Jurisprudence is primarily a normative or teleological science.125 The question jurists have to answer is not What is? but What ought to be? While in the explicative sciences the correctness of thinking processes may at once be tested by the actual facts, all the normative sciences lack any such standard of correctness.
From the fact that something does occur it cannot at all be inferred that it ought to occur. The question whether something ought to occur is determined primarily by the strength of desire, i.e. the volition directed to that end. In law, the same question is determined by the authority enjoyed by some legal proposition and its power of subordinating to itself the phenomena of life. In the life of the individual such a direction of volition assumes the form either of a feeling or a resolution, but whenever it becomes general and constant it is more properly called a principle of valuation. While to the physicist, botanist, or astronomer all phenomena are of equal value so that he would never dream of preferring one above the other, the force of social volition causes a constant process of valuation of phenomena in certain other sciences, so that one phenomenon is preferred, the other rejected in one way or the other. These valuations have been wrought into a number of systematic complexes such as those of morals, of manners, of fashion, etiquette, forms of intercourse, chivalric honor, of utility in several varieties, and many more of the same sort. These valuations make up the greater part of our thinking. Under the influence of language they proceed for the most part almost automatically. Particular words imply, in addition to their logical content, their power of signifying a group of phenomena, some appreciative or deprecatory valuation giving them a distinctive coloring. This part of their meaning may also react on their logical content. According as we are sensitive to certain valuations, we may feel the same phenomenon as being still within the bounds of utility or beyond it, may feel that it is economy, self-respect', firmness, reasonable self-interest, necessary protection of one's honor, simplicity of manner, or on the other hand miserliness, pride, stubbornness, exploitation, lust of revenge, incivility, and the like. We are likely to draw consequences of the most opposite kind from the same facts, without becoming conscious that at the very moment of applying one significant term or the other we were determined in part by a certain arbitrariness, a function of the direction of our will, and not simply by our power of cognition.
125 Comp. however, supra, section 2, and section 12.
The varied mass of value judgments of different kinds is greatly affected by the system of legal value judgments although it is by no means absolutely determined by it.126 That formulated rules of law could possibly be applied independently of other social groups of value judgments, is improbable from the very circumstance that like the other groups it is the product of volition and intended to influence volition, as well as from the fact that it must make use of language-language, in which so many words, without change in their proper logical significance, may be applied in so many different ways according to the social valuation that goes along with them as a sort of overtone. The improbability becomes still greater if we consider that among these groups of value judgments there are some identical with law in origin, and so closely akin to it in their nature that very often it is quite impossible to draw a strict dividing line between them. Such is especially the case with the body of value judgments furnished by morals.
126 Comp. Frenzel, "Recht und Rechtssatze," Leipzig 1892, p. 77.
The distinction between the demands of law, morals, and custom, familiar though it is to modern consciousness, is by no means of primitive origin. With the Greeks, these three methods of valuation were still united. Such terms as were applied equally to all three. was the just man, the man who lived morally and according to the custom of the people. Gradually a more compelling norm of life was separated from this all-comprising custom. That was law, which extended itself more and more to ever widening circles of interest (as in very modern times it has extended itself to the regulation of labor), while mere custom becomes more and more confined to the interests of the mind.
Among the Romans, we find this double division already clearly defined. The valuation system of the law ("jus," "fas") is sharply defined as against other norms. Morals and custom, and in part even customary law, still remain unseparated, covered by the term "mores." The triple division employed at present, the evolution of conscious distinction of custom, which is ethically indifferent, by the side of morals and law, is a recent product of civilization.127
The shading off of these systems of valuation into each other is the consequence of their closely allied origins. There have been a good many attempts, and they are still being made, at discovering a single criterion by which rules of law might be distinguished from moral and other principles. First of all it is quite impossible to base such criteria on substance or content, for the substantial contents of all three are to a great extent identical. Even formal characteristics fail in part to serve as distinguishing marks; such is the case, for instance, with compulsory force, or "absolutely obligatory power," with which rules of law are said to be armed. For even mere moral rules, provided they refer to external relations,128 are often protected by very strong social pressure, while some parts of law (international and a good part of constitutional law) lack the power of compulsion. Similarly, some moral commandments, for instance the commandment to love one's parents, are at least as "absolutely obligatory" as, let us say, the legal command that one must pay his taxes. Frequently it is very difficult to tell whether a body of rules should be classified as belonging to law or to morals. For instance, Unger denies that certain rights of persons arising from the family relation possess a legal character, but relegates them in his treatise to mere morals.129 Furthermore it would be hard to decide whether the duty of the recipient of a gift, not to return ingratitude to the giver, is purely moral but may not in some cases, such as in connection with the revocation of a gift, become a legal one. In cases of this nature one may expect and easily explain the effect of ethical influences upon the process of projection in juridical thinking. Such considerations are likely to give directions to the thought, although we may not go so far as to demand, like some professed teachers of ethics, that in the interpretation of law moral considerations shall always have the decisive voice.130