to do what they think they are doing, professional and judicial ideals of the social and legal order have been and are a decisive factor in legal development. Such ideals may be so generally and firmly established with the weight of authoritative tradition behind them as to be a form of law in the strictest analytical sense. No consideration of the ‘pure fact of law’ takes account of the whole fact if it omits these authoritative materials. They are often quite as generally and authoritatively received as the legal precepts whose applications they determine and shape and content they fix. If it is said that many formulations of such ideals fail of acceptance and many ideals are urged which remain wholly subjective and are never authoritatively received or established, the same is true of proposed formulations of legal principles, of attempts to define the limits of legal standards, and of precise statements of rules of law. Everything which is urged in the name of the law does not succeed in establishing itself among the authoritative legal materials. Thus, merely from the analytical standpoint we need to distinguish between these ideals which are received and established and thus have become a part of the ‘pure fact of law’ and those which might be called sources rather than forms19 of the ideal element of a given body of law. In the case of legal precepts I have preferred to use ‘forms of law’ to mean the authoritative shapes which they take, the forms in which they are expressed and to which courts are referred in the decision of controversies. Sources then would be the unauthoritative materials from which the authoritative forms get their content. Ideals which are being urged in current juristic or judicial or professional thought, and so are beginning to influence judicial action without determining it (in the same way as a statement of a suggested rule of law in an Anglo-American text book may influence a court’s thinking more or less without being taken up as a ground of decision and formulated in the judgment of a court of ultimate review)—such ideals may be thought of as analogous to the sources of legal precepts. The ideal element in law, if I am right, should have the same thoroughgoing analytical study which has been given to the precept element. We should be studying whence came our received ideals and the newer formulations which are pressing upon tribunals. We should investigate how they have taken form and how they are used. Much study of legal precepts in action has missed effectiveness because it has ignored this element.
My point may be made best from the American cases because in the formative era of American law the courts were seeking to develop a common law for independent America from the common law of England as it had taken form in the seventeenth and eighteenth centuries. What they thought they were doing and why they were doing it had a special importance in the performance of such a task.
Ideals to which American judges have sought or tended to make the traditional or the enacted legal precepts conform may be ideals of the social order, and so of the end of law, or they may be ideals of the authoritative materials by application of which to the adjustment of relations and ordering of conduct that order is maintained and the end is to be achieved. The latter are more articulate in the reports. Moreover they reflect and help us understand the former. Let us, then, look first at judicial ideals of the content of the precept element of American law. Let us scrutinize judicial pictures of the materials in which the judges held themselves bound to find the grounds of deciding cases. What did they take these materials to be? How did they conceive of the content of the body of legal precepts they were administering?
One way of looking at a body of legal precepts is ethical. It has commonly been put in terms of ‘natural law.’ It finds natural law by reasoning on the basis of the ‘nature of man,’ using ‘nature’ to mean an ideal. It assumes an ideal body of legal precepts derived by reason from an ideal of what a perfect man would do and would not do. This is the classical natural law of the eighteenth century. Let us recall the task of the formative era of American law in which this ideal was dominant. It was necessary to make the common law of England, heavily burdened with the formalism of the strict law, shaped by ideals of the relationally organized society of the Middle Ages, speaking from an era of organization, applicable in a time of commercial development, to the needs and ideas of men who were opening up the wilderness in an oncoming era of individualism. In our social development we began with a pioneer society struggling to subdue the wilderness and defend against the Red Men. Then followed a time of settled agriculture, an era of small towns. Upon this followed a period of commercial progress, involving the rise of seaport cities and trade centers. Then came industrial supremacy and the rise of great metropolitan centers. Some of these stages have followed rapidly at times and in places and more slowly in others. They called for ideas of adaptability tempered by considerations of the stability required by the economic order. Such ideas were drawn from the ideas of the jurists of the eighteenth-century law-of-nature school. Their ‘natural law’ was set forth at the beginning, and for a long time thereafter, in American introductions to the study of law and elementary law books.20
But our American course of judicial decision began after the doctrine of this school was losing its vogue and it seldom appears as such in the law reports. Usually the ethical approach is put in terms of ‘the nature of justice’ or of ‘natural rights.’ Here ‘nature’ means ideal. The law is taken to be a body of reasonable precepts expressing an ideal of justice or a body of precepts expressing an ideal of rights—an ideal of secured moral claims or expectations. The former was commonly given a content from a philosophical version of the historical common law, or sometimes from comparative law. The latter was likely to get a politicolegal content from the bills of rights.
Ethical natural law with a philosophical-historical content seemed to have warrant of authority in the common law doctrine, as laid down by the English courts in the seventeenth century, that an Act of Parliament making a person judge in his own case would not be given effect by the courts,21 and Blackstone’s version of those cases as a rule of interpretation.22 The refusal of the seventeenth-century courts to enforce a statute ‘against common right and reason’ meant that legal precepts were pronouncements of common right and reason and to be interpreted and applied as such.23 More commonly interpretation and application were referred to the ‘nature of justice,’ that is, an ideal of justice, or the ‘nature of things,’ that is, an ideal of the moral and social order.24 A ‘natural-rights’ way of thinking, a picture of a body of precepts of universal inherent authority, securing ideal fundamental interests or expectations, going back to Grotius25 by way of Blackstone,26 was specially manifest in interpretation of the Fourteenth Amendment to the Constitution of the United States,27 in the application of which it played a great part.28
A closely related type of thinking proceeds on a postulated religious natural law. In America it conceived of an ideal Christian society and so of the legal precepts which would obtain in such a society.29 There was some historical warrant in the old English law books for saying that Christianity was part of the common law.30 This might mean that the common law of England presupposed a Christian society and hence its received ideals were those of such a society.31 But it was obviously another matter to maintain an ideal of a Christian society, as one received as part of the authoritative materials of judicial and administrative determinations in an American state in the nineteenth century.32 The proposition has never had much currency.
A type which has been most in evidence in American judicial decisions may well be styled a political natural law. In one form it proceeds upon the nature (i.e., ideal) of a politically organized society, commonly referring to the ‘social compact,’ which is frequently cited with assurance as something given us as authoritatively in all its details as the Statute of Wills.33 Sometimes it goes on the nature (i.e., ideal) of American institutions.34 Usually it is put more universally as drawn from the nature (i.e., ideal) of ‘free institutions’ or of ‘republican government.’35 This ideal was invoked to exclude all arbitrary or unreasonable legislative or executive action, i.e., contrary to a traditional standard of reasonableness, and the phrase ‘due process of law’ in the constitution, bills of rights, federal and state, was construed as declaratory thereof.36
For more than a century this was so universally received and so completely established
