which had belonged to the king as patriarchal head of the Roman people, passed to one of the magistrates of the republic and left remnants in the law which came down to the modern world. If such things as kin-group discipline and official censors of morals no longer exist in a politically organized world, yet trade and professional associations, trade unions, social clubs, and fraternal organizations, with their codes of ethics, or their law or their standards of conduct or canons of what is done and what is not done, exercise, although in subordination to the law of the state, an increasing measure of control of individual conduct.
In the modern world political organization of society has become paramount. It has, or claims to have and on the whole maintains, a monopoly of force. All other agencies of social control are held to exercise disciplinary authority subject to the law of the state and within limits fixed by that law. The English courts will review disciplinary expulsion from clubs or associations for want of conformity to “natural justice.”3 Also English and American courts have decided whether property given in trust for church purposes was being used according to the tenets of the church for which it was given.4 The household, the church, the associations which serve to some extent to organize morals in contemporary society, operate as agencies of social control within legally prescribed limits.
Nevertheless it would be a mistake to assume that politically organized society and the law by which it brings pressure to bear upon individuals are self-sufficient for the tasks of social control in the complex society of the time. The law must operate on a background of other less direct but no less important agencies, the home and home training, neighborhood opinion, religion, and education. If these do their work properly and well the task of the law is greatly lightened. Much of ill-adjusted relations and antisocial conduct is obviated by bringing up and training and teaching leading to life measured by reason. But conditions of urban life in industrial communities have seriously affected home training. Moreover the general secularization, distrust of creeds and dogmas, and hard boiled realism of the present time have loosened the hold of religious organizations. Education is thought to be our main reliance for the background of social control. But that, too, is secularized and has not found itself equal to training in morals. The problem of enforcing the precepts of morals has become acute as law more and more takes the whole field of social control for its province.
When law is the paramount agency of social control it means that the main reliance of society is upon the force exercised by its political organization. Relations are to be adjusted and conduct is to be ordered through the orderly and systematic application of that force. But if law as a mode of social control has the strength of force, it has also the weakness of dependence on force. That something resting on ascertained and declared moral duty very like law can exist and prove effective without any political organization behind it and so without any backing of force, is shown by the achievements of international law from the seventeenth century to the first World War.
Neither ethics nor jurisprudence can give a complete and self-sufficient system of social control. In their beginnings they were not differentiated. Ethical customs, laws, and usages unrelated to social control might be covered in Greek by the one word we translate as “law,” so that Socrates could speak of a cookbook as the laws of cooking and a gardener’s manual as the laws of horticulture.5 Even after differentiation has gone on there have been times in the development of jurisprudence in which jurists have sought to identify law and morals. At other times some have sought to make law achieve its task taking no account of morals. If neither of these extreme positions is taken, the relation of morals to the ideal element of law is nonetheless manifest. If we look on law and morals as co-equal co-workers in the task of social control, we shall need to inquire how they co-operate with or affect each other, what are their respective provinces, whether exclusive or overlapping or coincident. Such questions have troubled jurists from the beginnings of a science of jurisprudence. The relation of law and morals was one of three subjects chiefly argued by the contending schools of jurists in the nineteenth century.6
Jhering said that the relation of law and morals was the Cape Horn of jurisprudence.7 The juristic navigator must round it, but in doing so he ran great risk of fatal shipwreck. Commenting on this Ahrens said that the question called for a good philosophical compass and strict logical method.8 But Jhering showed later that if the philosophical compass had often been untrustworthy, the linguistic charts had also been deceptive.9 The root of the difficulty lay in juristic and ethical vocabulary. There was poverty of terms which required one word which we translate as “law” to carry many meanings. To compare with it there was in German an abundance of words of different degrees of ethical connotation with meanings not always clearly differentiated.10 He points out that the Greeks had but one word on the ethical side of the relation (δικη). The Romans had two (ius, mores). German has three (Richt, Sitte, Moral).11 English has two: morality, morals. But morality and morals are not thoroughly distinguished in general English usage. It is, however, a useful distinction to use “morality” for a body of accepted conduct and “morals” for systems of precepts as to conduct organized by principles as ideal systems. Thus “morals” would apply to “the broad field of conduct evaluated in terms of end, aims, or results,” while “morality” would refer to a body of conduct according to an accepted standard. So conventional morality would be a body of conduct approved by the custom or habit of the group of which the individual is a member. Christian morality would be conduct approved by Christians as in accordance with the principles of Christianity.12 In this way of putting it, “morality” would not be an ideal but an actual system. As jurists would say, it is “positive” while morals are “natural,” that is, according to an ideal, not necessarily practiced nor backed by social pressure as to details. Systems of morals, however, are likely to be in the main idealizings of the morality of the time and place.
From the standpoint of the historical school in the nineteenth century law and morality have a common origin but diverge in their development. In the first stage of differentiation morality is much more advanced than law. In the beginnings of Roman law fas and boni mores do much of what becomes the task of ius, and such matters as good faith in transactions, keeping promises, performing agreements, are left to boni mores rather than to ius.13 There is no law of contracts in Anglo-Saxon law. In the earlier Middle Ages enforcement of informal contracts was left to the church.14 When a distinct legal development begins, since remedies and actions exist but rights are not yet worked out, rigid rules are the only check upon the magistrate. Presently law in this stage is outstripped by the development of moral ideas and has no means of sufficiently rapid growth to keep abreast. Interpretation of the Twelve Tables could not provide a better order of inheritance based on blood relationship when succession of the agnates and the gentiles became out of accord with moral ideas. There are no generalizations in the earlier stages of law and the premises are not broad enough to allow of growth by interpretation beyond narrow limits. Common-law ideas of property could not give effect to the purely moral duties of a trustee. No development of the common-law writs could give equitable relief against fraud. On the other hand, in a later stage the law sometimes outstrips current morality, as in the case of the duty of disinterested benevolence exacted of directors and promoters of corporations by Anglo-American equity.
Four stages in the development of law with respect to morality and morals may be recognized. First, there is a stage of undifferentiated ethical customs, customs of popular action, religion, and law; what analytical jurists would call the pre-legal stage. Law is undifferentiated from morality.15 Second, there is a stage of strict law, codified or crystallized custom, which in time is outstripped by morality and has not sufficient power of growth to keep abreast. Third, there is a stage of infusion of morality into the law and of reshaping by morals, in which ideas of equity and natural law are effective agencies of growth. Fourth, there is a stage of conscious, constructive lawmaking, the maturity of law, in which it is urged that morals and morality are for the lawmaker, and that law alone is for the judge.
As soon as morality and law are differentiated a progression begins from moral ideas to legal ideas from morality to law.16
