Rules of law are in fact the institution of conditions under which
persons make their arrangements with one another. They are structures
which canalize action; they are active forces only as are banks which
confine the flow of a stream, and are commands only in the sense in
which the banks command the current. If individuals had no stated
conditions under which they come to agreement with one another, any
agreement would either terminate in a twilight zone of vagueness
or would have to cover such an enormous amount of detail as to be
unwieldy and unworkable. Each agreement, moreover, might vary so from
every other that nothing could be inferred from one arrangement as
to the probable consequences of any other. Legal rules state certain
conditions which when met make an agreement a contract. The terms of
the agreement are thereby canalized within manageable limits, and it
is possible to generalize and predict from one to another. Only the
exigencies of a theory lead one to hold that there is a command that
an agreement be made in such and such a form.[2] What happens is that
certain conditions are set such that _if_ a person conform to them, he
can count on certain consequences, while if he fails to do so he cannot
forecast consequences. He takes a chance and runs the risk of having
the whole transaction invalidated to his loss. There is no reason
to interpret even the “prohibitions” of criminal law in any other
way. Conditions are stated in reference to consequences which may be
incurred if they are infringed or transgressed. We can similarly state
the undesirable results which will happen if a stream breaks through
its banks; if the stream were capable of foreseeing these consequences
and directing its behavior by the foresight, we might metaphorically
construe the banks as issuing a prohibition.
Public-domain text, read in full here on John Shaqi.
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