The Ideal Element in Law. Roscoe 1870-1964 Pound

      Whether there is an ideal element in law depends not a little on what is meant by the term ‘law.’

      Historically the oldest and longest continued use of the term ‘law’ in juristic writing is to mean the aggregate of laws, the whole body of the legal precepts which obtain in a given politically organized society. This meaning was generally assumed in definition of law from the Middle Ages to the end of the eighteenth century. Law was an aggregate of laws and a law was an authoritative rule of conduct for the individual man. Bentham put it so¹ and such was generally the position of the English analytical jurists. It became a practical question recently in what is likely to prove a leading case under the new constitution (1947) of the State of New Jersey.² The constitution provided: “The Supreme Court shall make rules governing the administration of all courts in the state and, subject to law, the practice and procedure in such courts.” The court held that the words ‘subject to law’ referred to substantive law; not to future or past legislation as to details of procedure but to substantive law established either by common law or by legislation. Law is a broader term than ‘laws’ or than ‘a law.’ The latter term refers to single items of one element in law in but one of three senses of that term which must be distinguished.

      One of those meanings is what is now called ‘the legal order’—ordre juridique, Rechtsordnung, the regime of adjusting relations and ordering conduct by systematic application of the force of a politically organized society. This regime is the most highly developed form of social control in the modern world. It is a specialized form of social control, carried on with a body of authoritative precepts, applied in a judicial and administrative process. After law had been defined by Greek philosophers and Roman jurists, and by philosophers, publicists, jurists, and lawyers, from Thomas Aquinas to Grotius and Pufendorf and Hobbes and Blackstone in terms of laws or rules of law, Kant at the end of the eighteenth century applied the term to the condition which the body of precepts brings about or seeks to bring about and so came near to the idea of the legal order.³ Later formulas were put in terms of the legal order, thought of as a process rather than a condition.⁴ Kohler expressly defines the legal order as such and assumes that no further definition of law is required.⁵ Also Kelsen uses ‘law’ in this sense in his theory of the unity of law, that is, the unity of the legal order.⁶

      As was said above, a second sense of the term law, is to mean the authoritative materials by which controversies are decided and thus the legal order is maintained. It is the sense in which law is said to be an aggregate of laws. But in truth here also there is no simple conception. I undertake to say that law in that sense is made up of precepts, technique, and ideals. There is a body of authoritative precepts, developed and applied by an authoritative technique, in the light of authoritative traditional ideals. Law in the second sense is commonly thought of as simply a body of authoritative precepts. But the technique of developing the precepts, the art of the lawyer’s craft, is quite as authoritative and no less important. Moreover, the ideal element of law in the second sense, the body of received, authoritative ideals, which is the background of interpretation and application of legal precepts and is crucial in new cases in which it is necessary to choose from among equally authoritative starting points for legal reasoning, often has more significance in the administration of justice according to law than the text of the precepts applied.

      As a consequence of development of the functional attitude toward the science of law, there began a generation ago to be increased attention to the phenomena of the actual administration of justice as contrasted with exclusive attention to the authoritative materials for guidance of judicial action. Accordingly much which has been written about ‘law’ has had to do with what Mr. Justice Cardozo has taught us to call the ‘judicial process.’⁷ But today we must take account also of what we may call the ‘administrative process.’ We must think of maintaining the legal order by a process of adjusting relations and determining controversies whether it is done judicially or through administrative agencies. Writers on jurisprudence from a psychological standpoint are concerned chiefly with the judicial process or with both the judicial and the administrative processes as phases of one type of governmental activity. Hence, in the neo-realist writing, of which there has been so much in America in the past twenty-five years, the term ‘law’ is used in a third sense. As Llewellyn has put it, “What officials do about disputes is. . . the law itself.”⁸

      Much of what has been written about the ‘nature of law’ has been vitiated by taking all three of these meanings as included

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