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 xperienti Ceuorum
Vevo
Scientia que VERO

Felibris
thur van Cross
GAEDA

BEQUEST OF
ARTHUR LYON CROSS
PROFESSOR OF ENGLISH HISTORY
TO THE
UNIVERSITY OF MICHIGAN
1940
 CAMBRIDGE STUDIES IN ENGLISH LEGAL HISTORY
EDITED BY

HAROLD DEXTER HAZELTINE, Litt.D.

OF THE INNER TEMPLE , BARRISTER -AT- LAW ; DOWNING PROFESSOR OF THE LAWS OF
ENGLAND IN THE UNIVERSITY OF CAMBRIDGE

INTERPRETATIONS
OF LEGAL HISTORY
 THE MACMILLAN COMPANY
NEW YORK • BOSTON CHICAGO • DALLAS
.

ATLANTA • SAN FRANCISCO

MACMILLAN & CO ., LTD .

BOMBAY • CALCUTTA • MADRAS
TORONTO

CAMBRIDGE UNIVERSITY PRESS

LONDON

1
 grad
33061300
1-11
kepada

INTERPRETATIONS
OF
LEGAL HISTORY

BY

ROSCOE POUND , PH.D., LL.D.

CARTER PROFESSOR OF JURISPRUDENCE IN
HARVARD UNIVERSITY

New York
THE MACMILLAN COMPANY
1923
All rights reserved
 PRINTED IN THE UNITED STATES OF AMERICA

COPYRIGHT , 1923,
BY THE MACMILLAN COMPANY

Set up and electrotyped. Published February, 1923. 1

Press of
J. J. Little & Ives Coinpany
New York , U. S. A.
 To

JOHN HENRY WIGMORE

1
1

1
 THE JURIST'S EXPLANATION OF LEGAL
DEVELOPMENT IN ENGLAND
AND ELSEWHERE

James RUSSELL LOWELL, in one of his letters to Stedman , the

poet, remarks : “ I think one of the greatest pleasures is to come
across a poem that one can honestly like; it's like finding a new
flower. If , at the same time," Lowell adds, "one can please the
9

author by telling him so, all the better." These words are as
applicable to a piece of juristic writing as they are to a poem .
Although they are very different from each other in many ways,
both these forms of literature possess at least one marked feature
in common. By virtue of its own particular qualities of style
and matter, every book on jurisprudential thought, no less than
every poem, has the power within itself to give the reader either
pleasure or displeasure; it has the faculty of making the reader
like it or dislike it. In the present volume of the Cambridge
Studies in English Legal History the reader comes across a new
work on jurisprudence, a history and criticism of certain aspects
of juristic thought in England and in other countries; and,
whether the reader be lawyer, historian, or philosopher, he will
find that this book gives him one of his greatest pleasures, that
it calls forth his honest liking, and that, indeed, it is a source of
his enlightenment and intellectual stimulus. In Lowell's apt
phrasing, the reading of Interpretations of Legal History is
“ like finding a new flower.” Such a pleasure comes but rarely
to the one who studies the literature of legal history and juris
prudence ; and " if, at the same time, one can please the author
by telling him so, all the better."
The author of this remarkable book in which, on request, he
has embodied his recent Cambridge lectures on the juristic and
philosophical explanation of the epochs, processes, and ends of
legal development, needs no presentation to the learned reader.
The Dean of the Law Faculty and the Carter Professor of
vii
 viii GENERAL PREFACE

Jurisprudence in Harvard University has long been recognized

as one of the foremost jurisprudential thinkers of our time.
Dr Pound's oral teaching of the history and principles of
Jurisprudence has given learning and inspiration to many of the
younger generation of lawyers in our common law jurisdictions ;
while his writings on jurisprudential subjects have spread his
teaching far and wide throughout the world. Many of his essays,
covering a wide range of subject matter, have been published
in the legal, philosophical, and historical periodicals of America
and Europe. Let us omit all Dr Pound's writings on botany,
legal education, and the history and principles of common law
and equity : let us name only a few of his scattered papers dealing
particularly with juristic thought. Let these few be the follow
ing : "Theories of Law," "Legal Rights," " A Theory of Social
Interests,” “Executive Justice," " Juristic Science and Law ,"
"Law in Books and Law in Action ," " The Limits of Effective
Legal Action,” “ Spurious Interpretation ,” “Mechanical Juris
prudence, " " The End of Law as Developed in Legal Rules and
Doctrines." The learned reader will not need to be reminded
that this short list of titles might be greatly extended. Nor will
he forget that within recent months three longer writings in the
author's chosen fields of research and thought have appeared
the monograph on criminal justice in American municipalities,
The Spirit of the Common Law , and An Introduction to the
Philosophy of Law .
In his present volume Dr Pound deals with a vast and complex
subject-matter in that lucid and forceful manner familiar to the
reader of his other writings and to the listener at his spoken
lectures and addresses. His main theme is the juristic and
philosophical interpretation of the history and principles of
legal systems , and over that theme he throws the spell of his
accurate and extensive learning in law, history, science, philos
ophy, and literature. By his skill in the handling of the materials
and by the force of his alert active mind he gives liveliness and
vigour to a subject which, in other hands, might well be dull.
Though he treats of the past as well as of the present, he so
breathes the spirit of social needs and human justice into the
past that to us, who read, it is the living present. Nothing seems
 GENERAL PREFACE ix

dead ; nothing seems past. We have the feeling of being present

when the Sun God hands the code, ready made, to Hammurabi.
If we ask ourselves why the past ages of the law are thus visual
ized and made present to our gaze, not only in this book but
also in Dr Pound's other writings, we shall find one special
reason to be his enthusiasm in the cause of justice. This is the
key -note. Always looking upon enthusiasm as one of the greatest
of powers, Madame de Staël says in Corinne that she recognizes
only two really distinct classes of men — those who possess the
capacity for enthusiasm and those who despise it. It is Dr
Pound's capacity for enthusiasm which transforms the past into
the present, giving it life and vigour.
The framework of the book is so designed as to permit a
survey of thought from earlier to later times. In the words of
Lord Morley, " a survey of this kind shows us in a clear and
definite manner the various lines of road along which thinkers
have travelled, and the point to which the subject has been
brought in our own time. We are able to contrast methods and
to compare their fruits. People always understand their own
speculative position the better, the more clearly they are ac
quainted with the other positions which have been taken in the
same matter." This is Dr Pound's method. He summarizes the
work of the various schools of juridical thought from antiquity
to our own time. He appraises the results attained by each one
of these schools, and he criticizes these results from the stand
point of one whose scholarly gaze surveys the whole field of
history and theory. He marks the permanent gains of each
movemert of legal thought; he suggests the ways in which these
contributions to jurisprudential science may be fruitfully ap
plied to social needs by the legislatures and courts of today.
But Dr Pound does more than this. His book is not merely a
history and a criticism of thought in regard to the processes and
ends of legal growth ; it is, at the same time, an expression of
certain aspects of his own original thinking about law and legal
history. From several points of view the most valuable feature
of the book is the author's own theory as to the modes of legal
progress and his own high conception of the part that the jurist
should play in the making of law. The book is not only narrative
х GENERAL PREFACE

and critical ; it is also constructive. The wise student will reflect

long upon the teaching of the master ; and, whether he be con
vinced or not, his thoughts will never run fully in their old
grooves.
Owing to its extensive survey of legal history and of juristic
and philosophical thought in regard to legal history, Dr Pound's
volume holds its own special place in this series of Cambridge
Studies in English Legal History. In the design of the series,
English legal history, viewed as the history of the lawof England
and of the many regions outside England which have inherited
or adopted their legal institutions from England, forms a con
stituent, a vital, part of the history of Western civilization.
Throughout all the stages of this evolution of English law as a
world - system the relations with other legal systems have been
close ; and, from the days of Bracton to our own time, the ideas
of English jurists as to the nature of law and the processes and
ends of legal development have been intimately connected with
the broader aspects of Western thought. One of the reasons
why one prizes Dr Pound's book is that it shows us clearly these
inter -relations between the ideas of English and the ideas of
foreign jurists. The historyof the speculations of English jurists
is an integral part of the history of English law ; but, in order
that it may be properly understood, the history of English ideas
in regard to law must be set out in its wider environment of
European movements in philosophical and jurisprudential
thought. As is natural to the jurist who inherits the traditions
of the common law of England and America, Dr Pound devotes
special attention to the history and principles of this system.
But the jurist cannot restrict his study to one legal system alone ;
he must be familiar with many bodies of law and with the
several stages of their history. He must possess a basis of com
parison, a foundation for his conclusions as to the more general
aspects of law and of the forces and principles which underlie
the growth, spread, and decay of law. Dr Pound's learning
in Germanic and Roman law, his knowledge of the modern
systems formed in large measure of these two legal elements,
1
and his familiarity with Eastern law and primitive custom , have
fitted him in a very special way for the difficult task of viewing
 GENERAL PREFACE xi

our Anglo -American jurisprudence in its wider environment of

Western development. He deals with the law and the juristic
thought of England and America and with their history ; but he
sees and explains the connections with the world of law and of
theory outside England and outside America. It is the breadth
of view in Interpretations of Legal History which makes this
book particularly valuable as a contribution to studies concerned
with the history of English law in its world-wide aspects.
To the one accustomed to think in terms of insularity — to
regard the evolution of English legal rules and legal theories as
the sole and exclusive creation of the people in a small sea - girt
isle, a creation unconnected with the legal world outside and
beyond - Dr Pound's survey will come indeed as a revelation.
If the student of English law sincerely desires to view his sub
ject, both historically and theoretically, in its wider aspects, he
will learn many lessons from this book - from the vastness of
its scope, its historical and philosophical range, its penetration
to fields of legal life and thought in different ages, its co-ordina
tion of separate but related lines of legal growth and theory.
There is just as truly a world-wide commerce in juristic ideas
as there is a world -wide commerce in the goods produced by
economic industry ; and this commerce in the concepts of
jurisprudence, this diffusion of the modes and results of thinking
about the history and the purposes of law, knows no frontiers
of land or sea. It is commerce borne from age to age and from
region to region by many forms of conveyance. The world-wide
movement of men and of books means the world-wide move
ment of thought. By such processes throughout the centuries
many of the legal ideas of today, in England and in other civi
lized countries, have their origin with the civilians and canon
ists and theologians of the Middle Age and the philosophers
and jurists of ancient Greece and Rome; the intellectual com
merce of history has brought the juridical ideas of ancient and
medieval times to our modern shores. The speculations of a
Kant and a Hegel about right and justice, speculations passing
from book to book and from teacher to teacher, influence and
even determine the nature of legislation, judicial decisions, and
legal theories in scattered regions of the world where the very
xii GENERAL PREFACE

names of the philosophers are unknown. Throughout her history

England has been on certain of the trade routes of this carriage
of jurisprudential ideas to and fro among the legal regions of the
world. English law and English thinking about law possess
indeed certain individual characteristics of their own ; but those
very characteristics are blended of many diverse elements
derived from various sources. They are not purely indigenous,
purely racial , purely insular. There are features of English
jurisprudential thought which are truly insular ; but, at the same
time, there are other features which are just as truly the common
heritage of England and of all the other regions of the West.
Even recent English schools of legal science — the analytical
and the historical schools, for example — are intimately related
to the ideas of Continental scholars. Austin and Maine are but
representatives of aspects of European thought. The commerce
in juridical ideas has known no frontiers.
Such are some of the broader reflections which are induced
by the reading of Dr Pound's inspiring volume. But the book
embodies also certain other definite teachings. Thus, we find
that many aspects of English legal history are illumined for us
by the light of juristic interpretation : we catch new glimpses of
processes of legal growth from the time of the Anglo-Saxons
down through the epochs of Glanvill, Bracton, Coke, Mansfield,
and Eldon to our own day. Particularly instructive, also, are the
references to the common law as it has spread to America ; and
there is here a rich field for the juristic comparison of the
common law in its old and in its new homes. The influence of
philosophical speculation upon the growth of English law in the
several periods of its history also stands out clearly : we can see
that Aristotle and Kant and Hegel have affected not only the
law itself, but also the attitude of the jurist toward the law.
Another special feature of the book is the author's criticism of
the English analytical and historical schools of jurisprudence.
The views of these schools have so firmly intrenched themselves
in the English mind that Dr Pound's acute and reasoned criti
cism - a criticism both destructive and constructive-will be
read with far more than ordinary interest. The whole volume,
in fact, lifts the mind out of some of its beaten tracks and places
 GENERAL PREFACE xiii

it in newer paths. In the final chapter— " An Engineering

Interpretation "—the author's own theory of legal history finds
its fuller and more definite statement : and the one who accepts
Dr Pound's teaching as to the processes of legal development
and the ends of law will find himself regarding in a new light
certain of the methods and the dogmas of the analytical and
historical schools. Dr Pound's enlightened conception of the
jurist's office is, again, one of the valuable contributions which
he makes to juridical science. To him the jurist is — or at least
ought to be a creative and moulding force in legal progress.
The whole of Dr Pound's book is, in fact, a summoning of
jurists to take their proper place of leadership in the work of
adapting old law and creating new law to meet the ever -chang
ing needs of social justice. The deadening effect of one of the
teachings of the historical school of jurists — the teaching that
law may be found, but not made - has too long kept jurists in
their cloistered retreats. If they hearken to the lesson taught by
Dr Pound, that law is made and remade by men, and if they
agree with him as to the nature of the jurist's function, they will
take their own part in the legal life of society ; they will apply
their learning and their juristic statesmanship, consciously and
continuously, to the reform of the law by influencing legislation
and judicature and the other processes of law -making. Released
from the fetters forged by the genius of Savigny, the legal
historian will approach his materials with greater freedom of
mind and more enlightened appreciation of the value of his
studies. He will have his eye upon the present as well as upon
the past ; he will be able to make his histories of legal growth
actual factors in the shaping of the law to meet present social
needs. The study of legal history serves more than one purpose.
If it has its uses in training and informing the mind, it has its
uses also in guiding the activities of courts and legislatures.
Legal history has aa social function to fulfil. The historian of law
is himself - or, rather, he may make of himself, if he will — a
true statesman.
The Abbé Gratry, distinguished as the “ Vico of the nine
teenth century," deserves to be kept in remembrance : his La
morale et la loi de l'histoire is a valuable contribution to the
xiv GENERAL PREFACE

philosophy of history. “ Humanity hitherto passive now begins,"

says Gratry, " with full knowledge and entire freedom, to take
into its hands the management of the affairs of the world ; it
enters into its age of manhood .” In such an age legal traditions,
unduly fostered and strengthened by the application of the
tenets of Savigny and his school of historical jurists, need to be
re - examined in the light of the newer social facts and forces of
our day. Juristic thought has long been tending, in fact, in this
direction . Maitland himself taught the doctrine that the his
torical spirit is not hostile to reform , that history is studied in
order that progress may be made, in order that the past may
not paralyse the present. The same ideas are taught by other
legal historians. Even the question as to whether the judge is to
be bound by precedents is being raised. “ Stare decisis, as an
absolute dogma," writes Dr Wigmore in his Problems of Law ,
" has seemed to me an unreal fetich. ... We possess all the detri
ment of uncertainty, which stare decisis was supposed to avoid,
and also all the detriment of ancient law -lumber, which stare
decisis concededly involves — the government of the living by
the dead, as Herbert Spencer has called it." The newer school of
jurists — jurists, too, who are masters of legal history — takes
over and adopts the saying of Thomas Jefferson that “ the earth
belongs in usufruct to the living ;... the dead have neither
rights nor power over it.” Such ideas are already affecting
legislation. From certain points of view the English Law of
Property Act, 1922, is conceived in the spirit of these ideas : it
is an effort to be free of part of the " ancient law -lumber.”
If an introduction has been written, when none was needed,
may not the stimulus of Dr Pound's book be the cause and the
justification ?
H. D. H.
September 5, 1922
 AUTHOR'S PREFACE

These lectures are printed as they were delivered at Trinity

College, Cambridge, in Lent Term , 1922 , with addition of
some notes partly by way of illustration and partly to assist
any who may be interested in pursuing the subject more deeply.
A complete history of the science of law in the last century
would treat of the survival of eighteenth -century philosophy of
law in some phases of Continental thinking and in American
constitutional law and of the rise of a neo -Rousseauist theory on
the basis thereof; of the different movements in the nineteenth
century metaphysical school ; of the rise of the social philo
sophical school on its philosophical side and of the philosophical
and juristic pedigrees of the neo -scholasticism and the revived
natural law of the present century. It would trace the beginnings
in nineteenth -century thought of the psychological and logical
movements in recent philosophy of law. It would trace the
relation of eighteenth -century natural law, as it survived in the
nineteenth century, and of the metaphysical-historical juris
prudence of the latter century to juristic economic realism and
to what might be called orthodox socialist jurisprudence. On
another side it would identify the elements that went to make
up the analytical school, would show the influence of that school
on the one hand upon English historical jurisprudence and on
the other hand upon the earlier sociological jurisprudence, and
would show its connection with the social utilitarianism of
today. On still another side it would trace the philosophical
and juristic pedigree of the mechanical sociological juris
prudence of the nineteenth century and show how, following
the progress of the social sciences, the sociological jurisprudence
of today developed from that narrow and at first sight un
promising beginning. But the chief thread of this story would
be the rise, the hegemony, and the downfall of the historical
xvi AUTHOR'S PREFACE

school. Such a history would show hov: the natural-law thinking

of the seventeenth and eighteenth centuries had already split
into two channels in the latter part of the eighteenth century
and split still further into three and ultimately four or five in the
nineteenth century. It would show how these smaller streams
of juristic thought began to converge at the end of that century
and have been gathering more and more into two main channels
in the present century. But it would show also, when the
historian looked back over the whole course, that during the
last century on the whole the historical school represented the
main stream . A history of the rise and the decay of the historical
school founded by Savigny would not be the whole of the history
of juristic thought in the nineteenth century. But it would be
the core and the largest part of such a history. The schools of
today have arisen out of the dissolution of Savigny's school
almost as definitely as the schools of the last century grew out
of the dissolution of the law -of-nature school. Its influence on
the law and the legal thinking of today is as palpable as the
influence of the law - of -nature school on the law and the legal
thinking of the first half of the nineteenth century.
Only a small part of the lesser task is within the scope of the
present lectures. They do not essay even a history of the
historical jurisprudence of the nineteenth century. They have
to do with one aspect thereof only, namely, the way in which
the historical school understood legal history and the relation
of its interpretations to the purposes of the time. Moreover
the design is not to tell a bit of juristic history as such but to
consider the modes of thought of the historical school and its
derivatives as an element in the legal science of today, to
appraise their value for present purposes, and to look into the
possibilities of other interpretations which the nineteenth
century historical school rejected or ignored. Yet one cannot
do these things without treating the nineteenth -century inter
pretations of legal history as part of the history of juristic
thought in that century and in their relations to all the currents
in which it ran .
My chief obligation is to Senator Benedetto Croce. His
writings which were of special use to me are cited in the notes.
 AUTHOR'S PREFACE xvii

In addition I had the privilege of talking with him about the

subject while the lectures were writing. I must also express my
grateful appreciation of the hospitality and courtesy of the
teachers of law at Cambridge and of the Master and Fellows
of Trinity College, which made my brief stay with that company
of scholars something always to be remembered .
R. P.

SQUIRE Law LIBRARY,

CAMBRIDGE,
May 4, 1922.
 CONTENTS
PAGE

GENERAL PREFACE. By H. D. Hazeltine . vii

AUTHOR'S PREFACE XV
LECTURE

I LAW AND HISTORY . . • I

II ETHICAL AND RELIGIOUS INTERPRETATIONS . 22

III THE POLITICAL INTERPRETATION . .

45
IV ETHNOLOGICAL AND BIOLOGICAL INTERPRETATIONS .
69
V THE ECONOMIC INTERPRETATION 92

VI THE GREAT -LAWYER INTERPRETATION . . . 116

VII An ENGINEERING INTERPRETATION 141

INDEX 167
 I

LAW AND HISTORY

Law must be stable and yet it cannot stand still. Hence all
thinking about law has struggled to reconcile the conflicting
demands of the need of stability and of the need of change.
The social interest in the general security has led men to seek
some fixed basis for an absolute ordering of human action
whereby a firm and stable social order might be assured. But
continual changes in the circumstances of social life demand
continual new adjustments to the pressure of other social
interests as well as to new modes of endangering security. Thus
the legal order must be flexible as well as stable. It must be
overhauled continually and refitted continually to the changes
in the actual life which it is to govern. If we seek principles,
we must seek principles of change no less than principles of
stability. Accordingly the chief problem to which legal thinkers
have addressed themselves has been how to reconcile the idea
of a fixed body of law , affording no scope for individual wilful
ness, with the idea of change and growth and making of new
law ; how to unify the theory of law with the theory of making
law and to unify the system of legal justice with the facts of
administration of justice by magistrates.
For, put more concretely, the problem of compromise be
tween the need of stability and the need of change becomes in
one aspect a problem of adjustment between rule and discretion,
between administering justice according to settled rule, or at
most by rigid deduction from narrowly fixed premises, and
administration of justice according to the more or less trained
intuition of experienced magistrates. In one way or another
almost all of the vexed questions of the science of law prove to
be phases of this same problem. In the last century the great
battles of the analytical and the historical jurists were waged
over the question of the nature of law - whether the traditional
I
2 LAW AND HISTORY

or the imperative element of legal systems was to be taken as

the type of law — and over the related questions as to the nature
of law -making — whether law is found by judges and jurists or
is made to order by conscious law -givers — and as to the basis
of the law's authority - whether it lies in reason and science or
in command and sovereign will. But the whole significance
of these questions lies in their bearing upon the problem of
adjustment between or reconciliation of rule and discretion, or,
as it is ultimately, the problem of stability and change of the
general security and the individual human life. And so it is
with the philosophical problems of jurisprudence and with the
most debated practical problems of law. When we discuss the
relation of law and morals or the distinction between law and
equity, or the respective provinces of court and jury, or the
advisability of fixed rules or of wide judicial power in procedure,
or the much - debated question as to judicial sentence or ad
ministrative individualization in the treatment of criminals, at
bottom we have to do with forms of the same fundamental
problem."
Attempts to unify or to reconcile stability and change, to
make the legal order appear something fixed and settled and
beyond question, while at the same time allowing adaptation
to the pressure of infinite and variable human desires, have
proceeded along three main lines - authority, philosophy, and
history. The Greek and Roman world relied upon authority
and later upon philosophy. The modern world has relied
successively upon authority, upon philosophy and upon history
-roughly speaking, upon authority from the twelfth century to
the sixteenth , upon philosophy during the seventeenth and
eighteenth centuries, and upon history during the nineteenth
century . But none of these disappears when the next comes into
favour. In the reign of philosophy we get a philosophical
authority alongside of and overshadowing authority as such.
In the reign of history we find a historical authority and a
historical philosophy alongside of intrinsic authority and philo
sophical authority and overshadowing both.
* I have developed this proposition in detail in a paper entitled “ Theories
of Law ,” 22 Yale Law Journal, 114.
 AUTHORITY 3

In its earliest form the idea of authority appears as belief in

a divinely ordained or divinely dictated body of rules, as in
Hammurabi's code, handed him by the Sun-god ready made,
or the Mosaic law, or the laws of Manu , dictated to the sages
by Manu's son in Manu's presence and by his direction. In its
latest form it is a dogma that law is a body of commands of the
sovereign power in a politically organized society, resting ulti
mately on whatever basis is conceived to be behind the capacity
of that sovereign. Such was the doctrine of the Roman jurists
of the Republic with respect to the strict law, and as the
emperor wielded by devolution all the legal powers of the Roman
people, it could be laid down as a legal proposition that the
will of the emperor had the force of law. This way of thinking
was congenial to the lawyers who took the side of royal authority
in sixteenth- and seventeenth -century France and through them
passed into the doctrine of modern public law . After 1688 it was
readily adjustable to Coke's dogma of the omnipotence of
Parliament, now become a political verity, and became the
orthodox English theory. Also when at the American Revolu
tion and later at the French Revolution “ the people ” were
thought of as succeeding to the sovereignty of the British
Parliament or of the French king, it was easily made to fit a
conception of popular sovereignty. In any of these forms,it
puts a single ultimate unchallengeable author behind the legal
order and as the source of every legal precept, whose declared
will is binding simply as such . It asserts that all the rules which
are actually applied in the administration of justice proceed
from that source mediately or immediately. It conceives of
interpretation as a simple process of ascertaining an actually
existent intent of the author of the precept and of application
as a purely mechanical process of an infallible legal logic in
which it is wholly immaterial for the result who happens to
be the interpreter or who happens to make the application or
wherefore he is called upon to interpret or to apply. In place
of the nature god or religious god of primitive codes it sets up
a political god in the form of State or People. For in this mode
of thinking men have their eyes upon the need of stability more
than upon the need of change. Usually they deny that law
4 LAW AND HISTORY

changes or at least conveniently fail to see that changes are

going on incessantly below the surface. From time to time they
make the inevitable readjustments by alteration of the recorded
revelation , by interpretations that leave the letter intact but
give the text a wholly new meaning, by fictions often com
parable to the " let's play" this or that of children, or by a more
subtle fiction of new authoritative divine pronouncements
declaratory of the old. When fully conscious of change and
driven to seek a fixed and absolute basis therefor, the believer
in authority postulates deliberate and avowed special creation
or new revelation by his political god.
When , for a time, the need of change comes to hold the first
place in men's eyes, as a result of wide and rapid political or
commercial or industrial expansion, they turn to philosophy.
For if the most rigid of codes demands “ interpretation" and
" application ," with all the adaptations which those terms affect
to conceal , and so is made to accommodate itself to the fluidity
of life, yet the most rapid legal growth or expansion does not
permit the lawyer to ignore the demand for stability. The call
for a theory of an ultimate and unchallengeable source is re
placed by the need of a directing and organizing theory whereby
the growth of law may be compatible with the maintenance of
the general security. In practice the change or growth takes
place by application of some new technique to the old materiais
or by joining old materials more or less reshaped to new ones
found outside of the law . Commonly the process is chiefly one
of analogical development of the old materials by extension here
and restriction there, by generalization , and by cautious striking
out of new paths, paved in part at least with old materials but
given a new direction by trial and error. Such a process may
easily disturb the general security, as may be seen in the earlier
days of English equity and in the legal history of more than one
American commonwealth in the formative stage of its institu
tions. Maintenance of the general security requires something
to fix the new technique, to mark the lines of the reshaping, to
guide the analogical extensions and restrictions and to provide
limits for the process of trial and error. Both in the classical
Roman law and in the analogous period in modern law, the
 NATURAL LAW 5

seventeenth and eighteenth centuries, this need was met by

philosophy in the form of the theory of a law of nature.
In fact jurist or text-writer or judge or legislator, working
under the theory of natural law, measured all situations and
sought to solve all difficulties by referring them to an idealized
picture of the social order of the time and place and a conception
of the end of law in terms of that social order . In effect he
sought so to shape or so to construct legal institutions and legal
precepts that the legal order should maintain and further this
ideal. But while this idealizing of the social order as it was
sufficed in practice to enable him to go forward with due regard
to the general security, it did not seem a sufficient guarantee.
It did not satisfy his desire for a perfect law which should
stand fast forever, such as the idea of authority had pictured it,
nor did it suffice to prove to mankind at large that law rested
upon something more stable than human will, more constant
than human desire to do justice, and more to be relied upon
than human ingenuity, and hence might claim complete and
unquestioning obedience. Accordingly the ideal of the social
order was taken to be the ultimate reality of which legal
institutions and rules and doctrines were but reflections or
declarations. True, it was not put in this way. The theory was
that natural law was that which expressed perfectly the idea of
law, that a rule of natural law was one which expressed perfectly
the idea of law applied to the matter in hand, and that positive
law got its whole validity from this natural law which it re
flected and declared. But the idea of law, on which everything
turned, was a juristic idealization of the social order of the time
and place .
Primarily the theory of natural law as a juristic doctrine
was a theory of making law. The old materials were to be tested
by the ideal and were to be reshaped to conform to it or, if this
was not possible, were to be rejected. If there were gaps to be
filled, they were to be filled in conformity with the ideal plan .
Yet it tended to become also a theory of law because of pressure
of the interest in the general security. Thus it happened pres
ently that a new authority was set up thereby — a philosophical
authority of the " nature of things" or of the " nature of man.”
6 LAW AND HISTORY

Once more the legal order was the revelation of a god. The new
juristic god was called “ reason,” and was represented as hostile
to authority. But his hostility extended only to the authority
of gods other than himself. Once the legal world had been
made over in his image the lines were to be as rigid and the
legal structures as firmly fixed and the doctrines as unbending
as under the reign of nature gods or religious gods or political
gods. For the philosophical revelation extended only to an ideal
picture of society. The details were filled in by lawyers, chiefly
from the materials of the law which had been taught them , and
once filled in got all the authority of the ideal plan. American
constitutional law is full of examples of common -law dogmas
made over to fit the ideal conception of the “ nature of American
institutions" and thus fixed as items of natural law beyond the
reach of legislative change.
Nevertheless the philosophical reconciliation of stability and
change was a notable advance in that, if it put the plan beyond
the reach of human law - givers, it called for continual scrutiny
of the building in all its details in order to be assured that they
conformed to the plan. Thus it took account of changes in the
positive law as such. Moreover, while the plan when found was
eternal and immutable, it was to be found by reason and it was
always arguable that what had been taken for the one authentic
plan was but an imperfect approximation. While legal systems
were freely absorbing materials from without, as in the develop
ment of equity and the taking over of the law merchant in
English law, the theory of natural law served well . But when the
absorption was complete for the time being and stability re
quired a pause to assimilate fully what had been taken up during
the period of growth and called for internal ordering and har
monizing and systematizing rather than for creation, it ceased
to satisfy. A reconciliation in terms of stability rather than in
terms of change was demanded and this reconciliation was
effected through history.
In law, as in everything else, the nineteenth century is the
century of history. As every eighteenth -century decision and
treatise and statute presupposes philosophy of law and is pro
tanto consciously or unconsciously a bit of philosophical ex
 ROMAN LEGAL HISTORY-WRITING 7

position, so every nineteenth -century decision and treatise and

in its interpretation and application, if not in its very conception
and enactment, every nineteenth -century statute presupposes
legal history and, as the culmination of aa bit of history, involves
consciously or unconsciously an interpretation thereof. Hence
we must not confine ourselves to professed historians of law ,
important as they are for our purpose. We must take account
of the whole body of legal literature - decisions, juristic writing
and legislation. For in the nineteenth century ideas of history
and of the interpretation of history were at work throughout the
law and throughout legal literature.
There was a fundamental contrast in this respect with the
legal literature of the past. The short history of Roman law by
Pomponius, preserved in the Digest, is no more than an inter
esting exordium to a dogmatic sketch of Roman law . It gives
us the names of the men who had set up the several institutions
of the Roman legal order, sets forth by whom the chief authori
tative enactments were proposed, and tells us the names of the
jurists who, by their responsa and their teachings and their
writings, declared and made known the principles involved in
the nature of things as applied to legal controversies. Not a line
of what follows would have been different if this exordium were
omitted or were written otherwise from end to end. So like
wise with the somewhat apologetic preface with which Gaius
begins his exposition of the Twelve Tables. Why should one,
he asks in effect, begin a commentary on Roman legislation
with the founding of the city ? So far as the preliminary histori
cal survey is more than an exordium — and he expressly justifies
it on rhetorical grounds as such - it is an incident of the philo
sophical attitude. A thing is perfect only when complete in all
its parts and the beginning of anything is an essential part.
Hence the natural or ideal exposition must include history."
The teachers and students of Roman law from the twelfth to
the fifteenth century did not think of that law as a bit of history
* "In setting out to expound the ancient laws, it has seemed right as of
course to go back to the founding of the city for my account of the law of
the Roman people, not because I would write needlessly verbose commen
taries but because I notice that in all matters a thing isperfect only when it
is complete in all its parts, and certainly the beginning is the most essential
8 LAW AND HISTORY

but as authority. As the declared will of Justinian, whose

successors still sat in the seat of Augustus, it was a living author
itative system. To them there was no question of history but
only of interpretation and application of a binding text. The
legal history of Cujas, who has been spoken of as a precursor
of the historical school, is a Humanist reconstruction of classical
antiquity, as a part of the intellectual movement of the time,
not an attempt to put historically found principles on the throne
of Justinian. Even the historical research of Conring, for which
much has been claimed ,1 is no more than a pulling down of what
had passed for that throne by showing that it was not the gen
uine seat of Augustus and Justinian after philosophy had
replaced authority and the dogma of the legal and political con
tinuity of the Empire had ceased to matter.
English legal history-writing prior to the nineteenth century
is more closely related to the legal history of that century in
that it is nationalist, and has an immediate practical purpose
of setting up a historical authority as a basis for the legal order.
Fortescue writes a historical sketch to show that England had
always been governed by the same customs from pre-Roman
Britain. He could not claim the authority of Justinian nor of
any other sovereign law -giver for the unwritten common law of
England. But the " written law ” laid down that immemorial
custom had authority as well as, and in the absence of, written
laws, and the common law of England was shown by history to
be the body of rules by which Englishmen had always been
wont to adjudge controversies and to guide their conduct.
Coke's Second Institute is a history of public law in which he
seeks to make out the case of the common -law courts against
the Stuart kings by setting forth the iminemorial common
law rights of Englishmen, possessed by their forefathers from
the beginning and declared by Magna Carta, by a long succes
part of anything. Moreover, if it is monstrous, as it were, for one who is
arguing a cause in the forum to lay out his case to the judge without some
preliminary statement, how much more is it unsuitable for one who ex
pounds to disregard the beginning and omit historical causes and take up
the subject matter to be expounded, if one may say so , at once with un
washed hands. ” Gaius ( on the Law of the Twelve Tables, I ) , Digest, 1 , 2, I.
1
Stobbe, Hermann Conring, Der Begründer der deutschen Rechts
geschichte ( 1870 ).
 HISTORICAL AUTHORITY 9

sion of statutes, and by a long and continuous succession of

judicial decisions. The premises are the same as Fortescue's and
the method is that of the advocate. The purpose is not to find a
basis for authority but to identify authority. In Hale, also,
with his proposition that the origins of English law are as un
discoverable as the sources of the Nile, we have the same idea
of a historical identification of authority, although there is a
suggestion of a combination of philosophy and history in a
period of philosophical hegemony which reminds us of Gaius.
Finally Blackstone, at the height of the reign of philosophy,
reconciles stability and change by adopting the historical theory
of continuity of an immemorial custom, as expounded by
Fortescue, Coke, and Hale, and adding a doctrine of change by
authority of Parliament, in terms of Coke and of the Revolution
of 1688 ; unifying the two ideas by the philosophical theory of
a law of nature of which each was declaratory and conformity
whereto gave to each its ultimate validity.
Nineteenth -century legal history-writing had a radically
different purpose. It did not think of a law which had always
been the same but of a law which had grown. It sought stability
through establishment of principles of growth, finding the lines
along which growth had proceeded and would continue to
proceed, and it sought to unify stability and change by a com
bination of historical authority and philosophical history.
Utilizing the idea of authority, it sought to put a historical
foundation under the seventeenth- and eighteenth -century
theory of law as only declaratory of something having a higher
authority than the pronouncement of legislator or judge as such.
Law was not declaratory of morals or of the nature of man as
a moral entity or- reasoning creature. It was declaratory of
principles of progress discovered by human experience of
administering justice and of human experience of intercourse
in civilized society ; and these principles were not principles of
natural law revealed by reason , they were realizings of an idea,
unfolding in human experience and in the development of
institutions—an idea to be demonstrated metaphysically and
verified by history. All of this body of doctrine did not develop
at once. But such was the creed of the school which was
 IO LAW AND HISTORY

dominant in the science of law throughout the century and in

one form or another this creed may be identified in all the
varieties of juristic thinking during the century, even in schools
which professed a different method .
After flourishing for a hundred years and ruling almost un
contested during the latter half of that period, the historical
school came into marked disfavour at the end of the nineteenth
century and broke down as completely at the beginning of the
present century as the law -of-nature school had broken down
at the end of the eighteenth century. As early as 1888 Stammler
made a formidable philosophical attack upon it in his Methode
der geschichtlichen Rechtswissenschaft, followed up in his well
known books of 1896 and 1902. In the latter year a leading
exponent of the historical school in France accused it of " ab
dicating” and of leading to legal immobility and gave what
proved a decisive impetus to the so-called revival of natural
law in that country." In 1897 Mr Justice Holmes, who had
done notable work in the historical interpretation of Anglo
American law in the hey-day of the school, criticized its habitual
failure to take conscious account of the considerations of social
advantage on which rules of law must be justified, its negative
attitude with respect to improvement of the law, and its rooted
tendency to hold aa rule wholly established as a suitable or even
necessary rule of action today if it could but be shown that it
obtained in embryo or in historical principle in the Year Books.2
Some of the historical school went over to positivism . Others
turned to the economic interpretation of legal history, or to
historical materialism . Others asserted that a distinction must
be made “ between history and the historical school,” gave up
historical jurisprudence , and confined themselves to a purely
descriptive legal history and a purely descriptive teaching of
law . Finally Kohler, who had done great things in historical
jurisprudence, turned to philosophy and in his neo -Hegelian
1
* Saleilles, “ L’École historique et droit natural," Revue trimestrielle de
droit civil, 1, 90 , 94 ( 1902 ) .
S “ The Path of the Law ," 10 Harvard Law Review , 457, 467 ( 1907 ) ;
Collected Papers, p. 184.
Saleilles, Le code civil et la méthode historique, Livre du centenaire du
code civil, 1, 99 ( 1904).
 REVIVAL OF FAITH IN ACTION II

philosophical jurisprudence insisted upon the element of

creative activity, upon the adapting of the legal materials of
the past, shaped by and adapted to the civilizations of the past,
to the exigencies of civilization in the present and the require
ments of a continually changing and moving civilization ."
Indeed, this break -up of the historical school coincides with
a general abandonment of the nineteenth -century historico
philosophical thinking in every field and the revival of faith in
the efficacy of human effort with an accompanying call for
philosophies of action and of creation in place of the political
fatalism and juristic pessimism of the immediate past. All this
was observable before the war, but the war gave it added impe
tus. For it demonstrated the rôle which human initiative, half
blind, erroneous, misdirected as it may be, does play in the build
ing of institutions and the shaping of human events ; it visibly
overturned the social and psychological foundations of nine
teenth -century thought, already undermined but still standing.
All the nineteenth -century schools were agreed upon the futility
of conscious action, although for different reasons. They con
ceived of a slow and ordered succession of events and of in
stitutions whereby things perfected themselves by evolving to
the limit of their idea . Just as clearly all the recent philosophies
of every type are philosophies of action.
Pragmatism sees validity in actions, not in that they realize
the idea, but to the extent that they are effective for their pur
pose and in purposes to the extent that they satisfy a maximum
of human demands. Bergson's intuitionism shows us how we
act better than we know and achieve results by trial and error
to meet human desires which we explain to ourselves by ideas.
The implication is that we need not fear to act. Historical
scepticism , in contrast with ancient scepticism, which taught
men not to act, teaches action by attacking the dogma of
historical fatalism and the doctrine that what does not exist
in historical idea is an idle hope. Activist idealism reaches a
result directly opposite to the conclusion of the idealism of the
past, which regarded the man who acted as a vain disturber of
the rational and foreordained order. The relativisms that are
1
Rechtsphilosophie und Universalrechtsgeschichte, $ 8 ( 1904 ).
 12 LAW AND HISTORY

springing up on every hand are, on their practical side, philoso

phies of action with respect to something desired. Croce's
identification of philosophy and history rejects the nineteenth
century philosophy of history and is a philosophy of life with
all its variety and action and change and compromise and
adaptation. When men are thinking thus a functional attitude
in jurisprudence is inevitable. Nor is this way of thinking merely
the natural and temporary attitude of those who have been
actors in or spectators of the far-reaching changes of the past
decade. It grows out of the need for action to meet the pressure
of new demands consequent upon changes in the social order
and of new desires both behind and involved in those changes.
As the theory of the law of nature came in as one of growth and
of creation, to take better account of the element of change in
the reconciliation of stability and change, and ended in assuming
that the one key to reason had been found for all time and that
social and legal and political charts had been drawn up by which
men and law-makers and peoples might be guided forever, so,
it may be, the historical theory, which sought a new reconcilia
tion in an idea of growth and progress, had come to deny growth
and progress in any effective sense through its belief that it
had discovered finally the immutable lines of growth or had
calculated once for all the fixed orbit of progress outside of
which no movement could possibly take place.
We may well believe, then, that an epoch in juristic thought
has come to an end, and that the time is ripe to appraise its
work, to ask what of permanent value it has achieved, to inquire
what are the present demands which it is unable to satisfy, and
to consider wherein its way of unifying stability and change,
with which men were content for a century, is no longer of
service.
To understand the juristic creed of the historical school of
the last century we must bear in mind that it was a passive
restraining mode of thought on legal subjects by way of reaction
from the active, creative juristic thought of the era of philos
ophy. Nor is this all. More immediately it was a reaction
from two phases of the natural-law thinking in its last stage,
namely, from the paper-constitution making and confident dis
 THE HISTORICAL SCHOOL 13

regard of traditional political institutions and conditions of

time and place which characterized the era of the French Revo
lution and from the belief in the power of reason to work
miracles in legislation and consequent no less confident code
making of the end of the eighteenth and beginning of the nine
teenth century. Writing to Madison in 1789, Jefferson had
said that the earth belonged " in usufruct to the living,” that
in consequence every constitution and every law naturally
expired at the end of nineteen years, and that if enforced longer,
it was imposed by force and not by right. Proceeding on the
political doctrine of the consent of the governed, he argued
that every new generation should renew that consent which
gives to law its binding force and that unless this consent was
so renewed as to each rule of law the rule ceased to be obliga
tory. As has been shown more than once, Burke, in reaction
from such ideas of the era of the French Revolution, was feeling
in political science for the ideas which the historical school after
wards made current in jurisprudence.2 Fourteen years before
" I set out on this ground which I suppose to be self evident, ' that the
carth belongs in usufruct to the living,' that the dead have neither powers
nor rights over it. ... On similar grounds it may be proved that no society
can make a perpetual constitution or even a perpetual law. The earth belongs
always to the living generation. They may manage it then, and what proceeds
from it, during their usufruct. They are masters, too, of their own persons,
and consequently may govern them as they please. But persons and property
make the sum of the objects of government. The constitution and the laws
of their predecessors extinguished them, in their natural course , with those
whose will gave them being. This could preserve that being till it ceased to
be itself, and no longer. Every constitution, then, and every law , naturally
expires at the end of 19 years.” Letter to James Madison, September 6,
1789, Jefferson's Writings ( Ford's edition ) , v, 115-116, 121 .
“ It is now forty years since the constitution of Virginia was formed. The
same tables inform us, that, within that period, two-thirds of the adults then
living are now dead. Have then the remaining third, even if they have the
wish, the right to hold in obedience to their will, and to laws heretofore
made by them , the other two-thirds, who, with themselves, compose the
present mass of adults ? If they have not, who has ? The dead ? But the
dead have no rights. They are nothing ; and nothing cannot own some
thing. Where there is no substance, there can be no accident. This cor
poreal globe, and everything upon it, belong to its present corporeal inhabi
tants, during their generation . They alone have a right to direct what is
the concern of themselves alone, and to declare the law of that direction ;
and this declaration can only be made by their majority.” Letter to Samuel
Kerchevall, July 12, 1816, Id. x, 43-44
" Society is indeed a contract. Subordinate contracts for objects of
mere occasional interest may be dissolved at pleasure — but the State ought
14 LAW AND HISTORY

Savigny's memorable tract they were set forth for political

history by Cuoco. Indeed it seems to have been shown that
Burke's Reflections on the Revolution in France had a direct
influence upon Savigny.
But chiefly Savigny's doctrine was a reaction from the legis
lative theory of the law -of-nature school in the period of legis
lation and codification with which the reign of philosophy came
to an end. It was believed that the jurist, by a mere effort of
reason , might frame a perfect code which could be administered
by judges mechanically as ultimate legal wisdom. Under the
influence of this idea men were scornful of history and of
traditional legal materials. All that was required might be done
by unaided reason as if there had never been a legal past. The
one thing needful was to draft into service the most powerful
reason in the state, obtain a perfect code through the exercise
of this reason , and hold down inferior reasons to its text.8 Such
was the theory — though happily by no means always the practice
of the Code of Frederick the Great, of which the first draft
was published in 1749 (though the code was not completed and
put in force till 1780-1794 ), of the Austrian code, projected in
1713, begun in 1767 and put in force in 1811 , and of the French
civil code, begun in 1800, put in force in 1804 and copied freely
throughout the world during the nineteenth century. It was
a result of the natural - law philosophy, of the extreme scope
for personal opinion to which that philosophy led, especially in
not to be considered as nothing better than a partnership agreement in a
trade of pepper and coffee, calico or tobacco, or some other low concern,
to be taken up for a little temporary interest, and to be dissolved by the
fancy of the parties.” Reflections on the Revolution in France, Works
( 1839 edition ) III, 118 ( 1790 ).
2
Saggio storico, $8 1-7 ( 1800 ).
* See Braune, Edmund Burke in Deutschland ( 1917) .
' Hence in the Code of Frederick the Great there was to be no judicial
power of interpretation. The judges were to consult a royal commission as
to any doubtful points and to be bound absolutely by its answer. Prussian
Landrecht, Introduction, $8 47–48. Compare French Civil Code, Art. 5 ;
Savigny, System des heutigen rörischen Rechts, I, § 31.
" "Men longed for new codes, which , by their completeness, should
insure a mechanically precise administration of justice, so that the judge,
relieved from the exercise of his own opinions, should be confined to bare
literal application .” Savigny, VomBeruf unsrer Zeit für Gesetzgebung und
Rechtswissenschaft, chap. i ( 1814) , 2nd ed. p. 5.
 SAVIGNY 15
its identification of law with morals, and of the rise of central
ized absolute government in Western Europe in the seventeenth
and eighteenth centuries.
In his tract on the vocation of the age for legislation and
jurisprudence, which marks the beginning of the historical
school in law , Savigny manifestly attacks the three phases of
eighteenth -century legal thought just described . But he attacks
them as he saw them ; particularly the results of the third in
legal thinking as they had fused with the Byzantine conception
of law , drawn from the Corpus Juris and handed down from
the twelfth -century academic idea of the statutory authority
of Roman law in the Western Europe of that time. 1
Savigny saw clearly the historical and doctrinal crudities 2 of
the framers of the French civil code; so clearly, indeed, that he
overlooked the extent to which their bad Roman law often was
made to result in good French law. Thus, he has no difficulty
in showing that they wholly misunderstood and misstated the
Roman law of usucapion with respect to stolen property.8
But the rule which they laid down ( really taken from the cus
tomary law of the north of France ) was infinitely better for a
commercial and industrial society than the actual Roman law,
based on conditions in the old city of Rome. The fact that the
rule which they adopted, mistakenly supposing it to be Roman
law , has won its way in all Roman -law countries and is making
1 " [ The call for a code] is related to many projects and attempts of the
sort since the middle of the eighteenth century. At this time the whole of
Europe was moved by a blind enthusiasm for improvement. All sense of
the importance of other times, of the natural development of societies and
institutions, and hence of all that is sound and worth while in history, had
been lost. Its place was taken by extravagant expectations as to the possi
bilities of the present, which , it was believed, was to be nothing less than
an ideal of perfection .” Ibid . 2nd ed. pp. 6–7.
" Such phenomena as Desquiron's speaking of a 'Roman jurist, one
Justus Lipsius, soon after the Twelve Tables' and of ' the famous Sicardus
under Theodosius Second, framer of the Theodosian Code' are significant.”
Id. chap. 7, 2nd ed . p. 61. Perhaps one need not say that Lipsius was a
sixteenth - century Dutch Humanist and Sicardus ( Sichard ) a sixteenth
century French editor of the Theodosian Code.
' "In another place he (Maleville) speaks of the usucapio of Justinian.
He says we must distinguish between the thief and the third person who
buys from the thief ; that the first requires thirty years, while the other is
within the purview of L. un. C. de usuc. transform . and hence of the three
years' prescription, as if the Romans had never heard of res furtiva.” Ibid .
 16 LAW AND HISTORY

greater headway continually in countries governed by English

law speaks for itself. But it happened often that Savigny had a
better case, as, for example, in the matter of civil death , where
seventeenth-century French law had made a curious fusion of
Germanic civil death through outlawry with Roman capitis
deminutio, of which Revolutionary France had taken advantage
as a weapon against the émigrés. The historical ignorance or
indifference of the compilers of the code led them to codify
the resulting mess and to put into the code a compound of
primitive law, of the legislation of Louis XIV against the
Huguenots, and of the legislation of Revolutionary France
against the émigrés, which was much behind the law of Jus
tinian. ' It was this sort of codifying that made Savigny so
sceptical as to the efficacy of conscious law -making.
Thus we may account for the characteristics of the school
founded by Savigny when we look at the problems of juris
prudence in his time, the questions he was discussing and the
purposes for which he discussed them. As its first tenet it
held that law was found, not made; that is, it was a theory of
the traditional element in modern law because the confident
disregard of that element and belief that law might be made out
of whole cloth by a sheer effort of juristic reason had led to the
unworkable prohibitions upon judicial interpretation of the
Prussian code, to the crude legislation as to extinction of per
sonality which Savigny exposed at such length in his System
of the Modern Roman Law , and to the legislation upon divorce
which he dissects historically in his tract upon legislation and
jurisprudence. Yet there is more to be noted. In a wider
sense this doctrine was a phase of a general reaction from the
eighteenth - century idea of civilization as something produced

3
* Jural Relations, transl. by Rattigan, pp. III-119.
* " On the subject of divorce the Roman law is cited continually. But
Portalis and Maleville begin with a history of Roman divorce which is not
merely false, it is wholly impossible. For example, they both believe that
marriage could not be dissolved by one party but only by mutual consent,
thus making the whole law of the Pandects on this subject and even the
law of Justinian quite devoid of sense, and that divorce by mutual consent
in Roman law is only a consequence of a mistaken doctrine that marriage
rests upon the same basis as other contracts.” Vom Beruf unsrer Zeit für
Gesetzgebung und Rechtswissenschaft, chap. 7, 2nd ed. pp. 63-64.
 SAVIGNY 17

ab extra by the action of aa wise law - giver or by some inventive

and master-spirited people. Nor may we overlook the con
nection between the attitude of the historical school toward
creative work in law and the circumstance that in contrast with
the law-of-nature school of the seventeenth and eighteenth
centuries it was a school of academic jurists. Savigny was a
professor of law who gave up the chancellorship of Prussia to
go back to his chair. Puchta was a professor. Maine's great
work was done as a professor at Oxford and his administrative
experience was the lesser part of his life. Ames and Thayer
and Bigelow in America were professors of almost exclusively
academic experience. Compare with them Grotius, whose
career was wholly diplomatic and political; Montesquieu with
a wholly political career ; Vattel, whose activities were entirely
diplomatic and political; Burlamaqui, whose teaching was a
mere incident in a political career ; Blackstone, whose lectures
at Oxford were an episode in a career as lawyer and judge, and
in America Kent and Story, whose lives were spent chiefly in
judicial office. Even Pufendorf and Wolff, whose main work
was academic, both had stormy careers because they insisted
on meddling with politics. It is not an accident that the one
group conceived that law could only be found by historical study,
distrusted legislation and were averse to action, while the
other group conceived that they could construct schemes of
natural law by exercise of their powers of reason , taught prin
ciples of constructive legislation and believed in action .”
Secondly, the historical school throughout its existence held
to some form of idealistic interpretation of legal history. Savigny
was unconsciously much under the influence of the ideas of the
law -of-nature school in which he had been trained . He as
1
* See Croce, Storia della storiografoltaliana nel secolo decimonono, 1,22–23.
a “ The historical school came to exactly the opposite doctrine ( from the
law-of-nature school ) because of a romantic disposition which found a
contemplative immersion in history more attractive than actual taking part
in the battles of the day, as successor of the hasty and somewhat crude
pretentious codifications of the sanguine, action -loving era of the French
Revolution, as citizen of a century of dormant political life, through the
help of a complaisant metaphysic which asserted that it had found the
reasonable' already worked out, and finally because of the learned tradition
that confined it to the working over of a body of law traditionally re
ceived ." Kantorowicz, Zur Lehre vom richtigen Recht, p. 8 ( 1909 ).
18 LAW AND HISTORY

sumed the seventeenth- and eighteenth -century doctrine that

law was only declaratory, and simply put a historical foundation
under it in place of its original philosophical foundation.
Nothing could have been better adapted to the demands of this
new foundation for an old way of thinking than the Hegelian
philosophy of history. An idea was realizing in legal history.
It could be discovered by historical research and when dis
covered its implications could be developed logically. Thus
history, philosophy and analysis, the three weapons in the
jurist's armoury, could be used in conjunction in a science of
law resting on the assured and stable foundation of fixed prin
ciples of historical development involved in the unfolding and
progressive realization of the idea.1 Metaphysics reinforced
history by showing us the same idea as a fundamentally given
datum .? Analysis supplemented history by enabling the jurist
to work out the logical implications of the principles in which
the idea was realized.3
Third, the historical school insisted on the social pressure
behind rules where the philosophical school of the preceding
centuries had insisted on the intrinsic force of the just rule as
binding upon a moral entity and the analytical school later
insisted upon the force of politically organized society. If a
given rule realized the idea, as it had unfolded in human ex
perience of intercourse of men with men or of the administration
of justice among men , conduct and adjudication would conform
thereto as a matter of custom and nothing was required beyond
judicial or juristic ascertainment and formulation thereof.
? " The complete science of law , therefore, consists in comprehending
the whole of the conception of right as developed in time or, in other
words, in universal history of right and law, that is, investigation of the
perennial relation of legal development to the historical principle of the
people and demonstration that the realities of right and law have devel
oped organically in the course of time in the progress of history, and how
this has taken place.” Friedländer, Juristische Encyklopädie, p. 65 ( 1847 ).
* "Philosophical jurisprudence has for its subject the idea of right and
law, that is, the conception of right and law and its realization ." Hegel,
Grundlinien der Philosophie des Rechts, § 1 ( 1820 ) .
* Hence, says Puchta, jurisprudence is " scientific knowledge of the
history and system of law.” Cursus der Institutionen , 1, § 33 ( 1841 ).
See, e.g., Clark, Practical Jurisprudence, p. 134 ( 1883 ) ; Maine, Inter
national Law , Lecture II ( 1888 ) ; Carter, The Ideal and the Actual in Law ,
pp. 10–11 ( 1890 ) .
 SAVIGNY 19
Nationalism was not a necessary nor was it an important
item in the creed of this historical school. Savigny's national
ism was partly inherited from the Protestant jurist-theologians
of the sixteenth century, reinforced by the rise of strong central
governments in the seventeenth and eighteenth centuries. But
for the most part it was an incident of the reaction from the
ideas and juristic methods of the French Revolution. As
against the abstract propositions of natural law expressed in
algebraic formulas in the Declaration of the Rights of Man , it
called for ideas drawn from the very depths of the nation . In
this respect it is comparable to the attitude of Burke toward
these formulas in politics and of Cuoco towards them in political
history. It was a protest against importation of the abstract
ideas and formulas of the French Revolution without ability
to import with them the conditions of fact in and out of which
they arose. But Savigny was a Romanist and his faith in the
historically discovered Roman idea made his legal science quite
as universal as that of the adherents of natural law . The
Germanists, who found the idea through r 'search exclusively
within the old Germanic law , were the nationalist group of his
school.
After a century of historical jurisprudence along these lines
we have come to think that it was not a historical school at all.
It assumed legal history as an absolutely given datum . It as
sumed progress as something for which a basis could be found
within itself, as progress of reason or of the spirit or in the
unfolding of the idea. It assumed that a single causal factor
was at work in legal history and that some one idea would
suffice to give a complete account of all legal phenomena. It
laboured under what has been called the “ illusion of per
97
spective. ” For when we look at the rules or the decisions or the
texts of the past, through a rationalized medium of legal analysis
and system , in a different setting from that in which they took
form and were applied, we look at them for the purposes of
present problems and with the ideas and the setting of the
But compare Vinogradoff, Historical Jurisprudence, I, 124-135 ( 1920 ), .

where the historical jurists are grouped as nationalists in distinction from

rationalists and evolutionists.
Croce, Storia della storiografia Italiana nel secolo decimonono, 1, 11.
20 LAW AND HISTORY

present before us. It by no means follows that what we see

thus through the spectacles of the present is anything that was
applied actually to the decision of causes anywhere or at any
time. It is more likely to be an idealized reflection upon the
legal problems of the present in terms of the texts of the past.
Whenever we look back at law, when we look at anything
beyond the actual course of judicature beneath our eyes, and for
some purposes and in some relations even then, we must inter
pret. With the historical school the interpretation, or, as Croce
puts it, the history -writing, passed for history.
In the course of the hegemony of the historical school many
interpretations of legal history developed which both grew out
of and in turn affected nineteenth -century law. Four of these
are of special importance for the understanding of the legal
thought of the last century and because of their bearing on the
legal science of today : ( 1 ) the ethical idealistic interpretation
and a special form thereof which may be called the religious
interpretation ; (2 ) the political interpretation ; ( 3) positivist in
terpretations in terms of biology and ethnology, and ( 4 ) eco
nomic interpretations, whether idealistic or mechanical-positiv
ist, or analytical-sociological. Each of these sets up its own ju
ristic god as the unchallengeable authority behind legal precepts
and the ultimate causal agency in the development of law. But
when these different forms have been looked into and we have
examined them as to how far they give a satisfying account of
legal phenomena in view of the demands of society of today and
as to their effects when the ideas to which they gave rise were
put into action in the administration of justice, we shall come
to the conclusion that history as a juristic god has done no more
for us than authority and philosophy which it succeeded.
* On history -writing and interpretation of history generally, see Barth,
Die Philosophie der Geschichte als Soziologie, pp. 200-346 ( 2nd ed. pp. 483–
809 ) ; Small, General Sociology, pp. 44-62 ; Cornford , Thucydides Mythis
toricus; Fueter , Geschichte der neueren Historiographie; Gooch, History
and Historians in the Nineteenth Century ; Flint, Historical Philosophy in
France ; Croce, Teoria e storia della storiografia, 2nd ed., transl. as On His.
tory ( 1921 ) ; Croce, Storia della storiograña Italiana nel secolo decimonono.
As to interpretations of jurisprudence and legal history, see Pound, " Politi
cal and Economic Interpretations of Legal History,” Proceedings Ameri
can Political Science Assoc ., p. 95 ( 1912) .
 THE LEGAL ORDER 21

For the simple picture of the legal order painted by the

historical school, with its one idea to which it attributed and
by which it solved everything, must give way before the
results of psychology and psychological sociology. We must
give up the quest for the one solving idea. The actual legal
order is not a simple rational thing. It is a complex, more or
less irrational thing into which we struggle to put reason and in
which, as fast as we have put some part of it in the order of
reason , new irrationalities arise in the process of meeting new
needs by trial and error.
On the one hand we must take account of the social or cultural
needs of the time and place in all their possibilities of over
lapping and of conflict and in all their phases, economic, political ,
religious and moral. On the other hand we must take account
of suggestion, imitation, traditional faiths or beliefs, and par
ticularly of the belief in logical necessity or authority expressing
the social want or demand for general security. We must think
not in terms of an organism , growing because of and by means
of some inherent property, but once more, as in the eighteenth
century, in terms of a building, built by men to satisfy human
desires and continually repaired, restored, rebuilt and added to
in order to meet expanding or changing desires or even changing
fashions. We must think of a body of materials in actual use
handed down from the past on which we work consciously and
subconsciously to achieve the desires and satisfy the wants of
the present; eking them out through suggestion and imitation,
creating new ones now cautiously and now boldly when the
old fail us, and moulding all to the form which those desires and
wants have given to traditional faiths and beliefs ; but held back
by those traditional faiths and beliefs and especially in law by
the rules and modes of thought of the art in which lawyers have
been trained, become an instinct to follow logical compulsion
and authority. Some such complex picture as this is given us
by psychology and sociology in place of the simple pictures of
the past. And yet in that complex picture there is something
of each of those simple pictures to justify our looking at each
of them in detail.
 II

ETHICAL AND RELIGIOUS INTERPRETATIONS

In the ethical idealistic interpretation the idea which is realizing,

which is unfolding in legal history, is an ethical idea — the idea
of right.1 On the one hand the jurist finds the idea and becomes
able to grasp its content through history . On the other hand,
when it is found, he proceeds to give it logical development.
Thus there are two sides to the science of law, the historical and
the logical. The combination gives a complete juristic method.
Later the historical and the metaphysical schools came to an
understanding conceiving that the latter demonstrated the idea
found by history, so that the two differed only in the side of
the complete historico-metaphysical science of law to which
chief attention was devoted.3 But the metaphysical reinforce
ment did not seem necessary to English and Americans, who
1
* “ Right receives a development in space and time. It has a history
because it is practically realized by man. “There is an unfolding of its nature
in which it maintains its identity under change.' ” Hastie, Outlines of Juris
prudence, p . 152 ( 1887 ). But this is translated from Friedländer ( 1847 ).
"A positive law, in its widest sense, may be defined as the expression of
the idea of right involved in the relation of two or more human beings."
Miller, Lectures on the Philosophy of Law , p . 9 ( 1884 ).
2
See, for example, Hastie, Outlines of Jurisprudence, p. 153 .
Compare also : “ The objectof the science of law is the principles of all
the legal precepts which it is possible to promulgate by external law
making." Kant, Metaphysische Anfangsgründe der Rechtslehre, Introduc
tion, & A ( 1797 ).
" Philosophy of law or natural law is the science which deduces the high
est principle or idea of right and law from the nature and destiny of man
and of human society and develops it into a system of principles of right
for all the fields of private and public law.” Ahrens, Naturrecht oder
Philosophie des Rechts, i, § 1 ( 1870 ).
“ The special science which we may properly call the philosophy of law
(is) the development of the idea of absolute justice which rests in every
human mind and its application to the diverse relations which man may
maintain about him ." Boistel, Cours de philosophie de droit, 1 , 3 ( 1899 ).
* “'It is at once a philosophy, a science and an art. As a philosophy, its
desire is to understand justice; as a science, its purpose is to explain the
evolution of justice ; as an art, its aim is to formulate those rules of conduct
essential to therealization of justice.” Adams, Economics and Jurisprudence,
p. 8 ( 1897 ) . See Geyer, Geschichte und System der Rechtsphilosophie, 2
( 1863) ; Prins, La philosophie du droit et l'école historique ( 1882 ).
22
 RELIGIOUS INTERPRETATIONS 23

were apt to speak of it slightingly. Nevertheless the meta

physical element was decisive in the doctrine of the historical
school. For the idea which it found was the idea of right held
by and as formulated by the metaphysical jurists. In fact the
historical method in jurisprudence was a historical verification
of that idea .
Speaking generally, the conception of law and interpretation
of legal history in terms of an ethical idea divided the allegiance
of jurists with the political interpretation until the last quarter
of the nineteenth century, when new rivals arose. Usually the
ethical interpretation was adhered to by those who followed the
metaphysical or nineteenth -century philosophical school, while
the political interpretation was adopted by professed adherents
of the historical school. But there were many exceptions, for
the two forms of idealistic interpretation were easily reconciled
as modes of looking at or stating the same fundamental idea.
Justification for treating them separately is to be found in the
clearness with which they are distinguishable in typical examples
and such treatment is convenient because the ethical interpreta
tion came first and as it were set the model for all subsequent
nineteenth -century interpretations while the political interpreta
tion had an independent development in England and became
an important factor in American decisions in constitutional law .
Closely related to the ethical interpretation is a special form
of idealistic interpretation which conceives of the idea of right
in terms of religion rather than of ethics and thinks of legal
history as that part of the realization of a religious idea which
has to do with its manifestation in right and law . Stahl argued
in 1829 that a religion and a philosophical system alike was an
endeavour to apprehend things in their total coherence according
to their highest cause and purpose ; that the Christian religion
was such an apprehension of things, and hence that law and the
state were to be understood in terms thereof. Stahl's execution
of his design for a religious interpretation of law does not differ
* Pollock , Essays in Jurisprudence and Ethics, p. 28 ( 1882 ) ; Bryce,
Studies in History and Jurisprudence ( American ed.), p. 611 (1901 ) ; Gray,
Nature and Sources of the Law, $$ 7-9 ( 1909 ).
* “ The apprehension of things in their grand total coherence, according
to their highest cause and purpose, we call world view . Every philosophical
24 ETHICAL AND RELIGIOUS INTERPRETATIONS
in effect from the ethical interpretation of the metaphysical
school to which he belonged. No one has sought to write a
universal legal history from this standpoint, and religious inter
pretation of special periods of legal history, as, for instance, of
classical Roman law in terms of the Stoic philosophy 1 and of
the later Roman law in terms of Christianity, have found few
adherents. The prevailing view has been that, after the stage
of primitive law is passed, religion has played relatively a small
part in legal history. Recently Riccobono has revived the
question of the influence of Christianity upon Roman law after
the fourth century . English and American writers have not
urged this interpretation and as such it has had no influence
upon our actual law. Yet I venture to think that the influence
of religious ideas in the formative period of American law was
often decisive and that without taking account of Puritanism
we shall fail to get an adequate picture of American legal history
and shall not understand American law as it was in the last
century. I suspect also that some day we shall count religious
ideas as no mean factor in the making of what are now the
doctrines of English equity. Undoubtedly such ideas played
system is such aa world view. Every religion includes such a world view none
the less, if with less thorough development. This is true also of the Chris
tian religion. Now it is the latter which we take as the foundation of law
and
1
of the state.” Philosophie des Rechts, II, 4 ( 1829 ).
* See Laferrière, De l'influence du stoicisme sur la doctrine des juriscon
sultes romains ( 1860 ) ; Hildenbrand, Geschichte und System der Rechts
und Staatsphilosophie , I, SS 141-142 ( 1860 ) ; Pernice, Labeo, I, 16-17
( 1873) ; Sokolowski, Philosophie im Privatrecht, $$ 2, 4-8, 11 , 12, 30 ( 1902).
On religious influence on law, see Coulanges, La cité antique, chaps. 1-4
>

( 1864 ) ; Felix , Der Einfluss der Religion auf die Entwickelung des Eigen
thums ( 1889) ; Bryce, Studies in History and Jurisprudence,Essay 13 ( 1901).
* L'Influenza del cristianesimo nella codificazione di Giustiniano ( 1909 ) ;
" Cristianesimo e diritto privato," Revista di diritto civile, 111, 37 ( 1911 );
“ Communio e comproprietà,” in Vinogradoff, Essays in Legal History,
33 ( 1913 ) . See Troplong, De l'influence du christianisme sur le droit civil
des romains ( 1843 ) ; Maas , Der Einfluss der Christenthum auf das Recht
(1886 ) ; Baviera , " Concetto e limiti dell'influenza del cristianesimo sul
diritto privato ," Mélanges Girard, 1, 67 ( 1912 ) ; de Zulueta, " The Girard
Testimonial Essays,” 30 Law Quarterly Review , 214, 216–217 ( 1914) .
* I have considered this at length in The Spirit of the Common Law,
Lecture II, “ Puritanism and the Law," pp. 32–59 ( 1921 ) ; and in "Puri
tanism and the Common Law ,” Proceedings Kansas State Bar Assoc. 1910,
45, reprinted in 45 American Law Review , 811 .
* I gave some examples in “ Consideration in Equity,” Wigmore Celebra
tion Essays, p. 435.
 LAW AND MORALS 25

a substantial part in the history of the modern Continental law

of obligations. So far as it directs attention to a factor which
often may be of the first moment in shaping legal rules and
doctrines and institutions the religious interpretation is by no
means to be neglected.
It is not difficult to see why the first interpretation in point
of time was ethical. The historical school succeeded to the
leadership of the juristic world on the breakdown of the law
of-nature school. Its founder and its first adherents had been
trained in the ideas of the latter. As Bekker puts it : “ Savigny
was ... brought up in the enemy's camp [and] ... had his first
juristic training under the dominance of the very doctrine in
opposing and rejecting which ... lay his chief service. He was
.

»
never wholly able to efface the stamp of this first impression.” 2
His way of thinking was a reaction from the natural-law iden
tification of the legal with the moral. According to the doctrine
of his school law and morals had a common origin but diverged .
in their development so that his successors were able to throw
over ethics and to hold that morals and what ought to be were
matters with which the jurist had no concern.3 But it was not
easy to shake off the long-established connection which, indeed,
was strengthened by the ambiguity of ius and its equivalents in
the languages of Continental Europe, whereby one never can
be wholly sure whether a writer is speaking of right or of law,
in terms of ethics or in terms of jurisprudence, or of both - nor
is the Continental jurist always careful to distinguish in his
own thought. Thus analyses of law were likely to be also
analyses of the idea of right; and after the period of growth
from the sixteenth to the eighteenth century, with large in
fusions into legal systems from without, as for example in
the case of the law merchant, a chief need was organizing,
systematizing and harmonizing of the internal content of
* Salvioli, Storia del diritto Italiano, 8th ed. $$ 622-624. Compare also
the influence of the church upon Continental criminal law , id. $ 728.
Recht des Besitzes, p. 3 ( 1880 ) .
• “ Investigation of the principles on which the direct improvement of
substantive legal rules should be conducted belongs nevertheless not to the
theorist on jurisprudence but to the theorist on legislation.” Maine, Early
History of Institutions, Lecture XII ( 1874 ). Clark , Roman Private
Law : Jurisprudence, 1, $ 3 ( 1914) .
26 ETHICAL AND RELIGIOUS INTERPRETATIONS

bodies of law, in which analysis was the most effective

instrument. This need determined the first course of the
historical school.
System of the Roman law , carried into every detail whereby
every rule and doctrine is consistent internally and is made
part of a consistent whole, is one of the great practical achieve
ments of nineteenth -century science of law . It gave us a
picture of an ideal legal system with reference to which jurists
in all lands could seek to put at least some corner of their legal
world in the order of reason . Its fruits may be seen in things as
far apart as English analytical jurisprudence - for Austin's debt
to the Pandectists of his day is obvious and Holland used the
later Pandectists avowedly and to excellent purpose and the
German , Japanese, Swiss and Brazilian codes. The Romanists
who did this work were adherents of the historical school. They
did it by going back to the Roman texts after a period in which
jurists had relied on natural reason to tell them what law ought
to be and therefore must be. But their study of the texts was
for a special purpose directly connected with the law of their
own day. Accordingly they turned their energies to testing and
verifying the concepts reached by analysis of modern law by
analyzing the law of the past in terms thereof and so demon
strated that the systematic notions required for the ordering of
our law expressed the idea which was unfolding in the develop
ment of the rule or doctrine or institution in question. The rule
or doctrine or institution of today was the culmination of a
course of history ' in which that systematic notion might be
traced from its embryo in the beginnings of Roman law or in
the oldest Germanic law , or according to later ideas, in an
1 “The results of this inquiry as to the state of modern law (as to posses
sion ) are as follows : In modern times no doubt rules have been adopted
which were unknown to the Roman law. But the whole Roman theory is
so far from being infringed by those rules that on the contrary they may
not be understood except by treating them as further examples of that
theory, the validity of which is thus clearly recognized .” Savigny, Recht
des Besitzes, & 54 ( 1803 ).
But this " Roman theory” is a nineteenth -century generalization from the
Roman possessory interdicts and doctrines as to usucapion for the purposes
of modern problems. Later in the century Romanists modified it much
and still later, after Jhering, it was widely rejSee Buckland , Text
Book of Roman Law , pp. 199–201.
 UNIVERSAL LEGAL HISTORY 27
Aryan Urrecht,' to its full bloom in the maturity of law in the
nineteenth century. The ethical interpretation was an incident
one might say a by -product - of this method whereby the
Romanists of the historical school gave themselves a rational
account of what they were doing. They were studying the law
of the present as a stage in the history of Roman law and were
studying the history of Roman law as a part of universal legal
history.
In the latter respect, the ethical interpretation is related to
the contemporary conception of universal history which ob
tained for a time in history-writing. There could be no writing
of “ universal history " unless there was a principle by which to
select, reject and present the materials, and that principle was
more likely to grow out of the present-day situation which the
author sought consciously or subconsciously to explain to
himself than to spring after the event from an unbiassed review
of materials gatheredwithout prepossession and studied without
reference to aa thesis. Writing of “ universal history" within the
compass of a single book required selection of a few facts, taken
to be the significant or important facts, as if there could be an
absolute significance or importance, which were then taken to
demonstrate the principle with reference to which they had
been chosen . So with the older sketches of universal legal
history. In effect they were written from the standpoint of an
ideal system of the modern Roman law and so succeeded in
finding the germs of the analytical conceptions of that system
in ancient legal institutions and in tracing the development of
modern institutions therefrom along historical lines. Roman
legal history was written by this method so well and in such
detail with reference to every item of the modern law that it
is giving us much trouble to distinguish the actual law of the
first and second centuries from the juristic ideal picture of it
which the historical school in the nineteenth century set up for
us in its place. To a less extent the same thing happened in our
* Fustel de Coulanges, La cité antique ( 1864 ) ; Maine, Early History of
Institutions ( 1874 ) ; Hearn , The Aryan Household, an Introduction to Com
parative Jurisprudence ( 1878 ) ; Leist, Altarisches Jus Gentium (1889 ) ;
Leist, Altarisches Jus Civile ( 1892-1896 ) ; Jhering, Vorgeschichte der In
doeuropäer ( 1894 ).
28 ETHICAL AND RELIGIOUS INTERPRETATIONS
law. Doctrinal histories of this or that legal conception or legal
precept were worked out, sometimes by courts but more often
by text -writers or teachers, in which an analysis of the law of
the nineteenth century was traced back into the Year Books and
a principle was found latent in some meagrely reported, am
biguous and fragmentary pronouncement of a medieval court
which had culminated in the latest decisions of English and
American courts. Thus the historical theory responded to the
need of system, not merely in the law as a whole but in each
department and branch and subdivision, which was felt both
in Roman-law countries and in our own at the beginning of the
last century .
To the foregoing reasons for the rise of the ethical inter
pretation we must add that Kant, who had been the chief agent
in destroying the philosophical foundations of the eighteenth
century law of nature , had provided a metaphysical formula of
right which was at hand to be made into a theory of law. Just
as the Roman lawyers gave a legal content to the Greek philo
sophical conception of the just-by-nature and made it into
natural law , Savigny put Kant's definition of right in terms of
ordering the activities of free beings, co-existing in aa condition
of free contact with each other, by means of rules determining
the boundaries within which each might securely exercise his
freedom , and gave us a theory of law . ?

* Often these doctrinal histories had great systematic value and they
played an important role in the systematizing of the different special de
partments of Anglo-American private law which went on so effectively in
American law schools in the last quarter of the nineteenth century. Most
of the " case books" prepared for use in those schools in the last two dec
ades of the century proceed more or less in this way.
3 " Acts of will or voluntary choice are thus regarded only in so far as
they are free, and as to whether the action of one can harmonize with the
freedom of another according to a universal law.
"Right, therefore, comprehends the whole of the conditions under which
the voluntary actions of any one person can be harmonized in reality with
the voluntary actions of every other person, according to a universal law
of freedom.
" Every action is right which in itself, or in the maxim on which it
proceeds, is such that it can co-exist along with the freedom of the will of
each and all in action, according to a universal law.” Kant, Metaphysische
Anfangsgriinde der Rechtslehre, Introduction, $$ A, B ( 1797 ).
Compare : “ Man stands in themidst of the external world, and the most
 KANT 29

Kant's formula of justice was the idea of right which was un

folding or realizing in legal history and every legal rule and
doctrine and institution was a more or less complete or perfect
expression of this idea. Moreover its future development could
only be in the direction of more complete and perfect realiza
tion thereof. Down to the advent of the economic interpretation
all idealistic and all positivist interpretations in one way or
another came to this result. For throughout the century social
and legal philosophy were concerned to “ reconcile government
and liberty ,” and were troubled by the antithesis of aa system of
ordering men through an administrative organization or by the
enforcement of legal precepts and of individual freedom resting
on the autonomy of the human will. Administrative supervision
of individual action and coercion by judicially enforced legal
precepts were obvious facts called for by the demand for general
security. Individual freedom of self-assertion was an ideal
whose realization men were anxious that this supervision and
coercion should advance or at least should not hinder. Kant's
formula of right is an attempt at an absolute and universal
solution of the difficulty. Indeed it seems to be the final form
of an ideal of the social order which governed from the six
teenth to the nineteenth century ; an ideal of the maximum of
individual self -assertion as the end for which the legal order
exists. The significance for jurisprudence of this problem of
legal control and individual freedom and of Kant's solution
thereof lies in this, that legal reasoning is the chief instrument
by which compromise between the need of stability and the
need of change is effected in the everyday administration of
justice — by which, that is, new needs are met by means of old
important element in his environment is contact with those who are like
him in their nature and destiny. If free beings are to co -exist in such a
condition of contact, furthering rather than hindering each other in their
development, invisible boundaries must be recognized within which the ex
istence and activity of each individual gains a secure free opportunity. The
rules whereby such boundaries are determined and through them this free
opportunity is secured are the law ." Savigny, System des heutigen rö
mischen Rechts, i, § 52 ( 1840 ).
' I have discussed this more fully in a paper entitled , “The Philosophy of
Law in America, ” Archiv für Rechts-und Wirthschaftsphilosophie, vii,
213, 385. Also in The Spirit of the Common Low , Lecture VI, “ The
Philosophy of Law in the Nineteenth Century,” pp. 187 ff.
30 ETHICAL AND RELIGIOUS INTERPRETATIONS
rules and institutions and adaptation to changing conditions is
brought about with a minimum of outward infringement or
warping of established precepts. But this legal reasoning is a
process of analogical development by extension or restriction
or generalization of precepts chosen and shaped with reference
to an ideal of the end of the legal order. Thus a formulation
of this end which is accepted generally by jurists in any
time or place becomes a factor of no less importance in deter
mining the course to be taken by the administration of justice
for the time being than the mass of historically given legal
precepts which are consciously or unconsciously made over in
its image .
Three such ideals of the end of law have governed at different
times. In the beginnings of the Roman law and in Germanic
law there was a simple ideal of keeping the peace, of satisfaction
of the social demand for general security put in its lowest terms.
In Greek political philosophy, in the classical period and in the
maturity of Roman law this ideal was replaced by one of main
tenance of the general security mediately through the security
of social institutions or, in other words, of satisfaction of the
social interest in the security of social institutions. With the
reception of the law of Justinian and of the philosophy of
Aristotle in the later Middle Ages this orderly maintenance of
the social status quo came to be the ideal of that period also.
In the transition from a kin -organized society to a politically
organized society on the model of kin -organization it was easy
to pass from the idea of keeping the peace between kin -organiza
tions to that of keeping every one in his place in the social order
of the city -state and of preventing friction with his fellow
citizens through maintaining the social institutions that deter
mined what this place was and the claims and duties which it
involved. Greek philosophers sought to idealize this social
order by ridding it of the remains of the older tribal or clan
organized society, thinking of men as put by law in the places
for which their " nature" destined them or their " worth "
* I have discussed this subject at large in two papers, “The End of Law
as Developed in Juristic Thought," 27 Harvard Law Review , 605 ; 30 Har
vard Law Review , 201.
 THE END OF LAW 31

suited them , and then held in that place by the legal order."
Roman lawyers gave the Greek theory practical effect by pic
turing social institutions which realized the nature of society
i.e. conformed to the ideal thereof - and legal institutions which
realized the nature of law - i.e, conformed to an ideal of main
taining the pictured social order. The Middle Ages took this
over for a society organized on the basis of relations and thought
of the end of law as maintenance of the social status quo by
enforcing reciprocal claims and duties involved in relations
established by tradition and maintained by authority.*
Securing of a maximum of individual self-assertion, the third
ideal of the end of law , begins to affect juristic thought in the
sixteenth century, takes form in the seventeenth century, and
is developed fully in the metaphysical and historical jurispru
dence of the nineteenth century. Its connection with the needs
or desires of an era of discovery and colonization and trade,
and later with the needs of an era of industrial development and
expansion, is obvious. Men were no longer solicitous to maintain
the social institutions by which effect was given to the system of
reciprocal claims and duties of the parties to relations. They
desired to be free of relations and duties that they might take
advantage of the new opportunities afforded to the active and
daring. The need was to satisfy the demands of individuals to
assert themselves freely in the new fields of activity which were
opening on every hand, and a new picture of the social order
and of the end of law was painted in terms of this need. Begin
ning as a political theory of securing men in a natural ( i.e. ideal)
equality, it became a juristic theory of securing them in their
natural rights ( i.e. ideal qualities whereby it was just that they
have certain things or do certain things ), and by a further sim
plification became a theory of securing them in an abstract free
dom of will. The first is aa scholastic version proceeding upon the
* Plato ,Republic , in , 397–398, Lows, VIII, 846d ; Aristotle, Nicomachean
Ethics, Bk v and Bk VII, 7, and 2-4, Politics, Bk 1, 1 , 9 and 13, Bk w,
I and 4-5, Bk iv , 12. Compare St Paul in Ephesians v. 22 ff. and vz 1-5.
· Cicero, De Officiis, 11, 12, De Republica, 1, 32; Institutes of Justinian, I,
1, pr. and § 3 ; Savigny, System des heutigen römischen Rechts, I, 407-410.
• Thomas Aquinas, Summa Theologiae , I, 2, qu. 90-97 ; 11, 2, qu . 57-80,
120 , 122 .
32 ETHICAL AND RELIGIOUS INTERPRETATIONS
idea of the individual as the moral unit and hence as the political
unit, replacing the idea of relation, and of the equal moral
claims and moral responsibilities of these units. The second
is the natural -law version, proceeding on the idea of man as a
rational entity and of the qualities of such an entity whereby
he may co - exist with his fellows in a state of nature - i.e. in a
condition in which those abstract qualities of a reasonable being
are given their full effect. The third is the metaphysical version
of the nineteenth century. It begins with the individual con
sciousness as the ultimate datum and conceives of the problem
of the legal order as one of reconciling conflicting free wills of
conscious individuals independently exerting their wills in the
different activities of life.3 Kant formulated a theory of right
in these terms as a reconciliation through universal rules where
by the will of each actor may co - exist with the wills of all others
in action. As has been said, Savigny turned this into a theory
of law and his successors interpreted jurisprudence and legal
history in the light thereof.
We can make no greater mistake than to suppose that the
speculations of the metaphysical iurists were without practical
* Franciscus de Victoria, Relectiones theologicae, I, 354. 375 ( 1557 ) ; Soto,
De justitia et jure, I, qu. 5, art. 2 ; III, qu. 3, art. 2 ( 1589 ) ; Suarez, De
legibus ac deo legislatore, 1, 8, S8 I, 2 ; 1, 9 , § 2 ; II, 19, § 9 ; ill, 9, § 4 ; III,
11; III, 35, § 8 ( 1619) .
Grotius, De jure belli et pacis, 1, 1, 3-6, 8-11 ; II, I, 1 ; II, I, II ; II, 10, 1;
II, 17, 2, § 1 ( 1625 ) ; Pufendorf, De jure naturae et gentium , i, chap. 7. $$
6-17;; IV, chap. 4 ( 1672 ) ; Rutherforth, Institutes of Natural Low , 1, 2, § 3
( 1754 ) .
* "I must in all cases recognize the free being outside of me as such, that
is, must limit my liberty by the possibility of his liberty. ” Fichte, Grund
lage des Naturrechts, I, 89 ( 1796 ) .
“ We may define right as a principle ... governing the exercise of liberty
in the relations of human life.” Ahrens, Cours du droit naturel ( 8th ed. ) ,
I, 107 ( 1892) .
" The fundamental axiom, which forms the basis of the whole system of
natural justice, I conceive to be that one human being has no right to con
trol forhis own benefit the volition of another . ” Philipps, Jurisprudence,
pp. 80-81 ( 1863 ).
“ Law ...hasits basis in this,that men are beings endowed with a disposi
tion to free exertion of will." Arndts' Juristische Encyklopädie, § 12 ( 1893 ).
“Hence that which we have to express in a precise way is the liberty of
each limited only by the like liberties of all. This we do by saying : Every
man is free to do that which he wills provided he infringes not the equal
liberty of any other man .” Spencer, Justice, § 27 ( 1891 ).
 METAPHYSICAL JURISPRUDENCE 33

effect upon the law. We should be put on our guard, if by

nothing else, by the wealth of literature from this standpoint in
the first three quarters of the last century. When a popular
exposition thereof, such as Ahrens'Cours de droit naturel, could
go through twenty-four editions in seven languages between
1837 and 1892, men must have been finding satisfaction in the
metaphysical theory of law in more lands than one. I concede
that the opinion that these speculations were wholly in the air
and were without result has been widespread and has been
advanced by writers of authority. Lord Bryce, for instance,
speaks of nineteenth -century metaphysical jurisprudence almost
with contempt, suggests that we should not expect much from
“ a metaphysician who thinks he understands law , " and says
that unless philosophical jurisprudence can help teach us the
law that is, it is of little value. But the law that is, in the sense
of the nineteenth -century analytical jurist, is an illusion. It
too is an ideal picture. Representing to himself the whole body
of legal precepts as something made at one stroke on a logical
plan to which it conforms in every detail, he conceives that he
can discover this plan by analysis and he sets up a plan which
explains as much as possible of the actual phenomena of the
administration of justice and criticizes the unexplained remain
der for logical inconsistency therewith. This is one way of
insuring stability and giving orderly direction to change and has
played an important role in legal science. But the confident
dogmatism with which the analytical jurists condemn all
painting of ideal pictures by others, assume that their picture
is “ the law , ” and conceive that they have demolished the claims
of all other portrait painters by asserting that the jurisprudence
of the latter is only “ deontological” —dealing not with what
is but with what ought to bemis but one more proof of the
unhappy results of the water -tight-compartment learning of the
nineteenth century. One need not say that the analytical jurists
are lawyers pure and simple. Hence their picture has the merit
of having in it nothing but law. But for that very reason it is
* Studies in History and Jurisprudence, 176–178, 191-192, 203-204,
American edition, 611-612, 631–634. See also his remarks before the
Association of American Law Schools in 1907, 31 Rep. Amer . Bar Assoc.
1061, 1063
34 ETHICAL AND RELIGIOUS INTERPRETATIONS
less a picture of the law than any of the others. For the thing
pictured is not something that patiently sits for a portrait. It
is continually shifting and while the analytical portrait is paint
ing it becomes an ideal picture of something past. The logical
plan of the analytical jurist may be used to give direction to the
minor shiftings. But the major shiftings that make the law what
it is in any time and place are given direction by ideas from
without the law, and it is with these that the metaphysical
jurists had to do. Metaphysical jurisprudence gave the historical
school its idea of right and hence fixed the lines of its ethical
interpretation of legal history. In other words the historical
critique to which legal rules and doctrines and institutions were
subjected in the last century comes directly from these meta
physicians who thought they understood law . It is not the
work of lawyers nor of historians. It came from Kant and
Hegel.
Through the historical school the doctrines of metaphysical
jurisprudence affected profoundly the actual course of decision
and of legal writing. They gave the design which the historian
verified out of legal history ; they drew the picture by which
judge and jurist shaped the materials of the past in making the
law of the present. For example, the arguments of the late
James C. Carter were no small factor in fashioning American
judicial decisions of the last quarter of the nineteenth century
and his posthumous book has in a measure kept his influence
alive. But his ideas were those of the metaphysical historical
jurisprudence which had been taught him in its first form by
1 “ But there is a guide which , when kept clearly and constantly in view,
sufficiently informs us what we should aim to do by legislation and what
should be left to other agencies. This is what I have so often insisted upon
as the sole function both of law and legislation, namely, to secure to each
individual the utmost liberty which he can enjoy consistently with the
preservation of the like liberty of all others. Liberty, the first of blessings,
the aspiration of every human soul, is the supreme object. Every abridg
ment of it demands an excuse and the only good excuse is the necessity of
preserving it. Whatever tends to preserve this is right, all else is wrong."
Low ; Its Origin, Growth and Function, 336–338 ( 1907 ). This shows the
influence of the second generation of the historical school and of the posi
tivists. In earlier writings he thought in terms of Savigny's theory of law
and of the ethical interpretation. Thus: “ That the judge cannot make the
law is accepted from the start. That there is already existing a rule by
which the case must be determined is not doubted. ... It is agreed that the
 THE WILL THEORY 35

a student of Savigny when Mr. Carter was himself a student."

Again , the influence of the Pandectists of the historical school
on the English analytical jurists has been remarked. One of the
main achievements of the Pandectists is the theory of the legal
transaction, of the declared will to which the law gives effect,
thereby realizing the freedom of the declarant by making his
will operative in the external world. This theory in its dogmatic
legal form was taken over by English writers on contracts,
who persistently sought to shape the English law of contracts
thereto and more than once succeeded in inducing the courts
to adopt their conception. Again , note the attempt in the nine
teenth century to restate the common law of public callings
in terms of the modern Roman -law theory of a legal giving
effect to the will of contracting parties, and the more successful
attempt to make over the Anglo -American law of torts by a
modern Roman - law generalization of no liability without fault.
This generalization was never adequate to explain all the phe
nomena of liability for tort in the common law. But the phe
nomena which were not consistent with it were pronounced
“ historical anomalies," and the metaphysical-analytical theory
was taken to be the idea which had been realizing through the
whole evolution of legal liability, reaching its most complete
development in the modern law. Accordingly writers did not
hesitate to predict the eventual disappearance of the doctrine
true rule must somehow be found . Judge and advocates, all together, en
gage in the search. Cases more or less nearly approaching the one in con
troversy are adduced. Analogies are referred to . The customs and habits of
men are appealed to. Principles already settled as fundamental are invoked
and run out to their consequences; and finally a rule is deduced which is
declared to be the one which the existing law requires to be applied to the
case. In this the things which are plain and palpable are, ( 1 ) that the whole
process consists in a search to find a rule ; ( 2) that the rule thus sought
for is the just rule — that is, the rule most in accordance with the sense of
justice of those engaged in the search ; ( 3) that it is tacitly assumed that
the sense of justice is the same in all those who are thus engaged -- that is
to say, that they have a common standard of justice from which they can
argue with, and endeavour to persuade, each other ; (4 ) that the field of
search is the habits, customs, business, and manners of the people, and those
previously declared rules which have sprung out of previous similar in
quiries into habits, customs, business, and manners. The Ideal and the
Actual in Law , 10-11 ( 1890 ).
* See Cushing, Introduction to the Study of Roman Low , 88 269-279 ( 1854 ).
These lectures were delivered in 1849, as stated in the advertisoment p. v.
36 ETHICAL AND RELIGIOUS INTERPRETATIONS
of Rylands v. Fletcher from the law and even to suggest that
the disappearance was going on under our eyes by means of
judicial smothering of the doctrine with exceptions. For a
time these views of learned writers had a marked effect upon
the course of decision in America . More recently there has been
a revival of the doctrine in America to enable the law to meet
new forms of menace to the general security. Also the English
courts have refused to limit the doctrine to adjacent freeholders
and have extended it to new situations of fact. Moreover
absolute liability of those who maintain dangerous animals and
for trespassing animals, supposed to be disappearing anomalies ,
have shown unexpected vitality. The English Court of Appeal
has upheld the former to the very verge in the case of an animal
wrongfully turned loose by an intermeddler 3 and has applied the
latter to collateral consequences of the trespass,+ distinguishing
a nineteenth -century decision which seemed to require knowl
edge of the propensity or condition that led to the conse
quences. Such things indicate, what we may verify on every
side of the law today, that the reign of the historico -metaphysical
thinking as to the end of law is past. But the widespread
criticism of these decisions, the general feeling that they infringe
principles of the common law, the extent to which the dogma
of no liability without fault was translated into actual legal
precepts in the last century, the decisions of American courts
that workmen's compensation acts were unconstitutional be
cause legislative imposition of liability without fault was not
$ " In every case of the kind which has been reported since Rylands v.
Fletcher, that is, during the last 25 years, there has been a manifest inclina
tion to discover something in the facts which took the case out of the
rule.... There are some authorities which are followed and developed in the
spirit, which become the starting point of new chapters of the law ; there
are others that are only followed in the letter, and become slowly but surely
choked and crippled by exceptions.” Pollock, Law of Fraud in British
India, 53-54 , ( 1894 ). Compare Salmond, Torts, 4th ed. 233, arguing that
the doctrine has no application ifno one has been negligent. Also, Thayer,
“ Liability Without Fault ,” 29 Harvard Law Review , 801.
'Charing Cross Electricity Supply Co. v. Hydraulic Power Co., ( 1914)
3 3K.B. 772, 779, 785 ; Musgrove v. Pandolis, ( 1919) 2 K.B. 43.
Baker v. Snell, ( 1908 ) 2 K.B. 352, 355.
* Theyer v. Purnell, ( 1918 ) 2 K.B. 333. Compare “The doctrine is a
stubborn archaism ," ck, Torts, i1th ed. 501 , note y .
* Cox v. Burbidge, 13 C.B., N.S., 430 ( 1863). See Pollock , Torts, 11th
ed. 500 .
DEFECTS OF THE ETHICAL INTERPRETATION 37
due process of law ,' and the pronouncement of no less an
authority than Judge Baldwin that the fellow -servant rule
expressed an idea of right and hence that Congress could not
compel a state court to disregard it in a cause within the pur
view of federal legislative power2_such things are ample proof
that the speculations of the metaphysical school were indeed
practical in the sense that they were effective agencies in
bringing about practical results.
With the second generation of the historical school the ethical
interpretation was superseded by or passed into the political
interpretation. Some of its defects passed over into the new
doctrine and may be considered more conveniently in that con
nection . At this point it is enough to suggest five reasons for
the failure of the ethical interpretation to satisfy the demands
made upon the science of law by the conditions of the end of
the nineteenth century and of the present. These reasons are :
( 1 ) the fallacy of continuity of the content of legal conceptions,
( 2 ) the over-rigid tying down of the process of trial and error
by projecting an analysis of the law of one time back into history
and then making it a measure of legal development for all time,
( 3 ) the tendency to fill the abstract content of the idea of right
according to the personal feelings, training or associations of
judge or jurist so that instead of fortifying him against these
things the ethical interpretation justified him in following them ,
( 4 ) the tendency of its adherents to make ingenious justifica
tions of doctrines rather than to criticize them, and ( 5 ) the
romantic tendency characteristic of the time when the historical
school arose.
One phase of the fallacy of continuity of content is to be seen
in the tendency to a history of names, assuming the content
to be constant because the name is constant. An example may
be seen in judicial application of the privileges-and -immunities
clause of the American federal constitution to corporations
doing business in states other than those under whose laws they
were organized. When the clause was first applied to such a
* Ives v. South Buffalo R. CO., 201 New York Reports, 271, 285-287,
293–295
3
( 1911 ) .
Hoxie v. New York R. Co., 82 Connecticut Reports, 352.
38 ETHICAL AND RELIGIOUS INTERPRETATIONS

situation corporation meant a state-granted monopoly. Today

in America it means a group of business adventurers doing
business by means of a company with limited individual lia
bility. But this changed content was lost sight of. The present
meaning was projected back into the old interpretation and thus
that interpretation was brought forward to meet a new situation.
The resulting struggle between legal authority and the needs
of commerce has produced a logically impossible condition in
the decisions upon the position of the corporations of one state
doing business in another. A process of meeting the needs of
today by trial and error is going on, but it is hampered by the
assumption of historical continuity.1
A like phenomenon may be seen in history -writing generally
in the last century. For example, Croce tells us that the neo
Ghibelline historians of modern Italy assumed that their con
cept of united Italy was the same as that of Macchiavelli, that
their democratized and nationalized nineteenth -century ideal of
an Italian people was the same as the sixteenth -century ideal
of a concentration of political authority in a single sovereign
prince ; that their ideal born of an age which had overthrown
the political régime which Macchiavelli admired was identical
with his conception of critical politics arising from comparison
of the political state of Italy with that of other countries of
Europe. And he points out that this nineteenth -century ideal
was not adapted to the writing of Italian history because from
the Lombard invasion to the nineteenth century the unity
which it assumed had not existed.? Speaking of interpretations
of Italian history in terms of church and state, he says : "Church
and state are not fixed entities which enter into relations and
now one subverts the other, now they accord and now they
turn indifferent shoulders to one another ; and the history of
these institutions cannot be written with the criterion of the
state nor with that of the church nor with that of neutrality
between state and church. According to the times the church
is the state or the state is the true church ." 8 The writing of
* See Henderson, The Position of Foreign Corporations in American
Constitutional Law 18 ) .
Storia della storiografia Italiana nel secolo decimonono, 1, 181–182.
* Id. 11, 188–189.
 CONTINUITY OF CONTENT 39

legal history is peculiarly liable to this sort of error because of

the dogmatic fiction that the legal rule applied for the first time
to a new case has existed from the beginning and the desire
of the lawyer to rest all rules and all legal conceptions upon an
incontestable basis in the unchangeable nature of things or in
eternal unchangeable reason or in immemorial usage.
Another phase of the same fallacy may be seen in the idea of
continuity of the content of legal systems, ignoring the succes
sive infusions from without and from outside of the law and
thinking that because there had been no definite tearing down of
the whole at one time and no definite replacing of the whole at
one stroke, but instead a long succession of crumblings, re
pairings, partial replacings, remodellings and additions, and
because the more thorough of these were often called " restora
tions," the present structure was to be identified with the one
which first stood upon the site. Thus in the ethical interpreta
tion of Roman and Continental legal history there is the assump
tion that there was at work " a rational and scientific element
expressing the constant needs of human nature and endowed
with such flexibility that it was able to produce the Twelve
Tables, the so -called middle jurisprudence, the perpetual edict
of Hadrian, the Theodosian code, and finally the codification of
Justinian ; could serve as a powerful aid to the canon law ; could
live along with the feudal law and end by rooting it out in
Western legislation ; could resist the French Revolution which
made war upon it when it had supported all the powers that the
Revolution fought against, and finally could remain‫ ܕ‬in the bosom
of that people under the name of the civil code.” 1 It was easy
to write a like story of the continuity of the common law from
Norman England to twentieth -century America, assuming the
unfolding of an idea endowed with like flexibility and persist
ence and portraying a series of struggles, with the church in the
twelfth century, with the movement for reception of the Roman
law in the sixteenth century, with Tudor and Stuart kings in the
sixteenth and seventeenth centuries, with post-Revolutionary
hostility to things English in America at the end of the eight
eenth and beginning of the nineteenth century and with popular
* Blanch, quoted by Croce, id. 11, 21.
40 ETHICAL AND RELIGIOUS INTERPRETATIONS
impatience of constitutional restraints in the era of popular
legislation in America of today. But in each case how much
of what we begin with do we end with ? The historical school
thought of each in terms of the growth of an organism, in terms
of a development by the force of something working from with
in, wholly apart from human activity. Blackstone's analogy of an
English castle made into a modern house, of something made
over by men for their needs, by constant adaptations of and
addings to the old materials, is quite as well taken. Indeed we
might well compare these systems of law to one of the old
churches in Rome. Perhaps the Servian wall is in its founda
tions and an old pre-Christian basilica was the first edifice. It
was made over into a church in the fourth century. Perhaps in
the ninth century a new church was built on the foundations
and with part of the walls. It was rebuilt in the twelfth century
and many stones and ornaments and some of the old mosaics
and paintings were incorporated. It was restored frequently in
later centuries and overhauled thoroughly in an eighteenth
century restoration in the baroque style of the time. The nine
teenth century has added new chapels and monuments and has
sought sometimes to bring to light some fragments of antiquity.
How much of what men use today is the Servian wall or the
Roman basilica, or the church in which the fifth -century council
sat, or the church of the twelfth century or even the church of
the Renaissance ? Such a picture is much nearer the truth than
the picture of organic evolution and continuous identity with
which the historical school made us familiar.
Behind the fallacy of continuity of content is the metaphysical
doctrine of the progressive unfolding of an idea. Put in action
in legal thinking it makes an ideal of the law of one time and
place a rigid measure for all law. And as ends or wants or
desires of that time and place gave form to that ideal, the re
quirements of those ends become fixed as limits within which
alone the requirements of the different ends of another time and
place may be met. We shall see this phenomenon more marked
in connection with the political interpretation. But I may cite
as an example the will-theory of obligation in the modern
Roman law and the attempts of text-writers and of courts
 JUDICIAL IDEAS OF RIGHT 41

following them to impose that theory upon our common law.

Savigny was the leading exponent of that theory." From him it
passed into English and American treatises on the law of con
tracts 2? and has been taught as orthodox Anglo-American law
by many who nevertheless professed to regard our law as a
product of the spirit of our people.
What are abstract ideas in the hands of philosophers get a
concrete content when they come into the hands of lawyers.
This content is commonly derived from the modes of thought,
rules of art, and legal precepts in which the lawyer has been
trained. This happened in the classical Roman law in which
natural law got its content by idealization and generalization of
the traditional modes of thought and rules of art of the juris
consults and of the legal precepts which they had learned from
their teachers. It happened conspicuously in the beginnings of
American constitutional law when the natural rights of man
got a legal content from the immemorial common-law rights
of Englishmen as expounded by Coke and Blackstone. But
the ethical interpretation in terms of an idea of right tempted
jurist and judge to fill out the content with something more than
law or than law moulded with reference to the social order of
the time and place. It seemed to justify him in finding in legal
precepts a declaration or a realizing of what seemed to him per
sonally to be right. Carried into action in American con
stitutional law, the result of this way of thinking has been, as
Mr Justice Holmes puts it, “ that in some courts new principles
have been discovered outside the body of ... [constitutions) ,
which may be generalized into acceptance of the economic doc
trines which prevailed about fifty years ago and the wholesale
prohibition of what aa tribunal of lawyers does not think about
right.” 1 If any one thinks this an overdrawn statement, I
invite his attention to some examples that are not controversial.
In one case, decided in Georgia during the Civil War, the
1
Das Obligationenrecht, 11, § 52 ( 1853).
3
Anson, Contracts, pt. 11, chaps. 2, 6 ; Pollock, Contracts, chap. I, modi
fied in later editions. See Williston , Contracts, I, § 21.
' I have discussed this phenomenon in The Spirit of the Common Law ,
Lecture IV, “ The Rights of Englishmen and the Rights of Man."
• “ The Path of the Law," 10 Harvard Law Rev. 456, 467 ; Collected
Papers, 184.
42 ETHICAL AND RELIGIOUS INTERPRETATIONS
Supreme Court of the state, in passing on the validity of a
Confederate conscription act, assumed as a matter of course that
the doctrine of states' rights expressed the idea of right of
which the Confederate constitution was declaratory and so laid
down that legislation in derogation thereof was invalid, without
reference to any particular constitutional limitations, as con
trary to an absolute, unwritten, fundamental law.1 In another
case, decided in 1871 , a state statute making desertion for two
years a ground of divorce ran counter to the religious views of
one of the judges of the highest court of the state, and he laid
down dogmatically that the statute should not be enforced on
the ground of conflict with fundamental law .? An interpretation
of legal history and of law that leads to such results is by no
means always a stabilizing force.
One of the merits of the historical school was that by studying
the origin and development of legal precepts and doctrines it
was able to expose the specious reasons invented after the event
by eighteenth -century writers from the philosophical stand
point to explain and justify historical survivals which had ceased
to serve useful ends in the administration of justice. But the
arbitrariness of the schemes to which it was assumed all legal
history and hence all future legal development must conform ,
led the historical jurists to give up criticism of legal precepts
with reference to their effects in action or their adequacy to the
ends of the legal order and to turn their learning to ingenious
justification . Thus Savigny gives a highly artificial justification
of the anomalous rule that in a legacy upon impossible or illegal
condition precedent the condition shall be treated pro non
scripto ; a rule growing out of favor testamenti in republican
Rome, when a will was a means of perpetuating a household,
and quite out of place when applied to a modern will. Thus
also Dean Ames, conceiving that the historical distinction
between law and equity expressed an idea and hence was funda
mental and necessary, objected to direct relief by a common
law proceeding or in a common - law court, although in juris
dictions where legislation allowed complete relief in one pro
Jenkins, J., in Jeffers v . Fair, 33 Georgia Reports, 347 , 365-366, 367 ( 1862).
Turney , J., in Lanier v. Lanier, 5 Heiskelt ( Tennessee Reports) , 462, .

472 ( 1871 ) .
• System des heutigen römischen Rechts, in , $ 124.
 THE ROMANTIC TENDENCY 43

ceeding, and argued for a round -about proceeding in equity, in

the case of a creditor of a partnership who took a bond under
seal made by an insolvent partner as the bond of all and so lost
his claim against the solvent partners."
Others have remarked the connection between the modes of
thought of the founders of the historical school in jurisprudence
and the general Romantic movement of the time. The so -called
historical epos of Romantic history -writing has its counterpart
in the writing of legal history. The most notable of these
historico -legal epics was the epos of Anglo -American public
law, so popular a generation ago. It usually began with a
.

sort of prologue picturing the self- governing local group of the

Germanic peoples, the mark, the gemot, the Swiss Landes
gemeinde, and the New -England town meeting. The main
action began with an interpretation of Magna Carta in terms
of an eighteenth - century bill of rights and culminated in an
interpretation of the contests between courts and crown in
seventeenth -century England in terms of American constitu
tional law . Such things are entirely comparable to the epics of
Italian history, inspired by the idea of a united and liberated
Italy which Croce has dissected so acutely. The epos of
Anglo -American public law was inspired no less clearly by the
desire of American lawyers to find an unchallengeable founda
tion for the power of American courts with respect to uncon
stitutional legislation.
Yet there were elements of truth in the ethical interpretation
and this phase of historical jurisprudence achieved something
for the science of law . There was a sound instinct behind it in
that it sought to give a picture of the end of law and such pic
tures are the guide by which jurists find a way to make the law
adequate to satisfying the wants of society through adapting its
precepts and doctrines and institutions to new and changed
demands. Also there was truth in its picture of continuity in
that there is continuity in traditional modes of professional
thought and in traditional rules of art and these modes of
thought and rules of art are a powerful restraining force when
• Cases on Equity Jurisdiction, 0, 280, note (1904).
* This was usually drawn from Freeman, Growth of the English Consti
tution, chap. I ( 1872 ). See also Adams, The Germanic Origin of New
England Towns, I, 245 ( 1882).
44 ETHICAL AND RELIGIOUS INTERPRETATIONS
the materials of a legal system are reshaping and applying to
new uses to meet new wants or new forms of old wants. The
religious interpretation rendered an important service in turning
our attention to the real nature and origin of many phenomena
in Anglo -American common law and in American legislation
which must be attributed in largest part to Puritan influence.
Above all, however, the ethical interpretation was of service in
>

combating the persistent tendency of nineteenth -century

lawyers in England and in America, under the influence of
analytical jurisprudence and of the dogma of separation of
powers, to insist that lawyer and judge and jurist had nothing
to do with ethics ; that they were concerned only with a critique
of law drawn from the law itself by analysis of its content. In
so doing it helped to counteract the tendency to what Sir
William Erle called " strong decisions” -decisions, as he
described them, “ opposed to common sense and common con
venience , ” but taken to be required by the exigencies of legal
logic as applied to given legal premises.? In such decisions there
was often pride in demonstrating that law was one thing and
morals another and that a precept might be legally valid and
yet morally unfortunate. The doctrine that an ethical idea
was unfolding in legal development and that legal precepts
were manifestations or realizations of an idea of right was in
its time a useful antidote to the notion that the words " be it
enacted " or " it is considered and adjudged " were sufficient
to justify anything that might follow.
* Pollock, First Book of Jurisprudence, pt. 1, chap. 2 ( 1896 ) ; Gray, Na
ture and Sources of the Law , SS 642-657 ( 1909 ).
: " I have known judges , bred in the world of legal studies, who delighted
in nothing so much as in a strong decision. Now a strong decision is a
decision opposed to common sense and common convenience. ... A great
part of the law made by judges consists of strong decisions, and as one
strong decision is a precedent for another a little stronger, the law at last,
on some matters , becomes such a nuisance that equity intervenes or an Act
of Parliament must be passed to sweep the whole away.” Sir William
Erle, Chief Justice of the Common Pleas , 1859-1866, ex rel. Senior, Con
versations with Distinguished Persons ( 1880 edition ), 314.
• “ The doctrine of tacking ( incumbrances ) has received judicial reproba
tion many times confirmed. But notwithstanding, in some of the cases
where the doctrine has been applied ... is it not possible perhaps to detect
a note rather of triumph than of surrender - the triumph of art, not the
surrender of justice to the binding force of unfortunate precedent?” Wil
loughby, The Distinctions and Anomalies Arising out of the Equitable
Doctrme of the Legal Estate, 71–72 ( 1912) .

1
 III

THE POLITICAL INTERPRETATION

OUR modern science of law begins in the thirteenth century as

a branch or an application of theology, an atternpt to support
the authority of the academically taught Roman law by philo
sophical theology. It was emancipated from theology in the
sixteenth century by the Protestant jurist-theologians, notably
Hemmingsen, whom Grotius followed in this respect. In the
seventeenth and eighteenth centuries it was united with politics
and international law, a common philosophical foundation
serving for each after which it was usual to expound succes
sively the general principles of politics , the general principles
of jurisprudence, and a system of the law of nations. In the
nineteenth century international law became a subject of itself,
jurisprudence and politics grew apart, and jurisprudence as a
separate science developed three distinct methods. So far was
this specialization carried that each method came to be thought
of as self-sufficient and claimed to be a whole, if not the whole,
science of law . As has been seen, the ethical interpretation kept
up a certain connection with ethics, handed down from the
exclusively philosophical legal science of the eighteenth century.
But with the progress of the historical school this disappeared
and the Hegelian contrasting of law and morals definitely
superseded the tendency to identify them. On the other hand
the rise of the political interpretation made a new connection
between law and politics which has stood fast. For the present
tendency is away from the extreme specialization and rigid
setting off of narrowly defined sciences which was the fashion
in the last century. Today we seek to unify all the social
sciences and to treat jurisprudence merely as one of the group,
holding that none is self -sufficient. Next to its functional
attitude, this rejection of the conception of a wholly independent
science of law, drawn exclusively from the law itself and ignor
ing every other department of knowledge as irrelevant to its
45
 ION
CAL RE TAT
THE PO LITI ERP
46 INT

problems and of no value for its ends, is the most significant fea
ture of recent juristic thought. The narrowly limited legal sci
ence, indifferent to and even intolerant of light from without,
characteristic of the nineteenth century, reached its high-water
mark in the English and American analytical jurisprudence of
the immediate followers of Austin. The political interpretation
was the first of a succession of reactions therefrom which have
given jurisprudence a new aspect in the twentieth century.
Philosophically the ethical interpretation represents the in
fluence of Kant upon historical jurisprudence, resulting in an
interpretation of legal history and hence of law in terms of
Kant's theory of right. The political interpretation represents
the influence of Hegel. It is an interpretation in terms of
Hegel's proposition that right is " freedom as an idea .” The
word which we translate sometimes as " law " and sometimes as
" right,” which I have translated as " right " in the foregoing
formula, does not mean either exactly nor may we understand
it by combining the two. Hegel was formulating a conception
of what I have been calling the end of law. He means that
which the legal order is conceived as existing to bring about;
what we mean by “ justice ” when we say that the law exists
as a means to justice. Thus, he holds, law realizes the idea of
freedom, the idea that “ existence generalized is existence of the
free will.” 1 In the hands of jurists this interpretation regards
the idea in its political aspect or, we may say, takes a political
idea to be the idea which is realizing in legal history and is un
folding in legal rules and doctrines and institutions. Looked
at legally and politically the idea is freedom or liberty. Ideal
perfection in human relations is liberty. Jurisprudence and
politics have to do with different but closely allied phases of
liberty as realized in civil relations.2
3 “ This is right: that existence generalized is existence of the free will.
Accordingly generalized it is freedom as an idea." Hegel, Grundlinien der
Philosophie des Rechts, 61 ( 1820) .
? " The proximate object of jurisprudence, the object which it seeks as
a separate science, is liberty. But liberty being the perfect relation between
human beings, becomes a means towards the realization of their perfection
as human beings. Hence jurisprudence, in realizing its special or proximate
object, becomes a means towards the realization of the ultimate object
which it has in common with ethics. ” Lorimer, Institutes of Law , 2nd ed.
 LAW AND REASON 47

If on one side this more concrete conception of the end of

law as freedom is due to Hegel, on another side it is related to
rejection of the eighteenth -century faith in reason. It is a
feature of the reaction from natural law and distrust of the
creative juristic spirit such as we see it, for example , in Lord
Mansfield . Thus Puchta , after laying down that the funda
mental conception of right and law is freedom , adds that " rea
son is not the principle of freedom " but is an "element in human
nature antagonistic to freedom . " 1 For, he explains , reason
imposes itself on the will and dictates this course of action or
that . Hence we may not say, as did the seventeenth and eight
eenth centuries , that right and law are reason . In that sense
they are a check on freedom and hence antagonistic to it. What
he means is that if the principle of law is reason , we shall get
a great deal of law dictated by reason as what it demands with
respect to human relations and hence much curtailment of
freedom ; whereas our eyes should be on freedom , not on cur
tailments of it, and we should have no restrictions simply realiz
ing reason and no restrictions at all beyond those which realize
freedom by bringing about that the existence of each is existence
of the free will and giving effect to freedom as an idea . To do
these things we must grasp the idea of freedom as it unfolds in
history instead of trying to arrive at a system of natural law
on the basis of reason . This mode of thought was carried to its
logical conclusion by the later generation of the historical school
who became positivists. If, they argued , law is the science of
liberty , every rule of law is an evil, since all regulation of liberty
354-355 ( 1880 ). Compare also the quotations in note 3, ante p. 32 , and
from Carter's Law: Its Origin , Growth and Function , in note 1, ante p. 34.
It will be seen that these put more concretely the idea of the ethical inter
pretation.
I “ Freedom is the foundation of right, which is the essential principle of
all law. Hence we do not reach right as the principle of law by setting out
from the notion of reason . ... For if the bad, as being evil, is the irrational,
then freedom , which includes the possibility of evil, cannot be deduced
from reason and vice versa . It would be much more in accordance with
reason that the good should be realized of necessity. On the other hand it
is contrary to mere reason that it comes through freedom , which does not
exclude the possibility of evil. Thus reason is not the principle of freedom
but is rather an element in human nature antagonistic to freedom ; and it
has shown itself to be such from the beginning." Puchta , Cursus der In
stitutionen , § 2 ( 1841 ).
 ION
AL RE TAT
ITIC INT
ERP
48 THE POL

is a limitation of it and right or the end of law is a maximum of

liberty. Thus it came to be said that law was a necessary evil ;
evil because it restricted liberty and liberty was right, necessary
because without a certain minimum of restriction liberty was
not possible in the conflict and overlapping of human desires.1
Without being carried consciously so far, the political inter
pretation was from the beginning a negative conception of the
function of jurist and legislator ; it demanded a holding down of
the legal order to the necessary minimum—to the least which
was required to realize freedom in men's relations with each
other. The burden of proof was upon any one who proposed
a rule to show that it was clearly and imperatively required to
promote freedom. As it was put, coercion was to be reduced
to what was " absolutely necessary for the harmonious co
2
existence of the individual with the whole ."»
From the historical standpoint the political interpretation is
related to three movements in nineteenth -century writing of
history. In the beginning it was connected with the idea of
universal history. Hegel outlined aa universal history of right in
his philosophy of right and law.: Puchta sketched a universal
legal history in the introduction to his institutional treatise on
Roman law, prefacing a history of Roman law which is a classic
of idealistic interpretation . He showed us the idea of freedom
unfolding or realizing in a great chain of human experience
Babylon, Egypt, Greece, Rome, Western Europe - with each
"Law in the most general sense of the term is the science of liberty ( 5 ].”
" Every rule of law in itself is an evil, for it can only have for its object
the regulation of the exercise of rights, and to regulate the exercise of a
right is inevitably to limit it. On the other hand every rule of law which
sanctions a right, which preserves it from infringement, which protects it
from a peril, is good because in this way it responds to its legitimate end.
Thus, if law is an evil, it is a necessary evil.” Beudant, Le Droit indi
viduel et l'état, 5, 148 ( 1891 ).
Note that Beudant reaches this result by deduction from the metaphysical
theory, i.e. from the idea of liberty, or the free will of the conscious in
dividual, as Tom Paine reached it from the natural - law theory, i.e. from
the idea of the qualities of a reasonable creature in a state of nature, or as
Spencer reached it by observation of a " manifest tendency ” throughout
civilization to " extend the liberties of the subject.” Paine, Rights of Man ,
46 , 48, 50 ff. ( 1791 ) ; Spencer, First Principles, § 2.
*3 Lioy, Philosophy of Right, transl. by Hastie, I, 121.
Grundlinien der Philosophie des Rechts, SS 346–347 ( 1820 ) .
* Cursus der Institutionen, § 9 ( 1841 ).
 UNIVERSAL LEGAL HISTORY 49

handing on its experience to the next in which the idea pro

gressively rids itself more and more of the purely accidental
and unfolds more and more completely. Gans even wrote a
universal history of the law of inheritance from this standpoint.1
It was indeed a remarkable feat. For it requires some logical
acrobatics to interpret collateral inheritance, transition from
the favor testamenti of republican Rome to the opposite doctrine
in the modern law, Roman restrictions on testamentary dis
position, such as the Lex Falcidia , and their further develop
ment in modern law, and Justinian's 118th novel, with all the
changes which modern legislation has rung upon its scheme of
cognation, as realizations of an idea of freedom . Perhaps I
ought to say that this sort of legal historical romance, written to
show us the idea of freedom realizing itself in legal history, is
quite another thing from the universal legal history of Kohler
and the neo -Hegelians of today. Kohler would study the rela
tion of law to civilization in order to enable us to make the law
of today express the civilization of today and to make it further
rather than hinder civilization . In other words there is an
active creative element in Kohler's universal legal history which
is characteristic of recent juristic thought.
A philological tendency, due to the effect of comparative
philology of the Indo-European languages, which gave an
impetus to comparative method in all directions, was manifest
also in the historical school of jurists. The attempt to reconstruct
the Ursprache suggested reconstruction of the Aryan Urrecht
and the place which Sanskrit held in philology suggested study
of the monuments of Hindu law and the possibility of finding
legal ideas in their simplest form in this body of primitive legal
institutions just as the roots of words were identified through
the study of Sanskrit. Thus a comparative Indo -European law
and politics was one of the forms taken by the political inter
pretation. But the tendency was to restrict study of legal history
to arbitrarily chosen periods which were assumed to be the
* Das Erbrecht in weltgeschichtlicher Entwickelung ( 1825 ) . Only a part
.

of the projected work was written.

* “ Rechtsphilosophie und Universalrechtsgeschichte, ” in Holtzendorff,
Enzyklopädie der Rechtswissenschaft, 6th ed. 1904, 7th ed. 1913. Not in
prior editions.
50 THE POLITICAL INTERPRETATION

significant periods in legal development. For the most part

legal history meant history of Roman law down to Justinian,
history of Germanic law to the reception of Roman law, and
history of English law from the twelfth to the fifteenth century.
It is noteworthy that the historical school had an instinctive
dislike of the period from the end of the sixteenth to the end of
the eighteenth century in which the law was remade under the
influence of a creative philosophical theory and became the
body of legal materials upon which the nineteenth -century
systematists were at work. In the United States there came to
be a cult of the Year Books and in England a tendency was
manifest in judicial decision to appeal from the eighteenth
century to the " old law of England ” as shown in the medieval
books. Thus in the law as to gifts of chattels, in which the idea
of effectuating the declared intention of the donor had made
headway steadily against the Germanic idea of seisin during
the eighteenth century ? and in spite of a decision of Lord Ten
terden ' had been asserted in a long line of judicial pronounce
ments in the nineteenth century,' the Court of Appeal in 1890
conceived the question one to be determined entirely by ref
erence to Bracton and the Year Books. In this case the result
was happy. But the method of determining whether to fasten
the notion of seisin upon a modern legal transaction or to carry
forward a movement of the law in the direction of giving effect
more fully and freely to declared intention — the method of
deciding such a question by resort to the medieval books,
ignoring the growing period of the seventeenth and eighteenth
centuries, was unhappy. In England the reign of this method
* See some comments on this in Leonhard, “ Methods Followed in Ger
many by the Historical School of Law,” 7 Columbia Law Rev. 573, 577
( 1907 ) ; Kantorowicz, Zur Lehre vom richtigen Recht, 8 ( 1909 ).
3
Lord Hardwicke in Ward v . Turner, 2 Ves. Sr. 431, 442 ( 1752) .
Irons v. Smallpiece, 2 B. & Ald. 551 ( 1819 ) .
• Parke, B., in Ward v. Audland, 16 M. & W. 870 ( 1847 ) and in Ould
)

v. Harrison, 10 Exch. 572, 575 ( 1854) ; Crompton, J. in Winter v. Winter,

4 Law Times, N.S. 639, 640 ( 1861 ) ; Pollock, B., in In re Harcourt, 31
Weekly Rep. 578, 580 ( 1883) ; Cave, J., in In re Ridgeway, 15 Q.B.D. 447,
449 (1885). See Serjt. Manning's note a, 2 M. & G. 691 (1841).
Cochrane v. Moore, 25 Q.B.D. 57.
6 " It is revolting to have no better reason for a rule of law than that so
it was laid down in the time of Henry IV. It is still more revolting if the
 THE MYTH OF THE MIDDLE AGES 51
was relatively brief. In the United States it reigned longer and
more autocratically and is only just disappearing from law
teaching. For in America the philosophical and creative ideas
of the eighteenth century persisted much longer than in
England because the law -of-nature theory was the theory of
our bills of rights and so was classical in our constitutional law
and because the reception of the common law of England as the
law of a pioneer society called for examination of every item
with reference to its applicability to American institutions and
conditions and hence for a certain creative attitude. The work
of selection and reception was complete by the time of the Civil
War, and the jurists of the last third of the century were in
reaction from the ideas of the formative period of American
common law, much as Savigny was in reaction from the juristic
ideas of the end of the eighteenth century.
Legal history also might be vouched for the assertion that in
nineteenth -century history -writing the "myth of the Middle
Ages " was a new form of the state of nature. The Middle
Ages were idealized as a golden age in which modern legal and
political institutions existed in their simple and natural forms.
The writer of general history in this period disliked the time
from the Reformation to the end of the eighteenth century
because it was the time of development of centralized absolute
governments and did not fit well with his conceptions of political
and civil liberty which he considered he found manifested
simply and imperfectly but unmistakably in the Middle Ages.
So it was in law. On the Continent the historical jurist, if a
Romanist, sought the simple original forms of our complex
modern doctrines in the classical Roman law, or, if a Germanist,
sought them in the Germanic law of the earlier Middle Ages.
If an Englishman or an American he sought them in the Year
Books. In this way each gave form to his distrust of the creative
era in which rules were not suffered to develop spontaneously
but were made over to accord with reason or rejected because
grounds upon which it was laid down have vanished long since and the rule
simply persists from blind imitation of the past." Holmes, “ The Path of
the Law," 10 Harvard Law Rev. 457, 459, Collected Papers, 187.
1
* Compare Croce, Storia della storiografia Italiana nel secolo decimonono,
I, 118-119.
52 THE POLITICAL INTERPRETATION
not in accord therewith. As is not uncommon in such cases,
the period of these phenomena, which did not accord with
the dogma of the historian-jurist, was simply ignored as not
significant.
Selection of periods for intensive historical study and disre
gard of other periods made the interpretation for which the his
torical school stood an artificial thing quite out of touch with the
actual legal materials to which jurists sought to apply it. For,
however much Coke may have misunderstood and misrepre
sented medieval English law, it was Coke's version thereof, not
the actual fourteenth- and fifteenth - century English law, that
became the basis of the common law of America. No amount of
historical criticism of Coke can alter that fact. No jurisdiction
will change the foundations of its law because aa historian shows
that Coke had misunderstood the Year Books. So also it was
Bartolus' version of Justinian that became the law of Conti
nental Europe, not the law of Cicero or of the Antonines. It
was wholly unhistorical to insist that agency should run forever
along the clumsy contractual lines of the classical Roman law,
and the contempt of the historical school for the usus modernus
simply brought about an unhappy gulf between the law of
academic teachers and the law of the courts which was to the
disadvantage of each. Something of this sort threatened for a
time in America when the historical school was at the height of
its influence and teachers were disposed to find solutions of
modern legal problems in oracular fragments in the Year Books.
Chiefly, however, the political interpretation was a part of
the institutional movement in history -writing, of the rise of
institutional history, of the idea that political institutions had
a determining influence upon all things which was strong in the
time of political ferment in the middle of the nineteenth century.
For the moment the battles of the time were waging over
institutions. On the Continent men sought to set up parlia
mentary institutions on the English model. In England the
Reform Bill had opened the way for attacks upon all manner of
institutions. The imperishable idea behind the institution, as
distinguished from the accidents of which it was ridding itself
in its historical development, became something of immediate

1
1
 INSTITUTIONAL HISTORY 53

practical importance. Croce says that scientific objectivity is

more common in the histories of institutions such as histories
of law . To a layman, who must take his law from the very
historical jurists whom he is criticizing, this may well seem true.
It is by no means so clear when we look into the relation between
institutional legal history and the wants and desires of the time
in which it was written or of the group of men in which the
historian found himself. We should expect that much might
depend on the particular field in which the heated controversies
of the time and place were waging-whether in religion or in
politics or in social and economic beliefs. Histories of law may
be affected easily in a time of transition and emergence of new
class-consciousnesses, if the resulting struggle takes an economic
turn and the nature and history of legal institutions come to be
important for either side. Examples may be seen in the histories
of the doctrine of judicial power over unconstitutional legisla
tion and of the Supreme Court of the United States written
during the agitation for recall of judicial decisions, advocated
by Roosevelt, in the political campaign of 1912.” An analogous
phenomenon may be seen also in the sympathy of jurists for
Roman or for Germanic institutions and the stress they lay
upon one or the other in their writing of institutional or of
doctrinal legal history. One cannot doubt that somewhat ex
aggerated Germanic theories of a generation ago were connected
with the rise of national consciousness in Germany nor that
equally exaggerated attempts of some recent writers to find a
Roman pedigree for everything in modern law are due to a
newly excited race consciousness of Latin jurists. The writers
of legal history may not flatter themselves that the nature of
their subject in any wise exempts them from such innate diffi
culties in the telling of history.
Maine's famous generalization of legal history as a progress
from status to contract is the most important phase of the
political interpretation both in its theoretic working out and in
its practical consequences in the hands of courts and lawyers.
* Id ., II, 35 .
3
Myers, History of the Supreme Court of the United States, is an ex
treme case .
• Ancient Law , chap. 5 ( 1861 ).
54 THE POLITICAL INTERPRETATION

It is connected immediately with the institutional type of

history and the movement in history-writing that gave rise
thereto. Indeed one of Maine's chief writings is entitled “ Early
History of Institutions" and he studied legal institutions habit
ually rather than legal doctrines. His generalization of the
progress from status to contract is the political interpretation
put concretely in terms of legal institutions. It was universally
accepted in Anglo-American juristic thought and governed
down to the end of the century. It is still a force with which to
reckon in American constitutional law .
At bottom Maine's theory is Hegelian. The idea which is
realizing is liberty - free individual self-assertion. The way in
which it is realizing is a progress from status to contract. It is
a progress away from legal institutions and legal rules and legal
doctrines in which one's legally recognized claims and legally
enforced duties flow from a condition in which he is put or in
which he finds himself without reference to his will and of
which he cannot divest himself by any manifestation of his will.
It is a progress toward legal institutions and rules and doctrines
in which legally recognized claims flow from personality, from
being a conscious free-willing human individual, and legally
en forceable duties with respect to others are consequences of
willed action, either in assuming the duties by some legally
recognized form of undertaking or by willed culpable action or
by willed action culpably carried on. ' The gradual breakdown of
status in the classical Roman law, the substitution of intent for
form as a basis of liability, the conception of an intent implied
in certain transactions and representing their nature or ideal
1 “ The movement of the progressive societies has been uniform in one
respect. Through all its course it has been distinguished by the gradual
dissolutionof family dependency and the growth ofindividual obligation in
its place. The individual is steadily substituted for the family as the unit of
which civil laws take account. The advance has been accomplished at varying
rates of celerity.... But, whatever its pace, the change has not been subject
to reaction or recoil. ... Nor is it difficult to see what is the tie between man
and man which replaces by degrees those forms of reciprocity in rights and
duties which have their origin in the family. It is contract. Starting, as
from one terminus of history, in which all the relations of persons are
summed up in the relations of family, we seem to have moved steadily
towards a phase of social order in which all these relations arise from the
agreement of individuals.” Ancient Law , last paragraph but one of chap. 5.
 FROM STATUS TO CONTRACT 55

content, the consequent development of a generalized law of

contract in terms of pact or agreement clothed with certain
forms as guarantees of a real intention so that the law might en
force them with assurance, the development of the modern law
of delicts, following the French civil code, along the lines of
Aquilian culpa — all these things make a strong case for this
interpretation. But the proof from Roman law is in large part
a proof from Roman law as interpreted by the first generation
of the historical school in terms of Kant's formula of justice as
an idea of right or as interpreted by the next generation in
terms of an idea of freedom . In particular the idea of contract
is Savigny's will-theory projected back into Roman law as an
instrument for organizing the law of the nineteenth century.
Moreover English legal history was not examined in making
out the case, nor did the adherents of the political interpretation
ever test it by an independent study of the common law. The
theory came to common-law lawyers full blown and was
assumed for our law without inquiry.
If we examine the evidence, we must ask at the outset whether
Roman law shows anything more than a movement away from
status ; a progressive breaking down of legal institutions and
rules and doctrines involved in an organization of society in
households and a replacing of them by legal institutions and
rules and doctrines called for by a politically organized society
in which human beings were becoming the social and political
and legal units. The remainder of the generalization is not
drawn from the facts of Roman legal history but represents the
juristic conception of the will as the central conception in juris
prudence, a metaphysical version of the idea that the end of law
is to bring about a maximum of individual self-assertion . The
conception of the legal transaction-negotium, Rechtsgeschäft,
acte juridique- is of the first importance for the system of
nineteenth -century law. But this generalization was unknown
to the Romans and it is at least disputable whether it represents
Roman ideas of the basis of liability for undertakings. It is at
least arguable that the Romans thought, not of giving effect to
the will of the promisor, but of enforcing the duty of good faith
involved in or arising from what he had done ; that they pro
 ON
56 THE POLITICAL INTERPRETATI

ceeded on the Stoic conception of duty, not on the nineteenth

century conception of will. What we have to interpret is a
continual widening of the sphere of enforceable agreement.
The historical school explained this phenomenon in terms of
the problem of reconciling liability for undertakings and lia
bility for civil wrongs with the widest possible abstract freedom.
Hence they saw therein a continually widening and more com
plete giving effect to the will of the promisor. The Romans
were not thinking in terms of any such problem. What they
were thinking of was how to get rid of the old formal categories
of liability and to enforce the reasonable expectations arising
from the intercourse of men in a commercial society, in which
security of transactions had become a social interest of the first
magnitude, without disturbing the stability of the legal order.
It had become a presupposition of the civilization of the time
and place that those with whom one dealt in the general inter
course of society would act in good faith - would make good the
expectations created by their conduct and would carry out
their undertakings according to the expectations which the
moral sentiment of the community attached thereto. The
Romans used Stoic ideas of duty for this purpose as the nine
teenth - century jurists used the metaphysical idea of will for the
different purposes of their time. They were not striving to
realize individual freedom as an idea. They were not giving
effect to the will. Rather they were seeking to realize good faith
and to give effect to moral duty. But we may leave this ques
tion to the philosophical Romanist. At any rate, Maine's gen
eralization, drawn exclusively from Roman legal history, will
not fit the phenomena of the common law.
If we must find a fundamental idea in the common law, it
is relation, not will. If the Romanist sees all problems in terms
* Erdmann, History of Philosophy, Hough's transl. 1, 190 ; Zeller, Stoics,
Epicureans and Sceptics, Reichel's transl. 265, 287. Compare the conception
of to kaðnkov as determined by reason with naturalis obligatio: Dig. 50,
17, 84, § 1 ; 12, 6, 38, § 2 ; 12, 6, 13, pr.; 12, 6, 64 ; 12, 6, 40, pr.; 4, 5, 2,
§ 32 ; 46, I , 8, § 3.
See the identification of law with morals in Dig. I, I, 1, $ i and I , I, 11;
Inst. 2, 7, 2 ; Cod. 8, 56, 1 and 10, and 4, 44, 2. Also texts as to good faith :
Gaius, 2, § 43 and 4, 88 61–62; Dig . 22, 1, 25, § 1 ; 41, 1, 40 ; 41, 1, 48, pr.
and § 1 ; 41 , 3, 4, § 20 ; 50, 17, 84, § 1 ; Cod. 3, 32, 22.
 FROM STATUS TO CONTRACT 57
of the will of an actor and of the logical implications of what he
has willed and done, the common-law lawyer sees almost all
problems— all those, indeed, in which he was not led to adopt
the Romanist's point of view in the last century - in terms of
a relation and of the incidents in the way of reciprocal rights
and duties involved in or required to give effect to that relation.
Magna Carta, the foundation of our public law, is not an ex
pression of the idea of individual freedom but aa formulation of
the rights and duties incident to the relation of the king and his
tenants in chief.' Anglo -American public law, as a juristic and
judicial development by treating new problems on analogies
derived from Magna Carta, may be explained in terms of the
reciprocal claims and duties of ruler and ruled, of government
and governed, in a political relation, much more truly than in
terms of contract or of giving effect to individual freedom by
political institutions. But our private law is the field where the
idea of relation is most conspicuous as a staple juristic concep
tion. On every side we think not of transactions but of relations.
We say law of landlord and tenant, not of the contract of letting.
We say master and servant, not locatio operarum. We say law
of husband and wife or of parent and child or of guardian and
ward, or for the whole, law of domestic relations, not family
law. We say principal and agent, not contract of mandate ; prin
cipal and surety, not contract of suretyship ; vendor and pur
chaser, not contract of sale of land. We think and speak of the
partnership relation and of the agency, liabilities, claims and
duties which it involves which give effect to it as a relation of
good faith — not of a contract of societas. We think of the claims
and duties involved in a fiduciary relation and of the legal inci
dents that give effect to trusteeship or executorship as a relation
of good faith, not of the implications of the declaration of will
involved in accepting or declaring a trust or qualifying as
executor. We do not ask what are the logical deductions from
the will of the parties involved in a sale of land. We ask what
incidents attach in equity when the vendor -purchaser relation
arises. We do not think of giving effect to the will of the parties
to a contract of hypothecation. We consider what incidents
See Adams, The Origin of the English Constitution, chap. 5 ( 1912) .
 TION
58 THE POLITICAL INTERPRETA

are involved in the relation of mortgagor and mortgagee and

the reciprocal claims and duties that give effect thereto.
We must remember that the analogy which was ever before
the lawyers and judges of the formative period of our law, the
typical social and legal institution of the time, was the relation
of lord and man, still represented in our law by the relation of
landlord and tenant. Continual resort to this analogy, con
sciously or subconsciously, has made the idea of relation the
central idea in our traditional mode of juristic thought. In
public law the seventeenth and eighteenth centuries sought to
substitute the Romanist idea of contract borrowed from Conti
nental publicists. In private law the eighteenth century, with
its contempt for the Middle Ages, and the nineteenth century,
with its desire to see all things in terms of the maximum of
individual self-assertion, sought continually to restate the theory
of our institutions and doctrines in terms of contract or of
will. Thus, for a time we tried vainly to state the law of public
service or of public utilities in terms of a contract of transporta
tion, so that aa generation ago some American courts were calling
a telephone company a common carrier of messages and an
electric -light and power company a common carrier of electric
current and were thinking of the conduct of their enterprises
by these companies and of the giving of free passes by railroad
corporations in terms of Mr Barkis giving a free ride to a small
boy or of the contracts which he might make with his patrons .?
The signal failure of the contract theory of this subject and the
development of a law of public utilities on a relational theory
are significant proofs of the vitality of the common law.
No relational analogy was at hand in the formative period
of Roman law. The Roman household was organized on the
basis of authority, not on the basis of a relation involving re
ciprocal rights and duties. When the foundations of the modern
* Blackstone, Commentaries, 1, 234-236. In American legal literature this
goes back to Locke, Two Treatises ofCivil Government, Bk. II, ch.7 ( 1690 ),
which proceeds on ideas of natural law derived from Roman jurists through
sixteenth -century discussions that go back to medieval controversies between
emperor or king and church. In American juristic thought this current joins
in the eighteenth century with Continental natural-law_political philosophy.9
• See Wyman , “ Business Policies Inconsistent with Public Employment,”
20 Harvard Law Rev. 511 ( 1907 ) .
 FROM STATUS TO CONTRACT 59

Roman law were laid jurists believed that they could do no more
than interpret and apply the authoritative Roman texts. Hence
the analogies used were Roman analogies drawn from the
Corpus Juris. Accordingly while common-law ways of thinking
were determined by the analogies of the medieval, feudal,
relationally organized society in which they arose, the ways of
thinking in the modern Roman law were determined by the
analogies of the city -state political society of heads of house
holds in the stage of the strict law. These ways of thinking were
liberalized and idealized in the classical period of Roman law ,
from the first to the third century — and again during the reign
of the law -of -nature school in the seventeenth and eighteenth
centuries. But the claims and duties of free men, Roman
citizens and heads of households, owning adjoining homesteads,
encountering each other in the streets and entering into under
takings toward each other in the various activities of life, shaped
Roman juristic thought and led Roman jurists and hence the
Romanists of today to think and speak of letting and sale and
mandate and contract of partnership as naturally as the recipro
cal rights and duties of men in relations, claiming this or that
against each other as an incident of the relation, shaped English
legal thought and led the common -law jurist to think and speak
of landlord and tenant, vendor and purchaser, principal and
agent and the partnership relation . It is noteworthy that in
our law of sales of chattels, shaped by the law merchant and
along the lines of the Continental Romanized commercial law
through the influence of nineteenth -century text-writers,' we
speak of the contract of sale and of what it implies. In the law
of sales of land, governed by the common law and developed
by equity on common-law lines, we think and speak of the
relation of vendor and purchaser. The will theory of legal
transaction as an idea of contract, upon which the political
interpretation builds, is not a universal idea of all law. It is
relative to Roman law. It is a generalization from doctrines
expressing the problem which chiefly concerned Roman lawyers
* The text -book of widest influence was Benjamin on Sales. Benjamin
was by original training a civilian and spent the formative portion of his
legal life inthe practice of law in Louisiana at a time when the law of that
state was essentially French .
60 THE POLITICAL INTERPRETATION

in the beginnings of Roman juristic activity — the problem of

adjusting the conflicting claims of heads of households exercis
ing authority within their households and jealous of authority
without-interpreted in terms of the juristic problem of the
nineteenth century .
Moreover the generalization of progress from status to con
tract, understood as a progress from limitations of freedom or
liabilities existing or imposed independently of will toward a
complete freedom of contract and liability only for willed under
takings or culpable conduct, is refuted by the whole course of
development of the law, whether by legislation or by judicial
decision, in the last generation, unless indeed we have been
progressing backward. We must not omit to notice that Maine
was more cautious than his followers. He was willing to limit
status to its Roman sense of personal condition and to exclude
relations resulting from legal transactions. Also he qualified
his formula by saying that the movement of progressive socie
ties had been " hitherto ” a movement from status to contract .
Yet he considered this observed orbit of progress as indicating
sufficiently a general law of legal development, and his fol
lowers conceiving that history, or as it came to be called, evolu
tion, was progress and was subject to discoverable laws, elimi
nated the qualification. Likewise, carrying the second half of his
formula to its logical conclusion, they eliminated the qualifica
tion which he attached to the term status. In America, at least,
it was taken for gospel that law was moving and must move in
the direction of abstract individual self-determination by free
contract and liability only for undertakings and for fault. One
may speak with less assurance as to British thought on this
subject since the courts had no occasion to apply the generaliza
S “ The word status may be usefully employed to construct a formula
expressing the law of progress thus indicated which, whatever its value,
seems to me to be sufficiently indicated. All the forms of status taken notice
of in the law of persons were derived from, and to some extent are still
coloured by, the powers and privileges anciently residing in the family. If,
then, we employ status, agreeably with the usage of the best writers, to
signify these personal conditions only, and avoid applying the term to such
conditions as are the immediate or remote result of agreement, we may say
that the movement of the progressive societies has hitherto been a move
ment from status to contract.” Ancient Law , last paragraph of chap. 5.
 FREEDOM OF CONTRACT 61

tion in interpreting a bill of rights and applying it to social

legislation. But Miller's denunciation of the Irish land legisla
tion of the eighties as reversing " the natural order of growth”
and his prophecy that its repeal was inevitable are at least
suggestive. British legislation since 1865 and American legis
lation since 1890 give Diogenes' answer to such propositions.
When we reflect, however, that this interpretation of Maine's
formula was the accepted legal science of the last generation,
we may understand why American state courts from 1890 to
1910 were so confidently dogmatic in holding modern social
legislation to be unconstitutional.
Since Maine's generalization was formulated and was inter
preted by his followers, limitation of free contract and imposi
tion of duties and liabilities as incidents of relations instead of
exclusively as the consequences of manifested will, have gone
forward steadily both in judicial decision and in legislation .
If we compare the English decisions as to covenants not to
compete or not to enter the service of a competitor rendered
between 1870 and 1890 with those rendered since 1910, the
change in the direction of restriction of the power to bind one
self by such a covenant is striking. The whole doctrine as to
contracts not to exercise the calling for which one has trained
himself has taken a new turn within a decade . Sir George
Jessel's proposition, that public policy demands more than
anything else that men be allowed to contract freely and that
the contracts which they make freely be enforced, is no longer
an expression of the judicial attitude toward such covenants .
Again the growth of a law of public utilities in which doctrines
flow not from the undertakings or professings of the entity
engaging in public service but from the requirements of the
service, which are taken to fix the incidental duties attaching
to the calling, tells the same story.* In America, also, the
* Lectures on the Philosophy of Law , 71-73 ( 1884 ).
• Attwood v. Lamont, ( 1920 ) 3 K.B. 571, 593.
•Printing and Numerical Registering Co. v. Sampson , 19 Eq. 462, 465
( 1875 ) . Compare Bauer v. O'Donnell 229 United States Reports, 1 ( 1912 ).
' In England this has been the work of legislation. In the United States
there has been a judicial development. In each case the development has
ber upon common -law lir Wyman , The Special Law Governing
Public Service Corporations, I, SS 1-14, 20, 27, 32-42 ( 1911 ) .
62 THE POLITICAL INTERPRETATION

decisions as to warranties in policies of insurance, restricting

freedom of contract in the relation of insurer and insured either
avowedly or by strained interpretation, and the decisions treat
ing insurance as a public calling have gone along with legislative
regulation of the contracts which insurers may make and point
in a direction quite opposite to what had been regarded as the
course of legal development.1
Social legislation has gone even further. Statutes restricting
the power of a husband to mortgage household goods or assign
wages without the consent of his wife have tied down the ius
disponendi. Workmen's compensation legislation has imposed
liability without regard to fault. Truck acts have forbidden
payment of employees by orders on company stores and have
required payment of wages in cash . It is true that a workmen's
compensation act was held unconstitutional by the New York
Court of Appeals in 1911 3 and that a minority of the Supreme
Court of the United States considered such legislation un
constitutional in 1920.4 It is true also that the truck acts were
held unreasonable and unconstitutional by a line of state
decisions between 1886 and 1910. But the opposition of the
courts to such legislation grew out of their acceptance of the
doctrine that the evolution of law was a progress from status to
contract and it broke down in the second decade of the present
century. This opposition was not due to class bias or economic
associations or social relations of the judges nor to sinister
* See my paper, “ The End of Law as Developed in Legal Rules and
Doctrines," 27 Harvard Law Rev. 195, 225 ; New York Life Ins. Co. v .
Hardison, 199 Massachusetts Reports, 190 ( 1908) ; Fidelity Mutual Ins. Co.
v. Miazza, 93 Mississippi Reports, 18 ( 1908 ) ; Attorney General v. Fireman's
Ins. Co., 74 New Jersey Equity Reports, 372 ( 1909 ) ; Boston Ice Co. v. Bos
ton and M. R. CO., 77 New Hampshire Reports, 6 ( 1914) ; John Hancock
Mutual Life Ins. Co. v. Warren , 181 United States Reports, 73 ( 1901 ) ;
Orient Ins. Co. v. Daggs, 172 United States Reports, 557 (1899) ; Port
Blakely M. Co. v. Springfield Ins. Co., 59 Washington Reports, 501 ( 1910) .
In the case last cited a dissenting judge observed that the decision, under
the guise of “interpretation,” wipes out the law of warranty as it formerly
existed in connection with insurance.
* Illinois, Rev. Stat. 1909 , chap. 95, $ 24 ; Massachusetts, Acts of 1908,
chap. 605. Compare New Zealand Family Protection Act, 1908.
• Ives v. South Buffalo R. CO ., 201 New York Reports, 271 ( 1911 ) .
Arizona Copper Co. v . Hammer, 250 United States Reports, 400 , 433,
440 ( 1920 ).
See my paper, “ Liberty of Contract,” 18 Yole Law Journ. 454.
 FREEDOM OF CONTRACT 63
influences brought to bear upon them, as was assumed so
freely in the American presidential campaign of 1912, when
such decisions were in issue. The judges were imbued with a
genuine faith in the tenets of the historical school, especially
the political interpretation and the doctrine of progress from
status to contract. Hence it seemed to them that the constitu
tional requirement of due process of law was violated by legis
lative attempts to restore status and restrict the contractual
powers of free men by enacting that men of full age and sound
mind in particular callings should not be able to make agree
ments which other men might make freely. The federal census
of 1920 shows that the United States has passed definitely from
a preponderantly rural and agricultural to a preponderantly
urban and industrial civilization . The social wants of twentieth
century America have driven the courts in one way or another
to uphold such legislation and have convinced us reluctantly
that the law may grow and for a time must grow in a different
direction from what we had considered its fixed and inevitable
orbit.1
Indeed the political interpretation was put to a thorough test
by the conscientious logical application of it as an interpretation
of due process of law made by American state courts in three
decades of struggle with state legislatures. For this application
brought out an inconsistency between the doctrine of progress
from status to contract, as the last generation understood it,
and the principles of equity which had developed in our law ,
especially in the seventeenth and eighteenth centuries. The state
courts held for two decades that legislative imposition of con
tractual incapacities in the relation of employer and employee
was arbitrary and hence unconstitutional. But there were
existing incapacities with which they did not think of interfer
ing. The surviving common-law incapacities could be idealized
as " natural incapacities.” Ușury laws were not so easy to
explain . But courts said that there had been such laws from
the beginnings of American legislation, and some, ignorant of
1
* See Noble State Bank v. Haskell, 219 United States Reports, 104
( 1911 ) ; Chicago R. Co. v. McGuire, 319 United States Reports, 549, 566
575 ( 1911 ) .
 64 THE POLITICAL INTERPRETATION

English law -making, that they were immemorial and universal.1

In other words, they were familiar historically and hence
reasonable. There remained equitable restrictions on free con
tract, the doctrine as to penalties, the refusal to allow the holder
of a penal bond to recover more than the actual damages, the
doctrine of redemption of mortgaged property after the con
dition had become absolute, the rule against clogging the
equity of redemption, the rules as to sailors ' contracts and sales
by reversioners. An eighteenth-century chancellor had explained
these by saying that necessitous persons were not free. But the
courts shrank from so recognizing the facts of industrial em
ployment in the face of the abstract freedom which they had
set up as an ideal. The best they could say was that the equitable
incapacities also were historical. This amounted to holding
that the legislature was unable to create new contractual in
capacities; that the lines had been drawn forever in the seven
teenth and eighteenth centuries and that no new type of dis.
ability could be recognized. Nor did it matter that the under
lying principle of these new statutory disabilities was the same
as that underlying the disabilities imposed by equity. Anything
that savoured of a status of labourer was contrary to the right
line of legal progress and was unreasonable. The most the
legislature could do was to abolish such things as for example in
Married Women's Acts. The fallacy of the courts in these cases
will not have escaped you . A statute forbidding contracts to
accept wages in the form of orders on a company store did not
classify the labourer with the infant, the lunatic and the felon.8
It defined an incident of a relation freely entered into and so
came within Maine's qualification. But in the political inter
pretation freedom meant an abstract freedom -- the abstract
idea of insuring a maximum of individual self-assertion as the
S “ The right to regulate the rate of interest existed at the time the con
stitution was adopted, and cannot therefore be considered as either an
abridgment or restraint upon the rights of the citizen guaranteed by the
constitution. The power to pass usury laws exists by immemorial usage;
9)

but such is not the case withsuch laws as we are now considering." State
v. Goodwill, 33 West Virginia Reports, 179 ( 1889).
· Soe State v. Loomis, 115 Missouri Reports, 307 ( 1890 ) .
• The court made this statement in State v . Haun, 61 Kansas Reports,
146, 161 ( 1900 ).
 DEFECTS OF THE INTERPRETATION 65
ideal by which all things legal were to be judged. Accordingly
the courts saw rightly enough that if the doctrine was to be
a guide, they must carry it out to its conclusion. By doing so
rigorously they disproved the political interpretation as an
interpretation of Anglo -American legal history.
Looking back at the reign of the political interpretation, we
may perceive two respects in which it failed to satisfy at the
end of the last and at the beginning of the present century,
after general acceptance for a generation. In the first place it
was a negative juristic theory, carrying to the limit the idea of
the historical school that nothing was to be created — that
legislation was futile. In the hands of common-law lawyers
this became a conviction that an idealized form of the common
law was the legal order of nature and led to an excessive develop
ment of the doctrine of strictly construing statutes in derogation
of the common law and to strained interpretations in the direc
tion of holding new legislation to be merely declaratory of
traditional rules. Thus American state courts laid down dog
matically that general principles of constitutional law forbade
legislative adoption of the theory of the forum laesae civitatis
as the basis of jurisdiction over crimes. They kept back the
full legal emancipation of married women for fifty years by
holding the statutes rigidly to the precisely detailed changes
which they made in express terms rigidly construed .? They
kept American legal procedure in a backward state for half a
century by reading into codes of procedure an idealized system
of actions on a historico -analytical basis. They even began to
undo the work of the uniform commercial laws by treating them
in each state as declaratory of the local course of judicial de
cision prior to the statutes and so as perpetuating the condition
which they were meant to relieve . Secondly, it rejected all
* State v. Carter, 41 New Jersey Law Reports, 499, 501-503 ( 1859 ).
* I have discussed this phenomenon in "Common Law and Legislation ,”.
21 Harvard Law Rev. 383. Sec Carter, Law: Its Origin, Growth and
Function , 308–309.
A leading case was Supervisors v. Decker, 30 Wisconsin Reports, 624,
626-627, 629-639 ( 1872) , now happily overruled by Bruheim v. Stratton ,
145 Wisconsin Reports, 271 ( 1911 ).
' For recent examples, see Chafee, “Progress of the Law : Bills and
Notes," 33 Harvard Law Rev. 225, passim ( 1919) .
66 THE POLITICAL INTERPRETATION

criticism of legal institutions and rules and doctrines other than

a historico -analytical criticism of the law in terms of itself. This
attitude has its counterpart in history-writing at large during
the same period. “ To conceive of history as evolution and
progress," says Croce, “ implies accepting it as necessary in all
its parts and therefore denying validity to judgments upon it. ” 1
The rational is real and the real is rational. Hence it is futile
to criticize legal institutions or to attempt to improve them by
legislation . The progressive unfolding of the idea must be our
reliance. Juristic or legislative attempts to hasten or to direct the
process were vain. Historical fatalism became juristic pessimism.
Those who sought to improve the law were branded as harmless
Utopians or as belated representatives of the eighteenth century.
What this meant in action is well illustrated in the attitude
of the last century toward the doctrine of consideration . Lord
Mansfield came very near ridding us of it and establishing that
a promise made as a business transaction in the course of
business was legally enforceable as such without more. But
before his liberal conception of contract could become fixed in
the law the reaction from constructive reshaping of legal
materials had set in. When the nineteenth -century legal his
torians studied the subject it was not in the spirit of showing
that the needs or wants that gave rise to the doctrine had been
satisfied long ago, and that it no longer served a useful purpose,
but in order to find an idea of consideration by which the whole
future development of the law of contracts must be governed.
They did not criticize it. They fortified it and enabled it to
survive so that, although slowly crumbling and loaded with
exceptions and analytical anomalies, it remains a serious barrier
in the way of security of transactions. It is disquieting to think
that when letters of credit became an important instrument in
export and in manufacturing during the late war this doctrine
imposed serious difficulties in the way of legal recognition of
the general course of practice of the business world + and that

* Storia della storiografia Italiana nel secolo decimonono, 1 , 26.

2
Burdick , " A Revival of Benthamite Codification , " 10 Columbia Low
Rev. 118, 123, 125-126 ( 1910) .
* Pillans v. Van Mierop, 3 Burr. 1663 (1765 ).
* Hershey, “ Letters of Credit," 32 Harvard Low Rev. 1 ( 1918) .
 JURISTIC PESSIMISM 67
the theory by which American courts have sought to get around
some of these difficulties is not available in England, as authori
tatively determined by the House of Lords. Such indifference
to the practical functioning of the legal system cannot endure.
More than anything else the abandonment of the jurist's
function, the juristic pessimism, involved in the idea of the
futility of legislation and the futility of criticism, brought about
the general revolt from the historical school at the end of the
last century and the beginning of the present century. “ In its
application to the social sciences," said Saleilles in 1902, " his
tory ought to become a creative force. The historical school
stopped half way.” 2 In that it showed itself impotent to furnish
a creative method, he added, it ceased to be a school of jurists.
Likewise it was an attempt to interpret Australian social legis
lation that led Jethro Brown in 1912 to turn from the orthodox
English historical-analytical jurisprudence toward a revival of
philosophical jurisprudence.
No doubt eighteenth -century jurists had gone too far in
assuming that legal systems which were the result of a long
historical development or a long process of working with or
upon old materials might be wholly reconstructed at pleasure
in accord with abstract principles of right. But what may be
done by an enlightened judicial policy of shaping the law to an
ideal which corresponds to social demands is shown by the
absorptions of equity into the law under Lord Mansfield, the
development of the common counts on the principle of pre
venting unjust enrichment of one at the expense of another,
the taking over of the law merchant, the judicial development of
mercantile institutions and usages, and the making over of
seventeenth -century English law into a common law of
America by means of the doctrine that the common law of Eng
land was in force only so far as it was applicable to American
conditions and American institutions. Also there are examples
of successful taking over of a whole body of law at one stroke,
especially where the common interests of a people with diverse
and inadequate local laws have come to call for legal unity. The
1
* Dunlop Pneumatic Tyre Co. v. Selfridge, ( 1915) A.C. 847.
' " L'École historique et droit naturel," Řevue trimestrielle de droit civil,
1, 90, 94 ( 1902 ).
Underlying Principles of Modern Legislation, 64-67 ( 1912 ).
68 THE POLITICAL INTERPRETATION

reception of Roman law in Western Europe, the reception of

nineteenth -century Continental law in Japan, the Anglo - Indian
codes, and the almost verbatim reception of the French civil
code in many different lands show that there is more to be said
for the faith of the law -of-nature school than we have been
wont to perceive. In the reaction from the law-of-nature theory
the historical school went too far in the other direction and
sought to exclude development and improvement of the law
from the field of conscious human effort.
On the other hand we must put many important achievements
to the credit of the second phase of the historical school. It
laid the foundations of a sound comparative legal history in
place of the brilliant superficiality of the eighteenth -century
universal legal history in terms of rational conjecture. It gave
us a sounder and more critical history of Roman law , of Ger
manic law and of English law. For the philological and legal
archaeological study of these bodies of law, with no ethical idea
to prejudice it and conducted with a high feeling for the intrinsic
value of the original sources and a conviction that whatever
was discovered historically must be right because it represented
the unfolding of the idea, so that we did not need to trouble
ourselves about what was found but only to find what was there
to be found — this attitude led to the rejection of much legal
pseudo -history which had come down from the eighteenth
century. In its unification of jurisprudence and politics, if it
was not the actual forerunner of the unification of the social
sciences which is going on today, at least it kept alive one con
nection of jurisprudence when nearly all had been dissolved.
Finally through its attempt to generalize the phenomena of
primitive law and of developed systems by a theory of custom it
led to the idea of the legal order as part of a wider social control
from which it cannot be dissociated. For the historical school
thought of the legal order not as the whole nor as a wholly
self -sufficient part of social control but as one phase of it,
merging back into an undifferentiated religion, morals and law.
This way of thinking did much to help break down the con
ception of law as something existing of itself and for itself and
to be measured by itself ; it prepared the way for the functional
attitude of the legal science of today.
 IV

ETHNOLOGICAL AND BIOLOGICAL

INTERPRETATIONS

A CONDITION of philosophical stagnation marks the second half

of the nineteenth century. The sharp contrasts of ideals that
went along with and immediately followed the French Revolu
tion challenged philosophers and impelled them to seek to
reconcile radicalism and tradition, rationalism and faith, in
telligence and will or to organize the phenomena of society and
of history in terms of one or the other. When these contrasts
ceased for the time being to challenge attention because of the
general setting up of a régime of constitutional political equi
librium and economic stability, interest shifted on the one hand
to the physical and biological sciences, which were related
directly to industry and economic prosperity, and on the other
hand to an empirical political and social science. For fifty years
philosophy as such was under aa cloud. Such movements always
affect jurisprudence somewhat later than related social sciences
because lawyers respond cautiously to new tendencies through
solicitude for the social interest in the general security and fear
of impairing the stability of the legal order. But in the last
third of the nineteenth century the abandonment of philosophy
had gone so far that the philosophical jurists either had been
swallowed up in the dominant historical school or had dis
appeared. Outside of Italy the nineteenth -century philosophical
school substantially came to an end. The last noteworthy book
from this standpoint appeared in 1882. In the same year the
successor of Ahrens at Brussels did homage to historical juris
prudence for his fief of natural law.? In 1887, 1888 and 1889,
when three French jurists successively ventured modest philo
sophical introductions to law they felt bound to write apologetic
1
* Lasson , Lehrbuch der Rechtsphilosophie ; Boistel, Cours de philosophie
du3 droit ( 1899) is a new edition of a work written in 1870.
Prins, La philosophie du droit et l'école historique.
69
70 ETHNOLOGICAL AND
prefaces. In 1898 a pupil and successor of Lorimer began to
teach analytical jurisprudence at Edinburgh.2 Patronizing dis
paragement of philosophy became the rule. As Kohler puts it,
" to speak of the philosophy of law passed for obsolete and old
fashioned .”" 3 The writing of legal history began more and more
to be a mere collection of facts, all equally significant and equally
insignificant. In jurisprudence and in politics a descriptive
analytical method prevailed. The details of legal and political
institutions were described in accordance with an analysis drawn
from the institutions themselves, and they were described so
faithfully as they stood in detail on a given day that they had
ceased so to stand before the book was off the press. The
abdication of the jurist's function by the historical school and
the doctrine of the futility of criticism had borne fruit. To
quote Kohler once more : “ The exposition of a passage in the
praetor's edict was held more important than investigation of 1

the laws of legal development. ... The rule of law became an

implacable tyrant. The philosophical jurist was gagged .” 4
Yet jurists did not wholly give over philosophical activity.
The need of reconciling stability and change was always with
them, even when the exclusive cult of stability was at its height.
Moreover toward the end of the century dissatisfaction with the
dominant historical school was constantly increasing and the
pressure of new interests was continually more manifest both
in judicial decision and in social legislation. Thus the transition
from the metaphysical jurisprudence of the nineteenth century
to the social philosophical jurisprudence of today required some
sort of philosophical bridge. The first attempts at such a bridge
were made by means of ethnology and biology.
Three circumstances contributed successively to turn juristic
thinking to race as a factor in legal development and to suggest
1 “ The study of these principles, in which France was deeply interested
a hundred years ago, seems abandoned or at least much neglected today.
But it is worthy of attention from several points of view ." Courcelles
Seneuil, Préparation à l'étude du droit, preface (1887) . Compare Beaussire,
Les principes du droit, preface ( 1888 ) ; Vareilles-Sommières, Les principes
fondamentaux du droit, preface ( 1889 ).
* Miller, Jurisprudence, Its Place in the New Curriculum , 10 ( 1898 ).
• Lehrbuch der Rechtsphilosophie, 6 ( 1909 ).
• Ibid .
 BIOLOGICAL INTERPRETATIONS 71

the organic analogy : the rise of positivism and consequent

development of aa science of society, the rise of biological science
and consequent influence of biology upon all contemporary think
ing, and the rise of modern psychology and consequent study
of group and of race psychology. The founder of positivism
was also the founder of a science treating of social phenomena
to which unhappily he gave the barbarous name of sociology.
The name has affected many so unfavourably that they have
not been inclined to give consideration to the thing named.
Likewise the subject matter had been pre -empted in part in
small parcels by a group of special independent social sciences,
after the manner of the nineteenth century, which, also after
the manner of that century, refused to think of themselves as
social and affected to proceed on a metaphysical foundation of
abstract individual freedom. Likewise the words " sociology"
and "social" troubled many because they suggested " socialism , ”
a much -embracing word of sinister connotations then as now,
although the chief English exponent of sociology in the last
century was an orthodox individualist of an extreme type.
Partly for these reasons the science of society made no great
progress for some time. But what held it back chiefly was the
turn given it at first by the mental bent of its founder.
Comte was a mathematician and drew his analogies largely
from mathematical physics and from astronomy. Indeed, as
has been pointed out more than once, the book that governed
men's imaginations when his ideas were formative was the
Mécanique céleste of Laplace. Thus the first sociology was a
mechanical social science ; an attempt to find by observation
and to verify mechanical laws, analogous to those governing the
movements of heavenly bodies, by which social phenomena
were no less inexorably governed. Such a mode of thought
accorded well with the juristic ideas of the historical school,
especially in its second phase, so that when the metaphysical
ideas of that school became out of fashion , some of its adherents,
who perceived that a philosophical foundation was needed for
their historico -analytical ideas, turned eagerly to positivism .
They were much at home therein, for, as many critics have
See Small, The Meaning of Social Science, 74.
72 ETHNOLOGICAL AND

observed, there was a persistent Hegelian element in the posi

tivism of the last quarter of the nineteenth century. Thus for
a season we got attempts at positivist or sociological legal history
and mechanical sociological jurisprudence of what is at bottom
a Hegelian type. For not only was the mechanical sociology
as fatalistic as the metaphysical history but the positivist jurists
were either pupils of or got their legal materials from the
historical jurists and so took them as seen through Hegelian
spectacles.
Mechanical sociology achieved nothing in jurisprudence be
yond serving as a forerunner.² Hence it has been easy for the
undiscriminating to criticize all the phases of sociological juris
prudence which have followed, assuming that they are or that
they must be identical therewith.3 One will fail to understand
much in the legal science of today if he makes such an assump
tion. But it is enough for our present purpose that a party of
jurists had been set to thinking about something else than recon
ciling of conflicting individual wills and to talking of some other
idea than abstract individual freedom . This, at any rate, was a
distinct gain.
A second generation of sociologists was influenced by the rise
of biological science and in particular by Darwin. It is not too
much to say that Darwin furnished the phrases and provided
the analogies and suggested the lines of thought for that genera
tion as decisively as Laplace had done for its predecessors. In
Spencer, who began to write on social science before Darwin,
we may trace the change as one of terminology, in a replacing
of mechanical by biological analogies. But Spencer's sociology
remained mechanical in all but terminology to the end. More
over the idea of evolution made real headway slowly in biology
itself as against a tendency to force the phenomena of life into
scholastic or metaphysically organized classifications and to
formulate laws of development on the basis of meagre data and
* E.g. Croce, Storia della storiografia Italiana, 11, 172-173.
* See Berolzheimer, System der Rechts- und Wirthschaftsphilosophie,
II,3 384 ( 1905).
See Charmont, La renaissance du droit naturel, chap. 5 ( 1910 ) ; Kor
kunov, General Theory of Law , transl. by Hastings, 265–266 (written in
1887 ) ; Berolzheimer, System der Rechts- und Wirthschaftsphilosophie, II,
§ 44 ( 1905 ).
 BIOLOGICAL INTERPRETATIONS 73

in closed philosophical systems. The analogy of physical laws

and of the movements of the planets gave way to an analogy
of less known biological laws. Organic evolution, the analogy
of the organic and the “ super-organic ," and applications of the
struggle for existence and the survival of the fittest to social
phenomena are the differentiae of the biological sociology and
of sociological jurisprudence in its biological stage. In its net
results the biological sociology did no more than carry forward
the work of preparation begun by the mechanical sociology.
Hence the one is open to the stock criticisms directed against the
other and criticism of either or of both may serve easily for
criticism of the sociological jurisprudence of today, if we
assume that the same name must always cover the same content,
that all phases of sociological jurisprudence are convertible and
that it is impossible for a science to develop to the extent of
radical improvement in its methods within a generation ."
Later the rise of psychology exerted a profound influence
upon sociology and upon sociological jurisprudence, which is
still at work.. Gierke turned the attention of jurists toward
groups as something more than aggregates of individuals and
on their legal side, when recognized legally, something more
than legal fictions. Thus jurisprudence and politics were
brought into relation with group psychology and folk psy
chology. Tarde discovered a factor of the first moment in the
shaping of legal materials and in the eking out of a body of
legal rules and doctrines by materials drawn from without, and
formulated the laws of imitation upon a philosophical as well as
3
a psychological foundation .: Ward preached the efficacy of
* See Tanon, L'Évolution de droit et la conscience sociale, 3rd ed. 180-189
( 1911 ) ; Tourtoulon, Principes philosophiques de l'histoire du droit, 80-173
( 1908 ); Berolzheimer, System der Rechts- und Wirthschaftsphilosophie,
II, $$ 47, 51 ( 1905 ).
? “What man is he owes to the union of man with man . The possibility
of creating associations, which not only enhance the power of those who
live contemporaneously but, above all, through their permanence, surviving
the personality of the individual, bind the pastof the race to those to come,
gives us the possibility of the development of history.” Gierke, Deutsche
Genossenschaftsrecht, 1, 1 ( 1868 ). See also Das Wesen der menschlichen
Verbände , 33-34
" Tarde, Lows of Imitation , transl. by Parsons, 2-3, 11-13, 14-15, 310-320
(written 1890 ). Tarde, Les transformations du droit ( 1894, 6th ed. 1909 ).
74 ETHNOLOGICAL AND

effort and urged the decisive role of the psychic factors of civili
zation." Thus a wide breach was made in the juristic dogma of
the historical school. In the meantime a revival of philosophy
of law began, resulting in the social-philosophical jurisprudence
of today. With the beginning of the present century came uni
fication of
3
the methods of sociology,” unification of the social
sciences, the functional attitude - consideration of the work
ings of law more than of its abstract content - the attitude of
looking on law as a social institution which may be improved by
intelligent human effort, and belief that it is the duty of jurists
to discover the most effective means of directing and furthering
such effort. These things have come to be the accepted creed of
sociological jurists and in increasing measure are becoming the
creed of all jurists. What we shall be looking at is a stage in
this development. Experiments in psychological forms of
ethnological interpretation are a link betweenthe nineteenth
century search for a single all -explaining formula of legal de
velopment and the recognition of a plurality of factors which
marks the juristic thought of today.
It is convenient to distinguish two main types of these
transitional interpretations — the ethnological and the biological.
The former interprets law and legal history in terms of race
spirit or race psychology or race institutions, which in the
systems of positivists are regarded usually as resulting from
physical environment. The latter interprets them in terms of
the Darwinian natural selection—in terms of struggle for
existence and survival of the fittest. The ethnological type
came first and served as a connecting link between Hegel and
the positivists, between the nineteenth -century philosophical or
metaphysical jurists and sociological jurisprudence. Accordingly
it takes three forms. In the first form it is idealistic. A race
idea is unfolding in the development of the legal institutions
of this or that people or, more generally, the idea is looked at
* Dynamic Sociology, 1, 468-472 ( 1883) ; The Psychic Factors of Civiliza
tion , 120 ( 1901 ); Applied Sociology, 13 (1906 ).
*Ward, Contemporary Sociology, reprint of papers in 7 American Jour
nal of Sociology, 475, 629, 749 ; Ward, Pure Sociology, 14. ( 1903),
* Ward, Pure Sociology, 12–14 ( 1903) ; Small, General Sociology, 91
( 1905 ) ; Small, The Meaning of Social Science, 87 ( 1910) .
 BIOLOGICAL INTERPRETATIONS 75

from a special point of view as that of the race in whose spirit

it is unfolding. In a second form it is psychological. Law is
taken to be an expression of the character, mentality or tem
perament of the race in whose social institutions it has de
veloped. In a third form it is positivist. Law is ultimately a
product of the external physical causes which have determined
the character, mentality and temperament of the races in which
legal systems have developed. It is immediately a product of
race character and temperament arising from conflict of in
stincts and the need of harmonizing them in action if the race
is to endure.
We may trace the first form back to Hegel. In his philosophy
of right and law ( 1820 ) he suggested an interpretation of legal
history by conceiving the idea in terms of particular races or
nations." History was the march of the spirit in the world and
so legal history the march of freedom in civil relations. If we
looked simply at legal or political history, it moved now through
this institution and now through that. But looking at all history
in a very wide survey, we might say that it moved now through
this race and now through that. Babylon, Egypt, Persia, Greece,
Rome, the Germanic peoples of Western Europe were succes
sively the vehicles through which the idea realized itself.
Nothing else had power against this march of the idea in the
world. This conception of Hegel's, taken over by jurists, gave
us an idealistic ethnological interpretation.
One of the first attempts at applying this interpretation, at
doing more than sketching the broad lines of a universal legal
history from this standpoint, was made by Jhering in connection
with the beginnings of Roman law . It is familiar to English
and American students through Muirhead's adoption of it in
" " $ 346 .... A single principle, involved in its geographical and anthropo
logical existence is to be attributed to each people, $ 347. The accomplishing
of a stage of development, through the process characteristic of the self
developing self-consciousness of the world spirit, belongs to the people
whose natural principle is one of these stages of development. This people
is dominant for a given epoch in the history of the world. ... " Grundlinien
der Philosophie des Rechts, $$ 346–347.
• " In contrast with the absolute power of this people to be the bearer of
the current phase in the development of the world spirit, the spirits of
other peoples are void of power.” Id. $ 347.
• Geist des römischen Rechts, 1, § 19 ( 1852 ), 4th ed. I, 310.
76 ETHNOLOGICAL AND
his almost classical exposition . Jhering pointed out a dualism
in the old Roman law in that two systems, a religious system
and a profane system, existed side by side. On the one hand
there was the religious system of fas, with fire and water for
its symbol, with Numa for its representative, with a religious
marriage by confarreatio, with religious legal transactions of
sacramentuni, sponsio, foedus, with a religious legal procedure
in the legis actio sacramento and a religious idea of punishment
as expiation or purification in sacratio and sacrificial execution.
On the other hand there was the profane system of ius, with
the spear and the strong hand for its symbols, with Romulus
for its representative, with acquisition by purchase as its
marriage, with publicly witnessed legal transactions of man
cipium and nexum, with a legal procedure founded on self-help
and a system of penalties by way of composition. In other
words, one relied on religious sanctions, had a religious symbol,
was represented by a religious king, purported to rest on a
divine basis; the other relied on force, had military symbols,
was represented by a military king, and purported to rest on
the political authority of the Roman people. The suggestion
was that the one was Sabine, the other Roman. But this dualism
is by no means peculiar to the beginnings of Roman legal
institutions. It may be found, for that matter, in the Anglo
Saxon laws. With respect to them one might easily work out
an ingenious parallel of a Christian system side by side with a
profane system ; of aa reliance on exhortations addressed by the
king to his subjects as pious Christians and a reliance on threats
3
of employing armed force ; 3 of a crude division of jurisdiction
between church and state, and a series of religious institutions
on the one hand and parallel lay legal institutions on the other
hand. Religion and law are co-ordinate agencies of social con
trol in a certain stage of social development. One is the agency
* Historical Introduction to the Private Law of Rone, § 1 ( 1886 ).
Also one might refer to the prefixing of the Ten Commandments, ex
tracts from Exodus and extracts from the New Testament by way of in
troduction to Alfred's Laws. Liebermann , Gesetze der Angelsachsen , I,
26-46 . Also the prologue to Ine's Laws, id . 89.
' E.g. Judicia Civitatis Lundoniae, VIII, 2 ; Liebermann, Gesetze der Angel
sachsen , I, 178.
 BIOLOGICAL INTERPRETATIONS 77

of social control in a kin -organized society, the other in a

politically organized society. In a stage of transition they are
more or less co -ordinate. With the breakdown of kin -organiza
tion because of the rise of a non -gentile population, the law
takes over and absorbs the chief religious institutions of social
control. Thus we get a dualism in the beginnings of the legal
order which gradually disappears. There is no need to invoke
ethnical dualism in the old city of Rome to explain a phe
nomenon so evidently due to general causes which produced like
results in like stages of legal development among other peoples
where no hypothesis of twofold racial composition will serve
us. This particular ethnological interpretation was soon
abandoned.
Dahn in 1878 gave a new direction to the idealistic ethnolog
ical interpretation. He noted the tendency of philosophers of
law who were not lawyers to put specious reasons behind legal
institutions and legal doctrines as they were rather than to
criticize them on a philosophical basis, and the tendency of
other philosophers of law to leave the actual law wholly out of
account. These two tendencies had much to do with bringing
philosophical jurisprudence into disrepute in the latter part of
the nineteenth century. Seeing that the metaphysical method
had ceased to be of value, he proposed a new and broader basis
for legal philosophy. “ A philosophy of law , ” he said, “ which
shall be more than a collection of phrases must begin with
speculative valuation of the results of the historical school and
with the setting up of a legal philosophical edifice on the basis
» 1
of comparative legal history, folk psychology and ethnology."
We have here on the one hand an attempt to bring the historical
and the philosophical methods together on a better basis than
the conventional reconciliation that history verifies the meta
physical deduction or metaphysics demonstrates what history
discovers. We have also, on the other hand, a movement in the
sociological direction, involving a comparative legal history with
a social- psychological and anthropological background - a legal
history that is not to be merely doctrinal or politico -institutional,
comparing abstract legal propositions or abstract politico -legal
* Rechtsphilosophische Studien, 288.
78
ETHNOLOGICAL AND

institutions, but is to rest on generalizations from the observed

phenomena of folk psychology and of the character, civilization
and environment of peoples. Each of these suggestions found
followers. The idealistic ethnological interpretation took a
psychological turn. The positivist ethnological interpretation,
which already had been foreshadowed by Post in 1876,1 was
given a comparative basis.
In its psychological form the ethnological interpretation
postulates a certain legal genius or type of mind for each people
and seeks to explain legal history and the phenomena of legal
systems accordingly . In the hands of philosophers it has been
idealistic : the legal genius or the spirit of each people has mani
fested itself in the unfolding of some idea by which the legal
history of that people and its legal institutions may be explained.
Carle made a notable attempt to sketch the law of the modern
world in terms of English and French and German and Italian
legal ideas, expressing the psychology of these several peoples,
and running back to likeness or difference of race or to race
fusions.” Fouillée explained the law of modern Europe in terms
of the spirit of the different peoples of today, urging an inter
pretation of French law and of the influence of the French civil
code in terms of the spirit of the French.3 Recently this inter
pretation has been urged once more, this time or a social
psychological basis, by McDougall.* Divested of its meta
physical aspects in its latest form, it sees a special character or
temperament or predisposition in each race which manifests
itself, among other things, in the social and hence in the legal
institutions of the peoples of that race and explains, for example,
why some peoples have bureaucratic administration while
others hamper administration by judicially applied checks and
balances, why some peoples have codes while others continue to
administer justice by means of customary law, and, perhaps,
why some peoples have many judges and few lawyers while
others have many lawyers and few judges.
Der Ursprung des Rechts, 7 .
• La vita del diritto, 2nd ed., Bk 5 ( 1890 ).
• L'Idée moderne du droit, 6th ed., Bk 1 , Introduction and chap. 5 ( 1909 ),
translated in Modern French Legal Philosophy, 3-49.
• National Welfare and National Decay ( 1921 ) .
 BIOLOGICAL INTERPRETATIONS 79

As they are applied to the materials of law and of legal history

these interpretations are likely to involve a fallacy of looking
back at the Middle Ages and the beginnings of modern law in
terms of linguistic and political units of today; of seeing a racial
unity and racial continuity by looking through the political
spectacles of today. Thus it is not uncommon to see Anglo
Norman institutions spoken of as " French ” and to read of a
“ French " element in English law, as there is a French element
in English speech. In this respect the ethnological interpreta
tion has shown us a phenomenon which has often been remarked
in the history -writing of the last century. For instance, there
were theories of Latin and of Germanic civilization, the one
leading to unity, the other leading to separation ; the one giving
us a conception of comprehensive unity in religion and politics
and law, the other giving us a conception of individual inde
pendence, a negation of unity, in the form of Protestantism ,
of checks and balances in politics, and of Puritanism in morals.
These theories are connected with the economic -ethnological
interpretation of modern history that gave rise to what has been
called the “ epos of the conquered peoples,” in which Saxons
were set over against Norman conquerors, and Celts or Romans
over against Germanic conquerors ; the former in each case
being taken to be the people which formed the third estate,
created the medieval municipalities, and in the nineteenth
century took over the political as they had already acquired the
economic hegemony.1
One must recognize a core of truth in such interpretations
that makes them plausible. It is as mistaken to exclude such
factors in legal development as it is to insist upon them as the
one or even the main explanation of legal history. Moreover
the ethnological interpretation did a special service in leading
to recognition of the part which men have played in legal
development, even if it did not think in terms of human
creative activity. But with all allowances we must pronounce
that influence of the race element in determining the course
3
Croce, Storia della storiografia Italiana nel secolo decimonono, I, 128.
Compare Gooch, History and Historians in the Nineteenth century, 170
172.
80 ETHNOLOGICAL AND

of legal development and in shaping legal institutions has been

very much exaggerated in every form of ethnological inter
pretation. They overlook the effect of suggestion and imitation
in a subject in which men thought universally from the twelfth
to the sixteenth century, and were led to think universally for
many purposes by the law-of-nature theory in the seventeenth
and eighteenth centuries, and have not wholly ceased to think
universally even today in that half of the legal world which has
Roman law for the basis of its legal institutions and hence of
its legal education. The fact that all lawyers and judges and
legislators in Roman-law countries have a common education
in the Institutes of Justinian and in modes of professional
thought and rules of art deriving from Rome, explains much
more in modern law than any exponent of the ethnological
interpretation has ever been able to vouch for his theory.
Take, for instance, the argument so often made that codifica
tion prevails upon the Continent and in the Latin - American
world, but not in English -speaking lands. This argument, when
examined, proves too much. No community of race may be
vouched to explain why Holland in 1838, Roumania in 1864 and
Portugal in 1865 substantially adopted the French civil code,
nor may we invoke diversity of race to explain why Portugal
enacted a code in 1865 while Brazil did not do so till 1917, so
that the two codes are of wholly different types. Nor may we
explain in this way why Prussia had a code in 1791 , Austria in
1811 , and Baden adopted the French code, while Switzerland
had none till 1901-1907. Much less shall we understand why
the Swiss code became what it is unless we note the course of
juristic analysis and systematic ordering of the Roman law
under the leadership of the historical jurists of the nineteenth
century and the German code of 1900 which was the fruit
thereof. Fashions of legislation in the modern world are as
independent of race and language as fashions of dress among
the upper classes of society. Moreover when we look into the
circumstances that have led to codes we see how independent
they are of race or nation.
Two classes of countries have adopted codes, countries with
well developed legal systems which had exhausted the possi
 BIOLOGICAL INTERPRETATIONS 81

bilities of juristic development through the traditional element

of their law and required a new basis for a new juristic develop
ment, and countries which had their whole legal development
before them and required an immediate basis therefor. In such
countries four conditions will be found to have existed, which
led to codification : ( 1 ) the possibilities of juristic development
of existing legal materials were exhausted for the time being
or there were no such materials at hand since the country had
no juristic past ; ( 2 ) usually the existing law was unwieldy, full
of archaisms and uncertain ; ( 3 ) the growing point of law had
shifted to legislation and an efficient organ of legislation had
developed ; ( 4 ) usually there was a need for one law in a po
litical community whose several subdivisions had developed or
received divergent local laws. Add to these the Roman tradition,
a part of the education of every lawyer except in England and
English -settled countries, so that all who had to do with law
were brought up on the codification of Justinian, and we may
understand why the law of all Roman-law jurisdictions of any
importance has been codified. Perhaps we shall perceive also
that like conditions may yet lead to codification in the United
States, as the continual expansion of uniform state legislation
and the partial codifications in our uniform commercial laws
abundantly suggest. That the English race is not instinctively
averse to codification is shown by the Anglo-Indian codes.
Where there was no developed system of courts at hand to re
ceive the law gradually and work out its application to Indian
conditions by a process of judicial empiricism, but law and
courts had almost to be set up together and hence law had to be
set up en bloc as a complete system, Englishmen were quite
willing to codify.
Again the argument as to centralized bureaucratic adminis
tration on the one hand and a system of checks and balances on
the other fails when examined critically. The legal and adminis
trative system of republican Rome, with its collegiate magis
tracies, its co-ordinate jurisdictions, its vetoes and its appeals
to the people, hampered administration by legal checks quite
as thoroughly as the constitutional system of nineteenth-century
America. What we think of as the Roman system is the system
82 ETHNOLOGICAL AND

of the later empire. What we think of as the historical English

system is the system of feudal Europe generally. The conception
of the king ruling under God and the law is the conception of
the king as a lord of the soil in a relation with his tenants in
volving reciprocal rights and duties, and proceeds on radically
different presuppositions from the constitutional guarantees of
natural rights which were formulated in the eighteenth century.
Likewise what we think of as the Continental system is the
system of the French monarchy of the seventeenth and eight
eenth centuries and of eighteenth -century governments on that
model. It is significant that territorial expansion, growth of
population, commercial and industrial development and eco
nomic unification lead toward the latter among all peoples with
out regard to race or language. The steady march of centralized
administration in England, the abandonment in the Arlidge
case 1 of Coke's doctrine as to judicial control of administrative
methods, and the rise of executive justice by boards and com
missions in the United States, speak for themselves . ?
Vico's idea that nations had lives comparable to those of
individuals, that their lives ran in an orbit which they were
constrained to follow by an unalterable necessity, led to a
writing of history founded on the conception of the organic
development of peoples. Applied to legal history under the
influence of biology, this led presently to biological interpre
tations. Applied to the doctrine of race spirit or race character
as the determining factor in legal development, this type of
history -writing led to an interpretation of legal history and of
legal institutions as determined by laws of development which
in their essence were laws of race development and of race char
acter. Thus three influences combined to give us a positivist
comparative ethnological jurisprudence and a positivist ethno
' Local Government Board v . Arlidge, ( 1915) A.C. 120, ( 1914) 1 K.B. 160;
Dicey, Law and Public Opinion in England, 2nd ed. xli-xliv ( 1914 ) ; Dicey,
Low of the Constitution , 8th ed. xxxvii - xlvii ( 1915 ) .
* Pound, " Executive Justice,” 55 American Law Register , 137 ( 1906 ) ;
Pound, “ The Revival of Personal Government, ” Proceedings of the New
Hampshire Bar Assoc. 1917, 13; Goodnow , “The Growth of Executive
Discretion ," Proceedings of the American Political Science Assoc. II, 29
( 1910) ; Powell, “ Judicial Review of Administrative Action in Immigration
Proceedings," 22 Harvard Law Rev. 360 ( 1909).
 BIOLOGICAL INTERPRETATIONS 83

logical interpretation : the rise of positivism and development

of sociology, the quest of the philosophical jurists for a broader
basis for philosophy of law, to be found in comparative legal
history, folk psychology and ethnology, and the organic version
of theexisting ethnological interpretation when it was subjected
to biological influence. The method was to be a discovery of
laws of social and hence of legal development by observation
and historical verification. The result was an interpretation in
terms of a conflict and harmonizing of instincts — of aa conflict
between the instinct of individual preservation and the social
instinct, between individual self-assertion and social ordering
verified out of comparative legal history and a descriptive
sociology which investigated minutely the social institutions
of all peoples and particularly those of primitive peoples. For
comparative embryology was doing great things about this
time in biology, and it was believed that legal institutions in
embryo , as it were, would reveal to us the fundamental types
and enable us to trace the course of development with assurance.
Post was feeling for something of the first importance when
he saw in law an attempt to harmonize instincts in action rather
than an attempt to reconcile wills in action . But he could not
get away from the ideas in which his generation was brought
up, nor were sociology and psychology well enough developed
to enable him to do what he sought. In effect he put the Kantian
reconciliation of the will of each in action with the will of all
in terms of instinct and sought to verify it by ethnological
1 “ In fact we see everywhere in social life that on the one side the single
biological individual is ruled by individual biological forces directed toward
the prese ation of his biological individuality and on the other side his
individual strivings are diverted and limited by the ordering of the social
groups in which he lives. Thus it comes about that every individual is ruled
on the one side by egoistic forces, on the other side by moral forces which are
unselfish or for the common interest. On the one hand he is himself a
mechanical physical system, on the other hand he is part of a mechanical
physical system. Thus it comes about also that each biological individual
feels himself entitled to rights on the one side and on the other side bound
by duties. He feels entitled in his capacity of biological individual; he feels
bound in his capacity of member of a social group .” Post, Die Grundlagen
des Rechts, pp. 89 ( 1884 ).
See also, Post, Bausteine für einen allgemeinen Rechtswissenschaft
( 1880 ) ; Post, Grundriss der Ethnologischen Jurisprudens ( 1894–1895) ;
Post, Veber die Aufgaben einer allgemeinen Rechtswissenschaft ( 1891 ).
84 ETHNOLOGIC AND
AL
research instead of demonstrating it by metaphysical specula
tion or verifying it by history. Also it is easy for us now to see
that he often interpreted primitive social institutions in terms
of problems of modern jurisprudence. In this he did what
lawyers are always prone to do. He did what historical jurists
had done before him in their generalizations of Roman legal
history and what analytical jurists do today when they seek to
apply their universal analyses to the facts of every stage of
Roman law from the ius strictum to Justinian and to the facts
of all periods of English law from the thirteenth century to the
present. When a leader of the analytical school tells us that
there are legal conceptions which, if not eternal, are exceedingly
slow of change and “ go back as far as we have aa clear knowledge
of human affairs and show to our eyes no signs of decay," ” i1 he
does exactly what Post has been reproached for doing and he
does it for the same reason. To see the nineteenth-century
conception of a legal transaction in liability to restore a thing
certain solemnly delivered, to see nineteenth -century liability
to repair injuries due to culpable conduct in a system of com
position -penalties, to see the full-blown Roman dominium in
legal securing of seisin, is to misrepresent the beginnings of
law quite as much as any positivist ever misrepresented the
beginnings of social control. But the analytical jurist is on
strictly legal ground and has not had to reckon with detection
by modern anthropologists.
What is more serious is that Post wrote in the era of mechan
ical sociology, or of the mechanical type of biological sociology,
when it was still held that some one principle was discoverable,
and discoverable by some one sovereign method, whereby we
might arrive at the fundamental laws governing social phe
nomena. The method and the principle were to be reached
through observation of the phenomena, not determined a priori
by metaphysical speculation. But the data were insufficient.
Legal history needed to be re -studied and re-written with the
needs of the social sciences in view. As things were, what seemed
historical evidence was often an interpretation in terms of the
maximum of individual self -assertion as the end of law. The
* Gray, Nature and Sources of the Law , § 11 ( 1909).
 BIOLOGICAL INTERPRETATIONS 85

so -called descriptive sociology was gathering a huge mass of

material, most of which was of little or no value for juristic
purposes as it stood , but must first be put through the crucible
of one of the specialized social sciences. When the jurist sought
to utilize such materials, instead of using them to throw light
on his special problems he was likely to shape them by his pre
existing legal ideas and thus verify his ideas out of themselves.
In short, Durkheim had not yet taught us the limitations and
rules of method which are involved in such an undertaking.
The positivist ethnological interpretation could be no more than
a forerunner of broader and better methods.
Biological interpretation, that is, interpretation in terms of
a biological principle of struggle for existence regarded as the
law of social and hence of legal development, has taken many
forms. Often it has been used in connection with other theories,
notably in connection with attempts to work out a positivist
theory on the basis of the physical environment of the people
governed by the body of law under consideration. In general
three types may be recognized, the idealistic, the ethnological
and the economic.. In the idealistic type a biological idea, the
struggle for existence or the survival of the fittest, may be
taken to be the idea which is realizing in the development of
legal institutions. Or, as is more usual, legal history may be
conceived as a conflict of ideas, as it were a struggle for exist
ence between legal ideas, and a survival of those which prove
fittest to survive through responding best to social needs or
social environment. Sometimes the political interpretation is put
in biological form and the legal order is interpreted as a well
ordered social struggle for existence among individuals or
groups of individuals ; as the minimum ordering of this neces
sary struggle which enables it to go forward most effectively.
In another form of this type a conflict of legal institutions is
pictured, with survival of the fittest. But the institutions are
conceived as expressions of ideas, so that ultimately the conflict
is one of ideas. Perhaps the best of this type is Richard's inter
3 Les règles de la méthode sociologique, 6th ed . ( 1912).
Neukamp, Entwickelungsgeschichte des Rechts ( 1895); Kuhlenbeck,
Natürliche Grundlagen des Rechts ( 1905 ) ; Seitz, Biologie des geschichtlich
positiven Rechts ( 1906–1910 ).
86 ETHNOLOGICAL AND
pretation in terms of a conflict of social with anti-social rules
and institutions and doctrines, that is, of those which further
the existence of the social group with those which interfere
therewith or hamper its functioning and development."
In recent positivist theories of law the biological phraseology
and the idealistic cast are discarded and we are told , in what is
substantially the same interpretation, that “ to act in conformity
with right and law is to act in conformity to what is social ,”
that “ the jural principle ( la règle de droit) says : do such a thing
because it is social ; refrain from doing such and such a thing
because it is anti-social.” The author quoted from adds : “ A
juridical obligation is . . . an obligation to do what has a social
value, that is, not to do what is anti - social. ... The criterion
of the jural principle is the social reaction which is caused by the
violation of the principle ; a reaction that is capable of being
socially organized. Let us not say,” he goes on , " that the jural
principle cannot be founded on a fact, since it is nothing more
than a precept to conform oneself to facts." ? If he is speaking
here of law as a whole, one may assent, for the existence of
civilized society calls for peace and order and the legal order is
in large part a response to that demand. But the question is not
merely one of the social value of law in the abstract but of legal
institutions and rules and doctrines ; in short, of laws as we find
them . How does the obligation resting on the individual man
to do what has a social value and not to do what is anti - social
help us when we must determine whether or not to apply the
Rule in Shelley's Case or the doctrine of merger of contingent
remainders, ascourts have had to do in more than one American
1

state recent years ? Without much more detail as to social

values and as to what is anti-social, we have no help from such a
formula . If we seek to use it, one will fill the content of "social
value" with the idea of a maximum of individual self -assertion,
in which he has been trained, and another with ideas of
securing a minimum human existence to each individual , and
another with something else. Duguit would fill it out with
promoting social interdependence through division of labour,
" L'Origine de l'idée de droit ( 1892 ).
' Duguit, Les transformations générales du droit privé, 24-29 ( 1912) .
124 THE GREAT-LAWYER INTERPRETATION
make in these relations in order to insure that no advantage
should be taken of the actual inequality and that the contracts
made should be fair. But the legislature could not recognize
the de facto advantage of employer over employee where the
employer was a mining corporation because that advantage
not yet taken form in a legal conception. It was but de facto.
To recognize it was “ arbitrary. ” Legal conceptions were like
Lewis Carroll's watch. Facts had no more effect upon the one
than time upon the other."
Ideas may require such things. But men revolt against them
and this revolt of men is one cause of legal development. The
facts affect men even if ideas are impervious ; and men reshape
or reject the conceptions accordingly. This reaction of men to
facts, directed more or less by a traditional technique and along
more or less logical lines, not the internal self -developing force
2

of the conceptions, has fashioned legal institutions and rules

and doctrines.
May we interpret law and legal history in terms of the
element which the last century ignored ? Is it possible to make
a great-lawyer interpretation of legal history ? May we tell the
story around the personality of judges and law -givers and
jurists ? If we may do so, how far is the interpretation valid ?
Lord Campbell suggested such an interpretation. But his
project of writing the history of English law and of the English
constitution around the lives of the Chancellors and the Chief
* For other cases of the " jurisprudence of conceptions,” see the decisions
discussed by Dean Wigmore in "Contributory Negligence as a Bar to an
Administrator's Actionfor Death , ” 2 Illinois Law Rev. 487-494. Dean Wig
more's comments are in point. He says : “To say that the nominal parties
only will be considered, no matter what justice may require, is to say that
law consists in the mechanical operation of certain steel cogs and levers, or
in the mathematical solution of a certain equation of a, m, n , and x, no
matter what the result is in justice” ( p. 487 ) . " But to get at justice, per
haps by changing the tools or by mending the machine, or by inventing an
eccentric to replace a simple circular rotation-somehow to get results, in
short - this, the genius of adaptiveness, which has marked so marvellously
the industrial achievements of our nation and has given us a distinguished
character among the world's peoples - this genius seems to fail us when we
enter the halls of justice. The failure to exercise it is a feature of all the
courts. ... The courts that favor recovery and the courts that oppose re
covery are alike affected by it. Whichever attitude they take, their method
is a mechanical one ; they cannot apportion , they cannot adjust ; they will
merely work out a formula ” ( p. 494 ) .
 JURISPRUDENCE OF CONCEPTIONS 123

This sort of thing is not as well.regarded in the law as it was

in the middle of the last century ; as it was, for example, in the
days of imputed negligence. It is aa welcome sign of the times
that when legal conceptions were pressed upon the New York
Court of Appeals recently and it was asked to hold that where
a springboard projected from a railroad right of way over a
river where the public had a right to bathe, as the springboard
was annexed to the right of way and hence was a fixture, a man
on the end over the river was technically a trespasser and so
was not protected from the negligence of the railroad company
-when asked to apply logic to legal conceptions in this way,
the court denounced the jurisprudence of conceptions and
refused to carry out the conception of a fixture and the con
ception of trespass to such a result.2
American constitutional law is full of the jurisprudence of
conceptions. A conception of liberty of contract as due process
of law and a conception of the police power - a conception of
a maximum of individual self-assertion and of a legislative
power to restrict such self-assertion for the public health or
safety or morals—for a time replaced the standard of reason
ableness with reference to the circumstances of time and place
for which the rule was enacted and to which it was to be ap
plied . Thus in one of the truck -act cases already referred to a
statute required corporations employing ten or more persons to
pay wages in cash. The court said this was unconstitutional as
putting the labourer under guardianship and imposing an
incapacity by an “arbitrary fiat.” 4 Equity had seen the de facto
inequality between fiduciary and beneficiary and between lender
and borrower because of the advantageous position of the for
mer in each case. The common-law courts had seen the de facto
inequality between public utility and patron.. Courts and
legislatures had seen the de facto inequality between insurance
company and insured. In such cases and many more like them
the law had regulated the contracts which the parties might
1
Thorogood v. Bryan, 8 C.B. 115 ( 1849 ).
* Hynes v. New York Central R. Co., 231 New York Reports, 229, 235
( 1921).
See Pound, “ Liberty of Contract,” 18 Yale Law Journ. 454 ( 1909).
Smith, J., in State v. Haun, 61 Kansas Reports, 146, 161 ff. ( 1900 ).
122 THE GREAT-LAWYER INTERPRETATION
trespass upon her land, while the other could not recover. Or
again , if aa horse not known to be vicious trespassed on land and
kicked the owner of the land, he could recover. But there is
authority for saying that if it also kicked a third person casually
but rightfully on the land, the latter could not recover. Or,
if in blasting operations , carried on with due care, stones were
unexpectedly cast on another's land and hit both the owner of
the land and another person casually but rightfully there, we
were told that the one might recover as an additional item of
damage for the trespass, but the other might not recover at all.
For if one were allowed to cast stones on another's land, even
though without negligence, without liability, he might acquire
a servitude of so doing , whereas there could be no acquisition
of a servitude of casting stones on a human being. Such a
condition of the law so offended the common sense of the New
York Court of Appeals that it took the bull by the horns and
allowed the person casually on the land to recover also, despite
its cherished principle of no liability without fault; saying that
life and limb were at least as sacred as property and that if the
owner of the land might recover, the injured non -owner must
recover also . The legal basis of such a recovery is still in much
doubt . But the judges did not wait for the idea. In this case
they acted on instinct.
An English example may be seen in the cases of Winterbottom
3
v. Wright 8 and George v. Skivington . According to these cases
and as a result of the conception of liability as arising only
between the parties to a sale, if a manufacturer negligently sells
you a defective automobile negligently manufactured, not know
ing of the defect and the defect being latent, if you are injured
you may recover. If you give it to your brother and he goes
out in it and is injured, he may not recover. But if, when you
buy it, you tell the manufacturer that you are buying it for your
brother and then he goes out in it and is injured, he may recover .
1
* Troth v . Wills, 8 Pennsylvania Superior Court Reports, I ( 1898 ) ;
Bischof v . Cheney, 89 Connecticut Reports, I ( 1914) .
' Sullivan v . Dunham , 161 New York Reports, 290, 294. See Smith , “ Lia
bility for Damage by Blasting," 33 Harvard Law Rev. 542, 667 ( 1920 ).
10 M. & W. 109 ( 1842).
* L. R. 5 Exch . í ( 1869 ). Sir Frederick Pollock speaks of this as “not
a very profitable case." Torts, itth ed., note h.
 JURISPRUDENCE OF CONCEPTIONS I21

was removed. But in the meantime a legal conception had come

into being. The doctrine had been rested upon a conception
of the right of physical integrity as including integrity of the
physical person but not mere peace of mind. This conception
had been verified historically and the rule now stood intrenched.
To show the falsity of the assumption that nothing physical
was involved in fright made no difference. We were not
dealing with the facts of human life but with conceptions that
were self -sufficient.
Again, take the much-discussed case of an injury to the
mother of an unborn child whereby the child is born maimed .?
This was solved by the conception that legal personality begins
with birth. Hence there was no legal personality in the child
when the injury to the mother took place and after the child's
legal personality had come into being no injury was done it.
We may understand caution in allowing recovery in such cases
because of the difficulty of establishing a causal relation between
the injury and the condition of the child at birth. But this way
of looking at cases was alien to nineteenth -century modes of
thought. All must rest on the legal conception. There was no
suggestion of turning to medical science to ascertain the actual
situation for which the legal rule must be made. Law was
eternally self- sufficient. It was not to change as medical or
psychological knowledge increased, since from its conception
the legal rule must be fixed once for all — from the beginning
and to eternity.
Again, suppose that in such a case as Dulieu v. White,' two
women were in the room, one of whom owned the house while
the other was her guest. According to some decisions, pro
ceeding in the purely mechanical fashion of the jurisprudence
of conceptions, the one could have recovered damages for the
miscarriage produced by the negligently caused fright, since
she might have claimed them as an item of damages for the
* Sec Bohlen, “ Right to Recover for Injury Resulting from Injury with
out Impact,” 41 American Law Register, 141, 142-144 ( 1902 ).
*Walker v. Great Northern R. Co., L.R. 28 Ir. 69; Dietrich v. Northamp
ton , 138 Massachusetts Reports, 14 ; Allaire v. St Luke's Hospital, 184
Illinois Reports, 359 ; Gormon v. Budlong, 23 Rhode Island Reports, 169.
• ( 1901 ) 2 K.B. 669.
120 THE GREAT-LAWYER INTERPRETATION

were derivable from the Year Books , by which questions arising

in the law of today might be answered. Jhering said that the
legal conceptions of the historical school required a world of
their own in which they existed wholly for themselves, far from
every connection with life. They were not actual Roman 3
nor actual medieval English legal institutions. They were
abstract creations with no relation to the life of the past nor
to that of the present.
Some examples will bring this out. Thus, the doctrine of
Victorian Railways v. Coultas," now happily overruled in Eng
land but still raising its head in the United States, denied re
covery for fright or mere mental injury, however manifest in
physical consequences, unless the causal nexus was vouched for
by intention to injure or by some physical impact at the time the
fright or mental suffering was culpably produced. In reality
this was a practical rule, growing out of the limitations of trial
by jury, the difficulty of proof in cases of injuries manifest
subjectively only and the backwardness of our knowledge with
respect to the relations of mind and body. In view of the
danger of imposition, the courts, on a balance of the interests
involved , refused to go beyond cases where there was a voucher
for the truth of the plaintiff's claim, either in the intention of the
defendant to bring about such a result or in a physical impact
which in ordinary experience was known to have such results."
With the rise of modern psychology the basis of this caution in
securing an important element of the interest of personality
* E.g. Ames, Lectures on Legal History , 172, 191, and the theoretical
development, 192 ff. (written 1889–1890 ). See Professor Bordwell's com
ments in 34 Harvard Law Rev. 740 ( 1921 ).
" " The sphere in which the theoretical beyond is placed does not belong to
the solar system. No ray of light shines therein . The sun is the source of
all life ; but conceptions do not concern themselves with life. They require
a world of their own in which they exist wholly for themselves, far from
every connection with life.” Jhering, Scherz und Ernst in der Jurisprudenz,
Ioth ed., 247 .
• See Savigny, System des heutigen römischen Rechts, I, § 35 ( 1840 ).
* 13 App. Cas. 222 ( 1888 ).
6
" The point is not put as a logical deduction from the general principles
of liability in tort, but as a limitation of those principles on purely practical
grounds.” Holmes, C. J., in Smith v. Postal T. CO ., 174 Massachusetts Re
ports, 576 (1899 ). See also the observations of the same judge in Homans
v. Boston E. R. Co., 180 Massachusetts Reports, 456 ( 1902 ).
 JURISPRUDENCE OF CONCEPTIONS 119

evolve itself nor is it generated spontaneously by economic

changes. Men, preaching and arguing and writing and teaching
and haranguing, are active agents in producing it and in recent
years we have had many illustrations of the extent to which it
may be manufactured deliberately and on a large scale. Indeed
the wholesale manufacture of public opinion as a means to this
or that end has become a business , and organizations exist with
widespread ramifications whose real purpose is to bring about
a factitious public opinion. For that matter official gazettes
and bulletins and spectacles had not been unknown heretofore
and inquisitions and censorships and restrictions upon teaching,
and prosecutions for seditious agitation, and other forms of
preventing the manufacture of public opinion of a sort in
convenient to the ruling group of men for the time being, have
always existed. Behind public opinion are human desires and
wants and claims making themselves felt through human beings
upon human beings and leading the latter to act in the adminis
tration of justice, in juristic writing and in legislation. Surely
the men who are active in this process may not be ignored if
we are to understand it fully.
Omission of men from our juristic reckonings in the nine
teenth century bore fruit in the jurisprudence of conceptions,
as Jhering called it,' which was so conspicuous not only in the
juristic writing but in the actual administration of justice during
the hegemony of the historical school. A historically derived
conception was the whole measure of judicial action. The con
ception was not to be fitted to the case so as to bring about
a result in that particular case by which the law might be given
effect with reference to its end. The result in the particular
case was immaterial. The case was to be fitted to the conception
after the manner of Procrustes. It was the boast of the Romanist
that the legal conceptions to be found in the writings of the
Roman jurists of the third century sufficed for the solution of
every legal problem of today. It was the belief of the Anglo
American historical jurist that like universally valid conceptions

1 Scherz und Ernst in der Jurisprudenz, pt. 3 ( 1884), roth ed ., 245 ff.
»
9

See Pound, " Mechanical Jurisprudence," 8 Columbia Law Rev.605 ( 1909 );

Holmes, Collected Papers, 231-232.
118 THE GREAT -LAWYER INTERPRETATION

One element, however, is rejected or ignored. None of the

nineteenth -century interpretations will hear of an element of
creative activity of men as lawyers, judges, writers of books, or
legislators. They have nothing to say about juristic endeavours
to reconcile or harmonize or compromise overlapping claims
by creative reason or an inventive process of trial and error.
They think of the phenomena of legal development as events,
as if men were not acting in the bringing about of every one of
them. For the so -called events of legal history are in truth acts
of definite men or even of a definite man. The praetor's edict
was not a self-evolving thing. Some one applied to a praetor
for a remedy and persuaded him to grant it with the result that
a clause was added to the edict with the significant words
actionem dabo. In such a situation there are three things to
consider, the men who acted, the materials on or with which
they acted and the conditions in which they acted. The nine
teenth -century interpretations left the men out entirely, at
least in their quality of men . The historical jurists did not
think of the man who acted. At most they thought of a whole
race and of the man as but a particular sample as it were of a
stock pattern of men with a stock spirit. All of these inter
pretations in one way or another explain law in terms of the
conditions of action, not in terms of the actor ; in terms of
something external to the actor whereby his action was mere
appearance masking the operations of the reality in the back
ground. They think of man in the abstract, not of men. The
real actors are formulae. As Cuoco said of aa like type of inter
pretation of general history, letters of the alphabet might as
well be substituted for the names of the so - called actors.1
For example, consider Dicey's interpretation of English law
in the nineteenth century,” perhaps the soberest and broadest
that has been written. It is an economic-political interpretation
in terms of public opinion. Public opinion, with economic
changes behind it, changed slowly and through political in
stitutions and movements brought about changes in the law.
We have seen in the last decade that public opinion does not
* Saggio storico, preface to 2nd ed.
• Lectures on the Relation between Law and Public Opinion in England
in the Nineteenth Century ( 1905, 2nd ed. 1914) .
 THE TRUTH IN INTERPRETATIONS 117

out, to which eighteenth -century thinking had seemed to lead.

The recognition of the social interest in the individual life
which is so marked in recent legislation, in recent judicial
decision and above all in recent juristic thought, is a new and
more inclusive way of putting for the purposes of today what
the historical school sought to put for the last century in its
idea of “ freedom .”
There was something also behind the positivist interpreta
tions which gave them plausibility and enabled them to main
tain themselves. Physical environment may not be ignored by
jurist or legal historian. Such things as the Roman law of
public and private streams and the modern refilling of the
content of those terms in another way, as the English and the
American criteria of admiralty jurisdiction , as the definition
of a navigable stream in England and America respectively,3
as the English, the so -called California and the so -called
Colorado theories as to the use of water of a running stream ,
or as the English and the Australasian views as to flood
waters, speak for themselves. It would be rash to say that
race psychology must not enter profoundly into all considera
tion of what legal precepts may be imposed effectively upon
this or that people. Behind the biological interpretations in
terms of conflict of instincts is the truth that the problem of
the legal order is at bottom one of reconciling or harmonizing
or compromising conflicting or overlapping interests — that is,
conflicting or overlapping human claims or demands or
desires — and that the pressure of this conflict compels continual
change in the details of the legal order. Behind the economic
interpretation is the truth that these claims or demands or
desires have to do chiefly with applying the material goods of
existence to the satisfaction of human wants.
* Dig . 43, 12 , 1 , $ 3 ; French Civil Code, art. 538.
a "The Genesee Chief,” 12 Howard's Reports ( U.S.) 443 ( 1851).
Carson v. Blaser, 2 Binney's Reports (Pennsylvania ), 475 ( 1807 ) ;
Browne v . Chadbourne, 31 Moine Reports, 9 ( 1849 ).
‘ Embrey 0. Owen , 6 Exch. 353 ( 1851) ; Elliot v. Fitchburg R. Co., IO
Cushing's Reports (Massachusetts ), 191 ( 1852) ; Luht v. Haggin , 69 Coli
fornia Reports, 255 ( 1895 ) ; Hammond v. Rose, 11 Colorado Reports, 524
( 1887 ).
Gerrard v . Crowe ( 1921 ), 1 A.C. 395.
 VI

THE GREAT-LAWYER INTERPRETATION

Each of the interpretations heretofore considered lays hold of

a single factor of more or less importance in the process of
adjusting the legal materials handed down from the civilization
of the past to the demands of the civilization of the present and
of finding or creating new materials and fitting them with the
old into a more or less harmonious system, where the traditional
materials are refractory or insufficient or their possibilities
are unknown or misunderstood. Behind the ethical interpreta
tion is the truth that men have sought to make the administra
tion of justice and the laws by which it is administered conform
to ideas of right and that their endeavours to do so have in large
measure succeeded. The legal order has been able to maintain
itself, law has been able to supersede the older agencies of social
control and has become the chief agency thereof, to which
others are subordinated, because these efforts have been so
persistent and in consequence so successful.
Behind the political interpretation is the truth that more and
more since the sixteenth century and universally in the nine
teenth century the end of law was conceived in terms of the
maximum of individual self-assertion. This end was to be
attained through a politico -legal ordering of society in which
coercive social control was reduced to its lowest terms. Self
assertion is one of the fundamental instincts or, if you will,
one of the fundamental desires of men. There is ample experi
ence of how serious the consequences may be if men's aspira
tions for free self -assertion are repressed beyond a reasonable
compromise required for the securing of other social interests.
The conception of law as a necessary evil, the doctrine that
each rule of law must be justified by showing that it promotes
a maximum of individual self-assertion, the doctrine of a mini
mum of law, restricted to what is demonstrably necessary to
the realization of freedom as an idea, are protests against legal
repression for the sake of a rational scheme rationally carried
116
 ACHIEVEMENTS OF THE INTERPRETATION 115
Again, the idea of a social or sociological legal history, as con
trasted with the merely doctrinal or institutional or political
legal history of the past, has done much for the science of law.
The new edition of Professor Salvioli's history of Italian law
shows how much has been gained in this respect in the last
decade. Such things as Wigmore's economic-historical inter
pretation of the English and American law as to confessions
show what intelligent use of economic ideas by a master of the
legal materials may do for the practical understanding of legal
rules. 2 Above all, however, the economic interpretation has
been a stimulus to faith in the efficacy of effort, even if its
adherents thought juristic effort futile. It has helped to over
throw juristic pessimism by showing the effective power of
human action to satisfy human desires, even if it exaggerated
the extent to which men had deliberately shaped the law to
attain class ends.

3 “ The purpose of this work is to follow the development of Italian law

in its various manifestations of time and place, ever keeping it in touch
with the social ground in which it was formed, with the atmosphere in
which it lives, and so with Italian society in its economic,political, religious
and moral life. Hence in writing the history of Italian law I have had in
view also the writing of the social, economic, and juridical history of the
Italian people, at least in its chief lines, in an organic and indivisible whole.”
Salvioli, Storia del diritto Italiano, 8th ed., preface ( 1921 ) .
* Evidence, I, § 865 ( 1904 ).
114 THE ECONOMIC INTERPRETATION

legislation intended to relieve the members of certain organiza

tions from the " humiliating position " of being upon an equality
with the rest of the king's subjects might be applied to more than
one American statute. Nor may we blind ourselves to the part
which the origin , education and every-day associations of the
judges have played in the interpretation of laws relating to
groups with whose interests they were but imperfectly ac
quainted, whose aspirations were known to them only in an
abstract sense, and whose modes of thought were looked at
through the medium of another order of ideas. What seems to
me significant is not that now and then we may put our finger
upon a decision and explain it in such terms but that such things
have had so little influence on the administration of justice and
above all so little lasting influence. Nothing could be more
eloquent of the efficacy of traditional modes of professional
thought and traditional rules of art in holding judges to a rea
soned balance of the interests involved and keeping down the
influence of suggestion and of sub -conscious leanings to the
minimum which we must expect in all things human.
Among the achievements of the economic interpretation we
must put first the effect it has exerted upon ideas as to the end
of law . It was no mean service to make us think of satisfaction
of wants rather than assertion of wills, to lead jurists to picture
a legal ordering of the satisfaction of wants out of the limited
material goods of existence in place of a reconciling of wills
in action. Again it was a real service to direct attention to the
actual operation of codes and traditional bodies of doctrine that
antedated the industrial organization of the society of today
and so took little account of the interests of industrial labourers
in such a society.” In this respect the economic interpretation
was a powerful stimulus to the functional legal science of today.
1
* Bussey v. Amalgamated Society of Railway Servants, 24 Times Law
Rep. 437 ( 1908 ).
* Courey,Le droit et les ouvriers ( 1886 ) ; Glasson, Le code civil et la ques
tion ouvrière ( 1886 ) ; Menger, Das bürgerliche Recht und die besitelosen
Volksklassen ( 1889, 4th ed. 1908 ) ;Menger, Veber die sozialen Aufgaben
des Rechts ( 1895, 3rd ed. 1910) ; Tissier, Le code civil et les classes ou
vrières, Livre du centenaire du code civil Français, 71-94 ( 1904) ; Sal
violi, i difetti sociali del codice civile in relazione alle classe non abbienti ed
operaie ( 1906 ).
 THE ELEMENT OF TRUTH I13

or both. It is not likely that law-making will be better than the

picture of it we put before the law-maker. Theories of law
easily become theories of making law, as is readily verified by
observing the effect of the analytical doctrine that law is the
command of the sovereign used as a theory of legislation by
American legislators. ? Perhaps one need not say that a more
anti-social theory of law -making than that implied in the eco
nomic interpretation , as grafted on analytical jurisprudence by
American positivists, could not be conceived. A theory of law in
terms of the will for the time being of the socially and econom
ically dominant class for the time being, with transitional states
of hopeless internal conflict while one class is gaining the upper
hand at the expense of its predecessor in the economic and social
order, is morethreatening to the general security than the eight
eenth -century theory of referring all things to the individual
conscience as an ultimate arbiter, of which in its nineteenth
century form of philosophical anarchy recent legislation has
become so fearful.
Yet it would be a grievous error to reject the economic inter
pretation wholly because of the extravagances of its advocates.
It has an element of truth which we may not ignore and in spite
of the recklessness with which it has been urged it has achieved
important results. One cannot examine nineteenth -century
legislation without perceiving that organized pressure from
groups having a common economic interest is the sole explana
tion of many things upon the statute book. In America legisla
tion allowing a lien to one who furnished material for a building
has been pushed to strange lengths through the activities of asso
ciations of lumber-dealers.2 Credit men's associations have pro
cured laws against the sale of stocks of goods in bulk .: Farmers
have procured legislation against allowing weeds to go to seed
on a railroad right of way wherein the farmer was left free to
sow the corners of the earth with seeds from his weed-patches,
if he so liked. The remarks of Mr Justice Darling about
* See Parker, “ The Congestion of Law,” 29 Report, American Bar Assoc.
383, 387–389 ( 1906 ).
See Stimson, American Statute Law , art. 196. Since that compilation
many states have pushed such legislation much further.
See note in 33 Harvard Law Rev. 717 ( 1920 ).
I have discussed these statutes in " The Revival of Personal Govern
ment,” Proceedings of the New Hampshire Bar Assoc. 1917, 13.
II2 THE ECONOMIC INTERPRETATION
pality and the king's courts were justly jealous of the powers of
such entities and of the way in which those powers were em
ployed . If, instead, he seeks to do business by means of a
partnership, an institution as old as commercial activity, and
proceeds to keep books showing what he owes the partnership
and what the partnership owes him , he is told that legally such
things cannot be. The law is not determined by the needs of
business nor does it draw its ideas of partnership from the
universal understanding and practice of business men . It was
fixed centuries ago when Roman jurists sought to under
stand partnership in terms of the consortium of co-heirs
after the death of the head of a household .? If nineteenth
century courts had been but the mouthpieces through which
the business men of America promulgated formulations of
their self-interest, these things would have come to an end
long ago.
Advocates of the economic interpretation went to the extreme
in another respect. As we have seen, all the interpretations that
grew out of legal application of Hegel's philosophy of history
regarded the course of legal evolution as something inevitable
and limited the function of the jurist to historical research and
organizing and systematizing, or perhaps predicting, on the
basis thereof. But the ethical interpretation and the political
interpretation taught that an idea of right and justice or an
idea of freedom was guiding the inevitable course of evolution.
At least the jurist could use these ideas in his limited task of
logical ordering and systematic arrangement. Also the legislator
could at least declare and publish the historically developed
law in what Bentham called a more " cognoscible” form. The
economic interpretation denied them even these limited func
tions as anything more than hollow pretence. Not only was
the course of development inevitable, but judge and jurist and
legislator were but spokesmen, conscious or unconscious, of
the self-interest of the dominant social class. When they as
sumed to be more they were deceiving themselves or the public
3
* Machen, “ Do the Incorporation Laws Allow Sufficient Freedom to
Commercial Enterprize?” Reports of the Maryland State Bar Assoc. XIV ,
78 ( 1909 ).
* Story, Commentaries on the Law of Partnership, § 2 ( 1841 ) ; Inst. 2,
25, pr, and $$ 1-2 ; Dig. 17, 2, 63, pr.
 LAW AND BUSINESS III

universal that it existed in Roman law only if the employee

were a slave and exists in French law in the case of injuries by
apprentices only to the extent of a rebuttable presumption that
the master was at fault." Having set up this broad liability the
courts proceeded to put limits to it. If class self-interest ex
plains the limits, why may we not invoke it to explain the
doctrine limited ? But this would prove too much.
Not a little of what has been written from the standpoint of
ile economic interpretation assumes that the grievances, some
times very real, of industrial labourers against judicial decisions
in the nineteenth century are an example of dictation of legal
precepts by class interest. But labourers have not been the
only persons in society to be aggrieved by the slow response of
law to their needs or desires. All who have written upon this
subject have assumed that the capitalist class, the captains of
industry and the captains of commerce, were the dominant
social class at the end of the last century. Hence it is significant
that every grievance of the American labourer against American
law may be matched by quite as real a grievance of the American
business man. The chief instrument by means of which the
latter transacts business is the private corporation or business
company. If he seeks to do business across a state line by means
of that instrument he finds his business potentially an outlaw ,
suffered to go on solely by the grace of the local authorities.
Although the constitution guarantees to him that he may do
business over the line , it is interpreted in a way that prevents or
hinders him when he seeks to do business in the only way that
is practicable for any enterprise of magnitude. If he inquires
why this should be so, he finds that it is because at a time when
“ corporation" meant state-granted monopoly it was decided,
rightly enough, that one state could not thrust its monopolies
upon another.? If he stays at home, he finds himself hampered
in the use of this necessary instrument of modern business by
a series of traditional legal prejudices and historical limitations
which run back to the days when corporation meant munici
1
* French Civil Code, art. 1384 ; Baudry- Lacantinerie, Précis de droit civil,
II,3 676.
See Henderson, The Position of Foreign Corporations in American
Constitutional Law ( 1918 ) .
IIO THE ECONOMIC INTERPRETATION

an eternal principle of justice that one who employs another,

though not culpable in any wise himself, must be liable for the
culpable acts of the other in the course of the employment.
What we have is a doctrine of liability without regard to fault
imposed upon those who conduct enterprises by employing
others. At bottom the principle is the same as that in the
doctrine of Rylands v. Fletcher — that one who maintains some
thing which if not kept in hand may endanger the general
security, must keep it in hand at the risk of responding for
resulting injuries if he does not. For juristic purposes this
liability was reconciled with the doctrine of no liability without
fault by the fiction of representation. The employee was the
agent of the employer and his fault was the employer's fault.
Taking this fiction at its face value, it was easy to argue that
the fellow -servant rule arbitrarily exempted the employer from
a just liability. Yet no one who has looked into the subject
critically has been deceived thereby. When in the nineteenth
century the connection of liability and fault became a settled
article of the juristic creed, all the historical common-law lia
bilities without regard to fault were re-examined judicially and
for a time there was a strong tendency to limit them . Thus
liability for injuries by trespassing animals was limited in Cor
v . Burbidge and more than one American court requires
culpability or knowledge of a vicious propensity in such cases.3
One American court went so far as to require culpability even
where there was a known vicious propensity in case the animal
escaped in a way not reasonably to be anticipated.* The limita
tion of employer's liability by the fellow -servant rule was a
part of this movement. The courts did not arbitrarily set up
an exception to a fundamental principle of justice. In the com
promise between individual free activity and the general
security they had established a liability for fault of employees
irrespective of the fault of the employer, a doctrine so far from
See Burdick, " Is Law the Expression of Class Selfishness?" 25 Harvard
Law Rev. 349 ( 1912 ) .
* 13 C.B. , N.S. 430 ( 1863 ).
* Bischoff v. Cheney, 89 Connecticut Reports, 1 ( 1914) ; Peterson v . Cor
lan, 18 North Dakota Reports, 205 ( 1909 ).
*De Gray v . Murray, 69 New Jersey Law Reports, 458 ( 1903 ).
 THE EVIDENCE 109

for a time their example had a controlling influence. Presently

the exigencies of the general security led courts to adopt the
rule in several jurisdictions where the question remained open .
One may not be so sure that it has been rejected decisively in
America as he might have been a generation ago. At any rate
the marked revival of the influence of Rylands v. Fletcher in the
United States since 1896 cannot be attributed to an increasing
influence of land owners, for the last federal census has estab
lished that the balance of population as well as of economic
power has passed definitely from rural and agricultural to
urban and industrial America.
May it not be that Rylands v. Fletcher, decided in 1867, is a
part of the movement which Dicey has called collectivism ,
which, he tells us, began to be manifest in 1865 ? If so , it
marks a reaction from the doctrine that liability is to exist only
as a corollary of culpability. It subjects the land owner to a
liability at his peril, in the interest of the general security.
Naturally such a doctrine was announced first in England — in
a crowded country where the general security is ever an obvious
interest. Naturally also it was received with caution and was
rejected for a time in America, where pioneer ideas, appropriate
to a less crowded and primarily agricultural country, lingered
to the end of the last century. In other words, if the back
ground of the doctrine is in a sense economic, it is not the
background of class conflict which has been pictured but is a
gradual change in the economic situation, exerting an indirect
and gradual and intermittent pressure through a slow alteration
in the picture of the end of law which the courts have had before
them .
A stock argument for the economic interpretation is derived
from the rules of the common law with respect to injuries
through the fault of a fellow servant and the doctrine of as
sumption of risk. These have been pronounced flagrant ex
amples of judicial law-making in the interest of employers and
in the teeth of legal principle. But those who make this assertion
so confidently take the dogmatic fiction of representation of
employer by employee for a premise. They assume that it is
Dicey, Law and Public Opinion in England , 250 ff. ( 1905).
108 THE ECONOMIC INTERPRETATION
turn while he was writing and in the past decade three courts
have accepted it while but one has rejected it. Moreover, when
we look at the jurisdictions which adopt and those which reject
the doctrine, it appears at once that they may not be classified
upon an economic basis. The Supreme Court of Massachusetts
followed the rule in Rylands v. Fletcher in 1871.' It was adopted
by the Supreme Court of Minnesota in the following year.?
After an interval in which courts had been rejecting it, the rule
was followed in Ohio in 1896, in West Virginia in 1911 , in
Missouri in 1911 and in Texas in 1916.3 It was rejected in New
Hampshire in 1873, in New York in 1873, in New Jersey in
1876, in Pennsylvania in 1886, in California in 1895 , in Ken
tucky in 1903 and in Indiana in 1911.4 Agricultural states and
industrial states, states with appointed judges holding for life
and elected judges holding for short terms are to be found on
each side. Nor may we explain the decisions in terms of sectional
differences. In New England, Massachusetts and New Hamp
shire are on opposite sides. In the middle west, the adjoining
states of Ohio and Indiana disagree. In the south , the adjoining
states of West Virginia and Kentucky are on opposite sides.
The Massachusetts court, where the question first came up in
the United States, followed English authority without inde
pendent investigation. In New Hampshire, Chief Justice Doe,
one of the great judges of the last century, was not willing to
go upon mere authority and rejected the rule as running counter
to the principle that liability must be based upon fault. The
courts of New York and New Jersey, which have been most
nearly consistent among American courts in applying the
doctrine of no liability without fault, took the same side and
* Shipley v .Associates, 106 Massachusetts Reports, 194.
• Cahill v . Eastman , 18 Minnesota Reports, 255.
• Defiance Water Co. v. Olinger, 54 Ohio State Reports, 532 ; Weaver
v . Thurmond, 68 West Virginia Reports, 530 ; French v. Manufacturing Co.,
173 Missouri Appeal Reports, 220, 227 ; Texas R. Co. v . Frazer ( Texas
Court of Civil Appeals ), 182 Southwestern Reporter, 1161 .
* Brown v. Collins, 53 New Hanpshire Reports, 442; Losee v. Buchanan ,
51 New York Reports, 476 ; Marshall v. Welwood, 38 New Jersey Law Re
ports, 339 ; Pennsylvania Coal Co. v. Sanderson, 113 Pennsylvania State
Reports, 126 ; Judson v. Giant Powder Co., 107 California Reports, 549 ;
Owensboro v. Knox, 116 Kentucky Reports, 451 ; Lake Shore R. Co. v. Chi
cago R. Co., 48 Indiana Appellate Court Reports, 584.
 THE EVIDENCE 107

ter than I whether Sir Leicester Deadlock or Mr Podsnap or

Josiah Bounderby of Coketown is to be taken as standing for
the dominant class in England in 1867. However that may be,
a judge who played the leading part in the final judgment in
Rylands v. Fletcher rose to notice at the bar as a commercial
lawyer and one must pause before asserting of him that com
merce and manufacture were unimportant in his eyes. Nor may
we say in other connections that American judges have attached
less sanctity to the proprietary rights of land owners than Eng
lish judges, or have inclined to deviate from the policies of
English law in which land is assumed to be a permanent acquisi
tion, held for enduring purposes, while chattels are assumed to
be held for use and exchange. In American pioneer communi,
ties there was always a time when town lots were the chief sub
ject of commercial activity and men sold and re-sold lots and
speculated in them after the manner of speculation in shares of
stock in commercial centres . But no American court in such an
environment ever dreamed of departing from the traditional
view and refusing to enforce specific performance of aa contract
to sell a town lot, although there were a hundred like it in every
particular to be had in the real-estate market at a moment's
notice, and its unique character was a transparent dogmatic
fiction. Again, few things in Anglo -American law are more in
convenient than the arbitrary lines between real property and
personal property, running throughout the law, prescribing
distinct rules as to descent and distribution, making a sale of
land subject to one set of doctrines and a sale of chattels subject
to another, and leading to many collateral consequences. Eng
lish legislation has made inroads upon the common law in this
respect. But no American court, however much land may have
been a liquid asset in its jurisdiction, ever thought of holding
the common -law attitude toward property in land inapplicable
to local conditions.
Even more significant is the course of American decision
since Professor Bohlen's paper was written. He wrote after
forty years of American discussion of the subject seemed to
have established that the doctrine of Rylands v. Fletcher would
not be followed in the United States. But the tide began to
106 THE ECONOMIC INTERPRETATION

a pioneer country whose natural resources are under exploita

tion. In the former courts will be likely to think in terms of
preserving existing wealth. In the latter they will think in
terms of " permutation of opportunity into wealth.” ? This is
sound and might be generalized by saying that in the endeavour
of courts to decide upon principles of reason , they draw an
ideal picture of the social order with which they are familiar
and find therein the designs of reason which they take to be the
plan of the law. But the argument proceeds in a way that is
more doubtful. In England, we are told, the landed gentry were
the dominant class, and the judges, drawn therefrom or asso
ciating therewith or hoping to establish themselves or their
families therein, reflected the opinions of that class. “To such
a class,” we are told, “ it is inevitable that the right of exclusive
dominion over land should appear paramount to its commercial
utilization — to them commerce and manufacture, in which they
had little or no direct interest, appeared comparatively un
important.” On the other hand, it is said, America was settled
for the most part by the commercial and artisan classes. It is
said that the whole Puritan movement was a revolt against the
social and political conceptions of the landed aristocracy, and
that inbred class instinct led the American farmer, himself a
land owner, not to attach the same sanctity to proprietary rights
as were attached to them by a caste which for generations had
lived and governed and thought not so much as men as in the
capacity of land owners. Hence while to English judges "land
is primarily a private domain, an estate from which the owner
derives his power and dignity, within which he must be supreme
and undisturbed by intrusions,” to American judges "land is a
possession , an asset
»
to be utilized for the economic advantages
of the possessor.” 2
There can be no question of the ingenuity of this account of
Rylands v. Fletcher on the one hand and, let us say, the rejection
of the doctrine by the courts of Pennsylvania on the other hand.
But let us consider a few points in more detail. You know bet
1 “ The Rule in Rylands v. Fletcher, ” 59 University of Pennsylvania Law
Rev. 298, 318.
' Id. 318-320.
 THE EVIDENCE 105

mechanical application to reasoned individualized application ;

from authority qua authority to authority resting upon reason
and justice; and of the later counter -movement to organize
and systematize the elements taken into the law during the
former process. The moral unit was morally responsible for
culpable conduct. Hence the legal unit, identified with the
moral unit, should be liable on the same basis. Such was the
creative idea. There must be a universal principle of liability
by which all cases might be measured and upon which all rules
might be strung, and this principle was responsibility for
culpable causation. Such was the organizing and systematizing
idea of the nineteenth century. Exactly the same process of
absorption of moral conceptions and putting them to creative
use, followed by a making them over into principles of organiza
tion and systematization, may be seen in the Roman law in the
transition from the strict law to the juristic law under the in
fluence of natural law in the earlier empire and thence to the
maturity of legal system from Diocletian to Justinian. It may be
seen in Continental Europe in the transition from the Com
mentators to the law-of-nature school and thence to the codified
law of the nineteenth century. No doubt these things go along
with movements of civilization and the economic changes
involved therein. But before one may interpret particular
items thereof in terms of class conflict and self-interest of the
dominant class in society in a particular time and place, he
must look into the relation of those items to the development
of the whole body of the law as well as analogous phenomena
in other systems in like stages of legal development, although
as like as not under quite distinct social and economic conditions
and with distinct problems of class conflict.
A more sober argument, more critically carried out and with
more truth behind it, may be seen in Professor Bohlen's exposi
tion of Rylands v. Fletcher and the refusal of American courts
a generation ago to receive the doctrine of that case as a part
of the common law. He says rightly that liability without re
gard to fault for things done or maintained upon land will
appeal differently to judges in a highly organized society whose
natural resources have been fully developed than to judges in
104 THE ECONOMIC INTERPRETATION

table jurisdiction as they do today about the large summary

powers we are confiding to administrative boards and commis
sions. Third, all discretion ran counter to Puritan religious
ideas, no matter what the social or economic position of the par
ticular Puritan. Men were to be with one another, not over one
another. There was to be a government of laws and not of
men. The individual conscience was to be guided and per
suaded by good laws, made in advance, giving light to the indi
vidual at the crisis of action, not coerced by administrative
tribunals acting according to the notions of those who sat there
in is to what equity and good conscience might require in a
particular situation. These things are not to be explained
merely in terms of the self-interest of social classes in England
in the sixteenth and seventeenth centuries.
In its beginnings the common law, like the Roman law in the
same stage of development, imposed liability upon one simply
because he or that which he protected had acted and the action
had brought about injury. In the seventeenth century we see
signs of a change, and in the nineteenth century it was an ac
cepted juristic doctrine that one is liable not for causation as
such but for culpable causation and that the culpable mind is the
decisive element. This development also has been vouched as
establishing the economic interpretation in terms of class inter
est. But those who so argue must explain much more than they
have taken into account in their argument. For the develop
ment of a theory of liability is but an item in a series of closely
related changes in which the strict law was made over by ideas
of equity and natural law and later the legal system crystallized
and became rigid once more in what may be called the maturity
of the common law. Responsibility for culpable causation,
superseding liability for all causation of injury, is but a part of
the movement from the legal person as the legal unit to the
human being as a moral unit and hence a legal unit ; from form
to substance ; from regard only to the outward to regard chiefly
for the inward ; from rules to principles and standards ; from
* E.g. the “Replication of a Serjeaunt at Law” to Doctor and Student,
Hargrave, Law Tracts, 325.
* Massachusetts Bill of Rights, $ 30 ( 1780 ).
* See note 4 , ante p. 100 .
 THE EVIDENCE 103

penal bonds and allowed redemption of mortgaged property,

if his jurisdiction was the expression of the self-interest of the
moneyed class as against the strict law which represented the
self-interest of the land owners. For the latter were borrowers,
not lenders. Also it may be asked whether the breakdown of
ecclesiastical jurisdiction which had divided the field of adminis
tration of justice not unequally with the king's courts should
not be put in the scale. Which was most active in limiting and
then breaking down this jurisdiction, the feudal aristocracy or
the rising moneyed class of the towns ?
In truth we cannot tell such complicated stories in such simple
fashion. When we seek to explain the opposition of the com
mons to the court of chancery in the fifteenth and sixteenth cen
turies we must note some analogous phenomena. Not to go
outside of Anglo -American law, we must compare the opposition
of the Commonwealth, which certainly did not represent the
feudal aristocracy, to equity, which it sought to abolish , the
opposition of the Puritan to equity in America ? and Jefferson's
opposition to a later liberalizing of the law through what he
called “ Mansfield's innovations.” 3 Three factors in such phe
nomena are not to be ignored . In the first place new institutions
were involved which men did not understand and of which in
consequence they were suspicious. Apart from solicitude for
stability and the general security, there is a special reason for this
in the case of lawyers which more than once has led them to
stand out for traditional methods and rules of art against every
sort of pressure. They are not willing to give up a technique
which they know thoroughly for a new one of which they have
had no experience, and easily find arguments against doing so.
Secondly, men were rightly jealous of wide magisterial discre
tion. There was no system of equity. There were no settled
principles governing the exercise of discretion , as there are to
day. Hence lawyers might well feel about extensions of equi
Parkes, History of the Court of Chancery, chap. 8 .
* See Quincy's Reports (Massachusetts ) , 538 ff. As to other colonies, see
Fisher, " Equity in Pennsylvania ,” Select Essays in Anglo -American Legal
History, 11, 810 ; Wilson, " Chancery in the Colonies," id. 779 .
' Letter of Jefferson to John Tyler ; Tyler, Letters and Times of the
Tylers, I, 35.
102 THE ECONOMIC INTERPRETATION

one left its mark on the public law of the modern world while
the other proved transient. The Middle Ages thought of
justice and right in fixed theological terms and conceived them
as above and beyond all action of sovereigns. Such ideas
coloured and gave direction to special movements that may have
had economic origins. The ethical interpretation sees only the
former ; the economic interpretation sees only the latter. If we
must choose, the ethical interpretation often has more for us.
But the argument breaks down in any event in its version of
the Statute of Westminster II.1 The legal order was entering
on a stage of strict law . Men were fearful of latitude in pro
cedure . If English law was to be systematized and developed
logically, as men saw had happened with the Roman law , the
issuance of writs must be reduced to a system . Accordingly
lawyers sought to cut down the wide discretion of chancery in
this respect and the judges were carrying out the spirit of the
statute when they understood it as they did. Blackstone looked
back at it through eighteenth - century spectacles and saw a
modern problem of unshackling procedure where the problem
of the thirteenth century was to tie it down.
Again, take the argument from the rise of the Court of
Chancery. We are told that in the class contest, which took the
outward form of a contest between the king and the barons,
when it had proved impossible to liberalize the law through the
common-law courts, the king turned to his council and began
to deal with causes directly through the council or committees
thereof, thus giving rise to a new type of courts. The most
effective weapon developed by this type of tribunal was the
writ of subpoena. So " whenever the gentry could control the
House of Commons they petitioned against the prerogative
courts and clamoured for aa return to the common law .” But the
process went on. “ Thus," we are told, " the Chancellor . .

became ultimately the vent through which the energy of the

growing power of capital found expression .” ? It may occur to
you to ask why the Chancellor should have relieved against
* See Maitland, Equity and the Fornas of Action at Common Law , 345–
346.
2
Centralization and the Law , 34.
 THE EVIDENCE IOI

" if justice could be sold to the highest bidder, their days were
numbered.” Hence they exacted a promise from John that he
would not sell justice and later insisted that the chancellor
should sell no new writs but should adhere to ancient usage.
But the volume of business in the king's courts became such
that the king's business could not be done with the existing
writs and parliament undertook to provide a remedy through
the Statute of Westminster II. The landed gentry were too
strong for the king. The judges fell " under the influence of
the great magnates of the time, as judges will, ” and the statute
achieved little.1
You will have perceived that the argument is based on Coke's
and Blackstone's version of the Statute of Westminster II and
the judicial interpretation thereof. Much of it must fall if that
version fails. Nor does it take account of related phenomena
which must be reckoned with in any interpretation. Down to
the thirteenth century we are at most in a stage of transition to
the strict law. Hence law is fluid and at times much depends
upon the wilful personality of the king. But Henry II was by
instinct a lawyer and Glanvill's book, based on writs, shows
that in the twelfth century the lawyer was at work upon them,
seeking to put system into them and to make a strict law out
of a mass of legal materials that had developed more or less
haphazard. In other words, a conscious endeavour for some
thing not dependent on will and resistant to class interest and
class influence must be recognized. Also we must remember
the medieval conception of law as an immemorial custom and
that the king was bound by the law. Nor may we forget that
aristocracies have always stood firmest for individual liberty
because, it may be, the aristocrat, in the heyday of an aristoc
racy, is apt to have a vigorous personality and to think in terms
of individual self -assertion. Accordingly if we compare the
provisions of Magna Carta with the statutory special privileges
of soldiers under the Roman empire, we shall see a significant
difference. In the former concrete propositions are put as
universal rules of general application. In the latter there are
no more than arbitrary special rules. It is no wonder that the
* Centralization and the Law , 31-35.
100 THE ECONOMIC INTERPRETATION

further than Markby along the same path and in his casting
out the science of legislation he but goes to the end of the path
laid down in Maine's Early History of Institutions."
When we turn to the proofs adduced in support of the
economic interpretation, we shall find that usually the chief
reliance is upon penal legislation of little permanence and
relatively little effectiveness in the actual ordering of society or
the every -day administration of justice. It is an interpretation
of the least enduring and least effective materials of the legal
order. But some American adherents of the doctrine have
sought to establish it by examination of the doctrinal and
institutional history of the common law and their arguments
must be looked into more in detail. Brooks Adams vouches the
history of the common -law writs from the Norman kings to the
Statute of Westminster II and judicial interpretation thereof,?
the history of the rise of the Court of Chancery 3 and the rise
of the nineteenth -century doctrine of liability as the corollary
of culpability.* Professor Bohlen has interpreted the doctrine
of Rylands v. Fletcher and its history in America with much
ability and ingenuity in terms of economics." Professor Wyman
has suggested a like interpretation of the development of a
law of public utilities . President Wilson interpreted the
common law as to injuries by the fault of a fellow servant and
assumption of risk along the same lines.? Let us consider some
of these and ask ourselves how far the case has been made.
As Brooks Adams sees the history of the common -law writs,
the king at first, when he wanted aa writ for any special purpose,
" ordered one to his liking ... and a clerk in chancery wrote
it. ” Presently this making of writs to order, as it were, became
9

a potential source of revenue and the barons objected because

* Maine, Early History of Institutions, Lecture 12 ( 1874), 4th ed., 344
345.
Centralization and the Low , 31–35.
• Ibid.
" The Modern Conception of Animus," 19 Green Bag, 12.
" The Rule in Rylands v. Fletcher, " 59 University of Pennsylvania Law
Rev. 298 ( 1911 ) .
• Public Service Companies, 1, $$ 1-14 ( 1911 ) . See also Wyman, The
Control of the Market, i ( 1911 ).
"The New Freedom , 14-15 ( 1916) .
 THE ANALYTICAL TYPE 99

are Mackeldey and Hugo ; and Kant's writings on the philoso

phy of law and morals are included . The edition of Hugo's
Encyklopädie which he used 1 is purely Kantian on this subject
and in the edition of Mackeldey which he used ( for later
editions are tinctured with the ideas of the historical school) the
distinction between natural law and positive law is stated in
Kantian terms. Thus we might expect that Austin's views as
to the relation between law and morals would be much influenced
by Kant. In fact they are Kant grafted on Bentham. Each
of the two elements of Brooks Adams' doctrine is indifferent
to ethics.
Historical jurists developed the reaction from the identifica
tion of law and morals in one direction by a doctrine which at
least implies that the science of legislation is unnecessary.
Austin developed it in another direction by a rigid separation of
jurisprudence from ethics. The law as given was to be studied
analytically and the function of the jurist and province of juris
prudence went no further. Yet Austin conceded that there was
a science of legislation, resting upon utilitarian ethics. The
positivists, taking the position of the historical school, though
for other reasons, eliminated the science of legislation and its
ethical foundation. On the one hand they were attacking the
" supernatural" as something intervening in the course of
natural phenomena. On the other hand they were attacking
the idea of " chance” and insisting that all phenomena but
manifested the regular and orderly workings of exact laws.
Ethics was under suspicion because of its possible relations to
the one bogie. Legislation in Coke's sense was under suspicion
because of the relation of a theory of parliamentary omnipotence
and sovereign will to the other bogie. Coming to their mechan
ical- positivist jurisprudence, some from the analytical school
and some from the historical school, the American adherents
of the economic interpretation carried forward the two sides
of the reaction against identification of law and morals to their
conclusion . In his zeal against ideas of right and justice and
confusion of law and morals, Brooks Adams but goes a bit
* 7th ed. ( 1823), p. 9.
Lehrbuch des römischen Rechts, 7th ed ., $ 2 ( 1827 ).
.
 IC ETATION
98 THE ECONOM INTERPR

formal juristic analysis we speak of a sovereign. When we look

deeper we must speak of an economic conflict. Where Austin
pictures a sovereign issuing commands on the basis of utility,
Brooks Adams would have us see a dominant class issuing
commands, through the mask of the legal order, on the basis
of its self-interest. Benthamist utilitarianism has been replaced
by mechanical positivism. The ethical element latent in Austin
has been wholly excluded. There is no need of Bentham's
science of legislation whereby the sovereign may know how
to command what utility requires. The socially and eco
nomically strongest will get their own way and juristic science
can do no more than observe this law and verify its workings in
the phenomena of administration of justice.
In this respect the economic interpretation carries to an
extreme the separation and exclusion of the ethical element in
juristic thought which began in analytical jurisprudence with
Bentham as a reaction from Blackstone and in the historical
school with Savigny as a reaction from the identification of law
and morals in the philosophical jurisprudence of the seventeenth
and eighteenth centuries. Austin's successors have urged that he
made a great advance upon Bentham in that, whereas Bentham
classified the science of legislation under jurisprudence,
Austin showed that jurisprudence had nothing to do with ethics
and hence nothing to do with legislation — that Austin had first
grasped decisively the distinction between law and morals.1
These writers also were protesting against the identification of
law and morals, with its implication that moral validity is the
criterion of the legal obligation of positive law, as it survived
in legal institutional text-books in the 2nineteenth century.
Austin studied at Bonn under Mackeldey ? and thus came in
contact with Kant's rejection of the identification and Kant's
conception that instead of eternal precepts of actual law there
were but eternal principles of making law by which the actual
precepts might be criticized. In the collection of books which
3
Austin left at his death the significant institutional treatises
1
E.g. Markby, Elements of Law , 4th ed., & 12 ( 1889 ) .
3
• See Mrs Austin's sketch in Austin, Jurisprudence, 4th ed., 1, 5-6.
Austin , Jurisprudence, 4th ed., I, ix - X .
 THE ANALYTICAL TYPE 97

and rules of art but particular precepts for conduct, enacted

or judicially applied, which might be traced to the self -interest
of an economically and hence socially dominant class, making
itself felt through pressure upon legislator or judge and giving
rise to or moulding statute or judicial pronouncement. They
might agree with the historical jurist that these formulations
as such were relatively unimportant; that they were but appear
ance and that reality was in the background. But they could not
admit that the reality in the background was something, already
law, which was there waiting to be discovered and formulated .
To them the reality was something that operated upon law
maker and judge and dictated their utterances, not something
for which they were searching and from time to time were able
partially to uncover. “ The Sovereign being only a vent or
mouthpiece,” says Brooks Adams, “ the form the mouthpiece
takes or the name given to it is immaterial.” 1 The political in
terpretation and institutional legal history interpret illusion .
“ The dominant class . . . will shape the law to favour them
selves and that code will most nearly approach the ideal of justice
of each particular age which favours most perfectly the domi
nant class.” ? That is, the ethical interpretation and doctrinal
legal history also interpret illusion. "The law has been molded
by . . . the self-interest of successive dominant classes . .. as
.

they have risen to power. These dominant classes have named

the judges who ... have made and interpreted precedents.
They also have controlled legislatures and have passed statutes to
effect their purpose when the courts could not do their bidding.'
It will be seen that Brooks Adams puts economic determinism
behind English analytical jurisprudence. Law is made by a
sovereign or is recognized and applied by the organs of a
sovereign . But in so making or recognizing or applying it
they but register the self-interest of the dominant class as it
is inevitably determined by economic laws. For purposes of
' Id. 63.
* Id. 63-64. “ Upon conditions that the ruling class finds profitable to
its aims and advantageous to its power, are built codes of morality as well
as of law, which codes are but reflections of those all-potent class in
terests.” Myers, History of the Supreme Court of the United States, 8.
2

* Brooks Adams, “ The Modern Conception of Animus,” 19 Green Bag,

12, 17 ( 1907 ) .
 ION
MIC INTERPRETAT
96 THE ECONO

conflict between centrifugal and centripetal force, is the will of

a sovereign . Both the law and the orbit are necessities.” 1
Neither, he says elsewhere, has any relation to an idea of right
and justice . The earth's orbit is an inevitable product of
physical forces ; the law is an inevitable product of economic
forces. The mode of thought here is familiar. All that is new
is the name and dress of the relentless ultimate cause which the
jurist may recognize but may not swerve from its course.
Nothing, says Hegel, has power against the march of the spirit.
In contrast with the absolute power of the people whose natural
principle represents a stage in the self-developing world spirit,
" the spirits of other peoples are void of power .'» 8 " What you
have as a scientific fact," says an American exponent of the
economic interpretation, " is an automatic conflict of forces
reaching along the paths of least resistance a result favourable
to the dominant energy." 4 " The law being, ” he says elsewhere,,
" the resultant of the forces in conflict, must ultimately be
deflected in the direction of the stronger and be used to crown
the victor." In Hegel's words, nothing has power against the
march of the economic law. In contrast with the absolute power
of the class whose social dominance represents a stage in the
self-developing economic law, the self-interest of other classes
is void of effect. And yet those who spoke thus affected to have
dispensed with philosophy and to have outgrown metaphysics
as a mere stage in the inexorable course of development of
human thought.
Much of the evidence upon which the adherents of the
economic interpretation have relied was drawn from legislation.
Hence the dogma of the historical school, that law might be
found but not made, was less adapted to their conception than
the dogma of the analytical school that law was the command of
the sovereign, or, in its later form, a body of rules recognized
and enforced by the judicial organs of the sovereign. The part
of the law which appeared significant from the standpoint of
their interpretation was not the traditional modes of thought
* Brooks Adams in Centralization and the Law , 23 (1906) .
' Id . 35 . * Grundlinien der Philosophie des Rechts, $ 347.
* Brooks Adams in Centralization and the Low , 35.
' Id. 133 .
 TYPES OF THE INTERPRETATION
95

between any of them and communist socialism or, indeed, any

socialism . The third has been urged by some American teachers
of law who are staunch upholders of the traditional common
law and of the social order which it postulates.
We need pause but a moment over the idealistic type. In
place of the ethical idea ( right ) or the political idea ( freedom )
or the ethnological idea ( race spirit or race character ) or the
biological idea ( natural selection ) it put an economic idea - an
idea of the satisfaction of material wants. Thus, as Croce aptly
puts it, the idealistic economic interpretation was the “ Hegelian
left,"
. i History was interpreted not in terms of man's ethical
life as a moral entity, nor in terms of his political life as a
political animal, but in terms of his economic life. History was
the march in the world of an idea of economic activity to satisfy
man's economic wants. Hence all legal history was economic.
It was a “history of wants and of labour.” 2 Obviously all that
has been said of the method of the idealistic interpretations of
legal history applies here also. We are not required to choose
one of them . At most the question for us today is as to the
relative size of the core of truth which we must concede to
each. As that core, whatever it may be, is common to all forms
of the economic interpretation, we may defer looking at it until
the other types have been characterized more fully.
Only a matter of emphasis distinguishes the mechanical or
positivist sociological type from the economic phase of the
ethnological interpretation. Indeed this type commonly runs into
or is developed in connection with some form of ethnological
or biological interpretation. Its distinguishing mark is reliance
on the analogies of physics rather than on those of biology and
a thinking of race character in terms of economic environment
and economic development rather than psychologically. Thus
we are told by an exponent of this doctrine that “ law is a resul
tant of forces which arise from the struggle for existence among
men .” “ It is,” he adds, “ the will of 2 sovereign precisely in
the sense that the earth's orbit, which is the resultant of a
' The Philosophy of Hegel, 201-202 ; Storia della storiografia Italiono nel
secolo decimonono, II, 218.
Croce, Riduzione della filosofia del diritto alla sofia dell'economia
( 1907 ) .
94 THE ECONOMIC INTERPRETATION

derivatives. The other element, however, tended to correct this

and to compel a fresh examination of all the evidence, including
much which had been ignored, in an endeavour to find economic
laws. 1
An evolutionary version of the Marxian idealistic economic
interpretation gave rise to a positivist form which is its second
stage. This begins with Engels ' book on the origin of the family,
of private property and of the state, in 1884. It was carried to
an extreme in the next decade and is represented in an economic
ethnological interpretation of legal history mentioned already
in another connection. It was applied to the history of the law
of property by Loria, one of whose books was translated into
English and exerted some influence in America .? He conceived
of all history in terms of an economic struggle for control of
land and of social evolution as involving successive stages of
slavery, serfdom and payment of rent, leading to an ultimate
freedom of the soil by means of small proprietorships. It was
applied to criminal law by positivist criminologists, who sought
a philosophy of legal history in terms of economic evolution.
Also a special form arose in America from the grafting of a
mechanical- positivist economic interpretation on the orthodox
English analytical jurisprudence. Thus we may recognize three
types of economic interpretation of law and of legal History :
the idealistic form , in which they are interpreted in terms of the
unfolding of an economic idea ; the mechanical-sociological
type, which identifies social laws with economic laws and seeks
to work out a social mechanics and a social physics on economic
lines ; and the mechanical analytical type, which, accepting the
analytical dogma that law is the command of the sovereign ,
conceives of the sovereign as a mere mouthpiece through which
economically determined social forces make themselves heard.
Perhaps one should add that while socialists have commonly
urged the first and second types, there is no necessary connection
' I owe this account of the subject to Croce, Storia della storiografia
Italiano nel secolo decimonono , II , 219–221.
' La teoria economica della costituzione politica ( 1886 ) ; Le basi econo
miche della costituzione sociale ( 1902 ), translated by Keasbey as The
Economic Foundations of Society ( 1907 ).
• In a way this goes back to Godwin, Political Justice, 15-16 , 455-458 ( 1796 ).
 ELEMENTS OF THE INTERPRETATION 93

of French historians of the French Revolution and to his own

experience of the proletarian movement. These materials were
given shape by a material idea, if one may put it so , and thus
treated suggested a new way of understanding history. At first
it was but suggested. In 1859 it was formulated in what be
came an oft -quoted passage, but it attracted little notice for a
generation. In 1885 it began to be urged and it sprang into full
bloom about 1890. It had great vogue in Germany and in Italy
in the last decade of the nineteenth century, when it came to
be applied to every form of history, and it got no less vogue in
America in the decade from 1900 to 1910, the era of Roose
veltian progressivism. In that decade it passed over into
Anglo-American juristic thought and it is still a force to be
reckoned with in jurisprudence, especially in America.
Considered as a general theory of social institutions and of
history, the economic interpretation had two elements. On the
one hand there was an older, metaphysical element. For the
economic interpretation in all its forms proceeds on a con
ception of reality over against appearance, of substance as
contrasted with accident. It postulates a sort of historical god
pulling the threads that cause the puppet actors to move this
way or that and so produce the appearance which we call
history. Prior thinkers had merely misconceived this god. He
was not the " idea " or the " absolute" or the " unconscious."
He was economic. But the conception of history was the same.
It was something moving in a fixed orbit according to a fore
ordained plan toward an ultimate state of perfection. This
terminal state was not ethical ( right) nor political ( freedom ).
It was not biological ( the social organism perfectly adapted to
its surroundings ) . It was economic — a condition of maximum
satisfaction of material wants. On the other hand there was a
newer element in the doctrine, namely, the concrete economic
idea ; the dialectic of the concrete needs or wants of men in
place of the abstract dialectic of freedom . The former element
brought into the economic interpretation the tendency to con
struct history a priori and to ignore facts as not significant,
which is so marked in all idealistic interpretations and their
* Zur Kritik der politischen Oekonomie , iv , v ( 1859) .
 V

THE ECONOMIC INTERPRETATION

In its last phase the search for a single supreme cause of all
legal phenomena turned from ethnology and biology to eco
nomics, a direction in which several philosophical paths at
length converged. One of these paths was idealism, leading to
what has been called historical materialism. Another was posi
tivism, through endeavour to discover economic laws by ob
servation of social and legal phenomena. Still another was
realism , through the so -called economic realism . The hegemony
of the natural sciences in the nineteenth century and consequent
naturalistic conception of the world led to increased attention
to men's physical surroundings, material wants and physical
activities to satisfy those wants. Likewise the problem of the
time has ceased to be political in form , as in the fore part of the
nineteenth century, and had taken on an economic form. The
question of reconciling political freedom with authority, which
had been agitated for a century, was superseded by the so
called social question, consequent upon change from an agri
cultural-commercial to an industrial economy and the rise of
the industrial labourers as a class-conscious group of political
importance urging demands under conditions for which the
traditional legal order made scant provision. Thus a shifting
from the political standpoint to the economic standpoint grew
out of new conditions with which the social sciences had to
deal and of new phenomena which they were required to
explain.
As is well known , economic interpretation 1 began in the fifth
decade of the nineteenth century when Marx applied the
Hegelian dialectic to English political economy, to the theories
* On the economic interpretation generally, see Seligman, The Economic
Interpretation of History, 2nd ed. ; Croce, Materialismo storico ed economia
mar.rista, 4th ed ., translated as Historical Materialism and the Economics
of Karl Marx. For the economic interpretation in jurisprudence, see Leist,
Privatrecht und Kapitalismus im neunzehnten Jahrhundert ( 1911 ) .
92
 BIOLOGICAL INTERPRETATIONS 91

pressure from the outward circumstances of the life to which it

is to be applied.
And yet these interpretations have done something for the
science of law as it is today. They have led us to a wider basis
for philosophy of law. They have introduced thorough study of
primitive social and legal institutions and thus have exploded
many traditional false ideas that had come down from the days
of the state-of-nature theory. They have given added impetus
to the movement for unification of the social sciences by estab
lishing connections with ethnology and anthropology and social
psychology. Most of all they have suggested lines of prepara
tory work that must be carried on before we may achieve an
adequate social theory and hence an adequate theory of law as a
social phenomenon.
90
ETHNOLOGICAL AND

impossible and illegal conditions in testamentary gifts, given

a further analogical development in French law , abolished by
many recent codes, and borrowed by English equity for testa
mentary gifts of chattels while the general rule for other legal
transactions applies to devises of land !-attempt to explain
such things, which are the staple of legal phenomena, by a
principle of class conflict or as resulting from “action and
reaction of men ” or of human desires beyond the lawyer's
desire for logical consistency or his desire to cleave to authority
or his desire to find a principle of reason in which he could
rest, is palpably futile.
Taken as a whole, the various interpretations we have been
considering have three features that account sufficiently for
their failure to maintain themselves. They assume that one
single principle will sufficiently explain ali legal phenomena.
They exclude creative activity and look upon law as something
we may only observe in order to verify hypotheses as to the
principles of its development; as something beyond juristic
power to shape except as the unconscious instrument of in
exorable forces. They consider and seek to account for аa limited
portion of the whole mass of legal phenomena, leaving tra
ditional modes of thought and rules of art and the psychology of
authority and of imitation quite out of account. Nor are they
written around any such cores of truth as made the ethical and
political interpretations so much nearer to reality. In truth these
ethnological and biological interpretations have little for us
beyond two analogies, the analogy of the principles of mechan
ical physics and the analogy of an organism .' The former fails
because social phenomena are phenomena of life. The other and
more plausible analogy fails in that an organism is adapting
itself to environment, or at least is being acted on and shaped
immediately by the pressure of the environment. Law , on the
other hand, is fashioned from without to meet human needs
and wants and desires. True these may arise out of the environ
ment. But law is not adapting itself by its internal power of
response to stimulus nor is it subject to immediate and direct
1
Sce Pound, "Legacies on Impossible and Illegal Conditions Precedent,”
3 Illinois Law Rev. 1 ( 1908 ).
 BIOLOGICAL INTERPRETATIONS 89

the problem of rule or discretion, of application of law, of

juridical method - or when we try it upon particular problems,
such as freedom of contract or freedom of speech, or the clash
of interests involved in present-day industrial disputes, we shall
find that it leaves the most significant phenomena of the
traditional legal materials unexplained and does nothing for us
to help us handle those materials, unless it is implied that we
may hope to do no more than follow Mr Pickwick's maxim
and shout with the larger mob. Indeed attempt to interpret the
rules of English law with respect to border trees and the vacilla
tion of courts between the principle of seisin and the Roman - law
solution, borrowed from Greek philosophy, of asking where the
tree took root; 1 or to interpret the conflict between the same
principle of seisin and the Roman conception of gift as a legal
transaction dependent on intent, which made it uncertain down
to 1890 whether delivery was required in a gift of chattels
2
inter vivos ; ? or to understand the anomalous doctrine as to
* In Roman law if a tree set in the land of Titius takes root in the land of
Maevius it belongs to Maevius ; if it takes root in the land of each it is com
mon property. Inst. 2, 1 , 31. Bracton lays down the Roman rule in the words
of the Institutes, 1569 ed ., fol. 10. In Masters v. Pollie, 2 Rolle, 141 (1620), it
was held that in such a case the tree belongs to the owner of the land in which
it was planted because " the main part of the tree being in the soil of the
plaintiff, the residue of the tree belongs to him also ." In Waterman v. Snper,
i Ld. Raym . 737 ( 1697–8 ), Lord Holt, apparently in ignorance of the prior
decision , ruled that " if A plants a tree upon the extremest limit of his land
and the tree growing extend its root into the land of B next adjoining, A
and B.are tenants in common of this tree.” The reasoning is that of the
Institutes : “ And therefore aa tree planted near a boundary, if it stretch out its
roots into the neighbour's ground also, becomes common property.” Inst, 2, 1,
31. In Holder v . Coates, Moody & M. 112 ( 1827 ) , Littledale, J., when con
fronted with this conflict in the authorities, chose the rule of Masters V.
Pollie.
The Roman rule is taken from the Greek philosophical doctrine of form
and substance and Aristotle's theory of the composition of plants. Hist.
Animal, v, I, Meteorol. iv, 8 ; Sokolowski, Philosophie im Privatrecht, i,
148 ff. Compare the reasoning in Dig. 29 , 2, 9, § 2 and 41, 1, 26, § 1. The
rule announced by the King's Bench in 1620, which finally prevailed , goes
on the idea of seisin. Titius planted the tree and is seised of the trunk,
which is the main thing, no matter where the roots may stray.
I have discussed these cases more fully in “ Juristic Science and Law,”
31 Harvard Law Rev. 1047, 1050–1053 ( 1918) .
' Inst. 2 , 7, § 2 ; French Civil Code, art. 938 ; Baudry -Lacantinerie, Précis
de droit civil, 11th ed. 11 , $$ 803-808 : Schuster, Principles of German Civil
Law , $$ 199-200; Dernburg, Pandekten, 8th ed. 11, § 363, note 2. As to the
common law , see notes 2-5, ante p. 50. I have discussed this subject at
large in “ Juristic Science and Law,” 31 Harvard Law Rev. 1047, 1053–1058.
88 ETHNOLOGICAL AND

not some other and vital " facts " of social existence involved
in a statute imposing penalties upon certain publications, to be
judged with reference to constitutional guarantees of free
speech , over and above the interdependence through division of
labour that is so conspicuous in a modern industrial society ?
And if these are referred to " interdependence through similarity
of interest,” in that we are all human beings, which is to give
way or how are they to be reconciled or compromised ? In truth,
as Croce has observed , these positivist interpretations are apt at
bottom to be Hegelian. The idea of freedom is replaced by an
idea of "the social.” The inexorable law is not progressive
unfolding of freedom as an idea ; it is progressive unfolding of
“ the social” by organization of the social reaction against the
anti-social.
Ethnological forms of the biological interpretation picture a
conflict of race institutions with survival of the fittest. Enough
has been said of such theories in connection with the ethno
logical interpretation as such.
An economic form was urged by Vaccaro , who took legal
institutions and rules and doctrines to be the results of a class
conflict, or series of class conflicts, determined by survival of
the socially fittest. Expressing the needs or desires of the class
which was dominant socially or politically for the time being,
they came into conflict with rival institutions or rules or doc
trines expressing the needs or desires of other classes. Thus
what in political and economic history is class conflict, in legal
history is a conflict of institutions and ideas. As it is easy to
see that Gumplowicz's interpretation in terms of race conflict ?2
is a rationalization of the existing situation in late nineteenth
century Austria, put universally, so it is not hard to see that
Vaccaro's class conflict is aa rationalization of the industrial and
agrarian agitation in Italy, put universally. As we shall see
when we come to the economic interpretation, there is a kernel
of truth in Vaccaro's theory that gives it a certain plausibility.
But when we try it upon the difficult problems of legal science
* Vaccaro, Les bases sociologiques de droit et de l'état ( 1898 ), transl. of
Le basi del diritto e dello stato ( 1893 ). See also Bentley, The Process of
Government, 287 ( 1908 ) .
* Der Rassenkampf ( 1883).
 BIOLOGICAL INTERPRETATIONS 87

that is, with an idea of the maximum of productive efficiency

of an industrial society crowded in a limited area. If the jurist
must wait until agreement is reached as to the ultimate and
supreme social value before he can have a philosophical cri
terion, or must work with a criterion which each may fill out
for himself in this way, it is not unlikely that we may have for
a time a reversion to a personal — one might say an oriental
administration of justice.
Is it not possible that there are social values and that we may
think of conserving or furthering them so far as we may and
with least sacrifice of them as a whole, even if we cannot agree
on the one single ultimate social value ? May we expect to weigh
all the demands and desires of men in society with one weight ?
Economic claims, moral and religious claims, cultural claims,
the claims of the individual spiritual life - may we expect to
unify these for juristic purposes and say that all things legal
shall be judged by the common denominator ? May not an act
run counter to one social value and yet further another, and is it
not precisely this circumstance which gives difficulty in such
cases as freedom of the press and free speech , where we have on
the one side a social interest in the security of social institutions
and on the other aa social interest in general progress, of which
free individual thinking and speaking and writing have always
been a prime agency ? 1 What seems anti -social from one stand
point does not seem anti -social from another. If it is meant that
the test is what is anti - social in the result, that is, what is anti
social after weighing these interests against one another or after
seeing how far they are infringed respectively and how a com
promise may be made, the formula is of little use. The “ simple
question” put is too simple. So also as to the "precept to
conform oneself to facts ." What Duguit means is that the
picture before us in developing and applying legal materials
shall be an exact design of social interdependence through divi
sion of labour, a verifiable phenomenon, not some speculative
plan. But which shall we say conforms to this exact blue-print
plan, merger of contingent remainders or the reverse ? Are
* See Chafee, Freedom of speech ( 1920 ) ; Liberty of Speech, Papers and
Proceedings, American Sociological Society, vol. 9 ( 1914 ).
 PRIMITIVE LAW-GIVERS 125

Justices 1? was executed merely as a series of superficial but

entertaining biographies, and his anachronistic method of writ
ing history — as, for example, in writing an eighteenth -century
charge to a jury for a chief justice in aa trial for treason under
Edward IV2_has created prejudice against the whole method.
Moreover legal history began to be written on a large scale in the
nineteenth century and so under the influence of Savigny and
also and chiefly of Hegel. Hence, it came to be written some
times avowedly and sometimes unconsciously in terms of ideas,
not of men. Yet Lord Campbell's instinct, as a lawyer and
judge who had been at work for more than a generation in the
laboratories where law was making and had seen and experi
enced the part that men and their characters and personalities
played in the work done in those laboratories and in fashioning
their output - Lord Campbell's instinct was sound. We cannot
think of lawyers and judges and legislators merely as the passive
instruments of ideas. We must recognize that great minds and
masterful personalities will at least help to explain many things
in legal history.
Something not unlike the great- lawyer interpretation may
be seen in current thinking about law in two stages of legal
development, namely, in primitive law, the fluid stage before
the strict law, and in the stage of equity and natural law, the
fluid stage that succeeds to the strict law. In primitive law the
body of legal precepts is frequently attributed to a god or to
a divinely inspired prophet or sage or the whole body of legal
and political institutions is attributed to some one law -giver.
Thus the Hebrew law was attributed to Moses, the laws and
institutions of Sparta were ascribed to Lycurgus, Roman legal
and political institutions of a military character were referred
to Romulus and those of a religious character to Numa. No
doubt in part this is an attempt to put symbolically the sacred
ness of law or the antiquity and authority of the custom on
1
1 “The history of the holders of the Great Seal is the history of our con
stitution as well as of our jurisprudence.” Lord Campbell, Lives of the
Lord Chancellors, preface to first edition, p. v ( 1845 ).
* Lives of the Chief Justices, I, 149–150.
" A convenient discussion of this may be found in Kent, Israels Lows
and Legal Precedents ( 1907 ).
126 THE GREAT-LAWYER INTERPRETATION

which the general security rests. No doubt also it is connected

with an instinctive human tendency to see a personality like
ourselves behind all phenomena; to find a malignant spirit
behind those events of nature that thwart or injure us and a
beneficent spirit behind those which further or satisfy our
desires. This tendency remains strong among men despite
education and science. In the conduct of legal and political
institutions the common mode of thought is to find some one
good man behind the doing of things well and some one bad
man behind the doing of things ill. Our political institutions
involving personal competition between political leaders further
this. But it is innate and persistent. With all allowances for
such causes, however, it is significant that attributing of law to
definite conscious human law-givers belongs to the two stages
of vigorous creative activity. For in the classical period of the
Roman law we find the same idea, partly, perhaps, as something
handed down from an earlier stage of legal development , but
asserted by men who were subjecting everything to the test of
reason.1 Also we find it well marked in the analogous stage of
modern law , the hegemony of the law -of-nature school in the
>

seventeenth and eighteenth centuries. The wise law-giver who

discovered the dictates of reason, formulated them for his
people, and enacted them as a code, was the favourite theme
of the legal historian of that time. On the other hand in the
strict law and in what I have called the maturity of law, legal
history is interpreted not in terms of creation but in terms of
authority ; in the strict law in terms of authority as such , in the
maturity of law in the nineteenth century in terms of historical
or metaphysical or observed and verified authority in the form
of an idea or a law of development.
In other words, interpretation in terms of creative activity
* E.g. in the sketch of Roman legal history by Pomponius in the Digest,
the fixed forms of legis actiones are ascribed to the Decemvirs ( Dig. 1 , 1,
2, 8 6 ) ; Sextus Aelius is said to have “ composed additional forms” (id. §
7 ) ; it is said that Labeo "undertook to make a good many innovations”
( id . & 47 ) .
* " Just as we are apt to impute the invention of this (the jury) and some
other pieces of judicial polity to the superior genius of Alfred the Great ;
to whom, on account of his having done much, it is usual to attribute
everything.” Blackstone, Commentaries, 111, 349 ( 1765 ).
 CREATIVE LEGAL ACTIVITY 127

belongs to periods of growth by development of new institutions

and by absorption or infusion from without. Interpretation in
terms of authority or philosophical substitutes for authority
belongs to periods of rigidity and stability. The writing of
legal history remained Hegelian long after history-writing at
large had been delivered from the philosophy of history.
Perhaps a Freudian might explain this consistent ignoring of
the creative element, of the element of human action , in the
legal science of the nineteenth century. For nineteenth -century
jurists sought to eliminate the personal element in the adminis
tration of justice. They sought to eliminate all individualization
of application. They put their faith in aa closed system of rules
mechanically developed by inflexible logic and mechanically
administered . It would have been highly inconvenient to
recognize a personal creative element in the origin or operation
of this closed system and in the fashioning and setting up of its
institutions . Hence that element was not seen and the assump
tion of a self-developing legal history was put behind the
assumption of a mechanically self-acting law.
Let us think for a moment in the way which the last century
rejected . Let us think of men striving to do justice, to satisfy
demands, to secure social interests. We are not bound to
believe that they make legal precepts and set up legal institutions
out of whole cloth. Except as an act of Omnipotence, creation
does not mean the making of something out of nothing. Creative
activity takes materials and gives them form so that they may
be put to uses for which the materials unformed are not adapted.
Let us think, then, of men striving to do justice and satisfy
demands and secure social interests by principles of reason , in
order to eliminate the wilfulness and personal caprice which was
a chief menace to the general security in ancient society. Let
us think of them as striving to do these things with the legal
materials that had come down to them , held back by a belief
in authority in some one of its main forms divine, customary,
rational or logical - held back by consciousness that their
action in the course of this striving would be judged by the
opinion of their fellow men or later criticized by a profession
trained in a traditional mode of thought and traditional rules
128 THE GREAT-LAWYER INTERPRETATION
of art, and held back by traditional modes of thought and rules
of art that kept them for the most part within certain limits and
to a more or less fixed technique of treating more or less fixed
materials. Let us think of them as breaking these bonds from
time to time in bursts of creative activity when existing mate
rials would not suffice for pressing demands and the fixed tech
nique proved inadequate to supply new ones. Let us think of
them also as held fast by these bonds in alternating periods of
legal stability, in which, however, growth and creation and inven
tion go on slowly on a smaller scale and within narrower lines.
In the process so sketched , now and then a masterful per
sonality chooses between possible materials in the existing
stock or between possible ways of using them, imposes his
choice upon his generation and thus stamps the materials with
which succeeding generations will work. Or a masterful per
sonality overhauls the traditional modes of thought and rules
of art, the technique with which succeeding generations will
work upon the given legal materials , recasts them to his ideas
or prejudices or temperament , and thus imposes his personal
attitude and his personal character upon the law for a long time
to come. It was in this way that Coke had so enduring an
influence upon our law. As it were, the spectacles through
which we see the traditional materials of the old English law
were made to fit Coke's particular astigmatism . Had the
spectacles been Bacon's, not Coke's, had Bacon's quest for
early professional advancement been successful - as might well
have been in view of his abilities and connections — had he risen
to high judicial office before and not behind Coke and given
direction to our legal development at a critical point, or had his
project for codification been taken up by the king, one has only
to read that project to perceive that the history of our law in
the next three centuries would have looked very different.
A legal history that sees law only as it is expounded in juristic
treatises will give no consideration to such questions. For the
juristic treatise may be compared to a herbarium. In the
herbarium typical forms— that is, forms chosen by the collector
1 " Proposition to His Majesty Touching the Compilation and Amendment
of the Laws of England," Spedding, Letters and Life of Bacon, vi, 61–71 .
 COUNSEL AND COURT 129

because they conform most nearly to a picture he has made

himself — are pressed and dried and classified and an ideal
vegetation is written upon that basis. It helps us to understand
plants undoubtedly. But it falls to pieces as a description of
nature whenever one looks attentively at the facts of nature in
the field . Herbarium species are related to the variety of in
dividual form in nature as the ideal legal conceptions and the
ideal legal institutions of the lawyer's books are related to the
unceasing variety of phenomena that goes on in the actual
administration of justice. Whether or not men count in the
law as set forth in the books, they count powerfully in the law
in action . For the purpose of fixing types and ordering and
classifying and endeavouring to put the phenomena of justice
or some part of them in the order of reason, the jurist must
ignore men. He must think of the legal conception or the legal
precept or the legal principle as the systematic botanist thinks
of the species — in terms of an idea, not as a core of consistency
in a mass of phenomena shading out to a no -man's -land in every
direction. The practising lawyer, on the other hand, knows pain
fully how much depends upon the particular judge on whose
list his case chances to be ; he understands well how much
depends upon who argues a case before a given tribunal ; he
appreciates how much the result hangs upon the personnel of
the appellate tribunal before which a decisive battle of the law
chances to be waged. For the purposes of juristic analysis it
is no matter who argued a case before Vice -Chancellor Shadwell
with which the student of equity must reckon as an authority
to be reconciled or developed in a system of that subject. Yet
a student of the memoirs of contemporary lawyers may derive
light upon a hard point when he notes that the cause was argued
by Sugden or Knight Bruce or Bethell.1
With all its talk of evolution , nineteenth -century jurispru
dence and particularly nineteenth-century mechanical-positivist
jurisprudence was comparable to the biology of specialcreation.
1 " The tyranny which successive leaders exercised over Shadwell would
be inconceivable to those who did not witness it. The carliest of them was
Sugden. ... From him the sceptre passed to Knight Bruce.... He was suc
ceeded as Lord of Sir Lancelot Shadwell's Court by Bethell.” Lord Sel
borne, Memorials Family and Personal, 1, 374–376 ( 1896 ).
130 THE GREAT-LAWYER INTERPRETATION
In each case the fundamental assumption is that all the main
lines had been laid out once for all . There could be nothing
more than relatively trifling variations within the narrow lines
of species created from the beginning. The herbarium belongs
to the Linnaean or pre-Darwinian botany of specially created
species. In the same way the nineteenth -century analytical
jurisprudence, as anything more than an instrument to be used
as one of many instruments, belongs to a pre-evolutionary type
of legal thought. The text-book of analytical jurisprudence is
a legal herbarium .
Creative law-making, inventive activity to devise new in
stitutions, provide new precepts and find new principles, takes
the form of setting up procedural fictions, or later of use of the
wider and more general fictions of interpretation, equity and
natural law ; the form of judicial empiricism , or process of trial
and error or inclusion and exclusion by judicial decision ; the
form of juristic science and the form of legislation. In the case
of many procedural fictions, which were effective to produce
important changes of substance, we know who devised them
and how the exigencies of meeting a special case where existing
legal materials were inadequate moved him to do so. Thus the
actio Publiciana, one of the revolutionary procedural fictions
of the Roman law, bears the name of its author. Again the
history of the curious fiction of American federal procedure,
whereby corporations are permitted to sue in federal courts as
citizens of the state in which they are incorporated , is well
known. It shows a somewhat crude inventive activity on the
*At first it was said that a corporation aggregate could not sue in the
federal courts unless because of the citizenship of the natural persons who
composed it. Hope Ins. Co. v. Boardman, 5 Cranch's Reports ( U.S. ) , 57
( 1809 ) ; Bank of the United States v. Deveaux, id .61; Commercial Bank v.
Slocomb, 14 Peters' Reports ( U.S. ) , 60 ( 1840 ). Next it was held that the
suit " was presumed to be a suit by or against citizens of the state which
created the corporate body" and that no averment or evidence to the con
trary was receivable. Ohio R. Co. v . Wheeler, 1 Black's Reports ( U.S. ) ,
286 ( 1861 ) ; Louisville R. Co. v. Letson, 2 Howard's Reports ( U.S. ) , 497
.

( 1844 ) . At length the courts held that a corporation “ is a citizen of the

state which created it. " St. Louis v. Wiggins Ferry Co., II Wallace's Re
ports, 423 ( 1870) ; Chicago R. Co.v. Whitton, 13 Wallace's Reports, 270
( 1871 ). See Henderson, The Position of Foreign Corporations in Ameri
can Constitutional Law , 39-60. It should be remembered in this connection
that in American legal parlance “ corporation” includes limited companies
formed by agreement under general laws.
 FICTIONS 131

part of judges confronted with a situation in which as the law

stood they could not give effect to claims or demands which
appealed to them as deserving to be secured. Here are creative
devices of far -reaching effect which did not evolve sponta
neously but were deliberately made by known men to meet
definite demands in concrete cases. The idea of equitable owner
ship did not create the actio Publiciana. It was a later juristic
deduction.1
Procedural fictions are succeeded as creative agencies in law
making by thc bolder and more general fictions of interpretation,
equity and natural law. Austin showed long ago that only a
small part of what goes by the name of interpretation is a genu
ine search for the intent of the rule as it was framed. It is be
cause cases arise which were not within the purview of that in
tent that interpretation so -called becomes one of the most difficult
of judicial tasks. When justice must be administered within
the four corners of a rigid code or by means of a body of cus
tomary law which has attained fixity in the stage of the strict
law, the only resource in the absence of legislative revolution,
from which men shrink, is to find by interpretation the needed
rules which the body of existing legal precepts does not provide
but which the court requires if it is to administer justice. The
fiction that a sacred or authoritative text means what it palpably
did not mean or covers what no one had in mind when it was
promulgated, is but a further step in the direction already taken
by procedural fictions. For in this type of interpretation the
thing found was first put into the text and then drawn forth with
an air of discovery. In every stage of legal development this
sort of interpretation has been one of the main resources of
courts and jurists. Restrained by a traditional technique ex
pressed in maxims and canons, both in the Roman lawand in

* The term " bonitary ownership " appears first in the sixth century.
Theophilus on Inst., 1 , 5, 3.
* Jurisprudence, 3rd ed ., 1023-1036. See Pound, " Spurious Interpretation, "
7 Columbia Law Rev. 379 ( 1907 ). Compare: “The power of interpretatio
and formulation placed inthe hands of the Pontiffs was in effect a power
to alter the law by ingenious interpretations. ... There is not much to be
said for the logic of these interpretations, but there can be no doubt of
their utility . ” Buckland, Roman Law , 2.
.Gray, Nature and Sources of the Law , $$ 370–399 ( 1909 ).
132 THE GREAT -LAWYER INTERPRETATION
our own law, it has proved equal to the most refractory materials
of the legal system, and in other bodies of law the most rigid
codes and the most stringent provisions against judicial glossing
or developing of their texts have yielded to it. One need only
refer to such things as the interpretation of the Lex Aquilia,
which in the end made over the whole theory of delictual
liability, or Coke's juristic law -making by interpretation of
Magna Carta and of the statutes of Edward I , in proof of its
creative possibilities. But here again the process is not one that
goes on automatically. It is not a logical unfolding of what is
implicit in the text. In the case of Coke's Second Institute and
the interpretation of English legislation of the thirteenth cen
tury, we know who it was that made a body of law for modern
England and for America on the basis of these crude and some
times oracular texts and why he did so. Coke's purpose was to
prove his case in the contests between courts and crown in which
he was a chief actor. Recent historians who have re-examined
the material in writing histories of the King's Council, the Star
Chamber and the High Commission, assert that he grossly
perverted the texts. Very likely he did for he was a partisan
and an advocate. Undoubtedly he did from their standpoint
because they are asking what the provisions meant to those who
drew them in the thirteenth century for thirteenth -century
England. Coke's problem was what they must be made to
mean if justice was to be done in accordance with them and by
means of them in seventeenth-century England. The fiction of
interpretation enabled him and his contemporaries to believe
that the two things were the same.
Equity and natural law are yet bolder fictions allowing a more
sweeping creative activity. Maine showed this for equity
generally and Langdell and Maitland showed it for English
equity.” The chancellor did not purport to alter the law.
According to the law the penalty of aa bond was enforceable, the
estate of the mortgagee after condition unfulfilled was absolute,
* Usher, The Rise and Fall of the High Commission, 186–187, 191–192,
199–201, 222-235 ( 1913 ) .
Maine, Ancient Law, chap. 3 ( 1861) ; Langdell, Brief Survey of Equity
Jurisdiction, 13 ff. (written 1887) ; Maitland, Equity and the forms of
Action at Common Law , 19 ff. ( 1909 ).
 EQUITY AND NATURAL LAW 133

the legal ownership of the trustee was complete and unchallenge

able. But above the legal measure there was a higher criterion
of equity and good conscience, governing the exercise of his
legal rights and powers by the creditor or mortgagee or trustee,
and imposing duties upon his conscience which the chancellor
undertook to enforce by preventing him from exacting more
than his damages or compelling him to allow redemption or
compelling him to hold and use and administer the property for
the benefit of cestui que trust. In many of the cases in which
equity has interfered in this way, saving the face of the law but
wholly changing the practical working of the legal system, we
know the very chancellor who first acted and the very state of
facts that moved him to act.1 As Maitland has said, the chan
cellor was not troubled about ideas and general theories. The
defendant's conduct was gross dishonesty and he had simply to
find an effective remedial device that might be enforced in
personam . The Institutes tell a like story as to enforcement
of testamentary trusts in Roman law. Augustus was moved to
interfere out of favour to particular persons and in certain
cases of gross fraud.3
Natural law, the great agency of juristic development of law,
is a fiction of a superior body of legal principles, existing in
reason , of which the actual body of law is but an imperfect
reflection and by which, therefore, the actual law may be
corrected and supplemented. The theory is an expression of the
jurisconsult's desire to improve and to add to the existing legal
materials, in order to achieve definite ends in litigation, without
impairing confidence in the law as of unchallengeable authority
+ “ I intentionally say_modern rules because it must not be forgotten that
the rules of Courts of Equity are not, like the rules of the common law, sup
posed to have been established from time immemorial. It is perfectly well
known that they have been established from time to time - altered, refined
and improved from time to time. In many cases we know the names of the
Chancellors who invented them. No doubt they were invented for the
purpose of securing the better administration of justice, but still they were
invented. Take such things as these : the separate use of a married woman,
the restraint on alienation, the modern rule against perpetuities and the
rules of equitable waste. We can name the Chancellors who first invented
them, and state the date when they were first introduced into equity juris
prudence.” Jessel, M.R., in Hallett's Estate, 13 Ch.D. 696, 710 ( 1879).
* Maitland, Equity, 30.
• Inst. 2, 23, I.
134 THE CREAT-LAWYER INTERPRETATION
and in such a way as to persuade tribunals to accept his results.
I need not remind you of what Roman jurists were able to
do with this instrument. Continental jurists did like things
with the same instrument in the seventeenth and eighteenth
centuries.
Judicial empiricism has done for the common law most of
what was done for the Roman law by juristic science. Usually
it proceeds cautiously from case to case with an occasional
creative generalization. But there are many cases of creative
judicial action which has made new chapters in the law or new
legal institutions almost at a stroke. One such case may be
seen in the decisions of Lord Mansfield combining ideas of
English equity and Roman texts as to unjust enrichment,
applying them to the common counts, and giving us a fruitful
principle of what we call, not happily, quasi contract.? Another
case is the addition of a new chapter to the law of servitudes
by Lord Cottenham's decision in Tulk v. Moxhay. Here again
the decision grew out of the exigencies of justice in a concrete
case. So far was it from being the product of the unfolding of
an abstract idea, that the reasoning of Lord Cottenham, proceed
ing on a theory of preventing unjust enrichment, is obviously
fallacious and has been abandoned for a theory of equitable
servitudes. But the new chapter in the law of property stands.
American law may furnish an example in the institution known
as the Juvenile Court. This institution, which is making its way
everywhere, is due to the initiative of a few definitely known
1 " The principles of the Roman law respecting the different kinds of
agreements and the distinction between contracts and simple agreements,
not being founded on the law of nature and being, indeed, very remote
from simplicity, are not admitted into our law." Pothier, Traité des Obli
gations, pt. 1 , chap. I, art. 1 ( 1761).
? “ This kind of equitable action to recover back money which ought not
in justice to be kept, is very beneficial and therefore much encouraged. ...
In one word the gist of this kind of action is that the defendant, upon the
circumstances of the case, is obliged by the ties of natural justice and
equity to refund the money." Moses v. Macferlan, 2 Burr. 1005, 1012
(1760) . As to Lord Mansfield's creative work in commercial law , see
Buller, J., in Lickbarrow v . Mason , 2 T.R. 63 ; Story, Miscellaneous Works,
411-412; Lord Campbell, Lives of the Chief Justices, II , chap. 34.
• 2 Phil. 774 ( 1848 ).
• Rogers v . Hosegood ( 1900 ) 2 Ch. 388 ; In re Nisbet and Potts Contract
( 1905] 1 Ch . 391 , 399, ( 1906 ) 1 Ch. 386, 401, 405, 409.
 JUDICIAL EMPIRICISM 135

socially, minded judges, who had the large vision to see what was
required and the good sense not to be hindered in doing it be
cause there had never been such things before. Today we find a
legal basis for it in the jurisdiction of chancery over infants.
We reconcile it with legal-historical dogmas on this basis. But
the jurisdiction of equity over infants was not a factor in cre
ating it. It arose on the criminal side of the courts because of
the revolt of those judges' consciences from legal rules that re
quired trial of children over seven as criminals and sentence of
children over fourteen to penalties provided for adult offenders.?
One should compare with these the creative judicial empiri
cism of the praetor's edict. Some lawyer, urged by the claims
of some particular client, conceives what will meet the needs of
his client, argues for it and persuades a praetor. A new idea
comes into the law with the remedy applied to that case . Some
times we know who invented what became the basis of a long
juristic development and wrote a chapter in the law. Thus in
the actio Serviana a concrete remedy was invented for a case
that called for more effective legal relief. It was carried for
ward in the actio quasi Serviana by an analogy bordering on
fiction. Then jurists, with the picture of natural law before
them , put a generalization behind it and aa whole theory of pledge
resulted . Today the Romanist puts tacit hypothecation to as
many uses as we do constructive trust. But the idea did not
create the actio Serviana. That resulted from a reaching out for
a concrete remedy to satisfy a special demand. This is brought
out in another way if we compare tacit hypothecation with con
structive trust. Each achieves much the same results ; each is
used remedially to prevent unjust enrichment of one person at
the expense of another. Yet note how different the two are in
legal idea. According to the one way of proceeding it is con
ceived that A's property is subject to aa real duty - a duty resting
on the res as against the whole world — to answer for a duty
1
* Mack , “ TheJuvenile Court," 23 Harvard Law Rev. 104 ( 1909 ) ; Flex
ner and Baldwin, Juvenile Courts and Probation , 1-7 ( 1915) ; Eliot, The
Juvenile Court , 1-2 ( 1914) .
* Inst.4 , 6 , § 7. Note also the interdictum Salvianum , Inst. 4 , 15, $ 3, the
name of which tells a like story.
• Windscheid, Pandekten , 1 , $$ 225-229.
136 THE GREAT-LAWYER INTERPRETATION
which in justice and equity is due from A to B. According to
the other it is conceived that A has something which he is
personally obligated to hold not for his own benefit but for the
benefit of B. There is a fiction in each case — a fiction that
something has been pledged which has not been pledged or a
fiction that something is held in trust where there is no trust.
Yet historical jurists saw an idea in each case which fixed the
lines of legal development.
Jhering called creative juristic science by the suggestive name
of juristic chemistry. That is, it is a combining of chosen
elements of the law, as it were, to make new compounds. But
it often goes further and brings in elements from without and
develops them by analogy or combines them with elements at
hand in the law to make even more novel compounds. Instead
of these compounds resulting from the unfolding of an idea,
they are oftenest the result of endeavour to provide for a con
crete case, leading to the application of a concrete solution,
behind which others proceed to put tentative generalizations
until finally the more inclusive order is worked out. Thus when
we look back at it we say that an idea was realizing. But the
idea served after the event to order and arrange and make
intelligible. It had no part in the creation which was the act of a
man seeking to satisfy a demand.
American law has notable examples of the creative possibili
ties of two other forms of juristic activity. At a time when it
was a serious question whether American states would receive
the common law of England in view of political bitternesses,
hostility to things English after the Revolution, and the aversion
to technical learning and special professional competence that
was so marked in the Jefferson Brick era of American politics,
Joseph Story, by a creative use of comparative law, was able so
to expound English commercial law and English equity as to
make them appear a body of universal principles, sanctioned by
experience and received by the reason of mankind, and to make
straight the way for their reception.” Here also it might be
a Geist des römischen Rechts, ii, 2nd ed. 11 ( 1871 ) .
2

* See Pound, " The Place of Judge Story in the Making of American
Law,” 48 American Law Rev. 646 ( 1914) .
 CREATIVE LEGISLATION 137

said that the comparative law invoked was something of a

fiction, analogous to natural law . An ideal of what the law
should be, drawn from examination of the English law in the
light of the commercial law of Continental Europe and of Eng
lish equity in the light of the treatises of the civilians, was used
to give shape to English doctrines and rules with reference to
American wants so as to make them worthy of reception. Re
cently another form has become effective in studies of particular
problems published in legal periodicals. What may almost be
called the classical example is the paper on the Right of Privacy
in which Mr Justice Brandeis, then at the bar, was a collabora
tor. A bit of juristic reasoning on the analogy of the legal rights
that secure other interests of personality, showing that there
was an interest in or claim to privacy as a part of personality
and postulating a legal order that secures personality completely,
created first discussion , then a conflict of decision , and finally
through judicial decision or statute a new chapter in the law of
torts. A similar case is to be seen in Judge Smith's paper on
negligent use of language, which has already found judicial
following . Examples might be multiplied.
Creative legislation is a phrase of more familiar sound. The
constitutional dogma of separation of powers makes the ortho
dox Anglo - American lawyer loth to concede that law may be
made by any one or by anything but the legislature, and the
dogmatic fiction of pre-existence of the rule when a court has
formulated it and applied it in the decision of a cause, makes it
the harder to think of something which , however real in fact,
is in inconvenient contradiction of legal theory. The proposi
tion that legislation may create law encounters no such difficul
ties. Yet legislation is perhaps the least creative of the three.
Indeed the historical school denied it any creative rôle and held
that it could achieve nothing more than to give better form to the
results of judicial and juristic development and carry out the
* Warren and Brandeis, “The Right to Privacy ,” 4 Harvard Law Rev. 193
(1890 ), adopted in Pavesich v. New England Ins. Co., 122 Georgia Reports
190 ; Foster Milburn Co. v. Chinn, 134 Kentucky Reports, 424 ; Munden
v. Harris, 153 Missouri Appeal Reports, 632. See also the statute of New
York, Binns v. Vitagraph Co., 290 New York Reports, 51.
• “ Liability for Negligent Language," 14 Harvard Law Rev. 18 ( 1900 ),
followed in Cunningham v. Pease, 74 New Hampshire Reports, 435.
138 THE GREAT-LAWYER INTERPRETATION
logical implications of ideas that had unfolded in experience
and had been formulated in judicial decision or juristic writing.
This theory was not unnatural in those who had been trained
in Justinian's legislation, which was of this type. But there are
two types of legislation, an organizing type, such as the his
torical school conceived, and a creative type. If one doubts the
existence of the latter, it is enough to refer him to the Work
men's Compensation Acts. The principle of that legislation is
now urging for other cases such , for example, as accidents in
the operation of transportation enterprises as public utilities. It
has become settled in the law. But these statutes are not an
organizing of the applications of aa traditional idea. They intro
duce a new idea, or rather a new liability behind which we must
put an idea to make it intelligible and to find a place for it in
the legal system . Judge Smith proposed that we limit the name
Torts to cases of culpable causation and set up a new category
for liabilities without regard to fault. Thus we should find a
common idea in responsibility for the torts of servants, in
workmen's compensation, in the doctrine of Rylands v. Fletcher,
and in liability for trespass of animals. Yet orthodox Anglo
American theory treats the first of these from a wholly different
standpoint, assimilating it to liability created by exercise of a
power of representation conferred on an agent. Mr Justice
Holmes 2 and later Dr Baty 3 have exposed the dogmatic fiction
on which this treatment rests. The fact, however, that the law
does so explain this form of liability without fault, is enough to
show that no analogy and no idea of such a category was before
those who devised workmen's compensation as a practical
solution of a concrete problem.
To look at the subject in another way we may see the personal
stamp of the great lawyer upon every legal system. The per
sonality of Labeo, of Julian, and perhaps of Papinian has
entered into the Roman law. The stamp of Tribonian is on
the Corpus Juris and thus on the great quarry of legal materials
for the modern world. The stamp of Du Moulin and of Pothier
1 " Tort and Absolute Liability,” 30 Harvard Law Rev. 241, 319, 409
( 1917).
“ Agency,” 5 Harvard Law Rev. I ( 1891 ) ; Collected Papers, 81 .
Vicarious Liability ( 1916) .
 COKE 139

is on French law . To mention no others, Henry II and Coke

and Mansfield stand out as personally responsible for things
of the first moment in English law. In American law Marshall
has been pronounced rightly the creator of the constitution in
the sense that his statesmanlike legal exposition of it in the
formative period made it an effective instrument that stood the
test of civil war. Kent and Story were the chief actors in the
reception of English law in the fore part of the nineteenth
century, without whom it might not have been complete. Shaw
and Gibson and Ruffin and later Doe left their mark upon
the law of their jurisdictions and to some extent upon the law
of the whole country. Indeed Doe's achievements in procedure
are a striking testimony to what a masterful personality, joined
with sound legal instincts and thorough knowledge of the
traditional legal materials, may do in the way of practical law
reform by judicial decision alone, without the aid of legislation .
But Henry II and Coke will best make the point. Granting
that centralization in England was inevitable for any reason that
you will, three types of centralization were possible. There
might have been a judicial legal centralization with decentralized
administration , as in England, or administrative centralization
with decentralized justice, as in France of the old régime, or
a complete centralization as in France of today. Norman
centralization in England was at first administrative. That
centralization in England became legal and judicial, a centralized
justice and one law with local administrative autonomy, must
be attributed to the masterful king, by instinct a lawyer, who
turned the English polity in the direction of legal unification
at the critical moment. Coke's personal achievement is even
more clear. His vigorous personality, his minute knowledge
of the legal materials, the ascendancy which his professional
standing gave him , and his power and determination to wield
it to make aa judicially administered law of England in which
courts should stand between the individual subject and the
crown and the crown's agents, by interpretation and logical
development of medieval English materials, actually made law
as perhaps it was never made to so great an extent by one man
efore or since. When modern writers show how little basis
140 THE GREAT -LAWYER INTERPRETATION
there often is for Coke's assertions in the authorities he cites
or expounds, they testify to his creative power. For Coke's
version superseded the medieval authorities as a statement of
the law. Hobbes says that authority, not truth, makes the law.1
A clear vision of the demands to be met , a clear conception of
how to meet them and a mastery of the legal materials, making
it possible to select them with assurance and combine them
with confidence, may make law in despite of both authority
and historical truth. That Coke could do this in the face of
determined opposition is a clear proof of the efficacy of creative
effort by a strong man.
Yet it would be possible to make extravagant claims for such
an interpretation, as for each of those heretofore considered.
I would not urge the great-lawyer interpretation for a moment
as the one explanation of legal phenomena, the one method
of writing legal history. What I do urge is the importance of
looking at the events of legal history in terms of the men who
took part in them and of the personalities and characters and
prejudices of these men as a factor in the results. For we need
to bear in mind what Coke and Mansfield were able to do,
the one to give an authoritative form to the legal results of the
strict law, the other to liberalize the law so formulated and
make it a law that could go round the world in the nineteenth
century. The legal achievements of the nineteenth century
must be organized and restated presently to serve as the basis
for another judicial and juristic new start. The law must be
liberalized once more and must receive new and large infusions
from without, after a century of pruning away archaisms and
of organizing and systematizing rather than creative juristic
activity. These demands of the immediate future will call for
men and for a faith in the power of men to do great things
which was wanting in the legal science of the last century.
* De Cive, cap. XIV, § 1.
 VII

AN ENGINEERING INTERPRETATION

If the argument up to this point has been sound, we require an

interpretation of legal history that will take account of the men
who act in finding and adapting legal materials, of the materials
with which they act, of the circumstances under which they
act, and of the purposes for which they act. Many of these
requirements are met by Kohler's civilization interpretation,
which was urging by the Neo-Hegelian wing of the social
philosophical jurists and attracting many adherents in the first
decade of the present century. Hence we must examine and
appraise that interpretation before suggesting a new one.
Kohler was exceptionally qualified as a philosopher of law
in respect of all-round knowledge of legal materials and ac
quaintance with the problems of the legal order. He was first
an Amtsrichter or, as we might say, county -court judge. Then
for five years he was Kreisrichter or superior judge. He became
professor at Würzburg in 1878 and at Berlin in 1888, where he
continued till his death in 1919. He worked first in Roman law,
then in primitive law, in which he became one of the first
authorities, then in specialized branches of the law, such as
the history of criminal law , patent law on which he wrote a
well-known treatise,33 and bankruptcy on which also he wrote
a standard text. Later he taught the new German code of
1900 and wrote a commentary thereon . Finally ( 1904) he
1
Shakespeare vor dem Forum der Jurisprudenz (1883, 2nd ed . 1919 ) ;
Rechtsvergleichende Studien über islamitisches Recht, das Recht der Ber
bern, das chinesische Recht und das Recht auf Ceylon ( 1889 ) ; Zur Urge
schichte der Ehe ( 1897 ) ; Kohler und Peiser, Aus dem Babylonischen
Rechtsleben ( 1890–1898 ) ; Kohler und Ungnad, Assyrische Rechtsurkunden
( 1913 ) .
Studien aus dem Strafrecht ( 1890-1897 ).
• Forschungen aus dem Patentrecht ( 1888 ) ; Handbuch des deutschen
Patentrechts ( 1900 ).
Lehrbuch des Konkursrechts ( 1891 ) ; Leitfaden des deutschen Konkurs
rechts ( 1893, 2nd ed. 1903) .
* Lehrbuch des bürgerlicher Rechts ( 1906 ).
141
142 AN ENGINEERING INTERPRETATION
began to write upon the philosophy of law. " He came nearer
than any one else in modern times to taking all law for his
province.
Brought up in the historical school, Kohler was among the
leaders of those who in the latter part of the nineteenth century
sought to give that school a broader basis and less rigid method.
When the school began to break up, some going over to posi
tivism, some to a Neo -Kantian social philosophy of law , and
some to a revived natural law, he sought to carry forward the
best of the traditions of the school by means of aa Neo-Hegelian
social-philosophical jurisprudence. He attacked both the meta
physical-historical natural law and the analytical comparative
law of the last generation. The legal science of the nineteenth
century , he said, took historical materials and materials derived
from analytical investigation of existing systems of law and
made from them a new natural law, that is, an assumed body of
universally valid legal principles and universal legal institutions.
But the seventeenth- and eighteenth -century natural law , which
was to be deduced from the nature of man, did not criticize law
on the basis of itself in this way. It went outside of the law for
its critique. In the nineteenth-century philosophy of law, on the
other hand, the law was criticized by an ideal form of itself.
Hence philosophy of law in the last century was relatively
barren of results, whereas seventeenth- and eighteenth -century
philosophy of law achieved great things. For while the latter
sought to make positive law in the image of an ideal, the former
made an ideal in the image of the positive law . Nor did the
so -called comparative method , from which so much had been
expected, prove more fruitful. As philosophy of law turned to
specious justifications of what existed, comparative law gave
" sham reconciliations ” by comparing the content of legal
precepts as abstract propositions, apart from their social history
and social operation, as if all rules had come into existence at
one stroke - let us say in Cloudcuckootown — and then found

1 “Rechtsphilosophie und Universalrechtsgeschichte ,” in Holtzendorff,

Encyklopädie der Rechtswissenschaft, 1 , 6th ed. 1907, 7th ed. 1913 ; Lehr
buch der Rechtsphilosophie, 1908, 2nd ed. 1912, transl. by Albrecht as
Philosophy of Law , 1914.
 KOHLER 143

specious reasons for them by which they might be reconciled

or unified. In other words there was comparative analysis and
analytical comparison. Such was the comparative law of a
generation ago — a very different thing from the comparative
law with a philosophical, historical and sociological background
for which Kohler contended and which he was so largely
instrumental in bringing about.
Every one had begun to say that law was relative. But relative
to what ? Kohler answers that it is relative to civilization and
laws are relative to the civilization of the time and place. There
is no universal body of legal institutions and legal rules for all
civilizations. Instead there is a universal idea, namely, human
civilization . “ Different in its details , ” he says, law " is alike
in the fundamental quest, that is, the furthering of civilization
2
through aa forcible ordering of things." 2 Hence if there is no
natural law, there is still the constant factor of the relation be
tween law and civilization , " a relation which takes on a different
content with the infinite variety in the conditions of human
cultivation.” 3 But law is not only a means toward civilization,
it is a product of civilization . We must look at it, therefore, in
three ways : as to the past as a product of civilization, as to the
present as a means of maintaining civilization , as to the future
as a means of furthering civilization. Observe how the his
torical, the nineteenth -century analytical and the sociological
points of view are united in this theory.
At this point one will ask , what does Kohler mean by civiliza
tion ? He replies that it is the social development of human
powers toward their highest possible unfolding. This leads
to a further question how height is to be determined in such a
1 “ The lack of vision that made men think it possible to construct a philos
ophy of law without philosophy took a bitter revenge. Natural law arose
once more in a new form and led to a sort of positivist philosophy of law.
Natural law could not be identified with positive law. But a decoction was
made from different legal systems and legal postulates and was then called
philosophy of law. . . . Similarly barren are the writings of Merkel who tried
to construct a universal theory of law out of a scanty knowledge of a few
legal systems and by his sham reconciliations contributed to the decay of
juristic thought. ” Lehrbuch der Philosophie des Rechts, 16.
• Moderne Rechtsprobleme, § 1, 1907, 2nd ed. 1913.
2
Ibid . * Lehrbuch der Rechtsphilosophie, 1-2.
• Moderne Rechtsprobleme, § 1 .
144 AN ENGINEERING INTERPRETATION

connection. Apparently he means the most complete human

control of nature, including human nature, for human purposes,
and in this respect there seems a point of contact with the so
called economic realists in jurisprudence, who find the end of
law in a maximum satisfaction of human wants. Also super
ficially there seems a connection with the doctrine of the
Krauseans. Thus Lorimer says that the ultimate object of
jurisprudence is the attainment of human perfection, adding
that this object is identical with the object of ethics. That is,
the object of ethics is to perfect individual conduct by the
perfection of the individual ; the object of jurisprudence is
individual perfection by the perfect relation between the in
dividual and other individuals. As Ahrens saw it, the individual
was perfecting himself and the law was keeping others off while
he did so and that he might do so . The individual was the
organ of humanity and humanity was perfected as the individual
perfected himself. Undoubtedly there is truth in this. One
great agency in social progress is individual spontaneous initia
tive. Hence the social interest in individual free action as part
of the interest in the individual life. But Kohler's point is
that there is much more than this. We are not merely a mob of
individuals each seeking to perfect himself. There is an idea
of civilization at work. A whole people, a whole human race, is
trying to lift itself up by developing its powers to their highest
pitch. It is not merely that we keep the peace while each prose
cutes his individual search for perfection, whether by social
or anti -social paths. Such was the conception of the function
of law that led to juristic denunciation of sanitary laws and
factory acts. Rather each and all are developing the whole
through many means and among these are legal institutions
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 the task of the legal order is twofold.
1
* See Berolzheimer in Archiv für Rechts- und Wirtschaftsphilosophie,
III, 195–196.
* Institutes of Law , 2nd ed., 353, 1880.
• Cours de droit naturel, 8th ed., § 19, 1892, ist ed. 1837.
* Lehrbuch der Rechtsphilosophie, I.
 KOHLER 145
First, it is to maintain existing values of civilization. This is
what the Greeks, and the Romans and the Middle Ages
following them , saw as the end of law. Second , it is to create
new ones — to carry forward the development of human powers,
This is analogous to Ward's idea of the efficacy of effort. It
will be perceived that in place of the simple idea of freedom - of
individual self-assertion—from which the metaphysical school
started or which it saw realizing in legal history, we have here a
complex idea of continually advancing civilization, of infinitely
progressing human development of human powers. The idea
is not a simple idea whose narrow bounds have been fixed once
for all but a complex, growing idea. One is reminded of William
James's suggestion of a growing God. If this interpretation
like all idealistic interpretations substitutes a renamed god for
the divine authority of the beginnings of law, at least it is a
god that grows and that does not jealously deny effectiveness to
human action.
It has been suggested that Kohler goes back to the conception
of law in the ancient city-state, as, for instance, when he says
that " human civilization is only conceivable if there is a system
among men which assigns each man his post and sets him his
task, and which takes care that existing values are protected and
that the creation of new ones is furthered ." 1 This sounds not
unlike some things in Plato's Republic. But there is a funda
mental difference. The idea of Greek philosophers and Roman
lawyers was one of an ideally stationary society which from
time to time would go wrong and had to be corrected with refer
ence to the type. As in a Hindu village -community periodical
re -distribution becomes necessary because in time the partition
or destruction of households has produced a situation out of
accord with the design,3 so it was necessary to re-distribute
society occasionally as the type was departed from — to put each
man in his appointed groove, as determined by his nature, and
to keep him there. This is not at all Kohler's idea. Civiliza
tion moves forward. But its progress is not a simple advance.
" Its development," he says, "proceeds in such wise that the
1
* Id . para . 6. ' E.g. III, 397–398 ; IV, 434.
• See Mayne, Hindu Low and Usage, 8th ed., 300.
146 AN ENGINEERING INTERPRETATION

seeds of the new are already at hand in what exists and as one
grows and the other decays new values are continually made
out of the old .” 1 It is not that we may have once for all an ideal
society with every one in his place and the law to keep him there.
Yet we cannot develop the utmost that is in human powers in
a mad scramble in which values are lost by friction and waste.
We must have a certain ordering of human activities that puts
limits to human action, that assigns each to do things in order
to protect existing values and to further the creation of new
ones. How far this ordering shall go must depend on the civili
zation of the time and place, on the values to be conserved and
the means at hand to create new ones. In rural, pioneer, agri
cultural America of the fore part of the last century, there was
no occasion to limit the contracts a labourer could make as to
taking his pay in goods. To have done so would have been
arbitrary. In urban, industrial America of the twentieth cen
tury, on the other hand, a régime of abstract freedom of con
tract between employer and employee often led to a destruction
of values. It led to sacrifice of the social interest in the human
life of the individual worker. Hence it was not unreasonable to
put limits upon what employer and employee might contract.
Moreover, Kohler does not say that the law is to assign each
man his post and set him his task. But there must be some
system that does this. It may be done by political or politico
military machinery, as in the extreme case of Sparta ; by tradi
tion and stratified society resting on authority, as in the Middle
Ages ; by free competition, as we sought to do in the nineteenth
century, or by an economic régime, as today. In any event
it is the place of the law to uphold that system so that civiliza
tion may be maintained and furthered. This does not exclude
individual initiative to find one's place or make one's place
nor does it require aa social ordering through the law that puts
men in predetermined places and keeps them there. We are
not required to make a final and absolute election between two
strictly defined alternatives. Each may be destructive of values.
If the latter may cut off a mainspring of social progress and
repress individual self-assertion to the point of stunting the
* Lehrbuch der Rechtsphilosophie, 1 , para. 5.
 KOHLER 147

individual life, the apotheosis of individual free initiative in the

last century caused us to lose sight of the social interest in the
human life of the concrete man in our zeal for the abstract
freedom of the abstract man.
For example, in the chapter entitled Sanitary Supervision in
Spencer's Social Statics, we are told in effect that it is better that
the poor of our cities should die in epidemics than that state
boards of health should curtail individual freedom or interfere
with individual initiative or want of initiative ; that it is better
that smallpox should ravage the community than that an indi
vidual should be made to vaccinate. Legislation should not
impose restrictions ; it should remove those restrictions on the
free action of individuals that are not needed to secure like free
dom on the part of his neighbours. Despite such theories, how
ever, the law has never been able to carry the proposition that
every one is the best judge of his own happiness, and hence
should contract as he chooses, beyond a certain point. Minors
have no judgment. Persons under economic duress have no real
freedom . As Lord Northington put it, necessitous persons are
not free.2 Irish tenants and American Indian allottees of land,
turned overnight into proprietors, had had no sufficient ex
perience of freedom . There are other social values than a
complete abstract freedom of contract. A change of attitude in
legal thinking throughout the world, which marks twentieth
century jurisprudence, rests on recognition of the social interest
in the individual life as something broader and more inclusive
than individual self-assertion . Kohler would say that it is a
question of time and place whether it maintains and furthers
civilization to leave men wholly free to contract as they choose
or whether the legal order should hold down their self -assertion
in certain situations and for certain purposes.
Yet important as it is not to lay down dogmatically an abstract
scheme of universal law, something more definite than a con
ception of maintaining and furthering civilization is needed for
the immediate purposes of jurisprudence and legislation. The
1892 ed ., 197-216 ( written 1850 ).
? "Necessitous men are not, truly speaking, freemen, but, to answer a
present exigency, will submit to any terms that the crafty may impose upon
them ." Vernon v. Bethell, 2 Eden, 110, 113 ( 1762 ).
1.18 AN ENGINEERING INTERPRETATION

judge must have a more detailed picture in his mind to guide

him in finding legal rules, in interpreting them and in applying
them to the decision of causes. The legislator must have a
more detailed picture to guide him in law-making. The jurist
also must have a clear picture whereby to lay out the lines of
creative as well as of ordering and systematizing activity. It is
well that the jurist , at least, should recognize that it is but a
picture for use in the time and place and that his mind should
be reasonably open with respect to the possibility of repainting
it in whole or in part. Still he must have some such picture,
and will be governed by one whether he is aware of it or not.
Kohler, carrying out his interpretation, meets this need with
his theory of the jural postulates of civilization. The civilization
of every time and place has certain jural postulates — not rules
of law but ideas of right to be made effective by legal institutions
and legal precepts. It is the task of the jurist to ascertain and
formulate the jural postulates not of all civilization but of the
civilization of the time and place — the ideas of right and justice
which it presupposes — and to seek to shape the legal materials
that have come down to us so that they will express or give
effect to those postulates. There is no eternal law. But there
is an eternal goal— the development of the powers of humanity
to their highest point. We must strive to make the law of the
time and place a means toward that goal in the time and place,
and we do this by formulating the presuppositions of civilization
as we know it. Given such jural postulates, the legislator may
alter old rules and make new ones to conform to them , the judges
may interpret, that is, develop by analogy and apply, codes and
traditional legal materials in the light of them , and jurists may
organize and criticize the work of legislatures and courts thereby.
Let me illustrate. We should agree, as one jural postulate of
the civilization of today, that in our society men must be able
to assume that others will commit no intentional aggressions
upon them. We need not go about armed as men did in the
earlier Middle Ages nor avoid the sky line like the savage. We go
about our several businesses with a serene assurance that we
shall not be attacked. Also we should no doubt agree, as a second
Lehrbuch der Rechtsphilosophie, 1, para. 7.
 KOHLER 149

postulate, that in our society men must be able to assume that

others, when they act affirmatively, will do so with due care
with respect to consequences that may reasonably be an
ticipated— " due" meaning, perhaps, what is exacted by the
average good sense of the community. In a world that is in
creasingly full of machineries and agencies of potential danger,
we assume that those who operate them will look out for what
might reasonably be anticipated in the way of injurious conse
quences , and go about our several vocations without fear. Is
there a third postulate ? May we say that in civilized society
men must be able to assume that others who maintain things
likely to get out of hand or to escape and do damage will restrain
them or keep them within their proper bounds ? If so, the law
may well impose liability for unintended non -negligent inter
ference with the person or property of another through failure
to restrain or prevent the escape of some dangerous agency
which one maintains, and the rule of Rylands v. Fletcher, lia
bility for trespass of animals without regard to fault, and
liability at one's peril for injuries through escape of wild animals
which one harbours, are juristically justified. If not, all these
cases should be criticized with reference to the second postulate,
and the nineteenth -century view that they were historical anoma
lies, to be limited in their application and ultimately eliminated,
should be the jurist's guide. It will be said that this formulation
of the jural postulates of civilization gives us natural law once
more. It does. But it is a natural law drawn from observation
of the concrete civilization of the time and place and endeavour
to ascertain the ideas of right which it presupposes, whereas
the eighteenth -century natural law was a deduction from the
nature of the abstract man . Also it is a practical natural law
and, as it has been put, a natural law with a changing or a
growing content. The revival of natural law in the present
century is not a revival of the rigid natural law of the meta
physical school in the last century and ought not to be a revival
of the universal natural law of the century before. It is a revival
* Stammler, Wirthschaft und Recht, 2nd ed. 180-181, 1905 ( Ist ed. 1896) .
See also Saleilles, L'École historique et droit naturel, Revue trimestrielle de
droit civil, 1, 96-99 ( 1902 ).
150 AN ENGINEERING INTERPRETATION

of the creative natural law of the seventeenth and eighteenth

centuries, but as something relative, not something that shall
stand fast forever. ' Thus the method of formulating the jural
postulates of the civilization of the time and place is one of the
most important achievements of recent legal science.
You will have perceived how much nearer Kohler's inter
pretation comes to meeting the requirements we have laid down
than any which went before it. Indeed I shall not deny that
I framed those requirements after comparing his with the
foregoing and asking myself whether he had met what seemed
defects in them and whether I was satisfied wholly with his
conception. The advantages of his interpretation are clear. It
recognizes the creative element in legal history, yet it avoids
the confident rejection of the past and faith in rational abstract
schemes, as able to stand on the basis of their intrinsic abstract
reasonableness, which was the besetting fault of eighteenth
century natural law. It takes account of the need of stability
through recognizing that we must work with the materials
which the social and legal past have given us , and of the need of
change by conceiving of law as relative to a constantly changing
civilization. It does not hold legal development down to eternally
fixed paths with but a narrow margin of wandering within the
two walls of each path. And yet I do not feel satisfied. It is at
bottom an idealistic interpretation and I prefer an instrumen
talist point of view. It treats its idea as causal, not instrumental.
It gives us an idea operating from within and bringing about
legal development in its growth and unfolding, not an instru
ment by which men understand legal development after the event
and organize its phenomena and make them available for juristic
purposes. Hence I should fear that in common with prior
idealistic interpretations it would tend to keep up the rigidities
of nineteenth -century jurisprudence. Also, although Kohler
himself knew law in action and legal history too thoroughly to
fall into such an error, I should fear that its Hegelian form
would tend to obscure the element of human activity, that jurists
who accepted this interpretation would expect the idea of
* Charmont, La renaissance du droit naturel, 217–218 ( 1910) ; Demogue,
Les notions fondamentales du droit privé, 22 ( 1911 ) .
 ANALOGIES 151

civilization to unfold itself in legal institutions and rules and doc

trines and would expect things to do themselves in legal develop
ment, and so would remain in the juristic stagnation if not in the
juristic pessimism of the immediate past. I concede that the
Hegelian cast of Kohler's interpretation is not necessary. But
there it is. And I suspect that to many the sauce will appeal more
than the fish. Hence I shall venture to suggest another possi
bility.
All interpretations go on analogies. We seek to understand
one thing by comparing it with another. We construct a theory
of one process by comparing it with another. The command of
the house -father or the magistrate in the city-state (e.g. the
praetor's mittete ambo or vim fieri veto ) or of the military com
mander, the wisdom of the tribe taught by the old men to the
youth , or the wisdom of the people taught by teacher to pupil or
of the craft taught by master to apprentice, the treaty between
warring households or clans or tribes fixing the bounds of their
claims to possess things or do things, the deduction of the prop
erties of a triangle from a limited number of given axioms, the
development of the plant from the seed, the revolutions of the
planets in orbits which may be calculated by mathematics,
the origin of species by natural selection, the struggle for exist
ence between individual organisms and between species, the
individual man with his peculiar character and temperament that
enter into the work of his hands, the struggle of conflicting self
interests in economic competition — all these analogies have been
used to interpret law and the history of law. We require an
analogy, then, and it is an advantage to have an analogy that
puts things in terms of the dominant activity of the time and so
is likely to give results in accord with the life of the time to
which our law is to be applied. We require an analogy also
which will not postulate formal and logical determinism nor
positivist determinism, and yet will remind us that what we do
in law is conditioned by many things. It must give us an inter
pretation in terms of activity, leading us to think of legal institu
tions not merely as things that are, but as things that are made ;
not merely as things that have come to us, but as things that were
made at some time and are made now by those who believe in
152 AN ENGINEERING INTERPRETATION

them and will them — and are largely what the latter believe
them and will them to be. Yet it must give us an interpretation
in terms of conditioned activity, conditioned by the capacities,
the characters and the prejudices of those who plan and make,
by the materials with which they must work, by the circum
stances in which they must work, and by the special purposes
for which they work. Such an analogy seems to me to be af
forded by engineering. Let us think of jurisprudence for a
moment as a science of social engineering, having to do with
that part of the whole field which may be achieved by the order
ing of human relations through the action of politically organ
ized society.
Engineering is thought of as a process, as an activity, not
merely as a body of knowledge or as a fixed order of construc
tion. It is a doing of things , not a serving as passive instruments
through which mathematical formulas and mechanical laws
realize themselves in the eternally appointed way. The engineer
is judged by what he does. His work is judged by its adequacy
to the purposes for which it is done, not by its conformity to
some ideal form of a traditional plan . We are beginning, in con
trast with the last century, to think of jurist and judge and law
maker in the same way. We are coming to study the legal order
instead of debating as to the nature of law. ! We are thinking of
interests, claims, demands, not of rights ; of what we have to
secure or satisfy, not exclusively of the institutions by which we
have sought to secure or to satisfy them , as if those institutions
were ultimate things existing for themselves. We are thinking of
how far we do what is before us to be done, not merely of how
we do it ; of how the system works, not merely of its systematic
perfection. Thus more and more we have been coming to think
in terms of the legal order - of the process—not in terms of the
law - the body of formulated experience or system of ordering
-to think of the activity of adjusting relations or harmonizing
and reconciling claims and demands, not of the adjustment itself
and of the harmonizing or reconciling itself as a system in which
Kohler, Einführung in die Rechtswissenschaft, § 1, 1902 ; Levi, La
société et l'ordre juridique, 1911 ; Levi, Contributi ad una teoria filosofica
dell' ordine giuridico, 1914.
 THE ADMINISTRATION OF JUSTICE 153

the facts of life mechanically arrange themselves of logical ne

cessity. Such a change of attitude is manifest among all types of
jurists in the present century. It may be illustrated by merely
enumerating the six points which are urging in the juristic litera
ture of the day : study of the actual social effects of legal institu
tions and legal doctrines, study of the means of making legal
rules effective , sociological study in preparation for law
making ,” study of juridical method , a sociological legal history,
and the importance of reasonable and just solutions of indi
vidual cases, where the last generation was content with the
abstract justice of abstract rules.5
Jurisprudence is said to be the science of law . But it must be
more than an organizing and systematizing of a body of legal
precepts. There are three things to consider, which may not be
looked at wholly apart from each other and yet must not be con
fused by ambiguous use of the term “ law .” Putting them in the
chronological order of their development, these are, the adminis
tration of justice, the legal order and law. The administration
of justice is clearly enough a process. It is the orderly disposi
tion of controversies by tribunals having customary or contrac
tual or religious or political power to pronounce between the
contesting parties. It is not, however, the simple mechanical
process which the last century wished it to be and vainly strove
* Ehrlich , Grundlegung der Soziologie des Rechts, chap. 21 ; Ehrlich,
"Die Erforschung des lebenden Rechts," Schmoller's Jahrbuch für Gesetz
gebung, xxv, 190; Page, “ Ehrlich's Seminar of Living Law ," Proceedings
of Fourteenth Annual Meeting of the Association of American Law
Schools, 46 ; Kantorowicz, Rechtswissenschaft und Soziologie, 7-8 ; Van
der Eycken, Méthode positive de l'interprétation, 190.
• Parry, The Law and the Poor, 248 249 ; Smith, Justice and the Poor;
Pound, "Law in Books and Law in Action ,” 44 American Law Rev. 12 ;
Pound, “ The Limits of Effective Legal Action,” 27 International Journal of
Ethics, 150.
• Tanon, L'Évolution du droit et la conscience sociale, 3rd ed., 196-198
( 1911 ); Kantorowicz, Rechtswissenschaft und Sociologie, 9 (1911 ) ; Will
cox, The Need of Social Statistics as an Aid to the Courts, 1913.
* Geny, Méthode d'interprétation, 2nd ed., 1 , § 7, 1919 ( 1st ed. 1899 ) ;
Wurzel, Das juristische Denken, especially § 30 ( 1904) ; Les Méthodes
juridiques, Lectures by French jurists, 1911; Bozi, Die Weltanschauung der
Jurisprudenz, 1907 ; Science of Legal Method, Modern Legal Philosophy
Series, vol. 9 ; Wigmore, Problems of Law, 65–101 ( 1920 ).
Hollams, Jottings of an Old Solicitor, 160-162 ; Gnaeus Flavius
(Kantorowicz ), Der Kampf um die Rechtswissenschaft, 1906 ; Kantoro
wicz, Rechtswissenschaft und Soziologie, 11 ff. ( 1911 ) .
154 AN ENGINEERING INTERPRETATION

to make it. In matters of property and commercial law, where

the economic forms of the social interest in the general security
-security of acquisitions and security of transactions - are con
trolling, mechanical application of fixed, detailed rules or of
rigid deductions from fixed conceptions is aa wise social engineer
ing. Our economically organized society postulates certainty
and predicability as to the incidents and consequences of indus
trial undertakings and commercial transactions extending over
long periods. Individualization of application and standards
that regard the individual circumstances of each case are out of
place here. In Bergsonian phrase we are here in the proper field
of intelligence, characterized by its power of “grasping the gen
eral element in a situation and relating it to past situations.” 1
For the general element in its relation to past situations is the
significant thing in securing interests of substance, that is, in the
law of property and in commercial law. The circumstances of
the particular case cannot be suffered to determine the quality
of estates in land nor the negotiability of promissory notes. One
fee simple is like another. Every promissory note is like every
other. Mechanical application of rules as a mere repetition pre
cludes the tendency to individualization which would threaten
the security of acquisitions and the security of transactions. Yet
this is by no means the whole field of the administration of
justice.
Another type of controversy involves the moral quality or the
reasonableness of individual conduct and of the conduct of
enterprises. Here, in spite of all attempts in the last century to
reduce every part of the law to chapter and verse of straitly de
fined rule, to precisely limited conceptions and to logical deduc
tion from exactly formulated principles, legal systems have
developed an elaborate apparatus of individualization. Thus
in Anglo-American law application is individualized by means
of at least seven agencies : by the discretion of courts in apply
ing equitable remedies ; by legal standards, such as the standard
of due care, the standard of fair conduct of a fiduciary, the
standard of reasonable facilities to be furnished by a public
utility; by the power of juries to render general verdicts;
* Creative Evolution, 153–173. See Lindsay, The Philosophy of Bergson ,
chap. 5, especially p. 219.
 THE ADMINISTRATION OF JUSTICE 155

by the latitude of judicial application involved in finding the

law in the adjudicated cases ; by devices for adjusting penal
treatment to the individual offender ; by the informal methods
of judicial administration in petty courts ; and by administra
tive tribunals. Here, in Bergson's phrase, we are in the field
of intuition. We have to do with the element that is unique
in each case and calls for “ that perfect mastery of a special
situation in which instinct rules.” 1 No two cases of negli
gence are alike. It is not the general features of such cases,
for which mechanically applied rules would be appropriate,
but the special circumstances, calling for intuitive applica
tion of a standard, that are significant. There is nothing
unique in aa bill of exchange. Every case of human conduct is a
unique event.
Austin was a chancery barrister and thought of law in terms
of the law of land, with which equity had most to do in his time.
Our chief American writer on analytical jurisprudence was also
our chief authority upon the law of property, and he came to
doubt whether American constitutional law, where a chief prob
lem is application of the standard of due process of law , was law
at all. Thus we got a theory of law in terms of the law of prop
erty in which at least half of the field of the administration of
justice was ignored and its methods devised for and adapted to
this field were excluded from the domain of legal science. What
men sought to some extent everywhere in the nineteenth century
Americans carried to an extreme. We strove to subject negli
gence to a series of detailed rules, to turn the principles govern
ing exercise of the chancellor's discretion into rules of equity
jurisdiction, to formulate the precise details of the duties of pub
lic utilities, and to lay out a series of exactly determined degrees
of crime with the exact penalty corresponding to each. We are
now reaping the fruit of this attempt to subject conduct to ma
chinery in a reaction which has been turning more and more of
the field of judicial administration over to executive boards and
commissions and for a time threatened a reign of something not
unlike oriental justice.?
* Ibid .
3
Pound, " Executive Justice,” 55 American Law Register, 137 ; Pound,
"The Revival of Personal Government,” Proceedings of the New Hamp
156 AN ENGINEERING INTERPRETATION
So far as it thought of the legal order, as distinguished on the
one hand from the administration of justice and on the other
hand from law, nineteenth -century legal science thought of it
as a state or condition ; as a state of reconciliation or condition
of harmony between potentially conflicting wills in which each
was realized as fully as was compatible with the like realiza
tion of every other. But the legal order too is a process. It is a
process of ordering, in part by the administration of justice,
in part by administrative agencies, in part by furnishing men
with guides in the form of legal precepts whereby conflicts are
avoided or minimized and individuals are kept from collision
by pointing out the paths which each is to pursue." Judicial,
administrative, legislative and juristic activity, so far as they
are directed to the adjustment of relations , the compromise of
overlapping claims, the securing of interests by fixing the lines
within which each may be asserted securely, the discovery of
devices whereby more claims or demands may be satisfied with
a sacrifice of fewer—these activities collectively are the legal
order. It is one side of the process of social control. It may well
be thought of as a task or as a great series of tasks of social
engineering ; as an elimination of friction and precluding of
waste, so far as possible, in the satisfaction of infinite human
desires out of a relatively finite store of the material goods of
existence. Law is the body of knowledge and experience with
the aid of which this part of social engineering is carried on.
It is more than a body of rules. It has rules and principles and
conceptions and standards for conduct and for decision, but
it has also doctrines and modes of professional thought and
professional rules of art by which the precepts for conduct
and decision are applied and developed and given effect. Like
the engineer's formulas, they represent experience, scientific
formulations of experience, and logical development of the
shire Bar Assoc. ( 1917) , 13 ; Goodnow, “ The Growth of Executive Discre
tion,” Proceedings of the American Political Science Assoc., II, 29 .
As to a like phenomenon in England, see Local Government Board v.
Arlidge ( 1915 ) A.C. 120 ; ( 1914 ) i K.B. 160 ; Dicey, Law and Opinion in
England , 2nd ed., xli-xliv ; Dicey, Law and Custom of the Constitution,
8th ed., xxxvii-xlvii.
1
" Ehrlich, Grundlegung der Soziologie des Rechts, 352–380 ( 1913).
 THE LEGAL ORDER 157

formulations ; but also inventive skill in conceiving new devices

and formulating their requirements by means of a developed
technique.
“ In seeking for a universal principle,” says William James,
" we inevitably are carried onward to the most inclusive principle
—that the essence of good is simply to satisfy demand.
Must not,” he adds, “ the guiding principle for ethical philoso
phy ( since all demands conjointly cannot be satisfied in this
poor world ) be simply to satisfy at all times as many demands
as we can ?" 1 This seems to me a statement of the problem of
the legal order. The task is one of satisfying human demands,
of securing interests or satisfying claims or demands with the
least of friction and the least of waste, whereby the means of
satisfaction may be made to go as far as possible. It would be
vain to pretend that adjudication and law -making are in fact
determined wholly by a scientific balancing of interests and
an endeavour to reconcile them so as to secure the most with
the least sacrifice. The pressure of claims or demands or desires,
as well as many things that the social psychologist is teaching
us to look into, will warp the actual compromises of the legal
order to a greater or less extent. But we get no peace, as it
were, until we secure as much as we can and the pressure of the
unsecured interest or unsatisfied demand keeps us at work
trying to find the more inclusive solution. We may not expect
to draw any picture of the legal order to which the actual
ordering of human relations will give exact effect. There will
be less of the unconscious warping, however, the more clearly
we picture what we are seeking to do and to what end, and the
more we are aware that the legal order is a process of ad
justment of overlapping claims and compromising conflicting
demands or desires in the endeavour here and now to give effect
to as much as we can . In other words, our social engineering
will be the more effective the more clearly we recognize what
we are doing and why.
We rely upon the physical and biological sciences and their
applications to augment as well as to teach us how to conserve
and to appropriate and use the materials whereby human wants
* The Will to Believe, 195-206.
158 AN ENGINEERING INTERPRETATION

may be satisfied. These materials are but too limited in com

parison with human demands. As in the old-time American
mining community the map of a mining district shows a maze
of overlapping and conflicting claims, out of which no one
would have realized anything if the working of the lodes and
placers, the extent of claims and the conditions of retaining
them had not been ordered and regulated, so life in society
shows a like condition of overlapping or conflicting claims in
which the goods of human existence would be lost or wasted,
or at least the satisfactions derived from them would be small ,
if individual application of them to individual claims and de
mands were not ordered. Nor may the ordering in either case
maintain itself unless it effectively eliminates friction and waste
in the use and enjoyment of the means at hand. Where there
is not enough to go round, what there is must be made to go
as far as it will. Thus it is the task of the social sciences to find
out how to make the process of satisfying human claims and
demands continually less wasteful, to make it go on with less
friction, to make it more effective in satisfying a continually
greater amount of human demand. So far as these things may
be done or may be furthered by the legal order, they are the
field of jurisprudence. The metaphysical school was right in
thinking of a reconciling or harmonizing. Its error was in
conceiving the task too narrowly and too abstractly ; in believing
that a universal abstract reconciling would achieve what must
be done by compromises and adjustments with reference to
time and place.
More than anything else the theory of natural rights and its
consequence, the nineteenth-century theory of legal rights,
served to cover up what the legal order really was and what
court and law-maker and judge really were doing. As first
conceived, natural rights were qualities of the abstract man
whereby it was just or right that he should have certain things
or do certain things. The abstract man in a state of nature, i.e. in
a state of ideal perfection, would claim only what as a reasonable
moral entity he ought to have in view of his qualities and those
of other like reasonable moral entities his neighbours. Hence
what these qualities implied were to be his ; they were secured
 RIGHTS 159

to him by the ideal body of legal precepts called natural law,

and they ought to be secured to him by the actual body of legal
precepts called positive law. In truth this was a philosophical
reconciling of conflicting demands with reference to the abstract
demands that would be made by an ideal abstract reasonable
man. It pictured an adjustment of human claims and demands
by universal precepts demonstrated rationally by considering
the claims of the ideal man . In the nineteenth century natural
rights became deductions from the fundamental idea of freedom
and a juristic problem arose of deducing the exact limits of
each right so that it could be carried out logically in every
direction and yet there should be no conflict. For the several
deductions from freedom could not conflict. Thus the matter
seemed to have been reduced to one of definition . A collateral
result was to work out a practical system of "legal rights” by
which individual interests of personality and individual interests
of substance were effectively secured. But the attempt at
exact definition of legal rights broke down because the idea was
not a simple one, as was supposed, but involved a number of
1
distinct things, and also because the compromises and adjust
ments which were called for could not be derived from the
simple idea of freedom. The law books of the last century are
full of curious situations of logical impasse to which such
attempts continually led.
“ Right" had come to mean too much. All the juristic
writing of the last century is obscured by the ambiguity of that
overworked word. We called the de facto claim or interest, an
idealization of the de facto claim, as we thought it ought to be
asserted and ought to be recognized, the legally recognized and
legally delimited claim after the law on a balance of claims or
interests had come to some practical adjustment, and a bundle
of legal institutions by which that recognized and delimited
claim is made effective, all by the one name of right. It would
have been impossible in any event to avoid jumping from one
See Bierling, Kritik der juristischen Grundbegriffe, II,49–73 ,128-144
( 1883 ) ; Bierling , Juristische Prinsipienlehre, 1, § 12 (1894 ) , Hohfeld ,
Fundamental Legal Conceptions as Applied in Judicial Reasoning, Reprint
of papers published in 1913, 1917 ; Pound, " Legal Rights,” 26 International
Journal of Ethics, 92 ( 1915) .
160 AN ENGINEERING INTERPRETATION
meaning to another in the course of the same argument. But
few were conscious of the extent of the ambiguity, and it was
a most convenient one.. Hence courts and jurists were not
careful to avoid changes of meaning in the course of apparently
consecutive reasoning that enabled them to give to a practical
compromise, arrived at by an unconscious weighing of the
competing claims , the appearance of a logically exact definition
of rights arrived at by deduction. With all its convenience in
this respect, however, the ambiguity was a heavy burden on the
legal science of the last century. More than one interest long
stood unsecured because conscientious and learned judges
could not make the deductions that would provide for it
without apparent violation of some “ right" that seemed to
stand upon a higher plane.
What courts and jurists were really doing is revealed in an
other way by the conception of public policy. This or that exer
cise or this or that application of a so -called right was forbidden
by " the policy of the law . ” Not unnaturally courts were cautious
about formulating these policies, but in course of time some
ten of them became fairly well known, and as we look at them
in action it is easy to see that they are recognitions of social
interests - of the claims or demands involved in the existence of
society.1 Civilized society postulates peace and order. It cannot
go on unless each and all are secure in doing their work therein .
Hence demand for or interest in the general security, which
in the common law is put as a policy of public safety. Again
the social interest in the security of political institutions appears
as a policy of safeguarding the interests of the crown or of the
state. The social interest in the security of domestic institutions
appears as a policy against those things which tend to interfere
with the family relation. The social interest in the general
morals appears as a policy against corruption or a policy against
things of immoral tendency or against certain specific transac
tions which are inimical to good morals. The social interest in
economic progress appears as a policy favouring free trade in
chattels or against novel restrictions upon property. In practice
' I have discussed this subject in detail in “ A Theory of Social Interests,"
Proceedings of the American Sociological Society, 1921.
 PUBLIC POLICY 161

the courts continually weighed these and other social interests

in the scale by declaring that this or that could not be enforced
or that this or that result was forbidden because of public
policy. But at best this was an awkward way of putting it.
Certain claims stood apart with the label of superior sanctity
as “ rights. " Certain other claims were in the air under the
name of policies. It was easy to confuse the problem by saying
that “rights” were sacrificing to policy and creating an impres
sion that "policy " meant, not something on the same plane,
but expediency or some low motive of which judge and jurist
should be ashamed." Accordingly the last century was sus
picious of any invocation of public policy. Denunciations of the
conception and warnings as to the danger involved in judicial
resort to it became staple.? None the less the courts continued
to develop the old policies and worked out some new ones.
Coke's observation that many things have been introduced into
the common law because of “ convenience" and his proposition
that the law will suffer a private mischief, i.e. a curtailment of
individual right, rather than an " inconvenience ,"” 3 remained
profoundly true. In practice we never carried out each so -called
right to its logical consequences by a process of strict reasoning.
The actual method has been one of adjustment and compromise
and giving effect to as much as seemed possible on as intelligent
view of all the claims involved as court or law -maker or jurist
was able to take with the materials before him.
* See, for example, the dissenting opinions in Arizona Copper Co. v .
Hammer ( Arizona Workmen's Compensation Cases ) , 250 United States
Reports, 400, 433 ( 1920 ).
* E.g. the answers of the judges in Egerton v. Brownlow , 4 H.L. Cas. I
( 1853 ) .
See Co. Lit. 66a, 97a, 97b, 1526, 2792, 3790. “ The law will sooner suffer
a private mischief than a public inconvenience.” Broom , Marims, 7th ed.,
147 ; Absor v. French, 2 Show. 28 ; Dawes v. Hawkins, 8 C.B., N.S., 848,
856, 859 ; Atty. Gen. v. Briant, 15 M. & W. 185. " Multa in jure communi
contra rationem disputandi pro communi utilitate introducta sunt." Co. Lit.
70b. Note the reason for the “ right" of going over adjoining land when
the road is impassable, as stated by Lord Mansfield in Taylor v. Whitehead,
2 Doug. 749. Compare Cockburn, C.J., on “ the extent to which it is neces
sary that private rights or public rights should be sacrificed for the larger
9)
public purposes, the general commonweal of the public at large.” Green
wich Board of Works v. Maudsley , L.R. 5 Q.B. 397, 401. See also Lord
Hardwicke in Lawton v . Lawton , 4 Atk. 13, 16 ( 1743 ) .
 162 AN ENGINEERING INTERPRETATION
Illuminating examples may be seen in the mooted questions
of abusive exercise of rights, of recovery for subjectively mani
fested injuries, of invasions of privacy, and of "interest” as
a justification in trade-dispute and secondary boycott cases,
in which the claim of one to free exercise of his powers, even
though involving an incidental aggression, and of the other to
be free from aggression must be balanced. The solutions in
fact proceed by subsuming each under social interests and
endeavouring to save as much as possible of each. Less con
troversial examples may be found in privileged occasion in
defamation , but here too difficult balances must be made at
times and as a result there are grave differences of judicial
opinion . Other suggestive examples may be seen in the
English law of maintenance , and in the history of conspiracy
to abuse legal process and malicious prosecution — a “ story
of a long struggle to solve the legal puzzle of punishing the
rogue who would kill and rob with the law's own weapons
without at the same time terrifying the honest accuser or
plaintiff .” 3
To go into detail, one example from modern English equity
will suffice. Take the question in Lumley v. Wagner.* Here, on
the one hand is the social interest in the security of transactions,
calling on us to enforce the agreement, to compel performance
of the promise that has become part of the promisee's substance,
not only in order to secure the latter's individual interest of
substance but to give effect to the social demand for the up
holding of promises in an economically organized society resting
on credit in which so much of wealth is in that form . On the
other hand there is the social interest in the individual human
life which requires us to put limits to the enforcement of
promises where individual freedom of action is immediately
involved. To enforce aa contract of service specifically, to compel
continuous service of a confining nature under the direction of
the employer as to its details, may be so serious an interference
* Coxhead v. Richards, 2 C.B.569 ( 1846 ),
* Winfield, History of Conspiracy and Abuse of Legal Procedure, 68
( 1921 ).
' Id. 67.
* 1 De G. M. & G. 604 ( 1852) .
 THE BALANCE OF INTERESTS 163
with the individual human life and thus so serious an infringe
ment of the individual interest of personality, as to sacrifice
more than we gain in upholding the security of transactions.
Thus the question becomes one of how we may give effect to
the most of these two important social interests, which looked
at singly call for different results. In such a case as Lumley
v. Wagner, where the injury to the promisee's substance is
serious and not to be measured except conjecturally for a money
reparation, while the performance is not a service involving
continued interference with liberty, the decisive consideration
may well be that the court can take hold of a negative covenant
and bring about performance as a matter of economic choice
without any more infringement of personality than is involved
in the economic choice between fulfilling a promise and pay
ment of damages. Thus the security of transactions and the
individual life are each secured, or if the latter is somewhat
infringed, it is not interfered with sufficiently to impair the
interest as a whole on a balance of all the interests involved.
Stripped of its apparatus of authority and of technical equity
doctrine, the foregoing is substantially what Lord St Leonards
actually said. The vice of ignoring in theory what we do and
must do in the actual process of making, finding and applying
the law is shown in the deadlock between employers and em
ployees in America and the impotence of the courts, thus far, to
provide a legal way out on the basis of common -law doctrines.
So long as the matter is treated in terms of rights, defined and
carried to their logical conclusions and beyond compromise
because they are rights, the pressure of unsecured claims and
unsatisfied demands will go on.
In the last century legal history was written as a record of
the unfolding of individual freedom, as a record of continually
increasing recognition and securing of individual interests,
through the pressure, as it were, of the individual will. But it
would be quite as easy to write it in terms of a continually wider
and broader recognition and securing of social interests, that
is, of the claims and demands involved in the existence of
civilized society, not the least of which is the social interest in
the individual human life. I have discussed this subject at
 164 AN ENGINEERING INTERPRETATION

length elsewhere. It is enough to say that the beginnings of

law lend themselves much more to such an interpretation than
to the orthodox interpretation of the last century. The Twelve
Tables of Gortyn in their first section provide that one who is
about to litigate over a slave shall not lead him home before the
legal proceeding. Is this a securing of individual freedom of the
one man or the other or a provision for the social interest in the
general security ? When the Roman praetor in the legis actio
sacramento put his staff between the litigants and said “ Let
go both of you , ” what was the claim or demand that was satis
fying, if not that same social interest in the general security ?
In the Germanic truce or peace, which played so great a part
in the building of our common law, what have we but recogni
tions and securings of a series of social interests — the general
security in the house peace, the peace of the borough, the peace
of the great highways and the limitations upon the blood feud ;
the security of religious institutions in the peace of festivals
and the church peace, whereby the demand of society that its
duties to God be duly performed was given effect; the security
of political institutions by the peace of the gemot; perhaps the
security of economic institutions by the peace of the market ?
These are weighed against individual self-assertion, that is,
against the interest in the individual life, it may be more
crudely but quite as clearly as in the more difficult and com
plicated social engineering of the legal order of today.
That an engineering interpretation might be put to ill use
I shall not deny. But for a season the dangers are in another
direction. We shall not outgrow the juristic pessimism of the
immediate past easily nor quickly, and lawyers, who must study
the past and will study it largely as the last generation inter
preted it, are not likely to be over-rash in outgrowing distrust of
their power to do things. Moreover, what they do must get its
efficacy from courts and legislatures. More and more we must
rely upon jurists for creative work in Anglo-American law.
Legislatures, if otherwise qualified, can give but intermittent
attention to constructive law-making for the purposes of the
1 “ A Theory of Social Interests,” Proceedings of the American Sociologi
cal Society, 1921; The Spirit of the Common Law, Lecture 8 ( 1921 ) ;
Introduction to the Philosophy of Law , Lecture 2 ( 1922 ).
 THE FUNCTION OF AN INTERPRETATION 165
legal order. Judges work under conditions that make it less
and less possible for them to be the living oracles of the law
except as they give authority to what has been formulated by
writers and teachers. An interpretation that will stimulate
juristic activity in common-law countries, that will bring our
writers and teachers to lead courts and legislatures, not to
follow them with a mere ordering and systematizing and recon
ciling analysis, will have done its work well. It will have done
for the next generation at least no less than the nineteenth
century interpretations did for that time.

1
 INDEX
Actio Publiciana, 130 , 131 Bohlen, Francis H., 100, 105-109
quasi-Serviana, 135 Boistel, 22, 69
Serviana, 135 Brandeis, Mr Justice, 137
Activist idealism, II Brazilian civil code, 26 , 80
Adams, Brooks, 96-100 Brown, W. Jethro , 67
Administration, 81-82 Bryce, Viscount, 22, 33
of justice, 153-155 Buckland, W. W., 26, 131
Agency, 110 Building,analogy of, 21 , 40
Ahrens , 22 , 32, 33, 144 Burdick , F. M., 110
Ames, James Barr, 17, 42, 120 Burke, Edmund, 13-14
Analogies, 151-152 Burlamaqui, 17
Analytical jurisprudence, 46, 128 Business, American law and, III
130, 155 II2
school, 18, 33, 84, 96
Anglo - American public law, ro- Campbell, Lord , 124-125
mance of , 43 Capitis deminutio, 16
Anglo-Indian codes, 68 , 81 Carle , 78
Anglo -Saxon law , 76 Carter, James C., 34–35, 47
Animals, liability for, 36
Application of law , individualized,
Chancery, court of, 100, 102–104
Change in law, 1, 2, 4
2-104
153-155 Charmont, 72, 150
Aristotle, 30, 31 , 89 Cicero, 31
Assumption of risk, 109 -III Civil death , 16
Austin, John, 26 , 46 , 98, 99 , 130, 155 Civilization interpretation, 143-150
Austrian code, 14, 80 critique of, 150–151
Authority, 3 Civilization , jural postulates of, 148
150
Bacon, 128 Clark, E. C., 18 , 25
Baden, code of, 80 Class conflict, 88-90, 95-105, 109
Baldwin , Simeon E., 37 Codification , 80-81
Bartolus, 52 Coke, 3, 8 , 9, 41 , 52 , 82, 99, 101 ,
Baty, Thomas, 138 128, 132, 139–140, 161
Bekker, Ernst Immanuel, 25 Collectivism , 109
Bentham , 98, 99, 112 Command- theory of law, 3.
Bergson , il , 154, 155 Common law, continuity of, 39
Berolzheimer , Fritz , 72, 73 fundamental idea in, 57-63
Bethell , Sir Richard , 129 Comparative law , 49
Beudant, 48 Conceptions, jurisprudence of, 119
Bigelow , Melville M., 17 124
Bills of rights, 51 Conring, Hermann, 8
Biological interpretations, 74–75, Consideration, 66
85-90 , 117 Conquered peoples, epos of the, 79
achievements of, 91 Constitutional law ( American), 16,
defects of , 90-91 123
economic, 88-90 Constructivé trust, 135-136
ethnological, 88 Continuity of content, fallacy of, 37,
idealistic, 85-86 39-41
Blackstone, 17, 41 , 98 , 101 , 102 Convenience, Coke on, 161
Blasting, injuries by, 122 Corporations, 37–38, ili
167
168 INDEX

Court of High Commission, 132 Evolution, 73

Creative activity, 117–118, 126-128, Executive justice, 155
130-138
law -making, 130 Favor testamenti, 42, 49
Croce, Benedetto, 12, 20 , 38, 43, 51 , Fellow -servant rule, 109 - III
53, 66, 72, 79, 88, 94, 95 Fichte , 32
Cujas, 8 Fictions, 4, 130–134
Culpa , 55 Folk psychology, 73
Cuoco, 14, 19, 118 Fortescue, Sir John, 9
Fouillée , 78
Dahn, Felix, 77 Frederick the Great, code of, 14, 16
Darling, Mr Justice, 114 Freedom, 46–49, 54
Darwin , 72, 74 of contract, 61-65, 123, 146
Declaration of the Rights of Man, 19 French civil code, 14-16, 80
Demogue, 150 French Revolution, 13, 39, 69, 93
Dicey, 109, 118–119 Fright, recovery for, 120-121, 122
Discretion , 154-155 Gaius , 7
Divorce, natural law and, 42 Gans , 49
Doe, Chief Justice, 108, 139 General security, 1, 5, 160, 164
Duguit, 86-88 Geny, 153
Du Moulin (Molinaeus ), 138 German civil code, 26-27 , 80
Durkheim, 85 Germanic law, 26, 43, 50, 51 , 53
Duty, idea of legal , 56 Gibson, Chief Justice, 139
Economic determinism, 97 Gierke , 73
Gift, conception of , 89
Economic interpretation, 94-115 Glanvill , 101
achievements of, 114-115 Gortyn , Twelve Tables of, 164
elements of, 93-94 Gray, John C., 22, 44, 131
origin of, 92-93 Great- lawyer interpretation, 124-140
truth in the, 113-114
Greek political philosophy, 30
types of, 94-96 Grotius, 17, 32, 45
Economic realism, 92
Edict, praetor's, 135-136 Hale, Sir Matthew , 9
Edward I, legislation of, 132 Hammurabi, 3
Ehrlich, Eugen, 153 Hegel , 18, 46, 47, 54, 72, 74, 75, 88,
Employer's liability, 110 - III 95, 96, 112 , 125, 127, 150
Engels, 94 Hemmingsen, 45
Engineering interpretation , 152–165 Henry II, 101 , 139
Equity, 24, 132, 133 Historical authority, 9
- restrictions on free contract in, 64 fatalism , 66
Erle, Sir William , 44 materialism , 92
Ethical interpretation, 22–23, 25-49, scepticism, 11
97, 116 school, 10-11, 12-18, 22, 50, 56,
defects of , 37-43 67, 68, 74, 96, 116, 142
effects of , 32–37 school, achievements of, 68
origin of, 25–30 History , 6
theory of , 22 History-writing, Roman legal, 8
truth in the, 43-44 English legal, 8-9
types of, 23 individualist legal, 163–164
Ethnological interpretations, 74, 78, nineteenth -century, 9,
85, 95 social-utilitarian legal, 163–164
achievements of, 91 Hobbes , 140
defects of, 90-91 Holland, T. E. , 26
idealistic, 75-78 Holland, code of , 80
positivist, 82–85 Holmes , Mr Justice, 10, 41 , 51 , 119
psychological, 78-82 120, 138
truth in, 79 Hugo , Gustav , 99
 INDEX 169
Idea, unfolding of the, 40 Law - givers, 125-126
Imputed negligence, 123 Law-making, nature of, 2
Industrial labourers and the law , Legal history, choice of periods in,
III , 114 49, 52
Institutional history, 53 incapacities, 63-65
Insurance, 62 order, the, 21, 152, 156–160
Interests, balance of , 157, 161, 162– rights, 158-160
163 transaction, conception of, 55
Interpretation, 65, 131-132 Legislation, creative, 137–138
Interpretations of legal history, -
economic interpretation of, 113
bases of, 151-152 114
kinds of, 19 Lex Aquilia, 132
reasons for, 19 Lex Falcidia , 49
truth in the, 116-117 Liability, categories of, 56
as corollary of fault, 35, 104-109
James, William , 145, 157 - theories of, 60
Japanese civil code, 26 Liberty , 46–49, 54
Jefferson, Thomas, 13, 103 Lioy, 48
Loria, 94
Jessel, Sir George, 61 , 133 Lorimer, James, 46, 70, 144
Jhering, 75–77, 119, 120, 136 Louis XIV , 16
Judicial empiricism, 134-136 Lumley v. Wagner, 162-163
Julian , 138
Jurisprudence, 153 Lycurgus, 125
of conceptions, 119-124 Macchiavelli, 38
Juristic pessimism, 66 McDougall, William , 78
science, 136-137 Mackeldey, 98, 99
Jus disponendi, 62
Jus strictum , 84 Magna Carta,43, 57, 101, 132
Justice, the administration of, 153– Maine, Sir Henry, 17, 25, 53–61,
100 , 132
155
Justinian, 8, 16, 30 Maitland , F. W., 132, 133
Mansfield, Lord, 47, 66, 67, 103,
139, 140
Kant, 22, 28-30, 34, 37, 46, 55, 83, Manu , 3
98, 99 Markby, Sir William, 98, 100
Kantorowicz , 50, 153 Marshall, John, 139
Kent , James, 17, 139 Marx, Karl, 92-93
King's council, 132 Metaphysical school, 22–23, 33–34,
Knight-Bruce , Sir J. L., 129 158
Kohler , Josef , 10, 49, 70, 141-150 , 152 Middle Ages, 30-31, 79, 102
critique of, 150–151 myth of the, 51
on civilization, 143-144 Miller, W. Galbraith , 22, 61, 70
on the legal order, 144-147 Montesquieu , 17
on relativity of law, 143 Mosaic law, 3
Korkunov , 77 Moses , 125
Krause, 144 Muirhead , James, 75
Labeo, 138 Nationalism , 19
Labour, grievances as to American Natural law, 5-6, 12, 25, 41 , 51 , 133–
law, III 134 , 149
Langdell, C. C., 132 Natural rights, 158-160
Laplace, 72 Neo -Ghibelline historians, 38
Lasson, 69 Northington, Lord, 147
Law and morals, 45 Numa, 125
identification of, 25
Law , end of, 30-32 Obligations, law of, 25
nature of, 2, 153 Organism , analogy of , 40
170 INDEX

Paine , Thomas, 48 Roman law, 24, 26-27, 76–77, 80,

Pandectists, 26 117, 131
Papinian, 138 continuity of , 39
Partnership , 112 fundamental idea in, 58-60
Perpetual edict, 39 Roman legal history-writing, 7
Perspective, illusion of, 19 Romantic history -writing, 43
Philosophical school, 18, 69 Romulus, 125
Philosophy, 4, 49 Roumania, code of, 80
Physical environment, relation to Ruffin , Thomas, 139
law , 119 Rylands v . Fletcher, doctrine of, 35
Plato, 31 , 145 36, 105-109, 138, 149
Pledge , theory of, 135
Political interpretation, 45-68, 85, St Leonards, Lord, 163
97, 116 Sale, Romanized law of, 59
achievements of the, 68 Saleilles, Raymond, 67
defects of the, 65-68 Salvioli , 25, 115
elements of the, 46-50 Savigny, 14-19, 25, 28, 32, 42, 51,
Maine's, 50–65 55, 98, 120
origin of the, 46 Seisin , 50, 89
Politics, 45-46 Selborne, Lord , 129
Pollock, Sir Frederick, 23, 36, 44 Shadwell, Vice-Chancellor, 129
Pomponius , 7 Shaw, Chief Justice, 139
Portugal, code of, 80 Smith, Jeremiah , 137, 138
Positivism , 71–74, 92 Social engineering , 152–165
Positivist interpretations, 78 81, 117 interests, 162–164
Post, A. H., 78, 83-85 legislation, 61, 63-65
Pothier, 138 order, idealizings of the, 5
Pragmatism , II utilitarian interpretation , 163-164
Primitive law, 125 Sociology, 21 , 71-74, 84-85
Privacy, right of , 137 descriptive, 85
Privileges -and - immunities clause Soto , 32
(American ), 37 Spencer, 32, 72, 147
Programme of recent jurists, 153 Stability, 1, 2
Protestant jurist- theologians, 19, 45 and change, reconcilings of, 2
Prussian code, 14, 16, 80 Stahl, 23
Psychology, 21, 73 Stammler, 10
Public-opinion interpretation, 118 Standards, lega!, 155
119 Star Chamber, 132
Public policy, 160-161 State of nature, 51
utilities, law of , 58-61 States' rights, doctrine of, 42
Ştatus , evolution to contract from,
Puchta, 17, 47, 48
Pufendorf , 17, 32 54-61
Puritanism , 24, 44, 103-104 Stoics, 24, 56
Story, 17, 136, 139,
Race, as a factor in legal develop Suarez, 32
ment, 70 Subpoena, writ of, 102
Race-psychology, 74-76 Sugden, Sir Edward, 129
Reason , law and, 6, 47-48 Swiss civil code, 80
Relations, 57-63 landesgemeinde, 43
Religious interpretation, 23-25
Representation , doctrine of , 110 Tacit hypothecation, 135-136
Revolution, American , 136 Tanon, 73
Riccobono , 24 Tarde, 73
Richard, G., 85 Tenterden, Lord, 50
Rights, 158-160 Thayer, Ezra Ripley, 36
of Englishmen, 41 James Bradley, 17
Rights of man, 41 Theodosian code, 39
 INDEX 171
Theology and jurisprudence, 45 Vattel , 17
Thomas Aquinas, 31 Vico, 82
Tourtoulon , 73 Victoria, Franciscus de, 32
Town meeting, 43 Vinogradoff, Sir Paul, 19
Tribonian, 138
Truce of peace, Germanic, 164 Ward, Lester F., 73–74
Truck acts, 62, 123 Westminster II , Statute of, 100-102
Twelve Tables , the, 7, 39 Wigmore, John H., 115, 124, 153
Wilson, Woodrow, 100
Unborn child, injury to, 121 Winterbottom v . Wright, doctrine
Unification of social sciences, 45, 68, of , 122–123
74 Wolff, 17
Universal history, 27 Workmen's compensation, 138
legal history, 49 Wyman , Bruce, 100
Urrecht, Aryan, 27, 49
Usury laws, 63 Year Books, 28, 51 , 52
Usus modernus, 52 cult of the, 50
419
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