The Foundations of Morality

1. Natural Law

The concept of natural law has played a major role both in legal confusion and in legal progress. The confusion comes from its unfortunate name. When natural law is identified with the “laws of nature” it comes to be assumed that human thought can have no part in forming or creating it. It is assumed to preexist. It is the function of our reason merely to discover it. In fact, many writers on natural law throw out reason altogether. It is not necessary. We know—or at least they know—just what natural law is from direct intuition.

If, however, we think of natural law as merely a misnomer for Ideal Law, or Law-as-It-Ought-to-Be, and if, in addition, we have the humility or scientific caution to assume that we do not intuitively or automatically know what this is, but that it is something to be discovered and formulated by experience and reason, and that we can constantly improve our concepts without ever reaching finality or perfection, then we have a powerful tool for the continuous reform of positive law. This, in fact, was the implicit assumption and method of Bentham himself.

2. The Common Law

Positive law and “positive” morality are both products of a long historical growth. They grew together, as part of an undifferentiated tradition and custom that included religion. But law tended to become secular and independent of theology sooner than did ethics. It also became more definite and explicit. Anglo-American common law, in particular, grew through customs of judicial decision. Individual judges realized, implicitly if not explicitly, that law and the application of law must be certain, uniform, predictable. They tried to solve individual cases upon their “merits”; but they recognized that their decision in one case must be “consistent” with their decision in another, and that the decisions of one court must be consistent with those of others, so that they would not easily be overthrown on appeal.

They therefore sought for general rules under which particular cases might be brought and decided. To find these general rules they looked for analogies both in their own previous decisions and in the previous decisions of other courts. Contending lawyers usually did not deny the existence or validity of these general rules. They did not deny that cases should be decided in accordance with established precedents. But they tried to find and to cite the analogies and precedents that favored their particular side. The attorney for one litigant would argue that his client’s case was analogous to previous case Y, not X, and that it therefore came under Rule B, not Rule A, while the attorney for the opposing litigant would argue the opposite.

Thus there grew up, through precedent and analogical reasoning, the great body of the Common Law. There was in it, of course, in the beginning, much reverence for mere precedent as such, whether the precedent was rational or irrational. But there was clearly a great deal of utilic rationality in respecting precedent as such: this tended to make the application of law certain, uniform, and predictable. Moreover, there was also, even in early periods, and increasingly later, an element of utilic rationality in particular decisions. For even in trying to decide a case “upon its individual merits,” a judge would probably give at least one eye to a consideration not only of the probable practical effects of that particular decision but to the probable practical effects of like decisions in other cases. Thus the Common Law was built up both through induction and deduction: in deciding particular cases judges arrived at general rules, i.e., at rules that would apply to like cases; and when a new concrete case came before them, they would look for the relevant pre-existing general rule under which it would be appropriate and just to decide it.

Thus judges both made law and applied it. But common law had the defect of a wide margin of uncertainty. Where precedents were conflicting and analogies were debatable, litigants could not know in advance by which precedent or analogy a particular judge would be guided. Where the general rule or principle had received vague or inconsistent statement, no one could know in advance which form of the rule a given judge would accept as valid or determining. How could men protect themselves from capricious or arbitrary decisions? How could they know in advance whether the actions they were taking were legal or whether the contracts and agreements they were making would be called valid? The demand arose for a more explicit written law.

But the law as a whole, common and statute law together, was a steadily growing and constantly more consistent body of general rules, and even of general-rules-for-finding-the-general-rule under which a particular case came. And the attempt to make these general rules more precise and consistent, and to find a utilitarian basis for them or reconstruct them on such a basis, led to the development of the philosophy of law and the science of jurisprudence.

Yet there is an irony here. While most writers on jurisprudence have been constantly concerned with the relations of law to ethics, while they have sought to make legal rules consistent with ethical requirements, and to find what jurisprudence has to learn from ethics, moralists have not at all troubled to find what they could learn from jurisprudence. For the jurists have made the tacit assumption that while the law is something that was created and developed by man, and is to be perfected by him, ethics is something already created by God and known to man by intuition. The great majority of ethical writers have made a similar assumption. Even the evolutionary and utilitarian moralists have not troubled to see what they could learn from a study of law and jurisprudence.

And this was true, strangest of all, even of Jeremy Bentham, who made tremendous contributions both to jurisprudence and to ethics, and whose most famous book is called, significantly, Introduction to the Principles of Morals and Legislation. Yet he too was concerned principally with what legislation had to learn from morals, or rather with what both had to learn from the Principle of Utility or the Greatest Happiness Principle, and not with the great lesson that ethical philosophy had to learn from jurisprudence and law—the importance and necessity of general rules.

3. The Relativism of Anatole France

But neither Anatole France nor any of those who take this ad hoc view have ever bothered to say what rules or guides, apart from their own immediate feelings, they would apply in place of equality before the law. Would they decide in each case of theft how much the thief “needed” the particular thing he stole, or how little its rightful owner “needed” it? Would they make it illegal only for a rich man to steal from a poor man? Legal for anybody to steal from anybody richer than himself? Would Anatole France himself, in his pose of magnanimity, have considered it all right for anyone to pirate or plagiarize from him, provided only that the plagiarist could show that he was not yet as prosperous or well-known as Anatole France?

The forthright declaration of a Thomas Huxley that it is not only illegal but immoral for a man to steal a loaf of bread even if he is starving, seems like a cruel and shocking Victorian pronouncement to all our “modern” ethical relativists, to all the ad hoc theoreticians who pride themselves on their peculiar “compassion.” But they have never suggested what rules should be put in place of the general rules they deplore, or how the exceptions should be determined. The only general rule they do in fact seem to have in mind is one they seldom dare to utter—that each man should be a law unto himself, that each man should decide for himself, for example, whether his “need” is great enough or the “need” of his intended victim small enough to justify a particular contemplated theft.

4. Inner and Outer Circle

Before concluding this discussion of the relation of law to ethics, let us turn back to the simile from Bentham that law is a circle with the same center as moral philosophy but with a smaller circumference, and to the similar conclusion of Jellinek that law is a “minimum ethics.” Let us try to see just where the radius of the smaller legal circle ends, and why it ends there.