Felix S. Cohen

THE ETHICAL BASIS OF LEGAL CRITICISM

THAT all valuations of law are moral judgments, that the major part of legal philosophy is a branch of ethics, that the problem which the judge faces is, in the strictest sense, a moral problem, and that the law has no valid end or purpose other than the maintenance of the good life are propositions which jurists are apt to resent with some acerbity. In the orthodox juristic tradition there is some sort of boundary between the realm of law and the realm of morality or ethics; legal philosophy deals with justice rather than with goodness; morality is at most an emergency consideration in the problem before a judge, and his decision of that problem will be right or wrong in some non-ethical sense; finally it is not the business of the law to make men good provided only it makes them act justly. It is submitted that these tenets of current juristic faith spring from an indefensible view of the nature and scope of ethics and tinge current legal criticism with a peculiar confusion. Before examining the relation of law to ethics, it may be well to point out that those who deny the ethical responsibilities of law and legal science do not refrain from passing what we should ordinarily call ethical judgments upon the law. A historical school of law vehemently disclaims concern with ethics or natural law,1 but repeatedly invokes a Volksgeist or a Zeitgeist to decide what the law ought to be.2 An analytical school of jurisprudence