The Online Library of Liberty

A project of Liberty Fund, Inc.

• Foreword
• Table of Cases
• The Ideal Element In Law
• One: Is There an Ideal Element In Law?
• Two: Natural Law
• Three: Law and Morals
• Four: Rights, Interests, and Values
• Five: the End of Law: Maintaining the Social Status Quo
• Six: Promotion of Free Self-assertion 1. The Sixteenth to the Eighteenth Century
• Seven: Promotion of Free Self-assertion 2. Nineteenth Century to the Present
• Eight: Maintaining and Furthering Civilization
• Nine: Class Interest and Economic Pressure: the Marxian Interpretation
• Ten: Later Forms of Juristic Realism
• Eleven: the Humanitarian Idea
• Twelve: the Authoritarian Idea
• Epilogue
• Glossary

FIVE

The End of Law: Maintaining the Social Status Quo

We turn now to the end or purpose of law, both as legal order and as a body of authoritative norms, i.e., models or patterns of conduct, of decision of controversies, and of predictions or advice by counsellors; or, in other words, to theories of justice.1

It has been seen that a body of philosophical, political, and ethical ideas as to the end of law—as to the purpose of social control and of the legal order as a form thereof—and hence as to what legal precepts ought to be in view of this end, is an element of the first importance in the work of judges, jurists, and lawmakers. The history and development of this body of ideas is no less important for the science of law than the history and development of the precepts and doctrines which used to be thought of as making up the whole of the law. Indeed, the history of ideas as to the end of law is part of the very history of legal precepts and legal doctrines. But there is another reason why we should examine the history of these ideas. It used to be said that law is the body of precepts in accordance with which justice is administered by the authority of the state.2 This presupposes that the purpose of law (in the sense of the judicial process) is the administration of justice, and the task of the judicial process is to maintain the legal order as an order of justice by applying to decisions of controversies the authoritative norms of decision established or recognized by the state. Thus at the outset of even a purely analytical investigation we are met by the question, what is justice, in the sense of what we are trying to bring about through law.

This is not a question of what justice is when thought of as an individual virtue, nor what it is when thought of as a regime of adjusting relations and ordering conduct. It is a question of what it is that we seek to attain by means of the legal ordering of society. What is the end which we are trying to reach by means of the legal order and hence through judicial decision, juristic discussion and legislation? As has been said here-inbefore, I prefer Radbruch’s definition of justice as the ideal relation among men. Even if we cannot dogmatically lay down an unchallengeable universal formulation of that ideal, we may set forth the received formulation which men accept in the time and place as what they believe to be the ideal formulation and we accept as the nearest approximation we may attain for the time being.

We may take up this question of the end of law, or of what is justice, either historically or philosophically. We may inquire as to ideas of the end of law as they have developed in legal precepts and legal doctrines. Or we may inquire about these ideas as they have developed in juristic thought. In the latter connection we are brought to inquire what ought to be conceived as the end of law, and we must ask what do economics, politics, sociology, and ethics point to as the purpose to which the ordering of society is to be directed. As one pursues this last inquiry he soon perceives that juristic theories of the end of law and those which obtain in the other social sciences are not always the same. Thus there was a significant divergence between the idea as to the end of law which had developed in actual legal precepts and doctrines and obtained in juristic thought at the end of the nineteenth century, on the one hand, and, on the other hand, the idea of justice which had then come to obtain in economics, politics, and ethics. Hence we have not merely to ask, what is the legal or at least the juristic idea of justice. It is of no less moment to know how, and when, and why it has differed or may differ from the economic, or political, or ethical idea. To answer such questions we must consider how and why the legal idea of justice came to be what it is.

In studying ideas as to the end of law we must note that actual legal ideas and juristic ideals have acted each upon the other. If ideals of what law ought to be have done much in all ages to shape legal precepts as they were, it is no less true that the actual legal situation for the time being has had a large influence upon the ideals.3 We must consider the development of each in order to understand the other. Approaching the subject historically I have found it convenient to think of four stages of legal development in systems which have come to maturity: (1) The stage of primitive law, (2) the stage of the strict law, (3) the stage of equity and natural law, and (4) the stage of maturity of law. To these we must now add a fifth stage upon which the law has definitely entered throughout the world, which may be called the stage of socialization.

Perhaps it need not be said that all such divisions into periods or stages must be somewhat arbitrary. Lines drawn to bring out one point would have to be laid out differently if we had our eye on a different point. Also a certain over-emphasis is involved in any classification. Schematic arrangements involve hard-and-fast lines which do not occur in nature. In fact, all periods or stages overlap and shade into one another. It should be said also that the division into stages which I have suggested is made primarily with reference to Roman law, the modern Roman law, the codified law of Continental Europe and its derivatives. It is not a classification of all social control. It begins as near as may be at the point where there begins to be law in the analytical sense. Also it is made with reference to the law, its methods, scope, materials, and ideals, and not with reference to politics. For the law is made up chiefly of traditional materials, a traditional art, and traditional ideals, transmitted and developed by teaching, which are continually but gradually reshaping to meet conditions of the time and place. The political conditions of the time by no means give them character, although they do exert a gradual influence in remaking them. But this influence is often manifest in its results after these conditions have ceased and a still newer set of conditions have begun to replace them.

I shall not go back to the origins of social control. Such things belong to sociology or anthropology and have relatively a remote bearing on jurisprudence. But as law, in the analytical sense, arises in the transition from a kin-organized society to a politically organized society, or in the transition from religious social control to political social control, and hence its materials in the formative period are the materials of what Vinogradoff calls tribal law4 or the materials of a religious ordering of society, ideas and institutions of tribal society and of society organized on a religious basis become legal ideas and legal institutions. A good part of the earlier history of a legal system is the story of how these ideas and institutions were made over to the exigencies of politically organized society or even gradually eliminated.

By primitive law I do not mean social control in primitive societies but a stage in which law in the analytical sense is undifferentiated or little differentiated from social control generally. Such an undifferentiated or little differentiated social control may exist even though there is an advanced moral order and effective social control. The law may be primitive in comparison with what the world has known as law since the Romans although the society was not. What I mean, then, is the stage in which law in the analytical sense is gradually emerging from an undifferentiated social control by religion, ethical custom and kin discipline. Even after transition from a kin-organized to a politically organized society seems complete from a political standpoint, the differentiation of law may be far from complete.

In the beginnings of a legal order the purpose is simply to keep the peace. Unless internal peace can be attained a society cannot subsist. At first the law attempted nothing more affirmatively than to regulate and provide a substitute for revenge. There were three ways in which injured persons, persons who had been wronged, might obtain redress. One was self-help, that is, by the help of oneself and of his kindred. This is the remedy of kin-organized society. Accordingly reprisals, self-help and the blood feud were the ordinary institutions for the redress of injuries.5 Another mode of obtaining redress was by the help of the gods or of their ministers. This is the remedy of a religious organization of society.6 The weapons of a religious organization of society were sacrificial execution, expiation, and what might be called excommunication. There seems to have been sacrificial execution in the beginnings of Roman law.7 Expiation is taken over by the king or magistrate and becomes legal penal treatment.8 Largely the help of the gods means procuring exclusion of the wrongdoer from the society of the pious unless he makes peace with the gods by repairing the wrong if it is expiable. The oldest monuments of Roman law are leges sacratae, precepts sanctioned by the formula sacer esto—be he devoted to the gods.9 A third mode of obtaining redress is by the help of the state, that is, by the help of the king or of magistrates or officials. This is the remedy of politically organized society. Speaking generally, at first this help is extended to prevent the wrongdoer from interfering with self-redress by the injured party. But with the development of political organization public authorities begin to take a more active part to prevent a general disturbance of the peace of the community and to keep self-redress within bounds.

Thus in its beginnings law (in the lawyer’s sense) has for its end, and for its sole end, to keep the peace. Other tasks of social control are left to other agencies—religion and kin discipline or the public opinion of one’s kinsmen or of his brethren in some primitive brotherhood. The only social interest secured by law is the social interest in the general security in its lowest terms, namely, the interest in peace and public order. Along with religion and morality it is a regulative agency by which men are restrained from violent disturbance of the general security.10 It retains this character of a regulative agency and of a means of which the end is peaceable ordering, although other ends become manifest as it develops. This end is sought to be attained in a primitive legal order in three ways: By regulating self-redress and private war, by satisfying or endeavoring to satisfy the desire of the injured party for vengeance, and by affording some purely mechanical mode of trial which will obviate all disputes as to the facts.

Accordingly there are four general characteristics of the beginnings of law: (1) The measure of what an injured person may recover is not the injury done him but the desire for vengeance awakened by the injury—the idea is not reparation but composition;11 (2) the modes of trial are not rational but mechanical;12 (3) the scope of the law is very limited—there are no principles or general ideas but only rules attaching definite defined consequences to definite detailed acts;13 (4) for many purposes the legal unit is not so much the individual human being as a group of kindred.14

Many of these characteristics of the beginnings of law persist into the period in which there is a fully differentiated legal order. For a long time the development of law largely consists in getting away from them.

In the beginning, then, the idea of the end of law, one might say the ideal to which lawmaking and the applying of legal precepts was directed, was that the legal order exists to keep the peace. In the earlier part of this stage, law is the feeblest of the agencies of social control. The stronger agencies are religion, made effective by priests, and ethical custom, given effect by the internal discipline of the kin group or of societies or fraternities, on the model of the kindred.15 The Romans recognized three bodies of precepts: Fas, that which accorded with the will of the gods, ascertained through religion, enforced in theory through supernatural sanctions and in practice through pontifical penalties; boni mores, that which accorded with the settled customs of men, resting in tradition and sanctioned by social pressure or the discipline of the kin group; and ius, law, ascertained by agencies of the state and sanctioned by the force of the state. Where a wrong was an impiety, an affront to the gods, it endangered the community that harbored the offender.16 Taken over by the legal order, pontifical dealing with such cases could become outlawry.17 The legal order, too, could put its sanctions behind boni mores.18 Thus there is a gradual differentiation culminating in societies in which the legal order is paramount and other forms of social control must operate in subordination thereto.19

In a second state of development the legal order is definitely differentiated from other modes of social control. When this stage has been reached, the legal order, a regime of social control operating according to law, that is, according to authoritative guides to determination, developed and applied by an authoritative technique, has prevailed or has gone a long way to prevailing over organized religion as the regulative agency of society. The state has prevailed over the organized kindred as the organ of social control. Usually, normally men have come to appeal only or ultimately to the state for redress of wrongs. Hence the body of legal precepts determining the cases in which men may appeal to the state for help comes to define indirectly the interests which the legal order recognizes and secures. In this stage the law is characteristically a mass of procedural rules, a system of remedies and of formal procedure to obtain remedies, just as the prior stage is characteristically a tariff of compositions.

Two causes in this stage of legal development operate to produce a system of strict law:20 (1) Fear of arbitrary exercise of the assistance of the state, the rooted repugnance of men to subjection of their will to the arbitrary will of others, and (2) survival of ideas of form and literal application from the earlier period.

In this period the immediate end which the law seeks is certainty in the application of remedies. The cases in which the state will interfere and the way it will interfere are defined in an utterly hard and fast manner. The law is made up of rules and the rules are inflexible. The characteristics of this stage of legal development seem to be five: (1) Formalism—the law refuses to look beyond or behind the form; (2) rigidity and immutability; (3) extreme insistence that every one looks out for himself; (4) refusal to take account of the moral aspects of situations or transactions—to use Ames’s phrase, the strict law is not immoral but unmoral; (5) rights and duties are restricted to a narrow category of legal persons—all human beings or natural persons are not legal persons and legal capacity is restricted arbitrarily.

Comparing the strict law with the prior stage of legal development, the beginnings of law: (1) The end of primitive law is to keep the peace. It considers the situation after injury has been done. The strict law has advanced to the broader idea of security. Hence it considers the situation before injury as well as after injury. (2) The resource employed by primitive law is composition. The strict law has advanced to the more general idea of legal remedies. (3) The contribution of primitive law to the legal order is the idea of a peaceable ordering of the community. The contributions of the strict law are the ideas of certainty and uniformity in this ordering and of rule and form as the means thereto.

A stage of liberalization, which may be called the stage of equity and natural law21 succeeds the strict law. In Roman law this stage is represented by the period from the development of pretorian law to the monarchy (Diocletian and Constantine)—especially the classical period from Augustus to the end of the first quarter of the third century. In English law it is represented by the rise of the Court of Chancery and development of equity and by the rise and absorption of the law merchant—roughly the seventeenth and eighteenth centuries. In the law of Continental Europe it is represented by the period of the law-of-nature school, that is again, the seventeenth and eighteenth centuries. The watchword of the strict law was certainty. The watchword of this stage is morals or some phrase of ethical import, such as good conscience, aequum et bonum, or natural law. The strict law insists on uniformity. Equity and natural law insist on good morals. The strict law insists on form, equity and natural law on justice in the ethical sense; the strict law insists on remedies, equity and natural law on duties; the strict law insists on rule, equity and natural law on reason. The capital ideas of this stage are: (1) The identification of law with morals, (2) the conception of duty and attempt to make moral duties into legal duties, and (3) reliance upon reason rather than upon arbitrary rule to keep down caprice and eliminate or minimize the personal element in the administration of justice.

Four enduring ideas of the first magnitude come into the law in this period. The first is that legal personality should extend to all human beings; that the moral unit should be the legal unit, not a kin group, as in the beginnings of law, and not an arbitrarily defined legal person as in the strict law. In this period equity and natural law insist not only on the widest extension of rights but upon a like extension of capacity for legal transactions. Hence there is insistence on throwing over all incapacities for which a “natural” reason, as distinguished from a historical explanation, cannot be given, and on making capacity for legal transactions coincident with normal will.22 A third idea is good faith, the idea that justice demands one should not disappoint well-founded expectations which he has created; the idea that it is not so important that rules should be certain as that men’s conduct should be certain.23 A fourth idea of this stage is that one person should not be enriched unjustly at the expense of another; that it is dishonest to take and hold something for nothing unless by way of intended gift. This has a wide application today in the law of restitution, or quasi contract, as we used to call it, and equitable doctrines as to constructive trusts, preventing merger, subrogation, conditions implied in law, required assurance of counter performance, and equivalent doctrines, derived from Roman law, in the law of Continental Europe.

On the other hand, the attempt to make law coincide with morals leads to two difficulties: (1) It leads to an attempt to enforce over-high ethical standards and to make legal duties out of moral duties which are not sufficiently tangible to be made effective by the machinery of the legal order. (2) A more serious difficulty is that the attempt to identify law and morals gives too wide a scope to judicial discretion since whereas legal rules are of general and absolute application, moral precepts must be applied with reference to circumstances and individuals. Hence at first in this stage the administration of justice is too personal.24 This over-wide magisterial discretion is corrected in two ways. One is by a gradual fixing of rules and consequent stiffening of the legal system. Some moral principles in their acquired character of legal principles, are carried out to logical consequences beyond what is practicable or expedient so that a selecting and restricting process becomes necessary, and at length principles are lost in a mass of rules derived from them. Some examples are the old doctrine of equity as to precatory trusts which gave rise to a set of arbitrary distinctions25 and finally disappeared,26 and the doctrine of laesio enormis27 which, as Story says, began by “laying down the broadest rule of equity and morals,” then came to be applied as a legal rule, and then was turned by legislators, who were “struck with the unlimited nature of the proposition” into a hard and fast mathematical formula.28 The other correcting agency is development of moral propositions as mere abstractions and thus depriving them of their purely moral character. In Anglo-American law, equity is full of examples of this mechanical treatment of what were once moral principles. It will be enough to cite the rules as to clogging the equity of redemption, which go back to a moral principle that forbids the taking of “unconscientious advantage of a debtor’s necessities.”29

In other words, there comes in time to be a stiffening of the legal system and we get a fourth stage, represented both in Anglo-American law and in the law of Continental Europe by the nineteenth century, which I have called the maturity of law.

Comparing the stage of equity and natural law with the preceding stages, the controlling idea is, in the beginnings of law public peace, in the strict law security, in the stage of equity and natural law ethical conduct and conformity to good morals; the means employed are, in the beginnings of law, composition, in the strict law, legal remedy, in the stage of equity and natural law, enforcement of duties; and the permanent contributions are, by the beginnings of law, peaceable ordering of society, by the strict law, certainty and uniformity, reached by rule and form, and by equity and natural law, good faith and moral conduct attained by reason.

For the next stage I take from Austin the name “maturity of law.”30 As a result of the stiffening process by which the undue fluidity of law and over-wide scope for discretion involved in the identification of law and morals are gradually corrected, there comes to be a body of law with the stable and certain qualities of the strict law, yet liberalized by the ideas and conceptions developed by equity and natural law.31

In this stage of matured legal systems the watchwords are equality and security. The idea of equality is derived partly from the insistence of equity and natural law upon treating all human beings as legal persons and upon recognizing full legal capacity in all persons possessed of normal will. Partly also it is derived from the insistence of the strict law that the same remedy shall always be applied to the same state of facts. Accordingly as used here equality includes two things: (1) Equality of operation of legal precepts, and (2) equality of opportunity to exercise one’s faculties and to employ one’s substance.32 The idea of security is derived from the strict law, but is modified by the ideas of the stage of equity and natural law, especially by the idea of insisting on will rather than on form as the cause of legal results, and by the idea of preventing enrichment of one at the expense of another through forms and without will. In consequence, security, as used in the last century included two things: (1) The idea that every one is to be secured in his interests against aggression on culpable injury by others, and (2) that others are to be permitted to acquire from him only through his will that they do so, or through his breach of rules devised to secure others in like interests.33

In order to insure equality the maturity of law insists strongly upon certainty and in consequence this stage is comparable in many respects to the stage of the strict law. It is greatly in advance of the stage of the strict law, however, because it insists not merely on equality of application of legal remedies but on equality of legal rights, that is, equality of capacities to influence others through the power of politically organized society, and conceives of equality of application of legal remedies as only a means thereto.

To insure security, the maturity of law insists upon property and contract as fundamental ideas. That is, it thinks of all interests in terms of a social interest in security of acquisitions and security of transactions. This is brought out in American state bills of rights which protect the individual in life, liberty, and property. Liberty was taken in the last century to mean that the individual shall not be held legally except for a fault or except as and to the extent that he has willed a relation to which the law in advance attached a liability, whereby another might exact something from him.

Along with liberty the maturity of law puts property, that is, the security of acquisitions. But one of these acquisitions may be a power to exact from a promisor. Accordingly contract acquires a property aspect. The law is regarded as existing to secure, to the furthest possible extent, the right to contract freely and the right to exact a performance freely promised.34 Indeed in this stage even personality acquires a property aspect.35

Although it may be too soon to speak with assurance, the permanent contribution of the stage of maturity of law appears to be the thorough working out of the idea of individual rights. The important institutions of this stage are property and contract.

Finally, we must look at the stage into which the law has moved in the present century, the socialization of law.36

Toward the end of the nineteenth century a tendency became manifest throughout the world to depart radically from fundamental ideas which had governed the maturity of legal systems. In 1891, Jhering37 formulated it thus: “Formerly high valuing of property, lower valuing of the person. Now lower valuing of property, higher valuing of the person.”38 He went on to say that the line of legal growth was, “weakening of the sense of property, strengthening of the feeling of dignity (Ehre).”39 This states the matter well if by Ehre we understand the idea of the moral and so legal worth of the concrete human individual.

In the maturity of law the legal system seeks to secure individuals in the advantages given them by nature or by their station in the world and to enable them to use these advantages as freely as is compatible with the free exercise of their faculties and use of their advantages by others. As has been said, to accomplish those ends it reverts in some measure to ideas of the strict law. In consequence a certain opposition between law and morals develops once more, and just as the neglect of the moral aspects of conduct in the stage of the strict law required the legal revolution through infusion of lay moral ideas into law which we call the stage of equity and natural law, so the neglect of the moral worth of the concrete individual and of his claim to a complete moral and social life, involved in the insistence upon property and contract in the abstract, which mark the maturity of law, have been requiring a like revolution through absorption into the law of ideas developed in the social sciences.

Let us leave the theory of this stage of legal development for another place and look instead at what has actually been going on in legal systems. Taking them up in chronological order of their appearance in American law, and a like list could be made for English law and for the law of Continental Europe, twelve points appear especially noteworthy: (1) Limitations on the use of property by the owner and on what is called antisocial exercise of his liberties; (2) limitations on freedom of contract; (3) limitations on the owner’s jus disponendi; (4) limitations on the power of a creditor or injured party to exact satisfaction; (5) impositions of liability without fault, particularly in the forms of liability for getting out of hand of things maintained on the owner’s property or work carried on or persons employed; (6) restrictions on use of res communes and appropriation of res nullius; (7) insistence upon the interest of society with respect to dependent members of the household; (8) a growing tendency to hold that public funds should respond for injuries to individuals through the operations of public agencies; (9) a tendency to read reasonableness into the obligation of contracts or even to remake contracts in the interest of the frustrated; (10) a tendency to replace the purely contentious theory of litigation by one of adjustment of interests; (11) increasing recognition of groups and associations as having interests to be secured, instead of exclusive recognition of certain historical associations and their analogues; (12) a tendency to relax the rules as to trespassers. More than one lecture could be devoted to more than one of these items. They show a profound change in law beneath the surface. Interpretation of them belongs to a subsequent lecture. Our concern with them here is as to their bearing on the ideal of the end or purpose of law and relation to the ideal element in the law of today.

Having attempted to mark the course which the development of law has actually taken in different periods of legal history with respect to the end for which the legal order and law in the second sense exist, we turn next to the course which juristic thinking has taken during these same periods as to the direction in which law ought to develop and what ought to be regarded as the end of law and furnish an ideal for lawmaking, interpretation and application. In other words, from legal history, the end of law as developed in legal precepts and doctrines we turn to philosophy of law, the end of law as developed in juristic thinking.40

Until law had been differentiated as such there could be no strictly juristic thinking. But as the legal order developed as a specialized form of social control, philosophical thinking as to the nature and end of social control could furnish a beginning for juristic thinking about the nature and end of law. The Greeks did not achieve a stage of strict law. But they began to think about social control, and their ideas as to its nature and purpose are the starting point of philosophy of law in the West. So we must begin with the Greeks.41

It has been seen that the primitive answer to the question of the end of social control and so of law was simply that law was a device to keep the peace. The force of politically organized society was exerted to keep the peace. Whatever served to avert private vengeance and prevent private war was an instrument of justice. The ideal relation among men was a state of peace. Greek philosophy soon got beyond this conception and put in its place an idea of the ordering of society as a device to preserve the social status quo, to keep each man in his appointed groove and thus prevent friction with his fellows. The virtue on which Greek philosophers insist is sophrosyne, knowing the limits which nature (i.e.,the ideal) fixes for human conduct and keeping within them. The vice against which they declaim is hybris, willful bound-breaking, willful transgression of the socially appointed bounds. Justice, accordingly, was regarded as maintenance of the social status quo, and philosophers were busied in planning an ideal society in which every one was put in the right place, to be kept there thenceforth by the law.42

The Pythagoreans spoke of anarchy as the greatest evil since it left the social order without security. They compared justice to medicine, holding that the legislative and judicial functions, whereby the life of the state is kept in a normal course, were the analogues of hygiene and medicine, whereby the normal course of bodily life is secured or restored.43 We are told that Heraclitus held that self-will was to be suppressed and said that the citizen should fight more strenuously for the law which achieved this than for the walls of the city.44 Plato, too, considered lawlessness the greatest of evils,45 and compared the function of justice under the laws as the life of the state to that of hygiene and medicine in the individual bodily life.46

Plato brings out the idea fully. Speaking of the ideal state he says: “Shall we not find that in such a city. . . a shoemaker is only a shoemaker and not a pilot along with shoemaking; and that the husbandman is only a husbandman, and not a judge along with husbandry; and that a soldier is a soldier and not a moneymaker besides; and all others in the same way.”47 Again he says: “But when the cobbler, or any other man whom nature designed to be a trader. . . attempts to force his way into the class of warriors, or a warrior into that of legislators or guardians, for which he is unfitted; or when one man is trader, legislator and guardian all in one, then I think you will agree with me that. . . this meddling of the one with the other is the ruin of the state. . . . As there are three distinct classes, any meddling of them with one another or the change of one into the other, is the greatest harm to the state and may most justly be termed evil doing.”48

In Plato’s ideal state the individual is not to find his own level for himself by free competition with his fellows. Every one is to be assigned to the class for which he is determined to be best fitted. Then there will be a perfect harmony and unity both in the state and in every individual.49 As Grote puts it, in the Republic and the Laws, “king nomos” (a broader word than law, including all social control) is “to fix by unchangeable authority what shall be the orthodox type of character and suppress all the varieties of emotion and intellect except such as will run into a few predetermined molds.”50 Hence a universal genius, who could not be kept to his assigned place was not to be tolerated.51

The Stoic doctrine of conformity to nature or conformity to universal reason came to much the same practical result.52

Aristotle believed that the individual man, apart from the state, became the “most malignant and dangerous of beasts” so that he could “realize his moral destiny only in the state.”53 Accordingly, interests to be protected could exist only between those who were free and equal before the state.54 Justice demanded an unanimity in which there would be no violation of mutual claims or spheres of authority, i.e., in which each would keep within his appointed sphere;55 and right and law took account primarily of relations of inequality, in which individuals are treated in proportion to their work, and only secondarily of relations of equality.56 The exhortations of St. Paul in which he calls upon every one to do his duty in the class in which he finds himself placed bring out this same idea.57

The Greek way of thinking followed the substitution of the city-state political organization of society for the kin organization. The organized kindred were still powerful. An aristocracy of the kin-organized and kin-conscious, on the one hand, and a demos 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 political mastery. Moreover, the politically ambitious individual and the masterful aristocrat were constantly 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.

Roman lawyers undertook to determine the authorities, liberties, and capacities involved in legal personality and position before the law.58 In doing this they were guided by the Greek ideal of the legal order as a preserving of the social status quo. As Courcelle-Seneuil puts it, the Roman ideal was a stationary society, corrected from time to time by a reversion to the ancient type.59 Cicero finds the basis of social control not in enactment but in the moral spirit which is intrinsic in nature, i.e., in the ideal of things.60 But we must not confound this lex naturae or lex naturalis with the natural law of the law-of-nature school in modern times. Its basis is in the conception that everything has a natural (i.e., ideal) principle to be deduced from its characteristics and ends. By this is meant adaptation to human ends. Thus it is not the nature of a horse to run wild but to be owned by a man. From this naturalis ratio a natural law could be reached. This natural law involves an appeal to substance from form; an appeal to rational principles against traditional forms and arbitrary rules.61 The natural law of the seventeenth century, appealing to the reason of the individual against authority, and the natural law of the eighteenth century, appealing to the reason of the individual against society and the state, are very different things. A cardinal principle of Cicero’s theory of justice is respect for rights acquired under the social order.62

This idea appears also in the formula handed down in the Institutes of Justinian: “Justice is the set and constant purpose which gives to every one his own.”63 In other words, the social system has defined certain things as belonging to each individual. Justice consists in rendering him those things and in not interfering with his having and using them within the defined limits. Another formula in the Institutes of Justinian expresses the same idea. “The precepts of right and law are these: to live honorably, not to injure another, to give to every one his own.”64 This formula would reduce the whole end of law to three functions: (1) Maintenance of decency and decorum in men’s outward acts, (2) securing of individual interests of personality, (3) securing of individual interests of substance. Savigny’s much criticized interpretation of this formula seems quite warranted and brings out its point for our purposes. The first precept, to live honorably, that is, to preserve moral worth in one’s own person so far as external acts go, is represented in the legal systems by the doctrines as to good faith in transactions, by the rules as to illegality of corrupt bargains, and by the various doctrines which recognize boni mores and attach consequences to violations thereof. The second precept, not to injure another, the respecting of another’s personality as such, is represented by those rules and doctrines which give practical effect to the individual interest of personality. The third precept, to render to every one his own, that is, to respect the acquired rights of other men, is represented by the rules and doctrines which secure individual interests of substance.65

But the insistence on good faith in the first precept maintains the security of transactions and also secures interests of substance, since in an advanced economic order credit is fundamental and a large part of wealth consists in promised advantages. Taken as a whole, the formula in the Institutes of Justinian is a juristic development of the Greek idea of the end of the legal order, namely, the idea that its end is to maintain harmoniously the social status quo. It is a further development of the idea of the beginnings of law, the idea of a device to keep the peace. Peace is so fundamental in civilized society resting on division of labor that we must recognize that this original idea cannot be lost sight of. Nor can we ignore the Greek development of it. Both contain a good part of the truth. But we have not so much added to them as found new and broader ideas which include them and much more besides. It may be significant that with the rise of the welfare or service state in the present century, the multiplication of bureaus, and increasing pressure of administration upon the individual, the idea of the importance of political and social institutions in comparison with the individual life has been leading to formulas defining the legal order as a peaceable ordering and so coming back in some measure to the Greek idea.66

On the breakdown of the Roman empire in the West, Germanic law brought back for a time the primitive conception of merely keeping the peace, with its concomitant ideas of buying off vengeance, of a tariff of compositions and of regulating private war. There is little of consequence for the present purpose until after the revival of the study of Roman law in Italy in the twelfth century. Moreover, when legal development begins the ruling idea is authority. Not only did the medieval universities, from which the law of Continental Europe has come, take the Corpus Iuris Civilis, the body of Roman law as given legislative form by Justinian, to be authoritatively binding, so that it could only be interpreted and not added to, but in philosophy, as was pointed out in the second lecture authority was taken as a ground of reason.67 Thus reason could be established from church doctrine or from the received authority of Aristotle who to the Middle Ages was the philosopher. Hence the idea of justice developed in Greek philosophy and Roman law was received as a matter of course.68 In the Middle Ages, as in antiquity, we see the idea of social control as an agency of keeping the peace succeeded by the idea of an agency of maintaining the social status quo. To Thomas Aquinas, as to Cicero, to the classical Roman jurists, and to Justinian, the principle of justice is to give every one his own.69 What is one’s own is determined by the social order.70

There was good reason, apart from authority, why the Middle Ages received the Roman version of the Greek ideal of maintaining the social status quo. The medieval situation was very much like that to which the Greek philosophers addressed their theory. In the Greek city-state there was a perennial conflict between oligarchy and democracy. The state was looked to to save the community from anarchy and permit the effective division of labor upon which a civilized society must rest. Philosophy addressed itself to this problem, and Roman law in the era of the civil wars found a usable theory at hand. In the same way when a new development of law began in the later Middle Ages the law once more came in contact with philosophy when both began to be studied in the universities. Following an era of anarchy and disunion and violence men wished for order and organization and peace. Medieval society often swung back and forth between arbitrary despotism, confusion or anarchy because of the absence or retarded development of effective instruments of government. As it has been put: “The history of medieval society constantly impresses upon us the conviction that the real difference between a barbarous and a civilized political system lies in the fact that the latter has an almost automatically working administrative and judicial system while the former is dependent upon the chance of the presence of some exceptionally competent and clear-sighted individual ruler.”71 There was need of a philosophy which would bolster up authority and rationalize men’s desire to impose a legal yoke upon society. Again just as in Greece social control was in transition to a differentiated law, in the Middle Ages the time was one of transition from the primitive law of the Germanic peoples to a strict law through reception of the Roman law from the universities as authoritative legislation of a Christian emperor. A strict law grew up through this receiving of the Roman law as codified by Justinian or through compilation of Germanic customary law more or less after the Roman model, as in the north of France, or through declaration of the customary law through reported decisions of strong central courts, as in England.

Scholastic philosophy was exceptionally adapted to the needs of such a time. Its method was one of dialectic development of authoritative, unchallengeable premises. It relied upon formal logic. It sought through logical deduction from premises having the authority of reason to put reason as a foundation under legal and political authority. It met the needs of the time so fully that it enabled teachers in the universities to put the Roman law of Justinian in a form to be received and administered in the Europe of nine centuries after him. They made the gloss (standard teachers’ interpretation) into law in place of Justinian’s text and made over much of it, as it had to be made over if it was to fit a wholly different social order. But the method of formal logical development of absolute and unquestioned premises made it appear that nothing had been done but work out the logical implications of an authoritative text. It was easy to receive the law expounded by Bartolus when it was believed to be the logical unfolding of the binding legislation of Justinian.

Fortescue (about 1468) applied the scholastic method to the rules of English common law in its stage of strict law. He assumed that these rules were the principles (starting points for reasoning) of which he read in the commentators on Aristotle and that they were comparable to the axioms in geometry. The time had not yet come to call rules or principles or axioms in question. The need was to rationalize and satisfy men’s desire to be governed by fixed rules and to reconcile, at least in appearance, the change and growth which are inevitable in all law with the need men felt of having fixed, unchangeable, authoritative rules.

In a time when want of efficient government was felt acutely a conception of law as existing to maintain the social status quo, the social order as it was or at least as men were trying to make it, could serve as the ideal.

In another respect also maintaining the social status quo was eminently adapted to medieval society. Medieval society was relationally organized, organized about the relation of lord and man with reciprocal duties of protection and service. Establishment of strong central administrative and judicial systems was still in the future. The national idea, establishment of the nation as sovereign state and paramountcy of the law of that state over all other agencies of social control, belongs to the sixteenth century. Security was found in the feudal relation until later it could be found in the political relation of sovereign and subject or citizen and state. The feudal system was formative at the time of the dissolution of the Carolingian empire and the confusion due to invasion of the Northmen and the Magyars. Hence it took its final form in a time without well-organized general governments such as to afford adequate security to the individual. As Carlyle says: “In the absence of strong central or national authorities, men had to turn for protection to the nearest power which seemed to be capable of rendering this.”72 Maintaining the social structure was the guarantee of the general security.

But in politics at the end of the Middle Ages, Europe was in transition to an era of strong centralized national governments. Also scholastic philosophy was giving way and was soon superseded by the rationalism which held the ground till the end of the eighteenth century. Medieval thought had begun with an entire subordination of philosophy to theology. It had moved to a harmony of the two which reaches its full development in Thomas Aquinas. With him the effort of scholasticism to be both philosophy and theology seemed to have been achieved. But as in the earlier period more and more was withdrawn from the domain of reason and assigned to that of faith, after the harmony achieved by Thomas Aquinas, in which reason and faith were made to establish the same results by different methods, negative criticism set in and it seemed that scholasticism had failed to rationalize the doctrines of the church. In truth Aristotle’s method did not fit a subject for which it was not devised. Christianity was not to be forced into an alien form. When later jurisprudence was set free from theology and law from Justinian, ideas of the end of law could be adjusted to new social, economic, and political conditions.

Except for the theological-philosophical version of natural law, the Middle Ages added nothing of moment to juristic theory. The view of antiquity as to the end of the legal order was accepted. But the way was being prepared through philosophy for a new conception of justice which developed in the sixteenth and seventeenth centuries.

Transition marks the era of the Reformation. The great jurists of the Humanist school, which superseded the Commentators and their scholastic construction of a strict law, were Protestants.73

For the jurist the significance of the Reformation is to be found in the change from the Roman idea of a universal empire and hence a universal law to the Germanic idea of a territorial state with a national law. In law the Reformation marks a breaking over of Germanic individualism long kept back by Roman authority.74 Hence, so far as jurisprudence is concerned, the Reformation is a period of clearing away in which the ground is prepared for the constructive period of the seventeenth century through the separation of philosophy, jurisprudence, and politics from theology and the establishment of a science of politics. The main purpose of the Protestant jurist-theologians75 was to throw over the authority of the church and set up the authority of the state. Accordingly, the most significant feature of their work for the jurist is their insistence on a national rather than a universal law; their insistence on replacing the universal empire of Roman law and canon law by the civil law of each state. We must bear in mind what Beseler calls Germanic klein-staatismus.76 This led to an ideal of local law; not even national, much less universal. The legal order was to rest on the authority of the divinely ordained state not on an authoritative universal law. Winckler tells us that lex and ius are cause and effect, constituens and constitutum, maker and made.77 This flowed naturally from the break with authority which substituted private interpretation by the individual, each for himself, for authoritative universal interpretation of the Scriptures by the church. The exigencies of this demand for private interpretation led to a claim of independence for the state, for the family, and for the natural man. The logical result in jurisprudence was the opposition of the abstract man to society which developed in the juristic thinking of the eighteenth century. When the starting point of the science of law shifted from society to the individual man, from the general security to the individual life, jurists began to give up the ideal of the social status quo. Political organization of society had become effective and paramount. Both the relational-feudal organization and the religious-political organization of the Middle Ages were passing. A new ideal, an ideal of liberty, was growing up.

But the reformers themselves did not perceive the atomistic implications, with respect to jurisprudence and politics, of a world of self-sufficient individuals. Indeed, the need of opposing the state to the church, because the popes had claimed to absolve Christians from allegiance to rulers who were at difference with the church, led the reformers to a political doctrine of passive obedience. Luther and Melanchthon were very severe in their attitude toward rebellious peasants who sought by force to escape from the serfdom imposed on them by the laws of the time.78 Moreover, the period was one of transition from the strict law to the stage of equity and natural law, which identified law and morals. The strong ethical element in the jurists of the Reformation, and the emphasis which the reformers put on abstaining from sinful conduct rather than on repentance therefor, cooperated with this identification of law and morals to postpone the conclusion that the individual conscience was the sole measure of obligation to obey the law. Even if the Christian needed only the spirit for a guide, the rest of the world needed the secular sword of justice, and obedience to Caesar was expressly enjoined in Scripture. Such, at any rate, is the argument in Luther’s tract on secular authority.79

In its implications the doctrine of the reformers led to the juristic theory of the eighteenth century. But there was much that had first to be cleared away. This clearing process begins with Melanchthon, who argues that the whole of natural law may be deduced from the Ten Commandments and right reasoning as to the nature of man.80 This is the twofold basis of natural law referred to ante in the second lecture. It has an interesting subsequent history. Grotius, after adopting the divorce of jurisprudence from theology, reverts to the theological and puts natural law on two bases: (1) eternal reason, (2) the will of God who wills only reason.81 Blackstone takes from Grotius this twofold basis but joins to it the Aristotelian distinction between things which are right or wrong by nature, where the positive law is only declaratory, and things which are indifferent by nature, where the positive law finds its proper field.82 Thus a great part of the law has lost its theological prop. With James Wilson, Grotius’ doctrine is rested on a proposition that God “is under a glorious necessity of not contradicting himself” and so, in effect, of conforming to the exigencies of human reason.83 Croce’s comment on Vico’s critique of Grotius is apt: “Vico did not know what to make of a God set side by side with other sources of morality, or set above them as a superfluous source for the sources.”84

The process of clearing away goes forward with Oldendorp in whom we find the beginning of the attempts at systematic philosophical statement of the bases of law which came to be called systems of natural law.85 It makes a significant, perhaps decisive, stride when Hemmingsen attempts complete emancipation of jurisprudence from theology, telling us that divine revelation is not necessary to a knowledge of natural law,86 and asserting that the firm and necessary ground of a legal system is to be found in nature (i.e., rational ideal) and end of the law,87 and asserting that the ideas of right and wrong may be worked out by reason from the nature (i.e., ideal) of men “without the prophetic and apostolic writings.”88 It gains ground when Winckler seeks to carry out the juristic program outlined by Hemmingsen.89 On another side it is definitely achieved when Althusius, taking up the idea of a contract between the ruler and the ruled, which had been a controversial weapon in the controversies of temporal sovereigns with the church during the Middle Ages, uses it as the basis of political theory and founds the ethical-political natural law which is to govern political thought for the next two centuries.90

No direct change in the idea of the end of the legal order took place in the time of the Protestant jurist-theologians. Luther thought of external peace and order as the purpose for which law exists.91 Melanchthon found the basis of securing acquired rights in the commandment “Thou shalt not steal,” and defined liberty as the condition “in which each is permitted to keep his own and citizens are not compelled to do anything contrary to principles of right and to what is honorable.”92 It will be noted that this is not at all the nineteenth-century idea of liberty. To Melanchthon justice, the end of law, required respect for acquisitions and respect for personality.

[1. ]Pound, Justice According to Law (1951) pt. 2; Del Vecchio, Justice (1952) (transl. by Lady Guthrie, ed. by Campbell); Radbruch, Rechtsphilosophie (3 ed. 1932) §§ 7–9; Binder, Philosophie des Rechts (1 ed. 1925) § 12; Kant, Philosophy of Law (1887, transl. by Hastie) 45–46; Spencer, Justice (1891) chaps. 5, 6; Dewey and Tufts, Ethics (1938) rev. ed. chaps. 20–24.

[2. ]E.g., Pollock, First Book of Jurisprudence (1 ed. 1896) 17.

[3. ]This is especially apparent in theories of natural law, as brought out in the second lecture. See also my paper, Natural Natural Law and Positive Natural Law (1952) 68 Law Quarterly Review, 330.

[4. ]1 Vinogradoff, Historical Jurisprudence (1920) 158.

[5. ]Dareste, Le droit des représailles, Nouvelles études d’histoire du droit (1902) 38; Von Maurer, Altnordische Rechtsgeschichte (1907) pt. I; 1 Brunner, Deutsche Rechtsgeschichte (2 ed. 1905) § 22; 1 Post, Grundriss der ethnologischen Jurisprudenz (1884) §§ 58, 62; Fehr, Hammurapi und das salisches Recht (1910) chap. 5.

[6. ]Maine, Early History of Institutions (1875) lect. 2. See also the penances in Maine, Early Law and Custom (new ed. 1891) 36–40; Manu (transl. by Müller, 1889) 25 Sacred Books of the East, 430–83. Compare the penitential system of the canon law—the Canones penitentiales, which customarily stand in editions of the Corpus Iuris Canon-ici next after the Decretum of Gratian.

[7. ]Strachan-Davidson, Problems of the Roman Criminal Law (1912) 1–3.

[8. ]Maine, Early Law and Custom (new ed. 1891) 36–40.

[9. ]Laws of Romulus, 13, 1 Bruns, Fontes Iuris Romani Antiqui (7 ed. 1909) 7; Laws of Servius Tullius, 6, id. 14; Twelve Tables, VIII, 21, 33, 2 Bruns, Fontes, 34, 35; Festus s.vv. sacer homo and sacratae leges.

[10. ]“Religion, law, and morality cover the area of human action with rules and sanctions.” Stubbs, Lectures on the Study of Medieval and Modern History (1906) 336.

[11. ]Gaius, iii, §§ 183–92, 220–24, iv, §§ 75–78; Twelve Tables, VIII, 6, 1, 1 Bruns, Fontes Iuris Romani Antiqui (7 ed. 1909) 30; Salic Laws, xiv, §§ 1–3; Laws of Ethelbert, 59, 60; Wade-Evans, Welsh Medieval Law (1909) 190–91.

[12. ]Thayer, Preliminary Treatise on Evidence (1898) chap. 1; Glanvill, ii, chaps. 1, 3, 5, 12 (between 1185 and 1187).

[13. ]Hippodamus of Miletus (fifth century bc) held that there were but three kinds of laws, “as the possible subjects of judicial procedure were but three, namely, assault, trespass, and homicide.” Aristotle, Politics, ii, 8.

[14. ]Thus the Athenian law of reprisals allowed not more than three of the nearest kinsmen of a murderer to be seized by the nearest relatives of the murdered person and held till justice was done or the murderer was surrendered. Demosthenes, Oration Against Aristocrates, § 96; in the Germanic law the feud was the right of the person injured and the duty of the kinsmen of the wrongdoer, 1 Brunner, Deutsche Rechtsgeschichte (2 ed. 1906) § 25; 1 Pollock and Maitland, History of English Law (2 ed. 1898) 24; Salic Law, tit. 57. “If breach of the peace is committed in a fortified town, let the inhabitants of the town themselves go and get the murderers, living or dead; or their nearest kinsmen, head for head,” Laws of Ethelred, ii, 6—see also id. ix, 53, Laws of Alfred, § 27, Laws of Edmund, 2, 4; also the older Roman law of inheritance spoke of familia, sui heredes, adgnati, and gentiles. Twelve Tables, V, 5, 6, 7a, 1 Bruns, Fontes (7 ed. 1909) 23.

[15. ]See Webster, Primitive Secret Societies (2 ed. 1932); Schurtz, Altersklassen und Männerbünde (1902).

[16. ]See, e.g., the plague sent upon the whole host for the wrong done by Agamemnon to the priest of Apollo, and so an affront to the god, Iliad, book II. “A new departure is full of danger, not only to the man who takes it, but to those with whom he lives, for the gods are apt to be indiscriminate in their anger.” Jenks, Law and Politics in the Middle Ages (1898) 57.

[17. ]Strachan-Davidson, Problems of the Roman Criminal Law (1912) chap. 1.

[18. ]I Jhering, Geist des römischen Rechts (7 and 8 ed. 1924) §§ 18, 18a; Greenidge, Infamia: Its Place in Roman Public and Private Law (1844), chaps. 3, 4.

[19. ]Compare a regime of discipline by household, gens, collegium, guild, with one of juvenile courts, domestic relations courts, judicial review of ouster from voluntary associations, laws as to professional discipline, and commissions regulating traders and professions.

[20. ]II Jhering, Geist des römischen Rechts (6 and 7 ed. 1923) §§ 44–47d. I take the name from the ius strictum, the Roman law of this stage of development and the element in the later law representing it.

[21. ]The name is taken from Maine, Ancient Law (1861) chap. 3. Some have criticized this name as implying that I suppose equity and natural law are identical. But there is a common spirit, which is significant, although of course otherwise they are distinct.

[22. ]Institutes of Justinian, I, 3, § 2, 8, §§ 1, 2, ii, 2, § 2; Gaius, i, §§ 144–45, 158; Digest, i, 5, 4, § 1, i, 5, 17, xxxviii, 10, 4, § 2, 1, 17, 32; Grotius, ii, 5, 1–7. See especially the way equity in Roman law treated the perpetual tutelage of women and English equity provided for the separate estate of married women. The classical account is in Maine, Early History of Institutions (1 ed. 1875) 11.

[23. ]Maitland, Lectures on Equity (2 ed. 1936) 80–83; Grotius, iii, chap. 11, §§ 3–4; Burlamaqui, Principes du droit naturel (1791) pt. 1, chap. 7; Pothier, Obligations (1806) pt. 1, chap. 1, § 1; Strykius, Opera (1785) xxii, 4, 24. The latter says: “Ideo Deus ligetur pacto et diabolus, et princeps.”

[24. ]See, e.g., the well-known saying of Selden in the seventeenth century: “Equity in law is the same that the spirit is in religion, what every one pleases to make it. Sometimes they go according to conscience sometime according to law sometime according to the rule of the court. Equity is a roguish thing; for law we have a measure, know what to trust to. Equity is according to the conscience of him that is chancellor, and as that is larger or narrower so is equity. ’Tis all one as if they should make the standard for the measure we call a foot to be the chancellor’s foot; what an uncertain measure this would be; one chancellor has a long foot another a short foot a third an indifferent foot; ’tis the same thing in the chancellor’s conscience.” Table Talk, tit. Equity (1689), Selden Society ed. 1927, p. 43.

[25. ]1 Perry, Trusts (7 ed. 1929) §§ 112–19.

[26. ]Lambe v. Eames, 6 Ch. App. 597 (1871).

[27. ]Code of Justinian, iv, 44, 2 and 9.

[28. ]1 W. W. Story, Equity Jurisprudence (2 ed. 1839) § 247.

[29.]“The rules of equity may be evaded but must not be infringed.” Lord Bramwell in Marquess of Northampton v. Salt (1892) A.C. 1. Here the court was conscious of applying what had become a technical rule which it had no intention of carrying a whit beyond its letter. It looked at the form, not the intention of the parties.

[30. ]2 Austin, Jurisprudence (3 ed. 1863) 1107–8.

[31. ]On this stage see Progress of Continental Law in the Nineteenth Century, 11 Continental Legal History Series (1918) chaps. 1, 2; First Report of the Real Property Commissioners (1924) 6–7; Hanbury, The Field of Modern Equity, 45 Law Quarterly Review, 196, 207–13 (1929).

[32. ]Digest of Justinian, i, 1, 4; Bentham, Theory of Legislation, Principles of the Civil Code (transl. by Hildreth, 5 ed. 1885) pt. 1, chap. 2.

[33. ]On the idea of security in the maturity of law see Bentham, Theory of Legislation, Principles of the Civil Code (Hildreth’s transl. 5 ed. 1885) pt. 1, chaps. 2, 7; Lorimer, Institutes of Law (2 ed. 1880) 367–74; Demogue, Les notions fondamentales du droit privé (1911) 63–110; Schulz, Principles of Roman Law (1936) chap. 12.

[34. ]So in Frorer v. People, 141 Ill. 171, 181 (1892).

[35. ]“For purposes of the civil law of defamation, reputation is regarded as a species of property.” Bower, Code of Actionable Defamation (1908) 275.

[36. ]As to the name given it, I got the hint from Stein, Soziale Frage im Lichte der Philosophie (2 ed. 1903) 457 (1 ed. 1897). The term was used by Charmont in 1903, La socialisation du droit, chap. 2. I used it in the present sense in an address in 1912, Social Justice and Legal Justice, 1912 Proc. Mo. Bar Assn. 110, and in an article in 1914, The End of Law as Developed in Legal Rules and Doctrines, 27 Harvard Law Review, 195, 225. Vinogradoff adopted it for this stage of legal development in 1920, 1 Historical Jurisprudence, 158.

[37. ]In the additions to the fourth edition of his Scherz und Ernst in der Jurisprudenz. See the preface to the fourth edition in that or any subsequent edition.

[38. ]Scherz und Ernst in der Jurisprudenz (4 ed. 1891) 418.

[39. ]Ibid., 424. Compare the steady growth in recent years of equitable protection of personality. Pound, Equitable Relief Against Defamation and Injuries to Personality (1916) 29 Harvard Law Review, 640. It had long been said that equitable relief was only granted to protect rights of property.

[40. ]Pound, The End of Law as Developed in Juristic Thought (1914) 27 Harvard Law Review, 605, 30 Harvard Law Review, 201; id. Twentieth-Century Ideas as to the End of Law,Harvard Legal Essays (1934) 357–75; Yntema, The Rational Basis of Legal Science (1931) 31 Columbia Law Review, 925, 934–55; Cairns, Legal Philosophy from Plato to Hegel (1949) 6.

[41. ]2 Berolzheimer, System der Rechts- und Wirtschaftsphilosophie (1905) §§ 13–20; Hildebrand, Geschichte und System der Rechts- und Staatsphilosophie (1860) §§ 1–121; Myers, Political Ideas of the Greeks (1927) lect. 4; McIlwain, The Growth of Political Thought in the West (1932) chaps. 1–3; Sauter, Die philosophischen Grundlagen des Naturrechts (1932) chaps. 1–2. Aristotle, Nicomachean Ethics, book 5, Politics, book 7; Plato, Gorgias, 470, 477, 504, Republic, books 1, 2, 4, Laws, books 3, 4, 6.

[42. ]E.g., the doctrine of the Pythagoreans that every citizen should have his special place assigned to him. Aristoxenus, according to Stobaeus, Florilegium, 43, 49.

[43. ]Iamblichus, Vit. Pythag. 101.

[44. ]Diogenes Laertius, ix, 2.

[45. ]Gorgias, 470, 477, 504.

[46. ]Ibid. 477–78.

[47. ]Republic, iii, 397–98.

[48. ]Ibid. 434.

[49. ]Ibid. Elsewhere in the Republic we are told that justice consists in every part of the soul fulfilling its own proper function and not taking up the function of another. Ibid. 433a, 433c, d, e. Also that “justice is doing one’s own business and not being a busy-body.” Ibid. 433.

[50. ]2 Grote, Plato, 138.

[51. ]Republic, 398a.

[52. ]Epictetus, Diss. ii, 5, § 4; ii, 10, § 1; iv, 7, § 2. The Stoic τὸκαθηκο, which might well be rendered duty, consists in denying the individual natural impulses. In ethical theory this might lead to the view of Epictetus that one should not be a citizen. In political and juristic theory it led to repression of individual self-assertion. See 1 Erdmann, History of Philosophy (Hough’s transl. 1910) 190–91.

[53. ]Politics, i, 1, 9.

[54. ]Ibid. i, 13; i, 3–7; iii, 1; iii, 4–5; iv, 11.

[55. ]Nicomachean Ethics, viii, 7, 2–4. See especially § 3: “For equality in proportion to merit holds the first place in justice.”

[56. ]Ibid. viii, 6. Compare Plato, Laws, 757.

[57. ]Eph. 5:22 ff. and 6:1–5. See also 1 Peter, 3:1–6, and compare St. Paul’s Epistle to Philemon, sending back the runaway slave Onesimus, although entreating the master to treat him as a brother.

[58. ]2 Berolzheimer, System der Rechts- und Wirtschaftsphilosophie (1905) §§ 17–20; Hildebrand, Geschichte und System der Rechts- und Staatsphilosophie (1860) §§ 131–35.

Sources are: Cicero, De republica, De legibus, De officiis; Seneca, De clementia, De otio, De beneficiis, iii; Institutes of Justinian, i, 1; Digest of Justinian, i, 1.

[59. ]Courcelle-Seneuil’s parallel between the Roman and the nineteenth-century ideal may be found in English in Guyot, Principles of Social Economy (Leppington’s transl. 2 ed. 1892) 299. See also Courcelle-Seneuil, Préparation à l’étude du droit (1887) 99, 396.

[60. ]De republica, ii, 1; De legibus, ii, 4.

[61. ]See e.g., Gaius, i, § 190, iii, § 98.

[62. ]“All justice (aequitas) is destroyed if one is not permitted to hold his own.” De officiis, ii, 22, 78.

[63. ]Inst. i, 1. pr.

[64. ]Inst. i, 1, 5.

[65. ]1 Savigny, System des heutigen römischen Rechts, § 59, pp. 407–10. For other views as to the interpretation of these precepts, see Affolter, Das römische Institutionensystem, 421–50 (1897); Donati, Il primo precetto del diritto “vivere con honesta” (1926).

[66. ]Kohler, Philosophy of Law (transl. by Albrecht 1914) 4, 476; id. Einführung in die Rechtswissenschaft (5 ed. 1919) § 1; Levi, Contributi ad una teoria filosofica dell’ ordine giuridico (1914) 234–35.

[67. ]2 Erdmann, History of Philosophy (Hough’s transl. 1910) 299.

[68. ]“No feature of the Greek theory was more elaborately developed by the scholastics than that which set up unity and permanence as the prime criteria of excellence in political organization.” Dunning, Political Theory, Ancient and Medieval (1913) 292.

[69. ]Summa Theologica, i–ii, qu. 58, art. 1. See the combination of theology with the authority of Justinian’s Institutes in Azo, Summa institutionum, § 19 on Inst. i, 1, justitia quid, in 1563 ed. p. 1069.

[70. ]See also the doctrines of the glossators with respect to the nature of private property. 2 Carlyle, History of Medieval Political Theory (1903) 42–49.

[71. ]3id. (1916) 31.

[72. ]Ibid. 75.

[73. ]Alciatus (1492–1550), Cujacius (1522–1590), Donellus (1527–1591).

[74. ]“Authority is in itself a Roman concept.” Werner Jaeger, The Problem of Authority and the Crisis of the Greek Spirit, in Authority and the Individual,Harvard Ter-centenary Publication (1937) 241; Heinze, 60 Hermes (1925) 348–66.

[75. ]2 Berolzheimer, System der Rechts- und Wirtschaftsphilosophie (1905) § 24; 1 Hinrichs, Geschichte der Rechts- und Staatsprincipien seit der Reformation (1848) 1–6; Bluntschli, Geschichte der neuren Staatswissenschaft (1881) chap. 3; Gierke, Althusius und die Entwicklung der natürrechtlichen Staatstheorien, 18–49, 143–62, 321; Gumplowicz, Geschichte der Staatstheorien (1903) §§ 60–61, 64–65, 68, 75.

Sources are: Oldendorp, Iurisnaturalis gentium et ciuilis Σι’σαγωγή (1539); Hemmingius, De lege naturae apodictica methodus (1562); Winckler, Principiorum iuris libri V (1615); Johannes Althusius, Politica methodice digesta (1603) translated with introduction by Friedrich (1932).

[76. ]Volksrecht und Juristenrecht (1843) chap. 4.

[77. ]Principiorum iuris libri V, tit. 2, cap. 1 (1615).

[78. ]See especially the quotations from Luther in Figgis, Studies of Political Thought from Gerson to Grotius (1907) 241.

[79. ]11 Luther’s Werke, Kritische Gesammtausgabe (1883) 245, 252. Compare 11 Melanchthon, Opera, ed. Bretschneider and Bindseil, 451 (1834–60).

[80. ]16 Opera, 424 ff. See 1 Hinrichs, Geschichte der Rechts- und Staatsprincipien seit der Reformation (1848) 18–19.

[81. ]Grotius, De iure belli ac pacis, Prolegomena (1625) §§ 11, 12.

[82. ]1 Blackstone, Commentaries (1765) 40–43.

[83. ]1 Wilson’s Works (1804) 140–41.

[84. ]Croce, The Philosophy of Giambattista Vico, transl. by Collingwood (1913) 94.

[85. ]Oldendorp, Iuris naturalis gentium et ciuilis Σι’σαγωγη′ (1539).

[86. ]Hemmingius, De lege naturae apodictica methodus (1562). The passage referred to is in the preface. Kaltenborn, Die Vorläufer des Hugo Grotius (1848) pt. II, 31.

[87. ]Id. 1564 ed. C. p. 2; Kaltenborn, pt. II, 32–33.

[88. ]Ibid. Q. p. 7; Kaltenborn, pt. II, 43–44.

[89. ]Principiorum iuris libri V (1615).

[90. ]Politica methodice digesta atque exemplis sacris et profanis illustrata (1603).

[91. ]Tract von weltlicher Oberkeit, 11 Werke (Weimar ed. 1883) 245, 253. See also 11 Melanchthon, Opera, 435.

[92. ]16 Opera, 424 ff. See 1 Hinrichs, Geschichte der Rechts- und Staatsprincipien seit der Reformation (1848) 18–19.