{"collection":"philosophy-ethics","full_text_available":true,"graph_url":"https://unchartedknowledge.5gfusion.net/v2/api/page/gutenberg_32168/graph","html_url":"https://unchartedknowledge.5gfusion.net/v2/page/gutenberg_32168","id":"gutenberg_32168","license":"Public Domain (US)","rights_basis":"gutenberg_metadata_copyright_false","source":"gutenberg","source_url":"https://www.gutenberg.org/ebooks/32168","summary":null,"tags":["Category: Law & Criminology","Category: Philosophy & Ethics","Law -- Philosophy","Philosophy"],"text":"Produced by The Online Distributed Proofreading Team at\nhttps://www.pgdp.net (This file was produced from images\ngenerously made available by The Internet Archive)\n\n\n\n\n\n\n\n\n\n                        AN INTRODUCTION TO THE\n                           PHILOSOPHY OF LAW\n\n              THE ADDRESSES CONTAINED IN THIS BOOK WERE\n                  DELIVERED IN THE WILLIAM L. STORRS\n                   LECTURE SERIES, 1921, BEFORE THE\n                    LAW SCHOOL OF YALE UNIVERSITY,\n                        NEW HAVEN, CONNECTICUT\n\n\n\n\n                        An Introduction to the\n                           Philosophy of Law\n\n                                  BY\n\n                             ROSCOE POUND\n\n\n                   NEW HAVEN: YALE UNIVERSITY PRESS\n                       LONDON: HUMPHREY MILFORD\n                       OXFORD UNIVERSITY PRESS\n\n\n\n\n              COPYRIGHT, 1922, BY YALE UNIVERSITY PRESS\n               PRINTED IN THE UNITED STATES OF AMERICA\n\n                      First Published, May, 1922.\n                   Second Printing, December, 1924.\n                      Third Printing, May, 1925.\n                     Fourth Printing, April, 1930.\n\n\n\n\n                                  TO\n                          JOSEPH HENRY BEALE\n                  IN GRATEFUL ACKNOWLEDGMENT OF MANY\n                             OBLIGATIONS\n\n\n\n\nThe present volume is the second work published under the imprint of\nthe Yale University Press in memory of Arthur P. McKinstry, who died\nin New York City, July 21, 1921. Born in Winnebago City, Minnesota, on\nDecember 22, 1881, he was graduated from Yale College in 1905, and in\n1907 received the degree of LL.B. _magna cum laude_ from the Yale Law\nSchool, graduating at the head of his class. Throughout his career at\nYale he was noted both for his scholarship and for his active interest\nin debating, which won for him first the presidency of the Freshman\nUnion and subsequently the presidency of the Yale Union. He was also\nClass Orator in 1905, and vice-president of the Yale Chapter of Phi\nBeta Kappa.\n\nFollowing his graduation from the School of Law he entered upon the\npractice of his profession in New York City and early met with the\nsuccess anticipated for him by his friends,--his firm, of which he was\nthe senior member, being recognized at the time of his death as among\nthe most prominent of the younger firms in the city. He was counsel\nfor the Post-Graduate Hospital of New York, the Heckscher Foundation\nfor Children, of which he was also a trustee, and from 1912 to 1914\nserved as associate counsel to the Agency of the United States in the\nAmerican and British Claims Arbitration. By his untimely death the bar\nof the City of New York lost a lawyer outstanding for his ability,\ncommon sense, conscientiousness, and high sense of justice; and Yale\nUniversity lost an alumnus of whom she was proud, who gave freely of\nhis time and thought to his class of 1905, to the development of the\nYale School of Law, and to the upbuilding of the Yale University\nPress, which he served as counsel.\n\n\n\n\nPreface\n\n\nThis book is a written version of lectures delivered before the\nLaw School of Yale University as Storrs Lectures in the school\nyear 1921-1922.\n\nA metaphysician who had written on the secret of Hegel was\ncongratulated upon his success in keeping the secret. One who essays\nan introduction to the philosophy of law may easily achieve a like\nsuccess. His hearers are not unlikely to find that he has presented\nnot one subject but two, presupposing a knowledge of one and giving\nthem but scant acquaintance with the other. If he is a philosopher,\nhe is not unlikely to have tried a highly organized philosophical\napparatus upon those fragments of law that lie upon the surface of\nthe legal order, or upon the law as seen through the spectacles of\nsome jurist who had interpreted it in terms of a wholly different\nphilosophical system. Looking at the list of authorities relied\nupon in Spencer's Justice, and noting that his historical legal\ndata were taken from Maine's Ancient Law and thus came shaped by the\npolitical-idealistic interpretation of the English historical school,\nit is not difficult to perceive why positivist and Hegelian came to\nthe same juristic results by radically different methods. On the other\nhand, if he is a lawyer, he will very likely have been able to do no\nmore than attempt none too intelligently to work with the complicated\nand delicate engines of others upon the toughest and most resistant\nof legal materials. Until some Anglo-American jurist arises with\nthe universal equipment of Josef Kohler the results of common-law\nincursions into philosophy will resemble the effort of the editorial\nwriter who wrote upon Chinese Metaphysics after reading in the\nEncyclopaedia Britannica under China and Metaphysics and combining\nhis information. Yet such incursions there must be. Philosophy has\nbeen a powerful instrument in the legal armory and the times are ripe\nfor restoring it to its old place therein. At least one may show what\nphilosophy has done for some of the chief problems of the science of\nlaw, what stands before us to be done in some of the more conspicuous\nproblems of that science today in which philosophy may help us, and\nhow it is possible to look at those problems philosophically without\ntreating them in terms of the eighteenth-century natural law or the\nnineteenth-century metaphysical jurisprudence which stand for\nphilosophy in the general understanding of lawyers.\n\n                                                 ROSCOE POUND.\n\nHarvard Law School,\n\n  October 25, 1921.\n\n\n\n\nContents\n\n\n    I. The Function of Legal Philosophy                           15\n   II. The End of Law                                             59\n  III. The Application of Law                                    100\n   IV. Liability                                                 144\n    V. Property                                                  191\n   VI. Contract                                                  236\n       Bibliography                                              285\n       Index                                                     309\n\n\n\n\nI\n\nThe Function of Legal Philosophy\n\n\nFor twenty-four hundred years--from the Greek thinkers of the fifth\ncentury B. C., who asked whether right was right by nature or only by\nenactment and convention, to the social philosophers of today, who\nseek the ends, the ethical basis and the enduring principles of social\ncontrol--the philosophy of law has taken a leading role in all\nstudy of human institutions. The perennial struggle of American\nadministrative law with nineteenth-century constitutional formulations\nof Aristotle's threefold classification of governmental power, the\nstone wall of natural rights against which attempts to put an end to\nprivate war in industrial disputes thus far have dashed in vain, and\nthe notion of a logically derivable super-constitution, of which\nactual written constitutions are faint and imperfect reflections,\nwhich has been a clog upon social legislation for a generation, bear\ndaily witness how thoroughly the philosophical legal thinking of the\npast is a force in the administration of justice of the present.\nIndeed, the everyday work of the courts was never more completely\nshaped by abstract philosophical ideas than in the nineteenth century\nwhen lawyers affected to despise philosophy and jurists believed they\nhad set up a self-sufficient science of law which stood in no need of\nany philosophical apparatus.\n\nIn all stages of what may be described fairly as legal development,\nphilosophy has been a useful servant. But in some it has been a\ntyrannous servant, and in all but form a master. It has been used to\nbreak down the authority of outworn tradition, to bend authoritatively\nimposed rules that admitted of no change to new uses which changed\nprofoundly their practical effect, to bring new elements into the\nlaw from without and make new bodies of law from these new materials,\nto organize and systematize existing legal materials and to fortify\nestablished rules and institutions when periods of growth were\nsucceeded by periods of stability and of merely formal reconstruction.\nSuch have been its actual achievements. Yet all the while its\nprofessed aim has been much more ambitious. It has sought to give us\na complete and final picture of social control. It has sought to lay\ndown a moral and legal and political chart for all time. It has had\nfaith that it could find the everlasting, unchangeable legal reality\nin which we might rest, and could enable us to establish a perfect law\nby which human relations might be ordered forever without uncertainty\nand freed from need of change. Nor may we scoff at this ambitious aim\nand this lofty faith. They have been not the least factors in the\npower of legal philosophy to do the less ambitious things which in\ntheir aggregate are the bone and sinew of legal achievement. For the\nattempt at the larger program has led philosophy of law incidentally\nto do the things that were immediately and practically serviceable,\nand the doing of these latter, as it were _sub specie aeternitatis_,\nhas given enduring worth to what seemed but by-products of\nphilosophical inquiry.\n\nTwo needs have determined philosophical thinking about law. On the one\nhand, the paramount social interest in the general security, which as\nan interest in peace and order dictated the very beginnings of law,\nhas led men to seek some fixed basis of a certain ordering of human\naction which should restrain magisterial as well as individual\nwilfulness and assure a firm and stable social order. On the other\nhand, the pressure of less immediate social interests, and the need of\nreconciling them with the exigencies of the general security, and of\nmaking continual new compromises because of continual changes in\nsociety, has called ever for readjustment at least of the details of\nthe social order. It has called continually for overhauling of legal\nprecepts and for refitting of them to unexpected situations. And this\nhas led men to seek principles of legal development by which to escape\nfrom authoritative rules which they feared or did not know how to\nreject, but could no longer apply to advantage. These principles of\nchange and growth, however, might easily prove inimical to the general\nsecurity, and it was important to reconcile or unify them with the\nidea of a fixed basis of the legal order. Thus the philosopher has\nsought to construct theories of law and theories of lawmaking and has\nsought to unify them by some ultimate solving idea equal to the task\nof yielding a perfect law which should stand fast forever. From the\ntime when lawgivers gave over the attempt to maintain the general\nsecurity by belief that particular bodies of human law had been\ndivinely dictated or divinely revealed or divinely sanctioned, they\nhave had to wrestle with the problem of proving to mankind that the\nlaw was something fixed and settled, whose authority was beyond\nquestion, while at the same time enabling it to make constant\nreadjustments and occasional radical changes under the pressure of\ninfinite and variable human desires. The philosopher has worked upon\nthis problem with the materials of the actual legal systems of the\ntime and place, or with the legal materials of the past upon which\nhis generation had built. Hence in closer view philosophies of law\nhave been attempts to give a rational account of the law of the time\nand place, or attempts to formulate a general theory of the legal\norder to meet the needs of some given period of legal development, or\nattempts to state the results of the two former attempts universally\nand to make them all-sufficient for law everywhere and for all time.\nHistorians of the philosophy of law have fixed their eyes chiefly on\nthe third. But this is the least valuable part of legal philosophy.\nIf we look at the philosophies of the past with our eyes upon the\nlaw of the time and place and the exigencies of the stage of legal\ndevelopment in which they were formulated, we shall be able to\nappreciate them more justly, and so far as the law of the time and\nplace or the stage of legal development was similar to or different\nfrom the present to utilize them for the purposes of today.\n\nWe know Greek law from the beginnings of a legal order as pictured\nin the Homeric poems to the developed commercial institutions of the\nHellenistic period. In its first stage the kings decide particular\ncauses by divine inspiration. In a second stage the customary course\nof decision has become a tradition possessed by an oligarchy. Later,\npopular demand for publication results in a body of enactment. At\nfirst enactments are no more than declaratory. But it was an easy step\nfrom publication of established custom to publication of changes as if\nthey were established custom and thus to conscious and avowed changes\nand intentional new rules through legislation. The law of Athens in\nthe fifth and fourth centuries B. C. was a codified tradition eked\nout by legislation and individualized in its application through\nadministration of justice by large popular assemblies. Thus in spite\nof formal reduction to writing it preserved the fluidity of primitive\nlaw and was able to afford a philosophy for Roman law in its stage\nof equity and natural law--another period of legal fluidity. The\ndevelopment of a strict law out of codified primitive materials,\nwhich in Rome happily preceded the stage of equity and natural law,\ndid not take place in the Greek city. Hence the rules of law were\napplied with an individualized equity that reminds us of the French\n_droit coutumier_--a mode of application which, with all its good\npoints, must be preceded by a body of strict law, well worked out and\nwell understood, if its results are to be compatible with the general\nsecurity in a complex social order. In Athens of the classical period\nthe word [Greek: nomos], meaning both custom and enacted law as well\nas law in general, reflected the uncertainty with respect to form and\nthe want of uniformity in application, which are characteristic of\nprimitive law, and invited thought as to the reality behind such\nconfusion.\n\nWe may understand the materials upon which Greek philosophers were\nworking if we look at an exhortation addressed by Demosthenes to an\nAthenian jury. Men ought to obey the law, he said, for four reasons:\nbecause laws were prescribed by God, because they were a tradition\ntaught by wise men who knew the good old customs, because they were\ndeductions from an eternal and immutable moral code and because they\nwere agreements of men with each other binding them because of a moral\nduty to keep their promises. It was not long since that men had\nthought of legal precepts as divinely revealed, nor was it long since\nthat law had been a tradition of old customs of decision. Philosophers\nwere seeking a better basis for them in eternal principles of right.\nIn the meantime in political theory, at least, many of them were the\nagreements of Athenian citizens as to how they should conduct\nthemselves in the inevitable clashes of interests in everyday life.\nWhat was needed above all was some theory of the authority of law\nwhich should impose bonds of reason upon those who enacted, upon those\nwho applied and upon those who were subject to law in such an\namorphous legal order.\n\nA sure basis of authority resting upon something more stable than\nhuman will and the power of those who govern to impose their will for\nthe time being was required also for the problem of social control in\nthe Greek city-state. In order to maintain the general security and\nthe security of social institutions amid a strife of factions in a\nsociety organized on the basis of kinship and against the wilfulness\nof masterful individuals boasting descent from gods, in order to\npersuade or coerce both the aristocracy and the mass of the low born\nto maintain in orderly fashion the social _status quo_, it would not\ndo to tell them that law was a gift of God, nor that what offended the\naristocrat as a radical bit of popular legislation enacted at the\ninstance of a demagogue was yet to be obeyed because it had been so\ntaught by wise men who knew the good old customs, nor that Demos\nchafing under some item of a class-possessed tradition was bound by\nit as something to which all citizens had agreed. The exigencies of\nthe social order called for a distinction between [Greek: nomos] and\n[Greek: ta nomizomena]--between law and rules of law. The Minos, which\nif not actually a dialogue of Plato's seems clearly Platonic and very\nclose to Plato in time, is taken up with this distinction and gives\nus a clue to the juristic problems of the time.\n\nAnother example may be seen in Aristotle's well-known discussion in\nthe Nicomachean Ethics. It is significant that Greek thinkers always\ncouple custom and enactment; things which today we contrast. These\nwere the formal bases of legal authority. So Aristotle considers, not\nnatural _law_ and positive _law_, but what is just in itself--just by\nnature or just in its idea--and what derives its sole title to be just\nfrom convention or enactment. The latter, he says, can be just only\nwith respect to those things which by nature are indifferent. Thus\nwhen a newly reconstituted city took a living Spartan general for its\neponymus, no one was bound by nature to sacrifice to Brasidas as to an\nancestor, but he was bound by enactment and after all the matter was\none of convention, which, in a society framed on the model of an\norganized kindred, required that the citizens have a common heroic\nancestor, and was morally indifferent. The distinction was handed\ndown to modern legal science by Thomas Aquinas, was embodied in\nAnglo-American legal thought by Blackstone, and has become staple.\nBut it is quite out of its setting as a doctrine of _mala prohibita_\nand _mala in se_. An example of the distinction between law and\nrules of law has become the basis of an arbitrary line between the\ntraditionally anti-social, penalized by the common law, and recently\npenalized infringements of newly or partially recognized social\ninterests. Although the discrimination between what is just and right\nby nature and what is just because of custom or enactment has had a\nlong and fruitful history in philosophical jurisprudence and is still\na force in the administration of justice, I suspect that the permanent\ncontribution of Greek philosophy of law is to be found rather in the\ndistinction between law and rules of law, which lies behind it and has\nsignificance for all stages of legal development.\n\nRoman lawyers came in contact with philosophy in the transition from\nthe strict law to the stage of equity and natural law, and the contact\nhad much to do with enabling them to make the transition. From a\npurely legal standpoint Greek law was in the stage of primitive law.\nLaw and morals were still largely undifferentiated. Hence Greek\nphilosophical thinking of a stage of undifferentiated law and morals\nlent itself to the identification of the legal and the moral in\njuristic thinking which was characteristic of the classical Roman law.\nBut the strict law obviously was indifferent to morals and in many\nvital points was quite at variance with the moral ideas of the time.\nThe Greek distinction of just by nature and just by convention or\nenactment was suggested at once by such a situation. Moreover the\nforms of law at the end of the Republic and at the beginning of the\nEmpire invited a theory of law as something composite, made up of more\nthan one type of precept and resting immediately on more than one\nbasis of authority.\n\nCicero enumerates seven forms of law. Three of these are not heard of\nthereafter in Roman juristic writing. Evidently already in Cicero's\ntime they belonged to the past and had ceased to be effective forms of\nthe actual law. The four remaining, namely, statutes, resolutions of\nthe senate, edicts of the magistrates, and the authority of those\nlearned in the law, come to three--legislation, administrative edicts,\nand juristic reasoning on the basis of the legal tradition. And these\ncorrespond to the three elements which made up the law. First, there\nwas the _ius ciuile_: the Twelve Tables, subsequent legislation,\ninterpretation of both, and the traditional law of the city. Second,\nthere was the mass of rules, in form largely procedural, which was\ncontained in the edicts. The growing point of the law had been here\nand to some extent growth was still going on through this means.\nIndeed this part of the law reached its final form under Hadrian.\nThird, there were the writings of the jurisconsults. The growing point\nof the law had begun to be here and this was the most important form\nof law in the classical period from Augustus to the third century.\nThis part of the law got its final form in the Digest of Justinian.\nOf the three elements, the first was thought of originally as declared\nand published custom. Later it was thought of as resting on the\nauthority of the state. It was obviously local and peculiar to Rome.\nIn form it rested on the legislative power of the Roman people,\nsupplemented by a mere interpretation of the legislative command with\nonly the authority of customary acceptance. In Greek phrase it rested\non convention and enactment. The second purported to be the rules\nobserved by civilized peoples, and on points of commercial law may\nwell have been an approximation thereto. Apart from this, however,\naccording to ancient ideas of personal law, the rules which obtained\namong civilized peoples were eminently a proper law to apply between\ncitizen and non-citizen. In Greek phrase it was law by convention.\nThe basis of the third was simply reason. The jurisconsult had no\nlegislative power and no _imperium_. The authority of his _responsum_,\nas soon as law ceased to be a class tradition, was to be found in its\nintrinsic reasonableness; in the appeal which it made to the reason\nand sense of justice of the _iudex_. In Greek phrase, if it was law,\nit was law by nature.\n\nAs the rise of professional lawyers, the shifting of the growing point\nof law to juristic writing and the transition from the law of a city\nto a law of the world called for a legal science, there was need of a\ntheory of what law was that could give a rational account of the\nthreefold body of rules in point of origin and authority, which were\nactually in operation, and would at the same time enable the jurists\nto shape the existing body of legal precepts by reason so as to make\nit possible for them to serve as law for the whole world. The\nperennial problem of preserving stability and admitting of change was\npresented in an acute form. Above all the period from Augustus to the\nsecond quarter of the third century was one of growth. But it was\nrevolutionary only if we compare the law at the end of the period with\nthe law of the generation before Cicero. The jurisconsults were\npractical lawyers and the paramount interest in the general security\nwas ever before their eyes. While as an ideal they identified law with\nmorals, they did not cease to observe the strict law where it was\napplicable nor to develop its precepts by analogy according to the\nknown traditional technique when new phases of old questions came\nbefore them. Hence what to the Greeks was a distinction between right\nby nature and right by convention or enactment became to them a\ndistinction between law by nature and law by custom or legislation.\nThe Latin equivalent of [Greek: to dikaion] (the right or the just)\nbecame their word for law. They said _ius_ where Cicero said _lex_.\nAnd this convenient ambiguity, lending itself to identification of\nwhat ought to be and what is, gave a scientific foundation for the\nbelief of the jurisconsults that when and where they were not bound by\npositive law they had but to expound the reason and justice of the\nthing in order to lay down the law.\n\nIt must be borne in mind that \"nature\" did not mean to antiquity what\nit means to us who are under the influence of the idea of evolution.\nTo the Greek, it has been said, the natural apple was not the wild one\nfrom which our cultivated apple has been grown, but rather the golden\napple of the Hesperides. The \"natural\" object was that which\nexpressed most completely the idea of the thing. It was the perfect\nobject. Hence the natural law was that which expressed perfectly the\nidea of law and a rule of natural law was one which expressed\nperfectly the idea of law applied to the subject in question; the one\nwhich gave to that subject its perfect development. For legal purposes\nreality was to be found in this ideal, perfect, natural law, and its\norgan was juristic reason. Legislation and the edict, so far as they\nhad any more than a positive foundation of political authority, were\nbut imperfect and ephemeral copies of this jural reality. Thus the\njurists came to the doctrine of the _ratio legis_, the principle of\nnatural law behind the legal rule, which has been so fruitful both of\npractical good and of theoretical confusion in interpretation. Thus\nalso they came to the doctrine of reasoning from the analogy of all\nlegal rules, whether traditional or legislative, since all, so far as\nthey had jural reality, had it because and to the extent that they\nembodied or realized a principle of natural law.\n\nNatural law was a philosophical theory for a period of growth. It\narose to meet the exigencies of the stage of equity and natural law,\none of the great creative periods of legal history. Yet, as we have\nseen, even the most rapid growth does not permit the lawyer to ignore\nthe demand for stability. The theory of natural law was worked out as\na means of growth, as a means of making a law of the world on the\nbasis of the old strict law of the Roman city. But it was worked out\nalso as a means of directing and organizing the growth of law so as to\nmaintain the general security. It was the task of the jurists to build\nand shape the law on the basis of the old local materials so as to\nmake it an instrument for satisfying the wants of a whole world while\nat the same time insuring uniformity and predicability. They did this\nby applying a new but known technique to the old materials. The\ntechnique was one of legal reason; but it was a legal reason\nidentified with natural reason and worked out and applied under the\ninfluence of a philosophical ideal. The conception of natural law as\nsomething of which all positive law was but declaratory, as something\nby which actual rules were to be measured, to which so far as possible\nthey were to be made to conform, by which new rules were to be framed\nand by which old rules were to be extended or restricted in their\napplication, was a powerful instrument in the hands of the jurists and\nenabled them to proceed in their task of legal construction with\nassured confidence.\n\nBut the juristic empiricism by which the _ius ciuile_ was made into a\nlaw of the world needed something more than a theoretical incentive.\nIt was a process of analogical development by extension here and\nrestriction there, of generalization, first in the form of maxims and\nlater by laying down broad principles, and of cautious striking out of\nnew paths, giving them course and direction by trial and error. It was\na process very like that by which Anglo-American judicial empiricism\nhas been able to make a law of the world on the basis of the legal\nprecepts of seventeenth-century England. Such a process required\nsomething to give direction to juristic reasoning, to give definite\ncontent to the ideal, to provide a reasonably defined channel for\njuristic thought. This need was met by the philosophical theory of the\nnature of things and of the law of nature as conformity thereto. In\npractice jurist-made and judge-made law have been molded consciously,\nor unconsciously, by ideas as to what law is for; by theories as to\nthe end of law. In the beginnings of law men had no more ambitious\nconception than a peaceable ordering of society at any cost. But the\nGreeks soon got a better conception of an orderly and peaceable\nmaintaining of the social _status quo_. When the theory of natural law\nis applied to that conception, we get the notion of an ideal form of\nthe social _status quo_--a form which expresses its nature, a perfect\nform of the social organization of a given civilization--as that which\nthe legal order is to further and maintain. Thus judge and jurist\nobtain a guide which has served them well ever since. They are to\nmeasure all situations by an idealized form of the social order of the\ntime and place and are so to shape the law as to make it maintain and\nfurther this ideal of the social _status quo_. We shall meet this idea\nin various forms throughout the subsequent history of the philosophy\nof law. It constitutes the permanent contribution of Rome to legal\nphilosophy.\n\nAs soon as scientific legal development begins in the Middle Ages the\nlaw once more comes in contact with philosophy through the study of\nboth in the universities. What was the need of the time which\nphilosophy was called upon to satisfy? Following an era of anarchy and\ndisunion and violence men desired order and organization and peace.\nThey called for a philosophy that would bolster up authority and\nrationalize their desire to impose a legal yoke upon society. The\nperiod was one of transition from the primitive law of the Germanic\npeoples to a strict law, through reception of Roman law as\nauthoritative legislation or through compilation of the Germanic\ncustomary law more or less after the Roman model, as in the north of\nFrance, or through declaration of the customary law in reported\ndecisions of strong central courts, as in England. Thus it soon became\na period of strict law. Scholastic philosophy, with its reliance upon\ndialectic development of authoritatively given premises, its faith in\nformal logic and its central problem of putting reason as a foundation\nunder authority, responded exactly to these demands. It is no misnomer\nto style the commentators or post-glossators of the fourteenth and\nfifteenth centuries the \"scholastic jurists.\" For it was in large part\nthe philosophy that met the needs of the time so completely which\nenabled them to put the Roman law of Justinian in a form to be\nreceived and administered in the Europe of nine centuries later. While\nthey made the gloss into law in place of the text and made many things\nover, as they had to be made over if they were to fit a wholly\ndifferent social order, the method of dialectical development of\nabsolute and unquestioned premises made it appear that nothing had\nbeen done but to develop the logical implications of an authoritative\ntext. Men could receive the law of Bartolus so long as they believed\nit but the logical unfolding of the pre-existing content of the\nbinding legislation of Justinian. It is interesting to note in\nFortescue an application of this to the rules of the common law in its\nstage of strict law. He assumes that these rules are the principles of\nwhich he reads in the commentators on Aristotle and that they may be\ncompared to the axioms of the geometrician. The time had not yet come\nto call rules or principles or axioms in question. The need was to\nrationalize men's desire to be governed by fixed rules and to\nreconcile, in appearance at least, the change and growth which are\ninevitable in all law with the need men felt of having a fixed,\nunchangeable, authoritative rule. The scholastic philosophy did\nnotable service in these respects and, I venture to think, left as a\npermanent contribution to legal science the method of insuring\ncertainty by logical development of the content of authoritatively\ndefined conceptions.\n\nOn the breakdown of the feudal social organization, the rise of\ncommerce and the era of discovery, colonization and exploitation of\nthe natural resources of new continents, together with the rise of\nnations in place of loose congeries of vassal-held territories, called\nfor a national law unified within the national domain. Starkey\nproposed codification to Henry VIII and Dumoulin urged harmonizing and\nunifying of French customary law with eventual codification. The\nProtestant jurist-theologians of the sixteenth century found a\nphilosophical basis for satisfying these desires of the time in the\ndivinely ordained state and in a natural law divorced from theology\nand resting solely upon reason, reflecting the boundless faith in\nreason which came in with the Renaissance. Thus each national jurist\nmight work out his own interpretation of natural law by dint of his\nown reason, as each Christian might interpret the word of God for\nhimself as his own reason and conscience showed the way. On the other\nhand, the Catholic jurists of the Counter-Reformation found a\nphilosophical basis for satisfying these same desires in a conception\nof natural law as a system of limitations on human action expressing\nthe nature of man, that is, the ideal of man as a rational creature,\nand of positive law as an ideal system expressing the nature of a\nunified state. For the moment these ideas were put at the service of a\ngrowing royal authority and bore fruit in the Byzantine theory of\nsovereignty which became classical in public law. In private law they\nsoon took quite another turn. For a new period of growth, demanded by\nthe expansion of society and the breaking over the bonds of authority,\nwas at hand to make new and wholly different demands upon philosophy.\n\nGlossators and commentators had made or shaped the law out of Roman\nmaterials for a static, locally self-sufficient, other-worldly\nsociety, revering authority because authority had saved it from what\nit feared, regarding chiefly the security of social institutions and\nnegligent of the individual life because in its polity the individual\nlived his highest life in the life of another whose greatness was the\ngreatness of those who served him. In the seventeenth and eighteenth\ncenturies jurists were required to make or shape a law out of these\nmedievalized Roman materials to satisfy the wants of an active and\nshifting, locally interdependent, this-worldly society, impatient of\nauthority because authority stood in the way of what it desired, and\njealously individualist, since it took free individual self-assertion\nto be the highest good. In England the strict law made for feudal\nEngland out of Germanic materials, sometimes superficially Romanized,\nwas likewise to be made over to do the work of administering justice\nto a new world. A period of legal development resulted which is\nstrikingly analogous to the classical period of Roman law. Once more\nphilosophy took the helm. Once more there was an infusion into law of\nideas from without the law. Once more law and morals were identified\nin juristic thinking. Once more men held as a living tenet that all\npositive law was declaratory of natural law and got its real authority\nfrom the rules of natural law which it declared. Once more juridical\nidealism led the jurist to survey every corner of the actual law,\nmeasuring its rules by reason and shaping, extending, restricting or\nbuilding anew in order that the actual legal edifice might be a\nfaithful copy of the ideal.\n\nBut the theory of natural law, devised for a society organized on the\nbasis of kinship and developed for a society organized on the basis of\nrelations, did not suffice for a society which conceived of itself as\nan aggregate of individuals and was reorganizing on the basis of\ncompetitive self-assertion. Again the convenient ambiguity of _ius_,\nwhich could mean not only right and law but \"a right,\" was pressed\ninto service and _ius naturale_ gave us natural rights. The ultimate\nthing was not natural law as before, not merely principles of eternal\nvalidity, but natural rights, certain qualities inherent in man and\ndemonstrated by reason, which natural law exists to secure and to\nwhich positive law ought to give effect. Later these natural rights\ncame to be the bane of juristic thinking. Yet they achieved great\nthings in their day. Under the influence of this theory jurists worked\nout a scheme of \"legal rights\" that effectively secures almost the\nwhole field of individual interests of personality and individual\ninterests of substance. It put a scientific foundation under the\nmedieval scheme of the claims and duties involved in the relation of\nking to tenants in chief, out of which the judges had developed the\nimmemorial rights of Englishmen, and enabled the common-law rights of\nEnglishmen to become the natural rights of man, intrenched as such in\nour bills of rights. Thus it served as a needed check upon the\nexuberance of growth stimulated by the theory of natural law. It kept\na certain needed rigidity in a time when law threatened to become\nwholly fluid. And this steadying influence was strengthened from\nanother quarter. The Roman jurisconsult was teacher, philosopher and\npractitioner in one. As a lawyer he had the exigencies of the general\nsecurity ever before him in that he felt the imperative need of being\nable to advise with assurance what tribunals would do on a given state\nof facts. The seventeenth- and eighteenth-century jurists were chiefly\nteachers and philosophers. Happily they had been trained to accept\nthe Roman law as something of paramount authority and so were able to\ngive natural law a content by assuming its identity with an ideal form\nof the law which they knew and in which they had been trained. As the\nRoman jurisconsult built in the image of the old law of the city, they\nbuilt on idealized Roman lines. If Roman law could no longer claim to\nbe embodied authority, they assumed that, corrected in its details by\na juristic-philosophical critique, it was embodied reason.\n\nBoth of these ideas, natural rights and an ideal form of the actual\nlaw of the time and place as the jural order of nature, were handed\ndown to and put to new uses in the nineteenth century. In the growing\nlaw of the seventeenth and eighteenth centuries they were but guides\nto lead growth into definite channels and insure continuity and\npermanence in the development of rules and doctrines. Whether natural\nrights were conceived as qualities of the natural man or as deductions\nfrom a compact which expressed the nature of man, the point was, not\nthat the jurist should keep his hands off lest by devising some new\nprecept or in reshaping some old doctrine he infringe a fundamental\nright, but that he should use his hand freely and skilfully to shape\nrules and doctrines and institutions that they might be instruments of\nachieving the ideal of human existence in a \"state of nature.\" For the\nstate of nature, let us remember, was a state which expressed the\nideal of man as a rational creature. If a reaction from the formal\nover-refinement of the eighteenth century came to identify this with\na primitive simplicity, in juristic hands it was the simplicity of a\nrational ideal in place of the cumbrous complexity of legal systems\nwhich had become fixed in their ideas in the stage of the strict\nlaw. Thus Pothier, discussing the Roman categories of contract and\nrejecting them for the \"natural\" principle that man, as a moral\ncreature, should keep his engagements, declares that the complex and\narbitrary system of Roman law, made up of successive additions at\ndifferent times to a narrow primitive stock of legally enforceable\npromises, is not adhered to because it is \"remote from simplicity.\"\nAgain the ideal form of the actual law, which gave content to\nnatural law, was not an ideal form of historically found principles,\nconstraining development for all time within historically fixed\nbounds, as in the nineteenth century, but an ideal form of the _ratio\nlegis_--of the reason behind the rule or doctrine or institution\nwhereby it expressed the nature of the rational human being guided\nonly by reason and conscience in his relations with similar beings\nsimilarly guided. Attempts to fix the immutable part of law, to lay\nout legal charts for all time, belong to the transition to the\nmaturity of law. The eighteenth-century projects for codification and\nthe era of codification on the Continent, in which the results of two\ncenturies of growth were put in systematic form to serve as the basis\nof a juristic new start, in form rested upon the theory of natural\nlaw. By a sheer effort of reason the jurist could work out a complete\nsystem of deductions from the nature of man and formulate them in a\nperfect code. Go to, let him do so! This was not the mode of thought\nof a period of growth but rather of one when growth had been achieved\nand the philosophical theory of a law of nature was called upon for a\nnew kind of service.\n\nAt the end of the eighteenth century Lord Kenyon had determined that\n\"Mansfield's innovations\" were not to go on. Indeed some of them were\nto be undone. Equity was soon to be systematized by Lord Eldon and to\nbecome \"almost as fixed and settled\" as the law itself. The absorption\nof the law merchant was complete in its main lines although in details\nit went on for two decades. Moreover the legislative reform movement\nwhich followed only carried into detail the ideas which had come into\nthe law in the two preceding centuries. For a time the law was\nassimilating what had been taken up during the period of growth and\nthe task of the jurist was one of ordering, harmonizing and\nsystematizing rather than of creating. Likewise law had been codifying\non the Continent. Down to the end of the nineteenth century the codes,\nwhatever their date, in reality speak from the end of the eighteenth\ncentury and with few exceptions are all but copies of the French code\nof 1804. Where there were no codes, the hegemony of the historical\nschool led to a movement back to the law of Justinian which would have\nundone much of the progress of the last centuries. The energies of\njurists were turned for a time to analysis, classification and system\nas their sole task. Where codes obtained, analytical development and\ndogmatic exposition of the text, as a complete and final statement of\nthe law, was to occupy jurists exclusively for the next hundred years.\nWe may well think of this time, as it thought of itself, as a period\nof maturity of law. The law was taken to be complete and\nself-sufficient, without antinomies and without gaps, wanting only\narrangement, logical development of the implications of its several\nrules and conceptions, and systematic exposition of its several parts.\nLegislation might be needed on occasion in order to get rid of\narchaisms which had survived the purgation of the two prior centuries.\nFor the rest, history and analysis, bringing out the idea behind the\ncourse of development of legal doctrines and unfolding their logical\nconsequences, were all the apparatus which the jurist required. He\nsoon affected to ignore philosophy and often relegated it to the\nscience of legislation, where within narrow limits it might still be\npossible to think of creating.\n\nYet the nineteenth century was no more able to get on without\nphilosophy of law than were its predecessors. In place of one\nuniversally recognized philosophical method we find four well-marked\ntypes. But they all come to the same final results, are marked by the\nsame spirit and put the same shackles upon juristic activity. They are\nall modes of rationalizing the juristic desires of the time, growing\nout of the pressure of the interest in the general security by way of\nreaction from a period of growth and in the security of acquisitions\nand security of transactions in a time of economic expansion and\nindustrial enterprise.\n\nIn the United States, since the natural law of the eighteenth-century\npublicists had become classical, we relied largely upon an American\nvariant of natural law. It was not that natural law expressed the\nnature of man. Rather it expressed the nature of government. One form\nof this variant was due to our doctrine that the common law of England\nwas in force only so far as applicable to our conditions and our\ninstitutions. The attempt to put this doctrine philosophically regards\nan ideal form of the received common law as natural law and takes\nnatural law to be a body of deductions from or implications of\nAmerican institutions or the nature of our polity. But yesterday the\nSupreme Court of one of our states laid down dogmatically that\nprimogeniture in estates tail (which by the way is still possible in\none of the oldest of the original states) could not co-exist with \"the\naxioms of the constitution\" which guarantees to each state a\nrepublican form of government. More generally, however, the American\nvariant of natural law grew out of an attempt at philosophical\nstatement of the power of our courts with respect to unconstitutional\nlegislation. The constitution was declaratory of principles of natural\nconstitutional law which were to be deduced from the nature of free\ngovernment. Hence constitutional questions were always only in terms\nquestions of constitutional interpretation. They were questions of the\nmeaning of the document, as such, only in form. In substance they were\nquestions of a general constitutional law which transcended the text;\nof whether the enactment before the court conformed to principles of\nnatural law \"running back of all constitutions\" and inherent in the\nvery idea of a government of limited powers set up by a free people.\nNow that courts with few exceptions have given over this mode of\nthinking and the highest court in the land has come to apply the\nlimitations of the fifth and fourteenth amendments as legal standards,\nthere are some who say that we no longer have a constitutional law.\nFor how can there be law unless as a body of rules declaring a natural\nlaw which is above all human enactment? The interpretation of a\nwritten instrument, no matter by whom enacted, may be governed by\nlaw, indeed, but can yield no law. Such ideas die hard. In the\nlanguage of the eighteenth century, our courts sought to make our\npositive law, and in particular our legislation, express the nature of\nAmerican political institutions; they sought so to shape it and\nrestrain it as to make it give effect to an ideal of our polity.\n\nLater in the nineteenth century natural law as a deduction from\nAmerican institutions or from \"free government\" gave way to a\nmetaphysical-historical theory worked out in Continental Europe.\nNatural rights were deductions from a fundamental metaphysically\ndemonstrable datum of individual free will, and natural law was an\nideal critique of positive law whereby to secure these rights in their\nintegrity. History showed us the idea of individual liberty realizing\nitself in legal institutions and rules and doctrines; jurisprudence\ndeveloped this idea into its logical consequences and gave us a\ncritique of law whereby we might be delivered from futile attempts to\nset up legal precepts beyond the necessary minimum for insuring the\nharmonious co-existence of the individual and his fellows. This mode\nof thought was well suited to a conception of law as standing between\nthe abstract individual and society and protecting the natural rights\nof the former against the latter, which American law had derived from\nthe seventeenth-century contests in England between courts and crown.\nIt was easy to generalize this as a contest between the individual and\nsociety, and it became more easy to do so when the common-law rights\nof Englishmen secured by common-law courts against the crown had\nbecome the natural rights of man secured to individual men as against\nthe state by the bills of rights.\n\nOthers in England and America turned to a utilitarian-analytical\ntheory. The legislator was to be guided by a principle of utility.\nThat which made for the greatest total of individual happiness was to\nbe the lawmaker's standard. The jurist was to find universal\nprinciples by analysis of the actual law. He had nothing to do with\ncreative activity. His work was to be that of orderly logical\ndevelopment of the principles reached by analysis of what he found\nalready given in the law and improvement of the form of the law by\nsystem and logical reconciliation of details. As it was assumed that\nthe maximum of abstract individual free self-assertion was the maximum\nof human happiness, in the result the legislator was to be busied with\nformal improvement of the law and rendering it, as Bentham put it,\nmore \"cognoscible,\" while the jurist was exercising a like restricted\nfunction so far as he could work with materials afforded exclusively\nby the law itself. Not unnaturally metaphysical and historical and\nanalytical jurists, at the end of the century, were quite willing to\nsay that their several methods were not exclusive but were\ncomplementary.\n\nToward the end of the last century a positivist sociological thinking\ntended to supersede the metaphysical-historical and the\nutilitarian-analytical. All phenomena were determined by inexorable\nnatural laws to be discovered by observation. Moral and social and\nhence legal phenomena were governed by laws as completely beyond the\npower of conscious human control as the movements of the planets. We\nmight discover these laws by observation of social phenomena and might\nlearn to submit to them intelligently instead of rashly or ignorantly\ndefying them. But we could hope to do no more. Except as he could\nlearn to plot some part of the inevitable curve of legal development\nand save us from futile flyings in the face of the laws by which legal\nevolution was inevitably governed, the jurist was powerless. Many\ncombined this mode of thought with or grafted it on the\nmetaphysical-historical theory and fought valiantly against the social\nlegislation of the last decade of the nineteenth century and the first\ndecade of the present century with this reinforced juristic pessimism\nas a base. Superficially it appeared that the Greek idea of the\nnaturally just, which in its Roman form of natural law and its\neighteenth-century form of natural rights had made for a creative\nlegal science as long as such a science had existed, had at length\nexhausted its possibilities.\n\nToday, however, we hear of a revival of natural law. Philosophy of law\nis raising its head throughout the world. We are asked to measure\nrules and doctrines and institutions and to guide the application of\nlaw by reference to the end of law and to think of them in terms of\nsocial utility. We are invited to subsume questions of law and of the\napplication of law under the social ideal of the time and place. We\nare called upon to formulate the jural postulates of the civilization\nof the time and place and to measure law and the application of law\nthereby in order that law may further civilization and that the legal\nmaterials handed down with the civilization of the past may be made an\ninstrument of maintaining and furthering the civilization of the\npresent. We are told that observation shows us social interdependence\nthrough similarity of interest and through division of labor as the\ncentral fact in human existence and are told to measure law and the\napplication of law functionally by the extent to which they further\nor interfere with this interdependence. For the era of legal\nself-sufficiency is past. The work of assimilating what had been\nreceived into the law from without during the period of equity and\nnatural law has been done. The possibilities of analytical and\nhistorical development of the classical materials have been\nsubstantially exhausted. While jurists have been at these tasks, a new\nsocial order has been building which makes new demands and presses\nupon the legal order with a multitude of unsatisfied desires. Once\nmore we must build rather than merely improve; we must create rather\nthan merely order and systematize and logically reconcile details. One\nhas but to compare the law of today on such subjects as torts, or\npublic utilities or administrative law with the law of a generation\nago to see that we are in a new stage of transition; to see that the\njuristic pessimism of the immediate past, which arose to save us from\ntaking in more from without while what had been taken already remained\nundigested, will serve no longer; and to see that the jurist of\ntomorrow will stand in need of some new philosophical theory of law,\nwill call for some new philosophical conception of the end of law and\nat the same time will want some new steadying philosophical conception\nto safeguard the general security, in order to make the law which we\nhand down to him achieve justice in his time and place.\n\n\n\n\nII\n\nThe End of Law\n\n\nMaking or finding law, call it which you will, presupposes a mental\npicture of what one is doing and of why he is doing it. Hence the\nnature of law has been the chief battleground of jurisprudence since\nthe Greek philosophers began to argue as to the basis of the law's\nauthority. But the end of law has been debated more in politics than\nin jurisprudence. In the stage of equity and natural law the\nprevailing theory of the nature of law seemed to answer the question\nas to its end. In the maturity of law the law was thought of as\nsomething self-sufficient, to be judged by an ideal form of itself,\nand as something which could not be made, or, if it could be made, was\nto be made sparingly. The idea of natural rights seemed to explain\nincidentally what law was for and to show that there ought to be as\nlittle of it as possible, since it was a restraint upon liberty and\neven the least of such restraint demanded affirmative justification.\nThus, apart from mere systematic and formal improvement, the theory of\nlawmaking in the maturity of law was negative. It told us chiefly how\nwe should not legislate and upon what subjects we should refrain from\nlawmaking. Having no positive theory of creative lawmaking, the last\ncentury was little conscious of requiring or holding a theory as to\nthe end of law. But in fact it held such a theory and held it\nstrongly.\n\nAs ideas of what law is for are so largely implicit in ideas of what\nlaw is, a brief survey of ideas of the nature of law from this\nstandpoint will be useful. No less than twelve conceptions of what law\nis may be distinguished.\n\nFirst, we may put the idea of a divinely ordained rule or set of rules\nfor human action, as for example, the Mosaic law, or Hammurapi's code,\nhanded him ready-made by the sun god, or Manu, dictated to the sages\nby Manu's son Bhrigu in Manu's presence and by his direction.\n\nSecond, there is an idea of law as a tradition of the old customs\nwhich have proved acceptable to the gods and hence point the way in\nwhich man may walk with safety. For primitive man, surrounded by what\nseem vengeful and capricious powers of nature, is in continual fear of\ngiving offence to these powers and thus bringing down their wrath upon\nhimself and his fellows. The general security requires that men do\nonly those things and do them only in the way which long custom has\nshown at least not displeasing to the gods. Law is the traditional or\nrecorded body of precepts in which that custom is preserved and\nexpressed. Whenever we find a body of primitive law possessed as a\nclass tradition by a political oligarchy it is likely to be thought of\nin this way just as a body of like tradition in the custody of a\npriesthood is certain to be thought of as divinely revealed.\n\nA third and closely related idea conceives of law as the recorded\nwisdom of the wise men of old who had learned the safe course or the\ndivinely approved course for human conduct. When a traditional custom\nof decision and custom of action has been reduced to writing in a\nprimitive code it is likely to be thought of in this way, and\nDemosthenes in the fourth century B. C. could describe the law of\nAthens in these terms.\n\nFourth, law may be conceived as a philosophically discovered system of\nprinciples which express the nature of things, to which, therefore,\nman ought to conform his conduct. Such was the idea of the Roman\njurisconsult, grafted, it is true, on the second and third ideas and\non a political theory of law as the command of the Roman people, but\nreconciled with them by conceiving of tradition and recorded wisdom\nand command of the people as mere declarations or reflections of the\nphilosophically ascertained principles, to be measured and shaped and\ninterpreted and eked out thereby. In the hands of philosophers the\nforegoing conception often takes another form so that, fifth, law is\nlooked upon as a body of ascertainments and declarations of an eternal\nand immutable moral code.\n\nSixth, there is an idea of law as a body of agreements of men in\npolitically organized society as to their relations with each other.\nThis is a democratic version of the identification of law with rules\nof law and hence with the enactments and decrees of the city-state\nwhich is discussed in the Platonic Minos. Not unnaturally Demosthenes\nsuggests it to an Athenian jury. Very likely in such a theory a\nphilosophical idea would support the political idea and the inherent\nmoral obligation of a promise would be invoked to show why men should\nkeep the agreements made in their popular assemblies.\n\nSeventh, law has been thought of as a reflection of the divine reason\ngoverning the universe; a reflection of that part which determines the\n\"ought\" addressed by that reason to human beings as moral entities, in\ndistinction from the \"must\" which it addresses to the rest of\ncreation. Such was the conception of Thomas Aquinas, which had great\ncurrency down to the seventeenth century and has had much influence\never since.\n\nEighth, law has been conceived as a body of commands of the sovereign\nauthority in a politically organized society as to how men should\nconduct themselves therein, resting ultimately on whatever basis was\nheld to be behind the authority of that sovereign. So thought the\nRoman jurists of the Republic and of the classical period with respect\nto positive law. And as the emperor had the sovereignty of the Roman\npeople devolved upon him, the Institutes of Justinian could lay down\nthat the will of the emperor had the force of a law. Such a mode of\nthought was congenial to the lawyers who were active in support of\nroyal authority in the centralizing French monarchy of the sixteenth\nand seventeenth centuries and through them passed into public law. It\nseemed to fit the circumstances of parliamentary supremacy in England\nafter 1688, and became the orthodox English juristic theory. Also it\ncould be made to fit a political theory of popular sovereignty in\nwhich the people were thought of as succeeding to the sovereignty of\nparliament at the American Revolution or of the French king at the\nFrench Revolution.\n\nA ninth idea of law takes it to be a system of precepts discovered by\nhuman experience whereby the individual human will may realize the\nmost complete freedom possible consistently with the like freedom of\nwill of others. This idea, held in one form or another by the\nhistorical school, divided the allegiance of jurists with the theory\nof law as command of the sovereign during almost the whole of the past\ncentury. It assumed that the human experience by which legal\nprinciples were discovered was determined in some inevitable way. It\nwas not a matter of conscious human endeavor. The process was\ndetermined by the unfolding of an idea of right and justice or an idea\nof liberty which was realizing itself in human administration of\njustice, or by the operation of biological or psychological laws or of\nrace characters, whose necessary result was the system of law of the\ntime and people in question.\n\nAgain, tenth, men have thought of law as a system of principles,\ndiscovered philosophically and developed in detail by juristic writing\nand judicial decision, whereby the external life of man is measured by\nreason, or in another phase, whereby the will of the individual in\naction is harmonized with those of his fellow men. This mode of\nthought appeared in the nineteenth century after the natural-law\ntheory in the form in which it had prevailed for two centuries had\nbeen abandoned and philosophy was called upon to provide a critique\nfor systematic arrangement and development of details.\n\nEleventh, law has been thought of as a body or system of rules imposed\non men in society by the dominant class for the time being in\nfurtherance, conscious or unconscious, of its own interest. This\neconomic interpretation of law takes many forms. In an idealistic form\nit thinks of the inevitable unfolding of an economic idea. In a\nmechanical sociological form it thinks of class struggle or a struggle\nfor existence in terms of economics, and of law as the result of the\noperation of forces or laws involved in or determining such\nstruggles. In a positivist-analytical form it thinks of law as the\ncommand of the sovereign, but of that command as determined in its\neconomic content by the will of the dominant social class, determined\nin turn by its own interest. All of these forms belong to transition\nfrom the stability of the maturity of law to a new period of growth.\nWhen the idea of the self-sufficiency of law gives way and men seek to\nrelate jurisprudence to the other social sciences, the relation to\neconomics challenges attention at once. Moreover in a time of copious\nlegislation the enacted rule is easily taken as the type of legal\nprecept and an attempt to frame a theory of legislative lawmaking is\ntaken to give an account of all law.\n\nFinally, twelfth, there is an idea of law as made up of the dictates\nof economic or social laws with respect to the conduct of men in\nsociety, discovered by observation, expressed in precepts worked out\nthrough human experience of what would work and what not in the\nadministration of justice. This type of theory likewise belongs to the\nend of the nineteenth century, when men had begun to look for\nphysical or biological bases, discoverable by observation, in place of\nmetaphysical bases, discoverable by philosophical reflection. Another\nform finds some ultimate social fact by observation and develops the\nlogical implications of that fact much after the manner of the\nmetaphysical jurist. This again results from the tendency in recent\nyears to unify the social sciences and consequent attention to\nsociological theories.\n\nDigression is worth while in order to note that each of the foregoing\ntheories of law was in the first instance an attempt at a rational\nexplanation of the law of the time and place or of some striking\nelement therein. Thus, when the law has been growing through juristic\nactivity, a philosophical theory of law, as declaratory of\nphilosophically ascertainable principles, has obtained. When and where\nthe growing point of law has been in legislation, a political theory\nof law as the command of the sovereign has prevailed. When the law has\nbeen assimilating the results of a prior period of growth, a\nhistorical theory of law as something found by experience, or a\nmetaphysical theory of law as an idea of right or of liberty realizing\nin social and legal development, has tended to be dominant. For\njurists and philosophers do not make these theories as simple matters\nof logic by inexorable development of philosophical fundamentals.\nHaving something to explain or to expound, they endeavor to understand\nit and to state it rationally and in so doing work out a theory of\nwhat it is. The theory necessarily reflects the institution which it\nwas devised to rationalize, even though stated universally. It is an\nattempt to state the law, or the legal institution of the time and\nplace in universal terms. Its real utility is likely to be in its\nenabling us to understand that body of law or that institution and to\nperceive what the men of the time were seeking to do with them or to\nmake of them. Accordingly analysis of these theories is one way of\ngetting at the ends for which men have been striving through the legal\norder.\n\nWhat common elements may we find in the foregoing twelve pictures of\nwhat law is? For one thing, each shows us a picture of some ultimate\nbasis, beyond reach of the individual human will, that stands fast in\nthe whirl of change of which life is made up. This steadfast ultimate\nbasis may be thought of as the divine pleasure or will or reason,\nrevealed immediately or mediately through a divinely ordained\nimmutable moral code. It may be put in the form of some ultimate\nmetaphysical datum which is so given us that we may rest in it\nforever. It may be portrayed as certain ultimate laws which inexorably\ndetermine the phenomena of human conduct. Or it may be described in\nterms of some authoritative will for the time and place, to which the\nwills of others are subjected, that will deriving its authority\nultimately and absolutely in some one of the preceding forms, so that\nwhat it does is by and large in no wise a matter of chance. This fixed\nand stable starting point is usually the feature upon which the chief\nemphasis is placed. Next we shall find in all theories of the nature\nof law a picture of a determinate and mechanically absolute mode of\nproceeding from the fixed and absolute starting point. The details may\ncome from this starting point through divine revelation or a settled\nauthoritative tradition or record, or an inevitable and infallible\nphilosophical or logical method, or an authoritative political\nmachinery, or a scientific system of observation, or historically\nverifiable ideas which are logically demonstrable to be implications\nof the fundamental metaphysically given datum. Third, we shall see in\nthese theories a picture of a system of ordering human conduct and\nadjusting human relations resting upon the ultimate basis and derived\ntherefrom by the absolute process. In other words, they all picture,\nnot merely an ordering of human conduct and adjustment of human\nrelations, which we have actually given, but something more which we\nshould like to have, namely, a doing of these things in a fixed,\nabsolutely predetermined way, excluding all merely individual feelings\nor desires of those by whom the ordering and adjustment are carried\nout. Thus in these subconscious picturings of the end of law it seems\nto be conceived as existing to satisfy a paramount social want of\ngeneral security. Certainly the nineteenth-century jurist had this\nconception. But is this because the function of law is limited to\nsatisfaction of that one want, or is it because that want has been\nmost conspicuous among those which men have sought to satisfy through\nlaw, and because the ordering of human conduct by the force of\npolitically organized society has been adapted chiefly to satisfying\nthat one want in the social order of the past?\n\nIf we turn to the ideas which have obtained in conscious thinking\nabout the end of law, we may recognize three which have held the\nground successively in legal history and a fourth which is beginning\nto assert itself. The first and simplest idea is that law exists in\norder to keep the peace in a given society; to keep the peace at all\nevents and at any price. This is the conception of what may be called\nthe stage of primitive law. It puts satisfaction of the social want of\ngeneral security, stated in its lowest terms, as the purpose of the\nlegal order. So far as the law goes, other individual or social wants\nare ignored or are sacrificed to this one. Accordingly the law is made\nup of tariffs of exact compositions for every detailed injury instead\nof principles of exact reparation, of devices to induce or coerce\nsubmission of controversies to adjudication instead of sanctions, of\nregulation of self-help and self-redress instead of a general\nprohibition thereof, and of mechanical modes of trial which at any\nrate do not admit of argument instead of rational modes of trial\ninvolving debate and hence dispute and so tending to defeat the\npurpose of the legal order. In a society organized on the basis of\nkinship, in which the greater number of social wants were taken care\nof by the kin-organizations, there are two sources of friction: the\nclash of kin-interests, leading to controversies of one kindred with\nanother, and the kinless man, for whom no kin-organization is\nresponsible, who also has no kin-organization to stand behind him in\nasserting his claims. Peace between kindreds and peace between\nclansmen and the growing mass of non-gentile population is the\nunsatisfied social want to which politically organized society must\naddress itself. The system of organized kindreds gradually breaks\ndown. Groups of kinsmen cease to be the fundamental social units.\nKin-organization is replaced by political organization as the primary\nagency of social control. The legal unit comes to be the free citizen\nor the free man. In this transition regulation of self-redress and\nprevention of private war among those who have no strong\nclan-organizations to control them or respond for them are demanded by\nthe general security. The means of satisfying these social wants are\nfound in a legal order conceived solely in terms of keeping the peace.\n\nGreek philosophers came to conceive of the general security in broader\nterms and to think of the end of the legal order as preservation of\nthe social _status quo_. They came to think of maintaining the general\nsecurity mediately through the security of social institutions. They\nthought of law as a device to keep each man in his appointed groove in\nsociety and thus prevent friction with his fellows. The virtue on\nwhich they insisted was _sophrosyne_, knowing the limits which nature\nfixes for human conduct and keeping within them. The vice which they\ndenounced was _hybris_, wilful bondbreaking--wilful transgression of\nthe socially appointed bounds. This mode of thinking follows the\nsubstitution of the city-state political organization of society for\nthe kin-organization. The organized kindreds were still powerful. An\naristocracy of the kin-organized and kin-conscious, on the one hand,\nand a mass of those who had lost or severed their ties of kinship, or\nhad come from without, on the other hand, were in continual struggle\nfor social and political mastery. Also the politically ambitious\nindividual and the masterful aristocrat were continually threatening\nthe none too stable political organization through which the general\nsecurity got a precarious protection. The chief social want, which no\nother social institution could satisfy, was the security of social\ninstitutions generally. In the form of maintenance of the social\n_status quo_ this became the Greek and thence the Roman and medieval\nconception of the end of law.\n\nTransition from the idea of law as a device to keep the peace to the\nidea of law as a device to maintain the social _status quo_ may be\nseen in the proposition of Heraclitus, that men should fight for their\nlaws as for the walls of their city. In Plato the idea of maintaining\nthe social order through the law is fully developed. The actual social\norder was by no means what it should be. Men were to be reclassified\nand everyone assigned to the class for which he was best fitted. But\nwhen the classification and the assignment had been made the law was\nto keep him there. It was not a device to set him free that he might\nfind his own level by free competition with his fellows and free\nexperiment with his natural powers. It was a device to prevent such\ndisturbances of the social order by holding each individual to his\nappointed place. As Plato puts it, the shoemaker is to be only a\nshoemaker and not a pilot also; the farmer is to be only a farmer and\nnot a judge as well; the soldier is to be only a soldier and not a\nman of business besides; and if a universal genius who through wisdom\ncan be everything and do everything comes to the ideal city-state, he\nis to be required to move on. Aristotle puts the same idea in another\nway, asserting that justice is a condition in which each keeps within\nhis appointed sphere; that we first take account of relations of\ninequality, treating individuals according to their worth, and then\nsecondarily of relations of equality in the classes into which their\nworth requires them to be assigned. When St. Paul exhorted wives to\nobey their husbands, and servants to obey their masters, and thus\neveryone to exert himself to do his duty in the class where the social\norder had put him, he expressed this Greek conception of the end of\nlaw.\n\nRoman lawyers made the Greek philosophical conception into a juristic\ntheory. For the famous three precepts to which the law is reduced in\nJustinian's Institutes come to this: Everyone is to live honorably; he\nis to \"preserve moral worth in his own person\" by conforming to the\nconventions of the social order. Everyone is to respect the\npersonality of others; he is not to interfere with those interests and\npowers of action, conceded to others by the social order, which make\nup their legal personality. Everyone is to render to everyone else his\nown; he is to respect the acquired rights of others. The social system\nhas defined certain things as belonging to each individual. Justice is\ndefined in the Institutes as the set and constant purpose of giving\nhim these things. It consists in rendering them to him and in not\ninterfering with his having and using them within the defined limits.\nThis is a legal development of the Greek idea of harmoniously\nmaintaining the social _status quo_. The later eastern empire carried\nit to the extreme. Stability was to be secured by rigidly keeping\neveryone to his trade or calling and his descendants were to follow\nhim therein. Thus the harmony of society and the social order would\nnot be disturbed by individual ambition.\n\nIn the Middle Ages the primitive idea of law as designed only to keep\nthe peace came back with Germanic law. But the study of Roman law\npresently taught the Roman version of the Greek conception and the\nlegal order was thought of once more as an orderly maintenance of the\nsocial _status quo_. This conception answered to the needs of medieval\nsociety, in which men had found relief from anarchy and violence in\nrelations of service and protection and a social organization which\nclassified men in terms of such relations and required them to be held\nto their functions as so determined. Where the Greeks thought of a\nstationary society corrected from time to time with reference to its\nnature or ideal, the Middle Ages thought of a stationary society\nresting upon authority and determined by custom or tradition. To each,\nlaw was a system of precepts existing to maintain this stationary\nsociety as it was.\n\nIn the feudal social order reciprocal duties involved in relations\nestablished by tradition and taken to rest on authority were the\nsignificant legal institutions. With the gradual disintegration of\nthis order and the growing importance of the individual in a society\nengaged in discovery, colonization and trade, to secure the claims of\nindividuals to assert themselves freely in the new fields of human\nactivity which were opening on every side became a more pressing\nsocial want than to maintain the social institutions by which the\nsystem of reciprocal duties was enforced and the relations involving\nthose duties were preserved. Men did not so much desire that others\nperform for them the duties owing in some relation, as that others\nkeep hands off while they achieved what they might for themselves in a\nworld that continually afforded new opportunities to the active and\nthe daring. The demand was no longer that men be kept in their\nappointed grooves. Friction and waste were apprehended, not from men\ngetting out of these grooves, but from attempts to hold them there by\nmeans devised to meet the needs of a different social order whereby\nthey were made to chafe under arbitrary restraint and their powers\nwere not utilized in the discovery and exploitation of the resources\nof nature, to which human powers were to be devoted in the succeeding\ncenturies. Accordingly the end of law comes to be conceived as a\nmaking possible of the maximum of individual free self-assertion.\n\nTransition to the newer way of thinking may be seen in the Spanish\njurist-theologians of the sixteenth century. Their juristic theory\nwas one of natural limits of activity in the relations of individuals\nwith each other, that is, of limits to human action which expressed\nthe rational ideal of man as a moral creature and were imposed upon\nmen by reason. This theory differs significantly from the idea of\nantiquity, although it goes by the old name. The Greeks thought of\na system of limiting men's activities in order that each might be\nkept in the place for which he was best fitted by nature--the place\nin which he might realize an ideal form of his capacities--and thus\nto preserve the social order as it stands or as it shall stand\nafter a rearrangement. The sixteenth-century jurists of the\nCounter-Reformation held that men's activities were naturally limited,\nand hence that positive law might and should limit them in the\ninterest of other men's activities, because all men have freedom of\nwill and ability to direct themselves to conscious ends. Where\nAristotle thought of inequalities arising from the different worth of\nindividual men and their different capacities for the things which the\nsocial order called for, these jurists thought of a natural (i.e.,\nideal) equality, involved in the like freedom of will and the like\npower of conscious employment of one's faculties inherent in all men.\nHence law did not exist to maintain the social _status quo_ with all\nits arbitrary restraints on the will and on employment of individual\npowers; it existed rather to maintain the natural equality which often\nwas threatened or impaired by the traditional restrictions on\nindividual activity. Since this natural equality was conceived\npositively as an ideal equality in opportunity to do things, it could\neasily pass into a conception of free individual self-assertion as the\nthing sought, and of the legal order as existing to make possible the\nmaximum thereof in a world abounding in undiscovered resources,\nundeveloped lands and unharnessed natural forces. The latter idea took\nform in the seventeenth century and prevailed for two centuries\nthereafter, culminating in the juristic thought of the last\ngeneration.\n\nLaw as a securing of natural equality became law as a securing of\nnatural rights. The nature of man was expressed by certain qualities\npossessed by him as a moral, rational creature. The limitations on\nhuman activity, of which the Spanish jurist-theologians had written,\ngot their warrant from the inherent moral qualities of men which made\nit right for them to have certain things and do certain things. These\nwere their natural rights and the law existed simply to protect and\ngive effect to these rights. There was to be no restraint for any\nother purpose. Except as they were to be compelled to respect the\nrights of others, which the natural man or ideal man would do without\ncompulsion as a matter of reason, men were to be left free. In the\nnineteenth century this mode of thought takes a metaphysical turn. The\nultimate thing for juristic purposes is the individual consciousness.\nThe social problem is to reconcile conflicting free wills of conscious\nindividuals independently asserting their wills in the varying\nactivities of life. The natural equality becomes an equality in\nfreedom of will. Kant rationalized the law in these terms as a system\nof principles or universal rules, to be applied to human action,\nwhereby the free will of the actor may co-exist along with the free\nwill of everyone else. Hegel rationalized the law in these terms as a\nsystem of principles wherein and whereby the idea of liberty was\nrealizing in human experience. Bentham rationalized it as a body of\nrules, laid down and enforced by the state's authority, whereby the\nmaximum of happiness, conceived in terms of free self-assertion, was\nsecured to each individual. Its end was to make possible the maximum\nof free individual action consistent with general free individual\naction. Spencer rationalized it as a body of rules, formulating the\n\"government of the living by the dead,\" whereby men sought to promote\nthe liberty of each limited only by the like liberty of all. In any\nof these ways of putting it, the end of law is to secure the greatest\npossible general individual self-assertion; to let men do freely\neverything they may consistently with a like free doing of everything\nthey may by their fellow men. This is indeed a philosophy of law for\ndiscoverers and colonizers and pioneers and traders and entrepreneurs\nand captains of industry. Until the world became crowded, it served\nwell to eliminate friction and to promote the widest discovery and\nutilization of the natural resources of human existence.\n\nLooking back at the history of this conception, which has governed\ntheories of the end of law for more than two hundred years, we may\nnote that it has been put to three uses. It has been used as a means\nof clearing away the restraints upon free economic activity which\naccumulated during the Middle Ages as incidents of the system of\nrelational duties and as expressions of the idea of holding men to\ntheir place in a static social order. This negative side played an\nimportant part in the English legislative reform movement in the last\ncentury. The English utilitarians insisted upon removal of all\nrestrictions upon individual free action beyond those necessary for\nsecuring like freedom on the part of others. This, they said, was the\nend of legislation. Again it has been used as a constructive idea, as\nin the seventeenth and eighteenth centuries, when a commercial law\nwhich gave effect to what men did as they willed it, which looked at\nintention and not at form, which interpreted the general security in\nterms of the security of transactions and sought to effectuate the\nwill of individuals to bring about legal results, was developed out of\nRoman law and the custom of merchants through juristic theories of\nnatural law. Finally it was used as a stabilizing idea, as in the\nlatter part of the nineteenth century, when men proved that law was an\nevil, even if a necessary evil, that there should be as little law\nmade as possible, since all law involved restraint upon free exertion\nof the will, and hence that jurist and legislator should be content to\nleave things legal as they are and allow the individual \"to work out\nin freedom his own happiness or misery\" on that basis.\n\nWhen this last stage in the development of the idea of law as existing\nto promote or permit the maximum of free individual self-assertion had\nbeen reached, the juristic possibilities of the conception had been\nexhausted. There were no more continents to discover. Natural\nresources had been discovered and exploited and the need was for\nconservation of what remained available. The forces of nature had been\nharnessed to human use. Industrial development had reached large\nproportions, and organization and division of labor in our economic\norder had gone so far that anyone who would could no longer go forth\nfreely and do anything which a restless imagination and daring\nambition suggested to him as a means of gain. Although lawyers went on\nrepeating the old formula, the law began to move in another direction.\nThe freedom of the owner of property to do upon it whatever he liked,\nso he did not overstep his limits or endanger the public health or\nsafety, began to be restricted. Nay, the law began to make men act\naffirmatively upon their property in fashions which it dictated, where\nthe general health was endangered by non-action. The power to make\ncontracts began to be limited where industrial conditions made\nabstract freedom of contract defeat rather than advance full\nindividual human life. The power of the owner to dispose freely of his\nproperty began to be limited in order to safeguard the security of the\nsocial institutions of marriage and the family. Freedom of\nappropriating _res nullius_ and of using _res communes_ came to be\nabridged in order to conserve the natural resources of society.\nFreedom of engaging in lawful callings came to be restricted, and an\nelaborate process of education and examination to be imposed upon\nthose who would engage in them, lest there be injury to the public\nhealth, safety or morals. A regime in which anyone might freely set up\na corporation to engage in a public service, or freely compete in such\nservice, was superseded by one of legal exemption of existing public\nutilities from destructive competition. In a crowded world, whose\nresources had been exploited, a system of promoting the maximum of\nindividual self-assertion had come to produce more friction than it\nrelieved and to further rather than to eliminate waste.\n\nAt the end of the last and the beginning of the present century, a new\nway of thinking grew up. Jurists began to think in terms of human\nwants or desires rather than of human wills. They began to think that\nwhat they had to do was not simply to equalize or harmonize wills,\nbut, if not to equalize, at least to harmonize the satisfaction of\nwants. They began to weigh or balance and reconcile claims or wants or\ndesires, as formerly they had balanced or reconciled wills. They began\nto think of the end of law not as a maximum of self-assertion, but as\na maximum satisfaction of wants. Hence for a time they thought of the\nproblem of ethics, of jurisprudence, and of politics as chiefly one of\nvaluing; as a problem of finding criteria of the relative value of\ninterests. In jurisprudence and politics they saw that we must add\npractical problems of the possibility of making interests effective\nthrough governmental action, judicial or administrative. But the first\nquestion was one of the wants to be recognized--of the interests to be\nrecognized and secured. Having inventoried the wants or claims or\ninterests which are asserting and for which legal security is sought,\nwe were to value them, select those to be recognized, determine the\nlimits within which they were to be given effect in view of other\nrecognized interests, and ascertain how far we might give them effect\nby law in view of the inherent limitations upon effective legal\naction. This mode of thinking may be seen, concealed under different\nterminologies, in more than one type of jurist in the last three\ndecades.\n\nThree elements contributed to shift the basis of theories as to the\nend of law from wills to wants, from a reconciling or harmonizing of\nwills to a reconciling or harmonizing of wants. The most important\npart was played by psychology which undermined the foundation of the\nmetaphysical will-philosophy of law. Through the movement for\nunification of the social sciences, economics also played an important\npart, especially indirectly through the attempts at economic\ninterpretation of legal history, reinforcing psychology by showing the\nextent to which law had been shaped by the pressure of economic wants.\nAlso the differentiation of society, involved in industrial\norganization, was no mean factor, when classes came to exist in which\nclaims to a minimum human existence, under the standards of the given\ncivilization, became more pressing than claims to self-assertion.\nAttention was turned from the nature of law to its purpose, and a\nfunctional attitude, a tendency to measure legal rules and doctrines\nand institutions by the extent to which they further or achieve the\nends for which law exists, began to replace the older method of\njudging law by criteria drawn from itself. In this respect the thought\nof the present is more like that of the seventeenth and eighteenth\ncenturies than that of the nineteenth century. French writers have\ndescribed this phenomenon as a \"revival of juridical idealism.\" But\nin truth the social utilitarianism of today and the natural-law\nphilosophy of the seventeenth and eighteenth centuries have only this\nin common: Each has its attention fixed upon phenomena of growth; each\nseeks to direct and further conscious improvement of the law.\n\nIn its earlier form social-utilitarianism, in common with all\nnineteenth-century philosophies of law, was too absolute. Its\nteleological theory was to show us what actually and necessarily took\nplace in lawmaking rather than what we were seeking to bring about.\nIts service to the philosophy of law was in compelling us to give over\nthe ambiguous term \"right\" and to distinguish between the claims or\nwants or demands, existing independently of law, the legally\nrecognized or delimited claims or wants or demands, and the legal\ninstitutions, which broadly go by the name of legal rights, whereby\nthe claims when recognized and delimited are secured. Also it first\nmade clear how much the task of the lawmaker is one of compromise. To\nthe law-of-nature school, lawmaking was but an absolute development\nof absolute principles. A complete logical development of the content\nimplicit in each natural right would give a body of law adequate to\nevery time and place. It is true an idea of compromise did lurk behind\nthe theory of the metaphysical jurists in the nineteenth century. But\nthey sought an absolute harmonizing rather than a working compromise\nfor the time and place. Conflicting individual wills were to be\nreconciled absolutely by a formula which had ultimate and universal\nauthority. When we think of law as existing to secure social\ninterests, so far as they may be secured through an ordering of men\nand of human relations through the machinery of organized political\nsociety, it becomes apparent that we may reach a practicable system of\ncompromises of conflicting human desires here and now, by means of a\nmental picture of giving effect to as much as we can, without\nbelieving that we have a perfect solution for all time and for every\nplace. As the Neo-Kantians put it, we may formulate the social ideal\nof the time and place and try juristic problems thereby without\nbelieving ourselves competent to lay out a social and political and\nlegal chart for all time. As the Neo-Hegelians put it, we may discover\nand formulate the jural postulates of the civilization of the time and\nplace without assuming that those postulates are a complete and final\npicture of ultimate law, by which it must be measured for all time.\n\nSocial utilitarianism has stood in need of correction both from\npsychology and from sociology. It must be recognized that lawmaking\nand adjudication are not in fact determined precisely by a weighing of\ninterests. In practice the pressure of wants, demands, desires, will\nwarp the actual compromises made by the legal system this way or that.\nIn order to maintain the general security we endeavor in every way to\nminimize this warping. But one needs only to look below the surface of\nthe law anywhere at any time to see it going on, even if covered up by\nmechanical devices to make the process appear an absolute one and the\nresult a predetermined one. We may not expect that the compromises\nmade and enforced by the legal order will always and infallibly give\neffect to any picture we may make of the nature or ends of the process\nof making and enforcing them. Yet there will be less of this\nsubconscious warping if we have a clear picture before us of what we\nare seeking to do and to what end, and if we build in the image\nthereof so far as we consciously build and shape the law.\n\nDifficulties arise chiefly in connection with criteria of value. If we\nsay that interests are to be catalogued or inventoried, that they are\nthen to be valued, that those which are found to be of requisite value\nare to be recognized legally and given effect within limits determined\nby the valuation, so far as inherent difficulties in effective legal\nsecuring of interests will permit, the question arises at once, How\nshall we do this work of valuing? Philosophers have devoted much\ningenuity to the discovery of some method of getting at the intrinsic\nimportance of various interests, so that an absolute formula may be\nreached in accordance wherewith it may be assured that the weightier\ninterests intrinsically shall prevail. But I am skeptical as to the\npossibility of an absolute judgment. We are confronted at this point\nby a fundamental question of social and political philosophy. I do not\nbelieve the jurist has to do more than recognize the problem and\nperceive that it is presented to him as one of securing all social\ninterests so far as he may, of maintaining a balance or harmony among\nthem that is compatible with the securing of all of them. The last\ncentury preferred the general security. The present century has shown\nmany signs of preferring the individual moral and social life. I doubt\nwhether such preferences can maintain themselves.\n\nSocial utilitarians would say, weigh the several interests in terms of\nthe end of law. But have we any given to us absolutely? Is the end of\nlaw anything less than to do whatever may be achieved thereby to\nsatisfy human desires? Are the limits any other than those imposed by\nthe tools with which we work, whereby we may lose more than we gain,\nif we attempt to apply them in certain situations? If so, there is\nalways a possibility of improved tools. The Greek philosopher who said\nthat the only possible subjects of lawsuit were \"insult, injury and\nhomicide,\" was as dogmatic as Herbert Spencer, who conceived of\nsanitary laws and housing laws in our large cities as quite outside\nthe domain of the legal order. Better legal machinery extends the\nfield of legal effectiveness as better machinery has extended the\nfield of industrial effectiveness. I do not mean that the law should\ninterfere as of course in every human relation and in every situation\nwhere some one chances to think a social want may be satisfied\nthereby. Experience has shown abundantly how futile legal machinery\nmay be in its attempts to secure certain kinds of interests. What I do\nsay is, that if in any field of human conduct or in any human relation\nthe law, with such machinery as it has, may satisfy a social want\nwithout a disproportionate sacrifice of other claims, there is no\neternal limitation inherent in the nature of things, there are no\nbounds imposed at creation, to stand in the way of its doing so.\n\nLet us apply some of the other theories which are now current. The\nNeo-Hegelians say: Try the claims in terms of civilization, in terms\nof the development of human powers to the most of which they are\ncapable--the most complete human mastery of nature, both human nature\nand external nature. The Neo-Kantians say: Try them in terms of a\ncommunity of free-willing men as the social ideal. Duguit says: Try\nthem in terms of social interdependence and social function. Do they\npromote or do they impede social interdependence through similarity of\ninterest and division of labor? In these formulas do we really get\naway from the problem of a balance compatible with maintaining all the\ninterests, with responding to all the wants and claims, which are\ninvolved in civilized social existence?\n\nFor the purpose of understanding the law of today I am content with a\npicture of satisfying as much of the whole body of human wants as we\nmay with the least sacrifice. I am content to think of law as a social\ninstitution to satisfy social wants--the claims and demands involved\nin the existence of civilized society--by giving effect to as much as\nwe may with the least sacrifice, so far as such wants may be satisfied\nor such claims given effect by an ordering of human conduct through\npolitically organized society. For present purposes I am content to\nsee in legal history the record of a continually wider recognizing and\nsatisfying of human wants or claims or desires through social control;\na more embracing and more effective securing of social interests; a\ncontinually more complete and effective elimination of waste and\nprecluding of friction in human enjoyment of the goods of\nexistence--in short, a continually more efficacious social\nengineering.\n\n\n\n\nIII\n\nThe Application of Law\n\n\nThree steps are involved in the adjudication of a controversy\naccording to law: (1) Finding the law, ascertaining which of the many\nrules in the legal system is to be applied, or, if none is applicable,\nreaching a rule for the cause (which may or may not stand as a rule\nfor subsequent cases) on the basis of given materials in some way\nwhich the legal system points out; (2) interpreting the rule so chosen\nor ascertained, that is, determining its meaning as it was framed and\nwith respect to its intended scope; (3) applying to the cause in hand\nthe rule so found and interpreted. In the past these have been\nconfused under the name of interpretation. It was assumed that the\nfunction of the judge consisted simply in interpreting an\nauthoritatively given rule of wholly extra-judicial origin by an exact\nprocess of deducing its logically implied content and in mechanically\napplying the rule so given and interpreted. This assumption has its\norigin in the stage of the strict law in the attempt to escape from\nthe overdetail on the one hand, and the vague sententiousness on the\nother hand, which are characteristic of primitive law. For the most\npart primitive law is made up of simple, precise, detailed rules for\ndefinite narrowly defined situations. It has no general principles.\nThe first step toward a science of law is the making of distinctions\nbetween what comes within and what does not come within the legal\nmeaning of a rule. But a body of primitive law also often contains a\ncertain number of sententious legal proverbs, put in striking form so\nas to stick in the memory, but vague in their content. The strict law\nby means of a conception of results obtained inevitably from fixed\nrules and undeviating remedial proceedings seeks relief from the\nuncertainty inherent in the finding of a larger content for\noverdetailed special rules through differentiation of cases and the\napplication of legal proverbial sayings through the \"equity of the\ntribunal.\" It conceives of application of law as involving nothing but\na mechanical fitting of the case with the strait-jacket of rule or\nremedy. The inevitable adjustments and extendings and limitations,\nwhich an attempt to administer justice in this way must involve, are\ncovered up by a fiction of interpretation in order to maintain the\ngeneral security.\n\nPhilosophical rationalizing of the attempt to avoid the overpersonal\nadministration of justice incident to the partial reversion to justice\nwithout law in the stage of equity and natural law, reinforced the\nassumption that judicial application of law was a mechanical process\nand was but a phase of interpretation. In the eighteenth century it\nwas given scientific form in the theory of separation of powers. The\nlegislative organ made laws. The executive administered them. The\njudiciary applied them to the decision of controversies. It was\nadmitted in Anglo-American legal thinking that courts must interpret\nin order to apply. But the interpretation was taken not to be in any\nwise a lawmaking and the application was taken not to involve any\nadministrative element and to be wholly mechanical. On the Continent\ninterpretation so as to make a binding rule for future cases was\ndeemed to belong only to the legislator. The maturity of law was not\nwilling to admit that judge or jurist could make anything. It was not\nthe least service of the analytical jurisprudence of the last century\nto show that the greater part of what goes by the name of\ninterpretation in this way of thinking is really a lawmaking process,\na supplying of new law where no rule or no sufficient rule is at hand.\n\"The fact is,\" says Gray most truly, \"that the difficulties of\nso-called interpretation arise when the legislature has had no meaning\nat all; when the question which is raised on the statute never\noccurred to it; when what the judges have to do is, not to determine\nwhat the legislature did mean on a point which was present to its\nmind, but to guess what it would have intended on a point not present\nto its mind had the point been present.\" The attempt to maintain the\nseparation of powers by constitutional prohibitions has pointed to\nthe same lesson from another side. Lawmaking, administration and\nadjudication cannot be rigidly fenced off one from the other and\nturned over each to a separate agency as its exclusive field. There is\nrather a division of labor as to typical cases and a practical or\nhistorical apportionment of the rest.\n\nFinding the law may consist merely in laying hold of a prescribed text\nof a code or statute. In that event the tribunal must proceed to\ndetermine the meaning of the rule and to apply it. But many cases are\nnot so simple. More than one text is at hand which might apply; more\nthan one rule is potentially applicable, and the parties are\ncontending which shall be made the basis of a decision. In that event\nthe several rules must be interpreted in order that intelligent\nselection may be made. Often the genuine interpretation of the\nexisting rules shows that none is adequate to cover the case and that\nwhat is in effect, if not in theory, a new one must be supplied.\nAttempts to foreclose this process by minute, detailed legislation\nhave failed signally, as, for example, in the overgrown code of civil\nprocedure in New York. Providing of a rule by which to decide the\ncause is a necessary element in the determination of a large\nproportion of the causes that come before our higher tribunals, and it\nis often because a rule must be provided that the parties are not\ncontent to abide the decision of the court of first instance.\n\nCases calling for genuine interpretation are relatively few and\nsimple. Moreover genuine interpretation and lawmaking under the guise\nof interpretation run into one another. In other words, the judicial\nfunction and the legislative function run into one another. It is the\nfunction of the legislative organ to make laws. But from the nature of\nthe case it cannot make laws so complete and all-embracing that the\njudicial organ will not be obliged to exercise a certain lawmaking\nfunction also. The latter will rightly consider this a subordinate\nfunction. It will take it to be one of supplementing, developing and\nshaping given materials by means of a given technique. None the less\nit is a necessary part of judicial power. Pushed to the extreme that\nregards all judicial lawmaking as unconstitutional usurpation, our\npolitical theory, a philosophical classification made over by\nimperfect generalization from the British constitution as it was in\nthe seventeenth century, has served merely to intrench in the\nprofessional mind the dogma of the historical school, that legislative\nlawmaking is a subordinate function and exists only to supplement the\ntraditional element of the legal system here and there and to set the\njudicial or juristic tradition now and then in the right path as to\nsome particular item where it had gone astray.\n\nIn Anglo-American law we do not think of analogical development of the\ntraditional materials of the legal system as interpretation. In\nRoman-law countries, where the law is made up of codes supplemented\nand explained by the codified Roman law of Justinian and modern usage\non the basis thereof, which stands as the common law, it seems clear\nenough that analogical application whether of a section of the code or\nof a text of the Roman law is essentially the same process. Both are\ncalled interpretation. As our common law is not in the form of\nauthoritative texts, the nature of the process that goes on when a\nleading case is applied by analogy, or limited in its application, or\ndistinguished, is concealed. It does not seem on the surface to be the\nsame process as when a text of the Digest is so applied or limited or\ndistinguished. Hence it has been easy for us to assume that courts did\nno more than genuinely interpret legislative texts and deduce the\nlogical content of authoritatively established traditional principles.\nIt has been easy to accept a political theory, proceeding on the dogma\nof separation of powers, and to lay down that courts only interpret\nand apply, that all making of law must come from the legislature, that\ncourts must \"take the law as they find it,\" as if they could always\nfind it ready-made for every case. It has been easy also to accept a\njuristic theory that law cannot be made; that it may only be found,\nand that the process of finding it is a matter purely of observation\nand logic, involving no creative element. If we really believed this\npious fiction, it would argue little faith in the logical powers of\nthe bench in view of the diversity of judicially asserted doctrines on\nthe same point which so frequently exist in our case law and the\nwidely different opinions of our best judges with respect to them. As\ninterpretation is difficult, when it is difficult, just because the\nlegislature had no actual intent to ascertain, so the finding of the\ncommon law on a new point is difficult because there is no rule of law\nto find. The judicial and the legislative functions run together also\nin judicial ascertainment of the common law by analogical application\nof decided cases.\n\nAs interpretation on the one side runs into lawmaking and so the\njudicial function runs into the legislative function, on the other\nside interpretation runs into application and so the judicial function\nruns into the administrative or executive. Typically judicial\ntreatment of a controversy is a measuring of it by a rule in order to\nreach a universal solution for a class of causes of which the cause in\nhand is but an example. Typically administrative treatment of a\nsituation is a disposition of it as a unique occurrence, an\nindividualization whereby effect is given to its special rather than\nto its general features. But administration cannot ignore the\nuniversal aspects of situations without endangering the general\nsecurity. Nor may judicial decision ignore their special aspects and\nexclude all individualization in application without sacrificing the\nsocial interest in the individual life through making justice too\nwooden and mechanical. The idea that there is no administrative\nelement in the judicial decision of causes and that judicial\napplication of law should be a purely mechanical process goes back to\nAristotle's Politics. Writing before a strict law had developed, in\nwhat may be called the highest point of development of primitive law,\nwhen the personal character and feelings for the time being of kings\nor magistrates or dicasts played so large a part in the actual\nworkings of legal justice, Aristotle sought relief through a\ndistinction between the administrative and the judicial. He conceived\nthat discretion was an administrative attribute. In administration\nregard was to be had to times and men and special circumstances. The\nexecutive was to use a wise discretion in adjusting the machinery of\ngovernment to actual situations as they arose. On the other hand, he\nconceived that a court should have no discretion. To him the judicial\noffice was a Procrustean one of fitting each case to the legal bed, if\nnecessary by a surgical operation. Such a conception met the needs of\nthe strict law. In a stage of legal maturity it was suited to the\nByzantine theory of law as the will of the emperor and of the judge as\nthe emperor's delegate to apply and give effect to that will. In the\nMiddle Ages it had a sufficient basis in authority and in the needs of\na period of strict law. Later it fitted well into the Byzantine theory\nof lawmaking which French publicists adopted and made current in the\nseventeenth and eighteenth centuries. In the United States it seemed\nto be required by our constitutional provisions for a separation of\npowers. But in practice it has broken down no less completely than the\nanalogous idea of entire separation of the judicial from the\nlawmaking function.\n\nAlmost all of the problems of jurisprudence come down to a fundamental\none of rule and discretion, of administration of justice by law and\nadministration of justice by the more or less trained intuition of\nexperienced magistrates. Controversies as to the nature of law,\nwhether the traditional element or the imperative element of legal\nsystems is the typical law, controversies as to the nature of\nlawmaking, whether the law is found by judicial empiricism or made by\nconscious legislation, and controversies as to the bases of law's\nauthority, whether in reason and science on the one hand or in command\nand sovereign will on the other hand, get their significance from\ntheir bearing upon this question. Controversies as to the relation of\nlaw and morals, as to the distinction of law and equity, as to the\nprovince of the court and of the jury, as to fixed rule or wide\njudicial power in procedure, and as to judicial sentence and\nadministrative individualization in punitive justice are but forms of\nthis fundamental problem. This is not the place to discuss that\nproblem. Suffice it to say that both are necessary elements in the\nadministration of justice and that instead of eliminating either, we\nmust partition the field between them. But it has been assumed that\none or the other must govern exclusively, and there has been a\ncontinual movement in legal history back and forth between wide\ndiscretion and strict detailed rule, between justice without law, as\nit were, and justice according to law. The power of the magistrate has\nbeen a liberalizing agency in periods of growth. In the stage of\nequity and natural law, a stage of infusion of moral ideas from\nwithout into the law, the power of the magistrate to give legal force\nto his purely moral ideas was a chief instrument. Today we rely\nlargely upon administrative boards and commissions to give legal force\nto ideas which the law ignores. On the other hand rule and form with\nno margin of application have been the main reliance of periods of\nstability. The strict law sought to leave nothing to the judge beyond\nseeing whether the letter had been complied with. The nineteenth\ncentury abhorred judicial discretion and sought to exclude the\nadministrative element from the domain of judicial justice. Yet a\ncertain field of justice without law always remained and by one device\nor another the balance of the supposedly excluded administrative\nelement was preserved.\n\nIn the strict law individualization was to be excluded by hard and\nfast mechanical procedure. In practice this procedure was corrected\nand the balance between rule and discretion, between the legal and the\nadministrative, was restored by fictions and by an executive\ndispensing power. Roman equity has its origin in the _imperium_ of the\n_praetor_--his royal power to dispense with the strict law in\nparticular situations. Also English equity has its origin in the royal\npower of discretionary application of law and dispensing with law in\nparticular cases, misuse of which as a political institution was one\nof the causes of the downfall of the Stuarts. Thus we get a third\nagency for restoring the balance in the form of systematic\ninterposition of praetor or chancellor on equitable grounds, leading\nto a system of equity. Carried too far in the stage of equity and\nnatural law, overdevelopment of the administrative element brings\nabout a reaction and in the maturity of law individualization is\npushed to the wall once more. Yet this elimination of the\nadministrative takes place more in theory and in appearance than in\nreality. For justice comes to be administered in large measure through\nthe application of legal standards which admit of a wide margin for\nthe facts of particular cases, and the application of these standards\nis committed to laymen or to the discretion of the tribunal. Moreover\na certain judicial individualization goes on. Partly this takes the\nform of a margin of discretionary application of equitable remedies,\nhanded down from the stage of equity and natural law. Partly it takes\nthe form of ascertainment of the facts with reference to the legal\nresult desired in view of the legal rule or of choice between\ncompeting rules in effect covering the same ground, although nominally\nfor distinct situations. In other words, a more subtle fiction does\nfor the maturity of law what is done for the strict law by its\nrelatively crude procedural fictions.\n\nOf these five agencies for preserving the administrative element in\njudicial justice, in periods when legal theory excludes it, two call\nfor special consideration.\n\nIt is usual to describe law as an aggregate of rules. But unless the\nword rule is used in so wide a sense as to be misleading, such a\ndefinition, framed with reference to codes or by jurists whose eyes\nwere fixed upon the law of property, gives an inadequate picture of\nthe manifold components of a modern legal system. Rules, that is,\ndefinite, detailed provisions for definite, detailed states of fact,\nare the main reliance of the beginnings of law. In the maturity of law\nthey are employed chiefly in situations where there is exceptional\nneed of certainty in order to uphold the economic order. With the\nadvent of legal writing and juristic theory in the transition from the\nstrict law to equity and natural law, a second element develops and\nbecomes a controlling factor in the administration of justice. In\nplace of detailed rules precisely determining what shall take place\nupon a precisely detailed state of facts, reliance is had upon general\npremises for judicial and juristic reasoning. These legal principles,\nas we call them, are made use of to supply new rules, to interpret old\nones, to meet new situations, to measure the scope and application of\nrules and standards and to reconcile them when they conflict or\noverlap. Later, when juristic study seeks to put the materials of the\nlaw in order, a third element develops, which may be called legal\nconceptions. These are more or less exactly defined types, to which we\nrefer cases or by which we classify them, so that when a state of\nfacts is classified we may attribute thereto the legal consequences\nattaching to the type. All of these admit of mechanical or rigidly\nlogical application. A fourth element, however, which plays a great\npart in the everyday administration of justice, is of quite another\ncharacter.\n\nLegal standards of conduct appear first in Roman equity. In certain\ncases of transactions or relations involving good faith, the formula\nwas made to read that the defendant was to be condemned to that which\nin good faith he ought to give or do for or render to the plaintiff.\nThus the judge had a margin of discretion to determine what good faith\ncalled for and in Cicero's time the greatest lawyer of the day thought\nthese _actiones bonae fidei_ required a strong judge because of the\ndangerous power which they allowed him. From this procedural device,\nRoman lawyers worked out certain standards or measures of conduct,\nsuch as what an upright and diligent head of a family would do, or the\nway in which a prudent and diligent husbandman would use his land. In\nsimilar fashion English equity worked out a standard of fair conduct\non the part of a fiduciary. Later the Anglo-American law of torts\nworked out, as a measure for those who are pursuing some affirmative\ncourse of conduct, the standard of what a reasonable, prudent man\nwould do under the circumstances. Also the law of public utilities\nworked out standards of reasonable service, reasonable facilities,\nreasonable incidents of the service and the like. In all these cases\nthe rule is that the conduct of one who acts must come up to the\nrequirements of the standard. Yet the significant thing is not the\nfixed rule but the margin of discretion involved in the standard and\nits regard for the circumstances of the individual case. For three\ncharacteristics may be seen in legal standards: (1) They all involve a\ncertain moral judgment upon conduct. It is to be \"fair,\" or\n\"conscientious,\" or \"reasonable,\" or \"prudent,\" or \"diligent.\" (2)\nThey do not call for exact legal knowledge exactly applied, but for\ncommon sense about common things or trained intuition about things\noutside of everyone's experience. (3) They are not formulated\nabsolutely and given an exact content, either by legislation or by\njudicial decision, but are relative to times and places and\ncircumstances and are to be applied with reference to the facts of the\ncase in hand. They recognize that within the bounds fixed each case is\nto a certain extent unique. In the reaction from equity and natural\nlaw, and particularly in the nineteenth century, these standards were\ndistrusted. Lord Camden's saying that the discretion of a judge was\n\"the law of tyrants,\" that it was different in different men, was\n\"casual\" and dependent upon temperament, has in it the whole spirit of\nthe maturity of law. American state courts sought to turn the\nprinciples by which the chancellors were wont to exercise their\ndiscretion into hard and fast rules of jurisdiction. They sought to\nreduce the standard of reasonable care to a set of hard and fast\nrules. If one crossed a railroad, he must \"stop, look and listen.\" It\nwas negligence _per se_ to get on or off a moving car, to have part of\nthe body protruding from a railroad car, and the like. Also they\nsought to put the duties of public utilities in the form of definite\nrules with a detailed, authoritatively fixed content. All these\nattempts to do away with the margin of application involved in legal\nstandards broke down. The chief result was a reaction in the course of\nwhich many states turned over all questions of negligence to juries,\nfree even from effective advice from the bench, while many other\njurisdictions have been turning over subject after subject to\nadministrative boards and commissions to be dealt with for a season\nwithout law. In any event, whether the standard of due care in an\naction for negligence is applying by a jury, or the standard of\nreasonable facilities for transportation is applying by a public\nservice commission, the process is one of judging of the quality of a\nbit of conduct under its special circumstances and with reference to\nideas of fairness entertained by the layman or the ideas of what is\nreasonable entertained by the more or less expert commissioner. Common\nsense, experience and intuition are relied upon, not technical rule\nand scrupulously mechanical application.\n\nWe are familiar with judicial individualization in the administration\nof equitable remedies. Another form, namely, individualization through\nlatitude of application under the guise of choice or ascertainment of\na rule, is concealed by the fiction of the logical completeness of the\nlegal system and the mechanical, logical infallibility of the logical\nprocess whereby the predetermined rules implicit in the given legal\nmaterials are deduced and applied. To a large and apparently growing\nextent the practice of our application of law has been that jurors or\ncourts, as the case may be, take the rules of law as a general guide,\ndetermine what the equities of the cause demand, and contrive to find\na verdict or render a judgment accordingly, wrenching the law no more\nthan is necessary. Many courts today are suspected of ascertaining\nwhat the equities of a controversy require, and then raking up\nadjudicated cases to justify the result desired. Often formulas are\nconveniently elastic so that they may or may not apply. Often rules of\ncontrary tenor overlap, leaving a convenient no-man's-land wherein\ncases may be decided either way according to which rule the court\nchooses in order to reach a result arrived at on other grounds.\nOccasionally a judge is found who acknowledges frankly that he looks\nchiefly at the ethical situation between the parties and does not\nallow the law to interfere therewith beyond what is inevitable.\n\nThus we have in fact a crude equitable application, a crude\nindividualization, throughout the field of judicial administration of\njustice. It is assumed by courts more widely than we suspect, or at\nleast, more widely than we like to acknowledge. Ostensibly there is no\nsuch power. But when one looks beneath the surface of the law reports,\nthe process reveals itself under the name of \"implication\" or in the\nguise of two lines of decisions of the same tribunal upon the same\npoint from which it may choose at will, or in the form of what have\nbeen termed \"soft spots\" in the law--spots where the lines are so\ndrawn by the adjudicated cases that the court may go either way as the\nethical exigencies of the special circumstances of the case in hand\nmay require, with no apparent transgression of what purport to be hard\nand fast rules. Such has been the result of attempts to exclude the\nadministrative element in adjudication. In theory there is no such\nthing except with respect to equitable remedies, where it exists for\nhistorical reasons. In practice there is a great deal of it, and that\nin a form which is unhappily destructive of certainty and uniformity.\nNecessary as it is, the method by which we attain a needed\nindividualization is injurious to respect for law. If the courts do\nnot respect the law, who will? There is no exclusive cause of the\ncurrent American attitude toward the law. But judicial evasion and\nwarping of the law, in order to secure in practice a freedom of\njudicial action not conceded in theory, is certainly one cause. We\nneed a theory which recognizes the administrative element as a\nlegitimate part of the judicial function and insists that\nindividualization in the application of legal precepts is no less\nimportant than the contents of those precepts themselves.\n\nThree theories of application of law obtain in the legal science of\ntoday. The theory which has the largest following among practitioners\nand in dogmatic exposition of the law is analytical. It assumes a\ncomplete body of law with no gaps and no antinomies, given authority\nby the state at one stroke and so to be treated as if every item was\nof the same date as every other. If the law is in the form of a code,\nits adherents apply the canons of genuine interpretation and ask what\nthe several code provisions mean as they stand, looked at logically\nrather than historically. They endeavor to find the pre-appointed code\npigeonhole for each concrete case, to put the case in hand into it by\na purely logical process and to formulate the result in a judgment. If\nthe law is in the form of a body of reported decisions, they assume\nthat those decisions may be treated as if all rendered at the same\ntime and as containing implicitly whatever is necessary to the\ndecision of future causes which they do not express. They may define\nconceptions or they may declare principles. The logically\npredetermined decision is contained in the conception to which the\nfacts are referred or involved in the principle within whose scope the\nfacts fall. A purely logical process, exactly analogous to genuine\ninterpretation of a legislative rule, will yield the appropriate\nconception from given premises or discover the appropriate principle\nfrom among those which superficially appear to apply. Application is\nmerely formulation in a judgment of the result obtained by analysis of\nthe case and logical development of the premises contained in the\nreported decisions.\n\nAmong teachers a historical theory has the larger following. If the\nlaw is in the form of a code, the code provisions are assumed to be in\nthe main declaratory of the law as it previously existed; the code is\nregarded as a continuation and development of pre-existing law. All\nexposition of the code and of any provision thereof must begin by an\nelaborate inquiry into the pre-existing law and the history and\ndevelopment of the competing juristic theories among which the framers\nof the code had to choose. If the law is in the form of a body of\nreported decisions, the later decisions are regarded as but declaring\nand illustrating the principles to be found by historical study of the\nolder ones; as developing legal conceptions and principles to be found\nby historical study of the older law. Hence all exposition must begin\nwith an elaborate historical inquiry in which the idea that has been\nunfolding in the course of judicial decision is revealed and the lines\nare disclosed along which legal development must move. But when the\ncontent of the applicable legal precept is discovered in these ways,\nthe method of applying it in no way differs from that which obtains\nunder the analytical theory. The process of application is assumed to\nbe a purely logical one. Do the facts come within or fail to come\nwithin the legal precept? This is the sole question for the judge.\nWhen by historical investigation he has found out what the rule is, he\nhas only to fit it to just and unjust alike.\n\nAnalytical and historical theories of application of law thus seek to\nexclude the administrative element wholly and their adherents resort\nto fictions to cover up the judicial individualization which none the\nless obtains in practice or else ignore it, saying that it is but a\nresult of the imperfect constitution of tribunals or of the ignorance\nor sloth of those who sit therein. The latter explanation is no more\nsatisfying than the fictions, and a new theory has sprung up of late\nin Continental Europe which may be understood best by calling it the\nequitable theory, since the methods of the English Chancellor had much\nto do with suggesting it. To the adherents of this theory the\nessential thing is a reasonable and just solution of the individual\ncontroversy. They conceive of the legal precept, whether legislative\nor traditional, as a guide to the judge, leading him toward the just\nresult. But they insist that within wide limits he should be free to\ndeal with the individual case so as to meet the demands of justice\nbetween the parties and accord with the reason and moral sense of\nordinary men. They insist that application of law is not a purely\nmechanical process. They contend that it involves not logic only but\nmoral judgments as to particular situations and courses of conduct in\nview of the special circumstances which are never exactly alike. They\ninsist that such judgments involve intuitions based upon experience\nand are not to be expressed in definitely formulated rules. They\nargue that the cause is not to be fitted to the rule but the rule to\nthe cause.\n\nMuch that has been written by advocates of the equitable theory of\napplication of law is extravagant. As usually happens, in reaction\nfrom theories going too far in one direction this theory has gone too\nfar in the other. The last century would have eliminated\nindividualization of application. Now, as in the sixteenth- and\nseventeenth-century reaction from the strict law, come those who would\nhave nothing else; who would turn over the whole field of judicial\njustice to administrative methods. If we must choose, if judicial\nadministration of justice must of necessity be wholly mechanical or\nelse wholly administrative, it was a sound instinct of lawyers in the\nmaturity of law that led them to prefer the former. Only a saint, such\nas Louis IX under the oak at Vincennes, may be trusted with the wide\npowers of a judge restrained only by a desire for just results in each\ncase to be reached by taking the law for a general guide. And St.\nLouis did not have the crowded calendars that confront the modern\njudge. But are we required to choose? May we not learn something from\nthe futility of all efforts to administer justice exclusively by\neither method? May we not find the proper field of each by examining\nthe means through which in fact we achieve an individualization which\nwe deny in theory, and considering the cases in which those means\noperate most persistently and the actual administration of justice\nmost obstinately refuses to become as mechanical in practice as we\nexpect it to be in theory?\n\nIn Anglo-American law today there are no less than seven agencies\nfor individualizing the application of law. We achieve an\nindividualization in practice: (1) through the discretion of courts in\nthe application of equitable remedies; (2) through legal standards\napplied to conduct generally when injury results and also to certain\nrelations and callings; (3) through the power of juries to render\ngeneral verdicts; (4) through latitude of judicial application\ninvolved in finding the law; (5) through devices for adjusting penal\ntreatment to the individual offender; (6) through informal methods of\njudicial administration in petty courts, and (7) through\nadministrative tribunals. The second and fourth have been considered.\nLet us look for a moment at the others.\n\nDiscretion in the exercise of equitable remedies is an outgrowth of\nthe purely personal intervention in extraordinary cases on grounds\nthat appealed to the conscience of the chancellor in which equity\njurisdiction has its origin. Something of the original flavor of\nequitable interposition remains in the doctrine of personal bar to\nrelief, and in the ethical quality of some of the maxims which\nannounce policies to be pursued in the exercise of the chancellor's\npowers. But it was possible for the nineteenth century to reconcile\nwhat remained of the chancellor's discretion with its mode of\nthinking. Where the plaintiff's right was legal but the legal remedy\nwas not adequate to secure him in what the legal right entitled him to\nclaim, equity gave a concurrent remedy supplementing the strict law.\nAs the remedy in equity was supplementary and concurrent, in case the\nchancellor in his discretion kept his hands off, as he would if he\nfelt that he could not bring about an equitable result, the law would\nstill operate. The plaintiff's right was in no wise at the mercy of\nanyone's discretion. He merely lost an extraordinary and supplementary\nremedy and was left to the ordinary course of the law. Such was the\northodox view of the relation of law and equity. Equity did not alter\na jot or tittle of the law. It was a remedial system alongside of the\nlaw, taking the law for granted and giving legal rights greater\nefficacy in certain situations. But take the case of a \"hard bargain,\"\nwhere the chancellor in his discretion may deny specific performance.\nIn England and in several states the damages at law do not include the\nvalue of the bargain where the contract is for the sale of land. Hence\nunless specific performance is granted, the plaintiff's legal right is\ndefeated. It is notorious that bargains appeal differently to\ndifferent chancellors in this respect. In the hands of some the\ndoctrine as to hard bargains has a tendency to become wooden, as it\nwere. There is a hard and fast rule that certain bargains are \"hard\"\nand that equity will not enforce them. In states where the value of\nthe bargain may be recovered at law, it may well be sometimes that the\nbargain might as well be enforced in equity, if it is not to be\ncancelled. But the chancellor is not unlikely to wash his hands of a\nhard case, saying that the court of law is more callous; let that\ncourt act, although that court is the same judge with another docket\nbefore him. In other hands, the doctrine tends to become ultro-ethical\nand to impair the security of transactions. In other words, the margin\nof discretion in application of equitable remedies tends on the one\nhand to disappear through crystallization of the principles governing\nits exercise into rigid rules, or on the other hand, to become\noverpersonal and uncertain and capricious. Yet as one reads the\nreports attentively he cannot doubt that in action it is an important\nengine of justice; that it is a needed safety valve in the working of\nour legal system.\n\nAt common law the chief reliance for individualizing the application\nof law is the power of juries to render general verdicts, the power to\nfind the facts in such a way as to compel a different result from that\nwhich the legal rule strictly applied would require. In appearance\nthere has been no individualization. The judgment follows necessarily\nand mechanically from the facts upon the record. But the facts found\nwere found in order to reach the result and are by no means\nnecessarily the facts of the actual case. Probably this power alone\nmade the common law of master and servant tolerable in the last\ngeneration. Yet exercise of this power, with respect to which, as Lord\nCoke expressed it, \"the jurors are chancellors,\" has made the jury an\nunsatisfactory tribunal in many classes of cases. It is largely\nresponsible for the practice of repeated new trials which makes the\njury a most expensive tribunal. The crude individualization achieved\nby juries, influenced by emotional appeals, prejudice and the\npeculiar personal ideas of individual jurors, involves quite as much\ninjustice at one extreme as mechanical application of law by judges at\nthe other extreme. Indeed the unchecked discretion of juries, which\nlegislation has brought about in some jurisdictions, is worse than the\nhobbled court and rigid mechanical application of law from which it is\na reaction.\n\nOur administration of punitive justice is full of devices for\nindividualizing the application of criminal law. Our complicated\nmachinery of prosecution involves a great series of mitigating\nagencies whereby individual offenders may be spared or dealt with\nleniently. Beginning at the bottom there is the discretion of the\npolice as to who and what shall be brought to the judicial mill. Next\nare the wide powers of our prosecuting officers who may ignore\noffences or offenders, may dismiss proceedings in their earlier\nstages, may present them to grand juries in such a way that no\nindictment results, or may enter a _nolle prosequi_ after indictment.\nEven if the public prosecutor desires to prosecute, the grand jury\nmay ignore the charge. If the cause comes to trial, the petit jury may\nexercise a dispensing power by means of a general verdict. Next comes\njudicial discretion as to sentence, or in some jurisdictions,\nassessment of punishment by the discretion of the trial jury. Upon\nthese are superposed administrative parole or probation and executive\npower to pardon. The lawyer-politician who practices in the criminal\ncourts knows well how to work upon this complicated machinery so as to\nenable the professional criminal to escape as well as those or even\ninstead of those for whom these devices were intended. They have been\ndeveloped to obviate the unhappy results of a theory which would have\nmade the punishment mechanically fit the crime instead of adjusting\nthe penal treatment to the criminal. Here, as elsewhere, the attempt\nto exclude the administrative element has brought about back-handed\nmeans of individualization which go beyond the needs of the situation\nand defeat the purposes of the law.\n\nEven more striking is the recrudescence of personal government, by\nway of reaction from an extreme of government of laws and not of men,\nwhich is involved in the setting up of administrative tribunals on\nevery hand and for every purpose. The regulation of public utilities,\napportionment of the use of the water of running streams among\ndifferent appropriators, workmen's compensation, the actual duration\nand nature of punishment for crime, admission to and practice of\nprofessions and even of trades, the power to enter or to remain in the\ncountry, banking, insurance, unfair competition and restraint of\ntrade, the enforcement of factory laws, of pure food laws, of housing\nlaws and of laws as to protection from fire and the relation of\nprincipal and agent, as between farmers and commission merchants, are\nbut some of the subjects which the living law, the law in action, is\nleaving to executive justice in administrative tribunals. To some\nextent this is required by the increasing complexity of the social\norder and the minute division of labor which it involves. Yet this\ncomplexity and this division of labor developed for generations in\nwhich the common-law jealousy of administration was dominant. Chiefly\nour revival of executive justice in the present century is one of\nthose reversions to justice without law which are perennial in legal\nhistory. As in the case of like reversions in the past it is the\nforerunner of growth. It is the first form of reaction from the\noverrigid application of law in a period of stability. A bad\nadjustment between law and administration and cumbrous, ineffective\nand unbusinesslike legal procedure, involving waste of time and money\nin the mere etiquette of justice, are doing in our time what like\nconditions did in English law in the middle of the sixteenth century.\n\nIf we look back at the means of individualizing the application of law\nwhich have developed in our legal system, it will be seen that almost\nwithout exception they have to do with cases involving the moral\nquality of individual conduct or of the conduct of enterprises, as\ndistinguished from matters of property and of commercial law. Equity\nuses its powers of individualizing to the best advantage in\nconnection with the conduct of those in whom trust and confidence have\nbeen reposed. Legal standards are used chiefly in the law of torts, in\nthe law of public utilities and in the law as to fiduciary relations.\nJury lawlessness is an agency of justice chiefly in connection with\nthe moral quality of conduct where the special circumstances exclude\nthat \"intelligence without passion\" which, according to Aristotle,\ncharacterizes the law. It is significant that in England today the\ncivil jury is substantially confined to cases of defamation, malicious\nprosecution, assault and battery and breach of promise of marriage.\nJudicial individualization through choice of a rule is most noticeable\nin the law of torts, in the law of domestic relations and in passing\nupon the conduct of enterprises. The elaborate system of\nindividualization in criminal procedure has to do wholly with\nindividual human conduct. The informal methods of petty courts are\nmeant for tribunals which pass upon conduct in the crowd and hurry of\nour large cities. The administrative tribunals, which are setting up\non every hand, are most called for and prove most effective as means\nof regulating the conduct of enterprises.\n\nA like conclusion is suggested when we look into the related\ncontroversy as to the respective provinces of common law and of\nlegislation. Inheritance and succession, definition of interests in\nproperty and the conveyance thereof, matters of commercial law and the\ncreation, incidents and transfer of obligations have proved a fruitful\nfield for legislation. In these cases the social interest in the\ngeneral security is the controlling element. But where the questions\nare not of interests of substance but of the weighing of human conduct\nand passing upon its moral aspects, legislation has accomplished\nlittle. No codification of the law of torts has done more than provide\na few significantly broad generalizations. On the other hand,\nsuccession to property is everywhere a matter of statute law and\ncommercial law is codified or codifying throughout the world. Moreover\nthe common law insists upon its doctrine of _stare decisis_ chiefly\nin the two cases of property and commercial law. Where legislation is\neffective, there also mechanical application is effective and\ndesirable. Where legislation is ineffective, the same difficulties\nthat prevent its satisfactory operation require us to leave a wide\nmargin of discretion in application, as in the standard of the\nreasonable man in our law of negligence and the standard of the\nupright and diligent head of a family applied by the Roman law, and\nespecially by the modern Roman law, to so many questions of fault,\nwhere the question is really one of good faith. All attempts to cut\ndown this margin have proved futile. May we not conclude that in the\npart of the law which has to do immediately with conduct complete\njustice is not to be attained by the mechanical application of fixed\nrules? Is it not clear that in this part of the administration of\njustice the trained intuition and disciplined judgment of the judge\nmust be our assurance that causes will be decided on principles of\nreason and not according to the chance dictates of caprice, and that\na due balance will be maintained between the general security and the\nindividual human life?\n\nPhilosophically the apportionment of the field between rule and\ndiscretion which is suggested by the use of rules and of standards\nrespectively in modern law has its basis in the respective fields of\nintelligence and intuition. Bergson tells us that the former is more\nadapted to the inorganic, the latter more to life. Likewise rules,\nwhere we proceed mechanically, are more adapted to property and to\nbusiness transactions, and standards; where we proceed upon\nintuitions, are more adapted to human conduct and to the conduct of\nenterprises. According to him, intelligence is characterized by \"its\npower of grasping the general element in a situation and relating it\nto past situations,\" and this power involves loss of \"that perfect\nmastery of a special situation in which instinct rules.\" In the law of\nproperty and in the law of commercial transactions it is precisely\nthis general element and its relation to past situations that is\ndecisive. The rule, mechanically applied, works by repetition and\nprecludes individuality in results, which would threaten the security\nof acquisitions and the security of transactions. On the other hand,\nin the handmade, as distinguished from the machine-made product, the\nspecialized skill of the workman gives us something infinitely more\nsubtle than can be expressed in rules. In law some situations call for\nthe product of hands, not of machines, for they involve not\nrepetition, where the general elements are significant, but unique\nevents, in which the special circumstances are significant. Every\npromissory note is like every other. Every fee simple is like every\nother. Every distribution of assets repeats the conditions that have\nrecurred since the Statute of Distributions. But no two cases of\nnegligence have been alike or ever will be alike. Where the call is\nfor individuality in the product of the legal mill, we resort to\nstandards. And the sacrifice of certainty in so doing is more apparent\nthan actual. For the certainty attained by mechanical application of\nfixed rules to human conduct has always been illusory.\n\n\n\n\nIV\n\nLiability\n\n\nA systematist who would fit the living body of the law to his logical\nanalytical scheme must proceed after the manner of Procrustes. Indeed,\nthis is true of all science. In life phenomena are unique. The\nbiologist of today sometimes doubts whether there are species and\ndisclaims higher groups as more than conveniences of study. \"Dividing\nlines,\" said a great American naturalist, \"do not occur in nature\nexcept as accidents.\" Organization and system are logical\nconstructions of the expounder rather than in the external world\nexpounded. They are the means whereby we make our experience of that\nworld intelligible and available. It is with no illusion, therefore,\nthat I am leading you to a juristic _ultima Thule_ that I essay a bit\nof systematic legal science on a philosophical basis. Even if it\nnever attains a final system in which the law shall stand fast\nforever, the continual juristic search for the more inclusive order,\nthe continual juristic struggle for a simpler system that will better\norder and better reconcile the phenomena of the actual administration\nof justice, is no vain quest. Attempts to understand and to expound\nlegal phenomena lead to generalizations which profoundly affect those\nphenomena, and criticism of those generalizations, in the light of the\nphenomena they seek to explain and to which they give rise, enables us\nto replace them or modify them or supplement them and thus to keep the\nlaw a growing instrument for achieving expanding human desires.\n\nOne of the stock questions of the science of law is the nature and\nsystem and philosophical basis of situations in which one may exact\nfrom another that he \"give or do or furnish something\" (to use the\nRoman formula) for the advantage of the former. The classical Roman\nlawyer, thinking in terms of natural law, spoke of a bond or relation\nof right and law between them whereby the one might justly and\nlegally exact and the other was bound in justice and law to perform.\nIn modern times, thinking, whether he knows it or not, in terms of\nnatural rights and by derivation of legal rights, the analytical\njurist speaks of rights _in personam_. The Anglo-American lawyer,\nthinking in terms of procedure, speaks of contracts and torts, using\nthe former term in a wide sense. If pressed, he may refer certain\nenforceable claims to exact and duties of answering to the exaction to\na Romanist category of quasi-contract, satisfied to say \"quasi\"\nbecause on analysis they do not comport with his theory of contract,\nand to say \"contract\" because procedurally they are enforced _ex\ncontractu_. Pressed further, he may be willing to add \"quasi tort\" for\ncases of common-law liability without fault and workmen's\ncompensation--\"quasi\" because there is no fault, \"tort\" because\nprocedurally the liability is given effect _ex delicto_. But cases of\nduties enforceable either _ex contractu_ or _ex delicto_ at the option\nof the pleader and cases where the most astute pleader is hard pushed\nto choose have driven us to seek something better.\n\nObligation, the Roman term, meaning the relation of the parties to\nwhat the analytical jurists have called a right _in personam_ is an\nexotic in our law in that sense. Moreover the relation is not the\nsignificant thing for systematic purposes, as is shown by civilian\ntendencies in the phrases \"active obligation\" and \"passive obligation\"\nto extend the term from the relation to the capacity or claim to exact\nand duty to answer to the exaction. The phrase \"right _in personam_\"\nand its co-phrase \"right _in rem_\" are so misleading in their\nimplications, as any teacher soon learns, that we may leave them to\nthe textbooks of analytical jurisprudence. In this lecture, I shall\nuse the simple word \"liability\" for the situation whereby one may\nexact legally and the other is legally subjected to the exaction.\nUsing the word in that sense, I shall inquire into the philosophical\nbasis of liability and the system of the law on that subject as\nrelated to that basis. Yellowplush said of spelling that every\ngentleman was entitled to his own. We have no authoritative\ninstitutional book of Anglo-American law, enacted by sovereign\nauthority, and hence every teacher of law is entitled to his own\nterminology.\n\nSo far as the beginnings of law had theories, the first theory of\nliability was in terms of a duty to buy off the vengeance of him to\nwhom an injury had been done whether by oneself or by something in\none's power. The idea is put strikingly in the Anglo-Saxon legal\nproverb, \"Buy spear from side or bear it,\" that is, buy off the feud\nor fight it out. One who does an injury or stands between an injured\nperson and his vengeance, by protecting a kinsman, a child or a\ndomestic animal that has wrought an injury, must compound for the\ninjury or bear the vengeance of the injured. As the social interest in\npeace and order--the general security in its lowest terms--comes to be\nsecured more effectively by regulation and ultimate putting down of\nthe feud as a remedy, payment of composition becomes a duty rather\nthan a privilege, or in the case of injuries by persons or things in\none's power a duty alternative to a duty of surrendering the offending\nchild or animal. The next step is to measure the composition not in\nterms of the vengeance to be bought off but in terms of the injury. A\nfinal step is to put it in terms of reparation. These steps are taken\nhaltingly and merge into one another, so that we may hear of a\n\"penalty of reparation.\" But the result is to turn composition for\nvengeance into reparation for injury. Thus recovery of a sum of money\nby way of penalty for a delict is the historical starting point of\nliability.\n\nOne's neighbor whom one had injured or who had been injured by those\nwhom one harbored was not the only personality that might desire\nvengeance in a primitive society. One might affront the gods, and by\none's impiety in so doing might imperil the general security, since\nthe angered gods were not unlikely to hit out indiscriminately and to\ncast pestilence or hurl lightning upon just and unjust alike in the\ncommunity which harbored the impious wrongdoer. Hence if, in making a\npromise, one called the gods to witness it was needful that\npolitically organized society, taking over a field of social control\nexercised by the priesthood, give a legal remedy to the promisee lest\nhe invoke the aid of the gods and jeopardize the general security.\nAgain in making a promise one might call the people or the\nneighborhood to witness and might affront them by calling them to\nwitness in vain. Here, too, the peace was threatened and politically\norganized society might give a remedy to the promisee, lest he invoke\nthe help of his fellow citizens or his neighbors. A common case might\nbe one where a composition was promised in this way for an injury not\nincluded in the detailed tariff of compositions that is the staple of\nancient \"codes.\" Another common case was where one who held another's\nproperty for some temporary purpose promised to return it. Such a case\nis lending; for before the days of coined money, the difference\nbetween lending a horse to go to the next town and lending ten sheep\nto enable the borrower to pay a composition is not perceptible. Thus\nanother starting point of liability is recovery of a thing certain, or\nwhat was originally the same, a sum certain, promised in such wise as\nto endanger the general security if the promise is not carried out. In\nRoman law, the condiction, which is the type of actions _in personam_,\nand thus the starting point historically of rights _in personam_ and\nof theories of obligation, was at first a recovery of a thing certain\nor a sum certain due upon a promise of this sort. In juristic terms,\nthe central idea of the beginnings of liability is duty to make\ncomposition for or otherwise avert wrath arising from the affronted\ndignity of some personality desirous of vengeance, whether an injured\nindividual, a god or a politically organized society. Greek law and\nRoman law give the name of \"insult\" to legally cognizable injury to\npersonality. Insult to a neighbor by injury to him or to one of his\nhousehold, insult to the gods by impious breach of the promise they\nhad witnessed, insult to the people by wanton disregard of the\nundertaking solemnly made in their presence, threatened the peace and\norder of society and called for legal remedy.\n\nLawyers begin to generalize and to frame conscious theories in the\nlater part of the stage of the strict law. At first these theories are\nanalytical rather than philosophical. The attempt is to frame general\nformulas by which the rigid rules of the strict law may be reconciled\nwhere they overlap or conflict or may be distinguished in their\napplication where such overlapping or conflict threatens. By this\ntime, the crude beginnings of liability in a duty to compound for\ninsult or affront to man or gods or people, lest they be moved to\nvengeance, has developed into liability to answer for injuries caused\nby oneself or done by those persons or those things in one's power,\nand liability for certain promises made in solemn form. Thus the basis\nof liability has become twofold. It rests on the one hand upon duty to\nrepair injury. It rests on the other hand upon duty to carry out\nformal undertakings. It is enough for this stage of legal development\nthat all cases of liability may be referred to these two types and\nthat useful distinctions may be reached therefrom. Consideration of\nwhy one should be held to repair injury, and why he should be held to\nformal undertakings, belongs to a later stage.\n\nJuristic theory, beginning in the transition from the strict law to\nthe stage of equity or natural law, becomes a force in the latter\nstage. As the relations with which the law must deal become more\nnumerous and the situations calling for legal treatment become more\ncomplicated, it is no longer possible to have a simple, definite,\ndetailed rule for every sort of case that can come before a tribunal,\nnor a fixed, absolute form for every legal transaction. Hence, under\nthe leadership of philosophical jurists, men turn to logical\ndevelopment of the \"nature\" or ideal form of situations and to ethical\nideas of what \"good faith\" or \"good conscience\" demands in particular\nrelations or transactions. The strict law, relying on rule and form,\ntook no account of intention as such. The words took effect quite\nindependently of the thought behind them. But as lawyers began to\nreflect and to teach something more than a class or professional\ntradition, as they began to be influenced by philosophy to give over\npurely mechanical methods and to measure things by reason rather than\nby arbitrary will, emphasis shifted from form to substance; from the\nletter to the spirit and intent. The statute was thought of as but the\nlawmaker's formulation of a principle of natural law. It was not the\n_uerba_ that were efficacious, as in the strict law, which had\ninherited the primitive faith in the power of words and thought of the\nlegal formula as if it were a formula of incantation possessing\ninherent magical force. It was the _ratio iuris_, which transcended\nwords and formulas. So also the traditional rule was not a magic\nformula discovered by our fathers. It was a customary expression of a\nprinciple of natural law. Likewise the formal transaction was not a\nbit of private magic employed to conjure up legal liability. It was\nthe clothing in legally recognized vestments of an intention to do\nwhat reason and good faith demand in a given situation. When form and\nintention concurred the promisor must answer for what he undertook.\nWhen the form used did not express or went beyond the intention or was\nthe product of an apparent but not a real intention, the promisee was\nnot to be enriched unjustly at the promisor's expense on the sole\nbasis of the form. Moreover the duty was to be one of doing what good\nfaith demanded, not one of doing literally and exactly what the letter\nof the undertaking called for. And although there was no express\nundertaking, there might be duties implied in the relation or\nsituation or transaction, viewed as one of good faith, and one might\nbe held to a standard of action because an upright and diligent man,\nwho was his own master, would so act. Such is the mode of thinking in\nthe classical period of the Roman law and it is closely paralleled by\nan independent development of juristic thought in the rise of equity\nand the absorption of the law merchant in our law.\n\nIt was easy to fit the two categories, delict and formal undertaking,\nwhich had come down from the strict law, into the new mode of thought.\nThe typical delict required _dolus_--intentional aggression upon the\npersonality or the substance of another. Indeed Aquilian _culpa_, in\nwhich the fault did not extend to intentional aggression, is a\njuristic equitable development. Hence when the legal was identified\nwith the moral, and such identification is a prime characteristic of\nthis stage, the significant thing in delict seemed to be the moral\nduty to repair an injury caused by wilful aggression. The legal\nprecept was _alienum non laedere_. Also the duty to perform an\nintentional undertaking seemed to rest on the inherent moral quality\nof a promise that made it intrinsically binding on an upright man. The\nlegal precept was _suum cuique tribuere_. Thus liability seemed to\nflow from intentional action--whether in the form of aggression or in\nthe form of agreement. The \"natural\" sources of liability were delict\nand contract. Everything else was assimilated to one or the other of\nthem. Liability without fault was quasi-delictal. Liability imposed by\ngood faith to prevent unjust enrichment was quasi-contractual. The\ncentral idea had become one of the demands of good faith in view of\nintentional action.\n\nIn the nineteenth century the conception of liability as resting on\nintention was put in metaphysical rather than ethical form. Law was\na realization of the idea of liberty, and existed to bring about the\nwidest possible individual liberty. Liberty was the free will in\naction. Hence it was the business of the legal order to give the\nwidest effect to the declared will and to impose no duties except in\norder to effectuate the will or to reconcile the will of one with the\nwill of others by a universal law. What had been a positive, creative\ntheory of developing liability on the basis of intention, became a\nnegative, restraining, one might say pruning, theory of no liability\nexcept on the basis of intention. Liability could flow only from\nculpable conduct or from assumed duties. The abstract individual will\nwas the central point in the theory of liability. If one was not\nactually culpable and yet established legal precepts which were not to\nbe denied held him answerable, it was because he was \"deemed\"\nculpable, the historical legal liability being the proof of\nculpability. If he had not actually assumed a duty, and yet\nestablished legal precepts which were not to be denied held him to\nanswer for it, this must be because he had assumed some relation or\nprofessed some calling in which an undertaking to that effect was\n\"implied\" or had participated in some situation in which it was\n\"implied,\"--the implication being a deduction from the liability. The\nbases of liability were culpable conduct and legal transaction, and\nthese came down to an ultimate basis in will. The fundamental\nconception in legal liability was the conception of an act--of a\nmanifestation of the will in the external world.\n\nRoman law and English law begin with a set of what might be called\nnominate delicts or nominate torts. In Roman law there were _furtum_\n(conversion), _rapina_ (forcible conversion) and _iniuria_ (wilful\naggression upon personality). All these involved _dolus_, i.e.\nintentional aggression. The _lex Aquilia_ added _damnum iniuria datum_\n(wrongful injury to property). Later there were added what might be\ncalled the equitable delicts of _dolus_ (fraud) and _metus_ (duress).\nHere also there was wilful aggression, and the delict of _dolus_ gets\nits name from the intentional misleading that characterizes it in\nRoman law as it does deceit in English law. In _damnum iniuria datum_,\na wider conception of fault, as distinguished from intentional\naggression, grew up by juristic development, and Aquilian _culpa_,\nthat is, a fault causing injury to property and therefore actionable\non the analogy of the _lex Aquilia_, furnished the model for the\nmodern law. All these may be fitted to the will theory and modern\nsystematic writers regularly do so. But noxal liability for injury\ndone by a child or slave or domestic animal did not fit it, nor did\nthe liability of a master of a ship, an innkeeper or a stable keeper\nto respond without regard to fault. Liability for injury done by child\nor slave or domestic animal was enforced in a noxal action on the\nanalogy of the action which lay for the same injury if done by the\ndefendant in person. Hence procedurally it seemed liability for a\ndelict involving intentional aggression, and it was possible to say\nthat there was fault in not restraining the agency that did the\ninjury, although no fault had to be shown nor could absence of fault\nbe shown as a defence. There was fault because there was liability,\nfor all liability grew out of fault. Such treadings on the tail of its\nown argument are very common in legal reasoning. Likewise in the case\nof the absolute liability of the master of a ship, the innkeeper and\nthe stable keeper, the institutional writers could say that they were\nat fault in not having proper servants, although here also fault need\nnot be established by proof nor could want of fault be made a defence.\nAs procedurally these liabilities arose in actions on the facts of\nparticular cases, the jurists at first lumped them with many other\nforms of liability, which were not in fact dependent on intention and\nwere enforced in actions _in factum_, as obligations arising from the\nspecial facts of cases (_obligationes ex uariis causarum figuris_).\nLater they were called quasi-delictual obligations and they are so\ndesignated in the fourfold classification of the Institutes. Buckland\nhas remarked that in almost all of the liabilities included under\nquasi-delict in the Institutes there is liability at one's peril for\nthe act of another, especially for one's servant, as in the noxal\nactions, the _actio de deiectis et diffusis_ (for things thrown or\npoured from buildings upon a way) and the _actio de recepto_ against\nan innkeeper. In other words, in these cases one was held without\nregard to fault for injuries incidental to the conduct of certain\nenterprises or callings and for failure to restrain potentially\ninjurious agencies which one maintained.\n\nModern law has given up both the nominate delicts and quasi-delict, as\nthings of any significance. The French civil code made the idea of\nAquilian _culpa_ into a general theory of delictal liability, saying,\n\"Every act of man which causes damage to another obliges him through\nwhose fault it happened to make reparation.\" In other words, liability\nis to be based on an act, and it must be a culpable act. Act,\nculpability, causation, damage, were the elements. This simple theory\nof liability for culpable causation of damage was accepted universally\nby civilians until late in the nineteenth century and is still\northodox. Taken up by text writers on torts in the last half of that\ncentury, it had much influence in Anglo-American law. But along with\nthis generalization the French code preserved a liability without\nfault, developed out of the noxal actions, whereby parents and\nteachers may be held for injuries by minors under their charge,\nmasters for injuries by their apprentices, employers for injuries by\nemployees and those in charge of animals for injuries by such animals.\nAlso it provided an absolute liability for injury by a _res ruinosa_,\ndeveloped out of the Roman _cautio damni infecti_. In the case of\nparents, teachers and masters of apprentices, there is only a\npresumption of fault. They may escape by showing affirmatively that\nthey were without fault and that what happened could not have been\nprevented by diligence on their part. In the case of employers no\nexcuse is admitted. The liability is absolute. In the case of\nanimals, fault of the victim, inevitable accident and _vis maior_ may\nbe shown affirmatively by way of defence. In the case of a _res\nruinosa_ there is no presumption of fault. But if the structure fell\nor did injury because of a defect of construction or want of repair,\nthe owner is liable absolutely and may not show that he had no notice\nof the defect and no reason to suspect it, or that it was not in his\npower to prevent the structure from falling.\n\nThus it will be seen that French law came very near to a logically\nconsistent scheme of liability for fault, and civil liability for\nfault only, throughout the whole delictal field. Employer's liability\nremained absolute, and liability for animals but little short of\nabsolute. For the rest there was in certain cases an imposition of the\nburden of proof that there had been no fault, leaving the ultimate\nliability to rest upon a presumed fault, if want of fault was not\nestablished. None the less this, the most thoroughgoing attempt to\nmake delictal liability flow exclusively from culpability--to make it\na corollary of fault and of fault only--fell short of complete\nattainment of its aim. Recent French authors do not hesitate to say\nthat the attempt must be given over and that a new theory of civil\ndelictal liability must be worked out. Meanwhile the same movement\naway from the simple theory of delictal liability for culpable\ncausation of damage had taken place elsewhere on the Continent.\nBinding had subjected the _culpa-prinzip_ to thorough analysis, and\nfollowing him it had come to be rejected generally by recent German\nand Swiss jurists.\n\nIn the common law, as has been said, we begin likewise with a set of\nnominate torts--assault, battery, imprisonment, trespass on lands,\ntrespass on chattels, conversion, deceit, malicious prosecution,\nslander and libel--developed procedurally through the action of\ntrespass and the action of trespass on the case. All of these, except\ntrespass on lands, trespass upon possession of chattels and\nconversion, are cases of intentional injury. Trespass on lands,\ntrespass on chattels and conversion involve more than the general\nsecurity and must be considered in connection with ideas of property.\nThe social interest in security of acquisitions demands that we be\nable to rely on others keeping off of our lands and not molesting our\nchattels; that they find out for themselves and at their own risk\nwhere they are or with whose chattels they are meddling. But even here\nthere must be an act. If there is no act, there is no liability. To\nthese nominate torts, each with its own special rules, coming down\nfrom the strict law, we added a new ground of liability, namely,\nnegligence, going on a principle, not of duty to answer for\naggression, but of duty to answer for injuries resulting from falling\nshort of a legal standard of conduct governing affirmative courses of\naction. Some, indeed, sought to give us a \"tort of negligence\" as a\nnominate tort. But it was soon recognized that in negligence we have a\nprinciple of liability dependent upon a standard, not a tort to be\nranged alongside of assault or imprisonment. Later, with the rise of\ndoctrines as to injury to advantageous relations and the failure of\nnegligence to account for all unintended harms of which the law\nactually was taking note, we developed an indefinite number of\ninnominate torts. Today with the obsolescence of procedural\ndifficulties, there is no reason why we should not generalize, as the\ncivil law did at the beginning of the last century; and such a\ngeneralization was attempted in the last third of the nineteenth\ncentury. It became orthodox common law that liability was a corollary\nof fault. So far as established common-law rules imposed a liability\nwithout fault, they were said to be historical exceptions, and some of\nour courts, under the influence of this theory, were willing to go a\nlong way in abrogating them. Liability, without regard to fault, for\nthe acts of servants and employees was reconciled with this theory by\nthe fiction of representation, exposed long ago by Mr. Justice Holmes\nand later by Dr. Baty. Finally it came to be thought that no liability\nwithout fault was not merely common law but was natural law and that\nany legislative imposition of such liability was arbitrary and\nunreasonable in itself and hence unconstitutional. On that theory,\nthe New York Court of Appeals held workmen's compensation\nunconstitutional, and a minority of the Supreme Court of the United\nStates recently announced the same proposition.\n\nBecause of its implications for constitutional law, in view of the\nincreasing frequency of legislation imposing responsibility at one's\nperil in certain enterprises, in the case of certain dangerous\nagencies and in situations where it is felt that the loss should be\nborne by all of us rather than by the luckless individual who chances\nto be hurt, the basis of tort liability has become a question of\nmoment beyond the immediate law of torts. It is a practical question\nof the first importance, as well as a theoretical question of\ninterest, whether we are to generalize our whole system of tort\nliability by means of one principle of liability for fault and for\nfault only, as the French sought to do and as we later sought to do\nlargely under their influence, or, on the other hand, are to admit\nanother source of delictal liability alongside of fault, as the French\nlaw does in fact and is coming to do in theory, and as our law has\nalways done in fact. For in our law as it stands one may perceive\nreadily three types of delictual liability: (1) Liability for\nintentional harm, (2) liability for unintentional culpable harm, (3)\nliability in certain cases for unintended non-culpable harm. The first\ntwo comport with the doctrine of no liability without fault. The third\ncannot be fitted thereto. We must either brand cases of the third type\nas historical anomalies, of which we are gradually to rid ourselves,\nor else revise our notions of tort liability. Let us remember that the\nnineteenth century was well advanced before we understood the subject\nof negligence and that before we had convinced ourselves that no\nliability without fault was orthodox common law, the highest court of\nEngland had given absolute liability a new field by the decision in\n_Rylands_ v. _Fletcher_. We are not questioning a long-established\ndogma in Anglo-American administration of justice, therefore, when we\nask whether the orthodox theory of the last generation is adequate as\nan analytical statement of the law that is, or as a philosophical\ntheory of the law that ought to be. My own belief is that it is\nneither.\n\nSuppose that instead of beginning with the individual free will we\nbegin with the wants or claims involved in civilized society--as it\nhas been put, with the jural postulates of civilized society. One such\npostulate, I think we should agree, is that in civilized society men\nmust be able to assume that others will do them no intended\ninjury--that others will commit no intentional aggressions upon them.\nThe savage must move stealthily, avoid the sky-line and go armed. The\ncivilized man assumes that no one will attack him and so moves among\nhis fellow men openly and unarmed, going about his business in a\nminute division of labor. Otherwise there could be no division of\nlabor beyond the differentiation of men of fighting age, as we see it\nin a primitive society. This postulate is at the foundation of\ncivilized society. Everywhere _dolus_ is first dealt with. The system\nof nominate delicts or nominate torts, both in Roman law and in our\nlaw, proceeds on this postulate.\n\nIs it not another such postulate that in civilized society men must be\nable to assume that their fellow men, when they act affirmatively,\nwill do so with due care, that is with the care which the ordinary\nunderstanding and moral sense of the community exacts, with respect to\nconsequences that may reasonably be anticipated? Such a postulate is\nthe basis of delictal _culpa_, using _culpa_ in the narrower sense,\nand of our doctrine of negligence. In Roman law and at one time in our\nlaw attempts were made to develop this postulate contractually. If in\na transaction involving good faith--that is an informal legal\ntransaction--one's conduct fell short of action to which the other\nparty was justified by the understanding of upright men in expecting\nhim to adhere, there was contractual _culpa_; there was a violation of\na promise implied in the transaction and consequent liability. We\nborrowed something of this mode of thought from the Romans in our law\nof bailments and hence think indifferently in terms of tort or\ncontract in that connection, although historically our action for such\ncases is delictal. In other connections also our law for a time sought\nto develop this postulate contractually by means of an \"implied\nundertaking to use skill\" for which one must answer if his skill fell\nshort of that which the legal standard of affirmative conduct called\nfor under the circumstances. Also in the Year Books an undertaking\nimplied in certain relations or callings to use the skill or diligence\nwhich the relation or calling demanded is often made the basis of\nliability. But here the basis of liability must be found in a\nrelation. The fiction of an undertaking to use the skill or diligence\ninvolved in a relation or calling is a juristic way of saying that one\nwho deals with another in such a relation or with another who\nprofesses such a calling is justified in assuming the skill and\ndiligence ordinarily involved therein, so that the law holds those in\nthe relation or engaged in the calling to that standard in order to\nmaintain the general security. In other words another, though closely\nrelated, postulate of civilized society is involved.\n\nIt is worth a moment's digression to suggest that such things show how\nlittle the historical categories of delict and contract represent any\nessential or inherent need of legal thinking. Austin thought that \"the\ndistinction of obligations (or of duties corresponding to rights\nagainst persons specifically determined) into obligations which arise\nfrom contracts, obligations which arise from injuries, and obligations\nwhich arise from incidents which are neither contracts nor injuries,\"\nwas a \"necessary distinction,\" without which a \"system of law evolved\nin a refined community\" could not be conceived. This \"necessary\"\nsystematic scheme, which must be \"a constituent part\" of any\nimaginable developed legal system, is but the Roman division into\nobligations _ex contractu_, obligations _ex delicto_ and obligations\n_ex uariis causarum figuris_, in which the third category is obviously\na catch-all. In trying to fit our law into this necessary scheme, we\nfind three types of cases must go in the third: (a) Duties or\nliabilities attached by law to a relation, (b) duties imposed by law\nto prevent unjust enrichment, (c) duties involved in an office or\ncalling. In the third of these our Anglo-American procedure allows\nrecovery either _ex delicto_ or _ex contractu_. In the second our law\nsometimes goes on a property theory of constructive trust. In the\nfirst duties are sometimes sanctioned affirmatively by conferring\nlegal powers or negatively by legal non-restraint of natural powers,\nas in the law of domestic relations, where the wife has a power to\npledge the husband's credit for necessaries and the law does not\ninterfere with the parent's administering reasonable \"correction\" to\nthe child. Are we to say that these dogmatic departures of our law\nfrom the Roman scheme are inconceivable or that because of them our\nlaw is not matured or was not \"evolved in a refined community?\" Or are\nwe to say that Austin derived his systematic ideas, not from\nscientific study of English law, but from scientific study of Roman\nlaw in a German university? Are we to say that we cannot \"imagine\ncoherently\" a system of law which enforces warranties indifferently\n_ex contractu_ or _ex delicto_ as our law does, or which goes further\nand applies the contract measure of damage _ex delicto_ as does the\nlaw of Massachusetts? But enough of this. What we have here is not any\nnecessary distinction. It is rather what Austin calls a \"pervading\nnotion,\" to be found generally in the systematic ideas of developed\nlegal systems by derivation from the Roman books. Roman law may have a\ncontractual conception of obligation _ex delicto_--thinking of the\ndelict as giving rise to a debt--and the common law a delictual\nconception of liability upon contract--thinking in terms of recovery\nof damages for the wrong of breaking a promise--without much\ndifference in the ultimate results. The fundamental things are not\ntort and contract but justifiable assumptions as to the mode in which\none's fellow men will act in civilized society in many different\nsituations of which aggression and undertaking are but two common\ntypes.\n\nReturning to our second postulate of due care in affirmative courses\nof conduct, we may note that in the society of today it is no less\nfundamental than the postulate of no intentional aggression.\nAggression is the chief if not the only form of anti-social conduct in\na primitive society. Indeed, a Greek writer on law and politics of the\nfifth century B. C. knew of no other subject of legal precepts. But\nwith the development of machinery and consequent increase in human\npowers of action, the general security comes to be threatened quite as\nmuch by the way in which one does things as by what he does.\nCarelessness becomes a more frequent and more serious source of danger\nto the general security than aggression. Hence a set of nominate\ndelicts requiring _dolus_ is supplemented by a theory of _culpa_.\nHence a set of nominate torts, characterized by intentional\naggression, is supplemented by liability for negligence, and the\nlatter becomes the more important source of legal liability in\npractice.\n\nMust we not recognize also a third postulate, namely, that men must\nbe able to assume that others, who keep things or maintain conditions\nor employ agencies that are likely to get out of hand or escape and do\ndamage, will restrain them or keep them within proper bounds? Just as\nwe may not go effectively about our several businesses in a society\ndependent on a minute division of labor if we must constantly be on\nguard against the aggressions or the want of forethought of our\nneighbor, so our complex social order based on division of labor may\nnot function effectively if each of us must stay his activities\nthrough fear of the breaking loose or getting out of hand of something\nwhich his neighbor harbors or maintains. There is danger to the\ngeneral security not only in what men do and the way in which they do\nit, but also in what they fail to do in not restraining things they\nmaintain or agencies they employ which may do injury if not kept\nstrictly in hand. The general security is threatened by wilful\naggression, by affirmative action without due regard for others in the\nmode of conducting it, and by harboring and maintaining things and\nemploying agencies likely to escape or to go out of bounds and do\ndamage. Looked at in this way, the ultimate basis of delictal\nliability is the social interest in the general security. This\ninterest is threatened or infringed in three ways: (1) Intentional\naggression, (2) negligent action, (3) failure to restrain potentially\ndangerous things which one maintains or potentially dangerous agencies\nwhich one employs. Accordingly these three are the immediate bases of\ndelictal liability.\n\nControversial cases of liability without fault involve the third\npostulate. Systematic writers have found no difficulty in reconciling\nthe law of negligence with the will theory of liability and the\ndoctrine of no liability without fault. Yet they must use the term\nfault in a strained sense in order to fit our law of negligence with\nits objective standard of due care, or the Roman cases of liability\nfor _culpa_ judged by the abstract standard, into any theory of moral\nblameworthiness. The doctrine of liability for fault and for fault\nonly has its roots in the stage of equity and natural law, when the\nmoral and the legal are identified, and means that one shall respond\nfor injuries due to morally blameworthy conduct upon his part. As Ames\nputs it, \"the unmoral standard of acting at one's peril\" is replaced\nby the question, \"Was the act blameworthy?\" But is an act blameworthy\nbecause the actor has a slow reaction time or was born impulsive or is\nnaturally timid or is easily \"rattled\" and hence in an emergency does\nnot come up to the standard of what a reasonably prudent man would do\nin such an emergency, as applied _ex post facto_ by twelve average men\nin the jury box? If our use of \"culpable\" here were not, as it were,\nPickwickian, we should allow the defendant in such cases to show what\nsort of man nature had made him and to call for individualization with\nrespect to his character and temperament as well as with respect to\nthe circumstances under which he acted. As the Romanist would say, we\nshould apply a concrete standard of _culpa_. But what the law is\nreally regarding is not his culpable exercise of his will but the\ndanger to the general security if he and his fellows act affirmatively\nwithout coming up to the standard imposed to maintain that security.\nIf he acts, he must measure up to that standard at his peril of\nanswering for injurious consequences. Whenever a case of negligence\ncalls for sharp application of the objective standard, fault is as\nmuch a dogmatic fiction as is representation in the liability of the\nmaster for the torts of his servant. In each case the exigencies of\nthe will theory lead us to cover up a liability irrespective of fault,\nimposed to maintain the general security, by a conclusive imputation\nof fault to one who may be morally blameless. This is no less true of\ncases where we speak of \"negligence _per se_.\"\n\nReconciliation of common-law absolute liabilities for the getting out\nof hand of things likely to escape and do damage with the doctrine of\nno liability without fault has been sought by means of a fiction of\nnegligence, by pronouncing them disappearing historical anomalies, by\nan economic interpretation that regards them as results of class\ninterest distorting the law, and by a theory of _res ipsa loquitur_.\nBlackstone resorted to the first of these. \"A man is answerable,\"\nhe said, \"for not only his own trespass but for that of his cattle\nalso; for if by his negligent keeping they stray upon the land of\nanother ... this is a trespass for which the owner must answer in\ndamages.\" But note that the negligence here is a dogmatic fiction. No\nproof of negligence is required of the plaintiff, nor may the\ndefendant show that there was in fact no negligence. The negligence is\nestablished by the liability, not the liability by the negligence.\n\nIn the last century it was usual to refer to absolute liability for\ntrespassing animals, for injuries by wild animals and for injuries by\ndomestic animals, known to be vicious, as disappearing rudiments of\nthe old liability to make composition. The common American doctrine as\nto cattle running at large upon uncultivated lands seemed to confirm\nthis. Yet one need but look beneath the surface to see that the\nEnglish rule was rejected for a time in America, not because it was\nin conflict with a fundamental principle of no liability without\nfault, but because it presupposed a settled community, where it was\ncontrary to the general security to turn cattle out to graze, whereas\nin pioneer American communities of the past vacant lands which were\nowned and those which were not owned could not be distinguished and\nthe grazing resources of the community were often its most important\nresources. The common-law rule, without regard to its basis, was for a\ntime inapplicable to local conditions. It is significant that as the\nconditions that made the rule inapplicable have come to an end the\nrule has generally re-established itself. In England it is in full\nvigor so that the owner of trespassing animals is held for disease\ncommunicated by them although he had no knowledge or reason to suppose\nthey were diseased. A rule that can re-establish itself and extend its\nscope in this way is not moribund. It must have behind it some basis\nin the securing of social interests. Nor have the attempts of some\nAmerican courts to narrow common-law liability for injuries by known\nvicious animals to cases of negligent keeping made much headway. The\nweight of American authority remains with the common-law rule and in\nEngland the Court of Appeal has carried the rule out to the extent of\nholding the owner notwithstanding the animal was turned loose by the\nwrongful act of an intermeddling third person. Nor have the\npredictions that the doctrine of _Rylands_ v. _Fletcher_ would\ndisappear from the law through the courts' smothering it with\nexceptions--predictions commonly made at the end of the last\ncentury--been verified in the event. In 1914 the English courts\nrefused to limit the doctrine to adjacent free-holders and they have\nsince extended it to new situations. Moreover in America, where we had\nbeen told it was decisively rejected, it has been applied in the past\ndecade by more than one court. The leading American cases that profess\nto reject the doctrine did not involve it nor did they involve the\npostulate of civilized society on which, as I think, it is based. Also\nthe Court of Appeals of New York, the leading exponent of no\nliability without fault, had theretofore imposed a liability without\nregard to negligence in the case of blasting.\n\nAn ingenious explanation of the doctrine of _Rylands_ v. _Fletcher_ by\nmeans of the economic interpretation of legal history demands more\nnotice. We are told that the English courts were manned by landowners\nor by judges drawn from the land-owning class; that the doctrine of\n_Rylands_ v. _Fletcher_ is a doctrine for landowners and so was not\naccepted by artisans in the United States. But consider which states\napplied the rule and which rejected it. It was applied in\nMassachusetts in 1872, in Minnesota in 1872, in Ohio in 1896, in West\nVirginia in 1911, in Missouri in 1913, in Texas in 1916. It was\nrejected by New Hampshire in 1873, by New York in 1873, by New Jersey\nin 1876, by Pennsylvania in 1886, by California in 1895, by Kentucky\nin 1903, by Indiana in 1911. Is New York a community of artisans but\nMassachusetts a community of landowners? Did the United States begin\nto change from a country of artisans to one of landowners about the\nyear 1910 so that a drift toward the doctrine began at that time after\na steady rejection of it between 1873 and 1896? _Rylands_ v.\n_Fletcher_ was decided in 1867 and is connected with the movement\nDicey calls collectivism, which, he says, began in 1865. It is a\nreaction from the notion of liability merely as a corollary of\nculpability. It restrains the use of land in the interest of the\ngeneral security. If this view is well taken, if it was an attempt to\ntake account of the social interest in the general security in a\ncrowded country, this may explain the reluctance with which it was\nreceived in the United States at first, where pioneer ideas,\nappropriate to a less crowded agricultural country, lingered at least\nto the end of the nineteenth century. In the actual American\ndecisions, some follow _Rylands_ v. _Fletcher_ as an authoritative\nstatement of the common law. Other cases go rather on the principle\nthat liability flows from culpability. Agricultural states and\nindustrial states alike divide along these doctrinal lines.\nMassachusetts and Pennsylvania, both industrial states, are on\nopposite sides. So are Texas and Kentucky, which are agricultural\nstates. Massachusetts and New Jersey, each with an appointive bench,\nare on opposite sides, and so are Ohio and New York, each with an\nelective bench. In truth the Massachusetts court followed authority.\nIn New Hampshire Chief Justice Doe was not willing to go on mere\nauthority and decided on the general principle that liability must\nflow from fault.\n\nAnother view is that the doctrine of _Rylands_ v. _Fletcher_ is a\ncrude attempt, when negligence and the doctrine of _res ipsa loquitur_\nwere none too well understood, to apply the principle of the latter\ndoctrine, and that those doctrines will suffice to reach the actual\nresult. No doubt _res ipsa loquitur_ gives a possible mode of treating\ncases where one maintains something likely to get out of hand and do\ninjury. For four possible solutions may be found for such cases. One\nis absolute liability, as in _Rylands_ v. _Fletcher_. Another is to\nput the burden of proof of due care on the defendant, as French law\ndoes in some cases and as is done by some American decisions and some\nstatutes in case of fires set by locomotives. A third is to apply the\ndoctrine of _res ipsa loquitur_. A fourth would be to require the\nplaintiff to prove negligence, as is done by the Supreme Court of New\nJersey where a known vicious animal breaks loose. That the fourth,\nwhich is the solution required by the theory of no liability without\nfault, has found but two courts to uphold it, and that only in the\ncase of vicious domestic animals, is suggestive. _Res ipsa loquitur_\nmay easily run into a dogmatic fiction, and must do so, if made to\nachieve the result of the doctrine of _Rylands_ v. _Fletcher_, which\ndoes not permit the defendant to go forward with proof, short of _vis\nmaior_ or the unanticipated unlawful act of a third person beyond\ndefendant's control. The vitality and persistence of the doctrine\nagainst theoretical assault for more than a generation show that it is\nmore than a historical anomaly or a dogmatic blunder.\n\nAnother type of common-law liability without fault, the so-called\nliability of the carrier as an insurer and the liability of the\ninnkeeper, is relational and depends upon a different postulate.\nNineteenth-century courts in the United States endeavored to hold down\nthe former, restricting it because of its inconsistency with the\ndoctrine of liability as a corollary of fault. But it has proved to\nhave abundant vitality, has been extended by legislation in some\nstates to carriers of passengers and has been upheld by recent\nlegislation everywhere.\n\nTwo other types of liability, contractual and relational, must receive\nbrief notice. The former has long done valiant service for the will\ntheory. Not only liability arising from legal transactions but\nliability attached to an office or calling, liability attached to\nrelations and liability to restitution in case of unjust enrichment\nhave been referred to express or implied undertaking and hence to the\nwill of the person held. But beneath the surface the so-called\ncontract by estoppel, the cases of acceptance of a wrongly transmitted\noffer, the doctrine that a public utility has no general power of\ncontract as to facilities or rates except to liquidate the terms of\nits relational duties in certain doubtful cases, and cases of\nimposition of duties on husband or wife after marriage by change of\nlaw, have caused persistent and recurring difficulties and call\neverywhere for a revision of our ideas. Also the objective theory of\ncontract has undermined the very citadel of the will theory. May we\nnot refer these phenomena, not to the will of the person bound, but to\nanother postulate of civilized society and its corollaries? May we not\nsay that in civilized society men must be able to assume that those\nwith whom they deal in the general intercourse of society will act in\ngood faith? If so, four corollaries will serve as the bases of four\ntypes of liability. For it will follow that they must be able to\nassume (a) that their fellow men will make good reasonable\nexpectations created by their promises or other conduct, (b) that they\nwill carry out their undertakings according to the expectation which\nthe moral sentiment of the community attaches thereto, (c) that they\nwill conduct themselves with zeal and fidelity in relations, offices\nand callings, and (d) that they will restore in specie or by\nequivalent what comes to them by mistake or unanticipated situation\nwhereby they receive what they could not have expected reasonably to\nreceive under such circumstances. Thus we come back to the idea of\ngood faith, the idea of the classical Roman jurists and of the\nphilosophical jurists of the seventeenth century, out of which the\nwill theory was but a metaphysical development. Only we give it a\nbasis in social philosophy where they sought a basis in theories of\nthe nature of transactions or of the nature of man as a moral\ncreature.\n\nLooking back over the whole subject, shall we not explain more\nphenomena and explain them better by saying that the law enforces the\nreasonable expectations arising out of conduct, relations and\nsituations, instead of that it proceeds upon willed action and willed\naction only, enforcing the willed consequences of declared intention,\nenforcing reparation for willed aggression and enforcing reparation\nfor culpable carrying on of willed conduct? If we explain more and\nexplain it more completely by saying that the ultimate thing in the\ntheory of liability is justifiable reliance under the conditions of\ncivilized society than by saying that it is free will, we shall have\ndone all that we may hope to do by any theory.\n\n\n\n\nV\n\nProperty\n\n\nEconomic life of the individual in society, as we know it, involves\nfour claims. One is a claim to the control of certain corporeal\nthings, the natural media on which human existence depends. Another is\na claim to freedom of industry and contract as an individual asset,\napart from free exercise of one's powers as a phase of personality,\nsince in a highly organized society the general existence may depend\nto a large extent upon individual labor in specialized occupations,\nand the power to labor freely at one's chosen occupation may be one's\nchief asset. Third, there is a claim to promised advantages, to\npromised performances of pecuniary value by others, since in a complex\neconomic organization with minute division of labor and enterprises\nextending over long periods, credit more and more replaces corporeal\nwealth as the medium of exchange and agency of commercial activity.\nFourth, there is a claim to be secured against interference by\noutsiders with economically advantageous relations with others,\nwhether contractual, social, business, official or domestic. For not\nonly do various relations which have an economic value involve claims\nagainst the other party to the relation, which one may demand that the\nlaw secure, but they also involve claims against the world at large\nthat these advantageous relations, which form an important part of the\nsubstance of the individual, shall not be interfered with. Legal\nrecognition of these individual claims, legal delimitation and\nsecuring of individual interests of substance is at the foundation of\nour economic organization of society. In civilized society men must be\nable to assume that they may control, for purposes beneficial to\nthemselves, what they have discovered and appropriated to their own\nuse, what they have created by their own labor and what they have\nacquired under the existing social and economic order. This is a\njural postulate of civilized society as we know it. The law of\nproperty in the widest sense, including incorporeal property and the\ngrowing doctrines as to protection of economically advantageous\nrelations, gives effect to the social want or demand formulated in\nthis postulate. So also does the law of contract in an economic order\nbased upon credit. A social interest in the security of acquisitions\nand a social interest in the security of transactions are the forms of\nthe interest in the general security which give the law most to do.\nThe general safety, peace and order and the general health are secured\nfor the most part by police and administrative agencies. Property and\ncontract, security of acquisitions and security of transactions are\nthe domain in which law is most effective and is chiefly invoked.\nHence property and contract are the two subjects about which\nphilosophy of law has had the most to say.\n\nIn the law of liability, both for injuries and for undertakings,\nphilosophical theories have had much influence in shaping the actual\nlaw. If they have grown out of attempts to understand and explain\nexisting legal precepts, yet they have furnished a critique by which\nto judge those precepts, to shape them for the future and to build new\nones out of them or upon them. This is much less true of philosophical\ntheories of property. Their role has not been critical or creative but\nexplanatory. They have not shown how to build but have sought to\nsatisfy men with what they had built already. Examination of these\ntheories is an illuminating study of how philosophical theories of law\ngrow out of the facts of time and place as explanations thereof and\nthen are given universal application as necessarily explanatory or\ndeterminative of social and legal phenomena for all time and in every\nplace. It has been said that the philosophy of law seeks the permanent\nor enduring element in the law of the time and place. It would be\nquite as true to say that it seeks to find in the law of the time and\nplace a permanent or enduring picture of universal law.\n\nIt has been said that the individual in civilized society claims to\ncontrol and to apply to his purposes what he discovers and reduces to\nhis power, what he creates by his labor, physical or mental, and what\nhe acquires under the prevailing social, economic or legal system by\nexchange, purchase, gift or succession. The first and second of these\nhave always been spoken of as giving a \"natural\" title to property.\nThus the Romans spoke of them as modes of \"natural acquisition\" by\noccupation or by specification (making a species, i.e., creation).\nIndeed, taking possession of what one discovers is so in accord with a\nfundamental human instinct that discovery and occupation have stood in\nthe books ever since substantially as the Romans stated them. A\nstriking example of the extent to which this doctrine responds to\ndeep-seated human tendencies is afforded by the customs as to\ndiscovery of mineral on the public domain upon which American mining\nlaw is founded and the customs of the old whale-fishery as to\nfast-fish and loose-fish which were recognized and given effect by the\ncourts. But there is a difficulty in the case of creation or\nspecification in that except where the creation is mental only\nmaterials must be used, and the materials or tools employed may be\nanother's. Hence Grotius reduced creation by labor to occupation,\nsince if one made from what he discovered, the materials were his by\noccupation, and if not, the title of others to the materials was\ndecisive. This controversy as to the respective claims of him who\ncreates by labor and him who furnishes the materials goes back to the\nRoman jurists of the classical period. The Proculians awarded the\nthing made to the maker because as such it had not existed previously.\nThe Sabinians awarded it to the owner of the materials because without\nmaterials the new thing could not have been made. In the maturity of\nRoman law a compromise was made, and various compromises have obtained\never since. In modern times, however, the claim of him who creates has\nbeen urged by a long line of writers beginning with Locke and\nculminating in the socialists. The Romans spoke of what one acquired\nunder the prevailing social, economic or legal system as held by\n\"civil\" acquisition and conceived that the principle _suum cuique\ntribuere_ secured the thing so acquired as being one's own.\n\nRoman jurists recognized that certain things were not subject to\nacquisition in any of the foregoing ways. Under the influence of the\nStoic idea of _naturalis ratio_ they conceived that most things were\ndestined by nature to be controlled by man. Such control expressed\ntheir natural purpose. Some things, however, were not destined to be\ncontrolled by individuals. Individual control would run counter to\ntheir natural purpose. Hence they could not be the subjects of private\nownership. Such things were called _res extra commercium_. They might\nbe excluded from the possibility of individual ownership in any of\nthree ways. It might be that from their nature they could only be\nused, not owned, and from their nature they were adapted to general\nuse. These were _res communes_. Or it might be that they were made for\nor from their nature they were adapted to public use, that is use for\npublic purposes by public functionaries or by the political\ncommunity. These were _res publicae_. Again it might be because they\nhad been devoted to religious purposes or consecrated by religious\nacts inconsistent with private ownership. Such things were _res\nsanctae_, _res sacrae_ and _res religiosae_. In modern law, as a\nresult of the medieval confusion of the power of the sovereign to\nregulate the use of things (_imperium_) with ownership (_dominium_)\nand of the idea of the corporate personality of the state, we have\nmade the second category into property of public corporations. And\nthis has required modern systematic writers to distinguish between\nthose things which cannot be owned at all, such as human beings,\nthings which may be owned by public corporations but may not be\ntransferred, and things which are owned by public corporations in full\ndominion. We are also tending to limit the idea of discovery and\noccupation by making _res nullius_ (e.g., wild game) into _res\npublicae_ and to justify a more stringent regulation of individual use\nof _res communes_ (e.g., of the use of running water for irrigation or\nfor power) by declaring that they are the property of the state or\nare \"owned by the state in trust for the people.\" It should be said,\nhowever, that while in form our courts and legislatures seem thus to\nhave reduced everything but the air and the high seas to ownership, in\nfact the so-called state ownership of _res communes_ and _res nullius_\nis only a sort of guardianship for social purposes. It is _imperium_,\nnot _dominium_. The state as a corporation does not own a river as it\nowns the furniture in the state house. It does not own wild game as it\nowns the cash in the vaults of the treasury. What is meant is that\nconservation of important social resources requires regulation of the\nuse of _res communes_ to eliminate friction and prevent waste, and\nrequires limitation of the times when, places where and persons by\nwhom _res nullius_ may be acquired in order to prevent their\nextermination. Our modern way of putting it is only an incident of the\nnineteenth-century dogma that everything must be owned.\n\nIt is not hard to see how the Romans came to the distinction that has\nobtained in the books ever since. Some things were part of the\nRoman's _familia_, were used by him upon the public domain which he\noccupied or were traded by him to those with whom he had legal power\nof commercial intercourse. He acquired them by discovery, by capture\nin war, by labor in agriculture or as an artisan, by commercial\ntransactions or by inheritance. For these things private actions lay.\nOther things were no part of his or of anyone's household. They were\nused for political or military or religious purposes or, like rivers,\nwere put to use by everyone without being consumed thereby. As to\nthese, the magisterial rather than the judicial power had to be\ninvoked. They were protected or use of them was regulated and secured\nby interdicts. One could not acquire them so as to maintain a private\naction for them. Thus some things could be acquired and conveyed and\nsome could not. In order to be valid, however, according to juristic\ntheory the distinction must lie in the nature of things, and it was\ngeneralized accordingly.\n\nIn a time when large unoccupied areas were open to settlement and\nabundant natural resources were waiting to be discovered and\ndeveloped, a theory of acquisition by discovery and appropriation of\n_res nullius_, reserving a few things as _res extra commercium_, did\nnot involve serious difficulty. On the other hand, in a crowded world,\nthe theory of _res extra commercium_ comes to seem inconsistent with\nprivate property and the theory of discovery and occupation to involve\nwaste of social resources. As to the latter, we may compare the law of\nmining and of water rights on the public domain, which developed along\nlines of discovery and reduction to possession under the conditions of\n1849 and the federal legislation of 1866 and 1872, with recent\nlegislation proceeding on ideas of conservation of natural resources.\nThe former requires more consideration. For the argument that excludes\nsome things from private ownership may seem to apply more and more to\nland and even to movables. Thus Herbert Spencer says, in explaining\n_res communes_:\n\n\"If one individual interferes with the relations of another to the\nnatural media upon which the latter's life depends, he infringes the\nlike liberties of others by which his own are measured.\"\n\nBut if this is true of air and of light and of running water, men will\ninsist upon inquiring why it is not true of land, of articles of food,\nof tools and implements, of capital and even, it may be, of the\nluxuries upon which a truly human life depends. Accordingly, how to\ngive a rational account of the so-called natural right of property and\nhow to fix the natural limits of that right became vexed questions of\nphilosophical jurisprudence.\n\nAntiquity was content to maintain the economic and social _status quo_\nor at least to idealize it and maintain it in an ideal form. The\nMiddle Ages were content to accept _suum cuique tribuere_ as\nconclusive. It was enough that acquisition of land and movables and\nprivate ownership of them were part of the existing social system.\nUpon the downfall of authority, seventeenth-and eighteenth-century\njurists sought to put natural reason behind private property as\nbehind all other institutions. When Kant had undermined this\nfoundation, the nineteenth-century philosophical jurists sought to\ndeduce property from a fundamental metaphysical datum; the historical\njurists sought to record the unfolding of the idea of private property\nin human experience, thus showing the universal idea; the utilitarian\ndemonstrated private property by his fundamental test and the\npositivist established its validity and necessity by observation of\nhuman institutions and their evolution. In other words, here as\nelsewhere, when eighteenth-century natural law broke down, jurists\nsought to put new foundations under the old structure of natural\nrights, just as natural rights had been put as a new foundation to\nsupport institutions which theretofore had found a sufficient basis in\nauthority.\n\nTheories by which men have sought to give a rational account of\nprivate property as a social and legal institution may be arranged\nconveniently in six principal groups, each including many forms. These\ngroups may be called: (1) Natural-law theories, (2) metaphysical\ntheories, (3) historical theories, (4) positive theories, (5)\npsychological theories and (6) sociological theories.\n\nOf the natural-law theories, some proceed on a conception of\nprinciples of natural reason derived from the nature of things, some\non conceptions of human nature. The former continue the ideas of the\nRoman lawyers. They start with a definite principle found as the\nexplanation of a concrete case and make it a universal foundation for\na general law of property. As it has been put, they find a postulate\nof property and derive property therefrom by deduction. Such theories\nusually start either from the idea of occupation or from the idea of\ncreation through labor. Theories purporting to be based on human\nnature are of three forms. Some proceed on a conception of natural\nrights, taken to be qualities of human nature reached by reasoning as\nto the nature of the abstract man. Others proceed upon the basis of a\nsocial contract expressing or guaranteeing the rights derived by\nreason from the nature of man in the abstract. In recent thinking a\nthird form has arisen which may be called an economic natural law. In\nthis form of theory, a general foundation for property is derived from\nthe economic nature of man or from the nature of man as an economic\nentity. These are modern theories of natural law on an economic\ninstead of an ethical basis.\n\nGrotius and Pufendorf may be taken as types of the older natural-law\ntheories of property. According to Grotius, all things originally were\n_res nullius_. But men in society came to a division of things by\nagreement. Things not so divided were afterward discovered by\nindividuals and reduced to possession. Thus things came to be\nsubjected to individual control. A complete power of disposition was\ndeduced from this individual control, as something logically implied\ntherein, and this power of disposition furnished the basis for\nacquisition from others whose titles rested directly or indirectly\nupon the natural foundation of the original division by agreement or\nof subsequent discovery and occupation. Moreover, it could be argued\nthat the control of an owner, in order to be complete, must include\nnot only the power to give _inter vivos_ but also the power to provide\nfor devolution after death as a sort of postponed gift. Thus a\ncomplete system of natural rights of property was made to rest\nmediately or immediately upon a postulated original division by\nagreement or a subsequent discovery and occupation. This theory should\nbe considered in the light of the facts of the subject on which\nGrotius wrote and of the time when he wrote. He wrote on international\nlaw in the period of expansion and colonization at the beginning of\nthe seventeenth century. His discussion of the philosophical\nfoundation of property was meant as a preliminary to consideration of\nthe title of states to their territorial domain. As things were, the\nterritories of states had come down in part from the past. The titles\nrested on a sort of rough adjustment among the invaders of the Roman\nempire. They could be idealized as the result of a division by\nagreement and of successions to, or acquisitions from, those who\nparticipated therein. Another part represented new \"natural\" titles\nbased on discovery and occupation in the new world. Thus a Romanized,\nidealized scheme of the titles by which European states of the\nseventeenth century held their territories becomes a universal theory\nof property.\n\nPufendorf rests his whole theory upon an original pact. He argues that\nthere was in the beginning a \"negative community.\" That is, all things\nwere originally _res communes_. No one owned them. They were subject\nto use by all. This is called a negative community to distinguish it\nfrom affirmative ownership by co-owners. He declares that men\nabolished the negative community by mutual agreement and thus\nestablished private ownership. Either by the terms of this pact or by\na necessary implication what was not occupied then and there was\nsubject to acquisition by discovery and occupation, and derivative\nacquisition of titles proceeding from the abolition of the negative\ncommunity was conceived to be a further necessary implication.\n\nIn Anglo-American law, the justification of property on a natural\nprinciple of occupation of ownerless things got currency through\nBlackstone. As between Locke on the one side and Grotius and Pufendorf\non the other, Blackstone was not willing to commit himself to the need\nof assuming an original pact. Apparently he held that a principle of\nacquisition by a temporary power of control co-extensive with\npossession expressed the nature of man in primitive times and that\nafterwards, with the growth of civilization, the nature of man in a\ncivilized society was expressed by a principle of complete permanent\ncontrol of what had been occupied exclusively, including as a\nnecessary incident of such control the _ius disponendi_. Maine has\npointed out that this distinction between an earlier and a later stage\nin the natural right of property grew out of desire to bring the\ntheory into accord with Scriptural accounts of the Patriarchs and\ntheir relations to the land grazed by their flocks. In either event\nthe ultimate basis is taken to be the nature of man as a rational\ncreature, expressed in a natural principle of control of things\nthrough occupation or in an original contract providing for such\nownership.\n\nWith the revival of natural law in recent years a new phase of the\njustification of property upon the basis of human nature has arisen.\nThis was suggested first by economists who deduced property from the\neconomic nature of man as a necessity of the economic life of the\nindividual in society. Usually it is coupled with a psychological\ntheory on the one side and a social-utilitarian theory on the other\nside. In the hands of writers on philosophy of law it has often taken\non a metaphysical color. From another standpoint, what are essentially\nnatural-law theories have been advocated by socialists, either\ndeducing a natural right of the laborer to the whole produce of his\nlabor from a \"natural\" principle of creation or carrying out the idea\nof natural qualities of the individual human being to the point of\ndenying all private property as a \"natural\" institution and deducing\na general regime of _res communes_ or _res publicae_.\n\nMetaphysical theories of property are part of the general movement\nthat replaced seventeenth-and eighteenth-century theories of natural\nrights, founded on the nature of the abstract man or on an assumed\ncompact, by metaphysical theories. They begin with Kant. He first sets\nhimself to justify the abstract idea of _a_ law of property--the idea\nof a system of \"external _meum_ and _tuum_.\" Here, as everywhere else,\nhe begins with the inviolability of the individual human personality.\nA thing is rightfully mine, he says, when I am so connected with it\nthat anyone who uses it without my consent does me an injury. But to\njustify the law of property we must go beyond cases of possession\nwhere there is an actual physical relation to the object and\ninterference therewith is an aggression upon personality. The thing\ncan only be mine for the purposes of a legal system of _meum_ and\n_tuum_ where I will be wronged by another's use of it when it is not\nactually in my possession. This raises in the first instance the\nquestion \"How is a merely juridical or rational [as distinguished from\na purely physical] possession possible?\" He answers the question by a\nmetaphysical version of the occupation theory of the eighteenth\ncentury. Conceding that the idea of a primitive community of things is\na fiction, the idea of a logically original community of the soil and\nof the things upon it, he says, has objective reality and practical\njuridical reality. Otherwise mere objects of the exercise of the will,\nexempted therefrom by operation of law, would be raised to the dignity\nof free-willing subjects, although they have no subjective claim to be\nrespected. Thus the first possessor founds upon a common innate right\nof taking possession, and to disturb him is a wrong. The first taking\nof possession has \"a title of right\" behind it in the principle of the\noriginal common claim to possession. It results that this taker\nobtains a control \"realized by the understanding and independent of\nrelations of space,\" and he or those who derive from him may possess a\nparcel of land although remote from it physically. Such a possession\nis only possible in a state of civil society. In civil society, a\ndeclaration by word or act that an external thing is mine and making\nit an object of the exercise of my will is \"a juridical act.\" It\ninvolves a declaration that others are under a duty of abstaining from\nthe use of the object. It also involves an admission that I am bound\nin turn toward all others with respect to the objects they have made\n\"externally theirs.\" For we are brought to the fundamental principle\nof justice that requires each to regulate his conduct by a universal\nrule that will give like effect to the will of others. This is\nguaranteed by the legal order in civil society and gives us the regime\nof external mine and thine. Having thus worked out a theory of _meum_\nand _tuum_ as legal institutions, Kant turns to a theory of\nacquisition, distinguishing an original and primary from a derived\nacquisition. Nothing is originally mine without a juridical act. The\nelements of this legal transaction of original acquisition are three:\n(1) \"Prehension\" of an object which belongs to no one; (2) an act of\nthe free will interdicting all others from using it as theirs; (3)\nappropriation as a permanent acquisition, receiving a lawmaking force\nfrom the principle of reconciling wills according to a universal law,\nwhereby all others are obliged to respect and act in conformity to the\nwill of the appropriator with respect to the thing appropriated. Kant\nthen proceeds to work out a theory of derivative acquisition by\ntransfer or alienation, by delivery or by contract, as a legal giving\neffect to the individual will by universal rules, not incompatible\nwith a like efficacy in action of all other wills. This metaphysical\nversion of the Roman theory of occupation is evidently the link\nbetween the eighteenth century and Savigny's aphorism that all\nproperty is founded in adverse possession ripened by prescription.\n\nWhen Kant's theory is examined it will be found to contain both the\nidea of occupation and the idea of compact. Occupation has become a\nlegal transaction involving a unilateral pact not to disturb others in\nrespect of their occupation of other things. But the pact does not\nderive its efficacy from the inherent moral force of a promise as\nsuch or the nature of man as a moral creature which holds him to\npromises. Its efficacy is not found in qualities of promises or of\nmen, but in a principle of reconciling wills by a universal law, since\nthat principle requires one who declares his will as to object A to\nrespect the declaration of his neighbor's will as to object B. On the\nother hand, the idea of creation is significantly absent. Writing at\nthe end of the eighteenth century, in view of the ideas of Rousseau,\nwho held that the man who first laid out a plot of ground and said,\n\"This is mine,\" should have been lynched, and of the interferings with\nvested rights in Revolutionary France, Kant was not thinking how those\nwho had not might claim a greater share in what they produced but how\nthose who had might claim to hold what they had.\n\nHegel develops the metaphysical theory further by getting rid of the\nidea of occupation and treating property as a realization of the idea\nof liberty. Property, he says, \"makes objective my personal,\nindividual will.\" In order to reach the complete liberty involved in\nthe idea of liberty, one must give his liberty an external sphere.\nHence a person has a right to direct his will upon an external object\nand an object on which it is so directed becomes his. It is not an end\nin itself; it gets its whole rational significance from his will. Thus\nwhen one appropriates a thing, fundamentally he manifests the majesty\nof his will by demonstrating that external objects that have no wills\nare not self-sufficient and are not ends in themselves. It follows\nthat the demand for equality in the division of the soil and in other\nforms of wealth is superficial. For, he argues, differences of wealth\nare due to accidents of external nature that give to what A has\nimpressed with his will greater value than to what B has impressed\nwith his, and to the infinite diversity of individual mind and\ncharacter that leads A to attach his will to this and B to attach his\nwill to that. Men are equal as persons. With respect to the principle\nof possession they stand alike. Everyone must have property of some\nsort in order to be free. Beyond this, \"among persons differently\nendowed inequality must result and equality would be wrong.\"\n\nNineteenth-century metaphysical theories of property carry out these\nideas or develop this method. And it is to be noted that they are all\nopen to attack from the standpoint of the theory of _res extra\ncommercium_. Thus Hegel's theory comes to this: Personality involves\nexercise of the will with respect to things. When one has exercised\nhis will with respect to a thing and so has acquired a power of\ncontrol over it, other wills are excluded from this thing and are to\nbe directed toward objects with which other personalities have not\nbeen so identified. So long as there are vacant lands to occupy,\nundeveloped regions awaiting the pioneer, unexploited natural\nresources awaiting the prospector--in short, so long as there are\nenough physical objects in reach, if one may so put it, to go\nround--this would be consistent with the nineteenth-century theory of\njustice. But when, as at the end of the nineteenth century, the world\nbecomes crowded and its natural resources have been appropriated and\nexploited, so that there is a defect in material nature whereby such\nexercise of the will by some leaves no objects upon which the wills of\nothers may be exerted, or a deficiency such as to prevent any\nsubstantial exertion of the will, it is difficult to see how Hegel's\nargument may be reconciled with the argument put behind the conception\nof _res extra commercium_. Miller, a Scotch Hegelian, seeks to meet\nthis difficulty. He says that beyond what is needed for the natural\nexistence and development of the person, property \"can only be held as\na trust for the state.\" In modern times, however, a periodical\nredistribution, as in antiquity, is economically inadmissible. Yet if\nanyone's holdings were to exceed the bounds of reason, \"the\nlegislature would undoubtedly interfere on behalf of society and\nprevent the wrong which would be done by caricaturing an abstract\nright.\" In view of our bills of rights, an American Hegelian could not\ninvoke the _deus ex machina_ of an Act of Parliament so conveniently.\nPerhaps he would fall back on graduated taxation and inheritance\ntaxes. But does not Miller when hard pressed resort to something very\nlike social-utilitarianism?\n\nLorimer connects the metaphysical theory with theories resting on\nhuman nature. To begin with, he deduces the whole system of property\nfrom a fundamental proposition that \"the right to be and to continue\nto be implies a right to the conditions of existence.\" Accordingly he\nsays that the idea of property is inseparably connected \"not only with\nthe life of man but with organic existence in general\"; that \"life\nconfers rights to its exercise corresponding in extent to the powers\nof which it consists.\" When, however, this is applied in explaining\nthe basis of the present proprietary system in all its details resort\nmust be had to a type of artificial reasoning similar to that employed\nby the jurists of the seventeenth and eighteenth centuries. The\nabstract idea of ownership is not the only thing the legal philosopher\nhas to consider. Moreover the reasoning by which that application is\nmade may not be reconciled with the arguments by which the doctrine\nof _res extra commercium_ is regarded also as a bit of natural law.\n\nAlthough it purports to be wholly different, the positive theory of\nthe basis of property is essentially the same as the metaphysical.\nThus Spencer's theory is a deduction from a fundamental \"law of equal\nfreedom\" verified by observation of the facts of primitive society.\nBut the \"law of equal freedom\" supposed to be ascertained by\nobservation, in the same way in which physical or chemical laws are\nascertained, is in fact, as has often been pointed out, Kant's formula\nof justice. And the verification of deductions from this law by\nobservation of the facts of primitive civilization is not essentially\ndifferent from the verification of the deductions from the\nmetaphysical fundamental law carried on by the historical jurists. The\nmetaphysical jurist reached a principle metaphysically and deduced\nproperty therefrom. The historical jurist thereupon verified the\ndeduction by showing the same principle as the idea realizing itself\nin legal history. In the hands of the positivists the same principle\nis reached by observation, the same deduction is made therefrom, and\nthe deduction is verified by finding the institution latent in\nprimitive society and unfolding with the development of civilization.\nThe most notable difference is that the metaphysical and historical\njurists rely chiefly on primitive occupation of ownerless things,\nwhile the positivists have been inclined to lay stress upon creation\nof new things by labor. In any event, laying aside the verification\nfor the moment, the deduction as made by Spencer involves the same\ndifficulties as those involved in the metaphysical deduction.\nMoreover, like the metaphysical deduction, it accounts for an abstract\nidea of private property rather than for the regime that actually\nexists. Inequalities are assumed to be due to \"greater strength,\ngreater ingenuity or greater application\" of those who have acquired\nmore than their fellows. Hence, as the end of law is taken to be the\nbringing about of a maximum of individual free self-assertion, any\ninterference with one's holding the fruits of his greater strength or\ngreater ingenuity or greater application, and his resulting greater\nactivity in creative or acquisitive self-assertion, would contravene\nthe very purpose of the legal order. It will be noted also that this\ntheory, like all that had gone before, assumes a complete _ius\ndisponendi_ as implied in the very notion of property. But does not\nthis also require demonstration? Is the _ius disponendi_ implied in\nthe idea which they demonstrate or is it only an incident of the\ninstitution they are seeking to explain by the demonstration?\n\nHistorical jurists have maintained their theory on the basis of two\npropositions: (1) The conception of private property, like the\nconception of individual personality, has had slow but steady\ndevelopment from the beginnings of law; (2) individual ownership has\ngrown out of group rights just as individual interests of personality\nhave been disentangled gradually from group interests. Let us look at\neach of these propositions in some detail.\n\nIf we examine the law of property analytically, we may see three\ngrades or stages in the power or capacity which men have of\ninfluencing the acts of others with respect to corporeal objects. One\nis a mere condition of fact, a mere physical holding of or physical\ncontrol over the thing without any other element whatever. The Roman\njurists called this natural possession. We call it custody. Writers on\nanalytical jurisprudence regard it as an element of possession. But\nthis natural possession is something that may exist independently of\nlaw or of the state, as in the so-called _pedis possessio_ of American\nmining law, where, before law or state authority had been extended to\nthe public domain in the mining country, the miners recognized the\nclaim of one who was actually digging to dig without molestation at\nthat spot. The mere having of an object in one's actual grasp gives an\nadvantage. But it may be only an advantage depending on one's strength\nor on recognition of and respect for his personality by his fellow\nmen. It is not a legal advantage except as the law protects\npersonality. It is the physical person of the one in natural\npossession which is secured, not his relation to the thing held.\nAnalytically the next grade or stage is what the Romanist calls\njuristic possession as distinguished from natural possession. This is\na legal development of the extra-legal idea of custody. Where custody\nor the ability to reproduce a condition of custody is coupled with the\nmental element of intention to hold for one's own purposes, the legal\norder confers on one who so holds a capacity protected and maintained\nby law so to hold, and a claim to have the thing restored to his\nimmediate physical control should he be deprived of it. As the\nRomanist puts it, in the case of natural possession the law secures\nthe relation of the physical person to the object; in juristic\npossession the law secures the relation of the will to the object. In\nthe highest grade of proprietary relation, ownership, the law goes\nmuch further and secures to men the exclusive or ultimate enjoyment or\ncontrol of objects far beyond their capacity either to hold in custody\nor to possess--that is, beyond what they could hold by physical force\nand beyond what they could actually hold even by the help of the\nstate. Natural possession is a conception of pure fact in no degree\ndependent upon law. The legally significant thing is the interest of\nthe natural possessor in his personality. Possession or juristic\npossession is a conception of fact and law, existing as a pure\nrelation of fact, independent of legal origin, but protected and\nmaintained by law without regard to interference with personality.\nOwnership is a purely legal conception having its origin in and\ndepending on the law.\n\nIn general the historical development of the law of property follows\nthe line thus indicated by analysis. In the most primitive social\ncontrol only natural possession is recognized and interference with\nnatural possession is not distinguished from interference with the\nperson or injury to the honor of the one whose physical contact with\nthe physical object is meddled with. In the earlier legal social\ncontrol the all-important thing is seisin, or possession. This is a\njuristic possession, a conception both of fact and of law. Such\ninstitutions as tortious conveyance by the person seised in the\ncommon law are numerous in an early stage of legal development. They\nshow that primarily the law protected the relation to an object of one\nwho had possession of it. Indeed the idea of _dominium_, or ownership\nas we now understand it, was first worked out thoroughly in Roman law,\nand other systems got their idea of it, as distinguished from seisin,\nfrom the Roman books.\n\nRecognition of individual interests of substance, or in other words\nindividual property, has developed out of recognition of group\ninterests, just as recognition of individual interests of personality\nhas evolved gradually from what in the first instance was a\nrecognition of group interests. The statement which used to be found\nin the books that all property originally was owned in common means\nnothing more than this: When interests of substance are first secured\nthey are interests of groups of kindred because in tribally organized\nsociety groups of kindred are the legal units. Social control secures\nthese groups in the occupation of things which they have reduced to\ntheir possession. In this sense the first property is group property\nrather than individual property. Yet it must be noted that wherever we\nfind a securing of group interests, the group in occupation is secured\nagainst interference of other groups with that occupation. Two ideas\ngradually operated to break up these group interests and bring about\nrecognition of individual interests. One of these is the partition of\nhouseholds. The other is the idea of what in the Hindu law is called\nself-acquired property.\n\nIn primitive or archaic society as households grow unwieldy there is a\npartition which involves partition of property as well as of the\nhousehold. Indeed in Hindu law partition is thought of as partition of\nthe household primarily and as partition of property only\nincidentally. Also in Roman law the old action for partition is called\nthe action for partitioning the household. Thus, at first, partition\nis a splitting up of an overgrown household into smaller households.\nPresently, however, it tends to become a division of a household among\nindividuals. Thus in Roman law on the death of the head of a\nhousehold each of his sons in his power at his death became a _pater\nfamilias_ and could bring a proceeding to partition the inheritance\nalthough he might be the sole member of the household of which he was\nthe head. In this way individual ownership became the normal condition\ninstead of household ownership. In Hindu law household ownership is\nstill regarded as the normal condition. But with changes in society\nand the rise of commercial and industrial activity, a change has been\ntaking place rapidly which is making individual ownership the normal\ntype in fact, if not in legal theory.\n\nSelf-acquired property, the second disintegrating agency, may be seen\nin Hindu law and also in Roman law. In Hindu law all property is\nnormally and _prima facie_ household property. The burden is upon\nanyone who claims to be the individual owner of anything. But an\nexceptional class of property is recognized which is called\nself-acquired property. Such property might be acquired by \"valor,\"\nthat is, by leaving the household and going into military service and\nthus earning or acquiring by way of booty, or by \"learning,\" that is,\nby withdrawing from the household and devoting oneself to study and\nthus acquiring through the gifts of the pious or the exercise of\nknowledge. A third form was recognized later, namely, property\nacquired through the use of self-acquired property. In the same way in\nRoman law the son in the household, even if of full age, normally had\nno property. Legally all property acquired by any member of the\nhousehold was the property of the head of the household as the legal\nsymbol and representative thereof. Later the head of the household\nceases to be thought of as symbolizing the household and the property\nwas regarded legally as his individual property. But Roman law\nrecognized certain kinds of property which sons in the household might\nhold as their own. The first of these was property earned or acquired\nby the son in military service. Later property earned in the service\nof the state was added. Finally it came to be law that property\nacquired otherwise than through use of the patrimony of the household\nmight be held by the son individually though he remained legally under\nthe power of the head.\n\nIn the two ways just explained, through partition and through the idea\nof self-acquired property, individual interests in property came to be\nrecognized throughout the law. Except for the institution of community\nproperty between husband and wife in civil-law countries, or as it is\ncalled the matrimonial property regime, there is practically nothing\nleft of the old system of recognized group interests. And even this\nremnant of household group ownership is dissolving. All legally\nrecognized interests of substance in developed legal systems are\nnormally individual interests. To the historical jurist of the\nnineteenth century, this fact, coupled with the development of\nownership out of possession, served to show us the idea which was\nrealizing in human experience of the administration of justice and to\nconfirm the position reached by the metaphysical jurists. Individual\nprivate property was a corollary of liberty and hence law was not\nthinkable without it. Even if we do not adopt the metaphysical part of\nthis argument and if we give over the idealistic-political\ninterpretation of legal history which it involves, there is much which\nis attractive in the theory of the historical jurists of the last\ncentury. Yet as we look at certain movements in the law there are\nthings to give us pause. For one thing, the rise and growth of ideas\nof \"negotiability,\" the development of the maxim _possession vaut\ntitre_ in Continental law, and the cutting down in other ways of the\nsphere of recognition of the interest of the owner in view of the\nexigencies of the social interest in the security of transactions,\nsuggests that the tendency involved in the first of the two\npropositions relied on by the historical school has passed its\nmeridian. The Roman doctrine that no one may transfer a greater title\nthan he has is continually giving way before the demand for securing\nof business transactions had in good faith. And in Roman law in its\nmaturity the rules that restricted acquisition by adverse possession\nand enabled the owner in many cases to reclaim after any lapse of\ntime were superseded by a decisive limitation of actions which cut\noff all claims. The modern law in countries which take their law\nfrom Rome has developed this decisive limitation. Likewise in our\nlaw the hostility to the statute of limitations, so marked in\neighteenth-century decisions, has given way to a policy of upholding\nit. Moreover the rapid rise in recent times of limitations upon the\n_ius disponendi_, the imposition of restrictions in order to secure\nthe social interest in the conservation of natural resources, and\nEnglish projects for cutting off the _ius abutendi_ of the landowner,\ncould be interpreted by the nineteenth-century historical jurists only\nas marking a retrograde development. When we add that with the\nincrease in number and influence of groups in the highly organized\nsociety of today a tendency is manifest to recognize practically and\nin back-handed ways group property in what are not legal entities, it\nbecomes evident that the segment of experience at which the historical\njurists were looking was far too short to justify a dogmatic\nconclusion, even admitting the validity of their method.\n\nIt remains to consider some twentieth-century theories. These have not\nbeen worked out with the same elaboration and systematic detail as\nthose of the past, and as yet one may do no more than sketch them.\n\nAn instinctive claim to control natural objects is an individual\ninterest of which the law must take account. This instinct has been\nthe basis of psychological theories of private property. But thus far\nthese theories have been no more than indicated. They might well be\ncombined with the historical theory, putting a psychological basis in\nplace of the nineteenth-century metaphysical foundation. A\nsocial-psychological legal history might achieve much in this\nconnection.\n\nOf sociological theories, some are positivist, some psychological and\nsome social-utilitarian. An excellent example of the first is Duguit's\ndeduction from social interdependence through similarity of interest\nand through division of labor. He has but sketched this theory, but\nhis discussion contains many valuable suggestions. He shows clearly\nenough that the law of property is becoming socialized. But, as he\npoints out, this does not mean that property is becoming collective.\nIt means that we are ceasing to think of it in terms of private right\nand are thinking of it in terms of social function. If one doubts this\nhe should reflect on recent rent legislation, which in effect treats\nthe renting of houses as a business affected with a public interest in\nwhich reasonable rates must be charged as by a public utility. Also it\nmeans that cases of legal application of wealth to collective uses are\nbecoming continually more numerous. He then argues that the law of\nproperty answers to the economic need of applying certain wealth to\ndefinite individual or collective uses and the consequent need that\nsociety guarantee and protect that application. Hence, he says,\nsociety sanctions acts which conform to those uses of wealth which\nmeet that economic need, and restrains acts of contrary tendency. Thus\nproperty is a social institution based upon an economic need in a\nsociety organized through division of labor. It will be seen that the\nresults and the attitude toward the law of property involved are much\nthe same as those which are reached from the social-utilitarian\nstandpoint.\n\nPsychological sociological theories have been advanced chiefly in\nItaly. They seek the foundation of property in an instinct of\nacquisitiveness, considering it a social development or social\ninstitution on that basis.\n\nSocial-utilitarian theories explain and justify property as an\ninstitution which secures a maximum of interests or satisfies a\nmaximum of wants, conceiving it to be a sound and wise bit of social\nengineering when viewed with reference to its results. This is the\nmethod of Professor Ely's well-known book on Property and Contract. No\none has yet done so, but I suspect one might combine this mode of\nthought with the civilization interpretation of the Neo-Hegelians and\nargue that the system of individual property, on the whole, conduces\nto the maintaining and furthering of civilization--to the development\nof human powers to the most of which they are capable--instead of\nviewing it as a realization of the idea of civilization as it unfolds\nin human experience. Perhaps the theories of the immediate future will\nrun along some such lines. For we have had no experience of conducting\ncivilized society on any other basis, and the waste and friction\ninvolved in going to any other basis must give us pause. Moreover,\nwhatever we do, we must take account of the instinct of\nacquisitiveness and of individual claims grounded thereon. We may\nbelieve that the law of property is a wise bit of social engineering\nin the world as we know it, and that we satisfy more human wants,\nsecure more interests, with a sacrifice of less thereby than by\nanything we are likely to devise--we may believe this without holding\nthat private property is eternally and absolutely necessary and that\nhuman society may not expect in some civilization, which we cannot\nforecast, to achieve something different and something better.\n\n\n\n\nVI\n\nContract\n\n\nWealth, in a commercial age, is made up largely of promises. An\nimportant part of everyone's substance consists of advantages which\nothers have promised to provide for or to render to him; of demands to\nhave the advantages promised which he may assert not against the world\nat large but against particular individuals. Thus the individual\nclaims to have performance of advantageous promises secured to him. He\nclaims the satisfaction of expectations created by promises and\nagreements. If this claim is not secured friction and waste obviously\nresult, and unless some countervailing interest must come into account\nwhich would be sacrificed in the process, it would seem that the\nindividual interest in promised advantages should be secured to the\nfull extent of what has been assured to him by the deliberate promise\nof another. Let us put this in another way. In a former lecture I\nsuggested, as a jural postulate of civilized society, that in such a\nsociety men must be able to assume that those with whom they deal in\nthe general intercourse of the society will act in good faith, and as\na corollary must be able to assume that those with whom they so deal\nwill carry out their undertakings according to the expectations which\nthe moral sentiment of the community attaches thereto. Hence, in a\ncommercial and industrial society, a claim or want or demand of\nsociety that promises be kept and that undertakings be carried out in\ngood faith, a social interest in the stability of promises as a social\nand economic institution, becomes of the first importance. This social\ninterest in the security of transactions, as one might call it,\nrequires that we secure the individual interest of the promisee, that\nis, his claim or demand to be assured in the expectation created,\nwhich has become part of his substance.\n\nIn civil-law countries the interest of the promisee, and thus the\nsocial interest in the security of transactions, is well secured. The\ntraditional requirement of a _causa ciuilis_, a civil, i.e., legal,\nreason for enforcing a pact, gave way before natural-law ideas in the\neighteenth century. Pothier gave over the contract categories of the\nRoman law as being \"very remote from simplicity.\" Then came the rise\nof the will theory of legal transactions in the nineteenth century.\nFrench law made intention of gratuitously benefiting another a\n_causa_. The Austrian code of 1811 presumed a _causa_, requiring a\npromisor to prove there was none. And this means that he must prove\nthe promise was not a legal transaction--that there was no intention\nto enter into a binding undertaking. In the result, abstract promises,\nas the civilian calls them, came to be enforced equally with those\nwhich came under some formal Roman category and with those having a\nsubstantial presupposition. Modern Continental law, apart from certain\nrequirements of proof, resting on the same policy as our Statute of\nFrauds, asks only, Did the promisor intend to create a binding duty?\n\nLikewise in civil-law countries the enforcing machinery is modern and\nadequate. The oldest method of enforcement in Roman law was seizure of\nthe person, to coerce satisfaction or hold the promisor in bondage\nuntil his kinsmen performed the judgment. Later there was a pecuniary\ncondemnation or, as we should say, a money judgment in all cases,\nenforced in the classical law by universal execution or, as we should\nsay, by involuntary bankruptcy. But along with this remedy specific\nrelief grew up in the _actio arbitraria_, a clumsy device of specific\nperformance on the alternative of a heavy money condemnation, which\nrepeated itself in Pennsylvania before equity powers were given the\ncourts, and is substantially repeating in our federal courts in their\nattempts to apply equitable relief to torts committed in foreign\njurisdictions. The civil law developed, or perhaps the canon law\ndeveloped and the civil law took over, an _actio ad implendum_ or\naction to require performance, with natural execution, that is a doing\nby the court or its officers at the expense of the defendant, of that\nto which he is bound as ascertained by the judgment. In general in\ncivil-law countries today what we call specific performance is the\nrule. A money reparation for breach of contract is the exceptional\nremedy. It is only when for some reason specific relief is\nimpracticable or inequitable, as in contracts of personal service,\nthat money relief is resorted to.\n\nIn countries governed by the common law we do not secure this interest\nso completely nor so effectively. For one thing we do not recognize as\nlegally enforceable all intentional promises intended to be binding\nupon the promisor. Many technical rules as to consideration, rules\nhaving chiefly a historical basis, stand in the way. Many\njurisdictions have abolished private seals and have made no provision\nfor formal gratuitous or abstract promises. Moreover, we do not give\nspecific relief ordinarily but only exceptionally where pecuniary\nrelief is considered inadequate. Hence in the great majority of cases\nthe promisee cannot compel performance in specie.\n\nIf we look into the reasons for this wide and effective enforcement\nof promises in the one system and narrower and less effective\nenforcement in the other, we come in both cases upon a mixture of\nhistorical background and philosophical reasoning, each influencing\nthe other and neither governing the subject completely. Philosophical\ntheories have arisen to explain existing rules and have been the basis\nof new rules and of remaking of old ones. But they have been the means\nalso, at times, of intrenching the rules they sought to explain and of\nfastening on the law doctrines of which it were better rid. Nowhere is\nthe reciprocal action of legal rules and philosophical theories more\nstrikingly manifest than in our law of contractual liability.\n\nLaw did not concern itself at first with agreements or breaches of\nagreements. Its function was to keep the peace by regulating or\npreventing private war and this only required it to deal with personal\nviolence and with disputes over the possession of property. I may\nremind you of the proposition of Hippodamus in the fifth century B. C.\nthat there were but three subjects of lawsuits, namely, insult,\ninjury and homicide. If a dispute over breach of an agreement led to\nan assault and a breach of the peace, tribunals might be called on to\nact. But it was the assault not the breach of agreement with which\nthey were concerned. Controversy as to possession of property was a\nfertile source of disturbance of the peace and tribunals would\nentertain an action to recover possession. Agreements to compound for\na wrong are perhaps the earliest type. But the law had its eye upon\nthe need of composition, not upon the agreement. No basis for a law of\ncontracts was to be found in the power of the tribunals with respect\nto injuries although our law did make assumpsit out of trespass on the\ncase. On the other hand recovery of property could be used for this\npurpose. Hence the first legal, as distinguished from religious,\ncontract was worked out on the analogy of a real transaction. Before\nthis, however, another possibility had developed in the religiously\nsanctioned promise.\n\nReligion, the internal discipline of the organized kindred, and the\nlaw of the state were three co-ordinate agencies of social control in\nancient society. Nor was law for a long time the chief of these nor\nthe one which covered the widest field. If the gods had been called to\nwitness or good faith had a religious sanction, the duty to keep a\npromise was a matter for religion. Otherwise the mere pact or\nagreement not within the cognizance of the priests was but a matter\nfor self-help. Hindu law shows the idea of religious duty to keep\nfaith in full vigor. In the Hindu system the relation between the\nparties to a debt is not legal but religious and now that a law has\ngrown up under English influence it is said that there is a legal\nobligation because there is a religious obligation. A man is bound in\nlaw because and to the extent that he is bound in religion and not\notherwise and no more. To the Hindu lawyer a debt is not an obligation\nmerely. It is a sin the consequences whereof follow the debtor into\nanother world. Vrihaspati says: \"He who, having received a sum lent or\nthe like does not return it to the owner, will be born hereafter in\nhis creditor's house a slave, a servant, a woman or a quadruped.\"\nNarada says that when one dies without having paid his debt, \"the\nwhole merit of his devotions or of his perpetual fire belongs to his\ncreditors.\" In short the debtor is looked on as one who wrongfully\nwithholds from the creditor the latter's property and hence as in some\nsort a thief. The legal idea, so far as there is one, is not one of\nobligation but of a property right in the creditor. One may suspect\nthat religious obligation arising from the detention of property is a\nlegal way of putting it in a polity in which social control is\nprimarily religious and religious precepts are turning into legal\nprecepts. At any rate the Hindus carry the idea of religious\nobligation so far that a descendant is bound to pay the debts of his\nancestor in many cases whether he receives any assets of the ancestor\nor not. The liability of the son to pay the father's debt is held to\narise from the moral and religious duty of rescuing the father from\nthe penalties attaching in a future state to non-payment of debts.\nAccordingly if the debt is of such a kind that no penalties would so\nattach, there is no religious duty and hence no obligation imposed\nupon the descendant.\n\nRoman law in its earliest stage was not unlike this. Agreements of\nthemselves were not cognizable by the tribunals. It was no ground for\nsummoning a defendant before the magistrate that he had made a promise\nand had broken it. Agreements were matters for religion or for kin or\nguild discipline. If one had called on the gods to witness his promise\nor sworn to fulfil it, he was liable to pontifical discipline. The\npresence of an impious oath breaker was a social danger and he might\nbe devoted to the infernal gods. As law replaced religion as the\ncontrolling regulative agency, the old religiously sanctioned promise\nbecomes a formal legal contract. Thus in the strict law we get formal\ncontracts with their historical origin in religious duty, and formal\ncontracts with their historical origin in a legal duty created by a\nreal transaction of suretyship or conveyance, perhaps by calling the\npeople to witness so that there is an affront to the state if they\nare called upon in vain.\n\nWhen contact with Greek philosophers set the Roman jurists to thinking\nabout the basis of obligation, there were two sorts of promises: (1)\nFormal promises, (a) by stipulation, using the sacramental word\n_spondeo_ and thus assuming the pouring out of a libation that the\ngods might take notice of the promise, (b) by public ceremony\napparently symbolizing a real transaction before the whole people, (c)\nentered upon the household books of account, and (2) mere informal\npromises not recognized by law. The latter depended wholly on the good\nfaith of the maker since the law had put down self-help which formerly\nhad been available to the promisee. Accordingly Roman jurists\ndistinguished civil obligations and natural obligations--those\nrecognized and secured legally and those which primarily had only a\nmoral efficacy. A _nudum pactum_ or mere agreement or mere promise,\nnot clothed with legal efficacy because it did not come within any of\nthe categories of legal transactions sanctioned by the _ius ciuile_,\ncreated only a natural obligation. It was right and just to adhere to\nsuch a pact, but only contracts, undertakings recognized by law\nbecause of their form or nature, were enforceable.\n\nWith increasing pressure of the social interest in the security of\ntransactions through economic development and commercial expansion,\nthe natural-law philosophy slowly affected this simple scheme of\nformal undertakings legally recognized and enforceable and informal\nundertakings of only moral efficacy, and brought about the complicated\nsystem of enforceable undertakings in the maturity of Roman law with\nwhich you are familiar. Four features of this movement are noteworthy.\nIn the first place it led to a juristic theory of formal contract\nwhich has affected our ideas ever since. In the strict law the source\nof obligation was in the form itself. For in primitive thinking forms\nhave an intrinsic efficacy. It has often been pointed out that the\nfaith in legal forms belongs to the same order of thought as faith in\nforms of incantation and that legal forms are frequently symbols to\nbe classed psychologically with the symbols of magic. The stage of\nequity and natural law, relying on reason rather than on form,\ngoverned by philosophy instead of by naive faith, looked for the\nsubstance and found it in a pact preceding and presupposed by the\nformal ceremony. Thus a formal contract was a pact with the addition\nof legal form. The pact was the substance of the transaction. The form\nwas a _causa ciuilis_ or legal reason for enforcing the pact. But if\nthe form was only a legal reason for enforcing something that got its\nnatural efficacy in another way, it followed that there might well be\nother legal reasons for enforcement besides form. Consequently new\ncategories of contract were added to the old formal contracts and it\nis significant that while the latter were transactions _stricti iuris_\nthe former were considered transactions _bonae fidei_ involving\nliability to what good faith demanded in view of what had been done.\nIn the scope of their obligation these contracts responded exactly to\nthe postulate of civilized society that those with whom we deal will\nact in good faith and will carry out their undertakings according to\nthe expectations of the community. On the other hand the old formal\ncontracts responded thereto in part only since their obligation was\none to do exactly what the terms of the form called for, no more and\nno less. When one makes _nexum_, said the Twelve Tables, as he says\norally so be the law. New categories were added in successive strata,\nas it were, and juristic science sought afterward to reduce them to\nsystem and logical consistency. Thus real contracts, consensual\ncontracts and innominate contracts were added. But it is evident that\nmany of these are juristic rationalizings of what had been done for a\nlong time through formal transactions. Thus the consensual contract of\nsale with its implied warranties rationalizes transfer by _traditio_\nwith stipulations for the price and for warranties. The real contract\nof _depositum_ rationalizes _fiducia cum amico_. The real contract of\n_mutuum_ rationalizes _pecunia credita_. But the latter was so\nthoroughly established as a formal transaction that the case of a\nloan of money, analytically a real contract, preserved the incidents\nof the strict law. Moreover certain pacts, _pacta adiecta_, _pacta\npraetoria_, became actionable which do not fit into the analytical\nscheme of the Institutes. For example, a _causa_ or reason for\nenforcing these pacts was found in their being incidental to something\nelse or in a pre-existing natural obligation which they undertook to\nsatisfy. There still remained natural obligations which had not been\ngiven legal efficacy as the basis of actions. The mere will of the\nperson who undertook or the claim of the promisee was not a reason for\nenforcing. Yet in reason they were morally binding and the legal and\nmoral should coincide. Hence they might be used defensively or as the\nbasis of a set-off. Meanwhile the forms of stipulation and of literal\ncontract had been reduced to their lowest terms by conceiving them in\nterms of substance, and taking orally expressed agreement to be the\nsubstance of the one and writing to be the substance of the other. The\nresults have defied analysis although the best that juristic\ningenuity could do has been expended upon them for centuries.\n\nIn the Middle Ages primitive ideas came back for a time through\nGermanic law. General security in its lowest terms of peace and order\nwas the pressing social interest. There was little commercial\nactivity. The civilization of the time did not involve the corollaries\nof our jural postulate. Religiously sanctioned undertakings by\npromissory oath and real transactions of pledge of person or property\nand of exchange gave rise to a simple system of formal undertakings.\nOut of these came a theory of _causa debendi_, or reason for owing the\npromised performance, which has had a profound influence upon\nsubsequent thinking. The Roman _causa ciuilis_ was a legal reason for\nenforcing a pact. Under the influence of the Germanic idea _causa_\nbecomes a reason for making the pact, the good reason for making it\nfurnishing a sufficient reason for enforcing it. For a time it seemed\nthat the church might succeed in establishing a jurisdiction over\npromises. Oaths and vows involved religious duties and might well be\nclaimed as the province of the spiritual. But the moral obligation of\npacts, binding the conscience of a Christian, might also be cognizable\nby a zealous corrector of the conduct of the faithful for their soul's\nwelfare. Had not the power of the canon law broken down and the law of\nthe state developed rapidly in respect of the security of transactions\nafter the sixteenth century, the law of contracts might have grown\nalong religious instead of along philosophical lines, and perhaps not\nto its advantage. As it is, one need but read Doctor and Student with\nthe title _de pactis_ of the _Corpus Iuris Canonici_ and casuist\nwritings as to the moral efficacy of promises before him, to see that\nreligion paved the way for much that was done presently in the name of\nphilosophy.\n\nTo the jurists of the seventeenth and eighteenth centuries no\ndistinction between natural obligations and civil obligations was\nmaintainable since all natural rights or obligations must for the very\nreason that they were natural be legal also. If it was morally\nobligatory that one adhere to a pact, then it must be treated as a\ncontract. However much systematized analytically, the Roman categories\nof contract did not deal with undertakings from this standpoint. What\nthe jurists desired was not analytical categories but a principle upon\nwhich men were to be held or not to be held upon their promises. Thus\nthe philosophy of contract, the principles underlying the binding\nforce of promises and agreements, became the chief problem of\nphilosophical jurisprudence of the seventeenth century, as interests\nof personality were the chief subject of discussion in the eighteenth\ncentury, and interests of substance, the philosophy of the law of\nproperty, the chief subject of discussion in the nineteenth century.\nThe decisive element in seventeenth-century thought as to contract was\nthe idea of natural law; the idea of deduction from the nature of man\nas a moral creature and of legal rules and legal institutions which\nexpressed this ideal of human nature. But the idea was put to work\nupon existing materials and the result was a reciprocal influence of\nthe conception of enforcing promises as such because morally binding,\non the one hand, shaped to some extent by canon law and casuist\ndiscussions of what promises were binding in conscience and when, and\nthe ideas of _nudum pactum_ and _causa debendi_ on the other hand.\nRoman law was assumed to be embodied reason. As D'Aguesseau put it,\nRome was ruling by her reason, having ceased to rule by her authority.\nHence all consideration of the subject starts with the assumption that\nthere are morally naked agreements which for that reason are to be\nnaked legally. Where there was an exchange of promises there was the\nauthority of Justinian for enforcement (_synallagma_) and it was easy\nto find a reason in the analogy of exchange of property. Where\nsomething was exchanged for a promise, that something was a _causa\ndebendi_. But suppose there was no exchange of promises nor was\nanything exchanged for the promise. There was nothing but a promise\nassented to. In Roman law this would have to take the form of a\nstipulation. In the Germanic law it would have required an oath or\nthe form of a real transaction of pledge or exchange. At common law it\nrequired delivery of a sealed instrument. Clearly there was no moral\nefficacy inherent in these forms. Why should these \"abstract\" promises\nbe enforced and not others? Should every such promise be enforced or\nshould none be enforced without something in the way of exchange, or\nshould such promises be classified for the purpose of enforcement, and\nif so, how?\n\nTwo theories arose in the seventeenth century. One may be called the\ntheory of an equivalent. This theory is obviously a rationalization of\nthe Germanic _causa debendi_ influenced by canon law and casuist\nwritings. According to this theory an abstract promise, no equivalent\nhaving been given for it, is not naturally and hence is not legally\nbinding. Three reasons have been given for this which have figured in\njuristic discussion of the subject ever since. It was said that one\nwho trusts another who makes a promise for no equivalent does so\nrashly. He cannot ask to be secured in such an unfounded expectation.\nThis is too much in the spirit of the strict law. It denies any\ninterest except where the law secures it. It says that if the law does\nnot secure the interest, one is a fool to rely on the promise and so\nhas no interest. In like manner the strict law said that if one gave\nhis formal undertaking through fraud or mistake or coercion, he was a\nfool or a coward and was not to be helped. But we cannot prove the\ninterest by the law. We must measure the law with reference to the\ninterest. Again it was said that if one promises without equivalent he\ndoes so more from \"ostentation\" than from real intention and so an\nequivalent shows that he acted from calculation and deliberately. It\nis only deliberate promises that are morally binding, for only such\npromises are relied upon by the prudent, upright man in his\nintercourse with his neighbors. If this reason is sound, equivalent is\nonly a mode of proving deliberation and the real point should be that\nthe promise was made deliberately as something by which the maker\nexpected to be bound, not that the deliberation was evidenced in a\nparticular way by an equivalent. A third reason was that one who\nparted with an equivalent in exchange for or in reliance on a promise\nis injured in his substance if the promise is not kept. But if this is\nthe reason, the law should simply require restitution in case of\nnon-performance. If the interest involved is the deduction from\nsubstance through rendering the equivalent, the obligation should be\n_quasi ex contractu_ rather than _ex contractu_.\n\nOur Anglo-American law of contracts was much influenced by this theory\nof equivalents. In the seventeenth century four types of promise were\nlegally enforceable at common law: (1) A formal acknowledgment of\nindebtedness by bond under seal, often conditioned upon performance of\na promise for which it was a security, (2) a covenant or undertaking\nunder seal, (3) the real contract of debt, and (4) a simple promise\nupon consideration, that is, in exchange for an act or for another\npromise. The first conclusively acknowledged an equivalent, in the\nsecond it could be said that the seal presupposed or implied one, in\nthe third the obligation arose from the detention of something by him\nto whom it had been delivered, and in the fourth the act or\ncounter-promise was the motive or consideration for the promise and as\na cause of or reason for making it was the equivalent for which the\npromisor chose to assume the undertaking. With some aid from a\ndogmatic fiction in the case of covenants, the common law could be\nadjusted to this theory reasonably well. Accordingly as far back as\nBacon we find consideration treated from this standpoint in the\nEnglish books. But it was never a satisfactory explanation. If the\ntheory was sound it ought not to matter whether the equivalent was\nrendered before the promise or after it or simultaneously with it.\nIndeed, English equity in the nineteenth century took subsequent\naction in reliance upon a promise of a gift to be a common-law\nconsideration on the basis whereof the promise was specifically\nenforceable. Equity never wholly adopted this or any other theory. At\nleast after the middle of the eighteenth century equity was supposed\nto follow the law as to what was a contract. But the common law was\nnot settled till the nineteenth century and we find the chancellors\nusing consideration frequently to mean not equivalent but any reason\nfor making the promise and thus making it synonymous with the\ncivilian's _causa_. The so-called meritorious consideration,\nconsideration of blood and of love and affection, and the cases of\npromises sustained by moral obligation of a debtor to secure his\ncreditor, of a husband to settle property on his wife and of a parent\nto provide for a child, show the idea of _causa_ at work in equity. It\nis significant that Doctor and Student was often cited in these\nconnections. The most thoroughgoing attempt to apply the equivalent\ntheory to be found in the books is Langdell's working out of a system\nof the so-called conditions implied in law or dependent promises on\nthat basis. As an example of vigorous legal analysis it rivals Austin.\nBut it did not succeed in shaping the law.\n\nOn the Continent the second theory, the theory of the inherent moral\nforce of a promise made as such, came to prevail. This was the theory\nof Grotius. It was generally adopted by Continental writers of the\neighteenth century and, as has been seen, it broke down the Roman\ncategories and led to the rule that a promise as such, intending a\nlegal transaction, created legal obligation. At the end of the\neighteenth century Lord Mansfield came very near establishing it in\nour law by his doctrine that no promise made as a business transaction\ncould be _nudum pactum_. But he was too late. Growth stopped for a\nseason and the nineteenth century set itself to systematize and\nharmonize what it had received rather than to carry the development\nfurther.\n\nWhen the natural-law foundation of enforcing promises crumbled, the\nmetaphysical jurists sought to provide a new one. Kant said that it\nwas impossible to prove that one ought to keep his promise, considered\nmerely as a promise, and deduced contract from property as a form of\nconveyance or alienation of one's substance involved in the very idea\nof individual rights. So far as consistent with abstract freedom of\nwill according to a universal law one might alienate his services as\nwell as his property, and an undertaking to perform something was an\nalienation of that sort. This view was generally taken so that while\nthe seventeenth century sought to rest rights upon contract and the\neighteenth century rested contract on the inherent moral significance\nof a promise, the nineteenth century, making the philosophy of\nproperty the important thing, rested contract on property. Three of\nthese theories are worth a moment's notice.\n\nFichte says that the duty of performing an agreement arises when one\nparty thereto begins to act under it. Juristically this seems to be a\nrationalization of the Roman innominate contract. There, in case a\npact was performed on one side, he who performed might claim\nrestitution _quasi ex contractu_ or claim the counter-performance _ex\ncontractu_. Philosophically the idea seems to be that of the\nequivalent theory, in the form with which we are familiar in\nAnglo-American discussion of this subject as the injurious-reliance\ntheory. According to the latter, unless the promisee has parted with\nan equivalent or has begun to act in reliance upon the agreement, he\nhas no moral claim to fulfilment. This is not a theory of the law as\nit is or as it ever has been. Formal contracts require nothing of the\nsort. It is true, English equity, under the influence of the\nequivalent theory, did lay down in the nineteenth century that a\ncontract under seal with no common-law consideration behind it would\nnot be enforced. But that proposition was subject to many exceptions\nwhen it was announced, more have since developed and more are\ndeveloping. As things are, the exceptions are of more frequent\napplication than the rule itself. Nor is Fichte's theory a statement\nof moral ideas of his day or of ours. Then and now the moral duty to\nkeep abstract promises was and is recognized. That a man's word should\nbe \"as good as his bond\" expresses the moral sentiment of civilized\nsociety. But the philosopher saw that the law did not go so far and\nwas trying to frame a rational explanation of why it fell short. It\nshould be noticed that Fichte is really trying to show why a promise\nmay be regarded as a part of one's substance and why one's claim to\nperformance may be treated as his property.\n\nHegel also explains contract in terms of property, treating a promise\nas a disposition of one's substance. Hence in his view the so-called\nabstract promise is a mere subjective qualification of one's will\nwhich he is at liberty to change. This theory and the foregoing assume\nthe Roman law or the older law of Continental Europe, and speak from\nthe reaction from natural law which in England at the same time was\noverruling the liberal doctrines of Lord Mansfield.\n\nLater metaphysical jurists rely upon the idea of personality. The\nRomanist thinks of a legal transaction as a willing of some change in\na person's sphere of rights to which the law, carrying out his will,\ngives the intended effect. If the transaction is executed, revocation\nwould involve aggression upon the substance of another. If it is\nexecutory, however, why should the declared intent that the change\ntake place in the future be executed by law despite the altered will\nof the promisor? Some say that this should be done where there is a\njoint will from which only joint action may recede. Where the parties\nhave come to an agreement, where their wills have been at one, the law\nis to give effect to this joint will as a sort of vindication of\npersonality. It is evident, however, that this explanation assumes the\nwill theory, the subjective theory of legal transactions. If we start\nfrom the objective theory it breaks down. Take for instance the case\nof an offer, which a reasonable man would understand in a given way,\naccepted by the offeree in that understanding when the offerer really\nmeant something else. Or take the case of an offer wrongly transmitted\nby telegraph and accepted in good faith as it is transmitted. Here\nthere is no community of will and yet the law may well hold, as we do\nin America, in both cases, that there is a contract. No metaphysical\ntheory has prevailed to prevent the steady march of the law and of\njuristic thought in the direction of an objective doctrine of legal\ntransactions. Nowhere, indeed, has the deductive method broken down\nso completely as in the attempt to deduce principles upon which\ncontracts are to be enforced.\n\nLater in the nineteenth century men came to think more about freedom\nof contract than about enforcement of promises when made. To Spencer\nand the mechanical positivists, conceiving of law negatively as a\nsystem of hands off while men do things, rather than as a system of\nordering to prevent friction and waste so that they may do things, the\nimportant institution was a right of free exchange and free contract,\ndeduced from the law of equal freedom as a sort of freedom of economic\nmotion and locomotion. Justice required that each individual be at\nliberty to make free use of his natural powers in bargains and\nexchanges and promises except as he interfered with like action on the\npart of his fellow men, or with some other of their natural rights.\nWhether all such transactions should be enforced against him or only\nsome, and if the latter, which, are questions belonging to an\naffirmative rather than to a negative science of law.\n\nHistorical jurists accepted the will theory and have been its leading\nadvocates in modern times. They saw that the whole course of legal\nhistory had been one of wider recognition and more effective\nenforcement of promises. Those who accepted the ethical idealistic\ninterpretation of legal history could see freedom as an ethical idea\nrealizing itself in a larger freedom of self-assertion and\nself-determination through promises and agreements and a wider giving\neffect to the will so asserted and determined. For the most part they\nwrote on the Continent where the field of legally enforceable promises\nhad ceased to be bounded by a narrow fence of Roman historical\ncategories. Thus they had no call to rationalize dogmas of not\nenforcing promises made as business transactions. Those who accepted\nthe political interpretation saw freedom as a civil or political idea\nrealizing itself in a progress from _status_ to contract in which\nmen's duties and liabilities came more and more to flow from willed\naction instead of from the accident of social position recognized by\nlaw. The English historical jurists might well have asked how far\nEnglish rules as to consideration were consonant with the implications\nof such a theory, and whether they must not be expected to give way as\nthe idea unfolded more completely in experience of popular action and\njudicial decision. But the leader of this school was not a common-law\nlawyer and the American historical jurists devoted their energies to\ndevising a historical-analytical theory of consideration rather than\nto the wider question of what promises should be enforced and why.\n\nHere as in other places the historical jurist and the utilitarian were\nin agreement as to results although they differed widely as to the\nmode of reaching them. The former saw in contract a realization of the\nidea of liberty. The latter saw in it a means of promoting that\nmaximum of individual free self-assertion which he took to be human\nhappiness. Hence the former called for freedom of contract and should\nhave called for wide general enforcement of promises. The latter held\nto a doctrine of unshackling men and allowing them to act as freely\nas possible, which involved the complementary position of extending\nthe sphere and enforcing the obligation of contract. The difference\nbetween these ways of thinking and those of the end of the eighteenth\ncentury is brought out if we compare Blackstone (1765) with a dictum\nof Sir George Jessel a century later (1875). The former says that the\npublic is \"in nothing so essentially interested as in securing to\nevery individual his private rights.\" The latter, discussing a\nquestion of what agreements are against public policy and therefore\nunenforceable, says: \"If there is one thing more than another which\npublic policy requires it is that men of full age and competent\nunderstanding shall have the utmost liberty of contracting and that\nsuch contracts shall be enforced by courts of justice.\" But the\nutilitarians put the emphasis upon the first, the negative, rather\nthan upon the second, the affirmative, part of this twofold program.\nThis is true also of the historical jurists and of the positivists.\nThe English trader and entrepreneur was not seeking for legal\ninstruments. He could work passably with those which the law furnished\nif the law would but let him. What he sought was to be free from legal\nshackles which had come down from a society of a different nature\norganized on a different basis and with other ends. Hence juristic\nthought addressed itself to this for a season rather than to the\ndoctrine of consideration and the reason for non-enforcement of\ndeliberate promises where not put in the form of bargains.\n\nNo one of the four theories of enforcing promises which are current\ntoday is adequate to cover the whole legal recognition and enforcement\nof them as the law actually exists. Putting them in the order of their\ncurrency, we may call them (1) the will theory, (2) the bargain\ntheory, (3) the equivalent theory, (4) the injurious-reliance theory.\nThat is, promises are enforced as a giving effect to the will of those\nwho agree, or to the extent that they are bargains or parts of\nbargains, or where an equivalent for them has been rendered, or where\nthey have been relied on by the promisee to his injury, according to\nthe theory chosen. The first is the prevailing theory among\ncivilians. But it must give way before the onward march of the\nobjective theory of legal transactions and is already fighting a\nrear-guard action. In our law it is impossible. We do not give effect\nto promises on the basis of the will of the promisor, although our\ncourts of equity have shown some tendency to move in that direction.\nThe attempt in the nineteenth century to Romanize our theories of\nliability involved a Romanized will-theory of contract. But no one who\nlooks beneath the surface of our law reports can doubt that the\nattempt has failed wholly. We no longer seek solutions on every side\nthrough a pedantic Romanized law of bailments and in the law of\nbailments itself we are coming to talk in common-law terms of\nnegligence in view of the circumstances and not in Romanist terms of\nthe willed standard of diligence and corresponding degrees of\nnegligence. In America, at least, the objective theory of contract is\northodox and the leader of English analytical jurists of the present\ngeneration has expounded it zealously. Courts of equity, which\ninherit modes of thought from the time when the chancellor searched\nthe conscience of a defendant by an examination under oath, and\nbelieved he could reach subjective data that were beyond the\ncognizance of a jury, are the last stronghold of the exotic subjective\ntheory in the common law.\n\nProbably the bargain theory is the one most current in common-law\nthinking. It is a development of the equivalent theory. It will not\ncover formal contracts but under its influence the formal contracts\nhave been slowly giving way. The seal \"imports\" a consideration.\nLegislation has abolished it in many jurisdictions and often it does\nno more than establish a bargain _prima facie_, subject to proof that\nthere was in fact no consideration. Courts of equity require a\ncommon-law consideration, at least on the face of their general rule,\nbefore they will enforce a sealed contract. Also the formal contracts\nof the law merchant are subject to defeat by showing there was no\nconsideration, except when in the hands of holders for value without\nnotice. Here, however, consideration is used in the sense of\nequivalent, to the extent of admitting a \"past consideration,\" and the\nbargain theory, appropriate to simple contracts, is not of entire\napplication. On the other hand the extent to which courts today are\nstraining to get away from the bargain theory and enforce promises\nwhich are not bargains and cannot be stated as such is significant.\nSubscription contracts, gratuitous promises afterwards acted on,\npromises based on moral obligations, new promises where a debt has\nbeen barred by limitation or bankruptcy or the like, the torturing of\ngifts into contracts by equity so as to enforce _pacta donationis_\nspecifically in spite of the rule that equity will not aid a\nvolunteer, the enforcement of gratuitous declarations of trust,\nspecific enforcement of options under seal without consideration,\nspecific performance by way of reformation in case of security to a\ncreditor or settlement on a wife or provision for a child, voluntary\nrelinquishment of a defense by a surety and other cases of \"waiver,\"\nrelease by mere acknowledgment in some states, enforcement of gifts\nby way of reformation against the heir of a donor, \"mandates\" where\nthere is no _res_, and stipulations of parties and their counsel as to\nthe conduct of and proceedings in litigation--all these make up a\nformidable catalogue of exceptional or anomalous cases with which the\nadvocate of the bargain theory must struggle. When one adds\nenforcement of promises at suit of third-party beneficiaries, which is\nmaking headway the world over, and enforcement of promises where the\nconsideration moves from a third person, which has strong advocates in\nAmerica and is likely to be used to meet the exigencies of doing\nbusiness through letters of credit, one can but see that Lord\nMansfield's proposition that no promise made as a business transaction\ncan be _nudum pactum_ is nearer realization than we had supposed.\n\nYet the equivalent theory and the injurious-reliance theory are even\nless adequate to explain the actual law. The equivalent theory must\nwrestle at the outset with the doctrine that inadequacy of\nconsideration is immaterial so that the equivalency is often\nPickwickian. Hegel could argue for it on the basis of the Roman\n_laesio enormis_. But when a court of equity is willing to uphold a\nsale of property worth $20,000 for $200, even a dogmatic fiction is\nstrained. Moreover the catalogue of anomalies with which the bargain\ntheory must wrestle contains more than one difficulty for the adherent\nof either theory. Stipulations in the course of litigation do not need\nequivalents nor do they need to be acted on in order to be\nenforceable. A release by mere acknowledgment, when good at all, needs\nno equivalent and need not be acted on. Waiver by a surety of the\ndefense of release by giving time to the principal needs no element of\nconsideration nor of estoppel. Defectively executed securities,\nsettlements and advancements need no equivalent and need not be acted\non in order to be reformed. Options under seal are held open in equity\non the basis of the seal alone. A gratuitously declared trust creates\nan obligation cognizable in equity without more. In truth the\nsituation in our law is becoming much the same as that in the\nmaturity of Roman law and for the same reason. We have three main\ncategories. First, there are formal contracts, including sealed\ninstruments, recognizances, and the formal contracts of the law\nmerchant, in which latter the form consists in the use of certain\nwords, requirements as to sum certain, payment at all events, and\ncertainty as to time. Second, there are the real contracts of debt and\nbailment. Third, there are simple contracts, without form and upon\nconsideration. The latter is the growing category although the formal\ncontracts of the law merchant have shown some power of growth and the\nbusiness world has been trying to add thereto letters of credit using\nthe formal words \"confirmed\" or \"irrevocable.\" But the category of\nenforceable simple promises defies systematic treatment as obstinately\nas the actionable pacts in Roman law. Successive additions at\ndifferent times in the endeavor of courts to hold men to their\nundertakings, in view of the social interest in the security of\ntransactions and the jural postulates of the civilization of the day,\nproceed on all manner of different theories and different analogies\nand agree only in the result--that a man's word in the course of\nbusiness should be as good as his bond and that his fellow men must be\nable to rely on the one equally with the other if our economic order\nis to function efficiently. It is evident that many courts consciously\nor subconsciously sympathize with Lord Dunedin's feeling that one can\nhave no liking for a doctrine which enables a promisor to snap his\nfingers at a promise deliberately made, fair in itself, and in which\nthe person seeking to enforce it has a legitimate interest according\nto the ordinary understanding of upright men in the community. It is\nsignificant that although we have been theorizing about consideration\nfor four centuries, our texts have not agreed upon a formula of\nconsideration, much less our courts upon any consistent scheme of what\nis consideration and what is not. It means one thing--we are not\nagreed exactly what--in the law of simple contracts, another in the\nlaw of negotiable instruments, another in conveyancing under the\nStatute of Uses and still another thing--no one knows exactly what--in\nmany cases in equity.\n\nLetters of credit afford a striking illustration of the ill-adaptation\nof our American common law of contract to the needs of modern business\nin an urban society of highly complex economic organization. Well\nknown abroad and worked out consistently on general theories in the\ncommercial law of Continental Europe, these instruments came into use\nin this country on a large scale suddenly during the war. There was no\nsettled theory with respect to them in our books and the decisions\nwarranted four or five views leading to divergent results in\nmatters of vital moment to the business man who acted on them.\nCharacteristically the business world set out to make of them formal\ncontracts of the law merchant by the use of certain distinctive words\nwhich gave the instruments character and made their nature clear to\nthose who inspected them anywhere in the world. But for a season our\ncategory of mercantile specialties had ceased to admit of growth and\nthe doctrine of consideration with its uncertain lines stood in the\nway of many things which the exigencies of business called for and\nbusiness men found themselves doing in reliance on each other's\nbusiness honor and the banker's jealousy of his business credit, with\nor without assistance from the law. Certainly no one would say that\nsuch a situation bears witness to wise social engineering in an\neconomically organized society resting on credit.\n\nTwo circumstances operate to keep the requirement of consideration\nalive in our law of simple contract. One is the professional feeling\nthat the common law is the legal order of nature, that its doctrines\nin an idealized form are natural law and that its actual rules are\ndeclaratory of natural law. This mode of thinking is to be found in\nall professions and is a result of habitual application of the rules\nof an art until they are taken for granted. In law it is fortified by\nthe theory of natural law which has governed in our elementary books\nsince Blackstone, was taught to all lawyers until the present century,\nand is assumed in much of our judicial decision. Later it was\nstrengthened by the theories of the historical school which ruled in\nour law schools in the last quarter of the nineteenth century and\ntaught us to think that growth must inevitably follow lines which\nmight be discovered in the Year Books. These things co-operated with\nthe temper of the last century and the instinctive aversion of the\nlawyer to change, lest in some unperceived way a door be opened to\nmagisterial caprice or to the personal equation of the judge. Thus\nsome thought of consideration, whatever it was, as inherent in the\nvery idea of enforceable promises. Others assumed that it was a\nhistorically developed principle by which the future evolution of the\nlaw of contracts must be governed. Many others simply thought that it\nwas dangerous to talk of change. And yet change has gone on rapidly,\nif subconsciously, until the present confused mass of unsystematized\nand unsystematizable rules has resulted. The second circumstance\noperating to keep alive the requirement of consideration is a more\nlegitimate factor.\n\nNowhere could psychology render more service to jurisprudence than in\ngiving us a psychological theory of _nuda pacta_. For there is\nsomething more than the fetish of a traditional Latin phrase with the\nhallmark of Roman legal science behind our reluctance to enforce all\ndeliberate promises simply as such. It should be compared with the\nreluctance of courts to apply the ordinary principle of negligence to\nnegligent speech, with the doctrine as to seller's talk, with the\nlimitations upon liability for oral defamation and with many things of\nthe sort throughout our law. All of these proceed partly from the\nattitude of the strict law in which our legal institutions first took\nshape. But they have persisted because of a feeling that \"talk is\ncheap,\" that much of what men say is not to be taken at face value and\nthat more will be sacrificed than gained if all oral speech is taken\nseriously and the principles applied by the law to other forms of\nconduct are applied rigorously thereto. This is what was meant when\nthe writers on natural law said that promises often proceeded more\nfrom \"ostentation\" than from a real intention to assume a binding\nrelation. But this feeling may be carried too far. Undoubtedly it has\nbeen carried too far in the analogous cases above mentioned. The rule\nof _Derry_ v. _Peek_ goes much beyond what is needed to secure\nreasonable limits for human garrulousness. The standard of negligence,\ntaking into account the fact of oral speech and the character and\ncircumstances of the speech in the particular case, would amply secure\nindividual free utterance. So also the doctrine that one might not\nrely on another's oral representation in the course of a business\ntransaction if he could ascertain the facts by diligence went much too\nfar and has had to be restricted. Likewise we have had to extend\nliability for oral defamation. Accordingly because men are prone to\novermuch talk it does not follow that promises made by business men in\nbusiness dealings or by others as business transactions are in any\nwise likely to proceed from \"ostentation\" or that we should hesitate\nto make them as binding in law as they are in business morals. Without\naccepting the will theory, may we not take a suggestion from it and\nenforce those promises which a reasonable man in the position of the\npromisee would believe to have been made deliberately with intent to\nassume a binding relation? The general security is more easily and\neffectively guarded against fraud by requirements of proof after the\nmanner of the Statute of Frauds than by requirements of consideration\nwhich is as easy to establish by doubtful evidence as the promise\nitself. This has been demonstrated abundantly by experience of suits\nin equity to enforce oral contracts taken out of the Statute of Frauds\nby great hardship and part performance.\n\nRevived philosophical jurisprudence has its first and perhaps its\ngreatest opportunity in the Anglo-American law of contracts. The\nconstantly increasing list of theoretical anomalies shows that\nanalysis and restatement can avail us no longer. Indeed the lucid\nstatement of Williston but emphasizes the inadequacy of analysis even\nwhen eked out by choice from among competing views and analytical\nrestatements of judicial dogma in the light of results. Projects for\n\"restatement of the law\" are in the air. But a restatement of what\nhas never been stated is an impossibility and as yet there is no\nauthoritative statement of what the law of consideration is. Nothing\ncould be gained by a statement of it with all its imperfections on its\nhead and any consistent analytical statement would require the undoing\nof much that the judges have done quietly beneath the surface for\nmaking promises more widely enforceable. Given an attractive\nphilosophical theory of enforcement of promises, our courts in a new\nperiod of growth will begin to shape the law thereby and judicial\nempiricism and legal reason will bring about a workable system along\nnew lines. The possibilities involved may be measured if we compare\nour old law of torts with its hard and fast series of nominate wrongs,\nits distinctions growing out of procedural requirements of trespass\nand trespass on the case and its crude idea of liability, flowing\nsolely from causation, with the law of torts at the end of the\nnineteenth century after it had been molded by the theory of liability\nas a corollary of fault. Even if we must discard the conception that\ntort liability may flow only from fault, the generalization did a\nservice of the first magnitude not only to legal theory but to the\nactual administration of justice. No less service will be rendered by\nthe twentieth-century philosophical theory, whatever it is, which puts\nthe jural postulate of civilized society in our day and place with\nrespect to good faith, and its corollary as to promises, in acceptable\nform, and furnishes jurist and judge and lawmaker with a logical\ncritique, a workable measure of decision and an ideal of what the law\nseeks to do, whereby to carry forward the process of enlarging the\ndomain of legally enforceable promises and thus enlarging on this side\nthe domain of legal satisfaction of human claims.\n\n\n\n\nBibliography\n\n\nLECTURE I\n\nPlato (B. C. 427-347), Republic.\n\n----, Laws.\n\n    Translations in Jowett's Plato. The translation of the\n    Republic is published separately.\n\nPseudo-Plato, Minos.\n\n    Now generally considered not to be a genuine work of Plato's\n    and variously dated from as early as c. 337 B. C. to as late\n    as c. 250 B. C. There is a convenient translation in Bohn's\n    Libraries.\n\nAristotle (B. C. 384-322), Nicomachean Ethics.\n\n    Convenient translation by Browne in Bohn's Libraries.\n\n----, Politics.\n\n    Translation by Jowett should be used.\n\n    Reference may be made to Berolzheimer, System der Rechts-\n    und Wirthschaftsphilosophie, II, Sec.Sec. 13-16 (World's Legal\n    Philosophies, 46-77); Hildenbrand, Geschichte und System\n    der Rechts- und Staatsphilosophie, Sec.Sec. 1-121.\n\nCicero (B. C. 106-43), De Legibus.\n\n    Reference may be made to Berolzheimer, System der Rechts-\n    und Wirthschaftsphilosophie, II, Sec.Sec. 17-20 (World's Legal\n    Philosophies, 78-92); Hildenbrand, Geschichte und System der\n    Rechts- und Staatsphilosophie, Sec.Sec. 131-135, 143-147; Voigt,\n    Das Ius Naturale, aequum et bonum und Ius Gentium der Roemer,\n    I, Sec.Sec. 16, 35-41, 44-64, 89-96.\n\nThomas Aquinas (1225 or 1227-1274), Summa Theologiae.\n\n    Convenient translation of the parts relating to law in\n    Aquinas Ethicus.\n\n    Reference may be made to Berolzheimer, System der Rechts-\n    und Wirthschaftsphilosophie, II, Sec.Sec. 21-23 (World's Legal\n    Philosophies, 93-111).\n\nOldendorp, Iuris naturalis gentium et ciuilis [Greek: eisagoge]\n(1539).\n\nHemmingius (Henemingsen) De Iure naturale apodictica methodus (1562).\n\nWinckler, Principiorum iuris libri V (1615).\n\n    These are collected conveniently in Kaltenborn, Die Vorlaeufer\n    des Hugo Grotius.\n\n    Reference may be made to Berolzheimer, System der Rechts-\n    und Wirthschaftsphilosophie, II, Sec. 24 (World's Legal\n    Philosophies, 112-114); Hinrichs, Geschichte der Rechts-\n    und Staatsprincipien seit der Reformation, I, 1-60;\n    Gierke, Johannes Althusius, 2 ed., 18-49, 142-162, 321.\n\nSoto, De justitia et iure (1589).\n\nSuarez, De legibus ac deo legislatore (1619).\n\n    Reference may be made to Figgis, Studies of Political Thought\n    from Gerson to Grotius, Lect. V.\n\nGrotius, De iure belli et pacis (1625).\n\n    Whewell's edition with an abridged translation is convenient.\n\nPufendorf, De jure naturae et gentium (1672).\n\n    Kennet's translation (1703) may be found in several editions.\n\nBurlamaqui, Principes du droit naturel (1747).\n\n    Nugent's translation is convenient.\n\nWolff, Institutiones juris naturae et gentium (1750).\n\nRutherforth, Institutes of Natural Law (1754-1756).\n\nVattel, Le droit des gens, Preliminaires (1758).\n\n    There are many translations of Vattel.\n\nRousseau, Contrat social (1762).\n\n    Tozer's translation is convenient.\n\nBlackstone, Commentaries on the Laws of England, Introduction, sect.\nII (1765).\n\n    Reference may be made to Berolzheimer, System der Rechts-\n    und Wirthschaftsphilosophie, II, Sec.Sec. 25-27, 29 (World's Legal\n    Philosophies, 115-134, 141-156); Hinrichs, Geschichte der\n    Rechts- und Staatsprincipien seit der Reformation, I, 60-274,\n    II, III, 1-318; Korkunov, General Theory of Law, transl. by\n    Hastings, Sec. 7; Charmont, La renaissance du droit naturel,\n    10-43.\n\nHobbes, Leviathan (1651).\n\nSpinoza, Ethica (1674).\n\n----, Tractatus theologico-politicas (1670).\n\n    Elwes' translation of the two last in Bohn's Libraries must\n    be used with caution.\n\nBentham, Principles of Morals and Legislation (1780).\n\n    A convenient reprint is published by the Clarendon Press.\n\n----, Theory of Legislation. (Originally published in French, 1820).\nTranslated by Hildreth (1864), and in many editions.\n\nMill, On Liberty (1859).\n\n    Courtney's edition (1892) is convenient.\n\n    Reference may be made to Duff, Spinoza's Political and\n    Ethical Philosophy; Berolzheimer, System der Rechts- und\n    Wirthschaftsphilosophie, II, Sec. 28 (World's Legal Philosophies,\n    134-141); Dicey, Law and Public Opinion in England, Lect. 6;\n    Albee, History of English Utilitarianism; Stephen, The\n    English Utilitarians; Solari, L'idea individuale e l'idea\n    sociale nel diritto privato, Sec.Sec. 31-36.\n\nKant, Metaphysische Anfangsgruende der Rechtslehre (2 ed. 1798).\nTranslated by Hastie as \"Kant's Philosophy of Law\" (1887).\n\nFichte, Grundlage des Naturrechts (1796, new ed. by Medicus, 1908).\nTranslated by Kroeger as \"Fichte's Science of Rights\" (1889).\n\nHegel, Grundlinien der Philosophie des Rechts (1821), ed. by Gans\n(1840), new ed. by Lasson (1911). Translated by Dyde as \"Hegel's\nPhilosophy of Right\" (1896). This translation must be used cautiously.\n\nKrause, Abriss des Systemes der Philosophie des Rechtes (1828).\n\nAhrens, Cours de droit naturel (1837, 8 ed. 1892). Twenty-four\neditions in seven languages. The German 6th edition (Naturrecht,\n1870-1871) contains important matter not in the French editions.\n\nGreen, Principles of Political Obligation. Lectures delivered in\n1879-1880. Reprinted from his Complete Works (1911).\n\nLorimer, Institutes of Law (2 ed. 1880).\n\nLasson, Lehrbuch der Rechtsphilosophie (1882).\n\nMiller, Lectures on the Philosophy of Law (1884).\n\nBoistel, Cours de philosophie du droit (1870, new ed. 1899).\n\nHerkless, Lectures on Jurisprudence (1901).\n\nBrown, The Underlying Principles of Modern Legislation (1912).\n\n    Mention may be made of Beaussire, Les principes du droit\n    (1888); Beudant, Le droit individuel et l'etat (1891); Carle,\n    La vita del diritto (2 ed. 1890); Dahn, Rechtsphilosophische\n    Studien (1883); Giner y Calderon, Filosofia del derecho\n    (1898); Harms, Begriff, Formen und Grundlegung der\n    Rechtsphilosophie (1889); Hennebicq, Philosophie de droit et\n    droit naturel (1897); Herbart, Analytische Beleuchtung des\n    Naturrechts und der Moral (1836); Jouffroy, Cours de droit\n    naturel (5 ed. 1876); Kirchmann, Grundbegriffe des Rechts\n    und der Moral (2 ed. 1873); Krause, Das System der\n    Rechtsphilosophie (posthumous, ed. by Roeder, 1874); Miraglia,\n    Filosofia del diritto (3 ed. 1903, transl. in Modern Legal\n    Philosophy Series, 1912); Roeder, Grundzuege des Naturrechts\n    oder der Rechtsphilosophie (2 ed. 1860); Rosmini, Filosofia\n    del diritto (2 ed. 1865); Rothe, Traite de droit naturel,\n    theorique et applique (1884); Schuppe, Grundzuege der Ethik\n    und Rechtsphilosophie (1881); Stahl, Philosophie des Rechts\n    (5 ed. 1878); Tissot, Introduction historique et philosophique\n    a l'etude du droit (1875); Trendelenburg, Naturrecht auf dem\n    Grunde der Ethik (1868); Vareilles-Sommieres, Les principes\n    fondamentaux du droit (1889); Wallaschek, Studien zur\n    Rechtsphilosophie (1889).\n\n    Reference may be made to Gray, Nature and Sources of the Law,\n    Sec.Sec. 7-9; Bryce, Studies in History and Jurisprudence, Essay\n    12; Pollock, Essays in Jurisprudence and Ethics, 1-30;\n    Korkunov, General Theory of Law, translated by Hastings, Sec. 4;\n    Bergbohm, Jurisprudenz und Rechtsphilosophie, Sec.Sec. 6-15; Pound,\n    The Scope and Purpose of Sociological Jurisprudence, 24\n    Harvard Law Rev., 501; Pound, the Philosophy of Law in\n    America, Archiv fuer Rechts- und Wirthschaftsphilosophie, VII,\n    213, 285.\n\nJhering, Der Zweck im Recht (1877-1883, 4 ed. 1904). The first volume\nis translated by Husik under the title \"Law as a Means to an End\"\n(1913).\n\nJhering, Scherz und Ernst in die Jurisprudenz (1884, 9 ed. 1904).\n\n    Reference may be made to the appendices to Jhering, Law as a\n    Means to an End, transl. by Husik; Berolzheimer, System der\n    Rechts- und Wirthschaftsphilosophie, II, Sec. 43 (World's Legal\n    Philosophies, 327-351); Korkunov, General Theory of Law,\n    translated by Hastings, Sec.Sec. 13-14; Tanon, L'evolution du droit\n    et la conscience sociale (3 ed. 1911), pt. I, ch. 3.\n\nStammler, Ueber die Methode der geschichtlichen Rechtstheorie (1888).\n\n----, Wirthschaft und Recht (1896, 2 ed. 1905).\n\n----, Die Gesetzmaessigkeit in Rechtsordnung und Volkswirthschaft\n(1902).\n\n----, Lehre von dem rechtigen Rechte (1902).\n\n----, Systematische Theorie der Rechtswissenschaft (1911).\n\n----, Rechts- und Staatstheorien der Neuzeit (1917).\n\nDel Vecchio, The Formal Bases of Law, translated by Lisle (1914).\nA translation of I presupposti filosofici della nozione del diritto\n(1905), Il concetto del diritto (1906, reprinted 1912), Il concetto\ndella natura e il principio del diritto (1908).\n\n    For critiques of Stammler, see Berolzheimer, System der\n    Rechts- und Wirthschaftsphilosophie, II, Sec. 48 (World's Legal\n    Philosophies, 398-422); Kantorowicz, Zur Lehre vom richtigen\n    Recht; Croce, Historical Materialism and the Economics of\n    Karl Marx, ch. 2; Geny, Science et technique en droit prive\n    positif, II, 127-130; Binder, Rechtsbegriff und Rechtsidee\n    (1915); Binder, Kritische und metaphysische Rechtsphilosophie,\n    Archiv fuer Rechts- und Wirthschaftsphilosophie, IX, 142, 267;\n    Vinogradoff, Common Sense in Law, ch. 9.\n\nKohler, Rechtsphilosophie und Universalrechtsgeschichte, in\nHoltzendorff, Enzyklopaedie der Rechtswissenschaft, I (6 ed. 1904,\n7 ed. 1913). (Not in prior editions.)\n\nKohler, Lehrbuch der Rechtsphilosophie (1909, 2 ed. 1917). Translated\nby Albrecht as \"Philosophy of Law\" (1914).\n\nKohler, Moderne Rechtsprobleme (1907, 2 ed. 1913).\n\nBerolzheimer, System der Rechts-und Wirthschaftsphilosophie\n(1904-1907). Vol. II, history of juristic thought, translated by\nJastrow (somewhat abridged) under the title \"The World's Legal\nPhilosophies\" (1912), Vol. III, general system of legal and economic\nphilosophy, Vol. IV, philosophy of interests of substance, Vol. V,\nphilosophy of criminal law, are important for our purposes.\n\n    See also Berolzheimer, Rechtsphilosophische Studien (1903);\n    Barillari, Diritto e filosofia (1910-1912); Kohler, Das Recht\n    (1909); Kohler, Recht und Persoenlichkeit in die Kultur der\n    Gegenwart (1914).\n\nRadbruch, Grundzuege der Rechtsphilosophie (1914).\n\nMiceli, Principii di filosofia del diritto (1914).\n\nTourtoulon, Principes philosophiques de l'histoire du droit\n(1908-1920).\n\nDemogue, Notions fondamentales du droit prive (1911).\n\nGeny, Methode d'interpretation et sources en droit prive positif\n(1899, 2 ed. 1919). A book of the first importance.\n\n----, Science et technique en droit prive positif (1913).\n\nDuguit, L'etat, le droit objectif et la loi positive (1901).\n\n----, Le droit social, le droit individuel et la transformation de\nl'etat (2 ed. 1911).\n\n----, Les transformations generales du droit prive (1912). Translated\nin Continental Legal History Series, Vol. XI, ch. 3.\n\n----, Law and the State (1917).\n\n    Reference may be made to Modern French Legal Philosophy\n    (1916) in the Modern Legal Philosophy Series; Jung, Das\n    Problem des natuerlichen Rechts (1912).\n\n    See also Boucaud, Qu'est-ce que le droit naturel (1906);\n    Charmont, La renaissance du droit naturel (1910); Charmont,\n    Le droit et l'esprit democratique (1908); Djuvara, Le\n    fondement du phenomene juridique (1913); Fabreguettes, La\n    logique judiciaire et l'art de juger (1914); Leroy, La loi\n    (1908).\n\n    Compare Cathrein, Recht, Naturrecht und Positives Recht\n    (1901).\n\n    See also Cohen, Jus naturale redivivum, Philosophical Rev.,\n    XXV, 761 (1916).\n\nSpencer, Justice (1891).\n\n    See also Anzilotti, La filosofia del diritto e la sociologia\n    (1907); Brugi, Introduzione enciclopedica alle scienze\n    giuridiche e sociale (4 ed. 1907, 1 ed. 1890); Cosentini,\n    Filosofia del diritto e sociologia (1905); Cosentini,\n    Criticismo e positivismo nella filosofia del diritto (1912);\n    Daguanno, La genesi e l'evoluzione del diritto civile (1890);\n    Eleutheropoulos, Rechtsphilosophie, Sociologie und Politik\n    (1908); Fragapane, Obbietto e limiti della filosofia del\n    diritto (1897); Levi, Il diritto naturale nella filosofia di\n    R. Ardigo (1904); Nardi Greco, Sociologia giuridica (1906);\n    Porchat, Sociologia e direito (1902); Ratto, Sociologia e\n    filosofia del diritto (1894); Vadale Papale, La filosofia del\n    diritto a base sociologica (1885); Vander Eycken, Methode\n    positive de l'interpretation juridique (1907).\n\nPost, Der Ursprung des Rechts (1876).\n\n----, Bausteine fuer eine allgemeine Rechtswissenschaft (1880).\n\n----, Die Grundlagen des Rechts und die Grundzuege seiner\nEntwickelungsgeschichte (1884).\n\nKuhlenbeck, Natuerliche Grundlagen des Rechts (1905).\n\n    A discussion of fundamental problems of jurisprudence from\n    the Darwinian standpoint.\n\nRichard, Origine de l'idee de droit (1892).\n\nVaccaro, Les bases sociologiques du droit et de l'etat (1898).\nTranslation of Le basi del diritto e dello stato (1893). A theory\nof law as the outcome of class struggles.\n\n    For critiques of the foregoing, see Tanon, L'evolution du\n    droit et la conscience sociale (3 ed. 1911); Tourtoulon,\n    Principes philosophiques de l'histoire du droit (1908-1920);\n    Charmont, La renaissance du droit naturel (1910).\n\nTarde, Les transformations du droit (6 ed. 1909). First published in\n1894.\n\nVanni, Lezioni di filosofia del diritto (3 ed. 1908). First published\nin 1901-1902.\n\n    See also Bonucci, L'orientazione psicologica dell' etica e\n    della filosofia del diritto (1907); Bozi, Die Weltanschauung\n    der Jurisprudenz (1907, 2 ed. 1911); Bozi, Die Schule der\n    Jurisprudenz (1910); Cruet, La vie du droit et l'impuissance\n    des lois (1914); Grasserie, Principes sociologiques du droit\n    civil (1906); Jellinek, Die sozialethische Bedeutung von\n    Recht, Unrecht und Strafe (2 ed. 1908, 1st ed. 1878);\n    Lagorgette, Le fondement du droit (1907); Miceli, Le fonti\n    del diritto dal punto di vista psichico-sociale (1905);\n    Miceli, Lezioni di filosofia del diritto (1908).\n\nHolmes, The Path of the Law, 10 Harvard Law Review, 467 (1897);\nCollected Papers, 167-202.\n\nEhrlich, Soziologie und Jurisprudenz (1903).\n\nWurzel, Das juristische Denken, 98-102 (1904). Translated in The\nScience of Legal Method (Modern Legal Philosophy Series, Vol. 9,\n421-428).\n\nGnaeus Flavius (Kantorowicz), Der Kampf um die Rechtswissenschaft\n(1906).\n\nKantorowicz, Rechtswissenschaft und Soziologie (1911).\n\nKelsen, Ueber Grenzen zwischen juristischer und soziologischer Methode\n(1911).\n\nBrugeilles, Le droit et la sociologie (1910).\n\nRolin, Prolegomenes a la science du droit (1911).\n\nEhrlich, Erforschung des lebenden Rechts, in Schmoller's Jahrbuch fuer\nGesetzgebung, XXV, 190 (1911).\n\n----, Grundlegung der Soziologie des Rechts (1913).\n\n----, Das lebende Recht der Voelker der Bukowina (1913).\n\nPage, Professor Ehrlich's Czernowitz Seminar of Living Law,\nProceedings of Fourteenth Annual Meeting of Association of American\nLaw Schools, 46 (1914).\n\nCosentini, Filosofia del diritto (1914).\n\nEhrlich, Die juristische Logik (1918).\n\nKornfeld, Allgemeine Rechtslehre und Jurisprudenz (1920).\n\n    See also Cosentini, La reforme de la legislation civile\n    (1913) (revised and augmented translation of La riforma\n    della legislazione civile, 1911); Kornfeld, Soziale\n    Machtverhaeltnisse, Grundzuege einer allgemeinen Lehre vom\n    positiven Rechte auf soziologischer Grundlage (1911); Levi,\n    La societe et l'ordre juridique (1911); Levi, Contributi\n    ad una teoria filosofica dell' ordine giuridico (1914).\n\n\nLECTURE II\n\nMiller, The Data of Jurisprudence, ch. 6.\n\nSalmond, Jurisprudence, Sec. 9.\n\nPulszky, Theory of Law and Civil Society, Sec. 173.\n\nBentham, Theory of Legislation, Principles of the Civil Code, pt. I,\nch. 1-7.\n\nHolland, Jurisprudence, ch. 6.\n\nKant, Philosophy of Law (Hastie's translation) 45-46.\n\nSpencer, Justice, ch. 5-6.\n\nWilloughby, Social Justice, ch. 2.\n\nPaulsen, Ethics (Thilly's translation), ch. 9.\n\nGareis, Vom Begriff Gerechtigkeit.\n\nDemogue, Notions fondamentales de droit prive, 119-135.\n\nPicard, Le droit pur, liv. 9.\n\nPound, The End of Law as Developed in Legal Rules and Doctrines, 27\nHarvard Law Review, 195.\n\nHolmes, Common Law, Lect. 1.\n\nPost, Ethnologische Jurisprudenz, II, Sec.Sec. 58-59.\n\nFehr, Hammurapi und das Salische Recht, 135-138.\n\nAmes, Law and Morals, 22 Harvard Law Review, 97.\n\nVoigt, Das Ius naturale, aequum et bonum und Ius Gentium der Roemer, I,\n321-323.\n\nStephen, Liberty, Equality, Fraternity, 189-255.\n\nMaine, Early History of Institutions (American ed.), 398-400.\n\nRitchie, Natural Rights, ch. 12.\n\nDemogue, Notions fondamentales de droit prive, 63-110, 136-142.\n\nJhering, Scherz und Ernst in die Jurisprudenz (10 ed.), 408-425.\n\nPound, Liberty of Contract, 18 Yale Law Journal, 454.\n\n----, The End of Law as Developed in Juristic Thought, 27 Harvard Law\nReview, 605, 30 Harvard Law Review, 201.\n\nBerolzheimer, The World's Legal Philosophies, Sec.Sec. 17-24.\n\nFiggis, Studies of Political Thought from Gerson to Grotius, Lect. 6.\n\nBerolzheimer, The World's Legal Philosophies, Sec.Sec. 25-27.\n\nHobbes, Leviathan, ch. 15.\n\nBerolzheimer, The World's Legal Philosophies, Sec. 29.\n\nKorkunov, General Theory of Law (translated by Hastings), Sec. 7.\n\nRitchie, Natural Rights, ch. 3.\n\nCharmont, La renaissance de droit naturel, 10-43.\n\nBerolzheimer, The World's Legal Philosophies, Sec.Sec. 35-37.\n\nKorkunov, General Theory of Law (translated by Hastings), 320-322.\n\nGray, Nature and Sources of the Law, Sec. 58.\n\nBerolzheimer, The World's Legal Philosophies, Sec. 28.\n\nMill, On Liberty, ch. 4.\n\nDicey, Law and Public Opinion in England, Lect. 6.\n\nBerolzheimer, The World's Legal Philosophies, Sec.Sec. 43-48, 52.\n\nStammler, Wesen des Rechts und der Rechtswissenschaft (in\nSystematische Rechtswissenschaft, i-lix).\n\nKohler, Rechtsphilosophie und Universalrechtsgeschichte, Sec.Sec. 13-16,\n33-34, 51.\n\n\nLECTURE III\n\nGeny, Methode d'interpretation et sources en droit prive positif (2\ned. 1919).\n\nVander Eycken, Methode positive de l'interpretation juridique (1907).\n\nMallieux, L'Exegese des codes (1908).\n\nRansson, Essai sur l'art de juger (1912).\n\n    See Wigmore, Problems of Law, 65-101; Pound, The Enforcement\n    of Law, 20 Green Bag, 401; Pound, Courts and Legislation, 7\n    American Political Science Review, 361-383.\n\nScience of Legal Method, Modern Legal Philosophy Series, Vol. 9\n(1917).\n\nGnaeus Flavius (Kantorowicz), Der Kampf um die Rechtswissenschaft\n(1906).\n\nFuchs, Recht und Wahrheit in unserer heutigen Justiz (1908).\n\n----, Die gemeinschaedlichkeit der konstruktiven Jurisprudenz (1909).\n\nOertmann, Gesetzeszwang und Richterfreiheit (1909).\n\nRumpf, Gesetz und Richter (1906).\n\nBruett, Die Kunst der Rechtsanwendung (1907).\n\nGmelin, Quousque? Beitraege zur soziologischen Rechtsfindung (1910).\n\nReichel, Gesetz und Richterspruch (1915).\n\nJellinek, Gesetz, Gesetzesanwendung und Zweckmaessigkeitserwaegung\n(1913).\n\nKuebl, Das Rechtsgefuehl (1913).\n\nHeck, Gesetzesauslegung und Interessenjurisprudenz (1914).\n\nStampe, Grundriss der Wertbewegungslehre (1912, 1919).\n\n    See Kohler, Lehrbuch des buergerlichen Rechts, I, Sec.Sec. 38-40;\n    Austin, Jurisprudence (3 ed.), 1023-1036; Pound, Spurious\n    Interpretation, 7 Columbia Law Review, 379; Gray, Nature\n    and Sources of the Law, Sec.Sec. 370-399; Somlo, Juristische\n    Grundlehre, Sec.Sec. 110-122; Stammler, Rechts- und Staatstheorien\n    der Neuzeit, Sec. 18; Pound, Introduction to English Translation\n    of Saleilles, Individualization of Punishment; Saleilles,\n    Individualization of Punishment, translated by Jastrow, ch.\n    9; Pound, Administrative Applications of Legal Standards, 44\n    Rep. American Bar Assn., 445; Laun, Das freie Ermessen und\n    seine Grenzen (1910).\n\n\nLECTURE IV\n\nHolmes, Collected Papers, 49-116 (1920).\n\nBaty, Vicarious Liability (1916).\n\nHasse, Die Culpa des roemischen Rechts (2 ed. 1838).\n\nJhering, Der Schuldmoment im roemischen Privatrecht (1867).\n\nRuemelin, Schadensersatz ohne Verschulden (1910).\n\nTriandafil, L'Idee de faute et l'idee de risque comme fondement de la\nresponsabilite (1914).\n\n    See Binding, Die Normen und ihre Uebertretung, I, Sec.Sec. 50-51;\n    Meumann, Prolegomena zu einem System des Vermoegensrechts, 80\n    ff. (1903); Duguit in Progress of Continental Law in the\n    Nineteenth Century (Continental Legal History Series, Vol.\n    XI), 124-128; Geny, Risque et responsabilite, Revue\n    trimestrielle de droit civil, I, 812; Rolin, Responsabilite\n    sans faute, Revue de droit international et legislation\n    comparee, XXXVIII, 64; Demogue, Fault, Risk and Apportionment\n    of Risk in Responsibility, 15 Illinois Law Review, 369;\n    Thayer, Liability Without Fault, 29 Harvard Law Review, 801;\n    Smith, Tort and Absolute Liability, 30 Harvard Law Review,\n    241, 319, 409; Bohlen, The Rule in Rylands v. Fletcher, 59\n    University of Pennsylvania Law Review, 298, 373, 423; Isaacs,\n    Fault and Liability, 31 Harvard Law Review, 954.\n\n\nLECTURE V\n\nEly, Property and Contract in Their Relation to the Distribution of\nWealth, I, 51-93, 132-258, 295-443, II, 475-549.\n\nHobson and Others, Property, Its Rights and Duties, Historically,\nPhilosophically and Religiously Considered (2 ed.), essays 1-3, 5-8.\n\nGreen, Principles of Political Obligation, Sec.Sec. 211-231.\n\nMiller, Lectures on the Philosophy of Law, Lect. 5.\n\nHerkless, Jurisprudence, ch. 10.\n\nRussell, Social Reconstruction, ch. 4.\n\nSpencer, Justice, ch. 12.\n\nKohler, Philosophy of Law, Albrecht's translation, 120-133.\n\nMaine, Ancient Law, ch. 8.\n\n----, Early History of Institutions (American ed.), 98-118.\n\n----, Early Law and Custom (American ed.), 335-361.\n\nDuguit, in Progress of the Law in the Nineteenth Century (Continental\nLegal History Series, Vol. XI), 129-146.\n\nWagner, Volkswirthschaft und Recht, besonders Vermoegensrecht (1894).\n\nPerreau, Cours d'economie politique, II, Sec.Sec. 623-695 (1916).\n\nDe la Grasserie, Les principes sociologiques du droit civil, ch. 3.\n\nCosentini, La reforme de la legislation civile, 371-422 (1913).\n\nFouillee, La propriete sociale et la democratie (1884).\n\nLandry, L'Utilite sociale de la propriete individuelle (1901).\n\nMeyer, L'Utilite publique et la propriete privee (1893).\n\nThezard, La propriete individuelle: Etude de philosophie historique du\ndroit (1872).\n\nThomas, L'Utilite publique et la propriete privee (1904).\n\nBerolzheimer, System der Rechts- und Wirthschaftsphilosophie, IV, Sec.Sec.\n1-13.\n\nFelix, Entwickelungsgeschichte des Eigenthums (1883-1899).\n\nKarner, Die sociale Funktion der Rechtsinstitute, besonders des\nEigenthums (1904).\n\nConti, La proprieta fondiaria nel passato e nel presente (1905).\n\nCosentini, Filosofia del diritto, 250-279 (1914).\n\nFadda, Teoria della proprieta (1907).\n\nLabriola, Sul fondamento della proprieta privata (1900).\n\nLoria, La proprieta fondiaria e la questione sociale (1897).\n\nPiccione, Concetto positivo del diritto di proprieta (1890).\n\nVelardita, La proprieta secondo la sociologia (1898).\n\nGrotius, De jure belli et pacis, II, 3, 1-5, II, 6, 1 and 14, Sec. 1.\n\nPufendorf, De jure naturae et gentium, IV, 4, Sec.Sec. 2-6, 14.\n\nLocke, On Government, ch. 5.\n\nBlackstone, Commentaries, II, 3-10.\n\nKant, Metaphysische Anfangsgruende der Rechtslehre (2 ed.), Sec.Sec. 1, 6-7,\n8, 10, 18-21.\n\nHegel, Grundlinien der Philosophie des Rechts, Sec.Sec. 44, 46, 49.\n\nLorimer, Institutes of Law (2 ed.), 215 ff.\n\n\nLECTURE VI\n\nEly, Property and Contract in Their Relation to the Distribution of\nWealth, II, 576-751.\n\nAmos, Systematic View of the Science of Jurisprudence, ch. 11.\n\nHerkless, Jurisprudence, ch. 12.\n\nKohler, Philosophy of Law, Albrecht's translation, 134-191.\n\nDe la Grasserie, Les principes sociologiques du droit civil, ch. 6.\n\nDuguit, in Progress of the Law in the Nineteenth Century (Continental\nLegal History Series, Vol. XI), 100-124.\n\nKant, Metaphysische Anfangsgruende der Rechtslehre (2 ed.), Sec.Sec. 18-21.\n\nHegel, Grundlinien der Philosophie des Rechts, Sec.Sec. 71-81.\n\nRichte, Grundlage des Naturrechts, Sec.Sec. 18-20.\n\nWilliston, Contracts, I, Sec.Sec. 99-204.\n\nAmes, The History of Assumpsit, 2 Harvard Law Review, 1, 53.\n\n----, Two Theories of Consideration, 12 Harvard Law Review, 515; 13\nHarvard Law Review, 29.\n\nBeale, Notes on Consideration, 17 Harvard Law Review, 71.\n\nLangdell, Mutual Promises as a Consideration for Each Other, 14\nHarvard Law Review, 496.\n\nPollock, Afterthoughts on Consideration, 17 Law Quarterly Review, 415.\n\nHershey, Letters of Credit, 32 Harvard Law Review, 1.\n\nLorenzen, Causa and Consideration in the Law of Contracts, 28 Yale Law\nJournal, 621.\n\nPound, Consideration in Equity, 13 Illinois Law Review, 667 (Wigmore\nCelebration Essays, 435).\n\n\n\n\nIndex\n\n\n  Abstract promise 262, 263\n\n  Acquisition\n    by creation 195\n    by discovery 195, 201\n    by occupation 196, 211\n    civil 196-197\n    derivative 207\n    in Roman law 194-200\n    Kant's theory of 210-213\n    natural 195\n    things not subject to 197\n\n  Act, as basis of liability 158\n\n  Acting at one's peril 167, 178\n\n  Action\n    _de deiectis et diffusis_ 162\n    _de recepto_ 162\n    _in factum_ 160\n    _in personam_ 151\n    _noxal_ 162\n\n  Adjudication\n    administrative element in 122-123\n    steps in 100\n\n  Administration 108\n    adjustment with law 137\n\n  Administrative tribunals 130, 136\n\n  Ames, James Barr 178\n\n  Analogy, reasoning by 32\n\n  Analysis 53\n\n  Analytical application 123-125\n    reasoning 105\n    theory 53-54\n\n  Anglo-Saxon Law 148\n\n  Application of Law 100 ff.\n    agencies of individualizing 129-138\n    analytical 123-125\n    equitable 122, 126-129\n    historical 125-126\n    latitude of 120, 129\n    margin of 112\n    rules 142\n    theories of 123-129\n\n  Aquilian _culpa_ 156, 159, 162\n\n  Aquinas, St. Thomas 25-26\n\n  Aristotle 25, 38, 76, 82, 138\n    on application of law 109-110\n    threefold classification of governmental powers 15\n\n  Austin, John 172-174, 259\n\n\n  Bacon 258\n\n  Bailment 170, 270, 275\n\n  Bartolus 37\n\n  Baty, T. 166\n\n  Bentham 54, 84\n\n  Bergson 141\n\n  Bills of Rights 43, 53, 216\n\n  Binding 164\n\n  Blackstone 26, 180, 208, 268, 278\n\n  Buckland, W. W. 161\n\n\n  Callings, restrictions on engaging in 88\n\n  Camden, Lord 119\n\n  Canon law 252, 254\n\n  Carrier, liability of 186\n\n  Casuists 254\n\n  Catholic jurist-theologians 39\n\n  _Causa_ 259\n    _civilis_ 248, 250, 251\n    _debendi_ 251, 254, 255\n\n  Causation 162, 164\n\n  Certainty 142-143\n\n  Change, reconciliation with stability 30, 38\n\n  Cicero 27, 30, 31, 117\n\n  Civilization, as a measure of value 98\n    jural postulates of, 56, 169-179, 284\n\n  Civil law, 237-240\n\n  Classes, social, 91\n\n  Codification, 46-47, 139-140\n\n  Coke, Sir Edward, 133\n\n  Commentators, the, 37\n\n  Common Law, the, and legislation, 139-140\n    professional view as to, 278\n    types of delictal liability in, 168\n\n  Community property, 229\n\n  Composition, 149, 241-242\n\n  Compromises, 94-95\n\n  Conceptions, legal, 116\n\n  Conditions \"implied in law\", 259\n\n  Conduct, application of law to, 137-139\n    expectations arising from, 189\n\n  Consciousness, as starting point, 84\n\n  Consideration, 240, 258-259, 267, 268, 271-273, 278-279\n    adequacy of, 273-274\n    circumstances keeping doctrine alive, 278-282\n    in equity, 258-259, 277\n    meanings of, 276-277\n    meritorious, 259\n\n  Contract\n    analogy of real transactions, 242\n    Anglo-American law of, 257-259\n    anomalies in law of, 282\n    bargain theory of, 269, 271-273\n    by estoppel, 187\n    categories of, 248\n    civil-law enforcement of, 238-240\n    common-law categories of, 274-275\n    common-law enforcement of, 240\n    consensual, 249\n    equivalent theory of, 255-256, 257-259, 269, 273-277\n    Fichte's theory of, 261-262\n    formal, 245-271\n    Hegel's theory of, 263\n    historical background of law of, 241 ff.\n    historical category of, 172\n    historical theory of, 266-269\n    injurious-reliance theory of, 261\n    innominate, 249, 261\n    Kant's theory of, 261\n    metaphysical theories of, 260-265\n    natural-law theory of, 260\n    \"natural principle of\", 45-46\n    objective theory of, 264-265\n    oral, 282\n    philosophy of, 253\n    philosophical theories of, 241\n    positive theory of, 265\n    real, 249, 275\n    religious origins of, 242-247, 252\n    Roman categories of, 45, 253, 260, 266\n    Romanist theory of, 263-265\n    simple, 275\n    specific enforcement of, 238-240\n    Spencer's theory of, 265\n    subjective theory of, 271\n    theory of basis in personality, 263-265\n    theory of inherent moral force, 259-260, 261\n    third-party beneficiaries of, 273\n    will theory of, 264-265, 269-271, 281-282\n\n  _Corpus Iuris Canonici_, 252\n\n  Court and jury, 111\n\n  Courts, contest with Crown, 53\n\n  _Culpa_, 170, 175\n    abstract standard of, 177\n    concrete standard of, 178\n    contractual, 170\n    delictal, 170\n\n  Culpability 158\n    as basis of liability 184\n    fiction of 158, 178\n\n  Custody 222-223\n\n\n  D'Aguesseau 254\n\n  Debt 174, 244, 275\n\n  Defamation 280, 281\n\n  Delicts, equitable 159\n    historical category of 172\n    nominate 162, 169-170, 175\n\n  Demosthenes 22\n\n  _Depositum_ 249\n\n  Derivative acquisition 207\n\n  Derry v. Peek 281\n\n  Dicey, A. V. 184\n\n  Digest of Justinian 107\n\n  Discovery 195, 201\n\n  Discretion 117, 119, 129\n    margin of 132\n    of the chancellor 130-133\n    relation of to rule 112, 141-143\n\n  Dispensing power 113\n\n  Distributions, Statute of 142\n\n  Division of labor 56, 176, 191\n\n  Doctor and Student 252, 259\n\n  Doe, Chief Justice 185\n\n  _Dolus_ 156, 159, 169, 175\n\n  _Dominium_ 199, 225\n\n  Due care 170, 175\n    standard of 119-120\n\n  Duguit, L. 98, 232\n\n  Dumoulin 39\n\n  Dunedin, Lord 276\n\n  Duress 159\n\n  Duties 173\n    relational 85\n\n\n  Economic interpretation 66-67, 179-180\n\n  Eldon, Lord 47\n\n  Empiricism, judicial 34, 283\n    juristic 34\n\n  End of law 54, 59-99\n    as a measure of value 96\n    Greek conception of 74-77\n    ideals of as basis of juristic theories 71-72\n    keeping the peace as 72-74\n    maximum individual self-assertion as 84-87\n    medieval conception of 78-80\n    nineteenth-century conception of 83-85\n    preserving social _status quo_ as 74-81\n    rise of new ideas as to 87-99\n    Roman conception of 77-78\n    theories of 72-99\n\n  English juristic theory 64\n\n  Englishmen, common-law rights of 43, 53\n\n  Enterprises, conduct of 137-189\n\n  Equality 82-85\n\n  Equitable application of law 122, 126-129\n\n  Equities 121\n\n  Equity 28, 47, 57, 59, 117, 130-133, 137-138, 258-259, 271\n    and natural law 41, 102, 112, 114, 153, 178\n    of the tribunal 102\n    provision for a child as consideration in 272, 274\n    securing a creditor as consideration in 272\n    settlement on a wife as consideration in 272, 274\n    will not aid a volunteer 272\n\n  Ethical interpretation 266\n\n\n  _Familia_ 200\n\n  Fichte, theory of contract 261-262\n\n  Fictions 102-108, 115\n    dogmatic 179, 180, 274\n    of culpability 178-179\n    of negligence 179\n    of representation 166, 179\n    of undertaking 171\n\n  _Fiducia cum amico_ 249\n\n  Fifth Amendment 51\n\n  Finding law 100, 104-105\n\n  Form and intention 154-155\n\n  Formal contracts, 245, 271, 275\n    historical origin of, 245-247\n\n  Formal undertaking, 155\n\n  Forms in primitive thinking, 247-248\n\n  Formulas, elasticity of, 121\n\n  Fortescue, 38\n\n  Fourteenth Amendment, 51\n\n  Freedom of contract, 191, 265, 267-269\n\n  Freedom of industry, 191\n\n  French Civil Code, 48, 162, 163\n    law of delictal liability, 167-168\n    monarchy, legal theory under, 64\n\n  Functional attitude, 91\n\n\n  Generalizations, 145\n\n  General security, 72, 96, 149-150, 171, 175, 176, 179, 193, 282\n    how infringed, 177\n\n  Germanic law, 36, 41, 79, 251, 254\n\n  Gifts, reformation of, 273\n\n  Gloss, The, 37\n\n  Glossators, 40\n\n  Good faith, 153, 155, 157, 170\n    corollaries of, 188-189\n\n  Gray, J. C., 102\n\n  Greek city, problem of order in, 75\n    security of social institutions in, 75\n\n  Greek law, 20-27, 151, 175\n\n  Greek philosophers, conception of the end of law, 35, 74-77\n    conception of the nature of law, 81\n    conception of the general security, 74\n    on subjects of litigation, 97, 241\n\n  Grotius, 196, 205-207, 260\n\n\n  Hammurapi, 60\n\n  Hard bargains, 132\n\n  Hegel, 84, 216, 274\n    theory of contract, 262\n    theory of property, 214-216\n\n  Heraditus, 76\n\n  Hindu law, 226-227, 243-245\n\n  Hippodamus, 241\n\n  Historical application of law, 125-126\n\n  Historical categories, 172\n\n  Historical school, 279\n\n  Holmes, Mr. Justice, 166\n\n  Household, partition of, 226-227\n\n  Husband and wife, 188\n    matrimonial property regime, 229\n\n  _Hybris_, 77\n\n\n  Idealism, juridical, 41-42, 91\n\n  Idealistic interpretation, 266\n\n  _Imperium_, 199\n\n  \"Implied\" undertakings, 158, 171\n\n  Individual free self-assertion, 54\n\n  Individualization, 111, 113-114\n    by juries, 133-134\n    in criminal procedure, 138\n    in punitive justice, 134-135\n    judicial, 120-121\n    moral element in, 137\n    of penal treatment, 129-130\n\n  Individual life, 96\n\n  Inheritance, 139\n\n  Innkeeper, liability of, 186\n\n  Insult, 151\n\n  Intention, 189\n    as source of liability, 157\n\n  Interdependence, 56\n\n  Interdicts, 200\n\n  Interests, 89-90\n    compromises of, 94-95\n    delimitation of, 192\n    giving effect to, 90\n    group, 225\n    harmony of, 96\n    individual, in promised advantages, 236\n    intrinsic importance of, 95\n    inventory of, 90\n    of substance, 139, 237\n    recognition of, 90, 192\n    securing of 96, 97\n    valuing of 89, 95-99\n    weighing of 89, 94\n\n  Interpretation 51-52, 100\n    fiction of 102-108\n    genuine 105, 124\n    relation to law making 105\n\n\n  Jessel, Sir George 268\n\n  Judicial, contrasted with administrative 108\n\n  Jural postulates 169-179, 188, 192-193, 193-194, 237, 249, 284\n\n  Juridical idealism 41-42, 91\n\n  Jurisconsults 30, 43-44\n\n  Jurisprudence, problems of 111\n\n  Juristic theories, nature of 69\n\n  Jurists, metaphysical 52, 68\n    search for the more inclusive order 145\n    seventeenth and eighteenth-century 43-44\n\n  Jurist-theologians 39\n    Spanish 81-82, 83\n\n  Jury 129, 133-134\n    lawlessness of 138\n\n  _Jus_ 31\n\n  _Jus disponendi_ 221\n\n  Just, the, by nature or by convention 25, 27, 31, 55\n\n  Justice, Aristotle on 25, 77\n    definition of in the Institutes 77\n    executive 137\n    idea of 65\n    without law 102, 113\n\n  Justinian, Institutes of 77-78\n\n\n  Kant 84, 202, 219, 260\n    theory of contract 260-261\n    theory of property 210-214\n\n  Kenyon, Lord 47\n\n  Kin organization 74\n\n\n  _Laesio enormis_ 274\n\n  Langdell, C. C. 259\n\n  Law, adjustment with administration 137\n    and morals 27, 30, 41, 111, 112\n    application of 100 ff.\n    as an aggregate of rules 110\n    as a body of agreements 63\n    as a body of commands 64\n    as a body of divinely ordained rules 60\n    as a keeping of the peace 72-74\n    as a reflection of divine reason 63\n    as a system of principles 62, 66\n    as custom 61, 62\n    as declaratory of economic or social laws 67-68\n    as precepts discovered by experience 65\n    as recorded traditional wisdom 61\n    as restraint on liberty 60\n    as rules imposed by dominant class 66\n    as standing between the individual and society 53\n    as unfolding an idea of right 65\n    basis of authority of 19, 23-24, 27, 28-29, 38, 69-72\n    Byzantine theory of 110\n    distinguished from rules of law 24\n    elements of 115-116\n    end of 35-36, 59 ff.\n    effectiveness of 193\n    finding 100, 104-105\n    forms of 27-28\n    government of 136\n    historical theory of 65, 68\n    how far made 107-108\n    idea of self-sufficiency of 17, 67\n    judge made 35\n    jurist made 35\n    maturity of 48, 59, 102\n    merchant 155, 271, 275\n    nature of 59, 91, 111\n    nature of theories of 68-69\n    political theory of 68\n    restatement of the 282\n    science of 101\n    soft spots in the 282\n    theories of the nature of 60-68\n\n  Law making, judicial 105\n    presuppositions of 59\n\n  Legal standards 51, 114, 116-120, 129, 141\n\n  Legal transactions 153\n    _bonae fidei_ 248\n    categories of 247\n    formal 249\n    _stricti iuris_ 248\n\n  Lending 150\n\n  Letters of credit 275, 276-277\n\n  _Lex_ 31\n\n  _Lex Aquilia_ 159\n\n  Liability, absolute 179\n    act as basis of 158, 182\n    analytical theory of 152-153\n    as corollary of fault 163-164, 166, 168, 181, 187, 283-284\n    basis of delictal 177\n    delictal 163, 167-169\n    elements of 162-163\n    employer's 163\n    fault as basis of 160, 163-164, 167\n    for cattle going on vacant lands 180-181\n    for injury by animal 163, 164, 180\n    for injury by child 159\n    for injury by minor 162\n    for injury by a _res ruinosa_ 162\n    for injury by slave 159\n    for intentional harm 168\n    for negligence 175, 180\n    for non-restraint of agencies 176\n    for tort, basis of 167\n    for tort, common-law theory of 168-169\n    for trespassing cattle 180\n    for unintended non-culpable harm 168\n    for unintentional culpable harm 168\n    for vicious animals 182, 186\n    from culpability 184\n    from legal transactions 187\n    fundamentals of 174\n    historical anomalies in 166, 179, 186\n    in French law 161-164\n    intention as basis of 157, 160\n    justifiable reliance as basis of 189\n    meaning of 147\n    natural sources of 156\n    noxal 159\n    of carrier 186\n    of innkeeper 159, 160, 186\n    of master of ship 159, 160\n    of stable keeper 159, 160\n    on \"implied\" terms of transaction 170\n    philosophical theories of 193-194\n    primitive grounds of 149-151\n    quasi-contractual 156\n    quasi-delictal 156\n    relational 186-188\n    to make restitution 187\n    theories of 148\n    will-theory of 157, 177, 179, 189\n    without fault 156, 162, 166, 177, 179\n\n  Liberty 84-85\n    idea of 65, 267\n    idea of as source of liability 157\n    law and 60\n\n  Locke, John 208\n\n  Lorimer, James 218\n\n  Louis IX 128\n\n\n  Magistrate, power of 112\n\n  Maine, Sir Henry 208\n\n  _Mala prohibita_ 26\n\n  Mandate 272\n\n  Mansfield, Lord 47, 260, 262, 273\n\n  Manu 60\n\n  Maturity of law 48, 59, 102\n\n  Maxims 34\n\n  Metaphysical jurists 92\n\n  _Metus_ 159\n\n  Middle Ages, conception of end of law in 78-80\n    idea of law in 77-81\n    juristic need in 36\n\n  Miller, W. G. 216-217\n\n  Mining customs 195\n    law 201, 222\n\n  Minos (pseudo-Platonic dialogue) 24\n\n  Mosaic law 60\n\n  _Mutuum_ 249\n\n\n  Narada 244\n\n  Nationalism in law 39\n\n  Natural, meaning of in philosophy of law 31-32\n\n  Natural law 25, 31, 35, 40, 41, 45-52, 55, 154, 166, 209, 253,\n          278, 280\n    American variant of 50\n    as a theory of growth 33-34\n    as deduced from \"a free government\" 52\n    as ideal critique 52\n    economic 205\n    theory of 42\n\n  Natural obligation 250\n\n  Natural reason 202\n\n  Natural rights 15, 42-43, 55, 83, 92-93, 146, 204, 205\n    historical-metaphysical theory of 52\n    theories of 44-45\n    to produce of labor 209\n\n  Nature, meaning of in Greek philosophy 31-32\n    state of 45\n\n  Necessary distinctions 172, 174\n\n  Negative community 207\n\n  Negligence 119-120, 165, 168, 177, 179, 270, 280\n    fiction of 179, 180\n    in speaking 280, 281\n    _per se_ 179\n\n  Neo-Hegelians 94, 98\n\n  Neo-Kantians 93, 98\n\n  New York, Code of Civil Procedure 105\n\n  _Nexum_ 249\n\n  _Nomos_, meanings of 22\n\n  Noxal liability 159\n\n  _Nudum pactum_ 246, 254, 273, 280\n\n\n  Oaths and vows 251\n\n  Obligation, civil 252\n    _ex contractu_ 146, 172\n    _ex delicto_ 146, 172, 174\n    _ex uariis causarum figuris_ 16, 172\n    meaning of 147\n    moral basis of 250\n    natural 250, 252-253\n    nature of 145\n    oaths as basis of 251-252\n    _quasi ex contractu_ 257\n    religious 244\n    will as basis of 250\n\n  Occupation 196, 211\n    as a legal transaction 213-214\n\n  Office or calling, duties attached to 173\n\n  Options 272, 274\n\n  Ownership, analytical theory of 222-224\n    development of the idea of 221-231\n    dogma that everything must be owned 199\n    things excluded from 199\n\n  _Pacta donationis_ 272\n\n  Pacts 248, 250, 261, 275\n\n  Partition 226-227, 228\n\n  Part performance 282\n\n  Paul, St. 77\n\n  _Peculium_ 227-228\n\n  _Pecunia credita_ 249\n\n  _Pedis possessio_ 222\n\n  Penal treatment, individualizing of 129-130\n\n  Penalty, for delict 149\n    of reparation 149\n\n  Personal government 135-136\n\n  Personality 191\n\n  Pessimism, juristic 57\n\n  Petty courts 130, 138\n\n  Philosophers, attempt to unify law and law making 19\n    attempt to reconcile authority with need of change 19\n    quest for an ultimate solving idea 19\n\n  Philosophical thinking, achievements of in law 16-18\n    as a force in administration of justice 16\n    needs determining as to law 18\n    possibilities of in law of contracts 284\n\n  Plato 24, 76\n\n  Pledge 251\n\n  Political interpretation 266\n\n  Positivism 54-56\n\n  Possession 233-234\n\n  Post-Glossators 37\n\n  Pothier 45\n\n  Primitive law 72-74\n    faith of in verbal formulas 154\n\n  Primogeniture 50\n\n  Principles 34, 53, 116\n\n  Procedure 111\n\n  Proculians 196\n\n  Promised advantages 191\n\n  Promises, abstract 255, 262, 263\n    an element in wealth 236\n    exchange of 254\n    \"from ostentation\" 256, 280, 281\n    moral duty to keep 262\n    philosophical theory of enforcing 283\n    simple 275\n    theories of enforcing 269-276\n    theory of inherent force of 259-260\n\n  Promissory oath 150-151, 251\n\n  Property, acquisition of 194-200, 204\n    analytical theory of 221-224\n    basis in creation 209\n    basis in division by agreement 205\n    basis in economic nature of man 205, 209\n    community 229\n    effectiveness of law as to 193\n    Grotius' theory of 205-207\n    Hegel's theory of 214-216\n    historical development of law of 224-232\n    historical theory of 219, 221-232\n    household 226-227, 229\n    inequalities in 215, 221\n    in natural media of life 201-202\n    jural postulates of 193, 194\n    Kant's theory of 210-214\n    law of 141\n    Lorimer's theory of 218\n    medieval theory of 202\n    metaphysical theories of 210-218\n    modes of acquiring 194-202\n    \"natural\" acquisition of 195\n    natural-law theories of 204-210\n    natural limits of right of 195\n    negative community in 207\n    philosophical theories of 194 ff.\n    positive theory of 219-221\n    psychological theory of 209, 23, 234\n    restrictions on appropriation of 88\n    restrictions on use and disposition of 87-88\n    self-acquired 227-228\n    seventeenth-century theory of 202\n    socialization of 233\n    social-utilitarian theory of 225\n    sociological theories of 232\n    Spencer's theory of 219\n    theories of 202-225\n    theory of in Anglo-American law 208\n    theory of in antiquity 202\n    things not subject to 197\n    titles to 195-197, 211\n    twentieth-century theories of 232\n\n  Protestant jurist-theologians 39\n\n  Psychology 90, 94, 279-280\n\n  Publicists, French 110\n\n  Public utilities 117, 136\n    exemption of from competition 88-89\n    power to contract 187\n\n  Pufendorf 207-208\n\n  Punitive justice 111\n    individualization of 134-135\n\n\n  Quasi-delict 161, 162\n\n\n  _Ratio legis_, doctrine of 32, 46\n\n  Reason, excessive faith in 39, 46-47\n\n  Reform movement, legislative 47, 85\n\n  Relations 171\n    duties attached to 173\n    economic value of 192\n    interference with 192\n    legal protection of 193\n\n  Release 272, 274\n\n  Religion 242 ff.\n\n  Reparation 149\n\n  Representation 179\n\n  _Res communes_ 197, 198, 199, 207, 210\n    _extra commercium_ 197, 201, 216, 217\n    _ipsa loquitur_ 180, 185-186\n    _nullius_ 199, 205\n    _publicae_ 198, 210\n    _religipsae_ 198\n    _ruinosa_ 162-163\n    _sacrae_ 198\n    _sanctae_ 198\n\n  Responsibility at one's peril 167\n\n  Right, idea of 65\n    natural and conventional 15, 25-26, 31\n\n  Rights, _in personam_ 146\n    _in rem_ 147\n\n  Roman conception of end of law 77-78\n    jurisconsults 30, 43\n\n  Roman law 26, 36, 41, 45, 105-106, 145, 151, 155, 170, 173-174,\n          195, 199, 200, 225, 228, 245-250, 254, 275\n    as basis of medieval law 40\n    as basis of law in XVII and XVIII centuries 41\n    contribution of to legal philosophy 36\n\n  Rousseau 214\n\n  Rules 115-116\n    adapted to commercial transactions 141\n    adapted to property 141\n    and discretion 141-143\n    application of 142\n    as guides 121\n    mechanical application of 142-143\n\n  Rylands v. Fletcher 168, 182-186\n\n\n  Sabinians 196\n\n  Sale 249\n\n  Satisfaction of wants, as an ideal 98-99\n\n  Savigny, F. C. von 213\n\n  Scholastic philosophy 36\n    permanent contribution of 38\n\n  Seals 240, 271, 275\n    contract under seal 255\n\n  Security of transactions 193, 237\n\n  Seisin 225\n\n  Self help 73\n\n  Seller's talk 280\n\n  Separation of powers 102-103, 107\n\n  Set off 250\n\n  Social contract 204\n\n  Social control 99, 225\n\n  Social engineering 99\n\n  Social ideal 56\n    as a measure of values 98\n\n  Social interdependence 232\n    as a measure of values 98\n\n  Social interests 99\n    in peace and order 148\n    in security of transactions 237\n\n  Social laws 54-55\n\n  Social order, feudal 79-80\n    idealized form of the 35\n    static 85\n\n  Social sciences, unification of 91\n\n  Social status quo, as end of law 35-36\n\n  Social utilitarianism 92-98\n\n  Socialists 209\n\n  Society, Greek conception of 79\n    jural postulates of civilized 169-179\n    kin-organized 73-74\n    medieval conception of 79\n\n  Sociology 94\n\n  _Sophrosyne_ 77\n\n  Sovereignty, Byzantine theory of 40\n\n  Specification 195\n\n  Specific performance 131-132, 238-240\n\n  Spencer, Herbert 84, 97, 201, 265\n    his law of equal freedom 219\n    his theory of property 219-221\n\n  Spirit and letter 154\n\n  Standards, legal 51, 114, 116-120, 129, 141\n\n  _Stare decisis_ 140\n\n  Status to contract 266\n\n  Statute of Frauds 282\n\n  Statute of Uses 277\n\n  Stipulation 246\n    of counsel 273, 274\n\n  Stoics 197\n\n  Strict law 33, 101, 112-113, 153, 155, 165, 280\n\n  Substance, interests of 139, 225\n\n  Super constitution 15, 51\n\n  Symbols 248\n\n\n  Teleology, legal 92\n\n  Theories of law, elements in 70-71\n\n  Third-party beneficiaries 273\n\n  Title, by creation 195\n    by discovery 195\n    by occupation 196, 211\n    \"natural\" 195\n\n  \"Tort of negligence\" 105\n\n  Torts 283\n    development of liability for 164-167\n    generalization of liability for 167\n    law of 117, 167\n    nominate 164, 165, 170, 175, 283\n\n  _Traditio_ 249\n\n  Trust, constructive 173\n    gratuitous declaration of 272, 274\n\n  Twelve Tables 249\n\n\n  Unjust enrichment 173, 187\n\n  Utilitarians 267, 268\n\n  Utility 53\n\n\n  Value, criteria of 89, 95-99\n\n  Vrihaspati 243\n\n\n  Waiver 272, 274\n\n  Wants, as juristic starting point 89-90\n    limitations on satisfaction of 97-98\n    satisfaction of 89-90\n\n  Warranties 174, 249\n\n  Whale fishing 195\n\n  Will, as basis of liability 157, 169\n    as basis of obligation 250\n    as juristic starting point 84, 89\n\n  Will theory 189\n    of contract 264-265\n\n  Williston, S. 282\n\n  Wills, harmonizing of 84, 90, 92-93\n\n  Workman's compensation 167\n\n\n\n\nSTORRS LECTURES\n\nPUBLISHED BY YALE UNIVERSITY PRESS\n\n\n  THE REFORM OF LEGAL PROCEDURE. By Moorfield Storey.\n  THE JUDICIARY AND THE PEOPLE. By Frederick N. Judson.\n  CONCERNING JUSTICE. By Lucilius A. Emery.\n  WOMAN'S SUFFRAGE BY CONSTITUTIONAL AMENDMENT. By Henry\n          St. George Tucker.\n  THE NATURE OF THE JUDICIAL PROCESS. By Benjamin N. Cardozo.\n\n\n\n\nTRANSCRIBER'S NOTES\n\n\n1. Passages in italics are surrounded by _underscores_.\n\n2. The original text includes Greek characters. For this text version\nthese letters have been replaced with transliterations.\n\n3. The following misprints have been corrected:\n     \"predicability\" corrected to \"predictability\" (page 33)\n     \"Aristole\" corrected to \"Aristotle\" (page 313)\n\n4. Other than the corrections listed above, printer's inconsistencies\nin spelling, punctuation, and hyphenation have been retained.","title":"An Introduction to the Philosophy of Law","tradition":"philosophy-ethics","translated_text":null,"word_count":55701}