The Creative Power and Function of Law in Historical Perspective

The creative work of legislators, administrators, judges, and practicing lawyers is far more than a "response" to social change. Through-out recorded history, law itself has been one of the greatest of the forces of social change. Change and stabilization are, as Donald Young has reminded us, part of the same social process, and law is at the heart of that process. Let us concede, and readily, that the command theories of law embodied in the writings of Bodin, Hobbes, and Austin exalted unduly the pervasiveness of law's imperatives as the controlling influence on the behavior of men in society.

At times these writers seem almost to be proceeding on a conclusive presumption that men in society do only and whatever the law's imperatives tell them to do in every activity of their lives-as if the tragedy of Antigone had never been written or the battles of resistance to laws deemed "unjust" never fought. By contrast, historical jurists like Savigny, and later institutional jurisprudents like Ehrlich, over-corrected the error of the imperative theory and conveyed an equally one-sided impression of the reciprocal relation between law and social change. They and their successors, in effect, come close to reading the legal imperative out of the party as a molding influence on social development.