Two needs have determined philosophical thinking about law. On the one hand, the paramount social interest in the general security, which as an interest in peace and order dictated the very beginnings of law for all civilizations, has led men to seek some fixed basis of a certain ordering of human action which should restrain legislative powers as well as individual willfulness and assure a firm and stable social order. On the other hand, the pressure of less immediate social interests, and the need of reconciling them with the exigencies of the general security, and of making continual new compromises because of continual changes in society, has called ever for readjustment at least of the details of the social order. It has called continually for the overhauling of legal precepts and for the refitting of them to unexpected situations. And this has led men to seek principles of legal development by which to escape from authoritative rules that they feared or did not know how to reject, but could no longer apply to advantage. These principles of change and growth, however, might easily prove hostile to the general security, and it was important to reconcile or unify them with the idea of a fixed basis of the legal order.
The philosopher has sought to construct theories of law and theories of lawmaking and has sought to unify them by some ultimate solving idea equal to the task of yielding a perfect law that should stand fast forever. From the time when lawgivers gave over their very first endeavor of theirs to attempt to maintain the notion that is known to all, namely that of general security by belief that particular bodies of human law had been divinely dictated, divinely revealed or divinely sanctioned, they have had to wrestle with the problem of proving to all of mankind that the law was something fixed and settled, whose authority was beyond question, while at the same time enabling it to make constant readjustments and occasional radical changes under the pressure of infinite and variable human desires. The philosopher has worked upon this problem with the materials of the actual legal systems of the time and place, or with the legal materials of the past upon which his generation had built. Hence in closer view philosophies of law have been attempts to give a rational account of the law of the time and place, or attempts to formulate a general theory of the legal order to meet the needs of some given period of legal development, or attempts to state the results of the two former attempts universally and to make them all-sufficient for law everywhere and for all time.
Historians of the philosophy of law have fixed their eyes chiefly on the third form of the aforementioned attempt. But this is the least valuable part of legal philosophy. If we look at the philosophies of the past with our eyes upon the law of the time and place and the exigencies of the stage of legal development in which they were formulated, we shall be able to appreciate them more justly, and so far as the law of the time and place or the stage of legal development was similar to or different from the present to utilize them for the purposes of today.
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