The Province and Function of Law

982 Pages·1946·31.606 MB·English

by  Julius Stone

THE PROVINCE AND FUNCTION OF LAW

THE
PROVINCE AND FUNCTION
OF
LAW
Law as Logic Justice and Social Control
A Study in jurisprudence
by
JULIUS STONE
LL.M. (Leeds), S.J.D. (Harvard), B.A., D.C.L. (Oxford)
Challis Professor of Jurisprudence and International
Law, University of Sydney; Solicitor of the
Supreme Court, England; of the New Zealand
and Victorian Bars. Formerly Lecturer
in Law, University of Leeds; Assistant
Professor of Law, Harvard Law
School; Professor of Law
Auckland University
College, New
Zealand.
*
THE
PROVINCE AND FUNCTION OF LAW
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ISRAEL HORWITZ,
B.Sc. (Econ.), F.S.S., Ped. Dip. (Lond. Univ.)
Governing Director.
Sydney, Australia.
DEDICATED
to
MY WIFE
whose companionship and faith
made this work possible
and
to
my friend
ALFRED CONLON
whose qualities of mind have
made it a bolder and a
truer work.

PREFACE
Anglo-American juristic interests have been largely concen-
trated, in the century since Austin, on the logic of the law, on the
effort to view the precepts of the legal system in whole or in part
as a logically self-consistent system. Increasingly, however, the
attention of a restless world is being directed towards two other
questions. One of these is the question of justice. What are the
ideals to which the legal order ought to conform? -the central
question of the theory of justice. The other question concerns
law as a social reality. It inquires concerning the actual effects
of the law upon men's attitudes and behaviour, and the effects
of these latter upon the law. This brief series of questions sets
the boundaries of the present work. The aim is to explore them
for the common law of our own times, and to illuminate the
answers by drawing fully on the reports, the statutes and juristic
literature. And while the common law of England is the point of
departure I have not hesitated to draw materials from the younger
systems of the Dominions and the United States, sometimes
(especially where English experience is sparse), in considerable
measure. And I have admitted also materials from "foreign" law,
when they could promote understanding of our own tasks.
I can now see, as this work nears completion, that it may be
viewed as an act both of revolt and submission. From the
standpoint of the powerful nineteenth century Austinian
tradition, in which most of us were trained, it is an act of revolt.
This is not to say that the important developments in logical
analysis of legal systems which Austin stimulated do not here find
a place. On the contrary they occupy the whole of Part I where
Austin's principal doctrines, as developed and modified by later
thought, are discussed. The revolt consists rather in this, that I
have striven to place such logical analysis in perspective, side by
side with other great bodies of ideas which fill the literature of
the first half of the twentieth century, and seem destined to
dominate the second half.
This act of revolt against older juristic trends is
simultaneously an act of submission to modern trends in the
social sciences. For the questions of justice and social meaning
invite (or rather compel) the entry into the lawyer's purview of
much vital knowledge accumulating in the social sciences.
Neglect of this knowledge has too long given lawyers the illusion
vIII PREFACE
of self-containment. And this illusion was kept only by sacrific-
ing the fuller understanding and skills in law-making and law-
applying which the wider knowledge could bring. It is from
these complementary impulses, then, that this work has grown
over the last fourteen years. Research, teaching and practice in
the very diverse conditions of England, Australia, New Zealand
and the United States, have determined its structure and its
contents.
Whatever absolute degree of interest this work may hold,
interest is likely to be relatively great among four main classes
of readers. First, for legal scholars generally, it may present a
systematic survey of common law juristic thought, at least from
Austin onwards. It also aims to provide a critical assessment of
the contemporary operation and growth of the principal common
law doctrines. Second, for legal practitioners (especially those
engaged on appellate and advisory work) it seeks to systematise
and document, within the covers of a single volume, an otherwise
hopelessly dispersed literature; and to provide, on major points,
some guidance for further research. Third, this volume may have
some interest as a new text book for undergraduate and
post-graduate courses in jurisprudence and the social sciences.
This aspect of tile volume merits, perhaps, some further remarks.
Most teachers who have ventured beyond the analytical field
of jurisprudence are aware of one central difficulty. How can we
deal adequately with the vast and dispersed body of thought in
the wider field, and yet keep the course orderly in arrangement
and critical in approach? This volume is my own answer to this
difficulty. Though there will, perhaps, never be a complete
answer, I can add that I have already used the arrangement and
contents of this book as a basis for final year LL.B. classes, and
have found the difficulty reduced to tolerable proportions. To
aid a critical approach I have tried to provide, in special
footnotes, carefully selected references to original readings,
usually at the beginning of each main topic. The bulk of the
footnotes have a different object. I have hoped that they may
be of use to colleagues in expanding any special topics in which
they may be interested, or in criticising the views I have ventured
to express in the text.
I have thus far mentioned some of the possible interests in
these pages of legal scholars, practitioners, teachers and students.
But' while lawyers have urgent need to relate their problems to
those of the moral, social and political theorists, the latter may
have a converse need almost equally urgent. Thought of the
greatest importance for them is embedded in the now considerable
monographic and periodical literature of the law. The
systematisation and criticism of juristic theory and of moral,
PREFACE
social and political theory, in their interrelations, is a main task
here undertaken.
The intellectual debts incurred in preparing this work are
owed to many authors, and to teachers and colleagues in
universities scattered over the common law world. To
acknowledge them all would extend this Preface unduly, but
some must here be given words. First, however, I must mention
a debt which stands apart. My wife, to whom this volume is
gratefully dedicated, has had a devoted hand in every stage of its
preparation over the last fourteen years. Hers, in particular,
have been the tasks of converting an illegible first draft, nearly
twice the bulk of the finished work, into a typescript from which
the last two drafts could be made; and a style diffuse and obscure
into one more tolerable to the reader. Without her unwavering
faith in the importance of the undertaking, and her
encouragement for its conclusion, that point might have been
indefinitely postponed.
Among teachers and scholars my greatest single debt is to
Roscoe Pound. The years I worked with him as a student, and
then as a colleague, in the teaching of jurisprudence at Harvard,
have left their mark. If I am here more critical of his position
on some important matters than befits a disciple, it should not
conceal the greatness of my continuing debt. This is apart from
what I owo to his many articles and monographs, among which
I must particularly mention the fifth edition of his Outlines of
Lectures on Jurisprudence. I was privileged to assist in the
preparation of that edition, and my own MS materials and
references which I then garnered (many of theni now incorporated
in the Fifth Edition) have proved invaluable to me in the present
task. I am grateful too for Professor Pound's permission to use
the rich materials of the Fifth Edition and the extracts from
some of his other works.
Among contemporary English jurists the reader will readily
observe (for instance in Chapter VII) my heavy debt to Lord
Wright. That debt differs from the one last acknowledged in that
the creditor is not aware of it. It has been incurred through the
printed word-through juristic essays (many of them now
collected in his Legal Essays and Addresses) which have so
illuminated his judicial opinions. Yet the debt is nonetheless
great and unmistakeable. His works have been for me (as for
many others) a bridge for legal thought, not only between
nineteenth and twentieth century England, but also between the
two greatest common law democracies. If, in the development of
his many stimulating theses, I have fallen into error, I hope I
have made it clear that the error is mine. Insofar as I have dared
PREFACE
x
to raise doubts as to his position on some matters, I would ask that
this be viewed as a diffident emulation of his own example of
fearless inquiry on all problems vital for the future of the
common law.
No work of this scope could even aspire to adequacy without,
at some stage, the facilities of a library like that of the Harvard
Law School. There, between 1931 and 1936, its foundations were
laid and the bulk of the literature garnered and sifted. But the
perilous task of final formulation and the study of recent work
has had to be done away from the major law libraries of the
world and amid the delays and irregularities of war-time book
deliveries. It is therefore a particular pleasure to pay tribute here
to the Fisher Library of the University of Sydney, to the Public
Library of New South Wales, and to the Library Lending Service
of the Commonwealth, and the Law School Library of the
University of Sydney. Between them they have heroically
fulfilled, to a remarkable extent, my often burdensome
requisitions.
On those Chapters devoted more especially to case-law I
have benefited from the criticisms and suggestions of His Honour
Judge Sugerman, then of King's Counsel at the New South Wales
Bar, and a former colleague in the Law School of the University
of Sydney; and Mr. R. Else Mitchell, LL.B., of the same Bar.
They also read some part of the proofs and gave helpful advice
concerning the Indexes. A great part of the heavy task of checking
case citations was undertaken by Mr. S. Cohen, B.A., LL.M., of
the Victorian Bar. The Chapters on law and logic (except
Chapter VII) were read by Mr. J. H. Passmore, M.A., Senior
Lecturer in Logic in the Department of Philosophy of the
University of Sydney. Mr. P. H. Partridge, Senior Lecturer in
Social and Political Theory in the same Department, devoted
himself unstintingly to reading and criticising Chapters VIII to
XXVII (except XX-XXIII). By his suggestions he saved me from
some errors, and also guided me to works which made the
treatment of other points more adequate. It is with special
pleasure, too, that I acknowledge the debt to my former students,
Mr. J. H. Wootten, B.A., LL.B., and Mr. S. S. W. Davis, LL.B.,
of the New South Wales Bar. Both of them after brilliant courses
in Jurisprudence assisted me with enthusiasm, endurance, and
skill, in checking the text and footnotes, and in preparing the
Indexes. I must express my deep gratitude to all these colleagues,
academic and professional, adding, in the style of my predecessors
(and with no less sincerity) that for errors and inadequacies
which remain I alone must accept responsibility.
For the technical achievement in production of this volume
within little more than a year from delivery of MS, despite