Page:Yale Law Journal - Volume 27.pdf/29

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LAW AS AN EXPRESSION OF IDEALS

5

As the term law is commonly used, the system of rules in force in a particular country delimiting what its citizens must do to avoid civil and criminal liability is intended. When used in this sense, law is said to be the “body of rules and principles in accordance with which justice is administered by the authority of the state”;[1] and a definition of law usually assumes the form of a definition of one of these rules. They are said to be rules for the delimitation of interests;[2] of wills; and sometimes of both interests and wills; sometimes rules for the protection of interests; and when we come to the cases, they are said to be rules of civil conduct that the state will enforce;[3] or more generally, rules the state may enforce.[4] To some, these rules are as unchangeable as the laws of the Medes and Persians. Others recognize that they change to keep pace with the changes in their makers' ideals. Still running through much that is to be found in the books is the idea that there is something in law, "a core" or "inner nerve," as it is sometimes called, that causes it to develop in a way to promote the well-being of the race. As will be shown more fully later, this is putting the cart before the horse, or putting the thing that is made in the place of its makers. There is a force either in or outside of humanity that dominates its evolution or causes it to develop in such a way that the number of those who share in the good things of life is constantly increasing, while law is merely one of the things communities employ to bring this about.

If all the definitions of law to be found in the books are accurate from their authors' point of view, they afford but little help in our search for earmarks common to all rules of law. There are no features common to the definitions of law when it is used in the sense of the standard of justice, and when it is used in the sense of a system of rules the state will enforce; and the only feature common to the definitions of the second class is that a rule of law is a rule of civil conduct; intending by that a rule delimiting what those subject to it must do to avoid liability.

To say that a law is a rule of civil conduct is but little more helpful to one in search for the earmarks by which a law may

  1. Pound, Ioc. cit.
  2. Korkunov, General Theory of Law (1909) 79.
  3. 1 Blackstone, Comm. *44.
  4. 25 Cyc. 163, 18 A. & E. Ency. Law 569, 5 Words & Phrases 4014.