Law at the End of its Tether

Abstract

The past fifty years have seen turbulences in every state, even the most secure hitherto. In a country like Britain, which has remained comparatively stable, it has been easy to preserve the philosophy of analytical positivism in which the science of law is abstracted from social, moral and other value-considerations. Such aloofness is tenable only so long as value-conflicts do not assume large enough proportions to disturb the settled state of affairs, so that one can play at being a jurist as a purely intellectual pastime without overmuch concern as to the direction of social development, since one is comfortably assured of a fairly uniform flow of public opinion. But when tensions begin to convulse the very surface of national life, jurists, let alone judges, are compelled to make conscious decisions as to which way to steer if shipwreck is to be avoided; and the decision to remain positivist then becomes a choice of one of several attitudes, the merits of which invite comparison and question. In keeping with the general surge of unrest, the past fifty years have seen in Britain somewhat of a swing away from positivism and a growing preocupation with values.