The legal profession in this country is slowly awakening to the realization that, as Robert Hutchins suggested thirty years ago, it is becoming a technical trade. At the beginning of this century, its “law schools” had gained from the colleges a monopoly of the basic tools of finance and economics, as well as those of politics, jurisprudence, and social welfare—the instruction in contracts, agency, corporations, trusts, sales, credit transactions, property, taxation, wills, and estates, and in torts, criminal law personal relations, constitutional and administrative law. Now the emphasis is on techniques—drafting, sophistic reasoning, organizing, administering, financing, selling, and buying. Increasingly, law-school graduates are “admitted to the bar” as members of the judicial body and from then on never function in that capacity. They are immediately solicited by banking and business, by real estate and insurance, by administrative agencies—the SEC, Internal Revenue, Labor Relations, HEW, the ICC, the “White House,” the “Pentagon.”
Meanwhile, as law schools have grown (practically none existed 100 years ago), they have quietly retreated from the basic field of law relinquished to them by the colleges, the field of jurisprudence. Jurisprudence is the study of justice, “of what is right, just”—the essentially theological and philosophical foundations of governmental laws. Jurisprudence is no longer taught by theologians who are college presidents or deans—by Princeton’s John Witherspoon, Yale’s Timothy Dwight, or Georgetown’s Father Carroll. If offered, it is an elective. And jurisprudence also has been transmuted imperceptibly into a technical course on laws, “positive law”—legis, not juris, prudentia: a study of how the courts make law, not what law should be, or even whether the courts should be the law-makers.
Not so very long ago Noah Webster, a lawyer, commented in his dictionary that the study of “jurisprudence, next to that of theology, is the most important and useful to man.” Since the law schools have all but abandoned it, have the theologians, the theological schools, and the college philosophy faculties been happy to recover their proper field of study? They should be, for the study of Law, as distinguished from man-made laws, involves eternal absolutes. “It must be derived from the depth of philosophy.… Principles may be discovered in comparison with which the rules of positive law are but of trivial importance,” concludes Cicero himself a lawyer, in De Legibus. But there has been no such reclaiming of the lost ground. Jurisprudence is deserted. Yet everyone clamors for it. Within the past year, specialists in prison parole, international law, and law and politics in this country and England have repeatedly demanded a “standard of values,” a “moral consensus,” a “moral code of law,” proclaiming it essential for political survival.
How was such a sudden deterioration in the concept of “law” possible in our society, which has available the accumulations of legal history? Have we forgotten that the Babylonian Code of Hammurabi placed the chief of the gods, Marduk, at its center? What about Moses and the Hebrew Decalogue? Of Demosthenes: “Every law is a discovery and gift of God”? Or Aristotle: “He who bids the law rule may be deemed to bid God and reason rule, but he who bids man rule adds an element of the beast”? Or Cicero, in De Legibus: “I agree with you, brother, that what is right and true is also eternal, and does not begin or end with written statutes.… Law began … with the mind of God”? Or Paul’s assertion in Romans 13 that all law and government is a product of God’s will? And so on and on, through Augustine and Calvin, Suarez and Grotius, on down to Blackstone, the teacher of John Marshall’s age; and our own Chancellor Kent, who refers to “the brighter light, the more certain truths, and the more definite sanctions which Christianity has communicated to the ethical jurisprudence of the ancients.”
Classical scholars will insist that our modern ignorance of their field has permitted the rise of the new concept of “law.” It is true that the architects of our legal system were familiar with Moses, David, Demosthenes, Cicero, and Paul in their original tongues. Even such a busy farmer-scientist-administrator-legislator as Virginia’s lawyer-trained William Byrd continued to read his Hebrew Bible, his Greek New Testament, and his Latin classics each morning, long after his college days in Europe. We now classify these ancient tongues as “dead languages” and forget all that was written in them. Thus we lose both the classical and the biblical heritage that molded our society.
The permissive school of Dewey and its surrender to students of the choices of electives may partly explain this mystery. We should ask why our English language alone has failed to distinguish “law” meaning justice (jus, tsedek, droit, recht) from “law” meaning rules of government (lex, den, loi, gesetz), man’s law? More than mere forgetfulness of ancient history is seen in the fact that the term jurisprudence is now limited in effect, to legis-prudence.
Professor J. E. Holland’s nineteenth-century work entitled Jurisprudence is enlightening. Numerous editions were published in England and the United States, the tenth appearing in 1908. Professor Holland studiously begins his section on “Elements of Jurisprudence” by observing that this is a science involving justice—“the pursuit of truth” (tenth edition, 1908, citing Cicero). He reminds his readers that Cicero includes jurisprudence with astronomy, geometry, and dialectic (logic) among “the arts which have to do with the pursuit of truth” and goes on to say:
Cicero tells us that the study of law must be derived from the depths of philosophy, and that, by an examination of the human mind and of human society, principles may be discovered in comparison with which the rules of positive law are but of trivial importance.… Thus the way was prepared for Ulpian’s well-known definition of jurisprudence … [as] “the science of the just and unjust.”
In his second chapter, Holland considers “Law as a rule of action.” Again he cites Cicero: “Lex est recta ratio imperandi atque prohibendi.” (Law is the right measure of commanding and prohibiting). So, says Holland, the term “Law” is employed in jurisprudence, not “in the sense of the abstract idea of order,” but in the sense of “rules of conduct.” He further develops this idea in saying that:
The rules of human action which are most often confused with laws proper, are those which are called laws of God, laws of nature, and laws of morality. So closely are these topics connected with those proper to jurisprudence that many of the older works are occupied as much with the laws of God or of nature as with law proper” [he cites Walter Raleigh, Hobbes, Hooker, and Locke].… Such laws, the author of which is superhuman, are within the province of quite a different science.… The jurist must be warned “not to put his sickle into the dread field of Theology” [p. 39, 40].
So Holland adopts the term “positive law” for his subject. Having accepted “lex” as the definition of Law, he concludes that his treatise will be limited to legis prudentia.
What we mean by Jurisprudence is “politike” as distinguished from “ethike.” … Ethike is “ethics.” Politke is “Nomology.” … Ethike is the science mainly of duties.… Nomology looks to the definition and preservation of rights [the science of making laws] [p. 26].
Holland’s work on legis prudentia is still entitled Jurisprudence. Numerous works have followed Holland bearing the same title and similarly interested in politike, rather than ethike—in legal rights rather than jurisprudential duties. The allegiance between theology, morality, and laws—between ethics and politics—is severed. Blackstone and Kent have disappeared from the law schools. And it is politike that now sets the standards for ethike.
The experience of the College of New Jersey, Princeton, the home of John Witherspoon’s jurisprudence, is similarly enlightening. In 1889, young Woodrow Wilson had lunch with President Francis Patton concerning a new professorship “to include the history and philosophy of laws and institutions.” This was to be the first step toward “a worthy school of law.” Patton “had come to Princeton to stem the tendency which was setting strongly away from theological and classical leadership,” wrote Wilson’s biographer, W. S. Baker. “My dearest scheme, the establishment of a law school here on the Scottish and European plan of historical and philosophical, as well as technical, treatment,” said Patton.
But Wilson failed him. For example, when former president James McCosh remonstrated, after a Wilsonian lecture on sovereignty, “I have always held that sovereignty rests with God,” Wilson’s reply was not reassuring: “So it does, but I did not go so far back with my discussion.” Patton and McCosh always started there. And in the end, Wilson came to look on learning as a service to the nation, rather than as a development of the individual. His “chief end of life [was] … to discipline men to serve the state, devotedly, religiously, loyally.” True jurisprudence was forgotten. The state—politike, not ethike—comes first.
Are we condemned to perpetuate a situation in which the province of legal education is only technical, where jus has been superseded by lex—in other words, to a situation in which it is the will of the state, lex, that determines what is right, jus? Are we to have only a pluralistic society with regulations, but no shared morality to unify and to preserve social peace? England’s highest legal authority, Sir Alfred Lord Denning, Lord Justice of Appeal, has this to say in The Changing Law:
This brings me to the end. And what does it all come to? Surely this, that if we seek truth and justice, we cannot find it by argument and debate, nor by reading and thinking, but only by the maintenance of true religion and virtue. Religion concerns the spirit in man whereby he is able to recognize what is truth and what is justice; whereas law is only the application, however imperfectly, of truth and justice in our everyday affairs. If religion perishes in the land, truth and justice will also. We have already strayed too far from the faith of our fathers. Let us return to it, for it is the only thing that can save us.
There are, of course, many “religions,” and so there are differing concepts of Justice and of Law: of the jus upon which our lex is based. A society that consciously accepts the Great Commandments will produce a sense of justice and positive laws quite different from those of a society based on the principle of the “survival of the fittest.” Thus Babylonian, Roman, Greek, and Aztec law differed profoundly from one another because their religious concepts were different. This we must not forget.
Within our own legal tradition, there can be no question what the source of the sense of justice was. Noah Webster, a Yale graduate who was admitted to the bar in 1781, clarified what he meant when he spoke of “religion” as “the basis of government”
I do not mean an ecclesiastical establishment, a creed, or rites.… I mean primitive Christianity in its simplicity … consisting in a belief in the being, perfection and moral government of God; in the revelation of His will to men, as their supreme rule of action.
In the first edition of his dictionary he defines religion as “the performance of all known duties to God and our fellow men, in obedience to divine command, or from love to God and his Law. James 1.” As to revelation, Webster defines it as “the communication of truth to man by God for his instruction and direction … contained in the Old and New Testaments.”
We will never be able to restore the health of our society simply by tinkering with lex. We must recover our sense of the nature of justice, and this means a recognition of the sovereignty of God and of the fact that the divine standard for true justice is set in his Word.
OUT OF THIS NIGHT
To the world’s end
Through time and tide
Jesus our Lord
Is crucified
And by His passion
And His pain
He draws all men
To Him again.…
(O great the grace
That buoys me up
So even I
May share His Cup!)
Still through
The darkest deeps of sin
Love seeks His own:
He calls us in
Out of this night
Of dust’s despair;
And through
The angel-ambient air
Past cherubim
And seraphim
The Lord of Life
Lifts us with Him.
M. WHITCOMB HESS
