This article was published in the Autumn 1998 issue of Formulations
by the Free Nation Foundation
The Philosophy of Law and Justice
Necessary to Sustain a Free Nation
by Gordon Neal Diem

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Alternative Legal Philosophies
 Based on Higher Principles
 Based on Statute
 Based on Needs of Litigants
The "Best" Legal Philosophy for a Free Nation

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The survival of the Free Nation partly depends on the successful implementation of a justice system able to resolve disputes without resorting to legislative acts as the foundation for law. The current American experience is primarily one of courts of law basing decisions on statutory, codified law. But the philosophy-of-law literature supports the possibility of a system of justice based on principles, rather than on statutes and on the statism necessary to enact statutes.

The historic literature identifies three alternative foundations for judicial systems. First, the historical, philosophical and "pure science of law" alternatives focus on higher principles as the foundation for law. Second, the positivist and utilitarian alternatives focus on statute. And third, the sociological and functional alternatives focus on the needs of human litigants.

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Based on Higher Principles

Historical or "common law" legal philosophy believes judicial action develops from mankind's intuitive feelings about what is right and wrong. Common law descends from the "folk moot" of First Century Germany. Early German kings merely administer an already existing, uncodified body of common law existing within the collective mind of the community. Even after conquest, victorious kings enforce the local "folk moot" common to the conquered people rather than impose the legal code of their own home territory. Justice is the rule of law in accordance with the established and traditional "folk moot," not the statutory will of kings. The common "libertarian" beliefs of the Free Nation founders are the "folk moot," "volksgeist" (Georg Hegel, 1770-1831), "organic connection" (Carl von Savigny, 1779-1816), or "ancient moral tradition" (Edmund Burke, 1729-1797) upon which the Free Nation's common law can be based.

Philosophical legal philosophy believes judicial action is a means to attain society's primary a priori goals. Justice is the extent to which judicial decisions approximate these ideals. In the Free Society, the primary goals of "freedom of action," "freedom from coercion," and the guarantee of those "absolute rights of individuals... that appertain and belong... to men... in a state of nature" (William Blackstone, 1723-1780) establish the ideals to be protected and promoted in judicial decisions. Society's primary goals, not statutes, serve as the basis for legal decisions.

"Pure Science of Law" philosophy combines the historical and philosophical philosophies. Law in human society is derived from a "grundnorm," (Hans Kelsen, 1881-1965?) or basic norm, from which all other legal norms are developed. Justice is adherence to the "grundnorm," or "highest general value and general world view" (Gustav Radbruch, 1878-1949). The "grundnorm" provides the legitimacy for all other legal norms and all judicial decisions. A "grundnorm" or "highest general value" may be the libertarian principle prohibiting the using force or fraud against another. With this "grundnorm" in place, no statute law is necessary.

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Based on Statute

Positivist and utilitarian legal philosophy believes judicial action reinforces the purposeful will of the sovereign. Assuming the purposeful will of the libertarian founders is codified in a constitution or minimal set of statutes, positivist jurists use their "coercive power to compel men equally to perform their covenants" (Thomas Hobbes, 1588-1679) in accordance with the constitution or enacted statutes. But, should the constitution or statutory law be "amended" to become more statist and utilitarian—perhaps to insure the "happiness of society" rather than the happiness of each individual (David Hume, 1711-1776) or to insure the "greatest happiness of the greatest number (Jeremy Bentham, 1748-1842)—future judicial decisions reinforce this new statist will of the new sovereign, and abandon the older, and more libertarian, will of the founding sovereign. With this change in focus, freedom in the Free Nation is threatened or lost.

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Based on Needs of Litigants

Sociological legal philosophy sees law as a means for society to direct its own destiny; law serves the needs of society (R. von Jhering, 1818-1892). The sociological law is a "living law" (Eugen Ehrlich, 1862-1920) legitimized by popular acceptance. Sociological law is based on what current society needs and desires, rather than based on transcendent ideals. Justice is a decision that has popular support. If the flesh becomes weak, support for the libertarian ideals of the founders also becomes weak. A Free Nation momentarily frightened by external aggression, internal disruptions, or human frailties, may find its legal system also twisting in the winds of human vagaries and will find its legal system unable to defend the "libertarian" ideals upon which the Free Nation was founded. Freedom may collapse in the face of a panicked citizenry demanding a suspension of some or all of the ideals of freedom—perhaps to implement a military conscription program in the face of war.

Functional legal philosophy sees the law simply as "what courts decide" (Oliver Wendell Holmes, 1841-1935). Functionalism emphasizes the consequences or effects of judicial decisions (Roscoe Pound, 1870-1964). Justice is "distributive justice" or "fairness to all;" justice involves adjustment of losses and benefits, and the distribution of risks among those best able to bear risks. The aim of adjudication is not reflection of the "folk moot," reinforcement of society's primary goals, or conformity with the "grundnorm;" instead, the aim is fairness for all competing interests before the law. In the quest for fairness, first principles may be lost. Thus, functional legal philosophy also threatens the "libertarian" ideals of the Free Nation.

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Which philosophy of law is best for a Free Nation? A legal system based on functional, sociological, positivist or utilitarian legal philosophy should be avoided. The best assurance for a continuing Free Nation is a legal system based on historical ("common law"), philosophical, or "pure science of law" philosophy.

Unfortunately, Western lawyers, jurists, juries and citizens have training and experience in more functional, sociological, positivist and utilitarian judicial systems; few have the training or experience in the historical, philosophical or "pure science of law" systems necessary to insure the long-term survival of the Free Nation. There is, therefore, an immedi-_ate need to educate and re-educate lawyers, judges and prospective jury members in philosophical-based law to insure a fully functioning judicial system for the newly founded Free Nation. D

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Cowan, Thomas. The American Jurisprudence Reader. Oceana, 1956.

Friedrich, Carl. The Philosophy of Law in Legal Perspective. U. of Chicago, 1963.

Lloyd, Dennis. Introduction to Jurisprudence. Praeger, 1965.

Murphy, Walter and Joseph Tanenhaus. The Study of Public Law. Random House, 1972.


Gordon Diem is Assistant Professor of Political Science at North Carolina Central University, and a former member of the North Carolina Marriage and Family Therapy Certification Board.

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