An Introduction to the Philosophy of Law
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Title: An Introduction to the Philosophy of Law
Author: Roscoe Pound
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AN INTRODUCTION TO THE
PHILOSOPHY OF LAW
THE ADDRESSES CONTAINED IN THIS BOOK WERE
DELIVERED IN THE WILLIAM L. STORRS
LECTURE SERIES, 1921, BEFORE THE
LAW SCHOOL OF YALE UNIVERSITY,
NEW HAVEN, CONNECTICUT
An Introduction to the
Philosophy of Law
BY
ROSCOE POUND
NEW HAVEN: YALE UNIVERSITY PRESS
LONDON: HUMPHREY MILFORD
OXFORD UNIVERSITY PRESS
COPYRIGHT, 1922, BY YALE UNIVERSITY PRESS
PRINTED IN THE UNITED STATES OF AMERICA
First Published, May, 1922.
Second Printing, December, 1924.
Third Printing, May, 1925.
Fourth Printing, April, 1930.
TO
JOSEPH HENRY BEALE
IN GRATEFUL ACKNOWLEDGMENT OF MANY
OBLIGATIONS
The present volume is the second work published under the imprint of
the Yale University Press in memory of Arthur P. McKinstry, who died
in New York City, July 21, 1921. Born in Winnebago City, Minnesota, on
December 22, 1881, he was graduated from Yale College in 1905, and in
1907 received the degree of LL.B. _magna cum laude_ from the Yale Law
School, graduating at the head of his class. Throughout his career at
Yale he was noted both for his scholarship and for his active interest
in debating, which won for him first the presidency of the Freshman
Union and subsequently the presidency of the Yale Union. He was also
Class Orator in 1905, and vice-president of the Yale Chapter of Phi
Beta Kappa.
Following his graduation from the School of Law he entered upon the
practice of his profession in New York City and early met with the
success anticipated for him by his friends,--his firm, of which he was
the senior member, being recognized at the time of his death as among
the most prominent of the younger firms in the city. He was counsel
for the Post-Graduate Hospital of New York, the Heckscher Foundation
for Children, of which he was also a trustee, and from 1912 to 1914
served as associate counsel to the Agency of the United States in the
American and British Claims Arbitration. By his untimely death the bar
of the City of New York lost a lawyer outstanding for his ability,
common sense, conscientiousness, and high sense of justice; and Yale
University lost an alumnus of whom she was proud, who gave freely of
his time and thought to his class of 1905, to the development of the
Yale School of Law, and to the upbuilding of the Yale University
Press, which he served as counsel.
Preface
This book is a written version of lectures delivered before the
Law School of Yale University as Storrs Lectures in the school
year 1921-1922.
A metaphysician who had written on the secret of Hegel was
congratulated upon his success in keeping the secret. One who essays
an introduction to the philosophy of law may easily achieve a like
success. His hearers are not unlikely to find that he has presented
not one subject but two, presupposing a knowledge of one and giving
them but scant acquaintance with the other. If he is a philosopher,
he is not unlikely to have tried a highly organized philosophical
apparatus upon those fragments of law that lie upon the surface of
the legal order, or upon the law as seen through the spectacles of
some jurist who had interpreted it in terms of a wholly different
philosophical system. Looking at the list of authorities relied
upon in Spencer's Justice, and noting that his historical legal
data were taken from Maine's Ancient Law and thus came shaped by the
political-idealistic interpretation of the English historical school,
it is not difficult to perceive why positivist and Hegelian came to
the same juristic results by radically different methods. On the other
hand, if he is a lawyer, he will very likely have been able to do no
more than attempt none too intelligently to work with the complicated
and delicate engines of others upon the toughest and most resistant
of legal materials. Until some Anglo-American jurist arises with
the universal equipment of Josef Kohler the results of common-law
incursions into philosophy will resemble the effort of the editorial
writer who wrote upon Chinese Metaphysics after reading in the
Encyclopædia Britannica under China and Metaphysics and combining
his information. Yet such incursions there must be. Philosophy has
been a powerful instrument in the legal armory and the times are ripe
for restoring it to its old place therein. At least one may show what
philosophy has done for some of the chief problems of the science of
law, what stands before us to be done in some of the more conspicuous
problems of that science today in which philosophy may help us, and
how it is possible to look at those problems philosophically without
treating them in terms of the eighteenth-century natural law or the
nineteenth-century metaphysical jurisprudence which stand for
philosophy in the general understanding of lawyers.
ROSCOE POUND.
Harvard Law School,
October 25, 1921.
Contents
I. The Function of Legal Philosophy 15
II. The End of Law 59
III. The Application of Law 100
IV. Liability 144
V. Property 191
VI. Contract 236
Bibliography 285
Index 309
I
The Function of Legal Philosophy
For twenty-four hundred years--from the Greek thinkers of the fifth
century B. C., who asked whether right was right by nature or only by
enactment and convention, to the social philosophers of today, who
seek the ends, the ethical basis and the enduring principles of social
control--the philosophy of law has taken a leading rôle in all
study of human institutions. The perennial struggle of American
administrative law with nineteenth-century constitutional formulations
of Aristotle's threefold classification of governmental power, the
stone wall of natural rights against which attempts to put an end to
private war in industrial disputes thus far have dashed in vain, and
the notion of a logically derivable super-constitution, of which
actual written constitutions are faint and imperfect reflections,
which has been a clog upon social legislation for a generation, bear
daily witness how thoroughly the philosophical legal thinking of the
past is a force in the administration of justice of the present.
Indeed, the everyday work of the courts was never more completely
shaped by abstract philosophical ideas than in the nineteenth century
when lawyers affected to despise philosophy and jurists believed they
had set up a self-sufficient science of law which stood in no need of
any philosophical apparatus.
In all stages of what may be described fairly as legal development,
philosophy has been a useful servant. But in some it has been a
tyrannous servant, and in all but form a master. It has been used to
break down the authority of outworn tradition, to bend authoritatively
imposed rules that admitted of no change to new uses which changed
profoundly their practical effect, to bring new elements into the
law from without and make new bodies of law from these new materials,
to organize and systematize existing legal materials and to fortify
established rules and institutions when periods of growth were
succeeded by periods of stability and of merely formal reconstruction.
Such have been its actual achievements. Yet all the while its
professed aim has been much more ambitious. It has sought to give us
a complete and final picture of social control. It has sought to lay
down a moral and legal and political chart for all time. It has had
faith that it could find the everlasting, unchangeable legal reality
in which we might rest, and could enable us to establish a perfect law
by which human relations might be ordered forever without uncertainty
and freed from need of change. Nor may we scoff at this ambitious aim
and this lofty faith. They have been not the least factors in the
power of legal philosophy to do the less ambitious things which in
their aggregate are the bone and sinew of legal achievement. For the
attempt at the larger program has led philosophy of law incidentally
to do the things that were immediately and practically serviceable,
and the doing of these latter, as it were _sub specie aeternitatis_,
has given enduring worth to what seemed but by-products of
philosophical inquiry.
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,
has led men to seek some fixed basis of a certain ordering of human
action which should restrain magisterial as well as individual
wilfulness 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 overhauling of legal
precepts and for refitting of them to unexpected situations. And this
has led men to seek principles of legal development by which to escape
from authoritative rules which 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 inimical to the general
security, and it was important to reconcile or unify them with the
idea of a fixed basis of the legal order. Thus 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 which should stand fast forever. From the
time when lawgivers gave over the attempt to maintain the general
security by belief that particular bodies of human law had been
divinely dictated or divinely revealed or divinely sanctioned, they
have had to wrestle with the problem of proving to 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. 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.
We know Greek law from the beginnings of a legal order as pictured
in the Homeric poems to the developed commercial institutions of the
Hellenistic period. In its first stage the kings decide particular
causes by divine inspiration. In a second stage the customary course
of decision has become a tradition possessed by an oligarchy. Later,
popular demand for publication results in a body of enactment. At
first enactments are no more than declaratory. But it was an easy step
from publication of established custom to publication of changes as if
they were established custom and thus to conscious and avowed changes
and intentional new rules through legislation. The law of Athens in
the fifth and fourth centuries B. C. was a codified tradition eked
out by legislation and individualized in its application through
administration of justice by large popular assemblies. Thus in spite
of formal reduction to writing it preserved the fluidity of primitive
law and was able to afford a philosophy for Roman law in its stage
of equity and natural law--another period of legal fluidity. The
development of a strict law out of codified primitive materials,
which in Rome happily preceded the stage of equity and natural law,
did not take place in the Greek city. Hence the rules of law were
applied with an individualized equity that reminds us of the French
_droit coutumier_--a mode of application which, with all its good
points, must be preceded by a body of strict law, well worked out and
well understood, if its results are to be compatible with the general
security in a complex social order. In Athens of the classical period
the word [Greek: nómos], meaning both custom and enacted law as well
as law in general, reflected the uncertainty with respect to form and
the want of uniformity in application, which are characteristic of
primitive law, and invited thought as to the reality behind such
confusion.
We may understand the materials upon which Greek philosophers were
working if we look at an exhortation addressed by Demosthenes to an
Athenian jury. Men ought to obey the law, he said, for four reasons:
because laws were prescribed by God, because they were a tradition
taught by wise men who knew the good old customs, because they were
deductions from an eternal and immutable moral code and because they
were agreements of men with each other binding them because of a moral
duty to keep their promises. It was not long since that men had
thought of legal precepts as divinely revealed, nor was it long since
that law had been a tradition of old customs of decision. Philosophers
were seeking a better basis for them in eternal principles of right.
In the meantime in political theory, at least, many of them were the
agreements of Athenian citizens as to how they should conduct
themselves in the inevitable clashes of interests in everyday life.
What was needed above all was some theory of the authority of law
which should impose bonds of reason upon those who enacted, upon those
who applied and upon those who were subject to law in such an
amorphous legal order.
A sure basis of authority resting upon something more stable than
human will and the power of those who govern to impose their will for
the time being was required also for the problem of social control in
the Greek city-state. In order to maintain the general security and
the security of social institutions amid a strife of factions in a
society organized on the basis of kinship and against the wilfulness
of masterful individuals boasting descent from gods, in order to
persuade or coerce both the aristocracy and the mass of the low born
to maintain in orderly fashion the social _status quo_, it would not
do to tell them that law was a gift of God, nor that what offended the
aristocrat as a radical bit of popular legislation enacted at the
instance of a demagogue was yet to be obeyed because it had been so
taught by wise men who knew the good old customs, nor that Demos
chafing under some item of a class-possessed tradition was bound by
it as something to which all citizens had agreed. The exigencies of
the social order called for a distinction between [Greek: nómos] and
[Greek: tà nomizómena]--between law and rules of law. The Minos, which
if not actually a dialogue of Plato's seems clearly Platonic and very
close to Plato in time, is taken up with this distinction and gives
us a clue to the juristic problems of the time.
Another example may be seen in Aristotle's well-known discussion in
the Nicomachean Ethics. It is significant that Greek thinkers always
couple custom and enactment; things which today we contrast. These
were the formal bases of legal authority. So Aristotle considers, not
natural _law_ and positive _law_, but what is just in itself--just by
nature or just in its idea--and what derives its sole title to be just
from convention or enactment. The latter, he says, can be just only
with respect to those things which by nature are indifferent. Thus
when a newly reconstituted city took a living Spartan general for its
eponymus, no one was bound by nature to sacrifice to Brasidas as to an
ancestor, but he was bound by enactment and after all the matter was
one of convention, which, in a society framed on the model of an
organized kindred, required that the citizens have a common heroic
ancestor, and was morally indifferent. The distinction was handed
down to modern legal science by Thomas Aquinas, was embodied in
Anglo-American legal thought by Blackstone, and has become staple.
But it is quite out of its setting as a doctrine of _mala prohibita_
and _mala in se_. An example of the distinction between law and
rules of law has become the basis of an arbitrary line between the
traditionally anti-social, penalized by the common law, and recently
penalized infringements of newly or partially recognized social
interests. Although the discrimination between what is just and right
by nature and what is just because of custom or enactment has had a
long and fruitful history in philosophical jurisprudence and is still
a force in the administration of justice, I suspect that the permanent
contribution of Greek philosophy of law is to be found rather in the
distinction between law and rules of law, which lies behind it and has
significance for all stages of legal development.
Roman lawyers came in contact with philosophy in the transition from
the strict law to the stage of equity and natural law, and the contact
had much to do with enabling them to make the transition. From a
purely legal standpoint Greek law was in the stage of primitive law.
Law and morals were still largely undifferentiated. Hence Greek
philosophical thinking of a stage of undifferentiated law and morals
lent itself to the identification of the legal and the moral in
juristic thinking which was characteristic of the classical Roman law.
But the strict law obviously was indifferent to morals and in many
vital points was quite at variance with the moral ideas of the time.
The Greek distinction of just by nature and just by convention or
enactment was suggested at once by such a situation. Moreover the
forms of law at the end of the Republic and at the beginning of the
Empire invited a theory of law as something composite, made up of more
than one type of precept and resting immediately on more than one
basis of authority.
Cicero enumerates seven forms of law. Three of these are not heard of
thereafter in Roman juristic writing. Evidently already in Cicero's
time they belonged to the past and had ceased to be effective forms of
the actual law. The four remaining, namely, statutes, resolutions of
the senate, edicts of the magistrates, and the authority of those
learned in the law, come to three--legislation, administrative edicts,
and juristic reasoning on the basis of the legal tradition. And these
correspond to the three elements which made up the law. First, there
was the _ius ciuile_: the Twelve Tables, subsequent legislation,
interpretation of both, and the traditional law of the city. Second,
there was the mass of rules, in form largely procedural, which was
contained in the edicts. The growing point of the law had been here
and to some extent growth was still going on through this means.
Indeed this part of the law reached its final form under Hadrian.
Third, there were the writings of the jurisconsults. The growing point
of the law had begun to be here and this was the most important form
of law in the classical period from Augustus to the third century.
This part of the law got its final form in the Digest of Justinian.
Of the three elements, the first was thought of originally as declared
and published custom. Later it was thought of as resting on the
authority of the state. It was obviously local and peculiar to Rome.
In form it rested on the legislative power of the Roman people,
supplemented by a mere interpretation of the legislative command with
only the authority of customary acceptance. In Greek phrase it rested
on convention and enactment. The second purported to be the rules
observed by civilized peoples, and on points of commercial law may
well have been an approximation thereto. Apart from this, however,
according to ancient ideas of personal law, the rules which obtained
among civilized peoples were eminently a proper law to apply between
citizen and non-citizen. In Greek phrase it was law by convention.
The basis of the third was simply reason. The jurisconsult had no
legislative power and no _imperium_. The authority of his _responsum_,
as soon as law ceased to be a class tradition, was to be found in its
intrinsic reasonableness; in the appeal which it made to the reason
and sense of justice of the _iudex_. In Greek phrase, if it was law,
it was law by nature.
As the rise of professional lawyers, the shifting of the growing point
of law to juristic writing and the transition from the law of a city
to a law of the world called for a legal science, there was need of a
theory of what law was that could give a rational account of the
threefold body of rules in point of origin and authority, which were
actually in operation, and would at the same time enable the jurists
to shape the existing body of legal precepts by reason so as to make
it possible for them to serve as law for the whole world. The
perennial problem of preserving stability and admitting of change was
presented in an acute form. Above all the period from Augustus to the
second quarter of the third century was one of growth. But it was
revolutionary only if we compare the law at the end of the period with
the law of the generation before Cicero. The jurisconsults were
practical lawyers and the paramount interest in the general security
was ever before their eyes. While as an ideal they identified law with
morals, they did not cease to observe the strict law where it was
applicable nor to develop its precepts by analogy according to the
known traditional technique when new phases of old questions came
before them. Hence what to the Greeks was a distinction between right
by nature and right by convention or enactment became to them a
distinction between law by nature and law by custom or legislation.
The Latin equivalent of [Greek: to dikaion] (the right or the just)
became their word for law. They said _ius_ where Cicero said _lex_.
And this convenient ambiguity, lending itself to identification of
what ought to be and what is, gave a scientific foundation for the
belief of the jurisconsults that when and where they were not bound by
positive law they had but to expound the reason and justice of the
thing in order to lay down the law.
It must be borne in mind that "nature" did not mean to antiquity what
it means to us who are under the influence of the idea of evolution.
To the Greek, it has been said, the natural apple was not the wild one
from which our cultivated apple has been grown, but rather the golden
apple of the Hesperides. The "natural" object was that which
expressed most completely the idea of the thing. It was the perfect
object. Hence the natural law was that which expressed perfectly the
idea of law and a rule of natural law was one which expressed
perfectly the idea of law applied to the subject in question; the one
which gave to that subject its perfect development. For legal purposes
reality was to be found in this ideal, perfect, natural law, and its
organ was juristic reason. Legislation and the edict, so far as they
had any more than a positive foundation of political authority, were
but imperfect and ephemeral copies of this jural reality. Thus the
jurists came to the doctrine of the _ratio legis_, the principle of
natural law behind the legal rule, which has been so fruitful both of
practical good and of theoretical confusion in interpretation. Thus
also they came to the doctrine of reasoning from the analogy of all
legal rules, whether traditional or legislative, since all, so far as
they had jural reality, had it because and to the extent that they
embodied or realized a principle of natural law.
Natural law was a philosophical theory for a period of growth. It
arose to meet the exigencies of the stage of equity and natural law,
one of the great creative periods of legal history. Yet, as we have
seen, even the most rapid growth does not permit the lawyer to ignore
the demand for stability. The theory of natural law was worked out as
a means of growth, as a means of making a law of the world on the
basis of the old strict law of the Roman city. But it was worked out
also as a means of directing and organizing the growth of law so as to
maintain the general security. It was the task of the jurists to build
and shape the law on the basis of the old local materials so as to
make it an instrument for satisfying the wants of a whole world while
at the same time insuring uniformity and predicability. They did this
by applying a new but known technique to the old materials. The
technique was one of legal reason; but it was a legal reason
identified with natural reason and worked out and applied under the
influence of a philosophical ideal. The conception of natural law as
something of which all positive law was but declaratory, as something
by which actual rules were to be measured, to which so far as possible
they were to be made to conform, by which new rules were to be framed
and by which old rules were to be extended or restricted in their
application, was a powerful instrument in the hands of the jurists and
enabled them to proceed in their task of legal construction with
assured confidence.
But the juristic empiricism by which the _ius ciuile_ was made into a
law of the world needed something more than a theoretical incentive.
It was a process of analogical development by extension here and
restriction there, of generalization, first in the form of maxims and
later by laying down broad principles, and of cautious striking out of
new paths, giving them course and direction by trial and error. It was
a process very like that by which Anglo-American judicial empiricism
has been able to make a law of the world on the basis of the legal
precepts of seventeenth-century England. Such a process required
something to give direction to juristic reasoning, to give definite
content to the ideal, to provide a reasonably defined channel for
juristic thought. This need was met by the philosophical theory of the
nature of things and of the law of nature as conformity thereto. In
practice jurist-made and judge-made law have been molded consciously,
or unconsciously, by ideas as to what law is for; by theories as to
the end of law. In the beginnings of law men had no more ambitious
conception than a peaceable ordering of society at any cost. But the
Greeks soon got a better conception of an orderly and peaceable
maintaining of the social _status quo_. When the theory of natural law
is applied to that conception, we get the notion of an ideal form of
the social _status quo_--a form which expresses its nature, a perfect
form of the social organization of a given civilization--as that which
the legal order is to further and maintain. Thus judge and jurist
obtain a guide which has served them well ever since. They are to
measure all situations by an idealized form of the social order of the
time and place and are so to shape the law as to make it maintain and
further this ideal of the social _status quo_. We shall meet this idea
in various forms throughout the subsequent history of the philosophy
of law. It constitutes the permanent contribution of Rome to legal
philosophy.
As soon as scientific legal development begins in the Middle Ages the
law once more comes in contact with philosophy through the study of
both in the universities. What was the need of the time which
philosophy was called upon to satisfy? Following an era of anarchy and
disunion and violence men desired order and organization and peace.
They called for a philosophy that would bolster up authority and
rationalize their desire to impose a legal yoke upon society. The
period was one of transition from the primitive law of the Germanic
peoples to a strict law, through reception of Roman law as
authoritative legislation or through compilation of the Germanic
customary law more or less after the Roman model, as in the north of
France, or through declaration of the customary law in reported
decisions of strong central courts, as in England. Thus it soon became
a period of strict law. Scholastic philosophy, with its reliance upon
dialectic development of authoritatively given premises, its faith in
formal logic and its central problem of putting reason as a foundation
under authority, responded exactly to these demands. It is no misnomer
to style the commentators or post-glossators of the fourteenth and
fifteenth centuries the "scholastic jurists." For it was in large part
the philosophy that met the needs of the time so completely which
enabled them to put the Roman law of Justinian in a form to be
received and administered in the Europe of nine centuries later. While
they made the gloss into law in place of the text and made many things
over, as they had to be made over if they were to fit a wholly
different social order, the method of dialectical development of
absolute and unquestioned premises made it appear that nothing had
been done but to develop the logical implications of an authoritative
text. Men could receive the law of Bartolus so long as they believed
it but the logical unfolding of the pre-existing content of the
binding legislation of Justinian. It is interesting to note in
Fortescue an application of this to the rules of the common law in its
stage of strict law. He assumes that these rules are the principles of
which he reads in the commentators on Aristotle and that they may be
compared to the axioms of the geometrician. The time had not yet come
to call rules or principles or axioms in question. The need was to
rationalize men's desire to be governed by fixed rules and to
reconcile, in appearance at least, the change and growth which are
inevitable in all law with the need men felt of having a fixed,
unchangeable, authoritative rule. The scholastic philosophy did
notable service in these respects and, I venture to think, left as a
permanent contribution to legal science the method of insuring
certainty by logical development of the content of authoritatively
defined conceptions.
On the breakdown of the feudal social organization, the rise of
commerce and the era of discovery, colonization and exploitation of
the natural resources of new continents, together with the rise of
nations in place of loose congeries of vassal-held territories, called
for a national law unified within the national domain. Starkey
proposed codification to Henry VIII and Dumoulin urged harmonizing and
unifying of French customary law with eventual codification. The
Protestant jurist-theologians of the sixteenth century found a
philosophical basis for satisfying these desires of the time in the
divinely ordained state and in a natural law divorced from theology
and resting solely upon reason, reflecting the boundless faith in
reason which came in with the Renaissance. Thus each national jurist
might work out his own interpretation of natural law by dint of his
own reason, as each Christian might interpret the word of God for
himself as his own reason and conscience showed the way. On the other
hand, the Catholic jurists of the Counter-Reformation found a
philosophical basis for satisfying these same desires in a conception
of natural law as a system of limitations on human action expressing
the nature of man, that is, the ideal of man as a rational creature,
and of positive law as an ideal system expressing the nature of a
unified state. For the moment these ideas were put at the service of a
growing royal authority and bore fruit in the Byzantine theory of
sovereignty which became classical in public law. In private law they
soon took quite another turn. For a new period of growth, demanded by
the expansion of society and the breaking over the bonds of authority,
was at hand to make new and wholly different demands upon philosophy.
Glossators and commentators had made or shaped the law out of Roman
materials for a static, locally self-sufficient, other-worldly
society, revering authority because authority had saved it from what
it feared, regarding chiefly the security of social institutions and
negligent of the individual life because in its polity the individual
lived his highest life in the life of another whose greatness was the
greatness of those who served him. In the seventeenth and eighteenth
centuries jurists were required to make or shape a law out of these
medievalized Roman materials to satisfy the wants of an active and
shifting, locally interdependent, this-worldly society, impatient of
authority because authority stood in the way of what it desired, and
jealously individualist, since it took free individual self-assertion
to be the highest good. In England the strict law made for feudal
England out of Germanic materials, sometimes superficially Romanized,
was likewise to be made over to do the work of administering justice
to a new world. A period of legal development resulted which is
strikingly analogous to the classical period of Roman law. Once more
philosophy took the helm. Once more there was an infusion into law of
ideas from without the law. Once more law and morals were identified
in juristic thinking. Once more men held as a living tenet that all
positive law was declaratory of natural law and got its real authority
from the rules of natural law which it declared. Once more juridical
idealism led the jurist to survey every corner of the actual law,
measuring its rules by reason and shaping, extending, restricting or
building anew in order that the actual legal edifice might be a
faithful copy of the ideal.
But the theory of natural law, devised for a society organized on the
basis of kinship and developed for a society organized on the basis of
relations, did not suffice for a society which conceived of itself as
an aggregate of individuals and was reorganizing on the basis of
competitive self-assertion. Again the convenient ambiguity of _ius_,
which could mean not only right and law but "a right," was pressed
into service and _ius naturale_ gave us natural rights. The ultimate
thing was not natural law as before, not merely principles of eternal
validity, but natural rights, certain qualities inherent in man and
demonstrated by reason, which natural law exists to secure and to
which positive law ought to give effect. Later these natural rights
came to be the bane of juristic thinking. Yet they achieved great
things in their day. Under the influence of this theory jurists worked
out a scheme of "legal rights" that effectively secures almost the
whole field of individual interests of personality and individual
interests of substance. It put a scientific foundation under the
medieval scheme of the claims and duties involved in the relation of
king to tenants in chief, out of which the judges had developed the
immemorial rights of Englishmen, and enabled the common-law rights of
Englishmen to become the natural rights of man, intrenched as such in
our bills of rights. Thus it served as a needed check upon the
exuberance of growth stimulated by the theory of natural law. It kept
a certain needed rigidity in a time when law threatened to become
wholly fluid. And this steadying influence was strengthened from
another quarter. The Roman jurisconsult was teacher, philosopher and
practitioner in one. As a lawyer he had the exigencies of the general
security ever before him in that he felt the imperative need of being
able to advise with assurance what tribunals would do on a given state
of facts. The seventeenth- and eighteenth-century jurists were chiefly
teachers and philosophers. Happily they had been trained to accept
the Roman law as something of paramount authority and so were able to
give natural law a content by assuming its identity with an ideal form
of the law which they knew and in which they had been trained. As the
Roman jurisconsult built in the image of the old law of the city, they
built on idealized Roman lines. If Roman law could no longer claim to
be embodied authority, they assumed that, corrected in its details by
a juristic-philosophical critique, it was embodied reason.
Both of these ideas, natural rights and an ideal form of the actual
law of the time and place as the jural order of nature, were handed
down to and put to new uses in the nineteenth century. In the growing
law of the seventeenth and eighteenth centuries they were but guides
to lead growth into definite channels and insure continuity and
permanence in the development of rules and doctrines. Whether natural
rights were conceived as qualities of the natural man or as deductions
from a compact which expressed the nature of man, the point was, not
that the jurist should keep his hands off lest by devising some new
precept or in reshaping some old doctrine he infringe a fundamental
right, but that he should use his hand freely and skilfully to shape
rules and doctrines and institutions that they might be instruments of
achieving the ideal of human existence in a "state of nature." For the
state of nature, let us remember, was a state which expressed the
ideal of man as a rational creature. If a reaction from the formal
over-refinement of the eighteenth century came to identify this with
a primitive simplicity, in juristic hands it was the simplicity of a
rational ideal in place of the cumbrous complexity of legal systems
which had become fixed in their ideas in the stage of the strict
law. Thus Pothier, discussing the Roman categories of contract and
rejecting them for the "natural" principle that man, as a moral
creature, should keep his engagements, declares that the complex and
arbitrary system of Roman law, made up of successive additions at
different times to a narrow primitive stock of legally enforceable
promises, is not adhered to because it is "remote from simplicity."
Again the ideal form of the actual law, which gave content to
natural law, was not an ideal form of historically found principles,
constraining development for all time within historically fixed
bounds, as in the nineteenth century, but an ideal form of the _ratio
legis_--of the reason behind the rule or doctrine or institution
whereby it expressed the nature of the rational human being guided
only by reason and conscience in his relations with similar beings
similarly guided. Attempts to fix the immutable part of law, to lay
out legal charts for all time, belong to the transition to the
maturity of law. The eighteenth-century projects for codification and
the era of codification on the Continent, in which the results of two
centuries of growth were put in systematic form to serve as the basis
of a juristic new start, in form rested upon the theory of natural
law. By a sheer effort of reason the jurist could work out a complete
system of deductions from the nature of man and formulate them in a
perfect code. Go to, let him do so! This was not the mode of thought
of a period of growth but rather of one when growth had been achieved
and the philosophical theory of a law of nature was called upon for a
new kind of service.
At the end of the eighteenth century Lord Kenyon had determined that
"Mansfield's innovations" were not to go on. Indeed some of them were
to be undone. Equity was soon to be systematized by Lord Eldon and to
become "almost as fixed and settled" as the law itself. The absorption
of the law merchant was complete in its main lines although in details
it went on for two decades. Moreover the legislative reform movement
which followed only carried into detail the ideas which had come into
the law in the two preceding centuries. For a time the law was
assimilating what had been taken up during the period of growth and
the task of the jurist was one of ordering, harmonizing and
systematizing rather than of creating. Likewise law had been codifying
on the Continent. Down to the end of the nineteenth century the codes,
whatever their date, in reality speak from the end of the eighteenth
century and with few exceptions are all but copies of the French code
of 1804. Where there were no codes, the hegemony of the historical
school led to a movement back to the law of Justinian which would have
undone much of the progress of the last centuries. The energies of
jurists were turned for a time to analysis, classification and system
as their sole task. Where codes obtained, analytical development and
dogmatic exposition of the text, as a complete and final statement of
the law, was to occupy jurists exclusively for the next hundred years.
We may well think of this time, as it thought of itself, as a period
of maturity of law. The law was taken to be complete and
self-sufficient, without antinomies and without gaps, wanting only
arrangement, logical development of the implications of its several
rules and conceptions, and systematic exposition of its several parts.
Legislation might be needed on occasion in order to get rid of
archaisms which had survived the purgation of the two prior centuries.
For the rest, history and analysis, bringing out the idea behind the
course of development of legal doctrines and unfolding their logical
consequences, were all the apparatus which the jurist required. He
soon affected to ignore philosophy and often relegated it to the
science of legislation, where within narrow limits it might still be
possible to think of creating.
Yet the nineteenth century was no more able to get on without
philosophy of law than were its predecessors. In place of one
universally recognized philosophical method we find four well-marked
types. But they all come to the same final results, are marked by the
same spirit and put the same shackles upon juristic activity. They are
all modes of rationalizing the juristic desires of the time, growing
out of the pressure of the interest in the general security by way of
reaction from a period of growth and in the security of acquisitions
and security of transactions in a time of economic expansion and
industrial enterprise.
In the United States, since the natural law of the eighteenth-century
publicists had become classical, we relied largely upon an American
variant of natural law. It was not that natural law expressed the
nature of man. Rather it expressed the nature of government. One form
of this variant was due to our doctrine that the common law of England
was in force only so far as applicable to our conditions and our
institutions. The attempt to put this doctrine philosophically regards
an ideal form of the received common law as natural law and takes
natural law to be a body of deductions from or implications of
American institutions or the nature of our polity. But yesterday the
Supreme Court of one of our states laid down dogmatically that
primogeniture in estates tail (which by the way is still possible in
one of the oldest of the original states) could not co-exist with "the
axioms of the constitution" which guarantees to each state a
republican form of government. More generally, however, the American
variant of natural law grew out of an attempt at philosophical
statement of the power of our courts with respect to unconstitutional
legislation. The constitution was declaratory of principles of natural
constitutional law which were to be deduced from the nature of free
government. Hence constitutional questions were always only in terms
questions of constitutional interpretation. They were questions of the
meaning of the document, as such, only in form. In substance they were
questions of a general constitutional law which transcended the text;
of whether the enactment before the court conformed to principles of
natural law "running back of all constitutions" and inherent in the
very idea of a government of limited powers set up by a free people.
Now that courts with few exceptions have given over this mode of
thinking and the highest court in the land has come to apply the
limitations of the fifth and fourteenth amendments as legal standards,
there are some who say that we no longer have a constitutional law.
For how can there be law unless as a body of rules declaring a natural
law which is above all human enactment? The interpretation of a
written instrument, no matter by whom enacted, may be governed by
law, indeed, but can yield no law. Such ideas die hard. In the
language of the eighteenth century, our courts sought to make our
positive law, and in particular our legislation, express the nature of
American political institutions; they sought so to shape it and
restrain it as to make it give effect to an ideal of our polity.
Later in the nineteenth century natural law as a deduction from
American institutions or from "free government" gave way to a
metaphysical-historical theory worked out in Continental Europe.
Natural rights were deductions from a fundamental metaphysically
demonstrable datum of individual free will, and natural law was an
ideal critique of positive law whereby to secure these rights in their
integrity. History showed us the idea of individual liberty realizing
itself in legal institutions and rules and doctrines; jurisprudence
developed this idea into its logical consequences and gave us a
critique of law whereby we might be delivered from futile attempts to
set up legal precepts beyond the necessary minimum for insuring the
harmonious co-existence of the individual and his fellows. This mode
of thought was well suited to a conception of law as standing between
the abstract individual and society and protecting the natural rights
of the former against the latter, which American law had derived from
the seventeenth-century contests in England between courts and crown.
It was easy to generalize this as a contest between the individual and
society, and it became more easy to do so when the common-law rights
of Englishmen secured by common-law courts against the crown had
become the natural rights of man secured to individual men as against
the state by the bills of rights.
Others in England and America turned to a utilitarian-analytical
theory. The legislator was to be guided by a principle of utility.
That which made for the greatest total of individual happiness was to
be the lawmaker's standard. The jurist was to find universal
principles by analysis of the actual law. He had nothing to do with
creative activity. His work was to be that of orderly logical
development of the principles reached by analysis of what he found
already given in the law and improvement of the form of the law by
system and logical reconciliation of details. As it was assumed that
the maximum of abstract individual free self-assertion was the maximum
of human happiness, in the result the legislator was to be busied with
formal improvement of the law and rendering it, as Bentham put it,
more "cognoscible," while the jurist was exercising a like restricted
function so far as he could work with materials afforded exclusively
by the law itself. Not unnaturally metaphysical and historical and
analytical jurists, at the end of the century, were quite willing to
say that their several methods were not exclusive but were
complementary.
Toward the end of the last century a positivist sociological thinking
tended to supersede the metaphysical-historical and the
utilitarian-analytical. All phenomena were determined by inexorable
natural laws to be discovered by observation. Moral and social and
hence legal phenomena were governed by laws as completely beyond the
power of conscious human control as the movements of the planets. We
might discover these laws by observation of social phenomena and might
learn to submit to them intelligently instead of rashly or ignorantly
defying them. But we could hope to do no more. Except as he could
learn to plot some part of the inevitable curve of legal development
and save us from futile flyings in the face of the laws by which legal
evolution was inevitably governed, the jurist was powerless. Many
combined this mode of thought with or grafted it on the
metaphysical-historical theory and fought valiantly against the social
legislation of the last decade of the nineteenth century and the first
decade of the present century with this reinforced juristic pessimism
as a base. Superficially it appeared that the Greek idea of the
naturally just, which in its Roman form of natural law and its
eighteenth-century form of natural rights had made for a creative
legal science as long as such a science had existed, had at length
exhausted its possibilities.
Today, however, we hear of a revival of natural law. Philosophy of law
is raising its head throughout the world. We are asked to measure
rules and doctrines and institutions and to guide the application of
law by reference to the end of law and to think of them in terms of
social utility. We are invited to subsume questions of law and of the
application of law under the social ideal of the time and place. We
are called upon to formulate the jural postulates of the civilization
of the time and place and to measure law and the application of law
thereby in order that law may further civilization and that the legal
materials handed down with the civilization of the past may be made an
instrument of maintaining and furthering the civilization of the
present. We are told that observation shows us social interdependence
through similarity of interest and through division of labor as the
central fact in human existence and are told to measure law and the
application of law functionally by the extent to which they further
or interfere with this interdependence. For the era of legal
self-sufficiency is past. The work of assimilating what had been
received into the law from without during the period of equity and
natural law has been done. The possibilities of analytical and
historical development of the classical materials have been
substantially exhausted. While jurists have been at these tasks, a new
social order has been building which makes new demands and presses
upon the legal order with a multitude of unsatisfied desires. Once
more we must build rather than merely improve; we must create rather
than merely order and systematize and logically reconcile details. One
has but to compare the law of today on such subjects as torts, or
public utilities or administrative law with the law of a generation
ago to see that we are in a new stage of transition; to see that the
juristic pessimism of the immediate past, which arose to save us from
taking in more from without while what had been taken already remained
undigested, will serve no longer; and to see that the jurist of
tomorrow will stand in need of some new philosophical theory of law,
will call for some new philosophical conception of the end of law and
at the same time will want some new steadying philosophical conception
to safeguard the general security, in order to make the law which we
hand down to him achieve justice in his time and place.
II
The End of Law
Making or finding law, call it which you will, presupposes a mental
picture of what one is doing and of why he is doing it. Hence the
nature of law has been the chief battleground of jurisprudence since
the Greek philosophers began to argue as to the basis of the law's
authority. But the end of law has been debated more in politics than
in jurisprudence. In the stage of equity and natural law the
prevailing theory of the nature of law seemed to answer the question
as to its end. In the maturity of law the law was thought of as
something self-sufficient, to be judged by an ideal form of itself,
and as something which could not be made, or, if it could be made, was
to be made sparingly. The idea of natural rights seemed to explain
incidentally what law was for and to show that there ought to be as
little of it as possible, since it was a restraint upon liberty and
even the least of such restraint demanded affirmative justification.
Thus, apart from mere systematic and formal improvement, the theory of
lawmaking in the maturity of law was negative. It told us chiefly how
we should not legislate and upon what subjects we should refrain from
lawmaking. Having no positive theory of creative lawmaking, the last
century was little conscious of requiring or holding a theory as to
the end of law. But in fact it held such a theory and held it
strongly.
As ideas of what law is for are so largely implicit in ideas of what
law is, a brief survey of ideas of the nature of law from this
standpoint will be useful. No less than twelve conceptions of what law
is may be distinguished.
First, we may put the idea of a divinely ordained rule or set of rules
for human action, as for example, the Mosaic law, or Hammurapi's code,
handed him ready-made by the sun god, or Manu, dictated to the sages
by Manu's son Bhrigu in Manu's presence and by his direction.
Second, there is an idea of law as a tradition of the old customs
which have proved acceptable to the gods and hence point the way in
which man may walk with safety. For primitive man, surrounded by what
seem vengeful and capricious powers of nature, is in continual fear of
giving offence to these powers and thus bringing down their wrath upon
himself and his fellows. The general security requires that men do
only those things and do them only in the way which long custom has
shown at least not displeasing to the gods. Law is the traditional or
recorded body of precepts in which that custom is preserved and
expressed. Whenever we find a body of primitive law possessed as a
class tradition by a political oligarchy it is likely to be thought of
in this way just as a body of like tradition in the custody of a
priesthood is certain to be thought of as divinely revealed.
A third and closely related idea conceives of law as the recorded
wisdom of the wise men of old who had learned the safe course or the
divinely approved course for human conduct. When a traditional custom
of decision and custom of action has been reduced to writing in a
primitive code it is likely to be thought of in this way, and
Demosthenes in the fourth century B. C. could describe the law of
Athens in these terms.
Fourth, law may be conceived as a philosophically discovered system of
principles which express the nature of things, to which, therefore,
man ought to conform his conduct. Such was the idea of the Roman
jurisconsult, grafted, it is true, on the second and third ideas and
on a political theory of law as the command of the Roman people, but
reconciled with them by conceiving of tradition and recorded wisdom
and command of the people as mere declarations or reflections of the
philosophically ascertained principles, to be measured and shaped and
interpreted and eked out thereby. In the hands of philosophers the
foregoing conception often takes another form so that, fifth, law is
looked upon as a body of ascertainments and declarations of an eternal
and immutable moral code.
Sixth, there is an idea of law as a body of agreements of men in
politically organized society as to their relations with each other.
This is a democratic version of the identification of law with rules
of law and hence with the enactments and decrees of the city-state
which is discussed in the Platonic Minos. Not unnaturally Demosthenes
suggests it to an Athenian jury. Very likely in such a theory a
philosophical idea would support the political idea and the inherent
moral obligation of a promise would be invoked to show why men should
keep the agreements made in their popular assemblies.
Seventh, law has been thought of as a reflection of the divine reason
governing the universe; a reflection of that part which determines the
"ought" addressed by that reason to human beings as moral entities, in
distinction from the "must" which it addresses to the rest of
creation. Such was the conception of Thomas Aquinas, which had great
currency down to the seventeenth century and has had much influence
ever since.
Eighth, law has been conceived as a body of commands of the sovereign
authority in a politically organized society as to how men should
conduct themselves therein, resting ultimately on whatever basis was
held to be behind the authority of that sovereign. So thought the
Roman jurists of the Republic and of the classical period with respect
to positive law. And as the emperor had the sovereignty of the Roman
people devolved upon him, the Institutes of Justinian could lay down
that the will of the emperor had the force of a law. Such a mode of
thought was congenial to the lawyers who were active in support of
royal authority in the centralizing French monarchy of the sixteenth
and seventeenth centuries and through them passed into public law. It
seemed to fit the circumstances of parliamentary supremacy in England
after 1688, and became the orthodox English juristic theory. Also it
could be made to fit a political theory of popular sovereignty in
which the people were thought of as succeeding to the sovereignty of
parliament at the American Revolution or of the French king at the
French Revolution.
A ninth idea of law takes it to be a system of precepts discovered by
human experience whereby the individual human will may realize the
most complete freedom possible consistently with the like freedom of
will of others. This idea, held in one form or another by the
historical school, divided the allegiance of jurists with the theory
of law as command of the sovereign during almost the whole of the past
century. It assumed that the human experience by which legal
principles were discovered was determined in some inevitable way. It
was not a matter of conscious human endeavor. The process was
determined by the unfolding of an idea of right and justice or an idea
of liberty which was realizing itself in human administration of
justice, or by the operation of biological or psychological laws or of
race characters, whose necessary result was the system of law of the
time and people in question.
Again, tenth, men have thought of law as a system of principles,
discovered philosophically and developed in detail by juristic writing
and judicial decision, whereby the external life of man is measured by
reason, or in another phase, whereby the will of the individual in
action is harmonized with those of his fellow men. This mode of
thought appeared in the nineteenth century after the natural-law
theory in the form in which it had prevailed for two centuries had
been abandoned and philosophy was called upon to provide a critique
for systematic arrangement and development of details.
Eleventh, law has been thought of as a body or system of rules imposed
on men in society by the dominant class for the time being in
furtherance, conscious or unconscious, of its own interest. This
economic interpretation of law takes many forms. In an idealistic form
it thinks of the inevitable unfolding of an economic idea. In a
mechanical sociological form it thinks of class struggle or a struggle
for existence in terms of economics, and of law as the result of the
operation of forces or laws involved in or determining such
struggles. In a positivist-analytical form it thinks of law as the
command of the sovereign, but of that command as determined in its
economic content by the will of the dominant social class, determined
in turn by its own interest. All of these forms belong to transition
from the stability of the maturity of law to a new period of growth.
When the idea of the self-sufficiency of law gives way and men seek to
relate jurisprudence to the other social sciences, the relation to
economics challenges attention at once. Moreover in a time of copious
legislation the enacted rule is easily taken as the type of legal
precept and an attempt to frame a theory of legislative lawmaking is
taken to give an account of all law.
Finally, twelfth, there is an idea of law as made up of the dictates
of economic or social laws with respect to the conduct of men in
society, discovered by observation, expressed in precepts worked out
through human experience of what would work and what not in the
administration of justice. This type of theory likewise belongs to the
end of the nineteenth century, when men had begun to look for
physical or biological bases, discoverable by observation, in place of
metaphysical bases, discoverable by philosophical reflection. Another
form finds some ultimate social fact by observation and develops the
logical implications of that fact much after the manner of the
metaphysical jurist. This again results from the tendency in recent
years to unify the social sciences and consequent attention to
sociological theories.
Digression is worth while in order to note that each of the foregoing
theories of law was in the first instance an attempt at a rational
explanation of the law of the time and place or of some striking
element therein. Thus, when the law has been growing through juristic
activity, a philosophical theory of law, as declaratory of
philosophically ascertainable principles, has obtained. When and where
the growing point of law has been in legislation, a political theory
of law as the command of the sovereign has prevailed. When the law has
been assimilating the results of a prior period of growth, a
historical theory of law as something found by experience, or a
metaphysical theory of law as an idea of right or of liberty realizing
in social and legal development, has tended to be dominant. For
jurists and philosophers do not make these theories as simple matters
of logic by inexorable development of philosophical fundamentals.
Having something to explain or to expound, they endeavor to understand
it and to state it rationally and in so doing work out a theory of
what it is. The theory necessarily reflects the institution which it
was devised to rationalize, even though stated universally. It is an
attempt to state the law, or the legal institution of the time and
place in universal terms. Its real utility is likely to be in its
enabling us to understand that body of law or that institution and to
perceive what the men of the time were seeking to do with them or to
make of them. Accordingly analysis of these theories is one way of
getting at the ends for which men have been striving through the legal
order.
What common elements may we find in the foregoing twelve pictures of
what law is? For one thing, each shows us a picture of some ultimate
basis, beyond reach of the individual human will, that stands fast in
the whirl of change of which life is made up. This steadfast ultimate
basis may be thought of as the divine pleasure or will or reason,
revealed immediately or mediately through a divinely ordained
immutable moral code. It may be put in the form of some ultimate
metaphysical datum which is so given us that we may rest in it
forever. It may be portrayed as certain ultimate laws which inexorably
determine the phenomena of human conduct. Or it may be described in
terms of some authoritative will for the time and place, to which the
wills of others are subjected, that will deriving its authority
ultimately and absolutely in some one of the preceding forms, so that
what it does is by and large in no wise a matter of chance. This fixed
and stable starting point is usually the feature upon which the chief
emphasis is placed. Next we shall find in all theories of the nature
of law a picture of a determinate and mechanically absolute mode of
proceeding from the fixed and absolute starting point. The details may
come from this starting point through divine revelation or a settled
authoritative tradition or record, or an inevitable and infallible
philosophical or logical method, or an authoritative political
machinery, or a scientific system of observation, or historically
verifiable ideas which are logically demonstrable to be implications
of the fundamental metaphysically given datum. Third, we shall see in
these theories a picture of a system of ordering human conduct and
adjusting human relations resting upon the ultimate basis and derived
therefrom by the absolute process. In other words, they all picture,
not merely an ordering of human conduct and adjustment of human
relations, which we have actually given, but something more which we
should like to have, namely, a doing of these things in a fixed,
absolutely predetermined way, excluding all merely individual feelings
or desires of those by whom the ordering and adjustment are carried
out. Thus in these subconscious picturings of the end of law it seems
to be conceived as existing to satisfy a paramount social want of
general security. Certainly the nineteenth-century jurist had this
conception. But is this because the function of law is limited to
satisfaction of that one want, or is it because that want has been
most conspicuous among those which men have sought to satisfy through
law, and because the ordering of human conduct by the force of
politically organized society has been adapted chiefly to satisfying
that one want in the social order of the past?
If we turn to the ideas which have obtained in conscious thinking
about the end of law, we may recognize three which have held the
ground successively in legal history and a fourth which is beginning
to assert itself. The first and simplest idea is that law exists in
order to keep the peace in a given society; to keep the peace at all
events and at any price. This is the conception of what may be called
the stage of primitive law. It puts satisfaction of the social want of
general security, stated in its lowest terms, as the purpose of the
legal order. So far as the law goes, other individual or social wants
are ignored or are sacrificed to this one. Accordingly the law is made
up of tariffs of exact compositions for every detailed injury instead
of principles of exact reparation, of devices to induce or coerce
submission of controversies to adjudication instead of sanctions, of
regulation of self-help and self-redress instead of a general
prohibition thereof, and of mechanical modes of trial which at any
rate do not admit of argument instead of rational modes of trial
involving debate and hence dispute and so tending to defeat the
purpose of the legal order. In a society organized on the basis of
kinship, in which the greater number of social wants were taken care
of by the kin-organizations, there are two sources of friction: the
clash of kin-interests, leading to controversies of one kindred with
another, and the kinless man, for whom no kin-organization is
responsible, who also has no kin-organization to stand behind him in
asserting his claims. Peace between kindreds and peace between
clansmen and the growing mass of non-gentile population is the
unsatisfied social want to which politically organized society must
address itself. The system of organized kindreds gradually breaks
down. Groups of kinsmen cease to be the fundamental social units.
Kin-organization is replaced by political organization as the primary
agency of social control. The legal unit comes to be the free citizen
or the free man. In this transition regulation of self-redress and
prevention of private war among those who have no strong
clan-organizations to control them or respond for them are demanded by
the general security. The means of satisfying these social wants are
found in a legal order conceived solely in terms of keeping the peace.
Greek philosophers came to conceive of the general security in broader
terms and to think of the end of the legal order as preservation of
the social _status quo_. They came to think of maintaining the general
security mediately through the security of social institutions. They
thought of law as a device to keep each man in his appointed groove in
society and thus prevent friction with his fellows. The virtue on
which they insisted was _sophrosyne_, knowing the limits which nature
fixes for human conduct and keeping within them. The vice which they
denounced was _hybris_, wilful bondbreaking--wilful transgression of
the socially appointed bounds. This mode of thinking follows the
substitution of the city-state political organization of society for
the kin-organization. The organized kindreds were still powerful. An
aristocracy of the kin-organized and kin-conscious, on the one hand,
and a mass of those who had lost or severed their ties of kinship, or
had come from without, on the other hand, were in continual struggle
for social and political mastery. Also the politically ambitious
individual and the masterful aristocrat were continually threatening
the none too stable political organization through which the general
security got a precarious protection. The chief social want, which no
other social institution could satisfy, was the security of social
institutions generally. In the form of maintenance of the social
_status quo_ this became the Greek and thence the Roman and medieval
conception of the end of law.
Transition from the idea of law as a device to keep the peace to the
idea of law as a device to maintain the social _status quo_ may be
seen in the proposition of Heraclitus, that men should fight for their
laws as for the walls of their city. In Plato the idea of maintaining
the social order through the law is fully developed. The actual social
order was by no means what it should be. Men were to be reclassified
and everyone assigned to the class for which he was best fitted. But
when the classification and the assignment had been made the law was
to keep him there. It was not a device to set him free that he might
find his own level by free competition with his fellows and free
experiment with his natural powers. It was a device to prevent such
disturbances of the social order by holding each individual to his
appointed place. As Plato puts it, the shoemaker is to be only a
shoemaker and not a pilot also; the farmer is to be only a farmer and
not a judge as well; the soldier is to be only a soldier and not a
man of business besides; and if a universal genius who through wisdom
can be everything and do everything comes to the ideal city-state, he
is to be required to move on. Aristotle puts the same idea in another
way, asserting that justice is a condition in which each keeps within
his appointed sphere; that we first take account of relations of
inequality, treating individuals according to their worth, and then
secondarily of relations of equality in the classes into which their
worth requires them to be assigned. When St. Paul exhorted wives to
obey their husbands, and servants to obey their masters, and thus
everyone to exert himself to do his duty in the class where the social
order had put him, he expressed this Greek conception of the end of
law.
Roman lawyers made the Greek philosophical conception into a juristic
theory. For the famous three precepts to which the law is reduced in
Justinian's Institutes come to this: Everyone is to live honorably; he
is to "preserve moral worth in his own person" by conforming to the
conventions of the social order. Everyone is to respect the
personality of others; he is not to interfere with those interests and
powers of action, conceded to others by the social order, which make
up their legal personality. Everyone is to render to everyone else his
own; he is to respect the acquired rights of others. The social system
has defined certain things as belonging to each individual. Justice is
defined in the Institutes as the set and constant purpose of giving
him these things. It consists in rendering them to him and in not
interfering with his having and using them within the defined limits.
This is a legal development of the Greek idea of harmoniously
maintaining the social _status quo_. The later eastern empire carried
it to the extreme. Stability was to be secured by rigidly keeping
everyone to his trade or calling and his descendants were to follow
him therein. Thus the harmony of society and the social order would
not be disturbed by individual ambition.
In the Middle Ages the primitive idea of law as designed only to keep
the peace came back with Germanic law. But the study of Roman law
presently taught the Roman version of the Greek conception and the
legal order was thought of once more as an orderly maintenance of the
social _status quo_. This conception answered to the needs of medieval
society, in which men had found relief from anarchy and violence in
relations of service and protection and a social organization which
classified men in terms of such relations and required them to be held
to their functions as so determined. Where the Greeks thought of a
stationary society corrected from time to time with reference to its
nature or ideal, the Middle Ages thought of a stationary society
resting upon authority and determined by custom or tradition. To each,
law was a system of precepts existing to maintain this stationary
society as it was.
In the feudal social order reciprocal duties involved in relations
established by tradition and taken to rest on authority were the
significant legal institutions. With the gradual disintegration of
this order and the growing importance of the individual in a society
engaged in discovery, colonization and trade, to secure the claims of
individuals to assert themselves freely in the new fields of human
activity which were opening on every side became a more pressing
social want than to maintain the social institutions by which the
system of reciprocal duties was enforced and the relations involving
those duties were preserved. Men did not so much desire that others
perform for them the duties owing in some relation, as that others
keep hands off while they achieved what they might for themselves in a
world that continually afforded new opportunities to the active and
the daring. The demand was no longer that men be kept in their
appointed grooves. Friction and waste were apprehended, not from men
getting out of these grooves, but from attempts to hold them there by
means devised to meet the needs of a different social order whereby
they were made to chafe under arbitrary restraint and their powers
were not utilized in the discovery and exploitation of the resources
of nature, to which human powers were to be devoted in the succeeding
centuries. Accordingly the end of law comes to be conceived as a
making possible of the maximum of individual free self-assertion.
Transition to the newer way of thinking may be seen in the Spanish
jurist-theologians of the sixteenth century. Their juristic theory
was one of natural limits of activity in the relations of individuals
with each other, that is, of limits to human action which expressed
the rational ideal of man as a moral creature and were imposed upon
men by reason. This theory differs significantly from the idea of
antiquity, although it goes by the old name. The Greeks thought of
a system of limiting men's activities in order that each might be
kept in the place for which he was best fitted by nature--the place
in which he might realize an ideal form of his capacities--and thus
to preserve the social order as it stands or as it shall stand
after a rearrangement. The sixteenth-century jurists of the
Counter-Reformation held that men's activities were naturally limited,
and hence that positive law might and should limit them in the
interest of other men's activities, because all men have freedom of
will and ability to direct themselves to conscious ends. Where
Aristotle thought of inequalities arising from the different worth of
individual men and their different capacities for the things which the
social order called for, these jurists thought of a natural (i.e.,
ideal) equality, involved in the like freedom of will and the like
power of conscious employment of one's faculties inherent in all men.
Hence law did not exist to maintain the social _status quo_ with all
its arbitrary restraints on the will and on employment of individual
powers; it existed rather to maintain the natural equality which often
was threatened or impaired by the traditional restrictions on
individual activity. Since this natural equality was conceived
positively as an ideal equality in opportunity to do things, it could
easily pass into a conception of free individual self-assertion as the
thing sought, and of the legal order as existing to make possible the
maximum thereof in a world abounding in undiscovered resources,
undeveloped lands and unharnessed natural forces. The latter idea took
form in the seventeenth century and prevailed for two centuries
thereafter, culminating in the juristic thought of the last
generation.
Law as a securing of natural equality became law as a securing of
natural rights. The nature of man was expressed by certain qualities
possessed by him as a moral, rational creature. The limitations on
human activity, of which the Spanish jurist-theologians had written,
got their warrant from the inherent moral qualities of men which made
it right for them to have certain things and do certain things. These
were their natural rights and the law existed simply to protect and
give effect to these rights. There was to be no restraint for any
other purpose. Except as they were to be compelled to respect the
rights of others, which the natural man or ideal man would do without
compulsion as a matter of reason, men were to be left free. In the
nineteenth century this mode of thought takes a metaphysical turn. The
ultimate thing for juristic purposes is the individual consciousness.
The social problem is to reconcile conflicting free wills of conscious
individuals independently asserting their wills in the varying
activities of life. The natural equality becomes an equality in
freedom of will. Kant rationalized the law in these terms as a system
of principles or universal rules, to be applied to human action,
whereby the free will of the actor may co-exist along with the free
will of everyone else. Hegel rationalized the law in these terms as a
system of principles wherein and whereby the idea of liberty was
realizing in human experience. Bentham rationalized it as a body of
rules, laid down and enforced by the state's authority, whereby the
maximum of happiness, conceived in terms of free self-assertion, was
secured to each individual. Its end was to make possible the maximum
of free individual action consistent with general free individual
action. Spencer rationalized it as a body of rules, formulating the
"government of the living by the dead," whereby men sought to promote
the liberty of each limited only by the like liberty of all. In any
of these ways of putting it, the end of law is to secure the greatest
possible general individual self-assertion; to let men do freely
everything they may consistently with a like free doing of everything
they may by their fellow men. This is indeed a philosophy of law for
discoverers and colonizers and pioneers and traders and entrepreneurs
and captains of industry. Until the world became crowded, it served
well to eliminate friction and to promote the widest discovery and
utilization of the natural resources of human existence.
Looking back at the history of this conception, which has governed
theories of the end of law for more than two hundred years, we may
note that it has been put to three uses. It has been used as a means
of clearing away the restraints upon free economic activity which
accumulated during the Middle Ages as incidents of the system of
relational duties and as expressions of the idea of holding men to
their place in a static social order. This negative side played an
important part in the English legislative reform movement in the last
century. The English utilitarians insisted upon removal of all
restrictions upon individual free action beyond those necessary for
securing like freedom on the part of others. This, they said, was the
end of legislation. Again it has been used as a constructive idea, as
in the seventeenth and eighteenth centuries, when a commercial law
which gave effect to what men did as they willed it, which looked at
intention and not at form, which interpreted the general security in
terms of the security of transactions and sought to effectuate the
will of individuals to bring about legal results, was developed out of
Roman law and the custom of merchants through juristic theories of
natural law. Finally it was used as a stabilizing idea, as in the
latter part of the nineteenth century, when men proved that law was an
evil, even if a necessary evil, that there should be as little law
made as possible, since all law involved restraint upon free exertion
of the will, and hence that jurist and legislator should be content to
leave things legal as they are and allow the individual "to work out
in freedom his own happiness or misery" on that basis.
When this last stage in the development of the idea of law as existing
to promote or permit the maximum of free individual self-assertion had
been reached, the juristic possibilities of the conception had been
exhausted. There were no more continents to discover. Natural
resources had been discovered and exploited and the need was for
conservation of what remained available. The forces of nature had been
harnessed to human use. Industrial development had reached large
proportions, and organization and division of labor in our economic
order had gone so far that anyone who would could no longer go forth
freely and do anything which a restless imagination and daring
ambition suggested to him as a means of gain. Although lawyers went on
repeating the old formula, the law began to move in another direction.
The freedom of the owner of property to do upon it whatever he liked,
so he did not overstep his limits or endanger the public health or
safety, began to be restricted. Nay, the law began to make men act
affirmatively upon their property in fashions which it dictated, where
the general health was endangered by non-action. The power to make
contracts began to be limited where industrial conditions made
abstract freedom of contract defeat rather than advance full
individual human life. The power of the owner to dispose freely of his
property began to be limited in order to safeguard the security of the
social institutions of marriage and the family. Freedom of
appropriating _res nullius_ and of using _res communes_ came to be
abridged in order to conserve the natural resources of society.
Freedom of engaging in lawful callings came to be restricted, and an
elaborate process of education and examination to be imposed upon
those who would engage in them, lest there be injury to the public
health, safety or morals. A regime in which anyone might freely set up
a corporation to engage in a public service, or freely compete in such
service, was superseded by one of legal exemption of existing public
utilities from destructive competition. In a crowded world, whose
resources had been exploited, a system of promoting the maximum of
individual self-assertion had come to produce more friction than it
relieved and to further rather than to eliminate waste.
At the end of the last and the beginning of the present century, a new
way of thinking grew up. Jurists began to think in terms of human
wants or desires rather than of human wills. They began to think that
what they had to do was not simply to equalize or harmonize wills,
but, if not to equalize, at least to harmonize the satisfaction of
wants. They began to weigh or balance and reconcile claims or wants or
desires, as formerly they had balanced or reconciled wills. They began
to think of the end of law not as a maximum of self-assertion, but as
a maximum satisfaction of wants. Hence for a time they thought of the
problem of ethics, of jurisprudence, and of politics as chiefly one of
valuing; as a problem of finding criteria of the relative value of
interests. In jurisprudence and politics they saw that we must add
practical problems of the possibility of making interests effective
through governmental action, judicial or administrative. But the first
question was one of the wants to be recognized--of the interests to be
recognized and secured. Having inventoried the wants or claims or
interests which are asserting and for which legal security is sought,
we were to value them, select those to be recognized, determine the
limits within which they were to be given effect in view of other
recognized interests, and ascertain how far we might give them effect
by law in view of the inherent limitations upon effective legal
action. This mode of thinking may be seen, concealed under different
terminologies, in more than one type of jurist in the last three
decades.
Three elements contributed to shift the basis of theories as to the
end of law from wills to wants, from a reconciling or harmonizing of
wills to a reconciling or harmonizing of wants. The most important
part was played by psychology which undermined the foundation of the
metaphysical will-philosophy of law. Through the movement for
unification of the social sciences, economics also played an important
part, especially indirectly through the attempts at economic
interpretation of legal history, reinforcing psychology by showing the
extent to which law had been shaped by the pressure of economic wants.
Also the differentiation of society, involved in industrial
organization, was no mean factor, when classes came to exist in which
claims to a minimum human existence, under the standards of the given
civilization, became more pressing than claims to self-assertion.
Attention was turned from the nature of law to its purpose, and a
functional attitude, a tendency to measure legal rules and doctrines
and institutions by the extent to which they further or achieve the
ends for which law exists, began to replace the older method of
judging law by criteria drawn from itself. In this respect the thought
of the present is more like that of the seventeenth and eighteenth
centuries than that of the nineteenth century. French writers have
described this phenomenon as a "revival of juridical idealism." But
in truth the social utilitarianism of today and the natural-law
philosophy of the seventeenth and eighteenth centuries have only this
in common: Each has its attention fixed upon phenomena of growth; each
seeks to direct and further conscious improvement of the law.
In its earlier form social-utilitarianism, in common with all
nineteenth-century philosophies of law, was too absolute. Its
teleological theory was to show us what actually and necessarily took
place in lawmaking rather than what we were seeking to bring about.
Its service to the philosophy of law was in compelling us to give over
the ambiguous term "right" and to distinguish between the claims or
wants or demands, existing independently of law, the legally
recognized or delimited claims or wants or demands, and the legal
institutions, which broadly go by the name of legal rights, whereby
the claims when recognized and delimited are secured. Also it first
made clear how much the task of the lawmaker is one of compromise. To
the law-of-nature school, lawmaking was but an absolute development
of absolute principles. A complete logical development of the content
implicit in each natural right would give a body of law adequate to
every time and place. It is true an idea of compromise did lurk behind
the theory of the metaphysical jurists in the nineteenth century. But
they sought an absolute harmonizing rather than a working compromise
for the time and place. Conflicting individual wills were to be
reconciled absolutely by a formula which had ultimate and universal
authority. When we think of law as existing to secure social
interests, so far as they may be secured through an ordering of men
and of human relations through the machinery of organized political
society, it becomes apparent that we may reach a practicable system of
compromises of conflicting human desires here and now, by means of a
mental picture of giving effect to as much as we can, without
believing that we have a perfect solution for all time and for every
place. As the Neo-Kantians put it, we may formulate the social ideal
of the time and place and try juristic problems thereby without
believing ourselves competent to lay out a social and political and
legal chart for all time. As the Neo-Hegelians put it, we may discover
and formulate the jural postulates of the civilization of the time and
place without assuming that those postulates are a complete and final
picture of ultimate law, by which it must be measured for all time.
Social utilitarianism has stood in need of correction both from
psychology and from sociology. It must be recognized that lawmaking
and adjudication are not in fact determined precisely by a weighing of
interests. In practice the pressure of wants, demands, desires, will
warp the actual compromises made by the legal system this way or that.
In order to maintain the general security we endeavor in every way to
minimize this warping. But one needs only to look below the surface of
the law anywhere at any time to see it going on, even if covered up by
mechanical devices to make the process appear an absolute one and the
result a predetermined one. We may not expect that the compromises
made and enforced by the legal order will always and infallibly give
effect to any picture we may make of the nature or ends of the process
of making and enforcing them. Yet there will be less of this
subconscious warping if we have a clear picture before us of what we
are seeking to do and to what end, and if we build in the image
thereof so far as we consciously build and shape the law.
Difficulties arise chiefly in connection with criteria of value. If we
say that interests are to be catalogued or inventoried, that they are
then to be valued, that those which are found to be of requisite value
are to be recognized legally and given effect within limits determined
by the valuation, so far as inherent difficulties in effective legal
securing of interests will permit, the question arises at once, How
shall we do this work of valuing? Philosophers have devoted much
ingenuity to the discovery of some method of getting at the intrinsic
importance of various interests, so that an absolute formula may be
reached in accordance wherewith it may be assured that the weightier
interests intrinsically shall prevail. But I am skeptical as to the
possibility of an absolute judgment. We are confronted at this point
by a fundamental question of social and political philosophy. I do not
believe the jurist has to do more than recognize the problem and
perceive that it is presented to him as one of securing all social
interests so far as he may, of maintaining a balance or harmony among
them that is compatible with the securing of all of them. The last
century preferred the general security. The present century has shown
many signs of preferring the individual moral and social life. I doubt
whether such preferences can maintain themselves.
Social utilitarians would say, weigh the several interests in terms of
the end of law. But have we any given to us absolutely? Is the end of
law anything less than to do whatever may be achieved thereby to
satisfy human desires? Are the limits any other than those imposed by
the tools with which we work, whereby we may lose more than we gain,
if we attempt to apply them in certain situations? If so, there is
always a possibility of improved tools. The Greek philosopher who said
that the only possible subjects of lawsuit were "insult, injury and
homicide," was as dogmatic as Herbert Spencer, who conceived of
sanitary laws and housing laws in our large cities as quite outside
the domain of the legal order. Better legal machinery extends the
field of legal effectiveness as better machinery has extended the
field of industrial effectiveness. I do not mean that the law should
interfere as of course in every human relation and in every situation
where some one chances to think a social want may be satisfied
thereby. Experience has shown abundantly how futile legal machinery
may be in its attempts to secure certain kinds of interests. What I do
say is, that if in any field of human conduct or in any human relation
the law, with such machinery as it has, may satisfy a social want
without a disproportionate sacrifice of other claims, there is no
eternal limitation inherent in the nature of things, there are no
bounds imposed at creation, to stand in the way of its doing so.
Let us apply some of the other theories which are now current. The
Neo-Hegelians say: Try the claims in terms of civilization, in terms
of the development of human powers to the most of which they are
capable--the most complete human mastery of nature, both human nature
and external nature. The Neo-Kantians say: Try them in terms of a
community of free-willing men as the social ideal. Duguit says: Try
them in terms of social interdependence and social function. Do they
promote or do they impede social interdependence through similarity of
interest and division of labor? In these formulas do we really get
away from the problem of a balance compatible with maintaining all the
interests, with responding to all the wants and claims, which are
involved in civilized social existence?
For the purpose of understanding the law of today I am content with a
picture of satisfying as much of the whole body of human wants as we
may with the least sacrifice. I am content to think of law as a social
institution to satisfy social wants--the claims and demands involved
in the existence of civilized society--by giving effect to as much as
we may with the least sacrifice, so far as such wants may be satisfied
or such claims given effect by an ordering of human conduct through
politically organized society. For present purposes I am content to
see in legal history the record of a continually wider recognizing and
satisfying of human wants or claims or desires through social control;
a more embracing and more effective securing of social interests; a
continually more complete and effective elimination of waste and
precluding of friction in human enjoyment of the goods of
existence--in short, a continually more efficacious social
engineering.
III
The Application of Law
Three steps are involved in the adjudication of a controversy
according to law: (1) Finding the law, ascertaining which of the many
rules in the legal system is to be applied, or, if none is applicable,
reaching a rule for the cause (which may or may not stand as a rule
for subsequent cases) on the basis of given materials in some way
which the legal system points out; (2) interpreting the rule so chosen
or ascertained, that is, determining its meaning as it was framed and
with respect to its intended scope; (3) applying to the cause in hand
the rule so found and interpreted. In the past these have been
confused under the name of interpretation. It was assumed that the
function of the judge consisted simply in interpreting an
authoritatively given rule of wholly extra-judicial origin by an exact
process of deducing its logically implied content and in mechanically
applying the rule so given and interpreted. This assumption has its
origin in the stage of the strict law in the attempt to escape from
the overdetail on the one hand, and the vague sententiousness on the
other hand, which are characteristic of primitive law. For the most
part primitive law is made up of simple, precise, detailed rules for
definite narrowly defined situations. It has no general principles.
The first step toward a science of law is the making of distinctions
between what comes within and what does not come within the legal
meaning of a rule. But a body of primitive law also often contains a
certain number of sententious legal proverbs, put in striking form so
as to stick in the memory, but vague in their content. The strict law
by means of a conception of results obtained inevitably from fixed
rules and undeviating remedial proceedings seeks relief from the
uncertainty inherent in the finding of a larger content for
overdetailed special rules through differentiation of cases and the
application of legal proverbial sayings through the "equity of the
tribunal." It conceives of application of law as involving nothing but
a mechanical fitting of the case with the strait-jacket of rule or
remedy. The inevitable adjustments and extendings and limitations,
which an attempt to administer justice in this way must involve, are
covered up by a fiction of interpretation in order to maintain the
general security.
Philosophical rationalizing of the attempt to avoid the overpersonal
administration of justice incident to the partial reversion to justice
without law in the stage of equity and natural law, reinforced the
assumption that judicial application of law was a mechanical process
and was but a phase of interpretation. In the eighteenth century it
was given scientific form in the theory of separation of powers. The
legislative organ made laws. The executive administered them. The
judiciary applied them to the decision of controversies. It was
admitted in Anglo-American legal thinking that courts must interpret
in order to apply. But the interpretation was taken not to be in any
wise a lawmaking and the application was taken not to involve any
administrative element and to be wholly mechanical. On the Continent
interpretation so as to make a binding rule for future cases was
deemed to belong only to the legislator. The maturity of law was not
willing to admit that judge or jurist could make anything. It was not
the least service of the analytical jurisprudence of the last century
to show that the greater part of what goes by the name of
interpretation in this way of thinking is really a lawmaking process,
a supplying of new law where no rule or no sufficient rule is at hand.
"The fact is," says Gray most truly, "that the difficulties of
so-called interpretation arise when the legislature has had no meaning
at all; when the question which is raised on the statute never
occurred to it; when what the judges have to do is, not to determine
what the legislature did mean on a point which was present to its
mind, but to guess what it would have intended on a point not present
to its mind had the point been present." The attempt to maintain the
separation of powers by constitutional prohibitions has pointed to
the same lesson from another side. Lawmaking, administration and
adjudication cannot be rigidly fenced off one from the other and
turned over each to a separate agency as its exclusive field. There is
rather a division of labor as to typical cases and a practical or
historical apportionment of the rest.
Finding the law may consist merely in laying hold of a prescribed text
of a code or statute. In that event the tribunal must proceed to
determine the meaning of the rule and to apply it. But many cases are
not so simple. More than one text is at hand which might apply; more
than one rule is potentially applicable, and the parties are
contending which shall be made the basis of a decision. In that event
the several rules must be interpreted in order that intelligent
selection may be made. Often the genuine interpretation of the
existing rules shows that none is adequate to cover the case and that
what is in effect, if not in theory, a new one must be supplied.
Attempts to foreclose this process by minute, detailed legislation
have failed signally, as, for example, in the overgrown code of civil
procedure in New York. Providing of a rule by which to decide the
cause is a necessary element in the determination of a large
proportion of the causes that come before our higher tribunals, and it
is often because a rule must be provided that the parties are not
content to abide the decision of the court of first instance.
Cases calling for genuine interpretation are relatively few and
simple. Moreover genuine interpretation and lawmaking under the guise
of interpretation run into one another. In other words, the judicial
function and the legislative function run into one another. It is the
function of the legislative organ to make laws. But from the nature of
the case it cannot make laws so complete and all-embracing that the
judicial organ will not be obliged to exercise a certain lawmaking
function also. The latter will rightly consider this a subordinate
function. It will take it to be one of supplementing, developing and
shaping given materials by means of a given technique. None the less
it is a necessary part of judicial power. Pushed to the extreme that
regards all judicial lawmaking as unconstitutional usurpation, our
political theory, a philosophical classification made over by
imperfect generalization from the British constitution as it was in
the seventeenth century, has served merely to intrench in the
professional mind the dogma of the historical school, that legislative
lawmaking is a subordinate function and exists only to supplement the
traditional element of the legal system here and there and to set the
judicial or juristic tradition now and then in the right path as to
some particular item where it had gone astray.
In Anglo-American law we do not think of analogical development of the
traditional materials of the legal system as interpretation. In
Roman-law countries, where the law is made up of codes supplemented
and explained by the codified Roman law of Justinian and modern usage
on the basis thereof, which stands as the common law, it seems clear
enough that analogical application whether of a section of the code or
of a text of the Roman law is essentially the same process. Both are
called interpretation. As our common law is not in the form of
authoritative texts, the nature of the process that goes on when a
leading case is applied by analogy, or limited in its application, or
distinguished, is concealed. It does not seem on the surface to be the
same process as when a text of the Digest is so applied or limited or
distinguished. Hence it has been easy for us to assume that courts did
no more than genuinely interpret legislative texts and deduce the
logical content of authoritatively established traditional principles.
It has been easy to accept a political theory, proceeding on the dogma
of separation of powers, and to lay down that courts only interpret
and apply, that all making of law must come from the legislature, that
courts must "take the law as they find it," as if they could always
find it ready-made for every case. It has been easy also to accept a
juristic theory that law cannot be made; that it may only be found,
and that the process of finding it is a matter purely of observation
and logic, involving no creative element. If we really believed this
pious fiction, it would argue little faith in the logical powers of
the bench in view of the diversity of judicially asserted doctrines on
the same point which so frequently exist in our case law and the
widely different opinions of our best judges with respect to them. As
interpretation is difficult, when it is difficult, just because the
legislature had no actual intent to ascertain, so the finding of the
common law on a new point is difficult because there is no rule of law
to find. The judicial and the legislative functions run together also
in judicial ascertainment of the common law by analogical application
of decided cases.
As interpretation on the one side runs into lawmaking and so the
judicial function runs into the legislative function, on the other
side interpretation runs into application and so the judicial function
runs into the administrative or executive. Typically judicial
treatment of a controversy is a measuring of it by a rule in order to
reach a universal solution for a class of causes of which the cause in
hand is but an example. Typically administrative treatment of a
situation is a disposition of it as a unique occurrence, an
individualization whereby effect is given to its special rather than
to its general features. But administration cannot ignore the
universal aspects of situations without endangering the general
security. Nor may judicial decision ignore their special aspects and
exclude all individualization in application without sacrificing the
social interest in the individual life through making justice too
wooden and mechanical. The idea that there is no administrative
element in the judicial decision of causes and that judicial
application of law should be a purely mechanical process goes back to
Aristotle's Politics. Writing before a strict law had developed, in
what may be called the highest point of development of primitive law,
when the personal character and feelings for the time being of kings
or magistrates or dicasts played so large a part in the actual
workings of legal justice, Aristotle sought relief through a
distinction between the administrative and the judicial. He conceived
that discretion was an administrative attribute. In administration
regard was to be had to times and men and special circumstances. The
executive was to use a wise discretion in adjusting the machinery of
government to actual situations as they arose. On the other hand, he
conceived that a court should have no discretion. To him the judicial
office was a Procrustean one of fitting each case to the legal bed, if
necessary by a surgical operation. Such a conception met the needs of
the strict law. In a stage of legal maturity it was suited to the
Byzantine theory of law as the will of the emperor and of the judge as
the emperor's delegate to apply and give effect to that will. In the
Middle Ages it had a sufficient basis in authority and in the needs of
a period of strict law. Later it fitted well into the Byzantine theory
of lawmaking which French publicists adopted and made current in the
seventeenth and eighteenth centuries. In the United States it seemed
to be required by our constitutional provisions for a separation of
powers. But in practice it has broken down no less completely than the
analogous idea of entire separation of the judicial from the
lawmaking function.
Almost all of the problems of jurisprudence come down to a fundamental
one of rule and discretion, of administration of justice by law and
administration of justice by the more or less trained intuition of
experienced magistrates. Controversies as to the nature of law,
whether the traditional element or the imperative element of legal
systems is the typical law, controversies as to the nature of
lawmaking, whether the law is found by judicial empiricism or made by
conscious legislation, and controversies as to the bases of law's
authority, whether in reason and science on the one hand or in command
and sovereign will on the other hand, get their significance from
their bearing upon this question. Controversies as to the relation of
law and morals, as to the distinction of law and equity, as to the
province of the court and of the jury, as to fixed rule or wide
judicial power in procedure, and as to judicial sentence and
administrative individualization in punitive justice are but forms of
this fundamental problem. This is not the place to discuss that
problem. Suffice it to say that both are necessary elements in the
administration of justice and that instead of eliminating either, we
must partition the field between them. But it has been assumed that
one or the other must govern exclusively, and there has been a
continual movement in legal history back and forth between wide
discretion and strict detailed rule, between justice without law, as
it were, and justice according to law. The power of the magistrate has
been a liberalizing agency in periods of growth. In the stage of
equity and natural law, a stage of infusion of moral ideas from
without into the law, the power of the magistrate to give legal force
to his purely moral ideas was a chief instrument. Today we rely
largely upon administrative boards and commissions to give legal force
to ideas which the law ignores. On the other hand rule and form with
no margin of application have been the main reliance of periods of
stability. The strict law sought to leave nothing to the judge beyond
seeing whether the letter had been complied with. The nineteenth
century abhorred judicial discretion and sought to exclude the
administrative element from the domain of judicial justice. Yet a
certain field of justice without law always remained and by one device
or another the balance of the supposedly excluded administrative
element was preserved.
In the strict law individualization was to be excluded by hard and
fast mechanical procedure. In practice this procedure was corrected
and the balance between rule and discretion, between the legal and the
administrative, was restored by fictions and by an executive
dispensing power. Roman equity has its origin in the _imperium_ of the
_praetor_--his royal power to dispense with the strict law in
particular situations. Also English equity has its origin in the royal
power of discretionary application of law and dispensing with law in
particular cases, misuse of which as a political institution was one
of the causes of the downfall of the Stuarts. Thus we get a third
agency for restoring the balance in the form of systematic
interposition of praetor or chancellor on equitable grounds, leading
to a system of equity. Carried too far in the stage of equity and
natural law, overdevelopment of the administrative element brings
about a reaction and in the maturity of law individualization is
pushed to the wall once more. Yet this elimination of the
administrative takes place more in theory and in appearance than in
reality. For justice comes to be administered in large measure through
the application of legal standards which admit of a wide margin for
the facts of particular cases, and the application of these standards
is committed to laymen or to the discretion of the tribunal. Moreover
a certain judicial individualization goes on. Partly this takes the
form of a margin of discretionary application of equitable remedies,
handed down from the stage of equity and natural law. Partly it takes
the form of ascertainment of the facts with reference to the legal
result desired in view of the legal rule or of choice between
competing rules in effect covering the same ground, although nominally
for distinct situations. In other words, a more subtle fiction does
for the maturity of law what is done for the strict law by its
relatively crude procedural fictions.
Of these five agencies for preserving the administrative element in
judicial justice, in periods when legal theory excludes it, two call
for special consideration.
It is usual to describe law as an aggregate of rules. But unless the
word rule is used in so wide a sense as to be misleading, such a
definition, framed with reference to codes or by jurists whose eyes
were fixed upon the law of property, gives an inadequate picture of
the manifold components of a modern legal system. Rules, that is,
definite, detailed provisions for definite, detailed states of fact,
are the main reliance of the beginnings of law. In the maturity of law
they are employed chiefly in situations where there is exceptional
need of certainty in order to uphold the economic order. With the
advent of legal writing and juristic theory in the transition from the
strict law to equity and natural law, a second element develops and
becomes a controlling factor in the administration of justice. In
place of detailed rules precisely determining what shall take place
upon a precisely detailed state of facts, reliance is had upon general
premises for judicial and juristic reasoning. These legal principles,
as we call them, are made use of to supply new rules, to interpret old
ones, to meet new situations, to measure the scope and application of
rules and standards and to reconcile them when they conflict or
overlap. Later, when juristic study seeks to put the materials of the
law in order, a third element develops, which may be called legal
conceptions. These are more or less exactly defined types, to which we
refer cases or by which we classify them, so that when a state of
facts is classified we may attribute thereto the legal consequences
attaching to the type. All of these admit of mechanical or rigidly
logical application. A fourth element, however, which plays a great
part in the everyday administration of justice, is of quite another
character.
Legal standards of conduct appear first in Roman equity. In certain
cases of transactions or relations involving good faith, the formula
was made to read that the defendant was to be condemned to that which
in good faith he ought to give or do for or render to the plaintiff.
Thus the judge had a margin of discretion to determine what good faith
called for and in Cicero's time the greatest lawyer of the day thought
these _actiones bonae fidei_ required a strong judge because of the
dangerous power which they allowed him. From this procedural device,
Roman lawyers worked out certain standards or measures of conduct,
such as what an upright and diligent head of a family would do, or the
way in which a prudent and diligent husbandman would use his land. In
similar fashion English equity worked out a standard of fair conduct
on the part of a fiduciary. Later the Anglo-American law of torts
worked out, as a measure for those who are pursuing some affirmative
course of conduct, the standard of what a reasonable, prudent man
would do under the circumstances. Also the law of public utilities
worked out standards of reasonable service, reasonable facilities,
reasonable incidents of the service and the like. In all these cases
the rule is that the conduct of one who acts must come up to the
requirements of the standard. Yet the significant thing is not the
fixed rule but the margin of discretion involved in the standard and
its regard for the circumstances of the individual case. For three
characteristics may be seen in legal standards: (1) They all involve a
certain moral judgment upon conduct. It is to be "fair," or
"conscientious," or "reasonable," or "prudent," or "diligent." (2)
They do not call for exact legal knowledge exactly applied, but for
common sense about common things or trained intuition about things
outside of everyone's experience. (3) They are not formulated
absolutely and given an exact content, either by legislation or by
judicial decision, but are relative to times and places and
circumstances and are to be applied with reference to the facts of the
case in hand. They recognize that within the bounds fixed each case is
to a certain extent unique. In the reaction from equity and natural
law, and particularly in the nineteenth century, these standards were
distrusted. Lord Camden's saying that the discretion of a judge was
"the law of tyrants," that it was different in different men, was
"casual" and dependent upon temperament, has in it the whole spirit of
the maturity of law. American state courts sought to turn the
principles by which the chancellors were wont to exercise their
discretion into hard and fast rules of jurisdiction. They sought to
reduce the standard of reasonable care to a set of hard and fast
rules. If one crossed a railroad, he must "stop, look and listen." It
was negligence _per se_ to get on or off a moving car, to have part of
the body protruding from a railroad car, and the like. Also they
sought to put the duties of public utilities in the form of definite
rules with a detailed, authoritatively fixed content. All these
attempts to do away with the margin of application involved in legal
standards broke down. The chief result was a reaction in the course of
which many states turned over all questions of negligence to juries,
free even from effective advice from the bench, while many other
jurisdictions have been turning over subject after subject to
administrative boards and commissions to be dealt with for a season
without law. In any event, whether the standard of due care in an
action for negligence is applying by a jury, or the standard of
reasonable facilities for transportation is applying by a public
service commission, the process is one of judging of the quality of a
bit of conduct under its special circumstances and with reference to
ideas of fairness entertained by the layman or the ideas of what is
reasonable entertained by the more or less expert commissioner. Common
sense, experience and intuition are relied upon, not technical rule
and scrupulously mechanical application.
We are familiar with judicial individualization in the administration
of equitable remedies. Another form, namely, individualization through
latitude of application under the guise of choice or ascertainment of
a rule, is concealed by the fiction of the logical completeness of the
legal system and the mechanical, logical infallibility of the logical
process whereby the predetermined rules implicit in the given legal
materials are deduced and applied. To a large and apparently growing
extent the practice of our application of law has been that jurors or
courts, as the case may be, take the rules of law as a general guide,
determine what the equities of the cause demand, and contrive to find
a verdict or render a judgment accordingly, wrenching the law no more
than is necessary. Many courts today are suspected of ascertaining
what the equities of a controversy require, and then raking up
adjudicated cases to justify the result desired. Often formulas are
conveniently elastic so that they may or may not apply. Often rules of
contrary tenor overlap, leaving a convenient no-man's-land wherein
cases may be decided either way according to which rule the court
chooses in order to reach a result arrived at on other grounds.
Occasionally a judge is found who acknowledges frankly that he looks
chiefly at the ethical situation between the parties and does not
allow the law to interfere therewith beyond what is inevitable.
Thus we have in fact a crude equitable application, a crude
individualization, throughout the field of judicial administration of
justice. It is assumed by courts more widely than we suspect, or at
least, more widely than we like to acknowledge. Ostensibly there is no
such power. But when one looks beneath the surface of the law reports,
the process reveals itself under the name of "implication" or in the
guise of two lines of decisions of the same tribunal upon the same
point from which it may choose at will, or in the form of what have
been termed "soft spots" in the law--spots where the lines are so
drawn by the adjudicated cases that the court may go either way as the
ethical exigencies of the special circumstances of the case in hand
may require, with no apparent transgression of what purport to be hard
and fast rules. Such has been the result of attempts to exclude the
administrative element in adjudication. In theory there is no such
thing except with respect to equitable remedies, where it exists for
historical reasons. In practice there is a great deal of it, and that
in a form which is unhappily destructive of certainty and uniformity.
Necessary as it is, the method by which we attain a needed
individualization is injurious to respect for law. If the courts do
not respect the law, who will? There is no exclusive cause of the
current American attitude toward the law. But judicial evasion and
warping of the law, in order to secure in practice a freedom of
judicial action not conceded in theory, is certainly one cause. We
need a theory which recognizes the administrative element as a
legitimate part of the judicial function and insists that
individualization in the application of legal precepts is no less
important than the contents of those precepts themselves.
Three theories of application of law obtain in the legal science of
today. The theory which has the largest following among practitioners
and in dogmatic exposition of the law is analytical. It assumes a
complete body of law with no gaps and no antinomies, given authority
by the state at one stroke and so to be treated as if every item was
of the same date as every other. If the law is in the form of a code,
its adherents apply the canons of genuine interpretation and ask what
the several code provisions mean as they stand, looked at logically
rather than historically. They endeavor to find the pre-appointed code
pigeonhole for each concrete case, to put the case in hand into it by
a purely logical process and to formulate the result in a judgment. If
the law is in the form of a body of reported decisions, they assume
that those decisions may be treated as if all rendered at the same
time and as containing implicitly whatever is necessary to the
decision of future causes which they do not express. They may define
conceptions or they may declare principles. The logically
predetermined decision is contained in the conception to which the
facts are referred or involved in the principle within whose scope the
facts fall. A purely logical process, exactly analogous to genuine
interpretation of a legislative rule, will yield the appropriate
conception from given premises or discover the appropriate principle
from among those which superficially appear to apply. Application is
merely formulation in a judgment of the result obtained by analysis of
the case and logical development of the premises contained in the
reported decisions.
Among teachers a historical theory has the larger following. If the
law is in the form of a code, the code provisions are assumed to be in
the main declaratory of the law as it previously existed; the code is
regarded as a continuation and development of pre-existing law. All
exposition of the code and of any provision thereof must begin by an
elaborate inquiry into the pre-existing law and the history and
development of the competing juristic theories among which the framers
of the code had to choose. If the law is in the form of a body of
reported decisions, the later decisions are regarded as but declaring
and illustrating the principles to be found by historical study of the
older ones; as developing legal conceptions and principles to be found
by historical study of the older law. Hence all exposition must begin
with an elaborate historical inquiry in which the idea that has been
unfolding in the course of judicial decision is revealed and the lines
are disclosed along which legal development must move. But when the
content of the applicable legal precept is discovered in these ways,
the method of applying it in no way differs from that which obtains
under the analytical theory. The process of application is assumed to
be a purely logical one. Do the facts come within or fail to come
within the legal precept? This is the sole question for the judge.
When by historical investigation he has found out what the rule is, he
has only to fit it to just and unjust alike.
Analytical and historical theories of application of law thus seek to
exclude the administrative element wholly and their adherents resort
to fictions to cover up the judicial individualization which none the
less obtains in practice or else ignore it, saying that it is but a
result of the imperfect constitution of tribunals or of the ignorance
or sloth of those who sit therein. The latter explanation is no more
satisfying than the fictions, and a new theory has sprung up of late
in Continental Europe which may be understood best by calling it the
equitable theory, since the methods of the English Chancellor had much
to do with suggesting it. To the adherents of this theory the
essential thing is a reasonable and just solution of the individual
controversy. They conceive of the legal precept, whether legislative
or traditional, as a guide to the judge, leading him toward the just
result. But they insist that within wide limits he should be free to
deal with the individual case so as to meet the demands of justice
between the parties and accord with the reason and moral sense of
ordinary men. They insist that application of law is not a purely
mechanical process. They contend that it involves not logic only but
moral judgments as to particular situations and courses of conduct in
view of the special circumstances which are never exactly alike. They
insist that such judgments involve intuitions based upon experience
and are not to be expressed in definitely formulated rules. They
argue that the cause is not to be fitted to the rule but the rule to
the cause.
Much that has been written by advocates of the equitable theory of
application of law is extravagant. As usually happens, in reaction
from theories going too far in one direction this theory has gone too
far in the other. The last century would have eliminated
individualization of application. Now, as in the sixteenth- and
seventeenth-century reaction from the strict law, come those who would
have nothing else; who would turn over the whole field of judicial
justice to administrative methods. If we must choose, if judicial
administration of justice must of necessity be wholly mechanical or
else wholly administrative, it was a sound instinct of lawyers in the
maturity of law that led them to prefer the former. Only a saint, such
as Louis IX under the oak at Vincennes, may be trusted with the wide
powers of a judge restrained only by a desire for just results in each
case to be reached by taking the law for a general guide. And St.
Louis did not have the crowded calendars that confront the modern
judge. But are we required to choose? May we not learn something from
the futility of all efforts to administer justice exclusively by
either method? May we not find the proper field of each by examining
the means through which in fact we achieve an individualization which
we deny in theory, and considering the cases in which those means
operate most persistently and the actual administration of justice
most obstinately refuses to become as mechanical in practice as we
expect it to be in theory?
In Anglo-American law today there are no less than seven agencies
for individualizing the application of law. We achieve an
individualization in practice: (1) through the discretion of courts in
the application of equitable remedies; (2) through legal standards
applied to conduct generally when injury results and also to certain
relations and callings; (3) through the power of juries to render
general verdicts; (4) through latitude of judicial application
involved in finding the law; (5) through devices for adjusting penal
treatment to the individual offender; (6) through informal methods of
judicial administration in petty courts, and (7) through
administrative tribunals. The second and fourth have been considered.
Let us look for a moment at the others.
Discretion in the exercise of equitable remedies is an outgrowth of
the purely personal intervention in extraordinary cases on grounds
that appealed to the conscience of the chancellor in which equity
jurisdiction has its origin. Something of the original flavor of
equitable interposition remains in the doctrine of personal bar to
relief, and in the ethical quality of some of the maxims which
announce policies to be pursued in the exercise of the chancellor's
powers. But it was possible for the nineteenth century to reconcile
what remained of the chancellor's discretion with its mode of
thinking. Where the plaintiff's right was legal but the legal remedy
was not adequate to secure him in what the legal right entitled him to
claim, equity gave a concurrent remedy supplementing the strict law.
As the remedy in equity was supplementary and concurrent, in case the
chancellor in his discretion kept his hands off, as he would if he
felt that he could not bring about an equitable result, the law would
still operate. The plaintiff's right was in no wise at the mercy of
anyone's discretion. He merely lost an extraordinary and supplementary
remedy and was left to the ordinary course of the law. Such was the
orthodox view of the relation of law and equity. Equity did not alter
a jot or tittle of the law. It was a remedial system alongside of the
law, taking the law for granted and giving legal rights greater
efficacy in certain situations. But take the case of a "hard bargain,"
where the chancellor in his discretion may deny specific performance.
In England and in several states the damages at law do not include the
value of the bargain where the contract is for the sale of land. Hence
unless specific performance is granted, the plaintiff's legal right is
defeated. It is notorious that bargains appeal differently to
different chancellors in this respect. In the hands of some the
doctrine as to hard bargains has a tendency to become wooden, as it
were. There is a hard and fast rule that certain bargains are "hard"
and that equity will not enforce them. In states where the value of
the bargain may be recovered at law, it may well be sometimes that the
bargain might as well be enforced in equity, if it is not to be
cancelled. But the chancellor is not unlikely to wash his hands of a
hard case, saying that the court of law is more callous; let that
court act, although that court is the same judge with another docket
before him. In other hands, the doctrine tends to become ultro-ethical
and to impair the security of transactions. In other words, the margin
of discretion in application of equitable remedies tends on the one
hand to disappear through crystallization of the principles governing
its exercise into rigid rules, or on the other hand, to become
overpersonal and uncertain and capricious. Yet as one reads the
reports attentively he cannot doubt that in action it is an important
engine of justice; that it is a needed safety valve in the working of
our legal system.
At common law the chief reliance for individualizing the application
of law is the power of juries to render general verdicts, the power to
find the facts in such a way as to compel a different result from that
which the legal rule strictly applied would require. In appearance
there has been no individualization. The judgment follows necessarily
and mechanically from the facts upon the record. But the facts found
were found in order to reach the result and are by no means
necessarily the facts of the actual case. Probably this power alone
made the common law of master and servant tolerable in the last
generation. Yet exercise of this power, with respect to which, as Lord
Coke expressed it, "the jurors are chancellors," has made the jury an
unsatisfactory tribunal in many classes of cases. It is largely
responsible for the practice of repeated new trials which makes the
jury a most expensive tribunal. The crude individualization achieved
by juries, influenced by emotional appeals, prejudice and the
peculiar personal ideas of individual jurors, involves quite as much
injustice at one extreme as mechanical application of law by judges at
the other extreme. Indeed the unchecked discretion of juries, which
legislation has brought about in some jurisdictions, is worse than the
hobbled court and rigid mechanical application of law from which it is
a reaction.
Our administration of punitive justice is full of devices for
individualizing the application of criminal law. Our complicated
machinery of prosecution involves a great series of mitigating
agencies whereby individual offenders may be spared or dealt with
leniently. Beginning at the bottom there is the discretion of the
police as to who and what shall be brought to the judicial mill. Next
are the wide powers of our prosecuting officers who may ignore
offences or offenders, may dismiss proceedings in their earlier
stages, may present them to grand juries in such a way that no
indictment results, or may enter a _nolle prosequi_ after indictment.
Even if the public prosecutor desires to prosecute, the grand jury
may ignore the charge. If the cause comes to trial, the petit jury may
exercise a dispensing power by means of a general verdict. Next comes
judicial discretion as to sentence, or in some jurisdictions,
assessment of punishment by the discretion of the trial jury. Upon
these are superposed administrative parole or probation and executive
power to pardon. The lawyer-politician who practices in the criminal
courts knows well how to work upon this complicated machinery so as to
enable the professional criminal to escape as well as those or even
instead of those for whom these devices were intended. They have been
developed to obviate the unhappy results of a theory which would have
made the punishment mechanically fit the crime instead of adjusting
the penal treatment to the criminal. Here, as elsewhere, the attempt
to exclude the administrative element has brought about back-handed
means of individualization which go beyond the needs of the situation
and defeat the purposes of the law.
Even more striking is the recrudescence of personal government, by
way of reaction from an extreme of government of laws and not of men,
which is involved in the setting up of administrative tribunals on
every hand and for every purpose. The regulation of public utilities,
apportionment of the use of the water of running streams among
different appropriators, workmen's compensation, the actual duration
and nature of punishment for crime, admission to and practice of
professions and even of trades, the power to enter or to remain in the
country, banking, insurance, unfair competition and restraint of
trade, the enforcement of factory laws, of pure food laws, of housing
laws and of laws as to protection from fire and the relation of
principal and agent, as between farmers and commission merchants, are
but some of the subjects which the living law, the law in action, is
leaving to executive justice in administrative tribunals. To some
extent this is required by the increasing complexity of the social
order and the minute division of labor which it involves. Yet this
complexity and this division of labor developed for generations in
which the common-law jealousy of administration was dominant. Chiefly
our revival of executive justice in the present century is one of
those reversions to justice without law which are perennial in legal
history. As in the case of like reversions in the past it is the
forerunner of growth. It is the first form of reaction from the
overrigid application of law in a period of stability. A bad
adjustment between law and administration and cumbrous, ineffective
and unbusinesslike legal procedure, involving waste of time and money
in the mere etiquette of justice, are doing in our time what like
conditions did in English law in the middle of the sixteenth century.
If we look back at the means of individualizing the application of law
which have developed in our legal system, it will be seen that almost
without exception they have to do with cases involving the moral
quality of individual conduct or of the conduct of enterprises, as
distinguished from matters of property and of commercial law. Equity
uses its powers of individualizing to the best advantage in
connection with the conduct of those in whom trust and confidence have
been reposed. Legal standards are used chiefly in the law of torts, in
the law of public utilities and in the law as to fiduciary relations.
Jury lawlessness is an agency of justice chiefly in connection with
the moral quality of conduct where the special circumstances exclude
that "intelligence without passion" which, according to Aristotle,
characterizes the law. It is significant that in England today the
civil jury is substantially confined to cases of defamation, malicious
prosecution, assault and battery and breach of promise of marriage.
Judicial individualization through choice of a rule is most noticeable
in the law of torts, in the law of domestic relations and in passing
upon the conduct of enterprises. The elaborate system of
individualization in criminal procedure has to do wholly with
individual human conduct. The informal methods of petty courts are
meant for tribunals which pass upon conduct in the crowd and hurry of
our large cities. The administrative tribunals, which are setting up
on every hand, are most called for and prove most effective as means
of regulating the conduct of enterprises.
A like conclusion is suggested when we look into the related
controversy as to the respective provinces of common law and of
legislation. Inheritance and succession, definition of interests in
property and the conveyance thereof, matters of commercial law and the
creation, incidents and transfer of obligations have proved a fruitful
field for legislation. In these cases the social interest in the
general security is the controlling element. But where the questions
are not of interests of substance but of the weighing of human conduct
and passing upon its moral aspects, legislation has accomplished
little. No codification of the law of torts has done more than provide
a few significantly broad generalizations. On the other hand,
succession to property is everywhere a matter of statute law and
commercial law is codified or codifying throughout the world. Moreover
the common law insists upon its doctrine of _stare decisis_ chiefly
in the two cases of property and commercial law. Where legislation is
effective, there also mechanical application is effective and
desirable. Where legislation is ineffective, the same difficulties
that prevent its satisfactory operation require us to leave a wide
margin of discretion in application, as in the standard of the
reasonable man in our law of negligence and the standard of the
upright and diligent head of a family applied by the Roman law, and
especially by the modern Roman law, to so many questions of fault,
where the question is really one of good faith. All attempts to cut
down this margin have proved futile. May we not conclude that in the
part of the law which has to do immediately with conduct complete
justice is not to be attained by the mechanical application of fixed
rules? Is it not clear that in this part of the administration of
justice the trained intuition and disciplined judgment of the judge
must be our assurance that causes will be decided on principles of
reason and not according to the chance dictates of caprice, and that
a due balance will be maintained between the general security and the
individual human life?
Philosophically the apportionment of the field between rule and
discretion which is suggested by the use of rules and of standards
respectively in modern law has its basis in the respective fields of
intelligence and intuition. Bergson tells us that the former is more
adapted to the inorganic, the latter more to life. Likewise rules,
where we proceed mechanically, are more adapted to property and to
business transactions, and standards; where we proceed upon
intuitions, are more adapted to human conduct and to the conduct of
enterprises. According to him, intelligence is characterized by "its
power of grasping the general element in a situation and relating it
to past situations," and this power involves loss of "that perfect
mastery of a special situation in which instinct rules." In the law of
property and in the law of commercial transactions it is precisely
this general element and its relation to past situations that is
decisive. The rule, mechanically applied, works by repetition and
precludes individuality in results, which would threaten the security
of acquisitions and the security of transactions. On the other hand,
in the handmade, as distinguished from the machine-made product, the
specialized skill of the workman gives us something infinitely more
subtle than can be expressed in rules. In law some situations call for
the product of hands, not of machines, for they involve not
repetition, where the general elements are significant, but unique
events, in which the special circumstances are significant. Every
promissory note is like every other. Every fee simple is like every
other. Every distribution of assets repeats the conditions that have
recurred since the Statute of Distributions. But no two cases of
negligence have been alike or ever will be alike. Where the call is
for individuality in the product of the legal mill, we resort to
standards. And the sacrifice of certainty in so doing is more apparent
than actual. For the certainty attained by mechanical application of
fixed rules to human conduct has always been illusory.
IV
Liability
A systematist who would fit the living body of the law to his logical
analytical scheme must proceed after the manner of Procrustes. Indeed,
this is true of all science. In life phenomena are unique. The
biologist of today sometimes doubts whether there are species and
disclaims higher groups as more than conveniences of study. "Dividing
lines," said a great American naturalist, "do not occur in nature
except as accidents." Organization and system are logical
constructions of the expounder rather than in the external world
expounded. They are the means whereby we make our experience of that
world intelligible and available. It is with no illusion, therefore,
that I am leading you to a juristic _ultima Thule_ that I essay a bit
of systematic legal science on a philosophical basis. Even if it
never attains a final system in which the law shall stand fast
forever, the continual juristic search for the more inclusive order,
the continual juristic struggle for a simpler system that will better
order and better reconcile the phenomena of the actual administration
of justice, is no vain quest. Attempts to understand and to expound
legal phenomena lead to generalizations which profoundly affect those
phenomena, and criticism of those generalizations, in the light of the
phenomena they seek to explain and to which they give rise, enables us
to replace them or modify them or supplement them and thus to keep the
law a growing instrument for achieving expanding human desires.
One of the stock questions of the science of law is the nature and
system and philosophical basis of situations in which one may exact
from another that he "give or do or furnish something" (to use the
Roman formula) for the advantage of the former. The classical Roman
lawyer, thinking in terms of natural law, spoke of a bond or relation
of right and law between them whereby the one might justly and
legally exact and the other was bound in justice and law to perform.
In modern times, thinking, whether he knows it or not, in terms of
natural rights and by derivation of legal rights, the analytical
jurist speaks of rights _in personam_. The Anglo-American lawyer,
thinking in terms of procedure, speaks of contracts and torts, using
the former term in a wide sense. If pressed, he may refer certain
enforceable claims to exact and duties of answering to the exaction to
a Romanist category of quasi-contract, satisfied to say "quasi"
because on analysis they do not comport with his theory of contract,
and to say "contract" because procedurally they are enforced _ex
contractu_. Pressed further, he may be willing to add "quasi tort" for
cases of common-law liability without fault and workmen's
compensation--"quasi" because there is no fault, "tort" because
procedurally the liability is given effect _ex delicto_. But cases of
duties enforceable either _ex contractu_ or _ex delicto_ at the option
of the pleader and cases where the most astute pleader is hard pushed
to choose have driven us to seek something better.
Obligation, the Roman term, meaning the relation of the parties to
what the analytical jurists have called a right _in personam_ is an
exotic in our law in that sense. Moreover the relation is not the
significant thing for systematic purposes, as is shown by civilian
tendencies in the phrases "active obligation" and "passive obligation"
to extend the term from the relation to the capacity or claim to exact
and duty to answer to the exaction. The phrase "right _in personam_"
and its co-phrase "right _in rem_" are so misleading in their
implications, as any teacher soon learns, that we may leave them to
the textbooks of analytical jurisprudence. In this lecture, I shall
use the simple word "liability" for the situation whereby one may
exact legally and the other is legally subjected to the exaction.
Using the word in that sense, I shall inquire into the philosophical
basis of liability and the system of the law on that subject as
related to that basis. Yellowplush said of spelling that every
gentleman was entitled to his own. We have no authoritative
institutional book of Anglo-American law, enacted by sovereign
authority, and hence every teacher of law is entitled to his own
terminology.
So far as the beginnings of law had theories, the first theory of
liability was in terms of a duty to buy off the vengeance of him to
whom an injury had been done whether by oneself or by something in
one's power. The idea is put strikingly in the Anglo-Saxon legal
proverb, "Buy spear from side or bear it," that is, buy off the feud
or fight it out. One who does an injury or stands between an injured
person and his vengeance, by protecting a kinsman, a child or a
domestic animal that has wrought an injury, must compound for the
injury or bear the vengeance of the injured. As the social interest in
peace and order--the general security in its lowest terms--comes to be
secured more effectively by regulation and ultimate putting down of
the feud as a remedy, payment of composition becomes a duty rather
than a privilege, or in the case of injuries by persons or things in
one's power a duty alternative to a duty of surrendering the offending
child or animal. The next step is to measure the composition not in
terms of the vengeance to be bought off but in terms of the injury. A
final step is to put it in terms of reparation. These steps are taken
haltingly and merge into one another, so that we may hear of a
"penalty of reparation." But the result is to turn composition for
vengeance into reparation for injury. Thus recovery of a sum of money
by way of penalty for a delict is the historical starting point of
liability.
One's neighbor whom one had injured or who had been injured by those
whom one harbored was not the only personality that might desire
vengeance in a primitive society. One might affront the gods, and by
one's impiety in so doing might imperil the general security, since
the angered gods were not unlikely to hit out indiscriminately and to
cast pestilence or hurl lightning upon just and unjust alike in the
community which harbored the impious wrongdoer. Hence if, in making a
promise, one called the gods to witness it was needful that
politically organized society, taking over a field of social control
exercised by the priesthood, give a legal remedy to the promisee lest
he invoke the aid of the gods and jeopardize the general security.
Again in making a promise one might call the people or the
neighborhood to witness and might affront them by calling them to
witness in vain. Here, too, the peace was threatened and politically
organized society might give a remedy to the promisee, lest he invoke
the help of his fellow citizens or his neighbors. A common case might
be one where a composition was promised in this way for an injury not
included in the detailed tariff of compositions that is the staple of
ancient "codes." Another common case was where one who held another's
property for some temporary purpose promised to return it. Such a case
is lending; for before the days of coined money, the difference
between lending a horse to go to the next town and lending ten sheep
to enable the borrower to pay a composition is not perceptible. Thus
another starting point of liability is recovery of a thing certain, or
what was originally the same, a sum certain, promised in such wise as
to endanger the general security if the promise is not carried out. In
Roman law, the condiction, which is the type of actions _in personam_,
and thus the starting point historically of rights _in personam_ and
of theories of obligation, was at first a recovery of a thing certain
or a sum certain due upon a promise of this sort. In juristic terms,
the central idea of the beginnings of liability is duty to make
composition for or otherwise avert wrath arising from the affronted
dignity of some personality desirous of vengeance, whether an injured
individual, a god or a politically organized society. Greek law and
Roman law give the name of "insult" to legally cognizable injury to
personality. Insult to a neighbor by injury to him or to one of his
household, insult to the gods by impious breach of the promise they
had witnessed, insult to the people by wanton disregard of the
undertaking solemnly made in their presence, threatened the peace and
order of society and called for legal remedy.
Lawyers begin to generalize and to frame conscious theories in the
later part of the stage of the strict law. At first these theories are
analytical rather than philosophical. The attempt is to frame general
formulas by which the rigid rules of the strict law may be reconciled
where they overlap or conflict or may be distinguished in their
application where such overlapping or conflict threatens. By this
time, the crude beginnings of liability in a duty to compound for
insult or affront to man or gods or people, lest they be moved to
vengeance, has developed into liability to answer for injuries caused
by oneself or done by those persons or those things in one's power,
and liability for certain promises made in solemn form. Thus the basis
of liability has become twofold. It rests on the one hand upon duty to
repair injury. It rests on the other hand upon duty to carry out
formal undertakings. It is enough for this stage of legal development
that all cases of liability may be referred to these two types and
that useful distinctions may be reached therefrom. Consideration of
why one should be held to repair injury, and why he should be held to
formal undertakings, belongs to a later stage.
Juristic theory, beginning in the transition from the strict law to
the stage of equity or natural law, becomes a force in the latter
stage. As the relations with which the law must deal become more
numerous and the situations calling for legal treatment become more
complicated, it is no longer possible to have a simple, definite,
detailed rule for every sort of case that can come before a tribunal,
nor a fixed, absolute form for every legal transaction. Hence, under
the leadership of philosophical jurists, men turn to logical
development of the "nature" or ideal form of situations and to ethical
ideas of what "good faith" or "good conscience" demands in particular
relations or transactions. The strict law, relying on rule and form,
took no account of intention as such. The words took effect quite
independently of the thought behind them. But as lawyers began to
reflect and to teach something more than a class or professional
tradition, as they began to be influenced by philosophy to give over
purely mechanical methods and to measure things by reason rather than
by arbitrary will, emphasis shifted from form to substance; from the
letter to the spirit and intent. The statute was thought of as but the
lawmaker's formulation of a principle of natural law. It was not the
_uerba_ that were efficacious, as in the strict law, which had
inherited the primitive faith in the power of words and thought of the
legal formula as if it were a formula of incantation possessing
inherent magical force. It was the _ratio iuris_, which transcended
words and formulas. So also the traditional rule was not a magic
formula discovered by our fathers. It was a customary expression of a
principle of natural law. Likewise the formal transaction was not a
bit of private magic employed to conjure up legal liability. It was
the clothing in legally recognized vestments of an intention to do
what reason and good faith demand in a given situation. When form and
intention concurred the promisor must answer for what he undertook.
When the form used did not express or went beyond the intention or was
the product of an apparent but not a real intention, the promisee was
not to be enriched unjustly at the promisor's expense on the sole
basis of the form. Moreover the duty was to be one of doing what good
faith demanded, not one of doing literally and exactly what the letter
of the undertaking called for. And although there was no express
undertaking, there might be duties implied in the relation or
situation or transaction, viewed as one of good faith, and one might
be held to a standard of action because an upright and diligent man,
who was his own master, would so act. Such is the mode of thinking in
the classical period of the Roman law and it is closely paralleled by
an independent development of juristic thought in the rise of equity
and the absorption of the law merchant in our law.
It was easy to fit the two categories, delict and formal undertaking,
which had come down from the strict law, into the new mode of thought.
The typical delict required _dolus_--intentional aggression upon the
personality or the substance of another. Indeed Aquilian _culpa_, in
which the fault did not extend to intentional aggression, is a
juristic equitable development. Hence when the legal was identified
with the moral, and such identification is a prime characteristic of
this stage, the significant thing in delict seemed to be the moral
duty to repair an injury caused by wilful aggression. The legal
precept was _alienum non laedere_. Also the duty to perform an
intentional undertaking seemed to rest on the inherent moral quality
of a promise that made it intrinsically binding on an upright man. The
legal precept was _suum cuique tribuere_. Thus liability seemed to
flow from intentional action--whether in the form of aggression or in
the form of agreement. The "natural" sources of liability were delict
and contract. Everything else was assimilated to one or the other of
them. Liability without fault was quasi-delictal. Liability imposed by
good faith to prevent unjust enrichment was quasi-contractual. The
central idea had become one of the demands of good faith in view of
intentional action.
In the nineteenth century the conception of liability as resting on
intention was put in metaphysical rather than ethical form. Law was
a realization of the idea of liberty, and existed to bring about the
widest possible individual liberty. Liberty was the free will in
action. Hence it was the business of the legal order to give the
widest effect to the declared will and to impose no duties except in
order to effectuate the will or to reconcile the will of one with the
will of others by a universal law. What had been a positive, creative
theory of developing liability on the basis of intention, became a
negative, restraining, one might say pruning, theory of no liability
except on the basis of intention. Liability could flow only from
culpable conduct or from assumed duties. The abstract individual will
was the central point in the theory of liability. If one was not
actually culpable and yet established legal precepts which were not to
be denied held him answerable, it was because he was "deemed"
culpable, the historical legal liability being the proof of
culpability. If he had not actually assumed a duty, and yet
established legal precepts which were not to be denied held him to
answer for it, this must be because he had assumed some relation or
professed some calling in which an undertaking to that effect was
"implied" or had participated in some situation in which it was
"implied,"--the implication being a deduction from the liability. The
bases of liability were culpable conduct and legal transaction, and
these came down to an ultimate basis in will. The fundamental
conception in legal liability was the conception of an act--of a
manifestation of the will in the external world.
Roman law and English law begin with a set of what might be called
nominate delicts or nominate torts. In Roman law there were _furtum_
(conversion), _rapina_ (forcible conversion) and _iniuria_ (wilful
aggression upon personality). All these involved _dolus_, i.e.
intentional aggression. The _lex Aquilia_ added _damnum iniuria datum_
(wrongful injury to property). Later there were added what might be
called the equitable delicts of _dolus_ (fraud) and _metus_ (duress).
Here also there was wilful aggression, and the delict of _dolus_ gets
its name from the intentional misleading that characterizes it in
Roman law as it does deceit in English law. In _damnum iniuria datum_,
a wider conception of fault, as distinguished from intentional
aggression, grew up by juristic development, and Aquilian _culpa_,
that is, a fault causing injury to property and therefore actionable
on the analogy of the _lex Aquilia_, furnished the model for the
modern law. All these may be fitted to the will theory and modern
systematic writers regularly do so. But noxal liability for injury
done by a child or slave or domestic animal did not fit it, nor did
the liability of a master of a ship, an innkeeper or a stable keeper
to respond without regard to fault. Liability for injury done by child
or slave or domestic animal was enforced in a noxal action on the
analogy of the action which lay for the same injury if done by the
defendant in person. Hence procedurally it seemed liability for a
delict involving intentional aggression, and it was possible to say
that there was fault in not restraining the agency that did the
injury, although no fault had to be shown nor could absence of fault
be shown as a defence. There was fault because there was liability,
for all liability grew out of fault. Such treadings on the tail of its
own argument are very common in legal reasoning. Likewise in the case
of the absolute liability of the master of a ship, the innkeeper and
the stable keeper, the institutional writers could say that they were
at fault in not having proper servants, although here also fault need
not be established by proof nor could want of fault be made a defence.
As procedurally these liabilities arose in actions on the facts of
particular cases, the jurists at first lumped them with many other
forms of liability, which were not in fact dependent on intention and
were enforced in actions _in factum_, as obligations arising from the
special facts of cases (_obligationes ex uariis causarum figuris_).
Later they were called quasi-delictual obligations and they are so
designated in the fourfold classification of the Institutes. Buckland
has remarked that in almost all of the liabilities included under
quasi-delict in the Institutes there is liability at one's peril for
the act of another, especially for one's servant, as in the noxal
actions, the _actio de deiectis et diffusis_ (for things thrown or
poured from buildings upon a way) and the _actio de recepto_ against
an innkeeper. In other words, in these cases one was held without
regard to fault for injuries incidental to the conduct of certain
enterprises or callings and for failure to restrain potentially
injurious agencies which one maintained.
Modern law has given up both the nominate delicts and quasi-delict, as
things of any significance. The French civil code made the idea of
Aquilian _culpa_ into a general theory of delictal liability, saying,
"Every act of man which causes damage to another obliges him through
whose fault it happened to make reparation." In other words, liability
is to be based on an act, and it must be a culpable act. Act,
culpability, causation, damage, were the elements. This simple theory
of liability for culpable causation of damage was accepted universally
by civilians until late in the nineteenth century and is still
orthodox. Taken up by text writers on torts in the last half of that
century, it had much influence in Anglo-American law. But along with
this generalization the French code preserved a liability without
fault, developed out of the noxal actions, whereby parents and
teachers may be held for injuries by minors under their charge,
masters for injuries by their apprentices, employers for injuries by
employees and those in charge of animals for injuries by such animals.
Also it provided an absolute liability for injury by a _res ruinosa_,
developed out of the Roman _cautio damni infecti_. In the case of
parents, teachers and masters of apprentices, there is only a
presumption of fault. They may escape by showing affirmatively that
they were without fault and that what happened could not have been
prevented by diligence on their part. In the case of employers no
excuse is admitted. The liability is absolute. In the case of
animals, fault of the victim, inevitable accident and _vis maior_ may
be shown affirmatively by way of defence. In the case of a _res
ruinosa_ there is no presumption of fault. But if the structure fell
or did injury because of a defect of construction or want of repair,
the owner is liable absolutely and may not show that he had no notice
of the defect and no reason to suspect it, or that it was not in his
power to prevent the structure from falling.
Thus it will be seen that French law came very near to a logically
consistent scheme of liability for fault, and civil liability for
fault only, throughout the whole delictal field. Employer's liability
remained absolute, and liability for animals but little short of
absolute. For the rest there was in certain cases an imposition of the
burden of proof that there had been no fault, leaving the ultimate
liability to rest upon a presumed fault, if want of fault was not
established. None the less this, the most thoroughgoing attempt to
make delictal liability flow exclusively from culpability--to make it
a corollary of fault and of fault only--fell short of complete
attainment of its aim. Recent French authors do not hesitate to say
that the attempt must be given over and that a new theory of civil
delictal liability must be worked out. Meanwhile the same movement
away from the simple theory of delictal liability for culpable
causation of damage had taken place elsewhere on the Continent.
Binding had subjected the _culpa-prinzip_ to thorough analysis, and
following him it had come to be rejected generally by recent German
and Swiss jurists.
In the common law, as has been said, we begin likewise with a set of
nominate torts--assault, battery, imprisonment, trespass on lands,
trespass on chattels, conversion, deceit, malicious prosecution,
slander and libel--developed procedurally through the action of
trespass and the action of trespass on the case. All of these, except
trespass on lands, trespass upon possession of chattels and
conversion, are cases of intentional injury. Trespass on lands,
trespass on chattels and conversion involve more than the general
security and must be considered in connection with ideas of property.
The social interest in security of acquisitions demands that we be
able to rely on others keeping off of our lands and not molesting our
chattels; that they find out for themselves and at their own risk
where they are or with whose chattels they are meddling. But even here
there must be an act. If there is no act, there is no liability. To
these nominate torts, each with its own special rules, coming down
from the strict law, we added a new ground of liability, namely,
negligence, going on a principle, not of duty to answer for
aggression, but of duty to answer for injuries resulting from falling
short of a legal standard of conduct governing affirmative courses of
action. Some, indeed, sought to give us a "tort of negligence" as a
nominate tort. But it was soon recognized that in negligence we have a
principle of liability dependent upon a standard, not a tort to be
ranged alongside of assault or imprisonment. Later, with the rise of
doctrines as to injury to advantageous relations and the failure of
negligence to account for all unintended harms of which the law
actually was taking note, we developed an indefinite number of
innominate torts. Today with the obsolescence of procedural
difficulties, there is no reason why we should not generalize, as the
civil law did at the beginning of the last century; and such a
generalization was attempted in the last third of the nineteenth
century. It became orthodox common law that liability was a corollary
of fault. So far as established common-law rules imposed a liability
without fault, they were said to be historical exceptions, and some of
our courts, under the influence of this theory, were willing to go a
long way in abrogating them. Liability, without regard to fault, for
the acts of servants and employees was reconciled with this theory by
the fiction of representation, exposed long ago by Mr. Justice Holmes
and later by Dr. Baty. Finally it came to be thought that no liability
without fault was not merely common law but was natural law and that
any legislative imposition of such liability was arbitrary and
unreasonable in itself and hence unconstitutional. On that theory,
the New York Court of Appeals held workmen's compensation
unconstitutional, and a minority of the Supreme Court of the United
States recently announced the same proposition.
Because of its implications for constitutional law, in view of the
increasing frequency of legislation imposing responsibility at one's
peril in certain enterprises, in the case of certain dangerous
agencies and in situations where it is felt that the loss should be
borne by all of us rather than by the luckless individual who chances
to be hurt, the basis of tort liability has become a question of
moment beyond the immediate law of torts. It is a practical question
of the first importance, as well as a theoretical question of
interest, whether we are to generalize our whole system of tort
liability by means of one principle of liability for fault and for
fault only, as the French sought to do and as we later sought to do
largely under their influence, or, on the other hand, are to admit
another source of delictal liability alongside of fault, as the French
law does in fact and is coming to do in theory, and as our law has
always done in fact. For in our law as it stands one may perceive
readily three types of delictual liability: (1) Liability for
intentional harm, (2) liability for unintentional culpable harm, (3)
liability in certain cases for unintended non-culpable harm. The first
two comport with the doctrine of no liability without fault. The third
cannot be fitted thereto. We must either brand cases of the third type
as historical anomalies, of which we are gradually to rid ourselves,
or else revise our notions of tort liability. Let us remember that the
nineteenth century was well advanced before we understood the subject
of negligence and that before we had convinced ourselves that no
liability without fault was orthodox common law, the highest court of
England had given absolute liability a new field by the decision in
_Rylands_ v. _Fletcher_. We are not questioning a long-established
dogma in Anglo-American administration of justice, therefore, when we
ask whether the orthodox theory of the last generation is adequate as
an analytical statement of the law that is, or as a philosophical
theory of the law that ought to be. My own belief is that it is
neither.
Suppose that instead of beginning with the individual free will we
begin with the wants or claims involved in civilized society--as it
has been put, with the jural postulates of civilized society. One such
postulate, I think we should agree, is that in civilized society men
must be able to assume that others will do them no intended
injury--that others will commit no intentional aggressions upon them.
The savage must move stealthily, avoid the sky-line and go armed. The
civilized man assumes that no one will attack him and so moves among
his fellow men openly and unarmed, going about his business in a
minute division of labor. Otherwise there could be no division of
labor beyond the differentiation of men of fighting age, as we see it
in a primitive society. This postulate is at the foundation of
civilized society. Everywhere _dolus_ is first dealt with. The system
of nominate delicts or nominate torts, both in Roman law and in our
law, proceeds on this postulate.
Is it not another such postulate that in civilized society men must be
able to assume that their fellow men, when they act affirmatively,
will do so with due care, that is with the care which the ordinary
understanding and moral sense of the community exacts, with respect to
consequences that may reasonably be anticipated? Such a postulate is
the basis of delictal _culpa_, using _culpa_ in the narrower sense,
and of our doctrine of negligence. In Roman law and at one time in our
law attempts were made to develop this postulate contractually. If in
a transaction involving good faith--that is an informal legal
transaction--one's conduct fell short of action to which the other
party was justified by the understanding of upright men in expecting
him to adhere, there was contractual _culpa_; there was a violation of
a promise implied in the transaction and consequent liability. We
borrowed something of this mode of thought from the Romans in our law
of bailments and hence think indifferently in terms of tort or
contract in that connection, although historically our action for such
cases is delictal. In other connections also our law for a time sought
to develop this postulate contractually by means of an "implied
undertaking to use skill" for which one must answer if his skill fell
short of that which the legal standard of affirmative conduct called
for under the circumstances. Also in the Year Books an undertaking
implied in certain relations or callings to use the skill or diligence
which the relation or calling demanded is often made the basis of
liability. But here the basis of liability must be found in a
relation. The fiction of an undertaking to use the skill or diligence
involved in a relation or calling is a juristic way of saying that one
who deals with another in such a relation or with another who
professes such a calling is justified in assuming the skill and
diligence ordinarily involved therein, so that the law holds those in
the relation or engaged in the calling to that standard in order to
maintain the general security. In other words another, though closely
related, postulate of civilized society is involved.
It is worth a moment's digression to suggest that such things show how
little the historical categories of delict and contract represent any
essential or inherent need of legal thinking. Austin thought that "the
distinction of obligations (or of duties corresponding to rights
against persons specifically determined) into obligations which arise
from contracts, obligations which arise from injuries, and obligations
which arise from incidents which are neither contracts nor injuries,"
was a "necessary distinction," without which a "system of law evolved
in a refined community" could not be conceived. This "necessary"
systematic scheme, which must be "a constituent part" of any
imaginable developed legal system, is but the Roman division into
obligations _ex contractu_, obligations _ex delicto_ and obligations
_ex uariis causarum figuris_, in which the third category is obviously
a catch-all. In trying to fit our law into this necessary scheme, we
find three types of cases must go in the third: (a) Duties or
liabilities attached by law to a relation, (b) duties imposed by law
to prevent unjust enrichment, (c) duties involved in an office or
calling. In the third of these our Anglo-American procedure allows
recovery either _ex delicto_ or _ex contractu_. In the second our law
sometimes goes on a property theory of constructive trust. In the
first duties are sometimes sanctioned affirmatively by conferring
legal powers or negatively by legal non-restraint of natural powers,
as in the law of domestic relations, where the wife has a power to
pledge the husband's credit for necessaries and the law does not
interfere with the parent's administering reasonable "correction" to
the child. Are we to say that these dogmatic departures of our law
from the Roman scheme are inconceivable or that because of them our
law is not matured or was not "evolved in a refined community?" Or are
we to say that Austin derived his systematic ideas, not from
scientific study of English law, but from scientific study of Roman
law in a German university? Are we to say that we cannot "imagine
coherently" a system of law which enforces warranties indifferently
_ex contractu_ or _ex delicto_ as our law does, or which goes further
and applies the contract measure of damage _ex delicto_ as does the
law of Massachusetts? But enough of this. What we have here is not any
necessary distinction. It is rather what Austin calls a "pervading
notion," to be found generally in the systematic ideas of developed
legal systems by derivation from the Roman books. Roman law may have a
contractual conception of obligation _ex delicto_--thinking of the
delict as giving rise to a debt--and the common law a delictual
conception of liability upon contract--thinking in terms of recovery
of damages for the wrong of breaking a promise--without much
difference in the ultimate results. The fundamental things are not
tort and contract but justifiable assumptions as to the mode in which
one's fellow men will act in civilized society in many different
situations of which aggression and undertaking are but two common
types.
Returning to our second postulate of due care in affirmative courses
of conduct, we may note that in the society of today it is no less
fundamental than the postulate of no intentional aggression.
Aggression is the chief if not the only form of anti-social conduct in
a primitive society. Indeed, a Greek writer on law and politics of the
fifth century B. C. knew of no other subject of legal precepts. But
with the development of machinery and consequent increase in human
powers of action, the general security comes to be threatened quite as
much by the way in which one does things as by what he does.
Carelessness becomes a more frequent and more serious source of danger
to the general security than aggression. Hence a set of nominate
delicts requiring _dolus_ is supplemented by a theory of _culpa_.
Hence a set of nominate torts, characterized by intentional
aggression, is supplemented by liability for negligence, and the
latter becomes the more important source of legal liability in
practice.
Must we not recognize also a third postulate, namely, that men must
be able to assume that others, who keep things or maintain conditions
or employ agencies that are likely to get out of hand or escape and do
damage, will restrain them or keep them within proper bounds? Just as
we may not go effectively about our several businesses in a society
dependent on a minute division of labor if we must constantly be on
guard against the aggressions or the want of forethought of our
neighbor, so our complex social order based on division of labor may
not function effectively if each of us must stay his activities
through fear of the breaking loose or getting out of hand of something
which his neighbor harbors or maintains. There is danger to the
general security not only in what men do and the way in which they do
it, but also in what they fail to do in not restraining things they
maintain or agencies they employ which may do injury if not kept
strictly in hand. The general security is threatened by wilful
aggression, by affirmative action without due regard for others in the
mode of conducting it, and by harboring and maintaining things and
employing agencies likely to escape or to go out of bounds and do
damage. Looked at in this way, the ultimate basis of delictal
liability is the social interest in the general security. This
interest is threatened or infringed in three ways: (1) Intentional
aggression, (2) negligent action, (3) failure to restrain potentially
dangerous things which one maintains or potentially dangerous agencies
which one employs. Accordingly these three are the immediate bases of
delictal liability.
Controversial cases of liability without fault involve the third
postulate. Systematic writers have found no difficulty in reconciling
the law of negligence with the will theory of liability and the
doctrine of no liability without fault. Yet they must use the term
fault in a strained sense in order to fit our law of negligence with
its objective standard of due care, or the Roman cases of liability
for _culpa_ judged by the abstract standard, into any theory of moral
blameworthiness. The doctrine of liability for fault and for fault
only has its roots in the stage of equity and natural law, when the
moral and the legal are identified, and means that one shall respond
for injuries due to morally blameworthy conduct upon his part. As Ames
puts it, "the unmoral standard of acting at one's peril" is replaced
by the question, "Was the act blameworthy?" But is an act blameworthy
because the actor has a slow reaction time or was born impulsive or is
naturally timid or is easily "rattled" and hence in an emergency does
not come up to the standard of what a reasonably prudent man would do
in such an emergency, as applied _ex post facto_ by twelve average men
in the jury box? If our use of "culpable" here were not, as it were,
Pickwickian, we should allow the defendant in such cases to show what
sort of man nature had made him and to call for individualization with
respect to his character and temperament as well as with respect to
the circumstances under which he acted. As the Romanist would say, we
should apply a concrete standard of _culpa_. But what the law is
really regarding is not his culpable exercise of his will but the
danger to the general security if he and his fellows act affirmatively
without coming up to the standard imposed to maintain that security.
If he acts, he must measure up to that standard at his peril of
answering for injurious consequences. Whenever a case of negligence
calls for sharp application of the objective standard, fault is as
much a dogmatic fiction as is representation in the liability of the
master for the torts of his servant. In each case the exigencies of
the will theory lead us to cover up a liability irrespective of fault,
imposed to maintain the general security, by a conclusive imputation
of fault to one who may be morally blameless. This is no less true of
cases where we speak of "negligence _per se_."
Reconciliation of common-law absolute liabilities for the getting out
of hand of things likely to escape and do damage with the doctrine of
no liability without fault has been sought by means of a fiction of
negligence, by pronouncing them disappearing historical anomalies, by
an economic interpretation that regards them as results of class
interest distorting the law, and by a theory of _res ipsa loquitur_.
Blackstone resorted to the first of these. "A man is answerable,"
he said, "for not only his own trespass but for that of his cattle
also; for if by his negligent keeping they stray upon the land of
another ... this is a trespass for which the owner must answer in
damages." But note that the negligence here is a dogmatic fiction. No
proof of negligence is required of the plaintiff, nor may the
defendant show that there was in fact no negligence. The negligence is
established by the liability, not the liability by the negligence.
In the last century it was usual to refer to absolute liability for
trespassing animals, for injuries by wild animals and for injuries by
domestic animals, known to be vicious, as disappearing rudiments of
the old liability to make composition. The common American doctrine as
to cattle running at large upon uncultivated lands seemed to confirm
this. Yet one need but look beneath the surface to see that the
English rule was rejected for a time in America, not because it was
in conflict with a fundamental principle of no liability without
fault, but because it presupposed a settled community, where it was
contrary to the general security to turn cattle out to graze, whereas
in pioneer American communities of the past vacant lands which were
owned and those which were not owned could not be distinguished and
the grazing resources of the community were often its most important
resources. The common-law rule, without regard to its basis, was for a
time inapplicable to local conditions. It is significant that as the
conditions that made the rule inapplicable have come to an end the
rule has generally re-established itself. In England it is in full
vigor so that the owner of trespassing animals is held for disease
communicated by them although he had no knowledge or reason to suppose
they were diseased. A rule that can re-establish itself and extend its
scope in this way is not moribund. It must have behind it some basis
in the securing of social interests. Nor have the attempts of some
American courts to narrow common-law liability for injuries by known
vicious animals to cases of negligent keeping made much headway. The
weight of American authority remains with the common-law rule and in
England the Court of Appeal has carried the rule out to the extent of
holding the owner notwithstanding the animal was turned loose by the
wrongful act of an intermeddling third person. Nor have the
predictions that the doctrine of _Rylands_ v. _Fletcher_ would
disappear from the law through the courts' smothering it with
exceptions--predictions commonly made at the end of the last
century--been verified in the event. In 1914 the English courts
refused to limit the doctrine to adjacent free-holders and they have
since extended it to new situations. Moreover in America, where we had
been told it was decisively rejected, it has been applied in the past
decade by more than one court. The leading American cases that profess
to reject the doctrine did not involve it nor did they involve the
postulate of civilized society on which, as I think, it is based. Also
the Court of Appeals of New York, the leading exponent of no
liability without fault, had theretofore imposed a liability without
regard to negligence in the case of blasting.
An ingenious explanation of the doctrine of _Rylands_ v. _Fletcher_ by
means of the economic interpretation of legal history demands more
notice. We are told that the English courts were manned by landowners
or by judges drawn from the land-owning class; that the doctrine of
_Rylands_ v. _Fletcher_ is a doctrine for landowners and so was not
accepted by artisans in the United States. But consider which states
applied the rule and which rejected it. It was applied in
Massachusetts in 1872, in Minnesota in 1872, in Ohio in 1896, in West
Virginia in 1911, in Missouri in 1913, in Texas in 1916. It was
rejected by New Hampshire in 1873, by New York in 1873, by New Jersey
in 1876, by Pennsylvania in 1886, by California in 1895, by Kentucky
in 1903, by Indiana in 1911. Is New York a community of artisans but
Massachusetts a community of landowners? Did the United States begin
to change from a country of artisans to one of landowners about the
year 1910 so that a drift toward the doctrine began at that time after
a steady rejection of it between 1873 and 1896? _Rylands_ v.
_Fletcher_ was decided in 1867 and is connected with the movement
Dicey calls collectivism, which, he says, began in 1865. It is a
reaction from the notion of liability merely as a corollary of
culpability. It restrains the use of land in the interest of the
general security. If this view is well taken, if it was an attempt to
take account of the social interest in the general security in a
crowded country, this may explain the reluctance with which it was
received in the United States at first, where pioneer ideas,
appropriate to a less crowded agricultural country, lingered at least
to the end of the nineteenth century. In the actual American
decisions, some follow _Rylands_ v. _Fletcher_ as an authoritative
statement of the common law. Other cases go rather on the principle
that liability flows from culpability. Agricultural states and
industrial states alike divide along these doctrinal lines.
Massachusetts and Pennsylvania, both industrial states, are on
opposite sides. So are Texas and Kentucky, which are agricultural
states. Massachusetts and New Jersey, each with an appointive bench,
are on opposite sides, and so are Ohio and New York, each with an
elective bench. In truth the Massachusetts court followed authority.
In New Hampshire Chief Justice Doe was not willing to go on mere
authority and decided on the general principle that liability must
flow from fault.
Another view is that the doctrine of _Rylands_ v. _Fletcher_ is a
crude attempt, when negligence and the doctrine of _res ipsa loquitur_
were none too well understood, to apply the principle of the latter
doctrine, and that those doctrines will suffice to reach the actual
result. No doubt _res ipsa loquitur_ gives a possible mode of treating
cases where one maintains something likely to get out of hand and do
injury. For four possible solutions may be found for such cases. One
is absolute liability, as in _Rylands_ v. _Fletcher_. Another is to
put the burden of proof of due care on the defendant, as French law
does in some cases and as is done by some American decisions and some
statutes in case of fires set by locomotives. A third is to apply the
doctrine of _res ipsa loquitur_. A fourth would be to require the
plaintiff to prove negligence, as is done by the Supreme Court of New
Jersey where a known vicious animal breaks loose. That the fourth,
which is the solution required by the theory of no liability without
fault, has found but two courts to uphold it, and that only in the
case of vicious domestic animals, is suggestive. _Res ipsa loquitur_
may easily run into a dogmatic fiction, and must do so, if made to
achieve the result of the doctrine of _Rylands_ v. _Fletcher_, which
does not permit the defendant to go forward with proof, short of _vis
maior_ or the unanticipated unlawful act of a third person beyond
defendant's control. The vitality and persistence of the doctrine
against theoretical assault for more than a generation show that it is
more than a historical anomaly or a dogmatic blunder.
Another type of common-law liability without fault, the so-called
liability of the carrier as an insurer and the liability of the
innkeeper, is relational and depends upon a different postulate.
Nineteenth-century courts in the United States endeavored to hold down
the former, restricting it because of its inconsistency with the
doctrine of liability as a corollary of fault. But it has proved to
have abundant vitality, has been extended by legislation in some
states to carriers of passengers and has been upheld by recent
legislation everywhere.
Two other types of liability, contractual and relational, must receive
brief notice. The former has long done valiant service for the will
theory. Not only liability arising from legal transactions but
liability attached to an office or calling, liability attached to
relations and liability to restitution in case of unjust enrichment
have been referred to express or implied undertaking and hence to the
will of the person held. But beneath the surface the so-called
contract by estoppel, the cases of acceptance of a wrongly transmitted
offer, the doctrine that a public utility has no general power of
contract as to facilities or rates except to liquidate the terms of
its relational duties in certain doubtful cases, and cases of
imposition of duties on husband or wife after marriage by change of
law, have caused persistent and recurring difficulties and call
everywhere for a revision of our ideas. Also the objective theory of
contract has undermined the very citadel of the will theory. May we
not refer these phenomena, not to the will of the person bound, but to
another postulate of civilized society and its corollaries? May we not
say that in civilized society men must be able to assume that those
with whom they deal in the general intercourse of society will act in
good faith? If so, four corollaries will serve as the bases of four
types of liability. For it will follow that they must be able to
assume (a) that their fellow men will make good reasonable
expectations created by their promises or other conduct, (b) that they
will carry out their undertakings according to the expectation which
the moral sentiment of the community attaches thereto, (c) that they
will conduct themselves with zeal and fidelity in relations, offices
and callings, and (d) that they will restore in specie or by
equivalent what comes to them by mistake or unanticipated situation
whereby they receive what they could not have expected reasonably to
receive under such circumstances. Thus we come back to the idea of
good faith, the idea of the classical Roman jurists and of the
philosophical jurists of the seventeenth century, out of which the
will theory was but a metaphysical development. Only we give it a
basis in social philosophy where they sought a basis in theories of
the nature of transactions or of the nature of man as a moral
creature.
Looking back over the whole subject, shall we not explain more
phenomena and explain them better by saying that the law enforces the
reasonable expectations arising out of conduct, relations and
situations, instead of that it proceeds upon willed action and willed
action only, enforcing the willed consequences of declared intention,
enforcing reparation for willed aggression and enforcing reparation
for culpable carrying on of willed conduct? If we explain more and
explain it more completely by saying that the ultimate thing in the
theory of liability is justifiable reliance under the conditions of
civilized society than by saying that it is free will, we shall have
done all that we may hope to do by any theory.
V
Property
Economic life of the individual in society, as we know it, involves
four claims. One is a claim to the control of certain corporeal
things, the natural media on which human existence depends. Another is
a claim to freedom of industry and contract as an individual asset,
apart from free exercise of one's powers as a phase of personality,
since in a highly organized society the general existence may depend
to a large extent upon individual labor in specialized occupations,
and the power to labor freely at one's chosen occupation may be one's
chief asset. Third, there is a claim to promised advantages, to
promised performances of pecuniary value by others, since in a complex
economic organization with minute division of labor and enterprises
extending over long periods, credit more and more replaces corporeal
wealth as the medium of exchange and agency of commercial activity.
Fourth, there is a claim to be secured against interference by
outsiders with economically advantageous relations with others,
whether contractual, social, business, official or domestic. For not
only do various relations which have an economic value involve claims
against the other party to the relation, which one may demand that the
law secure, but they also involve claims against the world at large
that these advantageous relations, which form an important part of the
substance of the individual, shall not be interfered with. Legal
recognition of these individual claims, legal delimitation and
securing of individual interests of substance is at the foundation of
our economic organization of society. In civilized society men must be
able to assume that they may control, for purposes beneficial to
themselves, what they have discovered and appropriated to their own
use, what they have created by their own labor and what they have
acquired under the existing social and economic order. This is a
jural postulate of civilized society as we know it. The law of
property in the widest sense, including incorporeal property and the
growing doctrines as to protection of economically advantageous
relations, gives effect to the social want or demand formulated in
this postulate. So also does the law of contract in an economic order
based upon credit. A social interest in the security of acquisitions
and a social interest in the security of transactions are the forms of
the interest in the general security which give the law most to do.
The general safety, peace and order and the general health are secured
for the most part by police and administrative agencies. Property and
contract, security of acquisitions and security of transactions are
the domain in which law is most effective and is chiefly invoked.
Hence property and contract are the two subjects about which
philosophy of law has had the most to say.
In the law of liability, both for injuries and for undertakings,
philosophical theories have had much influence in shaping the actual
law. If they have grown out of attempts to understand and explain
existing legal precepts, yet they have furnished a critique by which
to judge those precepts, to shape them for the future and to build new
ones out of them or upon them. This is much less true of philosophical
theories of property. Their rôle has not been critical or creative but
explanatory. They have not shown how to build but have sought to
satisfy men with what they had built already. Examination of these
theories is an illuminating study of how philosophical theories of law
grow out of the facts of time and place as explanations thereof and
then are given universal application as necessarily explanatory or
determinative of social and legal phenomena for all time and in every
place. It has been said that the philosophy of law seeks the permanent
or enduring element in the law of the time and place. It would be
quite as true to say that it seeks to find in the law of the time and
place a permanent or enduring picture of universal law.
It has been said that the individual in civilized society claims to
control and to apply to his purposes what he discovers and reduces to
his power, what he creates by his labor, physical or mental, and what
he acquires under the prevailing social, economic or legal system by
exchange, purchase, gift or succession. The first and second of these
have always been spoken of as giving a "natural" title to property.
Thus the Romans spoke of them as modes of "natural acquisition" by
occupation or by specification (making a species, i.e., creation).
Indeed, taking possession of what one discovers is so in accord with a
fundamental human instinct that discovery and occupation have stood in
the books ever since substantially as the Romans stated them. A
striking example of the extent to which this doctrine responds to
deep-seated human tendencies is afforded by the customs as to
discovery of mineral on the public domain upon which American mining
law is founded and the customs of the old whale-fishery as to
fast-fish and loose-fish which were recognized and given effect by the
courts. But there is a difficulty in the case of creation or
specification in that except where the creation is mental only
materials must be used, and the materials or tools employed may be
another's. Hence Grotius reduced creation by labor to occupation,
since if one made from what he discovered, the materials were his by
occupation, and if not, the title of others to the materials was
decisive. This controversy as to the respective claims of him who
creates by labor and him who furnishes the materials goes back to the
Roman jurists of the classical period. The Proculians awarded the
thing made to the maker because as such it had not existed previously.
The Sabinians awarded it to the owner of the materials because without
materials the new thing could not have been made. In the maturity of
Roman law a compromise was made, and various compromises have obtained
ever since. In modern times, however, the claim of him who creates has
been urged by a long line of writers beginning with Locke and
culminating in the socialists. The Romans spoke of what one acquired
under the prevailing social, economic or legal system as held by
"civil" acquisition and conceived that the principle _suum cuique
tribuere_ secured the thing so acquired as being one's own.
Roman jurists recognized that certain things were not subject to
acquisition in any of the foregoing ways. Under the influence of the
Stoic idea of _naturalis ratio_ they conceived that most things were
destined by nature to be controlled by man. Such control expressed
their natural purpose. Some things, however, were not destined to be
controlled by individuals. Individual control would run counter to
their natural purpose. Hence they could not be the subjects of private
ownership. Such things were called _res extra commercium_. They might
be excluded from the possibility of individual ownership in any of
three ways. It might be that from their nature they could only be
used, not owned, and from their nature they were adapted to general
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