'corporations

“ individuals ”),

encouraged the growth of capitalist monopoly

growing complexity of social problem8,such as in matters of public health, housing, insurance, industrial protection, labour hours, etc. Judges are likely to be influenced by the conceptions prevalent in their youth and among their class. Where the legislature is supreme, there is but limited scope for the application of their conceptions.

protected by judicial independence--

Minimum Wage Act

invalidated,

ten hours

depriving an employer of liberty without due process of law.

declared justified by the exercise of police power.

this trend of thought began to weaken in favour of a-o.

Social Security

Labor Relations

minimum wage rate for women workers." The weakening of the supremacy of individual rights

a religious

flag.

pendulum

the conflicting principles

wrestle for 8upremacy in the judicial resection of g

the impossibility of giving the idea of a higher 1aw an :absolute and universally valid meaning.

10 REVIVAL OF NATURAL LAW THEORIES

force8 in 19th century

all developed towards a point of stagnation and sterility.

protector state

8alvatiOn.through economic progress,

e rigid formalism of s, scientific analytical jurisprudence,

dissatisfaction with material prosperity, with self-assurance, with Victorian and many other things. Once more the human mind grew restless, revolted against the accepted standards o{ the day and searched for an ideal

coupled with a relativist

& belief in the progress of mankind.

natural law serves essentially as a guide to positive law,

legal theory is once more in search of justice. The term “nature” still has its old fascination. For it can suggest that absoluteness which man ie after, but which the modem mind cannot find

Western civilization

PART iii

y brief period

Kant, Fichte and Hegel,

through an enquiry into the human mind.;

& rational free willing being distinct from nature.

centuries of philosophical thought,

critical method, by an attempt to base the rational character of

human consciousness itself.

It must be given a priori, but not as logical necessity;

a right is characterized by the power to compel.

property,

as an expression of personality:

retaliation. But the aim of reforming this criminal modifies retaliation.

Male self-consciousness, Fichte teaches, may find an object in the satisfaction of sexual impulse. But woman must never confess to such a purpose, although she must have the same impulse. Her nature demands giving herself to a mam. Man replies by generosity. Adultery of the wife destroys marriage, that of the husband destroys it only if it kills the wife's love.

War, the means of asserting legal rights between states is based ou force, not on law.

realm of institutions, in which the particular will finds itself at one with the universal will.

marriage,

Civil society arise8 through the members of the family acquiring an independent status and being no longer part of the family

Civil Society also ..ucls the protection of the individual right to well-being.. This gives rise to the police. The true well-being of the individual farther demands a formation of groups of individuals into associations,

that different powers checking each other will lead to the dissolution|of the state.

universal franchise. For the 8tate is not the embodiment of the common will, the will of the majority, but of the rational will. The multitude becomes organized and rationalized by institutions within the state, that is the corporations . d and the class, These, not the people as such, should be represented in legislation. To rule is the function of the universal class, to which merit, not birth or wealth should give access* Finally, the monarch embodies the individual function of the 8tate,

States have no authority above them, there is no objective sphere of universal right between them.

shifting

Hegel

ascendancy of the state over the individual,

corporation

right to revolt

the use of the notion “rational”

could easily be distorted

on marriage

to rather dishonest 8ubterfuges as Hegel did in his distinction between quantity and quality of property,in order to justify differences of wealth,

SCIENTIFIC IDEALISM

The 19th century, the century of science, technique and industry,vas a period of almost limitless growth of self-confidence of a generation which seemed to produce miracles and which looked like mastering nature for ever* This self-confidence found extension in philosophical positivism which spread from natural science to g other sciences.

[p 87 left off. That's how far I had underlined in grey], until a few pages for:]

PART VI-LEGAL THEORY, SOCIAL IDEALS

23

unjust enrichment.

On the whole, those lawyers who are unconscious of their legal ideology are apt to d_more harm than their more conscious colleagues. For their self-delusion makes it psychologically easier for them to mould

feeling the weight of responsibility

the right of a majority to embody their opinion in law.

. Sunday laws and usury laws

of lotteries.

school laws, by the Post Office, by every state or municipal institution which takes his money

that the lawyer can solve legal issues which involve economic and social problems by a, process of purely legal reasoning.

a judge in a non-totalitarian country, who is aware of his social responsibility, conscious of the political problem before him in the form of a legal dispute,bnt convinced of his duty of impartiality in the balancing of social forces and equally convinced of the duty of: the judge to leave the shaping of the political principles of society essentially to the proper legislative authority.

vast majority

borderline situations, numerically small but qualitatively all important, that legal ideology becomes paramount.

Never have lawyers 'been able to apply certain ideals to the exclusion of others more openly and with more consequence.

economic doctrines have been applied under judicial cover.

the Iegi8lative organs-rmles8 they went against the plain word8 of the constitution-must be trusted to represent and express the proper evolution of the principle laid down in the con8titution.iz

r susceptibility to legal idealism,

the impossibility of any interpretation of doubtful cases without some valuation

moulded the common law by the infusion of legal ideals, no one can doubt who

has been so overwhelmingly unconscious and inarticulate

public policy,

f general equity.

new remedies-

into a broad and comprehensive principle which combine8 restatement, remoulding and the making of new law.

The irksome effect of binding precedent no longer in accordance with current legal ideals can, to some extent, be overcome by the act of either ignoring or disregarding precedent,

not referred to

distinction of precedent,

[to p 265 where I left off reading and underlining in grey]