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