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Pound on the Ideal Element of Law

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Source: Roscoe Pound, The Ideal Element in Law, ed. Stephen Presser (Indianapolis: Liberty Fund 2002). Chapter: ONE: Is There an Ideal Element in Law?

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ONE. Is There an Ideal Element in Law?

Whether there is an ideal element in law depends not a little on what is meant by the term ‘law.’

Historically the oldest and longest continued use of the term ‘law’ in juristic writing is to mean the aggregate of laws, the whole body of the legal precepts which obtain in a given politically organized society. This meaning was generally assumed in definition of law from the Middle Ages to the end of the eighteenth century. Law was an aggregate of laws and a law was an authoritative rule of conduct for the individual man. Bentham put it so1 and such was generally the position of the English analytical jurists. It became a practical question recently in what is likely to prove a leading case under the new constitution (1947) of the State of New Jersey.2 The constitution provided: “The Supreme Court shall make rules governing the administration of all courts in the state and, subject to law, the practice and procedure in such courts.” The court held that the words ‘subject to law’ referred to substantive law; not to future or past legislation as to details of procedure but to substantive law established either by common law or by legislation. Law is a broader term than ‘laws’ or than ‘a law.’ The latter term refers to single items of one element in law in but one of three senses of that term which must be distinguished.

One of those meanings is what is now called ‘the legal order’—ordre juridique, Rechtsordnung, the regime of adjusting relations and ordering conduct by systematic application of the force of a politically organized society. This regime is the most highly developed form of social control in the modern world. It is a specialized form of social control, carried on with a body of authoritative precepts, applied in a judicial and administrative process. After law had been defined by Greek philosophers and Roman jurists, and by philosophers, publicists, jurists, and lawyers, from Thomas Aquinas to Grotius and Pufendorf and Hobbes and Blackstone in terms of laws or rules of law, Kant at the end of the eighteenth century applied the term to the condition which the body of precepts brings about or seeks to bring about and so came near to the idea of the legal order.3 Later formulas were put in terms of the legal order, thought of as a process rather than a condition.4 Kohler expressly defines the legal order as such and assumes that no further definition of law is required.5 Also Kelsen uses ‘law’ in this sense in his theory of the unity of law, that is, the unity of the legal order.6

As was said above, a second sense of the term law, is to mean the authoritative materials by which controversies are decided and thus the legal order is maintained. It is the sense in which law is said to be an aggregate of laws. But in truth here also there is no simple conception. I undertake to say that law in that sense is made up of precepts, technique, and ideals. There is a body of authoritative precepts, developed and applied by an authoritative technique, in the light of authoritative traditional ideals. Law in the second sense is commonly thought of as simply a body of authoritative precepts. But the technique of developing the precepts, the art of the lawyer’s craft, is quite as authoritative and no less important. Moreover, the ideal element of law in the second sense, the body of received, authoritative ideals, which is the background of interpretation and application of legal precepts and is crucial in new cases in which it is necessary to choose from among equally authoritative starting points for legal reasoning, often has more significance in the administration of justice according to law than the text of the precepts applied.

As a consequence of development of the functional attitude toward the science of law, there began a generation ago to be increased attention to the phenomena of the actual administration of justice as contrasted with exclusive attention to the authoritative materials for guidance of judicial action. Accordingly much which has been written about ‘law’ has had to do with what Mr. Justice Cardozo has taught us to call the ‘judicial process.’7 But today we must take account also of what we may call the ‘administrative process.’ We must think of maintaining the legal order by a process of adjusting relations and determining controversies whether it is done judicially or through administrative agencies. Writers on jurisprudence from a psychological standpoint are concerned chiefly with the judicial process or with both the judicial and the administrative processes as phases of one type of governmental activity. Hence, in the neo-realist writing, of which there has been so much in America in the past twenty-five years, the term ‘law’ is used in a third sense. As Llewellyn has put it, “What officials do about disputes is. . . the law itself.”8

Much of what has been written about the ‘nature of law’ has been vitiated by taking all three of these meanings as included in the one term and then assuming that the whole may be defined by defining the authoritative materials for guidance of judicial and administrative determination in terms of one item of the precept element in those materials, namely, rules of law. In truth, the precept element itself is complex, composed of rules in the strict sense, precepts prescribing definite detailed legal consequences for definite detailed states of fact; principles, i.e., authoritative starting points for legal reasoning; precepts defining conceptions, i.e., authoritative categories into which states of fact may be put with the consequence that certain rules or standards become applicable to them; and precepts establishing standards, i.e., measures of conduct from which one departs at his peril of answering for resulting damage or of legal invalidity of what he does.

In arguing for and discussing an ideal element in law one must look into all these meanings of ‘law.’ But one must be concerned specially with one ingredient of law in the second sense, namely, laws, the body of authoritative norms or models or patterns of decision applied by the judicial organs of a politically organized society in the determination of controversies so as to maintain the legal order. This precept element may be looked at with respect to the form in which the laws are expressed, reflecting the source of their authority, or with respect to the point of view from which we regard them. They have looked very different to jurists according to the form looked at or the standpoint of observation chosen.

Law as an aggregate of legal precepts may be defined with reference to the source of authority or with respect to the form regarded as typical. When thought of in terms of the authority which promulgates it and puts coercion behind it, jurists have spoken of enactment or promulgation by the ruling organ of a politically organized society. Hence, we get definitions of a law in terms of the imperative type of legal precepts.9 But jurists who looked instead at the form in which precepts are expressed have thought of traditional or customary precepts, expressing reason or good morals as the type and so have defined law as a body of traditional or moral rules of conduct formulated by some authority of politically organized society but having a deeper foundation in reason.10

More significant differences, however, come from the standpoint of purpose from which legal precepts may be regarded. One such standpoint is that of the citizen or subject who wishes to know what he should do, as an upright and law-abiding person, at the crisis of action. To him a law is a rule of conduct.11 On the other hand, Mr. Justice Holmes thought the question as to the nature of a law should not be put from the standpoint of the conscientious good man, seeking guidance as to what is right, but from the standpoint of the unconscientious bad man who seeks to know how far he may do what he wishes to do with impunity or at least a reasonable prospect of impunity. To such a person law is a body of threats of what the public authorities may do or a person aggrieved may do to him if he does some particular thing he has in mind or does not do something he wishes to avoid doing. This threat theory of a law has been much urged in the present century.12

In the same paper Mr. Justice Holmes speaks of a law from another standpoint, namely, the standpoint of a counselor, advising clients as to their rights and liabilities. From this standpoint, he says, a law is a prediction of what the courts or administrative agencies will do, given a particular state of facts or particular situation.13 But it is the counselor who does the predicting, not the law. Hence, Mr. Justice Cardozo combined the threat idea and the prediction idea, saying that a law is a rule of conduct so established as to justify a prediction with reasonable certainty that it will be enforced by the courts if its authority is challenged.14

Another standpoint from which the nature of a law may be looked at is that of the judge, called upon to decide a case pending before him and looking for an authoritative ground of decision. He may think of a rule of conduct which is, therefore, a rule of decision. Or he may think of a model or pattern of decision of such cases as the one before him.15 It is because judges feel bound to and do normally give effect to these rules or decide in accordance with these models or patterns that they may serve as rules of conduct for the good man or threats to the bad man or bases of prediction to the counselor.16

Finally, there is the standpoint of the jurist or the law teacher who seeks to put the body of legal precepts in the order of reason for the purposes of systematic exposition. Today jurists have come generally to think of a legal precept as an authoritative pattern of what ought to be in conduct, in official action and in decision.

In whichever of these five senses we understand the body of legal precepts which is commonly taken to be meant by the term ‘law,’ when we come to study it functionally, we find that we must inquire as to certain ideals of the end or purpose of social control and so of the end or purpose of the legal order (law in the first sense), of the judicial process (law in the third sense), and hence of the authoritative materials of judicial decision and administrative action (law in the second sense). We find that we must take account of certain ideals of what those authoritative materials should be and how they should be understood and applied in order to achieve the end and purpose of the legal order by means of the judicial process. For example, we find that in the judicial process a highly significant role is played by ideals with reference to which the starting points for legal reasoning are chosen, by ideals which determine what is ‘reasonable,’ by ideals by which the ‘intrinsic merit’ of competing interpretations is determined, and by ideals which lead tribunals to extend one precept by analogy while restricting another to the narrow bounds of its four corners.

What is an ‘ideal’ as I am using the term in connection with theories of the nature of ‘law’? The term comes from a Greek word meaning basically something one sees. Applied to action, it is a mental picture of what one is doing or why, to what end or purpose, he is doing it. Postulating a good lawmaker and a good judge, it is a picture of how the one ought to frame the laws he enacts and how the other ought to decide the cases that come before him. But behind these pictures of what ought to be the enacted or the judicially formulated precept for the case in hand is a basic mental picture of the end or purpose of social control—of what we are seeking to bring about by adjustment of relations and ordering of conduct by social pressure on the individual and so immediately of what we are seeking to achieve through adjustment of relations and ordering of conduct by systematic application of the force of politically organized society.

Such ideals may be the avowed basis of determination or may be held and made the background of their decisions by judges unconsciously or, one might say, half consciously, being taken for granted as a matter of course without conscious reference to them. Often they have a traditional authority from having been received in the thinking and understanding of practitioners and judges—an authority, therefore, quite as legitimate as that of traditionally received precepts. Often they have been assumed in a long course of teaching and writing so that lawyers and judges, perhaps for generations, have assumed them as a matter of course as the criteria of valuing claims or expectations, of deciding upon the intrinsic merits of competing interpretations, of choosing from among possible starting points of legal reasoning or among competing analogies and of determining what is reasonable and just. Sometimes we may find this body of received ideals referred to in the lists of subsidia in codes or in authoritative or semiauthoritative expositions of codes.17

Are ideals of this sort a part of the law? Are we to say, with Bentham, that law is nothing but “the sum total of a number of individual laws taken together”?18 Shall we say that they are wholly outside of the law, that is, are no part of the authoritative materials established or received for the guidance of judicial or administrative action, or shall we say that so far as they are received and generally recognized by lawyers and judges they are inside of the body of the law, using that term in the second of the three senses set forth above? Shall we say that the ideals which enter into the judicial process in action are partly inside and partly outside of the law? Some, shall we say, are felt by lawyers and judges to be authoritative so that they ought to be applied in adjudication, while others are subjective and personal to particular judges and magistrates and can properly operate no further than to shape or help shape judicial action in matters which the law commits to discretion?

Because men tend to do what they think they are doing, professional and judicial ideals of the social and legal order have been and are a decisive factor in legal development. Such ideals may be so generally and firmly established with the weight of authoritative tradition behind them as to be a form of law in the strictest analytical sense. No consideration of the ‘pure fact of law’ takes account of the whole fact if it omits these authoritative materials. They are often quite as generally and authoritatively received as the legal precepts whose applications they determine and shape and content they fix. If it is said that many formulations of such ideals fail of acceptance and many ideals are urged which remain wholly subjective and are never authoritatively received or established, the same is true of proposed formulations of legal principles, of attempts to define the limits of legal standards, and of precise statements of rules of law. Everything which is urged in the name of the law does not succeed in establishing itself among the authoritative legal materials. Thus, merely from the analytical standpoint we need to distinguish between these ideals which are received and established and thus have become a part of the ‘pure fact of law’ and those which might be called sources rather than forms19 of the ideal element of a given body of law. In the case of legal precepts I have preferred to use ‘forms of law’ to mean the authoritative shapes which they take, the forms in which they are expressed and to which courts are referred in the decision of controversies. Sources then would be the unauthoritative materials from which the authoritative forms get their content. Ideals which are being urged in current juristic or judicial or professional thought, and so are beginning to influence judicial action without determining it (in the same way as a statement of a suggested rule of law in an Anglo-American text book may influence a court’s thinking more or less without being taken up as a ground of decision and formulated in the judgment of a court of ultimate review)—such ideals may be thought of as analogous to the sources of legal precepts. The ideal element in law, if I am right, should have the same thoroughgoing analytical study which has been given to the precept element. We should be studying whence came our received ideals and the newer formulations which are pressing upon tribunals. We should investigate how they have taken form and how they are used. Much study of legal precepts in action has missed effectiveness because it has ignored this element.

My point may be made best from the American cases because in the formative era of American law the courts were seeking to develop a common law for independent America from the common law of England as it had taken form in the seventeenth and eighteenth centuries. What they thought they were doing and why they were doing it had a special importance in the performance of such a task.

Ideals to which American judges have sought or tended to make the traditional or the enacted legal precepts conform may be ideals of the social order, and so of the end of law, or they may be ideals of the authoritative materials by application of which to the adjustment of relations and ordering of conduct that order is maintained and the end is to be achieved. The latter are more articulate in the reports. Moreover they reflect and help us understand the former. Let us, then, look first at judicial ideals of the content of the precept element of American law. Let us scrutinize judicial pictures of the materials in which the judges held themselves bound to find the grounds of deciding cases. What did they take these materials to be? How did they conceive of the content of the body of legal precepts they were administering?

One way of looking at a body of legal precepts is ethical. It has commonly been put in terms of ‘natural law.’ It finds natural law by reasoning on the basis of the ‘nature of man,’ using ‘nature’ to mean an ideal. It assumes an ideal body of legal precepts derived by reason from an ideal of what a perfect man would do and would not do. This is the classical natural law of the eighteenth century. Let us recall the task of the formative era of American law in which this ideal was dominant. It was necessary to make the common law of England, heavily burdened with the formalism of the strict law, shaped by ideals of the relationally organized society of the Middle Ages, speaking from an era of organization, applicable in a time of commercial development, to the needs and ideas of men who were opening up the wilderness in an oncoming era of individualism. In our social development we began with a pioneer society struggling to subdue the wilderness and defend against the Red Men. Then followed a time of settled agriculture, an era of small towns. Upon this followed a period of commercial progress, involving the rise of seaport cities and trade centers. Then came industrial supremacy and the rise of great metropolitan centers. Some of these stages have followed rapidly at times and in places and more slowly in others. They called for ideas of adaptability tempered by considerations of the stability required by the economic order. Such ideas were drawn from the ideas of the jurists of the eighteenth-century law-of-nature school. Their ‘natural law’ was set forth at the beginning, and for a long time thereafter, in American introductions to the study of law and elementary law books.20

But our American course of judicial decision began after the doctrine of this school was losing its vogue and it seldom appears as such in the law reports. Usually the ethical approach is put in terms of ‘the nature of justice’ or of ‘natural rights.’ Here ‘nature’ means ideal. The law is taken to be a body of reasonable precepts expressing an ideal of justice or a body of precepts expressing an ideal of rights—an ideal of secured moral claims or expectations. The former was commonly given a content from a philosophical version of the historical common law, or sometimes from comparative law. The latter was likely to get a politicolegal content from the bills of rights.

Ethical natural law with a philosophical-historical content seemed to have warrant of authority in the common law doctrine, as laid down by the English courts in the seventeenth century, that an Act of Parliament making a person judge in his own case would not be given effect by the courts,21 and Blackstone’s version of those cases as a rule of interpretation.22 The refusal of the seventeenth-century courts to enforce a statute ‘against common right and reason’ meant that legal precepts were pronouncements of common right and reason and to be interpreted and applied as such.23 More commonly interpretation and application were referred to the ‘nature of justice,’ that is, an ideal of justice, or the ‘nature of things,’ that is, an ideal of the moral and social order.24 A ‘natural-rights’ way of thinking, a picture of a body of precepts of universal inherent authority, securing ideal fundamental interests or expectations, going back to Grotius25 by way of Blackstone,26 was specially manifest in interpretation of the Fourteenth Amendment to the Constitution of the United States,27 in the application of which it played a great part.28

A closely related type of thinking proceeds on a postulated religious natural law. In America it conceived of an ideal Christian society and so of the legal precepts which would obtain in such a society.29 There was some historical warrant in the old English law books for saying that Christianity was part of the common law.30 This might mean that the common law of England presupposed a Christian society and hence its received ideals were those of such a society.31 But it was obviously another matter to maintain an ideal of a Christian society, as one received as part of the authoritative materials of judicial and administrative determinations in an American state in the nineteenth century.32 The proposition has never had much currency.

A type which has been most in evidence in American judicial decisions may well be styled a political natural law. In one form it proceeds upon the nature (i.e., ideal) of a politically organized society, commonly referring to the ‘social compact,’ which is frequently cited with assurance as something given us as authoritatively in all its details as the Statute of Wills.33 Sometimes it goes on the nature (i.e., ideal) of American institutions.34 Usually it is put more universally as drawn from the nature (i.e., ideal) of ‘free institutions’ or of ‘republican government.’35 This ideal was invoked to exclude all arbitrary or unreasonable legislative or executive action, i.e., contrary to a traditional standard of reasonableness, and the phrase ‘due process of law’ in the constitution, bills of rights, federal and state, was construed as declaratory thereof.36

For more than a century this was so universally received and so completely established in American constitutional law that we may well say the ideal was formulated as a standard for judging of legislative and administrative action. If this construction has a historical background in the contests between the Stuart kings and the courts, Coke’s Second Institute, and the contests between the colonists and the Crown and Parliament, yet it should be noted that history gave us nothing more than a doctrine of holding the ministers and agents of the Crown to the legal limits of the authority the Crown could give them, refusal to give effect to Royal assumption of the powers of Parliament, and assertion of judicial power to refuse to give effect to legislative action beyond the limits of temporal authority or in derogation of common right and reason. The interpretation of the limits imposed upon the federal and state governments in America by constitutional provisions for due process of law, as securing against what the courts regarded as arbitrary and unreasonable exercise of powers, was derived not from the historical materials of Anglo-American public law, but from an ideal of political action in the New World.

In suits to enjoin expulsion from clubs or societies or voluntary associations, where no property rights are involved but expulsion is a serious injury to the personality of the member expelled or threatened with expulsion, both English courts and American courts have spoken of the rules under which expulsion was threatened or proceedings whereby it took place as ‘contrary to natural justice,’ deriving an ideal of justice in such matters from the doctrines and methods of process and hearing in the courts.37 In one case the Master of the Rolls founded his determination on an ideal of the course of action which British officers and gentlemen would pursue.38

Closely related to the political-philosophical natural law is an economic-philosophical type in which the doctrine of laissez faire, as set forth in the classical political economy, is taken as the ideal of an economic order under an American constitution, and constitutional guarantees are taken to be declaratory thereof. In the statement which has had the most influence, Field, J., quoted from Adam Smith’s Wealth of Nations.39 This ideal of the economic order, as a legal ideal to be used as the background of interpreting and applying the provisions of a constitution, was put in almost the very words of the nineteenth-century texts on economics in an advisory opinion by the Supreme Court of Maine in 1871.40 After this statement of the classical economic doctrine the justices said: “The less the state interferes with industry, the less it directs and selects the channels of enterprise, the better. There is no safer rule than to leave to individuals the management of their own affairs. Every individual knows best where to direct his labor, every capitalist where to invest his capital. If it were not so, as a general rule guardians should be appointed, and who would guard the guardians?”41 There are many other examples in the books.42 Applied to legislation it is expressed in the doctrine that statutes in derogation of the common law are to be strictly construed.43 Applied to constitutions it conceives that idealized principles of the traditional law are guaranteed by the bills of rights and are beyond the reach of legislative innovation.44

Two typical cases are the decisions upon the first Married Women’s Acts in the fore part of the nineteenth century and the earlier decisions upon Workmen’s Compensation or Employers’ Liability Acts in the present century. To this day the law as to legal transactions of married women is made difficult by the attitude taken by the courts when these acts first came before them.45 It is significant to compare the way in which the operation of these statutes was held down, as in derogation of the common law, with the willingness of the courts to go beyond the letter of the statutes in giving effect to laws abrogating or altering rules of the feudal property law.46 The ideal of an American society, in the minds of the judges, pictured a simple ownership of land freely transferable, as the chief asset of a pioneer society, relieved of rules appropriate to a society ruled by great landowners, and devolving at death in the same way in which personal property was distributed. On the other hand, it pictured women as in the home, not about in the world entering into all manner of legal transactions. The one set of statutes conformed to the picture and was given more than full effect. The other did not and was held down in operation. Both were in derogation of the common law. But it is significant that the doctrine of strict construction of statutes in derogation of the common law was not applied to the laws which overhauled the law of real property and purged it of archaisms. Married Women’s Acts were no more radical in their departure from the common law than the statutes which made over descent of land. The difference in judicial treatment is not to be explained analytically by the common-law canons of interpretation.

When Married Women’s Acts first came before American courts they were looked at jealously with respect to rights of husbands,47 just as Workmen’s Compensation and Employers’ Liability Acts were at first held unconstitutional for want of due process of law as infringing the liberty and taking away the property of employers. It would have been quite possible to uphold the Married Women’s Acts as adopting the equitable as against the common-law view with respect to the property of married women and so not depriving husbands of substantial vested rights but giving the substantial claims of the wife better security than could be afforded in equity. That seems to have been the theory on which the statutes were drawn, as shown by the title: “An Act for the More Effectual Protection of the Property of Married Women.”48

In the same way the Workmen’s Compensation and Employers’ Liability Acts might have been upheld, as in the event they came to be, on more than one common-law analogy, notably that of liability without fault of the master or principal for the tort of a servant or agent.49 The assertion of the writer of the opinion in the New York case that “when our Constitutions were adopted it was the law of the land that no man who was without fault or negligence could be held liable in damages for injuries sustained by another”50 overlooks well-established common law liabilities without fault which had always obtained in New York: An owner of cattle was bound ‘at his peril’ to keep them from trespassing;51 an infant too young to have fault imputed to him was liable in tort;52 a lunatic, who would not be responsible criminally was liable for tort;53 one who carried on blasting operations was held for resulting damages without regard to fault.54 The proposition that there can be no liability without fault was not an established common-law principle. It rested on an ideal of what the law of torts should be, drawn from Continental metaphysical jurisprudence, by which the analytical and historical jurists of the nineteenth century were seeking to overhaul the law.55 In the case of the laws as to inheritance on the one hand and the Married Women’s Acts on the other, the courts chose different starting points guided by an ideal of the legal and social order with which the statutes were felt to be in or out of accord.

In contrast to the ethical ideal which derived from eighteenth-century natural law, and the political ideal, which was closely connected with the historical and metaphysical thought of nineteenth-century jurists, a picture of law as a body of logically interdependent precepts, authoritatively established and self-sufficient, without the need of ideals, had much vogue in the last century. It goes back to the medieval conception of the Corpus Iuris as a complete and authoritative body of rules, to be interpreted and applied by a logical process and admitting only of development by an authoritative technique. From this standpoint the nineteenth-century analytical jurists took the science of law to be a mere comparative anatomy of developed systems of legal precepts. They rigidly excluded all questions of what ought to be. Any ethical consideration was irrelevant. Jurist and lawyer and judge were concerned only with the ‘pure fact of law.’56 It was enough to dispose of sociological jurisprudence to say that it was (in Bentham’s phrase) deontological. It had to do with what ought to be, and what ought to be was not law.57 Law was an aggregate of laws, logically interdependent and self-sufficient for yielding grounds of decision for any case when logically manipulated. From the latter part of the nineteenth century this conception of the science of law and its ideal of the legal order have been under vigorous attack from many sides. We see clearly enough today that the analytical jurist’s logically interdependent body of precepts, conforming to a universal plan and potentially covering every conceivable case, is not in the least a ‘pure fact.’ It is an ideal. It is a picture of a body of law as it is conceived it ought to be. It is no more a fact than the body of ideal precepts discoverable in detail by reason believed in by jurists in the eighteenth century. The analytical jurist did not discover a universal plan of which each particular legal precept as it actually obtains is a part, as, for example, one of the fragments is a part of a picture puzzle. He sets up a logical plan which will explain as much as possible of the actual norms or models of decision employed in the administration of justice, and criticizes the unexplained remainder for logical inconsistency therewith.

For example, such books as Gray’s Restraints Upon Alienation of Property or Gray on The Rule Against Perpetuities, did not state legal precepts which actually obtain just as they obtain in any one jurisdiction in any one exact time. They set forth the author’s conception of what legal precepts ought to obtain in an ideal common-law jurisdiction in which there was an ideal logically interdependent body of legal precepts upon those subjects, logically deducible from the classical common-law authorities. No such system exists anywhere, nor did it ever exist. To postulate such a system serves excellently to organize and make available the authoritative materials of judicial decision. But the postulated ideal system is no more ‘pure fact of law’ than a historically derived ideal system, such as the historical jurists pressed upon us, or a philosophically constructed ideal system such, for example, as is urged upon us today by the advocates of revived natural law. Moreover, such books postulate traditional ideas of the end of law which give content to the abstract precepts which the analytical jurist conceives to be the ‘pure fact of law.’ Thus in the preface to the second edition of his Restraints Upon Alienation58 Professor Gray tells us that his critique of the decisions as to spendthrift trusts proceeds on a philosophical theory of the end of law which is assumed to be a cardinal principle of the common law. Such ‘principles’ may or may not be authoritatively received ideals, established as part of the taught legal tradition. At any rate the one Professor Gray invokes is generically the same as the ethical ideals and political ideals above considered. It is a philosophical-economic conception to which it is conceived the administration of justice ought to conform.

This analytical ideal, as would be expected where the English legal tradition prevails, proves at bottom, when compared with the ethical and political ideals of law, to be political.59 It is an ideal of a legal order in an ideal politically organized society in which relations are governed, conduct is regulated, and differences are adjusted by fixed rules, attaching definite detailed consequences to definite detailed states of fact, and of uniform application, so that every personal element in the administration of justice is eliminated. It pictures a legal order as part of the political order portrayed by the political natural law which has given content to the phrase ‘due process of law.’ For that type of juristic and judicial thinking has behind it an ideal of a politically organized society in which governmental power of every sort is wielded upon careful weighing of all the interests involved and a reasoned striving to give effect to all of them; in which, therefore, arbitrary or capricious selection of the interests to be secured, and securing of some without regard to the effect upon others, does not take place.

Although the ideal of a body of law held by the analytical jurists in the nineteenth century had behind it a picture of politically organized society, it was a picture drawn from the nationalist polities of the sixteenth century. But three governing ideas as to the nature of law, that is, as to the nature of the body of authoritative materials for the guidance of judicial and administrative action, which obtained in the later Middle Ages, have been more widely accepted and have been persistent in legal and juristic thought.

First, there is the universal idea, the ideal of law as a body of precepts of universal authority, universal content, and universal applicability. Second, there is the idea of relationship, the ideal of law as a body of precepts dealing with relations and flowing from or attaching to relations; as a body of precepts governing men because of the relations in which they find themselves. Medieval society was relationally organized. Evidently this ideal of law proceeded from an idealizing of existing society as did the ideal of the end of law held at the same time. It should be contrasted with the nineteenth-century idea of law as deduced not from relation but from freedom; as expressing not the duties of men in relations but the rights of independent, self-sufficient, free-willing entities. Third, there is the idea of authority, the ideal of a body of precepts authoritatively imposed upon men from without by an unchallengeable authority, to be interpreted and applied but not subject to local change nor to be added to or subtracted from in this or that place.

Thus in the latter Middle Ages there was, in the first place, an ideal of a universal body of precepts resting on an external universal authority governing all Christendom. Jurists postulated a universal church, with exclusive jurisdiction over matters of spiritual cognizance, and in consequence its own body of universal law. Also they postulated a universal empire, an academic conception of Christendom as an empire continuous with that of Augustus, of Constantine and of Justinian, and hence governed by Justinian’s law books as authoritative legislation for that empire. Also along with these ideas, in part flowing from the same ideal and in part competing with them, there was the Germanic idea of law as an expression of the justice and truth of the Creator, having an authority above kings and lawmakers and of universal force because of the universal authority of God’s justice and God’s truth.60

In the politics and law of the Middle Ages the distinction between the spiritual and the temporal, between the jurisdiction of religiously organized Christendom and the jurisdiction of the temporal sovereign, that is, of a politically organized society, was fundamental. It seemed as natural and inevitable to have church courts and state courts, each with their own field of action and each, perhaps, tending to encroach upon the other’s domain, but each having their own province in which they were paramount, as it seems to Americans to have two sets of courts, federal courts and state courts, operating side by side in the same territory, each supreme in their own province. When the medieval English courts held acts of Parliament ‘impertinent to be observed’ where they sought to effect results in matters spiritual61 they did what a court, state or federal, would do in the United States if a state legislature were to seek to prohibit interstate commerce by putting an embargo on imports from a neighboring state.

How the ideal of a universal church gave a stamp to doctrines and institutions which has endured ever since may be seen in the law of marriage. The academic teachers of law, the doctors of the civil and canon law in the universities, had before them the ideal of a universal law, and the doctrine of the twelfth-century canonists has maintained itself everywhere as the basis of the law on this important subject. It is significant that in the face of the ultra-individualism of nineteenth-century law, in the face of the general emancipation of women and straining of the last century to treat all things in terms of the individual will, the idea of marriage as a condition which cannot be terminated by the act of the parties but only by nature or the law was able to persist.62 If we contrast the theory of marriage and the conception of marriage as creating a condition of the parties, not merely an obligation, which came into the law of all Christendom from the Middle Ages, with the utter diversity of divorce laws, from country to country and in the United States from state to state, speaking from the era of nationalism after the Reformation, the difference will tell us something of the power of an ideal of a universal law.

Again the medieval academic teaching of law postulated the continuity of the empire. This was a juristic ideal of a universal law for the temporal concerns of all Christendom; an ideal of Christendom ruled by one law to be found in the law books of Justinian. The development of the texts of the Corpus Iuris to this ideal gave a body of received, authoritative grounds of judicial decision which has endured as the basis of the legal system in half of the modern world. More than this it gave a basis for utilizing the juristic thought of any part of Christendom in any other. The reason of any law teacher anywhere, exerted upon the texts of the Roman law with reference to any legal problem of medieval Europe, was available to any jurist or any tribunal anywhere else when confronted with the same problem or one analogous. Thus the ideal of universality, an ideal of the universities, which taught one law wherever situated, enabled the law in each locality to develop by availing itself of the sum of juristic activity everywhere.

We have had a similar phenomenon in American legal history. The ideal of a general common law, held by Kent and Story, and governing in American law schools under the leadership of those which have taught from a national standpoint, made possible the rapid development of a law for the new world by enabling the courts in the newly peopled and newly organized states to use the whole judicial experience, not merely of the older states but of the English-speaking world. What the ideal of a universal law could do for a great department of the law throughout the world is illustrated in the conflict of laws. The commentators in the Middle Ages drew a universal theory from the Roman texts so well, on simple lines so generally acceptable,63 that this great subject has kept to those lines ever since. This is perhaps the one subject in the law governing private relations where common-law lawyer and civilian understand each other and where Story64 and Savigny65 are cited equally throughout the world.

Elsewhere I have spoken at length of the idea of relation as the basis of much of our thinking in Anglo-American law.66 Where the Pandectist thought in terms of will, the common-law lawyer has characteristically spoken in terms of relation. In that idea he has found a starting point for judicial and juristic reasoning which has come down from the Middle Ages and grown out of a medieval ideal. It may suggest Spencer’s proposition that law is a government of the living by the dead. But Mr. Justice Holmes has given us the answer: “Continuity with the past is only a necessity and not a duty.”67 It is not, for any great part, that rules prescribing definite, detailed legal consequences for definite, detailed states of fact, made by or for the dead are governing the living. It is rather that the past has given us analogies, starting points for reasoning and methods of developing legal materials that have proved themselves in experience and are still serviceable.

A third medieval shaping juristic idea was the idea of authority. Philosophically this idea had in itself the seeds of its own undoing. But it has maintained itself in law and, as the medieval lawyer worked it out as a received ideal, has endured as part of the legal equipment of the modern world.

For example, compare the seventeenth-century commentary of Coke on Littleton’s Tenures, the oracle of the law of real property in the English-speaking world for three centuries, with the gloss of the Italian law teachers on Justinian’s Digest in the twelfth century. Coke assumed that Littleton’s treatise was “the most perfect and absolute work that was ever written in any human science,” that it was a work of “absolute perfection in its kind,” and “free from error.”68 Postulating this, he analyzed it section by section and developed the content of each section and sentence and phrase so as to make it the basis of English land law down to 192669 and of American land law in most of our states today. He did for Littleton what the glossators had done for the Digest.70 To those who are familiar with the doctrinal development of the Continental codes in the nineteenth century one need say no more. To the Anglo-American lawyer I would say compare Story’s Commentaries on the Constitution of the United States71 or compare a commentary on the Uniform Negotiable Instruments Law or the Uniform Sales Act today. In each case some text is postulated as of final authority and we develop its content analytically and by logical unfolding. The philosophical science of law of the seventeenth and eighteenth centuries and the historical method of the nineteenth century each added something to our technique. But the medieval method of postulating authority, or postulating a text which can only be interpreted, which is self-sufficient, which contains in itself expressly or by implication a complete body of precepts covering the whole matter with which it deals, is one that must be employed when applying such an instrument as a written constitution or such statutes as the American Uniform State Laws, or in applying the traditional materials governing such subjects as property in land.

It must not be forgotten that this self-sufficiency of the authoritative text is but an ideal. It is a postulate for certain practical purposes. It is not an assertion of absolute fact. It may be shown that the ideals, or, if you will the postulates of straight lines and planes and perpendiculars do not conform to the facts of Einstein’s curved universe. Yet these ideal lines and planes and perpendiculars are exceedingly useful for many practical purposes. Likewise it is no matter that the postulates of our technique of interpreting and applying authoritative legal texts may be shown not to accord precisely with reality. It is easy to point out that a chief difficulty in interpreting and applying a text assumed to be complete and self-sufficient is that it presupposes an intention as to every detail on the part of the framers of the text, whereas what calls for interpretation is very likely the circumstance that as to the point in controversy they had none. The particular situation of fact did not occur to them.72 It has been easy to show that the glossators and commentators and the nineteenth-century Pandectists made the texts of the Digest announce propositions which were not the Roman law of antiquity.73 It has often been shown that Coke’s versions of the medieval English law were sometimes adaptations to the exigencies of the judicial process in the seventeenth century.74 But the answer is that in postulating intention of the lawmaker we are doing so as a means toward certain practical results. Law in each of its three juristic meanings is a practical matter. For practical purposes the postulates involved in the ideal of authority come as close to the phenomena of finding and applying the law, the phenomena of the judicial process, as the postulates come to the phenomena in any body of organized knowledge. The medieval idea of authority has given an instrument of enduring usefulness in the doctrinal development of the law and in the judicial process.

At the Reformation authority broke down on every side. In religion the north of Europe substituted unauthoritative private interpretation of the Scriptures for authoritative interpretation by the church. In philosophy the scholastic dialectical development of authoritative starting points gave way to new methods. Aristotle ceased to be ‘the philosopher.’ Philosophy was used to challenge authority, not merely to uphold it. The canon law lost its sanction and came to have little more than historical interest except as it continued to govern the internal organization of the Roman Church. Presently also the Roman law lost its theoretical binding force in western Europe with the disappearance of the academic dogma of the continuity of the empire. The universal idea and the idea of authority gave way to two ideas which proved adequate to achieve stability and to direct growth for the next two and one-half centuries. These were (1) the political idea, the idea of a national or local law, with a sufficient basis in the power of the local political authority,75 and (2) the idea of reason, the idea of law as a formulation of the reasonable, deriving its authority from its inherent reasonableness, and putting in legal form the ideal precepts which are identifiable and to be identified by a sheer effort of reason.76

Thus the medieval idea of authority went on in juristic nationalism or even localism, the political idea. The universal idea of the Middle Ages went on in what I have called positive natural law, an ideal of a universal superlaw, discoverable by reason, to which local law ought to conform and of which the local law at its best is a reflection.

Nationalism, in the form of faith in a self-sufficient local law, took a strong hold upon the imagination of Americans in the nineteenth century. For a long time the several states took a certain pride in anomalies of local decision and local legislation as things to be cherished for their own sake. As late as the beginning of the present century there was in many quarters a sort of cult of local law.77 Even now, when this worship of local legal anomalies has become a thing of the past through the teaching of a general common law in university law schools which have taken the lead in training for the legal profession, effects of the cult of local law embarrass business and enterprise in more than one connection. For example, the Uniform Negotiable Instruments Law has been on our state statute books for more than half a century. It lays down detailed rules which have been adopted usually in identical language by the legislatures of the several states with the avowed purpose of making the law on this subject uniform throughout the United States. Yet this statute, very much needed and urged by bankers and business men, has not completely achieved the desired uniformity. Courts have been so tenacious of the anomalies of the local law that in one way or another they have adhered to them in the teeth of the statute.78 When a subject so vital to business as the law of bills and notes can remain in that condition although a uniform statute has been on the books since 1896, it is evident that the idea of intrinsic validity and value of local law had taken deep root.

Throughout the world there has been a revival of the universal ideal. In the United States, where the idea of the intrinsic value of local law had been strongest, no less than four countermovements have been making for a swing back to the idea of a general law. These are: (1) the movement for uniform state legislation promoted by the National Conference of Commissioners on Uniform State Laws, (2) the restatement of American common law recently under the auspices of the American Law Institute, (3) the influence of national as contrasted with local law schools, becoming marked after 1890, and (4) the revival of interest in comparative law. In the formative era of American law comparative law was resorted to in order to find the rule of natural law, dictated by reason, of which a rule of positive law was bound to be declaratory. After decades of neglect following a general giving up of eighteenth-century natural law throughout the world, comparative law has been taking on a new life. It is not the least of the forces in the law of today which are bringing back the universal ideal to meet the needs of a unifying world.

Again the idea of authority is taking on new form and may be seen at work in juristic thought on every hand. A postulated ultimate practical source of rules and sanctions, a postulated form of law to which other guides to judicial and administrative action must be subordinated, raise questions very like those to which medieval ideas of authority were addressed. Ever since the Reformation the emphasis has been on change. The Reformation, the Puritan Revolution, the English Revolution of 1688, the American Revolution, the French Revolution, the Russian Revolution—six major revolutions in four hundred years, or roughly one in every other generation—have made violent change seem the normal course of things and stability seem stagnation. But there have in the past been eras of legal and political stability. Like our own time, moreover, they have been eras of bigness and of wide economic unification, not of self-sufficing small politically organized societies and neighborhood economic independence. If we are moving toward stress on peace and stability, shall we not turn to an ideal of authority?

Likewise there is a revival of the idea of relation.79 The nineteenth-century ideal of the abstract free individual will is manifestly giving way before a renewed tendency to think of men not as isolated in abstract ideal conditions but as in concrete relations; to think of them as in a society in which they are all in every sort of relation with their fellow men and their most significant activities for the legal order take place in or have to do with these relations.80 This revived idea of relation is connected with an ideal of co-operation, one might say of co-operative effort to maintain, further, and transmit civilization. In all parts of the world economic unification and organization of industry are affecting the received conception of the relation of man to man in society. The received ideal of free competitive activity of individual self-sufficing units is being redrawn as one of adjusted relations of economically interdependent units.

To show that such ideals are by no means wholly realized in practice in the course of judicial decision does not dispose of them. They or some of them are as much a part of the authoritative traditional legal materials by which justice is administered as the authoritative starting points for legal reasoning which are chosen by reference to them, or the authoritative rules which are selected, interpreted and applied to conform to them. An ideal of the end of law, and hence of what legal precepts should be and how they should be applied, set forth in the formative era of American law by Kent81 and Story,82 developed by Cooley,83 applied to new areas of the law by Dillon,84 and constantly recurring in the reported judicial decisions as the avowedly determining element, is too significant a phenomenon to be overlooked in a scientific account of American law. I undertake to add that as much may be said for any developed system of law. The existence of such ideals should be recognized as one authoritative form which legal materials may take. Their history should be traced as we trace the history of legal precepts. Their operation in action should be studied as we study the operation in action of legal precepts. In the past, philosophical jurisprudence has been concerned with the ethical and philosophical bases of legal institutions and legal precepts and the principles and method of criticism with reference to those bases. Today we should be employing philosophical method in jurisprudence to set off and criticize the ideal element in systems of developed law, to organize that element, as in the last century we organized the precept element, to give it definiteness, and to work out a critique no less assured and thorough than that to which the apparatus of rules and doctrines has long been subjected.

[1. ]Principles of Morals and Legislation (1879 ed.) 324.

[2. ]Winberry v. Salisbury, 5 N.J. 240 (1950).

[3. ]Metaphysische Anfangsgründe der Rechtslehre (1797) 27.

[4. ]Gareis, Enzyklopädie der Rechtswissenschaft (1887) § 5 ; I Dernburg, Das bürgerliche Recht der deutschen Reichs und Preussens (1903) § 16; 3 Berolzheimer, System der Rechts- und Wirtschaftsphilosophie (1906) § 17. I have discussed this in Interpretations of Legal History (1923) 151–53.

[5. ]Einführung in die Rechtswissenschaft (1902) § 1.

[6. ]As to Kelsen’s theory of law, see an excellent discussion by Lauterpacht in Modern Theories of Law, 105–38.

[7. ]Cardozo, The Nature of the Judicial Process (1921).

[8. ]The Bramble Bush (1930) 3.

[9. ]“What the ruling part of the state enacts after considering what ought to be done,” Xenophon, Memorabilia, i, 2, § 43; “an ordinance of reason for the general good, emanating from him who has the care of the community,” Thomas Aquinas, Summa Theologica, I, 2, q. 90, art. 4; “Civil law is to every subject those rules which the commonwealth hath commanded him. . . to make use of for the distinction of right and wrong,” Hobbes, Leviathan, chap. 46; “A command proceeding from the supreme authority of a State, and addressed to the persons who are the subjects of that authority.” Amos, Science of Law, 48.

[10. ]“The highest reason, implanted in nature, which commands what ought to be done and prohibits the contrary,” Cicero, De legibus, i, 6; “a rule of moral actions obliging to that which is right,” Grotius, De iure belli ac pacis, I, 1, 9, § 1; “The expression of the idea of right involved in the relation of two or more human beings,” Miller, Lectures on the Philosophy of Law, 9.

[11. ]Xenophon, supra n. 9; Cicero and Grotius, supra n. 10; “A holy sanction commanding what ought to be done and prohibiting the contrary,” Fortescue, De laudibus legum Angliae, cap. 3; “a rule of civil conduct. . . commanding what is right and prohibiting what is wrong,” Blackstone, Commentaries on the Laws of England, I, 44.

[12. ]Holmes, The Path of the Law, 10 Harvard Law Rev. 457, 457–61.

[13. ]Ibid. 460–61.

[14. ]The Growth of the Law, 52.

[15. ]“The sum of the rules administered by courts of justice.” Pollock and Maitland, History of English Law, 1 ed. (1895), 1, XXV.

[16. ]Gray, Some Definitions and Questions in Jurisprudence, 6 Harvard Law Rev. 21, 24 (1892).

[17. ]2 Austin, Jurisprudence, 3d ed., 695. Of the examples Austin gives from the lectures by the drafters upon the project of the French Civil Code, the first subsidium, natural equity and natural law, is in point, if we bear in mind what those terms meant in France in 1804.

[18. ]Principles of Morals and Legislation (1879 ed.) 324.

[19. ]I use these terms in the meanings first well distinguished by Clark, Practical Jurisprudence, 196–201 (1883).

[20. ]Full statements may be found in 1 Blackstone, Commentaries on the Laws of England, 42; 1 Wilson, Lectures on Law, chap. 2, 1 Works (1804) 55 ff.; Walker, American Law (11 ed. 1905) §§ 10, 11.

[21. ]Bonham’s Case, 8 Co. Rep. 107a, 113b; Day v. Savadge, Hob. 85 (1615); City of London v. Wood, 12 Mod. 669 (1701).

[22. ]1 Blackstone, Commentaries on the Laws of England, 91.

[23. ]Examples of this in earlier American decisions are: Ham v. M’Claws, 1 Bay, 93, 98 (S.C. 1789); Bank v. Cooper, 2 Yerg. 599, 603 (Tenn. 1831); License Tax Cases, 5 Wall. 462, 469 (U.S. 1866).

[24. ]In the Supreme Court of the United States: Johnson, J., in Fletcher v. Peck, 6 Cranch. 87, 143 (1810); Story, J., in Terrett v. Taylor, 9 Cranch. 43, 50 (1815); Hurtado v. California, 110 U.S. 516, 535 (1884); Arndt v. Griggs, 134 U.S. 316, 321 (1890); Turpin v. Lemon, 187 U.S. 51, 60 (1902); Watson v. Maryland, 218 U.S. 173, 177 (1910); Simon v. Southern R. Co., 236 U.S. 115, 122 (1915). In state courts: Holden v. James, 11 Mass. 396, 405 (1814); Dash v. Van Kleeck, 7 Johns. (N.Y.) 477, 502–9 (1811); Kent, C., in Gardner v. Newburgh, 2 Johns. Ch. (N.Y.) 162, 166–67 (1816); Matter of Albany St., 11 Wend. (N.Y.) 149, 151 (1834); Ervine’s Appeal, 16 Pa. St. 256, 263 (1851); State Bank v. Cooper, 2 Yerg. (Tenn.) 599, 602–3 (1831); Baldwin, C.J., in Hoxie v. New York, N.H. & H.R. Co., 82 Conn. 352, 359–60 (1909).

[25. ]Grotius, De iure belli ac pacis, I, 1, 4 (1625).

[26. ]1 Blackstone, Commentaries on the Laws of England, 123–26 (1765).

[27. ]See Pound, Liberty of Contract, 18 Yale Law Journ. 454, 455–58, 464–68 (1909).

[28. ]See for example United States v. Cruikshank, 92 U.S. 542, 554 (1875); Field, J., in Butcher’s Union Co. v. Crescent City Co., 111 U.S. 746, 756 (1884); West v. Louisiana, 194 U.S. 258, 263 (1904); Rogers v. Peck, 199 U.S. 425, 434 (1905); Ballard v. Hunter, 204 U.S. 241, 262 (1907); Franklin v. South Carolina, 218 U.S. 161, 164–65 (1910); American Ry. Express Co. v. Kentucky, 273 U.S. 269, 273 (1927); Commonwealth v. Perry, 155 Mass. 117, 125 (1891); People v. Marx, 99 N.Y. 377, 386 (1885).

[29. ]For an extreme example see Turney, J., in Lanier v. Lanier, 5 Heisk. (52 Tenn.) 462, 472 (1871). After quoting from the Bible (Matthew 19:3–10) he continues: “Now I must elect between a statutory regulation demoralizing in its every influence and tendency. . . and an express divine law. I do not hesitate to disregard the one and observe the other.” He goes on to quote Blackstone: “Upon these two foundations, the law of nature and the law of revelation, depend all human laws—that is, no human law shall be suffered to contradict these.” 1 Blackstone, Commentaries on the Laws of England, 42.

[30. ]Taylor’s Case, 1 Vent. 293 (1676). See Story, J., in Vidal v. Girard, 2 How. 127, 198 (1843); Updegraph v. Commonwealth, 11 Serg. & R. (Pa.) 394 (1824); Zeisweiss v. James, 63 Pa. St. 465 (1870).

[31. ]Kent, C.J., in People v. Ruggles, 8 Johns. (N.Y.) 290, 294–95 (1811); Doe, J., in Hale v. Everett, 53 N.H. 9, 202–11 (1868); Commonwealth v. Kneeland, 20 Pick. (Mass.) 206, 220–21 (1835).

[32. ]Doe, J., in Hale v. Everett, 53 N.H. 9, 208–11 (1868); Bloom v. Richards, 2 Ohio St. 387 (1853); Jefferson’s Note, 2 Jeff. (Va.) 137–42 (1772).

[33. ]Vanhorne’s Lessee v. Dorrance, 2 Dall. (U.S.) 304, 310 (1795); Fletcher v. Peck, 6 Cranch (U.S.) 87, 135, 139 (1810); Goshen v. Stonington, 4 Conn. 209, 225 (1822); Welch v. Wadsworth, 30 Conn. 149, 155 (1861); Wheeler’s Appeal, 45 Conn. 306, 315 (1877); Regents v. Williams, 9 Gill & J. (Md.) 365, 408–9 (1838). Compare Webster, arguendo in Dartmouth College v. Woodward, 4 Wheat. (U.S.) 518, 581 (1819): “The general rules which govern society.” Choate, arguendo, in Pollock v. Farmers’ Loan & Trust Co., 157 U.S. 429, 532, 534 (1895) puts it on the basis of the nature (i.e., the ideal) of civilized government.

[34. ]Holden v. James, 11 Mass. 396, 405 (1814); Sohier v. Massachusetts General Hospital, 3 Cush. (Mass.) 483, 493 (1849); Gillilan v. Gillilan, 278 Mo. 99, 111–13 (1919). In this last case primogeniture in estates tail was held “contrary to the theory on which this and other commonwealths were built” (p. 112). The statute read: “. . . and the remainder shall pass in fee simple absolute to the person to whom the estate tail would on the death of the first grantee, devisee or donee in tail first pass according to the course of the common law.” Such a provision had been held elsewhere to give the first taker an estate for life and the common-law heir in tail a fee simple.” The Supreme Court of Missouri changed the legislatively prescribed course of descent to fit its idea of an ideal social-political theory.

[35. ]In the Supreme Court of the United States: Chase, J., in Calder v. Bull, 3 Dall. (U.S.) 386, 388–89 (1798); Wilkinson v. Leland, 2 Pet. (U.S.) 627, 658 (1829); St. Louis v. The Ferry Co., 11 Wall. (U.S.) 423, 429 (1870); Field, J., in Slaughter-House Cases, 16 Wall. 36, 95 (1872); Miller, J., in Loan Assn. v. Topeka, 20 Wall. 655, 663–64 (1874); Monongahela Navigation Co. v. United States, 148 U.S. 312, 324 (1893); Chicago B. & Q.R. Co. v. Chicago, 166 U.S. 226, 235–41 (1897); Holden v. Hardy, 169 U.S. 366, 389 (1898); Madisonville Traction Co. v. St. Bernard Min. Co., 196 U.S. 239, 251–52 (1905). In state courts: In re Dorsey, 7 Port. (Ala.) 293, 377–78 (1838); Jeffers v. Fair, 33 Ga. 347, 367 (1862); State v. Barker, 116 Ia. 96, 105; State v. Nemaha County, 7 Kan. 542, 555–56 (1871); White v. White, 5 Barb. (N.Y.) 474, 484–85 (1849); Benson v. Mayor, 10 Barb. 223, 245 (1850); Nunnemacher v. State, 129 Wis. 190, 197–202 (1906). In Jeffers v. Fair this ideal was used to read an extreme doctrine of states’ rights into the Confederate constitution without regard to any language of that instrument.

[36. ]Bradley, J., in Davidson v. New Orleans, 96 U.S. 97, 107 (1877); Ex parte Wall, 107 U.S. 265, 303 (1882); Field, J., in Butchers’ Union Co. v. Crescent City Co., 111 U.S. 746, 759 (1884); Barbier v. Connolly, 113 U.S. 27, 31 (1885); Yick Wo v. Hopkins, 118 U.S. 356, 369–70 (1886); Leeper v. Texas, 139 U.S. 462, 468 (1891); Lawton v. Steele, 152 U.S. 133, 137 (1894); Dobbins v. Los Angeles, 195 U.S. 223, 236 (1904); Chicago B. & Q.R. Co. v. McGuire, 219 U.S. 549, 569 (1911); Truax v. Corrigan, 257 U.S. 312, 332 (1921); Barbour v. Louisville Board of Trade, 82 Ky. 645, 648 (1884); Sears v. Cottrell, 5 Mich. 251, 281 (1858); Stuart v. Palmer, 74 N.Y. 183, 190 (1878); In re Jacobs, 98 N.Y. 98, 110 (1885); Norman v. Heist, 5 Watts & S. (Pa.) 171, 173 (1843); Dunn v. City Council, Harper (16 S.C. Law) 189, 199–201 (1824); State Bank v. Cooper, 2 Yerg. (Tenn.) 599, 611 (1831).

[37. ]Brett, L.J., in Rigby v. Connol, 14 Ch. D. 482 (1880); Universal Lodge v. Valentine, 134 Md. 505 (1919); Loubat v. LeRoy, 40 Hun. (N.Y.) 546 (1886); Grassi Bros. v. O’Rourke, 89 Misc. (N.Y.) 234 (1915).

[38. ]Jessel, M. R., in Fisher v. Keane, 11 Ch. D. 353, 357–59 (1878).

[39. ]Butchers’ Union Co. v. Crescent City Co., 111 U.S. 746, 756–57 (1884).

[40. ]Opinion of the Justices, 58 Me. 590, 597 (1871).

[41. ]Id. at 598.

[42. ]Peckham, J., in Lochner v. New York, 198 U.S. 45, 57 (1905); State v. Haun, 61 Kan. 146, 161 (1899); O’Brien, J., in People v. Coler, 166 N.Y. 1, 14–17 (1901); Landon, J., ibid. 23; Dodge, J., in State v. Kreutzberg, 114 Wis. 530, 536–37 (1902). In People v. Coler, O’Brien, J., says that the “maxim that the government governs best which governs the least,” as an ideal, “was always present to the minds of the men who framed the Constitution, and it is proper for courts to bear it in mind when expounding that instrument.” 166 N.Y. at 14. But the eighteenth-century jurists and publicists held to a natural-law creed in which it was a prime article that the reason of the lawmaker could discover and formulate the details of a perfect code. To attribute to them the nineteenth-century distrust of legislation is to read a nineteenth-century ideal into eighteenth-century natural law as well as into the Constitution. As Holmes, J., put it, the constitutions are made to declare, not the doctrines current when they were enacted, but Spencer’s Social Statics. Lochner v. New York, 198 U.S. 45, 75 (1905).

[43. ]Dwarris, General Treatise on Statutes, Potter’s ed. 185 (1875). As to this doctrine and its history, see Pound, Common Law and Legislation, 21 Harvard Law Rev. 383, 386–402 (1908); Allen, Law in the Making, 5 ed. 434–35 (1951).

[44. ]Miller, J., in Pumpelly v. Green Bay Co., 13 Wall. 166, 177 (1871); McKenna, J., dissenting in Arizona Employers’ Liability Cases, 250 U.S. 400, 436–37 (1919); Taylor v. Porter, 4 Hill (N.Y.) 140, 144–47 (1843); Ives v. South Buffalo Ry., 201 N.Y. 271, 287–89, 293–96, 298 (1911); Durkin v. Kingston Coal Co., 171 Pa. St. 193, 202–3 (1895); Baldwin, J., in Hoxie v. New York, N.H. & H.R. Co., 82 Conn. 352, 359–60 (1909).

[45. ]There is a good discussion in Tiffany, Persons and Domestic Relations, (3 ed. 1921) §§ 82–83.

[46. ]Compare, for example, the way in which the court went beyond the statute reforming the law as to estates tail in Gillilan v. Gillilan, 278 Mo. 99, 111–13 (1919) with the attitude of the same court toward a Married Women’s Act in Leete v. State Bank, 115 Mo. 184 (1893).

[47. ]E.g., Erwin v. Puryear, 50 Ark. 356 (1887); Farrell v. Patterson, 43 Ill. 52, 58 (1857); Coombs v. Read, 16 Gray (Mass.) 271 (1800); Carter v. Carter, 14 Smedes & M. (Miss.) 59 (1850); Leete v. State Bank, 115 Mo. 184 (1893); Westervelt v. Gregg, 12 N.Y. 202 (1854); White v. White, 5 Barb. (N.Y.) 474 (1849).

[48. ]Laws of New York, 1848, p. 307. See 1 Spence, The Equitable Jurisdiction of the Court of Chancery, 595–97 (1846).

[49. ]Holmes, J., in Arizona Employers’ Liability Cases, 250 U.S. 400, 432 (1919).

[50. ]Werner, J., in Ives v. South Buffalo Ry., 201 N.Y. 271, 293 (1911).

[51. ]Tonawanda R. Co. v. Munger, 5 Denio (N.Y.) 255, 267 (1848).

[52. ]Bullock v. Babcock, 3 Wend. (N.Y.) 391 (1829).

[53. ]Williams v. Hays, 143 N.Y. 442 (1894).

[54. ]Sullivan v. Dunham, 161 N.Y. 290 (1900).

[55. ]See Pound, Interpretations of Legal History, 34–37 (1923).

[56. ]Amos, Systematic View of the Science of Jurisprudence, 1 (1871).

[57. ]Gray, Nature and Sources of the Law, 2 ed. 139, n. 1 (1921).

[58. ]Gray, Restraints Upon Alienation of Property, 2 ed. 1895, xviii, ix.

[59. ]See Pound, Interpretations of Legal History, lect. 3 (1923).

[60. ]Heusler, Institutionen des deutschen Privatrechts (1885–86) § 1.

[61. ]Rous v. An Abbot, Statham, Abr., Annuity, 11; Fitzherbert, Abr. Annuity, 41, Easter, 27 Hen. 6 (1449); Prior of Castleacre v. Dean of St. Stephens, Y.B. 21 Hen. 7, 1 (1506).

[62. ]Even the Soviet Civil Code of 1926 preserves much of the general doctrine which obtained elsewhere by derivation from the canonists. 1 Gsovski, Soviet Civil Law, 116 (1948).

[63. ]Bartolus in TheConflict of Laws, transl. by Beale (1914).

[64. ]Story, Commentaries on the Conflict of Laws, Foreign and Domestic (1834).

[65. ]Savigny, System des heutigen römischen Rechts, vol. 8 (1849), English transl. by Guthrie as A Treatise on the Conflict of Laws (2 ed. 1880).

[66. ]Pound, The Spirit of the Common Law (1921), 20–31.

[67. ]Law in Science and Science in Law, 12 Harvard Law Review, 443, 444 (1899).

[68. ]Coke on Littleton, preface (1628) Hargrave and Butler’s 18th ed. xxxvi.

[69. ]Law of Property Act, 12 & 13 Geo. 5, chap. 16 (1922), put into effect by 15 Geo. 5 chaps. 18, 19, 20, 21, 22, 23, 24, to go into effect in 1926.

[70. ]1 Continental Legal History Series, General Survey, 124–42; Vinogradoff, Roman Law in the Middle Ages, 44–58; 5 Savigny, Geschichte des römischen Rechts in Mittelalter, 222–40; Salvioli, Storia del diritto italiano, 8 ed. §§ 105–12.

[71. ]First ed. 1833, 5 ed. 1891.

[72. ]Gray, Nature and Sources of the Law, 2 ed. 172–73 (1921).

[73. ]Buckland, Wardour Street Roman Law, 17 Law Quarterly Review, 179 (1901), More Wardour Street Roman Law, 31 Law Quarterly Review, 193 (1915).

[74. ]Allen, Law in the Making, 5 ed. 425–28 (1951); Plucknett, Bonham’s Case and Judicial Review, 40 Harvard Law Review, 30 (1926).

[75. ]Hobbes, Leviathan (1651); Bentham, Principles of Morals and Legislation (1780); Austin, The Province of Jurisprudence Determined (1832).

[76. ]Grotius, De iure belli ac pacis (1625); Pufendorf, De iure naturae et gentium (1672); Burlamaqui, Principes du droit naturel (1747); Wolff, Institutiones iuris naturae et gentium (1750); Rutherforth, Institutes of Natural Law (1754–56); Vattel, Le Droit des gens, Préliminaires (1758).

[77. ]“In all that is good, Iowa affords the best.” Motto on the title page of Ebersole, The Iowa People’s Law Book (1900).

[78. ]There is a full discussion in Beutel’s Brannan, Negotiable Instruments Law, 80–90 (1948).

[79. ]Pound, The Spirit of the Common Law, lect. 1 (1921); id. The New Feudalism, 16 Am. Bar Assn. Journ. 553 (1930).

[80. ]Ehrlich, Fundamental Principles of the Sociology of Law, transl. by Moll, chap. 3 (1936).

[81. ]Dash v. Van Kleeck, 7 Johns. (N.Y.) 477 (1811); 1 Kent, Commentaries on American Law, 455 (1826).

[82. ]Wilkinson v. Leland, 2 Pet. (U.S.) 627, 658 (1829).

[83. ]Constitutional Limitations, chap. 11 (1868).

[84. ]Municipal Corporations, §§ 104–5 (1872).

Last modified April 10, 2014