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THE GEORGETOWN LAW JOURNAL VOLUME 30 APRIL 1942 NUMBER 6 NATURAL LAW AND AMERICAN LEGAL REALISM: THEIR RESPECTIVE CONTRIBUTIONS TO A THEORY OF LAW IN A DEMOCRATIC SOCIETYt Francis E. Lucey, S. J.* PROPER treatment of the subject matter of this article involves many questions worthy of separate and extensive treatment in their own right. What is Democracy? What are the various forms of Real ism? Who are Realists? What is Behaviorism and what are its various shades of meaning? What is Psychoanalysis? What is Positivism, Pragmatism, Instrumentalism, Conceptualism, Nominalism? What is meant by Natural Law? Scholastic Natural Law? Brevity required by the time element, permits but a slight nod of recognition to some of these problems, with the hope that the reader has at least a bowing acquain tance with their relationship to the main problem. The main problem here is Realism versus Scholastic Natural Law, so often confused with that Pseudo-Natural Law of 19th Century American Jurisprudence, that philosophy which decapitated the sound philosophy of the founding fathers. The problems involved in the subject matter of the article would com plicate matters sufficiently for any writer. But to add to one's woes there is another difficulty which stems from a much too common and re grettable characteristic of modern writers among whom my Realist friends may be classed. Ideas are tossed out singly and in blocks. One looks in vain for clean cut propositions with definite subjects and predi cates. But it is difficult to find anything into which to put one's teeth. There is an abundance of leaves, but it is hard to find the fruit therein concealed, except the crab-apples. After reading masses of words and tThis article is a further development of a paper read at the Meeting of the Association of American Law Schools held in Chicago on December 30, 1941, at the Round Table on Jurisprudence. *A.B., M.A., Woodstock College; Ph.D., LL.B., Georgetown University; Member of the Bar of the District of Columbia; Professor of Jurisprudence (1928- ) and Regent, Georgetown University, School of Law (1931- ) ; Professor of Metaphysics and Logic, Loyola College, Maryland (1924-1927) ; Professor of Metaphysics, Ethics, and History of Social Thought, Georgetown University (1929-1931); President, Jesuit Philosophical Asso ciation of the Eastern States (1934-1935) ; Author of Jurisprudence and the Future Social Order (1941) 16 Social Science 211. 493 494 The Georgetown Law Journal [Vol. 30: p. 493 phrases one is left with only what one Realist well called an after-glow, although I, myself, with a less charitable disposition have a tendency to denominate the same an after-haze. In reading modern legal writers, I am usually befuddled and bemuddled. I am more conscious of things implied or suggested than things stated, albeit suggested in grandilo quent manner. Many years of honest endeavor to get something more than a fleeting glimpse through the thick foliage at those pretentious Pride's Crossing Mansions of Wisdom nestling on the shore, that is re stricted to superior intelligence, at one time, almost drove me to despair. It was only when Pound, the anti Realist, found difficulty in under standing Realists' writings, and Carl Llewellyn, the Realist, generously reciprocated, that I recovered my balance and agreed with both.1 The confessions of Llewellyn and Pound proved very valuable to me. I re-examined the materials and discovered a new and fruitful approach. I found that at times I acquired a better insight into the proposed theory by reading between the lines rather than by focusing analysis on the express declarations of the author. At other times, I discovered that what the theorists emphasized and fought about was relatively un important and that what they stated or implied but did not emphasize frequently constituted the real heart of their theory. I am fully conscious that being forced to reconstruct the Realist's theory, to a great extent, from the contents of after-glows, between the line readings and from vitally important unemphasized or de-empha sized statements is beset with the danger of misstating the theory and resulting unfairness. Despite that handicap, I shall try to state the case of Realism as correctly and realistically as possible. However, I can not guarantee complete justice to each Realist, because of the variety of psychologies they profess, and the variable extent to which they apply the same to their theory of Jurisprudence. With the thesaurus of unusual words placed beyond my reach and with as little recourse as possible to impressive excerpts from foreign languages, living, doomed or dead, I shall try to state simply the theories involved and their re spective effects on Democracy. First of all then, what is Realism? The Background of Realism Analytical Jurisprudence Realism can be best appreciated by the historical approach, because Realism is only a further development and refinement of Holmes' Socio logical Jurisprudence, and Holmes' Jurisprudence was, in reality, just in laSo that misinterpretation is undoubtedly present, for we have as much trouble getting the Dean's meaning as he at times has in getting the meaning of Realists." Llewel lyn, Some Realism about Realism (1931) 44 Harv. L. Rev. 1222, 1229 n. 19. 1942] Natural Law and Legal Realism 495 a modification of Analytical Jurisprudence. Pragmatism refined Utili tarianism. Sociological Jurisprudence reformed Analytical Jurispru dence. There are of course traces of other schools in the complicated picture of Realism. Realism seems inexplicable without some sort of volkgeist producing folkways and social institutions or a volkgeist in the form of an unconscious mind urge. Environmental stimulus control has to flow from something. We get a better insight into Realism by considering first of all the relationship between Analytical and Sociological Jurisprudence. What are the vital fundamentals assumed by Analytical Jurisprudence? If one is acquainted with Hobbes and Bentham, he has the answer. In the Hobbesian Philosophy, the State is the result of dominant force or a social compact for fear of the same. In Analytical Jurisprudence the authority of government consists in force exercised by the dominant group upon the dominated by issuing imperatives, which from the sub jective viewpoint of the dominant seem useful for civil society. The dominant group arbitrarily predetermines the useful, because the domi nant are subject to no objective norm. There are no oughts or limita tions over the dominant group, because the dominant are the ultimate force in the Society. The dominant group makes the norms and can make anything a norm which it considers socially useful. The dominated are bound to keep within these norms, not by a moral ought, but by compulsory physical force. Just as might creates the right of authority in the dominating group so the might of the dominant group protecting and insuring the approved and decreed behavior of the dominated, con stitutes the rights of the individual and the correlative duty of others.2 The dominant have a sort of self-imposed duty to make their imperative norms aim at an end. What is that end? Social utility. This social utility must be discovered by reason and logic. The utility is as it were predetermined by logic. The reason and logic of the dominant group evaluates ahead of time, predetermines the useful, and then applies it in the form of norms for behavior. Cases and controversies, as they arise, are then decided in a slot machine manner by their conformity or non conformity with the utility norm. This constitutes the basis of the School. Of course, granted these premises, it follows that law is consciously made by the dominant group, that law is normative and composed of imperatives, arbitrarily made, however, as should be noted; that the dominant group has no interest in the past; that typical law is statutory; that reason and logic are masters over the utility or experience, and 2"That which gives validity to a legal right is, in every case, the force which is lent to it by the state. Anything else may be the occasion, but is not the cause, of its obligatory- character." Holland, Jurisprudence (13th ed. 1924) 83. 496 The Georgetown Law Journal [Vol. 30: p. 493 pass judgment on the same; that all law is absolutely flexible, since utility and arbitrary will are flexible; and that determination of cases is a sort of a slot machine practice. There are still other corollaries of the Analytical School worthy of mention. It makes law stand on its own feet, absolutely divorces law and morals as to the formal element of a moral ought, makes the individual live and behave by privilege not right, deprives man of all innate dignity, and thus reduces him to the status of an animal. If one keeps before his mind the vital roll played by force, reason and utility in the Analytical School he can readily see the modifications in Analytical Jurisprudence brought about by Sociological Jurisprudence. Sociological Jurisprudence: Holmes and Pound What did Sociological Jurisprudence object to and change in Analyti cal Jurisprudence? The answer is really a bifurcated one, because we had a Poundian Sociological Jurisprudence and a Holmesian Sociological Jurisprudence, the latter being the father of Realism. While Pound and Holmes differed as to the degree of departure from Analytical Jurisprudence, they had one thing at least in common, namely the prag matic test of utility. Pragmatism did not deny that utility was the test for truth and goodness. It merely denied that you could know utility before experimenting to see what worked. What worked, not reason and logic determined utility. You couldn't decide cases by a predetermined utility, as the Analytical School had held.