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The Three Types of LawAuthor(s): Georg SchwarzenbergerReviewed work(s):Source: Ethics, Vol. 53, No. 2 (Jan., 1943), pp. 89-97Published by: The University of Chicago PressStable URL: http://www.jstor.org/stable/2989186 .Accessed: 22/10/2012 08:02

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THE THREE TYPES OF LAW

GEORG SCHWARZENBERGER

HE self-limitation f the analyti-cal approach to jurisprudence hasled to the neglect by legal theory

of its most fundamental task, the questfor the essence of law and justice. Phi-losophers have attempted to fill the gapand have provided a bewildering numberof speculations on the nature of law andjustice. Yet, whatever their essence maybe, law and justice do not exist in vacuo.They are social agencies and fulfil socialfunctions. The use, therefore, which ismade of law and justice depends on thetype and character of the human associa-tion in which they find their realization.An investigation into the functions ful-filled by law and justice within differenttypes of social groups, therefore, mayassist in a better understanding of theirintrinsic nature.

LAW IN SOCIETY AND COMMUNITY

Sociologists, following n the footstepsof Sir Henry Sumner Maine, T6nnies,and Max Weber,' have elaborated thebasic distinction between society andcommunity. This dichotomy is as vitalfor the understanding of legal2 as ofother social phenomena.

A few examples may illustrate the dif-ferent atmospheres prevailing n societiesand communities.

I Sir Henry Sumner Maine, Ancient Law (i86i);Ferdinand Tonnies, Gemeinschaft nd Gesellschaft(3d ed.; Berlin, i887); Max Weber, Wirtschaft ndGesselschaft TUbingen, 922), p. 2I.

2 See, for an analysis from this point of view ofinternational aw, the present writer's The Rule ofLaw and the Disintegration of the InternationalSociety, American Journal of International Law,I939, pp. 56 ff., and more fully Power Politics (Lon-don, I94I), pp. 33 ff. and I38 ff.

To use a simile of Schopenhauer, whoapplied it to human society as such, asociety in the strict meaning of

the termmay be compared to an assemblage ofhedgehogs, living in such a climate thatthey are compelled to huddle together inorder to keep warm yet simultaneouslysubject to an instinct of repulsion, basedon their characteristic anatomical struc-ture. Or, a valuation of man which iscongenial to a society may be found inHobbes's Leviathan: The value, orworth of a man, is as of all other things,his Price; that is to say, so much aswould be given for the use of his Power:and therefore s not absolute; but a thingdependent on the need and judgment ofanother. 3 Similarly, Spinoza, visualiz-ing the state of nature in terms of a so-ciety, arrives at the conclusion: Thenatural right of every individual is only

determined by his power. 4A community would call for very dif-ferent motivations of action and forms ofbehavior. The way of life which corre-sponds to this pattern has found its clas-sical expression in the Meditations ofMarcus Aurelius5 and in the Sermon onthe Mount, but this spirit is just as muchat home in Chinese philosophy. Thus

Confucius describes a gentleman as onewho never contends n anything he does-except perhaps in archery. Even thenhe bows to his rival and yields him theway as they ascend the pavilion; in likemanner he descends and offers him the

3Part I, chap. x.

4 Tractat us theologico-potiticus, hap. xvi.

5 Cf. xi. i8.

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go ETHICS

penalty cup-in his contentions he is stilla gentleman. 6

What is the criterion which enables usto distinguish a society from a com-munity? According to Macmurray, t isthe difference n the intentions involved:

The intention involved in society liesbeyond the nexus of relation which itestablishes. In community it does not.It follows that society is a means to an

end, while community is an end itself.This may be stated from another angleby pointing out that a society can al-ways be defined in terms of a commonpurpose, while a community cannot. 7Different intentions produce differentmentalities and atmospheres. Only whenthere is a sufficient degree of solidaritybetween the members of a group, theraison d'etre of the association s not lim-ited to the fulfilment by the group ofthe typical functions of a society, the ad-justment of diverging interests and theachievement of a common task. Thecontinuation and perpetual integrationof a community s its purpose. The mem-bers of a community are united in spiteof their individual existence, whereas hemembers of a society remain isolated inspite of their association.

Yet it must be remembered hat theseterms are to be understood as ideal or

pure types. In real life these groupsdo not exist as pure communities or so-cieties; they are hybrids. Communitiessuch as a family, nation, or church maybe tainted by greater or smaller admix-tures of society elements. Correspond-

ingly, societies like a joint-stock com-pany or the international society, en-gulfed as it is in a system of power poli-

6Analects, Vol. I, Book III, chap. vii. See alsoWen Kwei Liao, The Individual and the Community(London, 933), pp. I40 ff.

J M F d i th P l

tics, have to accept a minimum of ethi-cal standards which, however, remaindwarfed in these incommensurate sur-roundings. It should also be kept inmind that, at one and the same time,man belongs to a number of social groupsand, therefore, simultaneously displaysthe vastly different attitudes which arerequired by life in societies and com-munities. This simultaneity of society

and community relations has beenstrongly emphasized by Spencer, and hehas perhaps o verstressed their exclusivecharacter: The broad fact then, here tobe noted, is that Nature's modes of treat-ment inside the family-group and outsidethe family-group are diametrically op-posed to one another; and that the intru-sion of either mode into the sphere of theother would be destructive either imme-diately or remotely. '

It may be rightly held that, if only suf-ficiently generally defined, some func-tions of law are not dependent on thequalification of a group as a communityor society but are common to both thesebasic forms of human association. Thus,whenever a group makes use of law as asocial agency, it is the function of law toprovide rational rules of conduct which,in case of conflict, can be authoritativelydetermined, and which, if necessary, canbe automatically enforced against thelawbreaker. The distinction, however,between society and community makesit possible to determine, with greater ac-curacy than has been the custom so far,the specific-and vastly differing-func-

tions fulfilled by law within these groups.THE FUNCTIONS OF SOCIETY LAW

(THE LAW OF POWER)

To illustrate the functions of societylaw, a hypothetical example may serve

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THE THREE TYPES OF LAW 9I

the purpose. What would a group ofwell-armed gangsters do who had madeup their mind to set up their rule over apowerless people and to establish them-selves as the ruling class in that country?In the first place, they would accumulateoverwhelming military power in theirhands and create a monopoly of physicalpower. They would reserve for them-selves all important political decisions

and merely grant a sham representationto their subjects, if they thought this tobe an advisable screen for their egocen-tric designs. They would jealously insiston their exclusive right to all key posi-tions in the judiciary and administra-tion. Through the agency of the govern-ment, they would expropriate the land,take possession of the best parts of it,

and leave to the subjects only as much assecured hem a bare minimum. Any partof their income beyond the starvationpoint would be taken from the subjectsby way of taxation, and their wages andsalaries would be fixed in such a mannerthat all taxation would lie exclusively ontheir shoulders. The government wouldcontrol education as well as freedom ofopinion and political association. Final-ly, it would be an important task of thegovernment to inculcate the belief bothamong the subjects and abroad that thesubjects were backward and incapableof any development toward real self-government and that, therefore, it wasin their own best interest to be ruled bythe super-race. Though it was left toHitler's New Order to develop to its

logical conclusions such a system ofwholesale exploitation, the treatment inthe past of subjected populations bytheir conquerors and the deeds of earlyimperialism ndicate that this pattern ofsociety relations is not a mere academic

Bentham's definition of the functions oflaw would assume a meaning slightly dif-ferent from that envisaged by its author:

All the functions of law may be referredto one or other of these four headings:to provide subsistence, to aim at abun-dance, to encourage quality and to main-tain security.'jIo

Though power is the overriding ele-ment in such a society as has been de-

scribed before, it tends to become law.The arbitrary extravagances of individ-ual members of a ruling class are antago-nistic to the interests of the class as awhole. In its own interest, therefore,every slave-holding society has to give aminimum of protection to its slaves. Asmuch as it is in the interest of the mas-ters not to drive their helots to despair

and,for this reason, to submit to a cer-

tain amount of self-limitation, from thestandpoint of the oppressed the harshestlaw of power is preferable to the blindplay of brute force. As the history ofearly Roman law and the struggle be-tween plebeians and patricians shows,the first consideration and strategic ob-jective of inferior orders are not the mit-igation and reform of the law but itsfixation and participation in its inter-pretation and application. The functionof a society law which is characterized bygross disparities n rights and duties maybe defined as the stabilization of a rela-tionship of power. This kind of law pro-vides one of the three fundamental ypesof law: the law of power. As such a lawbest serves its purpose if its real char-

acter and function are as much as possi-ble disguised behind a facade of techni-calities and quasi-ethical doctrines, it

9 Cf. F. Oppenheimer, Der Staat (Jena, I926),

and N. Leys, The Colour Bar in East Africa (Lon-don I94I) pp. I45-46

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necessarily tends to fulfil the concomi-tant function of an ideology by which thevested interests protected by it are dis-guised and made to appear dentical withthe interests of all. This is what Pascalmeans when he writes:

It is right hat what s just, should be obeyed;it is necessary hat what is strongest, hould beobeyed. Justice without might is helpless;might without justice is tyrannical. Justicewithout might s gainsaid, because here are al-ways offenders; might without justice is con-demned. We must then combine justice andmight, and for this end make what is juststrong, or what is strong ust. Justice s subjectto dispute; might s easily recognized nd is notdisputed. So we cannot give might to justice,because might has gainsaid ustice, and has de-clared hat it is she herself who s just. And thusbeing unable to make what is just strong, wehave made what is strong just.12

THE FUNCTIONS OF COMMUNITY LAW(THE LAW OF CO-ORDINATION)

It could be imagined that a communi-ty proper could entirely do without law.Groups such as a family, blood brother-hood, or church could be conceived asregulating their affairs without organswhich have to interpret authoritativelythe standards of conduct demanded by

these relationships and without sanctionsto enforce these obligations. Yet even inintimate groups of this kind situationsmay arise in which, in the absence oflegal norms and institutions, man willnot necessarily both discern what isgood for mankind as a community andinvariably be both able and willing toput the good into practice when he has

perceived it. 13 Even within a commu-nity abnormal situations may arise inwhich common moral standards requireto be supplemented and supported by

Cf. the speech of Thrasymachus in Plato'sRepublic . iii.

P N 298

law. Particularly in communities whichcomprise more than a small number ofmembers, there is need for agencieswhich give visible expression o the com-mon values and, whenever necessary,adapt them to changing circumstances.It would be hasty to conclude from theexperience that, in groups of this kind,sanctions are only exceptionally requiredand that community law is lacking this

customary element of law. The sanctionswhich are at the disposal of a highly in-tegrated community are more refinedand often different in kind from thoseavailable in a more crudely organizedsociety. The members of a communitymay value membership in it and ap-proval of their conduct by the othermembers o such an extent that the mere

possibility of disapproval by and exclu-sion from the community acts as a deter-rent and guide for the actual behavior ofits members.'4 Thus it appears hat evena community law has its inherent andcongenial system of sanctions.

The law of the community serves thepurpose of assisting in the maintenanceand continuous integration of the com-munity and the protection of the groupagainst abnormal aberrations on the partof its members. Its function consists inpromoting the best co-ordination of ef-forts and activities in the interest of thecommunity. Spheres of work have to bedefined. Duties and responsibilities haveto be assigned. If rights are granted, thisis done, because t is in the interest of thewhole, not because a member has the

power to demand t. In the early Romancommunity the maintenance of the fam-ily sacra, a religious duty incumbent up-on the pcter fatmilias, was considered to

14 Cf. Lord Bryce, Primitive Iceland, in Studies

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be of highest importance. In the absenceof a son who could succeed in the fulfil-ment of this sacred duty, a substitutehad to be found. Thus the institution ofadoption and a limited freedom of testa-tion developed, in order to enable theRoman citizen to fulfil his duty to thegods and the community as a whole. In amonastery of the Middle Ages life wassufficiently complex to require govern-

ment and assignment of functions.Rules, therefore, had to be devised howbest to assure the achievement of thecommon purpose-the glorification ofGod and the maintenance of the com-munity. Every member was anxious tocontribute his share, and the more oner-ous and burdensome he task, the higherthe honor which it conferred was

deemed to be. The function of such a lawis the co-ordination of efforts,'5 and thisfeature is the characteristic of a lawwhich is diametrically opposed to an ex-treme society law. The law of power andthe law of co-ordination form the twoantipodes which legal genius has created.While the one embodies strong ideologi-cal elements, the other, in view of theaverage human makeup, largely remainsan unfulfilled aspiration and, to that ex-tent, utopian.

THE FUNCTIONS OF LAW IN HYBRID

GROUPS (THE LAW OF

RECIPROCITY)

In reality societies and communitiesshow features which blur the border inebetween the two groups. Correspond-ingly, the law of power partakes of thecharacteristics of the law of co-ordina-tion, and the law of co-ordination bor-rows from ts opposite type. Even withina society motivated by typical society in-

tentions, such an intermediate and am-bivalent stage is bound to arise, if theentities of which it is composed happento be of approximately equal strength.Then a situation exists in which a thirdtype of law, the law of reciprocity, canbe realized. In the words of Aristotle,

amongst equals whatever is fair andjust, ought to be reciprocal, for this isequal and right; but that equals should

not partake of what is equal, or like tolike, is contrary to nature. This stateof affairs in which the equilibrium ofpower makes it possible for power to beignored seems to correspond o the typi-cal nature of man. It has produced theearliest form of legal transactions-bar-ter. Both sides are content if they areconvinced that they have received more

or at least as much as they have given.This implies that man is not predomi-nantly altruistic but is prepared o act onthe basis of the principle do ut des, toconsider the application of this principleto his own affairs as just and fair, and tocome to an understanding with his fel-low-men on the standards by which thequid pro quo is to be determined. In ex-ceptional circumstances he homo uridi-cus is willing to give more than he takes.This may be due to inferiority of poweror to mistake and fraud. Then recip-rocity is achieved in a merely formalsense. In the first case, the lack of equi-librium is made up by the awareness ofthe hypothetical situation, if agreementhad not been reached or the law of powerhad been disobeyed. In the second case,

reciprocity s assumed but in reality doesnot exist and has to be restored by spe-cial remedies. These two examples rep-resent typical society constellations. Thewillingness, however, to forego actualreciprocity, may also be due to volun-

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94 ETHICS

reciprocity n a spiritual sense is achievedby the consciousness of such sacrifice andits acknowledgment by the community.Such an attitude is typical of the law ofco-ordination.

The law of reciprocity may be consid-ered as a compromise between the lawsof power and of co-ordination, betweenthe extremes of brutal domination andsuperhuman self-negation. While it is

characteristic of groups which them-selves are hybrids, it may be used inten-tionally by communities for the regula-tion of affairs which are considered o beperipheral rom the point of view of thecommunity as a whole. As is obviousfrom systems of private law which re-quire causa or consideration or discour-age gratuitous contracts, groups claimingto be communities make use within lim-its of the egotistical levers of social ac-tion: Every one has his special interestin view, no one thinks of the purpose,and yet this purpose s perhaps furtheredin this way more surely and quickly thanif it had been pursued by the govern-ment directly. '7

Thus it appears that mankind has de-veloped three basic patterns of law, andtheir working principles are power, reci-procity, and co-ordination. Yet, thevalue of such a typology depends on thetest whether it provides any additionalinsight into the phenomenon of law. Itwould surpass the scope of a tentativearticle to attempt more than to sketchthe potentialities inherent in this ap-proach to problems of jurisprudence.

THE THREE TYPES OF LAW AND SELECTED

PROBLEMS OF TRADITIONAL

JURISPRUDENCE

It should be strongly emphasized hatany novel approach to questions of

jurisprudence does more harm than goodif it aspires at exclusiveness. There areproblems of legal theory on which morelight is thrown by the use of the analyti-cal, comparative, or historical methodsthan by a sociological approach. Yet theinvestigation of law as a social phenome-non may assist in the fuller understand-ing of some of these problems for which,so far, no sufficient answer has been pro-

vided.i. The definition of law.-The position

has not essentially changed since Kantwrote: The jurists still seek a definitionof their concept of law. They have de-fined law by reference to its substance:as truth, reason, and authority; theyhave tried to comprehend t as an aggre-gate of laws: as rules of conduct, as thesum total of decisions, or as the prophecyof official action; they have conceived itas synonymous with the legal order or interms of canons of value; they have iden-tified it with the judicial process.'8 Ob-viously, it is possible to find definitions oflaw which apply to society and com-munity laws alike. Yet, of necessity,such definitions must remain rathervague. Nevertheless, they indicatesomething real: the elements commonto law in all human associations. Thesame cannot be said of all these defini-tions, e.g., of those which identify laweither with veritas or auctoritas. It mightpay to investigate the closer relationshipbetween the auctoritas onception of lawand society types of law and between theveritas conception of law and highly in-

tegrated communities. It is tentativelysuggested that, the more a group is or-ganized on the pattern of a society, themore law may rightly be defined as theword of him that by right hath command

x8 Cf R P d M b t th N t f

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THE THREE TYPES OF LAW 95

over others, '9 and the more a group mayclaim to be a community, the truer it isto call law the force or tendency whichmakes for righteousness.2

2. Contents of the law of nature.-Thetraditional exposition of the law of na-ture is limited to the statement of vaguecharacteristics of natural law: that it isunwritten, that it has actual validity,that it is in possession of an idea of law

which can be used as a measuring rod ofpositive law, and that it comprises natu-ral norms in accordance with which so-cial behavior obviously should be regu-lated.21 Once writers attempt to expresstheir ideas in more concrete terms, theirstatements are flatly contradictory. Twoinstances may illustrate this point. Ac-cording to Hobbes, seeing then to theoffensiveness of

man's nature one to an-other, there is added a right of every manto everything, whereby one man in-vadeth with right, and another withright resisteth; and men live thereby inperpetual diffidence, and study how topreoccupate each other; the estate ofmen in this natural liberty is the estateof war. 22 The opposite thesis is upheldby Pufendorf: Now it is one of the firstprinciples of natural law that no one

'9 Hobbes, Leviat/an, Part I, chap. xv.20 E. Jenks, The New Jurisprudence London,

1933), p. I.

21 To show that it is necessary for jurisprudenceto concern itself with this question, it is only neces-sary to refer to the strong influence of natural lawon the practice of courts in Anglo-Saxon countriesand on the Continent, a fact which'positivists shouldbe the last to ignore. Cf., e.g., Lord Wright's dictum

in Rose v. Ford (I937), A.C. 826, at 852: It was notindeed, even before the Act of 1934, pertinent oreven sensible to refer to the case of a man suing forhis own death. Literally, not the common law, butthe law of nature, prevented that even beingimagined .... Natural reasons still operate to pre-vent a man from suing for his own death. See alsoCharles G Haines The Revival f Natural LawCon-

unjustly do another hurt or damage, aswell as that meni hould perform or eachother the duties of humanity, and showespecial zeal to fulfil the matters uponwhich they have entered into particularagreements.' 3 While Hobbes picturesthe state of nature as society, if not an-archy, Pufendorf conceives it as a com-munity. Their conclusions, herefore, re-garding the ordo rerum are necessarily

diametrically opposed to each other. Inorder adequately to appreciate hese doc-trines, it is necessary to divide theorieson natural law into those which are con-cerned with the natural aw appertainingto a society and those which work on theassumption of a community proper.Then the apparent discrepancies disap-pear, and it will be found that these the-

ories contain valuable intuitions on thenature and functions of community andsociety laws.

3. The meaning of justice.-Justice asthe central value in any system of natu-ral law has suffered n its scientific treat-ment from the same methodologicalshortcomings as the exposition of naturallaw doctrines in general. If the essenceof justice is defined as ius suum cuiquetribuendi or as the equal treatment ofequals, it depends entirely on the struc-ture of the human association n which itis to be meted out, what is due to every-one and which members of the group areto be considered as equals. The decisiveproblem always is the desirable degree ofabstraction from actual inequality, andwhat is just in a society may be a trav-

esty of justice in a community. Thus itis futile to discuss justice in the abstractwithout reference to the purpose andstructure of a given group. As equity isnothing but the application of principlesof justice to concrete cases, the same con-

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siderations equally apply to discussionson the nature, functions, and contents ofnatural equity. There was wisdom n thename which Jaroslav the Just (A.D. IOI 5-

50) gave to his code. He called it PravdaRusskaya Russian Truth.

4. The controversy egarding he auton-omous or heteronomous haracter f moraland legal norms.-In the perennial dis-cussions on the difference between moral-

ity and law it has been frequently as-serted that moral rules are autonomous,whereas legal norms are heteronomous.Reference to the social backgroundagainst which both sets of rules developmight have suggested that in this allegeddifference the criterion cannot be foundwhich divides law from morality. Ac-tually, both law and morality are au-

tonomous and heteronomous. Both aresocial phenomena which cannot be con-ceived without the human group in theorbit of which they find their realization.Both, however, are also autonomous, aseven law requires more than blind obedi-ence. The degree of law obedience can-not be measured by the relatively fewcases which lead to litigation but by theuntold number of those which do notarise, because the validity of the law iscommonly acknowledged. Yet hereagain a connection exists between thethree types of law and its autonomousand heteronomous character. The morea legal system is a community law, thestronger s its autonomous character andvice versa.

5. The legal character f law in totali-

tarian states.-For the extreme positivistthe problem of the legal character of thelaw applied in totalitarian countries doesnot arise. Their laws emanate from law-givers, they are applied by the courts,they are obeyed in the majority of cases,

of a doctrine of natural law such as theone professed by the Catholic church,many statutes promulgated in totali-tarian states are nothing but corruptelaelegis and, therefore, null and void.Though sociological jurisprudence can-not answer the question in the terms putby the naturalists, it can bring out spe-cific features of totalitarian law which,otherwise, remain unobserved. For a

proper understanding of these legal sys-tems, it is essential to distinguish thevarious types of law which the totali-tarian rulers attempt to combine. Theyfrequently apply principles which per-tain to the law of co-ordination. They,however, give it an arbitrary and exclu-sive twist which subjects certain groupswithin their sway to an undisguised aw

of power, and the ruling elite considersitself as entitled to suspend the commu-nity law even with regard to the mem-bers of the HIerrenvolk n favor of a law ofpower which is incompatible even withthe maintenance of an exclusive com-munity, limited to the chosen people.

6. The legal character f internationallaw.-Is international law law or is itmerely positive morality? How can asystem claim legal character if it lacksthe customary attributes of municipallaw, legislative organs, courts, and sanc-tions? Questions of this kind uncriticallytake it for granted that there is only onetype of law-the law as we know it with-in the modern state. The sterile discus-sions which center around this problemignore the vital difference between the

social substrata of municipal and inter-national law and therefore either lead toeuphemistic and unrealistic assertions ofthe identical character of municipal andinternational law or to resigned admis-sions of inexplicable differences which

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a curious mixture of the three basic typesof law. As the rule of law in the inter-national society is conditioned by thearbitrament of force, primarily interna-tional law is a law of power. In situa-tions, however, in which the threat offorce is no longer available, becausestates have resorted to this ultimatemeans of pressure, or in relations which,within a system of power politics, areperipheral, there is wide scope for theapplication of the law of reciprocity. As

is evident from the development of inter-national institutions in nonpolitical

spheres, there is even room within inter-national law for a timid assertion of thelaw of co-ordination. While it would eadtoo far here to elaborate these points,24the fact that this typology may with easebe applied to problems both of municipaland of international jurisprudence ndi-cates that the three types of the laws ofpower, reciprocity, and co-ordination areof general applicability in the realm oflegal theory.

UNIVERSITY OF LONDON

24 Cf. works cited in n. 2 above.