A right is a juristic concept. Such concepts are to be distinguished from legal concepts. Legal concepts are legally defined categories into which facts may be put, whereupon a series of rules, principles, and standards become legally applicable. Juristic concepts are not prescribed and defined by law as legal concepts are. They are worked out by jurists in order to systematize and expound the phenomena of the legal order, the body of authoritative grounds of or guides to decision, and the operation of the judicial process. It is their primary function to provide a basis for understanding and developing law in the second sense.
Historically law in the second sense precedes these juristic concepts which we reach by analysis and postulate as the logical bases of legal precepts. The logical sequence is interest, right, duty, action, remedy. In order to secure the interest recognized and delimited by the law, it confers a legal right, secured by imposing a corresponding duty. To enforce the duty it allows an action, which has for its end a legal remedy. But historically the order of development is the reverse. In English law, for example, one complained to the king who gave a writ affording a remedy. Out of the writ an action developed. Behind the action men came to see a duty to be enforced and a correlative right was found by jurists behind the duty. Since Jhering it has been seen that behind the right is an interest (claim or demand or expectation) which is recognized and delimited by the law. But if the law confers legal rights and powers and privileges, imposes legal duties and liabilities and recognizes legal liberties, it does not create or define the concepts of legal right, legal duty, or power, privilege or liberty. It prescribes when men may constrain the action of others with the backing of the force of politically organized society, when they may create or alter or direct capacities of such constraints, when men are subject to them, on what occasions men are exempt from them, and in what fields of human activity the law will keep its hands off. Jurists analyze these prescribings of law in the second sense and find in them, rights, powers, liberties, privileges, duties and liabilities, which as concepts are not defined by the law but by the jurists. They belong to the science of law rather than to the law. Hence jurists may hold different ideas with respect to them without affecting the law.
It has come to be well understood that there is no more ambiguous word in legal and juristic literature than the word “right.” In its most general sense it means a reasonable expectation involved in life in civilized society. As a noun it has been used in the law books in five senses. (1) One meaning is interest, as in most discussions of natural rights. Here it may mean (a) an interest one holds ought to be recognized and secured. It is generally used in this sense in treatises on ethics. Or (b) it may mean the interest recognized, delimited with regard to other recognized interests and secured. (2) A second meaning is a recognized claim to acts or forbearances by another or by all others in order to make the interest effective, (a) legally, through application of the force of a politically organized society in order to secure it as the law has delimited it, or (b) morally, by the pressure of the moral sentiment of the community or of extra-legal agencies of social control. Analytical jurists have put this as a capacity of influencing others which is recognized or conferred in order to secure an interest. (3) A third use is to designate a capacity of creating, divesting, or altering rights in the second sense and so of creating or altering duties. Here the proper term is “power.” (4) A fourth use is to designate certain conditions of general or special non-interference with natural faculties of action; certain conditions or situations, as it were, of legal hands off, i.e., occasions on which the law secures interests by leaving one to the free exercise of his natural faculties. These are better called liberties and privileges—liberties, general conditions of hands off as to certain situations; privileges, special conditions of hands off exempting certain persons or persons under certain situations from the rules which apply to persons generally or apply to all persons in ordinary situations. In addition “right” is used as an adjective to mean that which accords with justice or that which recognizes and gives effect to moral rights. In Latin ius has the further ambiguity of also meaning law, and this is true of the corresponding words in modern languages, Recht, droit, diritto, derecho, direito. An example of use of “a right” to include the second, third, and fourth meanings, or in other words, the complex of concepts by which a right in the first sense is secured, may be seen in the conventional civilian analysis of dominium or the right of ownership. According to this analysis dominium includes (1) ius possidendi (a legal right—second meaning), (2) ius utendi (a liberty—fourth meaning), (3) ius fruendi (a liberty—fourth meaning), (4) ius abutendi (a liberty—fourth meaning), (5) ius disponendi (a power—third meaning), and (6) ius prohibendi (a legal right—second meaning). But all are said to make up the content of a right of ownership.
I have discussed the general theory of interests and the classification of interests in other places.
For the present purpose an interest may be defined as a demand or expectation which human beings, either individually or through groups or associations or in relations seek to satisfy, of which, therefore, the adjustment of human relations and ordering of human behavior by politically organized society must take account. Law, whether in the sense of the legal order or in the sense of the authoritative guides to or models or patterns of determination of controversies, does not create these interests. There is so much truth in the idea of a state of nature and natural rights. Interests in this sense would exist even if there were no legal order and no body of authoritative guides to conduct or to decision. Claims of human beings to have things and do things have existed wherever a plurality of human beings have come into contact. It has never been possible for every one to have everything that he wanted or to do everything he sought and urged a claim to do. Hence there is constant competition in the endeavor to satisfy the claims and demands and expectations involved in life in civilized society. In the endeavor to satisfy human claims and demands and expectations, individuals compete with each other and with groups or associations or societies and the latter compete with each other.
I admit some skeptical realists dispute this proposition, telling us that the claims men make to control things are a consequence of the law, not a cause of it. They say I claim and expect to hold and control the use of my watch because the law has taught me and others to claim things as owners and that, having been so taught to claim things, we work out a justification by attributing to ourselves an antecedent moral claim of right which we then say is secured by the state. If the state did not assign control of things to us we should not be claiming them. But working-men claimed a vested right in their jobs long before recent legislation, after much strife and controversy, recognized and gave effect to it. The law did not teach workers to conduct sit-down strikes. They asserted the claim before the law had heard of such a thing and had to be taught by the law that the claim could not be allowed. Among the miners on the public domain of the United States, before government was at hand to establish law, the mining customs recognized and protected the miner in physical control for the time being of the spot where he was digging. The law did not teach the miners. The miners taught the law. After government had taken over the mining country the law books laid down later that the prospector was protected by law in his pedis possessio while searching for mineral.
We must begin, then, with the proposition that the law does not create these interests. It finds them pressing for recognition and security. It classifies them and recognizes a larger or smaller number. It fixes the limits within which it endeavors to secure the interests so selected, in view of other interests which are also recognized and in view of the possibility of securing them effectively through the judicial or administrative processes. It works out the means by which the interests may be secured when recognized and delimited. It prescribes canons of value for determining what interests to recognize, for fixing the limits of securing recognized interests, and for judging of the weight to be accorded in any given case to the practical limits on effective legal action.
Interests, that is, the claims or demands or expectations for which or about which the law has to make some provision if civilization is to be maintained and furthered, are asserted by individual human beings. But they are not for that reason all of them individual interests. We must not confuse interest as claim or demand or expectation, as jurists use the term, with interest as advantage, as economists use it. The law cannot avoid taking at least some account of insistent human demands or expectations by the easy method of telling those who urge them that what they claim has no advantage for them. Thinking, then, of the claims or demands or expectations men actually urge, interests fall into three classes, individual interests, public interests, and social interests. Some are claims or demands or expectations involved immediately in the individual life and asserted in title of that life. Others are claims or demands or expectations involved in life in a politically organized society and asserted in title of that organization. They are commonly treated as the claims of a politically organized society thought of as a legal entity. Others, or some of the same in other aspects, are claims or demands or expectations involved in social life in civilized society and asserted in title of that life. It is not uncommon to speak of them as the claims of the whole social group as such.
This does not mean, however, that every claim or demand or expectation which human beings assert must be put once for all for every purpose into one of the three categories. For some purposes and in some connections it is convenient to look at the same claim or demand or expectation, or the same type of claims or demands or expectations from one of the other standpoints. They are all urged by individuals but are urged by them in different titles. When it comes to weighing or valuing them with respect to other demands or claims or expectations, we must be careful to compare them on the same plane. If we put one as an individual interest and the other as a social interest, we may seem to decide the question in advance in our very way of putting it. For example, in the liberty of contract cases which ceased to be controversial more than a generation ago, one might think of the claim of the employer to make contracts of employment freely as an individual interest of substance. In that event we must weigh it with the claim of the individual employee not to be coerced by economic pressure into making contracts to take his pay in orders on a company store, thought of as an individual interest of personality. If we think of either in terms of a policy we must think of the other in the same terms. If we think of the employee’s claim in terms of a policy of assuring a minimum or standard human life, we must think of the employer’s claim in terms of a policy of free self-determination in entering into relations and engagements. If one is thought of as a right and the other as a policy, or if the one is thought of as an individual interest and the other as a social interest, our way of stating the question may leave nothing to decide.
In the law books of the English-speaking world it has been usual to speak of social interests under the name of “public policy.” Thus when a great American judge was called on to weigh certain claims with reference to the social interest in the security of political institutions, he said that a “great and overshadowing public policy” forbade applying to the case one of the fundamental principles of the law. Again, when it seemed to a majority of the Supreme Court of the United States that the validity of an acquisition from the Federal Government ought to be put at rest as against a claim of fraud, although limitation did not run against the Government, the court spoke of the “policy” behind the statute of limitations and invoked the doctrine of election of remedies as expressing the same policy. So also when a great teacher of law wished to say that another fundamental legal doctrine, as it was then considered, was sometimes limited in its application because of the social interest in the general security, he stated that “except in certain cases based on public policy” the law makes liability dependent upon fault. But this limitation of the application of principles, or setting off of exceptions, on grounds of public policy, was felt to be something abnormal. The classical expression of this feeling is in the opinions of the judges in Egerton v. Lord Brownlow. Although the case was decided ultimately on the ground of public policy, the remarks of the judges have colored all subsequent judicial thinking on the subject. From the seventeenth century to the end of the nineteenth century, juristic theory sought to state all interests in terms of individual natural rights. Moreover, the nineteenth century, under the influence of Hegel, wrote history as the unfolding in human experience of an idea of liberty, as an outcome of the clash of individual free wills, leading to discovery of the invisible bounds within which each might realize a maximum of free self-assertion. Thus for a time social interests were pushed into the background. It was said that public policy was “a very unruly horse, and when you get astride it you never know where it will carry you.” It was felt that a court should be slow and cautious in taking public policy into account, and that if rules of law were to be limited in their application, or if exercise of individual faculties of action was to be held down upon such grounds the matter ought to be left to the legislature.
Questions of public policy came to courts in three forms:—(1) in connection with the validity of legal transactions (Rechtsgeschäfte, actes jurisdiques); (2) in connection with the validity of conditions in conveyances and testamentary gifts; (3) in connection with the validity of testamentary dispositions. Thus different social interests were weighed against a policy in favor of free contract (“right” of free contract) and a policy of free disposition of property which was taken to be involved in the security of acquisitions and to be a corollary of individual interests of substance (“rights” of property). Accordingly distrust of public policy grew out of a feeling that security of acquisitions and security of transactions were paramount policies: “. . . if there is anything,” said Sir George Jessel, “which more than another public policy requires it is that men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts. . . shall be enforced by the courts of justice.” Here social interests are thought of in terms of laissez faire economics of the last century as giving the ideal by which a scheme of social interests is to be valued.
In truth, the nineteenth-century attitude toward public policy was only the expression of a public policy. It resulted from a weighing of the social interest in the general security against other social interests which men had sought to secure through an over-wide discretion in the era of the law-of-nature jurists.
There is no escape in the science of law from the problem of values. Every adjustment of relations and ordering of conduct has behind it some canon of valuing conflicting and overlapping interests. It may be merely keeping the peace. It may be preserving the social status quo. It may be promotion of a maximum liberty of individual self-assertion. It may be giving effect to the self-interest of a dominant social or economic class or of one seeking to become dominant. It may be maintaining and furthering the power of an established political organization. At times and in places such canons of value have been held more or less unconsciously. But with the advent of lawgiver and jurist they have increasingly been given systematic development and formulation and have been brought increasingly into relation with the postulates of life in civilized society. In what might be called the classical era of legal history both in antiquity and in the modern world, demonstration or criticism or logical application of such canons of value have been a chief activity of jurists. The contact of Roman lawyers with Greek philosophy, the teaching of Roman law side by side with the teaching of theological ethics in the medieval universities, the emancipation of jurisprudence from theology and of law in Continental Europe from the text of the Corpus Iuris, with the coincident rise of rationalist philosophy, and the rise of historical jurisprudence with coincident metaphysical theories of liberty, mark epochs in the science of law because in each case canons of value were applied to the tasks of the law and juristic problems of the time, and the law was brought into accord with the social ideal of the time and place.
Jurists have conceived of a legal order patterned upon a divine order and so have turned to authority to provide a canon. They have thought of conformity to a moral order revealed by the analogy of the order of physical nature or as partly ascertained from revelation and partly discoverable by reason. At other times they have thought of the legal order as a rational order and so of a canon of values derived from pure reason. In this mode of thought reason was held to reveal a natural or ideal law of universal and unchangeable validity, which, as we see it now, was in reality an ideal version of the positive law of the time and place. Thus in effect it found a canon of values in rational exposition of the positive law. At still other times they have thought of the legal order as resting upon experience in adjusting relations and ordering conduct through political and legal institutions, put into formulas by lawmakers and judges and doctrinal writers and criticized and systematized by jurists. Thus they have conceived of the legal order as a historical order. The English utilitarians employed a canon of utility. Bentham said: “A measure of government. . . may be said to be conformable to or dictated by the principle of utility when. . . the tendency which it has to augment the happiness of the community is greater than any which it has to diminish it.” But this requires a definition of happiness and canon of happiness of the community. This, it seemed to him was “the sum of the interests of the several members who compose it.” And happiness was taken to be absence of “all restrictions on the actions of an individual which are not necessary for securing the like freedom on the part of his neighbors.” In the nineteenth century jurists generally, of all schools, came to think of the legal order as an order of freedom; as a regime of securing to every one the maximum of free exertion of his will consonant with a like measure of free exertion of his will by every one else. In this view there is a canon of values in terms of individual liberty demonstrated by metaphysics. More recently there have been attempts to found a canon of values upon economics or to derive one from a theory of class war, attributing value to a class rather than to individuals and to claims and expectations urged in title of a class rather than in title of individual life or of social life looking at society as a whole.
Today Neo-Thomists urge a return to natural law. At the other extreme Neo-Kantians argue on epistemological grounds that it is impossible to arrive at any measure of values. Values are subjective and relative. Others on the basis of Freudian psychology hold that it is not possible for judges and officials to adhere to a measure of values even if one is established. Whatever the criterion of values in the books, the actual behavior of judges and officials will be motivated by wish, and reason and authority will be conjured up afterward to satisfy another wish, namely, to appear reasonable. They interpret judicial and administrative action in terms of individual psychology and so conceive of an order of impulse.
Mr. Justice Holmes, from the standpoint of analytical jurisprudence as against the metaphysical jurisprudence of the nineteenth century, wrote more than once in terms which seem to reduce law in all its senses to force. For example: “It seems to me clear that the ultima ratio not only regum but of all private persons is force.” But this does not mean that force is the ultimate measure of values. It means that the measure of values, in order to be an effective measure, must in the end be backed by force. Again, he said: “When it comes to the development of a corpus juris, the ultimate question is what do the dominant forces of the community want and do they want it hard enough to disregard whatever inhibitions stand in the way?” What the dominant forces of the community have wanted has in the past been put in an ideal form by jurists, and the legal measure of values has been found in conformity to that ideal rather than in concrete wants in cases as they arose. But the doctrine, much urged today, that each single decision or administrative determination, carrying out a threat or expressing a concrete wish in the case in hand, treated as unique, is of itself the law, goes much further than Mr. Justice Holmes toward putting the legal order as a simple order of force. He thought of morality as “a check on the ultimate domination of force.” In the very beginnings of the common law it was laid down that the king was “under God and the law.” The founders of the American constitutional legal polity laid down that the Constitution and laws made in pursuance thereof should be the supreme law of the land, a check upon exercise of force by those who wielded the authority of politically organized society, and established a system of legal checks and balances accordingly. But a much urged doctrine of the moment is that such checks are illusions. Force exerted by agents of a politically organized society is law.
It may be admitted that we cannot demonstrate an ultimate absolute measure of values as something every one must accept for all time. But we are not bound for that reason to hold the legal order in abeyance until philosophers have achieved that impossible task. Law is a practical matter. If we cannot establish a demonstrated universal legal measure of values to which every one will agree, it does not follow that we must give up and turn the adjustment of relations and ordering of conduct in civilized society over to unchecked force. There have been centuries of experience of securing, so far as may be, conflicting and overlapping human claims and expectations in civilized society by law. Also we have learned to develop that experience by reason tested by further experience and to make use of it in weighing and valuing interests, and thus have been able continuously to keep the category of recognized and secured expectations in touch with the expanding claims and demands made upon the legal order resulting from the growth of population, occupation of more and more of the earth’s surface, and constantly greater harnessing of physical nature to human use.
All this has been done although no absolute measure of values universally applicable has been able to maintain itself. Nor need we forgo the practical task of the law on that account. Einstein has taught us that we live in a curved universe in which there are no straight lines or planes or right angles or perpendiculars. Yet we do not on that account give up surveying. Straight lines and planes may not exist. But as postulates of a practical activity they are near enough to the truth for its practical needs. So it is with the measures of values postulated or accepted in systems of law. They have varied from time to time and from place to place and have been relative to times, places, and degrees of economic and cultural development. They could not be proved as absolute and universal. But they could be used as sufficiently near the truth.
How have men gone about finding and applying a measure of valuing conflicting or overlapping competing interests in practice? Looking at the actual working out, development, and application of legal precepts rather than at juristic theory, we may see that there have been three methods. One is finding out by experience what will achieve an adjustment of conflicting and overlapping interests with the least impairment of the scheme of interests as a whole and giving that experience a reasoned development. Thus the measure becomes a practical one of what will adjust relations and order conduct with the least friction and waste. In application there is a method of finding out by trial and error, largely by judicial inclusion and exclusion, what will best serve. A second is to value with reference to the jural postulates of civilization in the time and place. Newly arising claims and newly urging expectations are measured by these postulates when they press for recognition. When recognized they are adjusted to other recognized interests by this measure. When they are delimited with reference to other interests the means of securing them are determined according to this same measure. A third measure of values, used in the classical era of Roman law and again in the classical era of modern law, the era of the law-of-nature school, and well established in the nineteenth century, is found in a received, traditionally received idea of the social order, and so of what legal institutions and doctrines should be and what should be the results of applying them to controversies.
An example of the first method was given by Dicey in his account of English legislation and judicial decision as to labor and as to defamation. In the first it became necessary to bring into harmony two conflicting interests, as Dicey put it, the right to individual freedom and the right of association, using “right” as is done so often, in the sense of recognized interest. What was done was to work out “a rough compromise between them.” Likewise in the second, he tells us, the English law of libel is a “rough compromise between the right of X to say or write what he chooses and the right of A not to be injured in property or character by X’s free utterance of his opinion.” On the whole Dicey found the compromises had been successful.
To a large extent the legal order actually functions in this way. Courts, jurists, and lawmakers have been proceeding in this way at least since the Roman jurisconsults of the first century. In the whole development of modern law courts and lawmakers and law teachers, very likely often with no clear theory of what they were doing, but guided by a clear instinct of practical purpose, have been at work finding practical adjustments and reconcilings and, if nothing more was possible, practical compromises of conflicting and overlapping interests. Many of the adjustments worked out by Roman jurists in the first two and one-half centuries of the Christian era, have stood the test of time and have survived all manner of social and economic and political changes, and obtain throughout the world today. There is at any rate an engineering value in what serves to eliminate or minimize friction and waste. William James held that there was an ethical value in what gives the most effect to human demand with the least sacrifice. If one accepts the civilization interpretation of the Neo-Hegelians, he may hold that this adjustment of competing interests with a minimum of waste makes for civilization and so has a philosophical value.
But the practical process of the legal order does not stop at finding by experience what will serve to adjust conflicting and overlapping interests. Reason has its part as well as experience. Hence the second method. Jurists work out the jural postulates, the presuppositions as to relations and conduct, of civilized society in the time and place, and arrive in this way at starting points for judicial reasoning. Experience is developed by reason on this basis, and reason is tested by experience.
We owe the working out of this method to Kohler. As a Neo-Hegelian he held that the idea which was unfolding or realizing itself in legal history was the idea of civilization. He argued that we are not merely a mob of individuals each trying to perfect himself. There is an idea of civilization at work. A whole people, a whole race is trying to lift itself up by developing its powers to their highest unfolding. It is not merely that politically organized society keeps the peace while each prosecutes his individual search for perfection. Rather each and all are developing the whole through many means, among them legal situations and political institutions which express, maintain, and further, or are designed to further civilization as it is understood by them in their time and place. According to Kohler, then, the task of the legal order is twofold. First, it is to maintain existing values of civilization. Second, it is to create new ones; to carry forward the development of human powers. How this is made effective for the finding and making of law through formulation of the jural postulates of the civilization of a time and place, belongs to a later lecture.
As to the third method, it need scarcely be said pictures of an ideal social order which come to enter into the law as part of the authoritative guides to determination of controversies are not photographs or even idealized photographs of the social order of the time and place. Much more usually they are idealized pictures of the social order of the past, undergoing a gradual process of retouching with reference to details of the social order of the present. Thus the received ideals of American law, as they took shape in the formative era in the fore part of the nineteenth century, are much closer to the pioneer agricultural society of our past than to the typically urban industrial society of twentieth-century America. In general men have sought to explain the institutions of the present in terms of a picture of the social order of the past.
Thus, Plato’s Republic is a picture of an ideal Greek city-state. Aristotle’s Politics is a treatise on government in terms of the Greek city as an independent, politically and economically self-sufficient unit. Each had in mind Sparta when the Spartan type of state was passing. Each had in mind the Greek city-state when the days of such states were over. Again, the medieval jurists had before their minds the academic conception of the “empire.” They thought of an empire embracing all Christendom and continuous with that of Augustus and Constantine and Justinian. In consequence, they held to an idea of universal laws for all Christendom. There was the universal civil law, the universal sea law, and the universal law merchant. Also there was taken to be a universal fundamental law, expressing the eternal reason of the Creator, having authority beyond that of kings and lawmakers and carrying a name derived from the Roman law books. This ideal of universality left its mark enduringly upon the taught traditions which are part of the taught law of the world today. But it arose and was given shape when the Roman empire of which it was an idealization, was not only utterly in the past but the western world was on the eve of the nationalism which followed the Reformation.
A like story can be told of the picture behind our classical seventeenth-century law books, the received ideals of the social and legal orders as they appear in Coke on Littleton and Coke’s Second Institute. In our formative period these books were oracles in the new world for our private law and public law alike. Certainly they were far from comporting with any true picture of colonial American society. Nor were they written on a background of Elizabethan society. The social and economic systems described in Littleton’s Tenures was moribund when the book was written. It is no more in the spirit of the England of Shakespeare than the pedantic formal logic of Coke on Littleton was anything but an anachronism in the days of Bacon. Yet this spirit of medieval England, this idealized picture of pre-Reformation England, was an enduring element in the body of legal materials which came to govern English-speaking peoples everywhere.
International law gives us another example. The seventeenth century when Grotius wrote was an era of absolute personal sovereigns. The monarch of that era, the Spanish King after Charles V, the French King of the old regime, the Stuart King in England, and the Hapsburg ruler in Austria was analogous to the masterful head of a Roman household. The relations of Philip and Louis and James and Ferdinand with each other were enough like those of a Roman paterfamilias to his neighbor to make precepts worked out by Roman jurists for the latter give useful analogies for the former. The problem of international law was one of adjusting the relations and guiding the international conduct of those personal sovereigns. They made war with highly trained armies. They represented their several countries so completely that for practical purposes international relations could be treated as relations between sovereigns, and the rules of war as limitations on the belligerent conduct of sovereigns. International law grew up to this picture and we still think and speak to its pattern. But with changed political ideas it became increasingly inadequate to its tasks. Its fundamental idea is out of line with the democratic organization of societies of today. The picture of seventeenth-century Europe which served for its ideal long ago ceased to portray reality. It is no wonder that it has conspicuously failed in the present century.
So much that had been held impossible has been brought to pass in these days that one must hesitate to give up anything that men have dreamed of almost as long as they had dreamed of flying. We may concede, however, that so far as we can see there is no absolute value. Value is relative to something. Perhaps in the science of law it is relative to civilization. Yet civilization is not something fixed once for all. It is something growing and is itself relative to prior stages of human development. Proximately value in jurisprudence is relative to the task of the legal order; to the task of enabling men to live together in civilized society with a minimum of friction and a minimum of waste of the goods of existence. What accords with the presuppositions of the right and just in the time and place has juristic value. If it will work in adjusting relations and ordering conduct so as to eliminate or minimize friction and waste, it is a useful measure for a practical activity.
But I do not give up faith in philosophical jurisprudence because so many fashionable philosophies of the moment despair of doing anything for law. In the legal-political constitutional polity which is spreading over the world today, questions of reasonableness have to be determined with respect to new types of legislation in the service state. More and more in the ordering of conduct, especially the conduct of enterprises, the law today relies on standards rather than on rules. Also constitutional provisions designed to maintain a balance of national and local government have to be interpreted. Application of standards and interpretation of constitutional provisions must be done with reference to received ideals; authoritative pictures of the social order. It cannot be said too often that these received ideals are as much part of the law as rules and principles and technique. It is here that most of what creates dissatisfaction with the work of the courts has its origin. If philosophy cannot give us an ultimate assured measure of values, it can give us a useful critique of the traditional ideals of the law. Administration of justice everywhere does not need reversion to justice without law which is an incident of political absolutism. It needs rather a redrawing of the received picture of the society in which justice is administered. It is bad social engineering to administer justice to a blueprint of a society of the past as a means of maintaining the jural postulates of civilization in a different society of the present.
Critique of received measures of value, however, is not all that is needed to enable the legal order better to perform its task of adjusting conflicting and overlapping expectations. We must never lose sight of the limitations of effective legal action.
Three important limitations of law as an enforcing agency of social control must be borne in mind in determining what interests the legal order may secure and how it may secure them. These limitations grow out of (1) the necessity under which the law operates, as a practical activity, of dealing only with acts, with the outside and not the inside of men and things; (2) the nature of certain interests pressing upon the law for recognition and securing which in their nature do not admit of effective securing through the machinery of the legal order; and (3) the necessity under which law operates of relying on some external agency to put its machinery in motion, since legal precepts do not enforce themselves. The first requires us to note the distinction between law and morals in respect of application and subject matter which has been gone into sufficiently in the third lecture. The second requires us to consider the limitations upon law as an agency of social control which are involved in application and subject matter.
There is a close connection between the problem of how to enforce the body of precepts for adjusting relations and ordering conduct by the force of politically organized society (law in the second sense) and the question how far all that we style law and seek to give effect as social control through the force of the state is capable of enforcement. When we look into the history of the subject we soon see that much of the problem of enforcing law is really a problem of intrinsic limitations in view of the nature of many of the interests to be weighed and secured and in view of the nature of legal precepts and of the means of applying them. Historically it is significant that while complaint of non-enforcement of legal precepts is as old as the law, it has been heard chiefly in periods when the law was seeking ambitiously to cover the whole field of social control or in transition to such periods. But without going into this it will be enough to set forth analytically the limitations inherent in the administration of justice according to law which preclude complete securing through law of all interests which ethical considerations or social ideals indicate as proper to be secured.
One set of limitations grows out of the difficulties involved in ascertainment of the facts to which legal precepts are to be applied. This is one of the oldest and most stubborn problems of the administration of justice. At first the law sought to settle the facts by mechanical devices, by some conclusive test which involved no element of personal judgment on the part of the magistrate and could not be challenged for partiality. At times and places the oath has been relied on as a guarantee of the truth. In England the Chancellor believed that he could “search the conscience of a party” and the answer in chancery had to be under oath. In the civil-law system of Continental Europe an oath in terms of the issue was a mode of proof and is still in use to some extent. But the ideas which made an oath effective to assure the truth have at least lost much of their strength, and perjury, false testimony, and fabricated documents put serious obstacles in the way of throughgoing attainment of the end of law. Bentham said paintings or engravings of the death of Ananias and Sapphira, “capitally punished on the spot by divine justice for mendacious testimony of the self-investitive or self-exonerative kind,” ought to be hung in every courtroom. To guard against this unreliability of oral evidence, the law often requires certain transactions to be evidenced by writing. Also it requires witnesses to certain instruments other than the parties and requires some transactions to be entered into before a magistrate or official. But these necessary precautions, while they prevent frauds, may often preclude the establishment of meritorious claims. Again, the law has had to proceed cautiously in securing against nervous and mental injuries and injuries to sensibilities because of difficulty or supposed impossibility of clear proof in the absence of objectively manifest illness. Nor is the difficulty merely one of false swearing. Mistaken observation, mistaken identification, misunderstanding or misinterpretation of what has been seen and heard afford many opportunities for honest testifying at variance with the facts. Criminal procedure provides many checks for the protection of accused persons in view of the dangers involved in the testimony upon which tribunals must perforce rely. But in spite of them conviction of the innocent is by no means unknown.
A second set of limitations grows out of the intangibleness of duties which may be morally of great moment but defy legal enforcement. I have spoken already of futile attempts of natural law or of equity at Rome or in England to make moral duties of gratitude or of disinterested benevolence into duties enforceable by courts. In the urban industrial society of today not only duties of care for the health, morals, and education of children, but even truancy, incorrigibility and want of harmony in the family have come under the supervision of Juvenile Courts or Courts of Domestic Relations. But the moment these things are committed to courts, administrative agencies have to be invoked to make the legal treatment effective. Probation officers, boards of children’s guardians, detention homes, and the like at once develop. It may be doubted whether such institutions or any that grew out of them will fully take the place of the old-time household discipline by means of which the intangible duties involved in the parental relation were formerly made effective.
A third set of limitations grows out of the subtlety of modes of seriously infringing important interests which the law would be glad to secure effectively if it might. Thus grave infringements of individual interests in the domestic relations by tale-bearing or intrigue are often too intangible to be reached by legal machinery. Anglo-American law has struggled hard with this difficulty. But the result of the action on the case for criminal conversation and alienation of affections, which long ago excited the ridicule of Thackery does not inspire confidence, nor does the American precedent for enjoining a defendant from flirting with the plaintiff’s wife assure a better remedy. So also as to the “right of privacy.” The difficulties involved in tracing injuries to their source and in fitting cause to effect have compelled some sacrifice of the interests of the retiring and the sensitive.
A fourth set of limitations grows out of the inapplicability of the legal machinery of precept and sanction to many important human relations and to some serious wrongs. One example may be seen in the duty of husband and wife to live together and the claims of each to the society and affection of the other. Today in the western world this interest has no sanction beyond morals and the opinion of the community. That classical Roman law, the modern civil law, and the Anglo-American common law, as a result of experience, each came in the end substantially to this result, speaks for itself.
Finally a fifth set of limitations grows out of the necessity of appealing to individuals to set the law in motion. All legal systems labor under this necessity. But it puts a special burden upon legal administration of justice in an Anglo-American democracy. For our traditional polity depends on individual initiative to secure legal redress and enforce legal precepts. It is true the ultra-individualism of the common law in this connection has broken down. Yet the possibilities of administrative giving effect to legal precepts are limited also and there are grave objections to a general regime of administrative enforcement. On the other hand, legal precepts will not enforce themselves. Human beings must execute them, and there must be some motive setting the individual in motion to do this beyond the abstract content of the precept and its conformity to an ideal justice or an ideal of social advantage. Thus we are brought to consider the social psychological limitations upon enforcement of legal precepts.
What is still the best discussion of the limitations upon law resulting from its dependence upon external agencies to set its machinery in motion—from its dependence upon enforcement by agencies outside of itself—is to be found in Jellinek’s Allgemeine Staatslehre. Functionally, he says, what makes a precept law is that it obtains as a rule of conduct and of decision and what makes a legal right is that the precept which stands behind it obtains in action. That means that its psychological efficiency is guaranteed, that is, that the authority which has prescribed it is so backed by social-psychological power as to be in a position to give effect to the precept as a motive for action in spite of counteracting individual motives.
Both judge-made and statutory precepts have failed because they lacked social-psychological guarantee. The difficulty may be: (1) that a precept runs counter to the individual expectations of the greater number or of the more aggressive of a dominant class; or () that it runs counter to settled moral ideas of individuals or of an obstinate minority (e.g., the Fugitive Slave Law in the United States before the American Civil War or the National Prohibition Act), or (2) that no immediate interests of individuals are involved and they are indifferent as to the precept.
An example may be found in jurisdictions where some part of the common-law doctrines as to employer’s liability still obtains and in those corners of employer’s liability in other jurisdictions where recent legislation has left the common law in force. It is notorious that fifty years ago a feeling that employers and great industrial enterprises should bear the cost of the human wear and tear incident to their operations dictated more verdicts in cases of employer’s liability than the rules of law laid down in the charge of the court. Most of the new trials directed by American highest courts of review on the ground that the verdicts returned were not sustained by the evidence, were in cases of this sort. Here the body of legal precepts applicable to the facts was settled and defined. But juries so found the facts upon which the court was to proceed that those precepts were not applied and a different result was required. Only the charge of the trial judge, correctly stating the applicable precepts served to preserve an appearance of life in the law in the books. That law ran counter to or, better, ignored the individual expectations of the majority of the community and ran counter to the moral ideas of an increasing number.
More striking still is the divergence between legal theory and current American practice in the handling of persons suspected of crime. It is idle to deny that the so-called third degree has long been all but an everyday feature of investigation by police and prosecuting authorities. According to the books an accused is absolutely protected against official questioning before or at the trial. But prosecuting attorneys and police officers and police detectives manage to conduct the most searching, exhausting and even at times brutal examinations of accused or suspected persons with all the appearance of legality and of having the power of the state behind them. This is done arbitrarily and there is little effective check on it, although the Supreme Court of the United States and the highest courts of a number of the states have been able to do something to discourage it. It is grossly unequal. No business man or manufacturer or railroad superintendent has been subjected to this process to obtain proof of violation of antitrust or rebate legislation nor any powerful politician thus dealt with to obtain proof of bribery or corruption. The malefactor of means, the rogue who has an organization of rogues behind him to provide a lawyer and a writ of habeas corpus has the benefit of the law in the books. But the ordinary malefactor, and what is worse the ordinary innocent victim of suspicion is too often bullied and even sometimes starved and tortured by officers of the law to obtain a confession. It is no doubt a sound instinct that makes us hesitate to give official interrogation of suspected persons the sanction of legality. We may agree with Sir James Stephen’s informant that, to use his words, “it is far pleasanter to sit in the shade rubbing red pepper into a poor devil’s eyes than to go about in the sun hunting up evidence.” But until the lawmakers can work out some device whereby a properly secured official interrogation can be assured and employed in a proper way in all cases, the weak and lowly and friendless will be at a disadvantage in all cases despite the legal theory. Here the interest secured is the social interest in the individual life which calls for security against oppression of individuals by officials. But it has not proved strong enough to sustain the law in the books as against the pressure of the social interest in the general security, which calls for effective investigation and prosecution.
Cases of doctrines or precepts in advance of popular thought show the same phenomena. For example, take the ultra-ethical ideas of the seventeenth- and eighteenth-century chancellors, such as making unconscionable conduct the sole test in equity, or the exaction of disinterested benevolence from trustees, later applied to the fiduciary relations of directors and promoters of companies. The late nineteenth-century attitude toward specific performance in cases of hard bargains and in cases of sharp practice should be compared with the present-day attitude toward these doctrines. Much of what I have called the “decadence of equity” is to be explained in this way. In both situations, whether the law in the books is behind or is ahead of popular thought on the subject dealt with, the social-psychological guarantee is lacking.
Lawyers have often assumed that most of the divergence between law in the books and law in action was attributable to faulty legislation; that statutes impossible of enforcement, enacted offhand without knowledge of the situation to be dealt with, are chiefly to be blamed. No doubt crude legislation has been a factor of no mean importance. Legislation imposing life imprisonment for possessing a bottle of gin, or imposing a heavier punishment upon one who gives an adult a cigarette than upon serious forms of extortion or upon some forms of corruption most detrimental to the proper conduct of public business, does not impress jurors or prosecutors or even judges with a sense of duty of upholding the written law. No doubt, too, we have had laws made merely to please particular constituents and not seriously intended to be enforced. But these are by no means the whole of the matter. Taught or judge-made traditions, settled habits of legal thought, sometimes fare no better in action. The common law of master and servant, and the ultra-individualist doctrine of contributory negligence long fared badly in the hands of juries and have been modified by legislation in the present century.
Again, the settled judicial doctrine against collusive divorce may be instanced, at least as the matter goes in many American state courts and began to go recently in England. In many of the United States “extreme cruelty” has become a convenient fiction to cover up that incompatibility of temper which may not unreasonably exist between a respected good citizen and his wife. The legal theory, the judicial decisions defining cruelty and the judge-made rule against collusion remain in the books. But husband and wife agree on a settlement out of court, they came to an understanding that she shall aver and prove cruelty unop-posed, the newspapers publish that she is to have a divorce, the ritual of a suit is gone through with, and a decree is entered. A like situation seems to have developed in England: “The judges do their best to enforce the law as it stands, but they struggle in vain.” Obviously there is an ill adjustment of the social interest in the security of the social institution of marriage and the social interest in the individual life. Hence there is nothing to induce individuals to move to vindicate the social interest in the institution of marriage as against the strong individual interests involved.
In order to secure enforcement law must largely rely on some immediate and obvious individual advantage which it may use either to bring about obedience to its precepts or to furnish a motive to others to vindicate or enforce it. The legal science of the past century knew of no such problem. To the analytical jurist the whole matter was one of executive efficiency. To the lawyer it was enough that a precept had obtained the guinea stamp of establishment by the sovereign. The jurist had no concern with questions of enforcement. That was for the executive. If the executive did not make the precept effective in action, then the executive was at fault. To the historical jurist the whole matter was one of whether the precept did or did not correctly express human experience. If it was a formulation of what had been discovered by experience, enforcement would take care of itself. It would be rooted in habits and customs of mankind and would be secure on that basis. If not, it was a futile attempt to do what could not be done and all attempt at enforcement would in the end prove vain. To the philosophical jurist the whole matter was one of the intrinsic justice of the precept—of its appeal to the conscience of the individual. If as an abstract proposition it was inherently just, its appeal to the reason and conscience of the individual would assure obedience from all but an almost negligible minority who would persist in going counter to their consciences and might have to be coerced. If not, the attempt to enforce an unjust rule contrary to the conscience of the individual ought to fail and we ought not to feel badly if it did fail. Another theory looked at the question in terms of politics. If laws were imposed on the people they would disobey them. If the people themselves made the laws, they would obey the laws they made or assented to.
Such simple theories of making legal precepts effective fall to the ground under the conditions of the urban industrial society of today. We learn quickly that efficient or inefficient executives alike encounter certain obstacles that seem beyond the reach of efficiency. We soon find that in such matters as traffic regulation in a time of motor vehicles the general security requires us to make habits instead of waiting for them to develop by experience at the cost of life and limb. We come to see that the exigencies of the general security and of the individual life require us to prescribe many things the reasons for which are not upon the surface and the justice of which, clear as it may be to the expert, will not appear to every reasonable and conscientious individual. Also the point is not whether the people at large have assented to or have made the precept in question. It is rather what interest will move the individuals, through whose initiative the precept must be made effective, to bestir themselves to see that it is vindicated. Jhering urged the duty of the good citizen to go to trouble and expense to vindicate his legal rights, even on small occasions, as his contribution to maintaining the legal order. But in the busy world of today men are less and less inclined to pursue their legal rights even in matters of no little moment at the expense of time, money, and energy they can more profitably employ in their everyday work.
Herein is the kernel of truth in Savigny’s distrust of conscious lawmaking and the lawyer’s distrust of legislation. Abstract formulation of rules is likely to result in empty formulas because there is only speculative interest in them, as propositions, not the living interest on the part of individuals whose demands and desires are affected directly and immediately by observance or nonobservance of the precept.
Establishing a criterion of valuing interests is not the whole of the science of law nor is valuing of interests whether recognized or pressing to be recognized, the whole task of law. Much of that task can be achieved only through what is called positive law—compromises or fixed rules, dictated by the need of some settled disposition of cases of conflicting or overlapping demands or expectations in order to assure uniformity and certainty rather than by any ideal other than predictability. But even then application is governed by an ideal of civilized society and of what the law of such a society should be. In practice interests are recognized and secured and legal precepts are interpreted and applied with reference to ideals of the end of law and ultimately of the ideal relation among men. While philosophers argue as to an absolute measure of values, received ideals of the purpose of the legal order and of justice as the ideal relation among men, received traditionally in the time and place, have to serve. What these ideals have been must be considered in the lectures that follow.