Please cite to the original publication
When, not long since, I was asked to try to explain the function--if any--of law in a democratic society to a conference of scholars and writers interested in demonstrating American solidarity, I hesitated long before undertaking the task. Not that I lacked convictions, for a considerable battling in the fields of law and education had yielded me some firmly held views. I did fear, however, that these views were, for most students, so commonplace as hardly to justify restatement. That law is but the tool, not the driving force, of the great society, that it must remain ever servant, never master, is a statement hardly likely to startle modern ears. But I recalled how repeatedly I had found myself brought up short with renewed evidences that however general may be the lip service paid these views, yet there was deeply ingrained in man the feeling that law embodies something outside and beyond one's self--something partaking of the divine-to which he must make obeisance. And so ultimately I undertook the task. For it has seemed to me that, whatever might be the temporary uses of such a feeling among those with whom a policeman's club is more authoritative than are philosophical ideals, from a longer point of view it was not only false and misleading, but actually inimical to the democratic way of life. If the people are not in command of their own government, but are actually subordinate to some yet more remote sovereign who upholds and justifies unsanitary conditions, poor housing, long hours of labor, and general defiance of social welfare legislation as a freedom required by some vague constitutional command or higher law of nature, then we are nearer either anarchy or the rule of the autocratic few than we are democracy. And though some of the excrescences of the higher law doctrine have been pruned away in modern jurisprudence, yet enough remains alive to give us pause, indeed, to require some thoughtful consideration as to the role of law in a modern democracy.
Date of Authorship for this Version
The Function of Law in a Democratic Society, 9 University of Chicago Law Review 393 (1942)