Jeffrey Thayne

gavel on a book
What is the purpose of law? Legal philosophers have given different answers over the years.

A few months ago, I took a philosophy of law class. During this class, I decided to write a series about the things I was learning. I wrote a few posts, but then got stuck on a post about Thomas Hobbes. I was having a hard time encapsulating his ideas. I wrote most of the rest of the series, but never posted them, because I wanted to post them in historical order. However, I decided to postpone finishing my thoughts on Hobbes until a later date. I’ll be posting the rest of my “Philosophy of Law Notes” series.

Here is a short summary of some legal philosophers who focused their writings on jurisprudence. Jurisprudence is the study of how judges make legal decisions in the courtroom. This is an important aspect of the philosophy of law, because the way judges interpret and treat law has significant implications in how we define what law is, what purposes it serves, and the source of legal obligation.

Savigny

The bulk of Friedrich Karl von Savigny’s writings on law was a reaction against a movement known as legal formalism or mechanical jurisprudence. Letwin explains that what he opposed was “the disposition to liken law to a system of mathematics that can be deduced from axioms.”

Many theorists at the time were enamored by attempts to codify law, and to rectify any weaknesses in law by further codification. This bothered Savigny. He was not opposed to the traditional idea of law, only attempts to mechanize it to the point that judicial decisions simply become (to use a modern metaphor unfamiliar to Savigny) comparable to a computer running a long text of code. The outcome is inevitable, but also inhuman and cold. According to Letwin, Savigny’s

thesis was that the law, like all human institutions, had been made by thinkers and statesmen who knew which way to turn their feet without knowing the final destination. The law of the present had been developed over many centuries by men working in a variety of circumstances for a variety of purposes. The unintended consequence of numerous acts with more particular intentions was the blending of rules of law into an organic whole that could not be deduced from any simple set of principles. Therefore, both in its structure and in its mode of change, law is not like mathematics or logic, Savigny argues, but rather like language.

… Any attempt to reduce to a systematic unity what had developed over centuries would necessarily ignore and destroy the complexity that had made the legal inheritance so rich and valuable.

Savigny did not wish to attack attempts to formulate or legislate law, only the movement to codify law to the point that it becomes an inhuman mechanism, detached from and alien to the rich historical context from which it developed. Savigny’s philosophy was part of a movement today known as historical jurisprudence, which focuses on law’s formation through historical circumstance.

Jhering

Rudolf von Jhering understood and appreciated Savigny’s claim that law is developed out of historical circumstances. Jhering’s central argument against Savigny and other followers of historical jurisprudence is that they treated the ideal formulation of law as an end to be achieved, and legislation and adjudication as means of achieving that goal. He saw in most legal theorists a kind of neo-platonic philosophy that the ideal law was the embodiment of perfect reason, and the goals of legislators should be to codify that reason into legislation. Jhering would bring this criticism against any natural law theorist, or any theorist that tried to describe what the ideal regime of law would be like.

Instead, Jhering claimed that law is not an end to be achieved, but a tool to achieve other goals. Law is created by people to achieve a particular goal. The goal or purpose of law is not determined by any one person, but society as a whole. Letwin explains that according to Jhering, “Law is not to be understood as the product of reason but of will, and this will is not that of any individual, but of a social whole seeking to perfect itself as a whole.”

Duguit

Jhering’s philosophy was adopted by a French legal philosopher named Leon Duguit. According to Letwin, Duguit

argues more directly than Jhering against the traditional idea of law as the bond that unites an association whose purpose consists 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.

Summary

According to Savigny, law evolved over time, through the aggregate acts of numerous individuals and society as a whole, into its present organic whole, in the same way that languages develop. Thus, the present whole could never be codified completely without losing some of its historical character.

Jhering believed in Savigny’s historical account of law, but went further. Because law is entirely a human invention, it is an act of will, not a manifestation of reason. For this reason, law is a means to an end, not an end in and of itself to be pursued. The social ends for which law is designed are decided by society as a whole.

Duguit took Jhering’s philosophy even further, and also described law as an expression of will. Law is the way in which the ruling body can enlist individual citizens into the service of a communal goal. Uniting a community to this common goal is the purpose of law, and thus there can be no such thing as an “ideal body of law,” because the law is simply a tool that can take on any shape or size.



Notes

All quotations taken from Shirley Robin Letwin, On the History of the Idea of Law (Cambridge: Cambridge University Press, 2005).