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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
Encyclopaedia 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 role 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: nomos], 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: nomos] and
[Greek: ta nomizomena]--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.