than jurist, as to law and “custom,” i.e., ethical custom or morality.117 The latter, however, is speaking of the Middle Ages and of the words used in the languages of Continental Europe derived from the Middle Ages and the religious-ethical ideas of that time. Hence he tells us of “the derivation of law from moral habits,”118 rejecting, along with Ehrlich, Maine’s theory that the judge precedes the law.119 He points out how this is connected with the words used to express the medieval conceptions; words which go back to an undifferentiated social control. Recht “means what is right in social relations, what should be established and supported as right by social organization.”120 Droit (Latin directum) “is the direction of social relations in the right way. Pravo in the Slavonic group stands for both iustum and dextrum.”121 He adds: “All these terms and notions are not simply juridical, they belong also to the domain of morals, and the expressions pointing to right are clearly allied to words used to designate moral habits.”122 Furthermore, he proceeds, “In the term right itself the personal claim [subjective right] and social order [objective right] have their root in moral sense—in the ethics of social intercourse.”123 Accordingly sociologists in writing on law usually adopt the view of the historical jurists as to sanction.124 Ehrlich distinguishes norms for decision from rules for conduct, the latter including morality.125 Tönnies distinguishes true moral precepts—rules of behavior recognized and imposed by social groups—i.e., law and positive morality as Austin would put it—from individual ideas of what should be moral precepts, individual ethical theories, i.e., morals.126 To show how far this may be carried, what Jhering calls customary rules of politeness,127 Petrazycki calls “rules of unofficial law.”128 It is significant that while Jhering distinguishes law and morality, although seeing their relation, sociologists have commonly used the discussion of morality in the second volume of Der Zweck im Recht as the basis of discussion of law as something including both.129 By making the term “law” so all-inclusive, sociologists revert to much of the confusion in the books on the law of nature from which analytical jurists reacted to the other extreme.130 If Austin and Kelsen have gone too far, it has not been without provocation. How confusion can result from the words used is well brought out by Llewellyn.131
It is to more purpose that Timasheff points out three stages or levels in social control: first, morality or ethical custom, with diffuse sanctions, second, law, organized power with organized sanctions, but not necessarily sanctions of a politically organized society, and third, morals, developed religious and philosophical theories.132 It is important for the jurist to bear in mind, what the sociologists insist upon, that the inner order of groups and associations other than the political organization of a society, and religious and philosophical ideals play a large and often controlling part in the ordering of society in comparison with law in the lawyer’s sense.133 Yet Ehrlich gives us a needed caution as to morals, “a preachment or teaching, as compared with morality within a group,” and vouches the treatment of natives by the whites in every part of the world where they have come in contact, as showing “the depths to which the morality of modern man may sink where there are no associational bonds.”134 Conflicts between morals and law in the lawyer’s sense are an old theme.135 It is an old observation that law in the lawyer’s sense commonly lags behind morality and morals. Morals grow ahead of both morality and law and this growth is an important factor in bringing about changes in law. As Gurvitch puts it, morals are “more dynamic, more revolutionary, more mobile, more directed toward the future. . . than is the law. The latter is more attached to traditional practices than to acts of innovation, more dependent on intellectual representations and the balance of forces than is morality.”136 Yet, he goes on to say, there have been cases where “an advanced law” has overcome current morality so that law has become a factor in moral change. This has happened at times during revolutions or major reform movements, when legislation or intuitive development of an inner order behind it, goes forward at a bound beyond the old law and the morality it expressed.137 Such advanced lawmaking, however, has difficulty in maintaining itself.138
In conclusion, following Radbruch, in the making of rules of law and finding grounds of decision, in applying rules and grounds of decision, and in exercise of discretion in the judicial and in the administrative process, in each of these four tasks of the administration of justice, there are three things to be regarded: (1) Justice, the ideal relation between men; (2) morals, the ideal development of individual character; and (3) security. What is meant by security must be left to a later lecture. These three: justice, morals, security, have to be kept in balance. The answer to the proposition that there is here an irreducible antinomy is that we cannot ignore any one of them at the expense of the others.139 Morals, which give us ideals, morality in which justice and morals are reflected in the time and place, are not to be left out of account in any of the four tasks. But in no one of them will morality or morals suffice of themselves. Security has also to be kept in mind, and if its dictates have to be tempered by morals and morality, theirs have to be tempered by those of security and measured by what is practicable in a legal order. The practical limitations on effective achievement of results by the judicial or the administrative process require us not to attempt too much by means of law (in the lawyer’s sense) but to bear in mind that there are other agencies of social control that may sometimes do better what morals and morality require.140 Yet we should not be too patient under lag of the law behind morality and morals. Beyond reasonable regard for security any manifest lag should be corrected. By excluding all questions of improvement of the law (in the sense of the body of authoritative guides to determination) and of the judicial and administrative processes, a science of law may be more teachable and logically satisfying to students. But jurisprudence is a practical science. As such, it must consider the end of law, the measure of valuing interests, and the adaptability of systematic application of the force of politically organized society to achieving the end and applying the measure of values. It cannot dispense with ethics. It cannot depend wholly upon ethics.
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