Front Page Titles (by Subject) TWELVE: The Authoritarian Idea - The Ideal Element in Law
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TWELVE: The Authoritarian Idea - Roscoe Pound, The Ideal Element in Law 
The Ideal Element in Law, ed. Stephen Presser (Indianapolis: Liberty Fund 2002).
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The Authoritarian Idea
When in 1897 Mr. Justice Holmes, having begun when editor of the American Law Review1 in the analytical school, by a method of logical analysis of legal precepts as authoritative imperatives prescribed by those exercising the powers of a politically organized society, and then in 1881 (in his Lowell lectures on the common law)2 moved to the method of the historical school, tracing the historical development of legal institutions and doctrines and precepts, finally came to the method of looking at both the legal order and the body of traditional and of legislatively prescribed models and patterns of decision with reference to their social ends and function, he gave his epoch-making address under the title of “The Path of the Law.”3 Taking the hint from this title, when I came to consider what has been going forward in juristic thought and in law since jurists gave up the Kantian theory of justice as the maximum of free individual self-assertion, I spoke of “New Paths of the Law.”4 It seemed to me that after leaving what might be called the path of liberty, two paths were becoming apparent: One a humanitarian path on which the law had entered and upon which it had made some progress, the other what, from its course thus far, might be called an authoritarian path, a path much more divergent from what Anglo-American law had followed in the past. Thus far what I am calling the authoritative path is more suggested as one yet to be laid out than as one actually taken. It may prove to be one going on parallel with the humanitarian path. Or it may prove to be one which the humanitarian path will join to make the path of the future. Or it may be one of which the humanitarian path will prove to be but the beginning. The law seems to be moving toward the securing of a full life for every one. One way of doing this is a regime of shifting losses and imposition of liabilities according to greater ability to bear them. Another is to do or seek to do it through complete control of all individual activities and all productive exertion, through a regime of full service to everybody performed exclusively for us by politically organized society. This may conceivably be the path of the law in the maturity of the service state. Another was projected for a time on Marxian lines as one of gradual disappearance of the regime of a legal order and complete substitution of an administrative order maintained by a hierarchy of bureau officials exercising discretion to achieve policies of service. Theoretically this has been officially abandoned in Russia, but perhaps more by giving up the name and shape than by giving up the direction and de facto course of the path. For we are brought back to the social individualism of the orthodox nineteenth-century Marxian socialism.
Promoters of the service state are by no means resolving the paradox of nineteenth-century social-individualism. That doctrine taught that a maximum of individual liberty was to be attained by a maximum of state control. Now we are taught that maximum of concern for the individual life calls for maximum satisfaction of the whole scale of human wants or expectations by a maximum of power of public officials over him. Yet the internal contradiction remains. For example, the service state seeks to relieve against frustration by failure to achieve ambitions, to obviate all feelings of inferiority and assure satisfaction of desires to move in the most esteemed social circles. So men are not to choose freely those who are to be in close social association with them. They are not to be allowed to choose congenial companions for such intimate relations as social clubs, college fraternities or private rooming houses for college students, lest some one’s social ambitions be frustrated. It does not seem to be thought proper to weigh or seek to put in balance the frustrated sensibilities of those who are to have unwelcome intimate associates in private social organizations thrust upon them, whose psychological tranquility from agreeable intimate social surroundings are to be sacrificed. When Anglo-American courts of equity were confronted with a problem of the injured feelings of persons expelled from social clubs in contravention of provisions of the club’s charter or articles of association, they arrived at a significant distinction. Where no property interests were involved and there was nothing but breach of an agreement as to association for social purposes, courts of equity would not interfere. Sir George Jessel said in a leading case: “A dozen people may agree to meet and play whist at each other’s houses for a certain period, and if eleven of them refuse to associate with the twelfth any longer, I am not aware that there is any jurisdiction in any court of justice in this country to interfere.”5 But if a member of an organization was expelled in a manner contrary to ordinary principles of justice and in such manner or under circumstances humiliating and injurious to the reputation and feelings of the person expelled, the courts may redress the wrong.6 In such a case, however, there was an agreement to associate. Now, in the climate of the service state we are asked to require unwanted associates to be taken into such associations lest otherwise their ambitious social expectations be disappointed. One has to go back to the laws of Manu for precedent for what is being urged upon fraternities in American colleges today. According to Manu, one who gave a banquet and did not invite his two nearest neighbors was subject to a penalty.7
Social control as state control, the state as an end in itself, the legal order as a regime of ordering all conduct and dictating all adjustment of relations by official application of the force of a politically organized society to the case in hand, law as what those officials do because they do it, the judicial process as simply effective exertion of the power of the state officials; in other words, an omnicompetent state, in contrast with politically organized society carrying on a regime of social control through orderly application of force according to prescribed models or patterns of decision and determination, a law state, gives a new meaning to the term “law.” It indicates a path in the development of society wholly divergent from that which had been followed in the West, which I am calling the authoritarian path. The service state in its development seems to threaten to take this path. It seems to threaten to become an omnicompetent state. But as a lawyer I am not concerned with the service state as such. Its general merits and demerits are for the political scientist and economist. What concerns me is the effect of the rise of the service state upon the law.
One effect upon law is suggested whenever we read in pronouncements of the advocates of the service state about what they call “socialization of law,” “socialized courts” and “socialized procedure.” I, myself, used the term “socialization of law” as far back as 1914.8 But what I had in mind then was the conscious recognition of social interests where individual interests had been put as rights and social interests relegated to a subordinate category of policies. What the promoters of the service state have in mind is something quite different. In their use of the three phrases set forth above “socialized” is used to mean an extreme of unchecked power of officials and magistrates to make ad hoc determinations such as existed in the late totalitarian states and still obtains in Russia. Whether it is necessary to an adequate recognition and securing of social interests I doubt seriously. But in practice it has been following hard in the wake of the service state. It is characteristic of the authoritarian path.
Coke boasted that there could be no infringement of the life or liberty or fortune or inheritance of an individual in England and no species of oppression or misgovernment at his expense but that it should be redressed in one or the other of the common-law courts.9 Today one of the leading exponents of the service state tells us that private law, the law which adjusts the relations of ordinary men and puts those who wield the authority of the estate on the same plane with—not above—the ordinary man, is being swallowed up by a public law which puts the official on a higher plane.10
Economic and psychological realist theories of the impossibility of a judicial process operating according to law, Marxian theories of the disappearance of law in the mature socialist state, and theories of superseding of the judicial process by ad hoc determinations by administrative agents—in other words, taking the adjusting of relations and ordering of conduct from the legal order and committing them to an administrative order—have largely gone along with and developed side by side with absolute theories in politics. They are concomitants of a movement toward absolute government which has been going on in every part of the world in the present century and despite a setback as a result of the second World War, is still strong and even growing beneath the surface. Theories of law in terms solely of threat and force are part of a general cult of force. Law is the real foe of absolutism. It presupposes a life measured by reason, a legal order measured by reason, and a judicial process carried on by applying a reasoned technique to experience developed by reason and reason tested by experience.
From their experience of absolute absentee government from Westminster as well as from deep reading in political history, the founders of the American constitutional legal polity knew that law alone could save them from dissolution or rule by mere brute power. As I have said elsewhere, “Civilization involves subjection of force to reason, and the agency of this subjection is law.”11 When John Adams put in the Massachusetts Bill of Rights the ideal of “a government of laws and not of men,”12 he pointed to government of men guided by law instead of ruling by fiat of governmental authority. “The conception of a government by laws dominated the thoughts of those who founded this Nation and designed its Constitution, although they knew as well as the belittlers of the conception that laws have to be made, interpreted and enforced by men.”13 Mr. Justice Brandeis said: “Checks and balances were established in order that this should be ‘a government of laws and not of men.’ . . . The doctrine of the separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was not to avoid friction, but, by means of the inevitable friction incident to the distribution of governmental powers among three departments, to save the people from autocracy.”14
It is said frequently that the extent to which the separation of powers has been carried in the Constitution of the United States and the constitutions of the several states is to be attributed to a fashion of eighteenth-century thought. But it was not without good reason, based on experience, that Americans, almost at the moment independence was declared, began to set up written constitutions and to put the separation of powers at the foundation of them.15 From the beginning down to the American Revolution, the colonies had been subjected to a completely centralized government with no distribution of powers and had learned what this sort of government meant. Ultimately all power over what went on in the colonies was centralized in the King in Council. The Privy Council had ultimate legislative power to the extent that it could disallow all colonial statutes. It could thus veto any statute within five years, and at any later time, even if the statute had not been disallowed, could hold it void as in conflict with the colonial charter.16 It prevented a necessary organization of courts in Pennsylvania for twenty-one years.17 It overturned legislation making a modern provision for treating land as part of the estate of a decedent along with personality.18 It disallowed statutes limiting appeals to Westminster from colonial courts.19 It insisted that colonial organization of courts follow the English model and forced a regime of separate probate courts and separate courts of equity where the good sense of more than one colony sought to anticipate the unification of courts to which the English themselves came one hundred years later.20
Also the Crown in Council itself or through the Board of Trade and Plantations had ultimate administrative power, controlling administration through instructions to the royal governors, requiring that the governors make reports to them, and addressing inquiries to the governors as to what they and the local magistrates were doing.21 Likewise the Privy Council had ultimate judicial power. Appeals to it lay from the courts of the colonies and it jealously guarded its appellate jurisdiction against colonial legislation as to jurisdictional amount and time for taking appeals. The expense of such appeals was a heavy burden upon litigants and one colony voted an appropriation to an appellee to enable him to defend his judgment at Westminster.22 Not the least cause of the Revolution was the effort “to exact a stricter obedience from the colonies and to centralize, as had never been done successfully before, authority in the hands of the Crown.”23
A like condition of centralized powers of government obtained in most of the colonies. The governor was appointed by the Crown, and the Crown or the governor appointed the Council. In ten of the thirteen colonies more than ninety-five percent of the local administrative officials were appointed by the Crown.24 The governor and council, if there was one, were the upper house of the legislature. They were the head of administration. They were often the provincial appellate court,25 subject to review by the Privy Council. One need not say that this undifferentiated authority was exercised in the administrative manner.26 Experience of this form of government in the seventeenth and eighteenth centuries led lawyers and statesmen who had read Montesquieu and Blackstone to the express and emphatic pronouncements as to separation of powers in the constitutions which followed on the heels of the Declaration of Independence.
Today the idea of separation of powers is under attack. It is “repudiated” by the Soviet regime. “The program of the Communist Party repudiates the principle of the separation of powers.” As Dr. Gsovski says justly, this is a logical conclusion from the dictatorial concept of governmental power.27 With the passing of the abstract individualism of the last century perhaps ethical justification of coercion of individuals by politically organized society is no longer taken to be a serious question. Sociologists instead of ethical justification think of a science of society having to do with group behavior, the relationships between men, and the phenomena involved in or arising from those relationships. To them the state is but one of the groups or associations they are to study as such. Hence they cannot accept the paramountcy of the state which had been increasingly accepted by jurists since the sixteenth century. Instead of identifying state and society, as some jurists were doing in the latter part of the nineteenth century, they consider a politically organized society as one of a hierarchy of power structures,28 or as one of a series of groups or associations through which men seek to realize their expectations or to secure their interests. This mode of thought comports well with the ideal of the state functioning through law. But it has to compete today with the authoritarian idea, the idea of a power structure based on inherent authority and limited only by efficiency in the performance of its tasks. As such it rests upon its control of the force of a politically organized society. On the other hand, recent sociological philosophical theory looks on the state as an organ of the social community as a whole for promoting certain of its common purposes. Accordingly, the coercion exercised by a sovereign political authority is seen as only one means of social control. It is only one means of enforcing upon the individual the supremacy of common ideals. After all in reality it is a moral authority because of the inherent limitations upon effective legal action.29 Without the guarantee in a general habit of obedience or the backing of the stronger element of the community, coercion by those who exercise the authority of the state cannot continue to be effective.
In the American constitutional polity we have an ideal of a government proceeding according to law, that is, by a systematic reasoned application of principles, as distinguished from a government applying the force of politically organized society by fiat in each case or by rules resting on its authority for the time or the occasion. The ideal in the authoritarian path seems to be efficiency. But efficiency to what end?
A service state, a state which, instead of preserving peace and order and employing itself with maintaining the general security, takes the whole domain of human welfare for its province and would remedy all economic and social ills through its activities, has made much progress toward establishing itself in America since the first World War. It was known earlier in Continental Europe and came to be well developed there with the rise of great centralized nations. But although some writers in England were urging the possibilities at the end of the last century, it was so at outs with ingrained modes of legal and political thought in the English-speaking world that for a time few sought to fit together the pieces of evidence to see what is indicated as to the direction in which we have been moving. In the meantime it has made exceedingly rapid progress and has covered already a very wide field of individual activity and of official promotion of broad welfare programs on every side.
I say service state rather than the usual term “welfare state.” The term welfare state has always seemed to me a boast. Governments have always held that they were set up to promote and conserve public Welfare. This is implicit in the synonym “commonwealth”—the common weal or general welfare personified in the state. So far men have agreed. But when it comes to the question how the common weal or general welfare is to be achieved, they have differed and still differ profoundly. Some think the general welfare is best promoted by a government which maintains order and administers justice by adjusting relations and ordering conduct according to law, for the rest leaving men to do things for themselves in their own way so as they do not commit aggressions upon others or subject others to unreasonable risk of injury, and act in good faith in their relations with others. On the other hand, there have always been those who have believed in a benevolent government which helps men instead of leaving them free to help themselves; who have believed in a paternal order or paternal state (one might even say maternal state) doing things for subjects or citizens to the fullest extent.
Let me make it clear that I am not preaching against a service state in itself. Society of today demands services beyond those the state which only maintained order and repaired injuries could perform. In a complex industrial society it becomes more difficult to do by private initiative many things which the public wishes done and wishes done quickly. Administrative agencies of promoting the general welfare have come to be a necessity and have come to stay. It would be futile to quarrel with the idea of a service state in America kept in balance with the idea of individual spontaneous initiative characteristic of the American in the past. What we must question is not state performance of many services which it can perform without upsetting the American legal-political order. Such things may be done while holding to the idea of rights of individuals as legal rights secured by the law of the land, while holding to a doctrine of law governing public servants, state agents, and private individuals alike, and without substituting administrative discipline for legal liability made effective by legal proceedings in the courts. What must be questioned is the idea that all public services must and can only be performed by the government; that politically organized society and that alone is to be looked to for everything and that there is no limit to the services to humanity which it can perform. What I challenge is carrying to the extreme the idea of regimented co-operation for the general welfare as the task of law, so that there ceases to be law. Exaltation of politically organized society to the position of an absolute ruler means that those who exercise the power and authority of that organization are above the law. What they do is law because they do it, which is the very negation of law.
A politically organized society as an absolute ruler presupposes either a body of supermen administrators and a super-superman over them or an all-wise majority or plurality, served by supermen administrators, omnicompetent and equal to taking over the whole domain of the general welfare and to determining in detail what it calls for in every situation. Such a society cannot tolerate questioning of its commands, methods or acts. They have an all-sufficing basis in its authority. One conspicuous service to mankind may be questioning of institutions and doctrines of the service state, and this service of adequate questioning of itself and of its carrying out of the services it performs, cannot be expected reasonably of absolute rulers or ruling oligarchies under an authoritarian ideal.
In the English-speaking world the service state began by performing a few major additional services beyond maintaining order and administering justice. As it has added more and more it has come to be jealous of public service performed by anyone else.
What is to be the effect of the development of the service state and its authoritarian ideal upon the American constitutional legal polity? The service state as it develops as a superstate must be par excellence a bureau state. From the very nature of administration the bureau state calls for a highly organized official hierarchy. A hierarchy calls for a superman (although very likely an ex officio superman) at its head. Thus it starts a path which may lead to a totalitarian state. The service state has Marxian socialism and absolute government in its pedigree and has grown up along with the totalitarian state in other parts of the world. Liberty—free individual self-assertion, individual initiative and self-help—is looked on with suspicion if not aversion by the service state, and its advocates seek “a new concept of liberty,” a freedom from want and freedom from fear, not freedom of self-assertion or self-determination. Self-help by the individual, competing with the service rendered by the state, seems an interference with the regime maintained by the government. Spontaneous individual initiative is frowned on as infringing on the domain of state action. The service state easily becomes an omnicompetent state with bureaus of ex officio experts and self-protecting propaganda activities carried on at public expense. If the step to it is gradual, the step from it to an absolute state is easy and may be made quickly. Regulation of the means of communication becomes control of the means of communication. Thus more and more the service state may block effective criticism and at the same time advertise and extoll its good works. Moreover, the remedy of popular uprising is not available as it was formerly. Effective weapons are not part of the furniture of every home as they were once. “Embattled farmers” and volunteer armies springing up spontaneously cannot compete with the fighting planes and tanks and artillery and motor transport which a strong government of today can bring to bear upon them. In his lectures on law in 1790, James Wilson, then one of the Justices of the Supreme Court of the United States, spoke with enthusiasm of a “right of revolution” which, he said, “should be taught as a principle of the Constitution of the United States and of every state in the Union.”30 The editor of his Works and chief recent exponent of his teaching speaks also of the “inherent natural right of revolution.”31 The Bill of Rights in the Constitution of the United States provides that “the right of the people to keep and bear arms shall not be infringed”32 and there are like provisions in the several state constitutions. But the bearing of arms by robbers, gangsters, and bandits has required legislation and one state has forbidden unauthorized bodies of men to drill or parade with arms or associate as a military organization.33 Our leading nineteenth-century authority on the bills of rights wrote that he would not undertake to say how far it was in the power of the legislature to regulate the right which the constitutions say is not to be infringed.34 It is perhaps noteworthy that totalitarian governments have fallen in the present century under pressure from without rather than from within.
Bills of rights are a characteristic feature of American constitutions. Beginning with the Virginia Bill of Rights of 1776, enacted immediately after the Declaration of Independence, they have been made a part of all our constitutions, state and federal. Our American bills of rights are prohibitions of government action infringing guaranteed rights, that is, guaranteed reasonable expectations involved in life in civilized society. They are laws, part of the Constitution as the supreme law of the land, enforceable in legal proceeding in the courts at suit of those whose rights are infringed or threatened. They are generically distinct from the declarations of rights on the model of the French Declaration of the Rights of Man which are to be found in constitutions outside the English-speaking world. These are mere preachments, declarations of good intentions or exhortations to governmental authority, legally binding on nobody and unenforceable by any one whose interests are infringed. But the service state is beginning to affect our conception of a bill of rights in America. In a recent proposal for a bill of rights for a world government35 we get the Continental note in the very title, but also the note of the service state which is disinclined toward law. There is a declaration of a right of every one to claim for himself “release from the bondage of poverty.” It is not that he is to be free to free himself from this bondage, but that the world political organization is to free him without his active help in the process. Also he is declared to have a right to claim reward and security according to his needs. But his claim to needs is likely to have few limits and is sure to conflict with the claims of others to like needs. Such declarations are not merely preachments, not enforceable and not intended to be enforced as law; they are invitations to plundering by rapacious majorities or pluralities quite as much as to rapacious personal sovereigns.
In a recent book36 Professor Corwin has discussed the decadence of fear of oppression by government which has become very marked. Experience of absolute government by the Stuarts in seventeenth-century England and of government of the colonies from Westminster in seventeenth- and eighteenth-century America had made this fear a dominant consideration in our polity from the beginning until well into the present century. Growth of a feeling of the divine right of majorities, akin to that of the divine right of kings, has led of late to an assumption that concern about oppression by government is something we have outgrown. Yet distrust of an absolute majority or of an absolute plurality is as justified in reason and in experience as distrust of the absolute personal ruler. Indeed, the latter may be given pause by fear of an uprising which an intrenched majority need not fear.
It is characteristic of the service state to make lavish promises of satisfying desires and expectations by giving them the title of rights. If a bill of rights or a constitution declares a right of every individual to “just terms of leisure,” the individual who reads it will think that just terms of leisure have not merely been provided him they have been guaranteed him. But those who draft it very likely do not ask themselves whether such a provision is or can be a law, a precept of the supreme law of the land, or only a preachment of policy which no court can enforce and no legislative body can be made to regard. Such preachments enfeeble a constitutional legal structure. As they are not and cannot be enforced, they lend themselves to a doctrine that constitutional provisions generally are not legally enforceable and may be disregarded at any time in the interest of political policy of the moment. Thus they lend themselves to the encroachments of the proponents of political absolutism. They weaken the constitution polity which we in America built up in our formative era.
Let us ask ourselves whether there is enough wealth in the world reachable by taxation by a world government, or even by confiscation by an absolute ruler of the world, to guarantee “just terms of leisure,” supposing they could be fixed as an enforceable legal measure for every land and region, to the whole population of the world during life. A bill of rights is much more than a declaration of ideals. The bill of rights is a body of legal precepts binding on the courts and on the legislative and executive to the extent that enactments and executive action in contravention of them will not be recognized or given efficacy by the courts. A declaration of ideals may point out to legislative or executive what they ought to do. It may afford the courts a means of interpreting what is done by legislature or executive. But it will not enforce itself and there is no body with power to enforce it.
Setting forth such things in a constitutional declaration of guaranteed rights makes a farce of constitutions. How can a universal government release the whole world through a political-legal process “from the bondage of poverty”? What organ of government can be made to bring about that enough is produced and is continuously produced to insure plenty for every one (with guaranteed terms of leisure) everywhere? How can any court compel a legislature, an executive, or any individual or organization of individuals to bring this about? How can an executive or a legislature compel either or any one else to do it? The attempt of the Soviet regime to compel farmers to supply adequately the urban population of industrial laborers37 shows what the most absolute of autocratic governments must do to realize such an ideal of enforced universal plenty even for one land. Such pronouncements proceed upon a theory which used to be preached by social workers that law is a protest against wrong. Protests against wrong may be very effective in spurring law-makers to find remedies and enact laws making the remedies effective. But protests themselves lack the qualities of enforceability and the machinery of enforcement which are demanded for a law in any advanced society.
A power to act toward a general equality of satisfaction of wants and a policy of developing such an equality as an ideal are something very different from a provision in a bill of rights that a world government guarantees to bring such a policy to immediate fruition. No one can seriously believe that in such time as we can now foresee even the western world can provide complete social security to its furthest extent to the whole and every part of itself. Is the whole world, much of which has always been close to the brink of starvation, reasonably to be expected to do this?
I have spoken at some length of proposals for declarations of rights for a world organization because the propositions drafted by enthusiastic promoters of a world constitution have been followed in recent proposals for constitution writing in the development of the service state in America. A state which endeavors through law to relieve its people of want and fear without being able to relieve its individual citizens of the many features of human makeup which lead to poverty and fear is attempting more than the miracles of science which has divided the indivisible have been equal to. How can we expect a state to bring about complete satisfaction of all the wants and expectations of everybody in a world in which we all, potentially at least, want the earth and there is only one earth? I agree that we have a noble ideal. But can it be made an ideal element in a system of law? Guarantees which are no more than promissory declarations of policy can do little more than deceive. The service state is a politically organized society. It cannot, as could Baron Munchausen, pull itself up by its own long whiskers. This does not mean, however, that our American nineteenth-century bills of rights cannot be amended or supplemented to meet conditions of the urban industrial America of today or that they are necessarily a model for bills or declarations of rights elsewhere.
Promissory bills of rights, creating expectations of the legally unachieveable and weakening faith in constitutions as the law of the land are a step toward the totalitarian state. The strong selling point of that state is its argument that a strong man, a superman leader, can do what a government hindered by constitutional checks and balances and operating according to law cannot do. When a constitution declares as rights (presumably legal rights which may be realized by effective procedures) claims to be secured by a government which that government cannot secure, it invites centralization of power in an absolute government which professes ability to secure them. The service state, taking over all functions of public service, operating through bureaus with wide powers, and little effective limitation upon exercise of their powers, through government positions for a large and increasing proportion of the population, and through systematic official propaganda and a system of subsidies to education, science, and research, can easily be taking strides toward an absolute government, although under forms of democracy. Indeed, the extreme advocates of the service state insist that constitutional democracy is a contradiction in terms.38 To them a democracy must be an unrestricted rule of the majority for the time being. The majority must be as absolute a ruler in all things as was the French king of the old regime or the Czar in the old regime in Russia. As the seventeenth century argued that a monarchy must in the nature of things be an absolute not a constitutional monarchy, on the same logical grounds it is argued that a democracy must be an absolute not a constitutional democracy.
General welfare service by the state, becoming service for strong aggressive groups or for politically powerful localities, has been the ladder by which absolute rulers have climbed to power and the platform on which they have been able to stay in power. Louis XIV held down France by holding down Paris by distribution of bread at the expense of the provinces. The Spanish monarchy long held itself in power by using the wealth of the New World for service to its subjects at home. Napoleon III used state workshops. Totalitarian Italy used the theory of the service rendered by the corporative state. Totalitarian Russia promises proletariat rule at the expense of the rest of the community. Indeed in antiquity the Roman emperor held down Italy by extortion of wheat from Egypt.
Since the first World War there has been a great deal of preaching and much promising as to the rights of minorities and of oppressed racial groups. But the lavish promises and administrative absolutism of the service superstate, with the absolute rule of majorities or even pluralities and of leaders in the name of majorities which they involve, are a menace to the guarantees that a constitution which is a legal document, not merely a frame of government promising welfare service which it cannot be made to perform, is able to give these groups. Experience seems to show that the attempt to make all men equal in all respects, instead of in their political and legal rights and capacities, is likely to make them more unequal than nature has made them already. Unless equality is given the practical meaning of the nineteenth-century American bills of rights, we are likely to be thrown back to a proposition that whether or not all men are born equal they are at any rate born equally.
There has been a tendency of men in all history to worship their rulers. In the society of today that takes the form of faith in absolute rule of the majority or, indeed, of the plurality for the time being. We forget that majority or plurality are only a practical way out when we cannot get entire agreement. The founders of our American polity, with long and bitter experience of absolute rule behind them, sought a government of checks and balances by which absolute rule by any one was precluded. As Mr. Justice Miller put it, in the centennial year of the American Revolution, the theory of American governments, state and national, is opposed to the deposit of unlimited power anywhere.39 Mr. Justice Frankfurter repeated the proposition only the other day. His words were: “Not so long ago it was fashionable to find our system of checks and balances obstructive to effective government. It was easy to ridicule that system as outmoded—too easy. The experience through which the world has passed in our own day has made vivid that the Framers of our Constitution were not inexperienced doctrinaires. These long-headed statesmen had no illusion that our people enjoyed biological or psychological or sociological immunities from the hazards of concentrated power. . . . The accretion of dangerous power does not come in a day. It does come, however slowly, from the generative force of unchecked disregard of the restrictions that fence in even the most disinterested assertion of authority.”40
It is worth while to recall what brought forth Mr. Justice Miller’s pronouncement. State legislation had imposed a tax for a subsidy to a particular private manufacturing enterprise. That was rejected as arbitrary and unreasonable in 1875. But in the service state of today expensive service to some at the expense of others is regarded as a service to the public, as indeed it may be in some cases, and this tempts aggressive groups to obtain legislation providing service to them for which others must pay. A group of this sort easily in its own mind identifies itself with the public. Obviously the conception of public service needs to be carefully defined and limited if we are to avoid being led into absolute rule by majority or plurality.
A government which regards itself, under pretext of extending a general welfare service to the public, entitled to rob Peter to pay Paul, and is free from constitutional restraints upon legislation putting one element or group of the people for the whole, has a bad effect on the general morale. If government is a device for benevolent robbery, a would-be Robin Hood of today is not likely to see why his benevolently conceived activities are reprehensible. Based on colonial experience of legislation imposing burdens on some for the benefit of others rather than of the public, the older American state constitutions and substantially all state constitutions in the nineteenth century, forbade special or class legislation. The omission of this provision from recent state constitutions is significant. No doubt the restriction in the nineteenth-century constitutions was applied too rigidly and was at times made to stand in the way of proper welfare legislation. But entire omission points to a feeling that government is devised and intended to be unfair and even oppressive to minorities and that there should be no limit to the ability of organized groups to make their fellow men pay for special service to them.
A service state must be highly bureaucratic. Bureaus are characteristically zealous to get everything in reach under their control. Would it be a high public service to set up a bureau of psychologists to examine us for our aptitudes and assign us whether we like it or not to the calling for which they find us fitted? Before the advent of psychologists such a state was argued for by Greek philosophers. The later Eastern Roman empire stabilized society by putting and keeping men in callings somewhat in this way. An omnicompetent state postulates omnicompetent bureaus. Why in the perfect all-regulating state allow human energy to be wasted by permitting individuals to engage in futile efforts to employ themselves in callings in which they cannot succeed? Is that the next step after subsidizing them in callings in which they are failing and bound to fail?
Perhaps I have said enough to show that the authoritarian path, indicated by the service state, leads away from law. It is true the Soviet polity gave up the Marxian “withering away of law.” But what it kept and developed was not law but laws, rules attaching definite detailed consequences to definite detailed states of fact, applied in the administrative manner. At any rate, the authoritarian path leads away from a legal order maintained by a judicial process adjusting relations and ordering conduct by applying according to a received traditional technique authoritative models or patterns of decision. Social control through politically organized society is made a regime of force, not a regime of reason.
Kelsen has argued the identity of state and law, saying that the State is a normative ordering co-extensive with the normative ordering of the system of law.41 But if we say that the legal order and the political organization of a society are co-extensive does that make them identical? Although the services now performed by the state must have the force exerted through the legal order behind them to make them possible, are those services generically like the adjustment of relations and ordering of conduct through systematic employment of the force of the organization? Most of the states of the United States have established state universities. But they compel no one to go there or to teach there, and do not even prescribe what shall be taught or how it shall be taught. Only by holding that whatever officials do is law and that the state, too, is what officials do can it be maintained that all political action is legal. Certainly it is not all compulsion. The building of the Hoover Dam on the Colorado River or the transfer of voluntary immigrants to Alaska from the wheat-raising states during an agricultural depression were not applying threats of state force to specified acts. Seeking to get rid of the idea of the state, Kelsen thinks of the aggregate of the threats of application of the force of politically organized society to individuals in particular situations and on particular states of fact as a unity not to be distinguished into fact and law. This is one way of meeting the question whether we are to say the state postulates the law or the law postulates the state, which Vinogradoff tells us it is idle to argue.42 Perhaps in Kelsen’s pure science of law, for a purely juristic analytical theory, we can ignore the side of politically organized society which renders services other than maintaining the legal order. In Anglo-American law those through whom the services are performed do so subject to scrutiny of the courts and subject to liability for injuries done in performing them otherwise than within their powers and in the legally appointed way. But if we adopt the threat theory of a law are we bound to say that everything which is brought about directly or indirectly by the threats is to be held law?
In connection with the authoritarian path it remains to say something about the corporative state,43 of which we heard much in the third and fourth decades of the present century. For the present purpose its significant feature was that the unit was the occupational group, not the individual human being. The idea of occupations as a political unit was not new. There was something like it in representation of estates in the Middle Ages. It had been urged by writers on philosophical politics and theory of the state in the nineteenth century.44 In America, Calhoun argued for something very like this. “There are,” he wrote, “two different modes in which the sense of the community may be taken; one simply by the right of suffrage unaided, the other by the right through a proper organism. Each collects the sense of the majority. But one regards numbers only and regards the whole community as a unit having but one common interest throughout and collects the sense of the greater number of the whole as that of the community. The other, on the contrary, regards interest as well as numbers, considering the community as made up of different and conflicting interests, so far as the action of the government is concerned, and takes the sense of each through its majority or appropriate organ, and the united sense of all as the sense of the entire community. The former I shall call the numerical or absolute majority; and the latter the concurrent or constitutional majority.”45 There is something like this in the sociological view of society as made up of groups and associations and relations.46 Thus we have three possible units for the securing of interests: We may look only at the collectivity and think of them in terms of a politically organized society, or we may look only at occupational groups as summing up the interests of its members, or, as the law has done, we may look at the individual human being and the claims and demands and expectations he urges. Often to procure a hearing for them he will identify them with those of the public. But at bottom they are his and he will not be satisfied unless they are weighed as he understands and urges them. The task of the law is to adjust relations and order conduct as claims and expectations are actually urged and press for recognition.
After all the social unit in the modern world is the individual human being. Recognition of his moral worth was the great achievement of eighteenth- and nineteenth-century juristic and political philosophy. Appreciation of the social interest in the individual life is the significant achievement of the social philosophy of the present generation. It is not likely that any economic order which may supervene in such time as we can foresee will bring about a legal order which can succeed in ignoring him.
If what I have called the path of liberty has ended or is to end in a blind alley, and if the humanitarian path is but a detour leading the law into the authoritarian path, the Marxian prophecy of the disappearance of law in the ideal society of the future is likely to be fulfilled. But I am unwilling to subscribe to the give-it-up philosophy that leads to this result. Instead I have faith that what was found for civilization while law was treading the path of liberty will not be lost. We shall not make a wholly new start in the humanitarian path. That path will not be a mere bypass to the authoritarian path. The path of the future will find a broader objective in the direction indicated by the humanitarian path. It will find a sure starting point where the path of liberty has seemed to end and will go forward to a fuller development of human powers in what may prove to be a path of civilization. What has been worked out by experience and reason for the adjustment of relations and ordering of conduct toward the satisfaction of human claims and demands and expectations from the classical Roman jurists to the twentieth-century codes, from the King’s Hall of Henry II to the Royal Courts of Justice of Victoria, from the courts of the American colonies to the constitutional system of American courts of today, is not to be wholly lost. Out of it, as the law pursues a broader and straighter path of civilization, should come a law of another great age of the law such as were the Roman classical era from Augustus to Alexander Severus, and the maturity of the civil law in Continental Europe, and of the common law in the English-speaking world in the nineteenth century.
[1. ]Early Writings of Mr. Justice Holmes (1931) 44 Harvard Law Review 725–96.
[2. ]Holmes, The Common Law (1881).
[3. ]Holmes, The Path of the Law (1897) 10 Harvard Law Review 443, Collected Papers (1921) 210–43.
[4. ]Pound, New Paths of the Law (1950, lectures at the University of Nebraska).
[5. ]Rigby v. Connol, 14 Ch. D. 482, 487 (1880).
[6. ]Berrien v. Pollitzer, 165 Fed. 2d, 21 (1947).
[7. ]Manu, viii, 392, Bühler’s transl. 25 Sacred Books of the East (1886) 322.
[8. ]The End of Law as Developed in Legal Rules and Doctrines (1914) 27 Harvard Law Review 195, 225.
[9. ]Fourth Institute (1644) 71.
[10. ]Jennings, The Institutional Theory, in Modern Theories of Law (1933) 68, 72.
[11. ]The Future of Law (1937) 47 Yale Law Journal 1, 13.
[12. ]Constitution of Massachusetts, Part I, art. 30 (1780).
[13. ]Frankfurter, J., in United States v. Mine Workers, 330 U.S. 258, 308 (1947).
[14. ]Brandeis, J., in Myers v. United States, 272 U.S. 52, 292–93 (1926).
[15. ]E.g., Virginia Declaration of Rights (1776) § 5; North Carolina Declaration of Rights (1776) § 4; Massachusetts Declaration of Rights (1780) § 30.
[16. ]Winthrop v. Lechmere (1727–28) 1 Thayer, Cases on Constitutional Law (1895) 34.
[17. ]Pennsylvania Statutes at Large, 148, 156 (1701)—disallowed, 481–82 (1705); 301–31 (1710)—disallowed 548–49 (1750); 299–308.
[18. ]Winthrop v. Lechmere, supra note 16.
[19. ]E.g., 1 Acts and Resolves of the Province of Massachusetts Bay, 72 (1692)—disallowed 1695.
[20. ]See Pound, Organization of Courts (1940) chap. 3. See also Trott, Laws of the Province of South Carolina, 472 (1736)—disallowance of the statute of 1726 “for the better settling of the courts of justice.”
[21. ]4 Andrews, The Colonial Period of American History (1938) 145–46, 175–76, 303–4, 315.
[22. ]4 Connecticut Historical Society Collections (1892) 96n.
[23. ]4 Andrews, The Colonial Period of American History (1938) 375.
[24. ]Ibid. 420.
[25. ]Pound, Organization of Courts (1940) 65–66.
[26. ]See e.g., 1 Colonial Records of Georgia, Candler (1904) 451.
[27. ]1 Gsovski, Soviet Civil Law (1948) 75, and see Vyshinsky and Undrevich, Soviet Constitutional Law quoted by Dr. Gsovski. ibid. 74–75 and 75n., 78.
[28. ]Timasheff, Introduction to the Sociology of Law (1939), chap. 10.
[29. ]See Pound, The Limits of Effective Legal Action (1916) 27 International Journal of Ethics, 150.
[30. ]1 Wilson’s Works (Andrews’ ed. 1896) 18.
[31. ]Andrews, American Law (1900) §§ 143.
[32. ]U.S. Const. Amendment II, ratified 1791.
[33. ]Commonwealth v. Murphy, 166 Mass. 171 (1896).
[34. ]Cooley, Constitutional Limitations (1871) chap. 10, last section (7 ed. 1903) 449.
[35. ]American Bar Assn., Documents for Study in the 1949 Series of Regional Group Conferences of the American Bar Association under the Auspices of its Committee for Peace and Law Through United Nations (1949). See also Essential Human Rights, Annals of the American Academy of Political and Social Science (1946) vol. 243, 18–26.
[36. ]Corwin, A Constitution of Powers in a Secular State (1951) 57 ff.
[37. ]See 1 Gsovski, Soviet Civil Law (1948) chaps. 20, 21.
[38. ]The Neo-Kantian left. See Pound, Fifty Years of Jurisprudence (1938) 51 Harvard Law Review 444, 452, and notes 22–27.
[39. ]Loan Association v. Topeka, 20 Wallace (U.S.) 655, 663 (1875).
[40. ]Frankfurter, J., in Youngstown Co. v. Sawyer, 343 U.S. 579, 593–94 (1952).
[41. ]Kelsen, Reine Rechtslehre (1934) chap. 8.
[42. ]2 Vinogradoff, Collected Papers (1928) 357–60.
[43. ]For the juristic doctrine and bibliography see Pound, Fifty Years of Jurisprudence (1938) 51 Harvard Law Review 777, 782–83.
[44. ]Hegel, Grundlinien der Philosophie des Rechts (1821) § 308; 2 Stahl, Die Philosophie des Rechts (5 ed. 1878) §§ 96–100, especially 320–22; 1 Bluntschli, Allgemeine Staatslehre (6 ed. 1886) 552–54.
[45. ]Calhoun, Disquisition on Government (1848–49) in 1 Works (New York ed. 1854) 28.
[46. ]Ehrlich, Fundamental Principles of the Sociology of Law (transl. by Moll, 1936) chap. 1.