Nature and Meaning of Law.pdf

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DATE DOWNLOADED: Tue Aug 8 11:37:06 2023 SOURCE: Content Downloaded from HeinOnline Citations: Please note: citations are provided as a general guideline. Users should consult their preferred citation format's style manual for proper citation formatting. Bluebook 21st ed. Frederick Pollock, Nature and Meaning of Law , 10 L. Q. REV. 228 (1894). ALWD 7th ed. Frederick Pollock, Nature and Meaning of Law , 10 L. Q. Rev. 228 (1894). APA 7th ed. Pollock, F. (1894). Nature and meaning of law Law Quarterly Review 10(3), 228-239. Chicago 17th ed. Frederick Pollock, "Nature and Meaning of Law ," Law Quarterly Review 10, no. 3 (1894): 228-239 McGill Guide 9th ed. Frederick Pollock, "Nature and Meaning of Law " (1894) 10:3 L Q Rev 228. AGLC 4th ed. Frederick Pollock, 'Nature and Meaning of Law ' (1894) 10(3) Law Quarterly Review 228 MLA 9th ed. Pollock, Frederick. "Nature and Meaning of Law." Law Quarterly Review , vol. 10, no. 3, 1894, pp. 228-239. HeinOnline. OSCOLA 4th ed. Frederick Pollock, 'Nature and Meaning of Law ' (1894) 10 L Q Rev 228 Please note: citations are provided as a general guideline. Users should consult their preferred citation format's style manual for proper citation formatting. -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at https://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your license, please use: Copyright Information  THE NATURE AND MEANING OF LAW ' Difficulty ofthemost general WUTE 'be find in all human sciences that those ideas which seem to most simple are really the most difficult to grasp with ideasin all certainty and express with accuracy. The clearest witness to this soicn, fact is borne by the oldest of the sciences, Geometry. No difficulty whatever is found in defining a parabola, or a circle, or a triangle. When we come to a straight line, still more wheu we speak of a line in general. we feel that it is not so easy to be satisfied. And if it occurs to us to ask the geonseter what is the relation of his 'length without breadth' to the sensible phenomena of space, matter, and motion, we shall find ourselves on the verge of problems which are still too deep for all the resources of mathe- matics and metaphysics together. A philologist will be ready enough with his answer if we question him on the Greek -or the Slavonic verb. If we ask him what is a verb in general we may have to wait a little, and if we ask him to account for language itself we shall find ourselves again in a region of doubt and con- tention. It is not surprising, then, that the student approaching the science of law should find the formal definiteness of its ideas to vary inversely with their generality. No tolerably prepared candidate in an English or American law school will hesitate to define an estate in fee simple: on the other hand, the greater have been a lawyer's opportunities of knowledge, and the more time he has given to the study of legal principles, the greater will be hi's hesitation before the apparently simple question, What is Law? No corn- In fact, a complete answer to this question is not possible unless plete -and until.we have a complete theory of the nature and functions theory of law of human society. Yet we cannot afford to wait for such a theory, wlthout complete. for we are born into a social and political world from which we theory of cannot escape. Rule, custom, and law beset us on every side. society: Even if at this or that point we go about to defy them we cannot but ap- proximate ignore them; and the possible points of revolt, as reflection will generali- show, are really but few even in such kinds of life as are called zation needful, lawless. We have to abide the law whether we will or no; and to abide it, on the whole, in obedience rather than in resistance. The French Revolution seemed, and in many respects was, a funda- mental catastrophe: but it appeared, as things resumed a settled The introductory chapter of a work in preparation, founded on lectures delivered at Oxford.  The Nature and Meaning of Lau). 229 frame, that a large proportion of French institutions, traditions of policy, and positive laws too, had survived the Revolution. If then we are to obey with understanding, we must endeavour to understand so much as is needful for the purpose in hand, relying on the most approximately certain data that we can command. Man cannot live alone; the individual cannot do without the society family; and although family groups can be conceived as hide- isti pendent and self-sufficing, the family has from very early times out rules been in like manner part of a larger society, whether itsociety be a clan, can of a bound up. No i tribe, or a nation, with which it is continue without some uniform practice and habits of life. Indi- vidual impulse has to be subordinated to this need; and this subordination is a never ending process. Hence there must be rule and constraint; and not the less so because, in one sense, the aims of the society and of the individual coincide. On the whole and in the long run the interest of the individual is that society should exist. This is obviously true; but it is far from obviously true, indeed it seems not to be true, that his interest coincides always or everywhere with the interest of the society whereof he is a member, either as it really is or as it seems to be to those who conduct its affairs. Society comes into existence because its members could not live without it; but in continuing to exist it forthwith aims at an ideal, and that ideal is for the society and not for the individual member. The need for internal order is as constant as the need for external defence. No society can be stable in which either of these requirements substantially fails to be pro- vided for; and internal order means a great deal more than the protection of individuals against wilful revolt or wanton lawless- ness. Express and definite forms of association are required for the fulfilment of these purposes and the maintenance of a perpetual succession from one generation of men living in society to another. When established, these forms embody and preserve the individual character of every self-maintaining community. In the sum of such forms, as expressing and determining in each case the con- ditions of collective life and well-being, we have the State. We say well-being with reference to the ideal and not with referenoe to the actual success attained. Some States have secured the Well- being of their members much better than others, and the legs successful ones may be called relatively bad, or h some cases even very bad. Still an inferior social organization, though measurably worse than other and better forms, is immeasurably better than none. Further, if the State is to be permanent, we need more than theThe eStte existence of some kind of social rule. We conceive many rples, rules VOL. X. S  230 The Law Quarterly Review. [No. XXXTX. binding the common and fundamental ones in matters of right and wrong, oncitizens for example, to be binding on men simply as rational and social as such. beings, without regard to any positive institutions. But this will not suffice for the State, which is an association for living together in definite ways. There must be rules binding the members of the State not merely as human or rational, but as members of that State; and this is not affected by the fact that to some extent, perhaps to a large extent, such rules include the matter of universal or more highly general duties which are of antecedent and inde- pendent force. Wherever any considerable degree of civilization has been reached, we find means appointed by public authority for declaring, administering, and enforcing rules of this kind. In dealing with these rules, as with all others, both the persons administering them and those whose interests are affected have to attend not only to the rules or principles themselves, but to the conditions under which they become applicable, the mode in which Such rules they are applied, and the consequences of their application. The make up law. sum of such rules as existing in a given commonwealth, under whatever particular'forms, is what in common speech we under- stand by law; the publicly appointed or recognized bodies which administer such rules are courts of justice. By justice, in this usage. we mean not only the doing of right, or the duty thereof, as between man and man, but the purpose and endeavour of the State to cause righb to be done. Law not In modern times and in civilized countries we find the work of necessa- rily pro- courts of justice carried on by permanent officers; it is a special fessional kind of work, and the knowledge of law is a special kind of know- or ledge which can be acquired only by a professional training. Law has developed an art and a science of its own just as much as medicine. These conditions are now so usual that we might easily think them necessary; but they axe not so. Law and legal justice can existwithout a profession of judges or advocates; and where a legal profession exists, its divisions, and the relation of its branches to one another, have varied and still vary to a wide extent in highly civilized countries and down to our own times. Thus at Rome under the later Republic and the early Empire there was a class of highly skilled advocates, and under the Empire there was some- thing like a Ministry of Justice, but for a long time there was nothing answering to the ordinary 'judicial establishments of modern States. In England it does not appear that before the Norman Conquest there was any distinct legal profession at all, and in the succeeding Anglo-Norman period there were professional or at any rate skilled judges, but no professional advocates. In Iceland, about the same time, there was a highly technical system July, Z894.] The Nature and, Meaning of Law. 231 of law 1; courts were regularly held, and their constitution was the subject of minute rules; and there were generally two or three persons to be found who bad the reputation of being more skilled in law than their neighbours. Yet with all this there were neither judges nor counsellors in our modern sense. It is the adminis- tration of justice with some sort of regularity that marks the existence of law, not the completeness of the rules administered, nor any official character of those who administer them. There has been much discussion about the relation of custom to law. Custom, except in distinctly technical applications which custom:. ire really part of a developed legal system, seems to have no primary meaning beyond that of a rule or habit of action which is in fact used or observed (we may perhaps add, consciously used or observed) by some body or class of persons, or even by one person. It was the ' custom' of Hamlet's father to sleep in his orchard of the afternoon. In the Morte D'Arthur we constantly read of a 'custom" peculiar to t.his or that knight; for example Sir Dinadan had such a custom that he loved every good knight, and Sir Galahalt ' the hault prince' had a custom that he would eat no fish. And it is still correct, though less common than it was, to use the word in this manner. Often custom i the usage of some class or body less extensive than the State, such as the inhabitants of a city, the members of a trade, But it.can have a scope much wider than the limits of the State. The Church, which of course is not bounded by any State, and in the medieval view could not be, had her own customs and refused to let any secular power pass judgment on their validity. No constant relation to law or judicial authority can be predicated of custom. It may or may not be treated as part of the law. Much law purports to be founded upon custom, and much custom has certainly become law. The extent to which this has happened, and the manner in which it has been brought about, are matters of history in the legal system which each particular State has developed or adopted. We shall have to return to this when we consider the sources and forms of the law of England. So far the word 'custom' may be said to suggest the notion of potential or incipient legality. But on the other hand much custom is quite outside the usual sphere of law. Still the word has a certain ethical force tending to confine its use to those habits which the persons practising them recognize as in some way binding. Such are, to take a conspicuous example, customs of tribes and" castes which have There is quite enough to Support this statement apart from the elaborate plead- ings set out in the present text of the Njils Saga, which are believed to be of ptuct later introduction.  232 The Law Quarterly Review. [No. XXXTX. a religious character. 'Customary' carries more weight, though it may be only a little more, than ' usual I.' In the weakest case we mean by custom a little more than habit, for one may have habits of an automatic or mechanical kind of which one is barely or not at all conscious. It is hardly needful to add that a great deal of law, at any rate of modern law, has not any visible relation to pre-existing custom. 'Practice;' in the modern usage of the legal profession, signifies a particular kind of custom, namely that by which a court of justice regulates the course of its own proceedings. Moral naturallaw, We have used the word Law, so far, without any epithet, the law or lawsense in which we have used it being that which is commonly of nature. understood where nothing in the context requires ia different one. But the word has other usages more or less analogous to the principal meaning. Moral law is the sum of the rules of conduct which we conceive to be binding on human beings, generally or with regard to the circumstances of a particular society, so far forth as they are capable of discerning between right and wrong; but it may also mean the rules to which the members df a parti- cular society are actually expected, by the feelings and opinions prevalent in that society, to conform. Sometimes the distinction between actual and ideal rules of conduct is marked by speaking of moral rules, or of 'positive morality,' when we mean the rules accepted'in fact at given times and places, but of 'natural law' or 'law of nature' when we mean such rules as are universally accepted, or in our opinion ought so to be. Positive morality may be, and in many times and places is known to have been or still to be, contrary to universal morality or natural law. The supposed duty of a Hindu widow to burn herself with her husband's corpse is a striking example. Law of The rules observed, or generally expected so to be, by the nationa governments of civilized independent States in their dealings with one another and with one another's subjects are called the Law of Nations, or International Law. We are not called upon to consider here whether they are more nearly analogous to the law administered by courts of justice within a State, or to purely moral rules, or to those customs and observances in an imperfectly organized society which have not fully acquired the character of law, but are on the way to become law. This last mentioned opinion is my own; but I do not deem this a ft place for dwelling upon it. The whole matter is much disputed, and cannot be ' See Littr6, s.v. Coufume. Perhaps this tendency is more marked in French than in English. July, 1894.] The Nature and Meaning of Law. 23.S effectually discussed without assuming a good deal both of law and of the history of law to be known. Bodies of rule or custom existing in a limited section of a coin- Extended munity, and enforced by the opinion of that section within itself use' lawof 'for are often called laws: as when we speak of the laws of honour, particular or the laws of etiquette. It is to be remembered that in medieval ',,"l " Europe the 'law of arms' was for the persons affected by it a tri, and perfect law, having its courts, judges, and compulsory sentences. In modern times this use of the word seems to be avowedly metaphorical. Sometimes we hear of 'the code of honour,' which cannot be justified even as a metaphorical licence: a code, as we shall see later, being essentially a collection of articulate and definite rules or statements, and generally purporting to proceed from a definite authority. In English we use the word Law in a concrete sense to mean'Law'in the con- any particular rule, having the nature of law in the abstract sense, crete as which is expressly prescribed by the supreme power in the State, an vuackd or by some person or body having authority for that purposu though not generally supreme. A law, in this sense, is the exercise of a creative or at least formative authority and dis- cretion; the power that made it might conceivably have chosen to make it otherwise. The rule is such because a definite authority has made it so; it lay in the lawgiver's hand what it should be. There is an element, at least, of origination. Applicatioi of existing principles, however carefully worked out, ahd however important it may be in its results, is not within the meaning. Therefore, although declarations of legal principles, or interpre- tations of express laws, by courts of justice may well be said to form part of the law, and go to be law in the abstract sense, we cannot say of any such declaration or interpretation that it is 'a law ' When we are using the term in this concrete sense it is not only correct enough for ordinary political purposes, but correct without qualification, to say that ' Laws are general rules made by the State for its subjects 2.' The plural 'laws' is ambi- guous, and the context must determine in which sense it is used. It may cover both meanings, as when we speak of 'the laws of England' as including the whole body of English law, both what has been enacted by Parliament and what is derived from other sources. It is quite possible for the administration and develop - ment of 'law' and the production of concrete 'laws' to be in the I When some part of the general law has been designated by the context, it may afterwards be referrd to as 'a law,' i. e. a portion of lawi, Without reference to, its being an express enactment or not, as if we say, 'The law of slander by spuken" words is not a reasonable law.' , Raleigh, Elementary Politics, ch. v, init.  234 Te Law Quarterly R[eview. (No. XXXIX. same hands to a greater or less extent. Thus a decision of an English Superior Court is law unless and. until reversed or overruled by a higher Court; a rule of procedure made by the Judges under the powers conferred on them by the Judicature Acts is a law, though English-speaking lawyers do not commonly call it so, because it is more convenient to use the appropriate term ' Rule of Court.' In like manner an Aci of the Imperial Parliament, or an Order in Council, or an Ordinance made by the Legislature of a Crown Colony, is a law, though almost always called by the more specific -name. 'Laws'in This concrete usage is extended to all sorts of express extended rules made and recorded for the guidance of human action in sense of particular all sorts of matters both "serious and otherwise. Clubs and rules in societies have their laws; there are laws of cricket and laws of non- judicial whist. As might be expected, the distinction between the con- matters crete and the abstract sense is not ilways exactly observed in popular usage. One might say without impropriety: ' It is a law of journalism that an editor shall not disclose the authorship of an unsigned article without the writer's consent,' although 'rule' or ' custom' would be more accurate. English It is proper to note that the ambiguity of the word law seems 'law'in- pecuiar to English among the chief Western laguages. Law in eludes 'ius' and the abstract, the sum of rules of justice administered in a State 'lex.' and by its authority, is iwa in Latin, droil in French, diritto in Italian, Bec t in German. For the express rule laid down by an originating authority these languages have respectively the quite distinct words lex, loi 1, legge (the French and Italian words being modern forms of the Latin one), Geeiz. Thus an Englishman tends, consciously or not, to regard enacted law as the typical form; it is hard for him not to identify laws (as the plural of 'a law') with Law. Frenchmen and Germans, on the other hand, are more likely to regard loi or Ges-etz as merely a particular form of droit or Beclt, and not necessarily the most important form. 'Ius.' &c. On the other hand, these Latin and other names for law in the include a b s t ra ct 'law' and (iu*, droit, dirilto,.echt) correspond also to our distinct ,right.' English word right in its substantive use. This leads to verbal ambiguities, and gives occasion for confusions of thought, which are perhaps not less inconvenient than any consequences of law having to stand for both in.R and lex in our language. In some French phrases droit slid hoi run into one another, e. g. ' homine de loi.' IDroit naturel' and ' loi naturelle,' Idroit des gens" and ' loi des nations,' are con- vertible terms. The like laxity as between lar, leges, and ius is common in medieval Latin. In German, so far as I know, Beht and Gesetz are never interchangeable. Gesetz means a rule which is in fact, not only by right or wrong philosophic con- struction, 'set' by a definite authority, and even in figurative uses this primary meaning is not lost sight of. July, 1894.J The Natui-e and Meaning of Law. 2335 From the concrete use of the word lasr we have by extensioij thp Extended in term 'law' or 'laws of nature' in the language of natural philo-,u" scientific sophy, or science as it is now commonly called, though in truth termino- it is but one kind of science. Here the has a wholly word mentioned. It "I" we have hitherto distinct meaning from those signifies any verified uniformity of phenomena which is capable of being expressed in a definite statement, and by 'the laws of nature' we mean the sum of such uniformities known or knowable, in other words the uniformity of nature as a whole. Doubtless this language originally implied a belief that uniformity in nature, whether general or particular, is due to will and design in some way analogous to those of human princes and rulers; but it has long ceased to have any such implication as a matter of necessity or even of common understanding. No one thinks of Grimm's Law, or other 'laws of phonetics,' as anything but compendious expressions of more or less generally observed facts in human speech, or in particular groups of languages. Further, this meaning has been carried bick into the region of moral and political science, as when we speak of the laws of political economy or history. We may even say, if we please, though it would hardly be elegant, that the laws of history are exemplified in the history of law, thus using the word in the primary and the derivative sense in the same sentence. Here the term has quite lost its ethical associations; in fact those who insist most strongly upon the ethical element of law in its primary sense are perhaps those who are most likely to object to this usage. Such a phrase as laws of political economy, laws of history, laws of statistics, has no dependence whatever on any conception of a trihbunal or a law- giver, or of doing justice. It signifies only the normal results, as collected by observation or deduced by reasoning, of conditions, and (where human action is concerned) habits and motives, assumed to exist and to have effect. Whether we like those results or not; whether and to what extent the conditions are within the control of deliberate human action; and in what direction, if at all, we shall endeavour to modify the conditions or counteract the results, may be matters deserving to be most carefully weighed: but they belong to a different order of considerations. Physicists have studied what are called the laws of electri.ity till it has become possible to light our houses with electric lamps. The occupier of a house so lighted can turn those laws to account whenever he pleases, and for so long as he pleases, provided that everything is in order, and in that sense he can control them. But his reasons for wanting or not wanting to light up a particular room at this or that hour have nothing to do with electrical science.  The Law Quarterly Beview. [No. XXXIX The fact that a stone lies on the ground is an example of the 'law of gravity.' My desire to pick it up, followed by the act of picking it up, does not affect the 'law,' in other words that particular aspect of the uniformity of nature, in any way: it only varies the example. A ,well-to-do man going abroad lets his house to a friend at a nominal rent: the 'laws of political economy' have nothing to say to this: the transaction is not such an one as economists contemplate. In short, the 'laws of nature' are, for the lawyer and moralist, matters not of law at all in their sense, but of pure fact. And this applies equally to the so-called laws of human action in so far as human action is a subject of scientific observation. law in its We may now leave aside the secondary and derivative meanings compul- of 'law' or 'laws,' and attend only to such rules as are recognized Wry aspect: and administered in a commonwealth, and under its authority, as sanctions, binding on its members. Thus far we have said nothing aboiit the enforcement of the rules. In a modern civilized State it is well understood that, if resistance is made, the power of the State, or such part thereof as may be needful for the purpose, will be put forth to overcome it. Only the commonest knowledge of affairs and events, as they occur day by day, is required to assure us that the commission of acts forbidden by law, or disobedience to the orders of a court of justice, is likely to have unpleasant conse- quences in various degrees and kinds, according to the nature of the case and the system of law and government existing at the time and place, and that much work and thought are spent on behalf of the State in making that likelihood approach as near as may be to certainty. Common knowledge no less informs us, it is true, that the public servants of even the most highly organized State do not attain constant or uniform success in this endeavour. Some offenders escape and some laws are disregarded. But the State is, on the whole, prepared to compel its members to obey the law, and does, on the whole, exercise an effective compulsion; that is to say, it will and can make compliance with the law preferable to disobedience for most men on most occasions, by the application of fitting means through its officers appointed for that purpose. If this much cannot be affirmed in a given society at a given time (say a minor South American republic when a revolu- tion is at its height), that society is in a condition of political anarchy for the time being, or at least the functions of the State are suspended. In fact we find the will and power to enforce the law by public authority to be stronger in proportion as the com- monwealth is more settled, more prosperous, and more refined. 'The magistrate beareth not the sword in vain.' Hence it is July, 1894.] 1Te Nature and Meaning of Law. 237 natural for men living in a civilized State to regard this public will and power of causing the law to be observed as belonging to the very essence of law. The appointed consequences of dis- obedience, the 8ancdiom of law as they are commonly called, seem to be not only a normal element of civilized law, but a necessary constituent. Law without a sanction, and that sanction in the hands of the State, can, in this way of thinking, easily appear like a contradiction in terms. Any such view, however, will be found hard to reconcile with Enforce- the witness of history. For we find, if we look away from suchlawbyth, elaborated systems as those of the later Roman empire and of state is modern Western governments, that not only law, but law with relatively a good deal of formality, has existed before the State had any adequate means of compelling its observance, and indeed before there was any regular process of enforcement at all. We have already vouched the Icelandic Sagas to show that law can do without a legal profession: we.may vouch them to show no less clearly that it can do without a formal sanction. More than this, we ind preserved among the antiquities of legal systems, and notably in archaic forms and solemnities, considerable traces of a time when the jurisdiction of courts arose only from the volun- tary submission of the parties: and this not only as between subject and subject, but as between a subject and the State'. We need not doubt that effectual motives for submission could be brought, sooner or later, to bear on unwilling subjects. The man who did not submit himself to law could not claim the benefit of the. law; there was no reason why every man's hand should not be against him. Outlawry, now all but obsolete even in name, was the formal expression of the archaic social rules by which law was gradually made supreme. Again, archaic procedure shows us a period in which a suitor may obtain judgment, but must execute the judgment for himself. The most the State will do for him is to come eventually to his aid if the adversary or the adversary's friends continue to deny him right. In the meantime private force holds the ground, but the winning suitor's private force is lawful and the loser's is unlawful. At this stage the State can hardly be said to provide any sanction of its own; it only gives moral support and coherence to panctions already existing in a vague form. Conversely, one of the first signs of the reviving power and solidity of the State in the early Middle Ages was the jealous restriction of private force, even when the claimant who sought his ends by might had full right on his 'The history of English criminal procedure affords at loast one striking illUstra- tion : but I purposely avoid a digression.  T e Law Quarterly Review. (No. XXXIX. side. lniugte and 8ine irdivio became convertible terms. It is wrong to do oneself right without judgment and public authority. Informal In one sense we may well enough say that there is no law sanctions without a sanction. For a rule of law must at least be a rule common to law and conceived as binding; and a rule is not binding when any one to morality, whom it applies is freeto observe it or not as he thinks fit. To conceive of any part of human conduct as subject to law is to conceive that the actor's freedom has bounds which he oversteps at his peril. One or more courses of action may be right or allow- able; at least one must be wrong. Now what is felt to be wrong is felt to tall for redress. This may be direct or indirect, swift or tardy; but in the mere sense and apprehension of redress to come, however remote and improbable it may seem, and however uncertain the manner of it may be, we have already s.ome kind of sanction, and not the less a sanction because its effect may be precarious. All this applies to moral no less than to legal rules. Taken thus largely, there are sanctions of infinite degrees from obscure moni- tions of conscience to general and open reprobation, or even acts of violence prompted by the indignation of one's fellow-men 1; and, if we pass from the moral and social to the legal sphere, from some small expense or disadvantage in the conduct of a lawsuit, or some small penalty for delay in performing a public duty, to-the severest penalties of criminal jurisdiction. But in a modern State the sanction of law means both for lawful men and for evil-doers something much more definite. It means nothing less than the constant willingness and readiness of the State, in the persons of its magistrates and officers, to use its power in causing justice to be done; and this in respect not only of the main duties enforceable by law, but of an immense nuinber of incidental and at first sight arbitrary rules and conditions. Law and In short the conception of law, many of its ideas, and much even the 'f1 of the of its form, are prior in history to the official intervention of the State.' State, save in the last resort, to maintain law. True it is that in modem States law tends more and more to become identified with the will of the State as expressed by the authorities intrusted with the direction of the common power. But to regard law as merely that which the State wills or commands is eminently the mistake (of a layman, as one of the greatest modern jurists has hinted 2 ;"and, we may add, of a layman who has not considered the difference between modern and archaic societies, or the political and social foundations of law. For most practical purposes the citizens of I Such acts may or may not be justifiable, and the rule enforced may or may not be itself right from the point of view of universal morality. This does not concern us here. Ihering, Geist des r5mischen Rechtes, i. 37 (ed. z878). July, 1894.) The Nature and Meaning of Law. 239 a State, and to a considerable extent, though not altogether, lawyers and magistrates also, have not to concern themselves with thinking what those foundations are. Their business is to learn and know, so far as needful for their affairs, what rules the State aoes under- take to enforce and adninister, whatever the real or professed reasons for those rules may be. Moreover" criminal law, which is eminently imperative, is that branch of law which appeals most to the popular imagination, and fills the largest place in popular notions of legal justice. Again the unexampled activity of the legislative power in modern States has largely increased the sphere of express enactment. All these causes have made it possible and even plausible to regard law not only as being embodied in the commands of a political sovereign, but as consisting of such com- mands and being nothing else. They have not altered the funda- mental facts of human society; and the merely imperative theory of legal institutions remains as one-sided and unphilosophical as it was before. Law is enforced by the State because it is law; it is not law merely because the State enforces it. But the further pursuit of this subject seems to belong to the philosophy of Politics rather than of Law. FREDERICK POLLOCK.