Front Page Titles (by Subject) II: The End of Law - An Introduction to the Philosophy of Law
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II: The End of Law - Roscoe Pound, An Introduction to the Philosophy of Law 
An Introduction to the Philosophy of Law (New Haven: Yale University Press, 1922).
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The End of Law
MAKING or finding law, call it which you will, presupposes a mental picture of what one is doing and of why he is doing it. Hence the nature of law has been the chief battleground of jurisprudence since the Greek philosophers began to argue as to the basis of the law’s authority. But the end of law has been debated more in politics than in jurisprudence. In the stage of equity and natural law the prevailing theory of the nature of law seemed to answer the question as to its end. In the maturity of law the law was thought of as something self-sufficient, to be judged by an ideal form of itself, and as something which could not be made, or, if it could be made, was to be made sparingly. The idea of natural rights seemed to explain incidentally what law was for and to show that there ought to be as little of it as possible, since it was a restraint upon liberty and even the least of such restraint demanded affirmative justification. Thus, apart from mere systematic and formal improvement, the theory of lawmaking in the maturity of law was negative. It told us chiefly how we should not legislate and upon what subjects we should refrain from lawmaking. Having no positive theory of creative lawmaking, the last century was little conscious of requiring or holding a theory as to the end of law. But in fact it held such a theory and held it strongly.
As ideas of what law is for are so largely implicit in ideas of what law is, a brief survey of ideas of the nature of law from this standpoint will be useful. No less than twelve conceptions of what law is may be distinguished.
First, we may put the idea of a divinely ordained rule or set of rules for human action, as for example, the Mosaic law, or Hammurapi’s code, handed him ready-made by the sun god, or Manu, dictated to the sages by Manu’s son Bhrigu in Manu’s presence and by his direction.
Second, there is an idea of law as a tradition of the old customs which have proved acceptable to the gods and hence point the way in which man may walk with safety. For primitive man, surrounded by what seem vengeful and capricious powers of nature, is in continual fear of giving offence to these powers and thus bringing down their wrath upon himself and his fellows. The general security requires that men do only those things and do them only in the way which long custom has shown at least not displeasing to the gods. Law is the traditional or recorded body of precepts in which that custom is preserved and expressed. Whenever we find a body of primitive law possessed as a class tradition by a political oligarchy it is likely to be thought of in this way just as a body of like tradition in the custody of a priesthood is certain to be thought of as divinely revealed.
A third and closely related idea conceives of law as the recorded wisdom of the wise men of old who had learned the safe course or the divinely approved course for human conduct. When a traditional custom of decision and custom of action has been reduced to writing in a primitive code it is likely to be thought of in this way, and Demosthenes in the fourth century bc could describe the law of Athens in these terms.
Fourth, law may be conceived as a philosophically discovered system of principles which express the nature of things, to which, therefore, man ought to conform his conduct. Such was the idea of the Roman jurisconsult, grafted, it is true, on the second and third ideas and on a political theory of law as the command of the Roman people, but reconciled with them by conceiving of tradition and recorded wisdom and command of the people as mere declarations or reflections of the philosophically ascertained principles, to be measured and shaped and interpreted and eked out thereby. In the hands of philosophers the foregoing conception often takes another form so that, fifth, law is looked upon as a body of ascertainments and declarations of an eternal and immutable moral code.
Sixth, there is an idea of law as a body of agreements of men in politically organized society as to their relations with each other. This is a democratic version of the identification of law with rules of law and hence with the enactments and decrees of the city-state which is discussed in the Platonic Minos. Not unnaturally Demosthenes suggests it to an Athenian jury. Very likely in such a theory a philosophical idea would support the political idea and the inherent moral obligation of a promise would be invoked to show why men should keep the agreements made in their popular assemblies.
Seventh, law has been thought of as a reflection of the divine reason governing the universe; a reflection of that part which determines the “ought” addressed by that reason to human beings as moral entities, in distinction from the “must” which it addresses to the rest of creation. Such was the conception of Thomas Aquinas, which had great currency down to the seventeenth century and has had much influence ever since.
Eighth, law has been conceived as a body of commands of the sovereign authority in a politically organized society as to how men should conduct themselves therein, resting ultimately on whatever basis was held to be behind the authority of that sovereign. So thought the Roman jurists of the Republic and of the classical period with respect to positive law. And as the emperor had the sovereignty of the Roman people devolved upon him, the Institutes of Justinian could lay down that the will of the emperor had the force of a law. Such a mode of thought was congenial to the lawyers who were active in support of royal authority in the centralizing French monarchy of the sixteenth and seventeenth centuries and through them passed into public law. It seemed to fit the circumstances of parliamentary supremacy in England after 1688, and became the orthodox English juristic theory. Also it could be made to fit a political theory of popular sovereignty in which the people were thought of as succeeding to the sovereignty of parliament at the American Revolution or of the French king at the French Revolution.
A ninth idea of law takes it to be a system of precepts discovered by human experience whereby the individual human will may realize the most complete freedom possible consistently with the like freedom of will of others. This idea, held in one form or another by the historical school, divided the allegiance of jurists with the theory of law as command of the sovereign during almost the whole of the past century. It assumed that the human experience by which legal principles were discovered was determined in some inevitable way. It was not a matter of conscious human endeavor. The process was determined by the unfolding of an idea of right and justice or an idea of liberty which was realizing itself in human administration of justice, or by the operation of biological or psychological laws or of race characters, whose necessary result was the system of law of the time and people in question.
Again, tenth, men have thought of law as a system of principles, discovered philosophically and developed in detail by juristic writing and judicial decision, whereby the external life of man is measured by reason, or in another phase, whereby the will of the individual in action is harmonized with those of his fellow men. This mode of thought appeared in the nineteenth century after the natural-law theory in the form in which it had prevailed for two centuries had been abandoned and philosophy was called upon to provide a critique for systematic arrangement and development of details.
Eleventh, law has been thought of as a body or system of rules imposed on men in society by the dominant class for the time being in furtherance, conscious or unconscious, of its own interest. This economic interpretation of law takes many forms. In an idealistic form it thinks of the inevitable unfolding of an economic idea. In a mechanical sociological form it thinks of class struggle or a struggle for existence in terms of economics, and of law as the result of the operation of forces or laws involved in or determining such struggles. In a positivist-analytical form it thinks of law as the command of the sovereign, but of that command as determined in its economic content by the will of the dominant social class, determined in turn by its own interest. All of these forms belong to transition from the stability of the maturity of law to a new period of growth. When the idea of the self-sufficiency of law gives way and men seek to relate jurisprudence to the other social sciences, the relation to economics challenges attention at once. Moreover in a time of copious legislation the enacted rule is easily taken as the type of legal precept and an attempt to frame a theory of legislative lawmaking is taken to give an account of all law.
Finally, twelfth, there is an idea of law as made up of the dictates of economic or social laws with respect to the conduct of men in society, discovered by observation, expressed in precepts worked out through human experience of what would work and what not in the administration of justice. This type of theory likewise belongs to the end of the nineteenth century, when men had begun to look for physical or biological bases, discoverable by observation, in place of metaphysical bases, discoverable by philosophical reflection. Another form finds some ultimate social fact by observation and develops the logical implications of that fact much after the manner of the metaphysical jurist. This again results from the tendency in recent years to unify the social sciences and consequent attention to sociological theories.
Digression is worth while in order to note that each of the foregoing theories of law was in the first instance an attempt at a rational explanation of the law of the time and place or of some striking element therein. Thus, when the law has been growing through juristic activity, a philosophical theory of law, as declaratory of philosophically ascertainable principles, has obtained. When and where the growing point of law has been in legislation, a political theory of law as the command of the sovereign has prevailed. When the law has been assimilating the results of a prior period of growth, a historical theory of law as something found by experience, or a metaphysical theory of law as an idea of right or of liberty realizing in social and legal development, has tended to be dominant. For jurists and philosophers do not make these theories as simple matters of logic by inexorable development of philosophical fundamentals. Having something to explain or to expound, they endeavor to understand it and to state it rationally and in so doing work out a theory of what it is. The theory necessarily reflects the institution which it was devised to rationalize, even though stated universally. It is an attempt to state the law, or the legal institution of the time and place in universal terms. Its real utility is likely to be in its enabling us to understand that body of law or that institution and to perceive what the men of the time were seeking to do with them or to make of them. Accordingly analysis of these theories is one way of getting at the ends for which men have been striving through the legal order.
What common elements may we find in the foregoing twelve pictures of what law is? For one thing, each shows us a picture of some ultimate basis, beyond reach of the individual human will, that stands fast in the whirl of change of which life is made up. This steadfast ultimate basis may be thought of as the divine pleasure or will or reason, revealed immediately or mediately through a divinely ordained immutable moral code. It may be put in the form of some ultimate metaphysical datum which is so given us that we may rest in it forever. It may be portrayed as certain ultimate laws which inexorably determine the phenomena of human conduct. Or it may be described in terms of some authoritative will for the time and place, to which the wills of others are subjected, that will deriving its authority ultimately and absolutely in some one of the preceding forms, so that what it does is by and large in no wise a matter of chance. This fixed and stable starting point is usually the feature upon which the chief emphasis is placed. Next we shall find in all theories of the nature of law a picture of a determinate and mechanically absolute mode of proceeding from the fixed and absolute starting point. The details may come from this starting point through divine revelation or a settled authoritative tradition or record, or an inevitable and infallible philosophical or logical method, or an authoritative political machinery, or a scientific system of observation, or historically verifiable ideas which are logically demonstrable to be implications of the fundamental metaphysically given datum. Third, we shall see in these theories a picture of a system of ordering human conduct and adjusting human relations resting upon the ultimate basis and derived therefrom by the absolute process. In other words, they all picture, not merely an ordering of human conduct and adjustment of human relations, which we have actually given, but something more which we should like to have, namely, a doing of these things in a fixed, absolutely predetermined way, excluding all merely individual feelings or desires of those by whom the ordering and adjustment are carried out. Thus in these subconscious picturings of the end of law it seems to be conceived as existing to satisfy a paramount social want of general security. Certainly the nineteenth-century jurist had this conception. But is this because the function of law is limited to satisfaction of that one want, or is it because that want has been most conspicuous among those which men have sought to satisfy through law, and because the ordering of human conduct by the force of politically organized society has been adapted chiefly to satisfying that one want in the social order of the past?
If we turn to the ideas which have obtained in conscious thinking about the end of law, we may recognize three which have held the ground successively in legal history and a fourth which is beginning to assert itself. The first and simplest idea is that law exists in order to keep the peace in a given society; to keep the peace at all events and at any price. This is the conception of what may be called the stage of primitive law. It puts satisfaction of the social want of general security, stated in its lowest terms, as the purpose of the legal order. So far as the law goes, other individual or social wants are ignored or are sacrificed to this one. Accordingly the law is made up of tariffs of exact compositions for every detailed injury instead of principles of exact reparation, of devices to induce or coerce submission of controversies to adjudication instead of sanctions, of regulation of self-help and self-redress instead of a general prohibition thereof, and of mechanical modes of trial which at any rate do not admit of argument instead of rational modes of trial involving debate and hence dispute and so tending to defeat the purpose of the legal order. In a society organized on the basis of kinship, in which the greater number of social wants were taken care of by the kin-organizations, there are two sources of friction: the clash of kin-interests, leading to controversies of one kindred with another, and the kinless man, for whom no kin-organization is responsible, who also has no kin-organization to stand behind him in asserting his claims. Peace between kindreds and peace between clansmen and the growing mass of non-gentile population is the unsatisfied social want to which politically organized society must address itself. The system of organized kindreds gradually breaks down. Groups of kinsmen cease to be the fundamental social units. Kin-organization is replaced by political organization as the primary agency of social control. The legal unit comes to be the free citizen or the free man. In this transition regulation of self-redress and prevention of private war among those who have no strong clan-organizations to control them or respond for them are demanded by the general security. The means of satisfying these social wants are found in a legal order conceived solely in terms of keeping the peace.
Greek philosophers came to conceive of the general security in broader terms and to think of the end of the legal order as preservation of the social status quo. They came to think of maintaining the general security mediately through the security of social institutions. They thought of law as a device to keep each man in his appointed groove in society and thus prevent friction with his fellows. The virtue on which they insisted was sophrosyne, knowing the limits which nature fixes for human conduct and keeping within them. The vice which they denounced was hybris, wilful bondbreaking—wilful transgression of the socially appointed bounds. This mode of thinking follows the substitution of the city-state political organization of society for the kin-organization. The organized kindreds were still powerful. An aristocracy of the kin-organized and kin-conscious, on the one hand, and a mass of those who had lost or severed their ties of kinship, or had come from without, on the other hand, were in continual struggle for social and political mastery. Also the politically ambitious individual and the masterful aristocrat were continually threatening the none too stable political organization through which the general security got a precarious protection. The chief social want, which no other social institution could satisfy, was the security of social institutions generally. In the form of maintenance of the social status quo this became the Greek and thence the Roman and medieval conception of the end of law.
Transition from the idea of law as a device to keep the peace to the idea of law as a device to maintain the social status quo may be seen in the proposition of Heraclitus, that men should fight for their laws as for the walls of their city. In Plato the idea of maintaining the social order through the law is fully developed. The actual social order was by no means what it should be. Men were to be reclassified and everyone assigned to the class for which he was best fitted. But when the classification and the assignment had been made the law was to keep him there. It was not a device to set him free that he might find his own level by free competition with his fellows and free experiment with his natural powers. It was a device to prevent such disturbances of the social order by holding each individual to his appointed place. As Plato puts it, the shoemaker is to be only a shoemaker and not a pilot also; the farmer is to be only a farmer and not a judge as well; the soldier is to be only a soldier and not a man of business besides; and if a universal genius who through wisdom can be everything and do everything comes to the ideal city-state, he is to be required to move on. Aristotle puts the same idea in another way, asserting that justice is a condition in which each keeps within his appointed sphere; that we first take account of relations of inequality, treating individuals according to their worth, and then secondarily of relations of equality in the classes into which their worth requires them to be assigned. When St. Paul exhorted wives to obey their husbands, and servants to obey their masters, and thus everyone to exert himself to do his duty in the class where the social order had put him, he expressed this Greek conception of the end of law.
Roman lawyers made the Greek philosophical conception into a juristic theory. For the famous three precepts to which the law is reduced in Justinian’s Institutes come to this: Everyone is to live honorably; he is to “preserve moral worth in his own person” by conforming to the conventions of the social order. Everyone is to respect the personality of others; he is not to interfere with those interests and powers of action, conceded to others by the social order, which make up their legal personality. Everyone is to render to everyone else his own; he is to respect the acquired rights of others. The social system has defined certain things as belonging to each individual. Justice is defined in the Institutes as the set and constant purpose of giving him these things. It consists in rendering them to him and in not interfering with his having and using them within the defined limits. This is a legal development of the Greek idea of harmoniously maintaining the social status quo. The later eastern empire carried it to the extreme. Stability was to be secured by rigidly keeping everyone to his trade or calling and his descendants were to follow him therein. Thus the harmony of society and the social order would not be disturbed by individual ambition.
In the Middle Ages the primitive idea of law as designed only to keep the peace came back with Germanic law. But the study of Roman law presently taught the Roman version of the Greek conception and the legal order was thought of once more as an orderly maintenance of the social status quo. This conception answered to the needs of medieval society, in which men had found relief from anarchy and violence in relations of service and protection and a social organization which classified men in terms of such relations and required them to be held to their functions as so determined. Where the Greeks thought of a stationary society corrected from time to time with reference to its nature or ideal, the Middle Ages thought of a stationary society resting upon authority and determined by custom or tradition. To each, law was a system of precepts existing to maintain this stationary society as it was.
In the feudal social order reciprocal duties involved in relations established by tradition and taken to rest on authority were the significant legal institutions. With the gradual disintegration of this order and the growing importance of the individual in a society engaged in discovery, colonization and trade, to secure the claims of individuals to assert themselves freely in the new fields of human activity which were opening on every side became a more pressing social want than to maintain the social institutions by which the system of reciprocal duties was enforced and the relations involving those duties were preserved. Men did not so much desire that others perform for them the duties owing in some relation, as that others keep hands off while they achieved what they might for themselves in a world that continually afforded new opportunities to the active and the daring. The demand was no longer that men be kept in their appointed grooves. Friction and waste were apprehended, not from men getting out of these grooves, but from attempts to hold them there by means devised to meet the needs of a different social order whereby they were made to chafe under arbitrary restraint and their powers were not utilized in the discovery and exploitation of the resources of nature, to which human powers were to be devoted in the succeeding centuries. Accordingly the end of law comes to be conceived as a making possible of the maximum of individual free self-assertion.
Transition to the newer way of thinking may be seen in the Spanish jurist-theologians of the sixteenth century. Their juristic theory was one of natural limits of activity in the relations of individuals with each other, that is, of limits to human action which expressed the rational ideal of man as a moral creature and were imposed upon men by reason. This theory differs significantly from the idea of antiquity, although it goes by the old name. The Greeks thought of a system of limiting men’s activities in order that each might be kept in the place for which he was best fitted by nature—the place in which he might realize an ideal form of his capacities—and thus to preserve the social order as it stands or as it shall stand after a rearrangement. The sixteenth-century jurists of the Counter-Reformation held that men’s activities were naturally limited, and hence that positive law might and should limit them in the interest of other men’s activities, because all men have freedom of will and ability to direct themselves to conscious ends. Where Aristotle thought of inequalities arising from the different worth of individual men and their different capacities for the things which the social order called for, these jurists thought of a natural (i.e., ideal) equality, involved in the like freedom of will and the like power of conscious employment of one’s faculties inherent in all men. Hence law did not exist to maintain the social status quo with all its arbitrary restraints on the will and on employment of individual powers; it existed rather to maintain the natural equality which often was threatened or impaired by the traditional restrictions on individual activity. Since this natural equality was conceived positively as an ideal equality in opportunity to do things, it could easily pass into a conception of free individual self-assertion as the thing sought, and of the legal order as existing to make possible the maximum thereof in a world abounding in undiscovered resources, undeveloped lands and unharnessed natural forces. The latter idea took form in the seventeenth century and prevailed for two centuries thereafter, culminating in the juristic thought of the last generation.
Law as a securing of natural equality became law as a securing of natural rights. The nature of man was expressed by certain qualities possessed by him as a moral, rational creature. The limitations on human activity, of which the Spanish jurist-theologians had written, got their warrant from the inherent moral qualities of men which made it right for them to have certain things and do certain things. These were their natural rights and the law existed simply to protect and give effect to these rights. There was to be no restraint for any other purpose. Except as they were to be compelled to respect the rights of others, which the natural man or ideal man would do without compulsion as a matter of reason, men were to be left free. In the nineteenth century this mode of thought takes a metaphysical turn. The ultimate thing for juristic purposes is the individual consciousness. The social problem is to reconcile conflicting free wills of conscious individuals independently asserting their wills in the varying activities of life. The natural equality becomes an equality in freedom of will. Kant rationalized the law in these terms as a system of principles or universal rules, to be applied to human action, whereby the free will of the actor may co-exist along with the free will of everyone else. Hegel rationalized the law in these terms as a system of principles wherein and whereby the idea of liberty was realizing in human experience. Bentham rationalized it as a body of rules, laid down and enforced by the state’s authority, whereby the maximum of happiness, conceived in terms of free self-assertion, was secured to each individual. Its end was to make possible the maximum of free individual action consistent with general free individual action. Spencer rationalized it as a body of rules, formulating the “government of the living by the dead,” whereby men sought to promote the liberty of each limited only by the like liberty of all. In any of these ways of putting it, the end of law is to secure the greatest possible general individual self-assertion; to let men do freely everything they may consistently with a like free doing of everything they may by their fellow men. This is indeed a philosophy of law for discoverers and colonizers and pioneers and traders and entrepreneurs and captains of industry. Until the world became crowded, it served well to eliminate friction and to promote the widest discovery and utilization of the natural resources of human existence.
Looking back at the history of this conception, which has governed theories of the end of law for more than two hundred years, we may note that it has been put to three uses. It has been used as a means of clearing away the restraints upon free economic activity which accumulated during the Middle Ages as incidents of the system of relational duties and as expressions of the idea of holding men to their place in a static social order. This negative side played an important part in the English legislative reform movement in the last century. The English utilitarians insisted upon removal of all restrictions upon individual free action beyond those necessary for securing like freedom on the part of others. This, they said, was the end of legislation. Again it has been used as a constructive idea, as in the seventeenth and eighteenth centuries, when a commercial law which gave effect to what men did as they willed it, which looked at intention and not at form, which interpreted the general security in terms of the security of transactions and sought to effectuate the will of individuals to bring about legal results, was developed out of Roman law and the custom of merchants through juristic theories of natural law. Finally it was used as a stabilizing idea, as in the latter part of the nineteenth century, when men proved that law was an evil, even if a necessary evil, that there should be as little law made as possible, since all law involved restraint upon free exertion of the will, and hence that jurist and legislator should be content to leave things legal as they are and allow the individual “to work out in freedom his own happiness or misery” on that basis.
When this last stage in the development of the idea of law as existing to promote or permit the maximum of free individual self-assertion had been reached, the juristic possibilities of the conception had been exhausted. There were no more continents to discover. Natural resources had been discovered and exploited and the need was for conservation of what remained available. The forces of nature had been harnessed to human use. Industrial development had reached large proportions, and organization and division of labor in our economic order had gone so far that anyone who would could no longer go forth freely and do anything which a restless imagination and daring ambition suggested to him as a means of gain. Although lawyers went on repeating the old formula, the law began to move in another direction. The freedom of the owner of property to do upon it whatever he liked, so he did not overstep his limits or endanger the public health or safety, began to be restricted. Nay, the law began to make men act affirmatively upon their property in fashions which it dictated, where the general health was endangered by non-action. The power to make contracts began to be limited where industrial conditions made abstract freedom of contract defeat rather than advance full individual human life. The power of the owner to dispose freely of his property began to be limited in order to safeguard the security of the social institutions of marriage and the family. Freedom of appropriating res nullius and of using res communes came to be abridged in order to conserve the natural resources of society. Freedom of engaging in lawful callings came to be restricted, and an elaborate process of education and examination to be imposed upon those who would engage in them, lest there be injury to the public health, safety or morals. A regime in which anyone might freely set up a corporation to engage in a public service, or freely compete in such service, was superseded by one of legal exemption of existing public utilities from destructive competition. In a crowded world, whose resources had been exploited, a system of promoting the maximum of individual self-assertion had come to produce more friction than it relieved and to further rather than to eliminate waste.
At the end of the last and the beginning of the present century, a new way of thinking grew up. Jurists began to think in terms of human wants or desires rather than of human wills. They began to think that what they had to do was not simply to equalize or harmonize wills, but, if not to equalize, at least to harmonize the satisfaction of wants. They began to weigh or balance and reconcile claims or wants or desires, as formerly they had balanced or reconciled wills. They began to think of the end of law not as a maximum of self-assertion, but as a maximum satisfaction of wants. Hence for a time they thought of the problem of ethics, of jurisprudence, and of politics as chiefly one of valuing; as a problem of finding criteria of the relative value of interests. In jurisprudence and politics they saw that we must add practical problems of the possibility of making interests effective through governmental action, judicial or administrative. But the first question was one of the wants to be recognized—of the interests to be recognized and secured. Having inventoried the wants or claims or interests which are asserting and for which legal security is sought, we were to value them, select those to be recognized, determine the limits within which they were to be given effect in view of other recognized interests, and ascertain how far we might give them effect by law in view of the inherent limitations upon effective legal action. This mode of thinking may be seen, concealed under different terminologies, in more than one type of jurist in the last three decades.
Three elements contributed to shift the basis of theories as to the end of law from wills to wants, from a reconciling or harmonizing of wills to a reconciling or harmonizing of wants. The most important part was played by psychology which undermined the foundation of the metaphysical will-philosophy of law. Through the movement for unification of the social sciences, economics also played an important part, especially indirectly through the attempts at economic interpretation of legal history, reinforcing psychology by showing the extent to which law had been shaped by the pressure of economic wants. Also the differentiation of society, involved in industrial organization, was no mean factor, when classes came to exist in which claims to a minimum human existence, under the standards of the given civilization, became more pressing than claims to self-assertion. Attention was turned from the nature of law to its purpose, and a functional attitude, a tendency to measure legal rules and doctrines and institutions by the extent to which they further or achieve the ends for which law exists, began to replace the older method of judging law by criteria drawn from itself. In this respect the thought of the present is more like that of the seventeenth and eighteenth centuries than that of the nineteenth century. French writers have described this phenomenon as a “revival of juridical idealism.” But in truth the social utilitarianism of today and the natural-law philosophy of the seventeenth and eighteenth centuries have only this in common: Each has its attention fixed upon phenomena of growth; each seeks to direct and further conscious improvement of the law.
In its earlier form social-utilitarianism, in common with all nineteenth-century philosophies of law, was too absolute. Its teleological theory was to show us what actually and necessarily took place in lawmaking rather than what we were seeking to bring about. Its service to the philosophy of law was in compelling us to give over the ambiguous term “right” and to distinguish between the claims or wants or demands, existing independently of law, the legally recognized or delimited claims or wants or demands, and the legal institutions, which broadly go by the name of legal rights, whereby the claims when recognized and delimited are secured. Also it first made clear how much the task of the lawmaker is one of compromise. To the law-of-nature school, lawmaking was but an absolute development of absolute principles. A complete logical development of the content implicit in each natural right would give a body of law adequate to every time and place. It is true an idea of compromise did lurk behind the theory of the metaphysical jurists in the nineteenth century. But they sought an absolute harmonizing rather than a working compromise for the time and place. Conflicting individual wills were to be reconciled absolutely by a formula which had ultimate and universal authority. When we think of law as existing to secure social interests, so far as they may be secured through an ordering of men and of human relations through the machinery of organized political society, it becomes apparent that we may reach a practicable system of compromises of conflicting human desires here and now, by means of a mental picture of giving effect to as much as we can, without believing that we have a perfect solution for all time and for every place. As the Neo-Kantians put it, we may formulate the social ideal of the time and place and try juristic problems thereby without believing ourselves competent to lay out a social and political and legal chart for all time. As the Neo-Hegelians put it, we may discover and formulate the jural postulates of the civilization of the time and place without assuming that those postulates are a complete and final picture of ultimate law, by which it must be measured for all time.
Social utilitarianism has stood in need of correction both from psychology and from sociology. It must be recognized that lawmaking and adjudication are not in fact determined precisely by a weighing of interests. In practice the pressure of wants, demands, desires, will warp the actual compromises made by the legal system this way or that. In order to maintain the general security we endeavor in every way to minimize this warping. But one needs only to look below the surface of the law anywhere at any time to see it going on, even if covered up by mechanical devices to make the process appear an absolute one and the result a predetermined one. We may not expect that the compromises made and enforced by the legal order will always and infallibly give effect to any picture we may make of the nature or ends of the process of making and enforcing them. Yet there will be less of this subconscious warping if we have a clear picture before us of what we are seeking to do and to what end, and if we build in the image thereof so far as we consciously build and shape the law.
Difficulties arise chiefly in connection with criteria of value. If we say that interests are to be catalogued or inventoried, that they are then to be valued, that those which are found to be of requisite value are to be recognized legally and given effect within limits determined by the valuation, so far as inherent difficulties in effective legal securing of interests will permit, the question arises at once, How shall we do this work of valuing? Philosophers have devoted much ingenuity to the discovery of some method of getting at the intrinsic importance of various interests, so that an absolute formula may be reached in accordance wherewith it may be assured that the weightier interests intrinsically shall prevail. But I am skeptical as to the possibility of an absolute judgment. We are confronted at this point by a fundamental question of social and political philosophy. I do not believe the jurist has to do more than recognize the problem and perceive that it is presented to him as one of securing all social interests so far as he may, of maintaining a balance or harmony among them that is compatible with the securing of all of them. The last century preferred the general security. The present century has shown many signs of preferring the individual moral and social life. I doubt whether such preferences can maintain themselves.
Social utilitarians would say, weigh the several interests in terms of the end of law. But have we any given to us absolutely? Is the end of law anything less than to do whatever may be achieved thereby to satisfy human desires? Are the limits any other than those imposed by the tools with which we work, whereby we may lose more than we gain, if we attempt to apply them in certain situations? If so, there is always a possibility of improved tools. The Greek philosopher who said that the only possible subjects of lawsuit were “insult, injury and homicide,” was as dogmatic as Herbert Spencer, who conceived of sanitary laws and housing laws in our large cities as quite outside the domain of the legal order. Better legal machinery extends the field of legal effectiveness as better machinery has extended the field of industrial effectiveness. I do not mean that the law should interfere as of course in every human relation and in every situation where some one chances to think a social want may be satisfied thereby. Experience has shown abundantly how futile legal machinery may be in its attempts to secure certain kinds of interests. What I do say is, that if in any field of human conduct or in any human relation the law, with such machinery as it has, may satisfy a social want without a disproportionate sacrifice of other claims, there is no eternal limitation inherent in the nature of things, there are no bounds imposed at creation, to stand in the way of its doing so.
Let us apply some of the other theories which are now current. The Neo-Hegelians say: Try the claims in terms of civilization, in terms of the development of human powers to the most of which they are capable—the most complete human mastery of nature, both human nature and external nature. The Neo-Kantians say: Try them in terms of a community of free-willing men as the social ideal. Duguit says: Try them in terms of social interdependence and social function. Do they promote or do they impede social interdependence through similarity of interest and division of labor? In these formulas do we really get away from the problem of a balance compatible with maintaining all the interests, with responding to all the wants and claims, which are involved in civilized social existence?
For the purpose of understanding the law of today I am content with a picture of satisfying as much of the whole body of human wants as we may with the least sacrifice. I am content to think of law as a social institution to satisfy social wants—the claims and demands involved in the existence of civilized society—by giving effect to as much as we may with the least sacrifice, so far as such wants may be satisfied or such claims given effect by an ordering of human conduct through politically organized society. For present purposes I am content to see in legal history the record of a continually wider recognizing and satisfying of human wants or claims or desires through social control; a more embracing and more effective securing of social interests; a continually more complete and effective elimination of waste and precluding of friction in human enjoyment of the goods of existence—in short, a continually more efficacious social engineering.