Page:Yale Law Journal - Volume 27.pdf/33

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All the rules of juridical law have, therefore, four common features: (1) they are made by a community; (2) to effectuate their makers’ ideals; that is, they are the tools it invents to effectuate its ideals; (3) they limit individual freedom of action; that is, they delimit what those subject to them shall do in a given situation; and (4) they are rules that the state may enforce. The test, therefore, to determine whether a rule is a law in a particular community is to ask (1) if the community made it. (2) If it did, why it made it. (3) If it was made to effectuate one of the makers’ ideals, how it attempts to accomplish that purpose; and (4) whether it is a rule the state may enforce, intending by that to punish those who neglect or refuse to do or omit the things it commands, or else compel them to compensate one who is injured or damaged by this failure to obey the law for all the loss he sustains because of their illegal acts.

If, however, the standard is objective, a law is a rule limiting individual freedom of action that the state may enforce. In other words, if there is such a standard, Blackstone's definition of law as a rule of civil conduct the state will enforce is both concise and accurate; for while it is true that laws are intended to effectuate their makers’ purpose even if they are parts of creation, no definition of law that includes a statement of that purpose can be made that will be accepted by any considerable number of people; for while there are many who believe there is an objective standard of justice, there are no two who can agree as to just what that standard is.

This brings us to the question of the force which dominates the making of laws, and I shall attempt to show that it is the needs of a community as distinguished from the needs of the individuals who compose it. If the standard of justice is subjective; that is, if laws are made by either individuals or communities, we must begin the study of law with a study of the evolution of the human race. While it was once thought that the individual was the unit into which the race was originally divided, almost everyone now concedes that the unit was the social group. In short, it is now the orthodox view that there never has been a time when men either could or did live independently of their fellows, [1] or when each individual either could or did live by his own unaided efforts. In fact, there is something innate in every normal human being which compels him

  1. Berolzheimer, The World's Legal Philosophies (1912) 216.