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Our Age for Legislation and Jurisprudence, trans. Abraham Hayward (London:
Littlewood, 1831), esp. 64 ff. 96, 101, 106, 108, 135, 139, 182. For a gross misinterpretation
of Savigny™s views, see Roscoe Pound, Interpretations of Legal History (Gloucester, MA:
Smith, 1967).
188 The significance of rules

the historical development of law into a source of immutable historical
principles. Others were mainly impressed by his denial that a legal system
could be spun out of reason by legislators who have purely abstract
knowledge of what is right. His emphasis on the relation between a legal
system and its cultural context led still others to conclude that if rules of law
are not perfectly self-sufficient and decisive, then they have no meaning at
all. In this way, by a twist of intellectual fate, Savigny™s effort to illustrate
how the law combines continuity with change became the basis for
arguing that neither rationality nor stability can be attributed to law.

Rudolf von Jhering
Following Savigny™s lead, a group that would become known as the
Realist school of jurisprudence borrowed from Savigny™s emphasis on
law™s historical character to transform the traditional equation of law
with rules made by legislators given the right to do so. Realism began in
Germany during the second half of the nineteenth century with Rudolf
von Jhering; it was given a distinctive shape by the American jurist John
Chipman Gray; and it reached maturity in the works of the American
judge Jerome Frank.
The derivation of legal Realism from the connection that Savigny
tried to establish between law and its social context followed a very
indirect route. Out of the historical principles of law discovered
by Savigny, his disciple, G. F. Puchta, constructed a formal system for
which he claimed not merely historical truthfulness, but universal philo-
sophical validity. This way of looking at law struck Puchta™s student,
Jhering, as “jurisprudence in the air,” and he set himself to producing a
“jurisprudence of realities.” The moral that he drew from Savigny™s
connection between law and other aspects of social life was that law had
been produced by efforts to realize a social purpose. Such a purpose was
always practical. Law had then to be understood as a means of realizing
an objective that was both social and practical.
What Jhering found wrong with the cult of the abstract advocated
by Begriffsjurisprudenz, as he called both Austin™s analytical and Sa-
vigny™s historical jurisprudence, was that they considered law as if it were
an end in itself to be brought to some static perfection, and they denied
that law could be shaped by purpose. According to Jhering, their talk
about legal logic and the science of law had no connection with real life,
for what matters is not the structure or development of the law, but its
adjustment to changing social conditions. Law is not to be understood as
the product of reason but of will, and this will is not that of any individ-
ual, but of a social whole seeking to perfect itself as a whole. The jurist™s
Savigny, Jhering, Duguit, Holmes, Gray, Frank 189
task is to consider what the social needs are and how law can best serve
them.
Although he emphasized that “the good of the individual is never an
end in itself but only a means for accomplishing a social purpose,” Jhering
nevertheless admired Bentham™s attempts to found legislation on social
utility and thought of his own system as belonging to the utilitarian
tradition. But Jhering disapproved of the individualistic and hedonistic
implications of the principle of utility as Bentham had formulated it and
rejected its use for calculating the priorities among competing purposes.
He condemned any such attempt as an unconscious reversion to a doc-
trine of natural rights.
Unlike his Realist successors, Jhering was explicit about his presuppos-
itions. He assumed both that there was no problem in discerning the
social purpose and that the social purpose always took precedence over
any that was merely individual. The differences in how individuals con-
ceived of the social purpose, he said, were insignificant compared with
their agreement. In any case, “ideals” could not be hostile to one another;
nor could the legislator have any problem in determining what constituted
the moral consciousness of the nation. He had only to consider the
consequences of any course of action to discover whether it served the
social purpose.
Thus, Jhering returned to accepting, in another guise, what he had
started by rejecting. He had argued in his first publication, The Struggle
for Law (1872), against what he took to be the “myth of the folk-spirit”
propagated by the historical school, that law was produced by the silent
work of a folk-spirit. He maintained instead that law was produced by the
struggle of everyone for his rights, and that the “idea of the personality”
of the individual depended on retaining the notion of struggle, though he
also stipulated that the “rights” claimed should be rights “in principle.”
But by 1877, when he wrote Law as a Means to an End, the notion of
struggle had become unimportant. Indeed, the objective of law had
become entirely a social and not at all an individual purpose, and what
this consisted of appeared to be self-evident truth in the moral conscious-
ness of the community. The general criterion that should guide the
legislator was obvious, Jhering now argued. The practical aim of justice
is to establish equality: “When the burdens which society imposes upon its
members are distributed unequally, . . . The centre of gravity is displaced,
the equilibrium is disturbed, and the natural consequence is a social
struggle for the purpose of re-establishing equilibrium . . . always a shock
to the existing social order.” And he defined the equality desired as a
“relative, geometrical equality, which measures every share in accordance
with each one™s contribution. . . .” Only when the members of society were
190 The significance of rules

compensated for their devotion could the society flourish. Thus, the
principle of equality came to be something dictated by the “practical
interest in the continuance and success of society” and not any “a priori
categorical imperative.”5
Progress, Jhering predicted, would bring with it a continuous increase
in the demands of the state on the individual.6 In return, the individual
would receive not merely sensuous and material goods, but also an
improved quality of life. Although private property and the right of
inheritance would always remain (socialistic and communistic notions of
removing it were “vain folly”7), the state would increasingly encroach on
private property in order to distribute burdens and privileges equally
throughout the social body, so that no one part of it would be unduly
weakened or strengthened at the expense of the other parts.
A conflict between social and individual purposes is impossible because
society is not, as Kant had said, an association for the purpose of realizing
the equal freedom of all, but an association with “a common interest” in
which all individuals find their place and themselves by working for the
good of the whole. Therefore, setting limits to the activities of the state, or
thinking in terms of the disadvantages of state action, as did Mill and
Humboldt, was futile. Humboldt and Mill, Jhering said, were still wedded
to the law of nature for which the individual “is the cardinal point of the
whole law and the State. . . an atom without any other purpose in life than
that of maintaining itself alongside of the innumerable other atoms.”
They had fallen into this error, Jhering explained, because they had
accepted the Kantian formula according to which the state and the law
have the task of “dividing off of the spheres of freedom” of the individual
members “in the manner of cages in a menagerie.”8 Contrary to both Mill
and Humboldt, Jhering asserted that the state in the future would not
“measure restrictions of personal liberty. . . according to an abstract
academic formula, but according to practical need.”9
In making law subservient to purpose, Jhering did not mean to empha-
size the contingent character of law. On the contrary, he emphasized that
the historical relation of purposes was a necessary one: “One legal pur-
pose is produced out of the other with the same necessity with which,
according to the Darwinian theory, one animal species is developed from
the other. And if the world should be created a thousand times as it was
once created, “ after milliards of years the world of law would still bear

5
Rudolf von Ihering, Law as a Means to an End, trans. Isaac Husik, with a preface by
Joseph H. Drake (New York: MacMillan, 1924), 276“78.
6 7
Ibid., 381. Ibid., 396.
8 9
Ibid., 399, 418. Ibid., 409.
Savigny, Jhering, Duguit, Holmes, Gray, Frank 191
the same form; for purpose has the same irresistible force for the creations
of the will in law as cause has for the formation of matter. . . Law obeys
this compulsion willingly or unwillingly. But the compulsion proceeds
step by step.” Jhering drew from this necessary progression of purposes
the conclusion that therefore “It is not the sense of right that has
produced law, but it is law that has produced the sense of right.”10
Unlike his successors, Jhering saw and admitted the consequences
for freedom of the will. The notion that the will “can set itself in
motion spontaneously without a compelling reason” is, he said, “the
Munchhausen of philosophy,” who thinks that he can “pull himself out
of a swamp by his own hair.”11 The notion of purpose in relation to the
will is parallel to the notion of cause in relation to mechanical events. The
stone falls because it is pulled by the earth; the will acts because it is pulled
by a purpose. Free choice, then, has nothing to do with law. Whereas
Kant had removed contingency from law by making it wholly a product
of reason, Jhering achieved the same result by making law wholly a
product of will, understood to be totally subservient to a historically
given social purpose.
In Jhering™s terms, it makes no sense to judge law by ethical standards
because for him “ethical” describes social conditions. It is the function of
law to define what constitutes such conditions and such an adjustment. In
that sense the law determines what is ethical. But in another sense, Jhering
preserved a degree of independence for ethics. Moral development con-
sisted for him in the progress of human beings from egoism to a recogni-
tion of themselves as part of a social organization. As a legal system could
be preserved only by men ready to renounce their private desires, the legal
system was dependent on the morality of its subjects. There was, then, a
circular relationship between law and ethics “ law depended on the social
devotion and discipline of individuals, but such qualities could not be
developed without the law.
Jhering emphasized that precisely what was required either for the
conquest of egoism in the individual or for the achievement of the social
purpose was never fixed and could not therefore be known a priori. What
was required at any given time had to be left for the legislature to decide.
Of course, it was morally bound to use its power in the interest of society,
but to do so well the legislature had to be left free to change the law when
and how it considered fit. There could not, then, be any limit on the right
of the legislature to make what laws it considered desirable.



10 11
Ibid., lviii“lix. Ibid., 2.
192 The significance of rules

A cruder version of Jhering™s idea of law appeared in France in the
´
work of Duguit, Hauriot, and Geny. The features common to all of
them are most clearly stated in Duguit™s Law in the Modern State, which
was translated into English by the British socialist, Harold Laski, in
1919. Duguit argues more directly than Jhering against the traditional
idea of law as the bond that unites an association whose purpose con-
sists in enabling the individual members to pursue their diverse activities
in peace. That idea, Duguit says bluntly, has become obsolete. Evolution
has made it evident that the state exists to provide a variety of public
services, and that the law is the means for organizing those services
effectively.
Duguit accordingly describes the law unequivocally as an instrument
for achieving the purposes of a productive enterprise. Legal rules, then,
have the same character as the rules of an army, a hospital, or a factory,
all of which are designed to promote certain substantive results. Far from
being a set of rules designed to make it possible for people to associate in
peace while pursuing a variety of projects, the law becomes the means for
directing the members of the society to contribute to the same project. In
this picture, a legal order is the contrary not of the reign of arbitrary will,
but of a regime that allows multiplicity and diversity; order becomes
synonymous with unity of purpose, and law is the means for enrolling
every individual in the pursuit of this purpose. Thus, Duguit™s idea of law
successfully escapes from the abstractness of Begriffsjurisprudenz by
inventing a radically new purpose and character for law.

The Realists
Another theme in Jhering™s work “ his denial that fixity and rationality
are the essence of law “ became the central thesis of the American
Realists. Their chief preoccupation was with the inadequacy of what
Roscoe Pound described as the “automatic,” “slot machine,” “formal,”
“conceptualist” view that the law developed by “rigorous logical deduc-
tion from predetermined conceptions in the disregard and often in the
teeth of actual fact.” To oppose the “automatic,” “slot machine” view of
law, the Realists adopted Jhering™s theory and seasoned it with sugges-
tions made by J. H. von Kirchmann, some years before, in The Worthless-
ness of Jurisprudence as a Science (1848). Kirchmann declared a science of
law to be impossible because the law was constantly changing, depended
on feeling as well as knowledge and understanding, and rested not on
nature but on human will. From emphasizing that the law is constantly
changing, the American Realists moved to asserting that in order to
destroy any pretense that the law is stable, as well as to ensure that this
Savigny, Jhering, Duguit, Holmes, Gray, Frank 193
constant change should be deliberately and rightly forwarded, judges
should deliberately promote changes in the law.
The doctrine of the Realists can be traced from the definition of law
given by Justice Oliver Wendell Holmes in his lecture on “The Path of the
Law”: “the prophecies of what the courts will do in fact and nothing more
pretentious are what I mean by Law.” It has been suggested12 that
Holmes did not intend this to be a comprehensive definition of the law,
but merely a mark for distinguishing between law and ethics. Neverthe-
less, Holmes™s definition expresses an attitude to the law that regularly
distinguishes all his pronouncements and underlies all Realist jurispru-
dence. This is an attitude of doubt about the usefulness, meaningfulness,
and reality of general rules.
The first systematic exposition of this tendency, though in a moderate
form, was given by John Chipman Gray in The Nature and Sources of the
Law (1909).13 Although he is one of the few jurists who rightly under-
stood Savigny™s emphasis on the historical character of law, Gray™s
interest lay elsewhere “ in how rules of law, and what officers of law do,
affect the conduct of ordinary people. What matters to the ordinary man
is not, according to Gray, what the legislator has enacted, but what the
judge decides; any law that the courts fail to adopt is not law. To claim
otherwise confuses an ideal with reality. For law “is not that which is in
accordance with religion, or nature, or morality; it is not that which ought
to be, but that which is.”14 What the law is cannot be discovered by
reading a statute because the same statute can result in two contrary
decisions. This indeterminancy or uncertain nature of law means that
whether, for instance, a man has a property right at law cannot be known
until a court has pronounced.
Gray attributes the futile and mistaken insistence on “discovering” or
“finding” the law to an “unwillingness to face the certain fact that courts
are constantly making ex post facto Law,” and thus exercising a highly
unpopular power. In reality, “the law, except for a few crude notions of
the equity involved in some of its general principles, is all ex post facto.”
People go about their business without the vaguest notion of what the law
is, Gray maintains, and “the Law of which a man has no knowledge is the


12
See A. L. Goodhart, “Some American Interpretations of Law,” in Modern Theories of
Law (London: Oxford University Press, 1933, reprint, London: Wildy, 1963), 1“20, esp.
9“10 (page citations are to the reprint edition).
13
Gray™s views became current in Britain through Sir John Salmond. See P. J. Fitzgerald,
Salmond on Jurisprudence, 12th ed. (London: Sweet & Maxwell, 1966).
14
John Chipman Gray, The Nature and Sources of the Law (New York: Columbia
University Press, 1909), 90.
194 The significance of rules

same to him as if it did not exist.” And if a case comes up for which there
seems to be no law and no precedent, as the judge™s business is to
“maintain the peace by deciding controversies,” he will produce a rule
of law for the occasion. “That rule is the Law, and yet the rights and
duties of the parties were not known and were not knowable by them.
That is the way parties are treated. . . by the courts. . . .”15 Thus the true
lawgiver, Gray concludes, is not he who utters the words of a law, but as
Bishop Hoadly said, “Whoever hath an absolute authority to interpret any
written or spoken laws. . .” (emphasis added). It is futile to look for the
“sources, purposes, and relations of the rules themselves, and to call
the rules ˜The Law.™”16
The problem, then, for jurisprudence is to consider how the judge
arrives at his rules and what gives his rules authority. In many areas of
law, Gray points out, it is the judges themselves who decide whether other
judges are acting properly. The state may also indicate that the judges
are to obtain their law from certain sources and that acts of legislation
shall take precedence over all other sources. In addition, judges may draw
their rules from “judicial precedents, opinions of experts, customs, and
principles of morality (using morality as including public policy).”17 Acts
of legislation seem to be different from these other sources only because
the limits set by a statute are more definite than those set by other sources.
Nevertheless, because a statute must be interpreted, though the judge™s
powers of interpretation are restricted within limits, “these limits are
almost as undefined as those which govern them in their dealing with
the other sources.” A statute, then, guides the conduct of the community
not directly, but in the shape of a judicial interpretation. Therefore, Gray
says, “The Law of the State or of any organized body of men is composed
of the rules which the courts, that is, the judicial organs of that body, lay
down for the determination of legal rights and duties.”18
Radical as it was, Gray™s doctrine still had “more than a trace of the old
philosophy,” complained Jerome Frank in Law and the Modern Mind
(1935). Frank found no more reality in the judge-made rules than in the
legislator™s statutes. For after all, he argued, rules are merely words, and
“words can get into action only through decisions; it is for the courts
in deciding any case to say what the rules mean, whether those rules are
embodied in a statute or in the opinion of some other court.”19 Law,



15 16
Gray, Nature and Sources, 97“98. Ibid., 100.
17 18
Ibid., 118. Ibid., 119, 82.
19
Jerome Frank, Law and the Modern Mind, with an introduction by Julian W. Mack (New
York: Tudor, 1935), 123, 125 (hereafter cited as Modern Mind ).
Savigny, Jhering, Duguit, Holmes, Gray, Frank 195
according to Frank, consists neither in statutes nor in judicial precedents
or rules, but simply in a particular judicial pronouncement, that is to
say, the judge™s decision for a given case: “For any particular lay person,
the law, with respect to any particular set of facts, is a decision of a court
with respect to those facts so far as that decision affects that particular
person. Until a court has passed on those facts no law on that subject is
yet in existence. Prior to such a decision, the only law available is the
opinion of lawyers as to the law relating to that person and to those facts.
Such opinion is not actually law but only a guess as to what a court
will decide.”20 Thus, Frank consigns the judges™ rules, along with all
other rules, to “some among many of the sources to which judges go in
making the law of the cases tried before them.”21 The law is reduced to a
set of acts by judges; a legal statement is a prediction of what the judge
will do.
This is indeed the only notion of law compatible with Frank™s under-
standing of general ideas. For Frank, as for his philosophical ally, John
Dewey, an idea represents not an understanding of the world, but an
“instrument” for changing it. An idea is not a response to other ideas
but to problems, needs, hopes, fears, or aversions, and is designed to
reconstruct an unsatisfactory situation. All ideas are like legal fictions.
The connection between the true character of ideas and legal fictions
had been suggested to Frank by Hans Vaihinger™s The Philosophy of “As
If” (1924), where fictions are described as “constructions of thought,
thought-edifices deviating from and even contradicting reality but
invented and interpolated by this very thinking in order to attain its end
more expeditiously.”22 Vaihinger had been inspired, as Jhering was, by
Kant™s view that thought is creative rather than passive, and, like Jhering,
Vaihinger was anxious to tie this creativity to an empirical rather than to
a rational reality. He found this empirical reality in activity directed to
changing the world. The function of ideas was to serve as instruments of
change. A clear recognition of how ideas are used for transforming the
undesirable present to the desired future, Vaihinger believed, appeared in
the legal concept of fiction. Vaihinger accordingly praised lawyers for
their acceptance of legal fictions. This concept, broadened to include all
general ideas, explained the relation between thought and action.
Frank, however, regarded the notion of legal fictions as an unintended
achievement. Lawyers did not recognize their true value, but misused


20 21
Frank, Modern Mind, 46. Ibid., 127.
22
Hans Vaihinger, The Philosophy of “As If ”, trans. C. K. Ogden (London: K. Paul,
Trench, Trubner, 1924) (hereafter cited as Philosophy), quoted in Modern Mind, 318.
196 The significance of rules

them as “semi-myths to conceal the actualities of legal change and adap-
tation.” What is needed, Frank said, is “liberated fictional thinking,”
which would recognize “the correct use of valid fictions” and acknow-
ledge “that all legal rules are relative and instrumental.” Such progress
depends on the willingness of lawyers to accept nominalism, the view that
general ideas denote nothing real. The readiness to accept nominalism,
Frank argues, is “the first step towards knowledge of the provisional or
relative character of all concepts.”23 Only by adopting a nominalist view
of human understanding could lawyers come to see how naively they have
been using general ideas and come to recognize the truth pointed out by
Vaihinger: “General judgements, when connected with a general subject,
only represent convenient methods of expression. There is no such thing
as a general subject in reality. . . .”24 Jurists such as Bentham who
denounced fictions did not distinguish, according to Frank, between
“legal lies. . . designated to deceive others” and “legitimate legal fictions,”
which are undisguised instruments for changing the world.25 Thus, Frank
appeared to align himself with jurists of the natural law school who regard
legal fictions as salutary ways of stretching established legal concepts to
cover new circumstances. But whereas the latter value fictions for pre-
serving the efficacy and stability of rules of law, Frank values them for
destroying the pretense that there are rules of law.
Other Realist jurists moved from the belief that legal rules are irrelevant
to the conclusion that what matters is something “more real” that deter-
mines the behavior of judges. The Scandinavian Realist, Hessel Yntema,
found that the “most salient” thing to say about “the mystery of the
judicial process” is “that decision is reached after an emotive experience
in which principles and logic play a secondary part. The function of
juristic logic and the principles which it employs seems to be like that of
language, to describe the event which has already transpired.”26 A truly
scientific study of the law, according to another Scandinavian Realist,
Herman Oliphant, would completely devote itself to a genuinely scientific
subject, “which way they decide cases.”27 Karl Llewellyn, a leading figure
among American Realists, pointed out that judges have no monopoly on

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