27
utilitarian distinction to be wrong, the point must be drastically restated. The point must be not merely that a judicial decision to be rational must be made in the light of some conception of what ought to be, but that the aims, the social policies and purposes to which judges should appeal if their decisions are to be rational, are themselves to be considered as part of the law in some suitably wide sense of "law" which is held to be more illuminating than that used by the Utilitarians. This restatement of the point would have the following consequence: instead of saying that the recurrence of penumbral questions shows us that legal rules are essentially incomplete, and that, when they fail to determine decisions, judges must legislate and so exercise a creative choice between alternatives, we shall say that the social policies which guide the judges' choice are in a sense there for them to discover; the judges are only "drawing out" of the rule what, if it is properly understood, is "latent" within it. To call this judicial legislation is to obscure some essential continuity between the clear cases of the rule's application and the penumbral decisions. I shall question later whether this way of talking is salutory, but I wish at this time to point out something obvious, but likely, if not stated, to tangle the issues. It does not follow that, because the opposite of a decision reached blindly in the formalist or literalist manner is a decision intelligently reached by reference to some conception of what ought to be, we have a junction of law and morals. We must, I think, beware of thinking in a too simple-minded fashion about the word "ought." This is not because there is no distinction to be made between law as it is and ought to be. Far from it. It is because the distinction should be between what is and what from many different points of view ought to be. The word "ought" merely reflects the presence of some standard of criticism; one of these standards is a moral standard but not all standards are moral. We say to our neighbour, "You ought not to lie," and that may certainly be a moral judgment, but we should remember that the baffled poisoner may say, "I ought to have given her a second dose." The point here is that intelligent decisions which we oppose to mechanical or formal decisions are not necessarily identical with decisions defensible on moral grounds. We may say of many a decision: "Yes, that is right; that is as it ought to
be," and we may mean only that some accepted purpose or policy has been thereby advanced; we may not mean to endorse the moral propriety of the policy or the decision. So the contrast between the mechanical decision and the intelligent one can be reproduced inside a system dedicated to the pursuit of the most evil aims. It does not exist as a contrast to be found only in legal systems which, like our own, widely recognize principles of justice and moral claims of individuals.
An example may make this point plainer. With us the task of sentencing
28
in criminal cases is the one that seems most obviously to demand from the judge the exercise of moral judgment. Here the factors to be weighed seem clearly to be moral factors: society must not be exposed to wanton attack; too much misery must not be inflicted on either the victim or his dependents; efforts must be made to enable him to lead a better life and regain a position in the society whose laws he has violated. To a judge striking the balance among these claims, with all the discretion and perplexities involved, his task seems as plain an example of the exercise of moral judgment as could be; and it seems to be the polar opposite of some mechanical application of a tariff of penalties fixing a sentence careless of the moral claims which in our system have to be weighed. So here intelligent and rational decision is guided however uncertainly by moral aims. But we have only to vary the example to see that this need not necessarily be so and surely, if it need not necessarily be so, the Utilitarian point remains unshaken. Under the Nazi regime men were sentenced by courts for criticism of the regime. Here the choice of sentence might be guided exclusively by consideration of what was needed to maintain the state's tyranny effectively. What sentence would both terrorize the public at large and keep the friends and family of the prisoner in suspense so that both hope and fear would cooperate as factors making for subservience? The prisoner of such a system would be regarded simply as an object to be used in pursuit of these aims. Yet, in contrast with a mechanical decision, decision on these grounds would be intelligent and purposive, and from one point of view the decision would be as it ought to be. Of course, I am not unaware that a whole philosophical tradition has sought to demonstrate the fact that we cannot correctly call decisions or behavior truly rational unless they are in conformity with moral aims and principles. But the example I have used seems to me to serve at least as a warning that we cannot use the errors of formalism as something which per se demonstrates the falsity of the utilitarian insistence on the distinction between law as it is and law as morally it ought to be.
We can now return to the main point. If it is true that the intelligent decision of penumbral questions is one made not mechanically but in the light of aims purposes, and policies, though not necessarily if the light of anything we would call moral principles, is it wise to express this important fact by saying that the firm utilitarian distinction between what is the law is and what it ought to be should be dropped? Perhaps the claim that it is wise cannot be theoretically refuted for it is, in effect, an invitation to revise our conception of what a legal rule is. We are invited to include in the "rule" the various aims and policies in the light of which its penumbral cases are decided on the ground that these aims have, because of their importance, as much right to be called law as the core of legal rules whose meaning is settled.
29
But though an invitation cannot be refuted, it may be refused and I would proffer two reasons for refusing this invitation. First, everything we have learned about the judicial process can be expressed in other less mysterious ways. We can say laws are incurably incomplete and we must decide the penumbral cases rationally by reference to social aims. I think Holmes, who had such a vivid appreciation of the fact that "general propositions do not decide concrete cases," would have put it that way. Second, to insist on the utilitarian distinction is to emphasize that the hard core of settled meaning is law in some centrally important sense and that even if there are borderlines, there must first be lines. If this were not so the notion of rules controlling courts' decisions would be senseless as some of the "Realists"-in their most extreme moods, and, I think, on bad grounds-claimed.
By contrast, to soften the distinction, to assert mysteriously that there is some fused identity between law as it is and as it ought to be, is to suggest that all legal questions are fundamentally like those of the penumbra. It is to assert that there is no central element of actual law to be seen in the core of central meaning which rules have, that there is nothing in the nature of a legal rule inconsistent with all questions being open to reconsideration in the light of social policy. Of course, it is good to be occupied with the penumbra. Its problems are rightly the daily diet of the law schools. But to be occupied with the penumbra is one thing, to be preoccupied with it another. And preoccupation with the penumbra is, if I may say so, as rich a source of confusion in the American legal tradition as formalism in the English. Of course we might abandon the notion that rules have authority; we might cease to attach force or even meaning to an
argument that a case falls clearly within a rule and the scope of a precedent. We might call all such reasoning "automatic" or "mechanical," which is already the routine invective of the courts. But until we decide that this is what we want, we should not encourage it by obliterating the Utilitarian distinction.
III
The third criticism of the separation of law and morals is of a very different character; it certainly is less an intellectual argument against the Utilitarian
27
utilitarian distinction to be wrong, the point must be drastically restated. The point must be not merely that a judicial decision to be rational must be made in the light of some conception of what ought to be, but that the aims, the social policies and purposes to which judges should appeal if their decisions are to be rational, are themselves to be considered as part of the law in some suitably wide sense of "law" which is held to be more illuminating than that used by the Utilitarians. This restatement of the point would have the following consequence: instead of saying that the recurrence of penumbral questions shows us that legal rules are essentially incomplete, and that, when they fail to determine decisions, judges must legislate and so exercise a creative choice between alternatives, we shall say that the social policies which guide the judges' choice are in a sense there for them to discover; the judges are only "drawing out" of the rule what, if it is properly understood, is "latent" within it. To call this judicial legislation is to obscure some essential continuity between the clear cases of the rule's application and the penumbral decisions. I shall question later whether this way of talking is salutory, but I wish at this time to point out something obvious, but likely, if not stated, to tangle the issues. It does not follow that, because the opposite of a decision reached blindly in the formalist or literalist manner is a decision intelligently reached by reference to some conception of what ought to be, we have a junction of law and morals. We must, I think, beware of thinking in a too simple-minded fashion about the word "ought." This is not because there is no distinction to be made between law as it is and ought to be. Far from it. It is because the distinction should be between what is and what from many different points of view ought to be. The word "ought" merely reflects the presence of some standard of criticism; one of these standards is a moral standard but not all standards are moral. We say to our neighbour, "You ought not to lie," and that may certainly be a moral judgment, but we should remember that the baffled poisoner may say, "I ought to have given her a second dose." The point here is that intelligent decisions which we oppose to mechanical or formal decisions are not necessarily identical with decisions defensible on moral grounds. We may say of many a decision: "Yes, that is right; that is as it ought to
be," and we may mean only that some accepted purpose or policy has been thereby advanced; we may not mean to endorse the moral propriety of the policy or the decision. So the contrast between the mechanical decision and the intelligent one can be reproduced inside a system dedicated to the pursuit of the most evil aims. It does not exist as a contrast to be found only in legal systems which, like our own, widely recognize principles of justice and moral claims of individuals.
An example may make this point plainer. With us the task of sentencing
28
in criminal cases is the one that seems most obviously to demand from the judge the exercise of moral judgment. Here the factors to be weighed seem clearly to be moral factors: society must not be exposed to wanton attack; too much misery must not be inflicted on either the victim or his dependents; efforts must be made to enable him to lead a better life and regain a position in the society whose laws he has violated. To a judge striking the balance among these claims, with all the discretion and perplexities involved, his task seems as plain an example of the exercise of moral judgment as could be; and it seems to be the polar opposite of some mechanical application of a tariff of penalties fixing a sentence careless of the moral claims which in our system have to be weighed. So here intelligent and rational decision is guided however uncertainly by moral aims. But we have only to vary the example to see that this need not necessarily be so and surely, if it need not necessarily be so, the Utilitarian point remains unshaken. Under the Nazi regime men were sentenced by courts for criticism of the regime. Here the choice of sentence might be guided exclusively by consideration of what was needed to maintain the state's tyranny effectively. What sentence would both terrorize the public at large and keep the friends and family of the prisoner in suspense so that both hope and fear would cooperate as factors making for subservience? The prisoner of such a system would be regarded simply as an object to be used in pursuit of these aims. Yet, in contrast with a mechanical decision, decision on these grounds would be intelligent and purposive, and from one point of view the decision would be as it ought to be. Of course, I am not unaware that a whole philosophical tradition has sought to demonstrate the fact that we cannot correctly call decisions or behavior truly rational unless they are in conformity with moral aims and principles. But the example I have used seems to me to serve at least as a warning that we cannot use the errors of formalism as something which per se demonstrates the falsity of the utilitarian insistence on the distinction between law as it is and law as morally it ought to be.
We can now return to the main point. If it is true that the intelligent decision of penumbral questions is one made not mechanically but in the light of aims purposes, and policies, though not necessarily if the light of anything we would call moral principles, is it wise to express this important fact by saying that the firm utilitarian distinction between what is the law is and what it ought to be should be dropped? Perhaps the claim that it is wise cannot be theoretically refuted for it is, in effect, an invitation to revise our conception of what a legal rule is. We are invited to include in the "rule" the various aims and policies in the light of which its penumbral cases are decided on the ground that these aims have, because of their importance, as much right to be called law as the core of legal rules whose meaning is settled.
29
But though an invitation cannot be refuted, it may be refused and I would proffer two reasons for refusing this invitation. First, everything we have learned about the judicial process can be expressed in other less mysterious ways. We can say laws are incurably incomplete and we must decide the penumbral cases rationally by reference to social aims. I think Holmes, who had such a vivid appreciation of the fact that "general propositions do not decide concrete cases," would have put it that way. Second, to insist on the utilitarian distinction is to emphasize that the hard core of settled meaning is law in some centrally important sense and that even if there are borderlines, there must first be lines. If this were not so the notion of rules controlling courts' decisions would be senseless as some of the "Realists"-in their most extreme moods, and, I think, on bad grounds-claimed.
By contrast, to soften the distinction, to assert mysteriously that there is some fused identity between law as it is and as it ought to be, is to suggest that all legal questions are fundamentally like those of the penumbra. It is to assert that there is no central element of actual law to be seen in the core of central meaning which rules have, that there is nothing in the nature of a legal rule inconsistent with all questions being open to reconsideration in the light of social policy. Of course, it is good to be occupied with the penumbra. Its problems are rightly the daily diet of the law schools. But to be occupied with the penumbra is one thing, to be preoccupied with it another. And preoccupation with the penumbra is, if I may say so, as rich a source of confusion in the American legal tradition as formalism in the English. Of course we might abandon the notion that rules have authority; we might cease to attach force or even meaning to an
argument that a case falls clearly within a rule and the scope of a precedent. We might call all such reasoning "automatic" or "mechanical," which is already the routine invective of the courts. But until we decide that this is what we want, we should not encourage it by obliterating the Utilitarian distinction.
III
The third criticism of the separation of law and morals is of a very different character; it certainly is less an intellectual argument against the Utilitarian
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