modern philosophy of law recognizes that there is only one law, the positive law, but it seeks its ideal side, and its enduring idea."[1] I am not concerned to vindicate the accuracy of the nomenclature by which the dictates of reason and conscience which the judge is under a duty to obey, are given the name of law before he has embodied them in a judgment and set the imprimatur of the law upon them.[2] I shall not be troubled if we say with Austin and Holland and Gray and many others that till then they are moral precepts, and nothing more. Such verbal disputations do not greatly interest me. What really matters is this, that the judge is under a duty, within the limits of his power of innovation, to maintain a relation between law and morals, between the precepts of jurisprudence
- ↑ Berolzheimer, "System der Rechts und Wirthschaftsphilosophic," vol. II, 27, quoted by Pound, "Scope and Purpose of Sociological Jurisprudence," 24 Harvard L. R. 607; also Isaacs, "The Schools of Jurisprudence," 31 Harvard L. R. 373, 389; and for the mediaeval view, Maitland's "Gierke, Political Theories of the Middle Age," pp. 75, 84, 93, 173.
- ↑ Holland, "Jurisprudence," 54.
