III
Hart's introduction of the concept of acceptance of
a basic rule as the foundation of the legal order imme-
diately raises questions about the connection between
analytical and philosophical enquiries into the nature
of law and, on the other hand, enquiries which employ
the concepts and methodology of the social sciences.
Law is, after all, eminently a social phenomenon. A
legal system is more than a structure of rules on paper.
It is a system of rules in action, for without some
minimal effectiveness in the life of a community a set
of rules would not be said to constitute a legal system
at all. This was recognized by Kelsen in his statement
that a Grundnorm must be minimally effective, and
by Hart in his reference to the acceptance of basic
rules of recognition.
Long before the rise of the modern social science
disciplines European jurists had concerned themselves
with the social aspects of law through the medium of
studies in legal history. In the eleventh century the
study of Roman law was revived in the universities
of Italy and France, and this study deepened as Roman
law was received as the foundation of the legal systems
of Western European societies. The basis for modern
scholarship was laid by social interpretation of law in
the work of the French jurist, Jacques Cujas, in the
sixteenth century, and there is a continuing link be-
tween this early movement and the great German
school of historical jurisprudence in the nineteenth
century whose finest exponent was F. K. von Savigny.
These historical jurists were not very consciously or
explicitly sociological in their emphasis, but the neces-
sity for them to elucidate doctrines of Roman law
in terms of historical change inevitably led them to
advert to the relationship between legal concepts and
social phenomena. In this way they lead into the
Germanic school of sociological jurisprudence which
counts as its leading figure the Austrian jurist, Eugen
Ehrlich.
Ehrlich insisted that if our interest and enquiry are
into the forms of social control we must acknowledge
that formal law plays only a part, and sometimes no
part at all, even in areas where it purports to regulate.
A full statement of the “living law” which applies in
any sector of human conduct could be made only after
careful observation of actual behavior in that context.
After such observation we would often find that moral-
ity, custom, and commercial practice play a large part
as sources of the norms to which people actually ad-
here, and that in some instances the norms of positive
law are in practice largely ignored. As an analysis of
the reality of social regulation this is patently true, but
it is not particularly helpful as an elucidation of the
concept of law where the enquiry is rather into what
distinguishes the norms of positive law from those of
morality, custom, and commercial practice. If a rule
of positive law is in practice ignored both by citizens
and by law enforcement officials, this may be a good
reason for deciding that it is not a part of the “living
law” but it is not so clear whether we can for this
reason decide that it has also lost its character as posi-
tive law.
Ehrlich's insistence on a constant comparison of the
formal content of the norms of positive law with the
reality of social practice set a theme for legal philoso-
phy which has continued to be strongly influential in
the twentieth century. In Scandinavia a school of jurists
has developed who, in a strongly empiricist vein which
owes something to the logical positivist movement in
philosophy, have analyzed the concept of obligation
as it appears in a legal order in psychological terms.
The most interesting of these writers is the Danish
jurist, Alf Ross, who in his book On Law and Justice
(1958) invites us to begin an analysis of the nature of
a legal system by considering the analogy of the rules
of a game. He suggests that if we were watching two
people playing a game, say chess, and we wished to
know what were the rules of the game, we could not
necessarily rely on the statement of the rules as issued
by some governing body such as the International
Chess Federation, for it may well be that the two
players are not following all of these rules but are
playing some modified version of the game. But then
again we could not deduce the rules of the game simply
by watching and observing the moves that the players
made, for on that evidence alone we could never dis-
tinguish between what was done or not done because
of the demands made by the rules and what was done
or not done out of tactical considerations. To compre-
hend the rules of the game, suggests Ross, we have
to introduce the notion of an ideology common to the
players, so that the rules of the game they are playing
can be defined as those directives with which they
comply because they respond to them as binding.
When we transpose this analysis to the elucidation of
a legal system, the transition is not free from difficulty
for it is not immediately apparent whom we are to
characterize as the players of the law game. It seems
that for Ross the players are the officials of the system
so that a valid law for Ross would be a directive to
which officials adhere because they have a reaction of
feelings of obligation. He would thus accept a position
much the same as that of Ehrlich, to the effect that
a purported statement of law on the statute book which
is in fact ignored by officials is not to be regarded as
the statement of a valid law.
In the last few years of the nineteenth century a
distinctively American voice began to be heard in legal
philosophy, that of Justice Oliver Wendell Holmes.
Holmes turned the attention of jurists to the role of
the judge and the process of decision making as vital
elements to be incorporated in any elucidation of the
nature of law. Holmes's new emphasis was underscored
by the voluminous writings of the Harvard jurist,
Roscoe Pound, who also introduced the American legal
public to the thinking of European sociological jurists.
The seeds planted by Holmes and Pound germinated
in the third and fourth decades of this century in a
movement which is usually referred to as “legal real-
ism” and which continues to be influential in a modified
form.
The Realists reacted sharply against traditional pres-
entations of law as a system of rules which by reasoned
application to the facts of a dispute could yield a
predictable decision. They stressed the discretionary
role of judge and jury in finding the “facts” of a case,
and the further creative role in choosing between
competing rules and principles for application. They
deprecated the emphasis traditionally given in legal
education to the study of the decisions of appellate
courts, and stressed the importance of close observation
of the practice of decision makers at all levels of the
legal system. In their more extreme statements they
came close to denying that rules had any significant
role in a legal system and suggested that they were
mere tokens that were manipulated by decision makers
to give a facade of certainty and predictability to their
decisions. So Jerome Frank stressed the importance of
the psychology of the judge in his book, Law and the
Modern Mind (1930), and Karl Llewellyn in a famous
statement defined law as “what officials do about dis-
putes” (The Bramble Bush [1930], p. 3).
The Realist movement had a great impact on the
nature of legal education in the United States and so
indirectly on the whole English-speaking world. But
its philosophical position has come under telling attack,
particularly in the writings of H. L. A. Hart. He has
argued that the authoritative position of decision
makers is not a good reason for defining law in terms
of what these decision makers do. So the concept of
the “score” in a game would not be adequately eluci-
dated in terms only of what the scorer says. It is true
that the score is what the scorer says it is but this is
only to say something about it and something which,
taken alone, is positively misleading. For it suggests
that the score might be anything that the scorer at
his whim might choose to say and nobody who has
played or watched a game would accept that proposi-
tion. When we play baseball or football we do not
think we are playing a game of “scorer's discretion.”
We know that the scorer has discretion but one that
is limited by rules and exercised within the framework
of rules. Rules, Hart argues, have a core of settled
meaning and a penumbral area where their application
to a set of facts is debatable, and where no judgment
in either direction could in any absolute way be dem-
onstrated to be right or wrong. The American Realists,
he contends, were preoccupied with the problems of
this penumbra to an extent that led them to distort
the importance of rules in legal decision making.
