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NINE: Class Interest and Economic Pressure: The Marxian Interpretation - 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.


NINE

Class Interest and Economic Pressure: The Marxian Interpretation

One phase of the movement away from the nineteenth-century schools near the end of that century was the economic interpretation of legal history, and so, in the reign of historical jurisprudence, economic theory of law. For a time it did not develop a distinct school of jurists, but later, under the influence of positivist mechanical sociology, Neo-Kantian relativism, and Freudian psychology, it has led to what has called itself juristic realism of a number of forms.

In this connection the terms “realist” and “realism” are used as artists use these words rather than in a philosophical sense.1 Philosophical realism held that the objects of perception were derived from higher realities or formative causes.2 The juristic realist of today would call this, as applied to jurisprudence, very unreal. In the sense in which he uses the terms, “realist” and “realism” are a boast rather than a description. Each school of jurists in its time has made a like boast. The analytical jurists spoke of the “pure fact of law.” Historical jurists spoke of their theories as founded on the “facts of history” instead of pure speculation. The metaphysical jurists considered that they began from an “unchallengeable metaphysical datum.”3 The mechanical positivists argued that they built on laws of social and legal development derived from observation and verified by further observation after the method of the natural sciences and hence as unchallengeable as the laws of physical nature.4

No doubt neo-realism is meant to be faithful adherence to the actualists of the legal order as the basis of a science of law. But a science of law must be something more than a descriptive inventory. After the actualities of the legal order have been observed and recorded it remains to see that we have observed and recorded all of them and to do something with them. For one thing must we not consider what of those actualities may be made use of in the science? We may not ignore any of them. On the contrary, we should investigate the shortcomings in the legal order and particularly in the judicial process in order to find their causes and how to eliminate or mitigate them.

What is there in the program of the extreme neo-realists which makes it one of juristic realism? They reject the ideas of the past as to juristic significance. Reason is an illusion. Experience is not the unfolding of principle. No “pure fact of law” is to be found in rules, since the existence of rules of law, as anything outside of the books, is an illusion. Nor have the phenomena of legal institutions among all peoples been observed with enough accuracy and objectivity to allow of formulations of laws of legal development therefrom. One may concede all this, indeed we must concede much of it, and yet be doubtful as to the faith in their ability to find the one unchallengeable basis free from illusion, which many, at least, of the neo-realists seem to have taken over from the illusion-ridden jurists of the past.

As in the disputes of diverse schools of jurists in the past, the difference today is one of emphasis. Received ideals, received conceptions, the quest of certainty, uniformity, and predictability, an authoritative technique of using authoritative legal materials, settled legal doctrines and modes of thought, and a traditional mode of legal reasoning are actual and everyday phenomena of the legal order. The question at bottom is whether a faithful representation of realities shall paint them in the foreground or instead shall put in the foreground the subjective features in the behavior of particular judges, the elements in judicial action which stand in the way of predictability and uniformity, the deficiencies of the received technique, the undefined edges and overlappings of doctrines, and the defects of legal reasoning. Emphasis on the fallings short of these instruments is useful in that it shows us what we have to do toward making them more effective, or toward making their workings accord better with the ends of law, or toward finding better instruments to take their place. But such critical activity is not the whole of jurisprudence, nor can we build a science of law which shall faithfully describe the actualities of the legal order and organize our knowledge of these actualities merely on the basis of such criticism. There is as much actuality in the old picture as in the new. Each selects a set of aspects for emphasis. Neither portrays the whole as it is. Critical portrayals of the received ideal element in a body of law, valuings of traditional ideals with respect to the actualities of the social and legal order of today, are as much in touch with reality, i.e., have to do with things of at least as much significance for the legal order as economic or psychological theories of the behavior of particular judges in particular cases.

As the analytical jurist insisted on the pure fact of law, the neo-realist seeks a pure fact of fact. But facts exist in a multifarious mass of single instances. To be made intelligible and useful, significant facts must be selected. What is significant will be determined by some picture or ideal of the science and of the subject of which it treats. Thus preconceptions will creep in and will determine the choice of pure fact of fact as they determined the pure fact of law of the analytical jurist. The neo-realists have their own preconceptions of what is significant and of what juristically must be. Most of them substitute an economic or a psychological must for an ethical or political or historical must.

Five types of juristic neo-realism may be distinguished: Economic determinism, psychological determinism, logical positivist realism, and phenomenological realism. There is also sometimes a combination of positivist realism with phenomenology.

These types have certain common characteristics. One is a tendency to regard everything which influences a particular judge in a particular case as a source of law. What this comes to is confusion of the judicial process in any given case with the authoritative guides to decision by which the judges at large, the legal professions, and as a general proposition the public, hold it ought to be decided, and normally in the ordinary course of things cases are decided. When these are so confused, there ceases to be any proper criterion for criticizing judicial action. Moreover, the action of the judge who decides on personal animosity in contravention of established legal precepts is likely to be set aside on appeal. In such a case we surely are not to say that each decision in its turn was law; and the animosity surely was not a source of law as to the ultimate decision. Much realist discussion goes upon the psychology of “the judge,” forgetting that ultimate determinations proceed from a bench of judges and that therein is a correction of individual eccentricities and prejudices.

Again, the neo-realists in different ways attack logic as a method of judicial decision or juristic thinking. Some of them assume legal or juristic doctrine that every judicial determination necessarily follows by a process of formal logic from an authoritatively given premise and from that only.5 They assume, what might have been taught in the reign of the jurisprudence of conceptions, that there was, expressly by legislation or by implication derivable from the traditional law, a rule of law for every case. If not in the form of a statute the rule was to be found by formal logic. But it did not need twentieth-century realists to refute such a doctrine, which, if it was ever held at all by common-law lawyers, was shown not to apply to new cases, not covered by an authoritatively formulated precept, as long ago as Austin.6 Indeed, half a century before Austin, Paley, whom Austin followed, had shown the nature of the choice between competing analogies by which judicial law finding or law making takes place.7 Others, approaching the subject from the wish-psychology, consider that logic is in truth employed after, not before, a judicial determination in order to give rational color to something arrived at upon a basis quite outside of the supposedly authoritative guides to decision.8 This proposition must be considered presently in another connection. But it, too, assumes one-judge determinations and the psychology of the postulated one judge as the controlling element. This assumption is perhaps in part attributable to biographies in which all that appears in the reports in the name of a judge is attributed to him individually. It is an easy but fallacious assumption that each decision of the bench of an appellate court is simply the product of the judge who delivered the opinion of the court.

Many of the neo-realists rely upon behaviorist psychology as the basis of attack upon logic, conceptions, principles, and any authoritative guides to decision, holding that “decision is reached after an emotive experience in which principles and logic play a secondary part.”9 Similarly legal terminology is objected to as no more than a sort of smoke screen for concealing the uncertainty attending the judicial process which is taken to be the basic feature of law.10

As a result there is a cult of the single determination, an insistence on what is held to be the unique single case rather than on the approximation to a uniform course of judicial action. No one has denied that single cases have unique features and may be in greater or less degree unique. Long ago, experience made this proposition a presupposition of Anglo-American equity, and it is presupposed wherever in the legal system we employ standards rather than rules. But it is no less true that there are common elements in cases which may or may not be significant for a particular problem or situation. The unique aspects of cases, the common aspects of them, and generalizations from the common aspects may or may not afford useful instruments to attain the ends of the legal adjustment of relations and ordering of conduct, according to the connection in which we look at them and the tasks to which we apply them. None of the three is an absolute and universal solvent. It seems to be assumed that there is no reality in rules or principles or conceptions or doctrines because all judicial action, or at times much judicial action, cannot be referred to them; because there is no definite precept by which we may be absolutely assured that judicial action will proceed on the basis of one rather than of another of two competing principles; because there is a certain no-man’s-land about many conceptions so that concrete cases have been known to fall down between them, because much may take place in the process of adjudication which does not fit precisely into the doctrinal plan. Such a view has its use as a protest against the assumption that law is nothing but an aggregate of rules.11 But nothing is more unreal, i.e., more at variance with what is significant in a highly specialized form of social control through politically organized society, than to conceive of the administration of justice, or the legal adjustment of relations, or even the legislative or judicial or juristic working out of devices for the more efficient functioning of business in a legally ordered society, as a mere aggregate of single, self-sufficient determinations. Such ideas are related to the Marxian doctrine of disappearance of law. They are part of the phenomena going along with the recrudescence of political absolutism throughout the world in the present century. They are urged particularly in America by the proponents of administrative absolutism.12

Economic interpretation began in the fifth decade of the nineteenth century when Marx applied the Hegelian dialectic to English political economy, to the theories of French historians of the French Revolution, and to his own experience of the proletarian movement. On this basis he suggested a new way of understanding history. He formulated it in 1859 in what became a much quoted passage.13 It attracted little notice for a generation, but began to be urged in 1885, and got general currency about 1890. It had much vogue on the Continent in the last decade of the nineteenth century, when it came to be applied to every form of history. It came to America in the decade from 1900 to 1910 and passed over into American juristic thought.14

An analytical form of economic interpretation was urged chiefly by Brooks Adams.15 According to this interpretation all law is made, and is made consciously, by men who make and shape legal precepts to suit the ends of the dominant social class. But these ends are determined by economics. Thus all law is the product of economic causes. Law is thought of as a conscious product of the human will. The basis of its obligation is authority. Thus far it follows Austin. But it is conceived that the will which makes laws is determined wholly by the operation of economic laws.

Brooks Adams regarded law as a manifestation of the will of the dominant social class, determined by economic motives. He asserts that ideals of justice have had nothing to do with the actual course of evolution of law or development of legal doctrines. He says that “the rules of law are established by the self-interest of the dominant class so far as it can impose its will upon those who are weaker.”16 Elsewhere he says that ideals of justice mean only that the dominant class “will shape the law to favor themselves.”17 Law, he tells us, “is the will of the sovereign precisely in the sense that the earth’s orbit, which is the resultant of a conflict between centrifugal and centripetal force, is the will of a sovereign. Both the law and the orbit are necessities.”18 He attempts to combine the mechanical sociology and the economic interpretation with analytical jurisprudence.

From the standpoint of the neo-realist economic interpretation,19 jurisprudence has to do with the ends of groups or persons who are in power for the time being and exercise the force of a politically organized society for their own economic advantage. This is an economic-realist version of social utilitarianism. Right and law are simply power. Those in power generalize their ends and put them in universal terms and thus give us rules and principles of law. This interpretation was urged in various forms by socialist jurists, especially in connection with economic determinism. It was subsequently taken up by different types of realists and by some jurists of the Neo-Kantian left.

None of the types of economic interpretation can be accepted as giving a complete account or all-sufficient explanation of the development or the content of law. None can give us more than a partial explanation of certain particular phenomena. What I have said of the historical school and must be said of the mechanical sociologists, applies also to the adherents of the economic interpretation. Their self-imposed limitations preclude a fruitful science of law. But there are three special objections to an exclusive economic interpretation in any of its forms.

In the first place, it is a theory of legislation rather than of law in the sense of the body of authoritative grounds of or guides to decision. It is an explanation of some features of the judicial and administrative processes in action rather than a theory of the legal order. It is a theory of the will element, the imperative element in the body of authoritative precepts rather than of the traditional element, the element of experience developed by reason, which plays much the larger part in legal history and is in the long run controlling in a system of law. Moreover, it is not an interpretation of that more enduring part of legislation which puts in authoritative form the legal precepts which have developed from experience and have been formulated in judicial or doctrinal tradition. It is rather an interpretation of that less important part of legislation which deals with particular details or special subjects, and lays down precepts for them arbitrarily without regard to general principles of the legal system. Roman imperial legislation extending special privileges to soldiers, the Statute De Donis, and like legislative phenomena, are put as typical of all finding or laying down of law.

Much that is vouched for the economic interpretation is legislation to maintain the social interest in the general security. For example, an oft-quoted statement by Jhering has been cited in support of that interpretation. He said: “Every state punishes those crimes most severely which threaten its own peculiar conditions of existence, while it allows a moderation to prevail in regard to other crimes which, not infrequently presents a very stricking contrast to its severity as against the former. A theocracy brands blasphemy and idolatry as crimes deserving of death, while it looks upon a boundary violation as a simple misdemeanor. (Mosaic Law). The agricultural state, on the other hand, visits the latter with the severest punishment, while it lets the blasphemer go with the lightest punishment. (Old Roman law). The commercial state punishes most severely the uttering of false coin, the military state insubordination and breach of official duty, the absolute state high treason, the republic striving after regal power; and they all manifest a severity in these points which contrasts greatly with the manner in which they punish other crimes. In short, the reaction of the feeling of legal right, both of states and individuals, is most violent when they feel themselves threatened in the conditions of existence peculiar to them.”20 It should be noted that in the Mosaic Law the motive was fear of the wrath of God against the people which harbored the blasphemer and idolater. In other words, the pressure of the social interest in the general security is a compelling force in lawmaking.

Undoubtedly there is an element of truth in the economic interpretation of legislation. One cannot look into American nineteenth-century legislation without perceiving that organized pressure from groups having a common economic interest is the sole explanation of many anomalous things in the statute books. For example, legislation allowing a lien to one who furnishes material for a building has sometimes been pushed to strange length through the activities of associations of lumber dealers.21 Credit men’s associations have procured laws against sales of stocks of goods in bulk which have sometimes gone very far,22 and have sought or procured statutory provisions as to preferred claims in bankruptcy to defeat or infringe upon the doctrines of equity as to trusts and constructive trusts.23 Organized insurers have procured legislation in more than twenty states enabling a debtor to be generous to those he wishes to favor before he is just to his creditors. The real purpose is “to magnify the more desirable aspects of life insurance.”24 Organized farmers have procured legislation against allowing weeds to go to seed on railroad rights of way wherein the farmer was left free to maintain as many weeds as he chose and let them go to seed as much as he chose.25 Again when interpleader was first made the subject of legislation governing the federal courts, the statute extended the scope of the proceeding and did away with technical limitations in the case of insurance companies, surety companies, and fraternal insurance organizations. For the rest, litigants in the federal courts were left where they were before the statute.26 Insurance companies and surety companies were organized and could urge a remedial act for their cases but were not interested in the cases of litigants generally. Another example may be seen in the state statutes enacted between 1890 and 1917 as to the defense of contributory negligence. These statutes set up a special rule, making the plaintiff’s contributing negligence a ground of reducing recoverable damages instead of a bar, in case of actions against railroads.27 It is clear enough that the statutes were shaped by pressure from unions of railway employees, pressure from those who made money out of actions against railway companies, and the antipathy of farmers toward railroads, very marked at the time and growing out of economic relations. This legislative treatment of the problem of contributory negligence should be compared with judicial treatment of the same problem. Juristic and judicial solutions had been directed toward setting up some general principle, such as comparative negligence, division of the loss, or last clear chance. The legislature made a special provision for a special type of litigant able to exert political pressure. Lord Darling spoke of such legislation as intended to relieve the members of certain organizations from “the humiliating position” of being upon an equality with the rest of the king’s subjects.28 But these arbitrary precepts, made under pressure of group self-interest, are short-lived, or else are molded into the general legal system so that they get a new shape and even a new content therefrom.

We must not forget that the administration of justice aims consciously at more than the advocates of an exclusive economic interpretation of all the phenomena of the legal order will hear of. We must take account of the extent to which judicial action is moved by the logical exigencies of a traditional system; of the extent to which it is constrained by a tradition of teaching, a traditional technique and what might be called the art of the lawyer’s craft, even against self-interest. This must be borne in mind especially when, as in modern times, the administration of justice is in the hands of profession with a long tradition of principles, a received ideal of justice, and a systematic science, in which logical deduction from received principles has become a habit. Thus the common law has proved to have a vitality demonstrated in a long series of contests with the most powerful political and economic forces of time and place.29 How completely differences of economic and social status, surroundings and associations will be effaced by training in a taught tradition is well brought out if we compare three great judges of the formative era of American law.

Lemuel Shaw (1781–1861) was a staunch Federalist. He was the son of a Congregational minister in a parish so poor that part of his salary was paid in fire wood and the balance supposed to be paid in cash was always in arrear and the arrears accumulated but remained unpaid. He was brought up in a community of farmers and fishermen on Cape Cod, was a graduate of Harvard, a school teacher and newspaper writer while reading for the bar, and lived in his maturity in the commercial environment of Boston of that day. He was a Congregationalist.30 John Bannister Gibson (1780–1853) was a Democrat of Jackson’s type. Indeed Jackson wished to put him on the bench of the Supreme Court of the United States. He was the son of a man of business in a frontier community in western Pennsylvania who lost his property in the depression after the American Revolution. He was brought up after his father’s death by his mother who had a hard struggle to maintain the family home and conducted a school in order that her children might be educated. He studied at Dickinson College but did not graduate. He practiced law in a developing community and associated while at the bar with the enterprising builders of a relatively new community. He evaded baptism.31 Thomas Ruffin (1787–1870) was a conservative Democrat, born on a plantation in Virginia. He graduated at Princeton. He was by descent and bringing up one of the landed aristocracy of the old South and in his maturity lived upon his own plantation among his fellow gentlemen planters. He was a zealous member of the Episcopal Church.32

Each of these men long dominated the highest court of an important state, from which many newer states took their legal traditions and upon their decisions those newer states built their course of decision. The marked differences in their parentage, bringing up, social environment, political and religious affiliations, and economic surroundings should, according to the economic and psychological determinists of today, have determined their judicial action decisively and so have led to three different judicial traditions. Yet they cooperated in making a consistent body of law on the basis of the tradition they had been taught in the offices of lawyers whose training (through office apprenticeship) ran back to barristers trained in the Inns of Court in England before American independence.

A second point is that the phenomena of legal history which are vouched for the doctrine of the economic interpretation do not sustain it.

A chief reliance of those who urge the economic interpretation as the sufficient explanation of every item of judicial finding of law and judicial determination of causes is “the fellow servant rule,” the rule of the common law that an employee could not hold his employer liable for injury through the negligence of a fellow employee in the course of their employment. A typical statement of the economic-interpretation thesis was made by Walter Lippman: “Under the old common law of England a workman who was injured could sue the master for damages. If he had been injured by a fellow workman’s negligence he could still sue the master because the law held the master liable for his servant’s acts. . . . In 1837 this system of law was changed in a decision rendered by Lord Abinger. After that it became the law that the master was not liable for an injury to a workingman when the injury was due to a fellow workingman.”33 There are here two wholly erroneous statements. It was not the common law of England before 1837 that an employer was liable for injury to an employee through the negligence of another employee in the course of their common employment. That question had not then arisen. If it had, it would probably have been held that an employee assumed the risk of negligence of his co-workers as an incident of what they were all doing. At any rate the law was not changed by the decision of the Court of Exchequer in 1837. But apart from the fundamental error in Mr. Lippman’s statement, others argue that the rule laid down in 1837 was an arbitrary exception to a settled principle of the common law. This assumes that respondeat superior, that the principal or master, although without fault, must answer for the wrongs done by his agent or servant, is a fundamental principle of justice and that the fellow servant rule was an arbitrary exception to it. It would be more true to say that respondeat superior was a judge-made exception to what the nineteenth century regarded as a fundamental principle of justice, namely, that liability was based on fault and that the courts refused to extend the exception. Mr. Justice Holmes,34 Dr. Baty,35 and many others have pointed out that vicarious liability is the exception to what had been taken to be the general principle, not limitation of vicarious liability the exception to the normal precept. Also those who vouch the fellow servant rule for their doctrine ignore the judicial development of encroachments on the principle of no liability without fault in order to respond to a newer idea that an enterprise should bear the human no less than the material wear and tear incident to its conduct, such as the vice-principal doctrine.36 Also they ignore the judicial working out of duties incident to the relation of employer and employee, such as the duty to furnish safety appliances, and the duty to furnish a safe place to work,37 which were responding to conditions of employment very different from those involved in the case in 1837. The courts could not have been expected to make at one stroke the radical change to the theory of workmen’s compensation. Moreover, the proponents of the economic interpretation, in arguing from the fellow servant rule, overlook the whole setting of Priestley v. Fowler,38 the case which is said to have introduced an arbitrary exception to employer’s liability. It was an action by the servant of a butcher who was injured by the overloading of the butcher’s van. The case came up on the declaration and was argued as one upon contract whether the contract of employment involved an implied duty to “cause the servant to be safely and securely carried.” The court said that the mere contract of employment could not be said to involve an implied obligation of the master to take more care of the servant than he could reasonably be expected to do of himself.39 In other words, so far from introducing an arbitrary exception that case refused to depart from established traditional lines. It should be noted also that this was not a case of a workman in a factory. The butcher and his apprentice were of the same class. The apprentice expected to become a master butcher when he had served his apprenticeship.

As to the American case of Farwell v. Boston & Worcester R. Corp.40 the case was not argued for the plaintiff as one of a general rule of liability of the master for injuries due to negligence of his servants. It was admitted by counsel for the plaintiff that Priestley v. Fowler was rightly decided on the common law. But it was argued that the engineer, who was injured, and the switchman, who was at fault were “engaged in distinct employments.”41 No suggestion was made of an arbitrary exception to respondeat superior. Moreover, the same court, in the same volume, in Commonwealth v. Hunt42 refused to depart from the common-law doctrine and hold a labor union a conspiracy, as, according to the economic interpretation, it was bound to do. In that case, to use the words of a leading exponent of the economic interpretation, the court “overthrew the sub-structure upon which a Tory criminal law against labor organizations could respectably have been established.”43 If the first decision was the formulation of the self-interest of a dominant employer class, what of the second? The same mode of juristic thought which led the court to follow Priestley v. Fowler led them also to reject a theory of conspiracy out of line with the common law. The best explanation that the advocate of the economic interpretation can give is that the court feared the people would take away the life tenure of the judges and make the bench elective if some case was not decided in favor of work-ingmen at an early opportunity.”44 The whole judicial career of Chief Justice Shaw refutes such a charge. But if Commonwealth v. Hunt had been decided the other way, it would be argued vigorously that his associates were two old-line Federalists and the appointees of the “Federalist Whigs.”

The argument from the fellow servant rule overlooks also the history of the doctrine of respondeat superior and its relation to employer’s liability. Liability for legal transactions entered into by an agent within the scope of the agency is correlative to a power conferred by the principal upon the agent. Liability without regard to fault for the employee’s torts, committed against the instructions of the employer, despite all precautions on the part of the employer and although the employer chose the employee with due care, is not correlative to a power conferred. It is conferred by law and has a historical origin. The explanation that the servant represents the master, so that what the former does must be treated as done by the latter, is a dogmatic fiction.45 The historical liability has maintained itself because of pressure of the social interest in the general security. But the difference between representation in legal transactions and representation in torts contrary to the intent of the employment has been obvious in all connections except to the partisans of the economic interpretation in discussing the fellow servant rule. “If the law went no further than to declare a man liable for the consequences of acts specifically commanded by him, with knowledge of the circumstances under which those consequences were the natural result of those acts,” says Holmes, “it would need no explanation and would introduce no new principle.” The new principle requiring explanation, he goes on to say, was introduced into the law when the master without fault was treated as if he was the wrongdoer. There was an old historical liability for the acts of those who were in the household as dependents. In the frankpledge system there was this sort of liability for the acts of others. The master was made to stand as security for the acts of his servants, to hand them over to justice or to pay the fine himself. So far was this carried that the host was liable for the tort of a guest in his house as well as for wrongs done by his servant. Thus liability of a master for the torts of a servant comes down from a primitive liability of the head of a household to buy off the vengeance of the injured person or surrender the wrongdoing dependent.46

Neither analytically nor historically was the fellow servant rule an arbitrary exception to the general common-law theory of liability. It was a refusal to extend an exception to what was accepted as that principle. As late as 1891, Mr. Justice Holmes could say that it represented “the revolt of common sense from the whole doctrine” of identification of the master with the servant “when its application is pushed far enough to become noticeable.”47 The same question came up with respect to liability of the master for punitive damages for a wanton and willful wrong done by his servant. More than one court, said Mr. Justice Holmes “impressed by the monstrosity of the result. . . peremptorily declared that it was absurd to punish a man who had not been to blame.”48 The King’s Bench had laid down in the sixteenth century that it was contrary to common right and reason to hold one who was not at fault.49 In 1804, the French Civil Code had laid down that liability was a consequence of fault and causation.50 The beginnings of a doctrine of general liability for failure to control things maintained or agencies employed came a generation after Priestly v. Fowler and two decades after Farwell v. Boston & Worcester R. Corp., and that doctrine was not generally accepted in America for at least three-quarters of a century after the latter case. What had happened was that a historical liability for those who were in the household was made into a liability for the acts of non-dependent employees in order to maintain the general security. But as to liabilities for employees today the idea has not been one of maintaining the general security. It has been one of insuring, at the expense of the one nearest at hand who could bear it and pass it on to the public, those who were in no economic position to bear loss. This is a very recent conception as to the requirements of justice, quite out of line with nineteenth-century ideas, and one which the judges of 1837 could not reasonably have been expected to grasp. At that time the idea of using litigation as a means to bring about what Professor Patten called “distribution of the economic surplus” had not occurred to any one. The fellow servant rule, properly superseded by legislation under the conditions of today, was not an arbitrarily manufactured exception to established principles set up in the interest of an economically dominant class in the fore part of the nineteenth century.51

Professor Bohlen has given an ingenious economic interpretation of the doctrine of Rylands v. Fletcher,52 namely, that one who maintains things likely to get out of hand or to escape and do damage is liable at his peril if they escape or are not kept within their proper bounds. He compared the English decisions with those in the United States.53 He says that in England the country gentleman was dominant. Consequently security of the holding of land seemed paramount to enterprise in making use of adjoining land. In the United States, on the contrary, those who were engaged actively in enterprise were the dominant class, and it seemed that the claim to use and improve land, using due care, was paramount.54 This would be well enough if the decision in the United States had uniformly rejected the rule in Rylands v. Fletcher, or if distinctions between the jurisdictions which follow and those which reject it could be shown to conform to some such proposition. The facts are that Rylands v. Fletcher was soon followed in Massachusetts.55 It was adopted by the Supreme Court of Minnesota in the following year.56 Massachusetts has generally followed English decisions as a matter of authority and at that time many American state courts were inclined to follow the decisions in Massachusetts in the same way. But the next year the question was raised in New Hampshire before Chief Justice Doe, a vigorous and independent mind, who rejected the rule on the basis of a fundamental principle of no liability without fault.57 Chief Justice Doe’s reasoning was so vigorous that for a time it was generally followed in this country. The proposition that American courts rejected Rylands v. Fletcher was announced by text writers on torts and thus added currency was given to the rejection.58 Nevertheless after a time the current set in the other way and American jurisdictions came to be not unevenly divided. The English law had been followed in Massachusetts,59 Minnesota,60 Ohio,61 West Virginia,62 Missouri63 and Texas.64 It has been rejected in New Hampshire,65 Rhode Island,66 New York,67 New Jersey,68 Pennsylvania,69 Indiana,70 Kentucky71 and California.72 It will be noticed that industrial states are on both sides of the question. Massachusetts is certainly quite as industrial as New York and Ohio as Pennsylvania. Nor can it be said to depend on whether the judges are elective or appointed. Massachusetts and New Jersey on opposite sides of the question each has an appointed judiciary. Nor can it be said that the courts are divided on sectional lines. In New England, Massachusetts and New Hampshire with Rhode Island are on opposite sides. In the Middle West, Ohio and its next neighbor Indiana are on opposite sides. In the South, West Virginia and Kentucky next adjoining are on opposite sides. The explanation is to be found rather in the weight of doctrinal considerations and the tendency of courts to follow certain others on doctrinal questions.73

Looking at the subject in another way, there are many cases in which juristic and judicial idealism has produced and enforced rules of conduct in advance of the ideas and interests of the dominant class or the ideas of any other class of the lay community. There are many examples in equity, such as the doctrine of constructive notice, constructive fraud, duties of fiduciaries, and especially duties of trustees.74 Our courts of equity, so far from taking their ethical views from a dominant class of business men, have enforced traditional doctrinal ideas on that class. They have preserved and enforced the ethical tradition of the stage of infusion of morals into law even to the extent of an idea of disinterested benevolence on the part of fiduciaries which has come down from the clerical chancellors.75 No dominant economic class in nineteenth-century America had any such ideas of disinterested benevolence in ordinary affairs. Perhaps it is enough to contrast equity doctrines with the notions of business men as to the duties of directors of corporations and promoters.

There are many questions also in which a juristic tradition, logically developed by lawyers drawn from a dominant economic or social class has withstood the interest of the class. Those who have urged the economic interpretation in America have always assumed that the man of business was representative of the dominant economic class in our industrial communities in the immediate past. No branch of the law has been of such vital importance to the business man as the law of corporations. But his needs and desires have made very little impression upon the tradition of American law as to corporations. We have transferred to the ordinary trading company all the jealousies that might have some reason with respect to public service companies. Indeed a traditional jealousy of corporate action, for the beginnings of which we must go back to the formative stage of the common law when municipalities and ecclesiastical foundations were the only corporations,76 will explain much more of the American law of trading corporations than can be explained by considering the self-interest of any particular class in the nineteenth century. Legislation has had to provide for the needs of business and through the influence of lawyers has often been along common-law lines.77 Hence it became necessary for business men to go to Delaware or New Jersey or some other of a few states with liberal legislation in order to incorporate their enterprises. But when the business man takes advantage of the more liberal corporations laws of another state, he finds himself doing business through a “foreign” corporation. Outside of the state where incorporated it is potentially an outlaw, suffered to go on simply by the grace of the local authorities. Although the federal constitution guarantees to him that he may do business over the state line, it is interpreted in a way that prevents or at least hinders and embarrasses him when he seeks to do business in the only way that is practicable for any enterprise of magnitude. The reason is that at a time when “corporation” meant a state granted monopoly it was decided, rightly enough, that one state could not thrust its monopolies upon another.78 If, instead of incorporating, the business man carries on his trading or manufacturing activities by means of a partnership, an institution as old as commerce, he finds that he cannot do what is always done in case of partnership—he cannot be a creditor of or debtor to the partnership—because the law on this subject is not determined by the needs of business, nor does it draw its ideas of partnership from the universal understanding and practice of business men, but from the ideas of Roman jurists.79 Every grievance of the American laborer against American law in the last century can be matched by quite as real a grievance of the American business man and capitalist.80 There could be no better example of the tenacity of a taught tradition. If nineteenth-century American courts had been only the mouthpiece through which the business men of America promulgated formulations of their self-interest, these things would have come to an end long ago.

A further argument may be drawn from those legal doctrines which have spread over the modern world. The modern Roman law of legal transactions has not become the law of the modern world, nor is the English law of torts becoming a law of the world because either has a world-dominating social class behind it. In each case experience and reason have worked out certain principles which have proved capable of practical applications in the administration of justice and of an orderly, logical juristic development.

We may say, then, that the phenomena of legal history do not admit of an exclusively economic interpretation.

Third, a theory of mechanical causation by the inevitable operation of class conflict wholly eliminates the efficacy of effort. A no less iron-bound science of law results than follows from the conception of a finally determined natural law or from the extreme theories of nineteenth-century historical jurisprudence or from the mechanical sociology. Theories of law readily become theories of making law and of finding law. It cannot be a good theory of making law or of the judicial process that legislator and judge sit to formulate the self-interest of the dominant social class. Undoubtedly the ideal element in law is greatly affected by the economic structure of society and thus legal precepts are gradually affected in their content and application. Yet it is significant that the common-law tradition has proved resistant to economic conditions. American land law insists that land is to be treated as a fixed and permanent acquisition, as if we were a community of English country gentlemen; not as an asset which can be passed readily from hand to hand, which is the way in which it is regarded by business men. In American pioneer communities there was a time when town lots were the chief subject of commercial activity and men bought and sold and resold lots and speculated in them after the manner of speculation in shares of stock in commercial centers.81 But no American court in such an environment ever thought of denying specific performance of a contract to sell a town lot, although there were a hundred like it in every particular to be had in the real estate market at a moment’s notice and its unique character was a transparent dogmatic fiction.82 Compare also the traditional arbitrary line between real property and personal property running through the law, making a sale of land subject to one set of doctrines and a sale of chattels to another, and much more of the sort. The controlling shares of stock in the family business may be sold by an administrator without more. But in general there must be a special proceeding in court and showing of insufficiency of personal property to pay debts before such sale of even the most insignificant parcel of land.83 The legislature in an agricultural state has sometimes made a farmer’s note payable in corn or potatoes negotiable.84 No court, even if the judges were elected for short terms by popular vote, ever thought of establishing such a rule for a community of farmers by judicial decision.

Stammler would say that economic conditions help determine the ideals of the epoch. Kohler would say that we must take account of economic conditions when we formulate the jural postulates of the civilization of the time and place. These ways of putting it are much nearer the truth. The influence of the purely economic situation upon the traditional element of the law is indirect. But the traditional element is the most enduring and significant part. The actual role of economics is quite different from that pictured by the usual economic interpretation. Social and economic changes give rise to new wants. New interests press for recognition and security. As a consequence, traditional principles are put to new uses. The taught tradition is gradually adapted to new wants and expectations and made to secure new interests or to secure in new ways those already recognized.

In economic determinism85 class self-interest takes the place held by individual self-interest in the classical political economy. The social class is made the unit instead of the individual human being. Nothing but class struggle is involved in the legal order nor in the judicial and administrative processes. This goes back to the single explanation of all the phenomena of the legal order characteristic of nineteenth-century thought. It has two sides, one positive, the other negative.

On the positive side economic determinists have been much concerned with substitutes for law in the sense of a body of established or received precepts applied and developed judicially. One such substitute has been seen in administrative absolutism. According to Marx law will disappear with the abolition of private property. Its function is to keep a class of exploited in subjection to a class of those who exploit them. So when classes disappear law too will come to an end.86 Such minor conflicts of expectations as arise may be dealt with by administrative agencies. There is to be no law, and but one rule, namely, that there are no laws but only administrative orders for the individual case.87 But later developments in Russia are a sufficient commentary on the Marxian idea of disappearance of law and of replacing the uniform judicial process by ad hoc administrative action. It was found that there must be laws and they must be stable and administered by tribunals.88

Another substitute for law, which it was assumed would disappear in the society of the future was expected to be provided in Italy by the corporative state, an idea which had some vogue in political-juristic thinking in some parts of the world until the collapse of Mussolini’s dictatorship.89 In such a state the occupational group was to be the unit instead of the individual man, and we were told that in this organization of society disputes would be adjusted by committees of the occupational group, or if controversies arose between members of different groups, by a general committee in which the different groups were to be represented. This suggests the regime of kin-group discipline and of the king determining disputes between different kin-groups and between kin-groups and kinless men in the earlier societies of antiquity. Law grew out of that process and if the process were repeated with occupational groups law might grow out of it again. But as development of the corporative state went on in Italy there were nothing more than prophecies and projects. Leaving the whole adjustment of relations to committees of occupational groups presupposes that the only significant relations or groups or associations in society are economic. It is true that men in society are united in all kinds or degrees of relations and groups and associations and that the inner order of these relations and groups and associations is the cement of the social order.90 But we are not each of us in some one of these relations or groups or associations exclusively and for all purposes. We are in many at the same time and they make varied demands upon our allegiance. History of religion has shown more than once that economic relations and groups and associations are not always those with the strongest hold. Very likely a regime of administration of justice by committees of occupational groups, if it had been put in force for the whole domain of human relations would have had no more enduring existence than the theory of no law and a regime of administrative orders proved to have in Russia.

What may be called the negative type is concerned only to demonstrate the deception and superstition involved in the theory and practice of judicial process guided by a body of authoritative precepts developed and applied by an authoritative technique. Its exponents presuppose that the process is in theory one of mechanical application of precepts with an exactly defined content affixing definite detailed consequences to definite detailed states of fact. Starting with this false presupposition, they have no difficulty in showing that judicial application of standards, such as reasonableness or good faith and fair conduct, and application by court and jury of the standard of due care, do not conform to such a theory. But the presupposition that those who are not prepared to concede the sufficiency of the economic interpretation or of Freudian psychology to explain the whole judicial process believe or would like to believe in such a theory is quite gratuitous. Equally gratuitous is the assumption that judges and practitioners of this generation, unless they subscribe to the economic determinist or skeptical realist creed, believe in such a theory.91 The difference between judicial application of a rule of property and judicial application of a standard had been pointed out long before the extreme realists had begun to write.92 To those who deny there are such things as authoritative precepts or an authoritative technique one may reply: Can there be any doubt that every judge of every appellate tribunal in the land would come to the same result as to any given case when it was sought to make a written promise to pay money negotiable without using the words prescribed by the Negotiable Instruments Law, or the law merchant in the absence of that statute, or in any given case in a jurisdiction where the constitution prescribes a grand jury in which it was sought to maintain a prosecution for a capital crime without an indictment? Much of what seems plausible in the writings of economic determinists gets its effect by confusing application of a standard with application of a rule and assuming that the phenomena of applying a standard are typical of every feature of the judicial process.

In the hands of some economic realists the Marxian disappearance of law becomes a disappearance of private law or rather a swallowing up of private law by public law.93 This has an attractive sound, suggesting that the law of the past, which was a private possession of individuals, is being superseded by a public law which is something belonging to all of us. But this is not what is meant. According to the Roman books, public law was that part of the law which had to do with the constitution of the Roman state; private law was that part which had to do with the interest of individuals.94 According to the expounders of the modern Roman law, private law has to do with adjusting the relations and securing the interests of individuals and determining controversies between man and man, while public law has to do with the frame of government, the functions of public officials and adjustment of relations between the individual and the state.95 The term “public law” is not in the literature of the common law. In Blackstone’s system public law is a part of the private law of persons, officials are persons and the law applicable to them is the law applicable to every one else.96 In the domain of English law, the law applied by administrative tribunals and agencies was the law applied by other tribunals, namely, statute and common law, developed and applied by a received technique as in a common-law court. The rise and multiplication of administrative agencies and tribunals in the present century have led to a taking up of the term public law in the Roman sense. But something more is meant by those who expect to see private law disappear because of eating up or penetration by public law. We are told that we must start with a contrast between commutative justice, a correcting justice which gives back to one what has been taken away from him or gives him a substantial substitute, and distributive justice, a distribution of the goods of existence not equally but according to merit or a scheme of values. In the positive law this distinction is said to correspond to a contrast between the co-ordinating law, which secures interests by reparation and the like, and the subordinating law which prefers some or the interests of some to others according to its measure of values.97 Public law is said to be a “law of subordination,” subordinating individual interests to public interests (i.e., interests of politically organized society) and identifying some individual interests but not the interests of other individuals with those public interests.98 It is said to be impossible to satisfy the demands of security except by a subordinating type of law which puts a special value on the position of officials in the legal system.99 When it comes to be applied in the common-law world, this idea of public law as a subordinating law, putting a higher value on officials and on what they do, and allowing them a wide discretion to put higher value on some persons or groups of persons than on others by identifying the interests of those persons with public interests, is in effect a theory of supplanting law (in the sense of a body of precepts serving as guides to decision and developed and applied by an authoritative technique) by an unchecked magisterial and administrative adjustment of relations and ordering of conduct. If the term “law” is retained, it is given the meaning of what those officials do because they do it.100

Economic determinism has had one good result. The exponents of the doctrine have called attention to an influence upon the judicial process which operated unperceived in the last century when judges trained in the tradition and modes of thought of pioneer America were quite unconscious of the beginnings and gradual growth of a class of industrial laborers. The realists challenge the best efforts of the bench and of the profession to maintain the tradition of independence and the zealous and unremitting quest of objectivity and impartiality, which have been the strength of the common-law judiciary.101 No one doubts that we have here an ideal and, indeed, an ideal hard to attain. Nor would those who are unwilling to look upon the Marxian doctrine of economic interpretation, economic domination, and class struggle as the sole explanation of the legal order and of the judicial process think of believing or pretend to believe that the ideal has ever been, or very likely ever can be, wholly realized. But they have warrant in the history of civilization for believing that a steadfast endeavor to do so has increasingly approximated the process to the ideal; that it as nearly conforms to its postulate as any human activity, and that the development of and persistence in this endeavor is not the least important achievement of civilization. To assume that objectivity and impartiality in the judicial process cannot exist in the nature of things, to look on the judicial function as political in the same sense as the legislative and executive processes, and invite a conscious exercise of the judicial process in the interest of a class growing in class-consciousness and political power,102 is to undo the whole achievement of the legal order in the western world since the later Middle Ages.

[1. ]See Pound, The Call for a Realist Jurisprudence, 44 Harvard Law Review 697–700 (1931); id. Fifty Years of Jurisprudence, 51 Harvard Law Review 777, 799–800 (1938). Fuller has made the same observation, American Legal Realism, 82 Univ. of Pa. Law Review, 429, n. 1 (1934).

[2. ]Neither this nor the later epistemological-metaphysical theory, see 2 Baldwin, Dictionary of Philosophy and Psychology (1901–5) 421, is what recent juristic realists have in mind.

[3. ]Amos, Systematic View of the Science of Jurisprudence (1872) chap. 4.

[4. ]Spencer, Justice (1891) chap. 7.

[5. ]Oliphant and Hewitt, Introduction to Rueff, From the Physical to the Social Sciences (1929) transl. by Green, x ff.

[6. ]2 Austin, Jurisprudence (5 ed. 1885) 638 ff.

[7. ]Paley, Moral and Political Philosophy (1782) bk. vi, chap. 6.

[8. ]Yntema, The Hornbook Method and the Conflict of Laws (1928) 37 Yale Law Journal 468, 480.

[9. ]Ibid.

[10. ]Green, Judge and Jury (1930) 43–49.

[11. ]1 Bentham’s Works, Bowring ed. (1843) 141.

[12. ]Pound, The Place of the Judiciary in a Democratic Polity (1941) 27 American Bar Association Journal 133; id. For the Minority Report, ibid. 664; Report of Special Committee on Administrative Law (1938) 63 Report American Bar Association 331, 342 ff.

[13. ]Marx, Zur Kritik der politischen Oekonomie (1859) iv, v.

[14. ]Seligman, The Economic Interpretation of History (1902, 2 ed. 1907).

[15. ]Bigelow and others, Centralization and the Law, lecture 1, Nature of Law, by Brooks Adams; lecture 2, Law Under Inequality, Monopoly, by Brooks Adams (1906); Adams, The Modern Conception of Animus (1906) 19 Green Bag, 12.

[16. ]Centralization and the Law (1906) 45.

[17. ]Ibid. 63–64.

[18. ]Ibid. 23.

[19. ]See 2 Berolzheimer, System der Rechts- und Wirtschaftsphilosophie (1905) § 40, transl. by Jastrow as The World’s Legal Philosophies (1912) 298–307; Bohlen, Old Phrases and New Facts (1935) 83 Univ. of Pa. Law Review 305, 306–7; Myers, History of the Supreme Court of the United States (1912) 8.

[20. ]Jhering, The Struggle for Law, transl. by Lalor, 2 ed. by Kocourek, 48–49 (1915). As Jhering says, that was pointed out long ago by Montesquieu. Ibid. 49 n. 1.

[21. ]See an interesting discussion of a proposal for such legislation in Proc. North Dakota Bar Assn. (1906–8) 44–53; Robertson Lumber Co. v. Bank of Edinburgh, 14 N.D. 511, 515–16, and cases and text books cited n. p. 516.

[22. ]See note in 33 Harvard Law Review 717–18 (1920); Note, 42 Harvard Law Review 277–78.

[23. ]See McLaughlin, Amendment of the Bankruptcy Act, 40 Harvard Law Review 341 n. 2, 383 ff. (1927); Richardson v. Shaw, 209 U.S. 365, 380 (1908); In re Archer Harvey & Co., 289 Fed. 267 (1923); Robinson v. Roe, 233 Fed. 936 (1916).

[24. ]Hanna and MacLachlan, Cases on Creditors’ Rights, consolidated 4th ed. note on 79–80 (1951).

[25. ]Indiana, Laws of 1889, chap. 82, p. 146; Texas, Laws of 1901, chap. 107, pp. 283–84. As to the common law see Giles v. Walker, 24 Q.B.D. 656 (1890); Herndon v. Stultz, 124 Ia. 734 (1904).

[26. ]Act of February 22, 1917, 39 U.S. St. L. 929; Act of February 25, 1925, 43 U.S. St. L. 976; Act of May 8, 1926, 44 U.S. St. L. 416.

[27. ]Florida, Laws of 1891, c. 4071 (No. 62), § 2, pp. 113–14; Iowa, Acts of 1909, c. 124, pp. 117–18; Kansas, Laws of 1911, c. 239, § 2; Maine, Public Laws of 1910, c. 258; Mississippi, Laws of 1910, c. 135; Nebraska, Laws of 1907, c. 48, § 2, p. 192; Ohio, Act of 1908, Laws of 1909, p. 25, § 2; South Dakota, Laws of 1907, c. 219, § 2; Texas, General Laws of 1909, c. 10, § 2, p. 280; Virginia, Acts of 1916, c. 444, § 2; Wisconsin, Laws of 1915, c. 437, § 2, pp. 553–54.

Significantly, in what was then a mining state, the statutory rule was extended to “every mine and mill owner and operator actually engaged in mining, or milling or reduction of ores.” Nevada, Laws of 1907, c. 214, § 2, pp. 437–38. I have discussed these statutes in “The Revival of Personal Government” Proceedings of the New Hampshire Bar Association, 1917, 13.

[28. ]Bussey v. Amalgamated Society of Railway Servants, 24 Times Law Reports, 437 (1908).

[29. ]I have set forth the details in The Spirit of the Common Law (1921) 1–6.

[30. ]Chase, Lemuel Shaw (1918).

[31. ]Roberts, Memoirs of John Bannister Gibson (1890).

[32. ]Graham, Life and Character of Thomas Ruffin (1871).

[33. ]Lippman, The Good Society, 188, citing Berman, Employer’s Liability (1931) 3 Encyclopedia of the Social Sciences, 515.

[34. ]Holmes, Agency (1891) 4 Harvard Law Review 345, 5 id. 1.

[35. ]Baty, Vicarious Liability (1916) chaps. 1, 5.

[36. ]4 Labatt, Commentaries on the Law of Master and Servant (2 ed. 1913) chaps. 41–44.

[37. ]3 id. chaps. 36–39; 4 id. § 1497.

[38. ]3 M. & W. 1 (1837).

[39. ]Ibid. 6.

[40. ]4 Met. (Mass.) 49 (1842).

[41. ]Ibid. 52.

[42. ]4 Met. (Mass.) 111 (1842).

[43. ]Nelles, Commonwealth v. Hunt (1932) 32 Columbia Law Review 1128, 1151.

[44. ]Ibid. 1158–62.

[45. ]Holmes, Agency (1891) 4 Harvard Law Review 345, 345–50.

[46. ]Ibid. 346 ff.

[47. ]Holmes, Agency (1891) 5 Harvard Law Review 1, 16.

[48. ]Ibid. 22.

[49. ]Lord Cromwell’s Case, 4 Co. 12b, 13a (1578).

[50. ]French Civil Code, art. 1382.

[51. ]I have discussed this subject at length in The Economic Interpretation and the Law of Torts (1940) 53 Harvard Law Review 365.

[52. ]3 Hurlst. & C. 774 (1865), L.R. 1 Ex. 265 (1866), L.R. 3 H.L. 330 (1868).

[53. ]Bohlen, The Rule in Rylands v. Fletcher (1911) 59 Univ. of Pa. Law Review 292, 313.

[54. ]Ibid. 318–20.

[55. ]Shipley v. Associates, 206 Mass. 194 (1891).

[56. ]Cahill v. Eastman, 18 Minn. 255 (1872).

[57. ]Brown v. Collins, 53 N.H. 442 (1873).

[58. ]E.g. Burdick, Torts (1905) § 543.

[59. ]Supra, n. 55.

[60. ]Supra, n. 56.

[61. ]Defiance Water Co. v. Olinger, 54 Ohio St. 532 (1896).

[62. ]Weaver v. Thurmond, 68 W.Va. 530 (1911).

[63. ]French v. Manufacturing Co., 173 Mo. App. 220, 227 (1913).

[64. ]Texas R. Co. v. Frazer (Tex. Civ. App.) 182 S.W. 1161 (1912). See also the discussion in Exner v. Sherman Power Constr. Co. (C.C.A.) 54 Fed. 2d, 510 (1931).

[65. ]Supra, n. 57.

[66. ]Rose v. Socony-Vacuum Corp. 54 R.I. 411 (1934).

[67. ]Losee v. Buchanan, 51 N.Y. 476 (1873).

[68. ]Marshall v. Welwood, 38 N.J. Law, 339 (1876).

[69. ]Pennsylvania Coal Co. v. Sanderson, 113 Pa. St. 126 (1886).

[70. ]Lake Shore R. Co. v. Chicago R. Co., 48 Ind. App. 584 (1911).

[71. ]Owensboro v. Knox, 116 Ky. 451 (1905).

[72. ]Judson v. Giant Powder Co., 107 Cal. 549 (1903).

[73. ]I have gone into this subject further in Interpretations of Legal History (1923) 105–9.

[74. ]“To the writer the doctrine of the clog on the equity of redemption seems one of the striking examples of the great truth that the ethical standard of our law is often higher than the average morality of the commercial community.” Wyman, The Clog on the Equity of Redemption (1908) 21 Harvard Law Review 457, 475.

[75. ]“Courts of equity. . . had (so to speak) screwed up the standard of reasonableness to what many men would regard as an unreasonable height.” Maitland, Lectures on Equity (rev. ed. 1936) 99.

[76. ]Even as late as the end of the eighteenth century these are the types of a corporation to the lawyer. 1 Kyd, Corporations (1793) 1–37.

[77. ]See a typical discussion of limited liability in Proc. California Bar Assn. 1916, 63–91.

[78. ]See Henderson, The Position of Foreign Corporations in Constitutional Law (1918).

[79. ]Institutes of Justinian, ii, 25, pr. and §§ 1–2; Digest of Justinian, xvii, 2, 63, pr.; Story, Partnership (1841) § 2. Compare also the jealousy of Massachusetts trusts and the whole tone of Warren, Corporate Advantages Without Incorporation (1929) and the narrow limitation of the second category of de facto corporations. Ibid. 688–90.

[80. ]See Machen, Do the Incorporation Laws Allow Sufficient Freedom to Commercial Enterprise (1909) 14 Rep. Md. State Bar Assn. 78; People v. Shedd, 241 Ill. 155 (1909). “I regret that in many commercial matters the English law and the practice of commercial men are getting wider apart.” Scrutton, L.J., in W. N. Hillas & Co., Ltd. v. Arcos, Ltd., 36 Commercial Cases, 353, 368 (1931). See also Chorley, The Conflict of Law and Commerce (1932) 48 Law Quarterly Review 51; Pound, Fifty Years of Jurisprudence (1938) 51 Harvard Law Review 777, 778.

[81. ]For an account of a real estate exchange, “as stocks are now sold on Wall Street” in a pioneer community, see 1 Grant, Personal Memoirs (1885–86) 208.

[82. ]4 Pomeroy, Equity Jurisprudence (4 ed. 1919) § 1402.

[83. ]2 Woerner, Treatise on the American Law of Administration (2 ed. 1899) pp. 1020–24.

[84. ]Illinois, Rev. Stat. 1845, chap. 73, §§ 3–10.

[85. ]Pound, Fifty Years of Jurisprudence (1938) 51 Harvard Law Review 777, 779, 800; Hazard, Soviet Law—An Introduction (1936) 36 Columbia Law Review 1236; Paschukanis, Allgemeine Rechtslehre und Marxismus (1929) transl. from 3d. Russian edition; Dobrin, Soviet Jurisprudence and Socialism (1936) 52 Law Quarterly Review 402; 1 Gsovski, Soviet Civil Law (1948) chap. 5.

[86. ]Marx, Critique of the Gotha Program (English transl. 1933) 31.

[87. ]Paschukanis, Allgemeine Rechtslehre und Marxismus (1929) chaps. 2, 5.

[88. ]1 Gsovski, Soviet Civil Law (1948) 187–92.

[89. ]Guarnieri-Ventimiglia, I principii Giuridici Dello Stato Corporativo (1928); Navarra, Introduzione al Diritto Corporativo—Storia e Diritto (1929); Salemi, Lezioni di Diritto Corporativo (1929); Id. Studi di Diritto Corporativo (1929); Chiarelli, Il Diritto Corporativo e le Sue Fonti (1930); Ferri, L’Ordinamento Corporativo dal Punto di Vista Economico, Caratteri Generali, I Soggetti, Le Associazioni Sindicali (1933); Barassi, Diritto Sindicale E Corporativo (1934); Coniglio, Lezioni di Diritto Corporativo (2d ed. 1934); Mazzoni, L’Ordinamento Corporativo: Contributo Alla Fondazione D’Una Teoria Generale E Alla Formulazione di Una Domestica Del Diritto Corporativo (1934); Cioffi, Istituzioni di Diritto Corporativo (1935); Cesarini Sforza, Curso di Diritto Corporativo (4 ed. 1935); Pergolesi, Istituzioni di Diritto Corporativo (2 ed. 1935); Chiarelli, Lo Stato Corporativo (1936); Zanelli Quarantini, Le Fonti del Diritto Corporativo (1936); Aunós Pérez, Principios de Derecho Corporativo (1929); Caballero, La Legislación Vigente Sobre Organización Corporativo Nacional (1929); Aunós Pérez, La Organización Corporativo y Su Posible Desenvolvimiento (1929); Id. Estudios de Derecho Corporativo (1930); Zancada, Programa de Derecho Corporativo (1931); Fucile, Le mouvement corporatif en Italie (1929); Lescure, Le nouveau régime corporatif italien (1934); Pitigliani, The Italian Corporative State (1933).

[90. ]Ehrlich, Grundlegung der Soziologie des Rechts (1913) chap. 2; English transl. by Moll (1936) 26–39.

[91. ]See Lummus, The Trial Judge (1937) 3–4.

[92. ]I have discussed this matter repeatedly. Juristic Science and Law (1918) 31 Harvard Law Review 1047, 1060–63; Theory of Judicial Decision (1923) 36 id. 641, 643–53; The Administrative Application of Legal Standards (1919) 44 Rep. Am. Bar Assn. 443, 454–58; The Supreme Court and Minimum Wage Legislation (1925) compiled by the National Consumers’ League.

[93. ]E.g., Jennings, The Institutional Theory, in Modern Theories of Law (1933) 68, 72.

[94. ]Institutes of Justinian, i, 1, § 4; Digest of Justinian, i, 1, 1 § 2.

[95. ]1 Dernburg, Pandekten (7 ed. 1902) § 21.

[96. ]1 Blackstone, Commentaries on the Laws of England (1765) chaps. 3–9.

[97. ]Radbruch, Rechtsphilosophie (3 ed. 1932) 31, 125.

[98. ]Ibid. 123, 124. See an example in National Labor Relations Board v. Sunshine Mining Co., 125 Fed. 2d, 757 (1925).

[99. ]Radbruch, op. cit. 123.

[100. ]See my discussion of this in Public Law and Private Law (1939) 24 Cornell Law Quarterly 469.

[101. ]Lummus, The Trial Judge (1937) 8–20.

[102. ]See Gsovski, The Soviet Concept of Law (1938) 7 Fordham Law Review 1, 42–43.