YALE LAW JOURNAL
will be necessary to determine which of these views is sound; that is, whether the standard is objective or subjective; but in order to save repetition, I shall consider that question when I am considering whether there are any features common either to the source or to the content of all laws and systems of law.
When law is used in the sense of the standard of justice, it is said that it “is the standard of conduct which in consequence of the inner impulse that urges men toward a reasonable form of life, emanates from the whole, and is forced upon the individual”; or that it is “the objective co-ordination of possible acts among men, according to an ethical principle which determines them and prevents their interference.”
Some of those who believe the standard of justice is objective think that it is to be found in individual liberty, or that only those laws are just which tend to promote the liberty of the individual at the expense of the community; in other words, that law is intended to effectuate individualism. Others think law is intended to hold society together; that the end of law is to find a place for everyone and to keep him in his place, and that those laws and those only that have that effect are just. Others think the standard is to be found in equality, and that those laws and those only that tend to make everyone equal before the law are just. Others think the test to determine whether an act is just is to inquire whether it will promote the welfare of the race as distinguished from the welfare of particular individuals, or classes of individuals. There are those who find the standard of justice in what the Germans know as “Kultur,” and they think that those laws only are just that tend “to secure and increase the progress of culture by so moulding rights and the universal cultural values which it protects that the hampering elements are removed and the improved tendencies supported and strengthened.” In short, there are as many objective standards of justice as persons who believe in such a standard.
- Orrin N. Carter, Introd. to Kohler, Philosophy of Law (1914) xxxvii.
- Del Vecchio, The Formal Bases of Law (1914) 218.
- Demogue, Analysis of Fundamental Notions, Modern French Legal Philosophy (1916) 371.
- Small, op. cit. 680-685.
- Kohler, Philosophy of Law (1914) 60.