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

EIGHT

Maintaining and Furthering Civilization

We have seen that at the end of the nineteenth century and in the beginning of the present century there was a definite shift in juristic thought away from the idea of promoting and maintaining the fullest free individual self-assertion as the end of law. Throughout the last century that idea was all but universally accepted by jurists substantially as Kant had formulated it at the end of the eighteenth century. No doubt the will jurisprudence of the nineteenth century will hang on here and there for a long time to come just as contract jurisprudence of the eighteenth century has been known to darken counsel in out-of-the-way cases even in the twentieth century.1 But as a real force either in the law or in the science of law the one is as dead as the other.

Movement away from the accepted idea of the last century is clear enough. But while there is general agreement as to from what juristic thought of the present has moved, there is little or no agreement as to what or toward what is moving. Some have been urging an idea of cooperation as the end of law. But cooperation is a process rather than an end. It must be cooperation toward something, and so we must ask, cooperation to what end? Certainly the emphasis today is on an ideal of cooperation rather than on one of free competitive self-assertion. In the western world it is enough to consider as to any of the significant cities, and in most western countries the bulk of the population has become definitely urban, how many individuals are freely competing and how many more are doing their part cooperatively, in however modest a way, as employees in great enterprises, finding a reflected glory in the greatness of the enterprise and giving it service in return for protection in a relation suggesting the old one of lord and man.2 Even if cooperation is not to be the whole idea it may well be a large part of it. Cooperation or participation in maintaining the social and so the political order may be what the eighteenth century meant by the social contract. Moreover if instead of saying cooperation we say, with Duguit, interdependence, we must still ask to what end we seek to promote interdependence. We can hardly think of interdependence as the end. I prefer to think that the recognition of cooperation and the new emphasis upon it in all connections is a step toward some ideal involving organized human effort along with free spontaneous initiative, and one could conceive of such an ideal in the idea of civilization. One might think of cooperation toward bringing about and maintaining a balance between independence and interdependence in order to promote civilization. Some such mode of thought has brought many to look on civilization as the end. There has been not a little argument recently as to whether jurisprudence is a “civilization science.”3

Thus we find theories of the end of law in terms of cooperation,4 of promoting and maintaining social interdependence,5 and of maintaining, furthering, and transmitting civilization.6

Another end urged has been the satisfaction of human material wants on an assumption that when these are satisfied (as Kant thought would happen if desire for individual self-assertion were satisfied happiness would follow as a matter of course) all causes of conflict among men would be eliminated.7 This postulates that there are no human claims or expectations which will press upon a legal order except those arising from control over the material goods of existence; that there will always be enough of the material goods of existence to give every one as much as he can wish, so that no contentions can arise as to use and enjoyment. Secondly, it postulates that there will be no conflicts or overlappings of the desires or demands or expectations known as interests of personality, or that they will be so simple as not to require more than an offhand commonsense determination for each individual case. Indeed, those who adhere to the Marxian idea or to variants of it, urge that there are no such things as interests to be secured apart from the law. They argue that rights, so-called, are but results of state interference, so that there would be none if the state kept its hands off. They argue that it is not a matter of interests pre-existing and taken up and secured by threats, but one of threats arising from the self-interests of the dominant class, giving rise to demands which are then secured.8 There is nothing in human experience to warrant faith in any of these propositions. But a doctrine of administrative absolutism is relied on to take the place of the law for such situations as those involved in interference with personality. It is said that the state as an organization of compulsion may go on long after law has disappeared.9 There is to be no law and but one rule of law, namely, that there are no laws but only administrative orders for the individual case. Expediency is to be the guide for each item of judicial-administrative action.10 Experience, however, led to giving up of the doctrine of disappearance of law. It became the Soviet doctrine that while the dictatorship of the proletariat is a power unrestrained by any laws yet it uses laws as an instrument of government.11 Unrestrained dictatorship of the proletariat, using laws as an instrument of government, puts as an end simply enforcing the will of the dictator for the time being. Nothing more need be said about this as an ideal.

As for the Marxian idea of disappearance of law as not needed under communism, as argued by Paschukanis, all human experience shows that men will fight for their honor at least as much as for the contents of their pocketbooks. It shows that man will fight for his belief no less than for his life and limb and for his honor. The history of religious wars refutes the idea that property is the sole cause of strife. The pious folk who colonized America, and braved the hardships of the wilderness, starvation, and the hostility of savage tribes in order to be able to worship God according to their consciences, gave us a sufficient answer.

It is worth while to notice how jurisprudence has, as one might say, experimented with successive analogues. (1) First, the Greek philosophers used the analogy of the order of physical nature. (2) The scholastic theological philosophers used the analogy of the legislation of Justinian, and thought of divine legislation for the universe of which human lawmaking and application of law were to be a reflection. (3) The rationalists used the analogy of deducing the properties of a triangle from a limited number of axioms. (4) The metaphysical-historical jurists used the analogy of embryology; of the development of a complex organism from a simple embryo through some energy from within. (5) The positivist sociologists used the analogy of the revolutions of the planets in orbits calculable through mathematics. Instead of these sociological jurisprudence turns to analogies which do not postulate determinism and yet remind us that what we do in law is conditioned by many things.12 Accordingly, I have urged an “engineering interpretation” of legal history, using the term “engineering” in the sense with which industrial engineering has made Americans familiar. I have suggested thinking of jurisprudence as a science of social engineering, having to do with that part of the whole field of social control which may be achieved by adjustment of human relations and ordering of human conduct through the action of politically organized society.13 It is an organized body of knowledge with respect to the means of satisfying human demands and expectations, securing interests, giving effect to claims or desires, with the least friction and waste, so far as these things can be brought about by the legal order; whereby the means of satisfaction may be made to go as far as possible. It is the task of the social sciences to make this process of satisfying human demands and expectations, of giving effect to human desires, continually less wasteful. They seek to find out how to make this process go on with less friction and to satisfy more effectively a greater total of human demands. As one of the social sciences jurisprudence has for its field to discover what part of this task may be achieved or furthered by the legal order and how. The philosophical jurists of the nineteenth century were not at all in error in thinking of a task of reconciling or harmonizing. Indeed that conception is not the least of Kant’s contributions to the science of law.14 But they did not think of a process. They sought for a universal abstract reconciling or harmonizing, where today we conceive of a process giving no more than compromises or adjustments, valid (because effective) for the time and place.

I shall take up the idea of civilization and the idea of social engineering in this lecture. A recent idea beginning to appear in the development of legal rules and doctrines, which for want of any name generally attached to it I call the humanitarian idea, will require a lecture for itself.

Civilization as the idea from which to start in the social sciences is a proposition we owe to Kohler.15 Josef Kohler, Professor at Berlin, 1888 to 1919, had exceptional qualifications as a philosopher of law because of all round knowledge of law and acquaintance with problems of the legal order. He was for a time Amtsrichter a term for which we have no English equivalent, but for which the English county court judge as he was before recent extensions of his jurisdiction is not far from comparable. Next he was a Kreisrichter or superior judge of first instance. He became professor at Würzburg in 1878, going after ten years to Berlin. His teaching and writing covered a wide field, Roman law, primitive law, in which he became a recognized authority, specialized branches of modern law such as the history of criminal law, patent law and bankruptcy (on each of the two last he wrote standard texts) and the German Civil Code which took effect in 1900, on which he wrote a commentary. Finally in 1904 he turned his attention to philosophy of law. As I have said of him elsewhere, he came nearer than any one else in modern times to taking all law for his province. Four achievements to his credit and to the school of Neo-Hegelian social philosophical jurists which he founded are significant: (1) The theory of law as the product of the civilization of a people, (2) the theory of the relation of comparative legal history and the philosophy of law, (3) the theory of sociological interpretation and application of legal precepts, and (4) the method of formulating the jural postulates of the civilization of the time and place. The four are closely connected and in a measure the three last turn on the first. But our concern here is with the first and the fourth.

Fifty years ago there was a general tendency to say that law was relative. But relative to what? Kohler answered that it was relative to civilization and that laws were relative to the civilization of the time and place. While there was no body of universal institutions, doctrines and rules, good for all peoples, times and places, there was a universal idea—civilization. Law had a fundamental quest—“the furthering of civilization through a forcible ordering of things.”16 But it was not only a means of maintaining civilization, it was a product of civilization. Hence law had to be looked at in three ways: (1) As to the past, as a product of civilization; (2) as to the present, as a means of maintaining civilization; (3) as to the future as a means of furthering civilization.17

By civilization he meant the most complete possible social development of human powers;18 the most complete human control over both external or physical nature and over internal or human nature.19 At first sight this looks like the doctrine of the Krauseans. Lorimer saw as the ultimate object of jurisprudence the attainment of human perfection.20 Ahrens held that the individual was perfecting himself and the law kept others off so that he might do so.21 To both the individual was the organ of humanity. Humanity was perfected by the individual perfecting himself. To Kohler there was an idea of civilization at work, not simply an aggregate of individuals each for himself. A whole people was striving to develop its powers to the utmost. A comparison with the nineteenth-century idea will tell the story. If we are only to keep the peace while each individual prosecutes his quest of perfection for himself and in his own way, we come to Spencer’s denunciation of sanitary laws and factory acts. Indeed, as Kohler saw it, each and all are developing a whole people, even the whole race, by social control, particularly by political and legal institutions which express and are designed to maintain and further civilization as men understand it in the time and place.

In an ideal of raising human powers to the most complete unfolding, of bringing about the maximum of human control over both external nature and internal nature, two factors in achieving that control have to be seen: free individual initiative, what the nineteenth century insisted on, and cooperative, ordered activity. If we are to maintain and go forward with and hand down control over nature neither may be left out of account. We are not bound to believe that only one of the two can be the ideal or part of the ideal. By recognizing individual freedom in our picture of what we seek through law we are not bound to exclude coordinated, cooperative, even in no small measure regimented action, nor on the other hand because we recognize cooperation as a factor in civilization are we bound to give up all that we achieved in the nineteenth century in working out a system of individual rights or what was achieved through and since the Puritan Revolution toward securing individual freedom. Here again we have an antinomy such as Radbruch saw as between the ideal relation among men, the ideal development of individual character, and security, and have the perennial problem of balance. Those who complain of the vagueness of the idea of civilization can make the same complaint wherever balance is called for.

As to the method of formulating jural postulates of the civilization of the time and place, the starting point is that the idea of civilization is not one of something fully developed and admitting of detailed formulation in precepts of universal application. As control over physical nature and over human nature develop differently and in different degrees in times and places, the presuppositions of civilized life will differ also from time to time and from place to place. In the Middle Ages in western Europe life in society presupposed relations of protection and service and the beginnings of English common law were built up on or around the idea of relation. It was presupposed that men were in relations involving reciprocal rights and duties. Laws were shaped by or grew up to the exigencies of a social organization of that sort. In the sixteenth century the opening up of wide opportunities of acquisitive activities shaped the law to ideas of liberty which such a society presupposed. The rise of trade and commerce in the seventeenth century brought about a civilization which presupposed the security of transactions and the law of contracts developed accordingly culminating in the proposition of the French Civil Code in 1904 that the making of contract is a legislative act. The parties make laws for themselves governing their relations which the courts can no more alter than they can alter legislature-made laws.22 After the industrial revolution an industrial society presupposed expectations on the part of employees in the relation of employer and employee. In America, transition from a rural agricultural to an urban industrial society has led to an expectation of a vested right in their jobs on the part of employees which was quite out of line with the ideas of the eighteenth and nineteenth centuries but is now given effect by legislation and judicial decision throughout the English-speaking world. As a general proposition, a legal right is conferred consciously and intelligently as a recognition of reasonable expectations, or what are believed to be reasonable expectations of civilized life. Finding out what these presuppositions are in the time and place and measuring the law of the time by them, realizing that such presuppositions change with changes in society, is a very different thing from setting up universal abstract propositions of natural law and making the basis of criticism and of lawmaking for all time.

Civilization, whether thought of as fact or as idea, is a good starting point for the social sciences. It is said to be the raising of human powers to their highest possible unfolding, or as I put it above, the achieving the maximum control over external or physical nature and over internal or human nature of which man is capable. Thus there is a process, a condition to which the process has brought us thus far, and an idea of the process and of the condition to which the process leads. But this way of putting it is perhaps too much in the manner of Hegel for the present generation. Let us say then the development of human powers to constantly greater completeness. Even if there are intervals of retrogression, they have been followed by recovery and further advance, so that the history of mankind, looked at as a whole, shows a constant increase in human control both of external and of internal nature. The enormous increase in control over physical nature attained in the past hundred years, in which so much has been gained that one hesitates to say that anything which mankind strenuously seeks to do is impossible, may justify us in thinking, if indeed we can comprehend it, of complete control. At any rate, it is enough to think of the most complete control over external or physical nature which men are able to attain for the time being. They can still look forward to carrying the process on, even if it is to take as long to realize some detail of control as it took from Daedalus to Orville and Wilbur Wright to make good the dream of conquest of the air. This is as true of one side of civilization as of the other.

These two sides of civilization are interdependent. If it were not for the control over internal nature, which men first achieved, they could have done little toward the conquest of physical nature. If men had to go about armed and in constant fear of attack, if it were not a postulate of life in civilized society that men must be able to assume that others will commit no intentional aggressions upon them, and if it were not a further postulate that those who are engaged in any course of conduct will carry it on with due care not to cast an unreasonable risk of injury upon their fellow men, it would not be possible to carry on the research and experiment and investigation which have made possible the harnessing of so much of physical nature to man’s use. But without the control of physical nature which has been achieved it would not be possible for the enormous populations which now occupy the earth to maintain themselves. Thus the control over internal nature has enabled man to inherit the earth and to maintain and increase that inheritance. The social sciences have to do with this achieved mastery over internal or human nature. They organize knowledge of what it is, how it has come about, and above all how it may be maintained, furthered, and transmitted.

It has been usual of late to contrast personalism and transpersonalism,23 or as it is more commonly put, individualism and socialism, as exclusive alternatives and hence many have conceived of the increasing emphasis upon civilization values as a movement toward collectivism. But it has no absolute relation to the controversies between adherents of an atomistic and advocates of an organic conception of society. It is not necessary to make an out-and-out choice once for all between nineteenth-century abstract individualism and nineteenth-century orthodox socialism as inevitable alternatives. It is not necessary to make a thoroughgoing choice, once for all, between, on the one hand, looking at all things from the standpoint of the values in terms of personality value—and, on the other hand, looking at all things from the standpoint of organized society—reckoning personality values and civilization values in terms of community values or political values. It is quite as possible to reckon both personality values and community values in terms of civilization values. Everything that is not abstract individualism is not therefore socialism in any but a propagandist sense of that term. To lump the reckoning in terms of civilization values with the reckoning in terms of community values under an epithet of socialism is superficial. They are quite as distinct from each other as each is distinct from the abstract individualism of the last century. If nineteenth-century abstract individualism carries on the abstract individualism of the law-of-nature school, yet it does go on an organic basis. And if nineteenth-century socialism has a Hegelian philosophical pedigree and a historical juristic pedigree, yet it conceives of the end of law in terms of abstract individualism. The first and second of the three standpoints might with equal truth be lumped as “individualism.” Individualist and collectivist or socialist were at one in the last century as to the highest good. Each strove for political and legal institutions which would promote the greatest and freest self-assertion. The one sought it through a regime of political and legal hands off. The other sought it through a regime of all-embracing legal and political action. For, as has been said, the orthodox socialism of the last century was in effect a social individualism. It sought a maximum of free individual self-assertion through a maximum of collective action as orthodox individualism sought it through a minimum of collective action.24 When individual self-assertion becomes means rather than end, we have something which is neither “individualism” nor “socialism,” as those terms got their settled application in the last century, but a distinct tendency more and more characteristic of the present century.

As said in another connection, the method of formulating the jural postulates of the time and place is a means of making the idea of maintaining and furthering civilization practically applicable to the problems in the legal order in a time and place. The postulates are arrived at by study of the law of the time and place to find what its institutions and precepts and doctrines presuppose as being required by the received picture of the ideal relation among men and study of the formulated postulates as to whether they express that picture. As the received picture changes, more here and less there, or more rapidly here and more slowly there, the postulates have to be raised and added to or amended. The postulates are relative to time and place because they are relative to changing conditions and situations in life for which law is devised and to which it must be continually adapted if it is to achieve its end. Hence they are not universal formulations of what it is considered a legal order must presuppose, nor universal formulations of what a given legal order or all legal orders ought to presuppose. As will be seen presently some jural postulates of Anglo-American law of the nineteenth century have stood fast at least since the classical Roman jurists of the third century. Others which seemed settled in the juristic thought of the nineteenth century can no longer be demonstrated for the actual legislation and judicial decision of today. It would be a rash undertaking to show that any postulate of those which were presupposed by nineteenth-century law are to be held necessary postulates of law even for the next century. If there is any that has stood fast from Roman law, where, indeed, the whole of the actual law did not conform to it, it is that in civilized society men are entitled to assume that men will make good the expectations created by their promises. Natural law from the Greek philosophers assumed this. Roman jurists came to putting all but the whole law of contracts in accord with it. In the fourth century the church announced it as a proposition of Christian morals. In the seventeenth and eighteenth centuries it was made the basis of generally accepted theories of the binding force of positive law. At the beginning of the nineteenth century it was put in emphatic words in the French Civil Code. Today the law everywhere is moving away from it.

Professor Stone considers that there are four difficulties in the method of formulating jural postulates of the civilization of the time and place in that its “perfect operation” assumes four things: (1) A clearly defined civilization in space—“the civilization area”; (2) a clearly defined civilization in time—“the civilization period”; (3) the possibility of finding one set of postulates which will explain substantially all the de facto claims in the particular civilization area at the particular civilization period; (4) the availability of human minds at each time and place adequate for the tasks of framing the postulates.25

But is it not a good deal to ask of any juristic method that it be equal to “perfect operation” even if perfect operation of a juristic method could be perfectly defined? The analytical method of the English analytical jurist was capable of perfect operation in the sense that the whole body of the law could be laid on the analytical bed of Procrustes and adjusted thereto by the method of Procrustes. The jurisprudence of conceptions of the Pandectists was capable of perfect operation in what Jhering called the heaven of juristic conceptions.26 How perfectly it could operate was illustrated when an American law teacher taught that if a person stood on the street corner and signaled the operator of a tramcar to stop, it was an offer, which the operator accepted by stopping, thus making a contract, which the offeror broke if he then changed his mind and walked off.27 In law (in the sense of the legal order) we are dealing with a practical activity.

I agree that we cannot fix the “civilization area” of a type of civilization by sharply defined boundaries on the surface of the earth. There may be for some purposes such uniformity in the expectations of life in civilized society in Great Britain, the United States, Canada, Australia, and New Zealand, while on the other hand there may conceivably be some variations of detail if we take up the United States state by state, north and south, and east and west. When we find fixed precepts or doctrines extending over a whole jurisdictional geographical area it may be practically important to consider the expectations of civilized life in the different local jurisdictions. This is what the Declaration of Rights of the Continental Congress in 1774 meant by limiting their claim to the benefit of English statutes to those found applicable by experience to “local and other circumstances.”28 A federal polity takes care of this by leaving to local self-government a large margin for varying local degrees of development.

As to “civilization period” in a sense there is a continuous growth which cannot be arrested at some one point so that postulates can be formulated exactly for, let us say, even a whole century. In a sense law is always in transition just as is the life it governs. But the thirteenth, the eighteenth, and the nineteenth centuries in England, and the nineteenth century in the lands peopled from England, are reasonably well marked civilization periods. No one has seriously supposed that at midnight on December 31 of the last year of a century a civilization period definitely comes to an end and a new period is full fledged on January 1 following. Maitland warns us that when we tell the story of a bit of history we tear a seamless web. But to tell the whole exactly as it happened would take as long to tell as it took to happen.

As to the difficulty of finding one set of postulates which will explain substantially all the de facto claims at a particular civilization period, on any theory claims and expectations have to be classified. On Kohler’s theory the task of the jurist is to find and formulate the jural postulate behind each class. His difficulty will be as to claims and expectations being newly urged and so pressing on the legal order for recognition. The current law reports will show those which are brought before the courts. For the rest reports of legislative committees, debates in the legislatures, in America the proceedings of all manner of professional, trade, labor and civic organizations, and abundant surveys and investigations under both public and private auspices, are available to show what the jurist must be thinking about. The task of applying an absolute measure of values, when discovered and demonstrated, to each of a multiplicity of conflicting and overlapping claims and demands will not be more easy.

It is said that an absolute element creeps into the method of jural postulates. But it must be said also that a relative element has in the past stood out as controlling in the absolute measures in the past. No doubt one will think with relation to some end or purpose. But it need not be made inexorably a universal end with fixed definition and details. I can think of civilization as the maximum of humanly attainable control of both physical and human nature without assuming some defined maximum as the most of which humanity may prove capable. I can conceive of maintaining the control now attained and furthering increase of that control without feeling bound to go further and lay down dogmatically how far the increase may or can or ought to go. We are told that there is need of weighing the postulates by an absolute measure. In Kohler’s theory they are weighed in terms of the idea of civilization—a growing measure in that respect like Stammler’s natural law with a changing or growing content. The absolutes by which jurists have measured in the past have been idealizings of the social or economic or legal order of the time, drawings of pictures to the lines of these orders as they were brought up in them, and so have gone no further than the received picture of the end of law for the time being.

In 1910, after eleven years of teaching jurisprudence from the analytical and metaphysical standpoints of the nineteenth century, and some years of teaching law during which I had tried to use Spencer’s scheme of eight natural rights deduced from his Kantian “law of equal freedom,” I tried my hand at formulating five jural postulates with a corollary of one as the jural postulates of the nineteenth-century Anglo-American law which I had been taught. These were afterward published with some revision of the wording in 1922,29 in 1942,30 and in 1943.31 As an example of method, let me set them forth with some comments.

First I put this: In civilized society men must be able to assume that others will commit no intentional aggressions upon them. An Irish jury in a prosecution for manslaughter is said to have asked the trial judge whether a man who had a weak spot in his skull did not have a right to get killed if he went to the pig fair. Whatever experience might have taught the Irish jury to expect at the pig fair, experience had taught us in the last century that we might go to the county fair with a reasonable expectation of not being hit on the head with a blackthorn cudgel. Mark Twain said that the Leatherstocking Tales [ought] to be called the “broken twig tales” because at the crisis of a story some one always stepped on a broken twig and then the Iroquois fell upon him. In civilized society of today one does not have to keep below the sky line or avoid stepping on broken twigs. Our everyday life presupposes freedom from intentional attack. Again, it is a presupposition, a jural postulate of civilized society that those who are carrying on some course of conduct will do so with due care not to cast an unreasonable risk of injury upon others. So we cross the street in reasonable expectation that no one will be driving against the lights and run into us. Third, it is a jural postulate that men must be able to assume that those with whom they deal in the general intercourse of society will act in good faith, and hence will make good reasonable expectations which their promises or other conduct reasonably create, will carry out their undertakings according to the expectations which the moral sentiment of the community attaches to them, and will restore specifically or by equivalent what comes to them by mistake or unanticipated situation whereby they receive at another’s expense what they could not reasonably have expected to receive under the actual circumstances. It should be noted that the last clause as to restitution was not regarded as anything for the law to insist upon in the stage of the strict law and represents a development of control over internal nature in the stage of equity and natural law.

A further postulate underlies the law of property. It was not hard to formulate this in the last quarter of the nineteenth century. Spencer defined two natural rights, a right of property and a right of incorporeal property, each involving a legal right of possessing, a legal right of excluding others, a liberty of using, a liberty of enjoying the fruits and avails, and a liberty of abusing or destroying, and a power of disposing. Thus there was general agreement that life in civilized society involved full control over things which the social and economic order recognized as owned by individuals.32 In 1910 I could formulate a postulate thus: In civilized society men must be able to assume that they may control for beneficial purposes what they have discovered and appropriated to their own use, what they have created by their own labor, and what they have acquired under the existing social and economic order. Of the three categories the two first were thought of by Roman jurists as “natural.” But they have very little importance in American law of today. Taking of wild game, appropriation of abandoned or lost chattels, and prospecting for minerals on the public domain are about all that is left of the one, and game laws have greatly restricted the first item. Revival of the whaling industry may preserve for it some importance. As to creation by labor, the minute division of labor in industry precludes reasonable expectation of ownership, for example, of an automobile where the iron ore was scooped out from privately owned land by excavating machines manned by one set of laborers, shipped in boats manned by another, transported to the steel mills by a third set, made into motor cars by a fourth, and the cars transported to market by rail by a fifth, all of these laborers, however, paid for their labor. Yet there is still one case, growing in importance in recent years, namely, literary property, to which natural title by creation is applicable. What is more significant is the qualification of control to exercise for beneficial purposes.

In the present century great changes have gone on with respect to the incidents of ownership. There have been increasing limitations of the liberties of use, of enjoyment, and of abuse or destruction, and limitations of the power of disposing. In America it was taught until the second decade of the present century that an owner of land could dig a well on his land for the sole purpose of intercepting percolating water and dry up the well of his neighbor without having any use for or making any use of the water himself.33 Also it was taught that an owner who did not like his next-door neighbor could build a fence eight feet high on his side of the boundary line and paint the side next to the neighbor in a hideous camouflage design with no other purpose of this exercise of his liberty of use than spite.34 But already in the last quarter of the nineteenth century some American courts had balked at the spite well and spite fence.35 The older French law had gone on a theory of “free exercise of rights.” But French jurists worked out a doctrine of “abusive exercise of rights” and saw that the right (or shall we say liberty) ended where the abuse began.36 The German Civil Code, adopted in 1896 to take effect in 1900, expressly forbade the use of property for the sole purpose of injuring another.37 By the present century American judicial decisions had moved slowly in the same direction. But the question was still hotly debated in 1909.38 Today legislation and judicial decision have done away with the spite well and the spite fence. It took longer to bring about a change of front as to surface water and to restrict taking out of percolating water to reasonable use. As late as 1911 a leading text could tell us: “The spirit of the English law is now to leave the parties alone; of the American law it is, on the one hand, to permit a reasonable use of land by all, and, on the other, to prevent an excessive use by any.”39 Today a principle of reasonable use has superseded the old idea that the owner of the surface may do as he pleases.

Legislation has come to extend the doctrine of reasonable use of land in many directions. One is limitations as to building proceeding not on the social interest in the general security but on a newly recognized social interest in aesthetic surroundings.40 In the United States courts and legislatures long engaged in a sharp struggle over billboard laws and laws against hideous forms of outdoor advertising.41 A like controversy went on over town planning.42 But by 1940 it could be said that a policy favoring the aesthetic was established as reasonable and constitutional as against the owner’s liberty of use.43 Indeed a Canadian writer was willing to have a land owner forbidden to cut down for profit a clump of trees on his land which provided the tourist a beautiful view of the Dominion capital,44 while an American writer thought it probable that we shall eventually make provision by legislation that the houses along certain residence streets shall conform to the artistic sense of the community as expressed by an administrative agency.45 Hood could no longer write of Englishmen and Frenchmen that “nature which gave them the grout only gave us the gout.” Some of the legislative restrictions are based on a social interest in the conservation of social resources, the expectation involved in life in civilized society that the goods of existence will not be wasted; that the means of satisfying human expectations will be made to go so far as possible. Hence there is a recognized policy that acts and courses of action which tend to diminish those goods be restrained. An example of restricting the owner’s liberty of enjoying on this ground may be seen in the case where the Supreme Court of the United States upheld a statute denying the owner of land a liberty of taking out natural gas to make lampblack where the gas could be used for heat and light by municipalities.46 In the same direction there has been a progressive tendency to restrict the liberty of abusing or destroying which the last century attributed to owners. Whereas in 1910 it was debatable whether limiting the presupposition of control by the owner to purposes beneficial to him was reasonable, it is now taken for granted that we presuppose only a control compatible with social interests such as in aesthetic surroundings and in the conservation of social resources.

A power of disposition was regarded by philosophers of the last two centuries as involved in the very idea of ownership. Ownership could not be conceived of without this incident. But here, too, in the stage of socialization of law in the present century there have come to be many significant restrictions. Some are: A requirement in most states that in order to make a valid conveyance of the family home the wife must join even though it is the separate property of the husband;47 legislation in some states requiring that the wife join in a mortgage of the household furniture by the husband even though it may be his separate property;48 legislation in some states requiring that the wife join in an assignment of the husband’s wages.49

A fifth postulate may be put thus: In civilized society men must be able to assume that others who maintain things or employ agencies, harmless in the sphere of their use, but harmful in their normal action elsewhere, and having a natural tendency to cross the boundaries of their proper use, will restrain them or keep them within their proper bounds. As a corollary of the first postulate I have added: One who intentionally does anything which on its face is injurious to another must repair the resulting damage unless he can (1) justify his act under some social or public interest or (2) assert a privilege because of a countervailing individual interest of his own which there is a social or public interest in securing.

Both the fifth postulate and the corollary were long highly debatable and hotly debated. Sixty years ago the weight of American judicial authority denied that there could be legal liability other than under the first and second postulates. But in the urban industrial society of twentieth-century America our civilization presupposes better guarantee of the general security than liability to repair injuries due to fault. The fifth postulate came to express what is now secured by the law everywhere. The corollary of the first postulate was denied as late as 1914. But it expressed what the law had long been moving toward and is now clearly behind our common-law theory of liability.

Professor Stone had no difficulty in showing that I have modified more than once my formulation of the jural postulates of the civilization in the United States in the last third of the nineteenth century which were reflected in Anglo-American law of that century.50 But the latter part of that century and beginning of the present century was an era of transition from a predominantly rural agricultural to an increasingly urban industrial society. As to one side of civilization that era has seen the coming of the telephone, of electric light and power, of wireless transmission of messages, of the gas engine and automobile transport, of streamlined cars doubling the speed of all vehicles, of air transportation making not only every part of the country but every land the near neighbor of every other, of radio and television, and now the beginnings of a development of atomic energy the results of which no one can foresee. All this has made enormous demands upon the other side of civilization, control over internal or human nature. Moreover that side of civilization in the United States has been profoundly affected by the development of great metropolitan centers and disappearance of the frontier and the pioneer. There are metropolitan centers, economic and social even if not in form political units which in areas less than that of a state in our formative era, have each a population exceeding and infinitely more varied than that of the original thirteen states. Great cities and the social and legal problems to which they give rise are of the last third of the nineteenth century and, indeed, the pressing problems do not begin to be acute till the last quarter of that century. The balance of population between country and city did not shift till the present century was half over. In the meantime a change in men’s attitude toward property and promises and duty to respond for injuries suffered by others went on for some time beneath the surface and began to go on conspicuously from the third decade of the century. Jural postulates of an era of transition are not readily discovered and I have not tried to formulate them. Until the change to a distinct civilization era is complete formulation could hardly be profitable. We can see what was presupposed by the civilization of an era on which we can look back as complete for the time being. We can see how the jural postulates of that civilization are reflected in the legal institutions and precepts and doctrines which it has left to us. We can see how those postulates are ceasing to be those of the times and places in which we are living and seek to understand those times as well as we may in an era of transition without expecting to lay down final formulations.

Much of what I have suggested elsewhere as to revised or additional postulates51 belongs to what I have called the humanitarian doctrine which will be taken up in a later lecture.

Thus far we have canvassed the different theories of the end or purpose of law which have served to provide the ideal element which makes the legal order tolerable. What we are to take as the ideal end or purpose of the legal order is an ultimate question for philosophy of law. But there is nothing in experience or in the history of philosophical jurisprudence to justify expectation of converting all men or even all jurists to some one necessary philosophical version of the highest good or some one absolute and unchallengeable measure of values. Certainly jurists cannot be expected to stand by and await the result of philosophical debate or to choose some one of the theories of the moment at their peril. Men have always differed profoundly and so far as we can see ahead are likely to differ profoundly as to the theory and details of a measure of valuing their claims and desires and expectations. Indeed it is largely because they cannot agree on this measure that we must have positive law. As Llewellyn has shown us, if conflicts of individual expectations are not adjusted unsettled controversies tend to break up the social group and “tensions left alone tend to explosion.”52 In the nineteenth century, jurists came for the most part to agree on a conception of the end of law which was consistent or made to consist with the diverse philosophical starting points of the time. But the conception had not been thoroughly worked out before the law began to grow away from it. Perhaps one can do no more in our task of a working guide for a practical activity than seek a juristic conception of the end of law consistent with the dominant philosophies of today and at the same time consistent with modern psychologies. But here again there are fundamental differences not likely soon to be settled, for the solution of which the law cannot wait. What has to be done, consistently with many philosophical approaches and with current psychologies, so far as may be, is to adjust, harmonize, reconcile conflicting or overlapping human demands, desires, expectations in the crowded world of today. William James has shown us how this task may be put in terms of an ethical theory. He says:

“After all, in seeking for a universal principle we inevitably are carried onward to the most universal principle—that the essence of good is simply to satisfy demand. . . . Since everything which is demanded is by that fact good, must not the guiding principle for ethical philosophy (since all demands conjointly cannot be satisfied in this poor world) be simply to satisfy at all times as many demands as we can? That act must be the best act, accordingly, which makes for the best whole, in the sense of awakening the least sum of dissatisfactions. In the casuistic scale, therefore, those ideals must be written highest which prevail at the least cost, or by whose realization the least number of other ideals are destroyed. . . . The course of history is nothing but the story of men’s struggle from generation to generation to find the more inclusive order. Invent some manner of realizing your own ideals which will also satisfy the alien demands—that and that only is the path of peace!. . . Though some one’s ideals are unquestionably the worse off for each improvement, yet a vastly greater total number of them find shelter in our civilized society than in the older savage ways. . . . As our present laws and customs have fought and conquered other past ones, so will they in their turn be overthrown by any newly discovered order which will hush up the complaints that they still give rise to without producing others louder still.”53

Juristic thought is evidently in transition to some new idea of the end of law. The immediate direction seems to be toward seeking to satisfy the maximum of the whole scheme of human desires (or wants or demands or expectations) so far as it may be done through the legal order without too much sacrifice.

William James tells us that there is a continual search for the more inclusive order. This is illustrated by the history of ideas as to the end of law. Thinkers have gone behind an idea of the past to a more inclusive one. At first they thought of the end as keeping the peace. But why keep the peace? It seemed to be for the purpose of maintaining the social order. Hence the end was taken to be orderly maintaining of the social status quo. But why maintain the social order? Because to do that makes division of labor possible and so sets us free to exert our natural faculties—to do things. Hence the end was held to be promoting the maximum of free individual self-assertion. Yet why leave us free to do things? Because freedom to do things is a strong human desire, or want, or demand. Thus we come to the idea of a maximum of satisfaction of human desires or wants. Men wish to be free, but they want much besides. What we have to do in social control, and so in the legal order, is to reconcile these desires, or wants, so far as we can, so as to secure as much of the totality of them as we can. Down to the present that is the more inclusive order.

We come then, for the time being, to an idea of satisfying the expectations involved in life in civilized society. With that we might compare Stammler’s substitute for Kant’s theory of justice. Kant sought to give the maximum effect to individual wills. Stammler propounds a doctrine of comprehending all possible ends.54 These ends seem to be the desires or wants of which William James speaks.

One of the Justices of the Supreme Court of the United States, dissenting from the judgment of that Court in the Arizona Employers’ Liability Cases,55 told us that there was “a menace in the. . . judgment to all rights, subjecting them unreservedly to conceptions of public policy.”56 Undoubtedly if certain legal rights were definitely established by the constitution there would be a menace to the general security if the court which must ultimately interpret and apply the provisions of that instrument were to suffer state legislature to infringe those legal rights on mere considerations of political expediency. But it was the ambiguity of the term “right,” a word of many meanings, and want of clear understanding of the significance and meaning of the obscure conception of “public policy”—i.e., what the law seeks to achieve through that conception—that made it possible to think of a decision upholding an Employers’ Liability Law in such a way. The “rights” of which Mr. Justice McKenna spoke were not legal rights. They were individual wants or claims or demands, that is individual interests, which he felt ought to be secured through legal rights or through some other legal machinery. In other words, there was, as he felt, a policy of securing these interests. The constitution did not set up these or any other individual interests as absolute legal rights. It imposed a standard upon the legislator. It prescribed that if he trenched upon these individual interests he must not do so arbitrarily. His action must have some basis in reason, and that basis must be the one upon which the Anglo-American common law has always sought to proceed, the one implied in the very term “due process of law,” namely, a weighing or balancing of the various interests which overlap or come in conflict and a rational reconciling or adjustment. Thus the public policy of which Mr. Justice McKenna spoke is something at least on no lower plane than the so-called rights. As he used the latter term it referred to individual interests which it was felt ought to be secured by law. As he used the former term he referred to social interests which it is felt the law ought to or which in fact the law does secure in delimiting individual interests and establishing legal rights. There is a policy in the one case as much as in the other. The body of the law (in the second sense of the term law) is made up of adjustments or compromises of conflicting individual interests in which we turn to social interests; under which each may be subsumed, to determine the limits of a reasonable adjustment. In the end there is an adjustment of the individual interests, the claims or demands or expectations asserted in title of the individual life, on the basis of adjustment of the wider claims or demands or expectations asserted in title of social life in civilized society. The measure of delimitation for purposes of the adjustment is found in an ideal of the society of the time and place or an ideal of civilization as understood in the time and place.

Perhaps an integration of the two ideas I have been considering might be put thus: The end is promoting, maintaining, furthering civilization. The means is social engineering.

[1. ]Sinclair v. Brougham [1914] A.C. 398, holding that an incorporated society unjustly enriched in an innocent ultra vires transaction cannot be held to make restitution because a contract for restitution cannot be implied where no express contract to borrow for the purpose for which money was borrowed could be valid.

[2. ]See Pound, The New Feudalism, 10 American Bar Association Journal, 553 (1930).

[3. ]Radbruch, Rechtsphilosophie (3 ed. 1832) 119; Horvath, Rechtssoziologie (1934) §§ 27–32; Timasheff, What Is Sociology of Law, 43 American Journal of Sociology (1937) 225; id. Introduction to the Sociology of Law (1939) chap. 14.

[4. ]Picard, Le droit pur (1899) § 186. See Pound, Social Control Through Law (1942) 126–32.

[5. ]Duguit, L’état, le droit objectif, et la loi positive (1901) chaps. 4, 5; id. Le droit social, le droit individuel, et la transformation de l’état (2 ed. 1911) lect. 2.

[6. ]Kohler, Lehrbuch der Rechtsphilosophie (2 ed. 1917) 11; id. Einführung in die Rechtswissenschaft (1901) § 3.

[7. ]“Law will wholly disappear with the abolition of classes and their opposing interests.” Where there are no conflicting interests to be adjusted there is no need of law. Paschukanis, Allgemeine Rechtslehre und Marxismus (1929) Intr. and chap. 4.

[8. ]Lundstedt, The General Principles of Civil Liability in Different Legal Systems, 2 Acta Academiae Universalis Jurisprudentiae Comparativae, 367, 371, 407.

[9. ]Paschukanis, Allgemeine Rechtslehre und Marxismus (1929) chap. 5.

[10. ]Ibid. chap. 2.

[11. ]1 Gsovsky, Soviet Civil Law (1948) 187–92.

[12. ]See e.g., Cardozo, Paradoxes of Legal Science (1928) lects. 2, 3.

[13. ]I have discussed this in Interpretations of Legal History (1923) 150–65.

[14. ]See Immanuel Kant, by George Herbert Palmer and others (1925) 81–82.

[15. ]Josef Kohler, 1849–1919, Einführung in die Rechtswissenschaft (1902, 5 ed. 1919); Rechtsphilosophie und Universalrechtsgeschichte, in Holtzendorf, Enzyklopadie der Rechtswissenschaft (6 ed. 1904, 7 ed. 1915); Moderne Rechtsprobleme (1907, 2 ed. 1913); Lehrbuch der Rechtsphilosophie (1908, 3 ed. by Arthur Kohler, 1923) the first ed. transl. by Albrecht as Kohler’s Philosophy of Law (1914); Recht und Persönlichkeit in Der Kultur der Gegenwart (1914).

[16. ]Moderne Rechtsprobleme (1907) § 1.

[17. ]Lehrbuch der Rechtsphilosophie (1908) 1–2.

[18. ]Moderne Rechtsprobleme (1907) § 1.

[19. ]See Berolzheimer in 3 Archiv fur Rechts und Wirtschaftsphilosophie, 195–96.

[20. ]Institutes of Law (2 ed. 1880) 353.

[21. ]Cours de droit naturel (8 ed. 1892) § 19.

[22. ]French Civil Code, art. 1134.

[23. ]Lask, Rechtsphilosophie (1905) in 1 Gesammelte Schriften (1923) 277, 304 ff.; Radbruch, Grundzüge der Rechtsphilosophie (1914) 82–158; Binder, Philosophie des Rechts (1925) §§ 8, 9.

[24. ]“Socialism in all its forms leaves intact the individualistic ends, but resorts to a new method of attaining them. That socialism is through and through individualistic in tendency, with emotional fraternalism superadded, is the point I would especially emphasize.” Adler, The Conception of Social Welfare,Proceedings of the Conference on Legal and Social Philosophy (1913) 9.

[25. ]Stone, The Province and Function of Law (1946) 365.

[26. ]Scherz und Ernst in der Jurisprudenz, pt. 3, Im juristischen Begriffshimmel (1884, 13 ed. 1924).

[27. ]Beale, The Creation of the Relation of Carrier and Passenger (1906) 39 Harvard Law Review 250, 256.

[28. ]See the Declaration in Pound and Plucknett, Readings on the History and System of the Common Law (1927) 309.

[29. ]Introduction to the Philosophy of Law (1922) 169–79, 192–94. They were first published in my Introduction to the Study of Law (1919).

[30. ]Social Control Through Law (1942) 81–83, 112–17.

[31. ]Outlines of Lectures on Jurisprudence (5 ed. 1943) 168, 179, 183–84.

[32. ]Spencer, Justice (1891) chaps. 12, 13.

[33. ]Phelps v. Nowlen, 72 N.Y. 39 (1878).

[34. ]Letts v. Kessler, 54 Ohio State, 73 (1896). This case and the preceding were in the casebooks in general use in law teaching as late as 1910.

[35. ]Chesley v. King, 74 Me. 164 (1882); Burke v. Smith, 69 Mich. 380 (1888).

[36. ]Charmont, L’abus du droit, 1 Revue trimestrielle de droit civil (1901) 113; 1 Ripert et Boulanger, Traité élémentaire de droit civil (5 ed. 1950) nos. 365–66.

[37. ]Bürgerliches Gesetzbuch, § 226.

[38. ]See the opinion and dissent in Barger v. Barringer, 151 N.C. 433 (1909).

[39. ]1 Wiel, Water Rights (1911) § 744, n. 12.

[40. ]Hardman, The Social Interest in the Aesthetic and the Socialization of Law, 29 W.Va. Law Quarterly, 195.

[41. ]St. Louis Advertisement Co. v. City, 235 Mo. 99, 249 U.S. 269, 274; People v. Oak Park, 266 Ill. 365; Bill Posting Co. v. Atlantic City, 71 N.J. Law, 72; Bryan v. City, 212 Pa. St. 259.

[42. ]Village of Euclid v. Ambler Realty Co., 272 U.S. 365; Windsor v. Whitney, 95 Conn. 357; State v. Houghton, 144 Minn. 1; Piper v. Ekern, 180 Wis. 586.

[43. ]General Outdoor Advertising Co. v. Department of Public Works, 289 Mass. 149; Gardner, The Massachusetts Billboard Decision, 49 Harvard Law Review 869 (1936).

[44. ]Note in 8 Canadian Bar Review 384.

[45. ]Jenks, Governmental Action for Social Welfare, 81.

[46. ]Walls v. Midland Carbon Co., 254 U.S. 300.

[47. ]Thompson, Homesteads and Exemptions (1878) 465.

[48. ]Illinois, Laws of 1889, p. 208.

[49. ]Massachusetts, Acts of 1908, chap. 605.

[50. ]Stone, The Province and Function of Law (1946) 366–68.

[51. ]Social Control Through Law (1942) 115–18.

[52. ]Llewellyn, Problems of Juristic Method, 49 Yale Law Journal 1355, 1375–76 (1940).

[53. ]James, The Will to Believe (1897) 195–206.

[54. ]Stammler, Lehre von dem richtigen Rechte (1902, new ed. 1926) 196–200.

[55. ]250 U.S. 400, 432 (1919).

[56. ]McKenna, J., dissenting in Arizona Employers’ Liability Cases, 250 U.S. 400, 436–37.