Social Order and the Limits of Law

Social Order and the Limits of Law: A Theoretical Essay

IREDELL IENKINS
Copyright Date: 1980
Pages: 408
https://www.jstor.org/stable/j.ctt7zv62z
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  • Book Info
    Social Order and the Limits of Law
    Book Description:

    Professor Jenkins develops a systematic theory of the origins, the ends, and the functions of law. He then applies this theory to the problems that law encounters and the conditions that it must satisfy if it is to be an effective force in society.

    Originally published in 1980.

    ThePrinceton Legacy Libraryuses the latest print-on-demand technology to again make available previously out-of-print books from the distinguished backlist of Princeton University Press. These paperback editions preserve the original texts of these important books while presenting them in durable paperback editions. The goal of the Princeton Legacy Library is to vastly increase access to the rich scholarly heritage found in the thousands of books published by Princeton University Press since its founding in 1905.

    eISBN: 978-1-4008-5465-3
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. PREFACE
    (pp. ix-xii)
  4. ACKNOWLEDGMENTS
    (pp. xiii-2)
  5. CHAPTER I THE CONTEXT OF POSITIVE LAW
    (pp. 3-19)

    The most obvious way to launch this inquiry is with the question, What is law? But I think that this would be a mistake. The phrasing of this question—as of many similar ones, such as What is reality? or What is life? or What is good?—is linguistically simple. This is apt to delude us into thinking that the question must have an equally simple answer. So we are led to seek that one essential—and elusive—characteristic that is constitutive of law and to frame a definition that will embrace this in a single phrase. In this search,...

  6. CHAPTER II THE CONCEPT OF ORDER
    (pp. 20-29)

    I have previously called attention to the failure of jurisprudence to submit the notion of order to systematic analysis. When the question of the meaning of the term arises, the standard procedure is first to identify this meaning by reference to various roughly synonymous terms, such as stability, uniformity, regularity, security; then to give several examples of the areas of human affairs in which order is at once necessary and precarious, such as sexual and family relations, property, protection of the person; and finally to cite the factors in human nature and in surrounding circumstances that cause disorder, such as...

  7. CHAPTER III THE MATRIX OF POSITIVE LAW
    (pp. 30-42)

    I turn now to the other central problem mentioned earlier: What occurs at the human level that occasions the development of positive law as a supplemental principle of order? It follows from my original postulates that certain significant changes gradually take place in evolution, finally marking off human nature and the human situation as a distinct local region of nature; that these changes place man in a novel condition and confront him with a radical challenge; and that positive law slowly emerges out of this condition and in response to this challenge. Further, relying on the preceding analysis of order...

  8. CHAPTER IV THE FIELD OF LEGAL ACTION
    (pp. 43-62)

    The preceding analysis has been carried out on a high level of abstraction and generalization. Like any such investigation, it has had to reduce its subject matter to sharp categories and to organize these in a rigid schema. Therefore it inevitably has strong static and divisive tendencies, threatening to reduce the situation law deals with to a collection of inert and isolated elements. This danger must now be countered by insisting upon the dynamism and cohesiveness of the field in which law operates and legal action takes place. This will also afford me the opportunity to put at least some...

  9. CHAPTER V THE MODES OF LAW
    (pp. 63-75)

    In this and the following chapters I want to consider three closely related topics: the modes of law, the continuity of law, and the genesis of positive law. The broad issue of which these topics are aspects is that of the relationship—if any—between positive or civil law and various other kinds of laws, such as laws of nature, moral laws, and customary law. This issue is still an open one, even despite all of the centuries it has been debated. There are those who claim that positive law is sui generis, having no real relationship with other kinds...

  10. CHAPTER VI THE CONTINUITY OF LAW
    (pp. 76-95)

    It will be well to begin this discussion by summarizing for ready comparison the preceding accounts of the modes of law. Laws of the kind that I have designated expository refer to an order that is actual and observable in some phenomenal field. The regularities of character, structure, behavior, and relationship that they describe give every evidence of being prior to and independent of our formulation of them as laws. We regard such laws as describing an order that is somehow preestablished (we casually gloss over this “somehow”) and that we need only discover. Laws of the kind that I...

  11. CHAPTER VII THE BEING OF POSITIVE LAW
    (pp. 96-108)

    Our very familiarity with positive law tends to divert our attention from two significant facts: positive law is both a human and an historical phenomenon. It does not occur beyond the human context, and even within this context it is a relatively late arrival. As I have already argued, positive law is a supplemental principle of order that is called into being and takes shape gradually in response to special conditions that develop in man’s manner of existence: it arises to support and complement earlier principles of order when these prove inadequate to the task. This means that the characteristics...

  12. CHAPTER VIII THE GENESIS OF POSITIVE LAW
    (pp. 109-117)

    There is broad agreement, at least in general terms, regarding the course of change that elicits positive law: this resides in the transition from primitivism to civilization. The conditions that we refer to by these terms cannot be sharply defined or clearly distinguished. Rather, they are segments along a continuum, and the transformation is gradual. We are in the same predicament here as when we try to say just what life is and when it begins or to mark the line that separates Homo sapiens from other hominids. However, these conditions can be satisfactorily, if roughly, identified.¹

    Under primitivism the...

  13. CHAPTER IX THE CONDITIONS OF LEGAL EFFECTIVENESS
    (pp. 118-125)

    As I indicated in my Introduction, one of my chief aims in this book is to elucidate the conditions of legal effectiveness, especially as these manifest themselves during those times when law is being used as a leading instrument of social change. I think it is clear that the present is such a time to a spectacularly high degree. As has often been remarked, we have become a legalistic society: we are relying more and more upon the legal apparatus, in its legislative, judicial, and executive functions, to effect reforms of all kinds—social, economic, technological, and even political and...

  14. CHAPTER X VALUES AND THE LAW
    (pp. 126-152)

    Clarification of the problem posed by values depends on first drawing a distinction and then avoiding two opposite errors that this distinction often invites. The distinction itself is familiar and deceptively simple: it differentiates between intrinsic or final value on the one hand and extrinsic or instrumental value on the other. The intrinsically valuable is that which stands on its own feet and needs no further justification: it is the end sought by action, the consummation achieved; it is good or worthwhile or desirable in itself, needing no completion; in a word, it is its own excuse for being. The...

  15. CHAPTER XI AUTHORITY, LEADERSHIP, AND LAW
    (pp. 153-191)

    The attainment of the final values sought by social reform is often difficult and delayed, and the enhancement of human enjoyment and well-being that is promised for the future is apt to entail effort and even hardship in the meantime. People are generally reluctant to make this effort and accept these sacrifices, and they will be at least suspicious and probably resentful of the changes in their habits, ideas, roles, and manner of life that the reforms are calculated to bring about. The inertia that is generated by these factors can be overcome only if there is present some locus...

  16. CHAPTER XII LEGAL OBLIGATION
    (pp. 192-213)

    The preceding discussions have been carried on primarily from the point of view of those who exercise authority, with those who accept this authority, and the considerations that lead them to do so, being seen largely from that one perspective. It is time now to redress this imbalance and to look at the matter from the point of view of the subjects rather than the sovereign. When we do this, the issue that at once confronts us is the elusive one ofobligation.Why should and do we on the whole acknowledge the authority of law, obey it, conform our...

  17. CHAPTER XIII LAW AS SOCIAL ENGINEERING
    (pp. 214-240)

    From its inception, law has been at work shaping and reshaping the social order. The manner and degree of this legal intervention have varied with time, place, and circumstance. But, as I have previously argued in Chapter VIII, when we survey the whole panorama of legal history we can clearly detect a general movement composed of three successive phases. These phases I have identified as conservative, liberalizing, and constructive. In the first phase, law is primarily concerned to protect and reinforce an established order that is threatened by disputes among individuals and by defiance of group rules and decisions. That...

  18. CHAPTER XIV THE CONCEPT OF RIGHTS
    (pp. 241-267)

    I argued in the previous Chapter that in recent years law has come both to assert itself and to be accepted not only as sovereign but also as omnicompetent. I further suggested that two developments have played particularly important roles in encouraging this process of legal proliferation and pervasiveness. One of these, the notion of law as social engineering, has already been discussed. I now want to turn to the other: the significant extension that is currently being given to the content and reach of the concept of legal rights.

    Any discussion of the concept of rights is confused from...

  19. CHAPTER XV HUMAN RIGHTS AND THEIR IMPLEMENTATION
    (pp. 268-311)

    I have been treating of human rights in general, but have examined none closely. And I have argued that the implementation of these rights is apt to intrude upon individual rights and to disrupt the social order, but I have not documented this thesis with a careful examination of any actual instance. Although the detailed discussion ofWyatt v. Stickney¹ addresses these points (particularly the latter), that analysis was carried on from a different perspective and with a different purpose. It will therefore be well to present a case study that deals directly with these issues. This will have the...

  20. CHAPTER XVl LAW AND THE IMAGE OF MAN
    (pp. 312-323)

    In these concluding chapters I want to draw together the several lines of my earlier discussions, thereby placing positive law in true perspective and assigning it to its proper niche in the human and social panorama. My efforts up to this point have been twofold. First, I have sought to develop a general theory that views positive law as a supplemental principle of order that arises in the human context because of the special characteristics of man and the situation he faces. Here I was particularly concerned to analyze the conditions that gave rise to law, to identify the basic...

  21. CHAPTER XVII JUSTICE AS IDEAL AND IDEOLOGY
    (pp. 324-335)

    It is evident that views on these matters will largely derive from and vary with the different views of man that have just been discussed, and like other issues that I have previously considered, they permit of no final and “correct” answers. The doctrines that dispute these issues are complementary rather than contradictory; and each one, no matter where it grounds itself, finds it necessary to make concessions to its rivals in order to embrace their legitimate claims. Furthermore, opinions concerning both the good society and the role of law in securing it are complicated by an additional factor: they...

  22. CHAPTER XVIII SOCIAL JUSTICE AND LEGAL JUSTICE
    (pp. 336-369)

    The preceding discussions lead directly to a final question: What is the role of law in the enterprise of justice? How much can law contribute to the realization of these substantive goals, and how much should be left to other forces and institutions or to the free play of individual choice and effort? Again there can be no single correct answer to these questions. Too much depends on the prevalent image of man, on current ideas regarding the nature of social justice and the good society, and on the institutional structure that is available. It is self-evident that the rational...

  23. CHAPTER XIX LAW AND THE SOCIAL ORDER
    (pp. 370-384)

    I devoted the first part of this book to developing a theory of positive law and its place in the natural order—in the single vast “realm and rule of law” that earlier writers took as their universe of discourse. For the past several chapters I have been examining the place of law in the social order and the role of legal action as one form of social control. Here I have been particularly concerned with three issues: the reach and the limits of legal effectiveness; the transformations that law effects in the goals of social justice as it seeks...

  24. INDEX
    (pp. 385-390)