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SEVEN: Promotion of Free Self-Assertion 2. Nineteenth Century to the Present - Roscoe Pound, The Ideal Element in Law [1958]

Edition used:

The Ideal Element in Law, ed. Stephen Presser (Indianapolis: Liberty Fund 2002).

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


SEVEN

Promotion of Free Self-Assertion

2. Nineteenth Century to the Present

A characteristic juristic achievement of the nineteenth century1 was the setting off of jurisprudence as a separate science. This was the culmination of a development which began in the sixteenth century in the emancipation of jurisprudence from theology. Up to the seventeenth century, jurisprudence and politics were treated along with theology as applications of its doctrines.2 In a second stage, jurisprudence, politics, and international law were treated together. The philosophical foundation as expounded by the law-of-nature school was taken to suffice for all three and the details of each subject were supposed to be reached by deduction therefrom.3 Separation from politics was gradually achieved in the nineteenth century. It is true the metaphysical jurists of that century did not wholly abandon the old connection of jurisprudence, politics, legislation, and international law.4 But as the three distinct methods of jurisprudence pursued in that century, philosophical, analytical, and historical, were definitely worked out, the English analytical school believed they had achieved a separation of jurisprudence from philosophy and ethics and hence from the science of legislation. Thus Markby says: “What. . . Austin’s predecessors do not appear to me to have fully apprehended, at least not with that sure and firm grasp which proceeds from a full conviction, is the distinction between positive law and morals. We find for example that Bentham, when drawing the line between jurisprudence and ethics, classes legislation under jurisprudence, whereas, as Austin has shown, it clearly belongs to ethics. Austin, by establishing the distinction between positive law and morals, not only laid the foundation for a science of law, but cleared the conception of law and of sovereignty of a number of pernicious consequences to which in the hands of his predecessors it had been supposed to lead.”5 The English historical school, conceiving that the traditional element in legal systems was the real law and that law was to be found in the unfolding of the principle of justice in human experience rather than made by legislators, agreed in this separation of jurisprudence and the science of legislation. Accordingly Maine said: “Investigation of the principle on which direct improvement of substantive legal rules should be conducted belongs. . . not to the theorist on jurisprudence but to the theorist on legislation.”6 Note that he speaks of direct improvement. In the Hegelian thinking of the historical jurists in the last century, there could be continuous indirect improvement through unfolding of the idea of justice by its inherent power of realizing itself.

It has been suggested that a like narrow tendency in nineteenth-century philosophy is to be attributed to division of labor in the universities and the requirements of academic courtesy. No doubt these had some part in the segregation of jurisprudence, and the nineteenth-century Anglo-American tendency to insist upon analytical jurisprudence, where the lawyer required no aid from without and was continually in an atmosphere of pure positive law, as the whole of the science of law. As Sir Henry Maine put it: “The jurist properly so-called has nothing to do with any ideal standard of law or morals.”7 But the expansion of learning in the last century, which prevented any one from taking more than a corner of knowledge for his province, and the general tendency of the time to lay out everything analytically, confine it to defined limits, and reduce it to rule, a tendency which the idea of evolution has not yet wholly succeeded in driving even from the biological sciences, are also to be reckoned with. This extreme division of labor had its good side. Analysis and philosophical generalization from comparative legal history, pursued exclusively and more or less independently for a time, have taught us the possibilities of these methods and have given results upon which new methods may be devised with assurance. The bad side was the abdication of all juristic function of improving the law, as Saleilles termed it, the abandonment of “juridical idealism,”8 and the reduction of those who were best qualified to take conscious part in legal development to the position of mere observers. Coinciding with a period of maturity and stability in the law, this juristic pessimism coincided also with the doctrine of laissez faire in economics. Thus the conception of the end of law as an unshackling of individual energy, as an insuring of the maximum of abstract individual free self-assertion, gave rise to a conception of the function of law as a purely negative one of removing or preventing obstacles to such individual self-assertion, not a positive one of directly furthering social ends or social progress.

Five types of nineteenth-century thinkers require consideration. They may be called (1) the metaphysical jurists, (2) the English utilitarians, (3) the historical jurists, (4) the positivists, and (5) the social individualists.

In order of time we come first to the metaphysical jurists.9 Metaphysical jurisprudence begins with Kant, who puts in its final form the conception of the end of law which came in with the Reformation. In principle the Reformation denied the authority of any doctrine the evidence of which the individual could not find in his own reason and of any precept which could not be referred to the will of the individual to be bound. Hence the elaborate arguments by which eighteenth-century jurists seek to make out that each individual has consented to the law through his representative or has willed it through a social compact.10 In Kant’s doctrine this fiction of consent of the individual will is replaced by an imposition upon the individual free will through the reciprocal action of free wills whereby they may be reconciled by a universal law, which therefore is imposed by a necessity inherent in the very idea of freedom.11 To use Kant’s own words: “A constitution allowing the greatest possible human freedom in accordance with laws by which the freedom of each is made to be consistent with that of all others. . . is at any rate a necessary idea, which must be taken as fundamental not only in first projecting a constitution but in all its laws.”12 Thus we realize individual freedom through rules of law, and the end of law is “to keep self-conscious beings from collision with each other, to secure that each should exercise his freedom in a way that is consistent with the freedom of all others, who are equally to be regarded as ends in themselves.”13 It should be noted that this is a Kantian way of putting what Ehrlich calls the inner order of groups and associations.14

Kant’s separation of each man from what we used to call the social organism, i.e., setting him over against society, was characteristic of the eighteenth century. What Kant saw and felt was the independence of our mental life. We can live our individual mental lives. But there is no such individual independence in our economic or social life. Nor can our mental life be so isolated as Kant felt it was. A mental and moral giant like Kant could live a free life of the spirit. But the mental life of most of us is likely to be shaped by the thought of the time and the pressure of the thinking of our fellow men much as our economic life is shaped by the pressure of the wants and activities of our fellows. Kant’s putting of the individual person at the center of juristic theory and the individual conscience at the center of ethical theory, “separated him also from the past out of which his intellectual life had grown.”15 Hegel saw that it was unhistorical and took the moral organism, as it used to be called, for the central point of his ethical theory.16 Here we have the beginning of a new point of view, which becomes significant in the social-philosophical jurists at the end of the century.17 But nineteenth-century metaphysical jurisprudence remained thoroughly abstract individualist. It postulated that the end of man was freedom.18 Said Hegel: “The history of the world is nothing but the development of the idea of freedom.”19 It developed the idea of free will into the practical consequence of civil liberty, an idea of general freedom of action for individuals—an idea of the maximum of abstract free individual self-assertion. Hence the end of law was to secure each individual the widest possible abstract liberty. The justification of law was that there is no true liberty—i.e., abstract universal liberty—except where there is no law to restrain the strong who interfere with the freedom of action of the weak, and the organized many who interfere with the free individual self-assertion of the few.20 On this basis, in his lectures on political theory at Oxford, Green argued that the value of political institutions lay in their giving reality to capacities of will and reason, enabling them to be really exercised. They made it possible for an individual to be freely determined by the idea of a possible satisfaction, thus giving reality to the capacity called will, and enabled him to realize his reason, i.e., his idea of self-perfection, by acting as a member of a social organization in which each contributes to the better being of all. This he considered was the moral justification of laws.21 Two points in this doctrine are noteworthy: (1) Law as a restraint on individual abstract liberty had to be justified; (2) law is used here in the lawyer’s sense of adjustment of relations and ordering of conduct by the force of a politically organized society. Except where there is law in this sense it was held there was no liberty. The test of justice was the amount of abstract individual liberty secured.22 Jurists of the end of the century insisted vigorously on these points. It was said that sound doctrine “reduces the power of coercion to what is absolutely necessary for the harmonious co-existence of the individual with the whole.”23 Beudant argued that every rule of law was an evil since it regulated the exercise of rights; but it was a necessary evil.24 A leader of the American bar, in a set of lectures written for delivery before a law school in 1905, said that it was “the sole function both of law and legislation. . . to secure to each individual the utmost liberty which he can enjoy consistently with the preservation of the like liberty to all others. Liberty. . . is the supreme object. Every abridgment of it demands an excuse, and the only good excuse is the necessity of preserving it.”25

Though American jurists paid little or no direct attention to the systems of the metaphysical school, its central idea of abstract individual liberty fitted into our eighteenth-century law-of-nature individualism and the spirit of a pioneer society so well that the school had begun to have much influence in the United States when a new and more attractive mode of getting to the same result was furnished by the positivists.26

We turn now to the English utilitarians.27 While the metaphysical jurists were deducing the whole system of rights and the end of the legal order from a metaphysical conception of free will, another school was seeking a practical principle of lawmaking. The metaphysical school was a school of jurists. They had their eyes upon the legal order and the law as a whole, upon systems of authoritative grounds of decision and measures of conduct which had come down from the past, and they sought the principles upon which such systems and their doctrines could be based philosophically and by which rules of law might be criticized and their further development might be directed. The English utilitarians, on the other hand, were a school of legislators. The metaphysical jurists employed the philosophical method in jurisprudence and did not separate the science of law and the science of legislation. The English utilitarians developed the analytical method in jurisprudence and employed a philosophical method in the science of legislation. Accordingly while the metaphysical jurists sought principles of criticism of what was, the utilitarians sought principles of constructing new rules of law by conscious lawmaking. Bentham’s life work was law reform.28 The practical principle which he laid down, as that which should govern legislative reform of law, was the principle of utility. Does the rule or measure conduce to human happiness? This principle and this criterion might have been used to break down the abstract individualist idea of justice as Jhering used the idea of purpose later.29 But at this time abstract individualist ideas were too firmly fixed in men’s minds to be questioned. For the individualist tradition of seventeenth-and eighteenth-century thought was reinforced by economic reasons in the age of Adam Smith and the great British economists and by political reasons in the reaction from the age of absolute governments which made the period following the French Revolution fearful of centralized authority and jealous of local and individual independence. The criterion of the greatest good of the greatest number might easily be put in a way that would not be far from some recent ideas of justice. Thus, that which serves for the greatest happiness of the greatest number, used as a measure of the conduct of each, might serve as the basis of a social utilitarianism.30 But Bentham did not question abstract individualism. He vacillated between an idea of utility as the greatest happiness of the abstract individual and an idea of utility as the greatest happiness of the greatest number of concrete individuals. Indeed, he did not need to choose between them since he assumed that the greatest general happiness was to be procured through the greatest abstract individual self-assertion.31 Hence his fundamental principle was not substantially different from that of the metaphysical jurists. Dicey formulated it thus: “Every person is in the main and as a general rule the best judge of his own happiness. Hence legislation should aim at a removal of all those restrictions on the free action of an individual which are not necessary for securing the like freedom on the part of his neighbors.”32 Negatively his program was, unshackle men; allow them to act as freely as possible. And this was the idea of the metaphysical school. Positively his program was, extend the sphere and enforce the obligation of contract. This, we shall see presently, was the idea of the historical school.

Bentham’s principle, then, was: Allow the maximum of free individual action consistent with general free individual action. Thus the end of law came to the same thing with him as with the metaphysical jurists, namely, to secure the maximum of individual self-assertion. Bentham’s theory of the end of the legal order made a strong appeal to the common-law lawyer. The Anglo-American legal system had kept much of the individualism of the strict law. The stage of equity and natural law had by no means made it over and the development of equity was not complete in England when English law was received in America.33 Moreover, in the classical contests between the English courts and the Crown in the seventeenth century the common law had been made to stand between the individual and oppressive state action. Thus the common-law tradition was thoroughly individualist, and this tradition was especially congenial to the Puritan, who was dominant in America down to the time of the Civil War,34 and was reinforced by the modes of thought of the pioneer.35 However much the practicing lawyer might affect to despise philosophical theories of law, he could but be content with a theory that put plausible reasons behind his traditional habits of thought. The one difficulty was the English utilitarian’s fondness for legislative lawmaking, which was out of accord with the common-law tradition. But this difficulty presently disappeared.

It is a curious circumstance that while Bentham and Austin believed in legislation and hoped for an ultimate codification,36 the interpretation of utility as requiring a minimum of interference with the individual led the next generation of English utilitarians to the same position as that of the historical school, namely, that except in a few necessary cases legislation is an evil. The historical jurists held it was an evil because it sought to do what could not be done. The neo-utilitarians held it an evil because that government was best which governed least and left men freest to work out their own destiny. Bentham had already put security (meaning, however, security of the individual free existence) as the main end to which the legal order should be directed.37 It was to be “security to men in the free enjoyment and development of their capacities for happiness.”38 A utilitarian version of the nineteenth-century juristic pessimism was deduced from this idea. We could not achieve any positive good by law; we could only avert some evils. Thus, Markby wrote: “The value of law is to be measured not by the happiness which it procures but by the misery from which it preserves us.”39 Also: “We shall, therefore, look for happiness in the wrong direction if we expect it to be conferred upon us by the law. Moreover, not only is it impossible for the law to increase the stock of happiness, it is just as impossible for the law to secure an equal distribution of it. Equality may be hindered by the law, it cannot be prompted by it.”40 I suppose he would say that “loan shark laws” or small loan acts do not further equality. Certainly such laws or the laws against payment of wages in orders on company stores do not further abstract equality. But law is a practical activity and we may look at concrete situations. What the doctrine came to was well put by Chief Justice Sharswood: “There is not much danger of erring upon the side of too little law.”41

It is noteworthy, however, that this changed attitude toward legislation came after the legislative reform movement was at an end. The type of legislation which unshackled the individual, which did away with restrictions which had come down from a relationally organized society, had exhausted its possibilities in England about 1865. From that time legislation of a new type began to impose the restrictions called for by the relatively newly arisen industrial society.

Thus the English utilitarians did not contribute much of moment to the theory of the end of the legal order. They merely strengthened in the minds of lawyers the extreme individualism which the latter had inherited with the common-law tradition. Perhaps their most significant achievement was in definitely driving the eighteenth-century law of nature out of the English books. For example, in discussing condemnation of private property (taking for public use), Blackstone said that the public was in nothing so essentially interested as in securing to every individual his private rights.42 This is the natural-rights idea of the eighteenth century. A little more than a century later Sir George Jessel said: “If there is one thing more than another public policy requires, it is that men of full age and competent understanding shall have the utmost liberty of contracting and that their contracts. . . shall be enforced by courts of justice.”43 Nearly fifty years later an American judge was echoing this identification of the public good: “. . . surely the good of society as a whole cannot be better served than by the preservation against arbitrary restraint of the liberties of its constituent members.”

Here we have Bentham’s program of unshackling men and extending the sphere of contract. But we have also the free will idea, the individual liberty idea of the metaphysical jurists. It is worth while to reflect that Sir George Jessel wrote the words just quoted in a case involving a contract as to a patent. Not only do we unhesitatingly limit the freedom of contract of whole classes of men of full age and competent understanding at every turn of modern labor legislation, but we are not so sure today that whatever contract as to his patent a patentee may choose to make or to exact is to be upheld at all events.44

Turning to the historical jurists,45 they were more concerned with the nature of law and the content and development of legal systems than with the end of law. They took their philosophical ideas from the metaphysical school and so agreed in holding abstract individual liberty to be the fundamental idea. This is brought out in a series of unequivocal propositions by Puchta, in a book which long had much vogue as an elementary exposition: “Freedom is the foundation of right, which is the essential principle of all law.” Again: “In virtue of freedom man is the subject of right and law. His freedom is the foundation of right and all real relations of right and law flow from it.” Again: “Law is consequently the recognition of that jural freedom which is externalized and exhibited in persons and their acts of will and their influence upon objects.”46 Acceptance of this idea was facilitated by, or perhaps rather it resulted in, their adopting the political interpretation of legal history. They conceived that the history of law was a history of the gradual acquisition or recognition of individual liberty. This is the central philosophical idea in the writings of Sir Henry Maine.47 As I have pointed out elsewhere, Maine’s doctrine of the progress from status to contract is a political type of idealistic interpretation of history.48 For a purely ethical idea of right it substitutes a political idea of individual freedom. It sees in law and in legal history a manifestation and development of that idea. Hence it finds the end of law in liberty conceived in the sense of the widest possible self-assertion. It teaches that a movement from individual subjection to individual freedom, from status to contract, is the key to social and legal development. The goal toward which the law was moving was the maximum of individual liberty; the measure of values for legislation, for judicial finding of law, and for interpretation and application of legal precepts was promotion and maintenance of the maximum of free individual self-assertion.

This is not the place to discuss Maine’s proposition from the standpoint of legal history, although it may not be amiss to point out that his materials are drawn from Roman law, and Germanic law and its derivatives in the world of today do not tell the same story. It is enough to note here that Maine carried on the view of the metaphysical jurists that the philosophical basis of law was to be found in the individual free will. Thus metaphysical jurist, utilitarian, and historical jurist, much as they differed in the route by which they got there, came to the same result; the end of law was to secure the widest possible abstract freedom of individual action. The law would automatically move forward, they said, by the inherent power of the idea of liberty to unfold and realize itself.

In truth, the nineteenth-century historical school of jurists was not historical. It was at most metaphysical historical. The reconciliation of the historical with the metaphysical, which was current at the end of the century, may be found in Hegel. In an exposition too long to summarize, much less to quote, he concludes: “. . . in the logical progression of [the idea] taken for itself there is, so far as its principal elements are concerned, the progression of historical manifestations. . . . The succession undoubtedly separate itself, on the one hand, into the sequence of time in history, and on the other hand, into succession in the order of ideas.”49 Both the historical jurist and metaphysical jurist were heirs to the law-of-nature theories of the eighteenth century. Each sought a universal, unchallengeable fundamental principle. One studied the unfolding of the principle in human experience manifested in legal institutions and in legal doctrines. The other verified the same process a priori and unfolded the principle logically. Hence the juristic pessimism of the metaphysical school—the feeling that conscious attempt to improve the content as distinguished from the form of the law was futile—was fully shared by the historical school. Compare a philosopher with a legal historian: “[the Hegelian philosophy] only proposed to look on and see how the development followed from the inherent impulse of the idea.” So said Lotze.50 Saleilles, looking back over the work of the school of which he had been an adherent, said: “[the historical school] had clipped its wings and as it were disarmed itself in declaring that scientifically it could exert no effect upon the phenomenal development of law; it had only to await, to register, to verify.”51

We may pass now to the positivists.52 Somewhat later the doctrines as to the end of law which had become fixed in Anglo-American juristic thought under the influence of the historical school were reinforced in America by the influence of the positivists. Spencer’s writings had much vogue in France, Italy, and Spain as well as in America. In many American cases judicial opinions show the effect of his ideas. Indeed, Mr. Justice Holmes was impelled to protest that the Fourteenth Amendment to the constitution of the United States did not enact Spencer’s Social Statics.53 The earlier positivists thought of the universe as governed by mathematical mechanical laws, and hence of moral and social phenomena as referable to such laws also. The next generation of positivists, influenced by Darwin, thought of evolution as governed by some such mechanical laws. Accordingly the purpose of the positivist jurists was to find laws of morals, laws of social evolution, and laws of legal development analogous to gravitation, conservation of energy, and the like. For example, Brooks Adams says: “I always conceive of sovereignty in the abstract as the resultant of several conflicting forces moving in a curve. If law were the will of the strongest it would be logical and direct. Law is not the will of the strongest, for the will of the strongest is always deflected from its proper path by resistance. Sovereignty, therefore, is a compromise, as the earth’s orbit is a compromise.”54

These laws were to be found by observation and experience, verified by further observation. But observation and verification led them to the same result to which metaphysics had led the nineteenth-century philosophical jurists and history had led the historical jurists. Spencer considered by observation of social, political, and legal phenomena he had proved a “law of equal freedom,” which he formulated thus: “Hence that which we have to express in a precise way is the liberty of each limited only by the like liberties of all. This we do by saying: Every man is free to do that which he wills provided he infringes not the equal freedom of any other man.”55 A generation before he had said: “They [the positivists] urge that, as throughout civilization the manifest tendency has been continuously to extend the liberties of the subject and restrict the functions of the state, there is reason to believe that the ultimate political condition must be one in which political freedom is the greatest possible; that, namely, in which the freedom of each has no limit but the like freedom of all; while the sole governmental duty is the maintenance of this limit.”56 So completely was this accepted by a strong group in politics, ethics, and jurisprudence, that a writer on political ethics in the last decade of the nineteenth century could write: “Governments are being remanded, if not into the rubbish heap of the world’s backyard, yet into a secondary and subordinate place. And where men have relied in the past on the sovereign and the statute book for order, safety, prosperity, happiness, they are now coming to rely for them simply on themselves.”57 Purporting to be based on deduction, this exhibits a curious blindness to the legal and political facts of the time when it was written.

Spencer seems to have thought of the progress from status to contract as the rational outcome of the universe. He took abstract freedom of contract to be, as one might say, the ideal to which evolution continually tended. Moreover, the positivists got their data as to legal institutions and doctrines from the historical jurists and so looked at the phenomena of legal history not independently but through the spectacles of that school. Maine’s Ancient Law is the principal juristic authority used in Spencer’s Justice.58 It is hardly a mere coincidence that the idea of the function of law in maintaining the limits within which the freedom of each is to find the widest possible development59 so closely resembles Savigny’s formula: “If free beings are to coexist. . . invisible boundaries must be recognized within which the existence and activity of each individual gains a secure free opportunity. The rules whereby this opportunity is secured are the law.”60 Spencer’s formula of justice is a Kantian formula. He had never read Kant.61 But Kant had become part of the thought of the time so thoroughly that each of the significant nineteenth-century schools—the metaphysical school, the English utilitarians, the historical school, and the positivists—came to his position as to the end of law, though for different reasons and in different ways.62 Moreover, the juristic pessimism of the other schools was fully shared by the positivists. Spencer said: “We are to search out with genuine humility the rules ordained for us—are to do unfalteringly without speculation as to consequences, whatever these require.”63 Said Brooks Adams: “If society be, as I assume it to be, an organism operating on mechanical principles, we may perhaps, by pondering upon history, learn enough of those principles to enable us to view, more intelligently than we otherwise should, the social phenomena about us.”64

Finally, we must consider the economic realists.65 Juristic radicalism in the nineteenth century took two paths. On the one hand, the idea of justice as the maximum of individual self-assertion and the prevailing juristic pessimism led some (the anarchist individualists or philosophical anarchists) to develop to its extreme logical consequences the doctrine that law is intrinsically evil in that it restrains liberty.66 Hence they advocated a regime of individual action by voluntary cooperation, free from coercion by state-enforced rules. According to Proudhon: “Politics is the science of liberty; under whatever name it may be disguised, the government of man by man is oppression. The highest form of society is found in the union of order and anarchy.”67 Stirner argues that the “liberty” of the metaphysical jurists is but a negative idea. Put positively the end is: “Be your own; live for yourself, according to your individuality.” Accordingly, the only justification for society is to contribute to the development of the individual and “permit a larger extension of his powers without demanding restrictions upon his personality beyond what already exist in the environment in which he is found.”68 They urged that government and law were in reality but means of economic oppression. Hence they claimed to look at realities and styled themselves realists. As this group argued for a free consensual rather than a legal ordering of society, naturally enough it gave us nothing which is of importance for jurisprudence. On the other hand, the idea of law and government as means of achieving individual liberty [i.e., rather than of letting it achieve itself] was taken by another group,69 which, rejecting political and juristic pessimism, but holding to the idea of free individual self-assertion as the end, developed what may fairly be called a social individualism. This “leaves intact the individualistic ends, but resorts to collective action as a new method of attaining them.”70 Where the main current of nineteenth-century juristic thought, following the seventeenth- and eighteenth-century tradition, opposed society and the individual and was troubled to reconcile government and liberty, this group sought individual liberty through collective action as the means to a maximum of liberty. It argued that it was the function of the state “to further the development of the human race to a state of freedom”; it was “the education and evolution of the human race to a state of freedom.”71 On another side, in contributing to theories of the social interest in the individual life and in developing the Hegelian idea of the culture-state (a state performing services) as distinguished from the Kantian law-state (a state which simply enables men to be free) the nineteenth-century socialists mark the beginnings of a transition to a new conception of the end of law.

Summing up the juristic theory of the end of law thus far, in the nineteenth century the idea of justice (the ideal relation among men) as the maximum of free individual self-assertion, which began to appear at the end of the sixteenth century, reached its highest development. But at the same time the actual course the development of legal rules and doctrines began to turn toward new ideas of the end of law and the forerunners of some idea, not yet formulated, which will govern in turn, have been appearing.

Although nineteenth-century jurists were in substantial agreement in conceiving of a maximum of free individual self-assertion as the end of the legal order, in the last quarter of the century courts and lawmakers found themselves pushed continually toward a new approach to legal problems because of the pressure of unrecognized or unsecured interests. For a time this affected courts and lawmakers only. It is not too much to say that, except for the systematic work of analytical jurists, from the standpoint of making legal institutions effective for justice, the courts and the leaders of the practicing profession were ahead of the legal science of the last generation. While legislative lawmaking and judicial finding and shaping of law were reaching out for some new conception, the scientific approach and the orthodox professional approach remained either rationalist or historical. Each of these approaches leads back to the rationalism which replaced authoritarianism at the breakdown of the relationally organized society of the Middle Ages.

No doubt it is too soon to form an assured judgment as to theories of the end of law in the twentieth century.72 Only a small part of the new paths is apparent. But there seems good ground for asserting that twentieth-century law and twentieth-century juristic thinking are taking two new directions: (1) Concern for the concrete individual life rather than for the abstract individual will. (2) Concern for civilization as distinguished from and contrasted with politically organized society. Indeed, two new jural postulates are suggested by the course of legislation, of judicial decision, and to some extent, of juristic writing. I should tentatively formulate them thus: (1) Every one is entitled to assume that the burdens incident to life in society will be borne by society. (2) Every one is entitled to assume that at least a standard human life will be assured him; not merely equal opportunities of providing or attaining it, but immediate material satisfactions. Thus far some such postulates have been affecting the law here and there chiefly through legislation. They go along with what is called the socialization of law. I do not propose them as what ought to be or as what will come to be received propositions, but only as what seems to be assumed by not a little legislation and some judicial decision today.

Many causes, social, economic and political, have contributed to require shifting of the emphasis from the abstract will of the abstract individual to the concrete claims of concrete human beings. What compelled jurists to this shift of emphasis was the development of psychology in the latter part of the last century. Under attack from modern psychology, the “individual,” in the sense of the nineteenth-century metaphysical jurisprudence and the “individual free will” were as insecure foundations as the “natural man” and “the state of nature” had proved to be under the attacks of the critical philosophy a century before.73 Indeed, before philosophical jurists had begun to think of such things, legislation was tending to show more and more concern for concrete human beings at the expense of abstract individualism. The last quarter of the nineteenth century was marked by a steady growth of such legislation, and the point of view was typical in legislation and administration in the first two decades, and in judicial decision in the second decade of the present century.

For example, although a majority of the Supreme Court of the United States in 1923, going on abstract considerations, held legislation prescribing minimum wages for women arbitrary and unreasonable, and so unconstitutional,74 it is significant such statutes had then been enacted throughout the English-speaking world.75 Also the overwhelming weight of opinion among those who reviewed the decision was adverse thereto.76 The decision was later expressly overruled.77

It will be worth while to look into the change just illustrated in some detail. No doubt pioneer conditions were behind homestead laws, forbidding taking the family home in execution for debts, and exemption laws exempting household furniture, workmen’s tools, agricultural machinery and needed animals in case of farmers, and the library of professional men, from seizure on execution against the head of a family. But they survived pioneer life and the principle of such legislation is active in the urban industrial life of today. Legislation against payment of wages in orders on company stores was active after 1881, and legislation as to conditions of labor after 1884. Later there was legislation as to hours of labor for women and children, child labor legislation, and as has been said, minimum wage legislation. There were small loan acts or “loan shark laws,” workmen’s compensation acts, “blue sky laws” protecting investors of savings, and much more of the sort. It is especially instructive to compare the old regime of employer’s liability for negligence only, enforced by actions at law, with the new regime of workmen’s compensation, made effective by administrative agencies. The former offered a theoretically complete provision for abstract justice to both abstract worker and abstract employer. Yet it failed notoriously to do justice in concrete cases because of the delay and expense involved in exact judicial determination of the facts and the precise measure of damages, because of the unequal actual position of employer and employed,78 and because of the prejudice of jurors due to dissatisfaction with a system whereby the risk of accidents, inevitable in the conduct of industrial enterprizes, was so largely thrown upon those least able to bear it. In contrast, the regime of workmen’s compensation is theoretically defective in many ways. It seeks a rough and ready justice rather than an equal and exact justice complete for each case. Experience has shown, however, that the interests of the concrete worker and, on the whole, of the concrete employer, are much better secured by the regime which is abstractly defective than by the regime in which the theoretical provision for full and exact justice to all men in the abstract was quite perfect. Yet abstract individualism had become part of American received ideals, and had so strong a hold upon us that many courts obstinately resisted such legislation, and most courts insisted for a generation on full theoretical securing of the abstract individual at the expense of the full human life of concrete human beings.

Take, for example, the attitude of American courts toward homestead and exemption laws. Chief Justice Taney, trained in the classical law of nature, was willing to allow a state to make retroactive exemptions “according to its own views of policy and humanity.” He conceived that a state might “direct that the necessary implements of agriculture, tools of the mechanic, or articles of necessity in household furniture shall, like wearing apparel, not be liable to seizure on judgments;” that the state had power in this way to protect its citizens “in those pursuits which are necessary to the existence and well being of every community.”79 This view of Chief Justice Taney was approved by a great text writer and by more than one state court.80 But a generation later, when the question came directly before the Supreme Court of the United States, the waning of the old ethical law of nature, the rise of the conception of giving effect to the declared will, and the economic development in the northern states after the Civil War, led to interpretation in the light of different ideals, and the view of Chief Justice Taney was rejected.81 In the Virginia Homestead Cases,82 the same year, the argument of counsel brought out clearly and ably the concrete economic situation in the South to which the statutes involved in the two cases were palpably directed.83 The complete ignoring of this background of fact as wholly irrelevant,84 should be compared with the weight given to the de facto housing situation during and after the first World War in the District of Columbia Rent Cases,85 and the New York Housing Case,86 and the judicial recognition of the de facto crisis in the railway wage situation in 1916, which controlled the decision on the Adamson Law.87 The concrete point of view seemed as much a matter of course in the present century as the abstract point of view in the last century and in the dissenting opinions in the District of Columbia Rent Cases. So strongly did homestead and exemption laws run counter to the juristic ideas of the last century that, although they had clear historical warrant in the common law,88 they were for a time construed strictly, as in derogation of the common law,89 and so, as it were, in derogation of “common right.”90

Another useful comparison may be made if we note the spirit manifest in the course of decision in the courts from 1886 to 1900 and in some states down to 1910 upon liberty of contract as affected by what we have since called social legislation.

Two courts in passing adversely upon labor legislation, because it infringed a theoretical equality of free contract, noted the frequency of such legislation at the time as an interesting phenomenon, but said (one of them as late as 1902) that it was not necessary to consider the reasons therefor in order to determine whether the legislation was reasonable.91 Reasonableness was an abstract question to be determined from the text of the statute abstractly regarded. Another court asked what “right”—not what warrant in fact but what abstract justification—the legislature had to “assume that one class has need of protection against another.”92 Another court said gravely that the remedy for the company-store evil was “in the hands of the employee,”93 since theoretically he was on an equal footing with the employer, compulsion in concrete economic fact being irrelevant where it had no place in abstract legal theory. It is instructive to compare the reliance upon abstract equality in the opinion of the West Virginia court in 1889 with the concrete view of a similar situation taken by Mr. Justice Holmes in 1907. He said: “Probably the modification of this general principle [assumption of risk] by some judicial decisions and by statutes like [the Federal Safety Appliance Act] is due to an opinion that men who work with their hands have not always the freedom and equality of position assumed by the doctrine of laissez faire to exist.”94

Still another court said that “theoretically there is among our citizens no inferior class,”95 and no facts could avail against that theory. Other courts at the end of the last century spoke of company-store legislation and laws to insure fair ascertainment of the laborer’s work, where he was paid on the basis of work done rather than of time, as putting laborers under guardianship,96 as creating a class of statutory laborers,97 as stamping industrial laborers as imbeciles,98 (i.e., as creating status to replace free contract), as insulting to the manhood of laborers,99 or as making them wards of the state.100 As late as 1908, even the Supreme Court of the United States dealt with the relation of employer and employee in railway transportation as if it were a matter of two neighbors bargaining in the rural, agricultural neighborhood of a century before.101 This artificial type of reasoning, on the basis of a theoretical abstract equality and abstract liberty of contract, ignoring the facts of the economic order, began to disappear from American law books a generation ago.102 It no longer needs to be refuted in spite of a temporary recrudescence after the first World War. More and more the courts have been taking for granted that they may, and indeed must, look at life in the concrete and not at man in the abstract.

If this were all, we might still be able to hold to Kant’s formula of justice. We could say that in an industrial society, looking the facts of the economic order in the face, it promoted a maximum of individual liberty to put certain limits upon the freedom of contract of the employer in order to give place for a fair amount of liberty of contract on the part of the employee. But it began to be doubted whether liberty, “the permission or power to do what one pleases to do without any external restraint”103 was all that men could reasonably expect in civilized society; that, as Kant put it, if liberty was secured to men happiness would take care of itself.104 There ceased to be general agreement that liberty was the sole nor even the supreme human expectation.

In the first decade of the present century economists, sociologists, and students of politics had become aware of this change of front at a time when jurists were still repeating the nineteenth-century formula. It was easy to assume that the Kantian conception was necessarily identified with law. Hence the first attempts to formulate a new theory of the end of law were put in terms of a contrast between social justice and legal justice.105 The divergence between the idea which was growing up beneath the surface in actual rules and doctrines, especially through legislation, and the orthodox juristic conception, the difference between the idea which was coming to obtain in the other social sciences and the one which held in jurisprudence, was most acute in the United States at the time of the agitation for recall of judges and recall of judicial decisions.106 Today the divergence is less marked or has even disappeared, and other ways of formulating a newer idea of the end of law have replaced formulation in terms of contrast. From the side of ethics the change from the nineteenth-century conception has been put as a shifting from an economic standpoint, which regarded primarily individual claims to property and to promised advantages, to a civilization standpoint, which seeks to make possible for each individual a full moral life. Thus we are told: “The old justice in the economic field consisted chiefly in securing to each individual his rights in property and contracts. The new justice must consider how it can secure for each individual a standard of living, and such a share in the values of civilization as shall make possible a full moral life.”107 Here, I take it, the term “economics” is used to refer to the point of view of the classical economics, which was identical with that of nineteenth-century jurisprudence. The Kantian justice is given up in economics as well as in jurisprudence. Whitehead makes the same case against the one that has been made against the other. He says: “It is very arguable that the science of political economy, as studied in the first period after the death of Adam Smith [1790] did more harm than good. It destroyed many economic fallacies, and taught how to think about the economic revolution then in progress. But it riveted on men a certain set of abstractions that were disastrous in their influence on modern mentality. It dehumanized industry.”108 From the standpoint of economic realism the change has been put as one of a conception of justice in terms of wants rather than of wills. Thus Ward suggested instead of the liberty of each limited only by the like liberties of all, the satisfaction of every one’s wants so far as they are not outweighed by others’ wants.109 But that takes us back to the problem of a measure of values, for the wants of each are to be weighed with reference to the wants of others. It is not to be a count of wants but a weighing. Juristically the change might be put as a shift of emphasis from the social interest in the general security (chiefly in the form of security of acquisitions and security of transactions) to the social interest in the individual life.

Our situation in jurisprudence today, as to theory of justice, is much what it was in the sixteenth century. Then the idea of justice as a maintaining of the social status quo which had been received along with Roman law and had proved equal to the problems of the science of law in the Middle Ages was failing to meet the exigencies of a world of discovery, adventure, pioneering and wide opportunities, and jurists were casting about for a substitute.

In the seventeenth century the matter was complicated by the breakdown of the twofold organization of medieval society as religious and political, of the coordinate position of church and state as the chief agencies of social control. It was complicated, too, by the divorce of jurisprudence from theology and of law from the text of Justinian and consequent necessity of building a new foundation for legal theory. It was no offhand matter of replacing authority by reason. As one might put it, reason had to be applied to discovery of the content of reason. There had to be a complete remaking of juristic method.

Today the matter is complicated by the rise of the welfare or, as I prefer to call it, the service state; the state which instead of securing men against molestation while they pursue opportunities and discover happiness for themselves, undertakes to serve up happiness to them ready prepared and to save them harmless not merely from attacks by others or risks unreasonably cast on them by others, but from their own negligence, want of foresight, lack of initiative or energy, and lack of capacity equal to their ambition, as well as from the unforeseen and often unforceable accidents and misfortunes to which humanity is heir in any society and the more in highly mechanized urban existence today. A political organization which sets out to relieve mankind from fear and from want, not to mention other freedoms recently urged, and to provide all men with “just terms of leisure,” will call for much protracted hard thinking from those who are to expound its juristic theory.

Along with this controversial change of conception as to the function of the state there goes today a controversy with the believers in collectivism, who see all things in terms of—I was going to say through the spectacles of—politically organized society, who identify society with the state, and to whom the individual is wholly merged in society and so in the state. This stands to the reorganization of juristic thought today where the problem of universal law or a separate local law of each state did to the sixteenth century.

In the second place the matter is complicated today by the unification of the social sciences and recognition of jurisprudence as one of them. But whereas in the sixteenth century jurisprudence had to break loose from what, as we look back, we may call the theological social science of the Middle Ages, it has to work with ethics and politics and economics, and sociology in the quest of a fundamental idea and a formula to replace the Kantian one we are giving up.

Finally the matter is embarrassed today by a feeling of the inadequacy of the legal philosophy of the last century without any general agreement upon a substitute.

What we are looking for is the ideal relation among men which, when we have formulated it as an idea, will give a guide for legislation, a sure ground of choosing from among conflicting or competing starting points for legal reasoning, a touchstone of interpretation and a pathfinder in the application of legal standards. The nineteenth century had such a formula but we are giving it up.

In the past the ideal relation among men has been thought of successively in three ways. First, it was put in terms of peace, and from the standpoint of civilization here is a root idea. Unless there is peace and order in a society effective division of labor is impossible and maintenance of a society of any size or complexity of organization becomes impossible. Second, it was put as stability of the social status quo. Here again we have something without which the large populations of most parts of the world could not maintain themselves. The economic organization of society depends upon the social organization, and that rests ultimately in the law. But we say that law must be stable although it cannot stand still. Third, the ideal relation among men has been put as liberty; as a social order in which no one is constrained to do or restrained from doing otherwise than as his free will freely expressed dictates except as he thereby restrains the free will of others. Here, also, is something that must have a place in organized civilized society. All social organization is liable to disruption if the rooted repugnance of mankind to having a man’s will forcibly subjected to the arbitrary will of others is not taken into account. The second here includes the first and the third presupposes the second.

After the second was giving way it took two centuries to work out a final formulation of the third. Now that after a century of substantial agreement on the third we are agreeing to give it up we may hardly expect to find a generally acceptable substitute at once.

Some are urging an idea of cooperation, many are urging an idea of civilization. Some are urging an idea of maximum satisfaction of material wants. Some urge an idea of promoting a full economic and social individual life.

As a lawyer, not a philosopher, I do not assume to lay out any formula which is to be a permanent substitute for Kant’s. But I purpose to examine the different theories which are proposed and to consider them from a lawyer’s standpoint.

[1. ]I have considered nineteenth-century ideas of the end of law in The End of Law as Developed in Juristic Thought, 30 Harvard Law Review, 201 (1917); The Spirit of the Common Law (1921) lect. 6; The Philosophy of Law in America (1913) 7 Archiv fur Rechts und Wirtschaftsphilosophie, 213, 385.

[2. ]In Hobbes’ Leviathan two of the four parts are theological. Cf. also Spinoza’s Tractatus theologico-politicus (1670).

[3. ]See, for example, the sequence of Burlamaqui, Principes du droit naturel (1747) and Principes du droit politique (1757); the order of treatment, that is, general philosophical foundation, philosophical jurisprudence, politics, international law, in Wolff, Institutiones iuris naturae et gentium (1740–49) and the like order in Rutherforth, Institutes of Natural Law (1754–56).

[4. ]Lorimer, Institutes of Law (2 ed. 1880) bk. ii, chap. 1 and bk. iv, chap. 3; Stahl, Die Philosophie des Rechts (5 ed. 1878) bk. iv—politics and public law. But compare Lasson, System der Rechtsphilosophie (1882) where the philosophical foundations of public law are discussed but not politics.

[5. ]Markby, Elements of Law (6 ed. 1905) § 12. The same proposition is stated with less assurance in the first edition (1871) 5–6. Cf. 2 Austin, Jurisprudence (3 ed. 1869) 1107; Gray, Nature and Sources of the Law (1909) § 213, (2 ed. 1921) 94.

[6. ]Maine, Early History of Institutions (7 ed. 1897) lect. 13, p. 345. Cf. 1 Pollock and Maitland, History of English Law (1895) xxiii.

[7. ]Early History of Institutions (1874) lect. 12. In the 7th ed. (1897) the passage is on p. 370. To the same effect, Holland Elements of Jurisprudence (1 ed. 1880) chap. 1; and so in 13 ed. (1924). Compare the more temperate statement of this view by Gray, Nature and Sources of the Law (1909) §§ 1–9, somewhat altered in 2 ed. 1921, 140–44.

[8. ]Saleilles, L’école historique et droit naturel (1901) 1 Revue trimestrielle de droit civil, 80.

[9. ]Kant, Metaphysische Anfangsgründe der Rechtslehre (2 ed. 1798), English transl. by Hastie as Kant’s Philosophy of Law (1887); Fichte, Grundlage des Naturrechts (1798) new ed. by Medicus (2 ed. 1922), English transl. by Kroeger as Fichte’s Science of Rights (1889); Hegel, Grundlinien der Philosophie des Rechts (1821), 2 ed. by Gans, 1840, new ed. by Lasson, 1911, English transl. by Knox (Oxford, 1942); Krause, Abriss des Systemes der Philosophie des Rechtes (1825); Ahrens, Cours de droit naturel (1837, 8 ed. 1892); Green, Principles of Political Obligation (lectures delivered 1879–80, reprinted, 1911); Lorimer, Institutes of Law (1872, 2 ed. 1880); Lasson, System der Rechtsphilosophie (1882); Miller, Lectures on the Philosophy of Law (1884); Boistel, Cours de philosophie du droit (1899); Herkless, Lectures on Jurisprudence (posthumous, 1901).

[10. ]1 Blackstone, Commentaries (1765) 140, 158–59; Wilson, Works, Andrews’ ed. 88–89 (written in 1790); Wooddeson, Elements of Jurisprudence (1792) xvii.

[11. ]Metaphysische Anfangsgründe der Rechtslehre (2 ed. 1798) xxii–xxiii. See a good exposition of this in 2 Caird, The Critical Philosophy of Kant (1889) 296–300. Cf. Herkless, Lectures on Jurisprudence (1901) 14–15. As to the relation of Kant’s doctrine to the classical economics, see Cooke, Adam Smith and Analytical Jurisprudence (1935) 51 Law Quarterly Review, 326.

[12. ]Kant, Kritik der reinen Vernunft (2 ed. 1787) 373, Smith’s transl., Smith, Immanuel Kant’s Critique of Pure Reason (1932) 312.

[13. ]2 Caird, The Critical Philosophy of Kant (1889) 296.

[14. ]Ehrlich, Fundamental Principles of the Sociology of Law (1936) transl. by Moll, chap. 2.

[15. ]1 Caird, 54.

[16. ]Grundlinien der philosophie des Rechts (2 ed. 1840) § 33. See Wallace, Hegel’s Philosophy of Mind (1894) 21–23.

[17. ]See Boyd, Workmen’s Compensation (1913) § 21, as to the influence of Hegel.

[18. ]See 2 Stirling, The Secret of Hegel (1865); Croce, Ce qui est vivant et ce qui est mort de la philosophie de Hegel (1910) 114.

[19. ]Hegel, Philosophy of History, transl. by Sibree, rev. ed. pt. IV, chap. 3 (1899).

[20. ]Courcelle-Seneuil, Préparation à l’étude du droit (1887) 114; Pulszky, Theory of Law and Civil Society (1888) § 170; Emery, Concerning Justice (1914) 108–9.

[21. ]Green, Principles of Political Obligation (1911) 32–33—lectures delivered 1879–80.

[22. ]Ahrens, Cours de droit naturel (8 ed. 1892) §§ 17–18; Trendelenburg, Naturrecht (2 ed. 1808) § 46; Lorimer, Institutes of Law (2 ed. 1880) 363, 523; Miller, Lectures on the Philosophy of Law (1884) 70–74.

[23. ]Lioy, Philosophy of Right (1891) transl. by Hastie, 121.

[24. ]Beudant, Le droit individuel et l’état (1891) 148.

[25. ]Carter, Law: Its Origin, Growth, and Function (1907) 337.

[26. ]On the influence of metaphysical jurisprudence in America and the American grafting of metaphysical jurisprudence on positivism, see Pound, Interpretations of Legal History (1923) 22–23, 32–37, 71–72.

[27. ]2 Berolzheimer, System der Rechts- und Wirtschaftsphilosophie (1905) § 28; Mill, On Liberty (1859) chap. 4; Bentham, Theory of Legislation, Principles of the Civil Code (1864, new ed. 1931) chaps. 1–7; Dicey, Law and Public Opinion in England (2 ed. 1914) lect. 6; Solari, L’idea individuale e l’idea sociale nel diritto privato (1911) §§ 31–36.

Bentham’s utilitarianism: Principles of Morals and Legislation (1780, reprinted by the Clarendon Press, 1879); Traités de législation (ed. by Dumont, 1802, transl. by Hildereth as Bentham’s Theory of Legislation, 10 ed. 1904); 1 Works, Principles of the Civil Code (1839) 295–364.

[28. ]On Bentham’s life and work: Atkinson, Jeremy Bentham (1905); Phillipson, Three Criminal Law Reformers, pt. 2, Bentham (1923); 1 Stephen, The English Utilitarians (1900).

[29. ]I have discussed this in The Scope and Purpose of Sociological Jurisprudence (1911) 25 Harvard Law Review, 140, 140–43.

[30. ]Cf. Tanon, L’évolution du droit et la conscience sociale (3 ed. 1911) 185–89.

[31. ]Cf. Kant: “. . . the greatest possible human freedom. . .—I do not speak of the greatest happiness, for this will follow of itself.” Kritik der reinen Vernunft (2 ed. 1787) 373.

[32. ]Dicey, Law and Public Opinion in England (2 ed. 1914) 146.

[33. ]I have considered this in, The Place of Judge Story in the Making of American Law (1914) 48 American Law Review, 676.

[34. ]See Pound, The Spirit of the Common Law (1921) lect. 2.

[35. ]Ibid. lect. 5. See also Pound, The Administration of Justice in the Modern City 26 Harvard Law Review, 302 (1913).

[36. ]2 Austin, Jurisprudence (5 ed. 1885) lect. 39 and Notes on Codification, 1021–32.

[37. ]Theory of Legislation, Principles of the Civil Code (1864) pt. 1, chap. 7.

[38. ]Sharswood, Professional Ethics (5 ed. 1896) 22.

[39. ]Markby, Elements of Law (6 ed. 1905) § 58.

[40. ]Ibid. § 59.

[41. ]Sharswood, Professional Ethics (5 ed. 1896) 23.

[42. ]1 Commentaries, 139.

[43. ]Printing Co. v. Sampson, 19 Eq. 452, 465 (1875).

[44. ]Bauer v. O’Donnell, 229 U.S. 1 (1912); Motion Picture Patents Co. v. Universal Film Mfg. Co., 243 U.S. 502 (1917). Cf. recent English decisions as to covenants not to exercise the calling for which one has trained himself. Hepworth Mfg. Co. v. Ryott [1920] 1 Ch. 1; Attwood v. Lamont [1920] 3 K. B. 571; Younger, L.J., in Dewes v. Fitch [1920] 2 Ch. 159, 185.

[45. ]Maine, Ancient Law (1860) chap. 5; id. Early History of Institutions (1874) lect. 11; Carter, Law: Its Origin, Growth and Function (1907) 133–35, 333–38; Puchta, Cursus der Institutionen (1841) §§ 1–3; Arndts, Juristische Encyklopädie und Methodologie (1860) § 12.

[46. ]Puchta, Cursus der Institutionen, Hastie’s transl. in Outlines of Jurisprudence (1887) §§ 2, 4, 6.

[47. ]Ancient Law (1861) chap. 5 ad fin.

[48. ]Pound, Interpretations of Legal History (1923) 46, 53–65; The Spirit of the Common Law (1921) lect. 1; The End of Law as Developed in Legal Rules and Doctrines (1914) 27 Harvard Law Review 201, 209–21; The Scope and Purpose of Sociological Jurisprudence (1911) 25 Harvard Law Review 140, 164.

[49. ]1 Hegel, History of Philosophy (transl. by Haldane, 1892) 80.

[50. ]Logic, 50 (English transl. 1884, p. 196).

[51. ]Saleilles, L’école historique et droit naturel (1902) 1 Revue trimestrielle de droit civil, 80, 94.

[52. ]Spencer, Principles of Sociology, pt. 2, Inductions of Sociology (1876); id. Justice (1891) chaps. 4–8. See Ardigo, La morale dei positivisti (1879); Gumplowicz, Grundriss der Soziologie (1885); id. Soziologie und Politik (1892); Vanni, Lezioni di filosofia del diritto (3 ed. 1908); Lévy-Bruhl, La morale et la science des moeurs (1903).

[53. ]Holmes, J., dissenting in Lochner v. New York, 198 U.S. 45, 75 (1905).

[54. ]Brooks Adams in Centralization and the Law (1906) 52.

[55. ]Spencer, Justice (1891) § 27.

[56. ]Spencer, First Principles (1863) § 2.

[57. ]Kimball, Morals in Politics, in Brooklyn Ethical Society, Man and the State (1892) 521–22.

[58. ]See the table of references in the American edition pp. 287 ff.

[59. ]Spencer, First Principles (1863) § 2.

[60. ]1 Savigny, System des heutigen römischen Rechts (1840) § 52.

[61. ]Spencer, Justice, Appendix A (1891).

[62. ]See Charmont, La renaissance du droit naturel (1910) 122. As to Spencer’s relation to Kant, see 1 Maitland, Collected Papers (1911) 279–80.

[63. ]Spencer, Social Statics, Conclusion (1866) § 6.

[64. ]Brooks Adams, Theory of Social Revolutions (1913) 203. See the comments of Del Vecchio, Formal Bases of Law (1914) transl. by Lisle, § 70.

[65. ]2 Berolzheimer, System der Rechts- und Wirtschaftsphilosophie (1905) §§ 37–40; Brown, The Underlying Principles of Modern Legislation, Prologue—The Challenge of Anarchy (1914).

[66. ]Proudhon, Qu’est-ce que la propriété? (1840); id. Idée génerale de la révolution au dix-neuvième siècle (1851); id. De la justice dans la révolution et dans l’église (1858); Stirner, Der Einzige und sein Eigenthum (1845) English transl. as The Ego and His Own (1907); Grave, La société future (7 ed. 1895) 157.

[67. ]Proudhon, Qu’est-ce que la propriété, 1 Oeuvres Complètes (1878 ed.) 224.

[68. ]Grave, La société (7 ed. 1895) 157.

[69. ]Menger, Das bürgerliche Recht und die besitzlosen Volksklassen (1889, 4 ed. 1908); id. Ueber die sozialen Aufgaben Rechts (1885, 3 ed. 1910); Picard, Le droit pur (1899, reprinted 1920); Barasch, La socialisme juridique (1923); Panunzio, Il socialismo giuridico (2 ed. 1911).

[70. ]Adler, The Conception of Social Welfare,Proceedings of the Conference on Legal and Social Philosophy (1913) 9. See Radbruch, Grundzüge der Rechtsphilosophie (1914) 97–98; id. Rechtsphilosophie (3 ed. 1932) § 6.

[71. ]Lassalle, Arbeiterprogramm (1863) 1 Werke (ed. Blum) 156, 200.

[72. ]Pound, Twentieth-Century Ideas as to the End of Law in Harvard Legal Essays (1934) 357–75; id. How Far Are We Attaining a New Measure of Values in Twentieth-Century Juristic Thought (1936); id. Fifty Years of Jurisprudence (1938) 51 Harvard Law Review 444, 448–72; id. Social Control Through Law (1942) 106–34.

[73. ]“Man in abstracto, as assumed by philosophies of law, has never actually existed at any point in time or space.” 3 Wundt, Ethics (1901) transl. by Tichener and others, 160.

[74. ]Adkins v. Children’s Hospital, 261 U.S. 525 (1923).

[75. ]Andrews, Minimum Wage Legislation (1914).

[76. ]See the collection of reviews in The Supreme Court and Minimum Wage Legislation, compiled by the National Consumers’ League (1925); Powell, The Judiciality of Minimum Wage Legislation (1924) 37 Harvard Law Review 545.

[77. ]West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937).

[78. ]See Smith, Justice and the Poor (3 ed. 1934) 87–90.

[79. ]Bronson v. Kinzie, 1 How. (U.S.) 311, 315–16 (1843). See also Woodbury, J., in Planter’s Bank v. Sharp, 6 How. 301, 330 (1848).

[80. ]Cooley, Constitutional Limitations (1 ed. 1869); Morse v. Gould, 11 N.Y. 281 (1854); Baldy’s Appeal, 40 Pa. St. 328 (1861); Gunn v. Barry, 44 Ga. 351, 353 (1871); Re Kennedy, 2 S.C. 216 (1870); Sneider v. Heidelberger, 45 Ala. 126 (1871).

[81. ]Gunn v. Barry, 15 Wall. (U.S.) 610, 620 (1873).

[82. ]22 Gratt. (Va.) 266 (1872).

[83. ]Ibid. 267–68, 274–75.

[84. ]See also Chambliss v. Jordan, 50 Ga. 81 (1873).

[85. ]Block v. Hirsch, 256 U.S. 135 (1921).

[86. ]People v. La Fetra, 230 N.Y. 429 (1921).

[87. ]Wilson v. New, 243 U.S. 332 (1917).

[88. ]See Dick, J., in Re Volger, 28 Fed. Cas. 1248, 1249 (1873).

[89. ]Ward v. Huhn, 16 Minn. 159, 161 (1870); Guillory v. Deville, 21 La. Ann. 686 (1869).

[90. ]Robinson v. Wiley, 15 N.Y. 489 (1857).

[91. ]Low v. Rees Printing Co., 41 Neb. 127, 135 (1894); State v. Kreutzberg, 114 Wis. 530, 537 (1902). Each court, in later cases, became willing to consider the concrete situation. Wenham v. State, 65 Neb. 394 (1902); Borgnis v. Falk Co., 147 Wis. 327 (1911).

[92. ]State v. Haun, 61 Kan. 146, 162 (1899). As to the factual situation as it was at the time of this legislation, see Smith, Justice and the Poor (3 ed. 1824) chap. 2.

[93. ]State v. Fire Creek Coal & Coke Co., 33 W.Va. 188, 190 (1889).

[94. ]Schlemmer v. Buffalo, R. & P.R. Co., 205 U.S. 1, 12 (1907).

[95. ]Frorer v. People, 141 Ill. 171, 186 (1892) holding adversely to a statute prohibiting company stores and requiring miners to be paid weekly.

[96. ]Braceville Coal Co. v. People, 147 Ill. 66, 74 (1893)—coal to be weighed for fixing wages; State v. Haun, 61 Kan. 146, 162 (1899)—wages to be paid in money.

[97. ]People v. Beck, 10 Misc. (N.Y.) 77 (1894), dissenting opinion of White, J., The statute fixed hours of labor on municipal contracts.

[98. ]State v. Goodwill, 33 W.Va. 179, 186 (1889)—statute against payment of wages in store orders.

[99. ]Godcharles v. Wigeman, 113 Pa. St. 431, 437 (1886)—statute required wages to be paid in money.

[100. ]Peckham, J., in Lochner v. New York, 198 U.S. 45, 57 (1905).

[101. ]Harlan, J., in Adair v. United States, 208 U.S. 161, 175 (1908).

[102. ]McLean v. Arkansas, 211 U.S. 534 (1909); Chicago B. & Q.R. Co. v. McGuire, 219 U.S. 549, 560–75 (1911).

[103. ]Carter, Law: Its Origin, Growth, and Function (1907) 133.

[104. ]See ante note 31. “Of the conditions necessary to enable the individual to attain [pure happiness] I name, without fear of contradiction, as the first liberty, the choicest of human blessings.” Carter, loc. cit. See also Carter, op. cit. 337.

[105. ]Pound, The End of Law as Developed in Legal Rules and Doctrines: 1. Social Justice and Legal Justice (1914) 27 Harvard Law Review 195, 195–98; Willoughby, Social Justice (1900) 20–21; Carver, Social Justice (1915) 3–34; Hobhouse, Elements of Social Justice (1922) chaps. 1–4.

[106. ]This agitation was at its height between 1911 and 1914. SeeProceedings of the Academy of Political Science of the City of New York, vol. 3 (1913); Annals of the American Academy of Political and Social Science (Philadelphia) The Initiative, Referendum, and Recall (1912); Recall of Judges, Senate Document No. 649 (1911); Brown, Judicial Recall—A Fallacy Repugnant to Constitutional Government,Annals of the American Academy of Political and Social Science (Philadelphia) also published as Senate Document No. 892 (1912); Taft, Recall of Decisions, a Modern Phase of Impatience of Constitutional Restraints, 33 Rep. N.Y. State Bar Assn. 169 (1913); Dodd, The Recall and the Political Responsibility of Judges, 10 Michigan Law Review 79 (1911); Theodore Roosevelt, The Right of the People to Rule, Senate Document No. 473, 66th Congress, 2nd Session (1912); Thayer, Recall of Judicial Decisions, 4 Legal Bibliography,New Series, 3 (1913); Hornblower, The Independence of the Judiciary the Safeguard of Free Institutions, Senate Document No. 1052, 62nd Congress, 3rd Session (1913); Addresses on the Recall of Judges and the Recall of Judicial Decisions, 1912 Proc. Illinois State Bar Association, 174–258.

[107. ]Dewey and Tufts, Ethics (rev. ed. 1938) 496.

[108. ]Whitehead, Science and the Modern World (1938) 288.

[109. ]Adapted from Ward, Applied Sociology (1906) 22–24.