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THE HAMLYN LECTURES

FOURTH SERIES

ENGLISH LAW AND THEMORAL LAW

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ENGLISH LAW ANDTHE MORAL LAW

BY

A. L. GOODHART,K.B.E., Q.C., F.B.A.,

Master of University College, Oxford

Published under the auspices ofTHE HAMLYN TRUST

LONDON

STEVENS & SONS LIMITED1953

First published in 1953 byStevens & Sons Limitedof 119 & 120 Chancery LaneLondon - Law Publishersand printed in Great Britainby The Eastern Press Ltd.of London and Heading

CONTENTS

The Hamlyn Trust page vii

P r e f a c e . . . . . . . . i x

1. T H E NATURE OF L A W AND OF MORALS . . 3

2. CONSTITUTIONAL L A W , ADMINISTRATIVE L A W

AND INTERNATIONAL L A W . . . . 41

3. CRIMINAL L A W , T O R T S , AND CONTRACT . . 75

4. T H E OTHER BRANCHES OF THE CIVIL L A W . 113

HAMLYN LECTURERS

1949 The Right Hon. Sir Alfred Denning

1950 Richard O'Sullivan, K.C.

1951 F. H. Lawson, D.C.L.

1952 A. L. Goodhart, K.B.E., Q.C, F.B.A.

1953 Sir Carleton Kemp Allen, Q.C, F.B.A.

VI

THE HAMLYN TRUST

THE Hamlyn Trust came into existence under the willof the late Miss Emma Warburton Hamlyn, ofTorquay, who died in 1941 aged 80. She came ofan old and well-known Devon family. Her father,William Bussell Hamlyn, practised in Torquay as asolicitor for many years. She was a woman ofdominant character, intelligent and cultured, wellversed in literature, music, and art, and a lover ofher country. She inherited a taste for law, andstudied the subject. She travelled frequently on theContinent and about the Mediterranean and gatheredimpressions of comparative jurisprudence andethnology.

Miss Hamlyn bequeathed the residue of her estatein terms which were thought vague. The matter wastaken to the Chancery Division of the High Court,which on November 29, 1948, approved a Scheme forthe administration of the Trust. Paragraph 3 of theScheme is as follows: —

" The object of this charity is the furtheranceby lectures or otherwise among the CommonPeople of the United Kingdom of Great Britainand Northern Ireland of the knowledge of theComparative Jurisprudence and the Ethnology ofthe Chief European Countries, including theUnited Kingdom, and the circumstances of thegrowth of such Jurisprudence to the intent thatthe Common People of the United Kingdom mayrealise the privileges which in law and custom

vii

viii The Hamlyn Trust

they enjoy in comparison with other EuropeanPeoples and realising and appreciating suchprivileges may recognise the responsibilities andobligations attaching to them."

The Trustees under the Scheme number nine, viz.:

/ \ TIT o T^ n 1 Executors of(a) Mr. S. K. COLEEIDGE, , , . „ , ,

TIT T T> w > M i s s Hamlyn'sMr. J. R. WARBURTON I _-....

(b) Representatives of the Universities ofLondon, Wales, Leeds, Glasgow andBelfast, viz.:

Professor G. W. KEETON,Professor D. J. LI. DAVIES,Professor B. A. WOKTLEY,

Glasgow (vacant),Professor E. ASHBY.

(c) The Principal of the University College ofthe South-West, ex officio (vacant).

(d) Dr. John MURRAY (co-opted).The Trustees decided to organise courses of lectures

of high interest and quality by persons of eminenceunder the auspices of co-operating Universities witha view to the lectures being made available in bookform to a wide public.

The fourth series of four lectures was delivered byDr. Goodhart, in the University of Manchester, inNovember, 1952.

JOHN MURRAY,Chairman of the Trustees.

October, 1953.

PREFACE

SOME years ago when I called on a distinguishedOxford philosopher, I heard him say in a worriedvoice to one of his pupils, " I am not at all happyabout pleasure." When I delivered the HamlynLectures at the University of Manchester last Novem-ber I was not at all happy concerning the relationbetween sanction and law. In defining law as a ruleof human conduct which is recognised as beingobligatory I rejected the view that the sanction is anessential element in law. It did not seem to me thatit was possible to explain constitutional law, inter-national law, religious law, or moral law in terms ofa threatened evil. On the other hand, it is clear thatin almost every legal system there are some men whomay fail to recognise any obligation to obey the law,and who can be controlled only by the imposition of asanction. How then can law be defined solely interms of obligation as this would seem to leave outthis small but not unimportant group ? The answer,which I am suggesting in these lectures, is that inthose instances the recognition which we are talkingabout is the recognition on the part of the judges thatthe rule is obligatory. The sanction is applied becausethey recognise that the rule is obligatory: the rule isnot obligatory because there is a sanction. If this werenot true then it would be impossible to distinguishbetween law and arbitrary command. After I hadreached this conclusion Professor Hart, my successor

ixHX.G. 1 (2)

x Preface

as Professor of Jurisprudence at Oxford, called myattention to Professor Axel Hagerstrom's Inquiriesinto the Nature of Law and Morals, recently translatedby Professor C. D. Broad, which supports the views Ihave expressed here. He emphasises (p. 210) thatthere is a fundamental difference " between the factthat an action is commanded and its being a duty."This duty cannot be explained in terms of a sanction.

Having reached the conclusion that law depends onthe recognition of an obligation it has been possiblefor me to suggest that the moral law has played amore important role in relation to State law thanmany legal philosophers have been prepared to admit.In these lectures I have attempted to show that thereis not a single branch of English law which does not,to a considerable degree, find both its origin and itsforce in the moral convictions of the English people.

The delay in finally preparing my lectures for thepress has given me the welcome opportunity ofexpressing to the University of Manchester, andespecially to its faculty of law, my gratitude for thecordial way in which I was received by them. I alsowish to thank Professor Hart and Mr. Peter Strawson,both Fellows of my College, for their valuablecriticisms. I hasten to add that they cannot be heldresponsible for any of the views which I have expressedin these lectures.

A. L. GOODHART.September, 1953.

THE NATURE OF LAWAND OF MORALS

1

THE NATURE OF LAW AND OF MORALS

THE purpose of the Hamlyn Lectures is to bring tothe attention of the people of Great Britain andNorthern Ireland the privileges which they enjoyunder the law, so that they may recognise theresponsibilities and obligations which are attached tothese privileges. The recognition by the people ofthis island that the law under which they live is oneof their greatest heritages has, as I hope to show inthese lectures, always been one of the foundations onwhich the strength of the State is based, but neverhas this recognition been more important than at thepresent time when both the State and the law areunder attack by those who wish to destroy our existingcivilisation. The Roman citizen's proudest boast wasthat he lived under the Roman law, and today themen and women living in these islands can makethe same claim for the common law. I think that itis true to say that the basic conflict between theWestern idea of life and that which has been dominantin the totalitarian States is a juridical one. Thereare, of course, radical differences in their conceptionsconcerning religion, systems of government and theeconomic structure, but in none of them is the differ-ence more fundamental than in the interpretation oflaw. It is not true to say that the totalitarian States

3

4 The Nature of Law and of Morals

have not got systems of law, but their law is regardedessentially as an expression of power by those incontrol: it safeguards "arrangements agreeable andadvantageous to the dominant [proletarian] class." l

In England no such doctrine has ever been accepted.It is refuted in the most solemn Act of State underthe British constitution. In administering the Corona-tion Oath the Archbishop of Canterbury asks theQueen whether she will solemnly promise and swear togovern the Peoples of the United Kingdom of GreatBritain and Northern Ireland and of the Empire" according to their respective laws and customs," and" Will you to your power cause Law and Justice, inMercy, to be executed in all your judgments ? " Tothis the Queen replies: " I solemnly promise so to do."This ancient oath expresses in dramatic form the basicprinciple that those who rule in Great Britain arebound by the laws and customs of the country, andthat these laws and customs are not an expression ofsovereign will. It is because England has been anation founded on law for a longer period than anyother State in the history of the world, and becauseit is still pre-eminent in this respect that it is soimportant for us to realise the part that law plays inthe life of this country. Law and freedom are hereso closely bound together that we cannot think of theone without the other; it is for this reason that theEnglish polity has for centuries been regarded as a

1 S. A. Golunskii and M. S. Strogovich, " Theory of the Stateand Law " in Soviet Legal Philosophy, Harvard UniversityPress, 1951, at p. 370.

The Nature of Law and of Morals 5

model by all those who seek liberty throughout theworld.2

I am not suggesting that law is identical withfreedom or justice. Law is merely a piece ofmachinery and can be used either for or againstliberty. Law is not necessarily either reasonable ormoral. When St. Thomas Aquinas denned law as " anordinance of reason made for the common good by thepublic personage who has charge of the community " 3

he was, I believe, speaking of an ideal law, for hemust have recognised that there were many legalprovisions which could not be regarded as necessarilyreasonable. Law ought to be based on reason, itought to protect liberty, and it ought to be in accordwith the moral law, but these ideals are not a necessarypart of our conception of law.4

On the other hand, it is, I believe, equally wrongto suggest that law is necessarily an instrument usedby those in power to enforce their will on those who

2 It is hardly necessary to point out that the closest bondbetween Great Britain and the United States is found in thecommon law. The American colonists in 1775 claimed thatGeorge III and his Parliament were denying to them thecommon law rights to which they were entitled.

3 Summa Theologica, la-2ae. XC. 4.4 Professor Eheinstein in his article " The Eelation of Morals

to Law " (1952) Journal of Public Law, Emory University,Georgia, 287-300, has said (p. 292): "Among such efforts todefine law as containing essentially some ethical value, twogroups may be distinguished, viz.: first, definitions containingsome concrete ethical value, such as liberty (Kant, Stammler,recently also Bodenheimer) or reason (St. Thomas, ration-alists) ; and second, definitions containing some formal elementto be filled with varying ethical contents, such as the prole-tarian class interest (Communists), the interest of the nationalor racial community (National-Socialists), culture (Gurvitch),reciprocity (Malinowski), or ethical-imperative co-ordination(Timasheff).


are under their control. Plato in The Republic5

makes Thrasymachus, the Sophist philosopher, definelaw as " the interest of the strongest party." Morethan two thousand years later the Soviet Decree ofDecember 12, 1919,6 denned law as " a set of rulesfor social relationships, which corresponds to theinterests of the dominant class and is safeguarded bythe organised force of that class." The Russian legalphilosopher Pashukanis therefore argued that withthe final establishment of the proletarian system alllaw would disappear. He said 7: " The dying out ofthe categories of bourgeois law will in these conditionssignify the dying out of law in general: that isto say, the gradual disappearance of the juridicelement in human relations." Unfortunately forPashukanis, who himself disappeared into theunknown in 1938, this view has been rejected by themore recent Soviet rulers who have found that it isimpossible for a State to function without a systemof law. In a famous address entitled " FundamentalTasks of Soviet Law," which heralded the destructionof Pashukanis, Mr. A. Y. Vyshinsky said8:

" In speaking of the impossibility of constructinga theory of law, these persons [Pashukanis andStucka] were driven to assert that it was impossibleto construct even a system of Soviet socialist law.It is clear that—starting from these two basic

5 Chap. 3, I. 337.6 Cited by Professor John Hazard in introduction to Soviet

Legal Philosophy, p. xxiii.7 B. B. Pashukanis, " Theory of Law and Marxism," in Soviet

Legal Philosophy, p. 122.8 Soviet Legal Philosophy, p. 331.

The Nature of Law and of Morals 7

wrecker designs of theirs—they could furnish neithera theory nor a system of Soviet socialist law.Traitors and betrayers as they were, they were notmerely unable to provide a working out of thesemost important tasks confronting the science ofSoviet law—they did not even wish to do so. Thisgang of thieves, betrayers and traitors crept intocertain of our institutes and made a mockery of ourscience."

Mr. Vyshinsky was here expressing in stronger termsthan are usually used in philosophic discussions in thiscountry the view that law is essential in every State.This is undoubtedly true, but what is of equalimportance is the purpose of the law which is underconsideration. If this is directed to the achievementof freedom and justice then it can be described asbeneficent: if on the other hand it is used as a toolby an autocratic government then it assumes thecharacter of those who find in it an instrument bywhich they can control those under their absolutepower. The quality of the law therefore depends onthe purpose to which it is directed.

In these lectures I shall not ascribe unlimited virtueto the English law. From time to time certain pro-visions of that law have been directed to ends of whichwe today cannot approve, and there are undoubtedlyparts of the present law which are subject to criticism.It is, however, true to say that in England the majorpurposes of the law have been to achieve self-government, individual freedom, and justice betweenmen. We find this expressed in our phrase theCommon Law. It is a law which is common to all of


us, and which is based on our common will. The threemajor purposes which I have stated all contain a moralquality because without freedom a man is not capableof full development as a human being, and withoutjustice law is nothing more than a system of arbitraryrules. There is in England, therefore, a close bondbetween law and morals and it is impossible to under-stand the nature of English law unless we alsorecognise the various moral ideas which it represents.Before I attempt to deal with this essential linkbetween law and morals in English law it will benecessary for me to define what I mean by law, andwhat I mean by morals.

LAW IN GENERAL

I shall begin by saying some words about law ingeneral, because it is only if we understand what wemean by the nature of law in this sense that we canadequately discern the essential elements of ourEnglish law. In its most general sense the word lawcovers any uniformity of conduct, including even theconduct of inanimate things.9 Thus we talk of the lawof gravity to express the fact that an apple whendropped will fall to the ground. This uniformityapplies also to animate beings when we describe thephysical results which follow on their conduct.

Such a definition of law as a mere expression ofuniformity is obviously not adequate when we turn to

9 Sir William Blackstone in his Commentaries (1765), Introduc-tion, s. 2, said: " Law in its most general and comprehensivesense signifies a rule of action; and is applied indiscriminatelyto all kinds of action, whether animate or inanimate, rationalor irrational."

Law in General 9

law in social life. When we speak of religious law,moral law or State law we are not merely referring touniformity of conduct; we are concerned with ruleswhich are established for the purpose of achievinguniformity. Perhaps the distinction between the useof the word law in the physical and the social scienceshas been best denned by saying that in the physicalsciences we have a description of conduct, while in thesocial sciences we have a prescription for conduct. Ithink that it is correct to say that all legal philosophersare agreed that the word law should be used by themin the latter sense, but where they are in fundamentaldisagreement is in their conclusions concerning thenature of the prescription. It is obvious that ananswer to this question is of the greatest importancebecause if we accept the view that the essential elementin law is force then we shall regard law merely as anexpression of power, while if we regard the essentialelement of law as consent then we will place all ouremphasis on reason.10 I shall suggest that the answeris a far more complicated one than either of these, andthat the compulsive nature of law, which distinguishesit from all other rules, may owe its existence to manydifferent causes.

10 In his delightful article on " Language and the Law " (1945)61 Law Quarterly Review 384, 386, Professor G-lanvilleWilliams refers to " the vast and futile controversy concerningthe proper meaning of the word ' law.' " I doubt whether thecontroversy has been futile because it may help us to under-stand what are the essential elements in these rules whichgovern the relationships of mankind. The pursuit of anadequate definition has led to a classification and analysis ofthe different types of rules which is as essential in political asit is in legal philosophy.


FORCE THEORIES OF LAW

It is convenient to begin with the force " theory oflaw because this is the one which has probably beenthe most widely accepted one in the past, and is stillimportant today. It can be subdivided into thecommand theory and the sanction theory. These twotheories are quite distinct although they both are basedon physical force as an essential element in all law.

In England the command theory finds its source inThomas Hobbes,12 that frightened man who longed fora strong government in the tempestuous days of theseventeenth century, but it was given classic expres-sion by John Austin in his famous Lectures onJurisprudence.13 He denned law as 14 " a rule laiddown for the guidance of an intelligent being by anintelligent being having power over him." The keyto the science of jurisprudence, he said, is the wordcommand, because every law is a species of command.This command consists of the expression of a wishtogether with a sanction or evil which is attached to itin order to secure obedience. There can be no lawtherefore unless there is a specific person or group ofpersons who can express a wish, and who are preparedto enforce a sanction if the wish is disregarded.

11 In his great work Der Zweck im Recht, von Ihering said that" law is the policy of force," and that " law is the aggregateof the coercive norms operative in a State."

12 Hobbes denned law in Leviathan, Chap. 26, as: "And first itis manifest, that Law in generall, is not Counsell, butCommand; nor a Command of any man to any man; butonly of him, whose Command is addressed to one formerlyobliged to obey him."

13 These lectures were first published in 1861 after Austin'sdeath.

14 Lecture 1.

Force Theories of Law 11

You will realise that this command definition of lawis not a very attractive one. It assumes that in everylaw we must find a superior and an inferior, and italso assumes that the will of the superior is enforcedon the inferior by the threat of a sanction. It is truethat this law, like medicine, may be for the good ofthe individual who is bound by it, but at best it is anecessary evil. In Lecture IV Austin said,

" But the notion or idea of evil or imperfectionis involved in the connected notions of law, dutyand sanction. For, seeing that every law imposes arestraint, every law is an evil of itself: and, unlessit be the work of malignity, or proceed from con-summate folly, it also supposes an evil which it isdesigned to prevent or remedy. Law, like medicine,is a preventative or remedy of evil: and, if theworld were free from evil, the notion and the namewould be unknown."

It follows that as law is an evil of itself, it is onlynatural that anyone who is strong enough shouldattempt to avoid its effect. Force is therefore neces-sary to compel obedience, and, in the Austinian view,this may be said to be the foundation and inevitablebasis of all law. If a sovereign cannot enforce hiscommands he ceases to be sovereign, and his com-mands lose the character of law, but as long as he hasthe power to govern, then his commands, unlimitedand uncontrolled, are law. As Hobbes has said 15:" Clubs are trumps."

13 " I n matter of government when nothing else is turned up,clubs are trumps": 6 Works (ed. Molesworth, 1841) 122.


Austin and his most distinguished disciple SirThomas Holland 16 did not deny that moral considera-tions might in certain instances influence the superiorin determining the content of the law, and that moralconsiderations might help to persuade the inferior toobey it, but this, they held, was irrelevant in anyinterpretation of law itself: the stark fact remainedthat law was nothing more than an expression ofphysical force determining uniformity of conduct. Thegreat advantage of this definition, it was said, wasthat it drew such a clear and absolute line betweenlaw and morals. Thus Sir William Markby " arguedthat the great virtue of this definition was that" Austin by establishing the distinction between lawand morals . . . laid the foundation for a science oflaw."

The attraction of the command theory lies in thefact that it is a not inaccurate description of the typicalEnglish statute. A statute appears to be a commandby a superior, the Queen-in-Parliament, to inferiors,the Queen's subjects, which will be enforced by asanction if they fail to obey it. Even this is true onlyof penal law where there may be said to be a directcommand to the subject. It is difficult to find acommand and a sanction in ordinary civil law. Thusthere is no command addressed to a testator requiringhim to make a will in a particular form because he isfree to make a will or not as he chooses. Nor can hebe threatened with a sanction because he will be deadbefore the will can come into effect. If there is any

16 Elements of Jurisprudence, 1880, 13th ea. (1924).17 Elements o/ Law, 6th ed. (1905), § 12.


command here then it is one addressed to the judgedirecting him not to give legal effect to a will whichhas not been properly executed. In this sense, andonly in this sense, all State law may be regarded as acommand addressed to the judges. But the momentwe go beyond the ordinary civil law we can see thetotal inadequacy of this interpretation of law. Itleaves out the most important part of State law, i.e.,constitutional law. It is obvious that the corner-stoneof the English legal system is the obedience that ispaid to the Queen-in-Parliament, but this cannot havebeen commanded by anyone. The structure and theauthority of Parliament are based on a collection ofancient and modern rules which, taken together, con-stitute the constitution, but they are based onrecognition and not on a non-existent command.

In a simple unitary State such as Great Britain it ispossible to ignore the importance of constitutional lawbecause there is rarely a dispute concerning any of itsprovisions, and when such a dispute does arise it tendsto be regarded as a political rather than a legalproblem. But when we turn to the more complicatedsystems of government which exist in federal Statessuch as the United States, Australia or Canada thecommand definition becomes an impossible one. TheAmerican constitution, which is the most importantsingle legal document in the history of the world,clearly was not commanded by the Federal Conventionwhich drafted it, nor by the constituent States, nor bythe people of the United States. It was accepted asa valid instrument of government, and it continues toexist not by force, but by general recognition.


An interpretation of law which leaves out constitu-tional law seems to me to be clearly inadequate. Butthat is not the only body of rules excluded by thecommand theory. It also excludes all religious law,except that which each of us believes to be the trueone, because those who think that there is a particularDivinity may be in error. It is their belief that thereis a Divinity, and not His existence, which gives theserules their compulsive character. Similarly inter-national law, customary law, and moral law all falloutside the scope of this interpretation because no onehas commanded them. A definition which ignoreshistory,18 etymology,19 and ordinary common sensedoes not seem to be a particularly useful one.

In recent years this command interpretation of lawhas been rejected by most jurists, largely on theground that a specific commander can be found inhardly any legal systems, but it still has someadherents.20 In its place there has arisen the new18 The historical school of law, represented among others by Sir

Henry Maine in Ancient Law and by Pollock and Maitland inHistory of English Law, has always repudiated the commandinterpretation of law as it is clearly not applicable to earlylaw. The anthropologists, e.g., Malinowski in Crime andCustom in Savage Society, have also repudiated it. We shallsee that this criticism is also applicable to the sanction theory.

19 Professor B . C. Clark in his little-known, but valuable, bookPractical Jurisprudence (1883) pointed out (p. 90) that " theunconscious definitions of law furnished by those early namesfor it 'were a useful guide. ' That which is fitting, orderlyor regular (jus); that which is observed (tcitoth); that which isfrom everlasting (oew)—these are the earliest ideas of lawwhich we can find in the language of the Eomans, the Goths,and the Anglo-Saxons or early Engl i sh ." Not one of themincludes any element of command or sanction.

20 B . A. Eastwood and Q-. W. Keeton, Austinian Theories ofLaw and Sovereignty (1929). This is the most convincingmodern interpretation of the Austinian doctrine.


" Pure Theory of Law " which Professor Kelsen hasmade famous throughout the world.21 In place of theword command as the key to the science of juris-prudence this school substitutes the word sanction.We still find that force is the dominant element in lawalthough it has assumed a new, and much morecomplicated, guise. Every positive legal order isbased on a basic norm which " is nothing but thefundamental rule according to which the variousnorms of the order are to be created." 22 This basicnorm " is presupposed to be valid because without thispresupposition no human act could be interpreted as alegal, especially as a norm-creating act." 23 The sub-sidiary norms must all be " measures of coercion " 24

which provide for sanctions because " by this veryfact and only by this fact, that is, by this specificsocial technique is it distinguished from other socialorders." 25 The distinction between law, which is acoercive order, and voluntary obedience is " that oneprovides measures of coercion as sanctions whereas theother does not." 2i The subsidiary norm does not,however, depend for its validity on the efficacy of itssanction: " A norm is not valid because it isefficacious; it is valid if the order to which it belongsis, on the whole, efficacious." 27

21 I shall refer in particular to his General Theory of Law andState, 1949.

222321252627

P-P-P-P-P-P-

114.116.18.25.19.42.


Like the command theory of law the sanction theoryof law finds its attraction in the fact that it is a moreor less accurate description of ordinary civil law,i.e., the statutes enacted by the legislature and theprecedent-rules established by the courts are subsidiarynorms under the basic norm. In most of them we canfind a sanction although sometimes this requires con-siderable logical ingenuity. But when we turn toconstitutional law, to customary or primitive law, tointernational law, or to religious law the sanctiontheory is as inadequate as the command theory. Itdoes not attempt to explain the existence of the basicnorm on which the whole legal system is founded:this we must presuppose because otherwise " no humanact would be interpreted as legal." But without anadequate foundation no legal system can stand, just asa house without a foundation will collapse, so that atheory of law which merely takes this foundation forgranted can be of little value.

The lack of reality in Kelsen's theory seems to meto be illustrated by his statement that a legal order tobe valid must on the whole be efficacious, but that theparticular norms need have no efficacy provided theycontain a formal sanction. What Kelsen fails toexplain is how a legal order can be efficacious unless itssubsidiary norms are obeyed, because a legal order canact only through subsidiary norms. It is difficulttherefore to understand why Kelsen places so muchemphasis on the sanction. As the norm need not beefficacious it follows that the sanction need only be aformal one. The sanction seems to be used to distin-guish law from other types of rules, which are baser


imitations, just as a hall-mark is used to distinguishsilver from other metals. No one would, however,regard the statement that a silver teapot can bedistinguished from a plate one because the formerbears a hall-mark as an adequate definition of silver,although it may be useful from the purely practicalpoint of view. The important point to note is that ifthe sanction need only be formal then it cannot be anessential element in law.

The most serious objection to the Pure Theory ofLaw is that it keeps us from seeing the essentialdifference between a coercive order and an obligatoryorder. We are led to regard the two words assynonymous. When Kelsen says that a coercive ordermust provide a measure of coercion he is making aself-evident statement, but it does not follow from thisthat an obligatory order must provide a measure ofcoercion because it may be regarded as obligatorywithout coercion. In ordinary life we realise thatthere may be all the difference in the world betweencoercion and obligation: it is essential to rememberthat the same difference is of importance in our inter-pretation of law. It is because a rule is regarded asobligatory that a measure of coercion may be attachedto it: it is not obligatory because there is coercion. Atheory of law which makes coercion an essentialelement in its interpretation seems to me therefore tobe misleading. It is true that Kelsen seeks to meetthis objection by saying that he is speaking of anormative order under which the person commandingis " authorised " or " empowered " to issue commands


of a binding nature.28 This authorisation comes fromthe basic norm which cannot itself be coercive, viz.,based on a sanction. By blandly suggesting that thisbasic norm must be " presupposed to be binding "Kelsen avoids the most important problem in legalphilosophy. It reminds one of the dreamer who goesinto great detail about what he is going to do with amillion pounds, but when asked where he is going toget his million pounds says that that is a practicalquestion with which he is not concerned.

OBLIGATION THEORY OF LAW

Having rejected both the command and the sanctiontheories of law I must now attempt to give my owninterpretation. Although I shall frame it in my ownwords I cannot claim that it is original because it isborrowed in large part from Sir Frederick Pollock,29

whose contributions to the philosophy of law havenever been sufficiently appreciated, perhaps becausethey were made in so lucid a manner. After pointingout that30 history shows that law precedes theorganised society which we know as a State and thatit can exist without a formal sanction, he concludes

28 At p. 31 Kelsen says: "To repeat: A command is binding,not because the individual commanding has an actualsuperiority in power, but because he is ' authorised ' or ' em-powered ' to issue commands of a binding nature. And he is' authorised ' or ' empowered ' only if a normative order, whichis presupposed to be binding, confers on him this capacity, thecompetence to issue binding commands."

*» Pollock's A First Book of Jurisprudence, 1896, 5th ed., 1923, ishis only book directly concerned with legal philosophy. Hisvarious essays are, however, of equal importance, especially hisoften-quoted one on the " History of the Law of Nature."

»» p. 24.

Obligation Theory of Law 19

that31: " Law is enforced by the State because it islaw; it is not law merely because the State enforcesit." A rule of law is " a rule conceived as binding."32

Austin found the key to the science of jurisprudencein the word command: I suggest that a more correctview is to find it in the word obligation. I shouldtherefore define law as any rule of human conductwhich is recognised as being obligatory. It is distin-guished from a purely voluntary rule of humanconduct which is followed for its own sake: thus if aman always puts on an overcoat in winter to avoidthe cold he is not following this course of conductbecause of any sense of obligation. Under the wordrule I include, for the sake of brevity, those principlesor standards which are regarded as binding eventhough they may not be as exact as a prescribedregulation. Although these principles are flexible intheir application, nevertheless they are sufficientlydeterminate to be regarded as part of the legal system.

It is essential to draw a clear distinction betweenobedience to an order or a rule and recognition thatthe order or rule is obligatory, i.e., that the order orrule ought to be obeyed. We may obey an ordersolely because we fear that if we do not do so we shallincur an evil. In such a case we are reacting to nakedforce, and we shall seek to avoid obedience if that ispossible. We have no conative feeling: no sense thatwe are under a duty of any nature. On the otherhand, if we recognise that a rule is obligatory ourreaction will be entirely different. It is true that we

« p. 29." p. 26.


may refuse to perform our obligation either because wefeel that there is some other conflicting obligation ofgreater strength or for some selfish reason, but never-theless the feeling of oughtness will remain. There isa vast difference between obedience to force andobedience to law, and if we fail to understand this thenwe shall misinterpret the history of England, and weshall ignore the greatest contribution which thiscountry has made to the civilisation of the world.Let me give you one illustration to make my point.A gangster enters a bank, and orders, at the point ofhis gun, all the persons there to raise their hands. Apolice constable, who is present, calls on them, as he isentitled to do under the common law, to assist him inarresting the gangster. Why do we regard thegangster's order as an arbitrary command and thepolice constable's order as a legal one ? The answerobviously does not depend on any sanction, becausethe sanction behind the gangster's order is far morepowerful than is any which the law can apply. Evenif we obey the gangster because of fear, we know thatin doing so we are violating our obligation to theCrown,—we have broken the law. I believe that inno other country in the world is this obligation recog-nised more clearly than in England, and that thestrength of the law is in large part based on this. Itis this which brings even a nursemaid to the supportof the police, as happened when the murderers of Field-Marshal Sir Henry Wilson tried to escape in 1922.The recognition of this obligation may be an uncon-scious one but this is merely evidence of how deeplyingrained it is. People may carry out a command


because they are afraid not to do so, but it does notbecome a law for them unless they recognise that thereis an obligation on them to obey. If this were notso then it would never be possible to distinguishbetween law and arbitrary command.

If, then, it is not fear of evil which makes a ruleobligatory, what grounds can we find for this sense ofobligation ? This question has been discussed by fewlegal philosophers because it is sufficient for their pur-poses that the sense of obligation exists.33 Thus SirFrederick Pollock, after stating that law is a rule con-ceived as binding, says that,34 " the further pursuit ofthis subject seems to belong to the philosophy ofPolitics rather than of Law." I cannot, however,33 Lord Bryce in his essay on " Obedience " in his Studies in

History and Jurisprudence, 1901, Vol. II, 463, sums up themotives of compliance under five heads in the order of theirimportance—indolence, deference, sympathy, fear, reason. Itis important to note that what Bryce is discussing is obedienceand not obligation. Thus indolence may be a motive forobedience, but it cannot be a ground on which the recognitionof obligation can be based.

Similary Eudolf Stammler is speaking about obedience andnot about obligation when he says in The Theory of Justice:

" Law presents itself as an external regulation ofhuman conduct. By this we understand the laying downof norms which are quite independent of the person'sinclination to follow them. It is immaterial whether aperson obeys them because he regards them as right, sub-mitting out of respect for the law; or whether his obedienceis due to a selfish motive of some sort, fear of punishment,or hope of reward; or, finally, whether he thinks about itat all, or acts from mere habit."

It is remarkable to find a legal philosopher accepting the viewthat it is immaterial whether a person submits out of respect 'for the law or out of fear. All those who live under thecommon law may reflect with some pride that Anglo-American history is in large part meaningless unless thedistinction between the two is realised.

3* p. 29.


avoid this difficult question because in these lectures Iam concerned with the effect that moral law may exertin producing the feeling of oughtness which I regard asan essential element in our concept of law.

It is necessary to say only a few words concerningthe nature of the obligation recognised by the personwho may establish the law—the commander, whounder the Austinian definition is all-important. Fromhis standpoint it is unnecessary to go beyond the factthat he recognises his own authority—whether rightfulor wrongful in origin is immaterial—to lay down thelaw. By establishing the law he recognises that othersare under an obligation to obey. The fact that he hasdeclared it is sufficient to make it obligatory in his owneyes. As a general rule he may attach a threatenedsanction to the law in case it should not be obeyed,but this cannot be necessary to give it validity so faras he himself is concerned.- A dying, powerless kingmay still issue a law. An exiled government, whichmay realise that no effective sanction can be attachedto its orders, may nevertheless hold that they arevalid and binding, and that they ought to be obeyedby those to whom they are addressed.35

The view of the person establishing the law is,however, of only slight juridical interest because, as Ihave said, there may be no person establishing the

35 In my article " An Apology for Jurisprudence " in Interpreta-tions of Modern Legal Philosophies, ed. Paul Sayre, OxfordUniversity Press, 1947, I discussed this question at greaterlength, with special reference to the decrees issued by theBoyal Netherlands Government in London during the recent


law, as, for example, in the case of constitutional law.But eveD if there is such a person, or group of persons,as in the case of the ordinary statute, it is therecognition by others which is important. It doesnot matter what the Members of Parliament thinkconcerning their own authority. They themselves cando nothing. What makes the statute effective—whatturns it from a mere collection of words into a law—is the recognition of its validity by others. Thisrecognition is of a double character. The first recog-nition is by the officers of the State—the judges, thesheriffs, and the police—who enforce the statute. Thesecond recognition is by the ordinary members ofthe State who obey the law. Why, for example, do40,000,000 people recognise that they are under anobligation to obey a statute enacted by a compara-tively few elderly gentlemen sitting in the Palace ofWestminster ? A similar question arises whenever weare considering the foundation on which any otherbody of law, such as religious law or customary law, isbased.

The most important ground on which this recogni-tion of obligation is based is also the least precise. Ina book of great interest, recently translated byProfessor Broad of Cambridge University, the SwedishProfessor Axel Hagerstrom36 emphasised that it is" the general law conviction" within a particularsociety which gives a rule of conduct its obligatory

36 Inquiries Into the Nature of Law and Morals. 1953. Editedby Karl Olivecrona. Translated by C. D. Broad. 1953.Almquist and Wiksell, Stockholm.

H.L.G. 2


nature.37 This " law conviction " may be based onvarious grounds which may not be understood by thepeople who are governed by it. A felt convictionmay, however, be more powerful than one which isrationalised. Perhaps the strongest influence may bethe vague feeling of duty arising from the habits ofthe people. It is because a rule has been longestablished that the majority of persons in a societymay recognise it as obligatory. The jurist cannotignore this " law conviction " because if he does sothen his theories will lack reality.

A second ground on which the feeling of obligationis based is that of reverence. This is, of course,strongest in the case of religious law because here theduty of obedience is based on reverence for God.This feeling may be of similar importance in otherlegal systems. In his famous book The EnglishConstitution Walter Bagehot, writing during the reignof Queen Victoria, pointed out how great a role theMonarchy plays in the British system of government.He said38:

" The English Monarchy strengthens our govern-ment with the strength of religion. It is not easyto say why it should be so. Every instructed

3 7 He said at p. 65 : " Suppose we take the phrase ' general lawconviction in a society ' to mean a conviction that so-and-so isa law which is binding on the society as a whole. Andsuppose we take this latter expression to mean that it is a rulewhich lays down rights and duties and also the way in whichthey are to be enforced if they should be infringed. Then the' general conviction of law in a society ' makes such a ruleinto a positive law, in the Bense of a rule which is actuallyapplied—in the last resort through coercion on the part of thelegal organs ."

3 8 Chap. 2, The Monarchy.


theologian would say that it was the duty of aperson born under a Republic as much to obeythat Republic as it is the duty of one born under aMonarchy to obey the monarch. But the mass ofthe English people do not think so; they agree withthe oath of allegiance; they say it is their duty toobey the " Queen," and they have but hazy notionsas to obeying laws without a queen."

This is an illustration of the powerful part whichreverence can play in establishing the sense of legalobligation.

A third ground is the recognition that law isessential if we are to escape from anarchy. Con-sciously or unconsciously the people realise thatwithout fixed rules civilised life will come to an end.It is this feeling which is of such advantage to thosewho seize power by force. It explains the rapiditywith which a usurper becomes a recognised ruler.Even in war-time the invader is recognised as havingauthority to maintain and establish rules for theordinary conduct of civilian life. That this recogni-tion is not based on force or fear is shown by the factthat even after the invader has been driven out thevalidity of acts done under these rules will berecognised.

Finally there is the recognition that there is a moralobligation to obey the rule. This recognition maytake two different forms. The first is the moralobligation to obey the rules as such. Thus there is amoral obligation to obey any law issued by theGovernment merely because it has been issued. This


moral obligation is not an absolute one for in certaincircumstances other conflicting moral obligations maybe felt to have greater force. It is based on therealisation that without law the State will collapse,and that all its members will suffer. It is a moralduty which is not owed to the State as such but toone's fellow-men. The second form of moral obliga-tion arises when it is recognised that the rule isintrinsically right and just. It is self-evident thatthis must greatly influence the sense of obligationwhich a man feels in regard to a rule which bindshim, but it is less frequently noted how strong is thisfeeling where others are concerned. We may recog-nise that a rule is obligatory because it is right thatother persons should be bound. My recognition ofthe obligatory nature of the law of contract may bebased as much on my recognition that there is a dutyon the other man to fulfil his promise to me as it ison the recognition of a similar duty binding on me."This feeling that it is right that others should bebound is more than a selfish one: without it the forceof law may lose its strength. In his famous book,Der Kampf urns Recht, von Ihering went so far as tosay that it was the duty of the holder of a legal rightto seek its enforcement against anyone who hadviolated it, because surrender to such a violationweakened the whole conception of law. Unfortunatelyvon Ihering did not emphasise sufficiently that it iseven more important to seek the enforcement of one'sneighbour's rights. The strength of law in a nationdepends to a large extent on the determination shown

34 Cf. Bdmond N. Cahn, The Seme of Injustice, 1949.


by its members that the rights of even the leastdeserving should be preserved.

There are undoubtedly other grounds on which therecognition of legal obligation may be founded but Ibelieve that the ones I have discussed are theprincipal ones. You will have noticed that I haveleft out fear which the force theory of law places inthe forefront. This has not been due to an oversighton my part. Fear, as I have said, may produceobedience to a command, as in the case of a bandit,but it cannot bring about a sense of obligation. Ifwe do not understand this distinction then we cannotdifferentiate between rule by force and rule by law.

It may be argued that my conception of law leadsto the absurd result that a man who does not recog-nise that he is bound by the law against murder oughtnot to be regarded as subject to it. The answer to thisis that when we talk of the law of a country we are notconcerned with the views of particular individuals.We are concerned with the general sense of obligationheld by those who are enforcing what they recogniseto be the law. Thus when we are asked " What isEnglish law on a particular subject ? " we can answerthis by stating what the judges recognise to be thelaw, but when we are asked the further question" Why have the judges got this authority ? " we cananswer only by saying that this is recognised to bepart of the British Constitution by the people ofEngland. Thus Dicey's definition of law in his Conflictof Laws40 as the rules recognised by the courts

4° First published in 1896. 4th ed., p. 5,


is useful as a practical test, but it is scientificallyinadequate as it does not refer to the basic questionconcerning the authority of the judges. Why, forexample, does the Anglo-American law give its judgesgreater power in this regard than does the Continentallaw to its judges ?

If the force or sanction interpretation of law is thecorrect one then it is clear that the influence of moralideas on the law can be regarded as of minorimportance. The essential element then is an exerciseof force in the application of the sanction. If, on theother hand, we regard law as a rule which is recog-nised as obligatory then the element of force becomesof minor importance. We then realise that theobligatory nature of these rules is based on othergrounds, and that one of the most important of theseis that of moral law. It is for this reason that themoral sense is one of the dominant forces not only inestablishing the efficacy of law, but also in its veryexistence. The jurist cannot ignore the moral law asirrelevant to his subject because if he does so then hewill be ignoring one of the grounds on which the basicidea of obligation is based. It is therefore necessaryfor me to turn now to a consideration of the morallaw, and to the various meanings which have beenascribed to that phrase.

MORAL LAW

The Oxford Dictionary defines moral as " concernedwith character or disposition, or with the distinctionbetween right and wrong." In the first sense we aretalking about the moral character of the individual.

Moral Law 29

He may be said to be moral if he acts in accordancewith what he believes to be right, and to be immoralif his purpose or motive is wrongful.41 It is obviousthat used in this sense there can be no objective morallaw because each person must be a law unto himselfin deciding what he believes is right or wrong.According to this interpretation of morality the obli-gation is to do what the conscience of the individualperson tells him is right. It has therefore been said 42

that " morality works from within outwards and it isthis internal character which distinguishes it from thelaw of the land and the conventions of society." Thissubjective interpretation compels the jurist to dis-regard morality almost completely, for if moralitydepends on the conscience of each individual then nogeneral rules, whether legal or otherwise, can be basedon it.

There is another school of thought, however, whichrejects this subjective interpretation of the moral law,and accepts an objective one. " The suggestion,"Mr. Kneale has said in a valuable essay,43 " thatsentences about obligation, Tightness and wrongnesshave no objective reference sticks in our throats . . .the important question is whether such judgments canbe true or false in the ordinary sense." He reachesthe conclusion that moral judgments " are not merelyexpressions of our own preferences or those of our41 Thus Eudolph Stammler in The Theory of Justice, p. 141,

says: "Law presents itself as an external regulation ofhuman conduct. . . . Ethical theory is concerned with thequestion of the content of a man's own will, in whose heartthere must be no opposition of being and seeming."

« Winfield, Select Legal Essays, 1933, p. 267.*3 Objectivity in Morals (1950) Philosophy, 149, 151.


group, but applications of a law to which all mencommit themselves when they claim to be reason-able." 44 Reason alone cannot, however, determinethe content of the moral law because " reason is not amotive for anything, and so not a motive for themaking of the moral law." 45 We must therefore, hesays, introduce a notion of sympathy to explain themotive of moral law.

If we accept, as I do, Mr. Kneale's conclusion thatit is correct to speak of an objective moral law thenwe must ask the question—where do we find thisobjective moral law ? The answer to this question isof the utmost interest at the present time because, asI hope to show in the remaining lectures, our moralconclusions are of basic importance in the formationof our law. In a static period when both law andmorals are accepted as more or less fixed it will not beso necessary to analyse our moral concepts, but whenour State law is changing it is then necessary for us toseek for a true interpretation of the moral law withwhich it is so closely associated. I believe that theso-called revival of " natural law " thinking at thepresent time is merely an expression of this point ofview. It is because we recognise that law cannot beexplained in terms of force that we seek to find themoral law which tends to give it its strength.

As the classic phrase " law of nature " is so highlycharged with emotion and has meant so manydifferent things at various times in history, I thinkthat it is preferable to speak of moral law instead.

** p. 163.*« p . 161.

Moral Law 31

This does not, however, take us very far because thereare different views concerning the basis of this morallaw. Here again I believe that it is the idea of obliga-tion which is the essential element. In moral law, asin other types of law, the primary question is why dopeople regard the moral law as obligatory ?

The first concept of moral law is as an expressionof the will of God. It can be found either in theexplicit commands of the Divine Being, as forexample in certain of the Ten Commandments, or inthe implied commands which can be discoveredthrough reason. By the application of reason to thebasic premises of the religion we can obtain an answerto every moral question. As a religion must from itsvery nature accept its basic tenets as permanent andunalterable, it follows that a moral law based on thesetruths will tend to be equally permanent and unalter-able. The view that there is an absolute objectivemoral law which applies at all times and under allcircumstances is a resultant of this doctrine.46 Thusif a religion provides that a man shall have no morethan one wife it follows that this rule will be regardedby the members of that religion as a moral law,obligatory on all men, whether they are members ofthat religious body or not. The moral law recognisedby the believers in one religion may therefore differ ina radical manner from that recognised by the believers

46 W. D. Lamont, Principles of Moral Judgment, 1946, p. 4: " I fa person holds that the final standard of right and wrong is theDivine will as interpreted by the church, then the ' moral' andthe 'religious' judgments will for him be identical."

HX.O. 2 (2)


in another.47 Mr. Kneale has said that " the notionof a specific moral law seems to be inseparably boundup with the policy of mutual tolerance," 4S but this isexceedingly doubtful when the moral law has itsfoundation in religion because this religious moral lawmust on certain points be absolute. The strength ofthe belief in the obligatory nature of this religiousmoral law will necessarily depend on the strength ofthe belief in the religion itself. Of all the grounds onwhich the obligatory nature of the moral law has beenbased this is the most potent one, because it is basedon the authority of a Divine Being. Being bothabsolute and strong it is the one which is likely tohave the most persuasive influence on State law, andis also the one which may come into most directconflict with it.

4? Two recent books are of great interest from this standpoint.In Law and the Laws, 1952, Dr. Nathaniel Micklem stateswhat may be described as a- Protestant Christian law ofnature. He takes the view (p. 59) that " law is neither ethicsnor religion but law is not safe, it is not even law, when it isdivorced from ethics and religion." Again he says (at p. 114):" We cannot reject the religion of the Bible and permanentlyretain our law and justice." In referring to international law,he says (p. 95): " International law as we understand it restsbroadly upon the Christian ethic and is only conceivable onthat basis." On the other hand, he disagrees with the EomanCatholic law of nature as stated in Fr. Watt's The NaturalRights of Man, especially (p. 83) concerning private property.Concerning freedom of conscience he says (p. 88): " Fr. Wattis probably concerned with the claim of a ' natural right ' tobe a good Eoman Catholic; his Church does not believe thatanyone has a ' natural right ' to be a Protestant or unbeliever."

The Eoman Catholic doctrine concerning the law of naturehas been stated by Professor d'Entreves in his brilliant bookNatural Law, 1951. It contains a profound and lucid analysisof the various schools of thought throughout the ages. It alsogives a fair statement of the influence that this doctrine hashad. *» Op. cit., n. 43, at p. 164.

Moral Law 33

The second ground on which the moral law has beenbased is intuition or instinct.49 In this interpretationnatural moral law is closely akin to natural physicallaw. It is an expression of uniform human feelings,and it holds that because these feelings exist theymust be right. Thus, to take the most obviousexample, the fact that most parents are prepared tocare for their children is held to be proof that it is amoral duty that parents must care for their children.Again, the institution of private property is given anatural moral law foundation, on the ground that evenprimitive man will fight to retain a thing which he hasseized. Similarly, it is said that even a young childwill lay a special claim to a thing which he has beenthe first to possess. In his bitter attack on the ideaof a law of nature Bentham50 pointed out thatbecause men are inclined to act in a particular way, itdoes not necessarily follow that it is morally rightfor them to act in that way. There is, of course,truth in this criticism, but the criticism is based on amisconception of the argument. If the naturalinstincts of human beings tended to be destructive of

49 This has been stated in its most famous form by Ulpian,Digest, 1.1.3, repeated in the Institutes, I , 2 . : " N a t u r a l lawis that which all animals have been taught by na tu re ; thislaw is not peculiar to the human species, it is common to allanimals which are produced on land or sea, and to birds ofthe air as well. Prom it comes the union of man and womancalled matrimony, and therewith the procreation of children;we find in fact that animals in general, the very wild beasts ,are marked by acquaintance with this l a w . "

50 I n The Theory of Legislation, p . 167, Bentham sa id :' ' Parents are inclined to support their children; parentsought to support their children; these are two distinct proposi-tions. The first does not suppose the second; the second doesnot suppose the first."


the human race then it would have ceased to exist longago. There is, therefore, at least a presumption thatthe human instincts, if not carried to excess, tendto the preservation of the race and to the good ofmankind. It is therefore not absurd to suggest thatour instinctive feeling is some guide to objective morallaw. Here again this concept of moral law tends toinfluence State law because the latter will gainstrength if it is in accord with what peopleinstinctively feel is right.

The third school bases moral law on reason. Whenwe speak of reason in this connection we mean logicaldeductions from a basic premise. We must thereforefind the basic premise on which this moral law ofreason can be founded. If our basic premise isgrounded on the view that all men are wicked and arenot to be trusted, then we shall get a peculiarlywarped moral law. I think that this explains theextraordinary conclusions reached by Machiavelli andHobbes. Thus, in the eighteenth chapter of ThePrince, Nicolo Machiavelli discusses " The WayPrinces Should Keep Faith," and he reaches theconclusion that they should not do so if it is againsttheir interest. " If men were entirely good this pre-cept would not hold, but because they are bad, andwill not keep faith with you, you too are not boundto observe it with them." If it is true that men arebad then his conclusion that there is no duty to keepfaith with them is perfectly reasonable. The result isthat morality disappears and only force remains.Thomas Hobbes took an equally gloomy view ofnatural man. Unless law is established by force men,

Moral Law 35

he held, can have no conception of right or wrong.In Leviathan he said51:

" Hereby it is manifest, that during the time menlive without a common Power to keep them all inawe, they are in that condition which is calledWarre; and such a warre, as is of every man,against every man. . . . To this warre of everyman against every man, this also is consequent;that nothing can be Unjust. The notions of Rightand Wrong, Justice and Injustice have there noplace. Where there is no common Power, there isno Law: where no Law, no Injustice. Force, andFraud, are in warre the two Cardinall vertues."

Here again, if men are by nature of such a brutishcharacter, the only instrument which will be able tocontrol them is brute force.

On the other hand, if we accept as our basic premisethat* as man is a social animal, it is natural and rightfor him to seek to benefit his fellow-men, it thenbecomes the basic premise of this moral law that aman shall love and not hate his neighbour. It is truethat this basic premise is only a value judgment andthat it is impossible to prove by reason that theopposite conclusion is not equally correct. But havingaccepted this value judgment, it is then possible todevelop by reason certain moral rules. The rationalman must realise that there are rules of conductwhich are necessary for the good life both of theindividual and of the community. Reason teaches usthat we must not kill, or steal, or lie if we wish tobenefit our fellow-men, because each of these acts will51 Part I, Chap. 13.


tend to their injury. This was expressed by Ciceroin De Legibus 52 in these words: " For where then willthere be a place for generosity, or love of country,or loyalty, or the inclination to be of service to othersor to show gratitude for favours received ? For thesevirtues originate in our natural inclination to love ourfellow-men, and this is the foundation of justice."Hugo Grotius seeks this same foundation for Inter-national Law in his De Jure Belli et Pads 63: " Andamong these properties which are peculiar to man, is adesire for society; that is a desire for a life spentin common with fellow-men; and not merely spentsomehow, but spent tranquilly, and in a mannercorresponding to the character of his intellect. . . .And therefore the assertion, that, by nature, everyanimal is impelled only to seek its own advantage orgood, if stated so generally as to include man, cannotbe conceded." This moral law, based on reason, is arelative rather than an absolute one, because whatmay be reasonable under one set of circumstances maynot be reasonable under another. The theory of anatural law with a changing content, which has beenespecially popular with legal philosophers, is anexample of this doctrine. It may be said that thisinterpretation of moral law is closely akin to theutilitarian doctrine. It cannot be denied that incertain regards it is utilitarian, but it is a utili-tarianism based on sympathy for others rather thanon regard for oneself. I am not, however, concernedwith the question whether this view of the moral lawcan be theoretically justified. The important point is

" I, 15, 43. 53 Vol. I, Prolegomena, p. xlii, s. 6,

Moral Law 37

that it has been accepted by a great number of men,and that it has played a leading part in the develop-ment of law.

In practice we are unlikely to find that any clearline is drawn between the three kinds of " naturallaw." They have the same aim because each of themseeks to provide an ideal test for the existing law.It may be said that in family law cases includingmarriage, divorce and responsibility for children, onefinds more frequent references to the religious naturallaw than in other branches.54 The type of moral lawbased on reason, divorced from other authority, seemsto be the one which has had most influence in Englishlaw. It is to the reason of the case that the judges,even in Equity, have given most weight. It is apragmatic natural law and not one based on generalprinciples expressed in authoritative sources.

I may perhaps summarise this lecture by saying thatI have attempted to show that law is a rule of conductwhich is recognised as being obligatory. This sense ofobligation is based on various grounds, including thatof morality. In English law we shall, I think, findthat morality has played a particularly important partin the development of the common law, and that onthe whole we shall be able to say at the conclusion ofthese lectures that English law and the moral law arerarely in conflict.54 As these lectures are limited to the influence which the moral

law has had on English law it has not been within their scopeto discuss the influence of religious law as such. The judg-ments of the House of Lords in Bowman v. Secular Society[1917] A.C. 406, in which their Lordships had to determine thequestion whether the common law incorporated the rules of theChristian religion, are therefore not directly in point here.

CONSTITUTIONAL LAW,

ADMINISTRATIVE LAW

AND

INTERNATIONAL LAW

CONSTITUTIONAL LAW, ADMINISTRATIVELAW AND INTERNATIONAL LAW

IN my first lecture I have defined law in general as arule of conduct which is recognised as being obligatory.It is obvious that this definition must cover a verywide field. Most of us recognise that we are under anobligation to obey the rules of our religion, of ourState, of the various societies to which we belong suchas a university or a social club, and the rules which werecognise as constituting the moral law. Is there anytest by which we can draw a distinction between thesevarious types of law ? In particular, what is theelement which enables us to draw a clear line ofdemarcation between religious law, moral law, andState or civil law,1 for these are of peculiar importancein controlling the lives of all men ?

It has been suggested by Professor Kelsen that thedistinction between these various rules lies in thenature of the sanction. State law, according to hisview, is an order which is distinguished by its specifictechnique in that it provides a sanction directedagainst the member of the community who does notfulfil his duty. " The law does this by providingthat if a man commits murder, then another man,designated by the legal order, shall apply against the

1 The term " civil law " is usually used as a synonym for Statelaw. It may also be used to describe modern Boman law, orthat part of State law which is not penal.

41

42 Constitutional, Administrative, International Law

murderer a certain measure of coercion, prescribed bythe legal order." 2 On the other hand, morality, itis said, limits itself to requiring: Thou shalt not kill.Thus, the moral reaction against immoral conduct isneither provided by the moral order, nor, if provided,is it socially organised. Religious norms resemblelegal norms in that they provide a sanction, but thisis of a transcendental character and not sociallyorganised. With all respect to Professor Kelsen, Ibelieve that this distinction based on the nature ofthe sanction is an invalid one. In early law the sametribunal may be purporting to administer religiouslaw, moral law and State law.3 There is no reasonwhy religious law should not be enforced by an earthlytribunal, even though the ultimate punishment maybe a transcendental one. Similarly, the breach ofmoral law may entail the sanction of expulsion fromthe community, even though there is no formalmachinery by which this sanction can be enforced.The sanction which in fact makes certain State lawseffective may not be the sanction which the law itselfprovides. Thus, during the recent war, the effective-ness of many of the rules prohibiting the purchase offood and of goods on the black market was due, notto the fines provided by the rules themselves, but tothe social stigma which was attached to the breachof these rules. Having been concerned in a small way

2 p. 20.3 Cf. Pound, Law and Morals, p. 29: " We begin, then with a

condition of undifferentiated social control—as we should havesaid in the last century, a condition of undifferentiated religion,morals and law—in which law, as we now think of it, that is,social control through the force of politically organised society,is the least in scope and the least in efficacy of the three."

Constitutional, Administrative, International Law 43

with the administration of these rules,4 I am con-vinced that they would have been very nearly aseffective as they were if no sanction had been attachedto them, because all that was required was thecreation of a tribunal which could establish thatthe rules had been violated. It was the fear of socialdisapproval, and not the inadequate fines whichsecured almost universal compliance.5

Unlike the sanction theory of law, the commandtheory of law bases its distinction on the source ofthe command. Religious law is the command of God,State law is the command of the sovereign, and morallaw is not law at all because there is no commander.6

This interpretation of law, as I suggested in the firstlecture, is totally inadequate even when applied toState law, because we can never find any person orgroup of persons who commands the constitution.Moreover, it fails to recognise the fact that the sameperson may be purporting to enforce all three types oflaw in primitive administration. This may continueeven when the degree of civilisation has reached acomparatively high standard. Thus Professor Poundhas said ~:

4 I was chairman of the Southern Eegion Price BegulationCommittee.

5 In his stimulating book, The Law In Quest Of Itself, ProfessorFuller repudiates the " bad man" interpretation of lawsuggested by Mr. Justice Holmes in one of his lighter

.moments. Fuller says (p. 93): " i t is a peculiar sort ofbad man who is worried about judicial decrees and is in-different to extra-legal penalties, who is concerned about a fineof two dollars but apparently not about the possible loss offriends and customers." My experience fully supports thiscriticism.

6 Austin, Jurisprudence, Chap. I.7 Social Control Through Law, p. 18.


" The major agencies of social control are morals,religion, and law. In the beginnings of law theseare not differentiated. Even in so advanced acivilisation as that of the Greek city-state the sameword is used to mean religious rites, ethical custom,the traditional course of adjusting relations, thelegislation of the city, and all of these looked on asa whole; as we should say, including all theseagencies of social control under the one term whichwe now translate law."

If then we cannot draw a distinction between thedifferent types of law either because of the nature ofthe sanction, or because of the nature of the com-mand, is there any other method by which we candraw such a line ? I believe that there is a cleardistinction based not on form but on substance. Thedistinction between them is based on the nature ofthe duty which is recognised-to exist. The distinctioncan be stated as follows: —

1. Religious law consists of those rules which arerecognised as stating the duty which is owed to theDivine Being. It does not matter from the juridicalstandpoint whether the religion is true or false. Theserules are obligatory, and therefore law, for those whobelieve that they express a duty to God, but they arenot law for those who do not so believe. The efficacyof religious law depends on the strength of the beliefin the existence of the Supreme Being, and not onthe strength of any sanction. It is a gloomy inter-pretation of human nature to suggest that these rulesare regarded as obligatory merely because of a threat


of future punishment. This is fear and not devotion.The fact that the belief in Hell is no longer anessential part of religion ought not to weaken the senseof obligation to the Creator.

In religious law the primary duty is to God,although this law may also prescribe a duty to others.In such a case the breach of a duty to others alsoentails the breach of a duty to God. Similarly,religious law may prescribe a duty of obedience tothose in authority in a State. An act of disobediencein these circumstances violates two duties, onereligious and one civil, and two different types oflaw. Thus, those who believed in the Divine Right ofKings held that a double duty of obedience was owedto the King—one religious and one civil.

2. Moral law consists of those rules of conduct whichare recognised as obligatory in regard to one's fellow-men. In so far as ethics is concerned with thesubjective goodness or badness of an act and itseffect on the conscience of the actor it lies outsidethe field of law. As I have already suggested, theobligation recognised in moral law may find its originin various different and sometimes conflicting sources.When there is a conflict, the moral law becomes ofdoubtful validity. Religious law when it is concernedwith man's duty to his fellow-men, reason whichmakes it clear that no society can exist unless eachmember owes a duty to the others, and the innate" love of one's neighbour " which makes man a socialanimal, all combine to found the recognition of amoral law. Perhaps strongest of all are the tradi-tional habits or mores of the group which tend to be


regarded as obligatory merely because they have beenestablished for a long period.8 Age gives authoritynot only to men but also to their practices. Theformer must die and are buried, but the latter maycontinue to rule us for an unlimited time. Morallaw, far from being uncertain and weak because ithas no commander and no definite sanction, may beas precise and even more powerful than any rule whichwe call State law.

3. State law can be briefly defined as those rules ofconduct which are recognised as being obligatory onthe members of the society which we call by the nameState. This definition is obviously incomplete untilwe have established the nature of this particularsociety and who are its members.

The State is a society of men, living within aparticular territory, directed to a particular purpose.It differs from other societies because of its purposeand not by the form which it assumes or because ofthe machinery which it operates. I do not agree withAustin that a State must consist of a sovereign andsubjects, nor do I agree with Kelsen that themachinery with which the State operates—a rule towhich a sanction is attached—is peculiar to the State.Nor do I believe that the State is a politicalorganisation " because it monopolises the use of

8 Hagerstrom, p. 39, speaks of " the inherited custom ofobserving what is called the law of the land." He continues," Such factors as custom and the feeling that it is naturalto observe the existing legal rules have great influence; andthey give rise to actions in the mass of the people, by whichthe law is maintained without any will intervening."


force."9 If this statement is taken literally it isobviously untrue because there may be other organisa-tions within a State which may have more physicalforce than the State can command. As long as theseorganisations recognise their obligation to the Stateand are prepared to support it this is all that isnecessary. Nor does the theory of the State needsuch a monopoly: all that it requires is that thepurpose of the State shall be the maintenance oforder. This can be secured either by the exerciseof force directly under the control of the State or bythe exercise of extraneous force acting in supportof the State. The trouble' with phrases concerningthe " monopoly of force " is that they suggest thatthe State must make itself physically all-powerful ifit is to survive. States have assumed an infinitevariety of forms, but nevertheless they have oneessential element in common, and that element wefind in the purpose of the society. This is notsurprising because all other societies are denned bythe function they are to perform and not by any otherfact. Thus, a trade union is a society whose purposeit is to protect all its members in matters of wagesand conditions of work, musical societies are organisedfor the purpose of giving concerts, commercialexchanges, such as the Metal Exchange, are createdfor the purpose of trade in various commodities. Noone would think of denning these organisations in

9 p. 190: " The State is a political organisation because it is anorder regulating the use of force, because it monopolises theuse of force."


terms of structure. I believe that the same is trueof the State.

The purpose of the society which we call a State isto maintain peace and order within a demarcatedterritory.10 It would be impossible to maintain asocial life above the bare minimum without anorganisation which prevents the arbitrary use of forceby one person against another. It is only when orderhas been established that further progress in civilisa-tion can be achieved. Aristotle expressed this whenhe said that the State begins by making life possibleand then seeks to make it good. The minimum andessential purpose of the State is, therefore, to makelife possible. It is, of course, true that States do notlimit themselves to this minimum, but neverthelessit is this which distinguishes them from all othersocieties. The order which the State must aim toprovide is physical order, although at various timesStates have also attempted to introduce other typesof order. Thus, until comparatively recently, manyStates attempted to introduce religious order byrequiring their members to belong to a particularreligion. Today all States are concerned in varyingdegrees with the introduction of economic order,having recognised that the laissez faire doctrine ofcomplete freedom in this field is unworkable. But ftis still the maintenance of physical order which isthe primary function of the State.

*° Cf. Brierly, The Law of Nations, 4th ed., p. I l l : "A Stateis an institution, that is to say, it is a syBtem of relationswhich men establish among themselves as a means of securingcertain objects, of which the most fundamental is a systemof order within which their activities can be carried on."


Like all other societies the State, if it is to exist,must have rules of conduct which are directed to theachievement of this purpose. A society, although wetend to personify it, is nothing more than anorganisation of men directed to a particular end.Cicero first expressed this when he said that the Statewas a vinculum juris—a legal bond between itsmembers.11 If this legal bond which creates the Stateis broken then the State comes to an end.

It follows from this that the basic law or norm, touse Kelsen's phrase, which creates the State cannotitself be created by the State. The State cannottherefore be substituted for- the defunct Austiniansovereign as the source of State law. In Chapter 1 ofhis three-volume work on The Law and Custom of theConstitution 12 Sir William Anson said that when " theState defines the rules of conduct which it will enforce,and employs a uniform constraint for their enforce-ment—regular judicial process backed by the strongarm of the executive—it creates the Law with whichalone the jurist can profitably deal." This must beone of the most remarkable definitions in all legalliterature for, after stating that it is the State whichmakes the law, Anson devotes most of the remainingpart of his work to showing that so far as constitu-tional law is concerned it is the law which has createdthe State. In his definition he speaks of the Stateas if it were a living material person capable of itselfestablishing the law, but thereafter he shows that theState is a system of government under which power is11 De Re Publica I . xxxii. 49.12 First published 1886-92, 5th ed., Vol. I , p. 20.


allocated to various separate bodies such as theCrown, the Houses of Parliament, and the judiciary.It is the law which tells us what these different bodiescan do: it is not they who have created the con-stitutional law on which their power is based.

State law is therefore composed of two separateand distinct bodies of rules. The first consists inwhat has been well called constitutional law, for thislaw constitutes the State. It allocates, as I have said,to various persons and bodies the power to act withincertain limits in the name of the artificial personknown as the State. The second body of rules, whichmay be described as the constitution in action, consistsin the rules established by those authorised to act bythe constitutional law. The second body of rulescannot exist until the first body has been created. Itis for this reason that I believe that any theory oflaw which ignores the first body and concentratesmerely on the second is meaningless for all practicalpurposes.

When we turn to constitutional law it is obviousthat these basic rules need not be recognised as obliga-tory by all persons living within the territory. Therewill always be a certain number of anarchists living inevery society who will deny that anyone is entitled toexercise authority over them. To be effective, con-stitutional law must be recognised as obligatory bythose who will thereby be capable of maintaining orderwithin the territory. In certain circumstances thesepersons will constitute only a small proportion of theinhabitants. But even in this case it is worthrepeating here that the constitutional law which those


in power recognise is not based on force, but on thefact of their recognition. With the exception ofexceedingly rare tyrannies we find that in almostevery State the constitution is recognised as obliga-tory by the vast majority of the people.13 This doesnot mean that they need necessarily approve activelyof the constitution, or that they should base theirrecognition on clear grounds of reason. All that isnecessary is the recognition that those who purport toexercise authority in the name of the State areauthorised to do so. There is all the difference, as Ihave said, between obeying the order of a policeofficer who is recognised to have the authority of theState behind him, and the arbitrary order of a personwho is merely exercising brute force. To ignore theexistence of this recognition as the major element inall political life is to ignore the major fact on whichsociety is based. I am not concerned here with thequestion whether a person may recognise thisauthority on grounds of morality, or reason, or habit.It is the existence of the recognition, and not thereason for the recognition, which is of importance.This does not mean, of course, that the people areconsciously willing the existence of the constitution.On this point Professor Hagerstrom has said 14:

" But it is equally incorrect to say that it wasthe people's will which gave to the whole system its

13 Hagerstrom, p. 35: "But where pure despotism or mob-ruleexists one may question whether there really is any legalorder. At any rate, that is not the case if legal order includessecurity for established rights. Yet it is pure despotism whichserves as a model for the theory under discussion."

« p. 60.


power. For the people itself was governed by theidea in question. The whole notion of a popularresolve to maintain this idea is as absurd as tosuppose that a prevalent moral climate of opiniondepends on a popular resolve to maintain it."

If I am right in my conclusion that the constitutionof a State consists of those recognised rules whichdefine the exercise of power, then it is obvious thatno State need have unlimited power or the monopolyof force. Our legal theory will then accord with theactual facts because we know that all States are to acertain extent limited in the exercise of power.Professor Maclver has said 15:

" We have arrived at the days when the sovereignpower, the maker of laws, the government, is toldwhat it may do. It is so instructed in the constitu-tions of nearly every modern State. In these Statesexplicitly, in all States implicitly, there are manythings which are forbidden to any or all organisedauthorities. The limits of sovereign power areparticularly marked in Federal States . . . it (thefundamental law) is superior because it is constitu-tive of the State itself."

It is impossible to explain the Federal system whichexists in the United States, Canada and Australiaunder any doctrine which gives unlimited powerto the State. If we take the United States asan example we find that certain powers concerningthe maintenance of international peace and of inter-State order are vested in the National Government,15 The Modern State, 1926, p. 487.


while the maintenance of internal peace and order isvested in the several States. There is no difficultyhere in holding that both the National and the StateGovernments are supreme within their own spheres,and that they can both function within the sameterritory. In case of a conflict between the NationalGovernment and the States concerning the exerciseof their respective functions, the dispute, whicharises exceedingly rarely, is referred for decision tothe Supreme Court. This does not mean that theSupreme Court is a supreme Government to whichthe other two are subject, because its only functionis to state the law as it sees. it. The Supreme Courthas no legislative and no executive functions: havingdeclared the law it cannot itself do anything to seethat it is enforced. The possibility of such a divisionof power had been denied by most politicalphilosophers before the American Constitution cameinto force in 1789, and even today some Europeanscholars have a feeling that it really cannot be true.This is due to the fact that it is difficult for thosebrought up in a unitary State to realise that a Stateneed not be all-powerful and uncontrolled.

It is necessary, however, to comprehend this if weare to explain the relation between State law andmoral law. If we regard State law as necessarilysupreme and unlimited then any attempt to limitthat power on moral grounds must fail. Under sucha theory the rulers of the State may feel that theyought not to infringe certain moral principles, butthis is a matter of discretion and not of law. Onthe other hand, if we recognise that the State is a


society to which certain indefinite, but not unlimited,powers are attributed, then there is no difficulty inholding that the exercise of State power can belimited. I think that this will be recognised as atruism by most persons living in a Federal State, butit is far more difficult to suggest that such limitationsare possible when we deal with a unitary State. Inthe case of Great Britain it is almost universally saidthat the Queen-in-Parliament is supreme, and that nolimitations on the power of that body can be recog-nised. I believe that this statement is nearly asmisleading as is the statement that the Queen'sconsent is necessary to a valid Act of Parliament.We all know that anyone who would attribute to thesovereign the power of withholding such consent wouldshow a complete misunderstanding of the Constitutionin action. In the same way I believe that whateverthe theoretical power of the Queen-in-Parliament maybe, there are certain general principles which are sofirmly recognised as authoritative that they couldnot now be violated without causing a revolution. Inthose circumstances it seems to me to be correct tosay that these principles are part of the Britishconstitutional law. Professor Dicey in his classic workon The Law of the Constitution ls has said: " Theone fundamental dogma of English constitutional lawis the absolute legislative sovereignty or despotism ofthe King-in-Parliament." This statement is, ofcourse, perfectly true when we are discussing thequestion whether or not the courts can refuse torecognise a statute enacted by the Queen-in-Parliamenti« 9th e<i, 1952, p. 145.


on the ground that it is in conflict with " commonright and reason." In the past a contrary view wasexpressed by Sir Edward Coke in Bonham's Case,17

with what Sir Frederick Pollock has called 18 " hisusual vehemence and even more than his usual inac-curacy or disingenuousness." The same view wasexpressed by Sir William Blackstone in his Commen-taries," when he stated that an Act of Parliamentcontrary to the law of nature would be of no validity.Today it is clear that no one would accept the viewsexpressed by Coke20 and Blackstone. It does notfollow from this, however, that we need regard parlia-mentary government as a type of absolute despotism.Such a conclusion must be in conflict not only with oursense of what is fitting, but also with our recognitionof what happens in fact. The answer is, I believe,that the people as a whole, and Parliament itself,recognise that under the unwritten Constitution thereare certain established principles which limit the scopeof Parliament. It is true that the courts cannotenforce these principles as they can under the Federalsystem in the United States, but this does not meanthat these principles are any the less binding andeffective. For that matter some of them receivegreater protection today in England than they do inthe United States. These basic principles are, Ibelieve, four in number.

« 8 Eep. 118A.18 Jurisprudence, p. 262. •19 Chap. 1, p. 41.20 Whether there ever was any t ru th in Coke's s tatement is a

disputed question. On this point, Professor Mcllwain andProfessor Plucknett are in disagreement. The various argu-ments can be found in Plucknet t ' s History, p . 319.

HX.O. 3


The first and most fundamental one is that no manis above the law. In the thirteenth century Henry ofBracton in his famous book De Legibus et Con-suetudinibus Angliae said 21:

" The King himself ought not to be subject toany man, but he ought to be subject to God and thelaw, since law makes the King. Therefore let theKing render to the law what the law has renderedto the King, viz., dominion and power for there isno King where will rules and not the law."

As Professor Maitland has pointed out,22 if this viewhad not been accepted in the thirteenth century theEnglish kingship must have become an absolutemonarchy. The same view was expressed in 1607 bySir Edward Coke, the greatest of all Chief Justices,when he told King James that he must administerjustice " according to the law and custom ofEngland." 23 This principle is so firmly established asa part of English constitutional law that it isunthinkable that Parliament would grant such arbi-trary powers to the officers of the State as would bringthem above the law. It is here that the basicdistinction between a totalitarian State and a con-stitutional State such as Great Britain can be seen.More than two thousand years ago Aristotle pointedout that the essence of constitutional law lies in thefact that it governs the magistrates who enforce it.24

It is because the officers of the State are controlled by

21 f. 5b.2 2 Pollock and Mai t l and , History of English Law, Vol. 1, 182.2 3 Prohibitions Del Roy, 12 E e p . 63.2* Politics, Bk . I V .


the law that we have democratic government insteadof tyranny. It is true, of course, as I pointed out inmy first lecture, that those in power in Russiarecognise that law is necessary if a society is tofunction, but—and it is this but which is the all-essential thing—there are officers of the Russian Statewho are not controlled by this law, and who wieldthat absolute power which, as Lord Acton has said,tends to corrupt absolutely. If in any nation thereis a group of men who are capable of disregardingthe established law then we can say that here there isa tyranny. It is for this reason that such a writas the writ of Habeas Corpus is of such fundamentalimportance, and has always been of such importance,in establishing liberty.25 If any man in this countrycould arbitrarily imprison another man and refuse tojustify the imprisonment to the courts, then we shouldhave lost the freedom which is part of our nationallife. It is true, of course, that in a time of terriblenational emergency, such as during the late war afterthe fall of France, the writ of Habeas Corpus may betemporarily suspended, but even at such a time thesuspension is of only a strictly limited nature. It is,I am convinced, inconceivable that any Parliament inGreat Britain would, during the ordinary conditionsof peace, regard itself as constitutionally capable ofabolishing the writ of Habeas Corpus. It is thereforecorrect to say that it is a basic part of Englishconstitutional law that no man is above the law.

Cf. Sir Alfred Denning, Freedom Under the Law, 1949,Stevens & Sons, Ltd., p. 6.


The second fundamental principle of the BritishConstitution is that those who govern Great Britaindo so in a representative capacity and are subject tochange. The elections that are held are not ameaningless ritual. It is true that at a time of greatemergency Parliament is capable of continuing its ownlife from year to year, but if it attempted to do soindefinitely in the time of peace we should allrecognise that the Constitution had been destroyed.An immortal government tends to be an immoralgovernment, for it deprives men of that freedom ofchoice on which free government is based. ProfessorFuller, of Harvard, has stated this truth withadmirable clarity 26:

" The greatness of what we call democraticgovernment does not lie in the mere fact that anumerical majority controls at election time, butat a point further removed from the ballot box, inthe forces which are permitted to play upon theelectorate. For in the world as it is nowconstituted, it is only in a democratic and constitu-tionally organised State that ideas have a chanceto make their influence felt. By preserving afluidity in the power structures of society, bymaking possible the peaceful liquidation ofunsuccessful governments, democracy creates a fieldin which ideas may effectively compete with oneanother for the possession of men's minds."

Here, again, it is true to say that the free election ofthe members of the House of Commons is a basic

=« The Law in Quest of Itself, p. 123.


principle of English constitutional law. Without " thepeaceful liquidation of unsuccessful governments"the English system would come to an end.

The third basic principle covers the so-calledfreedoms of speech, of thought and of assembly.These freedoms are an essential part of any Constitu-tion which provides that the people shall be free togovern themselves, because without them self-government becomes impossible. A totalitariangovernment, which claims to have absolute andunalterable authority, is acting in a logical mannerif it denies to its subjects the right of criticism, becausesuch criticism may affect the authority of those inpower. To ask that a totalitarian government shouldrecognise freedom of speech is to ask for the impos-sible because, by its very nature, such a governmentmust limit the freedom of its subjects. On the otherhand, such a system of government as exists underthe British Constitution must recognise the necessityfor freedom of speech and of association, because ifpublic criticism is forbidden and if men are preventedfrom acting together in political associations, then itwould be impossible to make a change in the govern-ment by the free, and more or less intelligent, choiceof the people.

This does not mean that the constitutional govern-ment of a State must recognise that there is a rightto advocate the overthrow of that constitution byforce, because force is the negation of reason. Youcannot argue safely with a man who is threatening todraw a revolver. Like all the rights which the lawgives, the liberty which a man has to express his


opinions is not an absolute one, but must be exercisedwithin reasonable bounds. It is one of the virtuesof the common law that it refuses to go to extremes;the argument that because the law has taken step Atherefore it is logical that it should also take thefurther step B has never impressed the English judges.Having spent little time in the study of metaphysics,they have not been misled by this specious argument.It is because the common-law rights of the English-man are never doctrinaire that they have suchstrength and vitality. Here, again, it is obvious thatParliament could not, even if it wished to do so,abolish freedom of speech in this country. It is there-fore correct, both in fact and in theory, to say thatthis limitation is a part of constitutional law.

The fourth and final principle which is a basic partof the English constitution is the independence of thejudiciary. It would be inconceivable that Parliamentshould today regard itself as free to abolish theprinciple which has been accepted as a corner-stone offreedom ever since the Act of Settlement in 1701. Ithas been recognised as axiomatic that if the judiciarywere placed under the authority of either the legisla-tive or the executive branches of the Governmentthen the administration of the law might no longerhave that impartiality which is essential if justice is toprevail.

It is important to point out that the doctrineestablishing the independence of the judiciary does notmean that the judges themselves are absolute. They


are bound to follow the law which they administer.21

To deny that the judges are subject to the law, becausethere may be no effective sanction if they disregardit, is to misunderstand the nature of law itself. Thejudges recognise that they are bound by the law, justas the army recognises that it is bound by the law.If either group refused to obey we would, of course,have a revolution. The only difference between thetwo would be that the military revolution would bemore likely to succeed than the judicial one.

It is therefore, I believe, true to say that it is aswrong in theory as it is in fact to suggest that theBritish Constitution is a form of enlightened despotism.Those who exercise power in the name of the Stateare bound by the law, and there are certain definiteprinciples which limit the exercise of that power. Ithas been suggested that the basic principles whichI have set forth would gain greater protection if theConstitution were in written form, and if theseprinciples were set out in a separate Bill of Rightssuch as is found in the American Constitution. Idoubt whether this would prove to be of any practicaladvantage, except perhaps to the lawyers, becausethese principles will find adequate protection so longas democratic government exists, and they will

27 It is for this reason that I regard the theory of the administra-tion of justice as taught by the American realists as mis-leading. They give the impression that the judges have afreedom which, if exercised, would be the negation of law. Onthe other hand, I believe that Judge Jerome Frank has madea useful contribution in his emphasis on the fact that lawcannot be found in the written word only. It depends onrecognition, and in certain instances it may be difficult to fore-tell the course that this will take.


disappear if absolute government takes its place,whether they are written on a piece of paper or not.It is the conviction, ingrained in the average English-man by tradition and by education, that it is his moralduty to be free which is the only certain guaranteeagainst arbitrary government.

We find, therefore, that constitutional law andmoral law are closely interwoven. This constitutionallaw cannot depend on any sanction; it is founded onthe recognition, both on the part of those in powerand of those subject to the power, that there is anobligation to obey the rules which constitute theState. This sense of obligation is in great part amoral one, and any attempt to deny this fact will leadus to a misunderstanding of history. It is becausethis sense of obligation is founded in part on the morallaw that revolutions when they come are frequentlyan expression of a clash of moral ideas. This is truein particular of the history of Great Britain and ofthose nations which have sprung from her, for ourrevolutions have been fought on questions of principle.The constitution as it exists today is more firmlybased than ever in the past, for the rules in whichthat constitution is expressed are in accord, on allsubstantial points, with the moral law as recognisedby the people of this country.

ADMINISTBATIVE LAW

Perhaps no subject has been more controversial inrecent years than has administrative law. So much

Administrative Law 63

has been written on this topic that one feels that evena brief reference to it requires an apology.28

There are some authorities who regard the phrase" administrative law " as a misnomer. They arguethat regulations which are issued by Ministers andwhich are thereafter enforced by administrativetribunals lack the nature of law. There can be nolaw, they say, unless it is enforced by the judges.This was the theme of Lord Hewart's often-quotedbook The New Despotism.29 I do not agree with thisview because it is in direct conflict with my inter-pretation of law. If law consists of rules which arerecognised as obligatory, then there can be no groundon which the character of law can be denied to thoserules which are recognised as obligatory by adminis-trative tribunals. There is no magic in the fact thatone tribunal is called judicial and another administra-tive, provided that both of them are governed byobligatory rules. The distinction between them liesin the fact that far more discretion is usually givento the administrative tribunal than is given to a courtof law. From my personal experience I know that anadministrative tribunal has little difficulty in dis-tinguishing between those of its decisions which aremade under the law, viz., in accordance with fixedrules, and those which are based on its discretionarypowers. This distinction, which is of the greatestpractical importance, cannot be adequately appre-ciated if we fail to understand the nature of law.

28 Perhaps I may refer in particular to the contributions madeby Sir Cecil Carr, Sir Carleton Allen, Sir Ivor Jennings ,Professor E . C. S. Wade , and Professor Eobson.

29 1929.

H X . G . 3 (2)


The two main criticisms of administrative law as itexists at the present time are both moral incharacter. The first concerns what may be termedthe incognisability of administrative law. It isobviously wrong that a man should be bound by rulesof whose existence he cannot know. The fact that theEmperor Caligula placed his decrees on the top of amonument, where they could not be read, has notendeared him either to the jurist or the moralist.The force of this criticism has received increasingrecognition in recent years with the result that someof the injustices to which Sir Carleton Allen calledattention in his book Law and Orders 3° are unlikelyto recur.

The second criticism of administrative law is agraver one, and one which it is more difficult to meet—it is that administrative tribunals may fail to dowhat has been called "natural justice." They mustgive the interested party a fair hearing, but it is notat all clear what constitutes fairness. Must he begiven an opportunity to see and reply to all theevidence which the tribunal has received ? On thispoint it is difficult to reconcile Arlidge's Case 31 withErrington's Case.32 The major difficulty is that nouniform method of procedure is followed by thevarious tribunals. On this point Allen has said 33:" Thus, while we now have a large number of tribunalsdeciding questions of great importance to the citizen,

3° 1945.31 Local Government Board v. Arlidge [1915] A.C. 120.32 Errington v . Minister of Health [1935] 1 K.B. 249.3 3 Law in the Making, 5th ed., p. 575.

Administrative Law 65

there is no consistency in the procedure by which theywork; and some of them, like the Furnished RentsTribunals, seem to have no denned procedure at all."The remedy that has been suggested for this unsatis-factory state of affairs is the creation of some appellatesystem not unlike that in force in France as part ofthe droit administratif. There may be objections tothe particular schemes that have been advanced, butsooner or later some procedure along these lines willhave to be adopted, because it can be satisfactoryneither from the moral nor the legal standpoint thatthere should be a considerable number of persons whofeel that they have been denied under the laws of thecountry what they regard as natural justice. If aphilosopher attempts to explain to them that there isno such thing as natural justice their reply will beuncomplimentary.

INTERNATIONAL LAW

In English constitutional law we find a legal systemwhich is in accord with and firmly based on morallaw. When we turn to international law we find anillustration of the truth that a legal system, howevercomplete in theory, may be totally ineffective if thereis no recognised moral law which will give it adequatesupport. It has been said that international law isweak because there is no sovereign body to commandit, and it is also argued that it is the absence ofadequate legal machinery which has prevented thedevelopment of this law. I do not believe that there is


any truth in either of these arguments.34 The weaknessof international law is due to the absence of an inter-national moral sense. In regard to constitutional lawwe find in this country an overwhelming convictionthat the rules of the Constitution must be obeyed: onthe other hand, in regard to international law, we tendto find a general belief in most countries that thereis no serious obligation to obey those rules if they arein conflict with the national interest.

As a result there are many thoughtful men who holdthat there is in fact no such thing as internationallaw. Perhaps the most extraordinary example of thiscan be found in the statement made by Sir ThomasHolland 35:

" Convenient therefore as is on many accounts thephrase ' International Law,' to express those rules ofconduct in accordance with which, either in conse-quence of their express consent, or in pursuanceof the usage of the civilised world, nations areexpected to act, it is impossible to regard theserules as being in reality anything more than themoral code of nations."

It is difficult to believe that the author of this state-ment was the Chichele Professor of International Lawin the University of Oxford, and President of theInstitut de Droit International. It must be rare,indeed, to find a professor who alleges that thesubject which he purports to profess does not exist.

3 4 I have discussed these in Transactions of the Grotius Society(1936) xxii, 33.

3 5 Jurisprudence, 13th ed., p. 135.

International Law 67

Holland was forced to reach this conclusion because,being an Austinian, he defined law as a command. Inthe international community of States there obviouslyis no sovereign authority which can give commandsto the free and independent States, and there is nosanction if they arbitrarily break the rules which theinternational community is supposed to recognise asobligatory.36 The result of this view is that what isuniversally called international law is nothing morethan convention, supported in part by custom and inpart by agreement. If this were merely a matter ofnomenclature it would not be of great importance,although the Emperor Augustus was right when hesaid that men are frequently ruled by words, but thedisbelief in the existence of international law maydestroy not only its efficacy but its very existence,because if it lacks legal validity then there is littlereason why a State should obey it when it is to itsadvantage not to do so. The views expressed bymany German legal philosophers that internationallaw was purely consensual in character and had nobinding force on the nations of the world, undoubtedly

36 Professor Oppenheim purported to find a sanction in the so-called right of self-help. Similarly, Professor Kelsen finds itin war and reprisals. A sanction which gives Holland theright of self-help against Germany seems to be more formalthan realistic. On this point Allen has said (Law in theMaking, p. 55): "History does not tell us of any society inwhich self-help has been a legal sanction in and of itself—that is, without reference to some higher authority, whichultimately will reinforce the individual's own means of redress.Indeed, a society in which self-help was the sole ' legal' sanc-tion would not be a society in any recognisable sense of theterm, but merely an animal condition of anarchy."


encouraged the rulers of that country in theirdisregard of its provisions.37

Fortunately for international law in this country,the force interpretations of law have never achievedgeneral acceptance here. The English courts have formany centuries held that international law is anobligatory body of rules which the members of thesociety of nations must recognise. This does notmean that the English courts have the power underthe Constitution to disregard an English statute whichthey may hold is in conflict with international law,but, in the absence of such overriding authority, theyhave held that international law must be recognisedby them and that it therefore forms a part of Englishlaw. In 1775 in Barbuit's Case,3* Lord ChancellorTalbot said: "The law of nations in its fullest extentis and forms part of the law of England." In ChungChi Cheung v. The King,39 the famous piracy case,Lord Atkin, in delivering the judgment of the PrivyCouncil, said: " The courts acknowledge the existenceof a body of rules which nations accept among them-selves. On any judicial issue they seek to ascertainwhat the relevant rule is, and, having found it, theywill treat it as incorporated into the domestic law."It would be possible to continue almost indefinitelythe quotations from judgments in which the courts

37 Cf. Brierly, p. 54: "Mos t of these [German] writers admitthat a self-imposed limitation is no limitation at all; andthey conclude, therefore, that so-called international law isnothing but ' external public l a w ' (dusseres Staatsrecht),binding the State only because, and only so long as, itconsents to be bound."

3<> Cas.t.Talbot 281.3 8 [1939] A.C. 160.


have recognised that international law consists in arecognised body of rules which has been incorporatedinto English law. This doctrine is based on the viewthat these rules have been recognised and are acceptedas being obligatory.

Why have these rules of international law beenrecognised as obligatory even though obedience tothem by the various nations has at best been onlyspasmodic ? Before the seventeenth century they wereregarded as part of the law of God which reasonablemen could discover in the basic principles of theChristian religion. Perhaps the noblest expression ofthis view can be found in the books of the greatSpanish Catholic jurists Vitoria and Suarez. Thisreligious law of nature and of nations became, how-ever, less effective in the seventeenth century with thebreak between the Catholic and the ProtestantChurches. A new foundation had to be establishedwhich could be accepted by those who held conflictingreligious views, and it was found by Grotius in a lawof nature based on pure reason. This law wasregarded as so fundamental that it was binding evenon God himself. On this law of nature the rules ofinternational law were based. Treaties were bindingbecause it was a law of nature that promises must bekept: pacta sunt servanda was the rock on which allagreements were founded. Cruelty to the civilianpopulation was illegal because it was against reasonthat innocent persons should be killed or tortured.International law was obligatory because all reason-able men must recognise that it received its validityfrom eternal moral principles. It was not, however,

70 Constitutional, Administrative, International Law '

completely coincident with the moral law because one :of its necessary elements consisted in general recog-nition by the civilised States of the world. This jconcept of international law was summarised by Lord 1Mansfield in these words 40: " The law of nations isfounded on justice, equity, convenience, and the ?reason of the thing, and confirmed by long usage." I

I believe that international law today is still based, .in Professor Brierly's words,41 on " the moral founda- ;tion which is essential to the vitality of all legal '.'obligation," but the difficulty is that the people of theworld do not sufficiently recognise the nature of this '•moral foundation. In the case of the rules which ;,prohibit the murder of prisoners of war and of the r

civilian population this foundation is obvious, but iwhat have morals to do, it may be asked, with the ;more technical rules of international law? Theanswer is, I believe, that we can never be freed from '"the scourge of war until we establish a strong inter-national community, and that that community cannotbe strong until we recognise that no society can existif its rules are disregarded. If each State is regardedas unbound by any duties to the others, then therecan be little hope for any advance in our civilisation. iWe must then live in a Hobbesian world in which jeach nation is the natural enemy of its neighbours,and aggressive war, instead of being the greatest ofall crimes, is merely regarded as an instrument ofpolicy. If we are to avoid this result we mustrecognise that there is a community of nations bound ,

40 Cited by Pollock, Essays in the Law, p. 64.*i p. 45.


together by definite rules, and that there is a moralobligation to obey them because if they are dis-regarded then the international society will collapse.

International law, like every other legal system,depends therefore on recognition. The weakness ofinternational law at the present time is not due to theinadequacy of its rules or to the incompetence of theinternational lawyers. It is due to a moral weaknessin the world itself. Until the nations of the world paymore than lip service to these rules, and as long asthey are prepared to break them whenever it is totheir immediate advantage, these rules will continueto be feeble and ineffective. I think that it can be amatter for just pride in this country that when westudy the history of international law it is clear thatno other nation in the world has been more ready torecognise and to obey the authority of these rules thanhas Great Britain, although no one could claim thatthere have not been occasions when even this countryhas violated them. By and large, however, obediencehas been the rule, not because of the fear of anysanction, but because of the conviction that there wasa moral duty to obey. It is therefore, I believe, trueto say that the relationship between international lawand the moral law is the foundation on which inter-national law, as recognised by the English courts, isbased.

CRIMINAL LAW, TORTSAND CONTRACT

CRIMINAL LAW, TORTS ANDCONTRACT

BEFORE discussing the influence of moral law on theparticular branches of English law, I must say a fewwords concerning the points of contact between thecivil and the moral law. Professor Roscoe Pound hasdealt with this question in such detail in his essayLaw and Morals,1 that it is not necessary for me todiscuss it here at any length. It is, however,important to distinguish the different occasions onwhich this relationship is particularly marked.

The first, and most obvious, point of contactbetween the civil and moral law is when the civil lawis being made. The legislator who is concerned withsome new statute will, in many cases, take into con-sideration the moral law both because he feels that hehimself is bound by the moral law, and also because,as a practical politician, he must realise that a statutewhich conflicts with the moral law, as recognised bythe people of this country, will find it difficult tosurvive. There are, of course, large parts of the civillaw in which no moral question arises because theproblem is purely a practical one. The Wills Act,1837, is an obvious instance. There can be no moralquestion in regard to the provision that a will must besigned by the testator in the presence of two witnesseswho must each sign in each other's presence. The

1 1924, Oxford University Press.

75

76 Criminal Law, Torts and Contract

question here whether one, two or three witnessesshould be required is clearly a practical one. On theother hand, the various provisions of the law con-cerning inheritance are largely concerned with moralquestions. There is first of all the question whetherproperty ought to be inheritable at all. Then thereis the question whether the present holder of propertyought to be entitled to say what is to be its destinationafter his death; thus it has been argued that theEnglish law, which gives almost complete power to thetestator, is in conflict with morality because it allowsthe dead hand to govern the living. Again thequestion whether a father should be entitled arbitrarilyto disinherit his children is in large part a moral one.The influence of the moral law on legislation is, how-ever, so self-evident that it is unnecessary to elaboratethe point here.

Law-making is not, however, limited to the legisla-ture. Today we all recognise that the judges havecertain law-making powers, and that this is inevitable,however detailed a code or a statute on the subjectmay be. No legislator is ever omniscient. The law-making powers of the judges are, however, morerestricted than are those of the legislature because, asMr. Justice Holmes has said,2 they can only legislate" interstitially." A judge obviously cannot disregarda statute, however much he may regard it as being inconflict with contemporary morals. He can, however,interpret it strictly so that its effect is as limited aspossible. One illustration of this is the famous or

2 Southern Pacific Co. v. Jensen, 244 U.S. 205, 221.

Criminal Law, Torts and Contract 77

infamous Statute of Frauds,3 which has been judiciallydescribed as a statute for frauds. The judges have,whenever possible, restricted its scope. Similarly theSunday Observance Act4 is in many ways obsoletetoday and in conflict with the general moral standardsof the country, but here again the judges are not freeto disregard it.

English judges are also restricted by the rule that ajudge is bound by a precedent if it is directly in point.The English doctrine is stricter than that followed inmost other countries because it is based on the bindingnature of a single case.5 The question whether theEnglish doctrine is a desirable one has given rise inrecent years to a considerable literature. Like mostother difficult problems, it represents in part a conflictbetween opposing moral ideas. Those in favour ofthe strict doctrine base it on the desire for certaintyin the law.6 Apart from its practical advantages, this

3 1677, 29 Car. 2, c. iii. Of this statute Sir William Holdsworth(History of English Law, Vol. VI, p. 396) has said: "Theprevailing feeling both in the legal and the commercial worldis, and has for a long time been, that these clauses haveoutlived their usefulness, and are quite out of place amid thechanged legal and commercial conditions of today." Cf. notein (1927) 43 L.Q.E. 1.

* 1677, 29 Car. 2, c. 7, s. 1.5 This is discussed at length in my Precedent in English and

Continental Law. 1934. Stevens & Sons, Ltd. Perhaps thebest presentation of the various aspects of this difficult problemcan be found in Professor Paton's Jurisprudence, 2nd ed.,1951, s. 44.

6 In his Presidential Address to the Holdsworth Club on TheLimits of Precedent (1943) Viscount Simon said: "To thosewho find it astonishing that the House of Lords, sittingjudicially, should reaffirm a proposition of law that laterargument might show to be wrong, there are two answers.First, when the House of Lords has once laid down theproposition, it is no longer wrong: it is the law and everybody


certainty expresses the moral view that men should beable to plan their acts with a clear understandingconcerning their legal consequences. If these areuncertain then men may be held liable withoutsufficient warning. Again certainty in precedents mayguarantee equality, which is a moral concept, for ifA's case is decided in one way today it is right thatB's case, based on similar facts, should be decided inthe same way tomorrow. No one will dispute theforce of these arguments, but perhaps certainty canbe bought at too high a price. There is not much tobe said, as Lord Wright has expressed it,7 for thecertainty of injustice. There is little danger that aless strict rule would lead to revolutionary measuresbecause the law by its very nature tends to be con-servative. It can, therefore, be argued that judgesought not to be forced to follow a precedent when itis clear that the moral law to which it originally gaveexpression has fundamentally changed.8 It may be

should proceed on that footing. And secondly, the cure forthese difficulties, if cure is needed, ia by legislation whichamends the decision by putting a different statutory provisionin its place." Perhaps it may be suggested that although ajudgment delivered by the House of Lords cannot be wrong,nevertheless it may be highly inconvenient, especially if thesocial and economic conditions have altered in the interveningyears. Nor is it easy to alter the law by legislation becausethe Parliamentary programme is always overcrowded.

? (1943) 8 Camb.L.J. 118; (1950) 13 Mod.L.E. 23.8 The greatest of English legal historians, Frederick Maitland,

has said (Collected Papers iii, 486-7):"For myself, I happen to think that legal history is a

fascinating matter for study. It is pleasant, and I evenbelieve that it is profitable, to trace the origins of legalrules in the social and economic conditions of a bygone age.But anyone who really possesses what has been called thehistoric sense must, so it seems to me, dislike to see a rule


said, however, that the bark of the English doctrineis worse than its bite, because when the judges areconvinced that a precedent ought not to be followedthen they frequently succeed in " distinguishing " itout of existence.

With these limitations in mind, it is clear that thejudges do make law in three ways. The first is whenthere is no existing law on the subject. Perhaps thebest illustration of this can be found in the lawrelating to aeroplanes. Before it was possible to enactany statutes on this subject, it was necessary,especially in the United States, for the courts to con-sider the nature of the liability incurred by a manwhose plane had been involved in an accident. Oughthe to be held strictly liable for all damage on thebasis that he had created a peculiar risk, or oughtthis liability be limited to negligence on his part ?It is clear that in deciding such a question the judgeswould be influenced by their views concerning moralresponsibility, i.e., to what extent is it right that oneman may place the risk of harmful consequencesarising from his acts on another ? These cases of" first impression " are, however, comparatively rare,and there are even some authorities who deny thatthey can ever arise, on the ground that there is alwayssome general principle under which they can besubsumed.

or an idea unfitly surviving in a changed environment. Ananachronism should offend not only his reason, but histaste."

In his lecture on The Work of the Court of Appeal Sir Eay-mond Evershed, Master of the Bolls, cited this passage.


The second and far more frequent instance ofjudicial law-making arises when there is a choicebetween conflicting laws, or between conflictingprecedents. They may be said to be conflicting in thesense that each is equally applicable to the circum-stances under consideration. In making such a choicethe judge may be influenced by moral considerations.9

This may be a difficult problem because a judge mustalways remember that in making his choice he isestablishing a precedent for the future, and that whatmay be moral in the peculiar circumstances of the casehe is considering may turn out to have an oppositeresult in other cases.

The third method of judicial law-making is found inthe interpretation of statutes. This has become a matterof increasing concern at the present time becauseof the flood of legislation, especially of delegatedlegislation called statutory instruments. The conflictbetween the grammatical method of interpretation andwhat has been described as the liberal method is toowell known to need elaboration here. To whichevermethod the judge may pay lip service, I think that itis clear that he will almost inevitably be influenced bymoral considerations in his interpretation, because, ifgiven a choice, it is unlikely that a judge will choosean interpretation which he thinks will lead to anundesirable result. There is always the presumptionthat Parliament, and even Ministers, have intended toact in a reasonable manner. The judge may rely on

9 The nature of this choice was discussed by Judge Cardozo inThe Nature of the Judicial Process, 1921, and The Growth ofthe Law, 1923.


the literal interpretation when he desires one result,and on the liberal approach when he desires another.

It is therefore correct to say that in all the threemethods of law-making which I have outlined thejudges may be influenced by the moral law. But whatmoral law are we talking about here ? Is it the morallaw as seen by the judge himself, or the moral law asit is regarded by the community in general ? I donot think that it is possible to give a clear-cut answer.In certain cases the judges have undoubtedly accepteda standard of morality which is above the generalaverage. An example of this can be found in the lawrelating to the duties of a trustee, which have becomeso strict that it has been found necessary to give thetrustee some protection by legislation.10 On the otherhand, it is clear that a judge who is a convinced pro-hibitionist will not attempt to translate his moralviews into law. What can be said with confidence isthat the English judges have rarely attempted to dealwith this problem on general philosophical grounds;thus, when we turn to the law of tort we shall see thatthey have never established any general theory suchas "no liability without fault." Professor Winfieldhas summed up his researches on this point in thesewords u :

" There is not the faintest trace in current Englishcase law of any attempt on the part of the judgesto make the law conform to any ideal ethicalstandard. Where there is any scope for the

10 Trustee Act, 1925.11 Essays on Tort, 1953, p. 285.


application of morals to the law, what they do applyis the practical morality which is prevalent for thetime being in the community."

Turning from judicial legislation we find that thethird point of contact between law and morals isfound in the application of certain legal terms whichcontain in themselves a moral element. The mostimportant of these in English law is the term " reason-able." The reasonable man, as we all know, is thehero of the English law. It is he who furnishes theyard stick by which the conduct of the ordinary manmust, in many instances, be measured. But thereasonable man is not only the prudent and sensibleman, he is also the moral man. It is reasonable forhim to act in accord with the proper moral standards,and so his actions are both controlled by morals andcan be used as a test for morals. There are, asProfessor Winfield has pointed out,12 other legal termssuch as "fair ," "malice," and " jus t ," which con-note moral ideas, but they are less important thanthe basic idea of reasonableness. In the past theapplication of these standards was left in large part tothe jury in civil cases, but with the virtual dis-appearance of the jury these standards must now beapplied by the judges who try the cases. It will beinteresting to see whether this will have any effect inaltering the standards themselves.

Finally, we find a contact between law and moralsin those parts of the administration of justice wherethe judge acts partly according to law and partly

12 Ibid., p. 278.


according to discretion. All discretionary remediescome under this heading. The judge must exercise,not an arbitrary, but an informed discretion, and indoing so he may turn to moral rules as a guide. Thismay be illustrated by the case in which specific per-formance of a contract may be granted or refused.Although the contract may be a perfectly valid one,enforceable at common law, the court may refuse sucha decree if it reaches the conclusion that it would beunjust to do so on the ground that the promiseehad taken an unfair advantage of the promisor. Thebest illustration of judicial discretion is found, how-ever, in the criminal law. • Two centuries ago manysentences were fixed rigidly by the law with the resultthat the judge had little discretion in this field.Today, with the exception of treason and murder,there are no automatic sentences, and in the case ofmanslaughter the scale of punishment may run fromlife imprisonment to a small fine. What moral con-siderations will affect a judge in determining thenature and degree of the punishment to be awardedcan be conveniently discussed as a part of criminallaw which I shall now consider.

CRIMINAL LAW

When we turn to the criminal law, we find that thedanger is not that we may underrate the influence ofthe moral law, but that we may exaggerate it.Because criminal law in its more severe aspect punisheswhat are generally regarded as wicked acts, we areinclined to think that the criminal law is " morality


with teeth in i t ," and that its primary purpose mustbe to make men good. Any attempts to definecriminal law in terms of morality have, however,failed because even such a crime as treason may notbe morally wrong, and the vast majority of minoroffences are unrelated to moral fault. A crime canonly be defined as an act which is punished by theState.13 What acts will be so prohibited is a questionof public policy. In early law the criminal law isconcerned primarily with the maintenance of physicalpeace and order: this is inevitable for the minimumpurposes of the State are directed to this end. There-fore, it is obvious that such acts as treason, murder,robbery and rape will be regarded as criminal.14 Asthe purposes of the State begin to extend so will itscriminal law, especially when these purposes aredirected to the well-being of its individual members.Thus acts, such as, for example, the sale of defectivefood, may today have criminal liability attached tothem although, in the past, they constituted only civilwrongs. In most instances, however, the law will becontent to allow the individual to protect his owninterests by means of the civil law. Thus a breach ofcontract, however reprehensible it may be from themoral standpoint, will not, as a general rule, entailcriminal liability, but in special cases, where a breachof contract may affect the good order of the com-munity as a whole, as, for example, the breach of a

13 C. S. Kenny, Outlines of Criminal Law, 15th ed., p. 20.14 It is not necessary for me to discuss here the disputed question

whether in early law the law of torts preceded the criminallaw. In all legal systems that have attained any degree ofmaturity these acts are regarded as crimes.

Criminal Law 85

contract of service in an essential public service,15 thelaw may regard this as a criminal offence. It is stillthe protection of the public welfare, rather than thesupport of private interests, which is the dominantpurpose of this branch of the law.

The mistaken emphasis placed on the moral law inrelation to crime is due in part to the maxim which,as Professor Kenny 16 has pointed out, has beenfamiliar to English lawyers for nearly eight hundredyears: " actus non facit reum nisi mens sit rea."This is misleading because mens rea is usually dennedas a wicked mind, thus implying that the law is hereconcerned with the moral guilt of the wrongdoer.This, however, is a misinterpretation because in mostcrimes mens rea means nothing more than that theperson has intentionally done the prohibited act, andthat he must realise that certain consequences arelikely to follow from his conduct. Thus, a motherwho kills her child to save it from a lifetime of inevit-able suffering may be acting from what she regards asthe highest moral motive, but her act is intentionaland therefore criminal in the eyes of the law. The lawis concerned solely with the fact that an act, which ithas denned as criminal, has been committed: it is onlyin the matter of punishment that, as a general rule,moral guilt or innocence becomes relevant.

The misinterpretation of mens rea as a consciouslywicked mind has led to what I regard as an unfor-tunate attitude in regard to what may be termed

15 Conspiracy and Protection of Property Act, 1875, s. 4. Thisprovision has been amended from time to time.

16 p. 40.


crimes of negligence and crimes of absolute liability.It has been suggested that manslaughter, where thekilling has been caused inadvertently, and lessercrimes of negligence involving personal injury, oughtto be regarded as exceptional because the wrong-doer has not intended the consequences of his act.The law, however, is not concerned to make ananalysis of the degree of moral guilt of the person whohas acted negligently: it is seeking to prevent injuriesto innocent third persons, and if it can only do soeffectively by making harmful acts criminal thenthere can be no reason why it should not take thisnecessary step.

At first sight there seems to be greater difficultyin justifying crimes based on vicarious liability. Asa general rule it must seem unreasonable to punish aman for an act, committed without his help orauthorisation, by another. Here the criminal lawseems to be not coincident with but in conflict withthe moral law. The answer is that the criminal lawis not in such a case concerned with moral guilt, butis seeking to enforce the maximum degree of care onthe part of the person in authority. Various pro-visions of the Factory Acts, the Mines Acts, theLicensing Acts, and others of a like nature areillustrations of this. During the recent war theprovisions concerning rationing and price controloffences were almost all of an absolute character,because they could not have been enforced if themens rea of the offenders had been a necessaryelement in the commission of the offence. It was theabsolute duty of the shopkeeper to see that the law

Criminal Law 87

was obeyed, and if he failed to do so he was heldcriminally responsible.

The relation between the criminal law and the morallaw becomes a peculiarly difficult one when we considerthe criminal liability of those who are mentally defec-tive. If we could draw a clear line between weaknessof character and weakness of intellect, as our ancestorsthought was possible, the problem would not beinsoluble, but unfortunately we cannot take thatcourse. The law has, I think, reached the onlypossible conclusion that in determining the criminalguilt of a person the only relevant question is whetherhe knew the nature of his act, and had the necessarymens rea, where this is required by the law. If anact is criminal only when the actor knows that it isunlawful, then this knowledge must be shown. Thus,in a murder case to establish the crime the onlyquestion is whether the actor knows the true natureof the act he is doing, and knows that it is morallyor legally wrong. Whether he should be punished forcommitting this crime is an entirely different problem.Similarly, some women are driven by an irresistibleimpulse to steal things which are of no possible useto them so that it is clear that they are actingunder a mental defect. They are found guilty ofhaving committed the crime, but are then givenmental treatment which not infrequently proveseffective. It would obviously be unreasonable topunish them for an act which they could not helpdoing; but this does not mean that the law should notfind them guilty of having done it. If the law wereto attempt to draw a distinction between an irresistible


impulse and one which had not been resisted it wouldfind itself involved in a hopeless series of medical andpsychological problems. Guilt can usually be deter-mined without much difficulty, and the courts are wellqualified to do this; on the other hand, moralresponsibility may be an indefinite concept which isa matter of impression rather than of proof. Thus,in a shop-lifting case, the question whether the womanknowingly took the goods is a question of fact whichcan be proved by evidence in court: on the otherhand, the question whether she should be regarded asfully responsible, and therefore subject to punishment,or, to take the other extreme, as a moral defectiveowing to mental causes, and therefore subject tomedical treatment, is one which, at the present time,may give rise in many cases to a difference in medicalopinion, and which may depend for its answer onprolonged and not always conclusive tests. Todaythese two entirely different questions concerning guiltand responsibility tend to be dealt with as if theyconstituted a single one, with the result that confusionis introduced. This is due in large part to the factthat it is usually in murder cases that the questionof insanity is raised.

I believe that this confusion will continue until thelaw ceases to provide that anyone convicted of murdermust be sentenced to be hanged.1T The much criticisedMcNaghten Rules,1S when applied to murder cases,

17 Ealph Partridge, Broadmoor, 1953, discusses the distinctionbetween legal and medical insanity in a clear and forcefulmanner.

« R. v. McNaghten (1843) 10 Cl. & P. 200.

Criminal Law 89

seem to many people to be unreasonable, because theyjustifiably feel that it is morally wrong to hang a manwho has acted under an irresistible impulse. Thisunreasonableness disappears to a great extent inpractice, because in such a case the Home Secretarymay recommend a reprieve, but no jury is evercertain that this will happen. In other words, it isthe death sentence, and not the McNaghten Rules,which brings the law of insanity in murder cases intoconflict with the moral law in many instances. It is,I believe, right that the only questions which a juryshould be asked are (1) did the prisoner commit theact, (2) did he know the' nature of the act he wascommitting, and (3) did mental disease prevent himfrom knowing that what he was doing was legally ormorally wrong ? What causes the difficulty is that theanswers to these questions (affirmative to the firsttwo and negative to the third) should lead to theautomatic imposition of the death penalty. If thedeath penalty were abolished the various problemsrelating to legal insanity would, in large part, dis-appear also, just as they have in the case of othercrimes. In saying this I am not arguing that it maynot be necessary for other reasons to retain the deathpenalty, although I am not convinced that it is, butit is important that we should realise that part ofthe price we pay for the death penalty is inevitableconfusion in the law relating to the legal responsibilityof those who have a disease of the mind. As long asa man's life may depend on the thin and uncertainline drawn between sanity and insanity it will be


impossible to administer the law in a fair and dis-passionate manner. Juries will continue to findinsanity in cases in which the prisoner clearly knewthe nature of his or her act and knew that it waswrong—the crime of infanticide 19 had to be intro-duced to deal with some of these cases—if they feelthat the death penalty is inappropriate, and in othercases, where their emotions are roused, the prisonerwill be found sane, although from the medical stand-point he is undoubtedly suffering from a grave mentaldisease. 20 This introduces an element of uncertaintyinto the law which helps to make many murder trialsexciting sporting events for the general public. Whenthe death penalty was temporarily suspended, murdertrials disappeared from the front pages of the news-papers.

In no part of the criminal law is it more importantto understand the correct relationship between Statelaw and moral law than it is in regard to punishment.If the purposes of the criminal law were to make menmorally good and to punish sin then we should haveto frame our theory of punishment with these ends inview, but if we remember that the primary purposeof the criminal law is the protection of the publicwelfare then we can use this as a touchstone indiscussing this difficult problem. But even if we keep

19 The Infanticide Act, 1922.20 The notorious Bonald True case in 1922 is an illustration of

this . H i s family knew that he had gone mad and had aprivate detective searching for him to get him certified when hemurdered an unfortunate girl. The jury duly brought in averdict of guilty, but he was reprieved.

Criminal Law 91

this purpose of the criminal law in mind there still willbe moral questions for us to consider.

The aims of punishment have been classified aspreventive, reformative, retributive and deterrent.21

The first two give rise to few moral problems as it isobvious that it is in accord with the moral law toprevent a man from committing a crime and to reformhim if he has done so. In preventive punishment,which is, in fact, a misnomer, because the preventionis used not as a punishment for a crime that has beencommitted but as a physical method by which thecommission of another crime can be stopped, the mainproblem is one of degree. ' If a man has committedthree or four larcenies it is highly probable that hewill continue to do so again if he is left at liberty.Is it right in these circumstances for the State todeprive him permanently of liberty so as to protectthe public welfare ? The answer will depend in parton a balance between the amount of danger to thepublic and of suffering for the individual. On theother hand, in the case of reformative punishmentthe primary question is one concerning its efficacy. Itmust always be the hope of any rational penalsystem that those who are subject to it will in thefuture be deflected from their criminal ways. Inrecent years remarkable advances have been madealong these lines, especially in the training of thejuvenile wrongdoer, but no one, except a few

21 Cf. Paton, Jurisprudence, pp. 287-305. See also J. Michaeland M. J. Adler, Crime Law and Social Science, 1933, andA. C. Ewing, The Morality of Punishment, 1929.


enthusiasts, will be prepared to argue that reforma-tion can by itself solve the problem of crime andpunishment.

It is when we turn to retributive punishment thatwe find our most difficult moral problem. On thissubject the greatest of German philosophers,Immanuel Kant, has said 22: " The penal law is acategorical imperative; and woe to him who creepsthrough the serpentine windings of utilitarianism todiscover some consideration which, by its promise oradvantage, should free the criminal from the penalty,or even from any degree thereof." This " categoricalimperative " has never made much impression uponthe English law. Nor has the view that the essentialequality of crime and punishment must always beestablished.23 Unfortunately, these exaggerated doc-trinaire statements have led to a reaction, with theresult that it has become the generally accepted viewthat retributive punishment can never be justified.Retribution and revenge are regarded as synonymous.It must be remembered, however, that criminal lawdoes not function in a vacuum, and that it cannotignore the human beings with whom it has to deal.There seems to be an instinctive feeling in mostordinary men that a person who has done an injury toothers should be punished for it. As civilisationdevelops this feeling is limited to intentional or negli-gent injuries, but the principle remains the same. Ithas, therefore, been pointed out that if the criminallaw refuses to recognise retributive punishment then

2 3 Kant, The Science of Right, Part 2, Sect. 49, B.23 Hegel, Philosophy of Bight, SB. 97-104.

Criminal Law 93

there is a danger that people will take the law intotheir own hands. A far greater danger, to my mind,is that without a sense of retribution we may lose oursense of wrong. Retribution in punishment is anexpression of the community's disapproval of crime,and if this retribution is not given recognition thenthe disapproval may also disappear. A communitywhich is too ready to forgive the wrongdoer may endby condoning the crime.

Finally, there is the deterrent purpose of punish-ment which is, to my mind, by far its most importantfunction, because without it criminal law would losemost of its effectiveness. The criminal law deters menfrom committing acts of which the State disapprovesby threatening them with an adequate punishment.24

In most instances this threat is sufficient to secure theobedience of those who might otherwise be preparedto break the law. This is deterrence, pure and simple,which takes effect before a wrong has been done. Itis a warning to all men of what will happen to themif they break the law.

It is more usual, however, to speak of deterrenceafter a crime has been committed. This may take twoforms. The first is the deterrence which will keep thewrongdoer from again committing a crime. It isclosely related to the reformatory purpose of punish-ment which is aimed at such an improvement in hischaracter that he will not break the law again because

24 It is here that the force, command, and sanction theories oflaw become realistic. It is for this reason that those whosupport theBe theories take their illustrations from the criminallaw.


he recognises that it is wrong: in the case of deter-rence he will not break the law again because herecognises that it may be painful for him to do so.The second and much more important form ofdeterrence is the deterrence of others because of thepunishment meted out to the wrongdoer. I t is herethat we come to the difficult moral problem. Thosewho object to this form of deterrence argue that it cannever be right to punish one man so as to set anexample to others. The answer to this is that thewrongdoer is always an example to others when he isbrought into court, whether he is treated firmly orleniently. If he is treated too leniently it is an illus-tration to others that the criminal law need not beobeyed. The person who has broken the law has,whether he is conscious of it or not, set an examplefor others, and it is therefore not unjust to him if thelaw seeks to prove that crime does not pay.

THE LAW OF TORTS

The fact that this branch of the law is entitled tort,which is the French word for wrong, shows howclearly it is connected with moral ideas, but here againwe must not exaggerate the relationship. In hisclassic work, The Common Law, Mr. Justice Holmeshas said 25:

" Be the exceptions more or less numerous, thegeneral purpose of the law of torts is to secure aman indemnity against certain forms of harm toperson, reputation, or estate, at the hands of his

25 p. 144.

The Law of Torts 95

neighbours, not because they are wrong, but becausethey are harms."

He concluded that the law of tort was a compromisebetween " the reasonable freedom of others with theprotection of the individual from injury."

The idea of reasonable freedom involves, however,a moral concept, for it is not reasonable to act in animmoral way. Perhaps this has been stated in itsmost striking form by Lord Atkin in Donoghue v.Stevenson 26: " the rule that you are to love yourneighbour becomes in law, you must not injure yourneighbour; and the lawyer's question: ' Who is myneighbour?' receives a restricted reply."

How restricted this reply is in the modern law isopen to debate. There are those who think that inrecent years the law of tort has been extended to adangerous degree,27 while there are others who believethat it is too restricted to meet in a satisfactorymanner the changing conditions of the present day.28

It would, of course, be possible to say that a manought to pay for any injury caused by his act.Whether this was the conclusion reached in earlyEnglish law has been strenuously debated, but theanswer is still a doubtful one.29 Perhaps the truth isthat early law did not have a clear theory on thissubject, just as the law today cannot be explained ona single principle. We find that the law as we know

26 [1932] A.C. 562, 580.2 7 Gf. Mr. P . A. L a n d o n , the editor of Pollock on Torts.2 8 Gf. Professor W . P r i e d m a n n : Law and Social Change in

Contemporary Britain, 1951, pp . 73 et seq.2 9 Winfield discussed this question in his article " The Myth of

Absolute L i a b i l i t y , " (1926) 42 L . Q . B . 37.

HX.Q. 4 (2)


it is almost equally divided between torts of strictresponsibility and those where liability arises onlyif there is a particular mental element involved. Ithas been frequently said that the modern tendency isto emphasise the doctrine of " no liability withoutfault," but so great a common lawyer as Sir FrederickPollock suggested that this was an American ratherthan an English interpretation. He said 30: " As anEnglish lawyer, I can only say that we never heardof it here. Stated as a general proposition, it iscontrary to the whole law of trespass, to much of thelaw of nuisance, to the whole law of defamation andto the responsibility of principals for their agents."It is not true to say that these torts of strict liabilityhave no relation to the moral law because the tort-feasor is held liable even though he intended to dono harm. In these torts the law places the risk onthe actor, and not on the person who has been injured.In all of them there is a conscious act done by theactor, so that there is nothing arbitrary in the ascrip-tion of responsibility to him. If A enters on B's landhe has committed a trespass even though he hasreasonable grounds for believing that he himself isthe owner. In certain cases this may bear hardly onA, but the law cannot make an exception for hardcases. It is in the interest of general security thatanyone who intermeddles with the property of anothershould be held responsible.

There is, however, another group of torts in whichthe actor is held liable only if he has acted in an

30 " A Plea for Historical Interpretation " (1923) 39 L.Q.E. 163,167.

The Law of Torts 97

unreasonable manner. The most important of theseis the comparatively recent tort of negligence whichdeveloped in the nineteenth century. But even herethe test of reasonableness is not a subjective one:the standard required is that of the reasonable man.It has been said 31 that the standard is that of theman on the Clapham omnibus, but this is not strictlyaccurate: it is the reasonable man on the Claphamomnibus who supplies the measure. The courts, byascribing to him a reasonableness which the ordinaryman may not exercise as a general rule, can raisethe general sense of responsibility in the community.Here again the law, instead of following slightlybehind public morality, as it is sometimes accused ofdoing, can act as a moral leader.

There is a third type of tortious responsibility inwhich the person is held responsible for the wrongfulact of another, even though he has in no way autho-rised it. The obvious illustration of this principle canbe found in the modern doctrine that a master isliable for the wrongful acts of his servant, arisingout of and in the course of his employment, eventhough the servant may be doing the act for his ownbenefit and against the interest of his employer. Thisprinciple, finally established in its full vigour by theHouse of Lords in Lloyd v. Grace, Smith fy Co.,32

has been criticised on the ground that it is unfair tohold a master liable for a wrongful act which he hasdone his best to guard against, but the answer is thatin placing the servant in a position in which he could

si Hall v. Brooklands Racing Club [1933] 1 K.B. p. 224.32 [1912] A.C. 716.


injure another he must be held to have assumed therisk.33 As he will, as a general rule, benefit fromthe servant's activity, it is morally right that heshould incur the loss if the servant commits awrongful act in these circumstances.

The same principle is applicable to what may becalled statutory negligence. Under the Factory Acts,and other statutes of a similar nature, the owner ofa factory may be under an absolute duty to see thatthe various safety regulations are carried out, and it isno defence that this duty has been delegated to acompetent person who has failed to perform it. Theowner's absolute liability is in these circumstancesanalogous to that of an insurer. He is held respon-sible, not because of his own fault, but because it isfelt that the risk should fall on him and not on theemployee. It is hardly surprising to find that thosewho support the " strict liability" doctrine andthose who favour " no liability without fault " areeach able to base their arguments on moral grounds.The truth is, that here we find, as happens so often inthe law, that there are two conflicting moral ideas,and that the choice between them depends on whatis reasonable in the particular circumstances.

Perhaps no branch of English law has been sofrequently attacked on moral grounds as has the lawof torts, and it cannot be denied that there is somebasis for this criticism. One reason for this is thatthe law has been constructed piecemeal with littleemphasis on general principles. We do not even know

33 This is true even if the servant is the husband or wife of theinjured person: Broom v. Morgan [1953] 2 W.L.E. 737.

The Law of Torts 99

whether there is a law of tort or a law of torts. Thelaw has even been reluctant to hold that all inten-tional " injuries " involve tortious liability. Thereare a considerable number of ways in which oneperson can intentionally injure another without sub-jecting himself to an action, but it would not bein the public interest to state them in detail. Threeof them are, however, so obvious that I may cite themas illustrations. A man may insult another withimpunity provided that, in doing so, he does notdefame him or tend to cause a breach of the peace.Again, there is no law against the invasion of theprivacy of another. And, finally, a man may makefalse statements of fact with impunity provided thathe is not under a special duty of care, or that he doesnot bring himself within the narrow doctrine of legalfraud. It is not possible to bring these cases undera general principle that a man must not injure anotherwithout lawful excuse, because there is no suchprinciple in English law. The second reason for thenot infrequent conflicts between the law of torts andthe moral law is that the judges have been reluctantto alter the law which has been made in the past,although the past no longer resembles the present.In no other branch of the law is it so true that theforms of action still rule us from their graves.34

Parts of the law of torts have been criticised asbeing morally inadequate, but it may be found thatin some of these instances the civil law can get noclear guidance from the moral law. We can take as3i Maitland, Forms of Action, p. 296: " The forms of action we

have buried, but they still rule us from their graves."


one example the problem concerning the duty of oneperson to help another in distress.35 This duty isclearly recognised at sea, but what would be the resultof its application on land ? If I know that my poorneighbour is starving, is it my moral duty to sharemy food with him ? Until we are clear what themoral duty is in such cases it would be difficult forthe law to attempt to deal with them. Again, the lawrelating to invitees and licensees has been criticisedon the ground that a host ought to take reasonablecare to protect his guest from injury, but, on theother hand, it has been argued that a guest ought notto expect his host to assume such a burden. Perhapsthe most difficult problem relates to the so-calledright to privacy: have I a moral right which willprevent my neighbours from discussing my privatelife ? If there is such a right where must its limitsbe drawn? In these and other instances it is not thefault of the law that the present situation is unsatis-factory : it is due to uncertainty concerning the natureand extent of the moral responsibility involved.

CONTKACT

In discussing the basic principle of the law of contractProfessor Corbin has said 36:

" That portion of the field of law that is classifiedand described as the law of contracts attempts therealisation of reasonable expectations that have beeninduced by the making of a promise. Doubtless,

35 This is discussed at some length by Professor Ames in hisarticle " Law and Morals ," 22 Harvard L . E . 97, 112.

36 Law of Contracts, 1950, vol. I , p. 2. West & Co.

Contract 101

this is not the only purpose by which men have beenmotivated in creating the law of contracts; but it isbelieved to be the main underlying purpose, andit is believed that an understanding of many ofthe existing rules, and a determination of theireffectiveness require a lively consciousness of thisunderlying purpose."

In other words, the moral basis of the law of contractis that the promisor has by his promise created areasonable expectation that it will be kept: it is notbased on the ground that he has agreed to be bound.A failure to realise this distinction has led to confusionin some cases dealing with mistake and with impos-sibility of performance.

Before I deal with the present law of contract Imust say a few words concerning its history. Themedieval law enforced covenants under seal andactions of debt, but the simple contract was notrecognised in the common law courts. This did notmean that medieval man did not attach moral weightto a promise: on the contrary, as Professor Plucknetthas said,37 " The Church very early took a strongview on the sanctity of contractual relationships,insisting that in conscience the obligation of a contractwas completely independent of writings, forms andceremonies, and tried as far as she could to translatethis moral theory into terms of law." The Churchcourts did not, however, succeed in establishing juris-diction over contracts, so that the simple contract had

?7 History of the Common Law, p. 591.


to find another origin.38 It did so in the " action ofcase." As is known to all lawyers the first step beganwith acts of misfeasance: a defendant had under-taken to do something, but had done it so badly thathe had injured the plaintiff. The next advance waswhen an action for nonfeasance was allowed, andfinally, in 1602, Slade's Case,39 by recognising thatindebitatus assumpsit would lie, established the simplecontract as we know it. It is of importance toremember that the law of contract found its origin inthe law of tort because this emphasises the fact thatcontractual liability is based on the disappointmentof the promisee's reasonable expectations. The factthat the promisor can establish that he did not intendto make the agreement on which he is being sued istherefore immaterial if he acted in such a manner asto justify the promisee's belief in the promise.

It may be asked why it took the courts so longbefore they recognised the simple contract. Perhapsone reason is that in a more or less primitive com-munity the idea of contract is of only slightimportance. It is not until commerce and industrydevelop that promises begin to play a serious part inthe economic life of the country. Formal agreementsare made by a document under seal which provesitself. A second reason for the late emergence of thesimple contract is found in the procedural difficultiesand in the methods of proof then available in thecourts.3 8 An excellent statement of the rather involved history of the

English contract can be found in Cheshire and Fifoot, TheLaw of Contract, 3rd ed., 1953.

39 4 Eep. 92b.

Contract 103

After the simple contract had been established therewas a danger that the field of liability might beextended to too great a degree. It was thereforenecessary for the courts to limit it, and this they didby the development of the doctrine of consideration.It was not every promise which was binding in law,however much it might be binding in morals: itreceived legal validity only if the promisee had givensome consideration for it. We thus get the bargaintheory of contract super-imposed on the promisetheory. It is based on the view that a person whohas received a gratuitous promise ought not to beentitled to rely on it because, having given nothingfor it, he ought not to expect anything in return.40

Lord Mansfield, at the end of the eighteenth century,having had some training in the civil law, rejected thisview, and attempted to reduce consideration merelyto a form of evidence.41 He was finally overruled bythe House of Lords in Rann v. Hughes42 in 1778,which left the law of contract as it is today. We cantherefore say that the law recognises the obligation toperform a promise for which consideration has beengiven, but that it does not extend to moral obligationsfalling outside of this limit. A promise may, ofcourse, act as an estoppel in certain circumstancesagainst the assertion of a claim which the other party

40 Lamont, Principles of Moral Judgment, p. 40, has said: " Sostrong indeed is this demand [for reciprocity] that in somelegal systems there is a bias against the notion of enforceableunilateral obligations; a promise will not generally be bindingunless it is balanced by some corresponding ' consideration.' "

« Pillans v. Van Mieroy (1765) 3 Burr. 1663.« (1778) 7 T.E. 350n.


has been led to believe has been waived,43 but thisdoes not affect the general principle concerning thenecessity for consideration.

It is of interest to note that the Law RevisionCommittee, in its Sixth Interim Report, issued in 1937,suggested that the present law did not give sufficientweight to moral obligations in two regards. It recom-mended that a promise should be held legally binding,even in the absence of consideration, if there wassufficient evidence in writing, and if it was made withthe intention that the promisee should act in relianceon it. It also recommended that a third-party bene-ficiary should be entitled to enforce a contract eventhough he himself had not given any considerationfor the promise. As I was a member of the LawRevision Committee I may say that I am still of theopinion that these recommendations were sound, inspite of some learned criticism that has been advancedagainst them.44

It has been said that the English law is too strictin holding the promisor to his promise even when anobvious mistake on his part makes it morally unfair tohold him to it. X promises Y to sell him a paintingfor £10. X and Y both think that the painting is oflittle value. Thereafter it is established that thepainting is a Rembrandt worth £20,000. UnderEnglish law the seller is bound by his promise. Thisis true, even if Y knew that the picture was aRembrandt when he accepted X's promise. This

*3 Central London Properties v. Hightrees House [1947] K.B.130.

** Cf. Cheshire and Moot, Law of Contract, 3rd ed., Part II, 6. 6.

Contract 105

conclusion may seem to be unfair to X, but it is thelegal expression of the moral law that a man mustfulfil his promise, however hard this may be on him.There is much to be said for this English view, andit is not fanciful to suggest that the law has influencedthe moral standards of the country in this regard.The phrase that " an Englishman's word is as goodas his bond " is an illustration of the generallyaccepted principle that a man must perform hispromise however disadvantageous this may be to him.

Closely analogous to this is the problem concerningimpossibility of performance. In the seventeenth andeighteenth centuries the courts, in construing acontract, were inclined to do so in a strictly literalmanner. If a man promised to do something, it washeld that he must perform his promise or paydamages, however difficult or impossible the perform-ance might prove to be. The classic case on this pointis Paradine v. Jane,45 in which the court said:

" When the party by his own contract creates aduty or charge upon himself, he is bound to make itgood, if he may, notwithstanding any accident byinevitable necessity, because he might have providedagainst it by his contract."

In recent years this strict method of construction hasbeen ameliorated, the courts being more willing toread into the contract an implied term that the obliga-tion to perform the contract is conditional upon itscontinued possibility. This was stated by Lord

« (1647) Aleyn 26.


Loreburn in Tamplin S.S. Co. v. Anglo-Mexican Co.46

in these words:

" A court can and ought to examine the contractand the circumstances in which it was made, not,of course, to vary, but only to explain it, in orderto see whether or not from the nature of it theparties must have made their bargain on the footingthat a particular thing or state of things wouldcontinue to exist."

In the recent case of British Movietonews v. LondonCinemas 41 the House of Lords has made it clear thatthis doctrine must not be carried too far. " An uncon-templated turn of events " is not enough to enable acourt to substitute its notion of what is " just andreasonable" for the contract as it stands: the testis whether " a consideration of the terms of thecontract, in the light of the circumstances existingwhen it was made, shows, that they never agreed tobe bound in a fundamentally different situation whichhas now unexpectedly emerged." A wholly abnormalrise or fall in prices or a sudden depreciation ofcurrency will not, therefore, bring the contract to anend. A convenient practical test is that of the" officious bystander," envisaged by Lord JusticeMacKinnon in Shirlaw v. Southern Foundries (1926)Ltd.,4* who, at the moment when the contract is beingmade, asks the parties whether they intended to bebound if the circumstances, which are later said to

« [1916] 2 A.C. 397.*7 [1952] A.C. 166, 185.48 Shirlaw v. Southern Foundries (1936), Ltd. [1939] 2 K.B.

206, 227.

Contract 107

frustrate the contract, should arise. If their answerwould clearly be " No," then the court is entitledto hold that such an implied term is to be read intothe contract. It follows from this that the courts inapplying the doctrine of frustration are not attemptingto alter the rule that a man is bound by his promise,even though it may seem hard, owing to a change incircumstances, to hold him to it: all that they will dois to interpret the original terms of the contract in aliberal manner.

The doctrine of frustration has, in the past, had theresult of bringing the contract to an end when thefrustrating event arose, so that the parties were leftfrozen in the positions they then held. This led to anunjust result when one of the parties had paid a sumin advance, without receiving anything in return. TheLaw Reform (Frustrated Contracts) Act, 1943, wastherefore passed to deal with this point, but thereare still one or two difficulties that remain.

Finally, when we are considering the relationshipbetween the law of contract and the moral law,something must be said about the doctrine of publicpolicy. I believe that it is important to distinguishbetween the two senses in which the phrase publicpolicy is used, because a confusion between the twohas led to a certain amount of misunderstanding. Inthe first sense public policy means that view of thepublic interest which may influence a court in estab-lishing a precedent or in choosing one of two or morepossible interpretations of a statute. It is obviousthat in this sense public policy must be found in everybranch of the law, for a judge will hesitate to establish


a principle, which he must do whenever he has todecide a case of first impression, if he thinks that it isagainst the public interest. The fact that thisinfluence may sometimes be an unconscious one, hidesfrom us its great importance in the moulding of thelaw.49

Public policy is used, however, in a different sensein the law of contract. Here it means some reasonon which a judge will base his refusal to enforce theordinary contract rules. He holds, in these cases, thatalthough there is an offer and acceptance and thenecessary consideration, nevertheless the agreementis invalid on special grounds. It is obvious that inthis second sense public policy must be approachedwith great hesitation because a power to depart fromthe ordinary law ought to be exercised only in excep-tional circumstances. It is for this reason that publicpolicy was described as an " unruly horse" inRichardson v. Mellish,50 but this does not mean that ajudge must enforce an agreement which is clearlyagainst the public interest. No court in the worldwould enforce an agreement between two highwaymento share the profits of their enterprise. Contractswhich tend to immorality, contracts which are inconflict with the dignity of the court as in the case ofwagers, and contracts which are against the economicinterest of the country, have all been held to beagainst public policy. Here, the relationship betweenthe law of contract and the moral law is directly

49 On this point see Cardozo, The Nature of the Judicial Process.50 (1824) 2 Bing. 229, 242.

Contract 109

recognised by the courts, but they are careful to applya moral law which is clear and certain. It is notenough that they themselves may disapprove of aparticular course of conduct, for the law not infre-quently enforces agreements which high-minded menmay regard with disapprobation.

Although Sir George Jessel M.R.'s dictum51 that" you are not lightly to interfere with this freedomof contract " is frequently quoted, Professor Stone 52

has pointed out that the English courts have takena less doctrinaire position in this matter than did theU.S. Supreme Court in certain cases in the past.Liberty of contract, like, other liberties, cannot beregarded as an absolute. In particular it must besubject to moral considerations, even though it maynot always be easy to determine exactly what theseare. Here, as in other parts of the law, the dividingline may be doubtful, but this will not prevent usfrom saying that certain cases clearly fall on one sideor the other.

5 1 Printing and Numerical Registering Co. v. Sampson (1875)L.E. 19 Eq. 462, 465.

52 Julius Stone, The Province and Function of Law, 1950, pp. 256,257.

THE OTHER BRANCHES OF THE

CIVIL LAW

4

THE OTHER BRANCHES OF THE CIVIL LAW

PROPERTY

THE right to private property has been explained on anumber of different grounds. It has been based on(1) occupation, (2) work done in producing theproperty, (3) increment from property already owned,(4) inheritance, (5) gift, (6) exchange or barter, and(7) other forms of agreement. These grounds mayvary in importance, depending on the particularcircumstances under consideration. But, while accept-ing these practical explanations for the existence ofprivate property, the natural law philosophers havebased it on two more fundamental grounds. The firstis the ground of reason, for reason teaches us thatwithout private property the individual man wouldlose much of his individuality and his independence.A man without property must always be dependent onothers, and he therefore lacks the capacity for freedomof action which is an essential part of the complete life.The second ground is that of natural instinct becauseeven a young child can distinguish between those thingswhich have been given to it or which it has in someway made its own, and those to which it has no claim.If this natural instinct is thwarted men may lose theincentive to work. This will be true especially ifrecognition is not given to the combination of thisinstinct with the instinct to protect one's family,

113

114 The Other Branches of the Civil Law

for the value of private property lies as much in thefuture as it does in the present.

On the other hand, it has often been pointed outthat this so-called natural right to property is of littleor no value unless it is protected by the law.1 Noone therefore has a moral claim to the legal protectionof his property if it is being used against the socialinterest of the community. When we turn to theEnglish law we find that the right in property hasnever been unqualified. The stock phrase that " anEnglishman's home is his castle " is not true if itmeans that that castle is uncontrolled by the law.The phrase is nothing more than a particular expres-sion of the general rule of law that the liberty of theindividual is protected against unauthorised invasionsby the servants of the Crown. It does not mean thatthere is a general principle that the Crown should notbe given legal authority • to enter private premises

1 N. Micklem, Law and the Laws, 1952. Sweet & Maxwell,Ltd. At p. 83 the author says: " I t is claimed that man hasa natural right to private property and to testamentary dis-position of it. Property corresponds with ownership andpossession, but these latter are conditions constituted anddefined by law. Property cannot well be defined except interms of rights created and recognised by law, and it is notprofitable to lay down the formal principle that we havenatural rights to such legal rights as the contemporaryjuridical system may afford us."

On the other hand, James Lorimer in The Institutes ofLaw—A Treatise of the Principles of Jurisprudence as Deter-mined by Nature (2nd ed., 1880), states categorically that(p. 229): "The right to reproduce and multiply our beinginvolves the right of transmitting to our offspring the condi-tions of the existence which we confer." It is some comfort,although not of any practical value, to realise that our presentDeath Duties are against the laws of nature and must meetwith her disapproval.

Property 115

where this is deemed to be necessary in the publicinterest. Nor does English law recognise any principlewhich will enable a person to use his property withoutany regard for the interests of his neighbours. Thewhole law of public and private nuisance is a denialof such an unreasonable and anti-social doctrine.Moreover, under the doctrine of Rylands v. Fletcher,2

an occupier of land, who creates an unreasonable riskon it, will be held strictly liable for any injuryresulting from the dangerous situation. It is thereforeincorrect to say that the English law of property isabsolute in nature, and that it fails to recognise themoral obligations of the owner.

Under the law of property we must consider thelaw relating to inheritance, for it has been correctlysaid that inheritability is an important element inthe concept of private property. Whether it is also aiiessential element is more open to doubt. Strange tosay it has never been made clear whether this so-callednatural right of inheritance is one attached to theowner of the property or is regarded as being vestedin his heirs. English law has only recently recognised,and then only to a strictly limited degree, the rights ofthe members of the family. It has allowed a husbandand father to disinherit completely by his will his wifeand children who, during his lifetime, were legallyentitled to his support. This rule, which has givenrise to many cases which could not be morallyjustified, has been tempered by the Inheritance(Family Provision) Act, 1938,3 but it is still true to

2 (1868) L.E. 3 H.L. 330.3 Some persons believe that this Act is too narrow in its scope.

116 The Other Branches oj the Civil Law

say that in English law there is a far greater powerof disinheritance than in almost all other legal systems.

English law has been criticised on the ground thatit gives greater protection to property than it does tohuman rights, but this criticism, which is not withoutsome justification,4 especially in the administrationof the criminal law, may be exaggerated if we forgetthe political and social role which property has playedin English history. When John Locke s wrote of thefundamental rights to " life, liberty, and property,"this association of liberty was a natural one for anEnglishman to make for, as Professor Mcllwain hassaid, English liberty was based on the control of thepurse strings.6 It was in the basic constitutionalprinciple that no tax could be levied without theconsent of Parliament that modern democracy foundits origin.

4 On the other hand, Professor Eoscoe Pound in Social ControlThrough Law, 1942, says at p. 60: "If, therefore, the lawsecures property and contract more elaborately and moreadequately than it secures personality, it is not because thelaw rates the latter less highly than the former, but becauselegal machinery is intrinsically well adapted to securing theone and intrinsically ill adapted to securing the other."

5 Second Treatise of Civil Government, 1690.6 In Political Thought in the West (1932) Mcllwain says

(p. 394): " If I were asked which of the famous maxims intowhich the political thought of the world has at times beencompressed is the one which on the whole least comprises theliving political conceptions of the later middle ages, my choice,I imagine, would be rather unexpected, and not in all casesaccepted, but it is one which my study of this period makes mewilling to defend. It is the aphorism from Seneca's De Bene-ficiis, ' Ad reges enim potestas omnium pertinet: ad singulos,proprietas '—to kings belongs authority over all: to privatepersons property." Professor Plucknett in his History of theCommon Law, 4th ed., p. 37, agrees with this view.

Property 117

From the social standpoint the law of propertyhas been equally important, for it bound the familytogether from one generation to another, andemphasised the importance of family traditions. Itis not surprising that Edmund Burke should havetaken as his analogy the strict settlement when hesaid 7: " One of the first and most leading principleson which the commonwealth and the laws are conse-crated, is lest the temporary possessors and life-rentersin it, unmindful of what they have received from theirancestors, or of what is due to their posterity, shouldact as if they were the entire masters." Perhapsin no other country in the world is this sense ofpartnership between the past, the present, and thefuture, so strong as it is in England, and this is duein no small degree to the mode of thought establishedby the law of property. This feeling of duty to thepast and to the future is a moral one, so that it is trueto say that even in the law of property, which issometimes regarded as cold and lifeless, there is a closerelationship between legal and moral ideas.

COMMERCIAL LAW

It is not surprising to find that commercial law andmoral law are closely related, because both commerceand industry depend on good faith. It is difficult toenvisage an economic system which does not assumeas a basic premise that men can rely on each other'spromises. These promises may be given additionalforce by the law, but even in the absence of law they

•> S Collected Works (1808) at 181.


must be recognised as obligatory by the commercialcommunity if it is to exist at all.8 It is noteworthythat the Law Merchant was not created by the State,but was taken over by the courts long after it had beenfirmly established.

There are two other reasons why the moral elementfigures so largely in commercial law. The first is that,as it is largely international both in origin and incharacter, it may be said to be a type of jus gentium—a body of obligatory rules based on a general convic-tion of what is right and wrong. If men did notrecognise these common moral principles it would bedifficult for them to agree on a common law. Thesecond reason is that the canon law exerted a stronginfluence on the Law Merchant during its formativeperiod. Professor Plucknett has said 9: " The Church,too, was exerting a growing influence upon mercantilepractice. Particularly in the law of contract theChurch asserted the principle of keeping faith—aprinciple which must lie at the root of commerciallife."

This good faith is the basis of the law of principaland agent. The principal must protect his agent, andthe agent must not take any advantage of his prin-cipal. Thus if, in the course of his agency, hereceives information which is of value, he must usethis for the benefit of his principal and not for hisown advantage. The same principle is found in thelaw of partnership, for each partner must be able to

8 Professor Max Weber has made the influence of these extra-legal systems the main thesis of his sociological contributionsto legal philosophy.

9 History of the Common T,aw, p. 621.

Commercial Law 119

rely on the complete good faith of the other. Again,in the law of insurance, an insured person must makefull disclosure of all relevant facts even if he has notbeen asked for them specifically.

It may be asked, however: How can the lawmerchant claim to be consonant with the moral law aslong as it contains the maxim caveat emptor? Theanswer is, that this maxim, which Professor Radin 10

has described as " bad Latin and, from the Romanpoint of view, worse law," is not part of the lawmerchant, but a survival from the early common law.We can see how the merchants have attempted tonarrow its scope, in so far .as it is applicable to them,if we study the Sale of Goods Act, 1893. The impliedconditions and warranties which are binding on theseller are nothing more than a legal expression of thehigh standards recognised by respectable merchants.It is unfortunate that when we turn to the sale or leaseof real property we find that the standard is so lowthat no decent man would accept it as a guide. It isan astonishing fact that a man may sell a field whichto his knowledge has been sprayed with a poisondeadly to animals,11 or lease a house which containsa boiler likely to explode without giving any adequatewarning.12 This is one instance where there is an

1(i The Lawful Pursuit of Gain, 1931, p. 54.11 Sutton v. Temple (1843) 12 M. & W. 52.!2 Bottomley v. Bannister [1932] 1 K.B. 458. In Bobbins v.

Jones (1863) IS C.B.(N.S.) p. 240, Erie C.J., in a judgmentwritten by Willes J. said: "Fraud apart, there is no lawagainst letting a tumble-down house." This is self-evident,but it does not follow from this that the vendor ought not tobe under a duty to disclose a concealed danger to a purchaserwho has no reason to know that it exists.


obvious gap between the English law and the morallaw as recognised by almost everyone who is not alawyer.

English commercial law is probably less strict thanthe moral law in regard to untruthful statementscarelessly made. A man who is not deliberatelyfraudulent, so as to bring himself within the technicalrules of the tort of deceit, can take liberties withthe truth which under the moral law he owes to hisneighbour. In company law an increasingly strict dutyof care has been placed on those who issue accountsand prospectuses, but in other branches of the lawcarelessness may still prove to be profitable to theman who has not got too strict a conscience.

Perhaps the most difficult problem in commerciallaw concerns what has been termed unfair competition.To what extent may one competitor attempt to getthe better of another ? 13 Here we may find that thereare practices which cannot be justified on moralgrounds, but which for practical reasons the lawcannot reach. It is probable, however, that this fieldmay be developed in the future, in particular inrelation to misleading advertisements.

13 This question is closely related to the tort and crime of con-spiracy. To what extent, and for what purposes, may mencombine together to injure another? The answer given by (heHouse of Lords in Crofter Hand Woven Harris Tweed Co. v.Veitch [1942] A.C. 435 is that disinterested malevolence willgive rise to legal liability, but that a conspiracy, carried onby lawful means, is not illegal if its purpose is to advance theinterests of the participants. Professor Friedmann has dis-cussed this problem in his valuable book Legal Theory,pp. 348 et seq.

Company Law 121

COMPANY LAW

It has been said that a corporation has " neither asoul to be damned nor a body to be kicked." It isthis fact which has given rise to a number of moralproblems. The law has created these artificial persons,who own nearly two-thirds of the property in thiscountry, but although immensely wealthy andpowerful, they are themselves completely helpless.An artificial person, being a mere conception or idea,can do no acts of any kind: it cannot even appointan agent to act in its name. The law thereforearranges for the appointment of these agents, andprovides rules which determine what acts of theirswill bind the corporation. It is obvious that thisextraordinary system by which a lifeless and artificialperson is held responsible for the acts of living menmust give rise to difficult moral questions. Theseare best exemplified in the case of the businesscompany.

The major purpose of a business company is toallow individuals to engage in a commercial activitywithout being subjected to unlimited liability. Theonly liability which the shareholders incur is thepayment to the company of the price of their shares.The person who trades with the company is expectedto know that he has no claim whatsoever against theincorporators or the shareholders. The situation isaggravated by the fact that the incorporator of acompany may sell to the artificial person he hascreated a factory or other property, and in returnfor this he receives a security which enables him to


recover the property he has sold to the company if thecompany goes into liquidation.14 The courts have,therefore, in some cases sought to pierce the corporateveil in an attempt to place increased personal liabilityon the human beings in control of these artificialpersons, but these attempts have not provedsuccessful. The moral question which arises in thesecases concerns the ability of those in control of thecompany to engage in transactions which, at no riskto themselves, may prove profitable for them, but, ifunsuccessful, must be paid for by third persons who,in many instances, are unable to understand theintricacies of company law.15 The law has attemptedto limit the risk by increasing the safeguards againstfraudulent practices, but it is obvious that it cannotalways protect the creditors of these artificial persons.This, however, is inevitable because the doctrine oflimited liability would lose its value if in every hardcase the corporate veil could be pierced. Here the lawconsciously realises that it may on occasion give riseto situations which cannot be justified on moralgrounds, but it does so on the ground that this is asmall price to pay for the great benefit which has

i* Salomon V. Salomon i Co., Ltd. [1897] A.C. 22.15 This is true, in particular, in regard to the doctrine of ultra

vires which may enable a company to repudiate liability onthe ground that its officers, including the directors, haveengaged in the company's name in activities which lay outsideits purposes as stated in the Memorandum of Association. TheCommittee on Company Law Amendment (popularly knownas the Cohen Committee after its chairman Lord Cohen)recommended in its report, 1945, that this doctrine should Beabolished but this recommendation was not incorporated in theCompanies Act, 1948.

Company Law 123

accrued to the community by the creation of theseartificial persons.

The second problem, which is more difficult fromthe theoretical than from the practical standpoint,concerns the tortious and criminal liability of theseartificial persons. It is said that, as the law of tortand the law of crime are concerned with the wrongfulacts committed by the tortfeasor and by the criminal,it follows that an artificial person which has beencreated by the State cannot commit such acts. Thisis obviously true, but it does not follow from thisthat a corporation cannot be held responsible for thewrongful acts of its servants. It has taken many years,however, for the law to realise that there is nothingwrong in principle in holding a corporation liableunder such circumstances. A corporation obviouslycannot commit an assault, but one of its servants can,and it is therefore for the servant's act that thecorporation is held responsible. There is no real moralproblem here because, as the artificial person livesand benefits by the acts of its servants, so it mustbe held responsible for their faults.

A third question of great difficulty concerns therelation between the directors and officers of a businesscompany on the one hand, and the shareholders of thecompany on the other. Technically, the directorsand the officers, although they may be chosen by theshareholders, are neither trustees nor agents for them.The legal duty of the officials is to the company andnot to those who own its shares. As a result, a direc-tor commits no breach of trust or breach of agencyif he takes advantage of any inside information which


he may have obtained either to buy or to sell shares.The Company Law Amendment Committee reachedthe conclusion that such acts were obviously in conflictwith business morality, but on the other hand, it feltthat it would be difficult to enact provisions whichwould prohibit such unfair practices on the part ofdirectors. It therefore recommended that directorsshould be forced to state publicly the transactionswhich they themselves carried out in the shares of thecompany. It was felt that the force of public opinionwould be sufficient to prohibit such practices. Thisrecommendation has been incorporated in the Com-panies Act, 1948.16 This is an interesting illustrationof recognition by the law that outside sanctions mayin fact be more effective than the purely legal ones.

EQUITY

It is obvious from its name that equity is closelyrelated to the moral law.17 When its history beginstowards the end of the fourteenth century the commonlaw has become more or less rigid as the judges regardthemselves as strictly bound by the established rules.18

Little relief against hard cases can be found in legis-lation because this works only intermittently. For-tunately there is a reserve of justice in the King sothat those who cannot get relief elsewhere present" s. 195.17 The nature and history of English equity are fully covered

by Sir Carleton Allen, Law in the Making, 5th ed., 1951,Chap. V.

18 Maitland, Equity, 1910, p. 5: "But in the fourteenth centurythe courts of law have become very conservative and are givento quashing writs which differ in material points from thosealready in use."

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their petitions to him, praying for some remedy. Hecannot alter the established law, but he can preventits being used in an unjust manner. Perhaps we canfind a modern analogy to this in our present lawestablishing the death penalty for murder. The lawsays that the penalty for murder shall be death, butthe Queen, through the Home Secretary, may reprievethe convicted murderer. Similarly, the King, throughthe Lord Chancellor, did not deny that the trustee(to use the modern term) was the legal owner of thetrust property, but he forced him to carry out hismoral duty to the beneficiary of the trust. In timethird persons, who knew or ought to have known ofthe trust, also became bound by it. The trustdeveloped because there was no way in which thecommon law could deal with this situation, for, asMaitland has said,19 " we have to remember that inthe fourteenth century—and that, in the presentcontext, is the important century—the common lawhad not yet begun to enforce ' the simple contract'—•it had not yet evolved the action of assumpsit out ofthe action of trespass."

It is no exaggeration to say that the invention ofthe trust was the greatest invention ever made byEnglish lawyers. It has created a concept which hasproved of extraordinary practical value by giving tothe English law a flexibility which is lacking in thosesystems which are based on the Roman law. But ithas been of equally great importance from the moralstandpoint. It has emphasised that whenever a

19 Equity, p. 28.


relationship of trust has been created between twopersons, then a high standard of moral duty must beapplied to it. This standard is not that which isnecessarily held by the average man, but is one whichthe courts have felt that a man of probity wouldinstinctively accept.20

In summing up the contributions made by equityMaitland has said 21: " In my view equity has addedto our legal system, together with a number ofdetached doctrines, one novel and fertile institution,namely, the trust; and three novel and fertileremedies, namely, the decree for specific performance;the injunction, and the judicial administration ofestates." These three remedies have one thing incommon—they act in personam. A man is ordered todo something, and if he fails to act then the LordChancellor can bring force to bear on him. It is notnecessary for me to point out here that the exerciseof these remedies has in • time become fixed withindeterminate lines so that, by the beginning of thenineteenth century, equity had acquired the samefirmness (or rigidity, to use a less flattering term)which marked the common law. The fluidity of theoriginal equity was no longer needed because a remedyagainst the injustice of an outmoded law could now besought in Parliament. The reforms of the past onehundred and fifty years show how effective this hasbeen.

2 0 I have discussed the significance of the t rus t concept in thefield of government in my Cardozo lecture English Contribu-tions to the Philosophy of Law, 1949, Oxford Universi ty P res s ,pp. 23 et seq.

2 1 Equity, p . 22.

Equity 127

It has long been a disputed question whether themorality which the Lord Chancellor exercised was apersonal one or one which he took from the canonlaw. As the Lord Chancellor was, until the end ofthe sixteenth century, a distinguished cleric, it isinevitable that the canon law, in which he was trained,must have played an important role.22 It is equallytrue that the whole tradition of English life andthought must have influenced him not to place toomuch emphasis on general principles, but to seek toanswer each problem as it was presented to him ongrounds of practical common sense. The reasonableman of the English law is never far away, not evenfrom the Courts of Chancery.

QUASI-CONTKACT

The branch of the law which was formerly calledquasi-contract has recently tended to change its nameto Unjust Enrichment.23 Such a change is notsurprising because this part of -the law has only acomparatively recent history. Its new name is usefulbecause it emphasises the moral origin of the variousrules comprised under this heading. It is based onthe principle that a man who has acquired a benefit22 But Maitland said, Equity, p . 1 4 : " Blackstone, I think,

greatly overrates the influence of Eoman and canon law inthe history of equi ty ."

23 The judgments of Lord Wright have had an importantinfluence on the development of this branch of the law inEngland. So have the academic contributions made by SirPercy Winfield. I n no other branch of the Engl ish law is theinfluence of American legal thought more marked becausemuch of the most constructive work has been done in theUnited States. Professor Keener of the Columbia UniversityL a w School was a pioneer in this field.

H.L.O. 5 (2)


at the expense of another ought not to retain it.Thus, if A without permission uses B's motor-car toearn hire, it is morally just that B should recover thisfrom A. Again, if A is forced to" pay B's debt to Che ought to be entitled to recover this sum from B.It is obvious that unjust enrichment will take manyforms, with the result that the law has dealt withthis principle under many different headings, the bestknown of which is that of money had and received tothe use of another. Because it has been divided inthis way, we sometimes tend to forget how importantthis principle is in practice.24

When the principle of unjust enrichment wasdeveloping in the eighteenth century, English law wasstill governed by the forms of action. It was neces-sary, therefore, to find a form of action under whichthis type of claim could be fitted, and the only possibleone was indebitatus assumpsit. This necessitated theallegation of an implied contract, even though it wasobvious that the contract was in truth fictitious. Nowthat the forms of an action have been abolished, it isreasonable to suggest that the fiction should bedisregarded, and that the true nature of unjustenrichment be given legal recognition. This coursehas not, however, been adopted by the courts.25 Theyhave taken the view that because the precedent casesof a century ago referred to a fictitious contract,therefore they must find a fictitious contract today,

2 4 I n The Province of the Law of Tort, 1931, pp. 155 et seq.,Professor Winfield gave a list of eleven " pure quasi-contracts " ranging all the way from salvage to unauthorisedgains of an agent.

25 Sinclair v . Brougham [1914] A.C. 398.

Quasi-Contract 129

even though the reason for this fiction no longer exists.Fortunately, it is possible to find an implied contractin almost any situation, however absurd this implica-tion may be, so that the problem, although of greattheoretical interest, is only of minor practical import-ance. Perhaps an illustration may show how thisrule works in practice. In Reading v. The King,26

the plaintiff Reading, a sergeant in the British Army,was during the war stationed in Cairo. At that timea highly lucrative trade in smuggling dope was carriedon in that city. Reading was given large sums tosit next to the driver of a lorry so that his uniformwould give the impression that the lorry was an officialone. When this traffic was discovered, the Crownseized the £30,000 which Reading had deposited in abank. He claimed the return of this money, but theCrown defended on the ground that it was moneyhad and received to its use. The House of Lords,affirming the Court of Appeal which had affirmed thetrial judge, held that, as the plaintiff was in theservice of the Crown, there was an implied contractthat any profit which he had made by the use of theCrown's property would belong to the Crown. It isan interesting question what the position would havebeen if a man, not a soldier, had stolen the uniform,and had then used it as Reading did in this case.It would be difficult to argue that the thief in stealingthe uniform had entered into an implied contract withthe Crown, but, on the other hand, it is impossibleto believe that he would be entitled to keep the moneywhich he had acquired by the use of the Crown's

26 [1951] A.C. 507.


property. It may be suggested that it is unfortunatethat the fiction concerning the implied contract hasremained in the law, because it suggests that this typeof claim has to be bolstered up by an obviouslyunrealistic allegation, when, in fact, the true moralbasis on which the claim is based is clear anduncontroversial.

A minor point in this branch of the law is ofinterest from the moral standpoint. To what extentought a person who has voluntarily conferred abenefit on another thereafter ask for repayment ? TheEnglish law has tended to take the view that virtueought to be its own reward, and that, therefore, thevolunteer cannot ask for repayment. If X finds Y'smotor-car abandoned on the road and does necessaryrepairs to it while Y is absent seeking help, he cannotask to be repaid for his trouble. The Roman law andthe modern Continental law give greater rights to thevolunteer, but it is not clear whether that solutionis more satisfactory than is the stricter view of thecommon law.27

FAMILY LAW

English law, as must the law of any civilised nation,recognises the moral importance of marriage to thecommunity. It therefore provides that a marriagecannot be entered into without the necessary forms,27 In Buckland and McNair's Roman Law and Common Law,

1936, Cambridge University Press, after stating (p. 258) that," Negotiorum gestio is an institution which is not recognisedin our law with the generality it had under Justinian " thetwo learned authors make a detailed comparison of the twoprinciples.

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and the forms which it requires make it certain thata marriage cannot be celebrated because of a momen-tary whim. The law shows its favour to marriage byproviding that any contract, provision in a will, orother act which can be regarded as an unreasonablerestraint on marriage is against public policy.Similarly, any provision which may tend to interferewith the continuance of a marriage is invalid. Any-one who entices a husband or wife does so at his orher legal peril. In the past, the law has encouragedmarriage by imposing certain disadvantages on thosewho live together without benefit of clergy, especiallyin regard to illegitimate children. Today there is onestriking exception to this general principle of bene-volence to marriage in the Income Tax Law, becauseit favours those who live in sin. Under this law theincomes of a husband and wife are regarded as one,but this does not apply to those persons who areprepared to accept a less formal arrangement.

Perhaps the most radical change in recent years inthe moral and legal conception of family life can befound in the altered position of the wife, both inregard to her husband and to their children. It isimpossible today to read such a case as Re Agar-Ellis 2S without a feeling of shock. The husband had,before the marriage, promised his wife that anychildren they might have would be brought up asRoman Catholics. He later changed his mind, andwhen the mother tried to influence the three childrenhe removed them from her care and allowed her tovisit them only once a month. The eldest daughter,

28 (1883) 24 Ch.D. 317.


aged seventeen, asked for permission to spend a fewweeks with her mother during the summer vacation.The Court of Appeal, although clearly of the opinionthat the father was acting in an unfair manner inrefusing this permission, held that it must " leave tohim the responsibility of exercising that power whichnature has given him by the birth of the child."Apparently nature takes the view that the birth ofthe child gives less power to the mother in spite ofthe more arduous part she plays in this matter. LordJustice Bowen said29: " To neglect the naturaljurisdiction of the father over the child until the ageof twenty-one would be really to set aside the wholecourse and order of nature, and it seems to me it woulddisturb the very foundation of family life." In recentyears the Court of Appeal has held that a marriage isa partnership, and that husbands and wives have equalrights and duties.30 It does not seem that " thefoundation of family life " has been unduly disturbedby this later decision.

The law has adopted a new attitude in regard toillegitimate children. In the past it was thought rightthat the sins of their fathers should be visited on thesechildren, because it was felt that their miserablecondition would be a warning against the results ofimmorality. Today the law is more charitable to thosewho are unfortunate.

When we turn to the subject of divorce we findthat the law on this subject tends to be of a fluctuat-ing nature because there is no general agreement

29 At p. 336.»» Rimmer v. Rimmcr [1953] 1 Q.B. 63.

Family Law 133

concerning the moral law. There are those who,primarily on religious grounds, regard the whole con-ception of divorce as immoral, holding that a marriageis indissoluble. There are others who regard it asimmoral to continue the marriage-tie after both oreven one of the parties desires its dissolution. TheEnglish law is a compromise between these two views,and it will continue to be a battle-ground until thereis a general agreement on the moral questionsinvolved. The Royal Commission which is now con-sidering this question has an unenviable task.

The English law does not recognise the family as alegal institution. It therefore has not got anythingresembling the French conseil de famille. Under theEnglish law the adult who is mentally feeble but notinsane, can waste his substance without any controlby members of the family. It has been suggested thatthe negative English attitude on this point is anunmoral one, but the answer probably is that it wouldbe extremely difficult in practice to establish a satis-factory rule. Moreover, the system of marriagesettlements, which is common in this country, makesthe problem a less important one than it is in othercountries.

PRACTICE AND PROCEDURE

The law relating to practice and procedure would atfirst sight seem to have no relationship to morals.We tend to think of it as a body of technical ruleswhich for some reason is a necessary evil in theadministration of justice. There is a feeling that if


we could only avoid these rules we should be moreable to attain natural justice. This is one reason whyadministrative tribunals are often welcomed with suchenthusiasm, but experience has shown that unless theyare governed by definite rules of procedure they tendto become arbitrary.

In early law procedure was primarily religious,being based on the ordeal, the trial by battle, or thewager of law. The ordeal and the trial by battle wereboth attempts to obtain a Divine decision in mattersthat were thought to be too difficult for human judg-ment. The wager of law was based on the idea thata man would not swear to the truth of somethingwhich he knew was false.

With the abolition of the trial by ordeal in 1215 itbecame necessary to find some other method by whichthe truth could be determined, so trial by jury wasgradually evolved. For many centuries it has suppliedan efficient method of justice which has been adoptedthroughout the Anglo-Saxon world. Today in Eng-land it has been displaced in most civil cases, but itstill remains, and undoubtedly will continue to remain,in those civil cases in which the reputation of one ofthe parties is at stake, and in all serious criminaltrials.

At first sight it seems difficult to justify the jurysystem on theoretical grounds. It does not seemlogical to provide that a case should be tried by ajudge of great experience and argued by highlytrained counsel, but that the final decision should beleft to twelve ordinary men and women. This is, ofcourse, true, but the historical justification for the

Practice and Procedure 135

jury is found in the protection it gave against execu-tive and judicial tyranny. Even the Act of Settle-ment, 1701, was no protection in the prosecutions fortreason, sedition and libel brought at the end of theeighteenth century because the judges shared in thepolitical ideas of the government. It was the courageand independence shown by the juries which protectedliberty at that time.

There is a second justification for the jury systemwhich is more important today than the historical one.It is found in the realisation that in determiningquestions of fact even, the fairest of men mayunconsciously be affected by their prejudices so thatthere is always a risk in leaving the decision to a singleman. The strength of the jury is found in the factthat in the jury room the various prejudices whichmay to some extent influence the different jurors tendto cancel each other out in the course of their delibera-tions. This, of course, is not always true, especiallywhen there is general prejudice against an individualor a group, but nevertheless the jury has always beenregarded as a symbol of fairness and impartiality. Ithas given to the people at large confidence in theadministration of justice, and it has therefore given tothe law that moral support which I believe is essentialin any efficient legal system.

But the jury system has played an equally importantmoral role in an indirect manner. It has acted as agreat school in the morality of government, for it hastaught the ordinary man that he must take his partin the administration of justice. It has not always


been an easy part to play, for until Bushel's Case 31

in 1670 finally established their independence, jurymenwere not infrequently punished if their verdicts did notsatisfy those in authority, but the juries by theircourage succeeded in overthrowing this doctrine.There is no part of English history which is a bettertribute to the English character than is that connectedwith the jury.

Jury service has also taught the ordinary man thathe must listen to both sides in any dispute. The law,as I have said, is a great teacher, and nowhere are itslessons more effective than in the jury box. It is adifficult thing to be fair, but a man who has listenedto a trial which is properly conducted will have had anillustration of fairness in action which he may neverforget.

The jury has had another indirect effect on Englishthought. As has been frequently pointed out, it isdue to the existence of the jury that hearsay evidenceis so carefully excluded at a trial, for it is rightly feltthat such evidence may be given more weight than itproperly deserves. But in time legal thinking tendsto influence lay thinking, and I believe that theaverage Englishman's dislike and distrust of rumourand scandal in political and social life is due in partto the fact that he has been taught that hearsayevidence is not to be believed.

It is not surprising that procedure should be relatedto the moral law for its primary purpose is to enable31 Vaughan 135. Bushel had been one of the jury which

acquitted William Penn of unlawful assembly, and in conse-quence he had been committed to prison.

Practice and Procedure 137

those who have to decide a dispute to reach a justconclusion. In so far as it departs from this purposeit conflicts with morality. It cannot be denied, how-ever, that legal history shows that procedure tends todevelop almost a life of its own, and that sooner orlater it becomes necessary to reform the rules whichhave become a hindrance rather than a help. But thistendency is not found in the law alone, for in almostevery human activity form may gradually encroachupon substance. This is true even in religion, and noone who has had anything to do with the army ornavy or any other governmental department can failto realise this. The fact that legal procedure hasdeviated from time to time from its original purposemust therefore not blind us to the fact that it hasmade important contributions to the moral thought ofthis country. In his valuable book The Quest ofJustice 32 the late Professor Harold Potter said 33:

" The fight for human justice must be on aprocedural plane, since procedure may determinehow far the truth can come out. . . . It is after alla procedural rule that a man must be heard on hisown behalf. . . . To say of the rule that it isrequired by ' natural justice ' does not alter the factthat it is essentially procedural and that it repre-sents a difference from rules sometimes elsewhereobserved. . . . Justice can be done without pro-cedural rules, but this may be in spite of theirabsence as well as because of it. An analysis of the

32 1952.3 3 pp. 28, 29.


infamous trial and subsequent execution of SirWalter Raleigh may bring this home."

This is an eloquent warning that those who are readyto scrap rules of procedure for what they regard as" natural justice " may be sacrificing true justice forthe sake of temporary convenience.

EVIDENCE

One would not expect to find that the law relating toevidence gives rise to many moral problems, but thereare in fact a number which are of considerable interest.

The first one concerns the oath which all witnessesare required to take unless they refuse to do so ongrounds of conscience, in which case they are allowedto affirm. The solemn oath is one of the most ancientparts of legal procedure, and is found in almost alllegal systems. The ancient method of trial, if it canbe called that, by wager of law is an illustration of thegreat weight attached to the oath in medieval times,for the party who was given the right to wage his lawwas able to win his case if he could get the requisitenumber of eleven compurgators to swear that theybelieved that he was in the right. To what extent theoath has persuaded witnesses to tell the truth is adisputed question. It can be argued with force thata man who is prepared to lie when he has not takenan oath is hardly the type who will be much influencedby the additional threat of a Divine sanction. Thenonchalance with which people are prepared to swearto an affidavit which they have never read is someevidence that the oath today is little more than an

Evidence 139

empty gesture in most instances. It may even besaid that the oath tends to bring religion into dis-repute as it is regarded as a mere formality by manypersons. Against these arguments we must balancethe views of many experienced judges who believe thatthe oath does tend to influence witnesses, and that itreduces the amount of perjury.

Closely connected with the oath was the rule, whichstrange to say existed until 1850, that no party to acivil action nor any person who was interested in theresult, could give evidence. This rule was based inpart on the theory that a party or other interestedperson would be tempted to give perjured evidence,and that if he were allowed to do so after taking theoath he would be endangering his immortal soul. Toprevent this he was prohibited from giving evidence.Strange to say the rule was not applied in equitableproceedings for in them the affidavits of the partieswere always admissible.

Perhaps the most direct influence of morality on theadmission of evidence is found in the rule which pro-vides that in most criminal cases neither a husbandnor a wife is a compellable witness against the other,and that even if he or she is prepared to give suchevidence it will not be admitted without the consentof the other spouse. Various grounds can be given forthis rule, but the obvious one is that it shocks one'ssense of moral fitness that a husband or wife should beallowed to give evidence against the other. The factthat in some totalitarian trials wives have been calledto denounce their husbands, is abhorrent to mostpeople.


It has been argued that on moral grounds a similarrule ought to apply in the case of parents and children,but the law has refused to take this further step onpractical grounds. In practice such evidence is rarelycalled because it would be almost impossible to force arecalcitrant parent to give evidence against his or herchild.

It is for a similar reason that there seems to be nocase in which a clergyman has been called to giveevidence concerning any confession made to him.From the strictly legal standpoint the clergyman canprobably not refuse to testify, but it is almost incon-ceivable that any judge would attempt to force him todo so. On the other hand, the rule that no legaladviser is permitted, without his client's consent, todisclose any communication made to him by his client,is not based on moral grounds, but is a necessary partof the proper administration of justice. A difficultquestion arises in connection with the medical profes-sion, because the law and medicine are not in agree-ment concerning the degree of immunity which shouldbe granted to doctors. Here again common sense hasproved useful in keeping the issue a theoretical ratherthan a practical one.

CONFLICT OF LAWS

In the field of conflict of laws questions of moralityhave given rise to some difficult problems althoughthere are only a limited number of cases on thissubject. Ought an English court enforce a foreigncontract, which is valid by the law of the country inwhich it was made, if the English court deems the

Conflict of Laws 141

contract to be in contravention of some essentialprinciple of justice or morality ? The leading case onthis point is Kaufman v. Gerson,si in which the defen-dant had been coerced by the plaintiff into signing acontract in France by threats of a criminal prosecutionagainst her husband. Such a contract is regarded asvalid under French law as it is thought to be in theinterest of all the parties that repayment of moneymisappropriated should be made either by the wrong-doer himself or by his family rather than that acriminal prosecution should be brought. The Court ofAppeal held, however, that no cause of action could begrounded on such a contract in the courts of thiscountry, even though made by domiciled Frenchparties in France, because " to enforce a contract soprocured would be to contravene what by the law ofthis country is deemed an essential moral interest."This decision gave great offence to French lawyers asthey denied that the French law on this point, whichis followed by many other countries, is immoral, but,apart from the particular facts of the case, the generalprinciple is obviously correct. It is clear that Mrs.Warren, in Mrs. Warren's Profession,35 could not havesued her partner, Sir George Crofts, in an Englishcourt for an accounting of the profits arising from thebusiness activities which they pursued in Belgiumalthough those activities were legally recognised there.The question concerning the morality of a legal pro-vision may be a fine one. Thus in Re Macartney 36

3 4 [1904] 1 K . B . 591.3 5 George Bernard Shaw'a play wr i t ten in 1894.3 6 [1921] 1 Ch. 522.


Astbury J. held that " the general recognition of thepermanent rights of illegitimate children and theirspinster mothers as recognised in Malta is contrary tothe established policy of this country," but this view,which has been severely criticised, would almostcertainly not be accepted today. English law andEnglish morality have travelled a long way in thismatter since 1921.

The question of morality has been of particularimportance in recent years in those cases in which thevalidity of a foreign decree confiscating the propertyof an oppressed minority has been at issue, and also inthose cases where obvious duress was exercised to forcea person to surrender his assets. The courts have heldthat discriminatory legislation would not be recognisedin relation to property, held in this country, on theground that such legislation was in conflict withmorality, but some doubt may have been cast on thisprinciple in Kahler v. Midland Bank, Ltd.37

Perhaps the most disputed questions in the conflictof laws have arisen in regard to polygamy. At onetime it was thought that the English courts wouldrefuse to recognise polygamy in any way, but it hasnow been held that a polygamous marriage, if validlycontracted abroad, must be recognised as a valid

37 [1950] A.C. 24. Concerning this case Professor Cheshire haasaid (Private International Law, 4th ed., 1952) at p. 140:" This decision has been the subject of damaging criticism.It certainly seems an unfortunate application of the rules ofprivate international law that the undisputed owner of propertyin London, who, as the price of permission to leave Czecho-slovakia, had been compelled to sign a document placing thatproperty at the virtual disposal of a Prague bank underGerman control, should in effect be divested of his ownership."

Conflict of Laws 143

marriage in this country. (Baindail v. Baindail38

and Srini Vasan v. Srini Vasan.39) This is onlycommon sense because the Christian doctrine that amarriage must be to one woman only does not applyin many non-Christian countries. It does not followfrom this that a man who is domiciled in England,and whose personal law therefore is English, is entitledto enter into a polygamous marriage in a foreigncountry which recognises such marriages. The ques-tion whether a marriage which can be dissolved byconsent or at the will of one of the parties should berecognised as a valid marriage in this country hasgiven rise to some discussion in this country, especiallyin view of the Russian law which at one time seems tohave allowed complete freedom of divorce, but it isprobable that the mere fact that a foreign marriagecan be brought to an end in such a way will not beregarded as contrary to English standards ofmorality.40 It has not been shown that such freedomof divorce has necessarily led to a laxer standard ofmarried life in those communities in which it isrecognised.

The problem of morality also arises when a plaintiffseeks to enforce a foreign judgment in this country.It is established that if such a judgment has beenobtained fraudulently it will not be enforced in thiscountry, but this does not enable an unsuccessfulparty to allege that the foreign court was misled byperjured testimony. The English court is careful not

•« [1946] P. 122.39 [1946] P. 27.*° Har-Shefi, v. Har-Shefi [1953] 3 W.L.E. 200.


to retry a case decided by a foreign court. The mostusual ground for holding a foreign judgment invalidis that it is contrary to natural justice, but exactlywhat is meant by natural justice it is difficult to say.Perhaps this has been best stated by Professor Cheshirewhen he says41: "Any impropriety in the foreignproceedings which has deprived a party of an oppor-tunity to present his side of the case will be regardedas a violation of natural justice." 42

ABUSE OF RIGHTS

Finally I must refer to the doctrine concerning the" abuse of legal rights " which has been muchcanvassed by Continental legal philosophers and hasroused a certain amount of discussion in this country.43

It has been argued that as the primary purpose of thelaw must be to do justice, it is wrong to ask the lawto enforce a legal right in circumstances where suchenforcement will lead to obvious injustice. Thereought to be, according to this view, no absolute rightswhich are not subject to a higher equity. Many ofthe Continental codes have provisions giving effect tothis doctrine, and, in spite of a certain amount ofcriticism, it seems to be generally accepted by Con-tinental jurists as sound. It is difficult to determine,however, to what extent it has been used in practice,and to what degree it has proved satisfactory. It isclear that the English law has never adopted this

" p. 632.42 Cf. Budd v. Budd [1924] P. 72.« Professor H. Gutteridge's article in (1933) 5 Cambridge L.J\

22 ia of particular interest as he discusses the variousContinental provisions on this subject.

Abuse of Rights 145

principle. If a man possesses a legal right he isentitled to have that right enforced, however harshthe result may be. The House of Lords in the case ofMayor of Bradford v. Pickles 44 refused to consider theallegation that Mr. Pickles was acting in an unsocialmanner in digging wells on his own land for the solepurpose of interfering with the reservoir belonging tothe plaintiffs, because his wrongful motive could notaffect the exercise of his legal rights. Again a manmay enforce a contractual right at common lawalthough it can be of no benefit to him and maybring disaster to the defendant.45 Similarly he maydeliberately collect a number of obligations which havebeen incurred by one man and then sue on them, soas to force him into bankruptcy. From the moralstandpoint it is obviously wrong for a man to exercisea right merely for the purpose of injuring another, butthe English law is prepared to risk a conflict with themoral law so as to attain what it regards as thegreater advantage of certainty. It may also be saidthat it is morally desirable that every man shouldknow exactly what his rights and duties are withoutsubjecting them to the equitable opinion of anotherperson, even if the other person is a judge.

** [1895] A.C. 587.« Wills J. in Allen v. Flood [1898] A.C. 1, 46, said: "Any

right given by contract may be exercised against the giver bythe person to whom it is granted, no matter how wicked, cruelor mean the motive may be which determines the enforcementof the right. It is hardly too much to say that some of themost cruel things that come under the notice of a judge aremere exercises of a right given by contract."


It has been suggested that the two nuisance casesof Christie v. Davey46 and Hollywood Silver FoxFarm, Ltd. v. Emmett i7 are an exception to the strictEnglish principle, but this is based on a misunder-standing of the law of nuisance. The law of nuisanceis not concerned with what one does on one's ownland, except in so far as it may affect the land of aneighbour. In the Hollywood Silver Fox Farm Casethe defendant deliberately fired a shot-gun on his ownland so as to frighten and injure the foxes on theplaintiff's farm. The court held that as the defendanthad intended to cause this injury he brought himselfwithin the law of nuisance because it was unreasonablefor him to pour this noise over his neighbour's land.He was not merely exercising a liberty on his ownland: he was violating his neighbour's right not to beinterfered with in an unreasonable manner. Thesenuisance cases do not therefore derogate from thestrict English doctrine that if a man is given a rightby the law he is entitled to use it as he sees fit.

It may be suggested here that the English doctrinefinds some justification in the history of the " abuseof right " doctrine in the field of international law.There the exercise of the doctrine has itself constitutedan abuse. It has been used by States to repudiatetheir treaty obligations on the ground that it wouldbe an abuse of right for the other parties to ask fortheir enforcement. Combined with the doctrine ofrebus sic stantibus it has sometimes tended to destroythe force of treaties that have been freely entered into

*« [1893] 1 Ch. 316.«? [1936] 2 K.B. 468.

Abuse of Rights 147

and solemnly recognised. Such a result can hardly bedescribed as moral.

THE INFLUENCE OF LAW ON MORALS

So far I have been concerned with the influence ofthe moral law on English law. I must now say a fewwords concerning the contrary process in which wefind that the law has gradually influenced the moralconceptions of the community. It is sometimes saidthat in the relationship between law and morals lawmust always be the laggard, and that it is only afterthe moral law has been long established that the lawof the State succeeds in catching up with it. It isundoubtedly true that there are parts of the presentlaw which express the moral convictions of the pastrather than those of today, but it is equally true thatthere have been a number of instances in our historywhere the civil law has been in advance of the generalmoral law, and where it may be said that moral con-victions have been altered under legal leadership. Anobvious illustration of this can be found in the criminallaw against duelling. It took generations of effort onthe part of the judges who had to administer the lawbefore the present moral conviction that duelling iswrongful was established. Today a man who becomesengaged in a duel would be regarded as a moral wrong-doer : two centuries ago a man who refused to accepta challenge might well have been regarded as a socialoutcast. Perhaps another illustration of the influenceof law on morals can be found in the various MarriedWomen's Property Acts. In his play The Twelve-Pound Look Sir James Barrie drew a picture which


showed what economic independence might mean to awoman. It cannot be doubted that the economicindependence which women have achieved has in largepart been a fundamental cause in altering the socialand moral convictions and standards in this countryin recent years. The Acts which gave independenceto married women resulted from the efforts of a limitedgroup of persons, and could not have been said torepresent the general moral convictions of the country.

We can see a similar influence on morality beingexerted by the law of tort and by the criminal law.Without our realising it, we may find that what wehave come to regard as a moral obligation really findsits origin in the law. On this point Professor Fullerhas said 4S:

" Actually, if we look to those rules of moralitywhich have enough teeth in them to act as seriousdeterrents to men's pursuit of their selfish interests,we will find that far from being ' extra-legal' theyare intimately and organically connected with thefunctionings of the legal order. I may think that Idrive carefully because it is my moral duty to do soas a good citizen, and I may suppose that the lawmerely takes over my standard of driving—which is,of course, that of the prudent man—as a test toapply to drivers less virtuous than myself. I forgetto what extent my conceptions of my duty as adriver have been shaped by the daily activities ofthe traffic police."

** The Law in Quest of Itself, 1940, p. 136.

The Influence of Law on Morals 149

I have already referred to the close relationshipbetween law and morality in the field of commerce andindustry. The traffic here has not been all one waybecause in many instances it has been the law whichhas enabled the moral leaders of the commercialcommunity to impose their high standards on somenot over-enthusiastic followers. On this point thatgreat commercial lawyer Lord Atkin said 49:

" The law maintains and publicly maintains andenforces a very high standard of integrity. Lawand morality are, of course, not synonymous, andthe demands of morality and the moral code nodoubt extend into spheres where the law does notset its foot. But in dealings as between man andman the English law does set up a high, but not toohigh, attainable standard of honesty and fair dealingwhich, to my mind, is of the very greatest value tothe whole community and especially to the com-mercial community."

The instances which I have given—and there aremany more which could have been added to the list—make it clear that the civil law has played an importantpart in shaping the moral law of this country. Thisis hardly surprising because both of them are essentialand interrelated parts of our civilisation. Anyattempt to separate them in action is to cut " theseamless web " of English law, as Maitland has calledit, because the law is seamless not only in its historybut also in the forces which give it its life.

49 Presidential Address, 1930, the Holdsworth Club, BirminghamUniversity.


CONCLUSION

In these lectures I have attempted to show that theessence of law does not lie either in the fact that ithas been commanded by someone in authority or thatit contains a sanction in case the rule is violated. Itis, I believe, a rule of human conduct which is recog-nised as being obligatory. It is the sense of obligationwhich gives the rule its legal character. The relation-ship between law and morals is therefore of the utmostimportance because the recognition that a rule isobligatory under the moral law will be a powerfulelement in producing a similar recognition concerningthe obligatory nature of civil law.

When we turn to English civil law we find that theprinciples and rules of constitutional law are recog-nised as obligatory by both the representatives of theState who are in authority and by those who aresubjects of the Crown. It is correct therefore to speakof the Constitution as a body of legal rules eventhough no one has commanded them and althoughthere is no legal sanction attached to them. Therelationship between this constitutional law and themoral law is two-fold. First, the recognition that itis a moral duty to obey the rules of the Constitutionuntil they are altered in accordance with the properprocedure is one of the most powerful elements onwhich the recognition of the obligatory nature of theConstitution is based. Secondly, the principles of theConstitution are identical with the principles of themoral law as it is understood in the Western world.In contrast with this we can see that the weakness

Conclusion 151

of international law is found in the lack of moral law,and not in the international machinery.

In the various branches of English law we havefound that the relationship between civil law andmoral law is a close one. Even in such subjects asthe law of property and procedural law, which areregarded as peculiarly technical, the moral element isof great importance. Although few people would beprepared to argue that there are no parts of Englishlaw today which do not lag behind the generallyrecognised moral standards of the community, these" gaps " are comparatively rare and are of minorimportance.

The conclusion which I have therefore reached isthat the strength of English law, from the basic rulesof the Constitution to a minor regulation issued by alocal authority, depends in large part on the fact thatthe people of this country recognise that they areunder an obligation to obey the law, and that thissense of obligation is based, not on force or fear, buton reason, morality, religion, and the inherited tradi-tions of the nation. It is for this reason that we cantruly say that the common law is our commonheritage.

H.L.G.

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