the general security be not ethically objectionable. Whenever we make a rule for a case of the former type, we are not unlikely to provide a legal which is not a moral rule.
A closely related situation which has given much difficulty arises where both parties to a controversy have been at fault and the law must fix the incidence of loss in view of the culpability of each. It might be allowed to rest where it falls (contributory negligence)97 or the whole might be cast on the one more culpable (comparative negligence)98 or the one last culpable (last clear chance)99 or the loss may be divided100 or apportioned101 (as in the civil law and in admiralty) or recovery may be abated in view of the negligence of the complaining party,102 or, without regard to contributory negligence of the injured person the whole burden may be put upon an enterprise conducted for public advantage which is in a position to pass the loss on to the public at large.103 If we had any machinery for accurate quantitative or qualitative measurement of culpability in such cases the rule of the civil law would be required on ethical grounds. It is because all apportionment in such cases is theoretical, and at best arbitrary, that the law is troubled what to do.104 The fact that seven doctrines have obtained on this subject speaks for itself.105
In addition there is a characteristic of law that makes for a certain opposition or at least contrast between the legal and the moral. The very conception of law, whether as legal order or as a body of laws or as the judicial process, involves ideas of uniformity, regularity, and predictability. In other words, it involves rule, using that word in the wide sense. Administration of justice according to law is administration of justice in accordance with legal precepts and largely by rules in the strict sense. But even the most flexible of mechanisms will operate more or less mechanically, and it is not easy to make legal machinery flexible and at the same time adequate to the general security. The requirements of particular cases must yield more or less to the requirements of generality and certainty in legal precepts and of uniformity and equality in their application. Hence even though in general the law tends to bring about results accordant with the moral sense of the community, the necessarily mechanical application of legal rules will in particular cases produce situations where the legal result and the result demanded by the moral sense of the community are out of accord. When such things happen it is often because some particular legal precept has survived the social or economic conditions to which it was shaped. But to a certain extent they are an inevitable by-product of justice according to law.106
So much must be conceded to the analytical jurist. Yet we must not omit to note that in the last century he pressed these points too far. Thus a writer on ethics, who shows in marked degree the effects of analytical jurisprudence, says: “The law protects contracts which were made in legitimate business without regard to whether their provisions still conform to justice or not. Owing to unforeseen circumstances things may have so changed as to cause the ruin of one of the contracting parties without substantially benefitting the other party. The law is not concerned with that.”107 The proposition is true of the strict law. But if the promisee went into a court of equity for his only effective and adequate remedy (specific performance) he would encounter the chancellor’s margin of discretion in the application of that remedy and the doctrine that supervening circumstances may make a bargain so hard that the court will refuse to enforce it.108 The passage quoted sounds very like the pronouncements of lawyers in the stage of the strict law, when the line between legal and moral was drawn so sharply.109 Something of this spirit was to be seen in the last century. But in the present century administrative moratoria in the civil law, limitations on the power of creditors to exact satisfaction both in civil-law systems and in the common-law world, and the development of the doctrine of frustration,110 mitigate the enforcement of hard bargains. The law in action is not as harsh as the author would have us believe.111
Yet there are too many points, such, for example, as the Anglo-American law with respect to promises made in the course of business but without a technical consideration, where the last century did not exert itself, as it should have done, to bring the legal and the moral into accord.112 The philosophical jurist was too prone to find ingenious philosophical justification for rules and doctrines and institutions which had outlived the conditions for which they arose and had ceased to yield just results. The historical jurist was too prone to find a justification for an arbitrary rule by showing that it was the culmination of a historical development. The analytical jurist banished all ethical considerations, all criticism of legal precepts with reference to morals, from the law books. If a precept could be fitted logically into a logically consistent legal system it was enough. Such things are intelligible as a reaction from extravagances of the law-of-nature school. They are intelligible also in a period of legal development when it was needful for a time to assimilate and systematize the results of creative judicial and juristic activity. But it cannot be more than temporary. They cannot be suffered to become permanent features of a science of law.
A view of the relation between law and morals coming to a result not unlike that from the analytical approach is reached by Radbruch from a Neo-Kantian starting point. He tells us that there is an irreducible antinomy between law and morals. He thinks of justice as the ideal relation among men; of morals as the ideal development of the individual character; of the legal order as maintained security. No one of these, he says, can be carried out to a full logical development except at the expense of one or both of the others. As no logical line can be drawn and full logical development of any one negates the others, he holds that it follows that justice has to do with the formal notion of law, the end with measuring the value of the content of law, and security with the binding force of law. Law will draw its own lines as to where and how far, if at all, to recognize the other two. This is an example of Neo-Kantian logicism, putting logic much where the eighteenth century put reason. Hence, given Kantian definitions of justice, morals, and law, the next step is to develop each logically. But when this is done each conflicts with the others. Hence each must go its own path. There is, he holds, no way of reconciling them.113
Kant started with the conscious ego as something not open to challenge. The ideal relation between such egos was one permitting each the most freedom of will consistent with the like freedom of will of all others. The ideal development of each was the one which permitted that freedom. Law was the maintaining of that relation and its development by universal rule. But if we hold that no ultimate starting point can be proved logically, we have nothing to go on but the three, which cannot be carried out logically consistently with each other.
For example: The ideal relation among men would hold them liable to each other only for undertaking or for fault. But security requires us to impose liabilities without fault—crimes without a guilty mind, liability of the owner for injury by a borrowed automobile negligently operated by the borrower, and the like. Again, the ideal development of the individual calls for free self-determination, e.g., liberty of contract. But the ideal relation, made to include equality, may require limitation of free contract. The law must determine for itself which of these directions to take in different typical situations. Again, security carried to a full logical development might require us to allow summary convictions after administrative criminal investigation, or to extort confessions by the “third degree,” or to procure evidence by unreasonable searches and seizures. Thus each one, if it is carried out logically, is independent of the others. Kelsen, also from a Neo-Kantian standpoint, makes this the basis of a complete ignoring of morals in a pure science of law.114 I shall endeavor to show in another connection how the three ideas may be reconciled.115
It remains to speak of the sociological view—the approach and point of view of the sociologists.116
In sociological jurisprudence all social control taken as a whole is looked at functionally. So law in the lawyer’s sense and morality are forms of social control; simply different levels of social control or of what the sociologist calls law in its widest sense. This is a development in the light of sociology of the doctrine of the historical school in the nineteenth century. But it has been chiefly a development in sociology rather than in jurisprudence and so
