Diesing, Paul

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Buffalo Law Review Volume 15 Number 1 Article 22 10-1-1965 Human Law and Human Justice. by Julius Stone. Paul Diesing University at Buffalo School of Law Follow this and additional works at: https://digitalcommons.law.buffalo.edu/buffalolawreview  Part of the Human Rights Law Commons Recommended Citation Paul Diesing, Human Law and Human Justice. by Julius Stone., 15 Buff. L. Rev. 244 (1965). Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol15/iss1/22 This Book Review is brought to you for free and open access by the Law Journals at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Buffalo Law Review by an authorized editor of Digital Commons @ University at Buffalo School of Law. For more information, please contact lawscholar@buffalo.edu. BUFFALO LAW REVIEWate superior in the State Department, Harlan Cleveland, enriches the value ofthis forward-looking work.ED-wARD McWHINNEYProfessor of Law and Member of theCentre for Russian StudiesUniversity of TorontoHu Aw LAw An HUmAN JusTICE. By Julius Stone. Stanford: Stanford Uni-versity Press, 1965. Pp. xxiii, 415. $10.00.This is the second volume of Stone's three-volume revision and expansionof his earlier Province and Function of Law (1946). The latter work is sub-titled Law as Logic, Justice, and Social Control, and in his revision Stone devotesa separate volume to each topic. The first volume, Legal System and Lawyers'Reasonings, reviewed in 14 Buffalo L. Rev. 347 (1965) deals with the reasoningused in the judicial process and with theories of legal reasoning. The presentvolume deals with criteria for evaluating law and judicial decisions.Stone approaches the question of what justice is by examining varioustheories of justice, some briefly and some extensively. He begins with a shortsurvey of Greek and Hebrew theories, and continues with a lengthy account ofvarious natural law theories up to about 1800. Next comes a chapter on "meta-physical individualism," the idea that the aim of law is to protect the libertyof the abstract individual, with theorists from Kant and Blackstone toMcReynolds J. and Hayek given brief attention. Stone then considers thephilosophies of Bentham, Ihering, Duguit, Stammler, Kohler, contemporarynatural law, Radbruch, and Pound. He dismisses briefly and effectively theclaims of language analysis and an intuitionist "sense of injustice" to shed anynew light on justice, and devotes a final chapter to his own views on justice.Although the book is laid out in historical fashion, it is not actually ahistory of theories of justice. Major figures are either given bare mention oromitted completely: thus Plato and Aristotle are allowed one paragraph each,and Hegel and Marx are omitted completely, although Stone repeats somecommon misconceptions of the Hegelian dialectic in his discussion of Kohler.'Conversely, relatively minor figures like Duns Scotus, Leonard Nelson, ArthurKaufman, and Werner Maihofer are given detailed and careful treatment. Norare the latter three discussed merely because of their recency; other recentwriters of at least equal importance-Alf Ross, Karl Llewellyn, E. N. Garlan,Harold Laski, Kelsen, and Holmes-are not discussed at all or limited to afew sentences, though Stone makes frequent footnote references to their argu-ments and discusses some of them in Volume 1 or 3. Plainly a selective principle1. Pp. 186-87.BOOK REVIEWSis at work. Stone selects his theories, not for their intrinsic importance and com-plexity, nor for their 'historical importance, nor even for their contemporaryrelevance, but for the way they fit into a theoretical scheme with which he isworking.The scheme finally appears in Chapter 10. It is a list of four central issuesin the theory of justice: 21. Natural law as contrasted with other (usually what is called "posi-tivist") theories of justice, raises questions as to whether justice mustbe thought of in terms of norms transcending the human ....2. Metaphysical (or "a priori" or "pure") theories such as Kant's, onthe one hand, stand in contrast to empiricist theories such as Duguit'son the other. The former claim to impose obligation by virtue of theirsupposed non-derivation from the social facts . . . the latter claim toimpose obligation by virtue of the precise contrary, their derivationfrom social facts ....3. Theories which seek absolute standards ... Kant's or Stammler'sor Kohler's, stand in contrast with relativist theories, such as those ofIhering, Radbruch, or Pound ...4. . . . theories which seek to achieve justice by some general oruniversal formula (such as Kant's or Stanmler's) stand in contrastwith those such as Bentham's or Pound's, which are directed to theuniqueness of the judgment of justice in each particular situation.These four issues are the ones that concern Stone throughout the book,and control both his selection and his treatment of materials. He selects fordetailed discussion those theories which can best represent one or more ofthe eight positions, and in each discussion probes the theory for the strengthsand weaknesses of the positions it represents. Thus for example in the chapteron relativism he is concerned with the relativist position in general, and selectsRadbruch for detailed treatment because his is "the most comprehensive andsystematic modern attempt to validate relativist theories of justice . . .2He selects for briefer discussion those theories which add some interestingvariation to a position or clarify some central point in it. For example hediscusses Leonard Nelson because Nelson adds a new wrinkle to the meta-physical position: "This claim to be able to deduce a system of ethical rulesconstitutes here a special interest of Nelson's neo-Kantian version of justice." 4Theories which exemplify positions already well represented can safely beomitted or discussed in footnotes.Stone notes that the four issues are not entirely independent but, on thecontrary, cluster rather closely together. They could, indeed, be oversimplifiedto one basic issue: "a 'typical' natural lawyer will be embraced by the formerarm of all four distinctions; a 'typical' sociological jurist by the latter arm ineach case."'5 Now if we think of Stone, with Pound, as a sociological jurist this2. P. 288.3. P. 235.4. P. 181.5. Pp. 288-89.BUFFALO LAW REVIEWwould seem to imply that the basic opposition is between Stone and the naturallaw theorists. However, this is not the case. Though Stone's sympathies lie withthe sociological jurists, he does not commit himself to any of the eight positions,but tries carefully to weigh the merits of each one. He is particularly carefulin his probing of the natural law position, searching out all possible recentversions that would make the position more clear and more plausible, anddescribes himself as "a rather sceptical admirer at some distance."Stone's conclusions are as follows:1. The natural lawyer and the positivist can, and should, co-operate in thequest for justice. Stone insists that natural lawyers have no monopoly of in-terest in justice and certainly do not have all the answers either. Nor is naturallaw theory the only way to relate law and justice to God; the Hebrew prophetshad a theological interest in justice but did not use natural law concepts. But,on the other hand, Stone affirms the possibility of expressing conceptions ofjustice in natural law terminology, and suggests that for many centuries thiswas the accepted thing to do. Thus he tends to see natural law terminology assimply a convenient way of speaking about justice, and feels that positivistsshould not take offense at terminology. To the extent that natural law theoryclaims to be a distinct theory rather than just a way of speaking, Stone rejectsit; for instance he rejects the contention that an unjust law is not a law at all.2. Neither the a priori nor the empiricist position is valid, according toStone. A priori definitions of justice cannot be made to yield specific conclusionsunless empirical propositions are tacitly added to them; empiricist positions aresimilarly ambiguous. In addition, empiricists have not succeeded in derivingobligations from facts, and a priorists have not shown why we are obligatedby a principle supposedly pure and remote from the world. The implication isthat all theories of justice must preserve a tension between facts and ideals, eventhose which pretend to escape from one or the other pole. Also there is an in-escapable emotive element in all theories of justice, since there is no indisputablecognitive ground of obligation.3. With regard to absolutism and relativism Stone clearly favors therelativist position because it faces more directly the problem of adapting lawto changing conditions; but he feels that in times of rapid change and dividedsocieties even relativists such as Pound are at a loss. This is perhaps not somuch a criticism of relativism as a recognition of the difficulty of specifyingthe content of justice in times of rapid change. In addition, Stone feels thatrelativists should continually search for absolute principles of justice, thoughthey should never expect to find any. In the last chapter Stone presents, as hisown theory, nine "quasi-absolute" precepts, clearly successors to Pound's juralpostulates, which he thinks specify the content of justice at present in the indus-6. P. 210.BOOK REVIEWStrial West. Perhaps Stone's position could have been expressed more clearly andless paradoxically if he had distinguished several senses of "absolute" and "rela-tive" instead of formulating a grand dualism and then fogging it over.4. With regard to universal and particular, Stone argues that it is im-possible to define a universal justice in such a way that it yields unambiguousresults in particular cases. He contends that current definitions of justice interms of equality, fairness, or consent are hopelessly ambiguous, and makes thesame point for earlier definitions in terms of utility, interests, individual liberty,and social solidarity. On the other hand a particularized justice cannot becarried over from one case to the next. The solution here is to state precepts-the jural postulates-which are relatively particular but not completely so.Stone supports his conclusions with numerous and detailed arguments in-cluding both standard arguments against the various positions and new onesof his own. Nearly all of the arguments and judgments seem to me to be sound,though I feel Stone has not appreciated the strength of either the metaphysicalor the empiricist position, and consequently has failed to substantiate his con-tention that there can be no cognitive ground of obligation, either metaphysicalor empirical. But I am sure the proponents of the various positions will not beconvinced by these arguments. Critical arguments have two main functions:for the opponents of a position they serve to eliminate the position and removeit from one's area of concern; for the proponents of a position they serve topoint out weaknesses which must be corrected. Stone's stance is that of anopponent, since his own position is different, in one important respect, fromany of the eight that he discusses. He treats all the theories he discusses (exceptPound's) as attempts to provide a firm cognitive foundation for justice. That is,he treats them as attempts to derive specific directives of justice from somesource which has unquestioned validity-the will of God, nature, pure reason,intuition, -human nature, the absolute goal of civilization, and so on. Thevalidity of the source then will guarantee the validity of the theory of justicederived from it. But Stone's own position is pragmatic and functionalist; heholds -that a theory of justice is validated, not by where it comes from, but bywhat it does. A good theory of justice is not one which is derived by impeccablelogic from an unimpeachable source. It is rather one which performs well thetasks of a theory of justice, the task of stabilizing and preserving areas of con-sensus on law and the task of controlling the reform of obsolescent law.Stone's arguments are designed to show that all attempts to derive direc-tives of justice from a valid source are faulty. Either the derivation is logicallyfaulty, or the results are ambiguous, or the validity of the source can be ques-tioned. The effect of these arguments, for Stone, is to shift interest from dubioussources to clear consequences. Again and again he points out how a theory thathas no adequate cognitive ground can still perform well the necessary tasks ofa theory of justice in its own time and place. "[T] he significance of a partic-BUFFALO LAW REVIEWular theory of justice as a socially operative force is often a function of theproblems of the social context, rather than of the intellectual tenability of theparticular theory." 7Arguments about the cognitive validity of theories of justice are thus essen-tially negative and preliminary for a functionalist. They serve to shift attentionfrom the secondary issue of logical validity to the primary issue of how well thetheory performs its necessary functions. Unfortunately most of the present bookis negative and preliminary, concentrating on abstract argument rather thanfunctional evaluation. There are brief functional treatments of some of thetheories of justice, and the last chapter makes a solid start at a functionalisttheory, but the bulk of the book is negative.There is, perhaps, a good reason for this. A functionalist theory of justicemust be based on a "sociological" study of how law functions and changes, howit is interrelated with other social controls, and how it is related to economy,polity, and community. These topics are taken up in Stone's third volume,Social Dimensions of Law and Justice, and consequently that volume is theproper place to develop a positive theory of justice. As Stone observes, "For thepragmatist, especially, every sociological inquiry may become simultaneously aninquiry into justice. The severability of the two spheres, however clear or desir-able in theory, tends to become impossible in practice."8It remains to list the differences between the present volume and its pred-ecessor, part II of Stone's The Province and Functions of Law. Chapter 1 onGreek and Hebrew ideas of justice is new, but so brief that its main value isprobably as a basis for a telling argument against natural law theory.9 Chapter2 on natural law is about half new, and Chapter 7 on 20th century natural lawcompletely new. Stone has changed his views on natural law theory, regardingit now not as a specific theory of justice but as a way of speaking that peopleused to adopt when they wished to raise questions about justice. For thousandsof years natural law terminology was the traditional way of speaking aboutjustice, and a great variety of theories were formulated in natural law terms.Stone is interested in the variety of theories of this sort, even while he rejectstheir claims to abstract validity and concrete precision.Chapter 4 on Hedonist Utilitarianism is substantially the same, except thatthe treatment of Bentham has been changed to take account of recent scholar-ship. Stone now argues, in sections 1 and 11, that individualist and laissez-faireelements were mixed with collectivist-interventionist elements in Bentham'spolitical thought. He also discusses additional criticisms and defenses of Ben-tham's ethics in sections 19, 20, 21, and 23.Chapter 8 on relativism and Radbruch is new, and most of Chapter 9 onPound is changed, as Stone has found new difficulties in Pound's thought as he7. P. 299.8. P. 4.9. P. 293.BOOK REVIEWSapplies Pound's theory to the problems of the new emerging nations. The dif-ficulties of formulating jural postulates are even more obvious in these nationsthen in the West, and it is even difficult to locate de facto interests in countriesthat are changing so rapidly. Thus the time-and-place limitations of Pound'stheory become obvious.Chapter 10 and 11 are almost completely new. In Chapter 10, Stone, clas-sifying the issues among theories of justice, finds four instead of three, the newone being natural law vs. "positivism." He also adds selections on languageanalysis and the sense of justice. His own theory in Chapter 11 is also new. Theother chapters, 3, 5, 6, are largely unchanged except for occasional brief addi-tions and improvements in wording. For example, in Chapter 3 the awkwardheading "Natural-law individualist wines in new metaphysical bottles" is re-placed by the more elegant and appropriate "New metaphysical individualistwines in natural law bottles."The most pervasive change is the great increase in number of footnotes. Anaverage of one-third of each page is devoted to footnote arguments and citations,and the total number in the book runs over 1600. Consequently the book reallymoves on two different levels, one a straightforward discussion of the subjectand the other a scholarly commentary on commentaries, exploration of detailedissues, and lists of references and cross-references. At its worst, as occasionallyin the first two chapters, this dualism produces a text so condensed and super-ficial that it is nothing more than an introductory survey, and footnotes socomplex and abstruse as to be of interest only to classical scholars. At its best,as in the rest of the book, it produces both a solid, rich text, and an oppor-tunity to pursue almost every point further in the footnotes. But if one wishesto read both text and footnotes, one must be prepared for very slow going.This is a highly condensed book, packed with arguments, by a scholar usuallyin full command of a very wide range of materials, materials which have beenso well organized that the central issues of justice remain always in focus.PAUL DIESINGAssociate Professor of PhilosophyState University of New York at BuffaloFAnR FIGHTs AND FouL, A DISSENTnTG LAWYER'S LIFE. By Thurman Arnold.New York: Harcourt, Brace & World, Inc., 1965. Pp. vii-xi, 3-292. $5.95.In this short, peppery book, Thurman Arnold has collected some sage ob-servations concerning legal practice and social policy. The work is an attemptto use the great changes in our social and legal thought-from the dogmatic"theologies" of early 19th century economists, through the desperate changeswrought by the Depression, up to the current economic uncertainty and experi-mentation-as an autobiographical basis.

Human Law and Human Justice. by Julius Stone.

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Human Law and Human Justice. by Julius Stone.

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