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JURISPRUDENCE
By
ROSCOE POUND
Volume I
Part 1. Jurisprudence
Part 2. The End of Law
ST. PAUr, MINN.
WEST PUBLISHING CO.

1959
COPYRIGHT, 1959
BY
WEST PUBLISHING CO.
Pound Jurisprudence
INTRODUCTION
Roscoe Pound, retired Dean of Harvard Law School, holds

a pre-eminent place among the world's legal scholars, educators
and philosophers. The Publisher is privileged and honored to
present his monumental work, one of the most important con-
tributions to the world's legal literature of the century. As a
leading spokesman for improvements in the administration of
justice, as an educator and philosopher Dean Pound's many nota-
ble contributions to the law and to the legal profession have
markedly influenced the course of legal history. Some high-
lights of Dean Pound's work and writings are listed here for
the reader.
THE PUBLISHER
CURRICULUM VITAE
Born at Lincoln, Nebraska, 1870.
Educated, University of Nebraska, A.B. 1888, A.M. 1889, Ph.D.
1897. Harvard Law School.
Honorary doctorate (LL.D, L.H.D., J.U.D., D.C.L.) from 16 uni-
versities at home and abroad.
Practiced law at Lincoln, Nebraska, 1890-1901, and 1904-1907.
On the bench as Commissioner of Appeals, Supreme Court of
Nebraska, 1901-1903.
Taught Jurisprudence and International Law at University of
Nebraska, 1899-1901.
Dean of the Law School, University of Nebraska, 1904-1907.
Professor of Law, Northwestern University, 1907-1909.
Professor of Law, University of Chicago, 1909-1910.
Professor of Law, Harvard University, 1910-1936.
Dean of the Law School, of Harvard University, 1916-1936.
[IIIl
Introduction
University Professor, Harvard University, 1936-1946.
Visiting Professor of Law, University of California at Los Ange-
les, 1949-1953.
Tagore Professor of Law, University of Calcutta, 1953.
Editor-in-Chief, NACCA Law Journal, 1953-1955.
Chairman of the Section of Legal Education of the American Bar
Association, 1907.
President of the Association of American Law Schools, 1911.
President of the National Probation and Parole Association,
1941-1949.
President of the Acad6mie Internationale de Droit Compare,
1950-1957.
President of the Instituto Internacional para la Unificacion del
Derecho Publico, 1955-1958.
Director of the Survey of Criminal Justice in Cleveland, 1922.
Awarded the Gold Medal of the American Bar Association "for
conspicuous service to the cause of American Jurisprudence,"
1940.
Member of the National Commission on Law Observance and En-
forcement, 1929.
Member of the American-British Claims Arbitration, 1926-1927.
Director of the National Conference of Judicial Councils, 1938-
1946.
President of the American Academy of Arts and Sciences, 1935-
1937.
Corresponding Member of the British Academy.
Corresponding Member of the Instituto Argentino de Filosofia
Juridica y Social.
Fellow of the American Association for the Advancement of
Science.
Foreign Fellow of the Academia delle Scienze Morali e Politiche,
Societa Reale di Napoli.
Honorary Member of the Royal Academy of Palermo.
Member of Japan Academy.
Member of Royal Society of Humane Letters, of Lund (Sweden).
[Iv]
Introduction
Member of the International Academy of Legal and Social Medi-
cine (Belgium).
Gold Medal awarded by the National Chengchi University, Nan-
king, China.
Adviser to the Ministry of Justice of the Republic of China,
1946-1949.
Adviser to the Ministry of Education of the Republic of China,
1947-1949.
PRINCIPAL WRITINGS
The Spirit of the Common Law, 1921, reprinted 1931. Trans-
lated into German, Japanese, and Spanish.
Introduction to the Philosophy of Law, 1922, revised ed. 1954,
translated into Japanese, 1957.
Interpretations of Legal History, 1923, reprinted 1930, 1946,
translated into Chinese, Japanese and Spanish.
Law and Morals, 1924, 2d ed. 1926. Translated into Japanese.
Criminal Justice in America, 1929, reprinted 1945. Translated
into German.
The Formative Era of American Law, 1938, reprinted 1939, 1949.
Organization of Courts, 1940.
Appellate Procedure in Civil Cases, 1941.
The Lawyer from Antiquity to Modern Times, 1953.
The Development of Constitutional Guarantees of Liberty, 1957,
translated into Vietnamese, 1958.
The Ideal Element in Law, Tagore Lectures at Calcutta, 1958.
0
PREFACE
Since Austin, books in English on jurisprudence have been

written primarily for students entering upon the study of law
or for their teachers. But with the passing of the localism
characteristic of the Anglo-American lawyer of the last genera-
tion, growing cultivation of comparative law and rising expecta-
tion of ultimate achievement of a law of the world, exposition
of the science of law should have a wider scope. Daniel Web-
ster said that justice was the great interest of man on earth.
Of the three instrumentalities of social control by which that
interest is made effective, namely, religion, morals, and law, the
brunt of the labor in the world of today has fallen upon law. A
science of adjustment of relations and ordering of conduct of in-
dividuals so as to promote and maintain an ideal relation among
mankind, is something which deeply concerns more than those
who are preparing to take part as lawyers in the practice of
law.
Accordingly in writing this book I have had in mind the gen-
eral lay reader, the practising lawyer, the judge, the legislator,
the law teacher, and the student, whether the latter comes to his
study of law from some preparation in philosophy, in history, in
economics, in political science, in ethics, or in sociology, in the
course of which he has acquired or confirmed an idea of law
as a body of rules. Indeed, I might add those who think of law
from experience only of social work on the confines of the legal
order. The science of law has much to say to each of these.
What I seek specially to bring out to every type of reader
and in every connection is the difference between law and a law,
that law is not a mere aggregate of rules of law nor the legal
order a glorified system of policing. I would show the impor-
tance of both universal principles and local rules, of principles
[VII]
Preface
by which law is developed by reason applied to experience and
then tested by further experience, and of rules of law to meet
special local conditions, geographical, ethnic, economic, or his-
torical, which require adaptation of the administration of justice
to local needs. Also I would seek to develop appreciation of the
importance of balance of the universal and the local, of principle
and rule, and of the legal order both to the political order and
to the moral order. I would bring out specially the importance
of the ideal element in law. But ideals may be local. An idealized
picture of a local institution is not a universal ideal.
All this, however, is not to be set forth dogmatically in ab-
stract propositions but will appear in the setting forth of the ac-
tual historical and doctrinal or legislative development of the law
as a whole and of special fields of the law.
It has seemed to me important also, now that comparative
law is finding a place in legal education, to bring out that it is
not simply a comparative cataloguing of rules in this lawmaking
jurisdiction or that, but may show how, while the same problem
of law and justice may often have received different answers from
different legislators, yet principles, starting points for judicial
reasoning, derived from experience of adjudication or doctrinal
exposition, have been tending more and more toward a uniformity
,of law except where local geographical, ethnic or economic con-
ditions require special rules.
Faith in this as the sound method of expounding the science

-of law has come to me in the course of a long and varied experi-
ence of what the various elements of the community understand
by and expect of law, and developed consciousness of the need of
more generally diffused understanding of what law and the
legal order are.
In 1887, when I was in my junior year in college my father

-gave me Holland's Elements of Jurisprudence (3d ed. 1886),
,Amos's Science of Law, and Maine's Ancient Law. In the next
[Viii]
Preface
two years I read them over and over. College education in those
days was chiefly Latin, Greek, and Mathematics. I read five
dialogues of Plato and Aristotle's Politics under a Professor of
Greek who was more interested in Scotch metaphysics (he always
quoted Dugald Stewart) than in Greek, and took a required
course in philosophy taught from Spencer's First Principles by
a Comtian utilitarian. Thus I came to the Harvard Law School
in 1889 with very confused ideas of law. Professor Gray in his
preliminary lectures on the law of property introduced me to
Austin and settled my ideas for a time. What counted more, in
a happy encounter during the Christmas recess, he led me to
read Sohm's Institutionen des r6mischen Rechts (not then trans-
lated) and through Sohm I came to read Puchta's Cursus der
Institutionen and the general part of Savigny's System des heuti-
gen r6mischen Rechts. I read and re-read Austin (in the 5th
edition, 1883) and thus left the law school a convinced utilitarian
and follower of Austin as were those who got their juristic ideas
at Harvard in the great days of Langdell, Gray, Ames, and Thay-
er.
Reading Holmes on the Common Law while in Law School
I had not made much out of it. Reading it again in 1893 and
reading Maine's Early History of Institutions, I began to turn
to the then dominant historical school. In College I had been
brought up on Herbert Spencer's First Principles and this and
my Anglo-American law training did not incline me to philosophy
of law. But before I began teaching, contact with a teacher of
philosophy, trained at Berlin under Paulsen, induced me to read
Kant's Rechtslehre and Hegel's Grundlinien der Philosophie des
Rechts and from them I turned to the later metaphysical jurists
and at least began to understand that there was something in
law of which English analytical and historical jurisprudence had
not taken enough account. Yet it was a decade later that I be-
gan to see how to use this understanding. Between 1890 and
[IX]
Preface
1900 I began the course of systematic reading of all I could lay
hand upon in Roman law, comparative law, jurisprudence and
legal history which I have kept up ever since.
When in 1899 I was called on to teach jurisprudence at the
University of Nebraska I still held to the then orthodox analytical
jurisprudence with some reservations and some concessions to
Savigny and Maine. Happily in the early years of the present
century it was my good fortune to be associated with Edward A.
Ross, then Professor at Nebraska, and thus to be set to reading
Ward and to thinking about sociological jurisprudence. When I
went to Chicago in 1907 I met Albion W. Small, and to Ross and
Small, next to John Chipman Gray, I owe a decisive impetus at
a critical point in my study.
If James Barr Ames had been spared to live out the allotted
three score years and ten we should probably have had a revival
of philosophical jurisprudence in America fifty years ago. It
was not, however, until I re-read some of his later writings after
his death that I saw where he was leading us. So, too, with
Holmes. Every student of law in America in the last fifty years
was profoundly influenced by him. Beginning to write from
the analytical standpoint in the days when he was editor of the
American Law Review, he fell for a time into the historical cur-
rent of the latter part of the nineteenth century. His oft-quoted
dictum that the life of the law has not been reason, it has been
experience, was an epigrammatic formulation of the creed of
Savigny and Maine. Nevertheless as early as 1897 he had moved
beyond the analytical-historical jurisprudence of the time and
had become a pioneer of the sociological jurisprudence of the
next decade. But this was not realized at first. It was not until
he began his long series of classical opinions upon the juristic
questions involved in American constitutional law that law teach-
ers and students sat at his feet.
Preface
Behind this book are seventy years of study and fifty-four
years of teaching jurisprudence as well as some years of active
practice of law and on the bench of a state Supreme Court.
Hence I have written with my eye upon the practical problems
of the legal order in the general bigness of everything today,
overcoming of difficulties of distance and time which has been
making every locality in the world the near neighbor of every
other, and multiplication of threats of injury to life and limb
through mechanizing of every form of human activity.
This book was planned and writing was begun in 1911. The
first nine chapters were done by 1916 when pressure of adminis-
trative work followed by the first World War required suspension
of work upon it till 1920. Between 1920 and 1926 I wrote chap-
ters 20 to 26. But during that time in addition to much increased
administrative and teaching tasks I was busied with direction
of the Survey of the Administration of Justice in Cleveland in
1927. Later I was one of the National Commission on Law Ob-
servance and Enforcement (1929-1931). In 1937 1 was appoint-
ed to one of the newly instituted University Professorships at
Harvard and had to rearrange my whole program of work. Al-
so the second World War (1939-1945) interfered with consecu-
tive writing. But by 1946 I had written chapters 26-30. In
1946-1949 1 was Adviser to the Ministry of Justice of the Chinese
National Government in setting up the courts, the whole judicial
system having been disrupted by eight years of Japanese occu-
pation, and Adviser to the Chinese Ministry of Education, help-
ing re-establish the law schools. I was in China during this time
and got no writing done on the book. Returning to the United
States I became Professor of Law at the University of California
at Los Angeles, teaching history and system of the common law
and jurisprudence, along with ordinary law-school courses. At
[XI]
Preface
this time (1949-1952) I revised chapters 1-30, and wrote chap-
ters 31-32. In 1953 I left Los Angeles and went to India as
Tagore Professor of Law at the University of Calcutta, where
I delivered the Tagore Lectures on the Ideal Element in Law,
and conducted a question and answer course in jurisprudence. I
now retired permanently from law-teaching. Returning to
America I was compelled to find remunerative editorial work
till in 1955 a foundation, which modestly prefers to bestow its
grants anonymously, made me an award, followed by annual
grants in aid in 1956, 1957, and 1958. This enabled me to re-
vise the whole manuscript and write the two final chapters:
chapters 33 and 34.
Especially I must acknowledge my debt to John Chipman

Gray who taught in Harvard Law School, 1869-1912. He set
me in the right path at the beginning of my study of law by di-
recting me to Roman law as an introduction to comparative law.
Many years afterward, when I came to teach Roman law and
jurisprudence at Harvard he sometimes came to my seminar
and took part in the general discussion. Moreover, I must ac-
knowledge a real debt to the seventy-five law teachers in law
schools in the English-speaking world who have sat in my seminar
in jurisprudence and discussed with me and with each other most
of the things considered in these pages.
Much of what is put in final form in chapters 1 to 19 was

first published in articles in the Harvard Law Review between
1911 and 1937 and has been used by permission of the Harvard
Law Review Association. Also in my Tagore Lectures on The
Ideal Element in Law I made use of material from chapters 7 to
12 and in places elsewhere which is now published by permission
of the University of Calcutta.
[XII]
Preface
Finally, I must acknowledge indebtedness to my secretary,
Miss May M. McCarthy, who has had charge of the manuscript
from the beginning. Her indefatigable and intelligent verifica-
tion of references in many languages and care for the manuscript
through multiplied revisions and rewritings has been indispensa-
ble.
July 3, 1958
Pound Jurisprudence-b [XIII]

SUMMARY OF CONTENTS
VOLUME I
PART 1
JURISPRUDENCE
Chapter Page
1. What is Jurisprudence? --------------------------- 7
2. History of Jurisprudence §§ 1-8 --- 25
3. Schools of Jurists: The Nineteenth-Century Schools
§§ 9-12------------------- 69
4. The Social Philosophical Schools §§ 13-18 119
5. Realist Schools §§ 19-21 ----------- 193
6. Sociological Jurisprudence §§ 22-29 --------------- 289
PART 2
THE END OF LAW
7. The End of Law as Developed in Legal Precepts and
Doctrines §§ 30-36 ----------------------- - 361
8. The End of Law as Developed in Juristic Thought
§§ 37-46 ----- 461
VOLUME II
PART 3
THE NATURE OF LAW
9. Theories of Law §§ 47-56 ------------------------- 3
10. The Nature of Law §§ 57-64 ------------------ 97
11. Law and Morals-Jurisprudence and Ethics §§ 65-69-- 213
12. Law and the State-Jurisprudence and Politics §§
70-73 ----------------- 281
13. Justice According to Law §§ 74-79 --------------- 347
Pound Jurisprudence [XV]
Summary of Contents
VOLUME III
PART 4
THE SCOPE AND SUBJECT MATTER OF LAW
Chapter Page
14. Interests §§ 80-99 ------------------------------- 3
15. The Securing of Interests §§ 100-102 ---- 325
PART 5
SOURCES, FORMS, MODES OF GROWTH
16. Sources and Forms of Law §§ 103-105 ------------- 377
17. The Traditional Element §§ 106-107 437
18. The Imperative Element §§ 108-111 -- 571
19. Codification §§ 112-114 673
VOLUME IV
PART 6
APPLICATION AND ENFORCEMENT OF LAW
20. The Judicial Process in Action §§ 115-116------------3
PART 7
ANALYSIS OF GENERAL JURISTIC CONCEPTIONS
21. Rights §§ 117-119 ------------------------------ 39
22. Powers § 120 ------------------------ 91
23. Conditions of Non-Restraint of Natural Freedom §§
121-122 ----------------------- - 107
24. Duties and Liabilities § 123 ------------------------ 163
25. Persons §§ 124-127 -------------------------------- 189
26. Acts §§ 128-129 ---------------------------------- 407
27. Things § 130 -------------------------------------- 527
[XVl]
Summary of Contents
VOLUME V
PART 8
THE SYSTEM OF LAW
Chapter Page
28. Division and Classification § 131 -------------------- 3
29. Proprietary Rights: Possession § 132 77
30. Proprietary Rights: Ownership §§ 133-135 119
31. Obligations-Duties of Performance and of Restitution
§§ 136-139 -- 197
32. Duties of Reparation §§ 140-141 - - 281
33. Maintenance and Enforcement of Rights §§ 142-143 - 347
34. Comparative Civil Procedure §§ 144-151 425
Index 717
[XVII]
TABLE OF CONTENTS
VOLUME I
PART 1
JURISPRUDENCE Vol. I
Page
Chapter 1. What is Jurisprudence?-------------------- 7
Chapter 2. History of Jurisprudence -------------------- 25

A. The Beginnings of a Science of Law
Sec.
1. Greek Philosophy-Philosophical Theories of Justice
and the Social Order -------------------------- 27
2. Secularization of Social Control-Lawyers and Law
Teachers ------------------------------------ 29
3. The Beginnings of Legal Analysis-The Taking of Dif-
ferences and Framing of Maxims --------------- 31
4. Greek Philosophy and Roman Law ---------------- 34
5. Roman Jurists and Law Teachers 38
B. The Beginnings of the Science of Law in the
Modern World
6. Roman Law and Scholastic Theology --------------- 42
C. The Modern Science of Law

7. The Law-of-Nature School ----------------------- 47
8. The Nineteenth-Century Schools and Their Deriva-
tives --------------------------------------------- 51
[xix]
Table of Contents Vol. I
Page
Nineteenth-Century
Chapter 3. Schools of Jurists: The
Schools --------------------------------------------- 69
See.
9. The Analytical School --------------------------- 71
10. The Historical School ---------------------- 81
11. The Philosophical School __ 87
12. Critique of the Nineteenth-Century Schools --------- 91
Chapter 4. The Social Philosophical Schools -------------- 119
13. The Transition to the Twentieth-Century Schools ----121
14. The Social Utilitarians -------------------------- 127
15. The Neo-Kantians ------------------------------ 142
16. The Neo-Hegelians ----------------------------- 158
17. Recent Neo-Idealists ------------------------------ 170
18. The Revival of Natural Law --------------------- 178
Chapter 5. Realist Schools ------------------------------ 193
19. Introductory Excursus-Interpretations of Legal His-
t o r y --------------------------------------------- 1 9 5
20. The Economic Interpretation ---------------------- 227
21. Neo-Realism --.------------------------------- 247
Chapter 6. Sociological Jurisprudence ------------------- 289

22. Characteristics of Sociological Jurisprudence -------- 291
23. Development of the Sociological School-The Mechani-
calStage ------------------------ ---- 299
24. Development of the Sociological School-The Biological
Stage ------------------------------------------- 303
25. Development of the Sociological School-The Psycho-
logical Stage ------------------------- 312
26. Development of the Sociological School-The Stage of
Unification ---------------------------------- 325
27. Contemporary Sociology in Relation to Sociological Ju-
risprudence ------------------------------------- 328
28. Progress of Jurisprudence Since the Passing of the
Nineteenth-Century Schools --------------------- 347
29. The Program of the Sociological School ------------- 350
[XX]
Table of Contents
PART 2
THE END OF LAW Vol. I
Page
Chapter 7. The End of Law as Developed in Legal Precepts
and Doctrines ---------------------------------- 361
Sec.
30. The End of Law: Theories of Justice ------------- 363
31. Primitive Law -------------------------------- 367
32. The Strict Law ---------------------------- 382
33. Equity and Natural Law ------------------ --- 406
34. The Maturity of Law 422
35. The Socialization of Law 429
36. What of a Next Stage-A Law of the World? ------457
Chapter 8. The End of Law as Developed in Juristic Thought 461
37. Philosophical Ideas of the End of Law ------------ 463
38. Greek Juristic Thought --- ----------- 464
39. Roman Juristic Thought ------------------------ 467
40. Medieval Juristic Thought --- ----------- 470
41. The Protestant Jurist-Theologians - 474
42. The Spanish Jurist-Theologians - 479
43. The Seventeenth Century -- 483
44. The Eighteenth Century - 493
45. The Nineteenth Century -- 503
46. The Twentieth Century - 526
VOLUME II
PART 3
THE NATURE OF LAW Vol. TI
Page
Chapter 9. Theories of Law ---------------------------- 3
47. What Have Jurists Been Seeking to Define? 5
48. The Two Elements of a Legal System -------------- 9
49. Greek Definitions of Law ------------------------- 18
[XXI]
Table of Contents
Chapter 9. Theories of Law-Continued Vol. II
Sec. Page
50. Roman Definitions of Law ------------------------ 25
51. Development of the Conception and Definition of Law
from the Glossators (Twelfth Century) to the Time
of Grotius (Seventeenth Century) --------------- 31
Grotius to Kant (Seventeenth and Eighteenth Cen-
turies) -43
from Kant to Jhering (1797-1877) ------ 55
54. Development of the English Analytical Theory ------ 68
55. Social Philosophical and Sociological Theories 79
56. The Relation of Theories of Law to Other Problems of
Jurisprudence 89
Chapter 10. The Nature of Law 97

57. The Question a Practical One 99
58. Analytical Scheme of the Meanings and Constituents of
Law --------------------------------------- 104
59. The Analytical Doctrine - 132
60. Normative and Realist Analytical Theories 163
61. The Doctrine of the Historical School 169
62. The Doctrine of the Nineteenth-Century Philosophical
Jurists ---------------------------- 183
63. The Doctrine of the Sociologists ------------- 186
64. Public Law, International Law, and the Analogy of
"Law" in the Physical and Other Sciences 199
Chapter 11. Law and Morals-Jurisprudence and Ethics ---213
65. Preliminary: Morals and Morality ---------------- 215
66. The Historical View ---------------------------- 217
67. The Philosophical View --------------------------- 222
68. The Analytical View ------------------------------- 234
69. The Sociological View ------------------------------ 272
[XXII]
Table of Contents Vol. 11
Page
Chapter 12. Law and the State-Jurisprudence and Politics 281
Sec.
70. Theories of the State ----------------------- 283
71. The Theory of Sovereignty 308
72. The Separation of Powers -------------- 323
73. Recent Theories 334
Chapter 13. Justice According to Law ---------------- 347
74. The Public Administration of Justice-The Legal Or-
der ---------------------------------- 349
75. Justice without Law ------------------------- 352
76. Justice According to Law----------- 374
77. Legislative Justice ---------------------- 388
78. Executive and Administrative Justice -- - 407
79. Judicial Justice ----------------------------- 447
VOLUME I1
PART 4
THE SCOPE AND SUBJECT MATTER
OF LAW Vol. III
Page
Chapter 14. Interests -------------------------------- 3
80. Civilization and Law 5
81. Theory of Interests ------------------------ 15
82. Individual Interests-Classification - - 25
83. Individual Interests-Personality ---------------- 30
84. Individual Interests-Domestic Relations 68
85. Individual Interests of Substance-1. Nature and
Classification ----------------------------- 101
86. Individual Interests of Substance-2. Property --- 105
87. Individual Interests of Substance-3. Freedom of In-
dustry and Contract ----------------------- 155
88. Individual Interests of Substance-4. Promised Ad-
vantages -------------------------------- 162
[XXIII]
Table of Contents
Chapter 14. Interests-Continued Vol. III
See. Page
89. Individual Interests of Substance-5. Advantageous
Relations with Others -.-...........- 221
90. Individual Interests of Substance-6. Freedom of As-
so ciation -------- ----------- ------------ ----- -----2 2 9
91. Individual Interests of Substance-7. Continuity of
Employment -------------------------------- 233
92. Public Interests --------------- ------- 235
93. Social Interests-1. Theory and Classification ------ 268
94. Social Interests-2. The General Security -- - 291
95. Social Interests-3. Security of Social Institutions -_ 296

96. Social Interests-4. The General Morals ----------- 303
97. Social Interests-5. Conservation of Social
Resources ---------------------------------- 305
98. Social Interests-6. General Progress ------------- 311
99. Social Interests-7. The Individual Life ----------- 315
Chapter 15. The Securing of Interests

100. Valuing of Interests-----------
101. Means of Securing Interests--------------------
102. The Limits of Effective Legal Action------------
PART 5
SOURCES, FORMS, MODES OF GROWTH
Chapter 16. Sources and Forms of Law-
103. Sources and Forms-Meaning of Terms
104. Sources of Law
105. Forms of Law-----------------------
Chapter 17. The Traditional Element

106. Laws as Tradition
107. Modes of Growth Through the Traditional Element ---
[XXIV]
Table of Contents Vol. III
Page
Chapter 18. The Imperative Element ------------------- 571
Sec.
108. Legislative Lawmaking --------- 573
109. Agencies of Preparation for Legislation ----------- 584
110. Agencies of Legislation - 605
111. Relation of the Imperative to the Traditional Ele-
ment -------- 654
Chapter 19. Codification ----------------------------- 673
112. History and Achievements of Codification - 675
113. Codification in Anglo-American Law 705
114. Possibilities and Advisability of a Civil Code -------- 724
VOLUME IV
PART 6
APPLICATION AND ENFORCEMENT
OF LAW Vol. IV
Page
Chapter 20. The Judicial Process in Action ---------------- 3
115. Application of Legal Precepts 5
116. Individualization of Application ------------------- 20
PART 7
ANALYSIS OF GENERAL JURISTIC
CONCEPTIONS
Chapter 21. Rights --------------------------------- 39
117. Introductory Excursus-Juristic Conceptions -------- 41
118. The Conception of a Right 56
119. Classification of Rights------------------------- 84
Chapter 22. Powers --------------------------------- 91
120. A power ------------------- 93
Chapter 23. Conditions of Non-Restraint of Natural
Freedom --------------- 107
121. Liberties, Privileges, and Immunities -------------- 109
122. Immunities of Labor Unions --------------------- 143
[XXV]
Table of Contents Vol. IV
Page
Chapter 24. Duties and Liabilities --------------------- 163
Sec.
123. Conceptions of Subjection to Exaction or Control ----165
Chapter 25. Persons ------------------------------------ 189
124. Legal Units ------------------------------- 191
125. Status and Capacity -------------------- 262
126. Attributes of Legal Personality ----------------- 373
127. Beginning and Termination of Legal Personality --- 384
Chapter 26. Acts ------------------------------- 407
128. General Theory of Acts --------------- 409
129. Wrongful Acts-------------------- 502
Chapter 27. Things---------- 527
130. Things ------ 529
VOLUME V
PART 8
THE SYSTEM OF LAW Vol. V
Page
Chapter 28. Division and Classification ------------------ 3
131. Theory, History and Present Status of Classification of
Law ----------------------------------
Chapter 29. Proprietary Rights: Possession ------------ 77
132. Possession --------------------------------- 79
Chapter 30. Proprietary Rights: Ownership 119
133. Ownership and Property in General 121
134. Acquisition and Loss of Ownership 169
135. Limited Real Rights -------------------------------- 171
Chapter 31. Obligations-Duties of Performance and of
Restitution ----------------------------------------- 197
136. Obligations -------------------------------- 199
137. Contracts --------------------------------- 203
138. Obligations Analogous to Contractual ------------. 233
139. Transfer and Extinction of Obligations ----------- 259
[XXVI]
Table of Contents Vol. V
Page
Chapter 32. Duties of Reparation ---------------------- 281
See.
140. General Theory of Liability 283
141. Classification and Definitions --------------------- 285
Chapter 33. Maintenance and Enforcement of Rights ------ 3 47
142. Adjective Law --------- 349
143. Judicial Enforcement ------------ 364
Chapter 34. Comparative Civil Procedure - - 425
144. Mode of Instituting a Judicial Proceeding - - 427
145. Actions 441
146. Ascertainment of the Facts--------------------- 451
147. Judgment -- 585
148. Review-Appeal ---- - 606
149. Execution - 651
150. Costs ---------------------------------------- 667
151. Representation in Litigation --------------------- 673
Index -------------------------------------------- 717
[XXVII]
JURISPRUDENCE
0
1 Pound Jurisprudence-I [I]

Part 1
JURISPRUDENCE
1. What is Jurisprudence?
2. History of Jurisprudence, §§ 1-8.
3. Schools of Jurists: The Nineteenth-Century Schools,
§ § 9-12.
4. The Social Philosophical Schools, §§ 13-18.
5. Realist Schools, §§ 19-21.
6. Sociological Jurisprudence, §§ 22-29.
13J
Chapter f
What is Jurisprudence?
[5]
Chapte; I
What Is Jurisprudence?
urisprudence in its widest sense is the science

of law.1 This is the original and etymological
meaning and is in accord with the best usage.
There are, however, three other uses of the
term; two of them with some warrant, the third wholly
unjustifiable.
1. The first is peculiar to England, British do-
minions, and the United States. As study of the science
of law as such (i.e. apart from political science and polit-
ical philosophy) dates in England and America from
I. Holland, Jurisprudence (13 ed. 1924) chap. 1; Salmond, Jurisprudence

(1902) §§ 1-4; Gray, The Nature and Sources of the Law (1909) §§ 288-321
(2 ed. 1921, pp. 133-151); Amos, The Science of Law (1874) chap. 2; Austin,
Jurisprudence (5 ed. 1885) lect. 1; Bryce, Studies in History and Jurispru-
dence (1901) essay 12; Pollock, Essays in Jurisprudence and Ethics (1882) es-
say 1; Clark, Roman Private Law: I Jurisprudence (1906-1919) 1-39; Gareis,
Science of Law (transl. by Kocourek, 1911) §§ 3-4, pp. 13-28; Korkunov, Gen-
eral Theory of Law (transl. by Hastings, 1909) §§ 2-4; Brown, The Austinian
Theory of Law (1906) §§ 640-669; Allen, Legal Duties (1931) 1-27; Jones,
Historical Introduction to the Theory of Law (1940); Stone, The Province and
Function of Law (1946) §§ 1-17; Paton, Text-Book of Jurisprudence (2 ed.
1951) § 1; Patterson, Jurisprudence (1953) §§ 1.00-1.05; Friedmann, Legal
Theory (2 ed. 1947) Chaps. 1-2.
Rottschaeffer, Jurisprudence: Philosophy or Science (1927) 11 Minn.Law Rev.
293; Cohen, Philosophy and Legal Science (1932) 32 Columbia Law Rev. 1103,
reprinted in his Law and the Social Order (1933) 219; Cohen, Law and Scien-
tific Method, in Law and the Social Order (1933) 184; Cowan, The Relation
of Law to Experimental Social Science (1948) 96 U. of Pa. Law Rev. 484; Cos-
sio, Jurisprudence and the Sociology of Law (1952) 52 Columbia Law Rev. 356.
[7]
Jurisprudence
Austin's Province of Jurisprudence Determined (1832),

and as Austin's method was exclusively analytical, a
narrower meaning became current in English-speaking
countries. It thinks of law as an aggregate of laws and
of laws as rules, and this narrow definition of law gives a
narrow limitation of the science of law. In this nar-
rower sense in which the word has been used by many
English writers, jurisprudence might be called the com-
parativeanatomy of developed systems of law.
Holland uses the term in this sense when he defines Juris-
prudence as the "formal science of positive law." 2 This defini-
tion proceeds on the Aristotelian distinction between substance
and form. To give an old-time illustration, a smith has in his
hand the raw material, the substance, steel and wood. He has
in his mind the idea, that is, the picture of a saw. He fashions
the substance to that mental picture and so gives to the substance
the form of a saw. Hence the maxim forma dat esse rei. Ac-
cordingly, by saying that Jurisprudence is a formal science, Hol-
land means that it has to do with systems of legal precepts but
not with legal precepts, the substance given form in those sys-
tems. It does not criticize the content of a body of laws except
for being out of line with the analytical system. It arranges and
systematizes that content. By "positive law" he means the body
of legal precepts which actually obtain as authoritative legal
materials for decision and authoritative bases of predicting de-
cisions in a given time and in given places; not the received ideals
of legal systems, and not the ideal precepts which philosophical
or economic or sociological considerations might dictate or
indicate.
2. Jurisprudence (13 ed. 1924) 13.

[8]
This is one side of the science of law. I shall call it

analyticaljurisprudence.
2. A second use of the term is French, and to some

extent American. The French use the word jurisprudence
to mean the course of decision in the courts, contrasting
it with legislation and with "doctrine," i.e. the opinions of
learned commentators. In the civilian's theory of forms
of law, legislation alone had full authority; jurisprudence
(i.e. case law) and doctrine (i.e. textbook law) were per-
suasive only. But this has undergone some change.'
In America the word "jurisprudence" has been used to some
extent in the French sense. Thus the phrase "equity jurispru-
dence" meaning the course of decision in Anglo-American courts
of equity, has been fixed in good usage by the classical work of
Judge Story.
3. By a not unnatural transition, the word has come

to be used, chiefly in this country, as a polysyllabic
synonym for "law."
"Medical jurisprudence" for the forensic applications of med-
icine or the law relating to or of interest to physicians, "dental
jurisprudence" for the law of interest to dentists, "engineering
jurisprudence" for the law of interest to engineers, and other
phrases of the sort, are quite indefensible. But "medical juris-
prudence" is more or less established in good usage.
3. As to the present status of this subject, see Tune et Tunc, Le droit des
Otats-Unis d'Amdrique: Sources et Technique (1955) §§ 64-66. Also post lect.
XVI, § 103.
[9]
Jurisprudence
I shall take it, then, that Jurisprudence means the

science of law.
It should be noted, however, that the phrase "science
of law" involves difficulties in that there is no agreement
as to what constitutes a science, and the word "law" is
used in juristic writing in more than one meaning.
Nowadays a question is raised whether we may speak prop-
erly of a "science" of law.4 The answer depends on what we mean
by the word "science." In the sense in which I am using it, a
science is a body of critically controlled and ordered knowledge
about something significant. In that sense we speak, and may
properly speak, of a science of language and of religion; we may
speak of social sciences and of historical science. The present
tendency to a narrower use of the term "science" is due to the
positivist philosophers of the last quarter of the nineteenth cen-
tury. They held that reality was in laws analogous to those of
mathematical astronomy and physics. 5 But note how fashions of
thought and speech change. In the seventeenth and eighteenth
centuries men thought and spoke not of a science but of a philoso-
phy. Descartes wrote on physics as philosophy. Newton's great
book on physics is entitled "The Mathematical Principles of Nat-
ural Philosophy." In the same way, what we now call the nat-
ural sciences were called natural philosophy in the eighteenth
century and even later. Also ethics was called moral philosophy
until recently, where we now speak of moral science; and psy-
chology was called mental philosophy, where it is now rather
mental science. In the nineteenth century, when evolution and
4. See Rueff, From the Physical to the Social Sciences (transl. by Green,
1929); Yntema, The Implications of Legal Science (1933) 10 N.Y.Univ.L.Q.Rev.
279.
5. Hence laws could only be descriptions of phenomena-Norms, descrip-
tions of what ought to be, had no place in science.
[10]
historical method were the vogue in thinking, men spoke of nat-

ural history, where now they speak of the biological sciences.
Thus we have thought of these branches of knowledge as philoso-
phy, as history, as science successively. In the same way, men
have thought of the different organized bodies of knowledge of
social phenomena as philosophy (seventeenth and eighteenth cen-
turies), as history (nineteenth century-e.g. Freeman's dictum
as to politics and history; 1 cf. Iowa Applied History Series in
which present questions of politics and law are treated as ap-
plied history), and as science (twentieth century-the "social
sciences").
Formerly jurisprudence was held to be a philosophy of law.
Austin speaks of "General Jurisprudence, or the Philosophy of
Positive Law." But we may very well distinguish philosophical
jurisprudence from philosophy of law, as we may distinguish
historical jurisprudence from legal history. 7 Philosophical jur-
isprudence is one form or side of the science of law, organized by
philosophical method and directed chiefly to the ideal element of
law and to a philosophical critique of legal institutions, legal
doctrines, and legal precepts. Philosophy of law is one side of
practical philosophy; it is practical philosophy applied to the
legal order and its problems, and to the body of authoritative le-
gal materials whereby we seek to maintain that order.8
Here we must take note of the distinction between the nat-
ural (i.e. physical and biological sciences) and normative (i.e.,
social) sciences-the one dealing with what is and the other with
what ought to be. But there are two possibilities here. (a) We
may study attempts to realize a wished ought-to-be as a what-is,
6. "Past politics are present history."

7. Cf. the distinction between social philosophy and social science. Land-
beer, Presupposition in the Social Sciences (1932) 37 Am.Journ.Sociol. 539.
8. I Berolzheimer, System der Rechts- und Wirtschaftsphilosophie (1904-
1907) viii.
[11]
Jurisprudence
or (b) we may study this what-is from theories of what-it-

ought-to-be.
Another not uncommon assertion is that there is no science
of law, there is only an art of deciding cases, or of advising
litigants, or of predicting the course of judicial and administra-
tive action. An art is a specialized way of doing something.
Undoubtedly the administration of justice is an art. But there
is an organized body of knowledge about the authoritative ma-
terials with which it is administered, the way it is administered,
how it may be administered, and how it ought to be adminis-
tered. Study of the art and of how it is exercised is likely to be
more effective if one has a grasp of the science.
As to the term "law" as we use it in English, and

the same is largely true of the corresponding word in
other languages, we mean any of three things, or some-
times all three.
1. Historically, the oldest and longest continued
use of "law" in juristic writing is to mean the aggregate
of laws, the whole body of legal precepts which obtain in
a given politically organized society. But in a wider
phase of this sense it may mean the body of authoritative
grounds of, or guides to, judicial and administrative ac-
tion, and so of prediction of such action, established or
recognized in such a society including precepts, tech-
nique, and received ideals. In this sense jurists speak of
"systems of law" and "justice according to law." Usual-
ly also we use the word in this sense when we speak of
"comparative law." We mean the body of received or
established materials on which judicial and administra-
[12]
tive determinations are to, and on the whole do, proceed.

Hereafter, following a logical rather than a chronologi-
cal order, I shall call this "law in the second sense."
2. In another sense the term "law" is used to mean
the legal order (ordre juridique, Rechtsordnung). It is
used to mean the regime of ordering human activities
and adjusting human relations through the systematic
application of the force of a politically organized society.
Here again, however, there is a wider idea. The legal
order is a specialized phase of social control. It is from
one standpoint a regime of ordering conduct through so-
cial pressure backed by the force of the political organi-
zation. If we go back a bit in legal history we come to
regimes of social pressure without such backing. To uni-
fy the phenomena of developed societies with those of
more primitive social orders, historical jurists have used
"law" to mean the whole regime of social control. The
word "law" is used in the sense of the legal order when
we speak of "respect for law," or of "the end of law."
Thus when we speak of respect for law we mean respect
for the legal order. One might, for example, respect the
legal order and yet object to some particular item of the
body of legal precepts, such as a fugitive slave law, or
the National Prohibition Act. Most of what is called
philosophy of law is a philosophical consideration of the
legal order. Also in recent years the science of law has
come to be quite as much a science of the legal order as
one of the authoritative materials of decision. Hereaft-
[13]
Jurisprudence
er I shall speak of the legal order as "law in the first

sense," using a logical rather than a historical sequence.
3. In still another sense, many who write of "law"
mean what Mr. Justice Cardozo has taught us to call "the
judicial process." In this sense law is used to mean the
process of determining controversies whether as it actu-
ally takes place or as it is conceived it ought to take place.
To this, today we shall have to add what may well be
called the "administrative process," that is, the process
of administrative determination, whether as it actually
takes place or as it is conceived it ought to take place.
The term "law" is used in this sense in most neo-realist
writing of today, and in such pronouncements as that
of Professor Llewellyn that he includes under "law" all
9
that is done officially.
4. In addition, the term "law" may be used to mean
all three of the foregoing as, for example, in much of the
discussion of "law and morals," which may mean the re-
lation of morals or morality, or both, to the legal order,
or to the body of authoritative materials for the guidance
of judicial and administrative action, or to the judicial
process, or to all three. Similarly, when we speak of the
"science of law" we may mean an organized body of
knowledge as to the authoritative materials of judicial
and administrative determination, as did the analytical
9. For the classical Roman law, one might have to add the juristic process.
[14]
jurists in the last century. In recent times, however, we

are more likely to mean a body of knowledge or investi-
gation in which the legal order, the authoritative materi-
als for guidance of judges and officials, and the judicial
and administrative processes are all taken into account
as somehow making up one subject-the materials and
processes of the systematic ordering of human relations
by a politically organized society.
Can these three ideas, the legal order, the body of
authoritative grounds of decision and bases of prediction,
and the judicial and administrative processes be unified
so as to make one subject of one science? They may be
so unified by the idea of social control. I am not using
that term here in the sense in which some economists have
been using it, namely, to mean consciously planned guid-
ance of economic processes through those who wield the
force of politically organized society. I use it rather in
the wider sense in which the term was first given cur-
rency by Professor Ross, whom it was my good fortune
to have for a colleague at Nebraska, and to whom I owe
my real start in the science of society. In that sense it
means the control of each of us by the pressure of his
fellow men, whether unconscious and involuntary or di-
rect and purposive. It is this pressure, more and more
organized and directed, which has established and main-
tains our mastery over human nature. All social control
is not law in the lawyer's sense, nor achieved through law.
Religion, ethical custom, the discipline of kin groups,
[15]
Jurisprudence
of religious organizations, and of voluntary associations

of all sorts, are also agencies of social control. The
province of jurisprudence is social control through the
systematic application of the force of politically organ-
ized society. That gives rise to the legal order, it re-
quires a body of authoritative materials in which tri-
bunals are to find the grounds of determinations, and
in a developed legal order it requires a judicial and ad-
ministrative process admitting of reasonable prediction.
Hence by the term "science of law" we mean an or-
ganized and critically controlled body of knowledge both
of legal institutions and legal precepts and of the legal
order, that is, of the legal ordering of society. We are
to study both the task, social control through the legal
ordering of human relations in society, and the means,
legal institutions, law in the sense of a body of laws, and
the judicial and administrative processes. For it is
impossible to keep the end and the means apart in any
study which will give a mastery of either. This concep-
tion of a process as the subject matter of jurisprudence
is recent. In the last century, jurists thought of a
science treating of laws. Today, there is a tendency
to think of a science of achieving social control by means
of or with the aid of laws. In this sense we may speak
of a science of the adjustment of human relations
through the public administration of justice, or, more
specifically, a science of the securing of interests in
[16]
civilized society by means of an ordered judicial and ad-

ministrative adjustment of relations.
A developed system of law-and we are concerned
with undeveloped systems only because and to the extent
that they enable us to understand and treat scientifically
of developed systems-may be looked at from four
points of view.
(a) Analytical. This method consists in examina-
tion of the structure, subject matter, and precepts of a
legal system in order to reach by analysis the principles,
theories, and conceptions which it logically presupposes,
and to organize the authoritative materials of judicial
and administrative determination on this logical basis.
It postulates, or takes as the ideal, a body of logically
interdependent precepts." This is only a postulate or
perhaps an ideal. There has never been any such com-
pletely interdependent body of precepts. But the post-
ulate is useful to make a body of law teachable and in-
telligible and to make its precepts conform to reason.
This is the oldest method of scientific treatment of a
particular body of laws.
Having compared cases and thence compared rules
in the particular system, the next step is to compare
rules of different systems by analysis and formulate
general principles of law, i. e. authoritative starting
10. Note that this is a postulate or ideal. There never has been, and prob-
ably cannot be, any such thing except as a goal.
1 Pound Jurisprudence-2 [ 17]
Jurisprudence
points for reasoning. When that is done we get a

science of law. Something of this sort may be seen in
Roman law in the later years of the Republic."
(b) Historical. This method consists in investiga-
tion of the historical origin and development of the legal
system and of its institutions, doctrines, and precepts,
looking to the past of the law to disclose the principles
of the law of today, and seeking to organize the author-
itative materials of judicial and administrative action
on the basis of these historically developed materials.
It postulates a continuity of development culminating
in the authoritative legal materials of the time and place.
This is the last of the three methods recognized in
the last century (i. e. the analytical, the historical, and
the philosophical) to develop as a method of scientific
treatment of a particular system. As a method of
general legal science, it comes after the philosophical
method and as a revolt therefrom.
There is only a suggestion of this method in the
classical Roman law.' The pioneer is Cujas at Bourges
in the sixteenth century.
(c) Philosophical. This method consists in study
of the philosophical bases of the institutions and doc-
trines of the legal system and of its ideal element. It
I1. See Cicero, De oratore, 42, i § 189.

12. Gaius on the Twelve Tables, Dig. 1, 2, 1.
[18]
seeks to reach philosophical presuppositions of the legal

system, and to understand and organize its ideal ele-
ment through philosophy. It postulates ideals of the
end of law, or purposes of the legal order, with reference
to which institutions, doctrines, and precepts may be
measured and criticized.
In historical order, this is the second method to
develop in the scientific treatment of particular systems.
Combination of this method with the analytical method,
through the contact of Greek philosophers and Roman
lawyers in the later years of the Roman republic and
in the classical period of Roman law (Augustus to
Alexander Severus-first to third century), marks the
beginnings of a general science of law. Hence the philo-
sophical method is the oldest and longest continued
method of jurisprudence. It dominated the legal science
of Rome from Cicero's time on, and dominated the legal
science of the modern world from the seventeenth to
the nineteenth century.
Note that the three methods, as pursued in the nine-

teenth century, either presuppose eighteenth-century
natural law (i. e. an ideal body of precepts of which the
law of the time and place is a more or less imperfect
ascertainment) or presuppose a metaphysical theory of
law as the realization of an idea. Natural law is to be
reached, or the idea and its implications are to be reached,
by one of these three methods.
[19]
Jurisprudence
(d) Sociological. This method consists in study of

a legal system functionally, as a social instrument, as a
part of social control, and study of its institutions, doc-
trines and precepts with respect to the social ends to be
served. It presupposes that law is a specialized agency
of social control.
This method has no more than begun to be developed and
applied. The pioneer is the late Eugen Ehrlich, in his Seminar
for Living Law at Czernowitz. Recently it has begun to be ap-
13
plied in America.
Applied to the study of legal systems generally,
these four methods are the methods of jurisprudence.
Many name also a comparative method, although
the term comparative jurisprudenceis not as fashionable
as formerly. 4 It began to be urged as a distinct method
13. Publications of the Institute of Law of The Johns Hopkins University:

Monographs in the Study of Judicial Administration in Ohio (1930-1933);
Bulletins of the Study of Judicial Administration in Ohio (1933); Monographs
in the Study of the Judicial System of Maryland (1930); Bulletins of the
Study of the Judicial System of Maryland (1932); Monographs of Survey of
Litigation in New York (1931-1932); Bulletins of Survey of Litigation in New
York (1931-1932).
See Harron, Current Research in Law (1928-1929); Iddings, Current Re-
search in Law (1929-1930).
See Pound, The Task of the American Lawyer (1926) 20 Ill.Law Rev. 439;
Pound, Law and Laws (1927) 28 Univ. of Missouri Law Bull. 25; Research in
the Social Sciences (ed. by Wilson Gee, 1929); Oliphant, Study of the Opera-
tion of Rules of Law (1923) 9 Am.Bar Assn. Journ. 497. Beutel, Some Poten-
tialities of Experimental Jurisprudence (1957).
14. But see Jenks, The New Jurisprudence (1933) and my review, 47 Har-
vard Law Rev. 890; Pollock, Essays in the Law (1922) 1-30. The increase of
interest everywhere in comparative law is another matter. It is a result of
the rise of the welfare or social service state and the need of legislation every-
where to adjust the law to the exigencies of bigness of things and mechanizing
of all activities in the society of today.
F20]
in the last third of the nineteenth century, and got cur-

rency in America through Lord Bryce's Studies in His-
tory and Jurisprudence. But the propriety of naming a
comparative method, as a distinct method of jurispru-
dence, may be doubted. The analytical, historical, and
philosophical methods, as methods of jurisprudencemust
be comparative. Comparative law, a comparison of the
precepts, doctrines, and institutions which obtain in dif-
ferent systems of developed law, gives materials for
analytical jurisprudence, but is not in itself more than a
basis for a science of law. So also investigation and ex-
position of the actual course of development of a partic-
ular legal system is not historical jurisprudence, it is
legal history. This is the more true if the historian
accepts the unique-series theory of history. Legal his-
tory and the universal legal history, which Kohler urged,
give materials for historical jurisprudence. Moreover,
the English analytical and historical jurists employed a
comparative method, or used their methods compara-
tively, from the beginning.
Why did jurists make so much of a supposed distinct com-
parative method in the latter part of the nineteenth century?
Chiefly, as it seems, because until then the science of law in Con-
tinental Europe had not been, and had not had occasion to be,
comparative. In the eighteenth century reason had been held
all-sufficient. There was no call to look into gropings for rea-
son in this system or that. It was better to go straight to rea-
son, which must ultimately furnish the authoritative precept.
Thus the current theory of law made comparison superfluous,
and comparative law met no practical need. The development of
[21 ]
Jurisprudence
Germanic law had been arrested. The modern Roman law had a
continuous written history extending back almost to the Twelve
Tables (450 B.C.). In this development during more than two
thousand years, it had been four times purged of its archaisms.
Moreover, it had been given unity for the nineteenth century by
the Code Napol6on, and the many codes drawn in its likeness.
There was not, for a time, enough diversity of law in civil-law
countries to invite comparison, nor were there problems of legis-
lation and law reform to require the help of comparative law.
Hence, Continental jurists readily identified historical jurispru-
dence with historical treatment of the materials of Roman and
modern Roman law. On the other hand, in England, in the mid-
dle of the nineteenth century, with but six centuries of legal his-
tory as a system, the law was overhauling for the second time,
during the legislative reform movement, in the endeavor to rid it
of archaisms. Thus there was every reason for the English his-
torical jurist to look into the development of another system,
much older than his own, which had passed through the stages of
remaking by equity and by legislation, and to consider archaic
systems, analogous to that out of which his own had developed
at a time, by comparison, so recent. For the same reasons, when
Continental jurists began to employ their methods comparative-
ly, the change appeared revolutionary. Yet the result was, not a
new method, but that the historical and philosophical methods
were used, comparatively and hence more truly as methods of
jurisprudence. There was more scientific use of old methods
rather than a new method. Indeed, a purely comparative method,
apart from analysis, or history, or philosophy, would be barren.
Savigny said of a like notion that the task of the Continental
jurist should be to compare the practical rules of the classical
Roman law with those worked out on a Roman basis in the
Middle Ages and in modern Europe: "A few isolated cases ex-
cepted, the matter lies too deep to admit of being disposed of by
such a selection between contrasted practical rules, and a work
which sought to carry out this comparative point of view into
[22 ]
particulars, would remind one of the frame of mind of a child,

who, when the histories of battles are related to him, is always
inclined to ask which was the good party and which the bad." 15
In other words, a purely comparative method presupposes a
natural (i. e. ideal) law of universal validity. It assumes that
there is one right rule on every point and that all others are
wrong.
It should be remembered that the German historical school
arose at the very beginning of the nineteenth century, while
the English historical school arose after the middle of that cen-
tury. Accordingly, the method of the former was metaphysical-
historical, while the method of the latter was comparative-his-
torical.
When these four methods of jurisprudence, or some

of them, are applied to the study of any particular sys-
tem, the mode of treatment may be dogmatic, i. e. the
practical exposition of its precepts, and of its technique
of developing and applying them, or critical, i. e. consid-
eration of what its precepts and technique of developing
and applying them ought to be in the light of analysis,
or history, or philosophy, or the social ends to be served,
or all of these. Analytical jurists hold that such criticism
with respect to history, or philosophy, or social ends, is
no part of jurisprudence. Sociological jurists consider
it a most important part. Also sociological jurists in-
sist that in this criticism account must be taken of all the
social sciences. They reject a critique of law solely in
terms of itself.
15. I System des heutigen r~mischen Rechts (1840-1849) preface (Holloway's

transl. 1867, p. vii).
[23]
Chapter 2
History of Jurisprudence
A. THE BEGINNINGS OF A SCIENCE OF LAW
§ 1. Greek Philosophy-Philosophical Theories of Justice and

the Social Order.
§ 2. Secularization of Social Control-Lawyers and Law Teach-
ers.
§ 3. The Beginnings of Legal Analysis-The Taking of Differ-
ences and Framing of Maxims.
§ 4. Greek Philosophy and Roman Law.
§ 5. Roman Jurists and Law Teachers.
B. THE BEGINNINGS OF THE SCIENCE OF

LAW IN THE MODERN WORLD
§ 6. Roman Law and Scholastic Theology.
C. THE MODERN SCIENCE OF LAW
§ 7. The Law-of-Nature School.

§ 8. The Nineteenth-Century Schools and Their Derivatives.
[25 1
Ch apter 2
History of Jurisprudence
EREEK
THE BEGINNINGS OF A SCIENCE OF LAW
Section 1
PHILOSOPHY - PHILOSOPHICAL
THEORIES OF JUSTICE AND THE SO-

CIAL ORDER.1 Like many other sciences,
the science of law has its roots in Greek
philosophy. More specifically, one of its beginnings is
in Greek philosophical theories of justice and the social
order. In Greek thinking, law in the lawyer's sense is
not clearly differentiated from other agencies of social
control. The Greek word which we translate as "law"
(v6 toq) is used to mean ethical custom, commercial cus-
tom, religious rites, law in general, a rule of law, and
social control as a whole. The Greek city-state was a
I. Aristotle, Nicomachean Ethics, bk. v. bk. viii, 7, 2-4; Aristotle, Politics,

1, 1, 9, i, 13, iii, 1, iii, 4-5, iv, 12; Plato, Republic, ii, 368, iii, 397-398.
See 2 Berolzheimer System der Rechts- und Wirtschaftsphilosophie (1905)
§§ 13-16 (English transl. The World's Legal Philosophies 46-77); 2 Vinogra-
doff, Historical Jurisprudence (1920) chaps. 2-3; Pound, Introduction to the
Philosophy of Law (rev. ed. 1954) 1-7; McIlwain, The Growth of Political
Thought in the West (1932) chaps. 1, 2, 3.
[27]
Jurisprudence
politically organized society. But it was very close to,

and in many respects in transition from, a kin-organized
society. Much of its ethical custom and laws spoke from
an older tribal society. Thus one phase of social and
political contests between the kindreds and the kinless
was competition between a traditional tribal law and the
politically enacted laws of the city-state. This competi-
tion attracted the notice of philosophers. At the same
time, since the Greeks were traders and travelers, their
notice was drawn to the great diversity of ethical cus-
toms and laws both as between Greeks and barbarians
and as between Greek cities themselves. Wide commer-
cial intercourse with all peoples showed that no two were
alike in these respects, and experience taught that the
same Greek city often had different bodies of legal pre-
cepts at different times. This circumstance suggested
that the legal order was a mere matter of enactment or
convention subject to the arbitrary control of those who
wielded political power for the time being. So thought
the Sophists and the Cynics, as do at least some of the
neo-realists today. But this conception was not satisfy-
ing from the standpoint of the general security, especial-
ly in view of the contests of oligarchy and democracy for
political supremacy which were the staple of life in the
classical Greek city. Hence, the philosophers sought to
find some assured basis of social control other than tra-
dition and habit of obedience, on the one hand, or the will
of the politically supreme for the moment, on the other
[ 28 ]
2. History of Jurisprudence
hand. They conceived they had found such a basis in

the analogy of the constant and universal phenomena of
physical nature. They held that the end of law was an
orderly maintenance of an idealized social status quo.
The legal order was an ordering of men to keep each in
his appointed place in the politically organized society of
an ideal Greek city. Right and law had their basis in a
harmony or fitness involved in the nature of things. They
were independent of human will and had universal va-
lidity. This idea has been a force in juristic thought
ever since.
§ 2. SECULARIZATION OF SOCIAL CON-

TROL-LAWYERS AND LAW TEACHERS 2 Analy-
tical jurists are quite justified in insisting upon a distinc-
tion between an undifferentiated social control, such as
obtains in undeveloped societies, or even sometimes in
relatively advanced political organizations, and what
Austin calls matured or developed law.3 In the lawyer's
sense, law is a highly specialized agency of social control.
There is a specialized legal order, a specialized social
control through politically organized society. There is a
specialized body of authoritative materials to be used in
bringing it about. We may say that law, as a specialized
form of social control, such as we know it in developed
2. Girard, Manuel 6lmentaire de droit romain (8 ed. 1929) 47-51; Jolowicz,

Elistorical Introduction to the Study of Roman Law (2 ed. 1932) 85-95. See
Maine, Ancient Law (1861, Pollock ed. 1906) chap. 1.
3. 2 Jurisprudence (5 ed. 1885) 1072-1074.
[29]
Jurisprudence
political societies, begins with lawyers. It begins when

the tradition of conduct of transactions, decision of caus-
es, and advising parties to controversies becomes secular-
ized and passes into the hands of a specialized profession.
Law as distinct from laws is at first a system of actions
to obtain remedies. At Rome a turning point is reached
when the traditional formulae of actions are divulged
(304 B.C.) and when, a bit later, the first plebeian ponti-
fex maximus begins to give consultations in public so
that students may attend and take notes (253 B.C.).
Modern law has its beginnings when Roman law became
the rival of the law of the church and presently set itself
free from clerical control. Modern science of law begins
when jurisprudence is emancipated from theology. In
English legal history, the supremacy of the king's courts,
which gave us the common law, may well be dated from
the Constitutions of Clarendon (1164), which put defi-
nite and narrow limits to the jurisdiction of the ecclesi-
astical courts. Likewise in colonial America, especially
in New England, the history of law begins when the ad-
ministration of justice begins to come into the hands of
professional lawyers, after a regime of magisterial and
legislative justice carried on chiefly by means of clerical
and military magistrates.
A specialized body of authoritative materials, estab-
lished as the basis of deciding causes and advising the
parties to controversies, or those who would engage in
legal transactions, quickly becomes the subject of teach-
[so]
ing; and, as Maitland puts it, "taught law is tough law."

That is, it tends to resist pressure to make determina-
tions otherwise than according to the taught tradition.
Teaching insures stability even if it also provides means
of growth. It soon becomes much more than a handing
down of a body of traditional precepts and of a body of
settled forms of procedure and of transactions.' A tech-
nique of interpretation and application develops and is
transmitted. Distinctions are drawn and principles
are deduced to explain or justify the distinctions.
§ 3. THE BEGINNINGS OF LEGAL ANALY-
SIS-THE TAKING OF DIFFERENCES AND
FRAMING OF MAXIMS.' The beginnings of juristic
development of law are to be found in the earliest and
crudest form of analysis, the distinguishing of cases
superficially alike. Thus, the beginnings of juristic
science at Rome take the form of distinguishing cases
which come within a precept of the codified customary
law from those which do not, where both might seem to.
This is reproduced in the "putting of differences" and
4. Compare the copying of precedents of pleading and of conveyances un-

der the apprentice system of training in the common law.
5. 3 Jhering, Geist des r~mischen Rechts (1865) §§ 49-50; Jurs, Rdmische
Rechtswissenschaft zur Zeit der Republik (1888).
Compare The Hedilya (Hamilton's transl. 1791) bk. 16, chap. 1 (Grady's ed.
1870, p. 244); Picot's Case, Y.B. 33 Edw. I (Horwood ed. 1863-1879) 22-23;
The Executor's Case, id. 63; Note, Keilwey (1496-1531) 41; Note, 2 Dyer
(1513-1582) l11b in margin; 2 Dyer, 143b (pl. 57).
See also Pound, The Maxims of Equity (1921) 34 Harvard Law Rev. 809;
Pound, On Certain Maxims of Equity, Cambridge Legal Essays (1926) 259-277.
[ 31]
Jurisprudence
"taking of diversities" so characteristic of the sixteenth

century in our own system.
Mohammedan law affords a good example of this rude begin-
ning of scientific treatment of law. The Mohammedan jurists
had the task of making a system of law on the basis of (1) the
Koran, (2) the sayings of the prophet, and (3) tradition as to
the course of conduct pursued by the prophet. Hanifa (702-772
A.D.) the oracle of the Mohammedan law, founded a system by
applying analysis to these materials. An example of his method
may suffice. He says that "if a person purchase ten yards of a
house . . . measuring one hundred yards," the sale is in-
valid because there is an uncertainty, since no mention is made
of the particular side of the house from which they have been
measured, "and such uncertainty would occasion contention be-
tween the parties." But, he says, it is otherwise when an undi-
vided one tenth is sold to some one. Then, although there is an
uncertainty in that no particular tenth part is designated, "it
cannot occasion a contention" since he may have his share set off
to him by partition. 6
Notice two things here: (a) The distinction between the sale of
ten yards, not stating whence taken, and the sale of an undivided
share; (b) the way in which the distinction is rested on a princi-
ple (i. e. a starting point for reasoning) namely, will the uncer-
tainty lead to a contention? Avoiding a contention was a prime
concern of ancient law.
Scientific treatment of law, then, begins in this way,

first, by drawing distinctions between cases or rules su-
perficially analogous, and later, second, by seeking for
and formulating a principle behind the distinction.
6. Hamilton's Hedflya (Grady's ed. 1870) 244.

[32]
It is worth while to notice that the student of law, under the

prevailing American plan of instruction, begins his study by re-
producing this first step in the scientific development of law. He
learns to distinguish one case from another; he learns to draw
distinctions between cases that seem superficially consistent.
Then he learns to find the principles presupposed by the distinc-
tions.7
Commonly, when principles are first worked out the
tendency is to formulate them as maxims.' Legal prov-
erbs, as they might be called, are a common phenomenon
of a developing body of law. They are a teachable form
of legal principles modeled on popular proverbial say-
ings. They make a transition from ethical custom to
ethical principles and so from law as a mere body of rules
to a law becoming organized by principles. They have
something of the function of symbols. They are conven-
ient for dictation, are easy to remember, and appear to
summarize and suggest much information which the stu-
dent or the practitioner requires to master. At a certain
stage of legal development in systems of law maxims
are much valued. But they do not stand the test of ma-
tured analysis.
7. See E. H. Warren, Cases and Other Authorities on the Law of Property

(1915) 4, 5, 10, 13.
8. See the old maxims of Roman law collected in Dig. 50, 17. These speak
from the older technique of the Republic and not from the classical age.
Coke's writings are full of maxims and he set great store by them. See a
like practice of the glossators in a like stage of legal development: Odofredus,
quoted in 3 Savigny, Geschichte des r~imischen Rechts im Mittelalter (1815)
553, note a.
Maxims are treated more fully post chap. 17, § 106, 5.
1 Pound Jurisprudence-3 [ 33 ]
Jurisprudence
Thus far there is analytical treatment of a particu-

lar body of law, in the stage of the strict law or in the
transition to the strict law. A further development
gives general legal conceptions. A beginning of this may
be seen in Cicero.9 He proposed to make analytical dis-
tinctions and classifications and to carry them out into
definitiones. Here definitio might be translated as max-
im, as in the saying omnis definitio periculosa.0 But
Cicero's definitiones seem to be more than maxims. They
are a reaching out for legal conceptions.
At this point a new force has begun to operate
through the contact of lawyers with philosophers.
§ 4. GREEK PHILOSOPHY AND ROMAN

LAW.11 While philosophical speculation as to the basis
of social control begins with Greek philosophy, the begin-
nings of a general science of law are to be found in the
contact of Roman lawyers and Greek philosophers in the
later years of the Roman republic. Using the term law
in the analytical or lawyer's sense, to mean an authori-
tative body of materials for the guidance of social control
through politically organized society, the first step to-
ward a general science of law is in connection with and
9. De oratore, i, 42, § 189.

10. Dig. 50, 17, 202.
i1. Dareste, La science du roit en Grace (1893) 1-18, 29-34.
[34]
takes the form of a philosophical theory of the ius gen-

tium.u
In its strictest sense the ius gentium was probably
the law applicable both to citizens and to aliens (pere-
grini) in the Roman tribunals. It is contrasted with the
ius civile or law applicable only to citizens. The ius civile
was the old body of customary law or codified customary
law applying only to citizens; the ius gentium, in its
original sense, was the body of rules, introduced into the
law as a result of increased intercourse with aliens,
which governed the relations between citizens and aliens,
and between aliens themselves. It was a body of rules
forming a part of the Roman law and applied originally
to relations with peregrini. We must bear in mind that
in antiquity law was personal in its application, not ter-
ritorial. In a kin-organized society, the law is the law
of the kindred. Territorial law is an idea of a politically
organized society. The law is the law of a politically
governed area. An example of personal, as contrasted
with territorial law, may be seen in Hindu and Moham-
medan law in India. These bodies of law apply only to
12. Buckland, Text-Book of Roman Law (2 ed. 1932) 52-55; Bruns-Lenel,

Geschichte und quellen des ri5mischen Rechts, § 19 (in I Holtzendorff, Ency-
klopidie der Rechtswissenschaft, 7 ed. 1913-1915); Cicero, De officils, iii, 17,
69; id. Oratoriae partitiones, 37, 130; Gaius, 1, 1; Inst. 1, 2, pr. and 1-2;
Dig. 1, 1, 1-6, 9.
See 1 Voigt, Das ins naturale, aequum et bonum, und ins gentium der Ra5mer
(1856) 88 13-15, 42, 43, 79-88, 103; 1 Karlowa, Rbmische Rechtsgeschichte
(1885) §§59-60; 1 Kuhlenbeck, Entwicklungsgeschichte des riimischen Rechts
(1910) 205-235.
E35]
Jurisprudence
Hindus and Mohammedans respectively and only as to

family law and inheritance."
Philosophical speculation as to the basis of the ius
gentium may be seen in Cicero. This led to a universal
theory of that part of the law as something obtaining
among all civilized peoples. Actually it was Roman law,
worked out by Roman jurists and Roman magistrates
to meet the necessities of intercourse with non-Romans.
But looked at philosophically it seemed to be more than
that and hence in a measure it may well have become
more. The philosophical theory invited consideration of
what, in reason, the law of all civilized peoples ought to
be. The body of principles so derived was also called the
ius gentium and the name gave the required warrant for
applying them in the administration of justice. For
according to ancient ideas of personal law, rules which
obtained among all civilized peoples would be eminently
a proper law to apply between citizen and non-citizen,
or between non-citizens.
A parallel may be found in our law merchant,
where, under the leadership of Lord Mansfield, in the
reign of a philosophical theory of natural law, the courts
having ceased to take evidence as to what the custom of
merchants was, began to lay down as the law merchant
what they thought that custom on rational principles
13. See West and Majid, Digest of Hindu Law (4 ed. 1919, of West &
Biihler) 1-9; Wilson, Anglo-Muhammadan Law (6 ed. 1930) 25-46.
[36]
2. History ot Jurisprudence
ought to be. 4 In each case the comparative element may

be relatively small. But there is a clear element of com-
parative law in the eighteenth-century and early nine-
teenth-century decisions on the law merchant.15 The de-
cisive factor, however, is a philosophical theory that what
ought to be law has binding force as law. Thus we get
a juristic theory in place of a traditional technique as
the agency of legal development.
Progress of juristic thinking and more intimate
acquaintance with Greek philosophy led to a second step
in the scientific development of law in the ius naturale,
a speculative body of ideal universal principles, serving
as the basis of philosophical development of legal ma-
terials and of criticism." The ius gentium was an actual
14. "It must now be determined by the nature of the transaction, general
convenience, and the authority of deliberate resolutions in court." Mansfield,
C. J. in Heylyn v. Adamson, 2 Burr. 669, 674 (1758). See also Carter v. Boehm,
3 Burr. 1905 (1766); Bexwell v. Christie, 1 Cowp. 395 (1776).
15. See Pound, The Influence of French Law in America (1909) 3 Illinois
Law Rev. 354, 354-357.
16. Cicero, De officiis, iii, 5, 23; id. De republica, iii, 23, 33 (transl. by Sa-
bine and Smith as Cicero on the Commonwealth, 1919); id. Tusculan Disputa-
tions, i, 13, 30; Inst. 1, 2, pr. and 1-2; Dig. 1, 1-6, 9.
See Burle, Essai historique sur le ddveloppement de la notion de droit natur-
el dans r'antiquitd grccque (1908); Bryce, Studies in History and Jurispru-
dence (1901) essay 11; Maine, Ancient Law (1906) chaps. 3-4 and Sir Freder-
ick PoIlock's note E and F; Pollock, Essays in the Law (1922) 31-79; Ritchie,
Natural Rights (1895) chap. 2; Salmond, The Law of Nature (1895) 11 Law
Quart.Rev. 121; 1 Carlyle, History of Medieval Political Theory (1903) chaps.
3-7; 1 Voigt, Das ius naturale, aequum et bonum, und ius gentium der Romer
(1856) §§ 15-41, 52-64, 98.
See also Sabine and Smith, Cicero on the Commonwealth (1929) chaps. II,
III; Mellwain, The Growth of Political Thought in the West (1932) chap. IV.
[7]
Jurisprudence
body of law. That is, it was a body of precepts actually

applied in tribunals. It was, as we say, positive law.
The ius naturale, on the other hand, was not a body of
law in the sense of legal precepts actually applied to the
decision of controversies. It was thought of as a body
of ideal precepts by which the positive law was to be jus-
tified or criticized. It was a speculative body of precepts
of potential applicability to all men, in all ages, among
all peoples, derived from reason and worked out philoso-
phically. Creative use of this ideal marks the classical
period of Roman law.
§ 5. ROMAN JURISTS AND LAW TEACH-

ERS.1" Secularizing of the traditional element of the
law, rise of the professional lawyer, and consequent
growth of a scientific legal technique gave increasing im-
portance to the work of the jurisconsults in ascertaining
and shaping the law. In the older Roman republic the
17. The schools of jurists: teachers and writers: Dig. 1, 2, 2, § 47-53;

Roby, Introduction to the Study of Justinian's Digest (1886) chap. 9; Jolo-
wicz, Historical Introduction to the Study of Roman Law (2 ed. 1932) 384-
387; KrUger, Geschichte der Quellen und Litteratur des r~imischen Rechts
(2 ed. 1912) § 20; Kipp, Geschichte der Quellen des rimischen Rechts (2 ed.
1903) § 18; Baviera, Le due scuole dei giureconsulti Romani (1898).
The classical jurists: Jolowicz, Historical Introduction to the Study of
Roman Law (2 ed. 1932) 388-403; Roby, Introduction to the Study of Justin-
ian's Digest (1886) chaps. 10-15; Girard, Manuel 616mentaire de droit romain
(8 ed. 1929) 68-77.
The fifth-century teachers: Collinet, Histoire de l'(!cole de droit de Bey-
routh (1925); id. The General Problems Raised by the Codification of Jus-
tinian (1923) 4 Revue d'histoire du droit, 1, 16-17; Jolowicz, Historical In-
troduction to the Study of Roman Law (2 ed. 1932) 473-475.
F38]
head of a patrician household, who knew the customary

law, advised his dependents, assisted them in litigation,
and argued their cases for them. Later, he chose the law
as a career, along with or as a road to public life, and
gave legal advice to all who consulted him, and argued
cases as advocate for those who retained him. But the
function which proved most important for the develop-
ment of the law was the giving of responsa or expert
opinions on the law for the guidance of tribunals. Un-
der the republic and in the early empire there was no
permanent bench of judges. The judges were not law-
yers. They found the facts and took expert opinions on
the law. In Cicero's time a differentiation of juriscon-
sult and advocate had gone some way. Indeed, Cicero
speaks disparagingly of jurisconsults. In the genera-
tion after Cicero the jurisconsults took the lead and un-
der the empire the advocates declined while the juriscon-
sults became the most important factor in the develop-
ment of the law for three centuries.
Augustus began the practice of licensing juriscon-
sults who might then give opinions on questions of law
with the authority of the Emperor behind them. The
Emperor had all the powers of the magistrates, and so
of the judicial magistrates. Hence an answer with his
authority was in effect an answer of the judicial mag-
istrates. Later, Hadrian made the opinions of the juris-
consults binding upon the judge in case the jurisconsults
were agreed. In case they differed the judge could follow
[39]
Jurisprudence
the opinion which seemed best to him. Also apparently

these opinions were binding upon the judge only for
the case in hand. But they were given fixity by tradi-
tions of teaching. By this time the growing point of the
law had shifted from the praetor's edict to juristic writ-
ing. The latter was the chief form of the law throughout
the classical era from Augustus to the end of the first
quarter of the third century.
In the Republican period juristic writing took the
form of collections of forms of legal transactions and of
commentaries on the ius ciuile (the strict law) i.e. the
Twelve Tables and the traditional law of the city as tra-
ditionally interpreted. Later, there were commentaries
on the praetor's edict, and presently collections of re-
sponsa or opinions. Still later, there were commentaries
on the writings of the great jurists of the past and treat-
ises on particular subjects or particular branches of the
law. In addition, there were institutional treatises for
students and practical hand books. The whole is a body
of legal writing quite without parallel until recent times
and standing in relation to the law as the literature of
Greece has stood in relation to letters.
From the time the law became secularized, the juris-
consult began to be a law teacher as well as a counselor,
and as the law became more complex and more scientific,
the teaching function became more important. By the
time of Augustus, juristic teaching seems to have been
a major activity of the great lawyers. Also, from this
C401
time down to the time of the Antonines there were two

sects or schools of jurists, the Proculians, deriving from
Labeo, the leading lawyer of the reign of Augustus
(named from Proculus, Labeo's successor), and the Sabi-
nians, derived from Capito, Labeo's contemporary and
rival (named from Sabinus, Capito's successor). Appar-
ently these sects represent two traditions of teaching.
The distinction between Sabinians and Proculians gradu-
ally disappears, and the jurists at the end of the second
century A.D. and the beginning of the third century are
not spoken of as belonging to any school. By this time
juristic writing had done its work. The law was in
transition from a period of growth to one of stability in
which systematic restatement and ordering and reduc-
tion to internal consistency were demanded, rather than
creative activity; and teaching likewise was beginning
to be systematic, to be divorced from practice, and to be
organized in law schools.
Private schools for law teaching were to be found
in the early Empire. After Diocletian (284 A.D.) the
schools at Rome and at Carthage in the West, and at
Berytus, Constantinople, Alexandria, Caesaraea (in Pal-
estine), Athens, and Antioch in the East, came to be what
we may fairly call Universities. The greatest of these
schools was at Berytus, known from 239 A.D., but at its
height in the fifth century. The teachers at Berytus
especially were men of culture, learned in the classical
law and possessed of an academic science only just short
[ 41]
Jurisprudence
of the practical legal science of the classical jurists. They

kept the science of law alive, gave it direction, and were
the active agency of legal progress down to Justinian.
Their notes upon the classical texts, editing them and
bringing them down to date as statements of the actual
law, as well as interpreting them and endeavoring to
bring their details into a harmonious and logically con-
nected system, prepared the way for Justinian's codifi-
cation. Many legal conceptions which are in use today
are their work. In Justinian's time (first half of the
sixth century) they were called the oecumenical doctors
or oecumenical masters, that is, universal teachers.
For our present purpose we need say nothing of the earlier
Middle Ages-the time from Justinian to the revived study of
Roman law in the Italian universities in the twelfth century.
B
THE BEGINNINGS OF THE SCIENCE OF LAW IN
THE MODERN WORLD
§ 6. ROMAN LAW AND SCHOLASTIC THE-
.OLOGY. There are two parallel lines of development in
the later Middle Ages, one legal, the other philosophical.
Looking first at the legal line, the schools or sects of jur-
ists which may be recognized today result from the his-
tory of law, and chiefly of the Modern Roman Law, since
E[42 ]
the revival of the study of Roman law in the twelfth cen-

tury. In that sense, the history of modern legal science
begins with the teaching of Roman law at Bologna by
Irnerius.18
Behind this is the medieval academic-juristic theory of the
continuity of the empire; the presupposition that the medieval
empire was the empire of Augustus and Constantine and Jus-
tinian. It was a phase of the medieval idea of universality.
There was taken to be a universal civil law of Christendom, the
canon law, the law of the universal church, a universal sea law, a
universal law merchant, and universal customs of chivalry. Tra-
dition, religious ideas of a Christian state co-extensive with the
church, political ideas in an age of nascent separate nationalities,
and what Bryce calls "the visionary zeal" of men of letters full
of classical learning, entered into the theory.19 But the academic
law teacher's need of proving the legitimacy of the Corpus luris
as the fountain of law was not the least factor. And the theory
met also a practical need. Germanic law was archaic and with-
out effective organs of development. The field was occupied only
by divergent and conflicting as well as crude and insufficient lo-
cal customary laws. Hence, the rapid spread of the revived study
of Roman law and the reception by the courts of the Roman law
as interpreted and developed in the Universities.
At first, study and teaching of the Roman law took
the form of interpretation of the text of the Corpus Iuris,
18. See 1 Continental Legal History Series, General Survey (1912) 128 (§
38)-175, 178 (§ 77)-199; 2 Holdsworth, History of English Law (4 ed. 1936)
124-142; Sohm, Institutes of Roman Law (transl. by Ledlie, 1892) Grueber's
Introductory Essay (in first ed. only) i-xxxvi; Sohm, Institutes of Roman
Law (transl. by Ledlie, 3 ed. 1905) §§ 24-28; Westlake, Chapters on the Prin-
ciples of International Law (1894) 17-51; Hastie, Outlines of Jurisprudence
(1887) 237-253, 260-271.
19. Bryce, Holy Roman Empire, chap. 7.
[43 ]
Jurisprudence
which was taken to be authoritative legislation binding

upon the "empire" and hence upon all Christendom.
The Glossators (twelfth and thirteenth centuries) took
up the text title by title and section by section and inter-
preted or explained it, analyzing it, distinguishing cases,
and putting the grounds of their distinctions in the form
of rules or maxims. Thus they repeated the first type of
juristic activity. In the middle of the thirteenth century
the glosses or interpretations of the several glossators
were brought together and edited in what is known as
the gloss. By this time the possibilities of a method of
analytical interpretation of the text section by section
were exhausted. The influence of this beginning of study
of law upon modern legal systems is very marked and in
a measure has been permanent."
A new method was developed by the Commenta-
tors 2 (latter part of the thirteenth century to the latter
20. 1 Continental Legal History Series, General Survey (1912) 124-142

(trans]. from Calisse, Storia del diritto italiano); Vinogradoff, Roman Law
in Medieval Europe (1909) 44-58; 5 Savigny, Geschichte des rbmischen Rechts
im Mittelalter (1815-1831) 222-240; 1 Stintzing, Geschichte der deutschen
Rechtswissenschaft (1880) 102 ff.; Salvioli, Storia del diritto italiano (8 ed.
1921) §§ 105-112, with full bibliography. See also 2 Pertile, Storia del diritto
italiano (2 ed. 1892-1902) § 61; Del Vecchio, Di Irnerio e la sua scuola (1869);
Besta, L'opera d'Irnerio (2 vols. 1896); Landsberg, Die Glosse des Accursius
(1883); Pescatore, Die Glossen des Irnerius (1888); Kantorowicz, Accursio e
la sua biblioteca (1929) 2 Rivista di storia del diritto italiano, 35.
(transl. from Calisse, Storia del diritto italiano); Ullmann, The Medieval Idea
of Law (1946); 5 Savigny, Geschichte des rtimischen Rechts im Mittelalter
(1815-1831) 225-228, 353-356; 6 id. 1-25; 1 Stintzing, Geschichte der deut-
[441
part of the fifteenth century), sometimes called the Post-

Glossators, called by Maine the Scholastic Jurists. They
made the simple method of the glossators into a highly
complicated one based upon formal logic and the scholas-
tic philosophy. Where the glossators had put system in-
to particular texts, they began to put system into par-
ticular subjects.2
In time, the revival of learning, the influence of
philosophical thinking, and humanist study gave rise to
scientific ideas that made continuation of this method of
teaching and study impossible. Hence, a new school
arose at the end of the fifteenth century. The Human-
ists 2 (latter part of the fifteenth century and the six-
schen Rechtswissenschaft (1880) 106-133; Salvioli, Storia del diritto italiano

(8 ed. 1921) §§ 113-115, with full bibliography.
As to Bartolus, see 2 Continental Legal History, Series, Great Jurists of the
World (1914) 58-108; Woolf, Bartolus of Sassoferra to (1913); Van de Kamp,
Bartolus de Saxoferrato (1936); Beale, Bartolus on the Conflict of Laws,
confains a translation of the Commentary of Bartolus on Code, i, 4-a good
example of his method.
22. In their treatment of a title of the Digest they developed much that
has endured. There were four main steps: (1) Praemissio. This defines and
characterizes the matter dealt with in the text and defines the premises to
be used. It is very like the "scope note" in an American digest or cyclopaedia.
(2) Textus partitio. This is a division or classification of the subject very
like the analytical table in one of our digests or in one of our cyclopaedias.
(3) Summarii relatio. This is a summary of the matter in the text according
to the classification adopted. (4) Casus flctio. A putting of hypothetical cases
upon the questions involved. In the course of this step in the process, analo-
gous cases are discussed, and the propositions of the text are expounded, lim-
ited, or distinguished.
(transl. from Calisse, Storia del diritto italiano, 252-259, transl. from Brissaud,
Manuel d'histoire du droit frangais); 2 Continental Legal History Series,
[451
Jurisprudence
teenth century) were a school of jurists. They had rela-

tively little immediate influence on the actual law. Prac-
tical lawyers continued to follow the commentators;
they confined themselves to the gloss and to commenting
upon the text in the form given to it thereby. They were
called the Italian School. On the other hand, scientific
study of law in the modern world begins immediately
with the humanists. They were called the French School
because their chief lights were Cujas and Doneau at the
University of Bourges in France.
The founder of this school was Alciatus (Andrea Alciati,
1492-1550) 24 who taught (from 1518 to 1550) chiefly in Italy,
but also at Bourges. Instead of counting the glosses for and
against an interpretation (for the commentators weighed opin-
ions of commentators upon a point, as some courts used to count
the decisions on both sides of a controverted question), Alciatus
studied and weighed the reasons for and against a proposition
and looked to the Roman writers on the subject and to the text
itself.
The great names of the French School are Jacobus Cujacius

(Jacques Cujas, 1522-1590) and Hugo Donellus (Doneau, 1527-
1591). Cujas, a pupil of Alciatus, was professor at Bourges.
Donellus was professor at Bourges and afterwards at Leyden.
Cujas turned to historical and antiquarian study of Roman law
and is the pioneer of legal history. Donellus is the pioneer of
systematic exposition of the law as a whole, so that the analytical
Great Jurists of the World (1914) 58-108; 1 Stintzing, Geschichte der deut-
schen Rechtswissenschaft (1880) 133-154; Salvioli, Storia del diritto italiano
(8 ed. 1921) §§ 124-131, with full bibliography.
24. Viard, Andrd Alciat (1926).
E46]
system of Roman law, as it was studied in the last century, runs

back to him.
Meanwhile, in the thirteenth century philosophers

had begun to consider the philosophical-theological bases
of right, of the binding force of law, and of legal institu-
tions. The great name is St. Thomas Aquinas (1225-
1274). Philosophical jurisprudence came to be regarded
as an important branch of theology." By the time of the
Reformation, this philosophical jurisprudence had at-
tained no little development. At the same time, the hu-
manists were laying the foundations of historical and
systematic study of the Roman law. Then two events of
capital importance established a science of law.
THE MODERN SCIENCE OF LAW

§ 7. THE LAW-OF-NATURE SCHOOL. At the
Reformation the legal authority of the church broke
down; the authoritative theological foundation of legal
theory was taken away. By the fore part of the seven-
25. See post chap. VIII, § 44(3). On the philosophical Jurist-theologians,

see McIlwain, The Growth of Political Thought in the West (1932) chap. 7.
On the schoolmen, see 2 DeWulf, History of Medieval Philosophy (1926) §§ 269-
289. The great name is that of Thomas Aquinas (1225 [or 1227]-1274). See
Lachance, Le concept de droit selon Aristote et S. Thomas (1933); Lottin, Le
droit naturel chez S. Thomas et ses prddecesseurs (1924).
[471
Jurisprudence
teenth century, the academic doctrine of the continuity

of the empire, and consequent binding force of Roman
law, had broken down also. Thus: (1) Jurisprudence
was emancipated from theology. (2) Law was emanci-
pated from the text of Justinian.
The first was achieved in the sixteenth century by
jurist-theologians, particularly Hemmingius 28 (Niels
Hemmingsen, a Dane, wrote 1562). It was suggested al-
so for international law by Belli (1653) and Gentile
(1589).7 The second began with Francois Hotman
(wrote 1567) and culminated in the work of the pioneer
of the Germanists (i. e. those who study the Germanic
element in the modern law of Western Europe), Her-
mann Conring (wrote 1643).' As a result, everything in
26. Hemmingius, De lege naturae apodictica methodus (1564) Q. 9-the

relevant passage may be found also in 2 Kaltenborn, Die Vorldiufer des Hugo
Grotius (1848) 31. Cf. Grotius, De lure Belli ac Pacis, Prolegomena, § 11. See
1 Hinrichs, Geschichte der Rechts- und Staatsprincipien seit der Reforma-
tion (1848) 37; 1 Hiffding, History of Modern Philosophy (transl. by Meyer)
42 if.
27. Belli, De re militari et de bello tractatus (1563)-see introduction to
Nutting's transl. Classics of International Law Series, 25a-26a); Gentile, De
lure Belli (1589) bk. I, chap. 1 (transl. in Classics of International Law Series).
28. Emancipation of law from the text of Justinian: Francois Hotman (Ho-
tomanus, 1524-1590); Hermann Conring (1606-1681). Hotman, Antitribonianus
(1567) chaps. 1-2, 7-9, 12-13; Conring, De origine iuris germanici (1643) chaps.
21-27, 32-34.
See 1 Brissaud, Cours d'histoire gdndrale du droit frangais (1904) 353;
Dareste, 3 tude sur Francois Hotman (1850) 2 (N.S.) Revue de Idgislation et de
jurisprudence, 257; 2 Stintzing, Geschichte der deutschen Rechtswissenschaft
(1880) 1-31, 165-188; 1 Continental Legal History Series, General Survey
(1912) 428-429 (transl. from 2 Stobbe, Geschichte der deutschen Rechtsquellen,
418-420); Brunner, Grundziige der deutschen Rechtsgeschichte (8 ed. 1930) §
1 48]
the science of law and in the law itself had to be rested up-
on reason and upon reason only, and a movement arose,
both in juristic thinking and in the practical development
and application of legal materials in the courts, which is
in many ways comparable to the period of natural law at
Rome (i. e. the classical period from Augustus to the
third century).
The leader of the new school of jurists 29 was Hugo
Grotius (De Groot, 1583-1645) whose great work was
published in 1625.3 It culminated in the Eighteenth-
century Law-of-Nature School,31 whose influence is still
64; Stobbe, Hermann Conring, Der Begriinder der deutschen Rechtsgeschichte

(1870).
29. Sources: Grotius, De lure Belli ac Pacis (1625)-Whewell's transl.
(1853) is convenient; there is also an abridged transl. by Campbell (1901), and
a transl. in the Classics of International Law Series; Pufendorf, De lure
Naturae et Gentium (1672)-Kennett's transl. (1703) may be found in a num-
ber of editions, and there is an abridged transl. by Spavan (1716), and also
one in the Classics of International Law Series.
Grotius, De lure Belli ac Pacis, Prolegomena, 30, 40, bk. I, chap. I, §§ 9-12;
Pufendorf, De lure Naturae et Gentium, bk. II, chap. III, § XIII.
Gierke, Natural Law and the Theory of Society (transl. by Barker, 1934)
Introduction § 3.
30. 2 Continental Legal History Series, Great Jurists of the World (1914),
169-184, 305-344; Lysen, Hugo Grotius (1925); Vreeland, Hugo Grotius (1917);
Knight, Life and Works of Hugo Grotius (1925); Pound, Grotius in the Science
of Law (1925) 19 Am.Journ. of International Law, 685.
31. Sources: Burlamaqui, Principes du droit naturel (1747)-Nugent's
trans]. in a number of editions is useful; Wolff, Institutiones iuris naturae et
gentium (1761); Rutherforth, Institutes of Natural Law (1754-1756); Vattel,
Le droit des gens, prfliminaires (1758). There are many translations of Vat-
tel.
2 Continental Legal History Series, Great Jurists of the World (1914) 447-
476.
1 Pound Jurisprudence-4 [ 49]1
Jurisprudence
felt strongly in jurisprudence. Indeed, the nineteenth-

century schools of jurists arose by way of revolt from this
school, or else by modification and adaptation of its
method.
Jurists of the eighteenth-century law-of-nature school con-
ceived that a complete and perfect system of law might be con-
structed upon principles of natural (i.e. ideal) law which were
discoverable by reason. They held that these principles might
be drawn from reasoning as to the nature of man in the ab-
stract. The practical result of the dominance of such a theory
was confusion of law in the sense of an actual body of authorita-
tive precepts with speculation about what the particular writer
thought ought to be law, influenced more or less by preposses-
sions or prejudices derived from the existing social and legal
order. In the end, such methods could not prevail. But for a
time, the attempt to make law conform to each writer's sense
of what it ought to be resulted beneficially in remedying defects,
removing archaisms, and advancing order and method in legal
writing.
The schools of jurists which may be recognized today keep
up lines of cleavage which resulted from development of dif-
ferent aspects of the eighteenth-century philosophical juris-
prudence on the breakdown of the law-of-nature school.
Wolff, Institutiones iuris naturae et gentium (1761) chap. II, §§ 38, 41; Vat-
tel, Le droit des gens, preface (1802 ed.) iii-iv (Chitty's transl. 5 Am. ed. v ff.);
Burlamaqui, Principes du droit naturel (1747) pt. I, chap. I, 3-12, chap. II,
chap. V, chap. VIII, 1-2; Rutherforth, Institutes of Natural Law, bk. I, chap.
I, chap. VII; 1 Blackstone, Commentaries, 38-43.
As to the meaning of "nature" in this connection, see Del Vecchio, II concet-
to della natura e ii principio del diritto (2 ed. 1922). "It Is the ideal of posi-
tive law; the type which the lawmaker ought to realize and which, almost
always, he pretends to realize." 1 Boistel, Cours de philosophic du droit (1899)
3.
[50]
In general it may be said:

The thirteenth century put theological philosophy
behind law to sustain authority.
The sixteenth and seventeenth centuries divorced
philosophy of law from theology and divorced law from
authority.
The nineteenth century divorced legal philosophy
from political philosophy and set jurisprudence off defi-
nitely as a separate science.
The twentieth century seeks to unite jurisprudence
with the other social sciences through some form of social
philosophy.
§ 8. THE NINETEENTH-CENTURY SCHOOLS
AND THEIR DERIVATIVES. In order of time, the first
of the nineteenth-century schools was the Historical
School,' in the form of what is called the German his-
torical school in distinction from the English historical
school, which, however, is essentially the same in doc-
trine. The ground of distinction is that the English his-
torical school used the historical method comparatively
from the outset.
The immediate influence that brought about the German his-
torical school was the philosophy of Immanuel Kant. Kant
formulated the idea of legal justice which was accepted in juris-
prudence throughout the nineteenth century. Also he under-
32. See po8t chap. 3, § 10.

[51]
Jurisprudence
mined the eighteenth-century law-of-nature school by showing

that it was not possible to do by pure reason what that school
sought to do.
Forerunners are Jacques Cujas (Jacobus Cujacius, 1522-
1590) the pioneer of legal history, Gustav Hugo (1764-1844)
who put historical method in place of philosophical method in
the dogmatic exposition of the modern Roman law, 33 Edmund
Burke (1729-1797) who anticipated to some extent for political
philosophy the fundamental position of Savigny's school, 34 and
Vicenzo Cuoco (1770-1823) who set forth for political philoso-
phy much of what the historical school afterward made current
35
for jurisprudence.
The founder and the leading exponent of the his-

torical school is FriedrichCarlvon Savigny (1779-1861)
Professor of Law at Berlin and Chancellor of Prussia.
33. Lehrbuch der Rechtsgeschichte bis auf unsre Zeiten (1 ed. 1790, 8 ed.
1822; also transl. into French).
34. Reflections on the Revolution in France (1790) 3 Works (1839 ed.) 110-
111, 118-121. See Braume, Edmund Burke in Deutschland (1917).
35. Saggio storico sulle rivoluzione napoletana del 1799 (1901, new eds. by
Nicolini, 1912, and by Cortese, with commentary, 1926; transi into German
and into French).
36. Savigny, Vom Beruf unsrer Zeit ftir Gesetzgebung und Rechtswissen-
schaft (1814, 3 ed. 1840, reprinted 1892, transl. by Hayward as The Vocation of
our Age for Legislation and Jurisprudence, 1831); 2 Continental Legal His-
tory Series, Great Jurists of the World (1914) 561-589; Stintzing, Friedrich
Carl von Savigny (1862); Bethmann-Hollweg, Erinnerung an Friedrich Carl
von Savigny (1867); Enneccerus, Friedrich Carl von Savigny und die Richtung
der neueren Rechtswissenschaft (1879); Stoll, Der junge Savigny (1927);
id. F. C. v. Savigny, Professorenjahre in Berlin (1929); Monroe Smith, Four
German Jurists, 10 Political Science Quart. 664-669, 11 id. 278-309; Vinogra-
doff, Introduction to Huebner, History of German Private Law (transl. by
Philbrick, 1918) xvii-xli; Small, Origins of Sociology (1924) chap. 2, The Thi-
baut-Savigny Controversy: Continuity as a Phase of Human Experience (this
chapter was first printed in 28 Am.Journ. of Sociol. 711); Kantorowicz, Sa-
[52]
His main idea was that law was a necessary result of the
whole history of a people, not something which specula-
tion could bring forth full fledged from the head of a ju-
rist, or legislation could bring forth by an arbitrary fiat.
Shortly afterward another school grew up in Con-
tinental Europe which divided the field with the histori-
cal school during the nineteenth century, although in the
last quarter of the century the historical school all but
gained the day completely except in Italy and in Scotland.
It may be called the Metaphysical School.3" It sought to
vigny and the Historical School of Law (1937) '53 Law Quart.Rev. 326; Pat-
terson, Jurisprudence (1951) §§ 4.30-4.35.
37. See post § 11.
Kant, Metaphysische Anfangsgriinde der Rechtslehre (1797, 2 ed. 1798, anon-
ymous English transl. 1799, English transl. of part by Hastie as Kant's Phil-
osophy of Law, 1887); Fichte, Grundlage des Naturrechts (1796, new ed. by
Medicus, 1908, 2 ed. by Medicus, 1922, transl. by Kroeger as Fichte's Science
of Rights, 1889); Hegel, Grundlinien der Philosophie des Rechts (1821, ed. by
Gans 1840, new ed. by Lasson 1911, 2 ed. 1921) transl. by Knox as Hegel's
Philosophy of Right (1942); Krause, Abriss des Systemes der Philosophie des
Rechtes (1828); Ahrens, Cours de droit naturel (1838, 8 ed. 1892-went through
24 editions in seven languages); Lorimer, Institutes of Law (1872, 2 ed. 1880);
Lasson, System der Rechtsphilosophie (1882); Miller, Lectures on the Phil-
osophy of Law (1884); Boistel, Cours de philosophie du droit (1870, new ed.
1899); Herkless, Lectures on Jurisprudence (1901); Green, Principles of Po-
litical Obligation (1911, reprinted from II Works of Thomas Hill Green, 335-
553-lectures delivered 1879-1880).
See Bonnecase, La notion de droit en France au dix-neuvi'me sicle (1919)
chaps. 1-3; Tourtoulon, Principes philosophiques de l'histoire du droit (1908-
1920) 553-608 (transl. by Read as Philosophy in the Development of Law, 1922,
474-520).
For detailed grouping of jurists from the standpoint of this school, see 1
Ahrens, Cours de droit naturel (8 ed. 1892) 26-80; Lorimer, Institutes of Law
(2 ed. 1880) 38; Miller, Lectures on the Philosophy of Law, Appendix B (1884);
Gareis, Science of Law (transl. by Kocourek, 1911, note 12).
[53 ]
Jurisprudence
continue philosophical jurisprudence; but instead of

seeking to work out a perfect code from the nature of
man in the abstract, it sought to work out an ideal body
of principles, which were to serve as a basis for systema-
tizing the law, for criticism and particularly for lawmak-
ing, by deduction from some single fundamental prin-
ciple of right or some fundamental formula of justice.
Hegel's influence was felt much in this school, and he and
the metaphysical jurists generally had a strong influence on the
historical school. Consequently, in the later part of their his-
tory, it was not difficult to reconcile the two schools. The his-
torical jurist held that legal history was the record of the un-
folding or realizing of an idea of freedom in human experience
of social control, and the metaphysical jurist held that juris-
prudence was the logical unfolding of the same idea, whether
conceived ethically as an idea of right or politically as an idea
of freedom. Thus, the principles of systematizing and criticiz-
ing the law were to be reached in two ways: (1) by discover-
ing the idea through history and perceiving the course of its
unfolding in legal institutions and legal precepts, and (2) by
demonstrating the idea metaphysically and working out its logi-
cal consequences and implications.
A later development of the revolt from the eight-

eenth-century law-of-nature school, in the form in which
that school had made itself felt in England through
Blackstone, is the English Analytical School.3 s Although
38. Austin, Jurisprudence (first published-the first six lectures only-as

The Province of Jurisprudence Determined, 1832, 3 ed. posthumous from his
lecture notes and student notes, complete, 1863, 5 ed. 1885, reprinted 1911-
there is an abridgment by Campbell styled Student's edition, 11 ed. 1909);
Holland, Elements of Jurisprudence (1880, 13 ed. 1924); Markby, Elements
[54 ]
its founder was a zealous utilitarian, this school broke

with philosophy. Instead of trying to deduce a universal
system of law from the nature of man, or trying to de-
duce an ideal body of legal principles from some meta-
physically ascertained first principle, they sought to take
developed systems of law as they were, to analyze the
legal institutions and legal precepts and juristic concep-
tions that actually existed, and to obtain the materials
for a universal science of law in that way.
Analytical jurists did not succeed wholly in what they set
out to do. An ideal of law as a body of logically interdependent
precepts completely covering the field of human relations, and
to be regarded as if put in force at one stroke by the command
of the sovereign, entered largely into what they assumed to be
"the pure fact of law." 39 It has been charged with much rea-
son that both they and the historical jurists set up systems of
natural law of their own. 40 Each assumed to find the necessary
fundamenta of law.4 ' Each assumed to find universal principles
upon which all law must rest. One found them by comparative
analysis of the precepts and doctrines and institutions of English
and Roman law, the other found them by historical study of
Roman and Germanic law. In the same spirit, the metaphysical
of Law (1871, 6 ed. 1905); Pollock, First Book of Jurisprudence (1896, 6 ed.
1929); Salmond, Jurisprudence (1902, 8 ed. 1930); Gray, The Nature and
Sources of the Law (1909, 2 ed. posthumous 1921).
39. Amos, Systematic View of the Science of Jurisprudence (1872) 18-19.
40. See Brunner in 1 Holtzendorff, Encykloplidie der Rechtswissenschaft
(5 ed. 1890) 346 ff. and Bergbohm's criticism, Jurisprudenz und Rechtsphiloso-
phie, 333 note. Kohler styles Austin and Holland "Englischen Naturrechtler,"
I Holtzendorff, Encykloplidie der Rechtswissenschaft (6 ed. 1904) 12.
41. 2 Austin, Jurisprudence (4 ed. 1873) 1107-1109. See Pound, Progress
of the Law: Analytical Jurisprudence (1927) 41 Harvard Law Rev. 177-184.
[ 55]
Jurisprudence
jurist conceived that he could find these necessary and universal

principles by logical development of a fundamental conception
of right.
Moreover, the founder of the English analytical school

lacked the historical knowledge needed to direct analysis and to
correct its results. Much that analysis at first sight makes ap-
pear to be fundamental and necessary, is often the result of his-
torical accident, in the sense that it arose through judicial or
juristic following of the analogy that chanced to be nearest at
hand when the legal system or legal doctrine was formative.
We seek to understand the new by associating it with the old-
the unknown by the analogy of the known. Thus the analytical
Romanist of the nineteenth century referred everything back
ultimately to the will-one has willed an aggression or has
willed an undertaking or has willed a relation, and has mani-
fested his will externally. It is for the jurist to work out the
logical implications of the manifested will. 42 He was disposed
at once to put this universally as valid for all developed sys-
tems of law. But it will not hold for Anglo-American law,
where with quite as much truth an analytical common-law law-
yer might refer most of the phenomena of the law back ultimate-
ly to a relation, the task of the jurist being to work out the
rights and duties and liabilities incident to and involved in the
42. "The department of law where the peculiar genius of the Roman jurists
found full scope is the law of obligations, the law of debtor and creditor, the
law, in other words, which is most properly concerned with the mutual deal-
ings between man and man; and here again it is more especially the law re-
lating to those contracts where not merely the expressed but also the unex-
pressed intention of the parties has to be taken into account (the so-called
bonae fiei negotia). And in regard to this unexpressed intention which is not,
for the greater part, present to the mind of the party himself at the moment
of concluding the contract, it was the Roman jurists who discovered it, and
discovered it for all time to come, and enunciated the laws which result from
its existence. This is a task which will never have to be done over again."
Sohm, Institutes (transl. by Ledlie, 2 ed. 1901) 107.
[56]
relation in that the one party thereto may reasonably expect the
other to do or not to do something in view thereof. 43 The prob-
lem of the formative period of Roman law was one of keeping
the peace among heads of households in a society close to a kin-
organized one. Hence, for all problems the jurists tended to
work things out in terms of the will of the free man sui juris.
The problem of English judges in the formative period of our
legal technique was one of determining and giving effect to the
incidents of relations in a relationally organized feudal society.
Hence, when new questions arose, English judges and lawyers
took the most obvious analogy at hand, the feudal relation of
lord and man, and inclined to work out everything in terms of
relation and by developing the incidents of relation. Neither of
these is universal. Each is a mode of thought and resulting
technique growing out of the peculiar social environment of the
formative period of the system of law in which it obtained.
The forerunners of the analytical school are Thomas Hobbes
(1588-1679), the forerunner of the English analysis of the idea
of law," and Jeremy Bentham (1748-1832), the law reform-
43. I have discussed this at length elsewhere: The Spirit of the Common
Law (1921) 20-31.
It has been suggested that the difference is supported only by terminology.
Buckland and McNair, Roman Law and Common Law, p. xi. But so consist-
ent a terminology on both sides must reflect underlying courses of thought,
and one has only to compare our law of vendor and purchaser, which grew up
along common-law lines through equity following the law, with the law of
sales of chattels, which was influenced in its formative period by the civilians,
to see that the common-law relational terminology expresses the attitude of
the law. But it is true that the nineteenth-century civilians at least exagger-
ated the will idea in the Roman law. I have elsewhere suggested the differ-
ence between the Roman and the modern Roman law in this respect. Pound,
Interpretations of Legal History (1923) 55.
44. Hobbes's writings of significance for jurisprudence: De ive (1642, Eng-
lish version as Philosophical Rudiments Concerning Government and Society,
1651) Molesworth, Hobbes's Latin Works, 2, 133-432, Hobbes's English Works,
2; Leviathan, or the Matter, Forme, and Power of a Commonwealth Ecclesiasti-
[ 57]
Jurisprudence
er.415 Bentham is commonly reckoned as one of the analytical

school. But his field was the science of legislation, which the
call and Civill (1651 in English and in Latin) Molesworth, Hobbes's English
Works, 3, Hobbes's Latin Works, 3-there is a convenient reprint of the Eng-
lish version, Oxford, 1881; The Elements of Law, Natural and Politic (two
treatises published separately, 1650, edited as one work by Tdnnies, 1928-
a less satisfactory form as De Corpore Politico or the Elements of Law, Moral
and Politic, Molesworth, Hobbes's English Works, 4, 81-228); A Dialogue Be-
tween a Philosopher and a Student of the Common Laws of England (un-
finished, written about 1670) Molesworth, Hobbes's English Works, 6, 3-160.
See Robertson, Hobbes (1886); Stephen, Hobbes (1904); Tdnnies, Hobbes
Leben und Lehre (1896); Woodbridge, The Philosophy of Hobbes (1903);
Catlin, Thomas Hobbes as Philosopher, Publicist, and Man of Letters (1922).
45. Bentham's writings of significance for jurisprudence: Fragment on
Government (1776, ed. with Introduction by Montague, 1891); Introduction to
the Principles of Morals and Legislation (1780, reprinted 1876, also in vol. 1
of Bentham's Works, ed. by Bowring, 1843); Theory of Legislation (originally
published in a French version by Dumont, 1902, 2 ed. revised and augmented,
1820; transl. by Hildreth, 1864, 5 ed. 1887, new ed. with introduction and notes
by Ogden, 1931); A Commentary on the Commentaries (ed. from an unprinted
manuscript by Everett, 1928); Theory of Fictions (a bringing together of ma-
terial on this subject from different parts of Bentham's Works, with an intro-
duction by Ogden, 1932); Works (ed. by Bowring) 11 vols. 1843. In the Works,
the following are important: Essay on the Promulgation of Laws, 155; Essay
on the Influence of Time and Place in Matters of Legislation, 169; Principles
of the Civil Code, pt. I, 297 (also in Theory of Legislation); Principles of the
Penal Law, 365. In volume 2-The Rationale of Reward, 189. In volume 3-
General View of a Complete Code of Laws, 155; Pannomial Fragments, 211.
Nomography, 231. In volume 4-Papers Relative to Codification, 451; Codi-
fication Proposal, 535. In volume 5--Codification Petition, 546. In volume 9-
Constitutional Code (important parts are: Bk. 1, chap. 16, bk. 2, chaps. 6, 7,
29, 30).
On Bentham see: Albee, History of English Utilitarianism (1902); Allen,
The Young Bentham (1928) 44 Law Quart.Rev. 492; Alexander, Jeremy Bent-
ham: Legal Philosopher and Reformer (1929) 7 New York Univ.Law Rev. 141,
405; Atkinson, Jeremy Bentham, His Life and Work (1905); Berolzheimer,
The World's Legal Philosophies (1912) 134-141; Cohen, Jeremy Bentham
(1927) Fabian Tracts no. 221; Dicey, Lectures on the Relation Between Law
and Public Opinion in England in the Nineteenth Century (1905) lect. 6; Dil-
lon, Laws and Jurisprudence of England and America (1894) lect. 12, reprinted
(revised) as "Bentham's Influence in the Reforms of the Nineteenth Century,"
(1907) 1 Select Essays in Anglo-American Legal History, 492; Everett, The
[58]
analytical jurists seek to exclude completely from the domain of

jurisprudence. He must be counted as a forerunner.
The founder and the leading exponent of the analy-

tical school is John Austin (1790-1859).46
Austin, after some years in the army, was called to the bar
in 1818 and in 1826 was appointed to the chair of jurisprudence
in the then newly instituted University of London. Prepara-
tory to taking up that work he studied in Germany (at Bonn)
and in consequence he had some knowledge both of English and
of the modern Roman law as a foundation for his teaching.
Hence, also, his method was comparative-since as a follower
of Bentham he was interested deeply in law reform, and expect-
ed comparative analytical study to lead to systematizing and
codifying of English law. His Province of Jurisprudence De-
Education of Jeremy Bentham (1931); Geiser and Jaszi, Political Philosophy

from Plato to Befitham (1927) chap. 13; Haldvy, La formation du radicalisme
philosophique (1901, English transl. by Morris, as The Growth of Philosophic
Radicalism, 1928) contains also a full bibliography of Bentham's writings and
of accounts of Bentham and estimates of his work; Judson, Modern View of
the Law Reforms of Jeremy Bentham (1910) 10 Columbia Law Rev. 41; Kay-
ser The Grand Social Enterprise: A Study of Jeremy Bentham in His Rela-
tion to Liberal Nationalism (1932); MacCunn, Bentham and His Philosophy
of Reform (1902), also in his Six Radical Thinkers (1910); Mitchell, Bentham
and His School (1923) 35 Juridical Rev. 248; id. Bentham's Felicific Calculus
(1918) 33 Political Science Quart. 161; Ogden, Introduction in his ed. of Bent-
ham's Theory of Legislation (1931); id. Bentham's Theory of Fictions (1932);
Phillipson, Three Criminal Law Reformers (1923) pt. II, Bentham; Stephen,
The English Utilitarians (1900) vol. 1; Solari, L'idea individuale e l'idea so-
ciale nel diritto privato (1911) §§ 31-36; Wallas, Jeremy Bentham (1922); id.
Jeremy Bentham (1923) 38 Political Science Quart. 45.
46. Lectures on Jurisprudence (5 ed. 1885, reprinted 1911-the first six lec-
tures were published in 1932 under the title "The Province of Jurisprudence
Determined." The third edition, 1863, and subsequent editions are made up
of these lectures and a posthumous reconstruction of the remainder).
See the life of Austin by his wife, preface to the second edition (1861) and
in subsequent editions.
[59]
Jurisprudence
termined, a treatise from the analytical standpoint on the nature

of law, was published in 1832. The same year he relinquished
teaching.
One result of Austin's study in Germany 47 is that the Ger-

man treatises on the Pandects (i.e. the modern Roman law based
on Justinian's Digest) have largely furnished the analysis which
the English analytical writers give us as an analysis of our
actual law. Very largely they have sought to force common-
law ideas and doctrines and institutions into modern-Roman-law
molds-assumed to be universal molds demonstrated by analysis.
Austin's book, as we now have it, consists of the work pub-

lished in 1832, and a posthumous reconstruction of his lectures
made by his wife from his notes and manuscripts, and from
notes taken by his students-particularly by John Stuart Mill.
Because so much of it is a reconstruction from notes, it is a
hard book to read. Also Austin's style is severe and scrupulous-
ly exact, at the expense of wearisome repetition, and even of
redundancy. He was a chancery barrister in the days of the old
prolix equity pleading, and had imbibed something of that style.
It has been said of him that his love letters read like the charg-
ing part of a bill in equity. But with all its defects, the book
is the foundation of study of analytical jurisprudence. It is a
book to think through-not merely to read through.
Austin's method is more important than his results, as is
often the case with the founder of a school. Many of his as-
sumptions as to Roman law will not stand, and hence to some
extent vitiate the conclusions built thereon. Moreover, Austin's
analysis has reference to matured (developed) systems only.
It is not applicable to the genesis of law nor to archaic systems.
It presupposes a completely differentiated legal order, in which
47. Schwarz, John Austin and the German Jurisprudence of His Time
(1934) 1 Politica, 178.
[60]
a definite field of social control is appropriated to law, and law

is paramount therein. He studied the comparative anatomy of
developed systems-or rather of two developed systems, the
modern Roman and the English.
One might compare English analytical jurisprudence with
comparative anatomy of the vertebrates which was in vogue
when the method was formative in the hands of Austin's follow-
ers.48 Later we learned to correct and to supplement it by
anatomy of the invertebrates, and by embryology; we came to
perceive that we could not understand vertebrate anatomy by
itself without the light thrown upon it by the lower organisms
and by embryology. So it is with the anatomy of developed legal
systems. But neither Austin nor those who followed him at first
bore this in mind, if they perceived it at all. Hence, a revolt
from his methods in England and America in the last third of
the nineteenth century.
A chief factor in this revolt was the English His-

torical School of which the founder and the leading ex-
ponent is Sir Henry Maine (1822-1888).'
48. Owen, Archetype and Homologies of the Vertebrate Skeleton (1848);

Comparative Anatomy and Physiology of the Vertebrates (1866-1868). These
books had much influence in their day. "They set forth a theoretical verte-
brate skeleton to which all particular forms could be referred-a kind of ideal
of the vertebrate skeleton. No such skeleton ever existed. . .. But the
analogy caught the fancy of the English analytical jurists in the formative
days of analytical jurisprudence." Pound, Fashions in Juristic Thinking, Pres-
idential Address to the Holdsworth Club, University of Birmingham (1937) 8.
49. Ancient Law (1861, new ed. with introduction and notes by Sir Fred-
erick Pollock, 1906-many editions in England and America); Village Com-
munities in the East and West (1871); Lectures on the Early History of In-
stitutions (1874); Dissertations on Early Law and Custom (1883).
See Duff, Sir Henry Maine (1892); Vinogradoff, The Teaching of Sir Hen-
ry Maine (1904) 20 Law Quart.Rev. 119; Smellie, Sir Henry Maine (1928) 8
Economia, 64.
[61 ]
Jurisprudence
Maine's experience in India, as legal member of the Gov-

ernor General's Council, gave him an opportunity to see primi-
tive law in operation. Comparing what came under his observa-
tion there with what we know of archaic Roman law, and with
the scanty remains of the primitive laws of Indo-European peo-
ples, he was able to establish a comparative historical jurispru-
dence in English-speaking countries.
With Maine, as with Austin, it is the aim and the method
that are significant. Much of his detailed discussion and some
of his conclusions cannot be accepted in the light of later his-
torical research. His most important books are chiefly collec-
tions of lectures delivered while Corpus Professor of Jurispru-
dence at Oxford. Two of them, at least, Ancient Law and Lec-
tures on the Early History of Institutions, are part of the mini-
mum general culture of the learned lawyer. They are also an
indispensable foundation for study of historical jurisprudence.
Finally, at the end of the nineteenth century, a re-

volt in Continental Europe from the then dominant his-
torical school took three lines and gave us the two schools
characteristic of the twentieth century, and a method
which has had important effects and has in part led to a
formative school of jurists with a distinct system of legal
science and a distinct program of study of the legal order
and of the judicial process. The two schools are: The
Social-PhilosophicalSchool and the Sociological School.
The method is The Economic Interpretation,which has
led toward a neo-Realist School. Summarily stated, we
have now four main types or schools of jurists.
I. THE ANALYTICAL SCHOOL. In the analytical school we
may distinguish four forms: (1) The Austinians, whose meth-
[62]
od is exclusively analytical. Holland's Jurisprudence is the lead-

ing book of this type.50 (2) The later English analytical jurists,
or neo-Austinians, as Jethro Brown called them. Their method
was historical as well as analytical. They sought to reconcile
and to combine analytical and historical method. 51 (3) More
recently, a tendency toward philosophy appeared among English
analytical jurists. 52 (4) A neo-Kantian analytical type arose in
Continental Europe in the second decade of the present century
-Kelsen's pure theory of law. It combines a neo-critical
53
philosophy of law with an analytical jurisprudence.
11. THE HISTORICAL SCHOOL. In the historical school we
54
may distinguish two forms: (1) the German historicalschool,
whose method is metaphysical and historical; (2) the English
historical school, whose method is comparative (becoming an-
alytical) and historical. 55 The historical school in one form or
the other was dominant in Continental Europe and in America
in the last half of the nineteenth century. On the Continent
there was a tendency near the end of the century for historical
and philosophical jurisprudence to draw together.5
50. Elements of Jurisprudence (1880, 13 ed. 1924).

51. The Austinian Theory of Law (1906). See also Jenks, Law and Politics
in the Middle Ages (1897, 2 ed. 1913).
52. There are signs of this in Salmond, Jurisprudence (1902, 8 ed. 1930).
See especially Goadby, Introduction to the Study of Law (1913, 2 ed. 1914).
53. See Pound, Fifty Years of Jurisprudence (1937) 557, 579-581; id. Prog-
ress of the Law-Analytical Jurisprudence 1914-1927 (1927) 41 Harvard Law
Rev. 174.
54. Puchta, Cursus der Institutionen, bk. I, Encykloplidie (1841, 10 ed. by
KrUger, 1893) is one of the principal works of this school after those of Sa-
vigny. §§ 1-61 are transl. by Hastie, Outlines of Jurisprudence (1887).
55. Bryce, Studies in History and Jurisprudence (1901); Clark, Practical
Jurisprudence (1883); id. Roman Private Law: Jurisprudence (1914); 1 Vino-
gradoff, Historical Jurisprudence (1920)-neo-historical, pluralist ideological.
56. Carter, Law: Its Origin, Growth and Function (1907). This post-
humous book (lectures delivered at the Harvard Law School in 1905) develops
[63 ]
Jurisprudence
III. THE PHILOSOPHICAL SCHOOL. We may recognize six

forms of the philosophical school: (1) the eighteenth-century
law-of-nature school. This school lingered throughout the nine-
teenth century in the United States, because eighteenth-century
law of nature was classical in American public law.57 Also it
the ideas urged by Carter, a follower of Savigny and Maine, in his address,
The Ideal and the Actual in Law (1890) 13 Rep.Am.Bar Ass'n 217.
As to the relation of Carter to Savigny see Pound, The Spirit of the Com-
mon Law (1921) 154-155.
57. Haines, The Law of Nature in State and Federal Judicial Decisions
(1916) 25 Yale Law Journ. 617; Corwin, The "Higher Law" Background of
American Constitutional Law (1928) 42 Harvard Law Rev. 365, 380-381, 388-
409; Green, J., in State Bank v. Cooper, 2 Yerger (Tenn.) 599, 602-603 (1831);
Hosmer, C. J. in Inhabitants of Town of Goshen v. Inhabitants of Town of
Stonington, 4 Conn. 209, 225 (1822); Jackson, J. in Holden v. James, 11 Mass.
396, 405 (1814).
Marshall, C. J. in Fletcher v. Peck, 6 Cranch (U.S.) 87, 135, 3 L.Ed. 162
(1810); Chase, J. in Calder v. Bull, 3 Dall. (U.S.) 386, 388, 1 L.Ed. 648 (1798);
Field, i. in Butchers' Union Co. v. Crescent City Co., 111 U.S. 746, 756-759, 4
S.Ct 62, 659-661, 28 L.Ed. 585 (1884); Harlan, J. in Chicago, B. & Q. R. Co.
v. Chicago, 166 U.S. 226, 237, 17 S.Ct. 581, 585, 41 L.Ed. 979 (1897); Cobb, J.
in Pavesich v. New England Life Ins. Co., 122 Ga. 190, 194, 50 S.E. 68, 69, 69
L.R.A. 101 (1905); Winslow, J. in Nunnemacher v. State, 129 Wis. 190, 198-
203, 108 N.W. 627, 628-630, 9 L.R.A.,N.S., 121 (1906).
Mason, J. in White v. White, 5 Barb. (N.Y.) 474, 484-485 (1849); Knowlton,
J. in Com. v. Perry, 155 Mass. 117, 121, 28 N.E. 1126, 1127, 14 L.R.A. 325 (1891) ;
Barculo, J. in Benson v. Mayor, 10 Barb. (N.Y.) 223, 244-245 (1850); Per Curi-
am in Ham v. McClaws, 1 Bay (S.C.) 93, 98 (1789). But see Andrews, J. in
Bertholf v. O'Reilly, 74 N.Y. 509, 514-516 (1878); Moody, J. in Twining v. New
Jersey, 211 U.S. 78, 106-107, 29 S.Ct. 14, 22-23, 53 L.Ed. 97 (1908).
Story, J. in Wilkinson v. Leland, 2 Pet. (U.S.) 627, 657, 7 L.Ed. 542 (1829);
Miller, J. in Citizens' Say. & Loan Ass'n v. Topeka, 20 Wall. (U.S.) 655, 662,
22 L.Ed. 455 (1874); Fuller, C. J. in In re Kemmler, 136 U.S. 436, 448, 10 S.Ct.
930, 934, 34 L.Ed. 519 (1889); Deemer, J. in State ex rel. White v. Barker, 116
Iowa 96, 105, 89 N.W. 204, 207, 57 L.R.A. 244 (1902); Brewer, J., in State ex
rel. Attorney General v. Nemaha County, 7 Kan. 542, 555-2556 (1871); Cooley,
J. in People ex rel. LeRoy v. Hurlbut, 24 Mich. 44, 97-98 (1871); Allen, J., in
People ex rel. Bolton v. Albertson, 55 N.Y. 50, 57 (1873); Gibson, C. J. in Nor-
man v. Heist, 5 Watts & S. (Pa.) 171, 173 (1843); Hines, C. J. in Barbour v.
Louisville Board of Trade, 82 Ky. 645, 648-649 (1884); Brown, J. in Rassmus-
[64]
hung on to some extent in French public law for a like reason.5

In the latter part of the nineteenth century it was represented
by some neo-Rousseauists in France, and among American
writers on politics. 59 Also it had some representatives in Amer-
ican writers on "elementary law." 60 The neo-Rousseauists,
who gave us a critique based on an ideal of man, are more im-
portant in politics than in jurisprudence. (2) The metaphysical
school, which gave us a critique based on a metaphysical con-
ception of liberty was dominant in philosophical jurisprudence
during the first three quarters of the nineteenth century.6 ' (3)
sen v. United States, 197 U.S. 516, 531, 25 S.Ct. 517, 519, 49 L.Ed. 862 (1905).
But see Garrison, J. in Attorney General v. McGuinness, 78 N.J.L. 346, 369
ff., 75 A. 455, 461 (1910); 1 Dillon, Municipal Corporations (5 ed. 1911) § 98.
See Tucker, A Few Lectures on Natural Law (1884); Bishop, Non-Contract
Law (1889) § 85; Smith, The Law of Private Right (1890) pt. 3, chap. 3; 1
Andrews, American Law (2 ed. 1908) §§ 103-104; Pound, Introduction to the
Philosophy of Law (rev. ed. 1954) 19-21; Haines, The Revival of Natural Law
Concepts (1930) chaps. 3-6; Dodd, Extra-Constitutional Limitations Upon Leg-
islative Power (1931) 40 Yale Law Journ. 1188; Grant, The Natural Law Back-
ground of Due Process (1931) 31 Columbia Law Rev. 56; Mullett, Fundamen-
tal Law in the American Revolution, 1760-1776 (1933); Wright, American In-
terpretations of Natural Law (1931).
58. See Hauriou, Prdcis de droint constitutionnel (1923) bk. I, chap. 1; 1

Duguit, Traitd de droit constitutionnel (2 ed. 1921) §§ 14-16; 1 Esmein, El6-
ments de droit constitutionnel (7 ed. 1921) 539-563 (8 ed. 1927) 577-602. See
Belime, Philosophie du droit (1844-1848, 4 ed. 1881).
59. Wilson, The State (1889, rev. ed. 1900) §§ 1415-1460; Acollas, Introduc-
tion A l'4tude du droit (1885) 1, 2, 7; id. L'id6e du droit (1889) 29; Beaussire,
Les principes du droit (1888) introduction, especially 1, 7, but compare 25 ff.
60. Andrews, American Law (1900) § 72. For eighteenth-century natural

law in American elementary books see Robinson, Elementary Law (1882) §§
23-24; Fishback, Elementary Law (1896) §§ 41 ff. Cf. Bishop, Non-Contract
Law (1889) § 88.
61. In addition to the more important works, note 37 ante, mention may
be made of the following: Beudant, Le droit individuel et l'Stat (1891, 3 e.
1920); Bovio, Filosofia del diritto (4 ed. 1894); Carle, La vita del diritto (2 ed.
1890); Cogliolo, Filosofia del diritto privato (2 ed. 1891); Fouillee, L'idce mod-
erne du droit (1878, 6 ed. 1909); Geyer, Geschichte und System der Rechts-
1 Pound Jurisprudence-[5 [65 1

Jurisprudence
The utilitarians, who gave us a critique based on happiness and

utility as bringing about or promoting happiness, was the school
generally adhered to by English analytical jurists with follow-
ing also on the Continent 2 (4) The positivists, followers of
Herbert Spencer in England and especially in America, but also
to some extent in Italy,6 3 and of Comte in France,6 and in
Switzerland. 5 They gave us a critique based on laws of social
development found by observation and verified by further obser-
philosophie (1863); Giner de los Rios, Filosofia del derecho (1871); Giner y
Calderon, Filosofia del derecho (1898); Giner und Calderon, Zur Vorschule des
Rechts, kurzgefasste Grundsatze des Naturrechts (1878, transl. by Rdder, pub-
lished 1907); Harms, Begriff, Formen und Grundlegung der Rechtsphilosophie
(1889); Herbart, Analytische Beleuchtung des Naturrechts und der Moral
(1836); Kirchmann, Grundbegriffe des Rechts und der Moral (2 ed. 1873);
Krause, Das System der Rechtsphilosophie (posthumous ed. by R6der, 1874);
Lerminier, Introduction gdndrale 1t l'histoire du droit (2 ed. 1836); Miraglia,
Filosofia del diritto (3 ed. 1903; transl. by Lisle in Modern Legal Philosophy
Series as Comparative Legal Philosophy); Wider, Grundziige des Naturrechts
oder der Rechtsfilosofie (2 ed. 1860); Rosmini, Filosofia del diritto (1841, 2 ed.
1865); Stahl, Philosophie des Rechts (1829, 5 ed. 1878); Tissot, Introduction
historique t '4tude du droit (1875); Trendelenburg, Naturrecht auf dem
Grunde der Ethik (2 ed. 1868); Walter, Naturrecht und Politik im Lichte der
Gegenwart (2 ed. 1871); Zoepfi, Grundriss zu Vorlesungen flber Rechtsphiloso-
phie (2 ed. 1879).
62. See ante note 44; Mill, On Liberty (1859). As to utilitarianism in Ger-
many, see Sauer, Rechts- und Staatsphilosophie (1936) 37-38; in Spain, see
Recasdns Siches, Estudios de filosofia del derecho internacional (1930) 443-
444.
63. Spencer, Social Statics (1892); id. Justice (1891); Ardigb, Opere filoso-
fiche, vols. 3, 4 (3 ed. 1908); see Di Carlo, I1 diritto naturale secondo R. Ardigb
ed i1 positivismo Italiano (1909); Puglia, R. Ardigb ed il moderno positivismo
etico giuridico Italiano (1898). As to Germany, see Sauer, Rechts- und Staats-
philosophie (1936) § 2.
64. As to France, see Charmont, La renaissance du droit naturel, chap. 5
(transl. in Modern French Legal Philosophy, 7 Modern Legal Philosophy Series,
65-73). As to Spain, see Recasdns Siches, Estudios de filosofia del derecho in-
ternacional (1930) 466.
65. Burckhardt, Die Organisation der Rechtsgemeinschaft (1927); id. Das
Recht als Tatsache und als Postulat, in Festgabe f-ir Huber (934) 75.
[ 66]1
vation. (5) The social-philosophicalschool will be spoken of in

detail presently. They give us a critique based on social philos-
ophy. (6) In Continental Europe and especially in America a
group of neo-realists, rejecting critiques, and skeptical as to any
system not applying the force of politically organized society,
proceeded originally on the basis of economic determinism, but
has been influenced by neo-Kantian relativism and by phen-
omenology. In America the skeptical neo-realists are more
closely allied to the economic interpretation, but to some extent
66
proceed on the basis of psychological determinism.
With respect to the different types of the philosophical
school, it may be noted that the law-of-nature school is the
eighteenth-century type; the metaphysical school is the nine-
teenth-century type; the social-philosophical school, now domi-
nant, is the twentieth-century type.
There are four forms of the social-philosophical school.
Stated in chronological order of appearance, they are:
(1) Social Utilitarians, whose method is analytical and
social-philosophical.67
(2) Neo-Kantians, whose method is logical-social-philoso-
phical. They put logic where the eighteenth century put rea-
68
son.
(3) Neo-Hegelians, whose method is historical and social-
philosophical.6 9
These are now tending to merge in what may be called a
70
Neo-Idealist School.
66. See post chap. 5, § 21, 4.

67. See post chap. 4, § 14.
F67]
Jurisprudence
(4) The school of Revived Natural Law " of whom some

are neo-Kantians. But the original writings of this school are
of three forms-(a) Neo-scholastic-from the standpoint of a
social philosophy based upon Thomas Aquinas; (b) metaphysi-
cal-psychological-a social-philosophical jurisprudence on the
basis of a metaphysical-social psychology; (c) positivist-socio-
logical.
The second runs into neo-Kantian social-philosophical
jurisprudence; the third runs into mechanical sociological juris-
prudence.
IV. REALIST SCHOOLS, which are (a) economic-determinist,
(b) psychological-determinist, (c) skeptical (neo-Kantian-rela-
tivist), (d) logical positivist, and (e) phenomenological-a com-
pound of positivist realism and phenomenology.
V. THE SOCIOLOGICAL SCHOOL. As this and the Realist
schools are still formative in comparison with the foregoing,
their origin and history must be looked into in detail in the
more minute examination of the several schools and of their
methods that follows.
[68]
Chapter 3
Schools of Jurists:
The Nineteenth-Century Schools
§ 9. The Analytical School.

§ 10. The Historical School.
§ 11. The Philosophical School.
§ 12. Critique of the Nineteenth-Century Schools.
[69]
Chapter 3
Schools of Jurists:
The Nineteenth-Century Schools'
Section 9
E ANALYTICAL SCHOOL In sum-

rizing the characteristics of the modern
schools of jurists, it will be convenient to take
up five points in connection with each,
namely:
(1) What element in the complex of phenomena
that we give the name of law, and what kind of system of
social control through law, does it chiefly regard?
I. On methods and schools see: Berolzheimer, The World's Legal Philoso-

phies (1912) chaps. 5-6; Charmont, La renaissance du droit naturel (1910)
chaps. 1-5 (chap. 5 is transl. in VII Modern Legal Philosophy Series, 65-73);
I Vinogradoff, Historical Jurisprudence (1920) 103-160 (Methods and Schools
of Jurisprudence); Vinogradoff, Aims and Methods of Jurisprudence (1924)
24 Columbia Law Rev. 1; Isaacs, The Schools of Jurisprudence (1918) 31 Har-
vard Law Rev. 373; Pound, Jurisprudence (1932) in 8 Encyclopaedia of the
Social Sciences, 477-485; Dahn, Rechtsschulen, in Rechtsphilosophische Stu-
dien (1883) 132; I Windscheid, Pandekten (9 ed. 1906) §§ 7-10; I Dernburg,
Pandekten (7 ed. 1902) §§ 16-17; Patterson, Jurisprudence (1953) § 1.05.
On the nineteenth schools in general see: Pollock, Oxford Lectures (1890)
1-36 ; Pollock, Essays in Jurisprudence and Ethics (1882) 1-30; Bryce, Studies
in History and Jurisprudence (1901) essay 12; Munroe Smith, Jurisprudence
(1909) 30-42; Brown, The Austinian Theory of Law (1906) excursus F; Korku-
nov, General Theory of Law (transl. by Hastings, 1909) 23-30, 116-138; Light-
wood, The Nature of Positive Law (1883) chaps. 12-13; Lorimer, Institutes of
2. See note 2 on page 72.

[71]
Jurisprudence
In connection with this first question we must bear in mind

that law is not the simple conception that has been postulated in
Law (2 ed. 1880) 38-54; Miller, Lectures on the Philosophy of Law (1884) ap-
pendix E; Leonhard, Methods Followed in Germany by the Historical School
of Law (1907) 7 Columbia Law Rev. 573; Pound, The Scope and Purpose of
Sociological Jurisprudence (1911) 24 Harvard Law Rev. 591; id. The Philoso-
phy of Law in America (1913) VII Archiv fUr Rechts- und Wirtschaftsphiloso-
phie, 213, 385; id. The Spirit of the Common Law (1921) lect. 6.
Clark, Practical Jurisprudence (1883) 1-6; Amos, A Systematic View of the
Science of Jurisprudence (1872) 40-43; Holland, Elements of Jurisprudence
(13 ed. 1924) 1-13; I Puchta, Cursus der Institutionen (1841) §§ 33-35 (English
transl. by Hastie, Outlines of Jurisprudence (1887) 12-132); Fichte, Grundlage
des Naturrechts (1796) Introduction, § 2 (English transl. by Kroeger as Fichte's
Science of Rights (1889) 16-21); Hegel, Grundlinien der Philosophie des Rechts
(1821) §§ 1-3 (English transl. by Knox as Hegel's Philosophy of Right (1942)
1-10); I Boistel, Cours de philosophie du droit (1899) §§ 1-2; Miller, Data of
Jurisprudence (1902) 1-2.
For France, see I Bonnecase, La pensge juridique franCaise (1933) 285-508;
for Germany, see Berolzheimer, The World's Legal Philosophies (1912) 180-259.
See also the series of papers on nineteenth-century schools of jurists in par-
ticular countries in the Archiv fUr Rechts- und Wirtschaftsphilosophie, XXIII,
275 (Italy by Perticone); XXIV, 37 (Hungary by Horvfth); XXVI, 289 (Rus-
sia by Laserson); XXVI, 29 (Spain by Legaz y Lacambra).
On doctrines and methods as different phases of reaction from the phil-
osophical methods of the eighteenth century see: Austin, Jurisprudence (5 ed.
1885) 215-218; 1 Bentham, Traitds de l6gislation (2 ed. 1820) chap. 13, § 10
(1802 ed. p. 133); Bluntschli, Die neueren Rechtsschulen der deutschen Juris-
ten (2 ed. 1862); Bekker, Ueber den Streit der historischen und der filosofischen
Rechtsschule (1886); Pound, Interpretations of Legal History (1922) lect. 1.
2. Austin, Lectures on Jurisprudence (5 ed. 1885) Outline of the Course of
Lectures, Preliminary Explanations, and lect. I; Gray, Nature and Sources
of the Law (1909) §§ 1-19 (2 ed. 1921, pp. 1-5); 2 Berolzheimer, System der
Rechts- und Wirtschaftsphilosophie (1905) 18-20 (transl. The World's Legal
Philosophies (1912) 9-11); Bergbohm, Jurisprudenz und Rechtsphilosophie
(1892) 12-20; Soml6, Juristische Grundlehre (1917) 33-37; Dowdall, The Pres-
ent State of Analytical Jurisprudence (1926) 42 Law Quart.Rev. 451; Pound,
The Progress of the Law: Analytical Jurisprudence, 1914-1927 (1927) 41 Har-
vard Law Rev. 174; Pound, Fifty Years of Jurisprudence (1937) 50 Harvard
Law Rev. 557, 564-582. Hutley, The Nature of Analytical Jurisprudence (1948)
26 Australasian Journ. of Philosophy, 20, 22.
See also the comparison of analytical jurisprudence with the classical eco-
nomics, Cooke, Adam Smith and Jurisprudence (1935) 51 Law Quart.Rev. 326,
331.
[ 72]
3. The Nineteenth-Century Schools
discussion of "the nature of law" by nineteenth-century jurists.

Three quite distinct things are included in the idea of law, even
limited as the analytical jurists would limit it, that is, to the
apparatus by which tribunals actually decide controversies in
modern societies.3 These three elements are:
(a) A precept element, a body of legal precepts more or
less defined-the element to which Bentham referred when he
said that "law" was an aggregate of "laws."
(b) A technique element, a body of traditional ideas as
to how legal precepts should be interpreted and applied and
causes decided, and a traditional technique of finding the
grounds of decision of particular cases in the authoritative legal
precepts and of developing and applying legal precepts-a tech-
nique by which the body of precepts is eked out, and the several
precepts are extended, restricted, and adapted to the exigencies
of the administration of justice.
(c) An ideal element, a body of philosophical, political,
and ethical ideas as to the end of law and as to what legal pre-
cepts should be in view thereof, with reference to which legal
precepts and the traditional ideas of application and decision
and the traditional technique are continually re-shaped and given
new content or new application.
Each of these is an element in the everyday decision of
causes. The body of precepts gets its whole life from the tech-
nique of developing and applying them; and that technique gets
its color and its direction, and the precepts themselves get their
shape and content for the time being from the traditional ideas
or current professional ideas as to the end of law.
Different schools have put the emphasis upon a particular

element, usually to the exclusion of the others.
3. This is fully discussed post chap. 10.

[ 7$ ]
Jurisprudence
(2) What answer does it give to the question as to

the nature of law? What is its answer to the question,
how does law come into existence?
(3) How does it answer the question, what makes
law obligatory? What does it take to be the source of the
authority of law? What does it hold gives efficacy to
the legal order?
(4) What form of legal precept does it take as the
type?
(5) What are its philosophical views?
Characteristics of the analytical school:
(1) They consider developed systems only-the
Roman (usually the modern Roman) and the Germanic
law or, if English and Americans, the Roman law, the
modern Roman law and its derivatives, and the Anglo-
American common law.
This is absolutely true of Austin and his immediate follow-
ers. Slight concessions by the neo-Austinians and by Holland in
the later editions of his book leave it still true substantially.
Analytical jurists look exclusively at the first of the
three elements of "law" (using law in the sense of the
body of authoritative materials of judicial decision and
administrative determination). They profess to be con-
cerned only with what Sheldon Amos calls "the pure fact
of law." ' Representing to themselves the whole body of
4. Systematic View of the Science of Jurisprudence (1872) 18.

[74]
legal precepts that obtain in a given system as made at

one stroke on a logical plan to which they conform in
every detail, the analytical jurists set out to discover this
plan by analysis. They postulate bodies of law such as
Justinian's codification or the Code Napol6on.
The "pure fact of law" or the "law that is" of the analyti-
cal jurist is an illusion, if thought of as anything more than a
convenient postulate for systematic study and analytical exposi-
tion. The analytical jurist does not discover a universal plan
of which each particular legal precept, as it actually obtains, is
a part, as one of the fragments is a part of a picture puzzle.
He sets up a logical plan which will explain as much as possible
of the actual materials for guiding the administration of justice
and criticizes the unexplained remainder for logical inconsisten-
cy therewith.
For example, such books as Gray on Restraints on the
Alienation of Property or Gray on the Rule Against Perpetui-
ties, do not state legal precepts that actually obtain, just as they
obtain in any one jurisdiction at any one exact time. They set
forth the author's conception of what legal precepts ought to
obtain in an ideal common-law jurisdiction in which there is an
ideal logically interdependent body of legal precepts upon these
subjects, logically deducible from the classical common-law
authorities. No such system exists anywhere, nor did it ever
exist. It is no more "pure fact of law" than a historically de-
rived ideal system or a philosophically constructed ideal system.
Moreover, such books employ a traditional technique and postu-
late traditional ideas of the end of law, which give concrete con-
tent to the abstract precepts which they conceive to be the "pure
fact of law." Thus in the preface to the second edition of his
Restraints upon Alienation,5 Professor Gray tells us that his
5. See Gray, Restraints on Alienation (2 ed. 1895) viii-xi.

[75]
Jurisprudence
critique of the decisions as to spendthrift trusts proceeds on a

philosophical theory of the end of law, which is assumed to be a
cardinal principle of the common law. But this principle is not
"'pure fact of law" in the analytical sense. It is a philosophical-
economic conception to which it is conceived the phenomena of
the administration of justice ought to conform. In other words,
the elements that the analytical jurists exclude enter directly
and decisively into their actual results.
(2) They regard the law as something made con-

sciously by lawmakers, whether legislative or judicial.
In its crudest form this is expressed in Austin's dogma that
a law is the command of the sovereign. Today, under the in-
fluence of Binding and Jhering, it commonly takes the form of
regarding the law as a body of norms (patterns of conduct or
of decision and of official action) or precepts established or
authoritatively recognized by the state, although perhaps worked
out in many different ways before they received the stamp of
the state's authority. Another way of putting it is that these
norms or precepts originate in society but are laid down au-
thoritatively by the judicial organs of the state, and thus become
law.0 In other words, the analytical jurist emphasizes, not the
way in which the precepts originate with respect to their con-
tent, but the fact that they get the conscious stamp of the state.
In this view the significant thing, the essential quality, is this
establishment or authoritative recognition by the state. In this
,sense law is "a product of conscious and increasingly deter-
minate human will." 7
6. Gray, Nature and Sources of the Law (1 ed. 1909) § 213.

7. Munroe Smith, Jurisprudence (1909). Compare: "Law is the voluntary
and intended work of humanity." Korkunov, General Theory of Law (transi.
by Hastings, 1909) 116.
[ 76]
These two characteristics of the analytical school-that it

considers developed systems only and that it regards law as some-
thing made-are inseparably connected with the analytical meth-
od. As a method of jurisprudence, the analytical method-the
method of seeking fundamental principles of all law through
analysis and comparison-postulates a condition of stability in
the legal systems analyzed. Hence it is appropriate to developed
systems only, and begins to be applied, as a method of a general
science of law, only as legal systems reach maturity. But the
growing point in a matured system tends more and more to be in
legislation. Hence the analytical theory of law becomes impera-
tive or positive; the analytical jurist thinks of law as something
that is made.
(3) In answering the questions, what makes law

obligatory? what is the source of the law's authority?
what gives efficacy to the legal order? analytical jurists
see chiefly the force and constraint behind legal precepts.
To them, the crucial point is enforcement by the judicial
(or perhaps today, judicial and administrative) organs
of the state, and nothing that cannot vouch that enforc-
ing agency is law. Hence they make much of the theory
of sanction. Hence also they commonly deny that inter-
national law is truly law.8
(4) For them the typical law is statute, because it
is the type of law made consciously; the type of law de-
liberately imposed by the state.
8. 1 Austin, Jurisprudence (4 ed. 1873) 177; Holland, Jurisprudence (13 ed.

1924) 133-135; Hall, International Law (1880, 8 ed. 1924) introductory chap-
ter; 1 Westlake, International Law (1904) 5-13.-
[77]
Jurisprudence
Such a view is suggested in England by the supremacy of

Parliament, and no doubt that circumstance had much to do
with its general acceptance by English analytical writers. It is
derived from more than one source. With Austin it comes, on
the one hand, from a combination of Hobbes and Locke with
Coke's legal theory of the authority of Parliament, and, on the
other hand, from the civilian's theory of the Corpus Juris, the
common law of Continental Europe, as a body of legal precepts
enacted at one stroke by Justinian. It conceives that materials
given and shaped by utility (Bentham) are put in legal form
and given obligatory force by the command of a sovereign
(Hobbes), which sovereign is the English Parliament (Locke)
conceived as an absolute and uncontrollable lawmaker (Coke)
and as analogous to the Byzantine-Roman emperor whose de-
clared will had the force of law (the Pandectists). For Austin
got his theory of Roman law from German civilians of the first
third of the nineteenth century, before the historical school had
established a different order of ideas. His teachers and the
books he read held to the Byzantine idea of law and legislation,
an idea appropriate to the era of the spread of the French civil
code over Europe, and to an era still influenced by political ideas
of the period of absolute governments (the seventeenth and
eighteenth centuries).
Statute as type of law is less acceptable to American an-
alytical writers. The backwardness of legislation in nineteenth-
century America, the judicial power with respect to legislation
that obtains in our polity, and the Anglo-American conception
of a statute as something exceptional, which courts must fit into
the common-law system, but which can only furnish a rule, not
a principle or an analogy-these are awkward facts for the
American Austinian. Hence many Americans whose point of
view is otherwise analytical, take a position with respect to legis-
lation which is nearer that of the historical school.
[ 78 ]
(5) Their philosophical views are utilitarian. In

England, Bentham, the forerunner of the analytical
school, was the leader of the utilitarians and Austin, the
founder, was a disciple of Bentham and a zealous utili-
tarian. In Germany, Jhering, who gave the ideas of
analytical jurisprudence currency on the Continent,
founded the social-utilitarian type of the social-philo-
sophical school.
As the analytical jurist was a believer in conscious lawmak-
ing, and so a believer in legislation, he inclined naturally to a
philosophy of legislation. Although utilitarianism is a theory
of ethics, it is in reality a theory of applied ethics. It is a
theory of legislation, giving us, as Maine says, a working rule
of legislation.9 Moreover, the doctrine was expounded by Ben-
tham for the purposes of a theory of legislation.
In the present century the analytical method has

been developed further by Roguin, Kelsen, and Hart. In
considering their work it is worth while to note the pur-
pose for which that method has been employed and de-
veloped. It was Austin's purpose to prepare for an
eventual codification of English law at the time of the
English legislative reform movement." It was Roguin's
purpose to deliver the teaching of law from the "yoke of
Romanism"-to develop new possibilities of lawmaking
in a time when the juristic pessimism of the historical
9. Early History of Institutions (1874) last paragraph of lect. XIII.

10. 2 Austin, Jurisprudence (5 ed. 1885) 1045. See also Austin's letter to
Sir William Erle, 1 Jurisprudence (5 ed. 1885) 17.
[ 79 ]
Jurisprudence
jurists was beginning to give way." It was Kelsen's pur-

pose to work out a science of law for an era of written
constitutions, in which a fundamental law was the basis
of legal institutions and legislation was taken to derive
its authority therefrom.' It was the purpose of Profes-
sor Hart to relieve analytical jurisprudence of a divorce
from the "study of the law at work." 1"
As to the philosophical standpoint of the later exponents of
the analytical method, Roguin, Professor of Law at Lausanne,
was in a Comtian positivist environment 14 but was much influ-
enced by Stammler's Neo-Kantianism. Kelsen is a Neo-Kan-
tian. 15 Hart, Professor of Jurisprudence at Oxford, is with
Bentham and Austin in the English common-sense feeling of the
irrelevance of philosophy of law but is tempered by the current
Neo-Kantian faith in logic.
Roguin, 16 seeking a pure science of law where Austin gave
a system based on the positive law of England and of Conti-
nental Europe as derived from Roman law, constructs a system
of what is logically possible as positive law,17 without limiting
II. Roguin, La rogle de droit (1889) 34.

12. Kelsen, Why the Law Should Be Obeyed, iv, in What is Justice (1957)
261-263.
13. Hart, Definition and Legal Theory in Jurisprudence (1954) 70 Law
Quart.Rev. 37. See Bodenheimer, Modern Analytical Jurisprudence and the
Limits of Its Usefulness (1956) 104 University of Pa.Law Rev. 1080.
14. 1 Roguin, La science de droit pure (1923) ix.
15. See post § 15.
16. La rigle de droit (1889); La science de droit pure (1923). See Tourtou-
Ion, Principes philosophiques de l'histoire de droit (1908) 537-543, Read's
transl. Philosophy in the Development of Law (1922) 465-470; Stone, The
Province and Function of Law (1946) 77-87.
17. "Science des solutions possibles." Tourtoulon, op.cit. 537, English
transl. by Read, 465.
[80]
the law, as did the historical jurists, to the lines which had come
down from the revived study and reception of Roman law. Kel-
sen carries this further, distinguishing carefully "what is" from
"what ought to be" and giving a philosophical basis for a univer-
sal system. He lays down that a law (i. e. a legal precept) is a
norm, a statement of what ought to be. It derives its authority,
which gives it binding force, from the "basic norm" of the partic-
ular politically organized society.'
It should be noted that both in Austin's case and in

the new types of analytical method the results could have
been reached without any philosophy of law.
§ 10. THE HISTORICAL SCHOOL. In a gen-
eral comparison of the analytical school and the historical
school, as they were in the nineteenth century, we may
say: The analytical jurist sought universal legal princi-
ples, universal legal conceptions, and a universal sys-
tematic frame work of law by comparative analysis of
developed legal systems, and of their doctrines and insti-
tutions in their matured forms. The historical jurist
pursued a comparative study of the origin and develop-
ment of law, of legal systems, and of particular legal doc-
trines and legal institutions, and sought to derive there-
from a universal theory of law, universal legal concep-
tions, and universal principles. The analytical jurist
thought of law as something that is made and, having
been made, is stable and capable of dissection by analysis.
The historical jurist and the philosophical jurist (speak-
18. See bibliography and fuller exposition post § 15.

Jurisprudence
ing now of the nineteenth-century philosophical jurist)

thought of law as something that is found, not made, but
differed with respect to what it is that is found. The
historical jurist held that a principle of human action
or of social action was found by human experience and
gradually developed into and was expressed in legal pre-
cepts through judicial or juristic experience. The nine-
teenth-century philosophical jurist conceived that a prin-
ciple of justice and right was found by human reason and
expressed in a legal precept, and that further precepts
were then deduced therefrom.
As the historical school denied that law was a product of
conscious or determinate human will, they doubted the efficacy
of legislation. 19 They conceived that legislation seeks to achieve
the impossible-to make what cannot be made. They held that
the living organs of the law are doctrinal writing and judicial
19. "These propositions [for codes] are connected with a general view of
the origin of all positive law which formerly prevailed with the great ma-
jority of German jurists. According to this view, under normal circumstances
all law consists of enactments, that is, express precepts of the highest power
in the State. The science of law has for its subjects nothing more than the
content of enacted rules. Accordingly, legislation itself as well as the science
of law is held to be of wholly fortuitous and changeable content, and it is
considered entirely possible that the law of tomorrow appear wholly unlike
that of today. According to this theory, a complete statute book is an urgent
need, and only in case the statute book is in a defective condition are we un-
der the unfortunate necessity of resorting to customary law as a feeble sup-
plement. . . . Stated summarily . . . [the correct] view is that all
law arises in the manner which the prevailing (though not entirely adequate)
usage calls 'customary law'; that is, it is produced first by custom and popu-
lar belief, and then through course of judicial decision, hence, above all,
through silent, inner forces, and not through the arbitrary will of a law-
maker." Savigny, Vom Beruf unsrer Zeit fiir Gesetzgebung und Rechtswissen-
schaft (3 ed. 1840) 6-7, 13-14.
[ 82]
decision. By these agencies, they conceived, the life of a peo-

ple, expressed in the first instance in customs, taking the form
of traditional legal precepts, made itself felt in a gradual de-
velopment by molding those precepts to the conditions of the
time and place.
Taking up the five points considered in characteriz-

ing the analytical school:
(1) Historical jurists considered all social control;
they did not confine their conception of law to that part
of social control which is achieved through politically or-
ganized society." Also they studied the past rather than
the present of law. When they considered the present,
they looked at it only as the culmination of a past course
of development.
Examples of the difference between analytical and historical
method, in application to practical legal problems, growing out
of a different starting point as to the materials to be used in
shaping a legal theory, are: (a) the controversy in civil-law
countries as to the interpretation of recent codes,2 1 (b) the dif-
ference between the California theory (historical) and the Colo-
rado theory (analytical) in American irrigation law.
(a) In the interpretation of the codes, the analytical
school ask, what do the several code provisions mean as they
20. See e. g. 1 Vinogradoff, Historical Jurisprudence (1920) 157-160.

21. See Heck, Gesetzesauslegung und Interessenjurisprudenz (1914) § 1;
Hblder, Kommentar zum allgemeinen Theil des BGB (1900) 15 ff.; 1 Ennec-
cerus, Kipp, und Wolff, Lehrbuch des btirgerlichen Rechts (13 bearb. 1931) §§
48-52; 5 Planck, Buirgerliches Gesetzbuch (1930) introduction; Carter, Law:
Its Origin, Growth, and Function (1907) 308-309; Pomeroy, The True Method
of Interpreting the Civil Code (1884) 3 West Coast Reporter, 585, 691, 717; 4
id. 1, 49, 109, 145, especially 147 ff.
[ 83]
Jurisprudence
stand, applying the canons of genuine interpretation? They

assume that the whole code and all its provisions speak from one
date, and endeavor to find by analysis the proper code pigeonhole
for each concrete case, to put the case in hand into it by a pure
logical process, and to formulate the result in a judgment. The
historical school, on the other hand, assumed that the code pro-
visions are in the main declaratory of the law as it previously
existed; they regarded the code as a continuation and develop-
ment of pre-existing law. With them, all exposition of the code
and of any provision thereof, must begin by an elaborate inquiry
into the pre-existing law and the history and development of the
competing juristic theories among which the framers of the code
had to choose. One might compare the same two modes of ap-
proach in teaching the common law from cases. The difference
in the practical application of a code involved in these different
modes of approach is illustrated with us in the case of the Nego-
tiable Instruments Law. In that case, the historical mode of
approach in some jurisdictions for a time to some extent de-
feated or threatened to defeat the object of the Act.
(b) In American irrigation law there is a striking con-
trast between the older decisions in California and cases follow-
ing them, and those in Colorado and later decisions generally.
Irrigation law began in our Western states in connection with
possessory claims to the use of water on the public domain.
Hence historically a principle of possession is at the bottom of
the subject, and so the California courts required an actual di-
version, measured the right by the capacity of the ditch and held
22. See Beutel, The Necessity of a New Technique of Interpreting the Ne-
gotiable Instruments Law (1931) 6 Tulane Law Rev. 1. For examples of the
devitalizing of statutes by treating them as declaratory of pre-existing law, see
Montague, Proposals for the Revision of the Anti-Trust Laws, in Handler, The
Federal Anti-Trust Laws, a Symposium (1932) 49 n. 9. See also Tobriner and
Jaffe, Revision of the Anti-Trust Laws (1932) 20 California Law Rev. 585, 595
n. 29.
I84 ]
that it could be lost only by abandonment or adverse user. On

the other hand, analysis of the statutes, without regarding them
as the culmination of a bit of legal history, gives a wholly dif-
ferent conception of a right based on beneficial use and co-ex-
tensive with that use. Hence Colorado courts have tended to
recognize appropriation without actual diversion, to measure the
extent of the right by the use, and to hold that it may be lost by
23
non-user, and this view has prevailed.
Note that there is nothing anywhere in the body of legal
precepts to tell us when to use the analytical and when the his-
torical method. Yet this does not mean that there is no law-
nothing authoritative-to determine the starting point.
(2) Historical jurists regarded law as something

that is not, and in the long run cannot be, made con-
sciously.
This attitude toward law, and the resulting distrust of leg-
islation and of creative judicial decision are not at all neces-
sary incidents of a historical method. They grow out of the
conditions in which the historical school arose at the beginning
of the nineteenth century. They are due to reaction from the
institutional waste (as it might be called) and the paper-consti-
tution making of the French Revolution, and from the belief
of the law-of-nature school in the latter part of the eighteenth
century that the jurist by a mere exercise of reason could frame
2
a perfect code which the judge could take as ultimate wisdom.
The historical jurists, who had studied Roman law from the
sources, were acutely aware of crudities in the codes, especially
in the French civil code, which resulted from rational recon-
23. See I Wiel, Water Rights in the Western States (3 ed. 1911) § 139.
24. Savigny, Vom Beruf unsrer Zeit ffir Gesetzgebung und Rechtswissen-
schaft (1814) 4-7 (Hayward's transl. 1831, 20-23).
[ 85]
jurisprudence
struction of history instead of historical study, and from con-

fident belief that new and perfect legal institutions could be
made out of whole cloth.2 5 With their eyes upon these crudities
they did not always perceive how the bad Roman law of the
codifiers was made to give good French law. 6 But much of
their criticism of the codifiers for proceeding as if there had
been no legal past was well taken.2 7 Generalizing their objec-
tions to the legislation of the time and putting them universal-
ly, they reached the conclusion that all legislation was futile.
(3) Historical jurists saw chiefly the social pressure

behind legal precepts. Whereas analytical jurists saw
political pressure, the pressure of a politically organized
society, the historical jurists thought of any form of so-
cial pressure. To them, sanction was to be found in hab-
its of obedience to law, 8 in displeasure of one's fellow
men," in public sentiment and opinion," or in the social
standard of justice.3
The reason was that they sought a theory which would
unify the differentiated legal order of modern society and the
25. Id. 60-62 (Hayward's transl. 76-78); 2 Savigny, System des heutigen
rimischen Rechts (1840) § 75 (Rattigan's transl. 1884, "Savigny's Jural Rela-
tions," 110-124).
26. Savigny, Vom Beruf unsrer Zeit fir Gesetzgebung und Rechtswissen-
schaft (1814) 62-65 (Hayward's transl. 1831, 79-81).
27. See Savigny, Vom Beruf unsrer Zeit fir Gesetzgebung und Rechtswis-
senschaft (1814) 62.
28. Maine, International Law (1888) lect. II; 1 Westlake, International
Law (1904) 7.
29. Clark, Practical Jurisprudence (1883) 134.
30. 1 Rivier, Principes du droit des gens (1896) 7; Lightwood, The Nature
of Positive Law (1883) 362, 380.
31. Carter, The Ideal and the Actual in Law (1890) 10.
[86]
undifferentiated social control of primitive society. They sought

a universal idea which would square with the phenomena of
primitive law. They thought of sanction of the legal order rather
than of particular laws.
(4) Their type of law was custom or those cus-

tomary modes of decision that make up a body of juristic
tradition or of case law.
(5) As a rule their philosophical position has been
Hegelian.
This is partly because the school was formative when
Hegel's influence was strong. But it is due also to an intrinsic
sympathy. 32 For one thing, Hegel's was a philosophy of history.
Moreover, from seeking to find universal principles through the
study of history, to looking upon history as the unfolding in
human experience of the principles which one has found, is an
easy and a natural step. Hence in the historical school, along
with historical method we almost always get some form of ideal-
istic interpretation of legal history-either ethical idealistic or
political idealistic; either regarding legal history as a record of
the realizing or unfolding of an idea of right, or as a record of
the realizing or unfolding of an idea of freedom. An example
of the latter is Maine's famous generalization that the history
of law is the history of a progress from status to contract; 3
the record of the realization of an idea of free self-assertion by
free determination of one's own relations and liabilities.
§ 11. THE PHILOSOPHICAL SCHOOL. In the

past the philosophical jurist studied the philosophical
32. Hegel's was "exactly the right philosophy for the historical school of
law," 3 Erdmann, A History of Philosophy (Hough's transl. 1910) 328.
33. Maine, Ancient Law (1906) chap. 5 ad ffni
[ 87]
Jurisprudence
and ethical bases of law, of legal systems, and of particu-

lar institutions and doctrines, and criticized legal institu-
tions, legal doctrines and legal precepts with respect to
these bases. 4 His main purpose was to work out the ma-
terials and the method for a sound critique of legal insti-
tutions, of legal doctrines, and of legal precepts. Hence
in periods of stability or of stagnation in law he has been
out of favor.35 In periods of development he is likely to
be a leader. Today he seeks to set off and criticize the
ideal element in a body of law, to give it definiteness and
to try it by philosophical considerations.
Taking up the same five points with reference to the
philosophical school:
(1) Philosophical jurists are concerned immediately
with that element of law which is made up of received or
34. Hegel, Grundlinien der Philosophie des Rechts (1821) § 1; 1 Ahrens,

Naturrecht (1870) § 1; Ahrens, Cours de droit naturel (8 ed. 1892) 1; Geyer,
Geschichte und System der Rechtsphilosophie (1863) § 2; Lasson, System der
Rechtsphilosophie (1882) § 2; Dahn, Rechtsphilosophische Studien (1883) 204;
1 Boistel, Cours de philosophie du droit (1870) §§ 1, 2.
35. "To speak of philosophy of law passed for obsolete and out of fashion."
Kohler, Lehrbuch der Rechtsphilosophie (1 ed. 1909) 6 (see Albrecht's transl.
1914, 11). "The worth of the books, abundant on the Continent of Europe, but
scarce in England and the United States (though a little less scarce in Scot-
land), which have been composed by writers of this school, will be estimated
differently by those who enjoy speculation for its own sake, and by those who
think it a waste of time unless it bears fruit in truths of definite practical
utility. If the latter criterion of value be accepted, the importance of these
treatises cannot be placed very high. The foliage is luxuriant, but the fruit
scanty." Bryce, Studies in History and Jurisprudence (1901) 611. See also
Bryce's remarks before the Association of American Law Schools (1907) 31
Rep.Am.Bar Assn. 1062-1063; Pollock Essays in Jurisprudence and Ethics
(1882) 25; Pollock and Maitland, History of English Law (1 ed. 1895) intro-
duction, pp. xxiv-xxv.
[88]
current ideas as to the end of law, and as to what legal

precepts should be in view thereof. Hence they are more
concerned with what legal precepts ought to be than with
what they are for the moment. They seek to clarify, sys-
tematize, and correct our ideas of the end of law and the
picture of social control to which we refer juristic prob-
lems, and thus to make our search for legal principles
and our development and application of legal precepts
more effective toward the purposes of the legal order.
Today they are not setting up ambitious ideal systems of
universal law. Still they seek to find the ideal side of, the uni-
versal element in, the actual body of legal precepts of the time
and place. 36 The importance of this for the actual adminis-
tration of justice is easily overlooked. We must not forget that
those precepts are given shape, interpreted and applied with
reference to ideal pictures in the minds of the judges, and that
critique of those pictures is a critique of a decisive element in
37
what we call law.
(2) Thinking primarily of the ideal element in the

law, philosophical jurists in the last century agreed with
36. "The modern philosophy of law comes in contact with the natural-law
philosophy in that the one as well as the other seeks to be the science of the
just. But the modern philosophy of law departs essentially from the natural-
law philosophy in that the latter seeks a just natural law outside of positive
law, while the new philosophy of law desires to deduce and fix the element of
the just in and out of the positive law-out of what it is and of what it is be-
coming. The natural-law school seeks an absolute ideal law, 'natural law,' the
law Kat aEoX~v by the side of which positive law has only secondary im-
portance. The modern philosophy of law recognizes that there is only one
law, the positive law; but it seeks its ideal side and its enduring idea." 2
Berolzheimer, System der Rechts- und Wirtschaftsphilosophie (1905) 17.
37. See Pound, The Ideal Element in American Judicial Decision (1931) 45
Harvard Law Rev. 136.
[89]
Jurisprudence
historical jurists that law is not made but is found. But

they did not, as a rule, object to authoritative formula-
tion of legal precepts. As a general proposition philo-
sophical jurists hold that when principles have been
found they may be and ought to be developed consciously
into rules according to some philosophical method and to
be tested by some philosophical critique. Usually they
have believed in codification.
(3) They look at the ethical and moral bases of legal
precepts rather than at their sanctions.
To them, the binding force of a legal precept is in
this, that it is a rule or expresses a principle of right and
justice. 8
(4) They have no necessary preference for any par-
ticular form of law.
(5) They hold very diverse philosophical views.
In the nineteenth century the most prominent types were
the Kantians, the Hegelians, and the Krauseans. In the twen-
tieth century, neo-Kantians have stood out particularly in the
last two decades. There are now three general tendencies which
are reasonably well defined: (1) Neo-idealists of a number of
forms, (2) realists, positivists, and utilitarians, having much in
common even if arrived at in different ways, and (3) neo-scho-
lastics.
38. E. g.: ". the fallacy that a sanction is needed to make a true
law." Miller Lectures on the Philosophy of Law (1884) 18.
[90]
§ 12. CRITIQUE OF THE NINETEENTH-

CENTURY SCHOOLS. All of the nineteenth-century
schools are subject to a common criticism that they sought
to construct a science of law solely in terms of and on the
basis of the law itself. This was especially true of the
analytical school and the historical school which in ef-
fect set up a critique of the law of the time and place in
terms of that law. Philosophical jurisprudence in the
last century purported to develop a critique from the
outside, but in fact did little more than organize a
critique of law by itself.
Sociological jurists look at the methods of jurispru-
dence functionally. They ask, how do they work? What
consequences have flowed from these methods in action?
How far have they enabled the law to achieve its ends or,
on the other hand, interfered with its achieving them?
Let us examine the method of each of the three nine-
teenth-century schools from this standpoint.
From the sociological standpoint, the analytical
method, when made the sole method in legal science, has
had two serious ill consequences: (1) It led in the nine-
teenth century to what Jhering called a jurisprudence of
conceptions, in which new situations were always to be
met by deduction from traditional fixed conceptions, and
criticism of the premises of legal reasoning with refer-
ence to the ends to be served was neglected. (2) The
imperative theory of law-the theory of law as no more
than a conscious product of the human will-has tended
[91 ]
Jurisprudence
to lead lawmakers, both legislative and judicial, to over-

look the need of squaring the rules upon the statute books
or in the reports or in the doctrinal treatises, as the case
may be, with the demands of reason and the exigencies
of human conduct, in the case of statute law, and with
the demands of social progress in the case of judge-made
or jurist-made law. It will be worth while to look at
each more in detail.
(1) Many examples of a jurisprudence of concep-
tions-i. e. of a legal science in which conceptions are car-
ried out logically even at a sacrifice of the ends of law,
and simply for logic's sake, may be found in nineteenth-
century American law.
(a) A striking example is the conception of the theory
of the pleading in code pleading. After the forms of the com-
mon-law actions were abolished, the courts set up a system of
actions having no basis either in the common law or in the codes,
derived from an analytical ideal of a logical system of actions,
and required the pleader to diagnose his case in terms of some
one of these analytically ideal actions and state it upon the the-
ory thereof. They then proceeded to try, not the case, but the
theory. Here the conception of a case as a theory of the facts,
not as a controversy to which theories were to be applied to
reach certain ends, governed the administration of justice for
two generations after the code, and gave rise to a much more
rigid and difficult system of pleading than the one which legis-
39
lation had superseded because of its rigidity and difficulty.
39. Supervisors of Kewaunee County v. Decker, 30 Wis. 624, 626-627, 629-

639 (1872); Rush v. Brown, 101 Mo. 586, 590-591, 14 S.W. 735, 736 (1890);
Mescall v. Tully, 91 Ind. 96, 99 (1883). The doctrine of Supervisors v. Decker
[ 92 ]
Happily this doctrine of the theory of the pleading has disap-

peared. Much the same thing happened under the new rules
of pleading in England after 1834.40
(b) In the law of evidence there was formerly a good
example in the so-called Exchequer rule, whereby if any error
was committed in the reception of evidence in a trial of an action
at law, it was ground for a new trial.41 Thus rules of evidence
intended to save the time of the courts were turned into means
of obtaining new trials and wasting time. For example, the
rules as to impeachment of witnesses upon collateral matters
were meant to save time by preventing the case from wandering
off into collateral disputes. But if violated, the result was to
waste infinitely more time in a new trial.42 Here the conception
of a fair trial, without error of law, was carried to a logical
extreme which defeated the end for which legal conceptions are
devised.
(c) In the law of trials a generation ago there was an-
other example in the doctrine as to how the court should charge
the jury in cases where the jury had viewed the locus. In many
jurisdictions statutes gave the court of review power to deter-
mine whether a verdict was sustained by or was contrary to the
was overruled in Bruheim v. Stratton, 145 Wis. 271, 129 N.W. 1092 (1911). For
a modern way of handling such questions, see Oakley v. Lyster, [1931] 1 K.B.
149, first paragraph of the opinion of Scrutton, L. J. p. 151, beginning of opin-
ion of Greer, L. J. p. 154.
40. "An attempted reform of pleading in England by the New Rules of
1834 led to an outbreak of new technicalities." Pollock, The Genius of the
Common Law (1912) 29.
41. Crease v. Barrett, 1 Cr. M. & R. 919 (1835); 1 Wigmore, Evidence (3 ed.
1940) § 21. An interesting example of the tenacity with which the profession
is inclined to adhere to such doctrines may be seen in an address of the Pres-
ident of the Florida State Bar Ass'n, 18 Rep.Fla. State Bar Ass'n 65 (1925).
42. People v. Bell, 53 Cal. 119 (1878); Murphy v. Backer, 67 Minn. 510, 70
N.W. 799 (1897); Carpenter v. Lingenfelter, 42 Neb. 728, 60 N.W. 1022, 32
L.R.A. 422 (1894).
[93]
Jurisprudence
evidence. In such jurisdictions it was frequently held that

where a jury viewed the locus, the trial judge must charge that
the jury was to use what it saw only to enable it to understand
the evidence, not as evidence-as if that were possible other-
wise than in legal theory. If that charge was not given there
must be a new trial.4 3 The view could not get into the bill of
exceptions or the record which went to the court of review.
Hence the jury must not use what they saw as evidence." The
abstract analysis of the function of court and jury gave a con-
ception and a rule was deduced from that conception which had
no relation to actuality and served only to require new trials
if a formal charge was not given.
(d) Another example may be seen in the attempt to deal

with promoters of corporations by common-law conceptions. 45
(e) Many examples of the jurisprudence of conceptions
may be seen in American constitutional law. For instance, in
connection with due process of law there came to be two con-
ceptions (neither of them defined or referred to in the Consti-
tution), (1) natural rights," supposed to be defined by the com-
mon law and as such "declared" by the Bills of Rights,47 on the
basis of which there developed the two secondary conceptions of
43. See a discussion of this point in Chicago, R. I. & P. R. Co. v. Farwell,

60 Neb. 322, 324-326, 83 N.W. 71, 72 (1900).
44. Chute v. State, 19 Minn. 271 (1872); Close v. Samm, 27 Iowa 503 (1869);
Wright v. Carpenter, 49 Cal. 607 (1875).
45. Isaacs, The Promoter: A Legislative Problem (1925) 38 Harvard Law
Rev. 887.
46. Bradley, J. in Butchers' Union Co. v. Crescent City Co., 111 U.S. 746,
762, 4 S.Ct. 652, 656-657, 28 L.Ed. 585 (1883).
47. A "settled principle of universal law reaching back of all constitutional
provisions." Harlan, J. in Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226, 237
if, 17 S.Ct. 581, 585, 41 L.Ed. 979 (1896).
[94]
freedom of contract 48 and of right to pursue a lawful calling, 49

and (2) the police power as a fixed conception.5 Instead of
applying a standard of reasonableness to legislation, courts at-
tempted to dispose of the question of reasonableness by refer-
ring some cases to the one conception and some to the other-
by referring some cases to a conception of a natural right to
pursue a lawful calling which is beyond the reach of legislation,
and other cases to a power of the state to secure the general
safety, the general health, and the general morals which makes
it reasonable to interfere with the exercise of natural rights.
The net result of attempting to work out due process of law by
these two conceptions was an impasse with respect to social leg-
islation at the end of the nineteenth century which led to the
demand for recall of judges and recall of judicial decisions in the
early part of the present century. Professor J. B. Thayer used
to show long ago that the police power, so-called, is only the
residuum of legislative power after constitutional limitations. 51
It is a pseudo-conception.
A great body of law developed about freedom of con-

tract, right to pursue a lawful calling, and police power,
which at one time superseded at many points the simple
48. See my paper, Liberty of Contract (1909) 18 Yale Law Journ. 454, 470
ff. and cases cited and discussed.
49. Field, J. in Butchers' Union Co. v. Crescent City Co., 111 U.S. 746, 757, 4
S.Ct. 652, 660, 28 L.Ed. 585 (1883).
50. Slaughter-House Cases, 16 Wall. (U.S.) 36, 62, 21 L.Ed. 394 (1872);
Stone v. Mississippi, 101 U.S. 814, 818, 25 L.Ed. 1079 (1879); Thorpe v. Rutland
& B. R. Co., 27 Vt. 140 (1854); People v. Steele, 231 Ill. 340, 83 N.E. 236, 14
L.R.A.,N.S., 361 (1907); Dreyfus v. Boone, 88 Ark. 353, 114 S.W. 718 (1908);
State v. Dalton, 22 R.I. 77, 46 A. 234, 48 L.R.A. 775 (1900); Deems v. Balti-
more, 80 Md. 164, 30 A. 648 (1894); In re Clark, 65 Conn. 17, 31 A. 522, 28 L.
R.A. 242 (1894); Mathews v. Board of Education, 127 Mich. 530, 86 N.W. 1036,
54 L.R.A. 736 (1901).
51. Thayer, Legal Essays (1909) 26-27.
[95]
Jurisprudence
elastic standard of due process as reasonableness under

the circumstances of time and place. The result was that
application of a standard to legislation was treated as if
it were application of rules of property-and this neces-
sitated the making by judicial action of extra-constitu-
tional rules. The jurisprudence of conceptions is espe-
cially marked in the cases on liberty of contract in the
state courts between 1886 and 1910, in which an abstract
freedom of contract was vindicated as against legislation
securing an actual economic liberty; ' for example, in
the so-called "truck-act" cases in which so many courts
vindicated the abstract liberty of the employee of a cor-
poration to take his wages in orders on the company's
store.'
When we confine critical study to principles or con-
ceptions reached by analysis and to measuring actual
legal precepts by those principles and those conceptions,
there is a tendency to forget that law is a practical mat-
ter. A desire for formal perfection as an end becomes
controlling. Justice in concrete cases is lost sight of.
Instead jurists (for practising lawyers are more in touch
with reality) aim at thorough development of the logical
content of established principles through rigid deduction,
seeking thereby a certainty which shall permit judicial
52. Ramsey v. People, 142 Ill. 380, 32 N.E. 364, 17 L.R.A. 853 (1892);
State
v. Haun, 61 Kan. 146, 59 P. 340 (1899).
53. See the cases collected and discussed in my paper, Liberty of Contract
(1909) 18 Yale Law Journ. 454, 471-477.
[96]
decision to be predicted in detail with absolute assurance.

One need not say that it is impossible to realize this ideal,
if for no other reason, because the circumstances of social
life change continually and unforeseen and unpredicta-
ble situations arise continually and call for reshaping
and readjustment and new applications of legal precepts.
The attempt to realize that ideal by analytical method
and a jurisprudence of conceptions brings about a me-
chanical administration of justice which defeats its own
ends.54
The jurisprudence of conceptions prevailed in England in
the second and third quarters of the nineteenth century, though
it is by no means dead yet. In the United States it was at its
strongest in the generation after the Civil War, but is still vig-
orous in many spots. In Continental Europe it prevailed in the
greater part of the nineteenth century, but came under attack
and declined in the last quarter of the century.
In the United States our organization of courts lent itself
to the jurisprudence of conceptions. In the last half of the nine-
teenth century we had developed an elaborate hierarchy of tri-
bunals: petty courts, courts of general jurisdiction at law and
in equity, intermediate appellate courts, and ultimate courts of
review. This judicial machinery seemed to exist chiefly to work
out the abstract law logically, not to dispose of concrete causes
speedily and justly. This grew out of the need of working out
a common law for America in the fore part of the nineteenth
century on the basis of the English case law of the two preced-
ing centuries, and of working out a body of case law for the
54. For many examples, see my paper, Mechanical Jurisprudence (1908) 8

Columbia Law Rev. 605.
1 Pound Jurisprudence-7 [ 97]1

Jurisprudence
new states constantly being formed till the last one was admitted
in 1907. Necessarily for a time the main energies of our judi-
cial system were devoted to the working out of a consistent,
minute, logically precise body of precedents. In England, also,
an elaborate hierarchy of courts, involving successive appeals,
developed because of the demand of the last century for formal,
systematic perfection of case law in an age of maturity of law. 55
(2) However true the imperative theory-that law
is something made or something established consciously
-however true this may be as a theory of the nature of
law, it easily becomes a theory of lawmaking, and when
legal science is confined to analysis of positive legal pre-
cepts and legal institutions and to an analytical and sys-
tematic critique, such a theory of lawmaking leads to bad
results. Also this theory of lawmaking tends to infect
judicial finding and developing of the law, with bad re-
sults.
A theory of law easily becomes a theory of making law.
If we are taught to exclude all ethical and social and economic
elements from our science of law, and that law is the declared
will of the state, or, with Gray, that it is what the courts decide
because they so decide, we invite arbitrary legislation and arbi-
56
trary judicial establishing of rules.
55. As to organization of courts in the United States and its relation to law-
making in formative American commonwealths, see my book, Organization of
Courts (1940) 89-90. As to successive appeals in England and the effect on
the administration of justice, see Hollams, Jottings of an Old Solicitor (1906)
160-162.
56. "The more, however, law comes to be seen to be merely positive, the
command of a lawgiver, the more difficult it is to put any restraints upon the
action of the legislature." Figgis, Studies of Political Thought from Gerson
to Grotius (1907) 85 (2 ed. 1916).
[98]
(a) When, as in the nineteenth century, a political theory

of law as will is reinforced by a juristic theory of law as the
product of the sovereign will, when lawyers in common with the
rest of the community are trained in the theory that what we
will collectively or in sufficient numbers to make a majority is
law in substance and needs only the legislative guinea stamp to
be law in form, it becomes easy to transport that conception to
every other connection in which the word law appears. Thus
exercise of the will as a means is confused with exercise of the
will as an end. The means of making law, or at least one means
of making it, may be the declared will of the sovereign. But the
end of law is not to enable the sovereign to declare his will. The
unsatisfactory condition of American legislation in the last
century which has been noted by so many observers was at least
aggravated by the purely analytical training of such Anglo-
American lawyers as had any juristic training at all in the last
57
century.
(b) Like phenomena may be seen in judicial decision.

The imperative theory naturally goes along with a period of leg-
islation. But it is not well that judges think that the words "it
is considered and adjudged" justify everything that follows,
any more than that legislators think that the words "be it en-
acted" justify everything that follows.58 It does not make an
57. Parker, The Congestion of Law (1906) 29 Rep.Am. Bar Assn. 383, 387-
389.
58. "No judge in England or the United States ever did need to be told, I
think, that he has power to make law, but many judges in England and in the
United States have needed to be reminded from time to time, vi et armis, of
the constitutional and legal restraints binding upon them, when engaged in
the judicial process of making law; and few, indeed, have been the judges,
especially in the United States, who have shown a sound understanding as to
when those restraints are rigid, and when they are elastic and flexible. When
you say judges only declare pre-existing law, and do not make new law, you
emphasize those restraints and keep them fresh in the memory better than
when you say judges make law." 1 Schofield, Essays in Constitutional Law
[ 99]
Jurisprudence
imperative theory the one true theory of the science of law to

show that it expresses what actually takes place in modern law-
making and in modern decision. For to no small extent what
takes place does so under the influence of this very theory. Law
is not like a phenomenon of physical nature whose workings
have to be accounted for by observation and discovery of a the-
ory which will fit the facts. What is law depends not merely on
the facts of the past and of the present but also on the will of
those who prescribe and those who administer legal precepts by
the authority of the state; and this will is determined not a little
by their theory of what they do and why they do it. The rules
are not prescribed and administered for their own sakes, but for
social ends. An exclusive consideration of how they are pre-
scribed and administered is inadequate. The point is not only
how lawmaking and law-administering functions are exercised,
but how they may be exercised so as best to achieve their pur-
pose, and what conception of these functions by those who exer-
cise them will conduce best thereto.
If we tell judges that "law is composed of the rules which
the courts lay down for the determination of legal rights and
duties" - and exclude from our science of law all considerations
but the rules so laid down, do we not invite a socially inadequate
administration of justice, and need we wonder at the agitation
for recall of judges and for recall of judicial decisions, or for
submitting constitutional decisions to legislative review which
has gone on from time to time.
Some examples of the phenomena referred to may be seen
in what Erle, C. J. called "strong decisions"-decisions carry-
ing out legal premises to the logical end no matter to what they
lead-decisions, as he said "opposed to common sense and com-
and Equity (1921) 43. "The 'fiction' that judges only declare law is all that
stands between us and a judicial autocracy." Id. 44 n.
59. Gray, Nature and Sources of the Law (1909) § 191.
[100 ]
mon convenience." 60 In such cases in the last century we could

sometimes see judges following an unfortunate precedent to its
more unfortunate consequences with a certain perverse relish;
we could see them display a logical joy in reaching unhappy re-
sults under an assumed logical compulsion. I say "assumed"
because there was usually no logical compulsion to take the
starting point that logically compelled the unfortunate result.
The classical example in England is the doctrine of tacking
incumbrances.61 In the United States a good example may be
seen in the decisions as to "badges of fraud," which led in some
states to statutes making fraud a "question of fact." 62
From the sociological standpoint, the historical

method, when made the sole method of legal science, is
open to like objections. Two ill consequences have flowed
from exclusive use of that method: (1) It has led jurists
to take the leading conceptions of the traditional law, as
given form by historical study, for necessary fundamen-
tal conceptions of legal science, and hence to oppose any
improvements which did not run along the traditional
historical lines, or along those lines as idealized; (2) it
has led jurists to take accidents of legal history for nec-
essary principles or necessary categories of universal
law.
Undoubtedly there is a strong element of truth in
the position of the historical jurists. We must use the
60. Senior, Conversations With Distinguished Persons (ed. of 1880) 314.

61. See Willoughby, The Distinctions and Anomalies Arising Out of the
Equitable Doctrine of the Legal Estate (1912) 71-72.
62. See Bump, Fraudulent Conveyances (1872) §§ 41-68.
[101 ]
Jurisprudence
materials at hand, and what we do is conditioned in large

part by the materials with which we must work. But we
need not, and we are not bound to fashion these materials
for all time along traditional lines. We may discover,
and when need is, we ought to seek to discover, new pat-
terns. All the main lines of the law were not worked out
potentially either in the classical Roman law or in the
Year Books.63
In American law in the last century we had many
examples of the effect of the theories of the nineteenth-
century historical jurists in action. For one thing, there
was the doctrine that in an age of legislation we must
presume that statutes were only made to declare or re-
assert the common law, and hence we were to read the
common law into such statutes and hold them rigidly to
traditional lines in interpreting and applying them."
Again, there was the doctrine that we were not to depart
from traditional (historical) legal principles in framing
commercial codes and uniform state laws, but must make
such legislation merely declaratory; that we must con-
fine it to better and more orderly statement of the rules
63. See the attempt by Ames to work out a theory of ownership on the ba-
sis of seisin, Lectures on Legal History, 172, 191, and the theoretical develop-
ment, 192 ff. (written 1889-1890), and Bordwell's comments, Seisin and Dissei-
sin (1921) 34 Harvard Law Rev. 717, 740.
64. Carter tells us that it is a "wise doctrine" that legislators intend no
innovations upon the common law, and to assume, so far as possible, that stat-
utes were meant to declare and reassert its principles. Law: Its Origin,
Growth, and Function (1907) 308-309.
[ 102]
already announced by judicial decision without taking

account of the demands of business or the views of econ-
omists except as these had made themselves felt in ju-
dicial decision through experience of cases." For exam-
ple, in the discussions in the Conference of Commission-
ers on Uniform State Laws, which led up to the Uniform
Bills of Lading Act, one of the Commissioners stated that
he would be ashamed to go before the legislature to pre-
sent the proposed Act, and being asked whether it repre-
sented the best thought of the time, to be forced to say:
"No, it does not, but this is the condition of stagnation
that existed . . . years ago." A well-known pro-
fessor of law criticized this statement because the Com-
missioner advocated departure from the rules which were
sustained by the weight of judicial authority in order to
restate the law in accordance with ideals of what it
should be, although the ideals might "agree with business
usages, or even with what those usages are tending to
become." 66 In like manner, teachers of law objected to
a codification of the law of partnership along lines ex-
pressing the understanding of the business world and the
actualities of the conduct of business, and insisted that
the traditional course of legal opposition to the mercan-
tile view should be perpetuated in the statute.67
65. Burdick, A Revival of Codification (1910) 10 Columbia Law Rev. 118,

123.
66. Ibid. 126.
67. See note in 23 Green Bag (1911) 220.
[103]
Jurisprudence
Again, the theory of the historical school led to a

doctrine that legislation and judicial decision cannot ab-
rogate idealized, systematic, common-law procedural
categories, and that a system of actions must exist in the
nature of things. Accordingly, our American law teach-
ers a generation ago generally reproved judicial discard-
ing of the doctrine of the theory of the pleading. One
able teacher of pleading argued for the doctrine as late
as 1908.8 Another teacher of pleading severely criti-
cized a court which threw over the doctrine, arguing that
distinctions between actions inhered in the legal nature
of things and could not be done away with. 9 Also one
of the leaders of the historical school among American
law teachers, spoke of the action of state courts, in juris-
dictions which administered law and equity in the same
court and could administer them in one proceeding, in
carrying forward that power so as to reach the equitable
result directly, as an "unwarranted assumption of eq-
uitable powers by a court of law," as if the one court was
bound to go on acting as if it were two courts."0
68. Whittier, The Theory of a Pleading (1908) 8 Columbia Law Rev. 523.
69. Note in 8 Michigan Law Rev. 315-318 (1910) criticizing Cockrell v. Hen-
derson, 81 Kan. 335.
70. 2 Ames, Cases on Equity Jurisdiction (1901) 280 note 1; Cases on Part-
nership (1894) 489, note. See also the note in 4 Harvard Law Rev. (1891) 394-
395, speaking of the distinction between law and equity as "fundamental" and
"eternal." Yet the law long ago took over equitable estoppel, the whole field
of restitution for unjust enrichment comprised in the law of quasi contract,
with all the equitable doctrines appurtenant to it, the equitable defense of non-
performance by a plaintiff of his side of a bilateral contract, failure of con-
[ 104]
Another result was to reinforce the tendency of the

practitioner to regard the doctrines of the system in
which he had been trained as part of the legal order of na-
ture. 1
Many examples of taking historical accidents for
necessary principles or necessary categories of universal
law may be found in the books of the last century.
One example may be seen in Savigny's treatment of the
doctrine as to impossible and illegal conditions in testaments.
The doctrine had its basis in favor testamenti in Republican
Rome, at a time when the order of succession on intestacy, ac-
sideration, and many other equitable defenses. The progression from equity
to law had been remarked frequently. 2 Miller, Historical View of the Eng-
lish Government (1812) 358; 2 Spence, History of the Equitable Jurisdiction
of the Court of Chancery (1846) 416. It was assumed that all such power of
growth came to an end in the eighteenth century.
71. For example, Mr. Bayard, when Secretary of State, engaged in a con-
troversy with the representatives of a friendly power, and perhaps did them
an injustice, because he was unable to conceive of any jurisdiction over crimes
other than the territorial theory upon which our common law proceeds. Cut-
ting's Case, Snow, Cases on International Law (1893) 172. See also Marcy's
confusion of the rules as to citizenship in the several states of the United
States with the rules of international law as to national character. Cockburn,
Nationality (1869) 118 ff. Also the attitude of many courts in the last cen-
tury toward legislation proceeding on the theory of criminal jurisdiction in
the forum laesae civitatis. State v. Knight, 2 Haywood (N.C.) 109 (1799);
State v. Carter, 27 N.J.L. 499 (1859); dissenting opinion in Hanks v. State, 13
Tex.App. 289 (1882). In like manner, judges have sometimes taken constitu-
tional provisions in our bills of rights for necessary fundamentals of uni-
versal law, e. g. Miller, J. in Citizens' Say. & Loan Ass'n v. Topeka, 20 Wall.
(U.S.) 655, 662, 22 L.Ed. 455 (1874). This attitude of bench and bar has some-
times been a formidable obstacle both to social legislation and to law reform.
Ives v. South Buffalo R. Co., 201 N.Y. 271, 285-287, 293-295, 94 N.E. 431, 436,
437, 439, 440, 34 L.R.A.,N.S. 162 (1911). Girard noted a like tendency of prac-
titioners in France to regaed the law of a given moment as "an immutable and
eternal product." Manuel dlmentaire de droit romain (7 ed. 1924) 7.
[1051
Jurisprudence
cording to the strict law, was out of line with prevailing moral
ideas.72 This reason for the doctrine ceased to exist centuries
ago, and no other reason for it has remained than that it was
laid down in the Roman books. Jurists have exercised much
ingenuity in devising analytical explanations of it, and Savigny
explained it upon a theory of the general intent, as distinguished
from the particular intent of the testator. 73 Here, instead of
giving us a historical critique, historical jurists are found trying
to make universal principles out of the accidents of legal history
74
in order to sustain bad doctrines.
Another example may be seen in the insistence of historical
jurists that the law of partnership must ignore the mercantile
view of what a partnership is. When Roman lawyers were first
called upon to work out a theory of partnership, the analogy
nearest at hand was the consortium of co-heirs who, after the
death of paterfamilias,retained an undivided inheritance. 75 Ac-
cordingly, the business partnership was assimilated to the old
relations of common ownership, and the law persisted in the line
so drawn for it after the newer and better analogy of the juristic
person was at hand. It was hard for Roman jurists to depart
from the analogy of co-heirs, so that Mucius Scaevola held equal-
72. It arose in connection with the institution of an heir (institutio heredis),

the crucial point in a will. The principle was one of maintaining institutiones.
Dig. xxviii, 7, 1; Inst. ii, 14, 10. See Wdchter, Pandekten (1880) § 291.
73. 3 System des heutigen rimischen Rechts (1840) § 124.
74. Modern codes frequently reject the doctrine. German Civil Code, §§
158, 2171; Austrian General Code, § 698; Swiss Civil Code, § 482; Roumani-
an Civil Code, art. 1008. It is criticized where it still obtains. 1 Baudry-
Lacantinerie et Colin, Des donations entre vifs et des testaments, § 66; 3 Colin
et Capitant, Cours 61mentaire de droit civil frangais (5 ed. 1929) 643; 3 Plani-
ol et Ripert, Trait6 16mentaire de droit civil (11 ed. 1932) § 3026 ad fin. See my
paper, Legacies on Impossible and Illegal Conditions Precedent (1908) 3 Il-
linois Law Rev. 1, 8-9.
75. Salkowski, Institutionen des rtmischen Privatrechts (9 ed. 1907) § 144.
See also de Zulueta, Commentary on Gaius (1953) 3, 154-154b.
[ 106 ]
ity of contribution, of profit, and of loss necessary to the very

idea of partnership, 0 and the Roman law insisted to the end
that the property was joint property, that the debts were indi-
vidual debts and the causes of action individual claims of the
individual partners. Modern Continental law preserves much
of this in the civil codes. But the commercial codes treat mer-
cantile partnerships as legal entities." Unhappily, our writers
on partnership and our courts, instead of following the custom
of merchants, drew their ideas of the nature of partnership from
the civilians, i.e. from Continental treatises supposed to be
declaratory of natural law."' Hence our common law represents
not the experience of English and American merchants but the
influence of Dutch and French treatises on the formative Anglo-
American commercial law, and thus indirectly represents a
juristic tradition from republican Rome.
Philosophical method has performed three impor-

tant services in the past, but has been liable to three abu-
ses. The three functionally serviceable uses of the philo-
sophical method have been: (1) Its precise formulation
of the social ideal and definite working out of current
ideas as to the end of law, thus correcting the naive nat-
ural law of the practitioner; (2) its rationalizing influ-
ence; (3) its critique of the reasons by which jurists ex-
plain or justify the rules of the past.
(1) The chief service of the metaphysical jurists was
that they formulated the social ideal of the nineteenth
76. Gaius, 3, 149; Dig. 17, 2, 30; Inst. 3, 25, 2.

77. German Commercial Code, §§ 114, 124, 126.
78. See the reliance on Pufendorf in Waugh v. Carver, 2 H.B1. 235 (1793).
Story, Partnership (1841) § 2, takes his whole theory from civilians, quoting
Pothier, Pufendorf, Domat, and Vinnius.
[ 107]
Jurisprudence
century and gave us a critique of the law on that basis.

By critical formulation of current ideas as to the end of
law they contributed to correction of the naive natural
law, the subconscious philosophy, of the practicing
lawyer.
The analytical school claimed to have achieved a complete
separation of jurisprudence from philosophy and ethics and
hence from legislation. The English historical school agreed in
this view. But the separation was illusory, as one may perceive
when he finds both analytical and English historical jurists urg-
80
ing Savigny's will theory of contract 19 and of agency and as-
8
suming a fundamental doctrine of no liability without fault. '
Although the analytical jurists were influenced by a utilitarian
version of the classical economics, it is easy to show that Aus-
tin's views were shaped by Kant, both directly and through law
82
books which he studied. In truth, the picture of the legal
79. Anson, Contracts (1879) § 2; Holland, Jurisprudence (13 ed. 1924) 261-
262 (from 1 ed. 1880, taken from 3 Savigny, System des heutigen r6mischen
Rechts, 308). See Pollock, Principles of Contract (1 ed. 1876) 1-2, but Sir Fred-
crick Pollock gave this up in his editions in the present century.
80. Holland, Jurisprudence (13 ed. 1924) 274-275. Compare this, and Sa-
vigny's classification of mandate and negotiorum gestio under "anomalous
rights," because agency might exist although principal and agent could not, by
the ius civile, contract with each other (2 System des heutigen romischen
Rechts § 74) with American Law Institute, Restatement of the Law of Agen-
.cy(1933) § 2.
81. Pollock, The Law of Fraud in British India (1894) 53-54; id. The Law
,of Torts (12 ed. 1923) 504 n. F; Salmond, Torts (8 ed. 1934) 596-599; Thayer,
Liability Without Fault (1916) 29 Harvard Law Rev. 801.
82. Austin studied at Bonn under Mackeldey and left among his books, in
addition to Kant's Critiques and Rechtslehre, Hugo's Encyklopiidie der Recht-
swissenschaft and Mackeldey's Lehrbuch des r6mischen Rechts (7 ed. 1827)
,which are thoroughly Kantian. See Mrs. Austin's preface to the third edi-
tion of Austin's Lectures on Jurisprudence, pp. 5-6. See also the "advertise
[ 108 ]
order which governed the thinking of each school was painted

by Kant. The metaphysical jurists subjected this picture to
critical scrutiny and gave it definition of outline. The practi-
tioner likewise assumed that philosophy might be dispensed
with. But examples of the extent to which a naive natural law
underlies decisions of the courts may be found everywhere in the
reports.8 3 So long as philosophical views as to the end of law
and as to what law is and what laws ought to be have so con-
trolling an influence on what jurists think and on what courts
do,8 4 it is better that these views be held consciously, set forth
expressly, and subjected to criticism.
(2) Even when misdirected and overworked, the

rationalizing influence of the philosophical method has
been invaluable. Philosophical jurisprudence has done
a real service to the law by making jurists dissatisfied
with arbitrary rules and making them feel that the mere
existence of legal precepts does not suffice to justify their
existence.
In civilized countries men are compelled to administer jus-
tice chiefly by formulas. These formulas are meant to express
ideas of right and justice and are devised as a means to promote
right and justice. But there is always danger that we forget
those ideas and lose sight of those ends, and treat the formulas
as existing for their own sake. Since the Greek philosophers,
men have appealed to "nature" to save ethical, political, and
ment" prefixed to the third edition, giving 4 list of Austin's books, Jurispru-
dence (3 ed. 1863) ix. x.
83. See some examples in note 62 on p. 609 of my paper, The Scope and
Purpose of Sociological Jurisprudence (1912) 24 Harvard Law Rev. 591.
84. I have collected many examples in my paper, The Ideal Element in
American Judicial Decision (1931) 45 Harvard Law Rev. 136.
[109 ]
Jurisprudence
juristic thinking from this danger-meaning by "nature" rea-

son and general principles of right. The appeal to reason and
to the sense of mankind for the time being as to what is right,
which the philosophical jurist makes, and his insistence upon
what ought to be morally as binding, because of its intrinsic
justice or intrinsic reasonableness, have been the strongest liber-
5
alizing forces in the history of jurisprudence.
(3) Philosophical jurisprudence also has an im-

portant practical function of supplementing the analyti-
cal and historical methods in testing the reasons, often
apocryphal, worked out in later times to explain or to jus-
tify the legal precepts which have come down from the
past.
Analytical jurists and historical jurists often do a good
service by exposing these so-called reasons-the one by testing
their relation to the conceptions reached through analysis, the
other by investigating their relation to the historical origin and
development of the precepts they are taken to explain. 8 But
these critiques do not suffice. Both the analytical and the his-
torical jurist, considering criticism of the content of existing
precepts to be foreign to his purposes, is not unlikely in a par-
ticular case to "adduce a good reason for a bad thing and sup-
85. On the idea of right as a source or creative agency in that it is always

critical of existing legal precepts, see Del Vecchio, II sentimento giuridico (2
ed. 1908). Two generations ago, when John Chipman Gray and James Barr
Ames were teaching side by side in the Harvard Law School, it used to be
said that Gray taught the law as it is, while Ames taught it as it ought to be.
As one looks back on the details of their teaching, it is significant that much
of what Gray taught has ceased to be, while most of what Ames taught as
"ought to be" has come to be accepted as "what is."
86. Gray considers this the chief service of analytical Jurisprudence, and
that its most valuable function is negative. Some Definitions and Questions
in Jurisprudence (1892) 6 Harvard Law Rev. 21, 23.
[110 ]
pose he has in that way justified it." 87 In the past, this tend-
ency has been kept down, so far as it has been kept down, only
by criticism of law from the standpoint that legal precepts are
expressions or illustrations of principles of right and justice-
the ethical interpretation of the metaphysical jurists.
Although we must recognize the need of a philo-

sophical method, we must not overlook the abuses of that
method which brought philosophy of law into disrepute
in the second half of the last century.
(1) In common with all the methods of jurispru-
dence it was used in too mechanical a fashion. Analyti-
cal and historical methods, used mechanically, may nev-
ertheless do good work in ordering and systematizing the
body of legal precepts and in identifying archaisms which
have survived their usefulness and enabling us to distin-
guish them from the legal materials which still have life.
Compare, e.g., seal and consideration with the Statute of
Frauds and the Uniform Written Instruments Act. On
the other hand, philosophy is our main corrective of me-
chanical use of analysis and legal history. If philosophi-
cal method is used mechanically, it fails in one of its chief
purposes.
In philosophical jurisprudence the mechanical tendency
takes the form of over-abstractness; of a purely abstract right
and justice and a treatment of juristic problems in vacuo, as it
were, by algebraic formulae. Thus instead of giving us an
effective critique of legal doctrines and legal institutions, philo-
87. Hegel, Grundlinien der Philosophie des Rechts (2 ed. 1840) 291.
[111]
Jurisprudence
sophical jurisprudence in the nineteenth century came to pursue

abstractions so academically that in practice, in the latter part
of the century, the field was left to analytical and historical
jurists and legal doctrines and institutions were examined and
criticised in terms of themselves only.88
(2) Philosophical jurisprudence in the last century

suffered from certain fundamental ambiguities in its
terminology which went back to the identification of law
with morals in the period of the law-of-nature school.
Because of the identification of law and morals in the stage
of legal development in which philosophical jurisprudence arose
and in the stage in which it was the prevailing method of legal
science in the modern world, there has been a strong tendency
among philosophical jurists to ignore distinctions which are
necessary to critical thinking. As the analytical jurists have
thought of law solely in terms of legal precepts-and almost
wholly in terms of rules-excluding the elements which give
shape and content to the precepts and dictate their development
into grounds of decision and their application to concrete dis-
putes, in like manner the philosophical jurists have ignored the
actual body of legal precepts, have thought of law solely in terms
of the presuppositions and logical implications of ideals of the
legal order or of the end of law, and have assumed that those
presuppositions and logical implications could be taken for bind-
ing legal precepts, without more.8 9 It was common for them to
88. "The schematism of the fundamental conceptions of law must always be

filled out with some kind of content. In the days of natural law it contained
a mere pseudo-content by means of the contract theory. Legal conceptions
seemed to stand upon their own basis; the form supplied the place of the con-
tent." 1 Berolzheimer, System der Rechts- und Wirtschaftsphilosophie (1904)
vii. See Pollock, Essays in Jurisprudence and Ethics (1882) 28-30.
89. Much as the ideas of "natural right" and "natural law" have done for
the liberalizing of the law, they have sometimes undone almost as much in
[112]
confuse "right"-i. e. the general body of ideas as to what is just

-and "rights," with all the ambiguities latent in that word,
with law in the narrower sense. That is, they commonly
thought and wrote of (1) ideas of natural right, ideas of what
legal precepts should be, (2) ideas of interests that should be
secured or an ideal scheme of individual interests, and (3) the
actual historically given legal materials, which we are to try by
the ideals and the historically given means by which we seek or
should seek to secure the interests-philosophical jurists wrote
of these things as if they were identical or at least could be used
interchangeably by using one word for all of them, without dis-
tinction of meaning. The ambiguity of Droit, Recht, Diritto,
lus, in the languages of Continental Europe made this easy.90
(3) In the nineteenth century, philosophical method,

when applied to details, was used to work out specious
reasons for doctrines, rather than to criticise them. Thus
it happened often that the philosophical jurists helped
intrench doctrines where a critical inquiry into their
ethical foundation would have shaken them.
This was not unnatural when philosophers, whose acquaint-
ance with law was but superficial, attempted to deal with con-
crete legal institutions and relations. They soon saw that they
their obstruction of clear juristic thinking. See Lord Russell's remarks on the
consequences of employment of the natural-law method in modern international
law. International Law and Arbitration (1896) 19 Rep.Am.Bar Ass'n 253, 268.
See also the observation of Sir William Vernon Harcourt, Letters by His-
toricus (1863) 75-78.
90. Even as hard-headed a thinker as Duguit becomes involved in this sort
of confusion in his discussion of rules of law which run counter to what he
considers the fundamental principle of right and law. L'ftat, le droit objectif,
et la loi positive (1901) 279-280, 302-311, 349-359, 376-378, 423-425, 531-537,
556, 560-561; Le droit social, le droit individuel, et la transformation de l'dtat
(3 ed. 1922) 50-62.

Jurisprudence
had not enough knowledge of the legal materials to enable them

to criticise with assurance, and so they turned to ingenious justi-
fication.
A good example may be seen in Hegel's justification of the
doctrine of laesio enormis.91 As a general proposition of Roman
law, it was not required that the price in a sale be adequate.
Parties of sufficient capacity could fix their own price. But in
Justinian's code there are two texts providing that if land was
sold at less than half its value, the seller could have the sale set
aside unless the buyer would make up the difference between the
price and the value. There is some doubt about these texts,
which are attributed to Diocletian but seem to have undergone
interpolation." So far as appears, the doctrine applied only to
land. It went over into the modern Roman law, and has had an
eventful history as French law has fluctuated.93 The civil code4
adopts the doctrine and fixes the "fair price" at seven twelfths.
But modern commentators question its wisdom.9 5 The German
code does not recognize it.96 It was rejected in Anglo-American
9 1. Cod. 4, 44, 2; id. 4, 44, 8.

92. Buckland, A Text-Book of Roman Law (2 ed. 1932) 486.
93. See 2 Planiol, Traitd Odimentaire de droit civil (10 ed. 1925) §§ 1587-
1590; 2 Colin et Capitant, Cours 6l6mentaire de droit civil frangais (4 ed.
1923-1925) 446-448.
94. Art. 1674.
95. E.g. "Rescission for lesion, introduced into the law in contradiction to the
clearest juridical principles and the most elementary economic truths, has been
applied only to the sale of immovables." 10 Huc, Commentaire thdorique et
pratique du code civil (1897) § 190.
96. 2 Enneccerus, Kipp und Wolff, Lehrbuch des burgerlichen Rechts (12
bearb. 1932) 369. Note the partial revival and subsequent abrogation after
the World War. In Switzerland the doctrine was left out of the first code of
obligations and did not exist there. Schneider et Fick, Commentaire popu-
laire et pratique sur le code fMddral des obligations (1883) 56. In the project
of 1904 there was a return to the idea of laesio enormis. As the matter final-
ly resulted in 1911, a general rule as to rescission in case of gross dispropor-
[1141
equity.9 7 Hegel justifies the doctrine of laesio enormis on the

ground that "by the very conception of a contract" the contrac-
tor "in disposing of his goods must remain in possession of a
quantitative equivalent." He adds that there may be said to be
an enormous injury to the seller if the deficiency in the price
exceeds half of the value.9 8 Note how this assumes an absolute
value-that the value of any item of property is something fixed
and given. Thus instead of looking into the ethical and eco-
nomic basis of interference with free contract in sales of land
and the other cases of such interference, and criticising the doc-
trine, Hegel justifies it on a ground which would require exten-
sion of it to movables.
It should be noted that the equivalent theory, the theory of

contract as an exchange of equivalents, which fits well Hegel's
conception of contract in terms of property, is in origin a philo-
sophical explanation of the Germanic causa debendi, an institu-
tion belonging to a time when the idea of obligation had not
arisen; when the only grounds of liability were injury to the
person, deprivation of possession and detention of property.9 9
Detention in case of exchange 1°0 suggested the device of a ficti-
tious exchange in order to make a gift or give effect to a prom-
ise. Later the fiction of giving something in exchange was ra-
tion of what was promised on one side to what was performed on the other,
was substituted, based, we are told on prior cantonal laws as to usury.
Schneider et Fick (new ed. 1915) 63-64; Egger, Kommentar zum schweizer-
ischen Zivilgesetzbuch (2 ed. 1929) 5 I, 152-156.
97. See 1 Story, Equity Jurisprudence (1836) §§ 245-249 with full discus-
sion of the civilian and English authorities.
98. Grundlinien der Philosophie des Rechts (2 ed. 1840) § 77 note.
99. Huebner, History of Germanic Private Law (Philbrick's transl. 1918)
503-507.
100. See the writ of debt for a horse, Fitzherbert, Natura Brevium, s. v.
Debt. See also Maitland, Equity, also the Forms of Action at Common Law
(1909) 332; 2 Pollock & Maitland, History of English Law (1895) 203-207.
[115]
Jurisprudence
tionalized by the equivalent theory. In the same way in our law

there were attempts to justify the historical artificialities of
consideration by this equivalent theory or on the theory of a
bargain.""1
Another circumstance leads to the same abuse of philosoph-
ical method. It is in human nature to accept without question
most of the institutions with which one is familiar. Hence we
might reasonably expect that in any system of natural law na-
ture would be found to dictate, for the greater part, the institu-
tions with which the individual jurist who interpreted nature
was familiar and under which he had grown up. Such has been
the event. In nearly every case, for the Continental jurist of the
seventeenth and eighteenth centuries, natural law meant an ideal
development of the precepts of the modern Roman law in which
he had been trained and taught to find authoritative principles.
Likewise for the common-law lawyer, by whatever name he
may call it, nature is usually taken to mean an ideal development
of the principles of the common law. Hence we find American
jurists working out the applications of common-law abstract
individualism after the ultra-individualist philosophy and eco-
nomics had lost their hold, and find our courts and lawyers but
a short time since insisting upon views of liberty of contract,
risk of employment, and the like which had ceased to be in rela-
tion to actual life. 102 Few juristic theories have been more bar-
ren than the eighteenth-century natural law of American law-
yers in the last third of the nineteenth century.
101. Bacon, Reading Upon the Statute of Uses (1642) 13-14. Langdell, pro-
ceeding analytically, uses the same principle of equivalency, in treating of con-
ditions in contracts, to reach some obviously unjust results. Summary of Con-
tracts, §§ 106, 109. The courts have not acquiesced in these results and a dif-
ferent principle is now invoked. 3 Williston, Contracts (rev. ed. 1936) § 844.
102. E. g. "We must remember that the injury complained of is due to the
negligence of a fellow workman, for which the master is responsible neither
in law nor morals." Williams, J. in Durkin v. Kingston Coal Co., 171 Pa.St.
[ 116 ]
193, 202, 33 A. 237, 238, 29 L.R.A. 808 (1895). "At common law a servant can-
not recover from his master for injuries received from the negligence of a fel-
low-servant, acting in the same line of employment. This is part of that gen-
eral American common law, resting upon considerations of right and justice
that have been generally accepted by the people of the United States." Bald-
win, C. J. in Hoxie v. New York, N. H. & H. R. Co., 82 Conn. 352, 359-360, 73
A. 754, 757-758, 73 A. 754 (1909). See my paper, Liberty of Contract (1909) 18
Yale Law Journ. 454.
[ 117]
Chap-,e 4
The Social Philosophical Schools
§ 13. The Transition to the Twentieth-Century Schools.

§ 14. The Social Utilitarians.
§ 15. The Neo-Kantians.
§ 16. The Neo-Hegelians.
§ 17. Recent Neo-Idealists.
§ 18. The Revival of Natural Law.
[119]
Cap te, 4
The Social Philosophical Schools
E Section 13
HE TRANSITION TO THE TWENTIETH-

CENTURY SCHOOLS.' Toward the end of
the nineteenth century, it was coming to be
felt that no one of the three methods of that
century was wholly self-sufficient. There began to be
a certain coming together of these methods On the
Continent it became usual to regard the historical method
and the metaphysical method as complementary.' The
latter demonstrated metaphysically what the former dis-
covered historically. Also there was in Continental Eu-
rope a development of something not unlike English
analytical jurisprudence, under the name of "general
theory of law" (allgemeine Rechtslehre, thorie gdn6rale
I. Pound, Fifty Years of Jurisprudence (1938) 51 Harvard Law Rev. 444-

447.
2. See Dahn, Rechtsphilosophische Studien (1883) 288; Bergbohm, Juris-
prudenz und Rechtsphilosophie (1892) 3-37; Schuppe, Rechtswissenschaft und
Rechtsphilosophie (1895) 1 Jahrbuch der internationalen Vereinigung fdr ver-
gleichende Rechtswissenschaft, 215; Kohler, Rechtsphilosophie und Univer-
salrechtsgeschichte, § 8, in 1 Holtzendorff, Encyklopbdie der Rechtswissen-
schaft (6 ed. 1904); Pound, The Scope and Purpose of Sociological Jurispru-
dence (1911) 24 Harvard Law Rev. 592, 611-619.
3. Opposed to this tendency was one to put philosophy of law on a com-
parative basis. Schuppe, Die Methoden der Rechtsphilosophie (1884) 5 Zeits-
chrift fir Vergleichende Rechtswissenschaft, 209.
[121]
Jurisprudence
du droit) which for a time took its place beside philos-

ophy of law and exposition of the science of law from the
historical standpoint.4 In England, the analytical and
the historical jurists began to make large concessions to
each other, and it became not uncommon to regard these
two methods as complementary.' Moreover, at the be-
ginning of the present century some English analytical
jurists began to take a certain account of philosophy of
law.'
As the historical school had become dominant in the
last quarter of the nineteenth century, it attracted most
of the attack upon the juristic methods of that century
which led to the legal science of today.' The metaphysi-
4. See 2 Berolzheimer, System der Rechts- und Wirtschaftsphilosophie

(1905) 18-20 (in the English transl. The World's Legal Philosophies (1912)
9-12, this part is much abridged); Bergbohm, Jurisprudenz und Rechtsphil-
osophie (1892) 17 ff. For examples see Korkunov, General Theory of Law
(transl. by Hastings, 1909, 2 ed. 1922; first published in Russian in 1887,
French transl. by Tchernoff as Cours de th6orie g6n~rale du droit, 1907, 2 ed.
1914); Sternberg, Allgemeine Rechtslehre (1904).
5. E.g. Jenks, Law and Politics in the Middle Ages (1898) 1-4; Brown,
The Austinian Theory of Law (1906) 346-354.
6. Salmond, Jurisprudence (1902) § 17; Goadby, Introduction to the Study
of Law (1 ed. 1910) 52. Compare Brown, Underlying Principles of Modern
Legislation (1 ed. 1912) 64-67 with Brown, The Austinian Theory of Law
(1906) § 629. Compare with Salmond, supra, Pollock's review of Lorimer, In-
stitutes of Law, in his Essays in Jurisprudence and Ethics (1882) 18-30, and
his review of Salmond, First Principles of Jurisprudence (1893) in 10 Law
Quart.Rev. 89. See also Dowdall, The Present State of Analytical Juris-
prudence (1926) 42 Law Quart.Rev. 451.
7. See for example Stammler, Ueber die Methode der geschichtlichen
Rechtstheorie (1888) reprinted in I Rechtsphilosophische Abhandlungen, 1-40;
Saleilles, ]cole historique et droit naturel d'aprts quelques ouvrages rdcents
(1902) 1 Revue trimestrielle de droit civil, 80.
[ 122 ]
4. The Social Philosophical Schools
cal school, which it substantially took over, has been re-

placed by a new type of philosophical school which has
taken the lead as the law-of-nature school had done in
the seventeenth and eighteenth centuries in a like period
of liberalization and growth. In large measure the new
philosophical jurisprudence has swallowed up historical
jurisprudence. Analytical jurisprudence has been less
affected, and has made real progress in the present cen-
tury. What Austin calls matured or developed law
postulates a politically organized society, and the in-
creasing paramountcy of the political organization since
the sixteenth century has been a palpable fact in social
control. Such things as the juvenile courts, supplement-
ing or even superseding the internal discipline of the
household, as judicial inquiry into the conduct of church
corporations, as judicial review of ouster from clubs and
voluntary associations, as boards and commissions gov-
erning professions and trades, and as statutory organi-
zation of the legal profession, show something of how
far the legal order has succeeded in compelling all extra-
legal agencies of social control to act in subordination to
law. This has come to be well recognized and in conse-
quence and because of rejection of the idea of restriction
of state action to the minimum, held to be fundamental
in the historical-metaphysical jurisprudence of sixty
years ago, analytical jurisprudence has come to be looked
on with more favor.
[ 123]
Jurisprudence
Three movements, having their beginnings in the

last half of the nineteenth century, led to three types of
jurist characteristic of the present century. In one the
determining impetus came from revival of philosophy of
law and the determining direction was philosophical,
leading to a number of forms of social-philosophical ju-
risprudence. In a second the impetus came from the
Marxian theory of history and the determining direction
was economic (or later economic psychological) leading
by way of an economic interpretation of legal history to,
a juristic economic determinism and thence to a number
of types of realist jurisprudence. In the third the deter-
mining impetus came from positivism and the direction
was sociological, leading to functional study of legal in-
stitutions in the light of all the social sciences, and hence
to consideration of the legal order as a social institution
rather than exclusive consideration of the legal materials.
with which tribunals work in upholding that order. In
the first the development connects directly with the nine-
teenth-century schools. In the other two there is an in-
dependent development. But the three are closely con-
nected and more truly are three phases of a general move-
ment of thought at the end of the last century. Classi-
fication must proceed largely on the basis of starting
point and of emphasis.
One may see the beginnings of the movement which led both
to social philosophical and to sociological jurisprudence in the suc-
cessive steps in the development of historical jurisprudence from
[124]
Savigny (d. 1861) to Maine d. 1888) to Kohler (d. 1919) and to

Vinogradoff (d. 1925). The original method of the historical
school was to trace the development of a doctrine or of an institu-
tion in Roman law and thence into the modern law.8 The first
step forward was to study the Germanic law along with this study
of the Roman law and to that extent to make the historical inves-
tigation comparative. 9 A second step was to attempt reconstruc-
tion of the primitive law and legal institutions of Indo-European
peoples and to seek the roots of modern law therein. 10 The analo-
gy of comparative philology of the Indo-European languages,
which had made great strides and was one of the conspicuous
fields of productive investigation at that time, was evidently a
contributing influence. The third step was to broaden the scope
of inquiry by examining the social institutions of all primitive
peoples and laying the foundations of what Kohler calls universal
legal history. The idea of a universal legal history is much old-
er than Kohler. Hegel outlined a universal history of right in
8. In Savigny and Eichhorn's Zeitschrift fiir geschichtliche Rechtswissen-

schaft (1815-1850) substantially all the articles have to do with Roman law in
its historical development.
9. In its beginnings this study of the Germanic law is contemporaneous

with the rise of the historical school itself. Eichhorn, Deutsche Staats- und
Rechtsgeschichte (1808); id. Einleitung in das deutsche Privatrecht (1823);
Grimm, Deutsche Rechtsalterthiimer (1828). But the use of materials of Ger-
manic law for a broader historical jurisprudence is later. No doubt the move-
ment was accelerated by the influence of the comparative idea in other branch-
es of learning. In the latter part of the nineteenth century great things were
expected from this method. Freeman went so far as to say that "the estab-
lishment of the comparative method of study has been the greatest intellec-
tual achievement of our time." Comparative Politics (1873, 2 ed. 1896) 1.
10. The important books of this stage are Maine, Ancient Law (1861); Fus-
tel de Coulanges, La cit6 antique (1864); Maine, Early History of Institutions
(1874); Leist, Altarisches Jus Gentium (1889); id. Altarisches Jus Civile
(1892-1896).
1I. Rechtsphilosophie und Universalrechtsgeschichte, § 8, in 1 Holtzendorff,
Encyklopiidie der Rechtswissenschaft (6 ed. 1904).
[ 125 ]
Jurisprudence
1820.12 Gans essayed a universal history of the law of inheritance

in 1825.13 Puchta sketched a universal legal history in 1841.14
But this sort of universal legal history was to be universal by
setting forth the process of realization of the universal idea.
Kohler's universal legal history is a generalization from study of
all social control through law. As to this last step in historical
jurisprudence, see Vinogradoff's unfinished work, which is a uni-
versal legal history, chiefly on the basis of Indo-European legal
institutions, organized ideologically with respect to types of civil-
ization.1 5 It went along with the stage of social science known
as the descriptive sociology.' 6 As it developed, it led on one side
toward a social philosophical jurisprudence and on another side
toward an avowed sociological method.
Meanwhile others had been approaching the same positions
from the philosophical school. One step in this direction was an
attempt to give philosophy of law a broader basis than was afford-
ed by the materials of Roman, modern Roman and Germanic
law-an attempt to add comparative anthropology and ethnology
to the material foundation on which the philosopher of law was
to build." Another step was to essay a philosophy of law based
on psychology; to study the actual methods of jurists psycho-
12. Grundlinien der Philosophie des Rechts (2 ed. 1840) §§ 341-360.

13. Das Erbrecht in weltgeschichtlicher Entwickelung (1824-1835).
14. 1 Cursus der Institutionen (1841) §§ 8-9. See also Friedlander, Ency-
klopdidie der Rechtswissenschaft (1847) 65 (transl. in Hastie, Outlines of Juris-
prudence, 153).
15. 1 Vinogradoff, Outlines of Historical Jurisprudence, Introduction, Tri-
bal Law (1920), 2 The Jurisprudence of the Greek City (1922).
16. See post chap. 5, § 19, 2(5). A late book in English is Sen Gupta, The
Evolution of Law (1925).
17. Dahn, Zur Methode der Rechtsphilosophie (1878) reprinted in Rechts-
philosophische Studien, 288. See also Dahn, Rechtsphilosophische Studien
(1883) 119; Nani, Vecchi e nuovi problemi del diritto (1886).
[126 ]
logically and to construct a science of juristic thinking. 18 This

parallels to some extent the psychological sociology, but has an
independent origin. Today psychological philosophy of law and
social psychological jurisprudence are active in many types. An-
other step was philosophical study of the evolutionary processes
by which law is formed, leading to a merging of historical and
philosophical jurisprudence in a social-philosophical jurispru-
dence with a basis in universal legal history. 9
We may now look at the twentieth-century schools
in detail."0
§ 14. THE SOCIAL UTILITARIANS."' From a
purely philosophical standpoint, the philosophical jurists
18. Wallaschek, Studien zur Rechtsphilosophie (1889) is a book of the be-

ginnings of this.
19. Kohler, Rechtsphilosophie und Universalrechtsgeschichte in I Holtzen-
dorff, Encykloplidie der Rechtswissenschaft (6 ed. 1904).
20. Pound, The Scope and Purpose of Sociological Jurisprudence (1911) 25
Harvard Law Rev. 140; Tourtoulon, Les principes philosophiques de i'his-
toire du droit, 7-79 (transl. by Read as Philosophy in the Development of Law,
5-73); Saleilles, E~cole historique et droit naturel d'apris quelques ouvrages
rdcents (1902) 1 Revue trimestrielle de droit civil, 80; Hocking, The Present
Status of the Philosophy of Law and of Rights (1926) chaps. 1-5; Jones, Aims
and Methods of Legal Science (1931) 47 Law Quart.Rev. 62; Cohen, A Critical
Sketch of Legal Philosophy in America, in 2 Law: A Century of Progress
1835-1935 (1937) 266.
21. Pound, The Scope and Purpose of Sociological Jurisprudence (1912) 25
Harvard Law Rev. 140-147; id. Fifty Years of Jurisprudence (1938) 51 Har-
vard Law Rev. 444, 447.
On Jhering see 2 Continental Legal History Series, Great Jurists of the
World (1914) 590-599; Munroe Smith, Four German Jurists (1895) 10 Political
Science Quart. 664, 11 id. 278, 12 id. 21; Rudolf von Jhering in Briefen an
seine Freunde (1913); Drake, Editorial Preface to Jhering, Law as a Means
to an End (trans]. by Husik, 1913) xv-xx; Kocourek, Introduction to Jhering,
The Struggle for Law (transl. by Lalor, 2 ed. 1915).
On social utilitarianism see 1 Sternberg, Allgemeine Rechtslehre (1904) 190-
191; Saleilles, The Individualization of Punishment (transl. by Jastrow, 1911)
[127]
Jurisprudence
of the present century might be referred to three groups.

One might be composed of idealists (neo-Kantian or neo-
Hegelian), another might be made up of positivists, so-
cial utilitarians, and realists (economic and psychological
realists), and another of neo-scholastics and adherents of
a revived natural law. But we must consider their ju-
ristic as well as their philosophical relations. Hence it
seems better to treat them chronologically and geograph-
ically as well as philosophically, in order to bring out the
surroundings in which they have worked. A common
philosophical phenomenon is the putting universally of
solutions of problems of time and place.
At the end of the nineteenth century three types of
the social-philosophical school, which have had the widest
8-10; Cardozo, The Growth of the Law (1924) lect. 2; Heck, Interessenjuris-
prudenz (1933) in Recht und Staat in Geschichte und Gegenwart, no. 97; Stone,
The Province and Function of Law (1946) 299-313; Friedmann, Legal The-
ory (2 ed. 1947) 203-207.
For applications of social utilitarianism see Josserand, Essais de tdlologie
Juridique; I De l'esprit des droits et de leur relativitd, Thdorie dite de rabus
des droits (1927), 2 Les mobiles dans les actes juridiques du droit privd (1928);
Id. Cours de droit civil positif frangais (1930, 2 ed. 1932-1933).
For critiques of Jhering see 2 Berolzheimer, System der Rechts- und Wirt-
schaftsphilosophie (1905) § 84; 2 Merkel, Gesammelte Abbandlungen, 733, 744
ff. (transl. in Appendix 1 to Jhering's Law as a Means to an End by Husik);
Berolzheimer, Rechts-philosophie Studien (1903) 143 ff.; Stammler, Wirt-
schaft und Recht (1896) 578-584; id. Lehre von dem richtigen Rechts (1902)
191-195 (English transl. by Husik in Stammler's Theory of Justice, 148-155-
in the second edition the passage there translated is much altered); Korkunov,
General Theory of Law (transl. by Hastings, 1909) §§ 13-14; Tanon, L'dvolu-
tion du droit et la conscience sociale (3 ed. 1911) 44-81 (transl. by Husik in Ap-
pendix 2 to Jhering's Law as a Means to an End); Radbruch, Grundziige der
Rechtsphilosophie (1914, 3 ed. 1932) 18-21; 2 G~ny, Science et technique en
droit privd positif (1915) 39-48; Patterson, Jurisprudence (1951) 5 444.
[ 128 ]
influence, had developed in Continental Europe. Jurists

of the first type (in chronological order) are called social
utilitarians to distinguish them from the English utili-
tarians, the followers of Bentham, who were individ-
ualist utilitarians. On the philosophical side they derive
from English utilitarianism, which they develop in a new
direction. On the juristic side they connect with the
analytical school. But they also represent a movement
away from and out of the dominant historical-metaphys-
ical jurisprudence of the last quarter of the nineteenth
century.
Bentham held that the end of the legal ordering of society
was the greatest happiness of the greatest number of individual
human beings and that the means of achieving that greatest hap-
piness of the greatest number was to leave to each individual
the maximum of freedom of action, the greatest possible scope for
free self-assertion. He conceived that the function of lawmaking
was to take off limitations on individual activity. Manifestly this
is a philosophical theory of the legislative reform movement in
England put universally. It is a theory of abrogating the restric-
tions on free individual activity which had come down from a re-
lationally organized society. In its insistence on abstract indi-
vidual free self-assertion, it fitted easily into the metaphysical
jurisprudence of the nineteenth century. Thus Austin could eas-
ily combine Kant with Bentham. The English utilitarians and
the adherents of the classical political economy were readily dis-
posed to adopt the will theory of liability. It promoted utility, in
the sense of a maximum of individual freedom of action, if liabil-
ity was limited to answering for willed undertakings (contract)
and for willed culpable conduct (torts). The resulting attempt
to put the whole law in terms of will, to think of a trust in terms
Jurisprudence
of the intent of the settlor, of agency in terms of a contract, and

of a public utility in terms of a legal transaction of professing a
public calling, appealed to them as grounded on the principle of
utility. Metaphysical jurisprudence furnished the juristic dog-
mas and utilitarianism the theoretical foundation.
Jhering, the founder and leader of the social utilitarians was
a utilitarian in a large sense. That is, he conceived that it was
not enough for the jurist to know that law (in any and in all of
the senses of the term) is a development; he must perceive not
merely that it has developed and how it has developed, but
also for what purpose it has developed and to what end.22 From
Savigny's time the dominant note in the science of law had been
continuity, in contrast with the creative note in the jurisprudence
of the seventeenth and eighteenth centuries. In the broadening
of the foundations of historical jurisprudence, that went on dur-
ing the latter part of the nineteenth century, the significant thing
is that we were made conscious of a longer and further reaching
continuity than were the founders of the school. To the historical
jurist this continuity seemed to show that we could achieve noth-
ing by futile attempts at creative activity. Also his Hegelian
philosophy taught that the phenomena of legal history represent-
ed the progressive unfolding of an idea which was the reality
behind the transient phenomena. Hence that law was something
which had developed seemed to show that it was something which
had developed and would develop of itself through the inherent
force of the idea. To Jhering, on the other hand, the development
was governed by purpose. It resulted from the conscious en-
deavor of men to achieve desired ends. Hence we were not to
draw the conclusion that legal precepts and legal doctrines and
legal institutions are to be left to work themselves out blindly in
22. 1 Jhering, Der Zweck im Recht (1877) preface ix-x (Husik's transl. 1913,
iviii-lix), 1-46 (Husik's transl. 1-35), 66-68 (Husik's transl. 49-51), 93-97 (Hus-
ik's transl. 71-74), 320-329 (Husik's transl. 239-246).
[ 130 ]
their own way. In fact, he holds, they have not so worked them-
selves out in the past but have been fashioned by human minds to
meet human ends.23 To the social utilitarian those ends are
social ends.
Of Jhering's writings 24 the significant for our purpose are
Der Zweek im Recht (1877-1883) and Scherz und Ernst in der
Jurisprudenz (1884). In Der Zweek im Recht he developed the
idea of purpose as the "creator of the whole law;" as the maker
of law in all the senses of that term. In all its forms law is a
means to social ends. In the Scherz und Ernst in der Jurispru-
denz he broke with the then prevailing "jurisprudence of concep-
tions." He attacked the method of defining conceptions by analy-
sis of historical materials and deducing the decision in every
case from the conception by a purely mechanical-logical process.
He called for what he terms a "jurisprudence of realities," in
which legal precepts were to be worked out with reference to and
tested by their results, by their practical application, and not
solely by logical deduction from conceptions discovered through
analytical-historical study of Roman and Germanic law.25 He
23. 1 Der Zweck im Recht (1877) preface v, x (Husik's transl., 1913, liv,
lix). Accordingly, he remarks, even natural law observes the law of purpose
in spite of itself.
24. Jhering's writings bearing on jurisprudence are: Geist des rimischen
Rechts (3 vols. 1852-1865, 7 and 8 ed. 1906-1924); Der Zweck im Recht (2 vols.
1877-1883 published in one in 6 to 8 ed. 1923); Scherz und Ernst in der Juris-
prudenz (1884, 13 ed. 1924); Der Kampf urns Recht (1872, 20 ed. 1921, 30 edi-
tions in 18 languages). The Zweck im Recht and Kampf urns Recht have been
translated into English, the former by Husik as volume 5 of the Modern Legal
Philosophy Series, under the title Law as a Means to an End, the latter by
Lalor (1879, from the 5th German edition) under the title The Struggle for
Law, second edition with introduction by Kocourek, 1915.
25. Some account of this may be found in Pound, Mechanical Jurisprudence
(1908) 8 Columbia Law Rev. 605, 610 ff.; Holmes, Collected Legal Papers (1920)
231; Pound, Interpretations of Legal History (1923) 119-124; 1 Sternberg, All-
gemeine Rechtslehre (1904) 187-194; 1 Vinogradoff, Outlines of Historical Ju-
risprudence (1920) 25-26.
[131]
Jurisprudence
laid down that legal conceptions existed for men, as means to hu-
man ends, not men for legal conceptions, and hence that the chief
problem of the science of law is to discover what justice and right
require here and now. He insisted that we were to consider stead-
fastly the present and the adaptation of the materials that we call
law to present ends as the central point of juristic study.
To characterize the social utilitarians briefly, their
method is analytical and social philosophical. They
analyze the present law in order to get at its principles
and conceptions, but they test those principles and con-
ceptions with reference to the ends to be subserved.
Jhering has had a far-reaching influence upon the science
of law in all directions. It may be seen today in the so-
cial philosophical schools, in the skeptical realists in
America, and in the sociological jurists in all lands. Five
important features of the juristic thought and legal sci-
ence of today may be set down as achievements of this
school.
(1) Overthrow of the jurisprudence of conceptions
as the one method of developing authoritative legal ma-
terials into grounds of decision and the one method of
applying legal precepts. But this does not mean whole-
sale abandonment of conceptions as with some extreme
realists today.
In Jhering's Jurisprudenz des tdglichen Lebens,2 6 bringing
out the juristic possibilities of the most trivial events and trans-
26. First ed. (as Jurisprudenz im ti.glichen Leben) 1870, 2 ed. much enlarged
(as Jurisprudenz des tglichen Lebens) 1873, 14 ed. by Oertmann, 1921 (transl.
by Goudy as Law in Daily Life, 1904).
[ 132 1
actions of everyday life, there is constant latent reductio ad ab-

surdum when one applies the conceptions of the Roman law,
even as developed in the modern Pandektenrecht, to the ques-
tions put.
(2) Insistence upon the interests which the legal

system secures rather than upon the formal legal rights
by which it secures them.
(3) The theory of punishment as penal treatment
to be adjusted to the criminal rather than to the nature
of the crime; the theory of making penal treatment fit
the criminal as a means toward social ends rather than
making the punishment fit the crime as a vindication of
a metaphysical principle.2 7
This idea has been very fruitful in modern criminology. The
theory which it has superseded was metaphysical-retributive. 2
It conceived of punishment, in the abstract, as a restoration of
the jural order. There was an exact retribution corresponding
to every infraction of the jural order. There was an exact pen-
alty for every crime, so exactly corresponding to it as to make
the balance true again when it had been inflicted. This theory
arose to give form to the overhauling of the crude punitive jus-
tice as an organized substitute for public vengeance, which had
27. 1 Der Zweck im Recht (1877) 494-495 (Husik's transl., 1913, Law as a
Means to an End, 368-369). See Saleilles, L'individualisation de la peine (2 ed.
1909) 10-12 (Jastrow's transl. The Individualization of Punishment, 1911, 8-
10); Llszt, Der Zweckgedanke im Strafrecht in I Strafrechtliche Aufsditze und
Vortrige (1905) 126; 5 Berolzheimer, System der Rechts- und Wirtschafts-
philosophie, § 23.
28. Hegel, Grundlinien der Philosophie des Rechts (1821) § 101 and Zusatz
(2 ed. 1840); Saleilles, L'individualisation de la peine (2 ed. 1909) 7-11 (Jas-
trow's transl., 1911, 4-8.
[ 133]
Jurisprudence
come down from the Middle Ages, when the latter had to give
way before the assaults of the classical penologists (the school
of Beccaria) based on eighteenth-century natural-law humani-
tarian ideas.
We must not translate Zweckstrafe as "utilitarian punish-
ment." To do so, as Saleilles has pointed out, ignores the move-
ment inspired by Jhering and the importance he attributes to
the idea of end as the "soul of every organic function" and hence
of the law also. The contrast of Zweckstrafe to Vergeltungs-
strafe (the compensatory and retributive punishment of the
classical school and of the penal codes) does not mean a utili-
tarian criminology. It means criminal law made a means to
social ends. It means that punishment is to be governed by its
social end and is to be fixed with reference to the future rather
than to the past. As Saleilles puts it, it is a theory of "punish-
ment characterized by its purpose as opposed to . . . pun-
ishment crystallized as a mechanical and mathematical retribu-
tion, without effect as to the past and without result as to the
future." 29 The administrative element in Jhering's theory
should be noted.
(4) Bringing about a due recognition of the imper-
ative element in the legal order and in law in the sense of
the body of authoritative grounds of and guides to deci-
sion, a recognition of the legislative element in legal sys-
tems, which had come to be ignored generally on the Con-
tinent.
English analytical jurisprudence in the last century over-
emphasized this element. But under the reign of the historical
29. Saleilles, L'individualisation de la peine (2 ed. 1909) 11, (Jastrow's

transl. 9. Mrs. Jastrow translates this passage somewhat differently without
affecting the sense).
[ 134 ]
school the traditional element practically stood for the whole of

the law (in the sense of the body of authoritative grounds of
decision) as it did so largely in American legal scholarship in
the immediate past. On the other hand, in recent juristic think-
ing in Continental Europe the imperative side and the legislative
element are fully recognized. 30 Jhering tells a story of a profes-
sor of law to whom a court referred a difficult question of com-
mercial law for his opinion. He returned an elaborate opinion
on the basis of the academic historical-analytical development
of the modern Roman law. When the court suggested to him
that he had not considered the effect of a certain section of the
commercial code, he replied that if the code sought to run coun-
ter to legal reason and the Roman law it achieved nothing.3 1 In
the same spirit when, some years ago, there was much discus-
sion of the nature of equitable rights in our law, it was argued
that cestui que trust did not have a right in rem because the
trustee by conveying to a bona fide purchaser could cut off the
claim of cestui to the res. If the answer was made that a legal
right in rem might be so cut off in the case of an unrecorded
30. See my paper, The Progress of the Law-Analytical Jurisprudence

1914-1927 (1927) 41 Harvard Law Rev. 174. After 1900, discussions familiar in
Anglo-American analytical jurisprudence become common on the Continent-
whether public law is real law, Gumplowicz, Allgemeines Staatsrecht (3 ed.
1907) 375-376; whether and how far international law is law, Liszt in Birk-
meyer, Encyklopddie der Rechtswissenschaft (1901) 1264, Heilborn in 2 Holt-
zendorff, Encyklop~idie der Rechtswissenschaft (6 ed. 1904) 978, Kohler, Ein-
fiihrung in die Rechtswissenschaft (1902) § 102, Grueber, Einfiihrung in die
Rechtswissenschaft (1908) chap. 2, § 8; that customary law obtains its au-
thority from the state, Bruns in 1 Holtzendorff, Encyklopidie der Rechtswis-
senschaft (6 ed. 1904) 303; that customary law is the tacit command of the
state (after the manner of Austin's doctrine), I Windscheid, Lehrbuch des Pan-
'dektenrechts (9 ed. 1906 by Kipp) § 15, n. 1; Czyhlarz, Lehrbuch der Insti-
tutionen des rimischen Rechtes (1902) § 4; and that by whatever agencies le-
gal precepts may be formulated, they obtain their character as law from the
state, Jellinek, Das Recht des modernen Staates (1905) 373.
31. Scherz und Ernst in der Jurisprudenz (1884) 287-288, 324-354 (13 ed.
1924).
[135]
Jurisprudence
conveyance under the recording acts, it was thought a sufficient

reply to say, "Oh, that is statutory," as if our universal Ameri-
can institution of recording acts were not a part of the law but
a mere pathological growth. The social utilitarians have done
much to put an end to that way of thinking about legislation.
(5) Giving us a theory of the administrative ele-

ment in the judicial process-a theory of the cases calling
for individualized application of law or treatment of each
case as in greater or less measure unique." The histori-
cal and the analytical jurists ignored this element or
sought to exclude it. Today it has continually increasing
importance.
When Jhering turned attention from the nature of law,
which had been the one great question for analytical and his-
torical jurists, to its purpose, he set on foot a radical change in
jurisprudence. The feature of this change which he developed
was insistence upon the interests which the legal system secures
rather than upon the conceptual apparatus by which it secures
them. Interests (i.e. claims, demands, expectations of human
beings) are ends which the legal order seeks to secure or to
satisfy. Rights, as we know them in law (i.e. rights in the
analytical sense, capacities of control or influence over the action
of others backed by the force of politically organized society)
are a means by which it does this work of securing interests.
In the seventeenth and eighteenth centuries the idea had
been that rights were qualities of men and were ends above and
32. E. g. in procedure see Pound, Some Principles of Procedural Reform

(1910) 4 Illinois Law Rev. 388, 389-391, 35-402, 491, 494-508; id. The Admin-
istration of Justice in the Modern City (1913) 26 Harvard Law Rev. 302, 312-
328. In evidence, see Wigmore, Evidence, §§ 16, 18, 444, 496, 507, 660, 770, 776,
862, 944, 983, 1857, 1908. In the law of public utilities see Pound Administra-
tive Application of Legal Standards (1919) 44 Rep.Am.Bar Assn. 445.
[ 136 ]
beyond state and society; state and society existed to give effect
to them. For example, the Declaration of Independence declares
that men are endowed with certain inalienable rights and that
governments are instituted among men in order to secure them.
This is in accord with the identification of the legal with the
moral, characteristic of natural-law thinking. Whatever claims
the law ought to secure were therefore legal rights. Rights as
an ethical or politico-ethical conception and rights as legal in-
stitutions were not distinguished. The nineteenth-century idea
was: The end of law is to harmonize individual wills so as to
give each the greatest possible scope for free action; rights are
logical deductions from the idea of the free will. 33 Both of these
theories are abstract individualist. They begin with the quali-
ties of the abstract man or with the abstract individual will.
The latter theory was accepted by the historical jurists. But it
is not hard to show that historically the law has not grown out
of the pressure of rights in either sense of that term. The law
begins by granting actions. There is a body of rules determin-
ing when one may have an action and when not, and the actions
are given in order to keep the peace-in order to maintain the
social interest in the general security. For a long time the law
is built around the system of actions. In time, jurists generalize
from the actions and perceive legal rights behind them. But
just as the actions are means for vindicating legal rights, so the
legal rights are institutions of the law for securing the interests
which it recognizes. Thus the old scheme of natural rights be-
comes instead a scheme of interests which it is held the law
ought to protect and secure, so far as they may be protected and
secured judicially or administratively, in view of other interests.
The decisive consideration is that there are not only individual
33. See for example the formulas of Kant, Savigny, and Puchta. Kant,
Metaphysische Anfangsgriinde der Rechtslehre (1797) 27; 1 Savigny, System
des heutigen r~mischen Rechts, § 52; 1 Puchta, Cursus der Institutionen (1841,
10 ed. 1893) § 6.
r s71
Jurisprudence
interests; also and no less there are social interests, that is, the
claims involved in the maintenance and the functioning of the
social group, or, in a convenient way of putting it, the claims of
the social group as such.
Prior to Jhering, the theory of law had been abstract indi-
vidualist. With Jhering we begin a social-philosophical theory
of law. The eighteenth century conceived of law as something
which the individual invoked against society, an idea to be found
in our American bills of rights. Jhering taught that legal rights
were conferred by politically organized society to secure inter-
ests which had a de facto extra-legal existence. Thus law was
something created in or by society whereby the individual found
a means of securing his interests (i.e. his claims, demands, ex-
pectations) so far as society recognized them. Although much
ingenious criticism has been directed against this theory,34 it has
not affected the central point. Since Jhering, the conception of
a social harmonizing and securing of interests has, under one
form or another, practically superseded the eighteenth-century
natural-law and the nineteenth-century metaphysical theories
35
of rights.
Four criticisms are to be made:

(1) As Jhering put the matter, it was too much in the
:style of teleological utilitarianism. His "interests" were
advantages. They were a compound of what men actual-
ly claim and of what it is or is deemed advantageous for
them to claim. In this respect they are like the "needs"
which play a large part in Hegel's philosophy of right and
34. E. g. Korkunov, General Theory of Law (transl. by Hastings, 1909) 112-

115.
35. Kohler, Einfiihrung in die Rechtswissenschaft (1902) §§ 4, 6; Gareis,
licience of Law (transl. by Kocourek, 1911) 30-35.
[ 138 ]
law.3" These "needs" are not so much what men claim

they need or actually need as they are what the philoso-
pher thought they ought to need. So also with the "wants"
of the economic determinists. They are likely to be what
the jurist deems individual economic advantages or what
he conceives men ought to want. This use of interest in
the sense of economic advantage has vitiated much that
has been written from the social-utilitarian standpoint
and much that has been written in criticism of it.37 Until
the coming of modern psychology, we could not have ex-
pected an adequate theory of this subject.
(2) Social-utilitarianism takes social advantage to
be something given, to be something we know, whereas
it is what we are trying to find. What we are seeking
is a measure or criterion of social advantage.
(3) Social-utilitarianism takes social advantage to
be the sole operative agent in development of the law; in
the making and shaping of legal precepts and determin-
ing the course of the judicial and administrative process-
es. In this respect it has required correction by psychol-
ogy and by sociology. It is not true that legislation and
adjudication are determined precisely by a weighing or
valuing of interests with respect to ends. The pressure
of claims or demands or expectations continually warps
36. Grundlinien der Philosophie des Rechts (2 ed. 1840) §§ 189-208.

37. E. g. Korkunov, General Theory of Law (transl. by Hastings, 1909) 111-
112.
[139]
Jurisprudence
the actual adjustments and compromises of the legal or-

der. But legal and political institutions are set up on
every hand to minimize this warping. Also they succeed
to no small degree in doing so. If the extent to which they
achieve this purpose was exaggerated in the nineteenth
century, the extent to which they fail is exaggerated to-
day. The permanent contribution of the social-utilitar-
ians is in calling upon us to do consciously and intelli-
gently what we had been doing unconsciously and blun-
deringly, and in setting us to thinking upon the ends of
law and the extent to which they are furthered by legal
precepts in action.
(4) Social-utilitarianism is more a theory of legisla-
tion and administration than of law." There is an ad-
ministrative element in adjudication and perhaps even
in legislation. That is, there is an element of dealing
with cases or situations as unique. Jhering made a nota-
ble contribution to the science of law in showing us that
there is this element of adjustment to unique situations
in adjudication-according to law; in showing us that the
logic of abstract conceptions could not be made to do the
whole work of administering justice. A legal philosophy
must include such a theory, but not to the exclusion of a
theory of the generalizing element. The weak side of
Jhering in this connection is that he gives us a philosophy
of making laws, whether by legislative or by judicial ac-
38. See Berolzheimer, Rechtsphilosophische Studien (1903) 143.

[ 140 ]
tivity, rather than a philosophy of law. This is charac-

teristic of analytical jurisprudence which thinks of "law"
as an aggregate of "laws." He gives us a rational ac-
count of how legal precepts are given form. In this re-
spect he is like Bentham. Indeed, this seems to be a char-
acteristic of utilitarianism. Moreover, with respect to
the administrative element in the legal order the attempt
to unify the judicial and the administrative by an admin-
istrative theory of law is as one-sided as the American
common-law attempt to unify them by a judicial theory
of administration.
Today social-utilitarianism is an element in the
thought of other social-philosophical schools rather than
the method of a subsisting school. The social-utilitarians
were pioneers in social-philosophical jurisprudence.
Much of the thought of the present has built upon Jher-
ing, who has more and more come into his own in the last
three decades. The modern tendency is strongly toward
administration as a means of promoting the social ends
which at present are matters of urgent concern. Also
his doctrine is still attractive to judges and practitioners
as a ready instrument of doing better, because more un-
derstandingly, what they had been doing blindly.
Jhering's work is of enduring value for sociological juris-
prudence. The older juristic theory of law as a securing of indi-
vidual liberty or realizing of an idea of liberty, and of laws as
limitations upon individual wills, divorced the jurist from the
actual life of today. The jurists of whom Jhering made fun,
[1411
Jurisprudence
translated to a heaven of juristic conceptions and seated before

a machine which brought out of each conception its nine hundred
and ninety-nine thousand nine hundred and ninety-nine logical
results 3 9 have their counterpart in those American judges in
the last century who insisted upon an abstract equality of rights
and liberty of contract and an abstract reasonableness in the
face of notorious social and economic facts. 40 On the other hand,
the conception of law (in all three senses of that term) as means
toward social ends, the doctrine that law exists to secure inter-
ests, social, public, and individual, requires the jurist to keep in
touch with life. Wholly abstract considerations do not suffice to
justify legal precepts under such a theory. The function of legal
history comes to be one of illustrating how rules and principles
have met concrete situations in the past, and of enabling us to
judge how we may deal with such situations in the present, rath-
er than one of furnishing self-sufficient premises from which
rules are to be obtained by rigid deduction.
§ 15. THE NEO-KANTIANS. 41 In chronologi-

cal order the neo-Kantians are the second type of the so-
39. Scherz und Ernst in der Jurisprudenz (1884) 247, 257 (13 ed. 1924).
40. E. g. Adair v. United States, 208 U.S. 161, 175, 28 S.Ct. 277, 280, 52 L.
Ed. 436 (1908); Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937
(1905); People ex rel. Rodgers v. Coler, 166 N.Y. 1, 16, 59 N.E. 716, 721, 52
L.R.A. 814 (1901); State v. Haun, 61 Kan. 146, 162, 59 P. 340, 346, 47 L.R.A.
369 (1899); State v. Loomis, 115 Mo. 307, 315, 22 S.W. 350, 351-352, 21 L.R.A.
789 (1893); Frorer v. People, 141 Ill. 171, 31 N.E. 395, 16 L.R.A. 492 (1892);
Mathews v. People, 202 Ill. 389, 67 N.E. 28, 63 L.R.A. 73 (1903).
41. Stammler, Wirtschaft und Recht (1896) §§ 32-33; Id. Theory of Jus-
tice (transl. by Husik, 1925) 9-11 (§ 2), 19-21, 72-73, 89-91, 152-155 (§5), 160-
166; Kantorowicz, Zur Lehre vom richtigen Recht (1909) 9; Croce, Historical
Materialism and the Economics of Karl Marx (transl. by Meredith, 1914) chap.
2; Pound, The Scope and Purpose of Sociological Jurisprudence (1911) 25 Har-
vard Law Rev. 140, 147-154; id. Fifty Years of Jurisprudence (1938) 51 Har-
vard Law Rev. 444, 448-452; Patterson, Jurisprudence (1951) §§ 420-424.
F142 1
cial-philosophical school. Their founder and leading

representative was Rudolf Stammler (1856-1938), pro-
fessor at Halle, 1885-1919, then at Berlin. He began to
write on jurisprudence and philosophy of law in 1888 by
an attack on the historical jurisprudence of that time,
and has undoubtedly been the strongest single influence
in philosophical jurisprudence in the present century."
Everything which has been written on philosophy of law
in the past fifty years shows that influence." On the
42. Stammler's writings: Ueber die Methode der geschichtlichen Rechts-

theorie (1888) reprinted in I Rechtsphilosophische Abhandlungen, 1-40; Wirt-
schaft und Recht (1896, 5 ed. 1924); Die Gesetzmlissigkeit in Rechtsordnung
und Volkswirtschaft (1902) reprinted in I Rechtsphilosophische Abhandlungen,
169-184; Die Lehre von dem richtigen Rechte (1902, 2 ed. 1926); Wesen des
Rechtes und der Rechtswissenschaft, in Die Kultur der Gegenwart (1906);
Theorie der Rechtswissenschaft (1911, 2 ed. 1923); Rechts- und Staatstheorien
der Neuzeit (1917); Lehrbuch der Rechtsphilosophie (1922, 3 ed. 1928); Rechts-
philosophische Abhandlungen (1925) a reprint in two volumes of articles in
periodicals and addresses of varying importance; Fundamental Tendencies in
Modern Jurisprudence (1923) 21 Michigan Law Rev. 623, 865.
Die Lehre von dem richtigen Recbte is translated by Husik under the title
Theory of Justice in vol. 8 of the Modern Legal Philosophy Series (1925).
43. On Stammler's influence on the Freirecht movement see Kantorowicz
and Patterson, Legal Science--a Summary of its Methodology (1928) 28 Colum-
bia Law Rev. 679; Kantorowicz, Vorgeschichte der Freirechtslehre (1925) 5-6.
Compare in the United States, Nelles, Toward Legal Understanding (1934) 34
Columbia Law Rev. 862, 1041.
On the relation of Kelsen's neo-Kantianism to that of Stammler, see Kallab,
Le postulat de justice dans la thdorie du droit (1926) 1 Revue internationale
de la thdorie du droit, 89, 91-94; Kiiry, Kritische Bemerkungen zu Stammlers
Lehre (1931) 6 Revue internationale de la thdorie du droit, 158.
On the connection of Stammler with the revival of natural law in France
see Charmont, La renaissance du droit naturel (1910) chap. 9; Saleilles, cole
historique et droit naturel d'aprgs quelques ouvrages r~cents (1902) 1 Revue
trimestrielle de droit civil, 80.
[ 143 ]
Jurisprudence
whole, the neo-Kantians are the dominant group in phil-

osophical jurisprudence today."
As Jhering carries forward the analytical side of the legal
science of the nineteenth century, Stammler carries forward the
philosophical side through a neo-Kantian social philosophy.
Kant sought a universal critique of lawmaking. 45 Stammler
seeks a universally valid formal method of determining what is
just in a given relation or situation, and in this quest for a uni-
versal formal method carries forward the work of the nine-
teenth-century metaphysical jurisprudence. But he does not
proceed exclusively in the abstract as the latter did. On the
contrary, he began to look at legal institutions and legal pre-
44. Critiques of Stammler: 2 Gny, Science et technique en droit privd

positif (1915) 127-190, translated as The Critical System (Idealistic and For-
neal) of R. Stammler, in appendix I to The Theory of Justice, translated by
Husik in The Modern Legal Philosophy Series (1925); Wu, Stammler and
His Critics, appendix II to id.; 2 Berolzheimer, System der Rechts- und Wirt-
schaftsphilosophie (1905) § 48, transl. in The World's Legal Philosophies
(1912) 398-422; Vinogradoff, Common Sense and Law, chap. 9; Hocking,
Present Status of the Philosophy of Law and of Rights (1926) 1-23; Drake,
Juristic Idealism and Legal Practice (1927) 25 Michigan Law Rev. 571, 752;
Sabine, Rudolf Stammler's Critical Philosophy of Law (1933) 18 Cornell Law
Quart. 321; Ginsberg, Stammler's Philosophy of Law in Modern Theories
of Law (1933); De Bustamante y Montoro, Stammler (1931); Martinez Paz,
La filosofia del derecho de Rodolfo Stammler (1927); Kantorowicz, Zur
Lehre vom richtigen Recht (1909); Binder, Rechtsbegriff und Rechtsidee
(1915); Binder, Kritische und metaphysische Rechtsphilosophie (1915-1916)
9 Archiv fir Rechts- und Wirtschaftphilosophie, 142, 267; Wielikowski, Die
Neu-Kantianer in der Rechtsphilosophie (1914); Radbruch, Grundziige der
Rechtsphilosophie (1914) 21-24; Recasdns Siches, Direcciones Contemporneas
del Pensamiento Juridico (1929) 49-94; Stone, The Province and Function
of Law (1946) 317-327; Friedmann, Legal Theory (2 ed. 1947) 87-95.
45. "The science of right and law has for its object the principles of all
the laws which it is possible to promulgate by external legislation. .
It is from this science that the immutable principles of all positive legislation
must be derived by jurists and lawgivers." Kant, Metaphysische Anfangs-
griinde der Rechtslehre (1797) introduction § A.
1144 1
cepts functionally with respect to the ideals we seek to achieve,

and he thinks of social ideals, not of the individual will in the
abstract. Thus in a large sense his method is critical-logical
and sociological.4
Jhering's social-utilitarianism is connected with the rise of
legislation as an agency of legal growth under the German em-
pire, and the need of a directing philosophy therefor. Stamm-
ler's neo-Kantianism is connected with the movement for indi-
vidualization of legal treatment of causes, so marked in connec-
tion with the growth of large industrial centers and the develop-
ment of administrative agencies of justice. Both of these call
for a theory of application of law quite as much as for a theory
of law in the abstract. Jhering's method is to find by analysis
the principles of the law as it is and then to criticize them with
reference to the ends to be met. Stammler's method is to work
out the ideals to which law should be made to conform and thus
to give us a critique of legal institutions and doctrines and pre-
cepts with reference to their achieving or not achieving justice.
Hence, except in method, his critique does not seek to be a uni-
versal one, applicable everywhere, at all times. It is relative
to time and place and people. He seeks a universal method of
47
developing a relative critique.
Four achievements of the neo-Kantians are impor-

tant in the legal science of today.
46. His adherents would call it a critical method. In his later writings
a turning toward logicism has led away from the direction of his earlier work.
47. "All schemes of natural law have undertaken, each in its own way,
to furnish a project of an ideal code with an unchangeable, unconditionally
valid content. Instead it is my purpose to discover a formal method of gen-
eral validity by which one may treat the material afforded by principles of
law, which must necessarily grow and are conditioned empirically, and may
criticize and determine this material so that it shall have the character of
being objectively just." Lehre von dem richtigen Rechte (1902) 116.
1 Pound Jurisprudence--lO [1145 ]

Jurisprudence
(1) They turned attention from the relation of eth-

ics to particular abstract precepts and directed it to the
relation of ethics to the administration of justice through
legal precepts. They put as the question, not how can law
be just, but how can we achieve the just by law; not is
a given precept abstractly just, but can we do justice by
means of it?"5
According to Stammler, the question for the jurist is two-
fold: on the one hand, the existence of a legal precept, on the
other, the mode of carrying it out. 49 This change of front in
philosophical jurisprudence is of much more importance than
the theories which any particular jurist may develop with re-
50
spect thereto.
(2) Their theory of the social ideal as the criterion

of justice through legal precepts and their formulation
of the social ideal of the time directs attention to a con-
trolling element in law (i.e. an element in the body of
authoritative guides to decision which is largely control-
ling in the judicial process) and gives it clear outline,
whereas, since the breakdown of the natural-law identi-
fication of law with morals, it had been ignored in theory
and had operated unconsciously and without any clear
48. Lehre von dem richtigen Rechte, 13, 27, 44.

49. Id. 207.
50. Kantorowicz says justly that Stammler's endeavor to find a method of
"determining and directing the application of legal precepts so that they shall
have the quality of being objectively just" (Lehre von dem richtigen Rechte,
116) would suffice to mark an epoch in the history of the philosophy of law
"even if he had met with no success at all." Zur Lehre vom richtigen Recht
(1909) 10.
[ 146]
grasp on the part of those who continually made use

of it.51
(3) Adding a theory of the just decision of causes
to the theory of making just rules.
(4) Giving us a theory of the application of legal
precepts.
Stammler brought back into jurisprudence what the French
call "juridical idealism"-the search for ideals to which the law
ought to conform, the attempt to formulate and give definite
outline to the picture of the legal order and of the end of law
by which, consciously or unconsciously, men are governed in
finding and developing and applying legal precepts. 52 This jurid-
ical idealism had been discredited by the failure of the meta-
physical jurists in the second half of the nineteenth century, and
was never believed in by the historical jurists, who expected law
to grow like language. Hence in bringing back juridical ideal-
ism there had to be a radical change from the nineteenth-century
philosophical jurisprudence. Philosophical jurisprudence in the
last century sought for universal ideals and an abstract univer-
sal justice generalized to its lowest terms. Also it sought these
universal ideals dialectically from abstract individualist prem-
ises and tried all things by abstract individualist criteria.
Stammler achieved two necessary changes: (1) He led us to see
51. See Pound, The Ideal Element in American Judicial Decision (1931)
45 Harvard Law Rev. 136. An example may be seen in the cases as to de
facto corporations which reach different results according to the picture of
the corporation in the social and economic order of today; according to
whether it is thought of as a state concession of a special privilege to be
looked at jealously and tied down strictly or as an everyday business device.
See the cases in Warren, Cases on Corporations (1909) 613 ff.; id. Corporate
Advantages Without Incorporation (1929) 826 ff.
52. Charmont, La renaissance du droit naturel (1910) chap. 6.
[147]
Jurisprudence
that the ideals to which we are to make the body of authorita-

tive precepts and application of them in the judicial process con-
form are the ideals of an epoch.5 We can't hope to set up a
detailed scheme of unchangeable jural ideals. As Stammler puts
it, there is to be a "natural law with a changing content." 5
This idea was taken up in France after 1902, largely through
a paper by Saleilles, the then leader of the historical school in
France, in which he set Stammler's views before French read-
ers. 55 Thus it was an important factor in the movement known
as the revival of natural law in France. (2) Stammler substi-
tuted social ideals for the ideal of the abstract individual as the
criteria of achieving justice through law. That is, he substitut-
ed ideals of the claims involved in social life for ideals of the
abstract man in vacuo.
Nineteenth-century philosophical jurists sought to deduce

a system of abstractly just rules from freedom or equality or
happiness as fundamental conceptions. But it was always the
freedom, the equality, the happiness of the individual man in the
abstract. Hence in the American freedom of contract cases of
the last century, the question is never thought of as one whether
the employees were in fact free to contract to receive their pay
in orders on a company store. The abstract individual of full
age and capacity would assert a claim to make such a contract
as part of his abstract freedom.5
53. This is Demogue's phrase: Les notions fondamentales du droit priv6

(1911) 22.
54. Wirtschaft und Recht (1896) 685 (5 ed. 1924).
55. Saleilles, Rcole historique et droit naturel d'aprgs quelques ouvrages
rfcents (1902) 1 Revue trimestrielle de droit civil, 80.
56. See e. g. State v. Haun, 61 Kan. 146, 161, 59 P. 340, 345, 47 L.R.A. 369
(1899); State v. Loomis, 115 Mo. 307, 315, 22 S.W. 350, 351-352, 21 L.R.A. 789
(1893).
[148 ]
Perhaps the change began with those utilitarians who con-

ceived justice to be that which makes for the welfare of all
applied as a standard for the conduct of each. This should be
compared with Kant's idea of the like liberty of every one else
applied as the standard for the conduct of each. Stammler's
mode of approach was to regard not the individual free will
but the community of free willing men.57 He connects his doc-
trine with and builds on Kant. But the contrast is significant.
Kant conceived that justice (in the sense of the end of law)
consisted in reconciling the will of each with the will of all by
some universal formula which would allow the greatest possible
scope to each individual will. Stammler conceived that it con-
sists in bringing about a harmony of individual ends or pur-
poses so that all possible ends of those who are legally bound
are included.58
To make this more clear it is well to note what Kant sought
to explain by his theory of justice. The problem which con-
fronted Kant and those who followed him more immediately
was the relation of law to liberty. This problem was suggested
by the transition from the stage of equity and natural law to a
period of legislation and codification and by the contrast be-
tween the institutions of a period of absolute governments on
the model of the French monarchy of the old regime and the
ideas of the French Revolution. On the one hand, it was said,
we live in an age of legislation in which there is and there must
be external restraint and coercion, in which the seventeenth
and eighteenth-century philosophy that spoke only of reason
or of a hypothetical social contract or agreement to abide by
the law-a philosophy that made law rest on its intrinsic ap-
peal to the individual conscience-was not a philosophy of the
actual law. On the other hand, it was said, we live in a demo-
57. Lehre von dem richtigen Rechte (1902) 196-200.

58. Ibid.
[149 ]
Jurisprudence
cratic age (for Kant wrote while the ideas of the French Revo-
lution were agitating Europe)-an age in which the arbitrary
and authoritative must have some solid basis other than mere
authority, and in which the individual demands the widest possi-
ble freedom of action. How were these two ideas, external
constraint and individual freedom of action to be reconciled?
This question furnishes the clue to all philosophical discussion
of the nature of law in the nineteenth century. Kant met it by
formulating what came to be known as "legal justice," the no-
tion of an abstract equal chance to all, exactly as they are, with
no artificial or extrinsic handicaps. He looked on constraint
and restraint as means and freedom as end, so that there should
be complete freedom of action except so far as restraint was
needed to secure the harmonious co-existence of the individual
with his fellows according to a universal rule.5 9 For this ab-
stract individualist theory, in which the abstract individual
will is the central point, Stammler substitutes a social theory
of justice in which, as it were, social interests in individual ends
are to be regarded rather than individual wills, except as asser-
tion of the individual will is an individual end. The relation
of this to Kant consists in bearing in mind that our community
is one of free-willing men and in insisting that the wills of these
men are not to be overridden arbitrarily. Accordingly, he lays
down four fundamental principles of just law,' 0 that is, funda-
mental principles of administration of justice by means of law,
which may be paraphrased thus:
(1) One will must not be subject to the arbitrary will of
another.6 1 If one will is to be subjected through the force of
politically organized society to the will of another, it must not
be done arbitrarily but upon some rational basis-upon a rea-
59. Kant, Metaphysische Anfangsgriinde der Rechtslehre (1797) 27.

60. Lehre von dem richtigen Rechte (1902) 208-211.
61. Lehre von dem richtigen Rechte (1902) 208 (2 ed. 1926, 148).
![150]
+(,121/,1(
Citation: 1 Roscoe Pound Jurisprudence 151 1959

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soned weighing of the ends involved and a reasoned attempt to

reconcile them.9 As Stammler puts it, there must be a reasoned
attempt to bring about a community of free willing men. This
is the principle behind the V and XIV amendments in their
historical meaning as applied to legislation. It is the principle
behind modern methods of penal treatment which appeal to the
reason of the offender and rely on his honor instead of appealing
only to fear and relying only on force. Psychologically, it rests
on our modern knowledge of the ill effects of repression. As
Stammler puts it, it builds on Kant.
(2) A legal demand can only be allowed to the extent that
the person obliged can also exist "as an end in himself, so as
to make just volition possible." 6 That is, in valuing individual
claims in terms of the general security, e. g. in terms of the
security of transactions or the security of acquisitions, we must
put into the scale, as it were, a social interest in the social, the
moral, if you like, the human life of each individual, and so must
restrict the enforcement of demands to what is consistent with
the person subjected to the demand being able to exist as a fel-
low creature. Examples of this principle in action may be seen
in bankruptcy, in homestead laws, in exemptions from execution,
and in the Roman beneficium competentiae. A striking recent
example may be seen in legislation allowing courts to render
judgments for the payment of judgment debts in installments. 4
Nineteenth-century philosophy of law objected to this sort of
62. Id. 202.

63. Id. 208. Principles 2 and 4 suggest the social legislation discussed by
Gray, Restraints on Alienation (2 ed. 1895) viii-xi, and indicate how such
legislation may be directed intelligently to social ends. See my paper, The
Need of a Sociological Jurisprudence (1907) 19 Green Bag, 607, 612-615.
As to Stammler's phrase "his neighbor," see Lehre von dem richtigen Rechte
(2 ed. 1926) 194-196 (Husik's transl. 1925, 217-218); Stone, The Province and
Function of Law (1946) 322-325.
64. See Smith, Justice and the Poor (2 ed. 1921) 57.
[151 ]
Jurisprudence
thing, and civilians in the last century rejected the beneficium

competentiae.65
(3) No one is to be excluded from the common interest
arbitrarily. 66 As I should put it, because of the social interest
in the social and moral (or the human) life of the individual, 67
we must justify with reference to some countervailing social
interest any exclusion of any one from what is claimed generally
by all. For example, in criminal law we deprive a convicted
person of liberty; we exclude him from the common interest in
free choice of location and free general self-assertion. In the
law of property we exclude all but the owner from objects which
are natural media of human existence (land, food supplies) or
means of human activity (patented articles). In the law as to
running water or as to wild game we exclude some from the use
or appropriation of natural resources. This is not to be done
arbitrarily. It is to be done on a reasoned weighing of the ends
involved and a reasoned attempt to reconcile them. Compare
the insistence of some courts at one time on applying the com-
mon law of riparian rights to streams in the states west of the
Missouri River. At common law only the riparian can use and
he can only use so far as is consistent with like use by other ri-
parians. To apply this rule to streams in the arid states is to
prevent any one from using effectively one of the most valuable
natural resources of the community."" All were excluded arbi-
trarily.
65. I Baudry-Lacantinerie, Precis de droit civil (13 ed. 1922) § 550.

66. Lehre von dem richtigen Rechte (1902) 211.
67. Compare Duguit's doctrine of social interdependence through similar-
ity of interest. Les transformations g46nrales du droit privd (1912) 27.
68. See Drake v. Earhart, 2 Idaho 750, 23 P. 541 (1890); Salt Lake City v.
Salt Lake City Water & Electrical Power Co., 25 Utah 456, 464, 71 P. 1069,
1072 (1903); Reno Smelting, Milling & Reduction Works v. Stevenson, 20
Nev. 269, 21 P. 317, 4 L.R.A. 60 (1889); Twaddle v. Winters, 29 Nev. 88, 85
P. 280 (1906); Coffin v. Left Hand Ditch Co., 6 Colo. 443 (1882).
[ 152 ]
(4) A power of control conferred by law can be justified

only to the extent that the individual subject thereto can yet ex-
ist as an end in himself. 69 When the law confers or recognizes
a power of control by one over another it should safeguard the
human existence of the person controlled. This principle may
be seen in operation in the change from the old-time sea law as
to the authority of the master of a ship, 70 and the abolition of the
old-time ignominious punishments that treated a human being
like a brute--that did not save his human dignity."
In these propositions the significant feature is the philo-
sophical recognition of the social interest in the individual life.
The nineteenth century looked only at the social interest in the
general security, and mostly at two phases of that interest, name-
ly, the social interest in the security of acquisitions and in the
security of transactions, and thought of them in terms of in-
dividual interests.
Stammler warns us expressly that the foregoing principles
are not at all like the supposed precepts of natural law. They
are not premises from which to deduce a complete code of de-
tailed rules. They are rather guides intended to make possible
an effective administration of justice through law. Hence they
are not merely principles of politics and legislation. Even more
they are principles to govern the art of applying legal precepts.
He holds that they must be adapted to that art in such a way
that the actual materials of the legal system will give effect to
them in action. He calls this process of adaptation "subsump-
tion of questions of law under the social ideal and its funda-
mental principles." 72 In his Lehre von dem richtigen Rechte he

70. See Dana's account of the old time flogging, Two Years Before the
Mast (1840) chap. 15.
71. See Ives, History of Penal Methods (1914) 54-56.
[ 153 ]
jurisprudence
illustrates the process by going over the whole field of the law
in order to show that the historical content of our legal systems
may be applied in this way with results both just and objective-
73
ly valid.
It has been said that Stammler "has a place in the

philosophy of law comparable to that of Kant in the the-
ory of knowledge.74 Kant restated the problem of knowl-
edge and showed us what the problem was. In like man-
ner Stammler showed us that our question is not one of
the abstract justice of abstract rules. The nineteenth
century thought that if rules were abstractly just, results
in particular cases were negligible. All one could de-
mand was that an abstractly just general rule be applied
to his case. Instead of this Stammler taught us to seek:
(1) just results by means of rules, (2) legal precepts
which conform to social ideals.
In Stammler's later writings he turned to logicism,
conceiving of logic as the end of a science and not merely
as a means of exact investigation. He relies on logic as
the classical natural law relied on reason. Logic is to
do more than develop some given starting point. Reali-
ty (i.e. significance) is taken to be in logical relations
and the starting points themselves are to be found
through logic. It has been the strength of the neo-Kanti-
an philosophical jurisprudence that it concerned itself
73. Id. bk. III. By "objectively valid" it is meant that the results are
valid from a legal standpoint.
74. Briitt, Die Kunst der Rechtsanwendung (1907) 118.
[154]
specially with the problem of values-the measure of

recognizing, delimiting and securing interests, which is
fundamental for the science of law today. Its weakness
has been in its later tendency to logical dogmatism.
In this connection, mention should be made of the neo-
Kantian normative logicism of Hans Kelsen,75 which for the past
75. Kelsen's writings on jurisprudence: Ueber Grenzen zwischen juris-

tischer und soziologischer Methode (1911); Hauptprobleme der Staatsrechts-
lehre (1911, 2 ed. 1923); Das Problem der Souverlinitlit und die Theorie
des V6lkerrechts (1920, 2 ed. 1928); Der soziologische und der juristische
Staatsbegriff (1922, 2 ed. 1928, there is a Japanese translation); Aligemeine
Staatslehre (1925, there are translations into French and Spanish); Grund-
riss einer allgemeinen Theorie des Staates (1926, there are translations, into
Czechish, French, Greek, Hungarian, Italian, Japanese, Roumanian, and Span-
ish); Die philosophischen Grundlagen der Naturrechtslehre und des Rechts-
positivismus (1928, there is a Japanese translation); Rechtsgeschichte gegen
Rechtsphilosophie? (1928); Reine Rechtslehre (1934); The Pure Theory of
Law (1934) 50 L.Q.Rev. 474, 51 id. 517; The Function of the Pure Theory of
Law, in 2 Law: A Century of Progress, 1835-1935 (New York University
Publication, 1937) 231; What is Justice? Justice, Law and Politics in the
Mirror of Science (1957).
For a full list of Kelsen's writings see Pound, Fifty Years of Jurisprudence
(1938) 51 Harvard Law Rev. 444, 449, n. 17. There is a full bibliography
of the literature which has grown up about Kelsen's pure theory of law in
Mdtall, Bibliographie der reinen Rechtslehre (1934). See also 2 Bonnecase,
La pens4e juridique franvaise (1933) § 376.
Expositions and critiques of Kelsen: Lauterpacht, Kelsen's Pure Science
of Law, in Modern Theories of Law (1933) 105-138; Voegelin, Kelsen's Pure
Theory of Law (1927) 42 Political Science Quart. 268; id. Die Souverinit~its-
theorie Dickinsons und die reine Rechtslehre (1929) 8 Zeitschrift fiir 6ffent-
liches Recht, 413; Kunz, The Vienna School and International Law (1934)
11 New York University Law Quart. 370; Wilson, The Basis of Kelsen's
Theory of Law (1934) 1 Politica, 54; 2 Bonnecase, La pensde juridique fran-
gaise (1933) §§ 375-384; Davy, Le probleme de l'obligation chez Duguit et
chez Kelsen (1933) Archives de philosophie du droit et de sociologie juridique,
7; Weyr, Reine Rechtslehre und Verwaltungsrecht (1931) In Festschrift fiir
Hans Kelsen, 366; Stone, The Province and Function of Law (1946) 95-111;
Friedmann, Legal Theory (2 ed. 1947) 99-111.
On the relation of Kelsen's neo-Kantianism to that of Stammler see Kallab,
Le postulat de justice dans la thdorie du droit (1926) 1 Revue internationale
[ 155 ]
Jurisprudence
three decades has been the subject of discussion in all parts of

the world and in all languages. In the immediate past he has
been a leader of juristic thought in central Europe and one of the
chief influences in the science of law in Continental Europe. He
is today a chief influence in Latin America. His method is
purely logical. He seeks to find by logic conceptions which are
to yield "pure norms," that is, models or patterns of socially de-
sired conduct provided by the threats addressed by those who
wield the authority of politically organized society to those sub-
ject to its authority. More must be said of this later in consid-
ering the nature of law.
Another type of neo-Kantianism, much influenced by Kel-
sen, connects also with positivism. Here the leader has been
Hans Vaihinger. Laws of social and legal development are
found, after the manner of positivism and this positive basis is
subjected to a formal logical criticism. 6 Much of what has
been written about legal fictions since Vaihinger's Philosophiedes
Als-Ob is from this standpoint. But German juristic positivism
ceased to be purely empirical. It became rigorously critical in
the Kantian sense, that is, critical of method. 77 It ran to meth-
odology.
Today there is a steadily widening gap between the

neo-Kantian right and the neo-Kantian left. The right
is represented by Giorgio Del Vecchio, one of the leaders
of philosophical jurisprudence in the present genera-
de la thdorie du droit, 89, 91-94; Kiiry, Kritische Bemerkungen zu Stamm-

lers Lehre (1931) 6 id. 158.
76. E. g. Bergmann, Der Formalismus in Kants Rechtsphilosophie (1902).
77. See Salomon, Kants Strafrecht in Beziehung zu Seinem Staatsrechte
(1912); id. Grundlegung zur Rechtsphilosophie (1919, 2 ed. 1925); id. Recht
und Kritik, Kantfestschrift (1924).
[156]
tion." He avoids the extreme of critical logicism and

turns to a moral criticism which is allied to the tradition-
al theory. But it is not the eighteenth-century rational-
ist morals. He thinks of man as both a social and a moral
being, in this respect approaching G6ny's neo-scholasti-
cism. In this combination of the social with the moral as-
pect Del Vecchio finds the starting point from which to
arrive at law as a rule of life.7
78. A bibliography of Del Vecchio's writings down to 1914 may be found

in the English translation of three of them under the title The Formal Bases
of Law in 10 The Modern Legal Philosophy Series (1914). Important writ-
ings since that time are: Lezioni di filosofia del diritto (1930, 10 ed. 1956)-
French translation, Legons de philosophie du droit (1936), English translation,
Philosophy of Law, by Martin (1933)-a revision of the first chapter of the
10th edition, Storia della filosofia del diritto (2 ed. rev.) was published in
1958; a second edition of I1 Concetto della natura e ilprincipio del diritto
(1922); a second edition of La giustizia (1924), English translation, Justice,
by Lady Guthrie (1952); Sui principi generali del diritto (1921)-there are
French and German translations, and an English translation, General Prin-
ciples of Law by Forte (1956); Sulla statualitA del diritto (1929)-there is a
French translation, also an English version, The Statuality of Law (1937)
19 Journ. of Comparative Legislation, 1; La crisi della scienza del diritto
(2d ed. 1934)-English translation, The Crisis of the Science of Law (1934)
8 Tulane Law Rev. 321, also a German translation; I1 problema delle fonti
del diritto positivo (1934); Individuo, Stato e corporazione (1934); La crisi
dello stato (2 ed. 1934); Diritto ed economia (1935) 15 Rivista internazionale
di filosofia del diritto, 593; L'6thique, le droit et l'6tat (1935) 9 Revue in-
ternational de la thforie du droit, 79; L'homo juridicus et l'insuffissance du
droit comme rggle de la vie (1936) 2 Annuaire de l'Institut international de
philosophie du droit, 1-English version, The Homo Juridicus and the Inade-
quacy of Law as a Norm of Life (1937) 11 Tulane Law Rev. 503; Truth and
Untruth in Morals and Law, in Interpretations of Modern Legal Philosophies,
Essays in Honor of Roscoe Pound (1946) 143.
79. See a very good statement by Le Fur, preface to Del Vecchio, Legons
de philosophie du droit (1936)-French translation of Lezioni di filosofia del
diritto (3 ed. 1936)-vi-xvi.
[ 157]
Jurisprudence
On the other hand, the neo-Kantian left, thinking of law

analytically as a body of threats of coercive action on the part
of those who wield the power of politically organized society, find
the necessary starting point in a majority. With Kelsen and
Laun 80 for the law of the state it is found in a majority of in-
dividuals. The rule of the majority is not merely a more or less
necessary political expedient. It is the essential regime of a
democracy. Democracy must be absolute democracy not con-
stitutional democracy. Legal limitations on democratic gov-
ernment, after the manner of our American bills of rights are
a contradiction in terms.81 Thus the neo-Kantian left connects
with recent juristic realism as the right connects with the ethical
natural-law tradition. 2
§ 16. THE NEO-HEGELIANS 3 In chronologi-

cal order, the third type of social philosophical jurispru-
80. Der Wandel der Ideen Staat und Volk als Ausserung des Weltgewis-
sens: Eine Vtlkerrechtliche und Staatsrechtliche Untersuchung auf Philo-
sophischer Grundlage (1933); Recht und Sittlichkeit (2 ed. 1927).
81. See a terse statement of the basis of this in the logical development
of the idea of a law as a threat and positive law as merely power in Laun,
Recht und Sittlichkeit, 8 et seq.
82. Spiropoulos, who rejects all notion of the personality of the state so
that he cannot postulate a plebiscite of nations, finds the starting point for
international law in the majority of jurists. Die allgemeinen Rechtsgrund-
srttze im Vdlkerrecht (1928); Le fondement du droit international (1929) 3
Revue du droit international, 97; Th6orie gdnirale du droit international
(1930).
83. Kohler, Rechtsphilosophie und Universalrechtsgeschichte, § 8, in I
Holtzendorff, Encyklopildie der Rechtswissenschaft (7 ed. 1913); Id. Lehrbuch
der Rechtsphilosophie (3 ed. 1923) 1-21, 28-32; id. Philosophy of Law (transl.
by Albrecht, 1914) in 12 The Modern Legal Philosophy Series, 25-27 (altered in
3 ed. of original); 2 Berolzheimer, System der Rechts- und Wirtschaftsphil-
osophie § 48 (The World's Legal Philosophies, 422-431); Pound, Interpreta-
tions of Legal History (1923) 141-151; Kohler, Moderne Rechtsprobleme (2
ed. 1913) § 1; id. 1 Lehrbuch des blirgerlichen Rechts (1906) §§ 38-39; Berolz-
[ 158 ]
dence is neo-Hegelian. The leading representative was

Josef Kohler (1849-1919)." He does not think of a law
heimer, Zum Methodenstreit in der Rechtsphilosophie der Gegenwart (1919)

3 Archiv fUr Rechts- und Wirtschaftsphilosophie, 522; Sauer, Stand und
Zukunftsaufgaben der Rechtsphilosophie (1932) 26 id. 3, 28; Sauer, Hegel
und die Gegenwart (1931) 25 id. 1, 5.
Berolzheimer, System der Rechts- und Wirtschaftsphilosophie (5 vols. 1904-
1907) is an exposition of the doctrines of this school. The second volume
is translated as The World's Legal Philosophies but the translation is abridged
and hard to use. For many years the organ of the school was the Archiv
fUr Rechts- und Wirtschaftsphilosophie, of which Kohler was the editor from
1907 to 1919, and Berolzheimer from 1907 until 1920. Pound, The Scope and
Purpose of Sociological Jurisprudence (1911) 25 Harvard Law Rev. 140, 154-
158; Pound, Fifty Years of Jurisprudence (1938) 51 Harvard Law Rev. 444,
452-453.
84. Kohler's writings on jurisprudence and philosophy of law: Shakes-
peare vor dem Forum der Jurisprudenz (1883, 2 ed. 1919); Recht, Glaube
und Sitte (1892); Zur Urgeschichte der Ehe (1897); Einftihrung in die Rechts-
wissenschaft (1902, 5 ed. 1919); Rechtsphilosophie und Universalrechtsge-
schichte, in I Holtzendorff, Encyklopiidie der Rechtswissenschaft (6 ed. 1904,
7 ed. 1913); Moderne Rechtsprobleme (1907, 2 ed. 1913); Lehrbuch der Rechts-
philosophie (1909, 3 ed. by Arthur Kohler 1923), the first edition translated
by Albrecht as Kohler's Philosophy of Law (1914); Recht und Persdinlich-
keit in der Kultur der Gegenwart (1914).
As to Kohler personally see biographical note by Arthur Kohler (1933) 26
Archiv fUr Rechts- und Wirtschaftsphilosophie, 212-217; Heymann, Seeberg,
Klee, und Schmidt, Josef Kohler zum Gediichtniss (1920); Osterrieth, Josef
Kohler (1920); Rabel, Josef Kohler (1920), 10 Reinische Zeitschrift fir Zivil
und Prozessrecht, 123; Adam, In Memoriam, Josef Kohler (1920) 38 Zeitschrift
fiir vergleichende Rechtswissenschaft, 1; Fleischmann, Josef Kohler zum
Geddchtniss (1920) 11 Zeitschrift fir Vtilkerrecht, ix-xxiil.
For critiques of Kohler see: Pound, Interpretations of Legal History (1923)
141-151; 2 Gdny, Science et technique en droit priv4 positif (1915) 111-126;
Hocking, The Present Status of the Philosophy of Law and of Rights (1926)
chaps. 3-4; Lasson, Kohler's Philosophy of Law, appendix II to Albrecht's
transl. (1914) in 12 The Modern Legal Philosophy Series (transl. of a review
in 2 Archiv fiir Rechts- und Wirtschaftsphilosophie, 318); Castillejo y Duarte,
Kohler's Philosophical Position, appendix III to Albrecht's transl. in 12 The
Modern Legal Philosophy Series (1914) (transl. from the introduction to the
Spanish transl. of Kohler's Rechtsphilosophie und Universalrechtsgeschichte);
Stone, The Province and Function of Law (1946) 331-340.
[ 159 ]
Jurisprudence
as a threat or of law as a system of threats of politically

organized society, but as a rule of life and so of ordering
life. Note the unifying of law and morals where the
nineteenth century opposed them.
As I see it, Kohler was easily the first among recent jurists.
He was remarkable for the breadth of his experience, the breadth
and depth of his scholarship, and the variety of his interests.
He was first an Amtsrichter (the equivalent of an English coun-
ty court judge), then Kreisrichter (superior judge) for five years.
He became professor at Wfirzburg in 1878, and was professor
at Berlin from 1888 till his death in 1919. He worked first in
Roman law, 5 then in primitive law and comparative legal histo-
ry,80 then in criminal law, 87 then in patent law and bankruptcy
and the law of trade marks, on which he has written standard
treatises, 8 then on the German Civil Code which took effect in
1900, on which he wrote a commentary. 9 In 1902 he wrote an
introduction to jurisprudence and in 1904 began to write on the
philosophy of law. He soon became the head of a vigorous school
which for the decade before 1914 was perhaps achieving more
than any other group of jurists. He was also a musician and
85. Pfandrechtliche Forschungen (1882); Beitriige zur Geschichte des r6m-

ischen Rechts in Deutschland (1896).
86. Shakespeare vor dem Forum der Jurisprudenz (1883, 2 ed. 1919); Zur
Urgeschichte der Ehe (1897); Recht, Glaube und Sitte (1892); Rechtsver-
gleichende Studien tiber islamitisches Recht, das Recht der Berbern, das
chinesische Recht, und das Recht auf Ceylon (1889).
87. Studien aus dem Strafrecht (1890-1897).
88. Lehrbuch der Konkursrechts (1891); Leitfaden des deutschen Konkurs-
rechts (1893, 2 ed. 1903); Handbuch des deutschen Patentrechts (1900); For-
schungen aus den Patentrecht (1888).
89. Lehrbuch des birgerlichen Rechts (1906-1915). This book is very use-
ful to students of jurisprudence because of the critical and philosophical dis-
cussions of dogmatic problems.
[160]
composer. He came nearer than any one else in modern times

to taking all law for his province. Thus in respect of all round
knowledge of law and of its problems he was exceptionally
qualified for philosophy of law.
Kohler's method is historical and social-philosophi-

cal. It carries forward the historical jurisprudence of
the nineteenth century as the neo-Kantians carry for-
ward the philosophical jurisprudence of that time.
There are four significant points in connection with
the neo-Hegelians: (1) The theory of law as a product
of the civilization of a people; (2) the theory of the rela-
tion of comparative legal history and the philosophy of
law; (3) the theory of sociological interpretation and
application of legal.precepts; and (4) the method of
formulating the jural postulates of the civilization of
the time and place.
(1) To look into these in order: Kohler starts with
a remark of Hegel that law is a phenomenon of civiliza-
tion.'" But he does not use this proposition as a nine-
teenth-century philosopher of law would have used it.
He does not put it as a fundamental formula from which
to bring forth by a purely deductive process an entire
system of abstract universal law or a universal critique
of lawmaking. Instead he seeks to find the principles
for a critique of law upon a basis afforded by anthropol-
90. Lehrbuch der Rechtsphilosophie (1909) 16.

1 Pound Jurisprudence-l [161 ]
Jurisprudence
ogy, comparative law, and comparative legal history,

unified with reference to the history of civilization.91
Savigny held that law was a product of the spirit or
the genius of a people, and was no more the result of con-
scious human will than is language. Kohler holds that
it is (a) a product of the civilization of a people in the
past, and (b) a product of the attempts to adjust this re-
sult of past civilization to the civilization of the present.
Note here the influence of Jhering. One might say that
(a) is Savigny, and (b) Jhering.
He recognizes the truth of Savigny's proposition that a
system of law cannot be made out of whole cloth to fit any peo-
ple anywhere; that it takes more than the words "Be it enacted"
to make law more than in form. But he does not exclude con-
scious effort as Savigny does.92 Kohler recognizes the efficacy
of conscious effort to adjust the law, produced by the civilization
93
of the past, to the civilization of the present.
Kohler connects with Hegel by regarding law as an ex-
pression of the idea of civilization. Hegel held that it expressed
or realized an idea, and conceived that the idea was a simple
91. See a statement of the neo-Hegelian view in the preface to Kocourek

and Wigmore, Sources of Ancient and Primitive Law (1915). This is a col-
lection of materials for what Kohler calls universal legal history.
92. Moderne Rechtsprobleme (2 ed. 1913) § 1.
93. "The principle of relativity of law held by the historical school, which
we also insist upon over and over again in comparative jurisprudence, has
been thoroughly misunderstood. Since law is relative and is influenced by
interests of culture, it has been supposed that law was wholly destitute of
fundamental ideas. All distinction between the law that ought to be and the
law that is was given up and the fantastic result was reached that the law
which exists is the one that ought to be and that one law is as just as an-
other." Moderne Rechtsprobleme (2 ed. 1913) § 1.
[162]
one-an idea of liberty. Kohler thinks it a growing, complex

idea-an idea of civilization. To him the idea is not a simple one
whose narrow bounds have been fixed once for all. Compare
Vinogradoff's ideological-historical jurisprudence, in which a
series of ideas, traced through various stages of "indistinct be-
ginnings, gradual differentiation, struggles and compromises,
growth and decay," give us a series of historical types on the 94
basis of which we are to build a series of theories of law.
Kohler would unify this series of ideas by the idea of civiliza-
tion. The history of these types is a part of the history of
civilization. He connects with the historical school in that he
recognizes, as the student of legal development must, the lim-
itations on the efficacy of effort involved in our having to shape
the legal materials that have come down to us so as to meet the
requirements of the civilization of the present. Thus we are
limited by the materials with which we must work. Historical
continuity is a condition of what we do. On the other hand, he
recognizes that law cannot stand still. The eighteenth-century
ideal of an absolutely fixed, absolutely certain law is impossible
of realization, since the adjustment must be made to a constant-
ly changing, if not constantly progressing, civilization. We must
shape the legal materials that have come down to us so as to
make them further, not retard, civilization.9 5
(2) Kohler's teaching calls for an understanding of

the social history of a people and of the relation of this
social history to the law (in all of its senses), whereas in
the past we looked rather to political history and to the
relation of political history to legal systems. We took an
idea of individual liberty, an idea of the maximum of ab-
94. 1 Vinogradoff, Outlines of Historical Jurisprudence (1920) 155-160.

95. Lehrbuch der Rechtsphilosophie (1 ed. 1909) 2.
[163 ]
Jurisprudence
stract, individual, free self-assertion as our starting

point, and thought of legal and political history as phases
of an unfolding or realizing of that idea. For the politi-
cal interpretation, which prevailed in the latter part of
the nineteenth century, Kohler would substitute an in-
terpretation in terms of civilization. He would substi-
tute an interpretation in terms of a progressive develop-
ment of human powers, i.e. of human control over nature,
both external nature and human nature, to their highest
possible unfolding.96
To Kohler, legal history is part of the history of civiliza-
tion. Regarded in this way, he holds that it may give us gen-
eralizations which are fundamental for the philosophy of law.
By comparative study, he says, we are able to construct a uni-
versal legal history and thus are able to show "how the law has
developed in the course of history . . . in connection with
the idea of civilization; to show what results in the civiliza-
tion of a people have been bound up in law; how the civilization
of a people has been conditioned by law; and how law has fur-
thered the progress of civilization." 97 In this way history is to
be used to enforce the lesson that law must and will grow, in-
stead of being used, as in the nineteenth century, to show the
futility of conscious effort.
(3) Kohler's theory of sociological interpretation

and application of law is not the least of his contribu-
tions. The nineteenth-century theories of interpretation
96. Moderne Rechtsprobleme (2 ed. 1913) § 1.

97. Rechtsphilosophie und Universalrechtsgeschichte, § 8, in I tloltzendorff,
Encyklopidie der Rechtswissenschaft (7 ed. 1913).
[164]
and application were analytical or historical. Later

there was agitation for equitable interpretation as it was
called, i.e. for taking legal precepts as guides only and
making use of those guides with reference to results
sought in the particular case on the basis of the magis-
trate's feeling as to what is right. Also there was agita-
tion for equitable application, i.e. a wholly individualized
application, such as administrative application, in which
each case is treated as unique rather than as one of a
type. This equitable interpretation was a reaction from
mechanical use of the analytical and historical methods.
But it was largely a reversion to justice without law.
Kohler sought for a legal method that would nevertheless
avoid those features of the nineteenth-century methods
which led to agitation for the so-called equitable method.
To understand Kohler's theory of interpretation and ap-
plication we must remember three things: (1) There are
codes everywhere in Continental Europe; (2) in Continental
Europe the science of law began with interpretation of the
Corpus Iuris regarded as a statute, regarded as a body of uni-
versal, absolute, binding rules; (3) the science of law in Con-
tinental Europe inherited a Byzantine tradition of law as pro-
ceeding from an absolute personal sovereign. The Corpus
luris was the declared will of Justinian. Rules of law were
principum placita. Hence the theory of interpretation was one
of seeking the will of the lawmaker, the intent of the lawmaker,
just as in construing a will we seek the intent of the testator.
This conception of the will of the princeps, the will of the law-
maker, passed into modern law. But even for Justinian's em-
pire, it is only by a fiction that the content of the law was willed
[ 165 ]
Jurisprudence
or intended by a personal lawmaker.98 For modern law the fic-

tion is even more strained.
In Anglo-American law we do not think of analogical ap-

plication of the traditional legal materials as interpretation.
With us, interpretation means finding the content of a written
(i. e. enacted) rule. In Roman-law countries, where the law is
made up of codes, and the Corpus Iuris, which stands as the
common law, is in form legislation and its texts are leges, it
seems clear that analogical application of a code provision and
analogical application of a text of the Corpus Iuris are the same
process. Both are called interpretation. But our Anglo-Ameri-
can common law is not in the form of authoritative texts. With
us, development of principles found in reported judicial decision
is not thought of as interpretation. It does not take the form
of ascertaining the content of a formulated written rule. Hence
the nature of the process that goes on when a leading case is
applied by analogy, or is limited in its application, or is dis-
tinguished, is concealed. On the surface it does not seem to be
the same as when a text of the Digest is so applied or limited or
distinguished. We seek to find the principle behind what the
court did, not to interpret what the court said.
Our common-law theory of interpretation is one of fixing

the content of precepts definitely formulated by enactment for
definite special situations. The Continental theory is one of
developing the grounds of decision from the whole mass of legal
material. By whatever name we call the latter process, it is the
same in each system. It is a choice of a starting point from
98. E. g. in the title of the Digest, Ad legem Aquiliam, the basis is a stat-
ute of the Roman Republic. The fragments are gathered from texts of the
time of or just before Cicero to the third century A.D. The result was enact-
ed 300 years later in the sixth century. Thus there is in this title a span of
perhaps 900 years. Justinian's commissioners willed to put the extracts in the
Digest, but did they will the content or the later applications of the extracts?
[ 166 ]
among competing authoritative materials and a development of

the grounds of decision from that starting point by a traditional
technique.
Kohler argues that the theory of ascertaining the

will of the lawmaker, when applied to development of the
grounds of decision from a century-old code or from the
Corpus Iuris is a fiction. The French Civil Code of 1804,
or the Austrian code of 1811, or our American eight-
eenth-century bills of rights, were intended as perma-
nent monuments of legislation. They give premises for
judicial reasoning. They are not mere aggregates of
fixed rules. Hence, Kohler says, society is the real law
giver. The code commission or the draftsman of the code
is but the agency of expression. Therefore these codes
are not to be interpreted according to the thought and
will of the lawmaker as an individual, but sociologically
as products of society, whose organ the lawmaker has
become."
This argument is made from the continuity of a people
and the continuity of its civilization. Legislation is not the
pronouncement of one man. It is the pronouncement of a people
in Savigny's sense. It expresses the ethical custom or rational-
ly developed morality of a people. Hence the surroundings of
the lawmaker cannot interpret a law as the surroundings of a
testator interpret a will. They can show the ends sought and
the principle of the solution, but they cannot fix the details of
the solution for all time. For example, to apply Kohler's propo-
sition to our bills of rights, the question should not be, what
99. 1 Kohler, Lehrbuch des biirgerlichen Rechts (1906) § 38.

[ 167 ]
Jurisprudence
would the framers of the bill of rights have thought of this

instance, but how does this instance now square with the end
they then had in view.100
(4) Perhaps the most important of Kohler's con-
tributions is his method of formulation of the jural postu-
lates of the civilization of the time and place. He teaches
that the civilization of a people for the time being involves
certain "jural postulates" (Rechtspostulate). That is,
certain principles of right are logically assumed by or ex-
pressed by a given civilization. It is the task of the jurist
to discover and to formulate these jural postulates of the
civilization of the time and place, and thereby to con-
struct a critique and set up ideals to which lawmaking
may conform and by which the materials of a legal sys-
tem may be developed and applied in juristic writing and
teaching and in judicial decision.1"1
Kohler's jural postulates are an attempt to give definite-
ness and clear outline to the picture of the legal order which is
so large an element in the actual development and application
100. In People ex rel. Rodgers v. Coler, 166 N.Y. 1, 14-17, 59 N.E. 716, 720-
721, 52 L.R.A. 814 (1909), O'Brien, J. says: "It was once a political maxim that
that government governs best which governs least. It is possible that we have
outgrown it, but it was an idea that was always present to the minds of the
men who framed the Constitution, and it is proper for courts to bear it in mind
when expounding that instrument." On this basis, among others, a statute re-
quiring contractors in municipal building contracts to pay the prevailing rate
of wages in the locality was held unconstitutional. Kohler would say the end
of the provision as to due process of law, looked at in reference to the condi-
tions of today and the statute in question, should be considered, not how the
statute of today would have appealed to the framers under their conditions in
the eighteenth century. See I Lehrbuch des biirgerlichen Rechts (1906) § 39.
101. Lehrbuch der Rechtsphilosophie (1 ed. 1909) 2. See post § 77, 2.
[ 168 ]
of legal precepts. Natural law and nineteenth-century philo-

sophical jurisprudence sought to do this by dogmatically lay-
ing down abstract schemes of universal law. If we reject these
universal schemes, something more definite than a conception
of maintaining and furthering civilization is needed for the
immediate purposes of jurisprudence and of legislation. Main-
taining and furthering of civilization may be made a measure
of valuing interests. It is too far from the everyday problems
of the law to be the immediate basis of a critique of legal doc-
trines and precepts. The judge must have a more detailed pic-
ture in his mind to guide him in finding rules of law, in inter-
preting them, and in applying them to the decision of causes. The
legislator must have a more detailed picture to guide him in
lawmaking. The jurist must have a clear picture whereby to
lay out the lines of creative as well as of ordering and systematiz-
ing activity. Each will have some such picture, and will be
governed by one, whether he is aware of it or not. Kohler pro-
poses to meet this need by formulating the jural postulates of
civilization. But he does not attempt to formulate the jural
postulates of all civilization. He seeks the jural postulates of
the civilization of the time and place. He seeks to formulate
the ideas of right and justice, the presupposed expectations as
to human relations and human conduct which that civilization
postulates, and then to shape the legal materials which have come
down to us so that they will express or give effect to those
102
ideas.
102. For a practical example, one might try the problem of the "good Sa-
maritan cases" (see Ames, Law and Morals, 1909) 22 Harvard Law Rev. 97,
111-113; Bohlen, The Moral Duty to Aid Others as a Basis of Tort Liability
(1908) 56 Univ. of Pa. Law Rev. 217, 316; Stammler, Lehre von dem richtigen
Rechte (1902) 489-490) by Jhering's method (i. e. by the ends of law), by Stamm-
ler's (i. e. social ideals), and by Kohler's (the jural postulates of the civiliza-
tion of the time and place). The latter is much more practically useful and
capable of assured application.
[ 169]
Jurisprudence
This is where things stood at the end of the first World

War-say in 1920. In the next two decades there was a ten-
dency to merge the types.
§ 17. RECENT NEO-IDEALISTS. 3 While

Stammler, in his later writings, and the main body of his
followers came to put the chief stress on logic and method,
others, who started from neo-Kantianism, have been ap-
proaching the problem of values in less formal fashion.
One type, following Rickert, has put the emphasis on
epistemology and so comes to antinomies. It gives up
the quest of values.' Another, following Eucken, stress-
es the teleological part of Kant's Critique of Practical
Judgment and has built on the Heidelberg school.' 5 It
looks to critique of our practical judgments of value, of
our judgments of moral worth, giving us a modified utili-
tarianism with ethics as a basis for law. Another, a
103. Pound, Fifty Years of Jurisprudence (1938) 51 Harvard Law Rev. 444,
454-463; Hocking, Present Status of the Philosophy of Law and of Rights
(1926); Tourtoulon, Principes philosophiques de 1'histoire du droit (1908, 1920)
-transl. by Read as Philosophy in the Development of Law in 13 Modern Le-
gal Philosophy Series-neo-Kantian psychological-logical; Mayer, Rechts-
philosophie (1922); Philosophie und Recht, ed. by Emge and Raab (2 vols.
1920, 1922); Miceli, Principii di filosofia del diritto (1914)-logical-psychologi-
.cal; Recasdns Siches, La filosofia del diritto in Germania (1928) 8 Rivista in-
ternazionale di filosofia del diritto, 1.
104. Ssawalski, Grundlegung der Rechtsphilosophie im wissenschaftlichen
Idealismus (1908); Haensel, Kants Lehre vor Widerstandsrecht, in Kant-
studien (1924); Lisser, Der Begriff des Rechts bei Kant, in Kantstudien (1924).
105. Lask, Rechtsphilosophie (1905); MUnch, Kultur und Recht (1918);
Radbruch, Grundziige der Rechtsphilosophie (1914, 3 ed. as Rechtsphilosophie,
1932); Radbruch, Einfiihrung in die Rechtswissenschaft (1916, 8 ed. 1926);
]Bauch, Das Rechtsproblem in der Kantischen Philosophie (1918).
[ 170]
group of Austrian jurists, has sought a conception of

objective value to be reached by logic. 106 Another has
moved toward neo-Hegelianism." ' On the whole, a logi-
cal, psychological, relativist idealism has resulted. It
may well be called a neo-idealism. Two of those who
have been writing in this direction require particular
notice.
Gustav Radbruch's philosophy of law is based on a
neo-Kantian philosophy of values.' He holds that values
and reality are opposed. Hence the social sciences, and
therefore the science of law, relate facts to values by seek-
ing to understand the connection of the one with the other
and so interpreting the facts. Law is a fact related to a
value and the philosopher of law studies law with respect
to the values to which it is related. If I understand this
aright, it is illustrated by such cases as Rose v. Socony-
Vacuum Corporation, 54 R.I. 411 (1934), where an oil
refinery maintained storage tanks for petroleum prod-
ucts. In spite of all reasonable care the soil became im-
106. Kaufmann, Logik und Rechtswissenschaft (1922); Kaufmann, Kant

und die reine Rechtslehre, in Kantstudien (1924); Kaufmann, Die Kriterien
des Rechts (1924); A. Merkl, Die Lehre von der Rechtskraft (1923); Verdross,
Die Einheit des rechtlichen Weltbildes auf Grundlage der Vblkerrechtsverfas-
sung (1923); Verdross, Le fondement du droit international (1927).
107. Binder, Philosophie des Rechts (1925); Binder, Grundlegung zur
Rechtsphilosophie (1935); Binder, System der Rechtsphilosophie (2 ed. 1937).
See Friedmann, Legal Theory (2 ed. 1947) 99.
108. For exposition and critique of Radbruch, see Gurvitch, Une philosophie
antinomique du droit-Gustav Radbruch (1932) Archives de philosophie du
droit, 530; Chroust, The Philosophy of Law of Gustav Radbruch (1944) 53
Philosophical Rev. 23; Friedmann, Legal Theory (2 ed. 1947) 112-116.
[171]
Jurisprudence
pregnated with waste products which by percolation

were carried under ground to plaintiff's land and poi-
,soned his well water and the water of a small stream on
his land, so that he could not use the well and his pigs and
poultry were killed. In some states, pollution of a run-
ning stream of itself gave a cause of action. In others,
liability was made dependent on negligence. In others,
where something likely to get out of hand and do damage
was maintained on land, the land owner was held bound
to restrain it at his peril. Here the question is one of
values as between agricultural and industrial activities.
The values of a rural agricultural society and those of an
industrial society cannot be wholly reconciled. If the law
cannot make an adjustment it must make a choice. Phil-
osophy of law should be governed, as Radbruch sees it,
by two principles: the impossibility of reducing the
world of values to the world of reality, and the relativity
of all judgments of value. Such judgments cannot be
proved and verified and so are valid only in the scheme
of some determined system whose criterion of the highest
value is not demonstrable. Law is an attempt to realize
justice. But, differing in this respect from Stammler,
he considers that the purpose cannot be achieved. None
the less, law must attempt it and is not law (i.e., Recht,
right and law) except as it makes the attempt more or
less effectively. Nor can justice be reduced to the moral
ideal, since the two have different objects. Justice has
to do with the relations between men; the moral ideal
[172]
with men themselves. Justice looks to an ideal social or-

der; the moral ideal to an ideal man. Law is the sum
of the general rules for the common life of man which
themselves point out the source of their obligatory force.
One might ask, how point out? By reason, by appeal to
conscience, or by the imperative of organized society?
Apparently it is the latter.
Radbruch's theory of the relation between law and morals
must be left till that subject is taken up. Also his theory of the
end of law must be taken up in another connection. His sec-
tion on "the antinomies of justice" is of special importance.
There are three elements to be considered, namely, justice, the
end of law, and security. Each of these demands the others and
yet they contradict each other. It is futile to seek to suppress
this antinomy and to seek to choose one of these elements to the
neglect of the others. The true method, as he sees it, is to recog-
nize these antinomies and preserve them in a view of the whole.109
Thus in the law of torts we have to adjust the social interest in
the individual life and the social interest in the general security.
Neither a theory of culpability as the basis of liability nor one
of liability without regard to fault can be carried out to its
logical limits. The advocates of the police state, he tells us,
would have sacrificed the principles of justice and security to
the principle of end. The jurists of the seventeenth and eight-
eenth-century school of natural law sought to deduce the whole
content of law as well as the binding force of law from justice.
Nineteenth-century positivism looked only to security and so for
a time arrested the development of philosophy of law and brought
it into disrepute. He conceives that the most that can be done
is to point out that consideration of justice has to do with the
109. Radbruch, Rechtsphilosophie (3 ed. 1932) § 9.

[173]
Jurisprudence
formal notion of law; consideration of end with measuring the

value of the content of law; and consideration of security with
problems of the validity, i. e. the binding force, of law. He has
no difficulty in pointing out series of legal precepts dictated pre-
ponderantly by each of these principles. If we think only in
terms of justice we say no liability without fault. If we think
only of the end-say, a harmonizing of interests-we may
reach such compromises as the last clear chance doctrine. If
we think only of security we adopt and develop the doctrine of
Rylands v. Fletcher. Perhaps the most significant point is that
there is only a preponderant dictation. There is not a com-
plete dictation by any one of them. 110
As he puts them, three theories as to the binding force of

law are: (1) that law has binding force only when commanded
by a force imposing itself on all other forces (Austin), (2)
that its obligatory force is based upon consent (the political
theory), and (3) that law may be deduced directly from justice
and owes its binding force thereto (the natural law theory).
Radbruch calls these respectively the judicial theory, the soci-
ological theory, and the philosophical theory. He holds that
neither can give a satisfactory answer. He believes we must
come to the conclusion that all three have a relative value, and
that a legal philosopher, conscious of his limitations, can do no
more than recognize an irreducible antinomy. All that one can
say about the problem of the basis of the law's authority is that
the law has binding force not because it is susceptible of mak-
ing itself obeyed, but because it is only under this condition that
it can guarantee security.""'
Radbruch conceives of philosophical jurisprudence as in-

volving, besides philosophy of law, philosophy of legal history,
110. Id. 73.

III. Id. 74-75, also § 10.
[ 174 ]
religious philosophy of law, psychology of law, aesthetics of

law, and the "logic of juridical science." 112
Psychology of law, he tells us (and it is interesting to com-

pare this view with that of American psychological determinism)
studies the way in which men maintain significant legal values
(i. e. values of Recht-right and law). The antinomy in the
very idea of law is reflected in two types of mentality which are
always in conflict. One type puts the stress on justice (i. e. the
ideal relation among men) and has one eye to progress, if not
to revolution. The other type puts the stress on security and be-
comes conservative. Psychology of law has to do also with
another conflict, namely, between legal thinking and moral
thinking. The mentality which puts the stress on justice is
concrete and individualized and so is moral in its thinking.
The mentality which puts the stress on security is characterized
by abstraction and generality. It is not common to find a
1 13
harmonious development of a legal mentality.
As to "aesthetics of law," Radbruch speaks of regard for
the just measure, feeling for "elegant" solutions and "juristic
irony." One might think also of the joy which the medieval
English lawyer took in such propositions as that "a use could
not be raised upon a use", or as to the particular estate that
would hold up a contingent remainder, satisfying a feeling for
a solid legal edifice. The late Professor Redlich used to speak
of elaborate theorizings on the basis of the Austrian code as
"juristic lace making." Likewise one might think of the beauti-
ful constructions of systematic legal architecture which have
not been uncommon and of the demand of jurists for "symmetry"
112. Id. §§ 10-15.

113. Id. § 13.
[175)
Jurisprudence
in legal doctrine as an end in itself. 114 There are things to be

considered in this connection.
His last item, study of the method of the science of positive
law, is of more importance. This science, as Radbruch con-
ceives it, has three characteristics: (1) It has to do with the
law as it is, not as it ought to be nor as it tends to be; (2) it
has to do with norms and rules, not with the intrinsic reality
of the law; (3) it has to do with objective signifyings of that
reality because those signifyings are norms and imperatives.
It is a civilization science (Kulturwissenschaft), distinct from
legal history, from comparative law, and from sociology of law,
which together are regarded as making up the social theory of
law and all belong to the science of civilization. 115 This is in
accord with the extreme logical methodology, under neo-Kantian
influence, which has been so general in the last two decades, and
the tendency to the analytical view of "what is" in law as some-
thing completely given which may be set over against "what
ought to be" and "what tends to be." One has only to compare
what judges and jurists taught and wrote on such subjects as
"abusive exercise of rights," or the "right of privacy," or
equitable protection of personality, fifty years ago, and what
114. Thus Blackstone objects to a proposition as to descent laid down in a

sixteenth-century case and approved by Bacon and by Hale "because the po-
sition itself destroys the otherwise entire and regular symmetry of our legal
course of descents." 2 Commentaries (1766) 239. See the discussion of "sym-
metry" in the Tables of Descents in Osgoode, Remarks on the Laws of De-
scent (1779) 19 et seq.; Osgoode, Remarks on the Inconsistency of the Table
of Descents (1897) 5. Also in speaking of the Married Women's Property Acts,
Miller says: "The husband is deprived of all control of his wife's property, but
strange to say, while he is bound to maintain his wife and children, no cor-
responding obligation is laid upon her. Without this provision the law is quite
unjust, and at the same time the symmetry of the rights in the respective es-
tates of the spouses is marred." (Italics mine.) Miller, Lectures on the Phil-
osophy of Law (1881) 173. See also Radin, Eleganter (1930) 46 Law Quart.
Rev. 311.
115. Id. § 14.
[176 ]
they think and write and the courts decide today, in order to
see how impossible it is, in considering the positive law, to
leave out wholly "what ought to be" or "what tends to be" in
any accurate account of "what is."
Julius Binder began as a neo-Kantian." 6 But the

development of his thinking has been toward neo-Hegeli-
anism."' For him, the idea right-and-law is the "tran-
scendental norm." " He measures its obligatory force
precisely as he does that of the norms of morals and of
aesthetics. He holds that civilization is "an actuality
formed in the freedom of reason according to laws of
freedom." The foundations of law must be laid in abso-
lute idealism in Hegel's sense. Indeed, he speaks of an
"objective idealism" in contrast to the neo-Kantian "sub-
jective" or ethical idealism. '"
Binder's most useful achievement from the standpoint of
philosophical jurisprudence is in reconciling personality values
and collective values by the idea of civilization values.120 Indi-
vidual free self-assertion and spontaneous individual initiative,
on the one hand, and collective effort and regimented cooperation,
on the other hand, are equally agencies of maintaining, further-
ing and transmitting civilization. The balance is found and
116. Rechtsbegriff und Rechtsidee (1915); Ueber kritische und metaphy-

sische Rechtsphilosophie (1916) 9 Archy fiir Rechts- und Wirtschaftsphiloso-
phie, 142.
117. Philosophie des Rechts (1925); System der Rechtsphilosophie (2 ed.
1937).
118. Philosophie des Rechts (1925) § 7.
119. Id. §3.
120. Id. §8.
Jurisprudence
they are unified in the idea of civilization. This must be con-

sidered in another connection. In the second edition of his chief
work he contrasts individualism with "universalism" and modi-
fies what he had expounded in 1925. 1 It is not unlikely that
intervening political events have influenced the later view, and
the value of his exposition of transpersonalism in his first edition
will not be thought to have been permanently affected.
2
§ 18. THE REVIVAL OF NATURAL LAW.
After the codes, French science of law was for a time
wholly analytical. Natural law remained the orthodox
academic philosophy of law, but there was little need for
juristic creative activity and philosophy of law came to
have little more than a formal place." Gradually the
ideas of metaphysical jurisprudence affected the tradi-
tional natural law or replaced it. In the meantime, in
121. System der Rechtsphilosophie (2 ed. 1937) 146 ff.

122. Charmont, La renaissance du droit naturel (1910)-translated in part
in Modern French Legal Philosophy (7 Modern Legal Philosophy Series) §§ 43-
103, of which §§ 78-103 are important in the present connection; Haines, The
Revival of Natural Concepts (1930) chap. 10; Beudant, Le droit individuel et
l'6tat (1891, 3 ed. 1920); 2 Gfny, Science et technique en droit priv6 positif
(1914-1924) §§ 134-140, 177; Demogue, Notions fondamentales du droit privd
(1911) 21-22; Leroy, Le temps prfsent et l'idde du droit social (1932) Archives
de philosophie du droit et de sociologie juridique, 215-228; Gurvitch, Le temps
prdsent et l'idfe du droit social (1931); Jung, Das problem des natiirlichen
Rechts (1912); Mo6r, Das Problem des Naturrechts (1934, 1935) 28 Archly fir
Rechts und Sozial Philosophie, 325, 543; Goldschmidt, Die heutigen Strmun-
gen in der Rechtswissenschaft (1936) 10 Revue internationale de Ia thdorie du
droit, 300, 302.
123. See the account of the decadence of the philosophy of law in nine-
teenth-century France in the preface to 1 Boistel, Cours de philosophie du droit
(1899) iii-xiv. See also the apologetic prefaces to Courcelle-Seneuil, Prdpara-
tion A l'Lstude du droit (1887); Beaussire, Les principes du droit (1888); Vareil-
les-Sommires, Les principes fondamentaux du droit (1889).
[178]
France, as elsewhere, the historical school became domi-

nant and philosophical jurisprudence either disappeared
or was pressed into the service of historical jurispru-
dence. At the beginning of the present century there was
a revival of philosophy of law in France and social-Philo-
sophical jurisprudence came to take an important place
in the science of law. This movement has been called the
24
revival of natural law.
There was not a revival of eighteenth-century natural law
nor a continuing of nineteenth-century metaphysical jurispru-
dence. There was a coming together of the French historical
jurists and the French metaphysical jurists under the influence
of sociology and neo-Kantian philosophy. The immediate im-
petus came largely from a paper published in 1902 by the then
leader of the historical school in France, Professor Raymond
Saleilles of Paris (d. 1912), who set Stammler's earlier views
(Wirtschaft und Recht, 1895) before French readers. 115 The
movement to bring law into accord with life which began with
Jhering, the vigorous development of the social sciences in
France, and a resulting agitation for greater flexibility in the
application of legal precepts,' 2 6 accelerated a new development of
124. Charmont (La renaissance du droit nature], 128) puts the beginning
of the movement as far back as 1891, the date of Beudant, Le droit individuel
et l'tat. But it is hard to see a forerunner in that vigorous and well written
assertion of the individualist view as to the state. Written at a time which
called for political idealism, its main purpose was to vindicate the individual
against the state, which it sought to do by going back to the Declaration of the
Rights of Man, reasserting the political theory of natural law, and founding
law upon reason.
125. Saleilles, I~cole historique et droit naturel d'apr~s quelques ouvrages
rdcents (1902) 1 Revue trimestrielle de droit civil, 80.
126. The leader of this movement, which had a strong following in the first
decade of the present century and an important bearing upon recent juristic
[ 179 ]
Jurisprudence
philosophical jurisprudence. As a result, there was not so

much a revived natural law as a new natural law.
Charmont put it thus: "The idea of natural law, then, is
conceived differently than it was formerly. It rests upon a
different basis. At the same time, it undergoes certain trans-
formations. It is reconciled with the idea of evolution [neo-
Hegelian and historical] and with the idea of utility [the in-
fluence of Jhering's social-utilitarianism]. It loses its absolute
and immovable character. It has only a variable content [neo-
Kantian]. It takes account of the interdependence of the in-
dividual and of the whole [positivist]. It tends also to reconcile
the individual conscience and the law instead of putting them in
opposition. In so transforming, juridical idealism is not weak-
ened. On the contrary, it is strengthened and broadened." 127
Revived natural law in France has taken three
forms: (1) an adaptation and broadening of the neo-
Kantian juridical idealism,us (2) a neo-Scholastic philos-
ophy of law, i.e. a social philosophy of law on the basis of
thought on the Continent, was G6ny, Mi1thode d'interprdtation et sources en

droit privd positif (1899).
127. Le renaissance du droit naturel (1910) 217-218.
128. Demogue, Les notions fondamentales du droit privd (1911); Djuvara
(professor at Bucharest) has written much of importance, proceeding from a
neo-Kantian theory of knowledge along teleological-psychological but also
sociological lines. Much of his writing has been in Roumanian. For the rest,
one may refer to: Le fondement du phdnom~ne juridique (1913); Considera-
zioni sul metodo induttivo nella scienza giuridica (1931) 11 Rivista internazion-
ale di filosofia del diritto, 569; La thdorie de la cause A la lumiIre de la th&
orie du droit (1932) 6 Revue internationale de la thdorie du droit, 91; Sources
et normes du droit positif (1934) 1 Annuaire de l'institut international de phil-
osophie du droit et de sociologie juridique, 82; Rdflexions sur le problfme de la
souverainetd et sur la realit, juridique de l'dtat (1935); Relativita e diritto
(1935) 15 Rivista internazionale di filosofia del diritto, 309; La rdalitd, la veritd,
et le droit (1936) 2 Annuaire de l'institut international de philosophie du droit
et de sociologie juridique, 82.
[ 180]
Thomas Aquinas, and (3) a positivist sociological natural

law philosophically closely akin to the mechanical so-
ciology. The leader in the second type was Frangois G~ny
(1861-1944) professor at Nancy. 9 In the third type
the leader was L6on Duguit (1859-1928) professor at
Bordeaux.
In the English-speaking world, G6ny is known for
the most part for his great work on interpretation.13
But his chief work for philosophical jurisprudence is
Science et technique en droitprivg positif."3 I In this book
he brings out the importance of the technique element in

law (using "law" in the sense of the authoritative
grounds of and guides to decision) and of its operation
in the judicial process. In addition, he gives an elaborate
critique of the classical natural law, of the nineteenth-
century metaphysical jurisprudence, of social-utilitari-
anism, of neo-Kantianism 32 of neo-Hegelianism, and of
the later theories of natural law, and addresses himself
129. On Gdny see Wortley, Frangois G6ny, in Modern Theories of Law

(1933) 139-159; Jones, Modern Discussions of the Aims and Methods of Le-
gal Science (1931) 47 Law Quart.Rev. 62, 67-73; Saleilles, preface to G~ny,
Mfthode d'interprdtation et sources en droit priv6 positif (1 ed. 1899) i-xiii;
Dabin, La philosophie de l'ordre juridique (1929) 254-397.
130. Mfthode d'interprftation et sources en droit privd positif (1899, 2 ed.
in two volumes, 1919). Pages 155-159 and 169-176 of the first edition are
translated as chap. I in 9 The Modern Legal Philosophy Series (1917) (Science
of Legal Method).
131. In four volumes: Vol. I, 1913; vol. II, 1915; vol. III, 1921; vol. IV,
1924.
132. Translated in appendix I to Stammler, Theory of Justice (transl. by
Husik, in 8 Modern Legal Philosophy Series, 1917).
[ 181 ]
Jurisprudence
specially to the problem of values from a neo-Scholastic

standpoint. In his Mgthode d'interpr~tation,G~ny had
no more than incidentally raised the question as to values
and made some suggestions as to a measure. In his later
work he recognizes this and admits that his first sugges-
tions were "vague, incomplete, equivocal, sometimes con-
tradictory." 133 He then proceeds to work out a neo-Scho-
lastic theory, subjecting social life, that is, the life of the
individual man as a moral entity in society, regarded as
a moral phenomenon, to the scrutiny of reason in order
to discover certain precepts which may be used to estab-
lish norms (i.e. patterns or models) for lawmaking, law
finding, and the application of law."' One might say,
in Stammler's phrase, that they are to give us the social
ideal of the time and place, or in Kohler's, that they are
to give us the jural postulates of the time and place.
Why does he call this a neo-Scholasticism? Scholasticism
was a method of formal logical development of authoritative
texts. It postulated twofold truth: revealed truth, that is, re-
vealed in the Scriptures as interpreted in the writings of the
Fathers and authoritative pronouncements of the church, and
discovered truth, that is, truth discoverable by reason scrutiniz-
ing the universe. In the subjects of the social sciences this
would mean scrutinizing human life. Hence G~ny insists on
13 5
society as a prime fact in any theory of values.
133. 1 Science et technique en droit privd positif (1915) 9-11.
134. Id. II, § 117.

135. Id. II, 18. See also id. I, 43-45.
[ 182 ]
Thomas Aquinas sought the "ought" which reason ad-

dresses to a reasonable creature. That is, he went on the in-
dividual as a moral entity. G6ny goes on social life as a moral
phenomenon. It is something given us as a fundamental truth
which may be developed logically into its consequences. On this
revived scholastic basis he calls for recognition of that element
in law which consists in traditional views as to the end of law
and traditional pictures of the legal and social order, and seeks
to give us a firmer grasp of it. His definition of law is essential-
ly a formula of positive law as declaratory of natural law. 13
In his third volume, G6ny treats of the technique

of positive law. He conceives that free scientific research
yields given starting points for juristic and judicial con-
struction. These starting points (donngs) are fundamen-
tal. But a technique of construction is required in order
to build upon them." 7 The technique represents form as
contrasted with content and is largely an artificial con-
struction of the donn6. While the finding of the donn6
is a matter of intelligence, the technique is a matter of
will, i.e. of choice, "guided solely by the predetermined
ends of the legal order, which suggest the means for their
own realization." 138 This recognition of the process of
finding starting points for legal reasoning, of choice from
among competing starting points, by a technique in the
light of received ideals, is a contribution of the first im-
portance.
136. Id. I, 51.

137. Id. III, chap. 1.
138. Id. III, 20, 23.
[183]
Jurisprudence
For the rest, in this volume he surveys the whole field of

legal technique, from fictions to legislation, in view of certain
general principles. His principles require: (1) wide scope of
applicability and fertility of results; (2) perfect adaptability, so
that facts will not have to be forced into molds; (3) certainty
of applicability; and (4) certain less needful but desirable fea-
tures, namely, ease of use, speedy operation, and cheapness of
operation. The fourth volume seeks to achieve a synthesis of the
scientific and the technical working out of the positive law.
G6ny's Science et technique has not been appreciated as it
deserves to be in the English-speaking world. It deals with a
fundamental problem of jurisprudence and treats in an original
and suggestive way of two of the three elements of which law
(in the sense of the body of authoritative grounds of and guides
to decision) is made up. His style is complex and somewhat
laborious, and he devoted many pages to patient, critical ex-
amination of every theory that might compete with his. Hence,
he is by no means as readable as Duguit, who writes in a simple
style and is apt to slash his way through his critics and rivals
in a fashion sometimes more entertaining than ultimately satis-
fying. Of the two, G6ny may in the end be rated the higher in
respect of permanent contribution to the science of law.
It is natural to compare Duguit '.. with his contem-

porary, G6ny. The latter confined himself strictly to pri-
139. L'dtat, le droit objectif, et la loi positive (1901); Le droit social, le

droit individuel, et la transformation de l'6tat (2 ed. 1911); Les transforma-
tions gfnerales du droit privd depuis le Code Napoleon (1912) (transl. (1918) in
The Continental Legal History Series, vol. XI, Progress of Continental Law in
the Nineteenth Century, chap. 3); Les transformations du droit public (1918)
(transl. by Laski as Law in the Modern State (1919)); Law and the State
(1917) (transl. by De Sloovore also in (1917) 31 Harvard Law Rev. 1); Objective
Law (1920) 20 Columbia Law Rev. 817, (1921) 21 id. 17, 126, 242. These articles
are not easy to understand because the translator rendered droit objectif (law)
as "objective law" and droit subjectif (a right) as "subjective law."
[ 1841]
vate law. Duguit's primary field was one branch of pub-

lic law, namely, French constitutional law. But he does
not hesitate to carry his ideas over into the rest of the law
and to seek to put all problems of the legal order into his
scheme made for his specialty. He is much bolder in his
ideas than Gny. The latter starts with the forms of the
law, the authoritative materials in which judges and ad-
ministrative officials are to find the grounds of decision
and determination, as they are. Duguit would overhaul
the whole content of law as well as re-settle its basis.
Both of them, in common with all Continental jurists of
For appreciations and critiques of Duguit see Laski, Introduction to Duguit,

Law in the Modern State (1919) ix-xxxiv; Laski, M. Duguit's Conception of
the State, in Modern Theories of Law (1933) 52-68; Stone, Book Review of
Durkheim, On the Division of Labor in Society (1934) (transl. by Simpson,
1933) 47 Harvard Law Rev. 1448; 2 Gfny, Science et technique en droit priv6
positif (1934) 190-272; Allen, Law in the Making (1927) 336-348 (2 ed. (1930)
351-362); Spencer, Editorial preface to Modern French Legal Philosophy in 7
The Modern Legal Philosophy Series (1916) xliv-xlvii; Bonnard, Lon Duguit,
ses oeuvres sa doctrine (1929); 1 Bonnecase, La pensde juridique frangaise
(1933) 348-588, 2 id. 225-261; Bonnard, Les iddes de L. Duguit sur les valeurs
sociales in (1932) Archives de philosophie du droit et de sociologie juridique,
1; Rglade, Th~orie g~n,6rale du droit dans l'oeuvre de Ldon Duguit, id. 21;
Politis, L'influence de la doctrine de L. Duguit sur le ddveloppement du droit
international, id. 69; Joze, L'influence de L. Duguit sur le droit administratif
frangais, id. 135; Morin, L'oeuvre de Duguit et le droit privd, id. 153; Mestre,
Remarques sur la notion de propri6td d'aprgs Duguit, id. 163; Le Fur, Le fon-
dement de droit dans la doctrine de L. Duguit, id. 175; Ionescu, Lon Duguit et
le droit subjectif, id. 269; Stone, The Province and Function of Law (1946) 347-
348, 473-475, 658-659; Friedmann, Legal Theory (2 ed. 1947) 157-164.
Comparisons of Duguit and Kelsen: Bonnard, La doctrine de Duguit sur le
droit et l'6tat, I Revenue internationale de la thdorie du droit, 18; Kunz, Die
Rechts- und Staatslehre LUon Duguits, id. 140, 204; Davy, Le probl~me de
l'obligation chez Duguit et chez Kelsen (1933) Archives de philosophie du droit
et de sociologie juridique, 7; Scheuner, Dynamik und Statik in der Staat-
rechtslehre, eine Untersuchung zur Staats und Rechtstheorie LUon Duguits und
Hans Kelsens (1929) 3 Revue internationale de la thdorie du droit, 220.
[ 185 ]
Jurisprudence
this century, are concerned with a theory of values.

Each sees that the nineteenth-century theory of the judi-
cial process left out a decisive element in that process,
and so each is claimed by recent realists. But G~ny's
search for an ideal measure by way of a neo-scholastic
rational scrutiny of social life, is quite foreign to "real-
ist" method. The epithet is much more applicable to Du-
guit's positivism. Both, however, set up a higher law,
while recent skeptical realism would recognize no more
than items of judicial or administrative behavior.
Duguit took the foundation of his juristic thought
from Durkheim.140 He might almost be said to have used
the law to illustrate Durkheim from the juristic side.
But this takes him back to Comte; and the positivist fa-
talism of the older mechanical sociology was congenial
to his hard-headed rejection of eighteenth-century natu-
ral rights and nineteenth-century metaphysical systems
of rights. At the same time he was much struck by Jher-
ing's social utilitarianism,"' which has a strong affinity
for positivism. While, however, there was this affinity,
the two elements in Duguit's thought which resulted were
at bottom discordant and result in a certain lack of clar-
ity or even in confusion at more than one point."
140. This is well brought out by Stone in his review of the translation of
Durkheim's Division of Labor in Society (1934) 47 Harvard Law Rev. 1448.
141. L'Vdtat, le droit objectif, et la loi positive (1901) 9, 17-18, 28-29, 40 n.
142. G~ny has noted the contradiction in Duguit's thought, 2 Science et
technique en droit priv6 positif (1915) 251. Duguit himself felt something of
this. L'Idtat, le droit objectif, et la loi positive (1901) 17.
[186 ]
What makes Duguit's system one of natural law is that he

conceives of everything in law as deriving its validity from and
to be judged by a fundamental precept of right and law (r~gle
de droit). Following Comte, he would arrive at it by observa-
tion and verify it by further observation. But G6ny very just-
ly observes that although the r~gle de droit (the precept to fur-
ther social interdependence) is supposed, as Duguit in many
places vehemently insists, to be derived by observation of a
verified fact of social interdependence, in truth it comes in by
an unconscious metaphysics and is given a content of the social
143
interdependence from which it is supposed to be derived.
As Duguit sees it, all metaphysical, analytical, and eight-
eenth-century natural-law thinking must be rejected. It is
out of touch with observed and verified phenomena. Also ob-
servation of the phenomena shows that there are no such things
as rights, much less natural rights, or sovereigns or subjects.
Observation shows, too, that there is no such thing as the dis-
tinction between public law and private law. All such things
must be given up. 44 We must start anew from the observed
and verified fact of social interdependence through similarity
of needs and diversity of functions, or, as it has become in the
society of today, similarity of interest and division of labor.
From this comes the principle of right-and-law binding all mem-
bers of a society to act so as to further this social interdependence
and not to do anything that impairs it. There are duties. There
145
are no rights.
143. 2 Science et technique en droit privd positif (1915) 248. See Duguit,
L'dtat le droit objectif, et la loi positive (1001) 18-19.
144. L'6tat le droit objectif, et la loi positive (1901) chaps. 4, 5; Le droit
social, le droit individuel, et la transformation de l'dtat (2 ed. 1911) lect. II.
145. "In what, then, does this notion of social function consist? It comes to
this: The individual man has no rights, nor has the collectivity rights. To
speak of the rights of the individual and of the rights of society, to say that
[187 ]
Jurisprudence
In Duguit's view, legislation is an act of those who wield

governmental power. The activity of these individuals, like all
other human activity, is, as he sees it, subject to the rule or
principle of right-and-law and hence, as one would expect in a
system of natural law, a legislatively enacted precept, although
it may conform to the constitution, is not binding (whether in
natural law, positive law or morals is not clear) unless it tends
to further (rather than to impair or hinder) social interde-
pendence. He insists that a realist view of society shows us not,
as the nineteenth century thought, individual men endowed with
rights and burdened with duties living among others likewise so
endowed and burdened, but a society of men protected by that
society so far as they perform their allotted function therein,
and restrained so far as their actions impede that function.
Law is "much less the work of the lawmaker than the constant
and spontaneous product of the facts." 146 Hence liberty is not
"the power of doing everything that does not injure another." 147
It is a consequence, the obligation which the rule or principle
of right-and-law imposes on everyone, namely, to develop his
individuality as completely as possible in order to cooperate as
effectively as possible toward social interdependence. 14
we must reconcile the rights of the individual with those of the collectivity,
is to speak of things which do not exist. But every individual has a certain
function to perform in society, a certain task to carry out. He cannot be al-
lowed not to perform this function, he cannot be allowed not to carry out this
task, because a derangement or at least a prejudice to society would result
from his refraining. Moreover, every act which he does, contrary to the func-
tion which devolves upon him, will be socially repressed. But conversely,
everything which he does to accomplish the mission which is his because of
the place he occupies in society will be socially protected and guaranteed."
Les transformations gfndrales du droit priv§ depuis le Code Napoldon (1912) 24.
146. Id. 13.
147. French Civil Code, art. 6.

148. Les transformations gdndrales du droit privfi depuis le Code Napoleon
(1912) 25.
[188]
Perhaps his most curious suggestion, amounting almost to

suggesting a positive natural law, is that there should be a
tribunal composed of representatives of all social classes to
"judge of the legality of the law"-i. e. not whether it con-
forms to the constitution, but whether it conforms to the natural-
law requirement of promoting social interdependence. 149 Through
the pronouncements of such a tribunal we might get some au-
thoritative pronouncements on natural law. But suppose it
were to hold the ultimate rule or principle of right and law it-
self to be naturally illegal?
Duguit turns the fact of social interdependence into a duty
of promoting social interdependence by an appeal to "the belief
profoundly penetrating the mass of mankind at a given time and
in a given country that such and such a rule is imperative and
that such and such a change must be brought about." 150 This is
taken to be an observed and verified fact. But how does this
fact, any more than the fact of social interdependence, create
the moral-legal duty which is the basis of his system?
Duguit's ideal picture of the legal and social order is an
idealization of a modern industrial city and the country de-
pendent upon it, in which everything turns, or at least was in the
last generation thought to turn, upon efficient production in
the greatest possible quantity.
There has been a somewhat rapid spread of natural

law in one form or another in different countries since
1920.151
149. Le droit social, le droit individuel, et la transformation de l'dtat (2 ed.

1911) 58.
150. Les transformations du droit public (1913) 45. This is characteristical-
ly positivist. Spencer often demonstrates propositions in this way.
151. In Germany: In public law: Mattern, Principles of the Constitutional
Jurisprudence of the German National Republic (1928) 614-635; Anschutz und
[ 189 ]
Jurisprudence
At first sight, as one looks over the current litera-

ture of philosophical jurisprudence, there seems, in con-
trast to the unity and simplicity of the philosophical ju-
risprudence of fifty years ago, a welter of divergent
views, not always clearly defined. There seems to be a
tendency to look at discontinuity rather than at continui-
ty; a tendency to emphasize the particular rather than
the universal, the complex rather than the simple. But
behind these there is a marked tendency toward a synthe-
sis of the philosophical approaches, to be compared with
Thoma, 2 Handbuch des deutschen Staatsrechts (1932) 137-159; Jellinek,

Grenzen des Verfassungsgesetzgebung (1931); Leibholz, Les tendences actuelles
du droit public en Allemagne (1931) Archives de philosophie du droit et de
sociologie juridique, 207-224; Mainzer, Gleichheit vor dem Gesetz, Gerechtig-
keit und Recht (1929); 1 Hdlscher, Sittliche Rechtslehre (1928) 287-300. See
the letter of the German judges to the Government in 1924, Juristische Wochen-
schrift (1924) 90.
In private law: Hedemann, Die Flucht in Generalklausen (1933); 1 1161-
scher, Sittliche Rechtslehre (1928) §§ 25-33; Marschall von Bieberstein, Vom
Kampf des Rechts gegen die Gesetze (1927) 1-21; Darmstaedter, Rechtsstaat
oder Machtstaat (1932) 25 Archly fiir Rechts- und Wirtschaftsphilosophie, bei-
heft no. 26. See also the commentaries on §§ 242, 826 of the German Civil
Code.
In Italy: Perticone, Die italienische Rechtsphilosophie im letzten Vierteljahr-
hundert (1930) 23 Archiv flir Rechts- und Wirtschaftsphilosophie, 275; Carlo,
I1 diritto naturale nell' attuale fase del pensiero italiano (1932).
In Spain: Mendizdbal y Martin, El indestructibile derecho natural in II
Studi filosofico-giuridici dedicati a Giorgio Del Vecchio (1930-1931) 92. See al-
so Mendizdbal y Martin, Tratado de derecho natural (7 ed. revised by Men-
dizrbal Villalba in 3 vols. 1928-1931).
See also for America, the ethical-rationalist natural law of Morris R. Cohen,
in Law and Reason, bk. 3. of Law and the Social Order (1933) 165-247 (a re-
print of papers published in 1914, 1915, 1916, 1927, 1932). His critique of nine-
teenth-century and current philosophical jurisprudence in the United States, A
Critical Sketch of Legal Philosophy in America, in 2 Law: A Century of Prog-
ress, 1835-1935 (New York University Law School Centennial Publication, 1937)
266, deserves particular notice.
[ 190]
the tendency toward unification of the social sciences.

Moreover, they all put the problem of values, of a crite-
rion for valuing interests, or claims, or expectations, in
the first place, as the fundamental problem of jurispru-
dence. In one way and another, too, they come to solu-
tions that tend to approach each other in effect, much
as they differ in appearance and in the method by which
they are reached. It seems not unlikely that we shall
find the philosophical jurists of the next generation as
well agreed upon the measure of values as were those
of the last century.1"
152. See Pound, How Far Are We Attaining a New Measure of Values in
Twentidth-Century Juristic Thought (1936) 42 West Virginia Law Quart. 81.
[191 ]
Chapter 5
Realist Schools
§ 19. Introductory Excursus-Interpretations of Legal History.

§ 20. The Economic Interpretations.
§ 21. Neo-Realism.

Capter 5
Realist Schools
{ NTRODUCTORY
Section 19
EXCURSUS - INTER-
PRETATIONS OF LEGAL HISTORY.1
One phase of the movement away from the
nineteenth-century schools near the end of
that century was the economic interpretation of legal
history and so, in the reign of historical jurisprudence,
economic interpretation of law. For a time this phase
did not seem to be developing a distinct school.' But
later, under the influence of positivist sociology, neo-
Kantian relativism, and above all of Freudian psychol-
ogy, it led to juristic realism, as it has been called, of a
number of forms. To understand the economic inter-
pretation, we must look into the subject of interpreta-
tion of history generally, and in particular we must look
into interpretation of legal history and interpretation of
jurisprudence, that is, of the phenomena of the science
of law as affected by interpretation of legal history.
I. Pound, Interpretations of Legal History (1923) lects. 2-5; Simkho-

vitch, Approaches to History (1929) 44 Political Science Quart. 481, (1930) 45
id. 481, (1932) 47 id. 410, (1933) 48 id. 23.
2. See Pound, The Scope and Purpose of Sociological Jurisprudence (1911)
25 Harvard Law Rev. 140, 166-168.
[ 195]
Jurisprudence
The economic interpretation is one phase in the develop-

ment of theories of history growing out of Hegel's
philosophy of history.
1. HISTORICAL INTERPRETATION. 3 As the law in action
depends on how and from what source we fill out the content of
abstract formulae and determine our choice of starting points
and our preference of this analogy to that as the basis of our
reasoning, so the writing of history depends on what concep-
tion governs our selection of facts as significant and rejection
of other facts as insignificant, and on what ideas shape our judg-
ment as between conflicting testimonies and lead us to give credit
to this and to reject that. The writing of history necessarily
involves some sort of interpretation, with reference to which the
story is told-some picture of the whole story into which the de-
tails are consciously or unconsciously fitted. Thus, Thucydides
has been called "Mythistoricus" because he conceived of the his-
tory of Athens in terms of a Greek tragedy and his narrative is
shaped and given color by his thinking of the rise, prosperity,
arrogance and fall of the Athenian empire as analogous to the
rise, prosperity, arrogance and fall of the hero of a tragedy. The
same psychological causes that bring down the hero are taken
3. See Seligman, The Economic Interpretation of History (2 ed. 1912);

Small, General Sociology (1905) 44-62; Shotwell, History of History (1921)
chap. 27; Barth, Die Philosophie der Geschichte als Soziologie (1897) 200-
346 (2 ed. 1915, 483-809, 3 and 4 ed. 1922, 511-856). For the religious inter-
pretation see Belloc, History of England (1925). For the geographical in-
terpretation see Semple, Influences of Geographic Environment (1911); Fe-
bure, A Geographical Introduction to History (transl. by Mountford and Pax-
ton, 1925, with full bibliography). For the ethnological interpretation see
Pittard, Race and History (transl. by Collum, 1926, with full bibliography);
Gumplowicz, Der Rassenhampf (1883). For the economic interpretation, see
Patten, The Development of English Thought, a Study in the Economic In-
terpretation of History (1899); Croce, Historical Materialism and the Eco-
nomics of Karl Marx (1914) chap. 2; Levi, Un' interpretazione del material-
ismo storico (1932) 22 Rivista filosofica, 185.
[ 196 ]
5. Realist Schools
to have brought down the empire. 4 But the idea of a philosophy

of history begins with Hegel.5
Hegel looked upon history as a process of gradual unfolding
of an idea. The writing of history was a telling of the story of
how the idea had made and was making itself real in human ex-
perience. The materials of history were the record of this un-
folding or realizing. This is called the idealistic interpretation.
(i) Idealistic interpretation. According to the way in
which the idea is conceived, or according to the idea which is
taken to be unfolding or realizing itself, we get different types
of idealistic interpretation.
(a) Ethical idealistic interpretation. Here the idea is

an ethical one, or the idea is looked at upon its ethical side. It
is considered that history records the progressive unfolding or
realizing of an idea of right. It is easy to see how eighteenth-
century philosophy led to this at the beginning of the nine-
teenth century.
(b) Politicalidealistic interpretation. Here the idea is

a political one. In a sense this interpretation goes back to
Aristotle. It finds the clue to human progress in a gradual but
definite movement from absolutism to freedom in political in-
stitutions. Political freedom is taken to be the idea which has
been realizing itself through the course of history. This inter-
pretation is closely related to the foregoing. It may be said that
the same idea, when looked at from the standpoint of ethics,
is an idea of the right and the just, and when looked at from
the standpoint of politics is an idea of freedom. From a political
standpoint freedom is the right or the just. The political in-
4. Cornford, Thucydides Mythistoricus (1907).

5. Vorlesungen fiber die Philosophie der Geschichte (1837). There is an
English transl. by Sibree (1881).
[ 197]
Jurisprudence
terpretation has been the favorite one in England and America.

Perhaps the classical example is Lord Acton's History of Liber-
ty.
(c) Religious interpretation. Here a religious idea is
the basis. History is taken to be the unfolding of a religious
idea. The clue to human progress and the determining influence
in human development is found in religion.
(ii) The individualistic interpretation. According to this
interpretation, all history is determined and human progress is
shaped by great men. History is a record of the achievements
or activities of great men. This was the usual interpretation be-
fore Hegel.
(iii) The physical interpretation. This interpretation

finds in physical environment the controlling factors in human
development and hence in history. It looks to external physical
causes, climate, food, soil, to explain social development. Vico
(1668-1744) and Montesquieu (1686-1755) were the pioneers
of this interpretation. It was worked out most fully by Buckle 6
7
and by Rdtzel.
(iv) The biological interpretation. This is closely re-
lated to the physical interpretation. In its application it is an
ethnological interpretation,and it is often called by that name.
It thinks of history as a record of race self-assertion and race
struggles-a story of the survival and hegemony of the fittest
races. Those who urge this interpretation often combine it with
the physical interpretation, but temper the latter by putting
more stress on the character and influence of races and the ef-
fects of race influence upon civilization.
6. History of Civilization in England (1857-1861).

7. Politische Geographie (1897, revised ed. 1903); Weltgeschichte (1899-
1907).
[198]
5. Realist Schools
(v) The civilization interpretation. The neo-Hegelians

find the clue to human progress in the development of civilization,
and find the agency of progress, the efficient cause of progress,
in the endeavor for increased civilization, i. e., for increased pow-
er over nature, both human nature and external nature for hu-
man ends.
(vi) The economic interpretation. According to this in-

terpretation, progress is an economic development, the causes of
historical phenomena are economic, economic institutions are
historical categories, and history must be regarded as the record
of economic development.
The economic interpretation had its origin just after the
middle of the nineteenth century when Marx applied Hegelian
philosophy to English political economy, the theories of French
historians of the French Revolution, and his own experience of
the proletarian movement. He gave shape to these materials by
an economic idea-an idea of satisfying human material wants.
Where Hegel saw freedom as an idea, Marx saw satisfaction of
material wants as an idea. On this basis Marx urged a new way
of understanding history. He formulated his theory of history
in 1859,8 but it attracted little notice for a generation. It be-
gan to be urged by economists about 1885 9 and sprang into full
bloom about 1890. It had great vogue in Continental Europe
in the last decade of the nineteenth century, when it came to be
applied to every form of history, and it got scarcely less vogue
in America in the decade from 1900 to 1910, the era of Theodore
Roosevelt's progressivism.10 In that decade it passed over into
American juristic thinking.
8. IV, V Zur Kritik der Politische Okonomie.

9. Loria, Le basi economiche della costituzione sociale (4 ed. 1913; first ed.
transl. by Keasbey as The Economic Foundation of Society, 1899).
10. Seligman, The Economic Interpretation of History (1907, 2 ed. 1912).
[199 ]
Jurisprudence
(vii) The unique series interpretation. This is in a sense

an attempt to write history without any interpretation. It is in
origin a reaction from the idealistic interpretations. It con-
ceives of history as a record of successive or contemporaneous
unique series of occurrences. As each series is unique, strictly
all the details of the past are equally significant and equally in-
significant, since the significance of events is not absolute but is
relative to some interpretation or to some purpose for which or
with reference to which the story is told. This conception of a
series of historical events as unique has done much service in
leading to more objectivity in the writing of history. But it is
questionable whether it is possible to tell the story exactly as
things happened in all their unique details or whether it would
be profitable to do so if it were possible. Selection and emphasis
will necessarily be governed by the purpose of the writer and his
consequent interpretation.
2. INTERPRETATION OF LEGAL HISTORY. Naturally

the different theories of history in general affected
theories of legal history and thus, at a time when
historical jurists were the leaders in the science of law,
came to affect jurisprudence. Growing out of and as
applications of the methods of interpreting history
generally, there are seven methods of interpreting
legal history, and hence of approaching the science of
law from the historical standpoint, which require con-
sideration. These are: (1) the ethical interpretation,
(2) the religious interpretation, (3) the political inter-
pretation, (4) the geographical interpretation, (5)
ethnological and biological interpretations, (6) the
civilization interpretation, and (7) the economic inter-
pretation.
[200]
5. Realist Schools
Before taking up the seven interpretations that have been

urged in juristic writing at one time or another, it should be
noted that two other interpretations of history might have been
applied to legal history, namely, the individualistic interpreta-
tion and the unique-series interpretation.
Applied to legal history, the individualistic interpretation

would give us a great-lawyer interpretation. No one has written
legal history from this standpoint. Lord Campbell suggested it
in a preface, 1 but his series of superficial and entertaining bi-
ographies are not legal history. Nineteenth-century jurists ig-
nored the effect of the personality of judges and lawgivers and
jurists upon the taught traditions which are the enduring ele-
ment in systems of law.3 In the nineteenth century, legal histo-
ry came to be written under the influence of Hegel and Savigny
and so in terms of ideas rather than of men. Lord Campbell's
instinct, based on long experience as a lawyer and judge, was
sound. Lawyers, judges and legislators are not merely the pas-
sive instruments of ideas. Great minds and masterful person-
alities will help explain many things in the history of law. The
personalities of Julian and Papinian in Roman law, of Bartolus,
Pothier, Savigny, and Jhering in the civil law, and of Henry II,
Coke, Mansfield, Marshall, Kent, and Story in our law are not to
be overlooked.
Popular attributing of all deficiencies in legal administra-
tion to bad men on the bench and at the bar is a crude form of
individualistic interpretation. Another form may be seen in
the stage of primitive law and again in the stage of equity and
I . Lives of the Lord Chancellors, preface to first ed. p. v (1845).

12. The Place of Judge Story in the Making of American Law (1914) 48
Am.L.Rev. 676; Interpretations of Legal History (1923) lect. 6. See Gray's
account of Story's personality as explaining the doctrine of Swift v. Tyson,
16 Pet.(U.S.) 1, 10 L.Ed. 865 Nature and Sources of the Law (2 ed. 1921) 253;
Frankfurter, Mr. Justice Brandeis (1932) 49-50.
[ 201 1
Jurisprudence
natural law in a tendency to attribute the laws of a people to

some one ancient lawgiver-to Minos, to Lycurgus, to Romulus,
to Numa, or to Alfred. 13 This is connected on the one hand with
a proneness of mankind to find a personality behind all phenome-
na, and on the other hand is perhaps a putting symbolically of
the sacredness or antiquity or authority of a legal tradition. But
the wise lawgiver who discovers the dictates of reason, formulates
them for his people, and enacts them in a code, is a common theme
of writers in the creative era of natural law.' 4 When, however,
in the nineteenth century, law was thought of in terms of his-
torical or political authority, as a closed system of rules mechan-
ically administered, a personal creative element in the origin or
operation of the system seemed inconsistent with the very idea
of a legal order.
As to the unique series interpretation, much of its spirit has
come into legal history and thence into the dogmatic treatment
of the law. For example, Holdsworth's History of English Law
is written partly to an idea of historical continuity, but partly
also to a feeling that the facts of the past of English law are all
equally significant and unconnected. Also in the dogmatic ex-
position of the law there is a tendency of late to take up every
legal precept by itself, as something to be expounded by itself
and explained on grounds applicable to itself only. There is a
tendency to reject wholly the idea of an interdependent system
of precepts. The truth in the analytical conception is in the
unifying force of an ideal of the end of law.
13. Plato, Laws, 630; Dionysius, Antiqq. 2, 9; Livy, 1, 19, 1; Cicero, De

rep. 5, 2, 3; 1 Blackstone, Commentaries, 64-65. Cf. Pomponius, in Dig. 1,
1, 2, §§ '6, 7, 47, saying that the Decemvirs invented fixed forms of actions,
that Sextus Aelius "composed additional forms" and that Labeo "undertook
to make a good many innovations."
14. 3 Blackstone, Commentaries, 349. Perhaps, along with an old tradi-
tion, there is something of this in the statements of Pomponius cited supra
inote 13.
[202 1
5. Realist Schools
(1) The ethical interpretation." This is an ethical

idealistic interpretation. The idea realizing in legal
history is taken to be an ethical idea, an idea of right
and justice; or, more strictly, the idea which is assumed
to be realizing in history is looked at on its ethical side
or in its ethical phase for the purpose of understanding
legal history." In this interpretation law is a moral
phenomenon. Legal phenomena are moral phenomena."
So in jurisprudence we are taken to be seeking the
metaphysical basis of justice and right as ideas and
unfolding these ideas logically into a system. In legal
history we are taken to be studying the historical un-
folding of these same ideas."i Legal history is con-
ceived to be the record of the progressive realization
of the idea of right or of justice in legislation, in judicial
decision, and in doctrinal writing.
This was the point of view of the metaphysical jurists in

the last century. Usually they adhered to the ethical interpreta-
tion while the professed adherents of the historical school adopt-
15. As to this and the other idealistic interpretations see 2 Vinogradoff,

Collected Papers (1928) 320-325.
16. Pound, Interpretations of Legal History (1923) 22-23, 25-28.
17. Miller, Lectures on the Philosophy of Law (1884) 9; 1 Ahrens, Natur-

recht oder Philosophie des Rechts (1870) § 1; 1 Boistel, Cours de philosophie
du droit (1899) 3.
18. Hastie, Outlines of Jurisprudence (1887) 152-153 (transl. from Fried-

ldnder, Juristische Enzyklopddie, 1847, 65); Geyer, Geschichte und System
der Rechtsphilosophie (1863) § 2; Prins, La philosophie de droit et l'ole his-
torique (1882); Adams, Economics and Jurisprudence (1897) 8.
[ 203 ]
Jurisprudence
ed the political interpretation. But there were not a few ex-

ceptions.
(2) The religious interpretation." This interpre-

tation finds the key to legal progress and the explanation
of legal institutions in the progress of religious thought
and in religious institutions. It is a religious phase of
the ethical interpretation. If legal phenomena are moral
phenomena, one may hold that the clue to moral phenom-
ena is to be found in religion.
In the philosophy of law, Stahl is the chief exponent of
the religious interpretation."0 In legal history there have been
many attempts to interpret the development of Roman law from
Constantine to Justinian in terms of Christianity.21 Fustel de
Coulanges interpreted the law of the city-state in antiquity in
19. Pound, Interpretations of Legal History (1923) 23-25; Bryce, Studies

in History and Jurisprudence (1901) essay 13; Albertsworth, Current Re-
ligious Thought and Modern Juristic Movements (1924) 34 Internat. Journ.
of Ethics, 364; Draghiescu, Droit, morale, et religion (1933) Archives de phil-
osophie du droit et de sociologie juridique, 229-245; Weber, Die protestan-
tische Ethik und der "Geist" des Kapitalismus (1905) 20 Archiv fir Sozial-
wissenschaft und Sozialpolitik, 1-54, (1905) 21 id. 1-110.
20. 2 Stahl, Philosophie des Rechts (5 ed. 1878) 4, § 5. See also Pound,
The Church in Legal History, in Jubilee Law Lectures of Catholic University
-of America (1939) 3-97. Pound, Law and Religion (1940) 27 The Rice Insti-
tute Pamphlet, 109-172.
21. Troplong, De l'influence du christianisme sur le droit civil des romains
,(1843); Maas, Der Einfluss der Christenthum auf das Recht (1886); Ricco-
bono, L'influenza del cristianesimo nella codificazione di Giustiniano (1909);
id. Cristianesimo e diritto privato (1911) 3 Revista di diritto civile, 37; id.
,Communio e comproprieth, in Vinogradoff, Essays in Legal History (1913)
.33; Baviera, Concetto e limiti dell' influenza del cristianesimo sul diritto
privato (1912) in 1 M6langes Girard, 67; deZulueta, The Girard Testimonial
Essays-(1914) 30 Law Quart.Rev. 214, 216-217; Roberti (and others), Cris-
tianesimo e diritto romano (1935).
[2043
5. Realist Schools
terms of household worship and state religion based thereon.12

Also Felix devoted a volume of his history of property to the
religious origin and the influence of religion upon the develop-
ment of the institution.
We must not slight this interpretation. It contains an im-
portant element of truth. In a long view the traditional element
in law is the element which endures, shaping and gradually
absorbing the legislative element. This traditional element is
developed and given content by ideas of right and justice. It
is developed by the endeavor of jurists to mold it to ideals of
natural law. Religious ideas may easily have a decisive influence
upon the professional and judicial ideal of the social and legal
order and through this upon the course of the law. Thus it is
commonly held that the classical Roman law was much affected
by the Stoic philosophy in which the jurists of that period were
well versed.24 Religious influence on medieval law through the
canon law and theological philosophy of law and politics is an
obvious fact.2 5 So is the influence of the theological ethical lit-
erature of the fifteenth and sixteenth centuries upon the modern
Roman law of obligations and upon English equity.2 6 The in-
22. La cit6 antique (1864) chaps. 1-4.

23. Entwicklungsgeschichte des Eigenthums, 4 vols. 1883-1899, vol. 3 Der
Einfluss der Religion auf die Entwicklung des Eigenthums (1889). Chap. 1
is translated in Kocourek and Wigmore, Formative Influences in Legal Evo-
lution.
24. Laferri~re, De l'influence du stoicisme sur la doctrine des juriscon-
suites romains (1860); 1 Hildenbrand, Geschichte und System der Rechts-
und Staatsphilosophie (1860) §§ 141-142; 1 Pernice, Labeo (1873) 16-17; Soko-
lowski, Philosophie im Privatrecht (1902) §§ 2, 4-8, 11, 12, 30. But see Sauter,
Die philosophischen Grundlagen des Naturrechts (1932) 44-45.
25. 1 Continental Legal History Series, General Survey, 92-95 (transl.
from Calisse).
26. As to the modern Roman law of obligations, see Salvioli, Storia del
diritto italiano (8 ed. 1921) §§ 622-624. As to English equity, I have given
some examples in Consideration in Equity (1919) Wigmore Celebration Es-
[ 205 ]
Jurisprudence
fluence of the church upon Continental criminal law should also

be noted.2 7 No less striking is Puritan influence in American
legal history in shaping legal institutions and legal doctrines in
the formative period of Anglo-American law.28
(3) The political interpretation."' This is a politi-

cal idealistic interpretation. The idea which is realizing
in legal history and in legal institutions is taken to be a
political idea, or the idea on its political side or in its
political aspect. Legal history is taken to be a political
phenomenon. Legal institutions are regarded as politi-
cal institutions. It is the interpretation with which we
are familiar in English-speaking countries.
According to the political interpretation social prog-
ress is an unfolding of the idea of individual freedom
from the constraint of social institutions. Political prog-
ress is a like unfolding of the idea of liberty. It is a grad-
ual limitation and direction of governmental action so
as to make possible a maximum of free individual self-
assertion; so as to assure the maximum realization of
says, 435. Doctor and Student (1523) a book of much influence in the forma-
tive stage of equity, expounds the theological ethical teaching of Gerson (1363-
1429) in relation to practical problems of English administration of justice.
See Vinogradoff, Reason and Conscience in Sixteenth-Century Jurisprudence
(1908) 24 Law Quart.Rev. 373, 374-379; 5 Holdsworth, History of English
Law (2 ed. 1937) 266-269.
27. See Salvioli, Storia del diritto italiano (8 ed. 1921) § 728.
28. Pound, The Spirit of the Common Law (1921) 32-59.
29. Pound, Interpretations of Legal History (1923) lect. 3; Lorimer, In-
stitutes of Law (2 ed. 1880) 353-356; Maine, Ancient Law (1906) chap. 5;
Hastie, Outlines of Jurisprudence (1887), 5, 7, 24-28 (transl. from Puchta,
Cursus der Institutionen, §§ 2, 3, 9).
[ 206]
5. Realist Schools
the abstract individualist idea of liberty. Legal progress

is a progress from institutions where legally recognized
claims and legally imposed duties and liabilities are an-
nexed to status or relation or flow from a condition in
which one is put or in which he finds himself without
reference to his will and of which he cannot divest him-
self by any manifestation of his will. It is a progress to
institutions where rights, duties, and liabilities flow
from voluntary action-flow from exertion of human
will. Put concretely in terms of legal institutions, this
unfolding of liberty as an idea, this movement from sub-
jection to freedom, becomes a movement from status to
contract. This movement is taken to be the clue to social,
political, and legal development."
This theory of the course of legal development was so thor-

oughly adapted to the abstract individualism which character-
ized the traditional element of our legal system for other reasons,
and accorded so well with the absolute ideas which our law
books had inherited from the eighteenth century, that it soon
got complete possession of the field. Much in American judicial
decision with respect to master and servant, liberty of con-
tract, and right to pursue a lawful calling, which it has been
the fashion in some quarters to refer to class bias of judges, to
influence of interests controlling elections, or to purely economic
influences, 31 is in reality merely the development of traditional
30. The classical statement of this interpretation, put as a theory of legal

development, is in Maine, Ancient Law, last two paragraphs of chap. 5. See
also 2 Spencer, Principles of Sociology (1885) 491; 3 id. 502-503.
31. Smith, Spirit of American Government (1915) chap. 5; Roe, Our Ju-
dicial Oligarchy (1912) chap. 5; Myers, History of the Supreme Court of the
[ 207 ]
Jurisprudence
principles of the common law by men who read every day in

their scientific law books of the progress from status to con-
tract and the evolution of law through securing and giving ef-
fect to the individual will. Maine's generalization was almost
universally accepted in America. It came to be assumed that
any limitation on abstract freedom of contract, any interfer-
ence with freedom of individual self-assertion beyond the mini-
mum necessary to preserve order, was a step backward and
32
hence arbitrary and unreasonable.
So far as developed systems of law are concerned,

Maine's famous generalization is drawn only from the
Roman law, and from the Roman law as interpreted by
the historical jurists in the nineteenth century.
To understand Maine's proposition we must look into the
meaning of status and of contract as Maine uses those terms.
In Roman law, as expounded in the nineteenth century, status
means one's position before the law.3 3 Persons were either sui
juris, subject to one's own authority, or alieno furi subjecti,
United States (1912) chap. 16; 2 Boudin, Government by Judiciary (1932)

chap. 40.
32. See Pound, Liberty of Contract (1909) 18 Yale Law Journ. 454. Per-
haps the view of Maine's doctrine which became current was not wholly just
to its author. He expressly limited the meaning of status so as to exclude
relations arising from contract. But the vague meaning of status and Maine's
insistence that civilization depended upon freedom of contract, as well as
the implications of the argument in Ancient Law, explain if they do not
justify the construction put upon the doctrine. See Smellie, Sir Henry Maine
(1928) 8 Economia, 64, 73-79; Clark, Roman Private Law- II Jurisprudence
(1914) 536.
33. The term is not used in a precise meaning in the Roman texts. Buck-
land, Text-Book of Roman Law (2 ed. 1932) 59, note 3. As to attempts to
derive a precise meaning from the texts, see Clark, Roman Private Law: II
Jurisprudence (1914) 483-495.
[2082]
5. Realist Schools
subject to the authority of another. 34 In the one category was

the free man, the head of a household (paterfamilias). In the
other were, for example, the slave, the wife in manus, the child
in potestas, the pupil (ward), the lunatic under cura. The special
position of the person subject to another's authority is of much
importance in ancient law, and the term status is used more nar-
rowly for this sort of position before the law. 35 In this sense
of the term the main characteristics of status are two: (1) It
cannot be divested voluntarily. In case of slavery only the act
of the dominus or the operation of law in freeing the slave could
end the condition. Where a wife was in manus only a divorce in
which she was not a participant could end it. In case of the
pupil or of the lunatic under cura only the natural events of com-
ing of age or of regaining sanity could bring it to an end.
(2) Rights, duties, and liabilities flow from or are attached to
the condition of the person; they do not flow from or are not
attached to his will. 36 Such conditions are numerous in ancient
law. Maine uses contract, in the wider sense usual among civil-
ians, to mean legal transaction, i. e. an act intended to produce
legal consequences to which the law gives the consequences in-
tended. 37 Examples are contract (in the stricter sense), convey-
ance, giving of a power (as in the appointment of an agent), set-
tling a trust. If we use "contract" in this sense, there was in
Roman law a progress toward contract. There was a progress
34. Gaius, I, § 48; Institutes, I, 8, pr.
35. See Clark. Roman Private Law: II Jurisprudence (1914) 484-485;

Austin, Jurisprudence (5 ed. 1885) lects. 40-42; Allen, Legal Duties (1931)
28-70 (Status and Capacity).
36. Allen, op. cit. 33-39.
37. Capitant, Introduction A l'6tude du droit civil (4 ed. 1923) 294-299;

1 Demogue, Traitd des obligations en g6ndral (1923-1933) nos. 11-15; Karlowa,
Das Rechtsgeschaift (1877); 1 Windscheid, Pandekten (9 ed. 1906) § 69; En-
neccerus, Rechtsgeschlift. Bedingung und Anfangstermin (1888-1889); Sal-
mond, Jurisprudence (1902) § 121.
Jurisprudence
from a state of the law which paid little regard to volition to one
in which volition was chiefly regarded.
Notwithstanding English and Americans have gen-

erally approved it, this generalization cannot be accepted
for Anglo-American law.3" There is in this respect a
fundamental difference between the modes of thought
of the writers and teachers of the modern Roman law
(whose views of the Roman law were accepted when
Maine wrote) and those of the common-law lawyer. In
the dogmatic theory by which for modern purposes the
jurists of the last century sought to unify the precepts of
Roman law and those of the modern Roman law, so as
to be able to expound them as a logically coherent system,
the central point is the will. The nineteenth-century
Romanist seeks to deduce all things from the will of the
actor or actors. The significant legal institution of his
system is the legal transaction (negotium, acte juridique,
Rechtsgeschdft). In our law, on the other hand, the cen-
tral point is not will but relation.
38. I have discussed this elsewhere at length: A Feudal Principle in Mod-

ern Law (1914) 25 International Journal of Ethics, 1, 20; The End of Law
as Developed in Juristic Thought (1917) 30 Harvard Law Rev. 201, 211-221;
The Spirit of the Common Law (1921) 20-31. Judge Frank questions this
proposition on the ground that admiralty developed a relational treatment
of master and seaman and consequent doctrinal tradition "neither essentially
English nor feudal." Hume v. Moore-McCormack Lines, Inc., 121 F.2d 336,
342-345 (C.C.A.2d, 1941). This is true enough. But one must add that al-
though neither essentially English nor feudal it is Germanic, not Roman,
as is much else in the medieval sea law, and that "feudal" is one way of say-
ing Germanic or non-Roman.
[ 210]
5. Realist Schools
This difference between the modern Roman-law tradition

and our own is brought out at every turn.
(1) It appears strikingly in the relational double titles in

our digests and text books. Thus in Mews' Digest of English
Case Law we find: Husband and Wife, Landlord and Tenant,40
Master and Servant, 4 Principal and Agent, Principal and Surety,
Tenant for Life and Remainderman, Vendor and Purchaser. In
the Century Digest and the American Digest System we find:
Guardian and Ward,4 2 Husband and Wife, Landlord and Tenant,
Master and Servant, Principal and Agent, Principal and Surety,
Vendor and Purchaser. Likewise our text books are not treatises
on Family Law or on the Law of Persons, but on Domestic Re-
lations.4
This is not merely a surface phenomenon. 44 It pervades
common-law thinking at almost every point; wherever, indeed,
it was not affected by text-book borrowings of civilian ideas in
the nineteenth century. Where the civilian thinks of a locatio
operarum, a contract of letting of services, we think of the rela-
39. By its older name, Baron and Feme, this title is to be found in Brooke's
Abridgment (1572), in Hughes, Grand Abridgment of the Law (1660-1662), in
Rolle (1668), in Nelson (1725), and in Jacob, The Statute Law Commonplaced
(1739). It comes into the modern digests from Bacon's Abridgment (4 ed.
1756, 1 ed. probably 1732), Viner's Abridgment (1742-1753), Comyn's Digest
(1762).
40. Also in Viner.
41. Also in Nelson, Viner, and Bacon.
42. Also in Nelson and Viner.
43. The English taking over of systematic ideas and terms from the Pan-
dectists has given us in recent years the hybrid "Persons and Domestic Re-
lations" through the law schools.
44. It has been said that the distinction between Romanist and Anglo-
American legal thinking as above outlined is based on "terminological evi-
dence." Buckland and McNair, Roman Law and Common Law, A Compari-
son in Outline (1936) xi.
[ 211]
Jurisprudence
tion of master and servant. The civilian attributes the conse-

quences to the will of the parties, as declared by the legal trans-
action of letting of services. He asks what are the logical im-
plications of that transaction, and so the logically demonstrated
contents of the wills of the parties. On the other hand, we at-
tribute all the legal consequences to the relation, as incidents
thereof. We consider what is customary and fair in such a rela-
tion, and hold the parties to such customary and reasonable in-
cidents.
It will be well to look at some more of these relational double

titles in contrast to the civilian treatment of the same subjects.
The civilian thinks and speaks of the law of usufruct. When
someone by a legal transaction has created a usufruct, the
civilian asks, what did he intend? What are the consequences of
what he willed, implied in his declared will? We think and
speak of the relation of landlord and tenant or tenant for life
and reversioner. 45 This relation having come into existence, we
ask, what are its reasonable incidents? 4 6 -i. e. what may those
in the relation reasonably expect? Again, in Agency, the Pan-
dectist thinks of representation in will. 47 The civilian thinks of
a power of representation conferred by a legal transaction and
of the law of agency as a legal giving effect to the will of the
parties. So he speaks of a contract of mandate.48 The common-
45. This is treated in equity as a fiduciary relation. 1 Story, Equity,

Jurisprudence (1836) § 323.
46. E. g. see 2 Taylor, Landlord and Tenant (9 ed. 1904) § 705.

47. 2 Baron, Pandekten (7 ed. 1890) § 65; 1 Windscheid, Pandekten (9
ed. 1906) § 73; 1 Dernburg, Pandekten (7 ed. 1902) §§ 117-118.
48. Pothier, Trait du contrat de mandat (1766) art. prdlim. and chap. 1.
This contractual theory of agency in the civil law is well brought out in the
case of undisclosed principal. The undisclosed principal can do no more than
require the agent to account for what he has done, transfer the profit of the
transaction, and assign his rights of action growing out of it. 2 Planiol,
Traitd 6l6mentaire de droit civil (11 ed. 1932) no. 2253.
[ 212]
5. Realist Schools
law lawyer, on the other hand, speaks and thinks of the rela-
tion of principal and agent and of the rights, duties, and lia-
bilities attaching to that relation. 49 In partnership, the civilian
thinks and speaks of the contract of partnership, the contract of
societas, and treats the whole subject from the standpoint of
the content of that transaction. 0 We think in terms of the
partnership relation.51 Again, the civilian thinks and speaks
52
of the contract of sale and of the content of that transaction.
But in sales of land, where common-law ideas remain unaffected
by the law merchant, it is not our mode of thought to consider
that we are carrying out the will of the parties as manifested
in their contract. Once the relation of vendor and purchaser is
established, we think rather of the rights and duties involved in
that relation, of the conversion of the contract right into an
equitable ownership, and of the turning of the legal title into a
security for money, not because the parties so intended, but be-
cause the law, sometimes in the face of stipulations for a for-
feiture, gives those effects to their relation. 53 And in the case of
mortgagor and mortgagee we do not, it is true, use a relational
double title in our digests and text books. But we do not think
of saying contract of mortgage as the civilian says "contract of
pledge," 54 nor do we ask what the parties agreed. We apply
rules, such as once a mortgage always a mortgage, 55 or such as
49. See the definition, American Law Institute, Restatement of the Law
of Agency, § 1 and the comment in terms of "relationship." See also 1 Story,
Equity Jurisprudence (1836) § 315.
50. Pothier, Traitd du contrat de socidt6 (1765) art. prdlim. 2 Planiol, Trait6
M1lmentaire de droit civil (11 ed. 1928-1932) nos. 1933, 1934.
5I. Uniform Partnership Act, § 6.
52. Pothier, Trait6 du contrat de vente (1762) art. prelim.; 2 Planiol, Trait6
,l6mentaire de droit civil (11 ed. 1928-1932) nos. 1353, 1354.
53. See 1 Pomeroy, Equity Jurisprudence (1881) § 365 and the latter part
of note 1.
54. 1 Windscheid, Pandekten (8 ed. 1900) § 230.
55. Davey, J. in Noakes & Co. Ltd. v. Rice, [1902] A.C. 24, 32.
[ 213 ]
Jurisprudence
the rule against clogging the equity of redemption, 6 which de-

feat intent, in order to enforce the incidents which the courts
hold to be involved in the relation. So also in the case of surety-
ship. We think and speak of the relation of principal and surety
and of what is equitable in that relation.5
Then, too, we have the category of fiduciary relations, of

which that of trustee and beneficiary is the type. It may be said
that this category and some of the most important of those just
spoken of are not the work of the common-law courts, but of the
Court of Chancery. But the common-law lawyer had been at
work in the Court of Chancery. The clerical chancellors brought
about an infusion of morality into the legal system. Interposing
originally, perhaps, in order to prevent dishonest or unconscien-
tious conduct out of solicitude for the welfare of the trustee's
soul, they forbade his doing this or that which by the common
law he was at liberty to do. Then common-law lawyers began
to sit on the woolsack. They turned at once to their staple
analogy, lord and man, landlord and tenant, and out of the pious
interference of the chancellors on general grounds of morals
they built the category of fiduciary relations with rights and
duties annexed to them and involved in them, no matter what
56. Jennings v. Ward, 2 Vern. 520 (1705); Noakes & Co. Ltd. v. Rice,
[1902] A.C. 24; DeBeers Consolidated Mines Ltd. v. British South Africa Co.,
[1912] A.C. 52; Krelinger v. New Patagonia Co. Ltd., [1914] A.C. 25.
57. E. g. in case of consensual suretyship it is said that "the surety may
have reimbursement on either or both of two grounds: (1) a promissorial right
resting on the promise of the principal, express or implied in fact . . . ;
and (2) a relational right, arising by operation of law or equity as an incident
of the relation." Campbell, Cases on Suretyship (1931) 26 n. 3. Reimburse-
ment was enforced in equity although there was no counter bond, as an in-
cident of the relation of principal and surety, in the fore part of the seven-
teenth century before there was any idea of recovery at law upon quasi con-
tract on the theory of implied promise. Ford v. Stobridge, Before Lord
Coventry, Nelson, Ch. 24 (1717).
[214]
5. Realist Schools
the parties to them may intend. 58 So completely has this idea

taken possession of equity that more than one subject, such as in-
terpleader 5 and bills of peace,60 has been embarrassed by a
quest for some relation to which the right to relief may be re-
quired to be annexed.
Likewise our law of torts is full of this idea of relation.
Take, for example, the so-called Good Samaritan cases. So long
as one has not caused the peril and there is no relation, one who
merely fails to come to the aid of another who is even in extreme
peril and even if it would involve no danger, incurs no liability.6 '
But when there is a relation the courts at once recognize and en-
force the moral duty to help a person in such a situation. The
classical case is that of master and seamanY2 But the moral duty
58. "Courts of equity will not therefore arrest or set aside an act or con-
tract merely because a man of more honor would not have entered into it.
There must be some relation between the parties which compels the one to
make a full discovery to the other or to abstain from all selfish projects.
But when such a relation does exist, courts of equity, acting upon this su-
perinduced ground in aid of general morals, will not suffer one party, stand-
ing in a situation of which he can avail himself against the other, to derive
advantage from that circumstance." 1 Story, Equity Jurisprudence (1836)
§ 308.
59. Crawshay v. Thornton, 2 My. & Cr. 1 (1836). See the note on privity
in interpleader, Chafee, Cases on Equitable Remedies (1938) 56-63.
60. Tribette v. Illinois Cent. R. Co., 70 Miss. 182, 12 So. 32, 19 L.R.A. 660
(1892); 1 Pomeroy, Equity Jurisprudence (1881) § 257 and notes in 4th ed.;
Chafee, note to the Tribette Case, Cases on Equitable Remedies (1938) 155-
158.
61. Union Pac. R. Co. v. Cappier, 66 Kan. 649, 72 P. 281, 69 L.R.A. 513
(1903); Allen v. Hixson, 111 Ga. 460, 36 S.E. 810 (1900); Griswold v. Boston
& Me. R. Co., 183 Mass. 434, 67 N.E. 354 (1903); Stager v. Troy Laundry Co.,
38 Or. 480, 489, 63 P. 645, 648 (1901) ; Scholl v. Belcher, 63 Or. 310, 127 P. 968
(1912); Ollet v. Pittsburgh C., C. & St. L. R. Co., 201 Pa. 361, 50 A. 1011
(1902); King v. Interstate Consolidated R. Co., 23 R.I. 583, 51 A. 301 (1902);
Ames, Law and Morals (1908) 22 Harvard Law Rev. 99, 111-113.
62. The Osceola, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760 (1903); The Mars,
149 F. 729 (C.C.A.3d, 1907); U. S. v. Knowles, 4 Sawy. (U.S.) 517 (1864).
[ 215 ]
Jurisprudence
is enforced legally also in the case of master and servant 6

and of carrier and passenger." Again, it is generally held that
there is no duty toward a bare licensee except not to injure him
wantonly. But if the licensee is a passenger, if the relation of
carrier and passenger exists, then the carrier is held to a duty
of looking after the safety of the licensee. 65 Compare also the
opinion of Brett, J., in Heaven v. Pender 6in which the question
as to liability of a vendor of a chattel toward a third person is
sought to be solved by the idea of relation.67
63. Hunicke v. Meramec Quarry Co., 262 Mo. 560, 172 S.W. 43 (1914);
Ohio & Mississippi R. Co. v. Early, 141 Ind. 73, 40 N.E. 257 (1894).
64. Layne v. Chicago & A. R. Co., 175 Mo.App. 34, 157 S.W. 850 (1913).
65. Harris v. Perry, [1903] 2 K.B. 219, 225.
66. 11 Q.B.Div. 503 (1883).
67. "The questions which we have to solve in this case are--what is the
proper definition of the relation between two persons other than the relation
established by contract, or fraud, which imposes on the one of them a duty
towards the other to observe, with regard to the person or property of such
other, such ordinary care or skill as may be necessary to prevent injury to
his person or property. . . . When two drivers or two ships are ap-
proaching each other, such a relation arises between them when they are
approaching each other in such a manner that, unless they use ordinary care
and skill to avoid it, there will be danger of an injurious collision between
them. This relation is established in such circumstances between them, not
only if it be proved that they actually know and think of this danger, but
whether such proof be made or not. It is established, as it seems to me, be-
cause any one of ordinary sense who did think would at once recognize that
if he did not use ordinary care and skill under such circumstances there
would be such danger. . . . In the case of a railway company carrying
a passenger with whom it has not entered into the contract of carriage the
law implies the duty, because it must be obvious that unless ordinary care
and skill be used the personal safety of the passenger must be endangered.
With regard to the condition in which an owner or occupier leaves his house
or property, other phraseology has been used, which it is necessary to con-
sider. If a man opens his shop or warehouse to customers it is said that
he invited them to enter, and that this invitation raises the relation between
them which imposes on the inviter the duty of using reasonable care so to
keep his house or warehouse that it may not endanger the person or prop-
erty of the person invited. This is in a sense an accurate phrase, and as
[216]
5. Realist Schools
In the law of corporations there is another example. Where

the civilian would rest duties upon an idea of contract, 8 our law
characteristically falls back upon relation.69
Our public law, too, is built around the idea of relation.

Magna Charta, at least as expounded in Coke's Second Institute,
is recognized as the foundation of Anglo-American public law.
But as a legal document, Magna Charta is a formulation of the
duties involved in the relation of the king to his tenants in chief.
As the Middle Ages confused sovereignty and property, it was
not hard to draw an instrument declaring the duties incident to
the relation of lord and man, which, when the former happened
to be the king, could be made later to serve as defining the duties
owing in the relation of king and subject. The common-law
conception is one of the rights and duties attaching to the rela-
applied to the circumstances a sufficiently accurate phrase. Yet it is not

accurate if the word 'invitation' be used in its ordinary sense. By opening
a shop you do not really invite, you do not ask A. B. to come in to buy; you
intimate to him that if it pleases him to come in he will find things which
you are willing to sell. So, in the case of shop, warehouse, road, or premises,
the phrase has been used that if you permit a person to enter them you im-
pose on yourself a duty not to lay a trap for him. This, again, is in a sense
a true statement of the duty arising from the relation constituted by the
permission to enter. It is not a statement of what causes the relation which
raises the duty. What causes the relation is the permission to enter and the
entry." Heaven v. Pender, 11 Q.B.Div. 503, 507 (1883). See also Lord Atkin
in Donoghue v. Stevenson, [1932] A.C. 562, 579-584; Cardozo, C. J.,in Pals-
graf v. Long Island R. Co., 248 N.Y. 339, 344-345, 162 N.E. 99, 100-101, 59
A.L.R. 1253 (1928).
68. Thaller, Trait6 hl6mentaire de droit commercial (8 ed. 1931) § 380.
69. "The cause of action of each stockholder against the corporation for
non-payment of the dividend does not arise from any actual contract between
the corporation and its stockholders, but from the nature of the organiza-
tion, and the relation of the stockholders to the corporation and its prop-
erty." Field, C. J., in Ford v. Easthampton Rubber Thread Co., 158 Mass.
84, 88, 32 N.E. 1036, 1037, 20 L.R.A. 65 (1893).
[217]
Jurisprudence
tion of ruler and ruled, hence our books did not set off public
law by itself until recently under civilian influence °
It is true this idea of relation is objected to by some

jurists who feel it is akin to the idea of status and hence
stamps our law as archaic. For example, in the preface
to one of the parts of his Digest of English Civil Law,
Dr. Jenks enumerates a series of topics, most of which
are dealt with relationally by the common law but would
be treated from the standpoint of legal transactions by
the civilian, and says:
"These subjects seem to us to fall naturally under the head
of contract. To our forefathers, they presented themselves
rather as social relationships regulated by law." 71
But this attitude assumes Maine's generalization. It

assumes the political interpretation. If we look at the
facts of legislation and adjudication, however, the
whole course of recent legal development is refuting this
interpretation, unless, indeed, we are progressing back-
ward.
Both through legislation and in the purely judicial develop-
ment of our law we have taken the subject of insurance largely
out of the category of contract. Not only are standard policies
70. Blackstone, Commentaries, chaps. 2-9, especially chap. 6, Report of

the Committee on the Classification of the Law, Compare 1, 25 Rep.Am. Bar
Assn. 474-475 (1902), with Holland, Elements of Jurisprudence (13 ed. 1924)
chap. 16.
71. Jenks, Digest of English Civil Law (2 ed. 1921) preface to bk. 2, pt. 1.
[ 218 ]
5. Realist Schools
provided by statute 72 but courts have worked out doctrines that

obtain because the contract is one of insurance, no matter what
the writing says. Note, for example, American decisions as to
warranties in policies of insurance, restricting freedom of con-
tract in the relation of insurer and insured avowedly or by
strained interpretation. 3 Compare also the decisions treating
insurance as a public calling. 74 Likewise we have taken the law
of public utilities out of the domain of contract. For a time our
text books sought to treat all public utilities on the analogy of
the common carrier and to treat the law of carriers as an ap-
plication of the law of bailments.15 In spite of these books, to-
day we have established that the duties of public service com-
panies are not contractual, as the nineteenth century sought to
make them, but are instead relational. They do not flow from
agreements which the public servant may make as he chooses.
They flow from the calling in which he is engaged and his con-
76
sequent relation to the public.
72. See Richards, Treatise on the Law of Insurance (3 ed. 1912) § 227.
73. Fidelity Mut. Ins. Co. v. Miazza, 93 Miss. 18, 46 So. 817 (1908); Port
Blakely Mill Co. v. Springfield Fire & Marine Ins. Co., 59 Wash. 501, 110 P.
36 (1910). In the latter case Morris, J., dissenting, said: "The majority opin-
ion . . . wipes out the law of warranty in this state, a principle that
is as old and well founded as any other principle in insurance law." Ibid.
528. There is much legislation to the same effect. As to the statutes and
decisions under them, see Richards, Treatise on the Law of Insurance (3 ed.
1912) § 227.
74. John Hancock Mut. Life Ins. Co. v. Warren, 181 U.S. 73, 21 S.Ct. 535,
45 L.Ed. 755 (1901); Orient Ins. Co. v. Daggs, 172 U.S. 557, 19 S.Ct. 281, 43
L.Ed. 552 (1899); New York Life Ins. Co. v. Hardison, 199 Mass. 190, 85 N.E.
410 (1908); Boston Ice Co. v. Boston & Me. R. Co., 77 N.H. 6, 86 A. 356, 45
L.R.A.,N.S., 845 (1914); McCarter, Attorney General v. Firemen's Ins. Co.,
74 N.J.Eq. 372, 73 A. 80, 29 L.R.A.,N.S., 1194 (1909).
75. 2 Kent, Commentaries (1827) 464-474; Story, Commentaries on the
Law of Bailments (2 ed. 1840) §§488-612; Hutchinson, Treatise on the Law
of Carriers (1879) chap. 1.
76. See 1 Wyman, The Special Law Governing Public Service Corpora-
tions (1911) §§1-14, 20, 27, 32-42.
[ 219]
Jurisprudence
Even more significant is the legislative development where-

by duties and liabilities are imposed on the employer in the re-
lation of employer and employee, not because he has so willed, not
because he is at fault, but because the nature of the relation is
held to call for it." When the relation exists there is no longer
freedom of contract, any more than there is full freedom of con-
tract between trustee and cestui que trust. Factory Acts and
legislation against payment of wages in orders on a company
store were forerunners of what has become a settled legislative
tendency? 8 Workmen's compensation established this definitely
as the policy of the law and it has gone so far as to take away
from the employer power to terminate the relation or even to
control choice of employees, compelling a relation with an organ-
ization of workers rather than workers individually and restrict-
79
ing choice of organizations.
Thus both legislation and judicial decision are going

upon relation rather than upon contract. In the exam-
ples given, they go upon the relation of insurer and in-
sured, of public utility and patron, of employer and em-
ployee, and of the rights, duties, and liabilities flowing
from them or involved in them. Maine's version of the
77. "Workmen's compensation legislation rests upon the idea of status,

not upon that of implied contract." Sutherland, J. in Cudahy Packing Co. of
Neb. v. Parramore, 263 U.S. 418, 423, 44 S.Ct. 153, 154 (1923).
78. For the beginnings of this in England and in the United States, see
Dicey, Lectures on the Relation Between Law and Public Opinion in England
in the Nineteenth Century (1905) lect. 8; Pound, Liberty of Contract (1909) 18.
79. National Labor Relations Act (1935) 49 Stat. 455; Note, The Present
Status of Collective Labor Agreements (1938) 51 Harvard Law Rev. 520; Note,
The State Labor Relations Acts (1938) 51 Harvard Law Rev. 722; National La-
bor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615,
81 L.Ed. 893 (1937).
[ 220]
5. Realist Schools
political interpretation is out of line with the phenomena

of twentieth-century Anglo-American law. Judicial
decision and legislation are going in a direction quite
opposite to what the political interpretation points out
as the course of legal development."
Recently there have been suggestions of a psycholog-
ical political interpretation, proceeding on a basis of so-
cial psychological politics."1
(4) The geographicalinterpretation." The claims
of this interpretation have been more modest. Chiefly it
has been urged in connection with ethnological or biologi-
cal interpretations, as affecting social institutions
through determining the character or temperament or
psychology of peoples. Also those who look to anthropol-
ogy to serve as a foundation for jurisprudence find an
80. The position of an employer under the National Labor Relations Act is
very like status. He cannot terminate the relation by exercise of his will.
Employees may be reinstated against his will by the National Labor Relations
Board and he may be compelled to pay them wages for time during which they
had refused to work and prevented others from working. The Fair Labor
Standards Act, 1938, fixing minimum wages and maximum hours, and mini-
mum wage laws today everywhere, complete the rdgime of statutory or admin-
istrative determination as contrasted with individual free self determination.
81. See, e. g. Rohatyn, La responsabilit6 en ses rapports avec les diffdrentes
formes de gouvernement (1932) 6 Revue internationale de la thdorie du droit,
243.
82. Randall, Law and Geography, 3 Evolution of Law Series: Formative
Influences of Legal Development (1918) 198-214; Semple, The Influences of
Geographic Environment on Law, State, and Society (1918) id. 215-233 (ex-
tracts from "Influences of Geographic Environment"); Declareuil, Histoire
gdndrale du droit frangais (1925) chap. 1; Langhans-Ratzeburg, Begriff und
Aufgaben der geographischen Rechtswissenschaft (beiheft to Zeitschrift fur
Geopolitik, 1928).
[221]
Jurisprudence
important role for geography as a determining influence

in their basic science. No jurist has sought to refer all
law or all legal development to causes in the scope of
geography. Indeed, Randall asserts no more than that
geography "may throw considerable further light upon
many phases of human evolution, and not least upon the
phases of culture that are embodied in legal rules." 83 It
is true there are rules and doctrines here and there in
legal systems which are obviously referable to geographi-
cal conditions.8 But it is more significant that taught
legal traditions are received under the most diverse geo-
graphical conditions and persist even to no small extent
5
in defiance of them.
(5) Ethnological and biological interpretations.
These interpretations have been urged chiefly by the me-
chanical sociologists and the biological sociologists, of
83. Law and Geography, in Formative Influences of Legal Development

(1918) 198, 200.
84. For example, the Roman law as to public streams, Dig. 43, 12, 1, pr.,
and 3, id. 12, 3; the difference between the English and the American admiral-
ty jurisdiction, Genesee Chief v. Fitzhugh, 12 How. (U.S.) 443 (1851); the dif-
ference between English and American doctrine as to navigable streams, Field,
J., in The Daniel Ball, 10 Wall. (U.S.) 557, 563, 19 L.Ed. 999 (1870); the differ-
ences in the law of waters between the arid and the semi-arid states, see Wiel,
Water Rights in the Western States (3 ed. 1911) §§ 115-118.
85. Note, for example, the Roman-Dutch law in South Africa; the adapta-
tions or imitations of the French Civil Code in Continental Europe, Quebec,
Louisiana, Central and South America, and the reception of French doctrinal
development of that code in the most diverse parts of the world; the taking
over of the German Civil Code in Japan and China. See Le code civil, 1804-
1904, Livre du centenaire (1904) especially the essays, Le code civil I l' tranger,
in vol. 2.
[222]
5. Realist Schools
whom later. 6 From one starting point or another, they

look to the ethnological environment of laws or of sys-
tems of law, and find the determining influences in legal
progress and the determining forces in the shaping of
legal institutions and traditions in the characteristics of
the races of men among whom laws exist or legal systems
have sprung up.
There are two main types of these interpretations. One
interprets law and legal history in terms of race spirit, or race
psychology, or race institutions, which, in the systems of posi-
tivists, are usually regarded as resulting from physical environ-
ment. The other interprets them in terms of the Darwinian
natural selection, that is, in terms of struggle for existence and
survival of the fittest.
(i) The first or ethnological type takes three forms.
(a) An idealisticform.87 According to this form of the

ethnological interpretation, a race idea is unfolding in the de-
velopment of the legal institutions of this or that people. The
idea which is taken to be realizing in legal history is looked at
from a special point of view as the idea of the race in whose spirit
it is unfolding. This form goes back to Hegel's Philosophy of
Right and Law,M8 and is a connecting link between Hegel and
the positivists.
86. Post, §§ 23, 24.

87. 1 Jhering, Geist des r6mischen Rechts (1856, 5 ed. 1891) § 19. But see 1
Voigt, fldmische Rechtsgeschichte (1892) § 2; 1 Cuq, Institutions juridiques
des Romains (1891, 2 ed. 1904) 29-30; 1 Kuhlenbeck, Entwicklungsgeschichte
des r~mischen Rechts (1910-1913) 31-40.
88. Hegel, Grundlinien der Philosophie des Rechts (1821) §§ 346-347, Knox's
transl. (1942) 217-218.
[ 22]
Jurisprudence
(b) A psychological form. 9 In this form, law is taken

to be an expression of the character, mentality, or temperament
of the race in whose social institutions it has developed. Recently
the psychological ethnological interpretation has been urged in a
somewhat different form by social psychologists, and this form
has derived a certain impetus from the growth of nationalist
feeling. 99
(c) A positivist form.9 1 In this way of putting it, 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 im-
mediately a product of race character and temperament, arising
from conflict of instincts and the need of harmonizing them in
action if the race is to endure. Post was the leader in this form
of interpretation.92 He was feeling for an idea of the first
magnitude when he saw in law an attempt to harmonize in-
stincts in action rather than to harmonize wills in action. But in
89. Carle, La vita del diritto (2 ed. 1890) bk. 5; Fouillde, L'idfe moderne du
droit (6 ed. 1909) bk. 1, introduction and chap. 5 (transl. in Modern French Le-
gal Philosophy (1916) §§ 1-45); Duquesne, Sur l'esprit du peuple allemand
comme source d'origine du droit allemand, in Introduction & l'6tude du droit
compare, 3 Recueil d'6tudes en honneur d'Edouard Lambert (1938) 225-239.
90. E. g. McDougall, National Welfare and National Decay (1921).
91. Post, Die Grundlagen des Rechts (1884) 8-9. For a critique, see Tour-
toulon, Princips philosophiques de 1'histoire du droit (1908-1920) 89-131. See
also Lowie, Anthropology and Law (1927) in Ogburn and Goldenweiser, The
Social Sciences, 50-57; Mazzarella, La concezione etnologica della legislazione
(1926) 6 Revista internazionale di filosofia del diritto, 520-534; Liermann,
Rasse und Recht (1928) 85 Zeitschrift fir die Gesamte Staatswissenschaft, 273;
Trimborn, Die Methode der ethnologischen Rechtsforschung (1928) 43 Zeit-
schrift fUr vergleichende Rechtswissenschaft, 416; Adam, Practical Ethnology
in Modern Jurisprudence and Legislation (1935) 9 Tulane Law Rev. 232.
92. Albert Hlermann Post (1839-1895), Der Ursprung des Rechts (1876);
Bausteine fir eine allgemeine Rechtswissenschaft (1880); Die Grundlagen des
Rechts und die Grundzilge seiner Entwickelungsgeschichte (1884); Grundriss
der ethnologischen Jurisprudenz (1894-1895).
[ 224 ]
5. Realist Schools
spite of his positivism, his theory has a Kantian cast. He put

Kant's reconciliation of the will of each in action with the will of
all in action in terms of instinct (this was before the psychologi-
cal sociology had inquired into the exact meanings of that
term) and sought to verify his result by ethnological research
instead of demonstrating it by metaphysics or verifying it by
history.
(ii) The second or biological type 93 also takes three
forms.
(a) The idealisticform. In this form a biological idea,
the struggle for existence or the survival of the fittest, is taken
to be the idea which is realizing in the development of law and
especially of legal institutions.
(b) The ethnological form, which conceives of a con-
flict of race institutions with survival of the fittest institutions. 9 4
(c) The economic form, which conceives of the conflict

as one of race needs and wants or of class needs and wants, de-
termined by economics. It will be convenient to consider this
later in connection with or as a form of the economic interpreta-
95
tion.
Influence of race as a determining factor in legal develop-
ment and in shaping legal institutions has been much exagger-
ated. The dualism in legal and political institutions in the earlier
Roman polity which Jhering attributed to the political union
of Romans and Sabines 9 is to be explained instead as due to a
93. Richard, L'Origine de l'idde de droit (1892); Vaccaro, Le basi del dirit-
to e dello stato (1893), French transl. Les bases sociologiques du droit et de
1'6tat (1898); Kuhlenbeck, NatUrliche Grundlagen des Rechts (1905).
94. Gumplowicz, Der Rassenkampf (1883, 2 ed. 1909).
95. Po8t, § 20.
96. 1 Geist des r6mischen Rechts (5 ed. 1891) § 19.
Jurisprudence
political organization of society with hold-overs from a religious

organization. Again, a common argument is that English law
is uncodified at home, in North America, and in Australasia,
while the law of Latin countries is codified everywhere. 7 But
when we look into the circumstances which have led to codes,
we see at once that they are independent of race or nation. Codes
prevail in the Roman-law world where there is unity of teaching
tradition but great diversity of race. Those who would explain
the codification of the modern Roman law, and non-codification
of English law and its derivatives, in terms of race, overlook
the effect of suggestion and imitation in a subject in which men
thought universally from the twelfth to the sixteenth century,
were led by the law-of-nature theory to think universally for
many purposes in the seventeenth and eighteenth centuries, and
have not wholly ceased to think universally even today in that
part of the world in which legal education is founded on the
Roman law. Diversity of race counts for little where there is a
common legal education and hence a common traditional legal
technique. Holland and Italy, Polish Russia and Spain, Rou-
mania and Chile, Quebec and Egypt, spoke the same legal
language and used what is substantially the French Civil Code
of 1804, not because of community of race, which cannot be pre-
tended, but because fashions of lawmaking are as independent of
race and language as fashions of dress among the upper classes
of society. Japan, and, later, China, followed the German Civil
Code for the same reason that led the upper classes in those
countries to adopt European costume. Moreover, much that has
been written from the standpoint of the ethnological interpreta-
tion involves the fallacy of looking back at the Middle Ages and
the beginnings of modern law in terms of the linguistic and
political units of today. The chief service of these interpreta-
97. E. g. Randall, Law and Geography (1918) § 3 (in Formative Influences

of Legal Development, 200).
[ 226]
5. Realist Schools
tions has been in challenging the older idealistic interpreta-

tions and so compelling the science of law to seek a broader
basis. They have helped drive us to consider other things be-
sides ethical and political doctrine and abstract juristic ideals.
(6) The civilization interpretation. This has been

spoken of sufficiently in connection with the Neo-Hege-
lians 8
(7) The economic interpretation. The importance
of this interpretation is such as to require discussion in
detail by itself.
99
§ 20. THE ECONOMIC INTERPRETATION.
There have been three types of economic interpretation
of legal history: An idealistic type, a mechanical-positiv-
ist type, and a realist type.
(a) The idealistic economic interpretation100 was
urged by a type of Hegelian who regarded the history of
98. Ante, § 16.

99. Pound, Interpretations of Legal History (1923) 92-115; Loria Eco-
nomic Foundations of Law, 3 Evolution of Law Series, Formative Influences of
Legal Development (1918) 234-255 (Keasbey's transl. "Economic Foundations
of Society" (1907) 73-114) ; Follett, Creative Experience (1918) 257-258; Hock-
ing, Man and the State (1926) 280-299; Hale, Economics and Law (1927) in Og-
burn and Goldenweiser, The Social Sciences, 131-132; Cairns, Law and the
Social Sciences (1935) chap. 3, especially pp. 121-122; Commons, Value in Law
and Economics, in 2 Law: A Century of Progress (New York University Pub-
lication, 1937) 232.
100. As to this see Croce, What is Living and What is Dead of the Phi-
losophy of Hegel (transl. by Ainslee, 1915) 201-202; Solari, La glossa di Marx
a Hegel, 2 Studi filosoficogiuridici dedicati a Giorgio Del Vecchio (1930-1931)
55; Rappoport, Die Marxistische Rechtsauffassung (1927); Kelsen, Allgemeine
Rechtslehre im Lichte materialistischer Geschichtsauffassung (1931) 66 Archiv
[ 227]
Jurisprudence
law as the realizing or unfolding of an economic princi-

ple; who regarded law as the logical unfolding of a prin-
ciple of satisfying the material wants of mankind.
After Hegel his followers fell into two chief groups. One
went to absolute idealism. The other went toward or even ran
into materialism. It regarded the universe as the unfolding of a
natural principle-of a principle of physical nature. The first
type of economic interpretation of legal history is akin to the
latter. Writers of this type held that social, political, and legal
history were purely economic. Legal history was the record of
the unfolding of an idea. But it was not an ethical idea, giving a
movement toward what is right and just, nor a political idea,
giving us a movement toward freedom, nor a biological idea, giv-
ing us a movement toward a social organization perfectly adapt-
ed to its surroundings. It was an economic idea, giving us a
movement toward a condition of maximum satisfaction of ma-
terial wants. This form was once much in vogue among ortho-
dox socialists.
(b) The mechanical-positivisteconomic interpreta-
tion ' was urged in Continental Europe by the mechani-
cal sociologists-the type which sought absolute mechan-
ical laws of social development and social phenomena,
and held that the inevitable operation of those laws pro-
fUr Sozialwissenschaft und Sozialpolitik, 449; Leist, Privatrecht und Kapital-

ismus im neunzehnten Jahrhundert (1911).
101. As to this see Stammiler, Sozialismus und Christentum (1920) 58-69;
Croce, Riduzione della filosofia del diritto alla filosofia dell' economia (1907);
Burdick, Is Law the Expression of Class Selfishness? (1912) 25 Harvard Law
Rev. 349; Laski, Studies in Law and Politics (1932) 275 ff.; Laski, Review of
Coker (1934) Recent Political Thought, 43 Yale Law Journ. 1200, 1201-1202;
Albertsworth, Cases on Industrial Law (1928) 1-5. As to "class struggle" see
Sulzbach, "Class" and Class Struggle (1940) 6 Journ. of Social Philosophy, 22.
[ 228 ]
5. Realist Schools
duced all sorts of social, political and legal institutions, as

completely apart from human will as the motions of the
planets. In this view all law in every sense of the term
results from the inevitable workings of certain inflexible
economic laws, which are the laws of social development.
It was the purpose of the mechanical sociologists to work
out a social mechanics or a social physics. One phase of this
mechanical sociology identified the mechanical laws which were
held to determine the content of legal systems and the opera-
tions of the judicial process with economic laws.
An analytical form of this type has been urged in

America chiefly by Brooks Adams.1 "' According to this
interpretation all law is made, and is made consciously,
by men who make and shape legal precepts to suit the
ends of the dominant social class. But those ends are de-
termined economically. Thus all law is the product of
economic causes. This is a combination of the mechani-
cal-positivist economic interpretation with English ana-
lytical jurisprudence.
In this form of the economic interpretation, law is thought
of as a conscious product of the human will. The basis of legal
obligation is found in authority. Thus far it follows Austin.
But it is conceived that the will which makes laws is determined
wholly by the operation of economic laws.
102. Bigelow and others, Centralization and the Law (1906) lecture 1, Na-
ture of Law, by Brooks Adams, lecture 2, Law under Inequality: Monopoly,
by Brooks Adams; Adams, The Modern Conception of Animus (1906) 19 Green
Bag, 12.
[229]
Jurisprudence
Brooks Adams regards law as a manifestation of the will

of the dominant social class, determined by economic motives.
He asserts that ideals of justice have had nothing to do with the
actual course of evolution of law or development of legal doc-
trines. He says that "the rules of law are established by the
self-interest of the dominant class so far as it can impose its
will upon those who are weaker." 103 Elsewhere he says that
ideals of justice mean only that the dominant class "will shape
the law to favor themselves." 104 Law is "the will of a sovereign
precisely in the sense that the earth's orbit, which is the re-
sultant of a conflict between centrifugal and centripetal force,
is the will of a sovereign. Both the law and the orbit are neces-
sities." 105 There is an attempt to combine the mechanical
sociology and the economic interpretation with analytical juris-
prudence.
(c) The realist economic interpretation."' From

this standpoint we have to do with the ends of groups or
persons who are in power for the time being and exercise
the force of a politically organized society for their own
economic advantage. This is an economic-realist version
of social-utilitarianism. Right and law are simply pow-
er. Those in power generalize their ends and put them
in universal terms and thus give us rules and principles
of law.
103. Centralization and the Law (1906) 45.

104. Id. 63-64.
105. Id. 23.
(1905) § 40 (transl. as The World's Legal Philosophies (1912) 298-307); Bohlen,
Old Phrases and New Facts (1935) 83 University of Pa.Law Rev. 305, 306-307;
Myers, History of the Supreme Court of the United States (1912) 8.
[ 230 J
5. Realist Schools
This interpretation was urged in various forms by socialist

jurists, especially in connection with economic determinism. It
has since been taken up by different types of realists and neo-
Kantian relativists.
None of the types of economic interpretation can be

accepted as giving a complete account or all-sufficient ex-
planation of the development or the content of law. None
can give us more than a partial explanation of certain
particular phenomena. What has been said of the his-
torical school and must be said presently of the mechani-
cal sociologists, applies equally to the adherents of the
economic interpretation. But there are three special ob-
jections to an exclusive economic interpretation in any of
its forms.
(1) It is a theory of legislation rather than of law in
the sense of the body of authoritative grounds of or guides to
decision. It is an explanation of some features of the judicial
and administrative processes in action rather than a theory of
the legal order. It is a theory of the will element, the imperative
element, in the body of authoritative precepts rather than of the
traditional element, the element of experience developed by rea-
son, which plays much the larger part in legal history and is in
the long run controlling in a system of law. Moreover, it is
not an interpretation of that more enduring part of legislation
which puts in authoritative form the legal precepts which have
developed from experience and have been formulated in judicial
or doctrinal tradition. It is rather an interpretation of that
less enduring, and in a large view, less important part of legis-
lation which deals with particular details or special subjects,
and lays down precepts for them arbitrarily without regard to
the general principles of the legal system. Roman imperial
[ 231 ]
Jurisprudence
legislation extending special privileges to soldiers, the statute

De Donis, and like legislative phenomena, are put as typical of
all finding or laying down of law.
Much that is vouched for the economic interpretation is
legislation to maintain the social interest in the general security.
Thus Jhering's saying: "Every state punishes those crimes most
severely which threaten its own peculiar conditions of existence,
while it allows a moderation to prevail in regard to other crimes
which, not infrequently, presents a very striking contrast to
its severity as against the former. A theocracy brands blasphemy
and idolatry as crimes deserving of death, while it looks upon
a boundary violation as a simple misdemeanor. (Mosaic law.)
The agricultural state, on the other hand, visits the latter with
the severest punishment, while it lets the blasphemer go with
the lightest punishment. (Old Roman law.) The commercial
state punishes most severely the uttering of false coin, the
military state insubordination and breach of official duty, the
absolute state high treason, the republic the striving after regal
power; and they all manifest a severity in these points which
contrasts greatly with the manner in which they punish other
crimes. In short, the reaction of the feeling of legal right, both
of states and individuals, is most violent when they feel them-
selves threatened in the conditions of existence peculiar to
them." 1o7 In other words, the pressure of the social interest in
the general security is a compelling force in lawmaking.
Undoubtedly there is an element of truth in the economic in-
terpretation of legislation. One cannot look into American
nineteenth-century legislation without perceiving that organ-
ized pressure from groups having a common economic interest
is the sole explanation of many anomalous things in the statute
107. Jhering, The Struggle for Law (transl. by Lalor, 2 ed. by Kocourek,
1915) 48-49. As Jhering says, this was pointed out long ago by Montesquieu.
Id. 49 n. 1.
[232]
5. Realist Schools
books. For example, legislation allowing a lien to one who fur-

nishes material for a building has sometimes been pushed to
strange lengths through the activities of associations of lumber
dealers. 0 8 Credit men's associations have procured laws against
sale of stocks of goods in bulk which have sometimes gone very
far, 10 9 and have sought or procured statutory provisions as to
preferred claims in bankruptcy to defeat or infringe upon the
doctrines as to trusts and constructive trusts.110 Farmers have
procured legislation against allowing weeds to go to seed on rail-
road rights of way, wherein the farmer was left free to maintain
as many weeds as he liked and let them go to seed as much as
he chose. 11 Again, when interpleader was first made the sub-
ject of legislation governing the federal courts, the statute
extended the scope of the proceeding and did away with techni-
cal limitations in the case of insurance companies, surety com-
panies and fraternal insurance organizations. For the rest,
litigants in the federal courts were left where they were before
the statute.112 Insurance companies and surety companies were
organized and could urge a remedial act for their cases, but
were not interested in the cases of litigants generally. Another
108. See an interesting discussion of a proposal for such legislation in Proc.

North Dakota Bar Assn., 1906-1908, 44-53. See also Robertson Lumber Co. v.
Bank of Edinburg, 14 N.D. 511, 515-516 (1905) and cases and textbooks cited
on p. 516.
109. See note in 33 Harvard Law Rev. 717-718 (1920); note 42 id. 277-278
(1928).
110. See McLaughlin, Amendment of the Bankruptcy Act (1927) 40 Harvard
Law Rev. 341, 341 n. 2, 383 ff.; Richardson v. Shaw, 209 U.S. 365, 380 (1908);
In re Archer, Harvey & Co., 289 Fed. 267 (1923); Robinson v. Roe, 233 Fed. 936
(1916).
III. Indiana, Laws of 1889, chap. 82, p. 146; Texas, Laws of 1901, chap.
107, pp. 283-284. As to the common law, see Giles v. Walker, 24 Q.B.D. 656
(1890); Harndon v. Stultz, 124 Ia. 734, 100 N.W. 329 (1904).
112. Act of February 22, 1917, 39 Stat. 929; Act of February 25, 1925, 43
Stat. 976; Act of May 8, 1926, 44 Stat. 416.
[ 233]
Jurisprudence
example may be seen in the state statutes enacted between 1890

and 1917 as to the defense of contributory negligence. These
statutes set up a special rule, making the plaintiff's contribut-
ing negligence a ground of reducing recoverable damages in-
stead of a bar, in case of actions against railroads.1 1 3 It is
clear enough that the statutes were shaped by pressure from
unions of railway employees, pressure from those who made
money out of actions against railway companies, and the antip-
athy of farmers toward railroads, very marked at that time
and growing out of economic relations. This legislative treat-
ment of the problem of contributory negligence should be com-
pared with judicial treatment of the same problem. Juristic and
judicial solutions had been directed toward setting up some gen-
eral principle, such as comparative negligence, division of the
loss or last clear chance. The legislature made a special provi-
sion for a special type of litigant able to exert political pressure.
Lord Darling spoke of such legislation as intended to relieve the
members of certain organizations from "the humiliating posi-
tion" of being upon an equality with the rest of the king's sub-
jects.1 14 But these arbitrary precepts, made under pressure of
group self-interest, are short-lived, or else they are molded into
the general legal system so that they get a new shape and even
a new content therefrom.
113. Florida, Laws of 1891, chap. 4071 (no. 62) § 2, pp. 113-114; Iowa, Acts
-of 1909, chap. 124, pp. 117-118; Kansas, Laws of 1911, chap. 239, § 2; Maine.
Pub.Laws, 1910, chap. 258; Mississippi, Laws of 1910, chap. 135; Nebraska
laws of 1907, chap. 48, § 2, p. 192; Ohio, Act of 1908, Laws of 1909, p. 25, § 2;
;South Dakota, Laws of 1907, chap. 219, § 2; Texas, Gen.Laws of 1909, chap. 10,
§ 2, p. 280; Virginia, Acts of 1916, chap. 444, § 2; Wisconsin, Laws of 1915,
,chap. 437, § 2, pp. 553-554. Significantly, in what was then a mining state, the
statutory rule was extended to "every mine and mill owner and operator actu-
ally engaged in mining or in milling and reduction of ores." Nevada, Laws of
1907, chap. 214, § 2, pp. 437-438. I have discussed these statutes in "The Re-
vival of Personal Government," Proc. New Hampshire Bar Assn. 1917, 13.
114. Bussey v. Amalgamated Society of Railway Servants, 24 Times Law
Rep. 437 (1908).
[234]
5. Realist Schools
We must not forget that the administration of justice aims

consciously at more than the advocates of an exclusive economic
interpretation of all the phenomena of the legal order will hear
of. We must take account of the extent to which judicial ac-
tion is moved by the logical exigencies of a traditional system;
of the extent to which it is constrained by a tradition of teaching,
a traditional technique and what might be called the art of the
lawyer's craft, even against self-interest. This must be borne
in mind especially when, as in modern times, the administration
of justice is in the hands of a profession with a long tradition of
principles, an ideal of justice, and a systematic science, in which
logical deduction from received principles has become a habit.
(2) The phenomena of legal history which are vouched
for this doctrine do not sustain it.
(i) The fellow-servant rule has been a chief reliance
of those who urge the economic interpretation as the sufficient
explanation of every item of judicial finding of law and judicial
determination of causes. But one must make four observations
with respect to their argument. In the first place, they assume
respondeat superior as a fundamental principle of justice and
put the fellow-servant rule as an arbitrary exception to it. 115
It would be more true to say that respondeat superior was a
judge-made exception to a fundamental principle of justice that
liability is based on fault and that the courts refused to extend
115. A typical pronouncement is: "Under the old common law of England
a workman who was injured could sue the master for damages. If he had been
injured by a fellow workman's negligence, he could still sue the master be-
cause the law held the master liable for his servant's acts. ... In 1837
this system of law was changed in a decision rendered by Lord Abinger, Aft-
er that, it became the law that the master was not liable for an injury to a
working man when the injury was due to a fellow working man." Lippmann,
The Good Society (1937) 188, citing Berman, Employer's Liability (1931) 3
Encyc. of Social Sciences, 515. Mr. Lippman's statement as to the law before
1837 is wholly erroneous. The question had not arisen before that date.
[ 235 ]
Jurisprudence
the exception. Mr. Justice Holmes, 116 Dr. Baty,"1 7 and many
others have pointed out that vicarious liability is the exception
to a general principle, not limitation of vicarious liability the
exception to the normal type. Second, they ignore the judicial
development of encroachments on the principle of no liability
without fault, in order to respond to a newer idea that an enter-
prise should bear the human no less than the material wear and
111
tear incident to its conduct, such as the vice-principal doctrine.
Also they ignore the judicial working out of duties incident to
the relation of employer and employee, such as the duty to
furnish safety appliances, and the duty to furnish a safe place
to work,11 9 which were responding to conditions of employment
very different from those involved in the case in 1837. The
courts could not reasonably have been expected to make at one
stroke the radical change to the theory of workmen's compensa-
tion. Third, they overlook the whole setting of Priestley v.
Fowler,2 0 the case which is said to have introduced an arbitrary
exception to employer's liability. It was an action by the servant
of a butcher who was injured by the over-loading of the butcher's
van. The case came up on the declaration and was argued as
one of liability upon contract-whether the contract of em-
ployment involved an implied duty to "cause the servant to be
safely and securely carried." The court said that the mere con-
tract of employment could not be said to involve an implied
obligation of the master "to take more care of the servant than
he may reasonably be expected to do of himself." 121 In other
116. Holmes, Agency (1891) 4 Harvard Law Rev. 345, 5 id. 1.

117. Baty, Vicarious Liability (1916) chaps. 1, 5.
118. 4 Labatt, Commentaries on the Law of Master and Servant (2 ed. 1913)
chaps. 41-44.
119. 3 id. chaps. 36-39; 4 id. § 1497.
120. 3 M. & W. 1 (1837).
121. Id. 6.
[236]
5. Realist Schools
words, so far from introducing an arbitrary exception, that case

refused to depart from established traditional lines. 12 2 Fourth,
they overlook the history of respondeat superior and its relation
to employer's liability. Liability for legal transactions entered
into by an agent within the scope of the agency is correlative to
a power conferred by the principal upon the agent. Liability
without regard to fault for the employee's torts, committed
against the instructions of the employer, despite all precautions
on the part of the employer, and although the employer chose
the employee with due care, is not correlative to a power con-
ferred. It is conferred by law and has a historical origin. The
explanation that the servant represents the master, so that what
the former does must be treated as done by the latter, is a dog-
matic fiction. 12 3 The historical liability has maintained itself
122. It should be noted also that this was not a case of a workman in a
factory. The butcher and his apprentice were of the same class. The appren-
tice expected to be a master butcher when he had served his apprenticeship.
As to the American case of Farwell v. Boston & Worcester R. Corp., 4 Met.
(Mass.) 49 (1842) the case was not argued for the plaintiff as one of a general
rule of liability of the master for injuries due to negligence of his servants.
It was admitted by counsel that Priestley v. Fowler, 3 Mees. & Welsb. 1 (1837)
was rightly decided. But it was argued that the engineer, who was injured,
and the switchman, who was at fault, were "engaged in distinct employ-
ments." Id. 52. There was no suggestion of an arbitrary exception to re-
spondeat superior. Moreover, the same court, in the same volume, in Com. v.
Hunt (4 Met. 111) refused to depart from the common-law doctrine and hold a
labor union a conspiracy, as, according to the economic interpretation it was
bound to do. In that case, to use the words of a leading exponent of the eco-
nomic interpretation, the court "overthrew the substructure upon which a Tory
criminal law against labor organizations could respectably have been estab-
lished." Nelles, Commonwealth v. Hunt (1932) 32 Columbia Law Rev. 1128,
1151. If the first decision was a formulation of the interest of a dominant
employer class, what of the second? The same mode of juristic thought
which led the court to follow Priestley v. Fowler, led them also to reject a the-
ory of conspiracy out of line with the common law. The best explanation that
Mr. Nelles can give is that the court feared the people would take away the
life tenure of the bench and make it elective if some case was not decided in
favor of workingmen at an early opportunity. Id. 1158-1162.
123. Holmes, Agency (1891) 4 Harvard Law Rev. 345, 345-350.
[ 237]
Jurisprudence
because of pressure of the social interest in the general security.

But the difference between representation in legal transactions
and representation in torts contrary to the intent of the employ-
ment has been obvious in all connections except to the partisans
of the economic interpretation in discussing the fellow-servant
rule. "If the law went no further than to declare a man liable
for the consequences of acts specifically commanded by him,
with knowledge of the circumstances under which those conse-
quences were the natural result of those acts," says Holmes,
"it would need no explanation and would introduce no new prin-
ciple." The new principle requiring explanation, he goes on to
say, was introduced into the law when the master without fault
was treated as if he were the tortfeasor. There was an old
historical liability for the acts of those who were in the house-
hold as dependents. In the frankpledge system there was this
sort of liability for the acts of others. The master was made to
stand as security for the conduct of his servants, to hand them
over to justice or pay the fine himself. So far was this carried
that the host was liable for the tort of a guest in his house as
well as for wrongs done by his servant. Thus liability of the mas-
ter for the torts of a servant comes down from a primitive lia-
bility of the head of a household to buy off the vengeance of the
injured person or surrender the wrongdoing dependent.12 4 The
fellow-servant rule, therefore, was not an arbitrary exception
to the general principle of liability. It was a refusal to extend
an exception to that general principle. In the language of Mr.
Justice Holmes, it represents "the revolt of common-sense from
the whole doctrine" of identification of the master with the serv-
ant "when its application is pushed far enough to become notice-
able." 125 It was not at all a unique restriction of vicarious lia-
124. Id. 346 ff.

125. Holmes, Agency (1891) 5 Harvard Law Rev. 1, 16.
[ 238 ]
5. Realist Schools
bility. The same question came up with respect to liability of

the master for punitive damages for wanton and wilful wrong
done by his servant. More than one court, says Mr. Justice
Holmes, "impressed by the monstrosity of the result
peremptorily declared that it was absurd to punish a man who
had not been to blame." 126 A historical liability for those who
were in the household was made into a liability for the acts of
non-dependent employees in order to maintain the general se-
curity. But as to fellow servants the idea has not been one of
maintaining the general security. It has been one of insuring,
at the expense of the nearest person at hand who could bear it,
those who were in no economic position to bear loss. This is a
very recent conception as to the requirements of justice, quite
out of line with nineteenth-century ideas and one which the
judges of 1837 could not reasonably have been expected to grasp.
At that time the idea of using litigation as a means to bring
about what Professor Patten called "distribution of the economic
surplus" had not occurred to anyone. The fellow-servant rule
was not an arbitrarily manufactured exception to established
principles of law set up under economic pressure in the fore part
7
of the nineteenth century.1
Professor Bohlen has given an ingenious economic inter-

pretation of the doctrine of Rylands v. Fletcher,28 namely, that
one who maintains things likely to get out of hand or to escape
and do damage is liable at his peril if they escape or are not kept
within their proper bounds. He compares the English decisions
with those in the United States.' 9 He says that in England the
126. Id. 22.

127. I have discussed this subject at length in The Economic Interpretation
and the Law of Torts (1940) 53 Harvard Law Rev. 365.
128. 3 Hurlst. & C. 774 (1865), L.R. 1 Ex. 265 (1866), L.R. 3 H.L. 330 (1868).
129. Bohlen, The Rule in Rylands v. Fletcher (1911) 59 University of Pa.
Law Rev. 298, 313.
[239]
Jurisprudence
country gentleman was dominant. Consequently, security of

the holding of land seemed paramount to enterprise in making
use of adjoining land. In the United States, on the contrary,
those who were engaged actively in enterprise were the dominant
class, and it seemed that the claim to use and improve land, us-
ing due care, was paramount. 130 This would be well enough if
the decisions in the United States had uniformly rejected the
rule in Rylands v. Fletcher, or if distinctions between the juris-
dictions which follow and those which reject it could be shown
to conform to some such proposition. The facts are that Rylands
v. Fletcher was soon followed in Massachusetts. 31 It was adopt-
ed by the Supreme Court of Minnesota in the following year. 3'
Massachusetts has generally followed English decisions as a mat-
ter of authority and at that time many American state courts
were inclined to follow the decisions in Massachusetts in the
same way. But the next year the question came up in New
Hampshire before Chief Justice Doe, a vigorous and independent
mind, who rejected the doctrine on the basis of a fundamental
principle of no liability without fault."' Chief Justice Doe's
reasoning was so vigorous that for a time it was generally fol-
lowed in this country. The proposition that American courts
rejected Rylands v. Fletcher was announced by writers on torts
and thus added currency was given to the rejection.1 34 Neverthe-
less, after a time the current set in the other way and the juris-
dictions came to be not unevenly divided. The English case
has been followed in Massachusetts,1 35 Minnesota,1 36 Ohio,' 37
130. Id. 318-320.

131. Shipley v. Fifty Associates, 106 Mass. 194 (1871).
132. Cahill v. Eastman, 18 Minn. 324 (1872).
133. Brown v. Collins, 53 N.H. 442 (1873).
134. E. g. Burdick, Torts (1905) § 543.
135. Supra n. 131.
136. Supra n. 132.
137. Defiance Water Co. v. 'Olinger, 54 Ohio St. 532, 44 N.E. 238, 32 L.R.A.
736 (1896).
[240 ]
5. Realist Schools
West Virginia,'3 8 Missouri,1 39 and Texas. 140 It has been rejected

in New Hampshire,141 Rhode Island, 142 New York,14 New Jer-
sey,144 Pennsylvania,145 Indiana,'4" Kentucky,' 41 and Califor-
nia.148 It will be noticed that industrial states are on both sides
of the question. Massachusetts is certainly quite as industrial
as New York and Ohio as Pennsylvania. Nor can it be said
to depend on whether the judges are elective or appointed. Mas-
sachusetts and New Jersey, on opposite sides of the question,
each has an appointed judiciary. Nor can it be said that the
courts are divided on sectional lines. In New England, Massa-
chusetts and New Hampshire with Rhode Island are on opposite
sides. In the Middle West, Ohio and its next neighbor, Indiana,
are on opposite sides. In the South, West Virginia and Kentucky
next adjoining are on opposite sides. The explanation is to be
found rather in the weight of doctrinal considerations and the
tendency of courts to follow certain others on doctrinal ques-
tions.149
138. Weaver Mercantile Co. v. Thurmond, 68 W.Va. 530, 70 S.E. 126, 33 L.R.
A.,N.S., 1061 (1911).
139. French v. Center Creek Powder Mfg. Co., 173 Mo.App. 220, 227, 158
S.W. 723, 725 (1913).
140. Texas & P. R. Co. v. Frazer, 182 S.W. 1161 (Tex.Civ.App.1916). See
also the discussion in Exner v. Sherman Power Constr. Co., 54 F.2d 510 (C.C.A.
2d, 1931).
141. Supra n. 133.
142. Rose v. Socony-Vacuum Corp., 54 R.I. 411, 173 A. 627 (1934).
143. Losee v. Buchanan, 51 N.Y. 476 (1873).
144. Marshall v. Welwood, 38 N.J.L. 339 (1876).
145. Pennsylvania Coal Co. v. Sanderson, 113 Pa. 126, 6 A. 453 (1886).
146. Lake Shore & M. S. R. Co. v. Chicago, L. S. & S. B. R. Co., 48 Ind.App.
584, 92 N.E. 989 (1911).
147. City of Owensboro v. Knox, 116 Ky. 451, 76 S.W. 191 (1903).
148. Judson v. Giant Power Co., 107 Cal. 549, 40 P. 1020, 29 L.R.A. 718
(1895).
149. I have gone into this subject further in Interpretations of Legal His-
tory (1923) 105-109; The Formative Era of American Law (1938) 82-90.

Jurisprudence
(ii) There are many cases in which juristic and ju-

dicial idealism has produced and enforced rules of conduct in
advance of the ideas of the dominant class or of any other
class of the lay community. There are many examples in equity,
such as the doctrines of constructive notice, constructive fraud,
duties of fiduciaries and especially duties of trustees. 150 Our
courts of equity, so far from taking their ethical views from a
dominant class of businessmen, have enforced traditional doc-
trinal legal ideas on that class. They have preserved and en-
forced the ethical tradition of the stage of infusion of morals into
law even to the extent of the idea of a duty of disinterested
benevolence on the part of fiduciaries which has come down from
the clerical chancellors.1 51 No dominant economic class in nine-
teenth-century America had any such ideas of disinterested
benevolence in ordinary affairs. Perhaps it is enough to con-
trast equity doctrines with the notions of businessmen as to the
duties of directors of corporations and of promoters.
(iii) There are many cases also in which a juristic tra-
dition, logically developed by lawyers drawn from a dominant
economic or social class, has withstood the interest of the class.
Those who have urged the economic interpretation in this country
have always assumed that the man of business was representative
of the dominant economic class in our industrial communities
in the immediate past. No branch of the law has been of such
vital importance to the business man as the law of corporations.
But his needs and desires have made very little impression upon
150. "To the writer the doctrine of the clog on the equity of redemption
seems one of the striking examples of the great truth that the ethical standard
of our law is often higher than the average morality of the commercial com-
munity." Wyman, The Clog on the Equity of Redemption (1908) 21 Harvard
Law Rev. 457, 475.
151. "Courts of equity . . . had (so to speak) screwed up the stand-
ard of reasonableness to what many men would regard as an unreasonable
height." Maitland, Lectures on Equity (rev. ed. 1936) 99.
[242]
5. Realist Schools
the traditions of our law as to corporations. We have trans-

ferred to the ordinary trading company or business corporation
all the jealousies that might have some reason with respect to
public service companies. Indeed, a traditional jealousy of cor-
porate action, for the beginnings of which we must go back to
the formative stage of the common law, when municipalities and
ecclesiastical foundations were the only corporations,1 52 will
explain much more of our law of trading corporations than can
be explained by considering the self-interest of any particular
class in the nineteenth century. Legislation has had to provide
for the needs of business and, through the influence of lawyers
trained in the tradition, that legislation has often been along
common-law lines. 15 3 Hence it became necessary for business
men to go to Delaware or New Jersey or some other state with
liberal legislation in order to incorporate their enterprises.
But when the business man takes advantage of the more liberal
corporation laws of another state, he finds himself doing busi-
ness through a "foreign" corporation. Outside of the state
where incorporated, it is potentially an outlaw, suffered to go
on simply by the grace of the local authorities. Although the
constitution guarantees to him that he may do business over
the state line, it is interpreted in a way that prevents or at least
hinders and embarrasses him when he seeks to do business
in the only way that is practicable for any enterprise of magni-
tude. The reason is that at a time when "corporation" meant
a state-granted monopoly it was decided, rightly enough, that
one state could not thrust its monopolies upon another.'5 If,
instead of incorporating, the business man carries on his trad-
152. Even as late as the end of the eighteenth century these are the types
of a corporation to the lawyer. 1 Kyd, Corporations (1793) 1-37.
153. See e. g. a typical discussion of limited liability in Proc.Calif.Bar
Ass'n (1916) 63-91.
154. See Henderson, The Position of Foreign Corporations in American
Constitutional Law (1918).
[ 243 1
Jurisprudence
ing or manufacturing activities by means of a partnership, an

institution as old as commerce, he finds that he cannot do what in
business custom is always done in case of partnership-he can-
not be a creditor of or a debtor to the partnership-because the
law on this subject is not determined by the needs of business
nor does it draw its ideas of partnership from the universal
understanding and practice of business men, but from the ideas
of Roman jurists. 15 5 Every grievance of the American laborer
against American law in the last century can be matched by
quite as real a grievance of the American business man and the
capitalist. 15 There could be no better example of the tenacity of
a taught tradition. If nineteenth-century courts had been but the
mouthpieces through which the business men of America promul-
gated formulations of their self-interest, these things would have
come to an end long ago.
(iv) A further argument may be drawn from those

legal doctrines which have spread over the modern world. The
modern Roman law of legal transactions has not become the
law of the modern world, nor is the English law of torts be-
coming a law of the world because either has a dominant social
class behind it. In each case experience and reason have worked
out certain principles which have proved capable of practical
155. Inst. 2, 25, pr. and 1-2; Dig. 17, 2, 63, pr.; Story, Partnership (1841)
§ 2. Compare also the jealousy of Massachusetts trusts and the whole tone
of Warren, Corporate Advantages Without Incorporation (1929), and the nar-
row limitation of the second category of de facto corporations. Id. 688-690.
156. See Machen, Do the Incorporation Laws Allow Sufficient Freedom to
Commercial Enterprise (1909) 14 Rep.Md.State Bar Ass'n 78. People ex rel.
Hlealy v. Shedd, 241 Ill. 155, 89 N.E. 332 (1909). "I regret that in many com-
mercial matters the English law and the practice of commercial men are get-
ting wider apart." Scrutton, L. J. in W. N. Hillas & Co. Ltd. v. Arcos, Ltd.,
36 Commercial Cases, 353, 368 (1931). See also Chorley, The Conflict of Law
and Commerce (1932) 48 Law Quart.Rev. 51; Pound, Fifty Years of Jurispru-
dence (1938) 51 Harvard Law Rev. 777, 778.
[ 244 ]
5. Realist Schools
application in the administration of justice and of an orderly,

logical juristic development.
We must say, then, that the phenomena of legal history do

not admit of an exclusively economic interpretation.
(3) A theory of mechanical causation by the inevitable

operation of economic laws wholly eliminates the efficacy of
effort. A no less iron-bound science of law results than fol-
lows from the conception of a finally determined detailed natural
law or from the extreme theories of nineteenth-century historical
jurisprudence or from the mechanical sociology. Theories of
law readily become theories of making law and of finding law.
It cannot be a good theory of legislation or of the judicial proc-
ess that lawmaker and judge sit to formulate the self-interest of
the dominant social class. Undoubtedly the ideal element in
law is greatly affected by economics, and thus legal precepts are
gradually affected. Yet it is significant that the common-law
tradition has proved resistant to economic conditions. Our land
law insists that land is to be treated as a fixed and permanent
acquisition, as if we were a community of English country gentle-
men; not as an asset which can be passed readily from hand
to hand, which is the way in which it is regarded by business
men. In American pioneer communities there was a time when
town lots were the chief subject of commercial activity and
men sold and resold lots and speculated in them after the manner
of speculation in shares of stock in commercial centers. 15 7 But
no American court in such an environment ever thought of refus-
ing specific performance of a contract to sell a town lot, although
there were a hundred like it in every particular to be had in the
157. For an account of a real estate exchange, "as stocks are now sold on
Wall Street," in a pioneer community, see 1 Grant, Personal Memoirs (1885-
1886) 208.
[245]
Jurisprudence
real estate market at a moment's notice and its unique charac-

ter was a transparent dogmatic fiction. 1' The legislature in an
agricultural state has sometimes made a farmer's note payable
in corn or potatoes negotiable. 59 No court, even if the judges
were elected for short terms by popular vote, ever thought of
establishing such a rule for a community of farmers by judicial
decision.
Stammler would say that economic conditions help determine
the ideals of the epoch. Economic conditions enter into our
formulation of them. Kohler would say that we must take ac-
count of economic conditions when we determine the jural postu-
lates of the civilization of the time and place. These ways of
putting it are much nearer the truth. The influence of the pure-
ly economic situation upon the traditional element of the law is
indirect and often remote. But the traditional element is the
most enduring and significant part. The actual r6le of economics
is quite different from that pictured by the usual economic
interpretation. Social and economic changes give rise to new
wants. New interests press for recognition and security. As
a consequence traditional principles are put to new uses. The
taught tradition is gradually adapted to new wants and made
to secure new interests or to secure in new ways those already
recognized.
158. compare also the traditional arbitrary lines between real property and
personal property running through the law, requiring special proceedings to
sell land to pay debts of an estate, making a sale of land subject to one set
of doctrines and a sale of chattels subject to another, and much more of the
sort. The controlling shares of stock in the family business may be sold by
an administrator without more. He must go to court for an order or license to
sell even the least significant parcel of land. No American court, however
much land may have been a liquid asset in its jurisdiction has been tempted to
hold the common-law attitude toward property in land inapplicable to local
conditions.
159. Illinois, Rev.Stat.1845, chap. 73, §§ 3-10.
II246 ]
5. Realist Schools
§ 21. NEO-REALISM. 6 ° Recently, under the in-

fluence of positivist sociology, neo-Kantian relativism,
Freudian psychology, and phenomenology, the economic
interpretation has led to what calls itself juristic realism
and appears in a number of forms. In this connection
the terms "realist" and "realism" are used as artists use
these words rather than in a philosophical sense.6 ' Phil-
osophical realism held that the objects of perception are
derived from higher realities or formative causes. 2 The
juristic realist of today would call this, as applied to ju-
risprudence, very unreal. In the sense in which he uses
the terms, "realist" and "realism" are a boast rather than
a description. Each school of jurists in its time has made
a like boast. The analytical jurists spoke of "the pure
fact of law." Historical jurists spoke of their theories
as founded on the "facts of history" instead of pure spec-
ulation. The metaphysical jurists considered that they
160. This name is suggested by Mr. Justice Cardozo in his address before
the New York State Bar Assn. (1932) 55 Proc. New York State Bar Ass'n 263,
267 ff. See also Pound, Fifty Years of Jurisprudence (1938) 51 Harvard Law
Rev. 777, 779-800; Goodhart, Some American Interpretations of Law (1933)
in Modern Theories of Law, 1-20.
161. See Pound, The Call for a Realist Jurisprudence (1931) 44 Harvard Law
Rev. 697-700; id. Fifty Years of Jurisprudence (1938) 51 Harvard Law Rev.
777, 799-800. Fuller has made the same observation. American Legal Real-
ism (1934) 82 University of Pa.Law Rev. 429, n. 1. Radin considers it a merit.
Legal Realism (1931) 31 Columbia Law Rev. 824-825; Patterson, Jurispru-
dence (1951) §§ 463-464. The neo-Kantian element in American juristic re-
alism is pointed out by President Harris, Idealism Emergent in Jurisprudence
(1936) 10 Tulane Law Rev. 169.
162. Neither this nor the later epistemological-metaphysical theory (see 2
Baldwin, Dictionary of Philosophy and Psychology (1901-1905) 421) is what
the recent juristic realists have in mind.
[ 247 1
Jurisprudence
began from an "unchallengeable metaphysical datum."

The mechanical positivists argued that they built on laws
of social development derived from observation and veri-
fied by further observation after the method of the
sciences, and hence as unchallengeable as the laws of
physical nature.
Artistic realists find significance in the ugly features of
nature. They say the ugly exists, hence it is not true, as the
poet put it, that "beauty is truth, truth beauty." The ugly is
true, therefore to be true one must also paint the ugly. In the
same way the realist in jurisprudence finds significance in the
fallings short in the legal order. The proposition is: The ugly
exists, what exists is real, therefore a cult of the ugly is a cult
of the real. The difficulty here is that the word "real" is used in
two senses, one as something that exists, the other as some-
thing that is significant. If one says "the ugly exists, therefore
the ugly exists," he has said nothing. If he says "the ugly ex-
ists, therefore the ugly is significant," that is another matter.
But to say that the ugly exists therefore the ugly is real, leads
naturally to the second proposition.
No doubt realism is meant to be faithful adherence to the
actualities of the legal order as the basis of a science of law.
But a science of law must be something more than a descriptive
inventory. After the actualities of the legal order have been
observed and recorded, it remains to do something with them.
What is there in the program of the extreme new realists which
makes it one of juristic realism? They reject the conceptions
of the past as to juristic reality. Reason is an illusion. Ex-
perience is not the unfolding of an idea. No "pure fact of
law" is to be found in rules, since the existence of rules of law,
as anything outside of the books, is an illusion. Nor have the
phenomena of legal institutions among all peoples been observed
[ 248 ]
5. Realist Schools
with enough accuracy and objectivity to allow of formulation of

laws of legal development therefrom. One may concede all this
and yet be doubtful as to the faith in their ability to find the
one unchallengeable basis free from illusion which many, at
least, of the new realists seem to have taken over from the il-
lusion-ridden jurists of the past.
As in the disputes of diverse schools of jurists in the past,
the difference today is one of emphasis. Received ideals, received
conceptions, the quest of certainty and uniformity, an authorita-
tive technique of using authoritative legal materials, settled legal
doctrines and modes of thought, and a traditional mode of legal
reasoning are actual and everyday phenomena of the legal order.
The question at bottom is whether a faithful representation of
realities shall paint them in the foreground or instead shall put
in the foreground the subjective features in the behavior of
particular judges, the elements in judicial action which stand in
the way of predictability and uniformity, the deficiencies of the
received technique, the undefined edges and overlappings of doc-
trines and the defects of legal reasoning. Emphasis on the
fallings short of these instruments is useful in that it shows us
what we have to do toward making them more effective, or toward
making their workings accord better with the ends of law, or
toward finding better instruments to take their place. But such
critical activity is not the whole of jurisprudence, nor can we
build a science of law which shall faithfully describe the actuali-
ties of the legal order and organize our knowledge of these
actualities merely on the basis of such criticism. There is as
much actuality in the old picture as in the new. Each selects a
set of aspects for emphasis. Neither portrays the whole as it
is. Critical portrayals of the ideal element in a body of law,
valuings of traditional ideals with respect to the actualities of
the social and legal order, and the results to which they lead in
the social and legal order of today, are as much in touch with
reality, i. e. have to do with things of at least as much sig-
[ 249 ]
Jurisprudence
nificance for the legal order, as economic or psychological the-

ories of the behavior of particular judges in particular cases.
As the analytical jurist insisted on the pure fact of law, the

new realist seeks the pure fact of fact. But facts occur in a
multifarious mass of single instances. To be made intelligible
and useful, significant facts must be selected. What is significant
will be determined by some picture or ideal of the science and of
the subject of which it treats. Thus preconceptions will creep
in and will determine the choice of pure fact of fact as they de-
termined the pure fact of law of the analytical jurist. The new
realists have their own preconceptions of what is significant and
so of what juristically must be. Most of them substitute an
economic or a psychological must for an ethical or political or
16 3
historical must.
Five types of juristic neo-realism may be distin-

guished: economic determinism, psychological realism,
skeptical realism, logical positivist realism, and phe-
nomenological realism. There is also sometimes a com-
bination of positivist realism and phenomenology.
These types have certain common characteristics. One is a
tendency to regard everything which influences a particular judge
in a particular case as a source of law. What this comes to is
confusion of the judicial process in any given case with the au-
thoritative guides to decision by which the judges at large, the
legal profession, and as a general proposition, the public, hold it
ought to be decided and normally in the ordinary course of things
cases are decided. When these are so confused there ceases to be
163. For a full discussion of this school see Pound, The Call for a Realist
Jurisprudence (1931) 44 Harvard Law Rev. 697.
[ 250 ]
5. Realist Schools
any proper criterion for criticising judicial action. 164 Moreover,

the action of the judge who decides on personal animosity in con-
travention of established legal precepts is likely to be set aside
on appeal. In such case we surely are not to say that each deci-
sion in its turn was law; and the animosity surely was not a
source of law as to the ultimate decision. Much realist discus-
sion goes upon the psychology of "the judge," forgetting that ul-
timate determinations proceed from a bench of judges and that
therein is a corrective of individual eccentricities and prejudices.
Again, the neo-realists in different ways attack logic as a
method of judicial decision or juristic thinking. Some of them
assume a legal or juristic doctrine that every judicial determina-
tion necessarily follows by a process of formal logic from an au-
thoritatively given premise and from that only. 165 They assume
the teaching of two generations ago which postulated a law for
every case-a rule. But it did not need twentieth-century re-
alists to refute such a doctrine, which, if it was ever held at all
by common-law lawyers, was shown not to apply to new cases,
calling for the finding or making of new rules as long ago as
Austin, whom the realists would consider anything but an ad-
vanced thinker.1 66 Indeed, half a century before Austin, Paley,
whom Austin follows, had shown that choice between competing
analogies did not violate logic. 6 7 Others, approaching the sub-
ject from the wish-psychology, consider that logic is in truth
employed after, not before, a judicial determination in order to
give rational color to something arrived at upon a basis quite out-
164. See as to this Dickinson, Legal Rules: Their Function in the Process
of Decision, Their Application and Elaboration (1931) 79 University of Pa.
Law Rev. 832, 838; Goodhart, Some American Interpretations of Law (1933)
in Modern Theories of Law, 1, 7-10.
165. Oliphant and Hewitt, Introduction to Rueff, From the Physical to the
Social Sciences (transl. by Green, 1929) x ff.
166. 2 Austin, Jurisprudence (5 ed. 1885) 638 ff.
167. Moral and Political Philosophy (1782) bk. vi, chap. 6.
[ 251 ]
Jurisprudence
side of the supposedly authoritative guides to decision. 168 This

proposition must be considered presently in another connection.
But it, too, assumes one-judge determinations and the psycholo-
gy of the postulated one judge as the controlling element. The
tendency in recent American juristic writing to postulate one-
judge determinations and build theories of law as the judicial
process on that basis seems attributable to thinking in terms of
case books for the instruction of students, and of biographies in
which all that appears in the reports under the name of a judge
is attributed to him individually. Law teachers who have not
practiced easily assume that the case book, designed to introduce
the student to the lawyer's technique, gives a picture of the pre-
cept element of the law in any jurisdiction, and that each decision
is simply the product of the judge who delivered the opinion of
the court.
Many of the neo-realists rely upon behaviorist psychology
as the basis of attack upon logic, conceptions, principles, and any
authoritative guides to decision, holding that "decision is reached
after an emotive experience in which principles and logic play a
secondary part." 169 This proposition will be considered in dis-
cussing psychological realism. Similarly, legal terminology is
objected to as no more than a sort of smoke screen for concealing
the uncertainty attending the judicial process which is taken to
be the basic feature of law. 1 0
As a result, there is a cult of the single determination, an in-

sistence on what is held to be the unique single case rather than
on the approximation to a uniform course of judicial action. No
one has denied that single cases have unique features and may be
168. Yntema, The Hornbook Method and the Conflict of Laws (1928) 37
Yale Law Journ. 468, 480.
169. Ibid.
170. Green, Judge and Jury (1930) 43-49.
[ 252 ]
5. Realist Schools
in greater or less degree unique. Long ago, experience made this

proposition a presupposition of Anglo-American equity, and it is
presupposed wherever in the legal system we employ standards
rather than rules. But it is no less true that there are common
elements in cases which may or may not be significant for a
particular problem or situation. The unique aspects of cases,
the common aspects of them, and generalizations from the com-
mon aspects may or may not be useful instruments to attain the
ends of the legal adjustment of relations and ordering of conduct,
according to the connection in which we look at them and the
tasks to which we apply them. None of the three is an absolute
and universal solvent. It seems to be assumed that there is no
reality in rules or principles or conceptions or doctrines because
all judicial action, or at times much judicial action, cannot be re-
ferred to them; because there is no definite precept by which we
may be absolutely assured that judicial action will proceed on
the basis of one rather than of another of two competing princi-
ples; because there is a certain no man's land about many con-
ceptions so that concrete cases have been known to fall down be-
tween them; because much may take place in the course of adju-
dication which does not fit precisely into the doctrinal plan. Such
a view has its use as a protest against the assumption that law is
nothing but an aggregate of rules. But nothing is more unreal,
i. e. more at variance with what is significant in a highly spe-
cialized form of social control through politically organized so-
ciety, than to conceive of the administration of justice, or the
legal adjustment of relations, or even the legislative or judicial
or juristic working out of devices for the more efficient function-
ing of business in a legally ordered society, as a mere aggregate
of single self-sufficient determinations. Such ideas are related
to the Marxian doctrine of disappearance of law. They are part
of the phenomena going along with the rise of political absolu-
tism throughout the world after the first World War. They are
[ 253 ]
Jurisprudence
urged particularly in America by the proponents of administra-

71
tive absolutism.
1. ECONOMIC DETERMINISM and its outgrowth,

economic realism,. is the first form of juristic neo-real-
ism in point of time. It thinks of the content of law
(using the term in the sense of the body of received
grounds of or guides to decision) and of the operations of
the judicial and administrative processes as necessarily
and wholly determined by the aggressive self-assertion
of an economically dominant class. Class self-interest
takes the place held by individual self-interest in the
classical political economy. The social class is made the
unit for juristic theory instead of the individual human
being. Many writers from this standpoint seem to be so
obsessed by the Marxian class struggle that they can see
nothing else operating in the legal order or in the judicial
and administrative processes. Such thinking goes back
171. See Pound, The Place of the Judiciary in a Democratic Polity (1941) 27
Am.Bar Assn.Journ. 133, 139; Pound, For the Minority Report (1941) id.
664; Report of Special Committee on Administrative Law (1938) 63 Rep.Am.
Bar Assn. 331, 342 ff.
172. On determinism in jurisprudence generally see Tourtoulon, Principes

philosophiques de l'histoire du droit (1908-1919) 658-680 (English transl. as
Philosophy in the Development of Law (1922) 567-586). On economic deter-
minism: Pound, Fifty Years of Jurisprudence (1938) 51 Harvard Law Rev.
777, 779-800; Hazard, Soviet Law-An Introduction (1936) 36 Columbia Law
Rev. 1236; Paschukanis, Allgemeine Rechtslehre und Marxismus (transl.
from 3d Russian ed. 1929); Stucka, Introduction A la thdorie du droit civil
(1927); Dobrin, Soviet Jurisprudence and Socialism (1936) 52 Law Quart.
Rev. 402; Gsovski, The Soviet Concept of Law (1938) 7 Fordham Law Rev. 1.
See also Beard, An Economic Interpretation of the Constitution of the United
States (1935 ed.) 14-18, 156 ff.
[ 254 ]
5. Realist Schools
to the single explanation of all the phenomena of the legal

order characteristic of nineteenth-century thought. It
has two sides, one positive, the other negative.
On the positive side economic determinists are much con-
cerned with substitutes for law in the sense of a body of estab-
lished or received precepts applied and developed judicially.
They start from Marx's doctrine that law will disappear with the
abolition of private property, holding that law results from the
division of society into classes, that is, into those who exploit
and those who are exploited, and is no more than a device for
keeping the latter in subjection. Hence, when classes disappear
law, too, will come to an end. 173 There will be no opposing in-
terests to be adjusted.1 74 According to Paschukanis all law has
its basis in exchange of commodities. Law makes trade possible
by adjusting controversies which arise out of it. If there are no
conflicting interests to be adjusted, there is no need of law.
Hence, abolition of private property is to make a civil code un-
necessary. Beyond regulation of exchange of commodities
there is no place for law. Beyond direct or indirect achieving of
this regulation what purports to be law is illusion or analogical
imitation. The conditions which have made for the development
75
of law in social relations are created by capitalism.
But after property is abolished men will still want and claim
to use things which cannot be used by more than one or one at a
time. Accordingly, economic determinism must postulate that
there are no human claims to any sort of control of the material
goods of existence which will press upon a legal order except
173. Marx, Critique of the Gotha Program (English transl. 1933) 31.
174. 3 Stucka, State and Law Encyclopaedia, 1593-in Russian, not trans-
lated.
175. Paschukanis, Allgemeine Rechtslehre und Marxismus (1929) introduc-
tion and chap. 4.
[255]
Jurisprudence
those arising from that highest species of such control which we

call ownership; that there will always be enough of every ma-
terial good of existence at hand to enable everyone at every
moment to have or do all that he can wish, so that no contentions
can arise as to possession or use and enjoyment. 7 6 Also it pos-
tulates that there will be no conflicts or overlappings of the de-
sires and demands known as interests of personality, or that they
will be so simple as not to require more than a common-sense
determination for each individual case. Athletic, artistic, and
literary rivalry, not to mention rivalry in love, are breeders of
crime and wrong and controversy no less than economic differ-
ences. But looking only at economic causes it is urged that there
are no such things as interests to be secured apart from the law.
it is argued that rights, so-called, are only inferences from
threats of state interference, so that there would be none if the
state kept its hands off. It is argued that there is not a matter of
interests pre-existing and taken up by the legal order and secured
by threats, but one of threats arising from the self-interest of
the dominant class, giving rise to demands which are then se-
cured.1 77 There is nothing in experience of human relations in a
crowded world to warrant faith in any of these propositions.
But a doctrine of administrative absolutism is relied on to take
the place of the law for such situations as those involved in in-
terference with personality. The state as an organization of com-
pulsion may go on long after law has disappeared. 78 There is
to be no law and but one rule of law, namely, that there are no
176. One might refer to the difficulties involved in co-ownership of an in-

divisible chattel. Each co-owner wishes to use it and only one can. South-
worth v. Smith, 27 Conn. 355 (1858). See 2 Schouler, Personal Property (3
ed. 1896) § 165.
177. Lundstedt, The General Principle of Liability in Different Legal Sys-
tems (1934) 211 Acta Academiae Universalis Jurisprudentiae Comparativae,
367, 371, 407.
178. Paschukanis, Allgemeine Rechtslehre und Marxismus (1929) chap. 5.
[ 256 ]
5. Realist Schools
laws but only administrative orders for the individual case. Ex-
pediency is to be the guide for each item of judicial-administra-
tive action. 179 A superman administrative official is postulated,
a judge-king of the type of St. Louis administering justice in
person under the oak at Vincennes. There is nothing new in this
idea. In the formative era of American law we thought of lay
magistrates for small causes who were to be of this type. But
they have not proved to be what the system presupposed. Every-
where municipal courts or better organized inferior courts are
replacing the old-time squire.
Later developments in Russia are the best commentary on

the Marxian idea of disappearance of law and the idea of replac-
ing the uniform judicial process by administrative absolutism.
Although Paschukanis recanted at the eleventh hour in 1936, he
was declared a public enemy. It was discovered that a regime of
adjustment of relations and ordering conduct in accordance with
law was not to be replaced by administrative orders; that law
was "the most general and most authoritative expression of the
will of the nation." 180 The extreme fluidity and flexibility as-
sumed as the ideal by Paschukanis and Krylenko l8l was repudi-
ated. It was found that there must be laws and that they must
be stable. 82
179. The Soviet State and the Revolution of Law (1931) 132-in Russian,
not translated; Paschukanis, Allgemeine Rechtslehre und Marxismus, chap. 2.
180. Paschukanis, Stalin's Constitution, in (1935) Soviet State, nos. 4,

24, 27. Soviet State is the organ of the Institute of Law and Political Science
of the Communist Academy. It is not available in translation.
181. Paschukanis in (1935) Soviet State, nos. 12, 48; Krylenko (1935) id.
1-2, 86.
182. A statement of the change of front in Russia with full references to the
Russian sources may be found in Gsovski, The Soviet Concept of Law (1938)
7 Fordham Law Rev. 1, 29-43; id. 1 Soviet Civil Law (1948) 163-191. See
also Hazard, Cleansing Soviet International Law of Anti-Marxist Theories
(1938) 32 American Journal of International Law, 244.
Jurisprudence
A different substitute for law, which it is assumed will dis-

appear in the society of the future, was thought to be provided in
the corporative state.18 3 In such a state the occupational group
was to be the unit instead of the individual man, and we were told
that in this organization of society disputes would be adjusted by
committees of the occupational group, or if controversies arose
between members of different groups, by a general committee
in which the different groups were to be represented. This sug-
gests the regime of kin-group discipline and of the king deter-
mining disputes between different kin-groups and between kin-
groups and kinless men in the earlier societies of antiquity. It is
possibly worthy of notice that law grew out of this process, and
conceivably if the process is repeated law may grow out of it
again. But in the corporative state, as its development went
forward for a time in Italy, there was nothing more than prophe-
cies and projects for substituting this committee-made adjust-
ment for the judicial process according to law. Moreover, the
idea of leaving the whole adjustment of relations to committees
183. Guarnieri-ventimiglia, I principli giuridici dello stato corporativo

(1928): Navarra. Introduzione al diritto corporativo-storia e diritto (1929);
Salemi Lezioni di diritto corporativo (1929); id. Studi di diritto corporativo
(1929); Chiarelli, I1 diritto corporativo e le sue fonti (1930); Ferri, L'Ordina-
mento corporativo dal punto di vista economico, caratteri generali, i soggetti, le
associazioni sindicali (1933); Barassi, Diritto sindicale e corporativo (1934);
Coniglio, Lezioni di diritto corporativo (2 ed. 1934); Mazzoni, L'Ordinamento
corporativo: contributo alla fondazione d'una teoria generale e alla formula-
zione di una domestica del diritto corporativo (1934); Cioffi, Istituzioni di
diritto corporativo (1935); Cesarini Sforza, Curso di diritto corporativo (4
ed. 1935); Pergolesi, Istituzioni di diritto corporativo (2 ed. 1935); Chiarelli,
Lo stato corporativo (1936); Zanelli Quarantini, Le fonti del diritto corpora-
tivo (1936); Aun6s Pdrez, Principios de derecho corporativo (1929); Cabal-
lero, La legislaci6n vigente sobre organizaci6n corporativa nacional (1929);
Aun6s Pdrez, La organizaci6n corporativa y su posible desenvolvimiento
(1929); id. Estudios de derecho corporativo (1930); Zaneada, Programa de
derecho corporativo (1931); Fueile, Le movement corporatif en Italie (1929);
Lescure, Le nouveau rfgime corporatif italien (1934); Pitigliani, The Italian
Corporative State (1933).
[ 258]
5. Realist Schools
of occupational groups postulates that the only significant rela-

tions or groups or associations in society are economic. It is
true enough that men in society are united in all kinds and de-
grees of relations and groups and associations, and that the in-
ner order of these relations and groups and associations is the
cement of the social order.184 But we are not each of us in some
one of these relations or groups or associations exclusively and
for all purposes. We are in many at the same time and they make
varied demands upon our allegiance. Religious history has
shown more than once that economic relations and groups and
associations are not always those with the strongest hold. It may
well be suspected that a regime of administration of justice by
committees of occupational groups, if put in force for the whole
domain of human relations, would have no more enduring exist-
ence than the theory of no law and a regime of administrative or-
ders proved to have in Russia. It is significant that the theory of
the corporative state disappeared with fascism after the second
World War.
What may be called the negative type of economic realist ju-

risprudence is concerned only to demonstrate the deception and
superstition involved in the theory and practice of a judicial proc-
ess guided by a body of authoritative precepts developed and ap-
plied by an authoritative technique. Its exponents presuppose
that the process is in theory one of mechanical application of pre-
cepts with an exactly defined content affixing definite detailed
consequences to definite detailed states of fact. Starting with
this false presupposition, they have no difficulty in showing that
judicial application of standards, such as that of due process of
law, and application by court and jury of the standard of due
care, do not conform to such a theory. But the presupposition
that those who are not prepared to concede the sufficiency of the
184. Ehrlich, Grundlegung der Soziologie des Rechts (1913) chap. 2 (Eng-
lish transl. by Moll (1936) 26-39).
[ 259]
Jurisprudence
economic interpretation or of Freudian psychology to explain the

whole judicial process believe or even would like to believe in
such a theory, is quite gratuitous.1 85 The difference between ju-
dicial application of a rule of property and judicial application of
a standard had been pointed out long before the extreme realists
had begun to write.lM To those who deny there are such things
as authoritative precepts or an authoritative technique one may
reply, can there be any doubt that every judge of every appellate
tribunal in the land would come to the same result as to any giv-
en case where it was sought to make a written promise to pay
money negotiable without using the words prescribed by the Ne-
gotiable Instruments Law, or the law merchant in the absence of
that statute, or in any given case in a jurisdiction where the con-
stitution prescribes a grand jury in which it was sought to main-
tain a prosecution for a capital crime without an indictment?
Much of what seems plausible in the writings of economic deter-
minists gets its effect by confusing application of a standard
with application of a rule and assuming that the phenomena of
applying a standard are typical of every feature of the judicial
process."" 7
In the hands of some economic realists the Marxian disap-

pearance of law becomes a disappearance of private law or rather
185. Equally gratuitous is the assumption that judges and practitioners

of this generation, unless they subscribe to the economic determinist or skep-
tical realist creed, believe in such a theory. See Lummus, The Trial Judge
(1937) 3-4.
186. I have discussed this matter repeatedly. See Juristic Science and
Law (1918) 31 Harvard Law Rev. 1047, 1060-1063; Theory of Judicial De-
cision (1923) 36 id. 641, 643-653; The Administrative Application of Legal
Standards (1919) 44 Rep.Am.Bar Assn. 443, 454-458; The Supreme Court and
Minimum Wage Legislation (1925) compiled by the National Consumers'
League, Introduction; The Ideal Element in American Judicial Decision
(1931) 45 Harvard Law Rev. 136; Hierarchy of Sources and Forms in Different
Systems of Law (1933) 7 Tulane Law Rev. 475, 477-486.
187. See e. g. Beard, The Act of Constitutional Interpretation (1938) 1 Na-
tional Lawyers' Guild Q. 9.
[ 260]
5. Realist Schools
a swallowing up of private law by public law. 88 This has an at-

tractive sound, suggesting that the law of the past, which was a
private possession of individuals, is being superseded by a public
law which is something belonging to all of us. But this is not
what is meant. According to the Roman-law books, public law
was that part of the law which had to do with the constitution of
the Roman state; private law was that part which had to do with
the interest of individuals.8 9 According to the expounders of
the modern Roman law, private law has to do with adjusting the
relations and securing the interests of individuals and determin-
ing controversies between man and man, while public law has to
do with the frame of government, the functions of public officials,
and adjustment of relations between the individual and the
state.190 The term "public law" is not in the literature of the
common law. In Blackstone's system, public law is a part of the
private law of persons. Officials are persons and the law applica-
ble to them is the law applicable to everyone else. 19 1 In the do-
main of English law, the law applied by administrative tribunals
and agencies was the law applied by other tribunals, namely,
statute and common law, developed and applied by a received
technique, as in a common-law court. The rise and multiplication
of administrative agencies and tribunals in the present century
have led to a taking up of the term public law in the Roman sense.
But something more is meant by those who expect to see private
law disappear because of eating up or penetration by public law.
We are told that we must start with a contrast between commuta-
tive justice, a correcting justice which gives back to one what has
been taken away from him or gives him a substantial substitute,
188. E. g. Jennings, The Institutional Theory, in Modern Theories of Law

(1933) 68, 72.
189. Inst. i, 1, 4; Dig. i, 1, 1, 2.

190. 1 Dernburg, Pandekten (7 ed. 1902-1903) § 21.
191. 1 Blackstone, Commentaries (1765) chaps. 3-9.
[ 261]
Jurisprudence
and distributive justice, a distribution of the goods of existence

not equally but according to merit or a scheme of values. In the
positive law this distinction is said to correspond to a contrast be-
tween the "co-ordinating law," which secured interests by repara-
tion and the like, and the "subordinating law," which prefers
some or the interests of some to others according to its measure
of values. 192 Public law is said to be a "law of subordination,"
subordinating individual interests to public interests (i. e. inter-
ests of a politically organized society) and identifying some indi-
vidual interests but not the interests of other individuals with
those public interests.1 9 3 It is said to be impossible to satisfy the
demands of security except by a subordinating type of law which
puts a special value on the position of officials in the legal sys-
tem.194 When it comes to be applied in the common-law world,
this idea of public law as a subordinating law, putting a higher
value on officials and on what they do, and allowing them a wide
discretion to put a higher value on some persons or groups of per-
sons than on others by identifying the interests of those persons
or groups with public interests, is in effect a theory of supplant-
ing law (in the sense of a body of precepts serving as guides to
decisions and developed and applied by an authoritative tech-
nique) by an unchecked magisterial and administrative adjust-
ment of relations and ordering of conduct. If the term "law" is
retained, it is given the meaning of what those officials do be-
19 5
cause they do it.
Economic determinism has had one good result.

The exponents of the doctrine have called attention to an
192. Radbruch, Rechtsphilosophie (3 ed. 1932) 31, 125.

193. Id. 123, 124. See an example in National Labor Relations Board v.
Sunshine Mining Co., 125 F.2d 757 (C.C.A.94, 1942).
194. Id. 123.
195. See my discussion of this, Public Law and Private Law (1939) 24 Cor-
nell Law Quart. 469.
[ 262]
5. Realist Schools
influence upon the judicial process which operated un-

perceived in the last century when judges trained in the
tradition and modes of thought of pioneer America were
quite unconscious of the beginnings and gradual growth
of a class of industrial laborers. These realists challenge
the best efforts of the bench and of the profession to main-
tain the tradition of independence and the zealous and
unremitting quest of objectivity and impartiality which
have been the strength of the common-law judiciary.196
No one doubts that we have here an ideal, and, indeed, an
ideal hard to attain. Nor would those who are unwilling
to look upon the Marxian doctrine of economic interpre-
tation, economic domination, and class struggle as the
sole explanation of the legal order and of the judicial
process, think of believing or pretend to believe that the
ideal has ever been, or very likely ever can be, wholly
realized. But they have warrant in the history of civili-
zation for believing that a steadfast endeavor to do so has
increasingly approximated the process to the ideal; that
it as nearly conforms to its postulate as any practical
human activity, and that the development of and persist-
ence in this endeavor is not the least important achieve-
ment of civilization. To assume that objectivity and im-
partiality in the judicial process cannot exist in the na-
ture of things, to look on the judicial function as political
in the same sense as the legislative and executive proc-
196. Lummus, The Trial Judge (1937) 8-20.
[ 263 ]
Jurisprudence
esses, and invite a conscious exercise of the judicial proc-

ess in the sole interest of a class growing in class con-
sciousness and political power,19 is to undo the whole
achievement of the legal order since the later Middle
Ages.
In the United States today economic determinism
runs into psychological realism and skeptical realism and
has largely merged in the latter. But it tends to have
more of a positive program than the other two.
2. PSYCHOLOGICAL REALISM is a development of

economic realism in the light of Freudian and behaviorist
psychology.'98 Its adherents assume that behaviorist
psychology has completely overthrown the jurisprudence
of the past. They hold that it is psychologically impossi-
ble to do what men had believed they were doing by means
of law. Law is not an agency of promoting control over
internal nature holding down the prejudices and individ-
ual inclinations of judges and officials which might lead
to arbitrary and unequal and unjust exercise of the force
197. See Gsovski, The Soviet Concept of Law (1938) 7 Fordham Law Rev.
1, 42-43.
198. Frank, Law and the Modern Mind (1931) particularly 1-203, 243-
252; Robinson, Law and the Lawyers (1935) particularly 1-19, 46-121, 284-
323; Arnold, The Symbols of Government (1935) particularly 1-104, 199-208.
See also Goodhart, Some American Interpretations of Law (1933) in Mod-
ern Theories of Law, 1, 15 ff.; Pound, The Call for a Realist Jurisprudence
(1931) 44 Harvard Law Rev. 697, 704-707; Pound, Fifty Years of Jurispru-
dence (1938) 51 Harvard Law Rev. 777, 785-790; Mechem, The Jurisprudence
of Despair (1936) 21 Iowa Law Rev. 669; Arnold, The Jurisprudence of Ed-
ward S. Robinson (1937) 46 Yale Law Journ. 1282.
[ 264 ]
5. Realist Schools
of politically organized society. It is only what judges

and officials do, motivated by their prejudices and indi-
vidual inclinations. Thus psychological realists have
been coming to much the same doctrine as the economic
determinists, but on a psychological, not an economic,
basis. They insist on the non-rational element in judicial
and administrative action as reality, and the rational ele-
ment as illusion. Where the last century stressed uni-
formity and predictability and certainty and ignored the
fallings short of these ideals in practice, they stress the
lack of uniformity, and uncertainties, and the influence
of personal and subjective factors in particular cases, at-
tributing to individual psychology the departures from
an ideal of mechanical application of rules which are
necessarily involved in the quite different processes of
choice of starting points for analogical reasoning and of
application of standards.
Einsteinian relativist physics, with its challenge of what had
been supposed the fixed order of the universe, and Freudian psy-
chology, with its demonstration of the role of the wish in what
had passed for reasoning, 99 came as a powerful reinforcement to
economic determinism in the spread of Marxian ideas after the
Russian revolution. It would be quite in the spirit of the psycho-
logical realists to suggest that those who sought a new social or-
der after the first World War wished to find in the legal order the
camouflaged class tyranny and in the judicial process the hypo-
critical pretense which would justify their overthrow. It might
199. There is a good concise statement in Holt, The Freudian Wish and
its Place in Ethics (1915).
[ 265]
Jurisprudence
be suggested that they wished to see a complete class domination

for the future and so were able to see one more assuredly in the
past. It might be suggested that they wished to see an adminis-
trative absolutism wielded by a class with which they sympa-
thized and so were the more easily persuaded that it is impossi-
200
ble to think objectively. Possibly that is true of them also.
No small share in bringing about the extreme features of a
reaction from nineteenth-century juristic thought must be
charged to a type of law teaching which sought to reduce the
whole body of legal precepts to rules in the narrower sense and
the whole judicial process to mechanical application of rules
analogous to rules of property. It is very doubtful whether this
was ever carried so far or was so generally prevalent in Ameri-
can law teaching as realists have been asserting or assuming.
It did govern the writing of cyclopaedias of law and a type of
text book for practitioners and thus to some extent affected the
work of courts with over-crowded dockets and no time to listen
to competent oral argument. Also it found support in the writ-
ing of analytical jurists who assumed a statutory rule of prop-
erty as the type of a law and that law was an aggregate of such
laws. Judges and practicing lawyers, on the other hand, knew
201
better.
In its extreme form, psychological realism conceives of each

item of the judicial process as shaped wholly and inexorably by
the psychological determinants of the behavior of the individual
judge. It thinks of the judicial process in terms of "the judge"
and is largely taken up with consideration of the abstract psy-
,chology of the abstract judge as it is dogmatically assumed to
200. See also an interesting psychological interpretation of psychological

realism in Goodhart, Some American Interpretations of Law (1933) in Modern
'Theories of Law, 1, 16-17.
201. See e. g. Dillon, Laws and Jurisprudence of England and America
(1894) 17-18.
[266]
5. Realist Schools
dictate every item of concrete judicial behavior. In a less ex-

treme form it conceives of determination by factors of individu-
al psychology which are largely undiscoverable, and hence of
judicial action as unpredictable "in a case of any novelty what-
ever." 202
As long as there have been judges and counselors the coun-

selor at law who advises clients has known that he must bear in
mind to some extent the idiosyncrasies of particular judges. But
he has known also that such individual idiosyncrasies will be neu-
tralized in the judicial consultation room. The cases which make
him the most trouble are those involving the application of a
standard and those where there are no near analogies and many
remote analogies with no clear guide leading to one more than
another. Looking only at the formulas announced tentatively in
the development of a doctrine by judicial inclusion and exclusion,
there may seem to be a high degree of unpredictability as to
where lines would ultimately be drawn. But looking at the re-
sults in each case, not at the successive attempts to generalize
from the particular result in a case in hand to a universal pre-
cept, as a rule it is by no means difficult to put the actual results
in the order of reason and be as sure as one can be in any human
activity how cases of that sort, even if they involve some degree
of novelty, will be determined. Even when thought of as mere-
ly a theory of the judicial process, psychological realism is too
dogmatically narrow, ignoring the effect of a bench of judges
upon judicial behavior, the checks upon judicial action and the
constraint exercised by professional criticism and opinion, the
toughness, as Maitland calls it, of a taught tradition 203 and the
effect of received ideals of the social and legal order and reaction
each upon the other of received traditional ideals and subjective
202. Moore and Hope, An Institutional Approach to the Law of Commer-

cial Banking (1938) 38 Yale L.J. 703-704.
203. Maitland, English Law and the Renaissance (1901) 25.
[ 267 ]
Jurisprudence
ideals. It is significant to note the relative narrowness of short-

term elective state judges in their treatment of social legislation
between 1880 and 1910 with the relative breadth of view of ap-
pointed judges on the same questions at the same time.20 4 Realist
theory would call upon us to expect the reverse.
Investigation of the psychology of courts and study of the
psychological bases of the persistence and vitality of a taught
tradition systematized in received treatises and studied both in
the formative student period and, in the case of judges, continu-
ously during long periods of practice before courts and later of
sitting in them, is a more practical and profitable program for
psychological realism than the elaborate study of the relation of
the individual psychology of particular individual judges to par-
ticular individual cases, which has been suggested as the foun-
dation of a science of law.205 A less rigorously behaviorist meth-
od, tempered by the consideration that we must take account al-
so of the restraints upon non-rational individual behavior and
that judges are not likely to do better than we expect them to do,
may well yield useful results. There was a psychological efficacy
2
in the nineteenth-century ideal. 06
it was a distinct advance when Jhering's demand for a ju-
risprudence of actualities led to looking at legal precepts and
doctrines and institutions with reference to how they work or
fail to work and why. In keeping to this attitude the realists
are carrying on the best tradition of the last generation. Also
there is a distinct advance in their frank recognition of the alogi-
cal or non-rational element in judicial action which the legal sci-
204. Eliot (and others) Preliminary Report on Efficiency in the Adminis-

tration of Justice (made to the National Economic League, 1914) 8.
205. Moore and Hope, An Institutional Approach to the Law of Commer-
-cial Banking(1938) 38 Yale L.J. 703, 704-709.
206. See Schofield, Swift v. Tyson: Uniformity of Judge-Made State Law
in State and Federal Courts (1910) 4 Illinois Law Rev. 533, 536-537.
[ 268 ]
5. Realist Schools
ence of the nineteenth century sought to ignore. But many of

these realists seek to ignore the logical and rational element and
the traditional technique of application which make for stability
and uniformity in spite of the disturbing factors. There is not
and cannot be the perfect uniformity and mechanical certainty of
result which the last century postulated as an ideal. The dogma
of a complete body of rules to be applied mechanically (more
held where there were codes and under the Roman-law tradition
than where the common law obtained) was quite out of line with
reality. It is no less dogmatically unreal to shut one's eyes to the
extent to which the administration of justice attains certainty
through rule and form and the extent to which the economic or-
der rests thereon. It is no less unreal to refuse to see the extent
to which legal technique, with all its faults, applied to authorita-
tive legal materials, with all their defects, keeps down the alogi-
cal or unrational or holds it to tolerable limits in practice. In
the field of the economic life (in the stricter sense) there is in-
comparably more significance on the one side than on the other.
It is this significance which makes legal and economic develop-
ment go hand in hand.
3. SKEPTICAL REALISM 207 carries further the

rejection of law in any other sense than the aggregate of
207. Llewellyn, The Bramble Bush (1930) 3; id. A Realistic Jurisprudence

-The Next Step (1930) 30 Columbia Law Rev. 431; id. Some Realism About
Realism (1931) 44 Harvard Law Rev. 1222; Bingham, What is Law? (1912) 11
Mich.L.Rev. 1, 109; Llewellyn, Pr~ijudizienrecht und Rechtsprechung in Amer-
ika (1933) §§ 1-16; Pound, The Call for a Realist Jurisprudence (1931) 44
Harvard Law Rev. 697; Llewellyn, Legal Tradition and Social Science Method
in Swann (and others) Research in the Social Sciences (1931); Frank, What
Courts Do in Fact (1932) 26 Illinois Law Rev. 645; id. Are Judges Human?
(1931) 80 University of Pa.Law Rev. 17, 233; Hutcheson, The Judgment In-
tuitive (1928) 14 Cornell Law Quart. 274; Yntema, Rational Basis of Legal
Science (1931) 31 Columbia Law Rev. 925; Radin, Legal Realism (1931) 31
Columbia Law Rev. 824; Arnold, The Role of Substantive Law and Procedure
in the Legal Process (1932) 45 Harvard Law Rev. 617; Frank, Mr. Justice
[ 269 ]
Jurisprudence
the items of judicial and official action. Law is what of-

ficials do and what officials do is law. In this extreme re-
jection of what lawyers had thought of as law from the
beginnings of a science of law, Einsteinian relativist
physics and neo-Kantian epistomology with its doctrine
of irreducible antinomies and the ultimate role of force
cooperate with economic determinism and psychological
realism. Many things lie behind any particular item of
human behavior and so of official behavior. But two
things are excluded from the motivation of judicial be-
havior, namely, the body of authoritative guides to deci-
sion and the authoritative technique of developing and
Holmes and Non-Euclidean Legal Thinking (1932) 17 Cornell Law Quart.

568; Goble, Law as a Science (1934) 9 Indiana Law Rev. 295; Beutel, Some
Implications of Experimental Jurisprudence (1934) 48 Harvard Law Rev.
169; Marx, Juristischer Realismus in den Vereinigten Staaten von Amerika
(1936) 10 Revue internationale de la thdorie du droit, 28; F. Cohen, Tran-
scendental Nonsense and the Functional Approach (1935) 35 Columbia Law
Rev. 809; Auburtin, Amerikanische Rechtsauffassung und die neueren Amer-
ikanischen Theorien der Rechtssoziologie und des Rechtsrealismus (1933) 3
Zeitschrift fir ausliindisches 5ffentliches Recht, 529, 547-564.
Pound, Fifty Years of Jurisprudence (1938) 51 Harvard Law Rev. 777, 790-
797. See also Cohen, Law and the Social Order (1933) 219-247; id. On Ab-
solutisms in Legal Thought (1936) 84 University of Pa.Law Rev. 681; Dickin-
son, Legal Rules: Their Function in the Process of Decision, Their Appli-
cation and Elaboration (1931) 79 University of Pa.Law Rev. 832, 1052; Fuller,
American Legal Realism (1934) 82 University of Pa.Law Rev. 429; Kantor-
owicz, Some Rationalism About Realism (1934) 43 Yale Law Journ. 1240;
Harris, Idealism Emergent in Jurisprudence (1936) 10 Tulane Law Rev. 169;
Cardozo, Address before the New York State Bar Assn. (1932) 55 Rep.N.Y.
State Bar Assn. 263; Friedrich, Remarks on Llewellyn's View of Law, Offi-
cial Behavior, and Political Science (1935) 50 Political Science Quart. 419;
Kennedy, Principles or Facts? (1935) 4 Fordham Law Rev. 53; id. Functional
Nonsense and the Transcendental Approach (1936) 5 Fordham Law Rev. 272.
Lundstedt, Superstition or Rationality in Action for Peace (1925) 96-119;
Id. Die Unwissenschaftlichkeit der Rechtswissenschaft (1932-1936); id. The
General Principles of Civil Liability in Different Legal Systems (1934) 2"1 Acts
Academiae Universalis Jurisprudentiae Comparativae, 367.
[ 270 1
5. Realist Schools
applying them. That these have anything to do with the

actual course of judicial or administrative determina-
tion is held to be pious wish or superstition.
There is a more or less complete skepticism as to the
systematic character of official action as a quality of
the legal order,"' as to the role of legal precepts in the
administration of justice,"'9 and as to the actuality or
even possibility of any degree of objectivity in the judi-
cial process."'
208. Llewellyn, The Bramble Bush (1930) 3, 11.

209. Llewellyn, Some Realism About Realism (1931) 44 Harvard Law Rev.
1222, 1237; Frank, Law and the Modern Mind (1931) 148-150, 250, 278. "The
earlier case means only what the judge in the later case says it means. Any
case is an 'authoritative' precedent only for a judge who, as the result of his
own reflection, decides that it is authoritative." Frank, Law and the Modern
Mind (1931) 149 n. See Fuller, American Legal Realism (1934) 82 University
of Pa.Law Rev. 429, 433.
210. "The rules a judge announces when publishing his decision are, there-
fore, intelligible only if one can relive the judge's unique experience while
he was trying the case-which, of course, cannot be done." Frank, Law and
the Modern Mind (1931) 150. "Of the many things which have been said
of the mystery of the judicial process, the most salient is that decision is
reached in an emotive experience in which principles and logic play a sec-
ondary part. The function of juristic logic and the principles which it em-
ploys seems to be like that of language, to describe the event which has al-
ready transpired." Yntema, The Hornbook Method and the Conflict of Laws
(1928) 37 Yale Law Journ. 468, 480. See also Frank, Law and the Modern
Mind (1931) pt. I, chap. 12; id. Are Judges Human? (1931) 80 University of
Pa.Law Rev. 17, 23-31, 34-37; id. at 233, 240-248; id. What Courts Do in
Fact (1932) 26 Illinois L.Rev. 645; Llewellyn, A Realistic Jurisprudence-
The Next Step (1930) 30 Columbia Law Rev. 431, 447-453.
Saleilles' reference to the Marxian socialist jurisprudence of the first decade
of the present century as "the empiricism of instinctive or brutal facts and
claims" may be compared with the "brute facts" so insistently referred to in
contemporary realism. L'individualisation de la peine (2 ed. 1909) preface,
p. ii.
[2711
Jurisprudence
That skeptical realism has had its chief development among

American teachers of law is due to a condition peculiar to Amer-
ican law and American law teaching. In the United States, for-
ty-eight states have each their own legislation, and as to ques-
tions of private law, their own ultimate law-finding agency in
their highest courts. The federal government has in addition its
own system of courts, and until recently 211 had an ultimate law-
finding authority for much of private law for those courts. Be-
neath all this is a fundamental unity through the received Eng-
lish common law, received common-law technique, and the com-
mon use of doctrinal treatises, and the persuasive authority of
decisions of other common-law courts. But while there is con-
sistency and uniformity in each jurisdiction, if we seek to think
of American law as a unit, there is a great diversity in detail and
in any jurisdiction in which a question arises for the first time
there may be a great number of competing views of equal au-
thority from which to choose. When law was taught in local
schools there was little confusion in the local law to attract at-
tention. But as it has come to be taught more and more in
schools with a student body drawn from the country at large, and
teachers have sought to teach an American law as a whole, there
has seemed a hopeless confusion in many subjects in which the
several states have diverged in their working out of details. Thus
as a teacher sees it there is a want of certainty and predictability
and uniformity which the lawyer does not find in the particular
jurisdiction in which he practices. He knows which of diverging
lines of persuasive authority are likely to be followed in his ju-
risdiction even if the teacher cannot find one which is likely to
prevail universally.
There are three possibilities in the discussions of law in
terms of the judicial process which go by the name of realism.
Realism might be simply a theory of how the judicial process
211. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).
[ 272 ]
5. Realist Schools
and the administrative process do actually take place. If so, like

most juristic theories, it contains a partial truth. It is a theory
of the whole process in terms of the administrative element in the
process, and to some, but less, extent of the more or less legisla-
tive element involved in "finding the law" by analogical reason-
ing. Or, second, it might be a theory of what ought to take place
in the operation of the judicial process. It might consider that
process from the Marxian standpoint of a class enforcing its self-
interest. It might assume that a class rapidly rising into power
ought to bring about an administration of justice avowedly in its
sole interest, and that such is, on the whole, what we must come
to in theory and what we ought to come to in practice. Or, third,
it might join psychological determinism in a theory of what psy-
chologically must be and what is psychologically impossible in
the judicial process. In that event, it needs much correction
from a theory which will take account of the role of a taught tra-
dition in legal history and experience of the effect of such a tra-
dition upon the judicial process throughout the common-law
world.
As has been suggested above, the situations which give aid

and comfort to the skeptical realist view of the judicial process
are, first, cases of the application of standards, and, second, cas-
es where choice becomes necessary between starting points for
legal reasoning which have equal authority, and the question is
from which to begin, there being no precept to determine this.
If we start with the nineteenth-century postulate of analytical
jurisprudence in the English-speaking world, of the French ex-
positors of the Civil Code in the last century, and of the Pandec-
tists, the postulate that there is a complete system of legal pre-
cepts, either actually or potentially covering every case, and that
finding a rule for a new case is no more than a logical drawing
out of a precept logically contained in or presupposed by some
expressed precept-if we apply this postulate to increasingly
common situations where the law must be "found" it may seem
1 Pound Jurisprudence-iS E273 ]
[
Jurisprudence
to refute any idea of a uniform, predictable course of judicial ac-

tion. But even in this type of case the judicial process is by no
means so completely at large or so completely a matter of indi-
vidual behavior tendencies of some particular judge as skeptical
realism has assumed.212 The assumption ignores the decisive role
of received technique and ideals.
There is a better basis for the demand for certainty and pre-
dictability than persistence of the child's desire to be led.2 13 As
Saleilles puts it, "the demands of the social order, represented by
the rigidity of legal principles as well as by the requirements of
individual justice, will ever be recognized." 214 In times of liber-
alization, following upon changes in the social and economic or-
der, the balance between the general security and the individual
life becomes disturbed. It is likely to incline for a time strongly
toward the individual life and so lead to a somewhat blundering
or unsystematic individualizing until new practicable generali-
zations have been worked out. One who looks at the legal phe-
nomena of a time and place only in terms of the phenomena them-
selves may well be deceived into thinking them much less possi-
ble of being put in the order of reason than they are.
A common assumption of the realists is that those who have
been unwilling to go with them to the full length of their doc-
trine seek to rule out discretion from the legal order and from
the judicial process. Frank's argument 15 assumes that one who
212. Pound, The Ideal Element in American Judicial Decision (1931) 45

Harvard Law Rev. 136; id. A Comparison of Ideals of Law (1933) 47 Harvard
Law Rev. 1; id. Hierarchy of Sources and Forms in Different Systems of Law
(1933) 7 Tulane Law Rev. 475.
213. Frank, Law and the Modern Mind (1931) pt. I, chap. 2, pt. III, chap. 1.
214. L'individualisation de la peine (2 ed. 1909) preface p. vi (English
transl. p. xxvi).
215. Frank, La and the Modern Mind (1931) 140, 141; id. Are Judges
Human? (1931) 80 University of Pa.Law Rev. 17, 19.
[ 274 ]
5. Realist Schools
is speaking of law in the sense of the body of authoritative pre-

cepts is speaking also and at the same time of law in the sense
of the legal order and of law in the sense of the judicial process.
When a judge, as he so often must, exercises his discretion, since
there is an administrative element in the judicial process, he
goes outside of law in the second sense of the term but not out-
side of his duty under the legal order. Discretion is contrasted
with law in the second of its three senses, as one of the instru-
ments of that order. Because one points out this contrast, using
law in the second sense, it does not follow that he is excluding or
seeking to exclude discretion from the legal armory.
There is a good side to the work of the American skeptical
realists. Although they had been anticipated by Jhering and by
Kantorowicz,2 10 they have brought home vigorously to bench and
bar in the United States the need of thinking about the judicial
process and seeking to improve its exercise. Moreover, when it
is recognized that there is an alogical, unrational, subjective ele-
ment in judicial action, attempt by study of concrete instances of
its operation to reach valid general conclusions as to the kind of
cases in which it operates most frequently and where it operates
most effectively or otherwise for the ends of the legal order, be-
comes indicated as an important item in the juristic program.
When this subject is studied adequately and the role of the ideal
element in law is well brought out, and that element is better or-
ganized and is subjected to an adequate critique, jurisprudence
will have done much for law in the sense of the judicial process.
Much needs to be done also upon the program indicated by

Llewellyn. 17 The judicial and administrative processes are a
216. Jhering, Scherz und Ernst in der Jurisprudenz (1884) pt. 3; Gnaeus
Flavius (Kantorowicz), Die Kampf um die Rechtswissenschaft (1906). See
also Pound, Mechanical Jurisprudence (1908) 8 Columbia Law Rev. 605.
217. Llewellyn, Some Realism About Realism (1931) 44 Harvard Law Rev.
1222, 1247, 1250.
[275]
Jurisprudence
legitimate and important part of the field of jurisprudence if we

unify the three meanings of "law" by the idea of social control,
of which, taken together, they are today the paramount agency.
Out of the work of the skeptical realists there may come a better
basis for this side of the task of the science of law even if we can-
not admit that the judicial process is all that we mean by law or
that an adequate science of law may be built wholly on theories
of that process as purely or even primarily independent of guid-
ance by authoritative legal precepts developed by a received tech-
nique.2 18
4. LOGICAL POSITIVE REALISM "' is a much

more sober type. It investigates, from the standpoint of
the logical theory of today, the modes of thought, and par-
ticularly the solving words and phrases used by lawyers
and judges, and has urged quest of a method of solving
legal problems through a science of law with the same ob-
jectivity as physics or mathematical astronomy. Objec-
tive value judgments are to be reached, not by rigorous
deduction from arbitrarily chosen postulates, but by
21 8. In this connection note especially Llewellyn's penetrating discussion

of certainty in his book on American case law: Priijudizienrecht und Rechts-
prechung in Amerika (1933) §§ 55-61.
219. Cook, Scientific Method and the Law (1927) 13 A.B.A.J. 303; id. The
Possibilities of Social Study as a Science (1931) in Swann (and others), Es-
says in Research in the Social Sciences, 27; id. A Scientific Approach to
the Study of Law (1937) Essays in Political Science in Honor of W. W. Wil-
loughby, 201; id. The Logical and Legal Bases of the Conflict of Laws (1924)
33 Yale Law Journ. 457; Dimock, Le Professeur W. W. Cook et la relativism
juridique (1932) Archives de philosophie du droit et de sociologie juridique,
575, with bibliography of Professor Cook's writings.
Cf. Rueff, From the Physical to the Social Sciences (transl. by Green, 1929);
Oliphant, Facts, Opinions, and Value Judgments (1932) 10 Texas Law Rev.
697, 701-705.
[276]
5. Realist Schools
scientific research in the sense and in the manner of the

physical sciences, disclosing a basis for judgments in the
facts of the legal order and of the judicial and adminis-
trative processes.
Here we are brought to a question of the significance of sta-
tistics for the science of law. The single instance may or may
not have significance according to the purpose for which or in
connection with which we consider it. So with the mass or ag-
gregate of single instances. If, for example, we are studying
congestion of the criminal dockets in certain parts of the coun-
try and its effect upon the enforcement of a particular law and
find that in those places the percentage of sentences of imprison-
ment runs from 4 to 6, whereas in the country at large it is 41,
these figures throw much light upon the workings of what have
been called bargain days and cafeteria courts.2 2 0 Of themselves
they mean nothing. They get their significance through the con-
nection in which they were sought for and the conclusion, prob-
ably reached in the first instance on another basis, which they
confirm. Masses of figures do not make a piece of work scien-
tific. 2 21 But a scientific inquirer may have an idea which he can
fortify or confirm by knowing where and how to find a mass of
figures significant for his purpose. Very little experience of us-
ing current official statistics is required to convince that statistics
gathered for no purpose beyond filling a report with impressive
tabulations are seldom valuable for anything else.2 2 2 I would not
220. National Commission on Law Observance and Enforcement, Report

on the Enforcement of the Prohibition Laws of the United States (1931) 100-
101; Warren, Traffic Courts (1942).
221. National Commission on Law Observance and Enforcement, Report

on Criminal Statistics (1931) 26-28.
222. Pound, What Use Can Be Made of Judicial Statistics (1933) 12 Ore-
gon Law Rev. 89, 90-91; id. The Relation of Statistical Quality Standards
to Law and Legislation, University of Pennsylvania Bicentennial Conference:
Fluid Mechanics and Statistical Methods in Engineering (1941) 137, 141-143.
[ 277 ]
Jurisprudence
for a moment belittle the importance of bringing together infor-

mation as to exactly how legal precepts and doctrines and insti-
tutions are functioning. But statistics on these subjects are not
the only objectively ascertainable data available to the jurist. In
the reported decisions of the past we have a record of experience
in the administration of justice, of how precepts or doctrines or
institutions have worked or have failed to work, and of how and
why they came to be formulated or shaped as we find them, which
is as solid a basis for objectively scientific study as any mass of
figures can be. I would not give over the quest of significant sta-
tistics. On the contrary, we need urgently to replace the crude
and often pointless official compilations put forth too often by
bureaus and departments national and state. But when we get
them they will simply afford additional material. Chiefly we
shall have to understand the doctrinal and institutional and leg-
islative materials which have come down to us, both in their
workings and in their possibilities, using such statistics as we
may find or may gather as helps toward that understanding.
In the social sciences we must consider how men do act (or,
if one prefers, behave) in their relations and contacts with oth-
ers, how they ought to act in those relations and contacts in or-
der to maintain, further, and transmit civilization, and how to
insure so far as may be, by social, economic, political, and legal
institutions, or by ethical precepts, a correspondence of what
takes place with what ought to be. In the narrower field of ju-
dicial application of law we must consider how judges do decide,
how they ought to decide in order to give effect to the ends of the
legal order, and how to insure, so far as may be, the decisions
that ought to be. Undoubtedly the gathering of statistics can be
made to show us much as to how justice is administered, and how
and how far legal precepts are observed and enforced. But some
expect them also to show how justice must inevitably (through
a psychological necessity) be administered and so expect to dis-
pense with the question how it ought to be administered. This
[ 278 ]
5. Realist Schools
question of ought, turning ultimately on a theory of values, is

the hardest one in jurisprudence. Those who seek an exact sci-
ence, analogous to mathematics or physics or astronomy, have
been inclined to essay exactness by excluding this hard problem
from jurisprudence altogether. But such a jurisprudence has
only an illusion of reality. The significant question is the one ex-
cluded.
Three points are to be made with respect to the conceiving of

jurisprudence in terms of a physical science. For one thing, the
physics of today has more margin for contingency, and a larger
speculative element than that conception assumes. Again, judg-
ing the conception by its results with respect to the ends of law,
it seems to lead back to the juristic pessimism of the historical
school and the nineteenth-century positivists. Some at least of
its advocates seem to regard the harnessing of internal nature to
man's purposes, which along with the harnessing of external na-
ture had been taken to be the basis of civilization, as an illusion
so far as it is sought to be brought about deliberately and of set
purpose. They are prone to hold that it must come about through
psychological or economic laws, operating behind the scenes and
beyond the reach of conscious effort.
What is more important, however, there is a significant dif-

ference between the formulas of the engineer and the formulas
of social control of which legal formulas are a specialized type.
Legal formulas, or at least those to be found in the reports and
the commentaries on legislative texts, are formulations of expe-
rience no less than those of the engineer. The materials of legal
experience are as objective and as valid for scientific treatment
as those of engineering experience. The difference is that legal
formulas are put to a test to which the engineer's formulas are
not subjected. Legal formulas seem to have hazy and indefinite
limits, and engineering formulas sharp and definite limits, be-
cause the former operate to restrain behavior, while the latter
[ 279 ]
Jurisprudence
are used to make action possible.22 3 It is true a type of new ju-

ristic realist would treat legal formulas as devices to permit of
action.22 4 But this is largely a way of saying that in the endeav-
or toward a maximum of free individual self-assertion, a compe-
tition of legal formulas and choice from among them may enable
certain items of behavior to escape application of an inconven-
ient formula. The net result of legal formulas is restraint of be-
havior, while that of engineering formulas is to make action pos-
sible. Hence men are forever pushing to the extreme limits of
legal formulas, while engineers steer a conservative middle
course between the limits of their formulas. In each case the
formula on its face is definite enough. In the legal formula this
definiteness is put to severe test by a steady current of behavior
seeking to stretch the formula to the utmost. But no engineer
or architect or builder would think of building to the theoretical
limits of strength of materials. If he did he would risk prosecu-
tion for manslaughter. As a matter of course he builds well
within them, and so we are able to contrast the certainty of his
results with the relative uncertainty of legal results in action.
This is not due to a more exact science or more strictly scientific
method in the one case than in the other. In both cases experi-
ence has been formulated in rules which are valid enough at the
core and indefinite or contingent enough in application at the
limits. The difference lies in the nature of the tasks imposed up-
on the respective formulations of experience, whereby the con-
tingent features in the application of the one are tried continu-
ally while those of the other are rarely developed.
223. Shewhart, Statistical Method from the Viewpoint of Quality Control

(1939); id. Contribution of Statistics to the Science of Engineering, Uni-
versity of Pennsylvania Bicentennial Conference: Fluid Mechanics and Sta-
tistical Methods (1941) 97; Pound, The Relation of Statistical Quality Stand-
ards to Law and Legislation (1941) ibid. 137.
224. Pound, The Call for a Realist Jurisprudence (1931) 44 Harvard Law
Rev. 667, 708-709.
[280]
5. Realist Schools
One feature of the approach from the standpoint of the

physical sciences is insistence on exact terminology. The analyti-
cal jurists and the Pandectists laid stress on this also. But the
utility of precise terminology and exact meanings is more in con-
nection with differentiating problems from pseudo-problems and
with formulation of results than in providing solutions. None
of the fundamental problems of jurisprudence is solved by ter-
minology. There have been signs that rigid terminology has been
used to create an appearance of solution of questions which have
been left untouched at the core. It should be added, however,
that the logical attack on the jurisprudence of conceptions car-
ried on for a generation by Professor W. W. Cook, his relentless
exposure of Scheinbegriffe, and his critique of specious universals
and generalities have done a service to the law (in the sense of
the body of authoritative precepts and technique of developing
and applying them) and make for a more intelligent juristic
thought and effective judicial process. Unhappily, his program
of investigation of the work of the state courts from a positivist
economic standpoint had to be given up while its technique was
still developing. But a notable beginning was made from which
those who come to the study of research method in the future
5
will be able to learn much."
225. Publications of the Institute of Law of Johns Hopkins University:

Monographs in the Study of Judicial Administration in Ohio (1932); Bulle-
tins of the Study of Judicial Administration in Ohio (1932); Monographs in
the Study of the Judicial System of Maryland (1931-1932); Bulletins of the
Study of the Judicial System of Maryland (1931-1932); Monographs of Sur-
vey of Litigation in New York (1931-1932); Bulletins of Survey of Litigation
in New York (1931-1932); Yntema, Analysis of Ohio Municipal Court Acts
(1933); Beutel, Experimental Jurisprudence (1957) 105-114.
Marshall, Unlocking the Treasuries of the Trial Courts (1933); id. Com-
parative Judicial Criminal Statistics: Six States (1932) 193; id. Compara-
tive Judicial Criminal Statistics: Ohio and Maryland (1932).
[ 281 ]
Jurisprudence
5. PHENOMENOLOGY 226 derives the significance

and connection of phenomena from the phenomena them-
selves. It holds that knowing is not a valuing or a critical
act, but is a mode of existence of actuality. Hence ju-
ristic phenomenology styles itself a theory of actuality
as its American analogue calls itself realism. Goodness
is held to be an ultimate and objective subsisting entity
which is intuitively perceived. A right action is one
which has, on the whole, the best actual consequences,
the best consequences being those which contain the
greatest quantity of ultimate goods which are intuitively
perceived to be valuable. Experience recognizes values
embodied in social facts in which the values are realized.
Justice is the totality of jural values intuitively recogniz-
ed through collective experience. But these values are
extremely variable and hence justice has no meaning
apart from the facts in which values are realized.
As Sauer has remarked, German juristic phenomenology
22 7 It
has not thus far been able to achieve any notable results.
226. Reinach, Die apriorischen Grundlagen des bfirgerlichen Rechtes (1922);

Schapp, Die neue Wissenschaft vom Recht (1931-1932); Kaufmann, Logik
und Rechtswissenschaft (1922); id. Die Kriterien des Rechtes (1924); id.
Die philosophischen Grundprobleme der Lehre von der Strafrechtsschuld (1929) ;
Schreier, Grundbegriffe und Grundformen des Rechts (1927, translated as
Concepto y forma fundamentales del derecho by Garcia Maynes, 1942); G.
Husserl, Recht und Welt (1930); Treves, Sociologia y filosofia social (1941)
chap. 3.
See also Spiegelberg, Gesetz und Sittengesetz (1934).
For applications see G. Husserl, Der Rechtsgegenstand (1933); id. Rechts-
kraft und Rechtsgeltung (1925); Engisch, Zur phlinomenologischen Methode
im Strafrecht (1937) 30 Archiv fUr Rechts und Sozialphilosophie, 130.
227. Rechts und Staatsphilosophie (1936) 25.
[ 282 ]
5. Realist Schools
finds significance in the continually changing single phenomena

of the judicial and administrative processes. Ends are reached,
values are perceived, and so just results are reached intuitive-
ly. " 8 Some American realists seem to combine this with econom-
22 9
ic determinism and psychological realism.
30
6. THE SWEDISH REALISTS 2 proceed upon an ul-
tra-realist analysis of the lawmaking, judicial, and ad-
ministrative processes. From this standpoint law (in
the second sense) is an aggregate of independent impera-
tives establishing behavior patterns for those whom the
lawmaking authority wishes to influence. The rules are
imperative in form. But they are not commands since
no one commands them. They are explained psychologi-
cally. Certain general ideas prevail as to the government
of a country. They are taken to be binding and are habit-
ually obeyed. Accordingly, certain persons are designat-
ed to wield supreme political power. Thus they are in a
position to put pressure upon men generally and thereby
to direct their actions in certain respects. 31 Legal rights
and duties are imaginary. Obedience is assured by the
belief of people that they have a duty to obey. Indeed,
228. Cf. Hutcheson, The Judgement Intuitive-the Function of the "Hunch"

in Judicial Decisions (1929) 14 Cornell Law Quart. 274.
229. See Yntema, Jurisprudence on Parade (1941) 39 Michigan Law Rev.
1134.
230. The best account in English is Olivecrona, Law as Fact (1939). There
is an excellent short statement in Yntema, Jurisprudence on Parade (1941) 39
Michigan Law Rev. 1134, 1171-1174.
231. Olivecrona, Law as Fact (1939) 53.
[ 283 ]
Jurisprudence
Hdigerstr6m argues that the imagined legal duty is in

reality a feeling of obligation. There is an imaginary
bond originally derived from primitive magic. 3' The
reality is force applied by officials and the psychological
basis of obedience which makes actual application of
force largely unnecessary.2 3 This is in line with the gen-
eral tendency toward a threat-theory of law.
7. CONSTRUCTIVE JURISTIC REALISM. Thus far

the achievement of realism in all its forms has been to
rouse jurists and lawyers from what Kant called dogmat-
ic slumber. In this it has carried on the work begun by
Jhering. But it should be possible to formulate a con-
structive program of relativist realist jurisprudence. 4
American realists, with the Anglo-American pro-
fessional tradition behind them, think in terms of the
judicial process. But in contrast to the analytical jurists
who thought of that process in terms of development and
application of authoritative precepts by an authoritative
technique, they think of the administrative side of the
judicial process as the type. Continental realists, with
the modern Roman academic tradition behind them,
think of a codified, law, of the legislative process, of ad-
232. Hiigerstrom, Der r6mische Obligationsbegriff im Lichte der allge-

meinen rdmischen Rechtsanschauung (1937) 35 ff.
233. Olivecrona, Law as Fact (1939) 142.
234. See Pound, The Call for a Realist Jurisprudence (1931) 44 Harvard
Law Rev. 697, 710-711.
[ 284 ]
5. Realist Schools
ministrative enforcement, and of a judiciary with no

power of creative finding of law. What is common to
both is insistence on the official, wielding the power of
politically organized society, as of primary significance.
If their starting point is accepted, it is quite possible
to set up a constructive program. Five points may be
suggested:
(1) By study of the alogical, unrational, subjec-
tive element in the administrative and the judicial proc-
esses useful general conclusions might be reached as to
the kinds of cases in which it operates most frequently
and as to where it operates most effectively or most un-
happily for the end of the legal order. Sociological ju-
rists have proposed this, but it remains to be done.
(2) By study of the administrative process in
action in comparison with the judicial process it might
be possible to reach useful conclusions as to the effective-
ness or ineffectiveness of checks upon each process, as to
how far checks upon the administrative process and the
administrative element in the judicial process are prac-
ticable or advisable, and even to indicate the line of de-
velopment which should be urged for canons of adminis-
trative determination.
(3) There might be recognition of the signifi-
cance of the individual case, as contrasted with the abso-
lute universalism of the last century, without losing sight
of the significance of generalizations and conceptions as
[ 285 ]
Jurisprudence
instruments toward the ends of the legal order. At this

point the realists have been anticipated by Stammler, but
they will approach the subject in a different way through
psychology.
(4) There might be a giving up of the idea
of a necessary sequence from a single cause in a straight
line to a single effect, and hence of the one sovereign legal
remedy for every difficulty and one necessary solution of
every problem without giving up principles, conceptions,
and technique. There will be recognition of a plurality
of elements in all situations and of the possibility of deal-
ing with human relations in more than one way. There
will be recognition that the test of a legal precept or doc-
trine or institution is how and how far it helps achieve
the ends of the legal order. Here the new realism would
build on Jhering. Hence in the end I am confident there
will be no abandonment of belief that the administration
of justice may be improved by intelligent effort. I sus-
pect also that study of single instances wisely directed
and in sufficient number will show what study of the
legal materials of all systems seems to reveal, namely,
that the old straight line thinking is a useful instrument
in parts of the administration of justice where the eco-
nomic order demands the maximum of attainable cer-
tainty.
(5) There might be a recognition that there are
many approaches to juristic truth and that each is sig-
nificant with respect to particular problems of the legal
[ 286]
5. Realist Schools
order. Hence there might be an appraising of these ap-

proaches, not absolutely or with reference to some one
assumed necessary psychological or philosophical basis
of jurisprudence, but with reference to how far they aid
lawmaker, or judge, or jurist in making law and the
science of law effective, how far they may aid the legis-
lator or judge toward the maintaining, furthering, and
transmitting of civilization, and how they may aid the
jurist toward organizing the materials and laying out the
course of the legal order.
[ 287]
Chapter 6
Sociological Jurisprudence
§ 22. Characteristics of Sociological Jurisprudence.

§ 23. Development of the Sociological School-The Mechanical
Stage.
§ 24. Development of the Sociological School-The Biological
Stage.
§ 25. Development of the Sociological School-The Psychologi-
cal Stage.
§ 26. Development of the Sociological School-The Stage of
Unifications.
§ 27. Contemporary Sociology in Relation to Sociological Juris-
prudence.
§ 28. Progress of Jurisprudence Since the Passing of the Nine-
teenth-Century Schools.
§ 29. The Program of the Sociological School.

Chapter 6
Sociological Jurisprudence
( HARACTERISTICS
Section 22
OF SOCIOLOGICAL
JURISPRUDENCE.1 In comparison with
the nineteenth-century schools, the character-
istics of the sociological school may be stated
thus:
1. Sociological jurists regard the working of the
law (that is, of the legal order, of the body of authorita-
tive guides to decision, and of the judicial and adminis-
trative processes) rather than the abstract content of the
authoritative precepts. They tend to use "law" in the
sense of the legal order, or to insist particularly on that
I. Pound, The Scope and Purpose of Sociological Jurisprudence (1912) 25

Harv.L.Rev. 489-516; id. The Need of a Sociological Jurisprudence (1907) 19
Green Bag, 607; Amos, Roscoe Pound, in Modern Theories of Law (1933) 863-
105; Kantorowicz, Rechtswissenschaft und Soziologie (1911) 1-15, 21-30, 30-
34; Tanon, L'6volution du droit et la conscience sociale (3 ed. 1911) 143-176,
196-202; Brugeilles, Le droit et la sociologie (1910) introduction and chaps.
1, 2, 6; Vander Eycken, M46thode positive de l'interprdtation juridique (1907)
109-112; Rolin, ProldgomAnes A la science du droit (1911) 1-9; Ehrlich, Er-
forschung des lebenden Rechts (1911) 35 Schmoller's Jahrbuch fir Gesetzge-
bung, 129; id. Fundamental Principles of the Sociology of Law (transl. by
Moll, 1936) chap. 21; Page, Professor Ehrlich's Czernowitz Seminar of Living
Law (1914) Proceedings of Fourteenth Annual Meeting of the Association of
American Law Schools, 46; Cardozo, The Nature of the Judicial Process (1927)
lects. 2-3; Pound, Sociology and Law, in Ogburn and Goldenweiser, The So-
cial Sciences (1921) 319-328; Keyser, On the Study of Legal Science (1929) 38
[ 291]
Jurisprudence
sense, where analytical jurists use "law" in the sense of

the precept element in the body of authoritative guides to
decision, and historical jurists use it in the sense of all
social control 2 But recent writers on sociology of law
are also using the term for all social control.3
Whereas analytical jurists consider only developed systems
of legal precepts, regarded as made at one stroke in the present,
whereas historical jurists consider the past of developed systems
as revealing ideas or principles culminating in the present, and
whereas philosophical jurists seek to organize the ideal element
of developed systems and to set up ideal measures of criticism,
in contrast sociological jurists look upon law (in the sense of a
body of legal precepts) as an instrument of social control and re-
gard analysis, history, and philosophy as giving us, as one might
say, important pieces of apparatus for making the legal order an
effective agency of social control. But they do not regard analy-
sis or history or philosophy, singly or collectively, as giving us a
complete, self-sufficient science of law. Jurisprudence is thought
of as one of a group of social sciences.
2. Whereas the analytical jurist regards law (in

the sense of the body of authoritative guides to decision)
as something made consciously, and the historical jurist
and the nineteenth-century philosophical jurist regard it
as something found rather than made, sociological jurists
regard law (in that sense) as a social institution involv-
ing both finding by experience and conscious making.
They think of it as experience developed by reason and
2. E. g. Vinogradoff, Outlines of Historical Jurisprudence (1921) 119.
3. E. g. Gurvitch, Sociology of Law (1942) 50-60.

[ 292 ]
6. Sociological Jurisprudence
reason tested by experience. They regard it as a social

institution which may be improved by intelligent effort.
They hold it one end of the science of law to enable us to
make this intelligent effort. Hence they hold it a task of
the jurist to find the best means of furthering and direct-
ing such effort.
3. Sociological jurists lay stress upon the social
purposes which the law (in all of its three senses) sub-
serves rather than upon sanctions.
Analytical jurists insist on the force of the state as sanction.
Historical jurists insist on the social pressure behind legal pre-
cepts as giving them their force. Philosophical jurists have in-
sisted on the ethical basis of legal precepts as giving them their
binding force. Sociological jurists conceive that legal precepts
get their ultimate authority from securing social interests, even
if their immediate authority comes from politically organized
society.
4. Sociological jurists look on legal institutions and

doctrines and precepts functionally. They regard the
form of legal precepts as a matter of means only.
Analytical jurists take statute as the type of law. Histori-
cal jurists take custom as the type. Sociological jurists do not
regard either as the type to which the whole body of law (in the
second sense) is to be reduced. They hold that the form of the
law is a matter of what is most adapted to the ends of the legal
order in the time and place.
5. Today sociological jurists are somewhat diverse

in their philosophical views. In the immediate past they
[ 293 ]
Jurisprudence
were positivists. At present there are positivists, dif-

ferent types of social philosophical thinkers, radical em-
piricists, and neo-realists. They employ a pragmatist
method, which is consistent with different metaphysical
starting points.
The foregoing synopsis indicates the main points in the
creed of sociological jurists as it developed in the fore part of the
present century in reaction from the dominant analytical and
historical jurisprudence of the last century. But some of these
points would not have been admitted by all of those who called
themselves sociological jurists at that time and before. Sociol-
ogy is the newest of the social sciences and has had to find itself.
Diversities of view among sociological jurists reflect differences
which exist or have existed among sociologists. Because of these
differences some have denied that there is such a thing as socio-
logical jurisprudence, since those who have called themselves so-
ciological jurists have disagreed on many points. But these
differences are no more a ground for denying that there is a
sociological method in jurisprudence than the differences among
philosophical jurists are ground for denying that there is a
philosophical method.
An explanation of the diversity of view among sociological
jurists is to be found in the history of sociology and the stages
through which sociology has passed. Since these stages have
succeeded each other somewhat rapidly and have overlapped or
graded into one another, the critics of sociological jurisprudence
easily overlook them. Critics will pick out a representative of
some one stage and assume they can make him stand for a rep-
resentative of the whole school for all time. Accordingly, there
are four narrow views as to sociological jurisprudence. Today
they are urged chiefly by opponents. Each must be rejected at
the outset.
1294 ]
(1) A formerly common misconception is that sociological

jurisprudence must necessarily stand for a mechanical view of
legal institutions; that it must stand for a view that regards le-
gal institutions and legal doctrines and legal precepts as products
of an inexorable mechanism of social forces. The first type of
sociologist, the positivists of the third quarter of the nineteenth
century, looked at all social institutions in this way. Hence the
earliest attempts at sociological jurisprudence went along the
same line, and some critics have assumed we must keep to that
line ever after.4
(2) Others have insisted that sociological jurisprudence
must stand for an ethnological interpretation of law and of legal
history. They insist that it is no more than a science of law de-
veloped from comparative study of primitive institutions of so-
cial control; that it is no more than a set of generalizations gath-
ered by a purely descriptive social science. In the last century
sociology went through an anthropological phase-a phase of
generalizing from the social institutions of primitive peoples.
This was due to historical-biological ideas in vogue at the time.
The embryology of society was to be the basis of the social sci-
ences. In consequence, a little later attempts at sociological ju-
risprudence were made along this line. Some have assumed that
these attempts must represent the sociological jurisprudence of
today.
(3) Sometimes this is carried further. Sociological juris-
prudence is thought of as without generalizations. It is thought
of as a mere gathering of data as to the legal institutions of prim-
itive peoples. It is identified with a juristic phase of the old "de-
4. 2 Berolzheimer, System der Rechts- und Wirtschaftsphilosophie (1905)

385-386 (English transl. (1912) 368-369); Charmont, La renaissance du droit
naturel (1910) 122-127.
5. Del Vecchio, I presupposti filosofici della nozione del diritto (1905) 86-
93.
[295]
Jurisprudence
scriptive sociology" which sought to do no more than to ascertain

and describe the social institutions of all peoples.6 This resulted
from the positivist doctrine which found reality in laws of devel-
opment to be discovered by observation and verified by further
observation. It was first necessary to gather the materials to
which observation could be directed.
(4) Finally, there have been others who assert that sociol-
ogy is only a science of method in the social sciences, that it is a
sort of philosophy of the social sciences, so that sociological ju-
risprudence is only a positivist philosophy of law.'
Today we hear little of the first and second of these views.
The third and fourth are still urged, especially in Continental
Europe where neo-Kantianism has been of so much influence in
the present century. But if we accept the third, sociological ju-
risprudence is not worth while. Such things may be left to the
descriptive sociologists. If we accept the fourth we invite return
to the juristic pessimism of the last century.8 It must be admit-
ted, however, that the earlier critics had some warrant in an un-
happy tendency in the earlier stages of development of the school
to insist exclusively upon some one phase of social science or
some one mode of investigation or some one interpretation. All
the methods of jurisprudence have suffered from a like tendency.
At one time extreme assertions of an imperative theory of law
brought analytical jurisprudence into disfavor. Fifty years ago
it was fashionable for every dabbler in jurisprudence to take a
fling at Austin. Again, historical jurisprudence is now under a
cloud because it was so long identified exclusively with Savigny's
antipathy to legislation, and with a political-idealistic interpre-
tation of legal history. In the same way philosophical jurispru-
6. Id. Sull' idea di una scienza del diritto universale comparato (1909) 11.
7. Miraglia, Comparative Legal Philosophy (transl. by Lisle, 1912) 261-263.
8. See Gurvitch, Sociology of Law (1942) 305-309.
[296 ]
dence is under a cloud in England and America because it has

been identified exclusively with the metaphysical method of the
fore part of the nineteenth century. Indeed, today the extreme
views of some neo-realists have led to prejudice against the whole
realist school. All this should be sufficient warning not to be too
hasty in identifying sociological jurisprudence with the extreme
views of any one type of sociological jurist and on that basis con-
demning the whole.
"Sociological" is a name rather than a full description. A

name can do no more toward description than point at some sig-
nificant characteristic. Paton, emphasizing the stress upon the
function of the legal order and of the apparatus of precept, tech-
nique, and ideals by which the legal order is maintained, would
say "functional" school. 9 This undoubtedly calls attention to a
point of the first importance in the creed of the school and is in
line with the neo-Kantian insistence upon methodology in the
thought of today. I began to use the term "sociological juris-
prudence" in 1911 and have continued to use it because the
school grew up from and with the science of society to which
Comte gave the philologically unhappy name of sociology and has
sought to put the science of law in place in a broader science of
society. I have felt that this gives jurisprudence a place among
the social sciences and that thinking of and teaching it as one of
them was especially significant. 10
Paton sets off also a teleological school, differing from the

functional school in that it seeks "a proper answer to the prob-
lem of the validity of law" and "stresses that law is intimately
related to justice and that some attempt must be made to discov-
9. Paton, Jurisprudence (2 ed. 1951) § 7. This name had been proposed by

Hohfeld, Fundamental Legal Conceptions (1914) 338-363.
10. The Scope and Purpose of Sociological Jurisprudence (1911) 24 Harvard

Law Rev. 591.
[297]
Jurisprudence
er an absolute criterion by which law may be judged." " The

neo-Kantianism of today is manifest in this program. The first
proposition is urged by Kelsen. The second is urged by Del Vec-
chio. If there is a formative biological school it will be social
philosophical carrying forward the functional method.
Sociological jurisprudence did not spring into exist-

ence full fledged.' It has gone through a number of
stages, some of which have been outgrown thoroughly,
while others are still represented in current thinking.
For the present purpose it will be convenient to recognize
four stages: (1) the mechanical stage, (2) the biological
stage, (3) the psychological stage, and (4) the stage of
unification. 3
At the outset of the discussion it should be noted that such
stages can only be distinguished in a broad and general way.
Whenever one attempts to set off periods or to distinguish stages
of development, the lines here and there must be drawn some-
what arbitrarily. Lay out the lines as we will, the stages will in
some degree merge and overlap. Moreover, the development
about to be considered has hardly gone on long enough to make
assured classification possible. But to distinguish and bear in
mind the four stages makes it easier to understand both sociologi-
.cal jurisprudence and its critics.
II. Paton, Jurisprudence (2 ed. 1951) § 9; Felix Cohen, Ethical Systems and
-Legal Ideals (1933).
12. "We employ the expression 'science of law' as synonymous with juridical
sociology. It is a science that has yet to be constituted." Rolin, Prolidgomnes
A.la science du droit (1911) 1.
13. Perhaps in Continental Europe there is much to suggest a fifth stage
which might be called the methodological stage. But it seems rather a method-
ological fashion in the stage of unification.
[298]
§ 23. DEVELOPMENT OF THE SOCIOLOG-

ICAL SCHOOL-THE MECHANICAL STAGE. 4
Comte, the founder of sociology, was a mathematician.
Moreover, in the first half of the nineteenth century the
central point in scientific thinking was the mechanism
of the physical universe. The book which chiefly influ-
enced thought was Laplace's Mdcanique c6leste. Men's
minds were fascinated by the idea of laws, mathematical-
ly demonstrable, which were taken to control the oper-
ations of nature. Hence, there was a tendency to take a
mathematical-physical view of everything. Men sought
to find the mathematical or mechanical laws according to
which all things came into existence and by which they
were governed in the course of their existence. As this
was the type of thought of the first positive philosophers,
it came to be that of the first positive philosophies of
law, and so of the first stage of sociological jurispru-
dence. 5 But it came later in jurisprudence than in phi-
14. Gumplowicz, Philosophisches Staatsrecht (1877); id. Allgemeines

Staatsrecht (3 ed. of the former, 1907); id. Geschichte der Staatstheorien (1905)
-see especially the appendix, Zur Kritik der juristischen Methode im Staats-
recht; Stein, Die soziale Frage im Lichte der Philosophie (1897, 2 ed. 1903)-
see especially the chapter Ursprung und sozialer Charakter des Rechts. For
critiques see 2 Berolzheimer, System der Rechts- und Wirtschaftsphilosophie
(1905) § 44 (The World's Legal Philosophies (1912) (351-374); Charmont, La
renaissance du droit naturel (1910) chap. 5 (transl. in Modern French Legal
Philosophy, 65-73); Korkunov, General Theory of Law (transl. by Hastings,
1909) 265-266; Francis, The Domicile of a Corporation (1929) 38 Yale Law
Journ. 335, 335-339.
15. A good account of this may be found in Carle, La vita del diritto (2 ed.
1890) § 229. In reading Korkunov, General Theory of Law, 265 et seq., it
should be remembered that when he speaks of sociological jurisprudence he
[ 299 ]
Jurisprudence
losophy. Thus the mechanical sociology was the result of

the mental bent of the founder of sociology and of the
influence of the physical sciences which were attracting
most attention at the time when he wrote, i. e. before Dar-
win. This mode of thought was especially congenial in
jurisprudence and so hung on there longer than else-
where because of the influence of the historical school
which was dominant in the science of law at that time.
The ideas of the mechanical sociologists seemed to con-
firm the doctrine of the historical school. 6 Many who
were beginning to be conscious that the historical school
could not hold the ground much longer, were able to per-
suade themselves that they were moving forward by
giving to their old views the new form of mechanical
sociology."
Like the historical jurist, the first type of sociologist looked
at law in its evolution-in its successive changes-and sought to
refers to this stage. The book was written in 1887 and is too early for the
later stages.
16. On this relation of the positivists to the historical jurists, see Char-
mont, La renaissance du droit naturel (1910) 117.
17. In Centralization and the Law, lect. IV, Scientific Method in Law, is in
many ways far in advance of its time (1906) especially in its attitude toward
improvement of the law. But it uses the terminology of the mechanical so-
ciology-e. g. "the dominating social force" (p. 169), "expression of the pre-
vailing force" (171), "social center of gravity" (183)-and yet tells us that our
criminal law "began and is still proceeding, as far as it goes, on right lines"
(181), objects to the Uniform Negotiable Instruments Law for departing from
the historical basis in the law merchant (191), argues against codification on a
modified historical theory (191-192), and, in conclusion explains that it "is far
from suggesting that under the operation of a scientific method the law here-
after will be substantially different from what it is now." (200).
[ 300 ]
6. Sociological Jutrisprudence
relate those changes to the changes undergone by society itself.

The historical jurist found a metaphysical law behind them. The
positivist substituted physical laws. The result was the same.
Each conceived of juristic creative activity as futile. 8 None
have done more to rid us of this mode of thought than sociologists
themselves.
One phase of mechanical sociological jurisprudence was a
mechanical positivist economic interpretation already considered.
The attempt to state all legal experience solely in terms of eco-
nomics was put on a basis of mechanical sociology.' 9 This form
of the economic interpretation is all that remains today of the
mechanical sociology of the nineteenth century. In jurisprudence
it led to the same notion of legislative and juristic futility as the
nineteenth-century historical jurisprudence.2 0 The eighteenth-
18. Charmont, La renaissance du droit naturel (1910) 122. A similar coop-

eration with the type of analytical jurist who eliminates juridical idealism
through exclusive insistence upon the imperative character of law, and hence
upon a sovereign will as the ultimate, self-sufficient source of legal precepts,
would have been possible had the two schools been brought in contact. Indeed,
a combination of positivism and social utilitarianism may be seen in Vander
Eycken, Mdthode de l'interprdtation juridique (1907).
19. See Brooks Adams in Centralization and the Law (1906) 23, 63-64.
20. "Sociology must refrain from all such criticisms of nature. For so-
ciology only facts and their conformity to laws have an interest. . . . So-
cial phenomena follow necessarily from the nature of men and from the na-
ture of their relationships." Gumplowicz, Grundriss der Sociologie (1885) 133.
"With the moral or political aspects of this controversy we as lawyers have
nothing to do, for professionally the function of the lawyer is to accept that
which exists and deal with exigencies as they arise. We are only concerned
with the effect of the struggle upon the corpus juris, since the law, being the
resultant of the forces in conflict, must ultimately be directed in the direction
of the stronger, and be used to crown the victor." Brooks Adams in Central-
ization and the Law (1906) 132-133.
Compare: "The sociological fashion set by Spencer was to treat social forces
as though they were mills of the gods which men could at most learn to de-
scribe, but which they might not presume to organize and control." Small,
General Sociology (1905) 80-87. Also: "While Spencerian influence was upper-
[ 301 ]
Jurisprudence
century law of nature, although it thought of the fundamenta as

beyond the reach of change, at least moved us to scan the details
of the superstructure and to endeavor to make each part and de-
tail conform to the ideal plan. It admitted that legislator and
jurist each had a function. In the nineteenth century the his-
torical jurist denied any real function to the legislator. The
mechanical sociologist denied any real function to the jurist. He
accepted the doctrine of legislative futility, held by the historical
jurist, simply giving different reasons for it. To this he added a
doctrine of juristic futility.
Hence the achievements of the mechanical sociologists in ju-
risprudence have been negative only. They have helped clear
away, but they have built little or nothing. On the whole, they
helped in two ways. Their insistence upon a social theory, their
insistence on studying and thinking about groups and associa-
tions and relations rather than about abstract individuals, helped
displace the abstract individualist starting point and the atom-
istic standpoint of the nineteenth-century jurists. It helped
make us give up the abstract individual man as the central point
in juristic thinking.2 1 This insistence upon a social theory was
also of service in compelling jurists to relate the law more criti-
cally to other social phenomena. In uging that the form of social
most, the tendency was to regard social progress as a sort of mechanically de-
termined redistribution of energy which thought could neither accelerate nor
retard." Id. 82.
In Lochner v. New York, 198 U.S. 45, 75, 25 S.Ct. 539, 546, 49 L.Ed. 937 (1905)
Holmes, J. invokes the Spencerian jurisprudence against the traditional his-
torical jurisprudence. Law is an inevitable resultant. In making or finding
it legislator or judge is merely bringing about "conformity to the de facto
wishes of the dominant forces of the community." The idea that law cannot
be made is met by a proposition that social forces working through legislation
can and will make it.
21. Berolzheimer, a critic of the school, pronounces this a service not to be
minimized. 2 System der Rechts- und Wirtschaftsphilosophie (1905) 384 (Eng-
lish transl. The World's Legal Philosophies (1912) 368).
[302 ]
phenomena was not an arbitrary and artificial fact, that society

was not a mere human invention, that the development of society
took place according to fixed principles analogous to those which
govern the physical universe, and hence that systems of law and
legal institutions develop in accordance with like principles-in
urging these things they helped drive the other schools to seek a
broader foundation and furnished much of the impetus which
produced the social philosophical school.
§ 24. DEVELOPMENT OF THE SOCIOLOGI-

CAL SCHOOL-THE BIOLOGICAL STAGE.2 2 In so-
ciology the mechanical stage was succeeded by and over-
lapped by a biological stage. In sociological jurispru-
dence, somewhat later, there was the same succession.
In the last third of the nineteenth century the epoch-
making work of Darwin had made evolution the central
idea in scientific thought. From the natural sciences the
idea of evolution invaded and remade philology. Then
22. Post, Der Ursprung des Rechts (1876) 7; Richard, L'origine de l'idde de
droit (1892) 5, 54-55; Vaccaro, Les bases sociologiques du droit et de l'dtat
(1898) 450-452.
Kuhlenbeck, Natiirliche Grundlagen des Rechts (1905) 7; Matzat, Philoso-
phie der Anpassung mit besonderer Beriicksichtigung des Rechtes und des
Staates (1903); Ruppin, Darwinismus und Sozialwissenschaft (1903); Le-
tourneau, L'6volution juridique dans les diverses races humaines (1891);
D'Aguanno, La genesi e l'evoluzione del diritto civile (1890); Cogliolo, Saggi
sopra l'evoluzione del diritto privato (1885); id. La teoria dell' evoluzione Dar-
winistica nel diritto privato (1882).
For critiques see: 2 Berolzheimer, System der Rechts- und Wirtschaftsphilo-
sophie (1905) §§ 47, 51 (The World's Legal Philosophies (1912) 387-391, 456-
466); Tourtoulon, Principes philosophiques de l'histoire du droit (1908-1919)
80-88, 132-173 (English transl. Philosophy in the Development of Law (1922)
76-83, 96-133); Cairns, Law and Anthropology (1931) 31 Columbia Law Rev.
32; id. Law and the Social Sciences (1935) chap. 2.
[ 303]
Jurisprudence
it was applied to the history of social and religious insti-

tutions. Ultimately it came into jurisprudence. The
attempts to work out a physical science of the state and
of law were succeeded by a biological science of the state 23
and a biological science of law. A biological sociology
succeeded the mechanical sociology.
At first the two overlapped. The older mechanical sociology
merely acquired a biological terminology-a biological vocabu-
lary. Its content remained unchanged. As Spencer saw it, so-
ciety "was simply a gigantic organism endowed with an unalter-
able amount of energy, and this energy would inexorably redis-
tribute itself according to laws lodged in itself".2 4 This is no
less true of the first attempts at a sociological jurisprudence from
the biological standpoint.
Three types of biological exposition of sociological

jurisprudence may be distinguished: (1) The mechan-
ical type, (2) the ethnological type, and (3) the philo-
sophical type.
(1) In the mechanical type of the biological stage
the ideas are those of the mechanical stage. Biology has
done no more than affect the vocabulary. The biological
phrase which appealed most to jurists was "natural se-
lection." The struggle for existence appealed to them as
a better way of putting the beliefs which they had formed
under the influence of the historical school or of the posi-
tivists. Accordingly, they brought us by another path
23. See Coker, Organismic Theories of the State (1910) chaps. 3, 4.

24. Small, The Meaning of Social Science (1910) 82.
E 304 ]
to the same position to which the historical school and

the mechanical sociologists had led us before them. The
position was the same. But they stated it otherwise. As
they put it, the end of law is to give play in an orderly
manner to the elimination of the unfit; it is to further
natural selection by a well ordered struggle for existence.
This is the doctrine of promoting a maximum of free
individual self-assertion to which all schools came in the
last century.2
(2) In the ethnological type there is a further de-
velopment of biological analogies. Under the influence
of the idea of evolution there was for a time an exagger-
ated reliance upon social control in primitive peoples.
The embryology of law, as it were, was to tell us every-
thing. A type of jurist arose who expected study of the
social institutions of the most primitive peoples to reveal
the fundamental data of jurisprudence and the funda-
mental laws of legal development. They believed that the
essential idea of a legal institution could be understood if
one could only get at the institution in its most primitive
form. Hence, they conceived that they could find in
primitive man all the materials which were needed to ex-
plain the social man in general, and so all the materials
which were needed to explain the legal systems of today.
25. Revolt of the general conscience against such theories has been an im-
portant influence in the juristic movement for socialization of law. There is
a good discussion in Tanon, L'dvolution du droit et la conscience sociale (3 ed.
1911) 116 ff.
1 Pound Jurisprudence-20 E305 ]

Jurisprudence
In practice this view led in two directions. One was the

ethnological interpretation, heretofore considered.26 The other
was what has been called the demographic method, proceeding on
an idea that the jurist had, first, to gather as materials the legal
institutions (or rather institutions of social control) of all primi-
tive peoples and describe them, and then, second to generalize
from them.27 Sociologists gave up this method and it had no
lasting effect in jurisprudence beyond showing us that nine-
teenth-century historical and philosophical jurists had been too
restricted in their materials. Thus Maine in 1861 begins with
an Indo-European Urrecht. Vinogradoff in 1920 begins with an
anthropological introduction and finds historical origins in to-
temic society.28
26. Ante, § 19, 2(5).

27. "There are determinate laws according to which all organic structures,
which are formed over men . . . are developed, and these laws may be
disclosed by comparison of the corresponding periods of development of all
the generic organisms upon the earth, living and past. To determine these
laws is the next task of the political and legal science of the future. For
the determination of these laws, a mighty mass of material lies before us
which needs only collection and collation in order to produce the most fruit-
ful results for the jurisprudence of the future." Post, Der Ursprung des
Rechts (1876) 7.
28. See also Del Vecchio, Sull' idea di una scienza del diritto universale
comparato (1909) 11; Kohler, Rechtsphilosophie und Universalrechtsgeschichte
in I Holtzendorff, Enzyklopidie der Rechtswissenschaft (6 ed. 1904, 7 ed. 1913)
§§ 8, 11. A good critique of this type of the biological stage of sociological ju-
risprudence may be found in Tourtoulon, Principes philosophiques de l'his-
toire du droit (1908-1919) 80-173 (English transl. as Philosophy in the De-
velopment of Law (1922) 76-83). But comparative study of archaic systems of
law seems to show that the relativity of jural principles has been much over-
emphasized since the downfall of the law-of-nature school. "The fundamental
forms of spiritual social life, from which the law springs, are more independ-
ent of race and nation than the historical school conceded. The likeness of
law in cases of the most striking unlikeness of race can only be explained by
a common human basis." Fehr, Hammurapi und das salische Recht (1910) 136.
[ 306 ]
(3) A third type in the biological stage may be

called the philosophical type. 9 Writers of this type were
influenced by the nineteenth-century metaphysical juris-
prudence. Where the metaphysical jurists sought to
work out a complete system from some philosophical con-
ception, such as personality or liberty, or will, the jurists
of this type of the biological stage tried in the same way
to work out a complete system from some biological prin-
ciple.3 °
A principle of struggle and survival and of adaptation of in-
stitutions and precepts through struggle was put in various
forms. 3' Richard sought to work out a complete system from a
fundamental conception that law is the aggregate of the means
by which each group of men protects itself against hindrances to
its continuance and its progress. These hindrances may be in
the actions of certain members of the group or in the hostility of
other groups. His starting point in every case is prohibitive in-
29. Kuhlenbeck's attempt at a "legal philosophical and critical estimation

of the theory of descent" is to be classed with philosophical rather than with
sociological systems. Natiirliche Grundlagen des Rechts und der Politik: Ein
Beitrag zur rechtsphilosophischen und kritischen Wirdigung der sogenanten
Deszendenz theorie (1905).
30. The best examples of this type are Richard, L'origine de l'idde de droit
(1892) and Vaccaro, Le basi del diritto e dello stato (1893)-French transl. as
Les bases sociologiques du droit et de l'dtat (1898). For an appreciation and
critique of the latter see Gumplowicz, Geschichte der Staatstheorien (1905) §
137.
31. "The institutions of civilized peoples have been considered as the prod-
uct of a selection because societies which have not disciplined or organized
themselves, which have practised theft, violence, assassination have been elim-
Inated." Charmont, La renaissance du droit naturel (1910) 119. Montesquieu
had an idea not unlike this. See his description of the Troglodytes, who per-
ished utterly because they wilfully violated contracts. Lettres Persanes (1721)
lettre xiv et seq.
[307]
Jurisprudence
tervention designed to obviate conflict. Thus, he argued, a so-

ciety forbids its members to possess themselves by force or fraud
of a good already possessed. It punishes theft, robbery, and
plundering and so creates ownership. In the same way he devel-
oped contract by opposition from measures taken to repress de-
ceit, fraud, abuse of trust, and the like, the validity of an agree-
ment concluded honestly and fairly being deduced ultimately by
way of consequence. 32 Here we have a precursor of the threat
theory of a law and the theory of rights as inferences from the
threats. But it is a philosophical theory of law as the outcome
of a struggle between the social and the anti-social. 33 This type
of sociological jurisprudence is quite as barren as the metaphysi-
cal jurisprudence which it imitates. It is an illustration of the
influence of propinquity upon juristic thought. Not only had ju-
rists of that time been trained in the metaphysical jurisprudence
but the metaphysical school was still alive and not without vigor
34
in France at the very end of the nineteenth century.
32. L'origine de lide de droit (1892) 54-55.

33. Id. 5. Compare: "To my mind sociology is the study of adaptations
of men (these are principally mental adaptations) to life in society. Law is
one of these adaptations; the one which has for its end to combat by con-
straint the effects or the causes of certain defects of adaptation which are con-
sidered intolerable. Juridical sociology is, then, the study of the mental
adaptations of men living in society, which adaptations are destined to strug-
gle by means of constraint against certain inadaptations of the same men.
Considered from this point of view, the science of law appears a chapter of the
natural history of man." [Italics in the original.] Rolin, Prolfgomdnes a la
science du droit (1911) 4-5.
Korkunov combines this idea of conflict among institutions and precepts
with Jhering's idea of deliberate making of laws to certain ends: "Legal de-
velopment on the whole is a struggle of old law, unconsciously established
against new law consciously adopted." General Theory of Law (transl. by
Hastings, 1909) 165.
34. Compare the combination of economic determinism and mechanical so-
ciology with English analytical jurisprudence by Brooks Adams writing in a
country and at a time in which analytical jurisprudence was one of the two
prevailing methods.
[ 308
Vaccaro starts from a conception of law as the outcome of

class conflict. His idea is one of selection of legal institutions
and of legal precepts as the outcome of class conflict. He holds
that law has grown and grows out of the struggle of social class-
es for supremacy. As he works this out, his method is very like
that of the metaphysical jurists. They deduced everything from
a principle of the harmonious coexistence of the individual with
the whole. He makes it the coexistence of social classes. The
function of law is to adapt men to a social environment of class
conflict by determining the conditions of class coexistence. 35 The
most important difference between Vaccaro and the metaphysical
jurists is his emphasis on relativity. He insists on regarding
law as resulting from conflict at particular times and places-
"from the action and reaction of men as they are at a given his-
torical moment." 36
Perhaps enough has been said to indicate that this idea of
relativity, valuable as it is to enable us to combat absolute ideas
of what may be called "positive natural law" 37 and hard and fast
35. Les bases sociologiques du droit et de l'dtat (1898) 452. This is a so-
ciological M'arxian development of an idea which was frequently advanced by
metaphysical and historical jurists. E. g. "The sum of the conditions of social
coexistence with regard to the activity of the community and of individuals."
Pulszky, Theory of Law and Civil Society (1888) 312; "The power of coercion
necessary for the harmonious coexistence of the individual and the
whole," 2 Lioy, Philosophy of Right with Special Reference to the Principles
and Development of Law (1891, transl, by Hastie) 122: "The sum of those
universal determinations of action through which it happens that the ethical
whole and its parts may be preserved and further developed," Trendelenburg,
Naturrecht auf dem Grunde der Ethik (1868) § 46.
36. "The conditions of coexistence imposed by law are not those which
ought to be in order to insure the greatest possible prosperity of all the as-
sociates, but those which result from the action and reaction of men as they
are at a given historical moment." Vaccaro, Les bases sociologiques du droit
et de l'dtat (1898) 452. Compare with this the "universal determinations" of
which Trendelenburg speaks, supra n. 33.
37. See Pound, The Revival of Natural Law (1942) 17 Notre Dame Lawyer,
287, 303-307.
[ 309]
Jurisprudence
schemes of supposed fundamental legal propositions, may itself

be carried too far. Consider two examples. No action and re-
action of men as they have been at any given moment since re-
publican Rome will explain the long history of the doctrine of im-
possible and illegal conditions in testaments, either as a whole or
as it stood at any particular time.38 Again, no theory of the pow-
er of a creditor class or of conflict with a debtor class will ex-
plain the beneficium excussionis, its involved history in the mod-
ern world, and its tendency to be modified or to disappear in fa-
vor of creditors in times when law and opinion have been becom-
ing more tender of debtors. 39 Such doctrines are of more im-
portance in legal systems and have more significance for juris-
prudence than the short-lived penal legislation from which most
of the data for theories of class struggle as the determining fac-
tor in legal history have been drawn.
The theory of law as a product of class struggle,

which was the most significant feature of the biological
sociological jurisprudence, had one important result. It
drew attention to the unequal operation of doctrines de-
rived by the nineteenth-century method of abstraction up-
on the basis of an assumed natural equality when applied
in a society in which industrial progress had resulted in
well defined classes. This unequal operation of legal
38. See Pound, Legacies on Impossible or Illegal Conditions Precedent

(1908) 3 Illinois Law Rev. 1, 4-23.
39. Novel 4; Gloag and Henderson, Introduction to the Law of Scotland
(3 ed. 1939) 199-200; 2 Planiol, Traitd 6l6mentaire de droit civil (11 ed. 1932)
nos. 2341-2344; German Civil Code, §§ 771-773; German Commercial Code, §§
349-351; Note to Pain v. Packard, 13 Johns. 174 and to Trimble v. Thorne, 16
Johns. 152, Ames, Cases on Suretyship (1901) 222-223 and 224.
[310 ]
precepts based on a theoretical equality became the sub-

ject of study by a group of socialist jurists."
Anton Menger (d. 1906) was foremost among those who ex-
amined legal systems in their actual operation in order to ascer-
tain the relation of existing legal precepts and legal doctrines to
the interests of the industrial laboring class. 41 We must bear in
mind in this connection that the law of Continental Europe is
codified, and that down to the German code which took effect in
1900 all of these codes spoke from the end of the eighteenth or
the first decade of the nineteenth century. The Prussian code
took effect in 1797; the French civil code (drawn in 1800) in
1804; the Austrian code (drawn in 1780) in 1811. Except the
Prussian and Austrian codes, the rest of the codes, no matter
when adopted, were based on and often were in substance copies
of the French code of 1804. Consequently, all the codes down to
the German civil code antedated modern industrial conditions;
and Menger showed that the makers of that code, as was to be
expected in the period 1874-1896 (in which it was drafted) had
taken little account of such conditions. The codes had gone on
historical lines. In the juristic new start represented by the
codes such a thing as a class of industrial laborers was unknown
to the law. At that time the law only knew of agricultural la-
borers. 42 Menger compared the interests which the German code

(1904-1907) § 40 (The World's Legal Philosophies (1912) 298-307); Charmont,
Le droit et l'esprit democratique (1908) chap. 2; Gumplowicz, Die soziologische
Staatsidee (2 ed. 1902) 115 ff.; Stein, Die soziale Frage im Lichte der Philoso-
phie (2 ed. 1903) 336 ff.
41. Das biirgerliche Recht und die besitzlosen Volksklassen (1889, 5 ed.
1927); Ueber die socialen Aufgaben der Rechtswissenschaft (1895, 2 ed. 1905).
42. Courey, Le droit et les ouvriers (1886); Glasson, Le code civil et la ques-
tion ouvritre (1886); Tissier, Le code civil et les classes ouvrigres, Livre du
centenaire de code civil (1904) 71-94; Salvioli, I difetti sociali delle leggi vi-
genti di fronte al proletariato e il diritto nuovo (2 ed. 1906). The first to call
[311 ]
Jurisprudence
and the law of the time secured and those which it left unsecured
and showed that a situation had arisen which the codes did not
contemplate and for which they had made no provision. A like
study of maladjustment of law to conditions for which the legal
system had made no adequate provision has been made for some
features of American law today, in the transition from a pioneer,
rural, agricultural society to an urban industrial society. 43 Such
studies are of much more service to jurisprudence than a priori
theories of law as the result of class conflict.

CAL SCHOOL-THE PSYCHOLOGICAL STAGE.
We come now to a more significant development in the
science of law, the psychological stage of sociological ju-
risprudence." Three successive influences turned the
attention of sociological jurists toward psychology. First
was study of group psychology, which led to a psychologi-
cal movement in jurisprudence and in politics.
attention to this subject was Rossi, Observations sur le droit civil frangais
(1840) 11 Revue de lgislation et de jurisprudence, 1. But this was ahead of
its time.
43. Smith, Justice and the Poor (2 ed. 1921). See like studies of English
law: Parry, The Law and the Poor (1914); Gurney-Champion, Justice and the
Poor in England (1926). As to the inadaptation of legal abstractions, pro-
ceeding upon a theoretical equality, to a society divided into classes by con-
ditions of industry, see Andler, preface to Menger, Droit au produit integral du
travail (French transl. of Recht auf den vollen Arbeitsertrag, 1886).
44. 2 Berolzheimer, System der Rechts- und Wirtschaftsphilosophie (1904-

1907) § 49 (The World's Legal Philosophies (1912) 431-446); Tarde, Les trans-
formations du droit (1894, 6 ed. 1909); Tourtoulon, Principes philosophiques de
l'histoire du droit (1908-1919) 174-253 (Philosophy in the Development of Law
(1922) 134-211); Tanon, L'6volution du droit et la conscience social (3 ed. 1911)
143-176; Vanni, Lezioni di filosofia del diritto (4 ed. 1920) 30 ff. (speaks from
1 ed. 1901); Allen, Law in the Making (3 ed. 1939) 98-106.
[ 312 ]
This movement in jurisprudence and in politics was due to

the work of the great Germanist, Otto von Gierke (1841-1921)
professor of law at Berlin. 45 Unlike most of the movements in
sociological jurisprudence, in this case the impetus came from
within. It was given by a lawyer. In this case a movement in
jurisprudence influenced the other social sciences. Usually it has
been the other way. Usually movements have taken place first
in some or all of the other social sciences and thence gradually
46
have affected the science of law.
Second, there was a complete change of method in

the social sciences generally which resulted from the
work of the American sociologist, Ward.47 Ward urged
that "psychic forces are as real and natural [i. e. signif-
icant] as physical forces and are the true causes of all
social phenomena." "
Third came Tarde's working out of the psychologi-
cal or sociological laws of imitation and his demonstra-
tion of the extent to which imitation governs in the devel-
opment of legal institutions.49
45. Mogi, Otto von Gierke (1932).

46. This was remarked long ago. In 1520, In the beginning of the hu-
manist movement in the modern Roman law, Zasius wrote: "All sciences have
put off their dirty clothes; only jurisprudence remains in her rags." Stint-
zing, Ulrich Zasius (1857) 107.
47. Lester F. Ward (1841-1913) was professor of sociology at Brown. See
Chugarman, Lester F. Ward, The American Aristotle (1939).
48. Small, The Meaning of Social Science (1910) 83-84; Ward, Dynamic
Sociology (1883) 102, id. The Psychic Factors of Civilization (1901) 120.
49. Gabriel Tarde (1843-1904).
[ 313]
Jurisprudence
These three influences will be taken up in order.

(1) As a Germanist, Gierke had parted with the
orthodox historical school, which was then Romanist.
While his method was primarily and truly historical, he
had broken with the metaphysics of the historical school
as well as with its learned tradition. He struck the so-
ciological note in the first sentence of his chief work:
"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 in-
dividual, bind the past of the race to those to come, gives us the
possibility of the development of history." 50
Gierke was brought to consider group personality

and group will, so-called (i. e. the will acting in coopera-
tion with others in groups) in writing his great book on
the Law of Associations,51 in which he revolutionized the
theory of the nature of the juristic person, that is, of
entities other than human beings which are treated by
law as having recognized and secured interests. When
he first wrote, in the last third of the nineteenth cen-
tury, all juristic discussions began with the individual
will. Gierke inquired into what he called the group will.
In this connection we must bear in mind the nineteenth
century metaphysical jurisprudence which sought to de-
50. 1 Das deutsche Genossenschaftsrecht (1868) 1.

51. Das deutsche Genossenschaftsrecht, vol. I (1868), vol. II (1873), vol. III
(1881), vol. IV (1913).
[ 314 ]
rive everything in law from the individual free will. As

we should think today, the matter is not one of group
will. It is one of group interest, of group claim or de-
mand, of expectations asserted by individuals in title of
group life or group activities. Often Gierke's group will
is better understood if we think of interest rather than
of will.
Gierke was concerned only with juristic persons, 52 i.e. enti-
ties which are legally taken to be the subjects of rights-entities
whose interests are recognized and secured legally as analogous
to those of individual human beings. This includes more than
what we call corporations. It includes all manner of groups or
associations which the law deals with as legal entities in any con-
nection. Gierke's ideas not only revolutionized theories of the
juristic person, they compelled new theories of the greatest of
all these groups, namely, the state. 53 His main ideas were two.
The first was that the group or association has a real, i.e. signifi-
cant, not merely a fictitious, i.e. terminological, personality; that
in fact and not merely in legal fiction it is more than an aggre-
gate of individuals. When he first wrote (1868) the current the-
ory was, both in the modern Roman law and in our textbooks,
that a juristic person was a persona ficta-a pure creation of the
state. To understand Gierke's view, which has been much mis-
understood in this country, where we take the incorporated trad-
52. For some account in English of Gierke's work, see Maitland's introduc-
tion to the English translation of Gierke, Political Theories of the Middle Age
(1900). An important part of Gierke's Genossenschaftsrecht has been translat-
ed by Barker under the name of Natural Law and the Theory of Society
(1934).
53. Gierke, Die Grundbegriffe des Staatsrechts und die neuesten Staats-
rechtstheorien, 30 Zeitschrift fur die gesamte Staatswissenschaft (1874) 304
(reprinted, Tiibingen, Mohr, 1915); id. Die Genossenschaftstheorie und die
deutsche Rechtssprechung (1887) 10 ff.
[ 315]
Jurisprudence
ing company, a business device, for the type, we must remember

that he uses "real" in the sense in which the Roman law uses
"natural." The Romans always distinguish between the civil,
which depends upon the will of the state, and the natural, which
has its basis in the reason of the thing or the facts of nature,
without regard to state or law. For example, civil acquisition
took place by a formal transfer, natural acquisition took place
by occupation of ownerless things or by delivery; civil obliga-
tion resulted from the contracts recognized by law, a mere pact,
or agreement not in a legally prescribed category, might create
natural obligation; in civil death one who was de facto alive had
lost his legal personality and was dead for the purposes of the
strict law, yet naturally (de facto) he was alive. 54 So in this
connection Gierke would say that, in the Roman sense, the asso-
ciation had a natural personality, i.e. a de facto personality. The
law does not create its personality. The law merely recognizes
it, exactly as in the case of a human being. A human being may
be civilly dead or may be a slave, and so may have no legal per-
sonality. The law does not create the man. It only recognizes
him. It recognizes his capacities or interests, or some of them,
and endeavors to give effect to them and to secure them. In the
same way, Gierke said, the law does not create the group or as-
sociation nor create powers of collective action. It merely recog-
nizes and gives effect to some of them. An association, a club, a
trade union is a natural entity. When incorporated it becomes
also a legal entity.
Gierke's second main idea is that there is a group will which

is something real (i.e. significant, existing de facto) apart from
the wills of the associated individuals. There are claims asserted
on behalf of or in title of the group, which press upon the legal
order for recognition and security. The nineteenth century put
54. Compare in our law Breed v. Atlanta, B. & C. R. Co., 241 Ala. 640, 4
So.2d 315 (1941).
[316]
claims and demands in terms of will. Thus, in the Roman sense,

the will of the group or association is natural. It is not created
by state or law; but it is recognized and given effect by them in
certain cases.
It was necessary for Gierke to say "real" rather than "nat-
ural" because "natural person" had come to mean human being.
In the strict law all human beings were not given legal recogni-
tion. They were not all legal persons. Hence there were natu-
ral persons who were not civil or legal persons, e.g. in the Roman
strict law slaves and aliens. When in the stage of equity and
natural law the moral unit, the individual human being, became
the legal unit, and so every human being became a legal person,
the term "natural person" had become affixed to the distinction
between a legally recognized human personality and one not le-
gally recognized.
As a result of Gierke's work jurists began to regard group
will as no less important than the individual will. We should, no
doubt, put this differently today. The nineteenth-century science
of law postulated an abstract free will of the abstract isolated
individual. Gierke's group-will is the will of men some of whose
activities are carried on in groups; of individuals whose will is
affected by acting in groups seeking common ends through an or-
ganization, as distinguished from the will of the relatively iso-
lated individual. But if we bear this in mind, it is convenient to
speak of group-will where group capacity to enter into legal
transactions in which the law gives effect to the will is legally
recognized. When jurists began to think of group-will as more
than a fiction, group motives and powers of collective action had
to be sought and explained no less than abstract individual mo-
tives and abstract individual powers of action. This led to a new
way of thinking of the idea of the historical school that identifies
law with all social control. As Wundt put it, the state is not nec-
essary to law. What is necessary is an association or society
which is capable of producing a collective will because of corre-
[ 317]
Jurisprudence
spondence of ideas and interests. 55 The significance of this idea

for international law is manifest. We shall see later what Ehr-
lich and contemporary sociologists have made of it for sociologi-
cal jurisprudence. Gierke's theory of associations became as
strong an attack upon the abstract individualist jurisprudence of
the nineteenth century upon one side as Jhering's theory of in-
terests was upon another side.
One important consequence of Gierke's work was

to give a social-psychological turn to theories of sanction.
It will be remembered that sanction is that which gives to
legal precepts their efficacy. To the analytical jurist it was phys-
ical pressure-physical force exerted by the officials of a politi-
cally organized society. To the philosophical jurist it was moral
pressure-the inherent reasonableness and justice of the legal
precept; its conformity to right and justice. To the historical
jurist it was social pressure-the same pressure that is behind
so-called laws of fashion, namely, fear of the displeasure of one's
fellow men, producing habits of obedience.
A social-psychological theory of sanction was pro-

pounded by Jellinek (1851-1911) professor of law at
Heidelberg.
Like most German writers after Binding 56 and Jhering,
Jellinek starts from what is substantially the analytical position.
He says that what gives a legal precept the force of a law is that
it obtains in action as a rule of conduct, and what makes a legal
right is that the legal precept behind it obtains in action. But,
he says, a legal precept obtains in action when and where the au-
55. 112 Logik (2 ed. 1895) 543.

56. 1 Die Normen und ihre Uebertretung (1872, 2 ed. 1890).
[ 318 ]
thority which has prescribed it is so backed by social-psychologi-

cal power as to be in a position to give effect to the precept as a
motive for action, in spite of counteracting individual motives.
The will of those who wield the force of a politically organized
society, or the will of the legislative lawmaker, or the logic of the
judicial lawmaker are not sufficient of themselves to make legal
precepts effective. The precepts must have a guarantee in social
psychology. 51
Two examples are worth putting. In the law as to master

and servant, prior to the workmen's compensation acts, there was
a chronic condition of conflict between courts and juries. Juries
used their power to find facts or their power to render general
verdicts so as to give effect to ideas quite different from those of
the law and to reach results quite opposite to those called for by
the rules in the books.
Again, take the settled judicial doctrine that opposes col-

lusive divorce. What would the average community say or do to
a man convicted of extreme physical cruelty to a woman? Yet
there have come to be respected persons of high standing in al-
most every community against whom there are such records.
We know that in many parts of the country "extreme physical
cruelty" has become a convenient fiction to express that incom-
patibility of temper which may not unreasonably exist between
a respected neighbor and his wife. The legal theory, the judi-
cial decisions defining cruelty, the traditional rule against collu-
sion, remain in the books. But in many parts of the country it
57. Allgemeine Staatslehre (2 ed. 1900) 325-326 (also in I ed. 1890).

For numerous examples, taken from American law, of the way in which both
judge-made and statutory precepts fail in action because they have no such
guarantee, see Pound, Law in Books and Law in Action (1910) 44 Am.Law
Rev. 12. See also Wiel, Public Policy in Western Water Decisions (1912) 1
Calif.Law Rev. 11, a study of how judicial adherence to the common law ef-
fected nothing as against popular notions of water rights.
[319 ]
Jurisprudence
is common enough for husband and wife to agree upon a settle-

ment of property out of court and to agree that the wife shall
aver and prove cruelty unopposed. In some places where the
agreement has been made the newspapers publish it as an item
of news. Then the ritual of a litigation is gone through with and
a decree is entered. In those communities public thought and
feeling have changed and, whatever the law in the books, the
law in action is changing with them.r>
Jellinek's doctrine with respect to the relation of the state

to law, and of the nature of sanction was a needed corrective of
the imperative ideas which followed the rise of modern legisla-
tion. His conception of the social-psychological guarantee,
whereby rules are made effective and so become laws in some-
thing more than form, is one of the most important contribu-
tions of the earlier psychological movement.
More recently the development of social psychology has had

a marked effect upon philosophical jurisprudence. A group of
successors of Jellinek have been at work upon what may well
prove to be a psychological type of social-philosophical juris-
prudence. 59
(2) While a psychological movement was going on

in jurisprudence, a like movement was developing also
in sociology. It spread thence to the social sciences gener-
ally and thus to the science of law, and ultimately carried
58. Even in England, where the judges are more strict in this connection,
we are told: "The judges do their best to enforce the law as it stands, but
they struggle in vain against the prevalence of provided and often false evi-
dence." Hume-Williams, The World, the House, and the Bar (1930) 265. See
Woolf v. Woolf, [1931] P. 134, 136, 141; Beattie, [1938] P. 99.
59. See Radbruch, Rechtsphilosophie (3 ed. 1932) §13.
[ 320 ]
the psychological tendency in jurisprudence still further

and gave it a new direction.
It will be remembered that the mechanical sociology led to
a position in jurisprudence which was practically the same as
that of the historical jurists. It will be remembered also that this
static conception prevailed in the biological sociology. The com-
plete change of front which has taken place in sociology begins
with Ward. 0
As far back as 1883, in his first book, Ward took the position
that social forces were "essentially psychic." 61 This was empha-
sized especially in his book "The Psychic Factors of Civilization."
The thesis of that book is that social forces are psychic, and hence
62
that the foundations of sociology are to be found in psychology.
The phrase "efficacy of effort" comes from Ward. 3 He urged
that since sociology rested upon psychology and not directly up-
on biology, we must study not only how non-sentient nature
works but how mind combines its work with the non-sentient
factors of human existence, and that the laws which determine
this combination may be harnessed to man's use, just as so much
of physical nature has been so harnessed.6 4 He held that the atti-
tude of man toward nature should be twofold: that of a student,
but also that of a master. We must study the efficient social
forces. But we do not study them merely to be able to know be-
60. Dynamic Sociology (1883); The Psychic Factors of Civilization (1901);

Pure Sociology (1908); Applied Sociology (1906). For a juristic discussion of
Ward, See Gumplowicz, Geschichte der Staatstheorien (1905) §§ 119-120. See
also 1 Barth, Die Philosophie der Geschichte als Sociologie (3 and 4 ed. 1922)
446-457.
61. Dynamic Sociology (1883) chaps. 5, 7, 9, 10.
62. The Psychic Factors of Civilization (1901) 120.
63. Applied Sociology (1906) 13.
64. Ibid. See also The Psychic Factors of Civilization (1901) chap. 18.
Jurisprudence
forehand the results of their inexorable operation. We study

them chiefly in order to be able to apply them consciously to so-
cial ends.6 5
(3) Tarde gave direction to the psychological phase

of sociological jurisprudence. He was a trained lawyer.
For eighteen years he was juge d'instruction,an exam-
ining magistrate. Afterwards, he was head of a depart-
ment in the French Ministry of Justice. Finally, he was
professor of philosophy in the Coll~ge de France. He re-
fused to follow the biological sociologists who spoke of
evolution of law and used instead "transformation", a
term which French jurists have since employed very
generally. He gave his attention primarily to social
psychology." He undertook to find psychological laws
of imitation, since imitation was a constant factor in the
development of law, as of all other human institutions. 7
Tarde was the first sociologist to give us a theory of what is
the most significant part of legal systems, namely, the taught
tradition which we call "law" as distinguished from the enacted
rules or laws. To the lay eye, legislation commonly occupies the
65. Applied Sociology (1906) 13.

66. Tarde's writings: La philosophie p6nale (1890, 5 ed. 1902, English
transl. as Penal Philosophy, 1912); La logique sociale (1894, 4 ed. 1913); Les
lois sociales (1898, 8 ed. 1921); Les transformations du pouvoir (1899); La
psychologie dconomique (1901). The significant works for our purpose are:
Les lois de l'imitation (1890, 5 ed. 1907, English transl. as Laws of Imitation,
1899); Les transformations du droit (1892, 8 ed. 1922).
67. "Man . . . is an imitative animal. He imitates his forefathers:
that is custom. He imitates his neighbors: that is fashion. He imitates him-
self: that is habit." Ilbert, Montesquieu (1904) 41.
[ 322 ]
whole stage. Indeed, to the layman penal legislation is apt to

stand for the whole law. As a practical lawyer, Tarde knew the
importance of a taught tradition, of doctrinal writing and of ju-
dicial decision. He knew the significance of the traditional ele-
ment in a legal system and of the modes of juristic thinking that
give continuity to legal systems. These modes of thinking and
mental habits as to the development and application of legal pre-
cepts are the most enduring elements in the law.
For example, consider the continuity of the common law.
It has a real unity at least from the age of Coke to the present.
As a mode of thinking, as a mode of reasoning upon legal sub-
jects, it is the same in England, the United States, Canada, and
Australia. It is the same in its technique of decision, in its judi-
cial and juristic craftsmanship, and in its characteristic institu-
tions. It is the same in reasoning from analogy of decisions rath-
er than of statutes. It is the same in its distinction of law and
equity. Perhaps the three characteristic common-law institu-
tions are (1) the doctrine of judicial precedents, i.e. of decision
on the basis of judicial experience rather than of written texts;
(2) the mode of hearing causes and of determining issues of fact
which has grown out of trial by jury and the consequent law of
evidence; and (3) the doctrine of the supremacy of law. In
these respects the common law is the same in substance in one
century and in the next. And yet between Coke and the present,
equity has developed; the law merchant, which Coke had not
much more than heard of,68 has developed and been absorbed into
the common law; and rules have disappeared, have altered, have
sprung up and decayed, or have sprung up and developed into
wholly new departments of the legal system. In the same way,
the Roman tradition has continuity and essential identity, if not
from the second century A.D., certainly from the fifth century
A.D., to the present.
68. See Second Institute, 58, 404 (1642); Fourth Institute, 237-238 (1644).
[ 323 ]
Jurisprudence
Again the Roman tradition gives form and color to all ele-
ments in Continental law. It Romanizes them. The modern law
of Continental Europe contains many Germanic elements which
have been thoroughly Romanized, e. g. community property. So,
too, the common-law tradition has put its brand on equity, on ad-
miralty, on probate and administration, and on the law merchant,
which developed under alien auspices. For example, the older
admiralty reports published the opinions of doctors of the civil
law as counsel.6 But for a long time an admiralty report has
not been distinguishable from a common-law report. Both com-
mon law and civil law succeed in fitting legislation, no matter by
what force it is fashioned, into the traditional system. Explana-
tion of this persistence, of this toughness, of a taught tradition
is worth much more than theories of formal lawmaking.
Today social psychology has an important place both

in philosophical and in sociological jurisprudence. 0
Study of the world view (Weltanschauung) of courts, of
judges, and of doctrinal writers and study of the psychology of
legal and juristic thinking have come to be among the chief ac-
tivities of jurists. On the Continent, a considerable literature
69. Marsden's Admiralty Cases reports all such opinions (pp. 350-401). As
to the making over of admiralty on common-law lines note a remark by Judge
Hough: "The holding which disposed of the case may be put thus: if there
is no right to sue for tort, there is no tort. This is not a maritime question
at all; but it disposes of an admiralty cause by refining on the meaning of a
word unknown to the historic admiralty, though it is unquestionably natural-
ized in America. The word that is known to admiralty is collision; so that
perhaps . . . the bar will state the rule in The Western Maid thus:
'The United States has not consented to be sued for collisions; therefore in
a legal sense there was no collision.'" Admiralty Jurisdiction-of Late Years
(1924) 37 Harvard Law Rev. 529, 543-544.
70. See Brugeilles, Le droit et la sociologie (1910) chap. -6, -Les -ph6nomtnes
interpsychologiques.
[ 324 ]
has sprung up on this subject.7 1 There is the beginning of such

72
a literature in America.
Since 1920 there has been a renewed emphasis on this ap-
proach and important contributions have been made, especially
in Hauriou's institutional theory 73 and Petrazycki's psychologi-
cal intuitionism 74 Both will be considered more fully in a later
connection. 75

CAL SCHOOL-THE STAGE OF UNIFICATION. 6
In general it may be said that a new stage begins about
1900. Also in a general way it may be said that this
new stage has two phases, an earlier phase, the unifica-
tion of sociological methods, and a later phase, the unifi-
cation of the social sciences.
71. Les mthodes juridiques (lectures by French jurists, 12 lntudes 6con-

omiques et sociales pub. Paris, V. Girard et E. Briard, 1911); Wurzel, Das
juristische Denken (1904) (transl. in Science of Legal Method); Bozi, Die Wel-
tanschauung der Jurisprudenz (1907, 2 ed. 1911).
72. Science of Legal Method (9 Modern Legal Philosophy Series, 1917);
Cardozo, The Nature of the Judicial Process (1921); Frank, Law and the
Modern Mind (1931); Robinson, Law and the Lawyers (1935); Morris, How
Lawyers Think (1937).
73. See Jennings, The Institutional Theory (1933) (in Modern Theories of
Law) 68-85.
74. See Meyendorff, Leo Petrazycki (1933) (in Modern Theories of Law) 21-
37.
75. Post, § 27.
76. Brugeilles, Le droit et la sociologie (1910) 160 ff.; Roguin, La r~gle de
droit (1905) 8; Vander Eycken, Mdthode positive de l'interprftation juridique
(1907) 112; Kantorowicz, Rechtswissenschaft und Soziologie (1911) 8; Richard,
La philosophie du droit et la sociologie en Angleterre (1932) Archives de phil-
osophie du droit et de sociologie juridique, 377; Vinogradoff, The Crisis of
Modern Jurisprudence (1919) 29 Yale Law Journ. 312; Pound, Interpretations
of Legal History (1923) 116-140, 151-165.
[ 325 !
Jurisprudence
At the very end of the nineteenth century sociologists were

coming to see that no one of the methods theretofore worked out
was the whole of sociology and that none of the solving ideas
which had been put forward was equal to the task of unfolding
all the social sciences."7 In 1902, Ward showed that all the lines
of sociological study heretofore discussed had their value, but
that none could be relied upon to do the whole work of social sci-
ence. 78 Thus it came to be seen that there was no one key to so-
cial science. There was no one all-sufficient method. 79 In conse-
quence, it was seen that no one method was all-sufficient for the
science of law. There was no one exclusive path for jurispru-
dence. This is out of line with neo-Kantian methodology, which
insists on separate sciences, each with one method.
Somewhat later it came to be seen that not only was it need-
ful to combine the several methods which had been employed in
sociology and to unify that science, but that it was also needful to
put sociology into relation with the other social sciences; that it
was needful to unify the social sciences by recognizing that after
all, in a large view, they are departments or phases of a science
of human society or, what that comes to, civilization."0
Both of these conceptions came into sociological ju-

risprudence. It came to be recognized that each of the
77. See the papers cited in Small, General Sociology (1905) 90 n. 39.
78. Contemporary Sociology (1902) reprint of three papers published in 7
Am.J.Sociol. 475, 620, 749.
79. Ward enumerated twelve "leading sociological conceptions or unitary
principles," each of which had been "put forward with large claims to being
in and of itself the science of sociology," and said that while none of them
were to be rejected, they were, as it might be put, "so many minor streams,
all tending in a given direction and converging." Pure Sociology (1903-1918)
14. It is worth noting that all but two of the twelve had been put forward in
the same way in sociological jurisprudence.
80. This Is well put in Small, The Meaning of Social Science (1910) 87.
[ 326 ]
directions which sociological jurisprudence had taken

had something for the science of law as a whole and that
no one of them was to be pursued exclusively."' It was
also recognized that the entire separation from the other
social sciences in the nineteenth century was unhappy.
On the one hand, the leaving of jurisprudence to itself
and ignoring of its problems by the other social sciences
was a mistake. On the other hand, the jurist's conviction
of the self-sufficiency of jurisprudence was unfortunate.
It was unfortunate for the science of law on general
grounds since it led to a narrow and partial view. Spe-
cifically, it was unfortunate because it must be charged
in large part with the backwardness of the law in meet-
ing social ends, the tardiness of lawyers in admitting or
even perceiving such ends, and the gulf between legal
thought and popular thought on matters of social reform
which was so marked in the first decade of the present
century." Not a little of the worldwide discontent with
the legal order, which was so marked before the first
world war and is now reappearing, was due to modes of
juristic thought and to juridical and juristic methods
that were the result of want of "team play" between ju-
risprudence and the other social sciences.8 3
81. This is well put in Brugeilles, Le droit et la sociologie (1910) 160 ff.
82. See Tarde, Les transformations du droit (1892) introduction.
83. See Ross, Social Phychology (1908) 223-224; Ely, Economic Theory and
Labor Legislation (1908) 18; Bruce, Laissez Faire and the Supreme Court of
the United States (1908) 20 Green Bag, 546.
The first movement for a better relation between jurisprudence and the oth-
er social sciences grew out of the political interpretation urged by the English
[ 327 ]
Jurisprudence
Sociological jurists now insist on the unity of the

social sciences and the impossibility of a wholly detached,
self-centered, self-sufficing science of law. 4 They insist
that the legal order is a phase of social control 85 and that
it cannot be understood unless taken in its whole setting
among social phenomena.
§ 27. CONTEMPORARY SOCIOLOGY IN RE-
LATION TO SOCIOLOGICAL JURISPRUDENCE. 6
When, in the first decade of the present century, Ameri-
can juristic thought began to be affected by sociology,
Durkheim's sociology 87 was ruling in France and the so-
ciology of Ward and his followers ruled in the United
historical jurists. This had a tendency to bring jurisprudence and politics into
cooperation. Somewhat later the economic interpretation and still later the
civilization interpretation, urged by the neo-Hegelians, led to a closer relation
between jurisprudence and economics. Witness the title of the organ of the
neo-flegelians-Archiv ffirRechts- und Wirtschaftsphilosophie (founded by
Kohler and Berolzheimer).
84. "The error of the classical conception was in looking upon law as a
science isolated from the others, self-sufficient, furnishing a certain number
of propositions the combination whereof ought to provide for all needs. In
reality the law is only a resultant. Its explanation is outside of itself. Its
sources must be sought elsewhere." Vander Eycken, MAthode positive de rin-
terprdtation juridique (1907) 112. "Nothing is more fallacious than to believe
that one may give an account of the law by means of the law itself." Roguin,
La rfgle de droit (1889) 8. See also Bosanquet, Philosophical Theory of the
State (1899) 36 et seq.
85. See Pound, Social Control Through Law (1942) lect. I.
86. Pound, Fifty Years of Jurisprudence (1938) 51 Harvard Law Rev. 777,
811.
87. Durkheim, Les regles de la m6thode sociologique (1895, 6 ed. 1912); id.
De la division du travail social (1893, transl. by Simpson as On the Division of
Labor in Society, 1933). See review by Stone in 47 Harvard Law Rev. 1448
(1934).
[328]
States. Under the influence of Ward's later writings, I

have spoken of the current stage of sociological jurispru-
dence as the stage of unification. Small had called the
corresponding stage of sociology in America the "evalu-
ating phase." 88 Both directions, that of unification of
the social sciences and that of seeking to value the phe-
nomena of social life, have been taken. In the one direc-
tion there are attempts to relate jurisprudence to the oth-
er social sciences8 and surveys of the several social
sciences in their relations to each other." German so-
ciology after the first world war partly took the other di-
rection, seeking under neo-Kantian influence a theory of
values." But for the most part, contemporary sociology,
pursuing a strict methodology, while it recognizes values,
rigidly excludes all valuings as subjective and unscien-
tific, thus passing the buck to some other branch of learn-
ing.
Pareto 92 for a time had much vogue in the United States but
seems to have had no effect upon jurisprudence. His sociology is
based on psychological analysis. He postulates genuine or basic
motivations of conduct as contrasted with fictitious appearances
88. The Meaning of Social Science (1910) lect. S.

89. E. g. Cairns, Law and the Social Sciences (1935).
90. E. g. Barnes, History and Prospects of the Social Sciences (1925); Og-
burn and Goldenweiser, The Social Sciences (1927).
91. A brief account may be found in Abel, Systematic Sociology in Germany
(1929).
92. Trattato di sociologia generale (1916, 2 ed. 1923, French transl. in two
volumes as Traitd de sociologie gfndrale (1919) English transl. in four vol-
umes as The Mind and Society (1935) ).
[ 329]
Jurisprudence
or moralizations or rationalizations of them. He seeks the real

motives underlying acts, and distinguishes the "residues," the
forms taken on by deep-seated human drives (or instincts as we
used to call them) from the "derivations," the socially created
masks of the residues. Pareto might be, but has not been, used
by American juristic realists. What he has to say as to law is in-
cidental in illustration of his general theory. He considers the
realities of legislative lawmaking 93 mostly in terms of penal leg-
islation; and the realities of judicial decision 94 mostly in terms
of administration of criminal law and French juries (and so not
very real in either case as to the law generally) ; and to much the
same effect as American skeptical realists. What is most im-
portant for jurisprudence is his discussion of the conditions and
theory of effective lawmaiking and of insuring obedience and en-
95
forcement.
Max Weber,9 on the other hand, has had not a little influ-
ence upon sociology of law on the Continent. He had a deep
knowledge of economic, social, and legal history, and wide ac-
quaintance with political, religious, and intellectual development
in different civilizations. Thus he had an exceptional foundation
for a science of society. What he sought chiefly was to make so-
ciology an independent social science with its own method. He
conceived that all the structural forms of society-the state, the
church, the public service company-which are regarded as units
in the other social sciences, turn on social activity. Sociology,
then, has to do with the activities of men. It is concerned with
activities "oriented to the activities of others." It treats social ac-
tivity from the standpoint of its meaning. Thus it is a "science of
understanding" and so differs from the natural sciences which
93. §§ 1300-1301 (I use the paragraph numbers of the third edition).

94. § 466.
95. §§ 1863-1875.
96. Gesammelte Aufs~itze zur Sociologie und Sozialwissenschaft (1924).
[330]
have nothing to do with the meaning or the motive of events.

Events, happenings without the intervention of will are distin-
guished from acts. Acts have motives. Events do not. It follows
that sociology must have its own method. Discovery of laws is in
the natural sciences an end in itself. In sociology, on the other
hand (and here he differs from the older sociologists) laws are
but instruments for discovering the causal interrelations of his-
torical phenomena. He realizes that the relation of these phe-
nomena to values is of much importance for civilization. But,
he says, this lies beyond the province of a science. Universally
valid scientific analysis must be kept separate from judgments of
values. Yet we have to deal with values. One who pursues his
own values necessarily interferes with the values of others.
In the result, he tells us, there is a responsibility upon every hu-
man being. Herein we may find a basis for the legal order.
There is a conflict of values to be harmonized where Kant saw a
conflict of wills. The question remains what is to be the measure
of this harmonizing. Is it to be merely the force of a politically
organized society?
Sorokin 97 is concerned with the functioning and change of
the "fundamental types of integrated cultures." After Max
Weber, he thinks of a culture as "the sum total of everything
which is created or modified by the conscious or unconscious ac-
tivity of two or more individuals interacting with one another or
conditioning one another's behavior." 98 He has relatively little
to say of law, and that incidentally. But it is obvious that soci-
ological jurisprudence, especially in its theory of interests, might
build on his work. We might work out a theory of adjustment
99
of these conditions.
97. Social and Cultural Dynamics (1937).

98. Id. 3.
99. Other recent works on sociology deserving of mention are: Tfinies,
Einfiihrung in die Sociologie (1931); von Wiesser, Das Gesetz der Macht
[ 331 ]
Jurisprudence
SOCIOLOGY OF LAW begins to be talked about in

the second decade of the present century. In 1911, Kel-
sen laid out a sharp line of distinction between juristic
and sociological method.' He said that juristic method
postulated the state, the constitution of the state as the
source of norms, and a series of norms derivable from the
highest norms. It had nothing to do with other than log-
ical criticism of these norms. It led to a pure theory of
law in which the main task is to work out the logical in-
terdependence of the norms of which a body of law is
made up,"0 ' and the chief instrument is logical analysis.
Sociological method, on the other hand, had to do with
the needs of those who prescribe, as contrasted with those
who apply, the norms, and so with their content as dis-
tinguished from their systematic arrangement, logical
interdependence, and historical development. This
makes a neat division of labor and would relieve the
jurist of his most difficult problems. But, except for the
purposes of schematic laying out of the boundaries of
social sciences, it is not possible to separate the content
of legal precepts from their application.
Vogue of neo-Kantianism on the Continent, especially in
'Continental Europe since the first world war, and the influence
(1926); Freyer, Sociologie als Wirklichkeitswissenschaft (1930); Dtmkmann,

Angewandte Soziologie (1929).
100. Ueber Grenzen zwischen juristischer und soziologischer. Methbde
(1,91t).
'101. Note the analytieal position Us to the nature of law.

[ 332]
of Kelsen have led to a tendency to set off somewhat rigidly sep-

arate domains of what had been coming to be regarded as a single
science of law, not to be cut off wholly from other social sciences,
and have brought about a tendency to stress method, i. e. the one
method peculiar to each particular limited domain, at the expense
of what we seek to attain through method. Thus we get disputes
about whether sociology of law is a "fact science," or a "norma-
tive science," or a "culture science," and a setting off of "posi-
tivist philosophy of law," "positivist theory of law," "sociology
of law," and "applied science of legislation." 102 But each of these
no more than does a part, and if we think of more than logical
methodology, an indivisible part, of a fruitful science of law.
This excessive subdivision and limitation of fields is a reversion
to the water-tight compartment learning of the nineteenth cen-
tury which laid out divisions made to the exigencies of academic
courses. Whatever sociology of law may be, with the emphasis on
sociology, sociological jurisprudence, with the emphasis on juris-
prudence, is a science of law, in all the meanings which lawyers
and jurists attach to that term, approached from the standpoint
of a science of society.
Gray thought that sociological jurisprudence was necessarily

"deontological." 103 Radbruch, on the other hand, holds that in
America we misuse the term sociology "which designates the
theoretical science of society and excludes valuations of a practi-
cal and political nature." 104 In the same way when Durkheim's
102. See e. g. Timasheff, What is Sociology of Law (1937) 43 Am.J.Sociol.

225. See also Horvrth, Rechtssoziologie (1934) §§ 27-32
103. Nature and Sources of the Law (2 ed. 1921) 139 n.
104. Anglo-American Jurisprudence Through Continental Eyes (1936) 52
L.Q.Rev. 530, 542. Compare: "I mean the work of arriving at the completest
objective estimate possible of the qualitative and quantitative effects which
possible alternative combinations of the forces to be controlled in a given
sitsatibn would have upon the whole human process." Small, The Meaning
of Social Science (1910) 225.
[3]
Jurisprudence
methodology was accepted in France, it seemed to Lepaulle that

we in America must tie to Durkheim's sociology or we could not
claim to be sociologists. 10 5 Others, whom the descriptive sociolo-
gy had attracted, were sure that sociological jurisprudence could
never be anything but a set of generalizations from anthropolo-
gy.'06 Nor is it so long ago that sociological jurists were told that
they could never get beyond their historical beginnings in the
mechanical sociology.107 In the reign of Ward, sociology was
called "the American science." We are quite justified in continu-
ing in our own way with our eyes upon the problems of the ad-
ministration of justice and refusing to be confined to a sterile
logicism or to busy ourselves exclusively with methodology.108
Eugen Ehrlich 10 calls for special notice. In spite

of certain defects often pointed out, his Grundlegung der
105. The Function of Comparative Law (1922) 35 Harvard Law Rev. 838,
E39-841.
106. Del Vecchio, I presupposti filosofici della nozione del diritto (1905)
86-93; id. Sull' idea di una scienza del diritto universale comparato (1909)
11.
107. II Berolzheimer, System der Rechts- und Wirtschaftsphilosophie (1905)
385-386.
108. See Sauer, Rechts und Staatsphilosophie (1936) 14-16.
109. 1862-1922, professor of law at Czernowitz, 1897-1918. His important
writings for our purpose are: Beitrage zur Theorie der Rechtsquellen (1902);
Erforschung des lebenden Rechts (1911) 35 Schmoller's Jahrbuch fUr Gesetz-
gebung, 129; Grundlegung der Soziologie des Rechts (1913, transl. by Moll
as Fundamental Principles of the Sociology of Law, 1936)-see review by
Simpson (1937) 51 Harvard Law Rev. 190, by Timasheff (1937) 2 Am.Sociol.
Rev. 120, and by Rheinstein (1938) 48 Internat. Journ. of Ethics, 232, and cri-
tique of the original by Vinogradoff, The Crisis of Modern Jurisprudence (1829)
29 Yale L.J. 312; Das lebende Recht der V6lker von Bukowina (1913); Die
juristische Logik (1918); The Sociology of Law (1922) 36 Harvard Law Rev.
130. See also Page, Professor Ehrlich's Czernowitz Seminar of Living Law
(1914) Proceedings of the Fourteenth Annual Meeting of the Ass'n of Am.
Law Schools, 46; Gurvitch, Sociology of Law (1942) 149-156.
[-334 ]
Soziologie des Rechts is one of the outstanding books of

this generation. He had only the beginnings of a tech-
nique of ascertaining customs of popular action and get-
ting at the relations of these customs to the law in the
books and the judicial and administrative processes in ac-
tion. But he set us to studying such things, and the tech-
nique has been developed. He was able to compare intel-
ligently the legal and juristic thinking of Roman law,
the English common law, the modern Roman law, and
the law of Continental Europe of today, as no one had
done before him. His conception of a complex of social
facts involved in the manifold associations and relations
which go to make up human society deserves to be com-
pared with Duguit's observed and verified fact of social
interdependence in an economic order. It includes what
Duguit saw and much more. His idea of the inner order
of groups and associations and relations as the basis of
the legal order, giving us the living law, should be com-
pared with what the economic determinist sees as im-
position of the will of the socially dominant class. Again,
he sees much more. Indeed, Hauriou's institutional the-
ory builds on Gierke and Ehrlich. Ehrlich's idea of the
reaction of "living law" (that is, the inner order of
groups and associations and relations) upon generaliza-
tions and formulas, and of precepts and formulas which
no longer reflect the inner order of significant associa-
tions and relations, should be compared with the view of
the skeptical realists who can see only individual be-
[335]
Jurisprudence
havior tendencies of individual judges. He made a sig-

nificant beginning of a sociological comparative law
which is palpably developing at present. The value of
this work for the problems of relation of the judicial to
the legislative process is obvious. The neo-Kantian con-
ception of law as made up of value judgments which in
the end cannot be demonstrated and rest on some postu-
late subjectively acceptable to the philosopher, needs to
be at least supplemented, for the purposes of such practi-
cal matters as the legal order and the judicial process,
by the sort of study of the "living law" which Ehrlich
urged. Such things as the understanding of bankers
when the legal theory and effect of letters of credit was
in doubt,".. or the pressure by bankers on one of the prin-
cipal banks in New York City not to plead ultra vires
when sued on a supersedeas bond, or the understanding
of the business world today as to cancellation of orders,
or the custom of collecting bank checks through the clear-
ing house when the courts had a rigid rule as to reason-
able time,"' illustrate the importance of his doctrine for
everyday purposes of the science of law." It is quite un-
110. See Hershey, Letters of Credit (1918) 32 Harvard Law Rev. 1, 38-39.
I1I. Edmisten V. Herpolsheimer Co., 66 Neb. 94, 92 N.W. 138, 59 L.R.A.
934 (1901); Spokane Valley State Bank v. Lutes, 133 Wash. 66, 233 P. 308
(1925). But the great weight of authority recognized the custom. Brannan,
The Negotiable Instruments Law Annotated (6 ed. 1938) § 186, p. 1139.
112. On this and other like questions reference should be made to Llew-
ellyn, What Price Contract (1931) 40 Yale Law Journ. 704. See such studies
as Moore and Sussman, Legal and Institutional Methods Applied to the Deb-
[ 336]
derstandable that he has had a notable influence in Amer-

ica where we are wrestling with so many practical prob-
lems in a time of legal transition. Ehrlich has made a
great advance on Savigny's theory of custom.
Mr. Justice Holmes 113 was at least the forerunner of
sociological jurisprudence in the United States. In his
juristic thinking he went through an analytical stage as
shown by his earlier writings in the American Law Re-
view between 1870 and 1880.114 Next he went through a
historical stage, as might have been expected in the last
quarter of the nineteenth century."5 Experience upon
the bench and wide reading of and deep reflection upon
the juristic writing of the time, led him at the end of the
century to the sociological position."' In the significant
departures from the legal science of the last century he
anticipated American thinkers and teachers of the pres-
iting of Direct Discounts (1931) 40 Yale Law Journ. 381, 555, 752, 929, 1055,
1219.
113. Oliver Wendell Holmes, 1841-1935, lecturer and instructor, 1870-1873,
professor of law, 1882, at Harvard; Associate Justice of the Supreme Court
of Massachusetts, 1882-1899; Chief Justice, 1899-1902; Associate Justice of
the Supreme Court of the United States, 1902-1932.
114. The more important of these are reprinted, with a bibliography, in
44 Harvard Law Rev. 725-798.
115. The Common Law (1882). This stage of his thinking is brought out
strikingly in his dissenting opinion in Miller v. Hyde, 161 Mass. 472, 478, 37
N.E. 760, 764, 25 L.R.A. 42 (1894).
116. The Path of the Law (1897) 10 Harvard Law Rev. 467, reprinted in
Collected Papers (1920) 167-202; Law in Science and Science in Law (1899)
12 Harvard Law Rev. 442, reprinted in Collected Papers, 210-243. See Pound,
Judge Holmes's Contributions to the Science of Law (1921) 34 Harvard Law
Rev. 449; Gurvitch, Sociology of Law (1942) 156-158.

Jurisprudence
ent century from ten to twenty years. In the definite

break with the method of the historical school; in the
study of methods of judicial thinking and understanding
of the scope and nature of legal logic; in recognition of
the relation between the law-finding element in judicial
decision and the policies that must govern lawmaking;
in conscious facing of the problem of harmonizing or
adjusting conflicting or overlapping interests; in faith
in the efficacy of effort to make the law more effective for
its ends; in a functional point of view in contrast with
the purely anatomical or morphological standpoint of
the last century; in giving up the idea of jurisprudence
as a self-sufficient science-in each of these respects he
foreshadowed, if he did not develop, the characteristic
methods and ideas of a sociological science of law.
In American sociological jurisprudence the out-
standing work is that of Mr. Justice Cardozo.117 His set-
ting off of the judicial process from the other meanings
to which the term "law" has been applied, yielding an
idea applicable also to the administrative process, and
not only giving us a very useful term, but obviating a
confusion between the regime, the process by which it is
117. Benjamin Nathan Cardozo, 1870-1938, Justice of the Supreme Court

of New York, 1913-1917, Judge of the Court of Appeals of New York, 1917-
1927 and Chief Judge, 1927-1932, Justice of the Supreme Court of the United
States, 1932-1938. His writings: The Nature of the Judicial Process (1921);
The Growth of the Law (1924); Paradoxes of Legal Science (1928); Address
before the New York State Bar Ass'n (1932) 55 Rep.N.Y.State Bar Ass'n 263.
See Aronson, Cardozo's Doctrine of Sociological Jurisprudence (1938) 4 J. of
Social Philosophy, 5; Gurvitch, Sociology of Law, 166-171.
[ 338 ]
maintained, and the body of authoritative precepts gov-

erning or guiding the process, has made much of the old-
er discussion of the nature of law obsolete and is making
for a better understanding of this fundamental subject.
But he was at bottom a social utilitarian as is brought
out in his Nature of the Judicial Process.
In Horvdth's work 1Is the terminological and methodological
fashions of the moment have run riot. But he has something to
say as to method. He is profoundly dissatisfied with the current
dogma of internal antinomy in the law; the dogma that the stand-
points of a science having to do with facts and of one having to
do with norms are antogonistic and exclusive; the dogma that
natural phenomena and normative phenomena are not relatable.
Feeling justly discontented with this doctrine, he sets out to show
that law is the relation between the two; that law relates fact of
nature to norm. Hence every ought-to-be is a function (Funktion)
of an is, and every is is a function of an ought-to-be. Here "func-
tion" is used in the mathematical sense. That is, if I understand
him aright, every legal precept which exists as an item of the
positive law, is in its application an activity toward a model or
pattern of ought-to-be, and every ought-to-be pursues its purpose
or end in the form of one or more positive precepts. This is
clearly an improvement on the give-it-up doctrine which is
preached so much today. 119
Two other recent books call for brief notice. Timasheff's 120
main thesis is the unification of the ethical and the imperative,
I18. Rechtssoziologie (1934). Review by Wilson (1936) 52 Law Quart.Rev.

138.
I19. As to neo-Kantian relativism in relation to sociology see Sauer, Rechts
und Staatsphilosophie (1936); Gurvitch, Sociology of Law (1942) 304-309.
120, Introduction to the Sociology of Law (1939).
E 339 ]
Jurisprudence
which Radbruch considers an irreducible antinomy. This and

Horvath's attempt are characteristic of the stage of unification.
A simpler unification may be achieved by the idea of social con-
trol, whether regarded as an observed and verified fact or as a
postulate of civilization. Gurvitch 121 regards "sociology of law
as a kind of sociology of the human spirit" and insists upon "the
mutual interdependence of this part of sociology and philoso-
phy.' 11 2 His philosophy is "radical empiricism with an intui-
tional basis." 123 Although affected by phenomenology, he re-
fuses to follow those of its adherents who would carry it out into
American neo-realism.124 The book is especially useful for the
painstaking account of "the forerunners and founders of sociolo-
125
gy of law" to which about half of its contents is devoted.
NEO-SCHOLASTIC SOCIOLOGICAL JURISPRUDENCE

developed in France and in Spain in the second quarter
of the present century. The leader was Maurice Hauriou
121. Sociology of Law (1942). See also his earlier books: L'idde du droit
social (1932); L'expdrience juridique et la philosophie pluraliste du droit
(1935).
122. Sociology of Law, 304.
123. Id. 308.
124. Id. 171-175.
125. Id. 68-197. Other recent works are: Cornil, Le droit privd: Essai de
sociologie juridique simplifi1 (1924); Jerusalem, Soziologie des Rechts (1925);
Burckhardt, Die Organisation der Rechtsgemeinschaft (1927); id. Methode
und System des Rechts (1936); Fehr, Recht und Wirklichkeit (1927); id. Das
kommende Recht (1933); Legaz de Lecambra, Filosofia realista y derecho
natural (1928); Du Pasquier, Modernisme judiciaire et jurisprudence suisse
(1929); id. Quelques r~flexions sur la notion du droit (1933); Wurzel, Die
Sozialdynamik des Rechtes (1929); Queiros Lima, Principios de sociologia
juridica (2 ed. 1931); Schindler, Verfassungsrecht und soziale Struktur (1932);
Pontes de Miranda, Systema de sciencia positiva do direito (1932).
In English: Bodenheimer, Jurisprudence (1940); Cairns, The Theory of
Legal Science (1941)-behaviorist-sociological; Vale, Some Legal Foundations
of Society (3 vols. 1941)-psychological sociological. See also Niemeyeri'Law
Without Force (1941).
[340 ]
(1856-1929) professor at Toulouse." 6 It has been noted

many times that Austin's jurisprudence is quite inde-
pendent of the utilitarian philosophy which he expounded
so zealously as the basis of his thinking. In the same
way, the neo-Thomism, which is assumed by Hauriou,
might be replaced by positivism with no damage to his
institutional theory. From either starting point he could
arrive at the idea of institutions and systems of law with-
out the state and of the state itself as but an institution.
Hauriou's doctrine is that "institutions," that is, asso-
ciations of human activities (note-not beings but ac-
tivities of beings) established with a continuous exist-
ence, are realities with a significance and continuity
apart from any persons for the time being, certain of
whose activities are organized without their personali-
ties being included. He defines an institution as an idea
of some work or enterprise realizing and persisting in
a social milieu. He adds that an authority is set up and
provides organs for itself in order to realize this idea,
and the members of the social group which are interested
in realizing the idea bring about manifestations of com-
126. Hauriou's writings: Precis de droit administratif (12 ed. 1933); Prin-
cipes de droit public (11 ed. 1927); La thdorie de l'institution et de la fonda-
tion, in La citd moderne et les transformations du droit (1925). His doctrine
is developed by Renard, La thiorie de l'institution (1930). See Jennings, The
Institutional Theory of Law, in Modern Theories of Law (1933) 68-85; Delos,
La thforie de l'institution (1931) Archives de philosoPhie du droit et de so-
ciologie juridique, 96-153; Gurvitch, Les iddes maltresses de Maurice Hau-
riou, id. 155-159; I Bonnecase, La pensde juridique frangaise (1933) 379-383;
Gurvitch, Sociology of Law (1942) 139-147; Pound, Fifty Years of Juris-
prudence (1938) 51 Harvard Law Rev. 777, 807-809.
[ 341]
Jurisprudence
mon interest directed by the organs of authority and gov-

erned by certain procedures."7 It is a theory of social
organization in terms of a labor union as Duguit's is a
theory in terms of a French industrial area of the fore
part of the present century. Obviously it is a sociological
rather than a juristic theory. It is as difficult of juristic
application as Duguit's theory of the state, and neither
Hauriou nor his chief exponent, Renard,s has attempted
to work out a system of jurisprudence on this basis. Per-
haps the multiplicity of institutions, each carrying out
its idea, might replace the crowd of individuals, each ex-
erting his will in a never ending conflict, actual or po-
tential, which Kant sought to order. Where Kant saw
wills, and Marx economic wants, and Post instincts, and
Max Weber values and William James desires and de-
mands in conflict and requiring adjustment to each other,
Hauriou saw institutions. It is significant that we have
here a theory which finds the unit elsewhere than in the
individual man and that this theory has become very
generally accepted by writers on public law at a time
when that subject is crowding private law even in the
English-speaking world, in which the private-law view
of public law has been traditional.
127. La th4orie de r'institution et de la fondation, in La citd moderne et

les transformations du droit (1924) 10. For a fuller account in English see
Hallis, Corporate Personality (1930) 217-238.
128. Gdny;s successor at Nancy.
[,-42]
Another type of neo-scholastic sociology deserve notice also.

In Spain a neo-Thomist sociological realism (that is, realism in
the older philosophical sense of belief in an ultimate reality be-
hind phenomena) has arisen, building a sociological theory on
the encyclical of Leo XIII, resting authority upon or deriving it
from God, and attacking Del Vecchio and Kelsen equally. 12 9 The
resulting fascist doctrine as to state and law is not noticeably
different in action from the teaching of the neo-Kantian right.
PSYCHOLOGICAL INTUITIONISM is represented by

Leo Petrazycki."3 ' His writings for the most part are
accessible only in Russian or Polish. A few have been
translated into German,'.. and he was much discussed
for a time. He gives us an intuitionist version of the
psychological sociology of law. Law (i.e. droit, Recht-
right plus law) is held to be a subjective psychological ex-
perience. As he is both positivist and idealist, while his
129. Gil Robles, Ensayo de metodologil juridica (1893); Izquierdo, El

derecho justo de Stammler y la ley justa de Santo Tom's (1926); Gonzales
Oliveros, noted in Recasdns Siches, Estudios de filosofla del derecho (1936)
484, and other authors referred to id. 489-492.
130. 1867-1931, professor at St. Petersburg before the Russian revolution
and at Warsaw after 1918.
131. Petrazycki, Methodologie der Theorien des Rechts und der Moral
(1933) Opera Academiae Universalis Jurisprudentiae Comparativae, Series
II, Studia, Fasciculus 2; id. Ueber die Motive des Handelns und iiber das
Wesen der Moral and des Rechts (transl. from Russian by Balson, 1907). For
an account in English of his work see Meyendorff, Leo Petrazycki, in Modern
Theories of Law (1933) 21-37. For critiques see Grouber, Une thiorie psy-
chologique du droit (1912) 10 Revue trimestrielle de droit civil, 531; Gurvitch,
Une philosophie intuitioniste du droit (1931) Archives de philosophie du droit
et de sociologie juridique, 403-420; Laserson, Russische Rechtsphilosophie
(1933) 26 Archly fiir Rechts- und Wirtschaftsphilosophie, 289, 324-330; Cornil,
A propos d'un livre posthume de L. Petrazycki (1934) Archives de philosophie
du drolt et de sociologie juridique, 180-196.
[ 343 ]
Jurisprudence
emotional intuitionism runs into phenomenology, he is

looked at from different standpoints by those who write
about him, and, according to the side which they regard,
is differently appraised." His chief contributions for
the purposes of jurisprudence seem to be: His reference
of both law and morals to psychology; his study of the
process of motivation; his theory of the creation of posi-
tive morality and positive law through unification of
habits of conduct; and his psychological theory of alter-
nating change and stability.' The relation of his inves-
tigation of the process of motivation to recent neo-realist
theories of law is manifest. But American juristic real-
ists do not seem to have read him.
SOCIOLOGY OF LAW AND SOCIOLOGICAL JURISPRU-
DENCE, if closely related are not identical.'34 The one is a
theoretical, the other an applied science. Sociologists and
132. E. g. Gurvitch, Une philosophie intuitioniste du droit (1931) Archives de

philosophie du droit et de sociologie juridique, 404, 413; Sauer, Rechts und
Staatsphilosophie (1936) 116. See also Sorokin, Contemporary Sociological
Theories (1928).
133. As I have said elsewhere: "Perhaps I may be pardoned for repeating
that neither sociology of law nor philosophy of law can replace jurisprudence,
which, if it needs both, as a basis of critique and to correct its specialized
generalizations (if I may so put it), yet has a field to which neither is wholly
adequate, important as each is to the jurist who would be assured of a wise
knowledge of his subject." Pound, Preface to Gurvitch, Sociology of Law
(1947) p. xv. See Stone, Province and Function of Law (1946) 391-399; Paton,
Jurisprudence (2 ed. 1951) 20-21.
134. Timasheff tells us that Ward had almost no direct influence and that
the psychological approach was "resumed independently" by Petrazycki. An
Introduction to the Sociology of Law (1939) 47. Very likely Ward was not
read in Russia. But he directed sociology toward psychology in America
[ 344]
writers on sociology of law trained abroad quarrel with

American exponents of sociological jurisprudence on two
points. They object to our preoccupation with the prob-
lems of the legal order and of the judicial and adminis-
trative process and our disinclination to consider theories
apart from their applications. Secondly, they object to
our busying ourselves with the legal order in a politically
organized society instead of with the order implicit in
all groups and associations and relations. These modes
of thought to which they object are characteristic of the
Anglo-American lawyer, brought up in a professional
rather than an academic atmosphere and trained to think
in terms of the administration of justice in a politically
organized society of today.135 Looking at jurisprudence
and at sociology it is evident that the term "law" is used
in a number of meanings. The jurist is concerned with
three, the regime of adjusting relations and ordering
conduct through the force of a politically organized so-
ciety, the body of authoritative guides to decision and
patterns of conduct by which that regime is maintained,
and the judicial and administrative processes by which
those guides to determination are found and applied."'
He considers that the three are to be unified by the idea
and was read and discussed by Gumplowicz and by Barth in German. See
ante, note 53.
135. See Pound, The University and the Legal Profession (1940) 7 Ohio
State Univ. Law Journ. 4, 14-24.
136. See Pound, Preface to Gurvitch, Sociology of Law (1942) for the dif-
ference between juristic and sociological use of the term "law."
[ 345]
Jurisprudence
of social control, and that this is to be done by looking

outside of the immediate science of law and calling to our
aid a science of society.137 We are to study law as a high-
ly specialized social control in the modern state, in this
respect following Austin in thinking of matured or de-
veloped law as our province and of what went before that
or is on a lower level as simply affording us help in under-
standing our real subject. Sociological jurisprudence
presupposes a specialized form of social control, namely,
through the pressure of politically organized society, and
that legal institutions and doctrines and precepts are in
that sense instruments of social control, capable of being
improved with reference to their ends by conscious, in-
telligent effort. This does not exclude the ethical side
of the legal order or of the body of legal precepts nor of
the judicial process. Philosophy, ethics, politics, and ju-
risprudence are called on to help; but to help in what are
regarded as problems of jurisprudence. There is no at-
tempt to make the law lift itself by its own bootstraps.
Whatever philosophy may find as an ultimate measure of
values, jurisprudence has to find an immediate measure,
since men will not rest easily under a system of norms
claiming no higher authority than imposition by those
who wield the power of the political organization. This
practical measure is found (and long has been found in
fact, though not in conscious theory) in an idea of social
137. Pound, Social Control Through Law (1942) lect. I.

[ 346 ]
engineering, using the term "engineering" in the sense

in which it is used by industrial engineers." 8 It is found
in an idea of giving the most complete security and effect
to the whole scheme of human demands or expectations,
which have pressed or are pressing for recognition and
securing, with the least sacrifice of the scheme as a whole,
the least friction, and the least waste. This, in one way
or another, is a problem of all the social sciences. In so-
ciological jurisprudence we treat it as a special problem
of achieving this recognition and securing of the scheme
of human expectations by means of the legal order, by
means of the body of established norms or precepts, tech-
nique of developing and applying them and received
ideals in the light of which they are developed and ap-
plied, and by means of the judicial and administrative
processes. We treat it as a problem of jurisprudence.
And yet in its larger aspects it is not merely a problem
of that science. In other words, we study law, in all the
senses which jurists attach to that word, as a much spe-
cialized phase of what in a larger view is a science of
society.
§ 28. PROGRESS OF JURISPRUDENCE SINCE

THE PASSING OF THE NINETEENTH-CENTURY
SCHOOLS. Summing up the progress in jurisprudence
since Stammler's attack on the then dominant historical
138. See Pound, Interpretations of Legal History (1923) 152-165; id. The
Lawyer as a Social Engineer (1955) 3 Journ. of Public Law, 292.
[ 347]
Jurisprudence
school in 1888,.39 first of all one must recognize the ad-

vance in ideas as to the scope and purpose of the science.
In the nineteenth century jurists for the most part saw
only a body of legal precepts, thought of as rules in the
stricter sense of that term. They were systematizing
those rules, or tracing their historical development, or
deriving them from and criticizing them by an assumed
metaphysically derived fundamental. Today we recog-
nize the complexity of what had gone by the name of law,
and the first problem of the nineteenth-century jurist, the
nature of law, has ceased to be a simple question to be
approached from one standpoint exclusively. The science
of law has to do with a regime and with certain processes
as well as with a body of precepts, and more than precepts
enter into law even in the limited analytical sense. In
addition to the judicial process we now recognize that
we must take account of the administrative process, and
we shall soon have to carry further a study of the legis-
lative and juristic processes.
Next to the nature of law, nineteenth-century jurists
were troubled about the relation of law and morals. So-
cial philosophy, psychology, and sociology have enabled
us to make marked progress here also. Perhaps the sig-
nificant advance is unification by the idea of social con-
trol.
139. Ueber die Methode der geschichtlichen Rechtstheorie (1888) reprinted

in 1 Rechtsphilosophische Abhandlungen.
[ 348 ]
Again, they were concerned about the interpretation

of legal history, and out of that concern has grown an
attitude of wholesome skepticism as to the assumptions
of the analytical jurisprudence of the last century-
wholesome in its purpose and in what will probably be
its next effects, even if much exaggerated for a time.
Moreover, new problems have been attacked. The
measure of values, the criterion of recognizing newly as-
serted interests, and of delimiting and securing them has
taken first place in recent books, and much has been done
toward bringing out the difficulties involved and deter-
mining how far the demand for an established measure
outside of the law can be satisfied. Also philosophical
jurisprudence has begun to work upon the critique and
the restatement of the received ideals of legal systems
and thus to make a more fruitful use of philosophy.
Looking at the characteristics of the science of law
of today, in comparison with that of fifty years ago, we
may say:
(1) It has developed a functional attitude, asking
not merely what law is and how it has come to be but
what (in all its senses) it does, how it does it, and how
it may be made to do it better.
(2) Except for Kelsen's and Roguin's "pure theory
of law," it has given over its exclusiveness and seeks what
may be called team play with the other social sciences.
[ 349 ]
Jurisprudence
(3) It studies law in all its senses in relation to the

whole process of social control.
(4) It has become conscious of the role of individu-
alization in the judicial as well as in the administrative
process, and of the need of taking account of instead of
ignoring the element of personal judgment and intuition
derived from personal experience.
(5) Either as part of the science itself or in a close-
ly related one, distinguished more for methodological
than for substantial purposes, it takes up from different
standpoints the problem of values, of a criterion of meas-
uring or weighing interests or claims or expectations,
as one lying behind the whole process of recognizing, de-
limiting, and securing interests, of making or finding
and shaping precepts, and of interpreting and applying
them when made or found.'
§ 29. THE PROGRAM OF THE SOCIOLOGI-
CAL SCHOOL. Sociological jurists seek to enable and
to compel lawmaking, whether legislative or judicial or
administrative, and also the development, interpretation,
and application of legal precepts, to take more complete
and intelligent account of the social facts upon which law
must proceed and to which it is to be applied. 4' In dif-
140. Pound, Law and the Science of Law In Recent Theories (1934) 43 Yale
Law Journ. 525, 534.
141. See Holmes, The Path of the Law (1899) 10 Harvard Law Rev. 457,
467; Kantorowicz, Rechtswissenschaft und Soziologie (1911) 5, 7, 8; Vander
Eycken, MWthode positive de l'interpr~tation juridique (1907) 109 ff.
[ 350]
+(,121/,1(
Citation: 1 Roscoe Pound Jurisprudence 351 1959

Fri Oct 29 11:22:59 2010


ferent parts of the world they are insisting upon some

or all of eight points.
(1) Study of the actual social effects of legal insti-
tutions, of legal precepts, and of legal doctrines.
What Kantorowicz said a generation ago still holds true:
"I advise one . . . to read a section of the German Civil
Code in the following way: Let him ask himself with respect to
each statement . . . what harms would social life under-
go if instead of this statement the opposite were enacted. And
then let him turn to all text books, commentaries, monographs,
and reports of decisions and see how many questions of this sort
he will find answered and how many he will find even put.
For instance, we only know that the civil code governs five forms
of matrimonial property regime, but we have not the least sug-
gestion in what numerical relation and in what geographical
subdivisions the several forms occur now in social life." 142
Ehrlich, in his seminar for living law, was the pioneer in this
143
connection.
142. Rechtswissenschaft und Soziologie (1911) 8.

143. Grundlegung der Soziologie des Rechts (1913) chap. 21 (transl. by
Moll as Fundamental Principles of the Sociology of Law (1936) 486-506);
Die Erforschung des lebenden Rechts (1911) 35 Schmoller's Jahrbuch ffir
Gesetzgebung, 190; Das lebende Recht der Vilker von Bukowina (1913). See
Page, Professor Ehrlich's Czernowitz Seminar of Living Law (1914) Proceed-
ings of Fourteenth Annual Meeting of the Association of American Law
Schools, 46.
Reference should be made to the briefs of Mr. Justice Brandeis, while at
the bar, in Muller v. Oregon, 208 U.S. 412, 28 S.Ct. 324, 52 L.Ed. 551, 13 Ann.
Cas. 957 (1908) and Ritchie v. Wyman, 244 Ill. 509 (1910).
See also: Moore and Sussman, Legal and Institutional Methods Applied
to the Debiting of Direct Discounts (1931) 40 Yale Law Journ. 381, 555, 752,
928, 1054, 1219; Douglas, Vicarious Liability and Administration of Risk
(1929) 38 Yale Law Journ. 584, 720; Schoene and Watson, Workmen's Com-
pensation on Interstate Railways (1934) 47 Harvard Law Rev. 389; Fortas,
[ 351]
Jurisprudence
(2) Sociological study in preparation for lawmak-

ing.
The accepted scientific method in preparation for lawmaking
has been to study other legislation analytically. Comparative
legislation has been taken to be the best foundation for wise law-
making. Comparative legislation by comparison of legislative
texts is still advocated by leading authorities such as Balogh 144
and Galgano. 145 But it is not enough to compare the texts of the
laws and to consider the abstract justice of their content. It is
even more important to study their social operation and the ef-
fects which they produce in action. 46
(3) Study of the means of making legal precepts

effective in action.
This subject has been neglected in the past. The analytical
school was interested only in the logical consistency of the rule
Wage Assignments in Chicago (1933) 42 Yale Law Journ. 526; Hamilton,

In re The Small Debtor (1933) id. 473; Nehemkis, The Boston Poor Debtor
Court-A Study in Collection Procedure (1933) id. 561; Clark, Douglas and
Thomas, The Business Failures Project-A Problem in Methodology (1930) 39
Yale Law Journ. 1013; Douglas and Thomas, The Business Failures Project-
An Analysis of Methods of Investigation (1931) 40 id. 1034; Douglas, Some
Functional Aspects of Bankruptcy (1932) 41 id. 329; Marshall and May, The
Divorce Court, vol. I, Maryland, vol. II, Ohio (1932-1933).
144. Balogh (editor) Acta Academiae Universalis Jurisprudentiae Com-
parativae (1927-).
145. Galgano (editor) Annuario di diritto comparato e di studi legislativi
(1928-).
146. Kantorowicz, Rechtswissenschaft und Sociologie (1911) 9; Tanon,
L'ivolution du droit et la conscience sociale (3 ed. 1911) 196-198; Willcox,
The Need of Social Statistics as an Aid to the Courts (1913); Oliphant, The
Relation of Current Economic and Social Problems to the Restatement of
the Law (reprint from Acad.Pol.Sci.N.Y.1923); Douglas, Wage-Earner Bank-
ruptcies: State v. Federal Control (1933) 42 Yale Law Journ. 591; Williston,
Some Modern Tendencies in the Law (1929) 141-158.
[ 352 ]
with the content of other rules. It considered that the state must
give the rule effect by force. If it did not, the trouble was not
with the rule but with the state or its executive. The historical
school assumed that the rule had evolved spontaneously from the
life of the people and hence the working would take care of itself.
If it did not, that merely proved that experience had not been
rightly formulated. The philosophical school in the last century
considered that the abstract justice of the rule gave it efficacy.
Hence one need only ask how far its content was abstractly just.
If it was not, there was no matter if the rule did fail of effect.
Sociological jurists insist that we must look at law functionally.
We must inquire how it operates, since the life of law is in its
application and enforcement. It is imperative to have serious
scientific study of how to make our huge annual output of legis-
147
lation and of judicial lawmaking effective in action.
(4) Study of juridical method: psychological study

of the judicial, administrative, legislative and juristic
processes as well as philosophical study of the ideals.
This is one of the main items in the realist program. But
studies of how judges, lawmakers, and jurists actually develop
legal materials as grounds of decision, as the basis of statutes
and as the basis of doctrines, of what determines their starting
points, their choice of materials, and the direction of their rea-
147. Pound, The Need of a Sociological Jurisprudence (1907) 19 Green Bag,

605; id. Law in Books and Law in Action (1910) 44 American Law Rev. 12;
id. The Limits of Effective Legal Action (1917) 27 Internat.Journ. of Ethics,
150; id. The Administration of Justice in the Modern City (1913) 26 Har-
vard Law Rev. 302; Parry, The Law and the Poor (1914) 248-249; Smith,
Justice and the Poor (1919, 2 ed. 1921); Gurney-Champion, Justice and the
Poor in England (1926) chaps. 1-7; Maguire, The Lance of Justice (1928);
Schramm, Piedpoudre Courts, A Study of the Small-Claims Litigant in the
Pittsburgh District (1928).
1 Pound Jurisprudence-323 [ 353 1
Jurisprudence
soning from analogy, need to be made from more than one stand-
48
point.
(5) A sociological legal history; that is, study not

merely of how doctrines have evolved, considered solely
as legal materials, but study also of what social effects
the doctrines of the law have produced in the past, and
49
how they have produced them.
Legal history has dealt with precepts and doctrines in con-
nection with political rather than in connection with social his-
tory. Historical jurists in the nineteenth century commonly dis-
tinguished the external history of a legal system from its internal
history, meaning thereby a distinction between its institutions as
148. Cardozo, The Nature of the Judicial Process (1921); id. The Growth
of the Law (1924) lect. 3; Pound, The Theory of Judicial Decision (1923) 36
Harvard Law Rev. 641, 802, 940; Wigmore, Problems of Law (1920) 65-101;
Science of Legal Method, 9 Modern Legal Philosophy Series (1917) especially
Wurzel, Juridical Thinking, § 30, pp. 422-428; Morris, How Lawyers Think
(1937); Isaacs, How Lawyers Think (1923) 23 Columbia Law Rev. 555; Waite,
Caveat Emptor and the Judicial Process (1925) 25 Columbia Law Rev. 129,
131; 1 G~ny, M~thode d'interprdtation (2 ed. 1919) § 7; Les minthodes ju-
ridiques (lectures by a number of French jurists, 12 ]tudes dconomiques et
sociales, pub. Paris, V. Girard et E. Briard, 1911); Bozi, Die Weltanschauung
der Jurisprudenz (2 ed. 1911); Hellwig, Zur Psychologie der richterlichen
Urteilsfindung (1914); Ehrlich, Die juristische Logik (1918); Introduction
by Oliphant and Hewitt to Rueff, From the Physical to the Social Sciences
(transl. by Green, 1929); Moore and Sussman, The Lawyer's Law (1932) 41
Yale Law Journ. 566; Keyser, The Nature of the Doctrinal Function and
its Role in Rational Thought (1932) 41 Yale Law Journ. 713; Green, The
Duty Problem in Negligence Cases (1928) 28 Columbia Law Rev. 1014; Cook,
"Substance" and "Procedure" in the Conflict of Laws (1933) 42 Yale Law
Journ. 333-336, 355-358; id. Scientific Method and the Law (1927) 13 Am.
Bar Ass'n Journ. 303; Frank, Law and the Modern Mind (1930); Ross, The-
ore der Rechtsquellen (1929).
149. Brugeilles, Le droit et la sociologie (1910) 160; Kantorowicz, Rechts-
wissenschaft und Soziologie (1911) 33-34.
[ 354 ]
political institutions and its doctrines looked at from a historical

philosophical standpoint. Sociological jurists call for a legal
history which shall show us: (1) How or how far the law of the
past grew out of social, economic, and psychological conditions;
(2) how it accommodated itself to them; (3) how far we can
proceed today on the basis of the law of the past or in disregard of
it with well-grounded expectations of producing the results de-
sired. Savigny saw something of this but his followers were
precluded by their metaphysical conception of historical develop-
ment from carrying his idea further.
A good example may be seen in the eighth edition of Salvi-
oli's History of Italian Law. In his preface Professor Salvioli
writes that he has sought to keep his story of the law "in touch
with the social ground in which it was formed and so in touch
with Italian society in its economic, political, religious, and moral
life." Hence he continues, "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 . . . in an organic
and indivisible whole." 150
(6) Recognition of the importance of individualized

application of legal precepts-of reasonable and just so-
lution of individual cases.151 This has been sacrificed
150. Salvioli, Storia del diritto italiano (8 ed. 1921) preface. See Joilon
de Longrais, La conception anglaise de la saisine (1925) 141-148. See also
Wigmore's economic-historical interpretation of the English and American
law as to confessions. 1 Evidence, § 865.
151. Hollams, Jottings of an Old Solicitor (1906) 160-162; Pound, Enforce-
ment of Law (1908) 20 Green Bag, 401; id. The Administrative Application
of Legal Standards (1919) 44 Rep.Am.Bar Assn. 445; Gnaeus Flavius (Kan-
torowicz), Der Kampf um die Rechtswissenschaft (1931); Kantorowicz,
Rechtswissenschaft und Soziologie (1911) 11 ff.; Llewellyn, Some Realism
[ 355 ]
Jurisprudence
too often in the immediate past in the attempt to bring

about an impossible degree of certainty. What is called
for is study of system of individualization of applica-
tion." This involves study of the relation between the
judicial process and the administrative process."
(7) In the common-law countries, a ministry of jus-
tice.M
About Realism (1931) 44 Harvard Law Rev. 1237, 1240-1241; Prefaces by

Capitant and Lambert to Esp~ces choisies emprunt6es A ]a jurisprudence (2
ed. 1927) 1, 27; Llewellyn, Law and the Modern Mind: A Symposium, I
Legal Illusion (1931) 31 Columbia Law Rev. 82, 87-90.
152. See my introduction to Saleilles, The Individualization of Punishment

(transl. by Jastrow, 1911) xvii-xviii.
153. See my address, Preventive Justice and Social Work (1923) Proceed-
ings of the National Conference of Social Work, 151, 160-161.
154. 9 Bentham, Works (Bowring ed. 1843) 597-612; Ferri, Criminal So-
ciology (transl. in The Criminology Series ed. by Morrison, 1896) 153; 1 Nash,
Life of Lord Westbury (1888) 191; Snow, The Reform of Legal Administra-
tion (1892) 8 Law Quart.Rev. 129, 131-132; Pound, Juristic Problems of Na-
tional Progress (1917) 22 Am.Journ. of Sociology, 721; id. Anachronisms
in Law (1920) 3 Journ.Am.Judicature Soc. 142, 146; Report of Lord Haldane's
Committee on the Machinery of Government (1918); Cardozo, A Ministry of
Justice (1921) 35 Harvard Law Rev. 113, also in Cardozo, Law and Literature
(1931) 69; Pound, Criminal Justice in the American City, Criminal Justice in
Cleveland (1922) 605-606; Glueck, The Ministry of Justice and the Problem
of Crime (1926) 4 American Rev. 139; Reports of the Commission to Inves-
tigate Defects in the Law and its Administration, New York Legislative
Documents, nos. 70 (1924), 74 (1925); Mullins, In Quest of Justice (1931) 420-
428; Yntema, Legal Science and Reform (1934) 34 Columbia Law Rev. 207,
215-230; The Ministry of Justice and the Statute Law Commission (1858) 5
Law Magazine and Law Review (2 ser.) 352; Clark, Reform in Bankruptcy
Administration (1930) 43 Harvard Law Rev. 1189, 1215; Willoughby, Prin-
ciples of Judicial Administration (1929) 264-280; Laski, A Grammar of Pol-
itics (1925) 579-582; Pound, Judicial Councils and Judicial Statistics (1942)
17 Tennessee Law Rev. 153-167, 28 Am.Bar Ass'n Journ. 98-105; id. A Min-
istry of Justice (1942) 13 The Bar Bulletin of the City of Boston, 71-80; id.
[ 356 ]
In America, our so-called departments of justice are but of-

fices for legal advice to state officers, for representation of the
state in its civil litigation, and for advocacy in criminal causes-
chiefly in the courts of review. In the federal government, the
department of justice is more. There is a well organized prose-
cuting bureau. But nowhere is it adequately organized to study
the functioning of our legal institutions, the application and
enforcement of law, the cases in which and reasons for which it
fails to do justice, or to do complete justice, the new situations
which arise continually and the means of meeting them, what
legislation achieves its purpose and what not and why, and thus
to give expert and intelligent guidance to those who frame and
those who administer our laws. In the rural, agricultural socie-
ty of the past, the judiciary committees of the two houses of the
legislature could do efficiently so much of this as was needed.
Today, even if our crowded legislative sessions allowed the time,
no legislative committee is competent to do the highly specialized
work required. In consequence, commissions are provided from
time to time to study particular subjects. But their work is not
co-ordinated, there is no continuity in what they do, and the
whole process is wasteful, expensive, and ineffective. In practice
in the United States much of the preparation for legislation is
done by private foundations and voluntary associations. A large
part is done also by business and trade associations framing and
pressing measures in their own interest. The results are apt to
take the form of partial tinkering with subjects requiring com-
155
prehensive treatment or to be one-sided and partial.
A Ministry of Justice: A New Role for the Law School (1952) 38 Am.Bar
Assn.Journ. 637; Vanderbilt, The Idea of a Ministry of Justice (1955).
For critique see 1 Birkenhead, Points of View (1922) 92-130; Bacon, On
a Ministry of Justice (1935) 22 Virginia Law Rev. 175.
155. See Pound, The Formative Era of American Law (1938) 71-72; id.
Jurisprudence, in Gee (editor) Research in the Social Sciences (1929) 181, 201-
205. Also post, § 106.
[ 357]
Jurisprudence
(8) Finally, the end, toward which the foregoing

points are but some of the means, is to make effort more
effective in achieving the purposes of the legal order. 56
'
156. "The jurist must study the law teleologically; he must observe how the
elements of law turn out in their respective working; whether their opera-
tion leads to useful or to harmful consequences, to consequences which ac-
cord with culture or to those which oppose it; to consequences whereby val-
ues are appraised justly or unjustly." Kohler, Introduction to Rogge's Meth-
odologische Vorstudien zu einer Kritik des Rechts (1911) viii.
[ 358 ]
Part 2
THE END OF LAW
7. The End of Law as Developed in Legal Precepts and

Doctrines, §§ 30-36.
8. The End of Law as Developed in Juristic Thought,
§§ 37-46.
[ 359 1
C4 aptr 7
The End of Law as Developed
in Legal Precepts and Doctrines
§ 30. The End of Law: Theories of Justice.

§ 31. Primitive Law.
§ 32. The Strict Law.
§ 33. Equity and Natural Law.
§ 34. The Maturity of Law.
§ 35. The Socialization of Law.
§ 36. What of a Next Stage-A Law of the World?
[ 361]
Capter 7
in Legal Precepts and Doctrines
Section 30
HE END OF LAW: THEORIES OF JUS-

TICE.1 It has been seen that a body of phil-
osophical, political, economic, and ethical
ideas as to the end of law-as to the purpose
of social control and of the legal order as a form thereof-
and hence what legal precepts ought to be in view of this
end, is an element of the first importance in the work of
judges and jurists and lawmakers. The history and de-
I. Miller, The Data of Jurisprudence (1903) chap. 6; Salmond, Jurispru-

dence (1902) § 9; Pulszky, Theory of Law and Civil Society (1888) § 173; Bent-
ham, Theory of Legislation, Principles of the Civil Code (1864, new ed. 1931)
pt. 1, chaps. 1-7; Holland, Jurisprudence (13 ed. 1924) chap. 6; Paton, Juris-
prudence (2 ed. 1951) § 22.
Kant, Philosophy of Law (transl. by Hastie, 1887) 45-46 (§ C); Spencer, Jus-
tice (1891) chaps. 5, 6; Willoughby, Social Justice (1900) chap. 2; Sidgwick,
The Methods of Ethics (1874, 6 ed. 1901) chap. 5; Paulsen, Ethics (Thilly's
transl. 1899) chap. 9; Dewey and Tufts, Ethics (1908, rev. ed. 1938) chaps. 20-
24; Lotmar, Vom Rechte das mit uns geboren ist-Die Gerechtigkeit (1893);
Gareis, Vom Begriff Gerechtigkeit (1907); Demogue, Notions fondamentales
du droit privd (1911) 119-135; Picard, Le droit pur (1899) liv. ix (le but de
droit: la justice); Radbruch, Grundziige der Rechtsphilosophie (1914) 82-158
-in 3d ed. (1932) Rechtsphilosophie, §§ 7-9; Binder, Philosophie des Rechts
(1 ed. 1925) § 12; Vacca, I1 diritto sperimentale (1923) 163-189; Pound, So-
cial Justice and Legal Justice (1912) 75 Central Law Journ. 455; Duncan, The
End and Aim of Law (1935) 47 Juridical Review, 157.
[ 363 ]
The End of Law
velopment of this body of ideas is no less important for us

than the history and development of the precepts and doc-
trines which used to be thought of as making up the whole
of the law. Indeed, the history of ideas as to the end of
law is part of the very history of legal precepts and legal
doctrines. But there is another reason why we should
examine the history of these ideas. It used to be said
that law is the body of precepts in accordance with which
justice is administered by the authority of the state.
This presupposed that the purpose of law (in the sense
of the judicial process) is the administration of justice.
Thus at the outset of even an analytical investigation we
are met by the question, what is justice in the sense of
what we are trying to bring about through the legal
order.
This is not a question of what justice is when thought of as an
individual virtue, nor of what it is when thought of as a regime of
adjusting relations and ordering conduct. It is a question of what
it is that we seek to attain by means of the legal ordering of socie-
ty. What is the end which we are trying to reach by means of
the legal order and hence through judicial decision and juristic
discussion and legislation?
We may take up this question of the end of law, or of what

is justice, either historically or philosophically. We may in-
quire as to ideas of the end of law as they have developed in
legal precepts and legal doctrines. Or we may inquire about
these ideas as they have developed in juristic thought. In the
latter connection we are brought to inquire what ought to be con-
-ceived as the end of law, and we must ask, what do economics,
politics, sociology, and ethics point to as the purpose to which the
[ 364 ]
7. Legal Precepts And Doctrines
ordering of society is to be directed? As one pursues this last

inquiry he soon perceives that juristic theories of the end of
law and those which obtain in the other social sciences are not
always the same. Thus there was a significant divergence be-
tween the idea as to the end of law which had developed in actual
precepts and doctrines and obtained in juristic thought at the
end of the nineteenth century, on the one hand, and, on the other
hand, the idea of justice which had come then to obtain in
economics, politics, and ethics. Hence we have not merely to
ask, what is the legal idea of justice? It is of no less moment
to know how, and when, and why it differs or may differ from
the economic, or political, or ethical idea. To answer such
questions we must consider how and why the legal idea of jus-
tice came to be what it is.
In studying ideas as to the end of law we must note

that actual legal ideas and juristic ideals have acted each
upon the other. If ideals of what law ought to be have
done much in all ages to shape legal precepts as they were,
it is no less true that the actual legal situation for the
time being has had a large influence upon the ideals.2
We must consider the development of each in order to
understand the other. Approaching the subject histori-
cally, the first inquiry should be, what is the end of law
2. This appears especially in theories of natural (i. e. ideal) law. On the

one hand, there are ideals drawn from outside of the law to which it is
sought to make the law conform (natural natural law) and, on the other hand,
a drawing of the ideal from established institutions and precepts and doctrines
(positive natural law). The latter is an idealizing of the institutions, doc-
trines, and precepts of the time and place and making a universal ideal from
them. See Pound, The Revival of Natural Law (1942) 17 Notre Dame Lawyer,
287, 303-307.
[365]
The End of Law
as ideas on this subject have developed in connection with

the development of legal precepts and doctrines?3
In this inquiry it will be convenient to think of four stages
of legal development in systems which have come to maturity:
(1) The stage of primitive law, (2) the stage of the strict law,
(3) the stage of equity and natural law, and (4) the stage of
maturity of law. To these we must now add a fifth stage upon
which the law has entered definitely throughout the world.
Perhaps it need not be said that all such divisions into
periods or stages must be somewhat arbitrary. Lines drawn to
bring out one point would have to be laid out very differently if
we had our eye on a different point. Also a certain over-emphasis
is incident to any classification. Schematic arrangements in-
volve hard and fast lines which do not occur in nature. In fact,
all periods or stages overlap and shade into one another.
Vinogradoff distinguished six types of society and proposed
an ideological study of jurisprudence as related to these types.
The six types of law, as determined by types of society, are:
(1) Origins in totemic society, (2) tribal law, i. e. the law of
a kin-organized society, (3) civic law, i. e. a type of legal order
determined by "the social tie of the city state," (4) medieval law
in its combination as canon and feudal law, (5) "individualistic
jurisprudence," as he calls it, i. e. the law as determined by an
individualist organization of society, and (6) the beginnings of
"socialistic jurisprudence." 4 This is a sociological political inter-
pretation. It is a survey of social control as a whole from a
political standpoint. But when we come to study the legal order,
a specialized form of social control, we should arrange the ma-
3. Pound, The End of Law as Developed in Legal Rules and Doctrines

(1914) 27 Harvard Law Rev. 195.
4. 1 Vinogradoff, Outlines of Historical Jurisprudence (1920) 158.
[ 366 ]
terials with reference to the types of legal ordering and so as to

bring out their significant features as legal materials. Types of
political organization and types of law are not coincident. There
is likely to be a lag in legal adjustment to political development.
For example, the era of the city-state in antiquity is not from an
ideological standpoint 5 one of a city-state law. What Vinogra-
doff calls tribal law persisted long and much in that era, and
two other types of law developed before the idea of the city-
state had passed.
It should be added that the division into stages which I have
suggested is made primarily with reference to Roman law, the
modern Roman law, the codified law of Continental Europe and
its derivatives, and the common law of England and its deriv-
atives. It is not a classification of all social control. It begins
as near as may be at the point where there begins to be law in
the analytical sense. Also it is made with reference to the law,
its methods, scope, materials and ideals, and not with reference
to politics. For the law is made up chiefly of traditional ma-
terials, a traditional art, and traditional ideals, transmitted and
developed by teaching, which are continually but gradually re-
shaping to meet conditions of the time and place. The political
conditions of the time by no means give them character, although
they do exert a gradual influence in remaking them. But this
influence is often manifest in its results only after these con-
ditions have ceased and a still newer set of conditions have be-
gun to replace them.
§ 31. PRIMITIVE LAW' is not a wholly satis-

factory term for the stage of legal development for which
5. "The treatment is bound to be ideological and not chronological." Ibid.

6. Holmes, The Common Law (1881) lect. 1; Hartland, Primitive Law
(1924); Seagle, The Quest for Law (1941) 27-149; 2 Post, Grundriss der Eth-
nologischen Jurisprudenz (1895) bk. IV; Fehr, Hammurapi und das salische
[ 367 ]
The End of Law
I am using it. Originally I used the term "archaic law," '

and this was followed by Seagle, who uses "primitive
law" for a pre-legal stage.' In later editions of my Out-
lines I have used "primitive law" instead," meaning to
have the emphasis on "law" rather than on "primitive."
I have thought of "undifferentiated social control" or
"undifferentiated law," or "beginnings of law." But
perhaps "primitive law" may do, with a caveat that I do
not mean social control in primitive societies but a more
or less undifferentiated legal order (even if there is an
advanced moral or jural order) which is primitive rela-
tively to social control through systematic application of
the force of a politically organized society such as has
been known since the Roman law.
Recht (1910) 135-138; Hobhouse, Friede und Ordnung bei dem primitivsten
Volkern innerhalb der Gruppe, 5 Zeitschrift fir Vblkerpsychologie und Soziolo-
gie (1925-1933) 40; Hogbin, Law and Order in Polynesia, introduction by
Malinowski (1934); Llewellyn and Hoebel, The Cheyenne Way (1941).
1 Vinogradoff, Historical Jurisprudence (1920) 163-369.
Jenks, Law and Politics in the Middle Ages (1897) chap. 4; Maine, Ancient
Law (1861) chap. 10; 1 Strachan-Davidson, Problems of the Roman Criminal
Law (1912) chap. 3; Leist, Graeco-Italische Rechtsgeschichte (1884) §§ 28-53;
Amira, Grundriss des Germanischen Rechts (1897) chaps. 4, 6, (3 ed. 1913);
Bonner and Smith, The Administration of Justice from Homer to Aristotle (2
vols. 1930-1938).
7. The End of Law as Developed in Legal Rules and Doctrines (1914) 27

Harvard Law Rev. 195, 198.
8. The Quest for Law (1941) 59 ff.
9. Id. 27 ff.
10. Outlines of Lectures on Jurisprudence (3 ed. 1920) 40; id. (4 ed. 1928)
22; id. (5 ed. 1943) 40.
[ 368]
I shall not go back to the origins of social control.

Such things belong to sociology or anthropology and have
relatively a remote bearing on jurisprudence. But as
law, in the analytical sense, arises in the transition from
a kin-organized society to a politically organized society,
or in the transition from religious social control to politi-
cal social control, and hence its materials in the forma-
tive period are the materials of what Vinogradoff calls
tribal law or the materials of a religious ordering of so-
ciety, ideas and institutions of tribal society and of so-
ciety organized on a religious basis become legal ideas
and legal institutions. A good part of the earlier history
of a legal system is the story of how these ideas and in-
stitutions were made over to the exigencies of politically
organized society or even gradually eliminated.
By primitive law I mean the stage in which law in the

analytical sense is undifferentiated or little differentiated from
social control generally; a stage in which law in the analytical
sense is gradually emerging from an undifferentiated social
control by religion, ethical custom, and kin discipline. Even
after transition from a kin organized to a politically organized
society seems complete from a political standpoint, the differ-
entiation of law may be far from complete.
I must disclaim any attempt to generalize for all social

control prior to the strict law. I am dealing with the stage be-
fore the strict law in Roman and Germanic law and those sys-
tems of undifferentiated social control which throw light upon
them.
The End of Law
In the beginnings of a legal order the idea is simply

to keep the peace. At first the law attempted nothing
more affirmatively than to regulate and provide a sub-
stitute for revenge. There were three ways in which in-
jured persons, persons who had been wronged, might ob-
tain redress. One was by self help, that is, by the help
of oneself and of his kindred. This is the remedy of kin
organized society. Accordingly, reprisals, self help, and
the blood feud were the ordinary institutions for the re-
dress of injuries.1 ' Another mode of obtaining redress
was by the help of the gods or of their ministers. This is
the remedy of a religious organization of society.'
The weapons of a religious organization are sacrificial exe-
cution, expiation, and what might be called excommunication.
There seems to have been sacrificial execution in the beginnings
of Roman law.13 Expiation is taken over by the king or magis-
trate and becomes legal penal treatment. 14 Largely the help of
the gods means procuring exclusion of the wrongdoer from the
society of the pious unless he makes peace with the gods by re-
11. Dareste, Le droit des reprdsailles, Nouvelles 6tudes d'histoire du droit

(1902) 38; Leist, Altarisches Jus Gentium (1889) § 68; Von Maurer, Altnor-
dische Rechtsgeschichte (1907) pt. I; 1 Brunner, Deutsche Rechtsgeschichte
(2 ed. 1906) § 22; 1 Post, Grundriss der ethnologischen Jurisprudenz (1894) §§
58, 62; Fehr, Hammurapi und das salisches Recht (1910) chap. 5.
12. Maine, Early History of Institutions (1875) lect. 2. See also the pen-
ances in Hindu law, Maine, Early Law and Custom (new ed. 1891) 36-40;
Manu, chap. 11 (transl. by Miller, 25 Sacred Books of the East (1889) 430-
483). Compare the penitential system of the canon law-the Canones poeni-
tentiales, which customarily stand in editions of the Corpus Juris Canonici
next after the Decretum of Gratian.
13. 1 Strachan-Davidson, Problems of the Roman Criminal Law (1912) 1-3.
14. Maine, Early Law and Custom (new ed. 1891) 36-40.
[ 370 ]
pairing the wrong if it is expiable. The oldest monuments of

Roman law are leges sacratae, precepts sanctioned by the formula
sacer esto-be he devoted to the gods. 18
A third mode of obtaining redress is by the help of

the state, that is, of the king or of magistrates or officials.
This is the remedy of politically organized society.
Speaking generally, at first this help is extended to prevent
the wrongdoer from interfering with self redress by the injured
party. But with the development of political organization, public
authorities begin to take a more active part in order to prevent
a general disturbance of the peace of the community and to
keep self redress within bounds.
Thus in its beginnings law (in the lawyer's sense)

has for its end, and its sole end, to keep the peace. Other
tasks of social control are left to other agencies-religion
and kin discipline or the public opinion of one's kinsmen
or of his brethren in some primitive brotherhood. The
only interest secured by law is the social interest in the
general security in its lowest terms, namely, the interest
in peace and public order. Along with religion and mo-
rality it is a regulative agency by which men are re-
strained from violent disturbance of the general securi-
ty.- 6 It retains this character of a regulative agency and
15. Laws of Romulus, 13, 1 Bruns, Fontes Juris Romani Antiqui (7 ed.
1909) 7; Laws of Servius Tullius, 6, id. 14; XII Tables, VIII, 21, id. 33; 2
Bruns, Fontes, 34, 35--Festus S. v. sacer homo and sacratae leges.
16. "Religion, law, and morality cover the area of human action with rules
and sanctions." Stubbs, Lectures on the Study of Mediaeval and Modern His-
[ 371 ]
The End of Law
of a means of which the end is peaceable ordering, al-

though other ends become manifest as it develops. This
end is sought to be attained by a primitive legal order in
three ways: By regulating self redress and private war,
by satisfying, or endeavoring to satisfy, the desire of the
injured party for vengeance, and by affording some pure-
ly mechanical mode of trial which will obviate all dispute
as to the facts.
While aggression upon individuals affected the so-
cial interest in the general security, the aspect which ap-
pealed to men in the beginnings of a legal order was the
certainty that such aggression in a kin organized society
would lead to private war." Thus the first problem of
the legal order was to narrow the field of self help and
regulate self redress. Ultimately it could supersede pri-
vate self redress by peaceful remedies. But that achieve-
ment is a later development."8 As was said above, the
tory (1900) 336. Compare Salmond, First Principles of Jurisprudence (1893)

17-18.
17. Hence the Anglo-Saxon laws do not denounce the original aggression
but the denial of justice by the wrongdoer afterward. E. g. "That is, then, that
no man deny justice to another; if any one do so, let him make bot [i. e. com-
position] as it before is written." Laws of King Edward (Thorpe's transl.
1840) 4. See also Laws of Ine, 8; Laws of Athelstan, 3.
18. As to Roman law, see Dig. 4, 2, 13; 9, 2, 45, 4; 43, 16, 1, 27; Cod. 8,
4, 7. The history of this in Germanic law is well set forth in Jenks, Law and
Politics in the Middle Ages (1898) chap. 4. As to the common law, see 3
Blackstone, Commentaries (1768) 1-16. It is noteworthy that of the six cases
for self-help discussed by Blackstone, the third and the sixth are now obsolete
and the fifth is much restricted by legislation and in large part done away
with in many states.
[ 372]
first step was to protect self redress when used to obtain

satisfaction for injury to a recognized interest. In such
cases there was endeavor to prevent the wrongdoer and
his kindred from interfering with self redress by the
person injured or his kindred." Another step was to lim-
it reprisals and regulate the mode of making them and
to put limitations upon the prosecution of private war
and upon the blood feud.
In the oldest Roman law vengeance of a creditor upon a de-
faulting debtor was regulated by the rules as to manus iniectio
and provisions of the XII Tables, 20 and self redress by seizure of
property was regulated by prescribed procedure of pignoris
capio.2 ' The Anglo-Saxon laws contain many provisions against
proceeding by distress or other forms of self redress without
first demanding justice of the wrongdoer or obtaining leave of
the gemot, that is, the assembly of the freemen of the hundred
or of the shire.22 Such provisions are to be found generally in
the older codes or compilations of customary law.2 3 Limitations
19. E. g. "And if it then should happen that any kin be so strong or so

great, within land, or without land, whether XII hynde or twy-hynde, that
they refuse us our right and stand up in defense of a thief, that we all of us
ride thereto with the reeve within whose manung it may be." Judicia Civita-
tis Lundoniae, viii, 2 (Thorpe's transl.) I Thorpe, Ancient Laws and Institutes
of England (1840) 237.
20. XII Tables, iii, 1-6, 1 Bruns, Fontes Juris Romani Antiqui (7 ed. 1909)
20-21; Gaius, iv, §§ 21-25; Jolowicz, Historical Introduction to the Study of
Roman Law (2 ed. 1952) § 22.
21. Gaius, 4, 26-29.
22. E. g. "if any one take revenge before he demand justice, let him give
up what he has taken and pay, and make bot with thirty shillings." Laws of
Ine, 9 (Thorpe's transl. 1840). See also Cnut, 19.
23. E. g. "Whoever is going to contend about a freeman or a slave, shall not
lead him away before trial." Twelve Tables of Gortyna, § 1 (Roby's transl.
[ 373 ]
The End of Law
on prosecution of private war and of the blood feud are familiar

in Anglo-Saxon law,24 in Germanic law generally,2 5 in the early
27
Greek codes,26 and in the Welsh law.
The Germanic law was largely built around this institution
of the peace, this regulation of private war. It is well developed
in Anglo-Saxon law.28 The common law grew largely by extend-
ing the idea of the king's peace. The idea was that certain
places and certain persons were under the protection of the
(1886) 2 L.Q.Rev. 135). See also the limitations on distress in the Brehon law.
Maine, Early History of Institutions (1875) lect. II.
24. In Alfred's Laws, 42, it is provided that where one's adversary, that is,
one who has wronged him and will not do justice, is "home-sitting," one must
give htm notice and blockade him seven days, in order to starve him out, be-
fore making an assault on the house. See also Edmund's Laws, 7.
25. E. g. the decree of the Diet of the Empire at Niirnberg (1187) required
three days' notice "by a sure messenger" before one prosecuted a feud against
a wrongdoer. Dahn, Fehde-gang und Rechts-gang der Germanen (1877) Bau-
steine, 2 series, 76 ff. The Decree of the Truce of God of the Emperor Henry
IV (1085) ordains that there shall be peace from Thursday to the end of Sun-
day and also on holy days. On such days no feud could be prosecuted; all
feuds were suspended. Even a siege was to be suspended to the extent that
there could only be a blockade on those days. There is an English transla-
tion in Henderson, Historical Documents of the Middle Ages (1892) 208. See
also the limitations on the feud in the Salic Law, tit. 57.
26. "If any one is killed violently, reprisals by seizing men (r&cq
&vbpoXstp[aq) to be a right of his nearest relatives until justice is done for the
murder or the murderers are surrendered. But this right of reprisal to extend
to three men and no more." Law of Draco, quoted by Demosthenes, Against
Aristocrates, § 96.
27. See the regulations as to the persons who may prosecute the feud and
who shall be liable thereto in the Laws of Howel the Good, Wade-Evans, Welsh
Medieval Law (1909) 187. On the blood'feud generally, see Dareste, Le prix
du sang, Nouvelles dtudes d'histoire du droit (1902) 1-11; 1 Brunner, Deutsche
Rechtsgeschichte (2 ed. 1906) § 22.
28. Laws of Ethelbert, 2, 3, 5, 8, 13, 15, 17; Laws of Wihtraed, 2; Laws of
Ine, 6; Laws of Alfred, 5, 7, 15, 38, 40; Laws of Ethelred II, cap. 6, VI, cap.
13; Secular Dooms of Cnut, 83; Leges Edwardi Confessoris, 12 (a twelfth-
century view of the growth of the king's peace).
[8741
king, who was affronted if his peace was violated; and thus the
29
king's courts, i. e. the common-law courts, got jurisdiction.
A second means by which a primitive legal order

attains its end of keeping the peace is by satisfying or
endeavoring to satisfy the desire of the injured for
vengeance.
An injured person in certain cases is required to accept a
composition for his vengeance and is prevented from helping
himself. The next step is to enable him to compel payment of
the composition-to compel the wrongdoer to buy off his venge-
ance.30 The endeavor to satisfy the individual desire for venge-
ance is the first step toward a wider conception of the end of
the legal order. It is a first step toward recognition of an end
beyond mere keeping of the peace. It is a step toward thinking
of the peaceable ordering of men as but a means toward some
end, achievement of which involves the securing of peace and
order.
The third means by which a primitive legal order

attains its end of keeping the peace is by affording some
29. See 1 Pollock and Maitland, History of English Law (2 ed. 1898) 22-23;
2 id. 461-462; Plucknett, A Concise History of the Common Law (5 ed. 1956)
367.
30. Jolowicz, Historical Introduction to the Study of Roman Law (2 ed.
1952) 175-176; 2 Brunner, Deutsche Rechtsgeschichte (2 ed. 1928) § 137. There
is a good account of this process in Anglo-Saxon law in 2 Pollock and Maitland,
History of English Law (2 ed. 1898) 449. See also the rules of early law as
to injuries by members of the household, slaves, domestic animals, and even
inanimate things. Gaius, 4, 75-78; Law of Draco, quoted by Plutarch, Life
of Solon; Jolowicz, Historical Introduction to Roman Law (2 ed. 1952) 176-
178; Brunner, Forschungen zur Geschichte des deutschen und franz~sischen
Rechtes (1894) 512-523; 2 Pollock and Maitland, History of English Law (2
ed. 1898) 470-471.
[375]
The End of Law
purely mechanical mode of trial which will obviate dis-

putes. The purpose is to reach a peaceable solution, not
to determine the truth exactly by a rational process in
order to apply a remedy with precision.31
A rational mode of trial, a debate, would have been likely
to end in blows 32 and result in what the law was seeking to pre-
vent. It was necessary to resort to some absolutely mechanical
mode of trial which could give rise to no disputes and would not
be suspected of partiality. Thus, not to go outside of the his-
tory of the common law, we find in the beginnings trial by or-
deal, by compurgation, 33 by test oath, 34 by oaths of witnesses in
the very words of the issue, and by battle.3 Trial by charters,
i. e. by mere inspection of charters, was a mechanical mode of
31. "In these trials there are various conceptions: the notion of a magical
test . . . that of a call for the direct intervention of a divine justice
.; that of a convenient form or formula, sometimes having a real and
close relation to the probable truth of fact, and sometimes little or no rela-
tion to it, like a child's rigmarole in a game-good at all events for reaching
a practical result; that of regulating the natural resort of mankind to a fight;
that of simply abiding the appeal to chance. . . . But what we do not yet
find, or find only in its faint germs, is anything such as we know by the name
of a trial, any determination by a court which weighs this testimony or other
evidence in the scale of reason and decides a litigated question as it is decid-
ed now. That thing, so obvious and necessary, as we are apt to think it, was
not worked out for centuries." Thayer, Preliminary Treatise on Evidence
(1898) 9-10.
32. Kipling puts the primitive point of view in Kim's response to the Jat:
"A good stick is a good reason." Kim, chap. XI.
33. 1 Thorpe, Ancient Laws and Institutes of England (1840) 181-183.
34. Ibid. For a full account of these modes of trial see Bigelow, History of
Procedure in England (1880) chap. 9; Thayer, Preliminary Treatise on Evi-
dence (1898) chap. 1.
35. Glanvill, De legibus et consuetudinibus regni Angliae, bk. II, chaps. 1, 3,
5 (between 1187 and 1189).
[ 376]
trial which survived into the present century. 36 In its original

form trial by jury was of this type.37 The Greeks developed ra-
tional trial before an assembly or a tribunal representing an
assembly of the citizens. 38 Also they developed actions as means
to obtain a rational trial.39 But the thorough development of the
40
action at law as a means toward a rational trial is Roman.
Accordingly there are four general characteristics

of the beginnings of law.
(1) The measure of what an injured person may re-
cover is not the injury done him but the desire for venge-
ance awakened by the injury. The idea is not repara-
tion but composition.
For example, in Roman law, in case of injury to the person,
there was private recovery for iniuria (literally insult) not com-
pensation for the actual damage. 41 Again, in the laws of Ethel-
bert it was provided that if one bruise another in a part covered
by the clothes the bot or composition should be 20 scaetts; but if
one bruise another in a part not covered by the clothes the bot
should be 30 scaetts.4 It was not the seriousness of the bruise
that was considered. The legal precept went on the extent to
which the bruise would cause a desire for revenge and thus en-
36. On a plea of nul tiel record. 2 Puterbaugh, Common Law Pleading and
Practice (8 ed. by L. D. Puterbaugh, 1904) '511-512 (9 ed. id. 1917, 10 ed. by
Basil Jones, 1926).
37. Glanvill, bk. II, chap. 12.
38. 2 Vinogradoff, Historical Jurisprudence (1921) 143-147.
39. Id. 165-167, 191-196.
40. Jolowicz, Historical Introduction to the Study of Roman Law (2 ed.
1952) 180-187, 205-222.
41. Gains, 3, 220-224.
42. Laws of Ethelbert, 59, 60.
[ 377]
The End of Law
danger peace and order. In the same way, the Welsh law made
special provision for injuries leaving a "conspicuous scar."
The permanent loss of two joints of the thumb did not call for
so much by way of composition as a scar upon the face." In
Roman law in case of a furtum manifestum, i. e. where the thief
was caught in the act or on fresh pursuit with the stolen goods
originally there was a capital penalty, not in a public prosecu-
tion but as a matter of private vengeance. If the thief was
caught in the act at night, the owner of the property might kill
him. If caught in the daytime he was adjudged a bondman to
the person from whom he stole. In case of non-manifest theft
the owner could recover twofold value as a private penalty. In
case of manifest theft the praetor later gave an action for four-
fold value."4 The Salic law provides that if one plunders a Frank
the composition shall be 63 shillings. But if he plunders a
Roman, to whom self redress had been forbidden for many
45
generations, it shall be 35 shillings.
Again, in case of injuries by animals or slaves or children
the Roman law allowed "noxal surrender." 46 This goes back to
a condition in which one who stood between the injured party
and his vengeance must pay. The owner or parent must fight it
43. Wade-Evans, Welsh Medieval Law (1909) 190-191.

44. Gaius, 3, 183-192.
45. Salic Law, tit. xiv, § 1-3.
46. Gaius, 4, 75-78; XII Tables, viii, 6, 1, 1 Bruns, Fontes Juris Romani
Antiqui (7 ed. 1909) 30. As to Germanic law, see 2 Brunner, Deutsche Rechts-
geschichte (2 ed. 1928) § 127. There is a survival of noxal surrender in limita-
tion of liability in admiralty. "It may safely be affirmed that by the general
maritime law of Europe the liability of owners [of ships] for the wrongful
acts of the master is limited to the interest they have in the ship, and that
by abandoning the ship and freight to the creditor they discharge themselves
from all personal responsibility." Ware, J. in The Rebecca, 1 Ware (U.S.) 189,
198 (1831). "The owner's liability was coextensive with his interest in the ves-
sel and its freight, and ceased by his abandonment of these to the parties sus-
taining loss." Bradley, J. in Norwich Co. v. Wright, 13 Wall. 104, 117 (1871).
[ 378 ]
out, or buy off the vengeance or surrender the offending animal

or slave or child to the vengeance of the one injured.
(2) The modes of trial are not rational but me-

chanical."
(3) The scope of the law is very limited.48 There
are no principles or general ideas.
A body of primitive law is made up of: (a) Detailed regu-
lations as to self help.49 General principles and even general
rules belong to developed law. The beginnings of law have
only special rules. (b) Exact provisions for the special cases in
which one may have the active assistance of the king or of the
magistrate5 (c) A tariff of compositions which the injured
party must take for the wrongs specified, which also he can
compel the wrongdoer to pay. These go into minute detail and
are the staple of ancient codes. 51 In the laws of Ethelbert there
is detailed provision for every physical injury and every loss of
member. The thumb is valued at 20 shillings, the thumb nail at
3 shillings, the forefinger at 8, the middle finger at 4, the ring
47. See supra notes 35-37.

48. "Further he [Hippodamus of Miletus, fifth century B.C.] held that there
were but three kinds of laws, as the possible subjects of judicial procedure
were but three, namely, assault, trespass, and homicide." Aristotle, Politics,
ii, 8.
49. Supra notes 20-29.
50. Even at a relatively late period of legal development the law is stated
in the form of a system of actions and rules as to the cases in which they will
lie. The praetor's edict in Roman law and the Register of Writs in the com-
mon law illustrate this.
51. Code of Hammurabi, §§ 198, 201, 203-204, 207-209, 211-214, 216-225;
Twelve Tables of Gortyna, §§ 2-3; Twelve Tables, viii, 2; Salic Law, tits. 2,
3, 11, 13-15, 17, 19, 30, 34, 41, 55; Law of Ethelbert, 33-61; Laws of Howel the
Good, Wade-Evans, Welsh Medieval Law (1909) 190-191.
[ 379 ]
The End of Law
finger at 6, and the little finger at 3.52 The nearest approach to

a general proposition is, "for every nail a shilling." 53 There
is a certain analogy in the schedules in workmen's compensation
acts today. This sort of detail is a crude way of expediting dis-
position, reaching equality, and precluding controversy. (d)
Often another tariff of penalties which the king may exact in
order to buy off his vengeance for the affront to his dignity in-
volved in certain wrongs.M Reminiscences of the latter may be
seen in the "fine" (etymologically a compromise) called "ransom"
in the old books, 55 literally a making peace with the sovereign
by paying a sum of money.
(4) For many purposes the unit is not so much the

individual human being as a group of kindred.
Thus the Athenian law of reprisals allowed not more than
three of the nearest kinsmen of a murderer to be seized by the
nearest relatives of the murdered person and held till justice
was done or the murderer was surrendered.5 6 In the Germanic
law the feud was the right of the kin of the person injured and
the duty of the kinsmen of the wrongdoer. 57 In Anglo-Saxon law,
in regulating the feud, liability is imposed on the kinsmen.56
52. Laws of Ethelbert, 54.

53. Id. 55.
54. E. g. the provisions for wite in the Anglo-Saxon laws: Ethelbert, 2;
ne, 6; Alfred, 7, 38.
55. 4 Blackstone, Commentaries (1769) 380.
56. Demosthenes, Against Aristocrates, § 96.
57. 1 Brunner, Deutsche Rechtsgeschichte (2 ed. 1906) § 23; 1 Pollock and
Maitland, History of English Law (2 ed. 1898) 24; Salic Law, tit. 57.
58. "If breach of the peace be committed in a fortified town, let the in-
habitants of the town themselves go and get the murderers, living or dead, or
their nearest kinsmen, head for head." Laws of Ethelred, ii, 6. "And if any
one charge one in holy orders with the feud and say that he was a perpetrator
[380 ]
Also the older Roman law of inheritance is put in terms of

familia, sui heredes,agnati, and gentiles.59
Many of these characteristics of the beginnings of

law persist into the period in which there is a fully differ-
entiated legal order. For a long time the development of
law consists largely in getting away from them.
In the beginning, then, the idea of the end of law is
that the legal order exists to keep the peace. In the earli-
er part of this stage, law is the feeblest of the agencies of
social control. The stronger agencies are religion, made
effective by priests, and ethical custom, given effect by
the internal discipline of a kin group or of societies or
fraternities on the model of the kindred."' The Romans
recognized three bodies of precepts: Fas, that which ac-
corded with the will of the gods, ascertained through reli-
gion, enforced in theory through supernatural sanctions
and in practice through pontifical penalties; boni mores,
that which accorded with the settled custom of men, rest-
ing in tradition and sanctioned by social pressure or the
discipline of the kin group; and ius, law, ascertained by
agencies of the state and sanctioned by the force of the
state. Where a wrong was an impiety, an affront to the
or adviser of homicide, let him clear himself with his kinsmen, who must bear
the feud with him or make bot for it." Id. ix, 23. See also Alfred, § 27; Ed-
mund, i, 4.
59. XII Tables, V, 5, 6, 7a, 1 Bruns, Fontes Juris Romani Antiqui (7 ed. 1909)
23.
60. As to these see Webster, Primitive Secret Societies (2 ed. 1932);
Schurtz, Altersklassen und Minnerbiinde (1902).
[381]
The End of Law
gods, it endangered the community that harbored the

offender." Taken over by the legal order pontifical deal-
ing with such cases could become outlawry. " The legal
order, too, could put its sanctions behind boni mores."
Thus there is a gradual differentiation culminating in
societies in which the legal order is paramount and other
forms of social control must operate in subordination
4
thereto.1
§ 32. THE STRICT LAW." In a second stage

of development the legal order is definitely differentiated
from other modes of social control. When this stage has
been reached, the legal order operating according to law
(that is, according to authoritative guides to determina-
tion, developed and applied by an authoritative tech-
61. See e. g. the plague sent upon the whole host for the impiety of Aga-
memnon. Iliad, bk. I. "A new departure is full of danger, not only to the man
who takes it, but to those with whom he lives, for the gods are apt to be in-
discriminate in their anger." Jenks, Law and Politics in the Middle Ages
(1898) 57.
62. 2 Post, Ethnologische Jurisprudenz (1895) § 68; Strachan-Davidson,
Problems of the Roman Criminal Law (1912) chap. 1; Muirhead, Historical
Introduction to the Private Law of Rome (3 ed. 1916) 49-50.
63. 1 Jhering, Geist des r~mischen Rechts (7 & 8 ed. 1924) §§ 18, 18a ; Danz,
Der sacrale Schutz im rimischen Rechtsverkehr (1857) 47 ff. See also 1 Voigt,
Die Zwblf Tafeln (1883) § 15; Greenidge, Infamia; Its Place in Roman Public
and Private Law (1894) chaps. 3, 4.
64. Compare a regime of discipline of household, gens, collegium, guild,
with one of juvenile courts, judicial review of ouster from clubs, laws as to
professional discipline, and commissions regulating trades and professions.
65. 2 " Jhering, Geist des rimischen Rechts (6 & 7 ed. 1923) §§ 44-47d. I
take the name from the ius strictum, the Roman law of this stage of develop-
ment and the element in the later law representing it.
[ 382 ]
nique) has prevailed, or has gone a long way toward pre-

vailing over religion as the regulative agency of society.
The state has prevailed over the organized kindred as the
organ of social control. Usually, normally, men have
come to appeal only or ultimately to the state for redress
of wrongs. Hence the body of legal precepts determining
the cases in which men may appeal to the state for help
comes to define indirectly the interests which the legal
order recognizes and secures. In this stage the law is
characteristically a mass of procedural rules, a system
of remedies and of formal procedure to obtain remedies,
just as the prior stage is characteristically a tariff of
compositions.
Supremacy of political organization over kin organization
and religious organization of society precedes the strict law.
Perhaps the line marking definite achievement of this stage may
be drawn at the point where the legal tradition comes to be in
the hands of lawyers. A turning point in legal history is the sec-
ularization of law which took place at Rome at the opening of the
fourth century B.C. As a part of this process of secularization
the first plebian pontifex maximus began to give legal consulta-
tions in public so that students could listen and take notes. Also
the heads of patrician households who knew the law began to
give advice to all comers. Thus in place of a priestly caste with a
class monopoly we get the beginnings of a profession with a pro-
fessional monopoly.6 Again, in thirteenth-century England
there was a sort of secularization of law. The non-clerical ele-
ment came to predominate upon the bench and a profession of
66. See Jolowicz, Historical Introduction to the Study of Roman Law (2

ed. 1952) 85-95.
[383]
The End of Law
non-clerical lawyers grew up to practice before the non-clerical

judges. The tradition of decisions of the courts and of teaching
in the associations of the lawyers made the common law. Also
in Continental Europe in the twelfth century the rise of profes-
sionally trained lawyers through the development of the teaching
of Roman law in the universities is a turning point and begins a
period of strict law.
The Roman ius civile or ius strictum, surviving as an ele-
ment in the later law; the English common law from the thir-
teenth to the seventeenth century and the law element (as dis-
tinguished from equity) in the later law; and the authoritative
Corpus luris Civilis (taken to be legislation binding on Christen-
dom as an empire) with the authoritative interpretation of the
glossators and commentators, have common characteristics which
are of decisive significance in the law of today.
Two causes in this stage of legal development operate to pro-

duce a system of strict law: (1) Fear of arbitrary exercise of
the assistance of the state, and (2) survival of ideas of form and
literal application from the earlier period.
In this period the chief end which the legal order

seeks is certainty in the application of legal remedies.
The cases in which the state will interfere and the way
in which it will interfere are defined in an utterly hard
and fast manner. The law is made up of rules and the
rules are inflexible. The characteristics of this stage of
legal development seem to be five: (1) Formalism-the
law refuses to look beyond or behind the form; (2) rigid-
ity and immutability; (3) extreme insistence that every
one look out for himself-in that sense, extreme individu-
alism; (4) refusal to take account of the moral aspects
[8841
of situations or transactions-to use Ames's phrase, the

strict law is not immoral but unmoral; (5) rights and
duties are restricted to legal persons-all human beings
or natural persons are not legal persons and legal capac-
ity is restricted arbitrarily.
Each of these characteristics should be looked at in
some detail, since they affect the whole subsequent course
of legal development.
1. FORMALISM is also a characteristic of the begin-

nings of law. It belongs also to the Vorgeschichte of law.
But it persists into this stage and there are special fea-
tures of this stage which preserve and develop it. It is to
be found in procedure, in interpretation, and in the sub-
stantive law.
(a) In procedure an example is to be seen in the doctrine of
plus petitio. In Roman law if the plaintiff in his intentio (i.e.
statement of claim) claimed more than he proved to be entitled
to, he lost the whole.67 Compare with this the common-law ac-
tion of debt. Blackstone says: "In an action of debt plaintiff
must prove the whole debt he claims or recover nothing at all." 65
So it was also if he proved too much. If he claimed twenty shill-
ings and proved a debt of twenty-one, the judgment went against
him. 69 Aristotle tells us the same story of Greek procedure. If
67. Gains, 4, 53-60.

68. 3 Commentaries (1768) 155.
69. "For the debt is one single cause of action, fixed and determined; and
which, therefore, if the proof varies from the claim, cannot be looked upon as
the same contract whereof the performance is sued for." Ibid. See McQuil-
lin v. Cox, 1 H. B. 249 (1789).
1 Pound Jurisprudence-25 [385]
The End of Law
one sued for twenty minae and proved eighteen there had to be
judgment for the defendant20 Hippodamus of Miletus, a writer
on politics of the fifth century B.C., objected to this rule and pro-
posed that along with a finding for or against the plaintiff a third
course should be open to the triers, namely, to find for the plain-
tiff for a part of his claim. Aristotle pronounced such a proposi-
tion inadmissible because it would convert the trier into an arbi-
trator. He could see no mean between a rigid rule which re-
stricted the finding to a mere yes or no upon the letter of the
claim and a turning of the cause over to arbitration, that is, to
justice without law." The doctrine grew immediately from the
exigencies of mechanical modes of trial. Only a single clear cut
issue can be tried in that way. In Roman law there was the fur-
ther difficulty of the so-called procedural contract. The plain-
tiff's claim was merged in the contract to submit a defined issue.
72
If he did not prove that exact issue, all his claim was gone.
Perhaps the classical example of procedural formalism is

given by Gaius: "Hence when one who sued for vines cut down
named vines in his action, response was made that he lost his
suit because he should have named trees, since the law of the
Twelve Tables, upon which the action for vines cut down lay,
spoke generally of trees cut down." 13 The doctrine of theory of
the pleading, which only disappeared from American law a gen-
eration ago, is strictly comparable. Under that doctrine (a mod-
ern version of the common-law strict forms of actions) the tri-
bunal tried, not the plaintiff's case, but his theory of it, so that a
reversal of a judgment might be necessary in order that the same
70. Aristotle, Politics, ii, 8.

7 1. Ibid.
72. Wenger, Institutes of the Roman Law of Civil Procedure (transl. by
Fisk, 1940) 175-181.
73. Gaius, 4, 11.
[386
case be tried over on the same evidence and to attain the same
result, but on a formal statement of another theory.74
An example may be seen also in the insistence upon a single
issue in common-law pleading and the resulting technicalities,
such, for instance, as the rule in Crogate's Case. 75 The origin
of this doctrine is in the exigencies of mechanical trial. Ordeal
or compurgation or formal oath of witnesses in the very words
of the issue could try but one simple, definitely determined ques-
tion. After rational trial had developed, legal reasoning of the
strict law carried out the proposition into a series of formal,
technical procedural rules. As late as the second decade of the
present century, apologists for ultra-formal procedure conceived
that a bare passing upon the theory of his case presented by the
plaintiff was essential to administration of justice according to
law.7 6
74. Supervisors of Kewaunee v. Decker, 30 Wis. 624 (1872). This case was
at length overruled in Bruheim v. Stratton, 145 Wis. 271, 129 N.W. 1092 (1911).
75. 8 Co. 66 (1609). See the well known satire by Serjeant Hayes, Crogate's
Case: A Dialogue in the Shades on Special Pleading Reform (1854), and the
account by Sir Frederick Pollock, The Genius of the Common Law (1912) 27-
35.
76. "It is vital to a constitutional judiciary." 2 Hughes, Grounds and Rudi-
ments of Law (1908) 521. See also note in 8 Michigan Law Rev. (1910) 315.
In the same way many contend that to take verdicts upon points of law re-
served, with power to render judgment upon the verdict or upon the point re-
served, if conclusive, as the court shall finally determine the law upon the
point, "strikes a blow at trial by jury," since there may be a judgment with-
out the empty form of a general verdict. What is, in this connection, a purely
historical form is regarded as in some way a necessary safeguard, notwith-
standing the obvious delay and expense involved in the retrials which it en-
tails. See remarks of Mr. Gregory (1909) 34 Rep.Am.Bar Ass'n 74, also the de-
bate on the same proposition in 1908, 33 Rep.Am.Bar Ass'n 33-49, and in 1910, 35
id. 56-66, and in the New York State Bar Ass'n in 1912, 35 Rep.N.Y.State Bar
Ass'n 376-390. See also, "There was just one genuine archaic element that
persisted in the decadent forms of common-law pleading: the imperious de-
sire for an authoritative decision of some kind rather than the best or most
[387 ]
The End of Law
(b) Interpretation of legal precepts, of instruments, and of

transactions, is likewise formal in this period of strict law. Of
this, Jhering says: "At the beginning of the history of law one
might write this motto: In principio erat verbum." 7 Note, for
example, the excessive minuteness of detail in the old common-
law lease and release; 18 the minute definition of the proper words
to describe different parcels of land in Coke's commentary on
Littleton," the detailed enumeration of things we should now say
pass with the land which was put in a common-law deed of con-
veyance,80 and the express mention of appurtenances even to-
day; 81 the precise formulation of the different covenants for
title 82 (there being no implied warranties), where statutes now
cover the whole ground with the one word "warrant." 83 The
same spirit governed in interpretation of pleadings, witness "the
inability of the seventeenth-century common law to understand
complete solution. . . Down to the latest period of unreformed plead-

ing this was declared to be a fundamental principle, and we have no right to
doubt that, being repeated by so many sages of the law, the declaration was
made with perfect sincerity. Those learned persons might have known, if they
had ever considered the matter with their eyes open, that their ideal was in-
compatible with any practical handling of modern disputes arising out of mod-
ern affairs." Pollock, Genius of the Common Law (1912) 36.
77. 3 Geist des r~imischen Rechts (5 ed. 1906) § 49.
78. 2 Blackstone, Commentaries (1766) appendix.
79. Co.Lit. 4b-6a (1628).
80. "Together with all and singular houses, dove-houses, barns, buildings,
stables, yards, orchards, . . . meadows, pastures, feedings, commons,
woods, underwoods, ways, waters, watercourses, fishings, privileges, profits,
easements, commodities, advantages, emoluments, hereditaments and appur-
tenances whatsoever to the said capital messuage and farm belonging or ap-
pertaining." 2 Blackstone, Commentaries (1766) 523.
81. See Birdseye, Manual of Substantive Law Forms (1925) 364.
82. Ibid. 365.
83. E. g. Smith-Hurd, Illinois Annotated Stats. chap. 30, §&

[ 388 ]
or accept a pleading that did not exclude every misinterpretation

capable of occurring to intelligence fired with zeal to pervert." 84
This is brought out strikingly in the Roman strict law.
Speaking of the ius civile, Danz says: 85 "The oldest law of the
Romans recognized no will other than the expressed will, the dic-
tum. What is not spoken is not willed, and vice versa that only
is willed which is expressed. Therefore the word operates in le-
gal transactions entirely independent of the thought which it is
to express. It is not that the verba are efficacious so far as they
include the voluntas, but, for the law, their literal content is the
voluntas itself. The rule is not 'what thou hast willed and ex-
pressed shall be ius,' but only 'what thou hast expressed.' 88 It is
the very nature of the strictum ius that the will as such is with-
out meaning." 87
One may say the same of the beginnings of our own law.88
No doubt, as Ames has said, it is in large part the unmoral prim-
itive attitude of literalness applied to interpretation. 9 But for-
mal literalness in interpretation is closely connected with the se-
vere formalism of the strict law in every connection, and has its
roots also in the same necessity of an impersonal, mechanical,
speedy decision in a way not admitting of dispute which is be-
hind much of the rigid forms of the beginnings of legal proce-
84. Holmes, J. in Paraiso v. United States, 207 U.S. 368, 372, 28 S.Ct. 127,
129, 52 L.Ed. 249 (1907).
85. 1 Lehrbuch der Geschichte des rimischen Rechts (1871) § 142.
86. "Gum nexum faciet mancipiumque, uti lingua nuncupassit, ita ins esto."
XII Tab. vi, 1, 1 Bruns, Fontes Juris Romani Antiqui (7 ed. 1909) 24.
87. After the manner of nineteenth-century science of law this assumes
that the law must turn on will. But the mode of putting it does not affect
the soundness of what is said.
88. See Ames, Law and Morals (1908) 22 Harvard Law Rev. 97, 100-101;
Gray, Restraints on the Alienation of Property (2 ed. 1895) § 745.
89. Law and Morals (1908) 22 Harvard Law Rev. 97.
[ 389 ]
The End of Law
dure. Likewise it grows in part out of the sacred character of

forms and of texts, deviation from the letter of which is deemed
impious and dangerous. Something of the latter feeling, in a pe-
riod of absolute political theory, when a sort of sanctity is at-
tributed to legislation, as an emanation from the sovereign peo-
ple, has led many, who assumed that they were liberal, to de-
nounce courts for endeavoring to give reasonable interpretation
to statutes, assuming that any departure from the sacred literal
text was usurpation.
Formal literalness of the same sort may be seen in the old
common-law cases as to representations and warranty. If one
sold a thing representing it to be this or that, but not warrant-
ing expressly that it was as represented, originally he was not li-
able.90
(c) In substantive law formalism of the strict law is to be
seen in its legal transactions. The contracts of the strict law are
formal. That is, the form is more than evidence, it is the very
contract.9 1 In Roman law, nexum, sponsio, stipulatio, in English
law, the deed, are the contracts of the strict law. If one went
through the form of nexum or stipulatio for a loan, he must re-
pay though he never got the money, since it was the form, not
the borrowing and receipt of the money, that bound him. If one
had a bond and lost it, he could not recover. There was no obli-
gation apart from the formal instrument. Everything turned on
the form. Mistake in description or expression could not be cor-
rected. The parties were bound by the form. The only relief
came later in equity.
Both in the Roman strict law and in our own, conveyance
is highly formal. Coke says that "estates in land begin in cere-
90. Chandelor v. Lopus, Cro.Jac. 4 (1603).

91. Ames, Specialty Contracts and Equitable Defences (1895) 9 Harvard
Law Rev. 49.
[390 ]
mony and end in ceremony." 92 To be effective, common-law con-

veyances must conform to strict formal requirements. Likewise
in the Roman strict law a res mancipi could be transferred so as
to pass a legal title only by mancipatio (a formal, symbolical de-
livery of what we might call the seisin, accompanied a formal,
symbolical weighing out of the purchase money and assertion of
ownership in the presence of witnesses) 93 or cessio in iure (a
fictitious vindication of title in which the transferor confessed
judgment in the first stage of the proceeding) 94 or legacy per
uindicationem (a formal gift in a formal will).95
This formalism of the strict law leaves its mark on the legal
system in succeeding stages. In Roman law, until the fusion
completed by Justinian's legislation," we find always two sets of
institutions and two sets of precepts. There are civil acquisition
and natural acquisition, civil servitudes and praetorian servi-
tudes, civil obligations and natural obligations. In the same way,
in the Anglo-American legal system, there are two sets of insti-
tutions, legal and equitable, in every part of the private law. We
say of these that equity looks to the substance and not the form;
and the implication that the law, in the sense of the older ele-
ment, which grew up in the courts of common law, looks to the
form, is wholly in accord with the truth. In each case the civil
institution or precept, or the common-law institution or precept,
which is formal, represents the stage of the strict law; while the
natural or praetorian or equitable institution or precept, which
is substantial, represents the later stage of equity and natural
law.
92. Co. Lit. 214b (1628).
93. Gaius, 1, 119-122.

94. Gaius, 2, 24.
95. Gaius, 2, 193-194.
96. Cod. 7, 31.
r 391]
The End of Law
What are the reasons for this formalism of the

period of the strict law?
(1) Formalism is in part a result (or a manifesta-
tion) of certain features of the beginnings of thinking.
Aristotle feels bound to lay great stress upon many different
forms of verbal deception, apparently because in the beginnings
of logical disputation men were inclined to be serious about plays
upon words. In commenting on this, De Morgan says: "The
genius of uncultivated nations leads them to place undue force
in the verbal meaning of engagements and admissions, independ-
ently of the understanding with which they are made. Jacob
kept the blessing which he obtained by a trick, though it was in-
tended for Esau; Lycurgus seems to have fairly bound the Spar-
tans to follow his laws till he returned, though he only intimated
a short absence and made it eternal; the Hindu god who begged
for three steps of land in the shape of a dwarf and took earth,
sea, and sky in that of a giant, seems to have been held as claim-
ing no more than was granted." 91 Such things are in the very
spirit of the strict law.
Formalism in the strict law is connected also with the sym-
bolism of the beginnings of thinking. The forms of primitive law
are symbolic. Much of this persists into the strict law and is
preserved for reasons next to be considered.
(2) Forms prevented dispute.

The form was fixed. It was known or should be known to
all. Men's ideas might differ as to whether there was something
novel, called a substantial right contained in and behind the
form, and if so, what it was. The form allowed no scope for
97. DeMorgan, Formal Logic: or The Calculus of Inference, Necessary and

Probable (1847) 244.
[ 392]
such disputes, and in the beginnings of a legal order, as well as

in the pre-legal stage, a chief end is to avoid dispute. In any age,
or in any place where men are inclined on slight provocation to
take the law into their own hands, the legal order which hesi-
tates is lost.98
(3) The strict law arose and took form when there
were few records and records were possible only in excep-
tional cases. Most things had to be preserved in the
memory of witnesses or of magistrates. Hence it was
highly important to impress the memory of those who
were charged with preserving the details of what was
taking place.
In Cicero's time, the mode of establishing a lex (statute)
was by the testimony of three augurs who were present when it
was enacted; also the mode of establishing what had been done
at a meeting of the Senate was by the declaration of two Sena-
tors of consular rank.99 In Roman law, until the reform of pro-
cedure in the later empire, even judgments were pronounced
orally in the presence of the parties. 100 In English law, the court
rolls at first were only aids to memory. Apparently the justices
98. Hanifa (the oracle of Mohammedan law) gives as a reason for holding
certain sales void that they involve an uncertainty which "would occasion con-
tention between the parties." Hamilton's HedAya (Grady's ed.) 244. There is
a certain value in this in modern law "The advantage of formalism is that the
form is for a legal act what the stamp is for coin. It fixes its value and ef-
fect in an authoritative and easily recognizable manner. It is often difficult
to determine whether what is said amounts only to a willingness to treat about
a matter or is an absolute contract, and the adoption of a form removes this
difficulty." Brantly, Law of Contract (2 ed. 1912) 122.
99. Cicero, Ep. ad Att. iv. 17.
100. 2 Betbmann-Hollweg, Civilprozess des gemeinen Rechts (1865) 624.
[ 393 ]
The End of Law
of assize in the first half of the thirteenth century did not keep
rolls.10 '
Ceremonial was a stimulus to memory. Men could remem-
ber that a ceremony had taken place before them, especially one
which every one knew was the only way to produce legal results.
They might or might not remember that an informal transaction
had taken place in their presence; they might or might not re-
member its details. The details of formal transactions follow
fixed lines. If one knows the kind of ceremony, the details fill
themselves in with certainty. The details of informal transac-
tions, on the other hand, vary infinitely and there is no means of
knowing what they were save by remembering every detail. Aft-
er records came into use the ideas and tendencies belonging to a
period of no records had been established and formalism had a
long tradition behind it. 102
(4) What is most important, forms were a safeguard

against arbitrary action of the magistrate at a time when
there was no elaborate body of substantive legal precepts
to furnish patterns of decision.
Hence the great tenacity with which the common law has
held to the form is connected with the Germanic and the Anglo-
American jealousy of arbitrary magisterial action. In later pe-
riods of over-refinement, such as the eighteenth century, forms
may sometimes come into the law for their own sake. 0 3 But the
101. 2 Pollock and Maitland, History of English Law (1 ed. 1895) 667 and
n. 3. See Digby, History of the Law of Real Property (5 ed. 1897) 147.
102. "They [the forms] were often retained, more or less modified, simply
because they had been always associated with some particular transaction."
Muirhead, Historical Introduction to the Private Law of Rome (3 ed. 1916)
137-138.
103. As to the formal, dilatory, artificial procedure of the eighteenth cen-
tury, see Pound, Some Principles of Procedural Reform (1910) 4 Ill.Law Rev.
288, 491.
[ 394 ]
forms of the strict law served a practical purpose. Jhering says

of this: "Form is the sworn enemy of caprice, the twin sister of
liberty. . . . Fixed forms are the school of discipline and
order, and thereby of liberty itself. They are a bulwark against
external attacks, since they will only break, not bend, and where
a people has truly understood the service of freedom, it has also
instinctively discovered the value of form and has felt intuitively
that in its forms it did not possess and hold to something purely
external, but to the palladium of its liberty." 104 That is, until an
elaborate system of substantive precepts has been worked out,
forms are the means of keeping down the personal element in the
administration of justice.
This relation of procedural forms to liberty has been the

main argument of those who have resisted reform of procedure.
They have argued that elimination of formal procedure takes
away the safeguards against arbitrary judicial action. But rela-
tively few forms in modern law have been devised consciously
for such an end.
In modern law, forms are of two kinds, historical and pur-

poseful. By far the greater number of forms are historical.
They are simply survivals. Some have survived from the period
of formal law. In other cases, substantial precepts, devised for
purposes now forgotten, have survived their occasion in the shape
of formal requirements. Thus seal and consideration in the law
of contracts are survivals. 05 Each long ago ceased to serve the
104. 2 Geist des r~mischen Rechts (6 & 7 ed. 1923) § 45, 471-472. See Heus-
ler, Institutionen des deutschen Privatrechts (1885) § 12; 2 Pollock and Mait-
land (1 ed. 1885) 561. Also Bleckley, C. J. in Cochran v. State, 62 Ga. 731, 733
(1878).
105. Pollock, Contracts (12 ed. 1946) 6; Holmes, J. in Krell v. Codman, 154
Mass. 454, 28 N.E. 578, 14 L.R.A. 860 (1891), The reason in the case of con-
sideration is purely historical. The requirement arose from procedural diffi-
[ 395 ]
The End of Law
purpose for which it was devised and became a formal require-

ment only. A second class of forms has been devised in modern
times to serve substantial modern ends. Thus the Statute of
Frauds in effect imposes a modern form for modern reasons,
namely, to maintain the social interest in the security of acquisi-
tions and security of transactions. Forms still have an impor-
tant role where the law is seeking to protect those interests, e.g.
in requiring formal words of negotiability in bills and notes or
imposing forms as to execution and attesting of wills.
To understand the role of forms in the strict law, we must
bear in mind that the idea of substantial interests to be secured,
and of legal rights by which they are secured, comes late in legal
development. While the logical sequence is interest, legal right,
duty, remedy, the historical sequence is the reverse-remedy, du-
ty, legal right, interest. The strict law is a system of remedies.
When remedies were known but not legal rights, the only limits
of the remedy were formal. The rules which make up the tradi-
tional element of a legal system often grew up with reference to
quite different ends from those we now seek and before those we
now seek had been recognized. This is true especially of formal
procedural rules. Today, when interests and rights are defined
and remedies exist only for securing them within the defined lim-
its, there are better means of controlling judicial action than hard
and fast formal procedure. 106
culties which were forgotten for centuries till historians dug them up. Ames,
History of Assumpsit (1888) 2 Harvard Law Rev. 1, 53 377; id. Parol Con-
tracts Prior to Assumpsit (1894) 8 Harvard Law Rev. 252. If today we can
find a philosophical basis, consideration, as it has grown up historically, only
-conforms thereto in part. See also Pound, Introduction to the Philosophy of
Law (rev. ed. 1954) 158-159; Lord Wright, Ought the Doctrine of Considera-
tion to be Abolished from the Common Law (1936) 49 Harvard Law Rev. 1225.
106. See Pound, Procedure in Common Law (1916) Proc. Seventh Annual
Convention California Bar Ass'n 86, 103-107.
[ 396 ]
2. RIGIDITY AND IMMUTABILITY, the second char-

acteristic of the strict law, is due to the form of the law
in this period.
(a) A body of law may be regarded as sacred and
so as not subject to human change.
This idea belongs to primitive law. For example, what we
might call the prologue to the cvde of Hammurabi is a relief of
the sungod handing the code to the king. 10 7 So in Hindu law, the
prologue to the Laws of Manu represents that the sages applied
to Manu to tell them the sacred law, whereupon Manu directed
his son Bhrigu (to whom he had taught it) to recite it, and Bhri-
gu then dictated it in Manu's presence and by his direction.108
Also the prologue to the Senchus Mor, the great book of the
Brehon law, tells how the bards recited the law to St. Patrick and
he approved the parts which did not clash with the word of God
and concludes: "This is Patrick's law, and no human brehon of
the Gael is able to abrogate anything that is found in the Senchus
Mor." 109 Immutability of a body of religious-legal precepts may
persist after law is no longer accounted sacred.
(b) Often the strict law is legislative in form and

there is no ordinary agency of change available.
This was the case in the Roman strict law, which was taken
to rest on the Twelve Tables. Only a lex, the legislative action
of the Roman people, could make the strict law. Interpretation
alone was possible. Compare the Roman law as taught in the
107. See a photograph as frontispiece to Harper, The Code ofHammurabi,

King of Babylon (1904).
108. Laws of Manu, i. §§ 58, 60 ff. (transl. by Miller) 25 Sacred Books of
the East (1889) 19.
109. 1 Ancient Laws of Ireland (1865) 17-19.
[ 397 ]
The End of Law
universities in western Europe from the twelfth to the seven-

teenth century. In theory it was a body of legislation of the "em-
pire" and could only be interpreted. The dogma of separation
of powers produced a like attitude toward the traditional law
even in the fore part of the present century." 0
(c) Where the law is regarded as a declaration or

ascertainment of custom-an authoritative statement of
customary precepts-only a so-called "better ascertain-
ment" of custom can make any change. Thus a common
law or usus fori, in this stage, may be fixed and unyield-
ing.
Usus fori is a custom of judicial action, not a custom of pop-
ular action. But a dogmatic fiction that it is a custom of popular
action may give it rigidity. Thus, Fortescue lays down an ex-
treme doctrine of the continuity of the common law from the cus-
tom of pre-Roman Britain,"' and Blackstone admits it with some
qualification."x 2 Thus a traditional idea of an immutable body
of custom, to be changed only by legislation, was long generally
accepted.
Moreover, the same considerations that explain the formal-
ism of the strict law are behind its rigidity and immutability.
Conscious change seems to be at war with the very idea of law,
since there are as yet no fixed rules or settled principles to dic-
tate its course. The idea of formally superseding law by new
110. In the New York Constitutional Convention of 1915, a lawyer in New

York City presented a memorial asking for an amendment to prohibit judicial
development of the traditional law by analogy as being in contravention of the
separation of powers. Memorial of S. C. Clarke, Stenographic Record of N. Y.
Const. Cony. (1915) 412.
111. De Laudibus Legum Angliae (Chimes ed.) cap. 17.
112. 1 Commentaries (1765) 64.
[398]
law is repugnant in such a period, as implying that law is some-

thing that may be adopted or rejected at will. Rigidity is con-
nected with the formal character of the strict law because, as
11 3
Jhering puts it, forms will break but not bend.
3. the sense that every man is

INDIVIDUALISM in
expected to stand up for himself, to look out for himself,
to be primarily his own keeper, is a marked characteris-
tic of the strict law. The law will do but little for him.
He must not expect the state to look out for his interests.
If he goes into anything he must do so with his eyes open
and must abide the consequences.
Four examples of the extreme individualism of the strict law
will suffice. One is insistence upon full and exact performance
at all events of a duty undertaken in legal form, without allow-
ance for accident and without mercy for the defaulter. Illustra-
tions of this are the provisions of the Roman strict law as to nexi
and judgment debtors-cases where the formal words damnas
esto had been used or there had been a formal adjudication; 114
also the rule of the common law that recognized and enforced the
penalty or forfeiture incurred by the rising of a river through
which it was necessary for the debtor to pass in order to comply
with the condition of a penal bond or mortgage.1 15 A second ex-
113. 2 I Geist des rimischen Rechts (6 & 7 ed. 1923) 472.

114. XII Tables, iii, 1-6, 1 Bruns, Fontes Juris Romani Antiqui (7 ed. 1909)
20-21; Jolowicz, Historical Introduction to the Study of Roman Law (2 ed.
1952) 166-170, 220-222.
115. 1 Spence, History of the Equitable Jurisdiction of the Court of Chan-
cery (1846) 629. In a case in the fifteenth century in which counsel argued
that if a harsh rule as to liability without fault was applied the defendant
would be "undone and impoverished for all time," the court replied: "What is
that to us? It is better that he be wholly undone than that the law be changed
for him." Beaulieu v. Finglan, Y.B. 2 Hen. IV, 18, pl. 6 (1400).
[ 399 ]
The End of Law
ample is the harsh standard of duress, regarding only imminent

danger of life and limb. 16 Another is the objective standard of
fraud and mistake." 7 Still another may be seen in the strict com-
mon-law doctrines as to contributory negligence and assumption
of risk. In all these cases it is assumed that a man will be able
to look out for himself up to the standard of a typical "firm" man,
or prudent head of a household, or ordinary prudent man. This
is partly a legacy from a kin organized society which has to do
with heads of households or of kin groups and may assume that
every one else will be dependent on and looked after by some such
head of a kin group.
4. AN UNMORAL ATTITUDE, a refusal to take ac-

count of the moral aspects of situations or transactions
is especially characteristic of the strict law.
In the common law an example may be seen in the old hard
and fast rule of absolute liability irrespective of fault, where one
had set in motion the cause of damage. 118 Another example may
be seen in the ignoring of trusts. This, until the reign of Au-
gustus, was the attitude of the Roman law with respect to testa-
mentary trusts." 9 In the same way, the common law ignored
trusts 121until in the eighteenth century Lord Mansfield absorbed
a certain amount of equity into law. Also the strict law refused
to recognize mistake, fraud, or duress where one of its formal
116. Dig. 4, 2, 1-3, 5-7, 9 pr. and 1; Code, 2, 4, 13; 1 Blackstone, Commen-
taries (1765) 131.
117. Baily v. Merrell, 3 Bulstr. 94, 95 (1616); Dig. 22, 6, 9, 2.
118. See Wigmore, Responsibility for Tortious Acts: Its History (1894) 7
Harvard Law Rev. 315, 383, 441.
119. Institutes, 2, 23, 1.
120. Doctor and Student (Muchall ed. 1815) Dial. II, chap. 7.
[ 400 ]
transactions was in question. 121 In like manner, it refused to rec-

ognize payment where a formal contract was not formally re-
leased.12 2 It refused to permit set-offs.12 3 It insisted upon for-
mal legal transactions and refused to give legal effect to a mere
promise, however deliberate, and even though made as a business
transaction, without more.3 4 It insisted upon the independence
of the two sides of a bilateral contract.12 5
The extreme individualism and the unmoral attitude of the

strict law are closely connected. The unmoral attitude of the
strict law is also closely connected with its formal character, re-
garding nothing but conformity or want of conformity to the
strict letter. The idea behind the examples of extreme individu-
alism and the examples of unmoral attitude given above is that a
man of full age must take care of himself. There is no legal pa-
ternalism or maternalism to save him from himself. If he has
made a foolish bargain, he must perform his side like a man, for
he has but himself to blame. If he has acted, he has done so at
his own risk with a duty of keeping his eyes open and he must
abide the appointed consequences. If he puts himself in peril, he
121. Gaius, 4, 116, 117; Ames, Specialty Contracts and Equitable Defences
(1895) 9 Harvard Law Rev. 49.
122. Gains, 3, 168; Doctor and Student (Muchall ed. 1815) Dial. II, chap. 7.
Replication of a Serjaunte at the Lawes of England to Certaine Pointes Al-
leged by a Student of the said Lawes, Hargrave, Law Tracts (1787) 323, 324-
325; Finch, Law (1613) bk. 1, chap. 3, § 7.
123. Institutes, 4, 6, 30; 1 Spence, History of the Equitable Jurisdiction of

the Court of Chancery (1846) 651.
124. Paulus, Sententiae, ii, 14, § 1, Girard, Textes de droit romain (4 ed.
1913) 396 (6 ed. by Senn, 1937); Doctor and Student, Dial. II,chap. 24.
125. Langdell, Summary of the Law of Contracts (1880) §§ 140-143. Cf.
the original doctrine of the common law as to conditions in bilateral contracts:
"What is the reason that mutual promises shall bear an action without per-
formance? One's bargain is to be performed according as he makes it. If he
make a bargain and rely on another's covenant or promise to have what he
The End of Law
must not expect others to get him out.'2 In short he must "be a
good sport" and bear his losses smiling. Hence the stock argu-
ment of the strict law for the many harsh rules it enforces is that
the situation was produced by the party's own folly and he must
abide it.127 For example, the common law allowed interpleader
in detinue (unless in case of finding) only where there was priv-
ity, i.e. a joint bailment to one bailee.2 1 If in other cases an in-
nocent person found himself in danger of double liability or dou-
ble vexation, the common-law authorities said, in effect, he got
himself into the scrape, let him get himself out. 12 9 Unhappily,
equity followed the analogy of detinue.130 The point of view is
that of primitive society. For example, Tacitus tells us that the
ancient Germans played dice as a serious business, even staking
their freedom, and that, if one lost in such a case, he voluntarily
went into slavery and "patiently allowed himself to be bound and
sold." 131
5. NARROW RESTRICTION OF RIGHTS AND CAPACI-

TIES is another characteristic of the strict law. The unit
is a narrowly defined "legal person."
Only those who were fully competent to help themselves
could invoke the strict law. This was in part a survival from the
would have done to him, it is his own fault." Holt, C. J. in Thorp v. Thorp,
12 Mod. 455 (1701).
126. Ames, Law and Morals (1908) 22 Harvard Law Rev. 97, 111-113.
127. Britton (Nichols ed. 1901) bk. II, chap. 2, § 6 (86); Rich v. Aldred, 6
Mod. 216 (1704); 3 Reeves, History of English Law (2 ed. 1787) 453-454
(new American ed. 1880, pp. 602-603); 2 Story, Equity Jurisprudence (2 ed.
1839) § 803.
128. See 2 Story, Equity Jurisprudence (2 ed. 1839) §§ 800-805.
129. "The defendant made a bargain with the plaintiff and he must per-
form it." James v. Pritchard, 7 M. & W. 216 (1840).
130. Crawshay v. Thornton, 2 My. & Cr. 1 (1837).
131. Germania, 24.
[402]
prior stage. The law was needed only to keep the peace among
those who were able and more than willing to defend themselves
and redress their own wrongs. All others were governed or pro-
tected by domestic authority. In the strict law the breakdown of
kin organized society has not yet given us a society in which the
individual human being is the legal unit. The narrowly limited
legal person represents a transition.
In the Roman strict law the unit is a free man, a Roman cit-
izen, the head of a household. 132 Status or condition, position be-
fore the law, is one of the chief legal institutions of the strict
law. Capacity for rights is in legal persons only. Capacity for
legal transactions is restricted on all sides. The slave has no le- 34
gal personality. 133 The son, although of full age, is in potestas,1
the wife is in manus, 3 5 all women are in tutelage. 36 These are
civil incapacities, that is, they are purely legal incapacities, not
"natural" incapacities, based on reason, such as minority or in-
sanity. The disability of coverture at common law should be
compared.137 Likewise, in the Roman strict law the alien had no
standing. He was recognized only by the ius gentium, unless he
was a citizen of a city with which Rome had a treaty and so had
been admitted to a partial citizenship. 138 Also one who was nat-
urally alive might become legally non-existent in the eyes of the
strict law. In Roman law, he might undergo capitis deminutio
132. See a good concise statement in Muirhead, Historical Introduction to

the Private Law of Rome (3 ed. 1916) 115-116.
133. Digest, 4, 5, 3, 1.
134. Gains, 1, 55; Ulpian, Rules v, 1.
135. Gains, 1, 108-114.
136. Gaius, 1, 144-157.

138. See a good statement in Muirhead, Historical Introduction to the Pri-
vate Law of Rome (3 ed. 1916) 98-103.
[ 403]
The End of Law
maxima 139 (the greatest impairment, i.e. loss, of legal personal-

ity) and at common law he might undergo civil death, e.g. by ab-
140
juring the realm or entering a religious order.
It is noteworthy how popular the narrow, illiberal, ultra-

individualist, unmoral, strict law has been. Aristotle argued for
the doctrine of plus petitio.14 ' In the Mirror the author objects
142
to rational trial by jury and calls for the old mechanical trials.
Coke warred persistently against equity, and he tells us that ten
Parliaments between Richard II and Henry VI had petitioned
143
against it. Jefferson, in a letter to Tyler, urged that Virginia
adopt the common law as of the first year of George II so as to be
1
rid of "Mansfield's innovations."'" Equity was opposed by the
Commonwealth, Parliament coming very near to abolishing it.'4
It was persistently opposed in this country in Pennsylvania,
where the courts did not get equity jurisdiction as such till
1835,146 and in Massachusetts, where complete equity jurisdiction
,did not exist till 1877.147
139. Gaius, 1, 160; Ulpian, Rules xi, 11.

141. Politics, ii, 8.
142. Mirror of Justices, Selden Society ed. (1895) 157, 173; Robinson ed.
(1903) bk. V. chap. 1, § 19. See also ibid. §§ 126, 127, 135, 136.
143. Fourth Institute (1644) 82-83. See also Wilson, The History of Great
Britain, being the Life and Reign of King James the First (1653) 94-95;
5 Spedding, The Letters and the Life of Francis Bacon (1869) 245-254, 385-
398.
144. 1 Tyler, The Letters and Times of the Tylers (1884-1896) 35.
145. Parkes, History of the Court of Chancery (1828) chap. 8.
146. Loyd, Early Courts of Pennsylvania (1910) 162-163, 193-195, 196-197,
209-210.
147. See a full account in 1 Pomeroy, Equity Jurisprudence (4 ed. 1918-
1919) §§ 311-321.
[404 ]
The reason is that forms are believed to protect against ar-

bitrary magisterial action. But rules defining substantive rights,
and technique of decision, and training of magistrates in a rea-
soned system of principles are better means of precluding arbi-
trary action in the maturity of law.
Modern admirers of the formalism and extreme individual-

ism and unmoral attitude of the strict law speak of these things
with enthusiasm as being agencies of molding strong and self-
reliant character. 148 It would be more true to say that they are
in the spirit of primitive society and hence were congenial to pio-
neer and frontier America in the last century. These features of
the strict law did not arise to subserve any end of molding char-
acter. At best they could subserve such an end but little. On
the other hand, they defeat social interests of general security
and general morals and individual interests of personality and
substance which the law ought to maintain.
Comparing the strict law with the prior stage of

legal development, the beginnings of law:
(1) The end of primitive law is to keep the peace. It
considers the situation after injury has been done. The
end of the strict law is security. Hence it considers the
situation before injury as well as after injury. The
strict law has advanced from the idea of keeping the
peace to the more general idea of security.
148. Dillon, Laws and Jurisprudence of England and America (1894) 157;
Cooley, Constitutional Limitations (8 ed. 1927) 73; Bryce, The Influence of
National Character and Historical Environment on the Development of the
Common Law (1907) 31 Rep.Am.Bar Ass'n 444; Mercer, The Relationship
of Law and National spirit (1878) 2 Rep.Am.Bar Ass'n 143; Calkins, The
Sufficiency of the Common Law (1906) 3 Proc.Neb.State Bar Ass'n 59.
[ 405 ]
The End of Law
(2) The resource employed by primitive law is com-

position. The strict law has advanced to the idea of legal
remedies.
(3) The contribution of primitive law to the legal
order is the idea of a peaceable ordering of the communi-
ty. The contributions of the strict law are the ideas of
certainty and uniformity in this ordering and of rule
and form as the means thereto.
§ 33. EQUITY AND NATURAL LAW.1 A stage of
liberalization, which may be called the stage of equity
and natural law,' succeeds the strict law. In Roman law,
this stage is represented by the period from the develop-
ment of praetorian law to the monarchy (Diocletian and
Constantine) -especially the classical period from Au-
gustus to the end of the first quarter of the third century.
In English law it is represented by the rise of the Court
I. I Voigt, Das jus naturale, aequum et bonum und jus gentium der
RImer (1856) 321-323; Pound, A Comparison of Ideals of Law (1933) 47 Har-
vard Law Rev. 1, 12-14.
Holland, Jurisprudence (13 ed. 1924) 31-40; Markby, Elements of Law (6
ed. 1905) §§ 116-124; Miller, Data of Jurisprudence (1903) 381-387, 391-407;
Salmond, Jurisprudence (1902) § 13; Korkunov, General Theory of Law
(transl. by Hastings, 1909) § 17; Pulszky, Theory of Law and Civil Society
(1888) § 220; Goadby, Introduction to the Study of Law (2 ed. 1914) 127-134;
Siegel, Deutsche Rechtsgeschichte (1886) § 53; Maine, Ancient Law (1906)
chaps. 2, 3; Buckland, Equity in Roman Law (1911); Maitland, Equity (2
ed. 1936) lects. 1, 2; I Erdmann, History of Philosophy (transl. by Hough,
1910) 190; Zeller, Stoics, Epicureans and Sceptics (transl. by Reichel, 1870)
287-290 (new and rev. ed. 1880); Holdsworth, Blackstone's Treatment of
Equity (1929) 43 Harvard Law Rev. 1.
2. The name is taken from Maine, Ancient Law (1861) chap. .3.
[ 406]
of Chancery and the development of equity, and by the

rise and absorption of the law merchant-roughly, the
seventeenth and eighteenth centuries. In the law of Con-
tinental Europe it is represented by the period of the
law-of-nature school, that is, again, the seventeenth and
eighteenth centuries. The watchword of the strict law
was certainty. The watchword of this stage is morals
or some phrase of ethical import, such as good conscience,
aequum et bonum, or natural law. The strict law insists
on uniformity. Equity and natural law insist on good
morals. The strict law insists on form, equity and natu-
ral law on justice in the ethical sense; the strict law in-
sists on remedies, equity and natural law on duties; the
strict law insists on rule, equity and natural law on rea-
son. The capital ideas of the stage of equity and natural
law are: (1) The identification of law with morals, (2)
the conception of duty and attempt to make moral duties
into legal duties, and (3) reliance upon reason rather
than upon arbitrary rule to keep down caprice and elim-
inate or minimize the personal element in the adminis-
tration of justice.
(1) THE IDENTIFICATION OF THE LEGAL WITH THE MORAL,
the identification of law with morals, is brought out in the defini-
tions of law by jurists in this stage,3 by the attempt of Roman
3. Dig. 1, 1, 1, pr. (Celsus, end of first or beginning of second century A.D.)

quoted by Ulpian (third century A.D.); Paul in Digest, 1, 1, 11; R. Suarez,
Repetitiones (1558) 272-273; Grotius, De Iure Belli ac Pacis (1625) i, 1, 9, § 1;
1 Rutherforth, Institutes of Natural Law (1754) 1, § 1; 1 Blackstone, Com-
mentaries (1765) 44.
[ 407 ]
The End of Law
jurists and later of the modern Roman law to make gratitude a

legal duty, 4 and to make over sales, 5 and by the pronouncement
of English chancellors that "every law is or ought to be accord-
ing to the law of God," and consequent refusal to recognize the
common-law power of an executor to dispose of assets of the es-
tate as his own.6 Likewise the chancellors made over contracts 7
and conjured up trusts 8 according to their ideas of what good
morals required in the particular case. Maitland says of the
origin of trusts: "Perhaps we may suppose a scandalous case;
and intervention by the chancellor without much reflection, urged
by a shock to public morality . . .. It is scandalous dishon-
esty if the feoffees disregard the trust." 9 In the same spirit Con-
tinental jurists of the law-of-nature school "deviated from the
positive law in particular points according to their own discre-
tion, sometimes even going so far as to deny the validity of a
positive provision because in their opinion it was contrary to the
law of nature." 10 Again, in the same spirit, in the classical writ-
ings on international law, which belong to the period of the law-
of-nature school, what ought to be is regularly assumed to be the
test of what is; "what is and what [the jurist] thinks ought to
4. Institutes, 2, 7, 2; Code, 8, 55(56) 1 and 10; 3 Planiol, Traitd 6ldmen-

taire de droit civil (11 ed. 1932) § 2638.
5. Code, 4, 44, 2; Pothier, Obligations (transl. by Evans, 1806) §§ 33-34;
1 Story, Equity Jurisprudence (2 ed. 1839) §§ 247-248.
6. Y.B. 4 Hen. vii, 5. See also Lord Ellesmere in Earl of Oxford's Case,
I Ch.Rep. 1 (1615) 1 White & Tudor Leading Cases in Equity (9 ed. 1928) 615,
617.
7. Drewe v. Hanson, 6 Ves. 675, 678 (1802).
8. "The officious kindness of the Court of Chancery in interposing trusts
where in many cases the father of the family never meant to create trusts."
James, L.J. in Lambe v. Eames, L.R. 6 Ch.App. 597, 599 (1871).
9. Maitland, Equity (2 ed. 1936) 30.
I0. Grueber, Introduction to Sohm, Institutes of Roman Law (transl. by
Ledlie, I ed. 1892) xxv.
[408]
be law, theory, and fact, law and so-called rules of nature and of
right, are mixed up in a way at once confusing and mislead-
ing." 11
(2) THE CONCEPTION OF DUTY, as a legal conception, goes

back historically to the Stoic idea of T6 Kc0ijKOV, the negation
of natural impulse, the course of conduct which accords with na-
ture, i.e. with abstract ideal perfection shown by right reason. 12
Following the Roman jurists who gave a juristic development to
Stoic ethical ideas, morals were expounded as a system of laws,
and it was conceived that obedience to these laws was the duty of
man as a moral agent.13 There was a filling out of this idea with
reference to the formula in an action bonae fidei, in which the
iudex was directed to condemn the defendant to (i.e. as we should
say render judgment against him for) whatever, in view of the
transaction or the state of facts set up, he ought in good faith to
give to or do for the plaintiff.1 4 This is the historical legal start-
ing point of our conception of legal duty. 15
II. Lord Russell, International Law and Arbitration (1896) 19 Rep.Am.

Bar Ass'n 253, 268.
12. Cicero translates T6 KaefjKOV as oficium, duty. It is the theme of De
officiis.
13. 1 Erdmann, History of Philosophy (transl. by Hough, 1910) 190; Zeller,
Stoics, Epicureans and Sceptics (transl. by Reichel, 1870) 265, 287 (new & rev.
ed. 1880).
14. Gaius, 4, 47, 61-63, 114.
15. Accordingly the classical Roman jurists insist upon "natural obliga-
tions" where one has relied on the good faith of another (Dig. 50, 17, 84, 1) al-
though there is incapacity to contract according to the strict law (Dig. 12,
6, 13, pr.; 12, 6, 38, 2; 12, 6, 64), or the transaction fails of or has lost effi-
cacy according to the strict law through some purely legal rule (Dig. 12, 6,
40, pr.; 4, 5, 2, 2; 46, 1, 8, 3). The idea of duty plays a chief part in Eng-
lish equity. Similarly the moral obligation resting upon a "reasonable crea-
ture" is a stock notion of the seventeenth and eighteenth-century jurist. See
e. g. Burlamaqui, Principes du droit naturel (1791) pt. I, chap. 5, § 10.
[409]
The End of Law
(3) RELIANCE UPON REASON RATHER THAN UPON STRICT

RULE is a conspicuous feature of legal thinking in the classical
period of Roman law from Augustus to the third century. Thus
Gaius says of the rule as to legacies upon impossible or illegal
suspensive conditions that "a suitable reason . . . can
scarcely be given." 1 Again, he says: "But there is scarcely any
reason of weight to account for women of full age being under
tutelage." 17 Here he is bringing the rules and institutions of the
strict law to the test of reason. The classical Roman law also re-
lied on reason as a measure of judicial action. In place of the
rigid condemnatio (direction in the formula as to what judgment
was to be rendered) in an action of the strict law, the actions of
the classical period call for a condemnation in terms of what the
defendant ought in good faith to give or do; or they provide for
a condemnation unless the defendant, in the discretion of the
judge, restores something specifically, or in such amount as to the
judge seems right and just.18 In the same way, in the period of
natural law in the modern Roman law, the seventeenth and eight-
eenth centuries, jurists brought the precepts and categories of
the Roman law and the medieval interpretations and categories
to the test of reason. 19 Also, as a part of the identification of law
with morals, they conceived that the judge should find the just
solution through reason.20 Likewise in English equity the chan-
cellor subjected common-law precepts to the test of reason and
in this period the measure of his action was a reasoned exercise
16. Gaius, 3, 98.

17. Id. 1, 190.
18. Id. 4, 47, 114; Jolowicz, Historical Introduction to the Study of Ro-
man Law (2 ed. 1952) 216-218.
19. 1 Pothier, Obligations (transl. by Evans, 1806) 3.
20. Thus, in general, in contrast with the nineteenth century, they think
of the judicial process as administrative. 2 Pufendorf, De Jure Naturae et
Gentium (1672) cap. 30, § 6; 2 Rutherforth, Institutes of Natural Law (2 ed.
1779) 51.
[410 ]
of discretion in order to ascertain what equity and good con-

21
science prescribed.
Four enduring ideas of the first magnitude come

into the law in this period.
1. The first is that LEGAL PERSONALITY SHOULD
EXTEND TO ALL HUMAN BEINGS; that the moral unit
should be the legal unit, not a kin group, as in the begin-
nings of law, and not an arbitrarily defined legal person,
as in the strict law." In this period equity and natural
law insist not only upon the widest extension of rights,
but upon a like extension of capacity for legal transac-
tions. Hence there is insistence on throwing over all in-
capacities for which a "natural" reason, as distinguished
from a historical explanation, cannot be given, and on
making capacity for legal transactions coincident with
normal will.
A good example may be seen in Roman law in the way in
which equity treated the perpetual tutelage of women. An ex-
ample in the common law may be seen in the separate estate of
24
married women in equity and the equity to a settlement.
21. Lord Ellesmere in Earl of Oxford's Case, 1 Ch.Rep. 1, 1 White & Tudor,
Leading Cases in Equity (9 ed. 1928) 615, 617.
22. Institutes, 2, 2, 2; Dig. 1, 5, 4, 1; id. 50, 17, 32; id. 38, 10, 4, 2; Gaius,
1, 158.
23. Institutes of Justinian, 1, 3, 2; 1, 8, 1 and 2; Dig. 1, 5, 17 (transl. by
Monro, 1904-1909); Salkowski, Institutes of Roman Law (transl. by Whit-
field, 1886) 160, 162, 248-253, 280-285; Gaius, 1, 144-145; Grotius (1625) bk.
ii, chap. 5, §§ 1-7; Maine, International Law (Am. ed. 1888) 126-127.
24. The classical account of these is in Maine, Early History of Institu..
tions (1875) lect. 11.
[ 411]
The End of Law
2. A second is that the LAW SHOULD LOOK TO

THE SUBSTANCE AND NOT THE FORM, to the spirit
and not solely to the letter. 5 This is a result of measur-
ing things by reason rather than by rigid or arbitrary
rule.
Examples of the changes wrought in law by this idea are le-
gion. In Roman law, for example, one may point to restitutio in
case of capitis deminutio (impairment of legal personality) ; 26
dominium in bonis (equitable title) in case of traditio of a res
mancipi in a legal transaction but without formal conveyance; 27
equitable freedom in case of informal manumission by letter or
before witnesses; 28 bonorum possessio secundum tabulas (equi-
table succession) where a will was produced attested by seven
witnesses, although there was a defect in the formal ceremony
per aes et libram.9 In Anglo-American law examples are: The
equitable doctrines as to mortgages, treating them as securities,
whatever form they take; 3 0 the equitable doctrines as to penal
bonds, treating them as security for the debt or the damages; 31
the doctrine that in equity the security follows the debt without
formal assignment; 32 reformation and rescission in case of mis-
take, the formal instrument being reformed to express the sub-
25. 1 Voigt, Das jus naturale, aequum et bonum, und ins gentium der
Rbmer (1856) 321-323; Phelps, Juridical Equity (1894) §§ 194-204.
26. Gains, 1, 158; Dig. 4, 5, 2, pr. and 1-2.
27. Gaius, 2, 40-41.
28. Gaius, 1, 17; Institutes, 1, 5, 1-3.
29. Gaius, 2, 101-104, 115-117, 119.
30. Howard v. Harris, 1 Vern. 190 (1683); Babcock v. Wyman, 19 How.
(60 U.S.) 289, 15 L.Ed. 644 (1859).
31. Peachy v. Duke of Somerset, 1 Strange 447 (1721); 1 Pomeroy, Equity
Jurisprudence (4 ed. 1918-1919) §§ 381, 433.
32. Carpenter v. Longan, 16 Wall. (83 U.S.) 271, 275, 21 L.Ed. 313 (1872).
[ 412 ]
stantial transaction 33 or the formal transaction rescinded where,

34
because of mistake, there is none in substance.
The coming in of this idea is perhaps the most revolutionary

change in legal history. But only the systems which, having
achieved a strict law, went through this change and came to
measure things by reason, instead of solely by rule and formula,
have become laws of the world.
3. A third idea is GOOD FAITH, the idea that jus-

tice demands one should not disappoint well founded ex-
pectations which he has created; the idea that it is not
so important that rules should be certain as that men's
conduct should be certain.
In law this idea flowed partly from the insistence upon rea-
son and the substance of things, but chiefly from the identifica-
tion of law with morals. For stability is a prime characteristic
of moral conduct. In general, we know today what moral con-
duct will be tomorrow. The unprincipled may or may not keep
promises, may or may not pay debts, may or may not be constant
in business or political or family relations. The term "trust-
worthy" or "reliable", which we apply to one whose conduct is
moral, speaks for itself. We say his word is as good as his bond.
We have confidence in the stability of his mode of life.35 In the
stage of equity and natural law there is an endeavor to make
moral duties of good faith into legal duties, and it largely suc-
ceeds.
33. Hunt v. Rousmaniere, 1 Pet. (26 U.S.) 1, 7 L.Ed. 27 (1828).

34. Hickman v. Berens, [1895] 2 Ch. 638, 646.
35. Justinian's Institutes put honeste uiuere first among the fundamen-
tal precepts of the law. Inst. 1, 1, 3. See 1 Savigny, System des heutigen
rmischen Rechts (1840) § 59, 407-410.
[413]
The End of Law
In Roman law, through the words "whatever in good faith,"

inserted in the formula, except for formal contracts, where the
action was stricti iuris, the obligation of contract came to be one
of doing whatever good faith required of one in such a transac-
tion. 36 Accordingly, in contrast to the formal transaction of loan
of money in the strict law, in which the rule was, in the words
of the XII Tables, "as he declared orally so be the law," 3 in the
transactions of good faith, even where the promise was certain,
the obligation that resulted was not precisely defined in its de-
tails. The parties were bound to perform what could be required
fairly and reasonably under the circumstances of the case, and
certain duties were imposed upon them by the very nature of the
38
transaction, whether expressly undertaken or not.
In English law, equity insisted rigorously upon the utmost

good faith and disinterestedness in the conduct of trustees. It
then extended the requirement to all fiduciary relations and un-
dertook to enforce specifically the duties of good faith which it
39
held to be involved in such relations.
In the same spirit the canon law insisted upon performance
of bare agreements although they were not valid as contracts by
the Roman law.40 Also in the modern Roman law the seventeenth
and eighteenth century jurists, by means of the idea of natural
law were able definitely to throw over the Roman categories of
36. See Cicero, De officils, iii, 17 § 70.

37. XII Tab. vi, 1, 1 Bruns, Fontes Juris Romani Antiqui (7 ed. 1909) 25.
38. Sohm, Institutionen des rimischen Rechts (12 ed. 1905) § 76. See
Ames, Law and Morals (1908) 22 Harvard Law Rev. 97, 106. Compare the
holding of some American courts in case of unreasonable but not fraudulent
refusal of certificate by an architect under a building contract. Crouch v.
Gutmann, 134 N.Y. 45 (1892).
39. See Maitland, Equity (2 ed. 1936) 80-83.
40. Sext, i. 18 (de pactis).
[ 414 ]
contract, and to hold all engagements or undertakings, entered

into with the intention of creating an obligation, to be valid. 41
4. A fourth idea of this stage is that ONE PER-

SON SHOULD NOT BE ENRICHED UNJUSTLY AT THE EX-
PENSE OF ANOTHER.
Partly this is a phase of looking at the substance rather than
at the form, an idea that one should not profit by the form if the
substance fails. But chiefly it is a moral idea, an idea that jus-
tice involves an equivalency, 42 so that it is dishonest to take and
hold something for nothing unless by way of an intended gift.
The principle that one should not be enriched unjustly at anoth-
er's expense is behind nearly the whole law of restitution or what
we used to call quasi contract, and, in our law, behind construc-
tive trusts and the doctrines of equity as to preventing merger
and as to subrogation. Characteristically the nineteenth-century
books rested prevention of merger upon intention, i.e. an equita-
ble carrying out of the will. But the intention here is a dogmatic
fiction. It is presumed from the circumstance that otherwise
there would be an unjust enrichment. 43 In Roman law it is be-
hind the innominate contracts. 44 In our law it is behind the doc-
trine of conditions implied in law and the corresponding doctrine
41. Grotius, bk. iii, chap. 11, §§ 3-4; Pufendorff, Law of Nature and
Nations (Kennet's transl. 1729) bk. iii, chap. 4; Burlamaqui, Principes du
droit naturel (1791) pt. 1, chap. 7; Pothier, Obligations (1806) pt. 1, chap. 1,
§ 1; 7 Strykius, Opera (1745) xxii, 4, 24. The latter says: "Ideo Dens ligetur
pacto et diabolus, et princeps."
42. Something of the same idea is behind our maxim "equality is equity"
and the doctrine that equity will not aid a "volunteer," i. e. one who gives
or has given no equivalent for what he seeks. Jefferys v. Jefferys, Cr. &
Ph. 138 (1841); Fursaker v. Robinson, Prec.Ch. 475 (1717).
43. See the discussion in 2 Pomeroy, Equity Jurisprudence (4 ed. 1918-
1919) § 788.
44. Dig. 2, 14, 7, 2; 19, 5, 2 and 3.
[ 415]
The End of Law
of required assurance of counter performance, or so-called mutu-

45
ality of performance, in equity.
On the other hand, the attempt to make law coin-
cide with morals leads to two difficulties. (1) It leads to
an attempt to enforce over-high ethical standards and
to make legal duties out of moral duties which are not
sufficiently tangible to be made effective by the machin-
ery of the legal order.
An example may be seen in the impossible standard of dis-
interestedness which equity imposed upon trustees till legislation
intervened in England and the courts relaxed the rules in the
United States.46 Maitland says that the reason for the legislation
was that courts of equity had "screwed up the standard of rea-
sonableness to what many men would regard as an unreasonable
height." 47 Another example may be seen in the attempt in Ro-
man and especially in the modern Roman law to make gratitude
48
into a legal duty.
This tendency gradually remedies itself.

(2) A more serious difficulty is that the attempt
to identify law and morals gives too wide a scope to judi-
45. On this idea, as a legal principle, see Ames, Law and Morals (1908)
22 Harvard Law Rev. 97, 106; 2 Windscheid, Lehrbuch des Pandekten-
rechts (9 ed. 1906) §§ 421-423; 2 Planiol, Traitd 6limentaire de droit civil
(11 ed. 1932) § 812.
46. English Judicial Trustees Act [1896].
47. Equity (2 ed. 1936) 99.
48. In Justinian's law, all gifts were revocable for ingratitude of the
donee (Inst. 2, 7, 2) unless the donee had rescued the donor from highwaymen
or public enemies. Code, 8, 56, 1 and 10. See 3 Planiol, Trait6 l6mentaire de
droit civil (11 ed. 1932) §§ 2637-2638; Pollack, Der Schenkungswiderruf (1886)
96; 1 Endemann, Lehrbuch des birgerlichen Rechts (9 ed. 1902) 1036.
[ 416 ]
cial discretion since whereas legal rules are of general

and absolute application, moral precepts must be applied
with reference to circumstances and individuals. Hence
at first in this stage the administration of justice is too
personal and therefore too uncertain.49
This overwide magisterial discretion is corrected in two
ways. One is by a gradual fixing of rules and consequent stiffen-
ing of the legal system. Some moral principles, in their acquired
character of legal principles, are carried out to logical conse-
quences beyond what is practicable or expedient, so that a select-
ing and restricting process becomes necessary, and at length
principles are lost in a mass of rules derived from them. Exam-
ples are the tendency of the older chancellors to make over bar-
gains and testamentary gifts which has given us rules as to spe-
cific performance with compensation ; 50 the old doctrine of equi-
ty as to precatory trusts, which gave rise to a set of arbitrary
distinctions 51 and finally disappeared; 52 and the doctrine of
49. See e. g. the well known saying of Selden: "Equity in law is the same
that the spirit is in religion, what everyone pleases to make it. Sometimes
they go according to conscience, sometimes according to law, sometimes ac-
cording to the will of the court. Equity is a roguish thing; for the law we
have a measure, know what to trust to; equity is according to the conscience
of him that is chancellor, and as that is larger or narrower, so is equity.
'Tis all one as if they should make his foot the standard. For if the measure
we call a chancellor's foot, what an uncertain measure this would be. One
chancellor has a long foot, another a short foot, another an indifferent foot;
'tis the same thing in the chancellor's conscience." Table Talk, tit. Equity.
50. Drewe v. Hanson, 6 Ves.Jr. 675, 678 (1802); Lord Thurlow, in Wil-
liams v. Thompson and Gregson v. Riddle, Newland, Contracts (1821) 238, 239.
51. 1 Perry, Trusts (7 ed. 1929) §§ 112-119.

52. Lambe v. Eames, 6 Ch.App. 597 (1871). Sir Frederick Pollock speaks
of "the ingenuity of our equity judges in supplying provisions which testators
and settlers have omitted to express," (1908) 24 Law Quart.Rev. 117.
The End of Law
laesio enormis,5 3 which as Story says began by "laying down the

broadest rule of equity and morals," then came to be applied as a
legal rule, and then was turned by legislators, who were "struck
with the unlimited nature of the proposition," into a hard and
fast mathematical formula. 54 The other correcting agency is de-
velopment of moral propositions as mere abstractions and thus
depriving them of their purely moral character. In our law,
equity is full of examples of this mechanical treatment of what
were once moral principles. It will be enough to cite the rules as
to clogging the equity of redemption, which go back to a moral
principle that forbids the taking of "unconscientious advantage
of a debtor's necessities." 55
In this way transition takes place to the next stage, which
may be called the maturity of law.
Note how the relation of law to morals has been con-
ceived in the stages of legal development considered up
to this point: In the formative stage of the legal order
law is not well differentiated from religion and morals;
the strict law is rigid and unmoral-there is a sharp
differentiation; in equity and natural law, the law is
liberal and flexible, and law and morals are identified
or confused.
It has been more usual to indicate the course of development
outlined above by recognizing four stages: (1) The stage of
53. Code, 4, 44, 2 and 9.

54. 1 Equity Jurisprudence (2 ed. 1839) § 247.
55. "The rules of equity may be evaded but must not be infringed." Lord
Bramwell in Marquis of Northampton v. Salt, [1892] A.C. 1. Here the court
was conscious of applying a technical rule which it had no intention of car-
rying a whit beyond its letter. It looked at the form, not the intention of
the parties.
[418]
custom, coinciding with or resting on morality; (2) the stage

of codified or crystallized custom which after a time is out-
stripped by morality; (3) the stage of infusion of morality in
which in consequence the law becomes too fluid, and (4) by way
of reaction, the stage of true legislation, another period of fixed
law.51 Such an outline, though true in its larger features, is
based too exclusively upon Roman legal history. The term "cus-
tom" is open to objection as inviting confusion between custom-
ary modes of decision, or customary modes of advising litigants
or expounding law to tribunals, and customary modes of popular
action. 57 Also it is only in Roman law that we may speak of the
stage of strict law as one of codified or crystallized custom. In
fact, much of the Roman ius civile was developed juristically,
with no more than a theoretical basis in the Twelve Tables, just
as our strict common law was developed judicially. It is doubt-
ful, too, whether the maturity of law is so much an era of true
legislation as one of insistence upon law (in the sense of a body
of authoritative guides to determination), that is, upon rule and
upon certainty, in comparison with the preceding stage, in which
the insistence is on morals. But in any view, the lines between
the second and third and the third and fourth stages are suffi-
ciently clear, and they have been recognized in one way or anoth-
er by all who have written upon historical jurisprudence. A
stage of hard and fast rule is followed by one of wide discretion
in which moral ideas, developed outside of the law, supplant or
make over a large part of the legal system. In time, the doc-
trines, which have been brought into the law in this infusion of
morality and morals, became thoroughly legalized. As we put it
in Anglo-American law, a system of equity is worked out. But
by the time this system has been completely achieved, the doc-
trines of equity have lost any distinctively equitable character.
56. See Amos, Science of Law (2 ed. 1874) chap. 3, following Sir Henry
Maine.
57. Gray, Nature and Sources of the Law (1 ed. 1909) §§ 627-628.
[419 ]
The End of Law
Many examples of what happens when equity is absorbed in-

to law may be seen in our system. A conspicuous example of ac-
quisition of a legal shell by an equitable doctrine may be seen in
equitable estoppel as applied at law. In the nineteenth century,
we came to regard precedent as at least of equal weight with the
equities of a particular case on a question of estoppel. 58 Another
example may be seen in the case of statutory equitable relief in
patent cases, as the doctrine was for a long time in the lower
federal courts.59 Again, compare the wooden fashion in which
the action for money had and received ("a bill in equity at
law") 60 has come to be handled. Its equitable origin and nature
is often forgotten. Recovery of money paid by mistake is treated
as if it were an arbitrary, hard and fast, legal doctrine.6 1 An-
other example may be seen in certain decisions as to the locus
poenitentiae of a trustee and the effect thereof on limitation of
actions by the beneficiary. It is settled that a trustee who has
conveyed the trust res in breach of trust may repent and bring a
suit in equity to get it back. This is a highly equitable rule, not
inconsistent with the right of the beneficiary to follow the trust
fund where the transferee took with notice. Being an equitable
rule, one would think it should be applied equitably. But it has
been held that because the trustee might have repented and might
have maintained such an action at any time during the period
fixed by the statute of limitations, and as the trustee's suit was
barred at the expiration of that period, therefore the beneficiary
could not maintain a suit thereafter. The beneficiary was barred
by what barred the trustee. Thus a doctrine meant to do justice
to the trustee becomes a rule whereby infant beneficiaries are
58. See the discussion of estoppel in pais and equitable estoppel in 2 Her-
man, Estoppel and Res Judicata (1886) §§ 730-736.
59. See note, "Patents, Monopoly, Right to Equitable Aid" (1907) 19 Green
Bag, 381; Bakewell, The Protection of Unused Patents (1907) id. 406.
60. See Lord Mansfield in Moses v. Macferlan, 2 Burr. 1005, 1012 (1760).
61. E.g.Bayliss v. Bishop of London, [1913] 1 Ch. 127.
[420 ]
barred of their right to follow trust funds by the nonrepentance

of the person who has defrauded them.62 Still another example
may be seen in judicial treatment of the preemptive right of
stockholders.6 3 But the most striking example is the giving up
of equity jurisdiction to relieve against accident by limiting it to
relief against penalties and forfeitures strictly defined.64 Thus
one of the oldest heads of equity jurisdiction is confined to a type
of case which had become an important head in itself, and the
principle of relief passes out of the law.
In other words, there comes in time to be a stiffening

of the legal system and we get a fourth stage which I
have called the maturity of law.
Comparing the stage of equity and natural law with
the preceding stages:
Primitive law The strict law Equity and natural law
End Public peace Security Ethical conduct

conformity to good morals
Means Composition Legal remedy Enforcement of duties
Permanent Peaceable ordering Certainty and Good faith and moral

contribu- of society uniformity, conduct, attained by
tions reached by rule reason
and form
62. Willson v. Louisville Trust Co., 102 Ky. 522, 44 S.W. 121 (1898).
63. Morawetz, The Preemptive Right of Shareholders (1928) 42 Harvard

Law Rev. 186.
64. Graf v. Hope Bldg. Corp., 254 N.Y. 1, 171 N.E. 884, 70 A.L.R. 984
(1930). For other examples see Pound, The Decadence of Equity (1905) 5
Columbia Law Rev. 20.
[ 421]
The End of Law
§ 34. THE MATURITY OF LAW.1 As a result

of the stiffening process by which the undue fluidity of
law and over-wide scope for discretion involved in the
identification of law and morals are gradually corrected,
there comes to be a body of law with the stable and certain
qualities of the strict law, yet liberalized by the ideas and
conceptions developed by equity and natural law.2
In this stage of matured legal system, the watch-
words are equality and security. The idea of equality is
derived partly from the insistence of equity and natural
law upon treating all human beings as legal persons and
upon recognizing full legal capacity in all persons pos-
sessed of normal will. Partly, also, it is derived from
the insistence of the strict law that the same remedy shall
always be applied to the same state of fact. Accordingly,
as used here, equality includes two things: (1) Equali-
ty of operation of legal precepts, and (2) equality of op-
portunity to exercise one's faculties and to employ one's
substance.3
I. I take the name from 2 Austin, Jurisprudence (3 ed. 1863) 1107-1108.

2. Progress of Continental Law in the Nineteenth Century (1918) 11 Con-
tinental Legal History Series, chaps. 1, 2; First Report of the Real Property
Commissioners (1924) 6-7; Bryant Smith, Legal Relief Against the Inade-
quacies of Equity (1934) 12 Texas Law Rev. 109; Hanbury, The Field of Mod-
ern Equity (1929) 45 Law Quart.Rev. 196, 207-213; Paulsen, Ethics (transi.
by Thilly, 1899) 8.
3. Dig. 1, 1, 4; Bentham, Theory of Legislation, Principles of the Civil
Code (1864) pt. I, chap. 2; Clark, Practical Jurisprudence (1883) 110-114;
1 Austin, Jurisprudence (3 ed. 1863) 97-98 (5 ed. 1885) 94-96; Stephen, Liberty,
Equality, Fraternity (1873) 189-255; Maine, Early History of Institutions
(Am. ed. 1875) 398-400; Miller, Data of Jurisprudence (1903) 379-381; Lor-
imer, Institutes of Law (2 ed. 1880) 375-414; 2 Rbder, GrundzUge des Na-
[ 422]
The idea of security is derived from the strict law,

but is modified by the ideas of the stage of equity and
natural law, especially by the idea of insisting on will
rather than on form as the cause of legal results, and by
the idea of preventing enrichment of one at the expense
of another through forms and without will. In conse-
quence, security, as used here, includes two things: (1)
The idea that every one is to be secured in his interests
against aggression by others, and (2) the idea that oth-
ers are to be permitted to acquire from him only through
his will that they do so, or through his breach of rules de-
vised to secure others in like interests.4
In order to insure equality, the maturity of law again in-
sists strongly upon certainty and in consequence this stage is
comparable in many respects to the stage of the strict law. It is
greatly in advance of the stage of the strict law, however, be-
cause it insists not merely on equality of application of legal rem-
edies but on equality of rights, that is, equality of capacities to
influence others through the power of politically organized so-
ciety, and conceives of equality of application of legal remedies
as only a means thereto.
To insure security, the maturity of law insists upon proper-
ty and contract as fundamental ideas. That is, it thinks of all
interests in terms of the social interest in security of acquisitions
turrechts (2 ed. 1860) §§ 106-119; Lasson, System der Rechtsphilosophie (1882)

376-377; Ritchie, Natural Rights (1895) chap. 12; Demogue, Notions fonda-
mentales du droit privy (1911) 136-142.
4. On the idea of security in the maturity of law see Bentham, Theory
of Legislation, Principles of the Civil Code (1864) pt. I, chaps. 2, 7; Lorimer,
Institutes of Law (2 ed. 1880) 367-374; Gareis, Science of Law (transl. by
Kocourek, 1911) 33; Demogue, Notions fondamentales du droit privd (1911)
63-110; Schulz, Principles of Roman Law (1936) chap. 12.
[ 423 ]
The End of Law
and in security of transactions. This is brought out in our

American bills of rights. Thus the Massachusetts Bill of Rights
(1780) provides:
"Each individual of the society has a right to be protected
by it in the enjoyment of his life, liberty, and property according
to standing laws." 5
Compare this insistence on securing interests by rules of
law judicially administered with the recent tendency to secure
6
them through administrative action.
Liberty in such connections was taken in the nineteenth cen-
tury to mean, and is still sometimes taken to mean, that the in-
dividual shall not be held legally unless (a) for a fault, for an act
on his part which infringes another's right, or (b) except as and
to the extent that he has willed a relation to which the law in ad-
vance attached a liability whereby another might exact some-
thing from him. Hence, workmen's compensation acts were at
first deemed unconstitutional.7 "The whole idea" [of liberty as
due process of law] says Burgess, "is that of a domain in which
the individual is referred to his own will and upon which govern-
ment shall neither encroach itself, nor permit encroachments
from any other quarter." 8 The same idea appears in the nine-
teenth-century modern Roman law in its insistence upon will as
the central point not merely in legal transactions but in every le-
gal situation.9 Nineteenth-century attempts to make the Anglo-
5. Italics not in original. Mass. Bill of Rights, art. 10. Strictly the bills
of rights are largely bills of liberties, and the American colonies often de-
clared "liberties" in their legislation. E. g. Lawes and Libertyes of Mas-
sachusetts (1648).
6. See Landis, The Administrative Process (1938) 9-17.
7. Ives v. South Buffalo R. Co., 201 N.Y. 271, 94 N.E. 431, 34 L.R.A.,N.S.,
162 (1911). See Wambaugh, Workmen's Compensation Acts (1911) 25 Harvard
Law Rev. 129.
8. 1 Political Science and Comparative Constitutional Law (1900) 174.
9. "The conception of the legal transaction is a creation of modern Sys-
tematik." 1 Dernburg, Pandekten (8 ed. 1911) § 79.
[ 424]
American law of contracts conform to the Pandectist conception

were quite in accord with the spirit of the time. 10 Compare also
the attempt to put the law of public service companies in terms
of legal transactions of professing a calling, or dedicating prop-
erty,11 and to explain tort liabilities of public utilities by an im-
2
plied warranty against negligence.'
Along with liberty the maturity of law puts property, that
is, the security of acquisitions. But one of these acquisitions may
be a power to exact from a promisor. Accordingly, contract ac-
quires a property aspect. The law is regarded as existing to se-
cure, to the furthest possible extent, the right to contract freely
and the right to exact a performance freely promised.1 3 More-
4
over, in this stage even personality acquires a property aspect.
For example, one court refused to recognize a right of privacy
because it was not an incident of "possession or enjoyment of
property," 15 and many authorities announced a doctrine that
10. Anson, Principles of the English Law of Contract (1 ed. 1879) 1-2;
Pollock, Principles of Contract (1 ed. 1876) 1-6. See Harriman, Elements of
the Law of Contracts (1896) 2-4.
II. Lane v. Cotton, 12 Mod. 472, 484 (1701); Munn v. Illinois, 94 U.S. 113,
24 LEd. 77 (1876); Citizens' Bank v. Nantucket Steamboat Co., 2 Story, 16
(1841).
12. E. g. Weeks v. New York, N. H. & H. R. Co., 72 N.Y. 50, 59 (1878);
Dwinelle v. New York, C. & H. R. R. Co., 120 N.Y. 117, 127, 24 N.E. 319, 322, 8
L.R.A. 224 (1890); Clancy v. Barker, 71 Neb. 83, 98 N.W. 440, 69 L.R.A. 642
(1904).
13. "The privilege of contracting is both a liberty and a property right, and
if A. is denied the right to contract and acquire property in a manner which
he has hitherto enjoyed under the law, and which B., C., and D. are still al-
lowed by the law to enjoy, it is clear that he is deprived of both liberty and
property to the extent that he is denied the right to contract." Frorer v. Peo-
ple, 141 Ill. 171, 181, 31 N.E. 395, 397, 16 L.R.A. 492 (1892) (passing on a statute
against company stores).
14. "For purposes of the civil law of defamation, reputation is regarded
as a species of property." Bower, Code of Actionable Defamation (1908) 275
(2 ed. 1923, p. 240).
15. Roberson v. Rochester Folding Box Co., 171 N.Y. 538, 64 N.E. 442, 5t*
L.R.A. 478 (1902).
[425]
The End of Law
equity would only secure rights of property and was without ju-
risdiction to protect personality except where an interest of per-
6
sonality might be subsumed under some interest of substance.
In the same way freedom of contract is treated from a pro-

prietary standpoint. The power of the individual to make con-
tracts freely is thought of primarily as a sort of asset. In other
words, physical integrity and free choice of location, physical and
mental, are thought of as species of natural acquisitions," as it
were, so that the security of acquisitions, which is conceived to
be the main end of the law, includes (1) natural acquisitions,
that is, what nature has given one in the way of physical and
mental powers, (2) what one has acquired through the position
in which he found himself in society, and (3) what one has ac-
quired through the free exercise of his natural faculties. In the
maturity of law men may be willing to agree that acquisitions
of the second type shall be restricted greatly or even cut off for
the future. But all idea of interfering with what has been so ac-
quired in the past appears intolerable."" From the point of view
of this stage of legal development, Mr. Choate was entirely jus-
tified when he said, in his argument in the Income Tax Cases,
16. See Pound, Equitable Relief Against Defamation and Injuries to Per-
sonality (1916) 29 Harvard Law Rev. 640.
17. Compare the notion of natural incapacities to contract, to which the leg-
islature cannot add new ones based upon modern industrial conditions. State
v. Loomis, 115 Mo. 307, 315, 22 S.W. 350, 351, 352, 21 L.R.A. 789 (1893); State
v. Goodwill, 33 W.Va. 179, 10 S.E. 285, 6 L.R.A. 621 (1889). Professor Terry
has called attention to the "use of the word 'property' . . . to include almost
all . . . actually valuable rights." Leading Principles of Anglo-American
Law (1881) § 351. Blackstone treats of contract in his subdivision "Rights of
Things" as a mode of transferring property, bk. III, chap. 20.
18. "It may well be doubted whether the nature of society and of govern-
ment does not prescribe some limits to the legislative power; and, if any be
prescribed, where are they to be found, if the property of an individual, fair-
ly and honestly acquired, may be seized without compensation?" Marshall,
C. J. in, Fletcher v. Peck, 6 Cranch (U.S.) 87, 3 L.Ed. 162 (1810).
[ 426 ]
that a fundamental object of the law was "preservation of the

rights of private property." 19
Although it may be too soon to speak with assurance,

the permanent contribution of the stage of maturity of
law appears to be the idea of individual legal rights.
As the strict law replaces the primitive idea of composition
with the broader conception of legal remedy, of which composi-
tion at best can be no more than a species, and the stage of equi-
ty and natural law goes behind the idea of remedy to that of duty,
which the remedy is but a means of enforcing, the maturity of
law again goes deeper and finds behind each duty in private law
a right to which the duty is correlative and for the maintenance
of which the duty is imposed. The Romans spoke of actions in
rem and in personam 20 where we speak of rights in rem and in
personam.2 1 At the very end of Roman legal development in the
ancient world, the Digest was arranged in the order of the Per-
petual Edict-in other words, upon purely procedural lines.22
In the same way, until the last quarter of the nineteenth century
we taught and expounded the common law from the standpoint
19. 157 U.S. 429, 534, 15 S.Ct. 673, 39 L.Ed. 759 (1895). Compare Black-
stone: "So great, moreover, is the regard of the law for private property that
it will not authorize the least violation of it; no, not even for the general good
of the entire community. . . . Nor is this the only instance in which the
law of the land has postponed even public necessity to the sacred and inviola-
ble rights of private property." 2 Commentaries, 139-140. See also the remarks
of Harlan, J. in Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226, 239, 17 S.Ct.
581, 585, 586, 41 LEd. 979 (1897). It is of interest to note that Strong, J. in
Ex parte Virginia, 100 U.S. 339, 340, 347 (1879) inverts the order of words in
the constitution and speaks of depriving another of "property, life, or liberty
without due process of law."
20. Gaius, 4, 1.
21. 1 Austin, Jurisprudence (3 ed. 1869) 46, 380.
22. See Roby, Introduction to Justinian's Digest (1884) xxxi-xxxiii.
[ 427 ]
The End of Law
of actions and remedies rather than from that of rights. 2 3 It

was only at the end of the century that the law of torts began to
be emancipated from the bonds fixed by the actions of trespass
and trespass on the case, and to be expounded upon the basis of
4
the legal rights secured.2 As often happens in such connections,
we were systematizing the whole law upon the basis of legal
rights just as that conception was beginning to yield its central
position in the science of law because of the discovery of a more
fundamental conception behind it.
Comparing the maturity of law with the stages

which preceded it:
Primitive law The strict law Equity and The maturity

natural law of law
End Public peace Security Ethical Equality of op-

conduct: con- portunity; se-
formity to curity of ac-
good morals quisitions
Means Composition Legal remedy Enforcement of Maintenance

duties of rights
Permanent Peaceable or- Certainty and Good faith and Thorough work-
contribu- dering of uniformity moral conduct, ing out of the
tion society reached by attained by idea of in-
rule and form reason dividual rights
As has been said above, the all important institu-

tions of this stage are property and contract.
23. Serjeant Williams' Notes to Saunders' Reports, continued by E. V. Wil-

liams (1871) in which the law was expounded by notes to cases on pleading,
was a chief book of reference in law schools as late as 1890.
24. Compare also such books as Holland, Jurisprudence (1 ed. 1880) in
which the whole law is classified in terms of rights. Until 1868, when the
idea came in under Occidental influence, "there was no word in the Japanese
language that expressed the idea of a legal right." Munroe Smith, The Japa-
wiese Code and the Family (1907) 23 Law Quart.Rev. 42, 43.
[ 428 ]
§ 35. THE SOCIALIZATION OF LAW.1 To-

ward the end of the nineteenth century a tendency be-
came manifest throughout the world to depart radically
from fundamental ideas which had governed the maturi-
ty of legal systems. In 1891, Jhering2 formulated it
thus: "Formerly high valuing of property, lower valu-
I. I Vinogradoff, Historical Jurisprudence (1920) 157-159; Dicey, Lectures

on the Relation Between Law and Public Opinion in England (1905) 62-65;
Sharp, The Movement in Supreme Court Adjudication (1933) 46 Harvard Law
Rev. 361, 593, 795; 2 Recent Social Trends (1933) 1446-1448.
Jhering, Scherz und Ernst in der Jurisprudenz (10 ed. 1909) 408-425; Char-
mont, Le droit et i'esprit d6mocratique (1908) chap. 2; Pound, Social Justice
and Legal Justice (1912) Proc.Mo.Bar Ass'n 110, 75 Central L.J. 455; Duguit,
Les transformations gdndrales du droit privd depuis le code Napolon (1912)
(transl. in 11 Continental Legal History Series (1918) chap. 3); Barasch, Le
socialisme juridique et son influence sur l'6volution du droit civil en France Al
la fin du XIXe siocle et au XXe siocle (1923); Beale, Social Justice and Busi-
ness Costs: A Study in the Legal History of Today (1936) 49 Harvard Law
Rev. 593; Darmstaedter, Der Strukturwandel des Rechts (1932) 25 Archiv fiir
Rechts- und Wirtschaftsphilosophie, 180-211; Radbruch, Du droit individual-
iste an droit social (1931) Archives de philosophie du droit et de sociologie ju-
ridique, 387; Charmont, Les transformations du droit civil (1912); id. La so-
cialisation du droit (1903) Revue de mdtaphysique et de morale, 380 ff.; Leroy,
Les transformations de la puissance publique (1907); Hedemann, Das bUrger-
liche Recht und die neue Zeit; Morin, La rdvolte des faits contre le code
(1920); id. La loi et le contrat: la ddcadence de leur souverainetd (1927);
Valeur, L'enseignement du droit en France et aux Etats Unis (1928) 89-92.
As to the name given this stage, I got the hint from Stein, Sociale Frage
im Lichte der Philosophic (1897, 2 ed. 1903) 457. The term was used by Char-
mont in 1903 (La socialisation du droit, chap. 2). I used the term in the pres-
ent sense in an address in 1912 (Social Justice and Legal Justice, 1912 Proc.
Mo.Bar Ass'n 110) and in an article in 1914 (The End of Law as Developed in
Legal Rules and Doctrines, 27 Harvard Law Rev. 195, 225). Vinogradoff adopt-
ed it for this stage of legal development in 1920 (1 Historical Jurisprudence,
158).
2. In the additions to the fourth edition of his Scherz und Ernst in der
Jurisprudenz. See the preface to the fourth edition in that or any subsequent
edition.
[ 429 ]
The End of Law
ing of the person. Now lower valuing of property, high-

er valuing of the person." '
As to this compare the relative importance of the law of
property and the law of torts one hundred years ago and today.
The law of property is now less than half of what it was in the
law school curriculum of a century ago, while the law of torts
was not known in the curriculum till 1870. Compare also the
steady growth in recent years of equitable protection of person-
4
ality.
Jhering went on to say that the line of legal growth

was, "weakening of the sense of property, strengthening
of the feeling of honor (Ehre)."' This states the mat-
ter well if by "honor" we understand the idea of the mor-
al and so legal worth of the concrete human individual.
Examples of what Jhering meant may be seen in almost ev-
ery form of modern social legislation in which the life and exist-
ence as a human being of the concrete human individual is se-
cured at the expense of burdens imposed upon property. One
may instance fire escape legislation, factory acts, safety appli-
ance acts, rehabilitation acts, workmen's compensation, housing
laws, and social security legislation.
In the maturity of law, the legal system seeks to

secure individuals in the advantages given them by na-
3. Scherz und Ernst in der Jurisprudenz (4 ed. 1891) 418.

4. See Pound, Equitable Relief Against Defamation and Injuries to Per-
sonality (1916) 29 Harvard Law Rev. 640; Pound, Cases on Equitable Relief
Against Defamation and Injuries to Personality (2 ed. 1930) 1, notes 1 and 2,
45-86.
5. Scherz und Ernst in der Jurisprudenz (4 ed. 1891) 424.
[_430 ]
ture or by their station in the world and to enable them

to use these advantages as freely as is compatible with
a like free exercise of their faculties and use of their ad-
vantages by others. As has been said, to accomplish these
ends it reverts in some measure to the ideas of the strict
law. In consequence, a certain opposition between law
and morals develops once more, and just as the neglect
of the moral aspects of conduct in the stage of strict law
required the legal revolution through infusion of lay mor-
al ideas into law which we call the stage of equity and
natural law, so the neglect of the moral worth of the con-
crete individual and of his claim to a complete moral and
social life, involved in the insistence upon property and
contract in the abstract, which mark the maturity of law,
have been requiring a like legal revolution through the
absorption into the law of ideas developed in the social
sciences.
Juristically the change began with the recognition of inter-
ests as the ultimate idea behind rights. It began when jurists
saw that the so-called natural rights are something quite distinct
in character from legal rights; that they are claims which men
in civilized society may reasonably make, whereas legal rights
are means which a politically organized society employs in order
to give effect to such claims within certain defined limits. But
when natural rights are put in this form, it becomes evident that
these individual interests are at most on no higher plane than so-
cial interests and indeed, for the most part, get their significance
for jurisprudence from a social advantage in giving effect to
them. In consequence, the emphasis comes to be transferred
gradually from individual interests to social interests. Such a
[ 431]
The End of Law
movement has been taking place palpably in the law of all coun-
tries in the present century. Its watchword is the satisfaction of
human wants, and it seems to put as the end of law the same ul-
timate end as that of other social institutions, namely, the satis-
faction of as much of human demand as we can satisfy with a
minimum of friction and waste.6
This new stage of legal development may be called the so-

cialization of law in order to bring out the contrast to the ab-
stract individualism of the maturity of law. As examples of this
contrast, compare the provisions as to exact proportional equal-
ity in taxation, which were common in American state constitu-
tions in the nineteenth century,7 with the exemptions and grad-
uation in recent taxation of incomes. Here there is a change
from the abstract equality of the nineteenth century to an ad-
justment of burdens with reference to ability to bear them. Thus
there is a concrete individualization of application where in the
last century there was an abstract equality of abstract individu-
als.
Let us leave the theory of this socialization of law

for another place and look instead at what is actually go-
ing on in legal systems. Taking them up in chronologi-
cal order of their appearance in American law, twelve
points appear especially noteworthy: (1) Limitations
on the use of property and on what is called anti-social
exercise of liberties; (2) limitations on freedom of con-
tract; (3) limitations on the ius disponendi; (4) limita-
tions on the power of a creditor or injured party to exact
6. Pound, Interpretations of Legal History (1923) 151-158.

7. E. g. Const.Ind.1851, art. X, § 1; Const.Ill.1879, art. IX, § 1; Const.
Mo.1875, art. X, §§ 4, 6, 7.
[ 432 ]
satisfaction; (5) imposition of liability without fault,

particularly in the form of liability for agencies em-
ployed; (6) change of res communes and res nullius in-
to res publicae; (7) insistence upon the interest of so-
ciety with respect to dependent members of the house-
hold; (8) a growing tendency to hold that public funds
should respond for injuries to individuals through the
operation of public agencies; (9) a tendency to replace
the purely contentious theory of litigation by one of ad-
justment of interests; (10) a tendency to read reason-
ableness into the obligation of contracts; (11) increas-
ing recognition of groups and associations as having in-
terests to be secured, instead of exclusive legal recogni-
tion of individuals and of certain historical organiza-
tions; (12) a tendency to relax the rules as to trespass-
ers.
1. LIMITATIONS ON THE USE OF PROPERTY;
as the French writers put it, prevention of abusive or
anti-social exercise of rights.
In the growing tendency to impose limitations upon the own-
er's jus utendi and jus abutendi, upon the owner's liberty of us-
ing and liberty of abusing his property, there is a suggestive par-
allel between the period upon which the law has entered and the
earlier period of liberalization which has been called the stage
of equity and natural law. Equity sought to prevent the "uncon-
scientious exercise of rights." Today we seek to restrain the
"anti-social exercise of rights." It is true, analytically there is a
logomachy in the phrase "abuse of rights" or "abusive exercise
of rights." As it has been put, "the right ceases where the abuse
The End of Law
begins." 8 But such criticisms come after the change has taken
place and express what has been accomplished. After equity had
interposed regularly to prevent certain unconscientious asser-
tions of rights or uses of powers recognized by the strict law, it
was possible for the analytical jurist to say that equity simply
held down the exercise to the true scope of the right or power.9
In the same way we may say today that what the law is doing is
to define the right more accurately and to circumscribe the action
of the person entitled by the limits so defined. Equity imposed
moral limitations-limitations regarded as involved in the nature
of man as a moral entity. Today the law is imposing social limi-
tations-limitations regarded as involved in social life. It is en-
deavoring to delimit the individual interest better with respect to
social interests and to confine the legal right or liberty or privi-
lege to the bounds of the interest so delimited.
One example may be seen in the development of legal doc-

trine as to acting or building upon one's land with the motive of
injuring another-the so-called spite fence question. The strict
law starts with the proposition announced by Gaius: "No one is
held to act wrongfully who exercises his own right." 10 In the
classical jurists, because of the identification of law with morals,
a tendency develops to qualify such statements by adding, "pro-
vided he does this not with the intention of injuring his neigh-
bor but in order to improve his land" I" or "but malice is not to
be indulged." 12 The old French law proceeded upon a theory of
"free exercise of rights," in contrast with which the recent theory
8. 2 Planiol, Trait6 lmentaire de droit civil (11 ed. 1932) no. 871.
9. Hohfeld, Fundamental Legal Conceptions (1919) 136,
10. Dig. 50, 17, 55.
II. Dig. 39, 3, 1, § 12 (Ulpian).
12. Dig. 6, 1, 38 (Celsus).
[ 434 1
of "abusive exercise of rights" has arisen. 13 The German Civil

Code (1900) expressly forbids the use of property for the sole
purpose of injuring another.14 In contrast to the course of deci-
sion in the last century, 15 English and American legislation, doc-
trinal writing, and judicial decision have been moving steadily
in the same direction. 6
Another example may be seen in the change of front in
American case law with respect to surface water and percolating
water. Here, again, the strict law took no account of the mo-
tives of one who intercepted the water or prevented it from com-
ing on his land, subject to the qualification that he might not
gather surface water in a body and discharge it in a body on an-
13. 2 Planiol, Trait6 i0lmentaire de droit civil (11 ed. 1932) nos. 870-872
bis; Walton, Motive as an Element in the Common and in the Civil Law
(1909) 22 Harvard Law Rev. 501; id. Delictual Responsibility in the Mod-
ern Civil Law (1933) 49 Law Quart.Rev. 70, 86-89; Charmont, L'Abus du
droit (1902) 1 Revue trimestrielle de droit civil, 113; Porcherot, De l'abus
du droit (1901); Salanson, De l'abus du droit (1903); Josserand, Sur la rela-
tivitd des droits (1927) 2 Revue internationale de la thdorie du droit, 142-150;
id. De l'abus des droits (1905); id. De l'esprit des droits et de leur rela-
tivit6 (1927); Campion, De l'abus des droits (1925).
14. BGB § 226; 1 Cosack, Lehrbuch des bilrgerlichen Rechts (8 ed. 1927)
§ 124, II, 2.
15. Giller v. West, 162 Ind. 17, 69 N.E. 548 (1904); Brostrom v. Lauppe,
179 Mass. 315, 60 N.E. 785 (1901); Mahan v. Brown, 13 Wend. (N.Y.) 261
(1835); Phelps v. Nowlen, 72 N.Y. 39 (1878); Letts v. Kessler, 54 Ohio St. 73,
42 N.E. 765, 40 L.R.A. 177 (1896) ; Chatfield v. Wilson, 28 Vt. 49 (1856) ; Koble-
gard v. Hale, 60 W.Va. 37, 53 S.E. 793 (1906); Metzger v. Hochrein, 107 Wis.
267, 83 N.W. 308, 50 L.R.A. 305 (1900).
16. Ames, How Far An Act May Be a Tort Because of the Wrongful Mo-
tive of the Actor (1905) 18 Harvard Law Rev. 411, 414 ff.; Stoner, The In-
fluence of Social and Economic Ideals on the Law of Malicious Torts (1910)
8 Michigan Law Rev. 468; 2 Wigmore, Cases on Torts (1911-1912) App. A,
§§ 262, 271-272; Gutteridge, Abuse of Rights (1933) 5 Cambridge L.J. 22;
Leake, The Abuse of Rights in Louisiana (1933) 7 Tulane Law Rev. 626;
Barger v. Barringer, 151 N.C. 433 (1909); Hollywood Silver Fox Farm v.
Emmett, [19361 2 K.B. 468 and notes in 52 Law Quart.Rev. 461 (1936) (Good-
hart) and 53 id. 1 (1937) (Holdsworth); 4 Restatement of Torts, § 829.
[I435 ]
The End of Law
other's land. In the present century new doctrines have become

established in which a principle of reasonable use has superseded
the old and narrow idea that the owner of the surface might do
as he pleased.' 7 In this connection, writers commonly speak of
permitting a "reasonable use" of land by all, or of preventing in-
terference with "reasonable use" of adjoining lands. What is
meant by "reasonable" in this connection? The idea seems to be
one of satisfying a want or claim which is consistent with satis-
fying a like want or a like claim on the part of the adjacent pro-
prietors. The idea is no longer one of equality of abstract liberty
of action; it is one of equality of satisfaction of wants.
Legislative extensions of this doctrine of reasonable use of

property have become common. Town planning and legislation
against bill boards are examples of a growing type of limitations
upon building which proceed, not on the interest in the general se-
curity, but on a newly recognizing social interest in the aesthetic.
In contrast to the decisions of fifty years ago, courts have come
to hold that the legislatures may secure such interests without in-
fringement of constitutions."
17. "The spirit of the English law is now to leave the parties alone; of
the American law, it is, on the one hand, to permit a reasonable use of land
by all, and on the other, to prohibit an excessive use by any." 1 Wiel, Water
Rights (3 ed. 1911) § 744, note 12. See Huffcut, Percolating Waters: The
Rule of Reasonable User (1904) 13 Yale L.J. 222. See also 4 Restatement of
Torts (1939) §§ 858-864.
18. Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71
L.Ed. 303 (1926); Town of Windsor v. Whitney, 95 Conn. 357, 111 A. 354,
12 A.L.R. 669 (1905); State ex rel. Twin City Bldg. & Inv. Co. v. Houghton,
144 Minn. 1, 174 N.W. 885, 8 A.L.R. 585 (1919); Piper v. Ekern, 180 Wis. 586,
194 N.W. 159, 34 A.L.R. 32 (1923). See Note by Professor T. P. Hardman,
The Social Interest in the Aesthetic and the Socialization of the Law (1923)
29 W.Va.L.W. 195; Note in 8 Canadian Bar Rev. 384 (1930).
Jenks, Governmental Action for Social Welfare (1910) 81; 2 Recent Social
Trends (1933) 1440-1441; General Outdoor Advertising Co. v. Department
of Public Works, 289 Mass. 149, 201, 193 N.E. 799 (1935); Gardner, The Mas-
sachusetts Billboard Decision (1936) 49 Harvard Law Rev. 869; Advertise-
[ 436 ]
But except in the case of water upon or beneath the surface,

judicial development has not gone much further than to denounce
the exercise of certain incidents of ownership merely to gratify
spite and malice. 19 Gratification of spite and malice are not the
sort of individual claims or demands or wants which the law
exists to satisfy. The law ought not to secure such interests. The
interest which the law secures is the claim to exercise the owner's
economic activities, or, where the property admits of such use, to
occupy it comfortably in such manner as accords with his per-
sonal taste and preference. In a large sense, it is the claim to use
the property advantageously. More and more the tendency is to
hold that what the law should secure is satisfaction of those wants
or claims of the owner with respect to the property which may be
generalized and subsumed under certain social interests, especial-
ly those claims which consist with the like claims of his neighbors
and so are said to be reasonable.
2. LIMITATIONS ON FREEDOM OF CONTRACT 20

should be contrasted with the nineteenth-century doc-
ments Regulation Act [1907] 7 Edw. 7, c. 27, § 2; Terry, Constitutionality

of Statutes Forbidding Advertising Signs on Property (1914) 24 Yale Law
Journ. 1; Billboard and Other Forms of Outdoor Advertising, Chicago City
Club Bulletin V, no. 24 (1912); St. Louis Gunning Advertising Co. v. City of
St. Louis, 235 Mo. 99, 137 S.W. 929 (1911), 249 U.S. 269, 274, 39 S.Ct. 274, 275,
163 L.Ed. 599 (1919); People ex rel. v. Oak Park, 266 Ill. 365, 107 N.E. 636
(1915); Bill Posting Co. v. Atlantic City, 71 N.J.L. 72, 58 A. 342 (1904); Bryan
v. Chester, 212 Pa.St. 259, 61 A. 894 (1905).
19. The German code makes this into a general principle governing the
exercise of all legal rights, § 226. Cf. a similar suggestion in Dunshee v.
Standard Oil Co., 152 Iowa 618, 132 N.W. 371, 36 L.R.A.,N.S., 263 (1911).
But see the note on this case, 25 Harvard Law Rev. 296 (1912).
20. i Wyman, Public Service Corporations (1911) § 331; Thompson, The
Relation of Common Carrier of Goods and Shipper (1924) 38 Harvard Law
Rev. 28; Dicey, Law and Public Opinion in England (1920) lect. 8; Pound,
Liberty of Contract (1909) 18 Yale Law Journ. 454; Jastrow, Was ist Ar-
beiterschutz? (1912-1913) 6 Archly fUr Rechts- und Wirtschaftsphilosophie,
133, 317, 322, 501; Brown, Underlying Principles of Modern Legislation (1912)
[ 437]
The End of Law
trine that personality and liberty each required property

and that freedom of contract involved both liberty and
property.
For a generation such limitations have been imposed increas-
ingly both through legislation and through judicial decision. As
examples of limitation of freedom of contract through legisla-
tion, reference may be made to the so-called truck acts or statutes
requiring the payment of wages in cash; to statutes regulating
conditions of labor, fixing hours of labor and minimum wages;
and to statutes forbidding contracts not to join labor unions, im-
posing collective bargaining, and empowering imposition of a
multitude of administrative regulations. The scope of free con-
tract as between employer and employee in industry has all but
been eliminated. Here, again, the parallel between the present
stage and the stage of equity and natural law is suggestive. The
purpose of this legislation is to protect a class which is subjected
to severe economic pressure against unfair advantage in dealings
with employers. In the same way, equity sought, by limiting
their power of contract, to protect debtors against unfair advan-
tage on the part of creditors. Thus equity prevented clogs upon
or bargainings away of the right of redemption 21 and overturned
316-321; Isaacs, The Standardizing of Contracts (1917) 27 Yale Law Journ.

34; Patterson, Administrative Control of Insurance Policy Forms (1925) 25
Columbia Law Rev. 253; id. The Insurance Commissioner in the United
States (1936) 244-268; Llewellyn, What Price Contract? (1931) 40 Yale Law
Journ. 704, 731-734; Posner, Liability of the Corporate Trustee (1928) 42
Harvard Law Rev. 198, 201, 212, 227-230, 244-248; Scott, Fifty Years of
Trusts (1936) 50 Harvard Law Rev. 60, 68.
Noble State Bank v. Haskell, 219 U.S. 104, 31 S.Ct. 186, 55 L.Ed. 112 (1911);
Chicago, B. & Q. R. Co. v. McGuire, 219 U.S. 549, 566-575, 31 S.Ct. 259, 55
L.Ed. 328 (1911); Nebbia v. New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed.
940 (1933); Note in 44 Harvard Law Rev. 1287 (1931).
21. Noakes v. Rice [1902] A.C. 24; Vernon v. Bethell, 2 Eden, 110, 113
(1761).
[ 438]
oppressive contracts with heirs and reversioners.2 2 Compare

also laesio enormis in Roman law, a doctrine of preventing the3
purchaser from taking unfair advantage of the seller's need .
Equity insisted on moral conduct. It protected debtors against
themselves so as to secure fairness in transactions and give effect
to moral ideas of conduct. Today we insist on protecting work-
ingmen against themselves so as to secure the social interest in
the moral and social life-one might say the human life-of each
individual. We say that we insist on social conduct.
In the law of insurance, legislation and judicial decision
have cooperated to limit freedom of contract. Statutes such as
valued policy laws, provisions as to warranties, and laws provid-
ing for standard policies, have taken many features of the sub-
ject out of the domain of agreement.2 4 To no small extent, un-
der the guise of interpretation, the tendency of judicial decision
is in effect to attach rights and liabilities to the relation of insur-
er and insured and thus remove the whole subject from the cate-
gory of contract. Moreover, insurance is now governed in in-
creasing measure by administrative supervision, controlling
forms and terms of policies and prescribing limits to what may be
25
agreed upon.
Likewise the courts have taken the law of surety companies

largely out of the category of2 6suretyship, treating them as in-
surers rather than as sureties.
22. Earl of Chesterfield v. Janssen, 2 Ves.Sr. 125 (1751).

23. 2 Planiol, Traitd 6lmentaire de droit civil (11 ed. 1932) 1588.
24. See Wambaugh, Cases on Insurance (1902) preface.
25. See Patterson, Control of Insurance Policy Forms (1925) 25 Columbia
Law Rev. 253, 257-273. See also Isaacs, The Standardizing of Contracts
(1917) 27 Yale Law Journ. 34.
26. Richards, Insurance (4 ed. 1932) § 476.
[ 439 ]
The End of Law
Again, recently in the law of trusts there have come to be

statutes in effect forbidding express provisions relieving testa-
mentary trustees from liability from failure to exercise due care,
or limiting such liability. "There is a growing feeling that cer-
tain duties and certain standards are applicable to the relation
between trustee and beneficiaries, and that they are so necessarily
inherent in the relation that they cannot be dispensed with by any
provision in the trust instrument." 27
More important, judicial decision has established that the
duties of public service companies are not contractual, flowing
from agreement or implied from professing a public calling or
dedicating property to a public use, but are imposed upon the
calling and attached to the relation of public utility and patron.
Hence, there are many things as to which the utility and the pa-
tron are not permitted to agree.28 Also legislation has commit-
ted large powers of regulation to administrative agencies which
still further limits freedom to make contracts, and in addition
prescribes standard or standardized contracts.
But it should be noted how the theory of recent legislation
and recent decision in these connections differs from the theory
on which equity acted. Originally, the clerical chancellors inter-
fered pro salute animae to make creditor or mortgagee or buyer
act ethically. We now interpose out of solicitude for employee
or patron in order to secure a social interest that each individual
be able to live a human life, or to secure a social interest in eco-
nomic progress by insuring that the agencies of transportation,
for example, are generally available even to those who cannot suc-
ceed in making contracts. An idea behind all this seems to be
solicitude for those who, without protection of the law, are not
27. Scott, Fifty Years of Trusts (1936) 50 Harvard Law Rev. 60, 68.
28. As to this Wyman says: "Individual freedom is limited by the modern
notion of social justice" (1911) 1 Public Service Corporations, § 34. See also
id. preface, p. ix and § 331.
[ 440 ]
equal to providing a fair satisfaction of their wants or claims or

demands.
3. LIMITATIONS ON THE JUS DISPONENDI must

be looked at in contrast with the nineteenth-century
idea that power of disposing was a necessary element in
the very conception of property. 9
Limitations on the jus disponendi are chiefly statutory. A
few typical examples will suffice. One which goes back some
time in American statute law is the requirement that the wife
join in a conveyance of the family home, even though it is the
sole property of the husband.30 Another is legislation requiring
that the wife join in a mortgage of the household furniture by the
husband, even though it is his sole property. 31 Still another is
legislation requiring that the wife join in an assignment of the
husband's wages. 32 We may also in part refer to this tendency
recent views as to the spendthrift trust. So far as it may be jus-
tified, its justification is to be found in the social interests behind
limitations on the jus disponendi and upon the power of the
creditor to exact satisfaction presently to be considered.3 3 The
older doctrine of equity went on the moral duty to keep promises
and pay in full. In the nineteenth century, the spendthrift trust
was upheld on the then dominant will-theory. The intention of
29. See Pound, Introduction to the Philosophy of Law (rev. ed. 1954) lect
6. As to recent limitations see New Zealand Family Protection Act (1908);
Allardice v. Allardice [1911] A.C. 730; Pertione, La proprieth e sui limiti
(1930); 3 Huber, System und Geschichte des schweizerischen Privatrechtes
(1889) §§ 82-83.
30. Thompson, Homesteads and Exemptions (1878) § 465.
31. E. g. Ill.Laws of 1889, p. 208; N.J.Laws of 1893, p. 97; id. Laws of
1902, p. 489.
32. E. g. Mass.Acts of 1908, chap. 605.
33. See Gray, Restraints on Alienation of Property (2 ed. 1895) viii-ix.
[ 441 1
The End of Law
the settlor of the trust was to be carried out. The present mode
of thought would relate it to securing a reasonable social life
34
to the beneficiary.
In all the foregoing cases a social interest in the moral and
social life of each individual has outweighed individual inter-
ests of substance or, as we should put it for comparison, the so-
cial interest in security of acquisitions and security of transac-
tions. In most of them, however, the social interest in the se-
curity of social institutions-here the social institutions of mar-
riage and the family-has also weighed heavily. It is worth
while to contrast these limitations upon the power of disposing of
property with the dicta of the Supreme Court of Wisconsin a gen-
eration ago as to the inviolable right to dispose of property by
will.3
4. LIMITATIONS ON THE POWER OF THE CREDITOR

OR INJURED PARTY TO EXACT SATISFACTION have a
long history.
Roman law in the classical period developed two limitations
of this sort, cessio bonorum and the beneficium competentiae.
Cessio bonorum was a voluntary surrender of the debtor's prop-
erty to his creditors. By making such a surrender he escaped the
infamia (loss of civic honor) that attended universal execution
against a debtor's property, escaped execution against his per-
son, and obtained the beneficium competentiae as to after acquir-
ed property. 36 Thus it was a sort of voluntary bankruptcy ex-
cept that there was no general discharge. The beneficium compe-
tentie is more important for our purpose. In the case of cer-
34. See Scott, Fifty Years of Trusts (1936) 50 Harvard Law Rev. 60, 68-71.
35. Nunnemacher v. State, 129 Wis. 190, 198-203, 108 N.W. 627, 9 L.R.A.,
N.S., 121 (1906).
36. Dig. 42, 3, 4, pr.; Code, 7, 71, 1; id. 2, 11, 11.
[ 442 ]
tain debtors, as against certain creditors, the Roman law in the

classical period gave the benefit or privilege of not being held
for the entire amount but only for so much as they could pay for
the time being. Later it was held that this meant what they could
pay without depriving themselves of the means of subsistence.
The chief cases were, claims of one partner against another, ac-
tions by a child against a parent, actions by a freedman against
his patron or an ascendant or descendant of the latter (because of
the duty of gratitude) and actions by the wife against the hus-
band for dos. 37 With respect to the first of these cases it should
be explained that the original juristic idea of partnership was
drawn from the analogy of the consortium of coheirs.38 Hence,
the idea in each case was that it was contrary to morals for the
one to strip the other of all his property and leave him a pauper.
But there seemed no objection to a stranger doing this, except as
the debtor might avoid it in part by cessio bonorum. Naturally
this doctrine was rejected in the modern civil law as being out of
accord with the abstract individualism of the nineteenth century.
Thus Baudry-Lacantinerie says: "Suppose I am creditor of a
person to whom I am bound to furnish support if he becomes
needy. I seize his property in order to obtain payment. Can he
meet me with what the commentators on the Roman law call the
beneficium competentiae, and so bring it about that he be held
only in id quod facere potest and retain what he requires to live,
ne egeat? . . . It would require a formal text in order
to limit the rights of a creditor with respect to his debtor to whom
he owes support, and no such text exists. Hence, a son who is
creditor of his father may proceed against him as he might
against the first comer; he may pursue him usque ad saccum et
37. Dig. 42, 1, 16, 17; id. 42, 1, 19, 1; id. 50, 17, 173.
38. DeZulueta, Supplements to the Institutes of Gaius (1935) 5-7; 2 Roby,
Roman Private Law (1902) 128, n. 1.
[ 443]
The End of Law
peram. It is an impiety-but our law tolerates it." 39 The whole

spirit of nineteenth-century law is in this passage.
There were some old limitations in the common law.40 In the
United States, at a relatively early date, legislation providing for
exemptions from execution began to impose limitations intended
to secure social interests upon the power of the creditor to exact
satisfaction. Instances of this are the homestead exemptions
which obtain in so many states, the personalty exemptions which
often go so far as to exempt five hundred dollars to the head
of a family, and usually make liberal exemptions of tools to the
artisan, library and instruments to the professional man, and ani-
mals and implements to the farmer, and commonly put at least
sixty days' wages to the head of a family beyond the reach of le-
gal process. 41 In recent times such limitations are multiplying.
For example, there are now statutes allowing courts to render
judgments for payment of debts in installments, 42 for mora-
toria, 43 for restricting forced sales and deficiency judgments in
39. 1 Prdcis de droit civil (10 ed. 1908) no. 529-toned down somewhat in
later editions. See 13 ed. (1922) no. 550. See also Lavet, La b~ndfice de com-
r6tence (1927).
40. 3 Blackstone, Commentaries (1768) 9, 418.
41. Thompson, Homesteads and Exemptions (1878) §§ 40, 379; Bureau,
Le Homestead ou l'insaisissabilitd de la petite propridt46 fonci re (1895). In
Germany, claims for wages, claims under the laws as to compulsory insur-
ance and claims for maintenance are exempt from seizure. Code of Civil
Procedure, § 850. See also National Labor Relations Board v. Sunshine
Mining Co., 125 F.2d 757, 761, 765 (C.C.A.9th, 1942) preventing prosecution
of the claims of dependent wives, divorced wives, and creditors of laborers
to whom back pay had been awarded; Woodbridge, Wage Earners' Receiv-
erships (1940) 23 J.Am.Jud.Soc. 242.
42. See Smith, Justice and the Poor (1919, 3 ed. 1924) 56-57; In re Davis,
103 Neb. 703, 173 N.W. 695 (1919); Note (1933) in 47 Harvard Law Rev. 299.
43. Home Bldg. & Loan Ass'n v. Blaisdell, 290 U.S. 398, 54 S.Ct. 231, 78
L.Ed. 413 (1934); Feller, Moratory Legislation, A Comparative Study (1933) 46.
Harvard Law Rev. 1061; Stone, Mortgage Moratoria (1936) 11 Wis.Law Rev.
203.
[444 ]
case of foreclosure of mortgages 44 and limiting enforcement of

covenants by tenants to surrender possession at the expiration of
the term.45 The doctrine of the Supreme Court of the United
States that an insolvent husband may devote a moderate part of
his income to life insurance premiums for the benefit of his fami-
ly, entirely free from the claims of his creditors,"6 is a judicial
exemption.
There is a notable tendency in recent legislation and in recent

discussion to insist, not that the debtor keep full faith in all cases
even though it ruin him and his family, but that the creditor
must take a risk also, either along with or in some cases instead
4
of the debtor. 1
5. LIABILITY WITHOUT FAULT, RESPONSIBILITY

FOR AGENCIES EMPLOYED AND THINGS MAINTAINED,
as now imposed, are in sharp contrast to the mode of
thought of the last century.
Primitive law, acting on the principle of buying off the desire
for revenge, said Ames in 1908, "asked simply 'did the defendant
do the physical act which damaged the plaintiff.' The law of to-
day, except in certain cases based upon public policy, asks the
44. White v. Wielandt, 259 App.Div. 676, 680, 681, 20 N.Y.S.2d 560 (1940);
Federal Title and Mortgage Co. v. Lowenstein, 113 N.J.Eq. 200, 166 A. 538
(1933); Carey, Brabner-Smith and Sullivan, Studies in Realty Mortgage Fore-
closures (1933) 27 Ill.Law Rev. 848, 861-864; Brabner-Smith, Economic As-
pects of the Deficiency Judgment (1934) 20 Va.Law Rev. 719.
45. Block v. Hirsh, 256 U.S. 135, 41 S.Ct. 458, 65 L.Ed. 865, 16 A.L.R. 165
(1921); People ex rel. Brixton Operating Corp. v. La Fetra, 230 N.Y. 429, 130
N.E. 601, 16 A.L.R. 152 (1921).
46. Central Bank of Washington v. Hume, 128 U.S. 195, 9 S.Ct. 41, 32
L.Ed. 370 (1888).
47. See German Civil Code, §§ 528-529, 829; Munch-Petersen, Procedure
from a Social Point of View (1927) 5 N.C.Law Rev. 321-325.
[445 ]
The End of Law
further question, 'was the act blameworthy?' The ethical stand-

ard of reasonable conduct has replaced the unmoral standard of
acting at one's peril." 48 But the ethical standard of which he
wrote, which came into the law in the period of infusion of morals,
was an abstract individualist ethical standard. It will be noticed
that Ames says "except in certain cases based upon public poli-
cy." That is, wherever the social interest in the general security
requires imposition of liability without fault, there is an excep-
tion. Take, for example, the objective standard of negligence in
case of a stupid or a hot-headed man. It can hardly be said that
congenital stupidity or congenital impulsiveness are "blame-
worthy." Yet they may be as dangerous behind the wheel of
an automobile as conduct clearly worthy of blame. Fifty years
ago this was not so apparent as it is today. Under the influence
of the nineteenth-century will theory, writers laid down that the
cases where the common law imposed liability without fault were
historical survivals, 49 that they would eventually disappear, and
even that the doctrine of the leading English case was being
smothered with exceptions by the course of judicial decisions.50
Today there is a strong and growing tendency to revive the
idea of liability without fault, and to extend its scope. The doc-
trine of Rylands v. Fletcher, so far from disappearing has been
applied by analogy.51 Absolute liability for injuries by animals
has been upheld to the very verge in the case of a vicious animal.
wrongfully turned loose by an intermeddler 52 and liability for
48. Law and Morals (1908) 22 Harvard Law Rev. 97, 99.
49. "The doctrine [of absolute liability for trespassing animals] is a stub-
born archaism." Pollock, Torts (13 ed. 1929) 515, note y, (14 ed. 1939) 397,
note c.
50. Pollock, Law of Fraud in British India (1894) 53-54. See also Sal-
mond, Torts (1 ed. 1907) 200-201; Thayer, Liability Without Fault (1916) 29
Harvard Law Rev. 801.
51. Attorney-General v. Cooke, [1933] 1 Ch.89, 95.
52. Baker v. Snell, [1908] 2 K.B. 352, 355.
[ 446 ]
trespasses by animals has been extended to collateral conse-

quences of the trespass. 53 This tendency is especially marked in
imposition of wide responsibility for agencies employed and in
placing upon enterprises the burden of repairing injuries, with-
out fault of those who conduct them, which are incident to the
undertaking. There is a strong and growing tendency, where
there is no blame on either side, to ask, in view of the exigencies
of social justice, who can best bear the loss, and hence to shift
the loss where there has been no fault. Workmen's compensation
and employer's liability, as dealt with in modern legislation, il-
lustrate this.M It is illustrated by recent proposals as to acci-
dents in transportation and motor vehicle accidents. 55 In Eng-
land, the defense of compulsory pilotage in cases where a colli-
sion is caused by the fault of a pilot carried under compulsion of
law has been abolished. 56 In a number of states statutes impose
liability, irrespective of fault of the owner, for damage to person
or property by the operation of a motor vehicle by one to whom
it has been rented or leased or lent. 57
53. Thayer v. Purnell, [1918] 2 K.B. 333.

54. Wambaugh, Workmen's Compensation Acts (1911) 25 Harvard Law
Rev. 129; Boyd, Workmen's Compensation (1913) 27-29, 81; Arizona Work-
men's Compensation Cases, 250 U.S. 400, 435, 436, 449, 39 S.Ct. 553, 63 L.Ed.
1058, 6 A.L.R. 1537 (1919); Opinion of the Justices, 209 Mass. 607, 96 N.E.
308 (1911); State v. Clausen, 65 Wash. 156, 117 P. 1101, 37 L.R.A.,N.S., 466
(1911); Borguis v. Falk Co., 147 Wis. 327, 133 N.W. 209, 37 L.R.A.,N.S., 489
(1911). See Ives v. South Buffalo R. Co., 201 N.Y. 271, 94 N.E. 431, 34 L.R.A.,
N.S., 162 (1911).
55. Ballantine, A Compensation Plan for Railway Accident Claims (1916)
29 Harvard Law Rev. 705; Marx, Compulsory Compensation Insurance (1925)
25 Columbia Law Rev. 64; Report of the Committee to Study Compen-
sation for Automobile Accidents, Columbia University Council for Research
in the Social Sciences (1932) and review by Thurston (1933) 43 Yale Law
Journ. 160.
56. Pilotage Act (1913) § 15.
57. E. g. Conn.Pub.Acts (1925) chap. 195, § 21; Bowerman v. Sheehan, 242
Mich. 95, 219 N.W. 69, 61 A.L.R. 859 (1928). In the last case three judges
[ 447 ]
The End of Law
Judicial decision has brought in other cases of the sort, such,

for instance, as the so-called humanitarian doctrine, allowing re-
covery against public service companies for injuries due to negli-
gence notwithstanding contributory negligence of the person in-
jured ;58 decisions making a railroad company liable for injury
to a trespasser who puts himself in a condition of peril from
which the servants of the company fail actively to relieve him ;59
and decisions establishing the family automobile doctrine, hold-
ing owners of automobiles liable for unauthorized or forbidden
use of cars by members of the owner's family using them solely
for their own pleasure.60
In all these cases the question is whether the loss shall rest
upon the luckless person on whom it chances to fall (the common-
law rule) or shall be shifted to the enterprise as an incident of
which it happened, or to the person maintaining the agency, the
operation of which caused the injury, even if without his fault.
The basis of legislation and judicial decision in this direction is
partly the social interest in the general security but also and quite
as much the social interest in the full social life of the individual,
especially in classes less able to bear the burden of injuries inci-
dent to their tasks. It should be added that the social interest in
the general security has dictated a growing category of criminal
offenses without criminal intent.6'
dissented on the ground that there was an unconstitutional imposition of

liability for the tort of another.
58. 2 Restatement of Torts, § 480.
59. E. g. Southern R. Co. v. Sewell, 18 Ga.App. 544, 90 S.E. 94 (1916).
60. Stickney v. Epstein, 100 Conn. 170, 123 A. 1 (1923); Griffin v. Russell,
144 Ga. 275, 87 S.E. 10, L.R.A.1916F (1915); Fullerton v. United States Cas-
ualty Co., 184 Iowa 219, 167 N.W. 700, 6 A.L.R. 367 (1918); Miller v. Week,
186 Ky. 552, 217 S.W. 904 (1920); Kayser v. Van Nest, 125 Minn. 277, 146 N.W.
1091, 51 L.R.A.,N.S., 970 (1914); Linch v. Dobson, 108 Neb. 632, 188 N.W. 227
(1922).
61. Compare 1 Bishop, Criminal Law (9 ed. 1923) §§ 285-291, with Hobbs
v. Winchester Corporation [1910] 2 K.B. 471, 482 ff.; United States v. Balint,
[ 448 ]
6. CHANGE OF RES COMMUNES AND RES NULLIUS

INTO RES PUBLICAE.
It used to be laid down, and the doctrine came from the Ro-
man law, that certain things, such as running water, were res
communes; that is, no one could own them, but the use of them
belonged to or could be appropriated by certain individuals. Also
it was laid down that certain other things were res nullius, that
is, they belonged to no one until someone reduced them to his
possession; and then they belonged to him. Wild animals and
game were of the latter class. In the present century, a strong
tendency has arisen to regard running water and wild game as
res publicae, as it is put, not, however, using that phrase exactly
in the Roman sense. The tendency is to hold or to enact that
they are owned by the state or, better, that they are assets of
society which are not capable of private appropriation or owner-
ship except under regulations which protect the social interest in
the use and conservation of natural resourcesY2 It is perhaps
still too soon to say how far this tendency will go. But it has
changed the whole water law of the western states, 63 and has pro-
foundly affected the law as to natural gas and oil. 6 4 All these
258 U.S. 250, 42 S.Ct. 301, 66 L.Ed. 604 (1922); State v. Keller, 8 Idaho 699,
70 P. 1051 (1902); State v. Turner, 54 Ohio L.Bull. 409, 410 (1909); Sayre,
Public Welfare Offences (1933) 33 Columbia Law Rev. 55.
62. See the statutes in 1 Wiel, Water Rights (3 ed. 1911) §§ 6, 170; id.
Natural Communism, Water and the Seashore (1933) 47 Harvard Law Rev.
425; Ex parte Bailey, 155 Cal. 472, 101 P. 441, 31 L.R.A.,N.S., 534 (1909);
Geer v. Connecticut, 161 U.S. 519, 16 S.Ct. 600, 40 L.Ed. 793 (1896); Mis-
souri v. Holland, 252 U.S. 416, 434, 40 S.Ct. 382, 384, 64 L.Ed. 641, 11 A.L.R.
984 (1920).
63. Water Code of Washington (1913) §§ 1, 2; Graves v. Dunlap, 87 Wash.
648, 152 P. 532, L.R.A.1916C, 338 (1915). See also recent decisions as to flood
water. 1 Wiel, Water Rights (3 ed. 1911) § 347; Gallatin v. Corning Irr. Co.,
163 Cal. 405, 126 P. 864 (1912).
64. Walls v. Midland Carbon Co., 254 U.S. 300, 41 S.Ct. 118, 65 L.Ed. 276
(1920); Champlin Rfg. Co. v. Corporation Commission of Oklahoma, 286 U.S.
The End of Law
things mean that in a crowded world the social interest in the use
and conservation of natural resources is valued higher than those
social interests which led the last century to insist exclusively in
this connection upon individual free self assertion and individual
interests of substance.
7. INSISTENCE UPON THE INTEREST OF SOCIETY

WITH RESPECT TO DEPENDENTS.
Recently legislation and to some extent judicial decision has
changed the whole aspect of the law with respect to parent and
child. Courts no longer make the natural rights of parents with
respect to children the chief basis of their decisions.6 5 The indi-
vidual interests of parents, which used to be almost the one thing
regarded, has come to be almost the last thing regarded as com-
pared with what courts call the interest of society, i. e. the social
interest in dependents.66 The individual interest of the child is
thought of as the interest of society in the full development of
the child. The social interest in social institutions, of which the
family is one of the most important, and the social interest in the
protection and education of dependents are controlling considera-
tions.6 7 In other words, here, too, we are thinking in terms of
social rather than of individual interests.
210, 52 S.Ct. 559, 76 L.Ed. 1062 (1932); Railroad Commission of Texas v.

Rowan & Nichols Oil Co., 311 U.S. 570, 61 S.Ct. 346, 85 L.Ed. 358 (1941);
Rinehart, Conservation of Natural Resources and Legal Control (1934) 18
Minnesota Law Rev. 168.
65. The doctrine and attitude of the courts in the last century is well
brought out in Mark Twain's satirical account of the attempt to have a guard-
ian appointed for Huckleberry Finn.
66. See the English Guardianship of Infants Act (1925) § 1.
67. Mack, The Juvenile Court (1909) 23 Harvard Law Rev. 104; Flexner,
Juvenile Courts and Probation (1914) 9, 68; Eliot, The Juvenile Courts (1914)
89, 90; Young, Social Treatment in Probation and Delinquency (2 ed. 1952)
chaps. 8-13; Polish Draft Code on Juvenile Courts, French transi. in Recueil
[ 450 ]
8. A TENDENCY TO HOLD THAT PUBLIC FUNDS

SHOULD RESPOND FOR INJURIES TO INDIVIDUALS BY
68
PUBLIC AGENCIES.
This tendency has been strong in civil-law countries. It be-

gan in France, where the state assumed the liability of school
teachers for injuries done by pupils and has been extended wide-
ly.69 Also there has been much legislation to provide indemnity
for cases of conviction of the innocent.70 Compare also a tend-
ency to hold municipal corporations more widely and to break
down the distinction between their corporate and their govern-
mental activities.71 In the same direction, liability is coming to
des projets des lois de la Revue Polonaise de legislation civile et criminelle, no.
1; Cardozo, J. in Loucks v. Standard Oil Co., 224 N.Y. 99, 103-106, 120 N.E.
198, 199, 200 (1918); Gothard v. Lewis, 235 Ky. 117, 29 S.W.2d 590 (1930);
Oliver v. Birmingham Omnibus Co., [1933] 1 K.B. 35; Note (1928) 42 Har-
vard Law Rev. 112-115. But see McReynolds, J. in Pierce v. Society of
Sisters, 268 U.S. 510, 535, 45 S.Ct. 571, 573, 574, 69 L.Ed. 1070, 39 A.L.R. 468
(1925).
English Guardianship of Infants Act (1925) § 1; New Zealand Family Pro-
tection Act (1908); Newman v. Newman, [1927] New Zealand Law Rev. 418;
Note (1929) 45 Law Quart.Rev. 378; Note (1935) on statutory rights of pre-
termitted grandchildren, 44 Yale Law Journ. 842.
Magnussen, Norwegian Law of Illegitimacy (1918) U. S. Children's Bureau,
Leg. Set no. 1, publ. no. 31; Arizona Laws (1921) chaps. 114, 238.
68. Maguire, State Liability for Tort (1916) 30 Harvard Law Rev. 20;
Borchard, State Indemnity for Errors of Criminal Justice (1912); Crane,
Jurisdiction of the U. S. Court of Claims (1920) 34 Harvard Law Rev. 161,
163-165, particularly 165 and citations; Borchard, Government Liability in
Tort (1924) 34 Yale Law Journ. 1, 129, 229, 36 id. 1, 757, 1039, 28 Columbia
Law Rev. 577, 734. See Fowler v. City of Cleveland, 100 Ohio St. 158, 126
N.E. 72, 9 A.L.R. 131 (1919); Aldrich v. City of Youngstown, 106 Ohio St.
342, 140 N.E. 164, 27 A.L.R. 1497 (1922); Augustine v. Town of Brant, 249
N.Y. 198, 205, 163 N.E. 732, 734 (1928).
69. 2 Planiol, Trait 6l;mentaire de droit civil (11 ed. 1932) no. 910, 3.
70. See Borchard, Convicting the Innocent (1932).
71. Osipoff v. City of New York, 286 N.Y. 422, 56 N.E.2d 665 (1941) holding
that a driver of a truck on the city streets assaulted by employees of the city
[ 451]
The End of Law
be imposed on charities, hospitals, and colleges for torts of their

servants and agents . 72 The tendency the world over, as between
the public and the individual who has been injured by the oper-
ation of governmental machinery or public institutions, is to
shift the loss to the public instead of leaving it to rest on the
luckless individual who happens to be hurt. We are all of us to
bear the losses incident to the operation of agencies maintained
for the benefit of all.
9. REPLACING OF THE PURELY CONTENTIOUS

THEORY OF LITIGATION BY ONE OF ADJUSTMENT OF
3
INTERESTS.
This tendency is brought out especially in the recent develop-

ment of the declaratory judgment. But it may be seen every-
where in recent legislation and judicial rule-making as to pro-
74
cedure.
engaged in repairing the pavement when he prevented one of them from en-
tering his truck to drive it along the edge of the road where it might be dam-
aged could recover from the city for the assault. On pp. 428-429 there is a
long quotation from a text writer: "The immunity of the city for torts com-
mitted by its officers and servants within the scope of their undertakings is
much more the result of archaic notions of the 'nature' of the state and sov-
ereign than of modern social policy, and is, therefore, completely inconsistent
with modern tendencies in the law."
72. Welch v. Frisbie Memorial Hospital, 90 N.H. 337, 9 A.2d 761 (1939);
President and Directors of Georgetown College v. Hughes, 76 U.S.App.D.C. 123,
130 F.2d 810 (1942); full discussion in note to this case in 27 A.L.R. 29;
Haynes v. Presbyterian Hospital, 241 Iowa 1269, 45 N.W.2d 151 (1950); Noel
v. Menninger Foundation, 175 Kan. 751, 267 P.2d 934 (1953); Pierce v. Yakima
Valley Hospital Ass'n, 43 Wash.2d 162, 260 P.2d 765 (1953).
73. Munch-Petersen, The Law of Procedure from a Social Point of View
(1927) 5 N.C.Law Rev. 321, published under the title of The Social Aspect of
Procedure from a European Point of View (1927) 11 Minn.Law Rev. 624.
74. Pound, The Causes of Popular Dissatisfaction with the Administration
of Justice (1906) 29 Rep.Am.Bar Ass'n 395, 404-406; 1 Wigmore, Evidence (3
ed. 1940) § 21; 2 id. § 1503; 4 id. § 2251; Arnold, Trial by Combat and the
New Deal (1934) 47 Harvard Law Rev. 913; Kohler, Philosophy of Law (trans].
[ 452 ]
10. READING OF REASONABLENESS INTO THE OB-

LIGATION OF CONTRACTS-equitable-izing of the terms,
as fixed by the parties.
This tendency may be seen particularly in moratorium and
deficiency judgment legislation, especially in extension of the lat-
ter beyond the emergency for which it was originally enacted and
making the relaxation of the creditor's powers permanent. 75 It.
should be compared with the tendency to make over contracts and
transactions in seventeenth and eighteenth-century equity (e. g.
in specific performance and in precatory trusts) and with the
modern Roman law reading of good faith into all legal transac-
tions. 76 These are phenomena of the stage of equity and natural
law. Recent examples of recurrence to such treatment of the
terms agreed on by the parties are the New York doctrine as to
conditions precedent requiring certificate or satisfaction of an
architect or other representative, 77 the turning of unilateral con-
tracts, where acceptance calls for a series of acts, into bilateral
contracts, 78 and the doctrine of the Supreme Court of the United
States that all contracts are made subject to the protective pow-
er of the state, as an implied reservation, and so statutes which
reasonably exercise this reserved power do not impair the obliga-
by Albrecht, 1914) 262; Pound, Some Principles of Procedural Reform (1910)

4 Ill.Law Rev. 491, 498-505; id. Canons of Procedural Reform (1926) 51 Rep.
Am.Bar Ass'n. 290, 300-301; id. Organization of Courts (1940) 253-254; Millar,
Notabilia of American Civil Procedure 1887-1937 (1937) 50 Harvard Law Rev.
1017, 1067-1070.
75. White v. Wielandt, 259 App.Div. 676, 680, 681, 20 N.Y.S.2d 560, 564-566
(1940).
76. E. g. the maxim tous 1e8 contrats sont de bonne foi. Dereux, Interpre-
tation des actes juridiques privds (1905) 204-205.
77. 2 Williston, Contracts (2 ed. 1936) § 794.
78. 1 id. §§ 60, 60a.
[ 453 ]
The End of Law
tion. 9 Compare also the power of the judges under recent Ger-
man legislation to make over contracts in case of frustration or of
economic superiority of one of the parties, 0 and the growing
importance of the doctrine rebus sic stantibus in international
law.""
11. INCREASING LEGAL RECOGNITION OF GROUPS

AND ASSOCIATIONS AS LEGAL UNITS instead of ex-
clusive recognition of individuals and of certain histori-
cal organizations and business devices as their ana-
logues."s
Examples may be seen in regimes of collective bargaining,
in recent legislation as to labor relations, in the corporative state
(a politically organized society in which the unit is the occupa-
tional group), and in recent legislation as to industrial relations
83
in Continental Europe.
79. Home Building and Loan Ass'n v. Blaisdell, 290 U.S. 398, 54 S.Ct. 231,
78 L.Ed. 413, 88 A.L.R. 1481 (1934).
80. Stoll, Die Lehre von den Leistungsst6rungen (1936) 6-12, and appendix,
§§ 24, 33, pp. 137-138, 142.
81. See 1 Oppenheim, International Law (5 ed. 1937) 738-745.
82. Ehrlich, Fundamental Principles of the Sociology of Law (transl. by
Moll, 1936) chaps. 2, 3.
83. Magruder, A Half Century of Legal Influence Upon the Development
of Collective Bargaining (1937) 50 Harvard Law Rev. 1071; National Labor
Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81
L.Ed. 893, 108 A.L.R. 1352 (1937); Note, The Present Status of Collective La-
bor Agreements (1937) 51 Harvard Law Rev. 520; Jaffe, Law Making by Pri-
vate Groups (1937) 51 Harvard Law Rev. 201.
Great Britain, Ministry of Labor, 1 Report on Collective Agreements Be-
tween Employers and Workpeople in Great Britain and Northern Ireland
(1934); Foenander, Towards Industrial Peace in Australia (1937) 9-11.
Barassi, Diritto sindicale e corporativo (1934); Coniglo, Lexioni di diritto
corporativo (2 ed. 1934); Mazzoni, L'ordinamento corporativo: Contributo alla
[ 454 ]
12. A TENDENCY TO RELAX THE RULES AS TO

TRESPASSERS.
The older doctrine was that a trespasser took the risk of in-
jury by what was going on upon the premises on which he tres-
passed and of the condition of the premises. The occupier of the
premises was liable only for inflicting an intentional injury upon
him or for such wanton or wilful negligence as to amount to in-
tentional injury.84 At first, there was a tendency to require the
occupier to exercise due care not to injure a perceived or actually
anticipated trespasser. Next this requirement came to be extend-
ed to unperceived trespassers who might have been perceived
with due care and then by some courts to trespassers whose
wrongful presence might have been anticipated by the exercise
of due care. Also, in more than one connection the occupier is in
formulazione di una domestica del diritto corporativo (1934); Cioffi, Istituzioni

di diritto corporativo (1935); Cesarini Sforza, Curso di diritto corporativo (4
ed. 1935); Pergolesi, Istituzioni di diritto corporativo (2 ed. 1935); Chiarelli,
Lo stato corporativo (1936); Zanelli Quarantini, Le fonti del diritto corpora-
tivo (1936); Lescure, Le nouveau r6gime corporatif Italien (1934); Pitigliani,
The Italian Corporative State (1933).
Aun6s Pdrez, Principios de derecho corporativo (1929); Caballero, La legis-
laci6n vigente sobre organizaci6n corporativa nacional (1929); Aun6s Pdrez,
La organizaci6n corporativa y su posible desenvolvimiento (1929); id. Estudios
de derecho corporativo (1931); Zancada, Programa de derecho corporativo
(1931).
Florinsky, Fascism and National Socialism (1936) chap. 5; 1 Gesetz zur
Ordnung der nationalen Arbeit, 1 Reichsgesetzblatt (1934) 45; Muenz, Das
Gesetz zur Ordnung der nationalen Arbeit (1934); Pelcovits, The Social Honor
Courts of Nazi Germany (1938) 53 Political Science Quart. 350. For the older
regime of collective bargaining in Germany see Oertmann, Deutsches Arbeits-
vertragsrecht (1923).
84. Maynard v. Boston & M. R. Co., 115 Mass. 458 (1874); Grand Trunk R.
Co. v. Barnett [1911] A.C. 361; Sheehan v. St. Paul & D. R. Co., 76 F. 201
(C.C.A.7th, 1896); Lary v. Cleveland, etc., R. Co., 78 Ind. 323 (1881); Buch v.
Amory Mfg. Co., 69 N.H. 257, 44 A. 809 (1887); Frost v. Eastern R. Co., 64 N.H.
220, 9 A. 790 (1886).
[ 455]
The End of Law
effect bound to make his premises safe for trespassers.8 5 Again,

the English cases and an older American case were strict about
finders who took chattels embedded in the soil and denied a right
of possession to a trespasser who found something while tres-
passing.86 Some recent American cases seem to allow the tres-
passer all the rights of a finder.8 There are signs of a like re-
laxation in the rules as to expenditure of labor upon another's
materials so as to make a new species. An older leading case,
following the Roman law, refused to award the new thing to the
maker where he was a wilful wrongdoer. 8 Also it was long laid
down that where a wilful wrongdoer intentionally mixed his own
property with that of another in an undistinguishable mass or
mixture, the whole would be awarded to the innocent party, the
wilful trespasser losing all interest.8 9 Both propositions are be-
ing much modified or relaxed.90
Interpretation of these changes which have been

going on in the present century belongs to subsequent
chapters.
85. As to the present view in this country on these points, see 2 Restatement
of Torts, §§ 334-339.
86. South Staffordshire Water Co. v. Sharman, [1896] 2 Q.B. 44; Elwes v.
Brigg Gas Co., 33 Ch.D. 562, 568 (1886); Barker v. Bates, 13 Pick. (Mass.) 255
(1832).
87. Weeks v. Hackett, 104 Me. 264, 71 A. 858, 19 L.R.A.,N.S., 1201 (1908);
Groover v. Tippins, 51 Ga.App. 47, 179 S.E. 634 (1935); Gaither v. Jones (1935)
in Warren, Cases on Property (2 ed. 1938) 129.
88. Silsbury v. McCoon, 3 N.Y. 379 (1850).
89. 2 Blackstone, Commentaries (1765) 405; Stephenson v. Little, 10 Mich.

433 (1862); The Idaho, 93 U.S. 575, 23 L.Ed. 978 (1876).
90. Arnold, The Law of Accession of Personal Property (1922) 22 Columbia

Law Rev. 103; Somers v. Kane, 168 Minn. 420, 210 N.W. 287 (1926).
[ 456 ]
§ 36. WHAT OF A NEXT STAGE-A LAW OF

THE WORLD?
A significant feature of the development of law in
the present century is a giving up of the extreme localism
of the Anglo-American lawyer of the nineteenth century.
There was then and long had been a cult of local law. In-
deed it seemed to be held as a matter of course that the
law of the time and place had an all sufficient basis in the
local political sovereignty and could be thought of solely
in terms of that sovereignty. Its political independence
explained and justified itself and all its details.
A change has come gradually and then increasingly
in the present century. Commercial transactions have
always crossed political boundaries. As Jitta put it, a
sale is a sale whether at Amsterdam or at New York.
Story had written upon the conflict of laws in 1834. But
it seemed to be felt after him that such was the force of
the idea of local political independence that the law of
conflict of laws was a matter of local law in each political
entity. It was not till 1896 that by local uniform legisla-
tion it was no longer a matter of course that a check
drawn in Nebraska upon a bank in Illinois, endorsed and
delivered to a holder in Iowa and sent for collection to
Chicago, was governed by three different laws in the or-
dinary course of negotiation and payment. Conflict of
laws as something more than local law did not find a
place in the curriculum of American law schools gener-
ally until the present century was half over. Interest
[ 457 ]
The End of Law
in universal ideas and ideals did not become general in

our law schools until the present decade.
English and American analytical jurisprudence has
done harm by inculcating an idea of law as only an ag-
gregate of laws and of a law as a precept attaching a
definite detailed legal consequence to a definite detailed
fact or state of facts. Laws, without more, are instru-
ments of tyrants and dictators. They may be laid down
and applied arbitrarily. But on the other hand they may
be instrumentalities of a system of orderly application
of the force of a politically organized society in accord-
ance with ideals of justice and a technique of furthering
principles made starting points for reasoning. Thus
they are directed to a reasoned orderly adjustment of re-
lations and guiding of conduct in civilized society.
With the expansion and unification of the economic
order a chief problem of the science of law will be to at-
tain and maintain a due balance between the universal
and the local. In the science of politics it will be a prob-
lem of adjusting a general ordering of society as a whole
-and local self-government. In jurisprudence it is one
of universal principles, i.e. starting points for legal rea-
soning, for guiding the general ordering of relations and
conduct of life in society on the one hand, and, on the
,other hand, prescribing of detailed rules adapted to local,
ethnic, geographical, historical, and economic conditions.
The two fields are quite distinct but merge along a bound-
[ 458 ]
ary not easy to draw with exactness. There is a tend-

ency to stress general principles or detailed rules along
the boundary according to historically drawn lines of the
time and place. Hence detailed legislation shaped to
local modes of thought of the past may hamper judicial
working out and application of principles, while, on the
other hand, judicially found and formulated principles
may confuse the application of salutary rules for local
administration. Working out a theory of the relation
of local legislation and administration to universal prin-
ciples of law for a unified world may become the compel-
ling task of the jurists of tomorrow.
It is significant that reliance upon judicial discovery
of application of reason to experience is superseding the
political idea of necessary exclusive legislative prescrib-
ing of rules, drawn from the law books of the later Ro-
man empire, given currency in the era of political abso-
lutism in the seventeenth century, and taken over in the
political theory of the rise of popular government. The
agencies through which a people governs itself have dif-
ferent functions. No one of them is the successor of the
Roman emperor. The current revision of the French
Civil Code omits the provisions forbidding ascertainment
of the law by course of judicial decision, and all the recent
codes provide for the materials and procedures by which
the law is to be ascertained in the course of judicial de-
cision.
[ 459 ]
Chapter 8
in Juristic Thought
§ 37. Philosophical Ideas of the End of Law.

§ 38. Greek Juristic Thought.
§ 39. Roman Juristic Thought.
§ 40. Medieval Juristic Thought.
§ 41. The Protestant Jurist-Theologians.
§ 42. The Spanish Jurist-Theologians.
§ 43. The Seventeenth Century.
§ 44. The Eighteenth Century.
§ 45. The Nineteenth Century.
§ 46. The Twentieth Century.
[ 461]
Chap te, 8
in Juristic Thought
Section 37
HILOSOPHICAL IDEAS OF THE END OF

LAW.1 Having attempted to mark the course
which the development of law has actually
taken in different periods of legal history,
with respect to the end for which the legal order and law
exist, we turn now to the course which juristic thinking
has taken during these same periods as to the direction
in which law ought to develop and what should be regard-
ed as the end of law. In other words, from legal history,
the end of law as developed in legal precepts and doc-
trines, we turn to philosophy of law, the end of law as
developed in juristic thinking. And here we may begin
with the Greeks. For if law in a modern or professional
sense begins with the Romans, philosophy of law (as a
philosophy of social control) begins with the Greeks.
What went before them is too remote for the present pur-
L. Pound, The End of Law as Developed in Juristic Thought (1914) 27 Harv.

L.Rev. 605, 30 Harv.L.Rev. 201; id. Twentieth Century Ideas as to the End of
Law (1934) Harvard Legal Essays, 357-375; Yntema, The Rational Basis of Le-
gal Science (1931) 31 Columbia Law Rev. 925, 934-955; Cairns, Legal Phi-
losophy from Plato to Hegel (1949).
[463 ]
The End of Law
pose. What went after them was largely shaped by them.

Since the Romans took their philosophical ideas from the
Greeks, the Greek idea of the end of social control not
only governed the Roman world, but in consequence in
large measure governed the medieval world.
§ 38. GREEK JURISTIC THOUGHT 2 It has

been seen that the primitive answer to the question as to
the end of law was simply that law is a device to keep the
peace. The legal order exists to keep the peace. What-
ever serves to avert private vengeance and prevent pri-
vate war is an instrument of justice. Greek philosophy
soon got beyond this conception, and put in its place an
idea of the legal order as a device to preserve the social
status quo, to keep each man in his appointed groove and
thus prevent friction with his fellows. The virtue on
which Greek philosophers insist is sophrosyne-knowing
the limits Nature (i.e. the ideal) fixes for human conduct
and keeping within them. The vice against which they
declaim is hybris-willful bound-breaking, willful trans-

§§ 13-16; Hildenbrand, Geschichte und System der Rechts- und Staatsphiloso-
phie (1860) §§ 1-121; Dunning, History of Political Theories, Ancient and
Medieval (1913) chaps. 2, 3.
Aristotle, Nicomachean Ethics, bk. v (convenient transl. by Brown in Bohn's
Libraries); id. Politics, especially bk. vii (Jowett's transl. 1885-in Welldon's
transl. it stands as bk. iv); Plato, Gorgias 470, 477, 504; id. Republic, bks. i,
ii, iv; id. Laws, bks. iii, iv, vi (Jowett's transl.).
Myres, Political Ideas of the Greeks (1927) lect. 4; Mcllwain, The Growth of
Political Thought in the West (1932) chaps. 1-3; Sauter, Die philosophischen
Grundlagen des Naturrechts (1932) chaps. 1-2,
[464 ]
8. Juristic Thought
gression of the socially appointed bounds. Justice, ac-

cordingly, was regarded as maintenance of the social
status quo, and philosophers were busied in planning an
ideal society in which everyone was put in the right
place, to be kept there thenceforth by the law.'
The Pythagoreans spoke of anarchy as the greatest evil,
since it left the social order without security, and compared jus-
tice to medicine, holding that the legislative and judicial func-
tions, whereby the life of the state is kept in a normal course,
were the analogues of hygiene and medicine, whereby the normal
course of bodily life is secured or restored. 4 Plato brings out this
idea fully. Speaking of the ideal state he says:
"Shall we not find that in such a city . . . a shoemaker
is only a shoemaker, and not a pilot along with shoemaking; and
that the husbandmanY is only a husbandman, and not a judge
along with husbandry; and that the soldier is a soldier, and not a
money-maker besides; and all others in the same way?" 5
Again:
"But when the cobbler or any other man whom nature de-
signed to be a trader . . . attempts to force his way into the
class of warriors, or a warrior into that of legislators or guardi-
3. E. g. the doctrine of the Pythagoreans that every citizen should have

his special place assigned to him. Stobaeus. Florilegium, 43, 49 (Aristoxenus).
4. Iamblichus, Vit. Pythagor. 101. Compare also the ethical theory of Her-
aclitus. We are told that he held self-will was to be suppressed, and said that
the citizen should fight more strenuously for the laws which achieved this than
for the walls of his city. Diogenes Laertius, ix, 2. Likewise, Plato considered
lawlessness the greatest of evils. Gorgias, 470, 477, 504. In the Gorgias also
we find the comparison of the function of justice under the legal order in the
life of the state to that of hygiene and medicine in the individual bodily life.
Gorgias, 477-478.
5. Republic, iii, 397-398.
1 Pound Jurisprudence-[0 [ 465 1

The End of Law
ans, for which he is unfitted; or when one man is trader, legis-

lator and guardian all in one, then I think you will agree with me
that . . . this meddling of one with another is the ruin of
the state. . . . As there are three distinct classes any med-
dling of them with one another or the change of one into the
other, is the greatest harm to the state and may most justly be
termed evil doing." 6
In Plato's ideal state the individual is not to find his own

level for himself by free competition with his fellows. Everyone
is to be assigned to the class for which he is determined to be best
fitted. Thus there will be a perfect harmony and unity both in
the state and in every individual.7 Hence a universal genius who
could not be kept to his assigned place was not to be tolerated. 8
The Stoic doctrine of conformity to nature or conformity to uni-
versal reason came to much the same practical result.9 Aristotle
believed that the individual man, apart from the state, became the
"most malignant and dangerous of beasts," so that he could "real-
ize his moral destiny only in the state." 10 Accordingly, interests
6. Id. 434.
7. Ibid. Elsewhere in the Republic we are told that justice consists in
every part of the soul fulfilling its own proper function and not taking up the
function of another. Republic, 433 a, 443, c, d, e. Also that "justice is doing
one's own business and not being a busybody." Republic, 433. In the Republic
and the Laws "King Nomos" (law) is "to fix by unchangeable authority what
shall be the orthodox type of character and to suppress all the varieties of
emotion and intellect except such as will run into a few predetermined
moulds." 2 Grote, Plato, 138.
8. Plato, Republic (Jowett's transl. 1885) 398 a.
9. Epictetus, Diss., ii, 5, § 4; ii, 10, § 1; iv, 7, § 2. The Stoic t6 icaOqfKov
which might well be rendered duty, consists in denying the individual natural
impulse. In ethical theory this might lead to the view of Epictetus that one
should not be a citizen. In political and juristic theory it led to repression of
Individual self-assertion. See I Erdmann, History of Philosophy (Hough's
transl. 1910) 190-191.
10. Politics, 1, 1, 9.
[466]
8. Juristic Thought
to be protected could exist only between those who were free and
equal before the state.11 Justice demanded an unanimity in
which there would be no violation of mutual claims or spheres of
authority, i. e. in which each would keep within his appointed
sphere ;12 and right and law took account primarily of relations
of inequality in which individuals are treated in proportion to
3
their worth, and only secondarily of relations of equality. The
exhortations of St. Paul in which he calls upon everyone to exert
himself to do his duty in the class in which he finds himself placed
bring out this same idea. 14
§ 39. ROMAN JURISTIC THOUGHT.15 Roman

lawyers undertook to determine the authorities and lib-
erties and capacities involved in legal personality and
position before the law. In doing this they were guided
by the Greek ideal of the legal order as a preserving of
the social status quo. As Courcelle-Seneuil puts it, the
11. Politics, i, 13; i, 3-7; iii, 1; iii, 4-5; iv, 11.
12. Nicomachean Ethics, viii, 7, 2-4. See especially section 3: "For equali-
ty in proportion to merit holds the first place in justice."
13. Nicomachean Ethics, viii, 9. Compare Plato, Laws, 757.
14. Eph. 5: 22 ff., and 6:1-5. See also 1 Peter, 3:1-6, and compare St.
Paul's Epistle to Philemon, sending back the runaway slave Onesimus, al-
though entreating the master to treat him as a brother.
§§ 17-20; Hildenbrand, Geschichte und System der Rechts- und Staatsphil-
osophie (1860) §§131-135, 143-147; 1 Voigt, Das jus naturale aequum et bonum
und jus gentium der Riimer (1856) §9 16, 35-41, 44-64, 89-96; Gumplowicz,
Geschichte der Staatstheorien (1905) §9 40-43; Willoughby, Political Theories
of the Ancient World (1903) chaps. 14-19; 1 Carlyle, History of Medieval Po-
litical Theory (1903) chaps. 1-7; Dunning, Political Theories, Ancient and
Medieval (1913) chap. 4.
Cicero, De Republica, De Legibus, De Officiis; Seneca, De Clementia, DE.
Otio, De Beneficils, III; Inst. i, 1; Dig. 1, 1.
[ 467 ]
The End of Law
Roman ideal was a stationary society, corrected from

time to time by a reversion to the ancient type.16 Cicero
finds the basis of social control not in enactment but in
the moral spirit which is intrinsic in nature, i.e. in the
ideal of things." But we must not confound this lex
naturae or lex naturalis with what we now think of as
natural law. Its basis is the conception that everything
has a natural (i.e. ideal) principle to be deduced from
its characteristics and ends. By this is meant adaptation
to human ends. Thus it is the nature of a horse not to
run wild but to be owned by a man. From this naturalis
ratio a natural law may be reached.18 This natural law
involves an appeal to substance from form; an appeal
to rational principles against traditional forms and arbi-
trary rules. 9 The natural law of the seventeenth cen-
tury, appealing to the reason of the individual against
authority, and the natural law of the eighteenth century,
appealing to the reason of the individual against society
and the state, are very different things. A cardinal prin-
ciple of Cicero's theory of justice is respect for rights ac-
quired under the social order."0
16. Courcelle-Seneuil's parallel between the Roman and the modern ideal
may be found in English in Guyot, Principles of Social Economy (Lepping-
ton's transl. 2 ed. 1892) 299. See also Courcelle-Seneuil, Pr6paration t l'dtude
du droit (1887) 99, 396.
17. De Republica, ii, 1; De Legibus, ii, 4.
18. 1 Voigt, Das jus naturale aequum et bonum und jus gentium der Rimer
(1856) 273-274.
19. Compare Gains, 1, 190; id. 3, 98.
20. "All justice (aequitas)is destroyed if one is not permitted to hold his
own." De Officlis, ii, 22, § 78.
[ 468]
8. Juristic Thought
This idea appears also in the formula handed down in the

Institutes of Justinian: "Justice is the set and constant purpose
which gives to everyone his own." 21 In other words, the social
system has defined certain things as belonging to each individual.
Justice consists in rendering him these things, and in not inter-
fering with his having and using them within the defined limits.
Another formula in the Institutes expresses the same idea: "The
precepts of right and law are these: to live honorably, not to in-
jure another, to give to everyone his own." 22
This formula would reduce the whole end of law to three
functions: (1) Maintenance of decency and decorum in men's
outward acts, (2) securing of individual interests of personality,
(3) securing of individual interests of substance. Savigny's much
criticized interpretation of this formula seems quite warranted
and brings out its point for our purposes. The first precept, to
live honorably, that is, to preserve moral worth in one's own per-
son so far as external acts go, is represented in the legal system
by the doctrines as to good faith in transactions, by the rules as
to illegality of corrupt bargains, and by the various doctrines
which recognize boni mores and attach consequences to violations
thereof. This part of the formula suggests the stage of undiffer-
entiated law and morals. The second precept, not to injure an-
other, the respecting of another's personality as such, is repre-
sented by those rules and doctrines which give practical effect to
the interest of personality. The third precept, to render to every-
one his own, that is, to respect the acquired rights of other men,
is represented in the rules and doctrines which secure interests of
3
substance.
21. Inst. 1, 1, pr.

22. Inst. 1, 1, 3.
23. 1 Savigny, System des heutigen rhmischen Rechts (1853) § 59, pp. 407-
410. For other views as to the interpretation of these precepts see Affolter,
Das r6mische Institutionen-System (1897) 421-430; Donati, I1 primo precetto
del diritto, "vivere con honest" (1926).
[ 469]
The End of Law
But the insistence on good faith in the first precept main-

tains the security of transactions and also secures interests of
substance, since in an advanced economic order credit is funda-
mental and a large part of wealth consists in promised advan-
tages. Taken as a whole, the formula is a juristic development of
the Greek idea of the end of the legal order, namely, the idea that
its end is to maintain harmoniously the social status quo. It is a
further development of the primitive idea of a device to keep the
peace and it contains a good part of the truth. It is significant
that recent formulas defining the legal order as a Friedensord-
4
nung are coming back in some measure to this idea.
§ 40. MEDIEVAL JURISTIC THOUGHT. 5

Germanic law brought back for a time the primitive con-
ception of merely keeping the peace, with its concomitant
ideas of buying off vengeance, of a tariff of compositions,
and of regulating private war. There is little of conse-
quence for the present purpose until after the revival of
the study of Roman law in Italy in the twelfth century.
Moreover, when legal development begins, the ruling idea
24. See, for example, Kohler, Philosophy of Law (transl. by Albrecht, 1914)
4, 6; id. Einffihrung in die Rechtswissenschaft (5 ed. 1919) § 1. Compare
Levi, Contributi ad una teoria filosofica dell' ordine giuridico (1914) 234-235.
§§ 21-23; Ahrens, Naturrecht (6 ed. 1870) § 12; 1 Stahl, Philosophie des
Rechts (5 ed. 1878) 50-73; Gumplowicz, Geschichte der Staatstheorien (1903)
§§ 51-52; Dunning, Political Theories, Ancient and Medieval (1913) chaps. 5-
10; 2 Carlyle, History of Medieval Political Theory (1903) pt. i, chaps. 1-3,
7, pt. ii, chaps. 2, 3, 7, 12: 111 id. pt. 1, chaps. 2-4, pt. ii, chaps. 1-6; 2 DeWulf,
History of Medieval Philosophy (1926) §§ 285-287; McIlwain, The Growth of
Political Theory in the West (1932) chap. 6; Sauter, Die philosophischen
Grundlagen des Naturrechts (1932) 57-85.
Thomas Aquinas, Summa theologica, i-ii, qu. 90-97, ii-ii, qu. 57-80, 90, 120,
122.
[470]
8. Juristic Thought
is authority. Not only was the Corpus Iuris taken to be

authoritatively binding, so that it could only be interpret-
ed, but in philosophy, authority was held a ground of rea-
son, and church doctrine and reason were held to be one.2
Later the authority of Aristotle was accepted. Hence
the conception of justice developed in Greek philosophy
and Roman law was received as a matter of course. In
the Middle Ages, as in antiquity, we see the idea of an
agency of keeping the peace succeeded by the idea of an
agency of maintaining the social status quo. To Thomas
Aquinas, as to Cicero, to the classical Roman jurists, and
to Justinian, the principle of justice is to give everyone
his own.2 7 What is one's own is determined by the social
order.2
Appeal to reason in support of authority gradually led to an
appeal to reason against authority, and that led to a new con-
ception in philosophy, in theology, in politics, and ultimately in
juristic theory. As a result, the legal order came to be regarded
as existing to secure a maximum of individual self-assertion.
This movement goes along with the social, political and economic
26. 2 Erdmann, History of Philosophy (Hough's transl. 1910) 299. "No fea-
ture of the Greek theory was more elaborately developed by the scholastics
than that which set up unity and permanence as the prime criteria of ex-
cellence in political organization." Dunning, Political Theory, Ancient and
Medieval (1913) 202.
27. Thomas Aquinas, Summa theologica, li-il, qu. 58, art. 1. See the com-
bination of theology with the authority of Justinian's Institutes in Azo, Summa
institutionum, § 19, on Inst. 1, 1 (1563 ed. p. 1069, iustitia quid).
28. See e. g. the doctrines of the Glossators with respect to the nature of
private property. 2 Carlyle, History of Medieval Political Theory (1903) 42-
49.
[471]
The End of Law
changes which mark the transition to the modern world. Thus it

develops with the revival of learning and resulting faith in rea-
son, to become faith in individual reason; with the rise of na-
tions, Spain, France, England, Austria, leading to ideas of the
authority of local sovereigns, as distinguished from universal au-
thority; with the era of discovery and colonization fostering pio-
neer adventurous individualism; with the rise of trade and com-
merce, the consequent breakdown of local economic systems and
rise of competition-something which was not a feature of a re-
lationally organized society; with the breakdown of relational
society and growth of faith in individual free activity. The
movement culminates in the nineteenth century. But the begin-
nings of the change are in philosophy; in the attempt to sustain
authority by reason, in the proposition of Erigena that the teach-
ings of the fathers of the church, which rest on their authority,
were discovered by them with the aid of reason,2 and in the de-
sire of Anselm to prove the doctrines of Scripture and of the fa-
thers through reason, as if there were no revelation, so as to con-
3
vince even the unbeliever.
Another factor was introduced by the revival of the idea of
natural law and the consequent appeal to a divinely ordained
fundamental law against the positive law. And though in
Alexander of Hales, in whose Summa it is first noticeable, 3 1 and
in Thomas Aquinas, who developed it into a detailed theory, 32
natural law has a purely theological basis, the idea was readily
turned to new uses presently by a science of law which had cast
loose from theology. With this to justify him Lord Acton amend-
ed Doctor Johnson's well known saying so as to read that not the
devil but St. Thomas Aquinas was the first Whig.
29. De divisione naturae, i, 69.

30. Cur Deus honmo, preface.
31. ii-ii, qu. 40-53.
32. Summa theologica, i-ii, qu. 91, 93, i-i, qu. 57, 58, 60, art. 5.
[ 472 ]
8. Juristic Thought
Parallel with this theological-philosophical version of nat-

ural law, an idea of a fundamental law developed as a legal doc-
trine. Historically, it is an idea of Germanic law. Throughout
the Germanic law books in the Middle Ages, says Heusler, there
runs the idea that law is "a quest of the creature for the justice
and truth of his Creator." 33 It rejected all notion of arbitrary
will. The doctrine that the will of the sovereign has the force of
a law 3 4 came from Justinian's books. It came into Continental
public law with the rise of the centralized royal government in
France in the sixteenth century, and spread to general legal the-
ory after the reception of Roman law. The Germanic concep-
tion was instead the one expressed in the phrase attributed to
35
Braction-that the King is under God and the law.
The Germanic polity postulated a fundamental law above

and beyond mere will. It conceived that those who wielded au-
thority should be held to account for the conformity of their acts
to that fundamental law. For example, in the Salic law where a
creditor has duly appealed to the Count for justice and the Count
with no sufficient reason fails to act, he has to answer with his
life or redeem himself with his wergeld, that is, he is liable to a
feud or must buy it off with the legally fixed value of his life.
But if he does act pursuant to the appeal and goes beyond en-
forcement of what is due, again he must answer with his life or
redeem himself with his wergeld.36 It is only in England that
this conception developed as the basis of public law; and this
development has been pushed to its furthest point in American
constitutional law. In England, three things led to the common-
33. Heusler, Institutionen des deutschen Privatrechts (1885) § 1.

34. The word is lex (a rule of law) not ius (law).
35. Bracton, f. 74. As to the authenticity of this passage, see Maitland,
Bracton's Notebook (1887) 29, 33; McIlwain, The High Court of Parliament
(1910) 101, 103.
36. Salic Law, tit. 50, § 3.
[473]
The End of Law
law doctrine of the supremacy of law: (1) The establishment of

strong central courts, purporting to administer the common cus-
tom of the whole realm, (2) the strong central administrative
power of the King, and the central organization and authority of
the common-law courts administering justice in his name, and (3)
the medieval formulations of the feudal duties of the King toward
his tenants in chief. 37 These afforded an opportunity for the evo-
lution of a legal doctrine of the legal duties and responsibilities of
those who wield governmental powers. Taken up by Coke in the
seventeenth-century controversies between the courts and the
Crown, this doctrine was fused with the conception of natural law
in American constitutional theory in the eighteenth century.
Juristic thought of the seventeenth and eighteenth centuries,
however, derives from the medieval theological-philosophical nat-
ural law.
Except for the theological-philosophical version of

natural law, the Middle Ages added nothing of moment to
juristic theory. The view of antiquity as to the end of
the legal order was accepted. But the way was prepar-
ing through philosophy for a new conception of justice
which developed in the sixteenth and seventeenth cen-
turies.
§ 41. THE PROTESTANT JURIST-THEOLO-

GIANS.3 s For the jurist the significance of the Reforma-
37. Adams, The Origin of the English Constitution (1912) chap. 5; Pound,
The Spirit of the Common Law (1921) 25-26.
§ 24; 1 Hinrichs, Geschichte der Rechts- und Staatsprincipien seit der Re-
formation (1848) 1-6; Bluntschli, Geschichte der neueren Staatswissenschaft
(1881) chap. 3; Gierke, Johannes Althusius und die Entwicklung der natur-
rechtlichen Staatstheorien (3 ed. 1913) 18-49, 143-162, 321; Gumplowicz, Ge-
[ 4741
8. Juristic Thought
tion is to be found in the change from the Roman idea of

a universal empire and hence universal law to the Ger-
manic idea of a territorial state with a national law. In
law, the Reformation marks a breaking over of Germanic
individualism, long kept back by Roman authority."
Hence, so far as jurisprudence is concerned, the Refor-
mation is a period of clearing away in which the ground
is prepared for the constructive period of the seventeenth
and eighteenth centuries through the separation of phi-
losophy, politics, and jurisprudence from theology and
the establishment of a science of politics. The main pur-
pose of the Protestant jurist-theologians was to throw
over the authority of the church and set up the authority
of the state. Accordingly, the most significant feature
of their work, for the jurist, is their insistence on a na-
tional rather than a universal law; their insistence on
replacing the universal empire of Roman law and canon
law by the civil law of each state. We must bear in mind
what Beseler calls Germanic Kleinstaatismus." This
schichte der Staatstheorien (1903) §§ 60-61, 64-65, 68, 75; Dunning, Political
Theories from Luther to Montesquieu (1913) chaps. 1-3.
Oldendorp, Iuris naturalis gentium et ciuilis Eloay4)-y (1539); Hemmingius
(Hemmingsen), De lege naturae apodictica methodus (1562); Winckler, Princi-
piorum iuris libri V (1615); Johannes Althusius, Politica methodice digesta
(1603; transl. with introduction by Friedrich, 1932).
39. "Authority is in itself a Roman concept." Werner Jaeger, The Problem
of Authority and the Crisis of the Greek Spirit, in Authority and the Indi-
vidual, Harvard Tercentenary Publications (1937) 241. See also Heinze, Auc-
toritas: in Hermes, vol. 60 (1925) 348-366.
40. Volksrecht und Juristenrecht (1843) chap. 4.
[ 475]
The End of Law
led to an ideal of local law, not even national, much less

universal. The legal order was to rest on the authority
of the divinely ordained state, not on an authoritative
universal law.4 All this flowed naturally from the break
with authority which substituted private interpretation
by the individual, each for himself, for authoritative uni-
versal interpretation by the church. The exigencies of
this demand for private interpretation led to a claim of
independence for the state, for the family, and for the
natural man. The logical result in jurisprudence was the
opposition of the abstract man to society which developed
in the juristic thinking of the eighteenth century.
But the reformers themselves did not perceive the atomistic
implications, with respect to jurisprudence and politics, of a
world of self-sufficient individuals. Indeed, the need of opposing
the state to the church, because the Popes had claimed to absolve
Christians from allegiance to rulers who were at difference with
the church, led the reformers to a political doctrine of passive
obedience. 42 Moreover, the period was one of transition from the
strict law, which ignored the moral aspects of conduct, to the
stage of equity and natural law, which identified law and morals.
The strong ethical element in the philosophy of the jurists of the
Reformation and the emphasis which the reformers put on ab-
staining from sinful conduct rather than on repentance therefor,
41. Thus Winckler tells us that lei, and ius are cause and effect, cons tituens
and cons titutum. Principiorum iuris libri V (1615) tit. ii, cap. 1.
42. "Melanchthon was no less severe than Luther toward the rebellious peas-
ants who sought by force to escape from the condition of serfage in which they
were placed by existing laws." Dunning, Political Theories from Luther to
Montesquieu (1913) 15. See the quotations from Luther in Figgis, Studies of
Political Thought from Gerson to Grotius (1907) 241.
[ 476 ]
8. Juristic Thought
cooperated with this identification of law and morals to postpone

the conclusion that the individual conscience was the sole meas-
ure of obligation to obey the law. Even if the Christian needed
only the spirit for a guide, the rest of the world needed the secular
sword of justice, and obedience to Caeser was expressly enjoined
43
in Scripture.
In its implications the doctrine of the reformers led to the
juristic theory of the eighteenth century. But there was much
that must first be cleared away. This clearing process begins
with Melanchthon (1497-1560), who argues that the whole of
natural law may be deduced from the Ten Commandments and
44
from right reasoning as to the nature of man. It goes forward
with Oldendorp in whom we find the beginning of the attempts
at systematic philosophical statement of the bases of law which
we call systems of natural law.45 It makes a significant, perhaps
43. This is the argument in Luther's tract on secular authority. 11 Luther's

werke (1883), Kritische Gesammtausgabe, 245, 252. Cf. 11 Melanchthon,
Opera (ed. Bretschneider and Bindseil, 1834-1860) 451.
44. 16 Opera (ed. Bretschneider and Bindseil, 1834-1860) 424 ff. See 1 Hin-
richs, Geschichte der Rechts- und Staatsprincipien seit der Reformation (1848)
18-19.
The subsequent history of this twofold basis in authority and in reason is
interesting. Grotius, after adopting the divorce of jurisprudence from theology,
reverts to the theological and puts natural law on two bases: (1) eternal rea-
son, (2) the will of God who wills only reason. Grotius, De lure belli ac pacis,
prolegomena (1625) §§ 11, 12. The same twofold basis may be seen in Black-
stone, along with the Aristotelian distinction between those things which are
right or wrong by nature, where the positive law is only declaratory, and
those things which are indifferent by nature, where the positive law finds
its proper field. 1 Blackstone Commentaries (1765) 40-43. With Mr. Justice
Wilson this takes the form of a proposition that God "is under the glorious
necessity of not contradicting himself," and so, in effect, of conforming to the
exigencies of human reason. 1 Works (1804 ed.) 140-141. Croce's comment
on Vico's critique of Grotius is apt: "Vico did not know what to make of a
God set side by side with other sources of morality, or set above them as a
superfluous source for the sources." The Philosophy of Giambattista Vico
(transl. by Collingwood, 1913) 94.
45. Juris naturalis gentium et ciuilis aiacayoy.
[ 477 1
The End of Law
decisive, stride when Hemmingsen attempts emancipation of

jurisprudence from theology, telling us that divine revelation is
not necessary to a knowledge of natural law, 46 asserting that the
firm and necessary ground of a legal system is to be found in the
nature (i. e. rational ideal) and end of the law, 47 and asserting
that the ideas of right and wrong may be worked out by reason
from the nature of man "without the prophetic and apostolic
writings." 48 It gains ground when Winckler seeks to carry out
the juristic program outlined by Hemmingsen. 49 On another side
it is definitely achieved when Althusius, taking up the idea of a
contract between ruler and ruled, which had been a controversial
weapon in the conflicts of temporal sovereigns with the church
during the Middle Ages, uses it as the basis of political theory
and founds the ethical-political natural law which is to govern
juristic thought for the next two centuries. 50
No direct change in the idea of the end of the legal

order took place in this period. Luther thought of ex-
ternal peace and order as the purpose for which law ex-
ists.5 ' Melanchthon found the basis of acquired rights
in the command "Thou shalt not steal," and defined lib-
erty as the condition "in which each is permitted to keep
46. De lege naturae apodictica methodus (1562). The passage referred to

is in the preface. Kaltenborn, Die Vorliiufer des Hugo Grotius (1848) pt. II.
47. De lege naturae apodictica methodus (1564 ed.) C. p. 2; Kaltenborn, pt.
II, 32-33.
48. De lege naturae apodictica methodus (1564 ed.) Q. p. 7; Kaltenborn, pt.
II, 43-44.
49. Principiorum iuris libri V (1615).
50. Politica methodice digesta atque exemplis sacris et profanis illustrata
(1603).
51. Tract von weltlicher Oberkeit, 11 Werke (Weimar ed. 1883) 245, 253. Cf.
11 Melanchtbon Opera, 435.
[ 478]
8. Juristic Thought
his own and citizens are not compelled to do anything

contrary to principles of right and to what is honor-
able." 52 It will be noted that this is not at all the nine-
teenth-century idea of liberty. In other words, to Me-
lanchthon, justice (the end of law) requires respect for
acquisitions and respect for personality.
§ 42. THE SPANISH JURIST-THEOLO-

GIANS.' Just as Comte, in a period of development of
the physical sciences, thought of the universe as governed
by the principles of mathematics and of physics, and the
nineteenth-century sociologists, in the period of Darwin's
influence, thought of it as governed by the principles of
biology, the Catholic writers of the counter-reformation
thought of it as governed by the principles of the then ris-
ing science of jurisprudence. Accordingly, in insisting
upon the Roman idea of universality they did so in a new
way and upon a new basis. The organization of the
church, its system of church law and its penitential sys-
tem had tended in the hands of clerical writers to give a
legal color to both ethics and politics. The spread of
Roman law over Europe had in fact made law all but
universal. A Catholic jurist, therefore, was predisposed
52. See note 44, supra.
53. Figgis, Studies of Political Thought from Gerson to Grotius (1907) lect.
6; Dunning Political Theories from Luther to Montesquieu (1913) 132-149:
Westlake, Chapters on the Principles of International Law (1894) 25--28; Scott,
On the Spanish Origin of International Law (1928).
Soto, De iustitia et iure (1589); Suarez, De legibus ac Deo legislatore (1619).
[479]
The End of Law
to a legal view of the world as Thomas Aquinas had taken

a legal view of the universe, and a Romanist could vouch
everyday fact for a universal view of law. But neither of
these views could be maintained longer upon mere au-
thority. Moreover, the separateness of states was no less
a fact than the universality of Roman law. It was neces-
sary, therefore, to reconcile the general authority of
Roman and canon law as the common law of Christendom
with the independence and equality of separate states.
To effect this reconciliation, the Spanish writers turned
to the idea of natural law and sought to join to a theory of
independent, equal states a theory of natural law from
which all rules of justice of every description derive their
authority and of which Roman law and canon law are
but expressions within their respective fields.
To the Spanish jurist-theologians the law of each state was
not an isolated phenomenon, it was a phase of a universal prin-
ciple by which all things were governed. This appears particu-
larly in the treatise of Suarez on laws and on God as a legisla-
tor.M In this treatise there is at first sight no practical distinc-
tion between natural law and positive law. Legalist ethics and
ethical law go hand in hand. The actual Spanish law, doctrines
of the Roman law which he thinks should be, although they are
not, in force in Spain, practical morality and the dictates of rea-
54. "For it appears that the reason of every one has the force of law at
least to the extent of the dictates of natural law. Therefore, at least in natural
law it is not a necessary condition that it be enacted by public authority."
1, 8, § 1. "It is of the reason and essence of law that it prescribe what is just.
The assertion is not only certain in religion but clear in natural reason."
i, 9, § 2.
[480]
8. Juristic Thought
son and conscience combine in a universal system. 55 The identifi-

cation of law and morals is obviously an incident of the period of
infusion of morals into law which was in full vigor at the time.
But the new version of universality was an original contribution
of the first moment. For one thing, it made international law
possible. If international law was the work of the law-of-nature
school after Grotius, it had its roots in this period and the Catho-
lic jurists of the counter-reformation were first among its fore-
runners. Our chief concern, however, is with their relation to
the abstract individualist idea of legal justice which began to de-
velop in the seventeenth century and culminated in the nineteenth
century.
The foundations of a new science of law were laid by recon-

ciling the modern and the medieval, by recognizing the political
fact of national law and adjusting it to the medieval ideals of
unity and the Germanic conception of law as an eternal verity.
The skillful combination of modern ideas with conservatism which
characterizes the work of the Jesuit jurists enabled them to effect
this reconciliation. Law was eternal. Only it was not eternal
because of the authority which imposed it (i. e. the academically
postulated empire) or by which it imposed itself, but because it
expressed eternal principles of justice.56 The old and the new
were fitted to this conception. Recognizing the facts of the politi-
cal world of their time, they conceived of individual states, and
thence ultimately of individual men, as equal, since states and
men were able to direct themselves to conscious ends and thus
55. Yet Suarez saw the insufficiency of reason to demonstrate to each man
all the rules required for organized society and hence laid down that society
might supply the deficiency by declaratory legislation and by customs not in
contravention of nature. ii, 19, § 9; i, 8, § 2; xii, 13. See Westlake, Chapters
on the Principles of International Law (1894) 25-28.
56. Soto, De iustitia et iure (1589) i, q. 5, a. 2.
The End of Law
their equality was a principle of justice. 57 Holding to the idea

of the unity and universality of law as a body of eternal princi-
ples, they were led to the conception of restraints by which this
equality was maintained and in which it might be expressed.
Two types of such restraints suggested themselves, restraints
upon states and restraints upon individuals, and in an age of per-
sonal sovereigns these types were taken to be generically one.
The restraints upon states, limitations upon their activities which
they might not overpass, since they were imposed by eternal prin-
ciples, might (1) fix the limits of the activities of sovereigns in
their relations with each other,58 giving us international law, or
(2) the limits of the activities of sovereigns in their relations
with their subjects, giving us political theory. 59 The restraints
upon individuals had the same basis in eternal principles of uni-
versal law and were of the same nature. They (3) fixed the lim-
its of individual activity in the relations of individuals with each
other, giving us juristic theory." Accordingly, in the next two
centuries these three subjects are always taken up together. The
treatises on the law of nature and nations characteristic of the
seventeenth and eighteenth centuries, are treatises on interna-
tional law, on politics, and on philosophical jurisprudence. The
three were not separated until the nineteenth century.
Comparing the juristic theory so developed with the

juristic theory of antiquity, it will be perceived that the
57. To a Spanish writer, after the absolutism achieved by Charles V, the

analogy of state and individual man was palpable. See Pound, Philosophical
Theory and International Law (1923) 1 Bibliotheca Visseriana, 73, 76-80.
58. 1 Franciscus de Victoria, Relectiones theologicae (1557) 375 ff. Cf.
I id. 359 ff.
59. Soto, De lustitia et iure (1589) iii, q. 3, a. 2; Suarez, De legibus (1619)
iii, 35, § 8, iii, 9, § 4, iii, 11. The argument for separation of powers in the
passage last cited is noteworthy.
60. Suarez, De legibus (1619) ii, 12.
[ 482]
8. Juristic Thought
conception of the end of law has undergone a funda-

mental change. The theory of antiquity thought of the
legal order as a limiting of the activities of men in order
to keep each in his appointed place and to preserve the
social order as it stands. The theory which begins with
the Spanish jurist-theologians thinks, instead, of a limit-
ing of men's activities in the interest of other men's activ-
ities because all men have freedom of will and ability to
direct themselves to conscious ends and so are equal.
Thus, instead of a regime of maintaining a social status
quo, the legal order begins to be thought of as a regime of
maintaining a natural (i. e. ideal) equality. But it is an
equality of action not of condition.
§ 43. THE SEVENTEENTH CENTURY.6 1 It
is usual to fix the date of the new era in jurisprudence by
the appearance of the great work of Grotius in 1625.2
As he expounded the new doctrine, it had two sides. On

f§ 25-27; 2 Stintzing, Geschichte der deutschen Rechtswissenschaft (1880-1883)
1-111; Hinrichs, Geschichte der Rechts- und Staatsprincipien seit der Re-
formation (1848-1852) I, 60-274, II, III, 1-318; Dunning, Political Theories
from Luther to Montesquieu (1913) 164-171, 318-325; Duff, Spinoza's Political
and Ethical Philosophy (1903) chap. 22.
Grotius, De lure belli ac pacis (1625) especially i, 1, 3-6, 8-11; Pufendorf,
De lure naturae et gentium (1672) especially i, 7, §§ 6-17; Hobbes, Leviathan
(1651) chap. 15; id. De cive (1642) especially tit. libertas; Spinoza, Tractatus
theologicopoliticus (1670) especially chap. 16; id. Tractatus politicus (1678)
especially chaps. 2, 4; id. Ethica (1677) especially pt. v; 1 Rutherforth, In-
stitutes of Natural Law (1754) 2, § 3.
62. As to how far the prevailing view as to the pivotal position of Gro-
tius's book is justified, see Pound, Grotius in the Science of Law (1925) 19
Am.J. of Internat. Law, 685.
[ 483]
The End of Law
the one hand, there was a theory of limitations upon hu-

man activities, imposed by reason in view of human na-
ture. On the other hand, there was a theory of moral
qualities inherent in human beings, or natural rights,
demonstrated by reason as deductions from human na-
ture, i. e. from the ideal of a man. The first had been
propounded already by his forerunners. But whereas in
Suarez the divine lawmaker has established the eternal
and universal principles, Grotius makes reason a suffi-
cient measure of all obligation and basis of all limita-
tions.' In part, this follows from the definite breaking
with theology in which he carries forward the ideas of
the Protestant jurists of the Reformation. In part, it is
an echo of the Renaissance."4 In part, also, it is a phase
of the infusion of morals into law in the stage of equity
and natural law. The main current of seventeenth-cen-
tury jurisprudence followed him, and in the eighteenth
century Blackstone made his ideas familiar in England
and America, with important consequences for our ju-
ristic and political thinking. For at the very time that
the common law, under the leadership of Coke, had es-
tablished its doctrine of the supremacy of law and had
turned the feudal duties of the paramount landlord
toward his tenants into something very like legal duties
63. Prolegomena, §§ 8-16.

64. "The boundless intellectual confidence of that time led them ['the men
of the Renaissance'] to regard the dictates of natural law as capable of clear
and exhaustive enumeration." Westlake, Chapters on the Principles of In-
ternational Law (1894) 28.
[ 484 ]
8. Juristic Thought
of the King toward his subjects, a juristic theory of fund-

amental limitations upon the activities of states, of rul-
ers, and of individuals, dictated by eternal reason, had
grown up independently to furnish the scientific explana-
tion.
As has been said, Grotius and his followers made
reason the sufficient basis of obligation. They held that
the end for which law exists is to produce conformity to
the nature of rational creatures." But Grotius had not
thought this out with much precision. He had broken
with authority as authority. Yet in the main he accept-
ed the Roman law as embodied reason, and beyond a few
bold assertions, such as his famous one that he could con-
ceive of natural law even if there were no God,6 he ven-
tured little which did not have authority behind it. Hence
he and his followers accepted the Roman maxim-not to
injure another and to give to everyone his own, that is,
respect for personality and respect for acquired rights-
as a formula of conformity to the nature of rational crea-
tures. This raised certain obvious problems: What is in-
jury to another? What is there in personality which
makes aggression an injury? What is it that constitutes
65. "That is unjust which is contrary to the nature of rational creatures."

i, 1, 3, § 1. Note that "nature" here is not used in a psychological sense,
such as it bears today when we speak of "human nature," nor in the biolog-
ical sense to which the doctrine of evolution has made us accustomed. Here
the "nature" of a thing means the rationally conceived ideal of it. The ideally
perfect thing is taken to be "natural."
66. Prolegomena, § 11.
[ 485]
The End of Law
anything one's own? Grotius and his successors sought

to answer these questions by a theory of what we came
to call natural rights, not merely natural law as thereto-
fore; not merely principles of eternal validity, but cer-
tain qualities inherent in persons and demonstrated by
reason, recognized by natural law, to which, therefore,
the national law ought to give effect. Thus, again, at the
very time that the victory of the courts in the contest
between the common-law courts and the Stuart Kings
had established that there were fundamental common-
law rights of Englishmen which Englishmen might main-
tain in court and in which courts would secure them
even against the King, or his ministers and agents, a
juristic theory of fundamental natural rights, independ-
ent of and running back of all states, which states might
secure and ought to secure but could not alter or abridge,
had sprung up independently and was at hand to furnish
a philosophical basis when political conditions at and
after the American Revolution made it expedient to claim
them as men rather than as Englishmen. By a natural
transition, the common-law limitations upon royal au-
thority became natural limitations upon all authority
and the common-law rights of Englishmen became the
natural rights of man. 7
According to the Grotian definition a right is: "A
moral quality of a person whereby it is fit that he have
67. See Pound, The Spirit of the Common Law (1921) lect. 4.
[486 ]
8. Juristic Thought
something or do something." 8 The medieval idea was

that law exists to maintain those powers of control over
things and those powers of action which the social system
has awarded or attributed to each man. The Grotian
idea was that law exists to maintain and give effect to
certain inherent moral qualities in every man, discover-
ed for us by reason, by virtue of which he ought to have
certain powers of control over things or certain powers of
action. Thus, under the influence of the theory of nat-
ural law we get the theory of natural rights. A legal
right is an institution of the legal order. But according
to the theory of natural law, what ought to be law is re-
garded as law for that self-sufficient reason. No rule
can stand as law except as it ought to be, and conversely
to show that it ought to be law is to show that it is law.
Hence what ought to be a right becomes decisive of what
is a legal right.
There was a good side to all this. The insistence on what
ought to be as the measure of what is, liberalized and modern-
ized the actual law of the European states through the juristic
testing of every doctrine and every category with reference to
its basis in reason. But it had a bad side. It led to a confusion
between the interests which it is conceived the law ought to rec-
ognize and the rights by which the law secures interests when
recognized, which has been the bane of jurisprudence ever since.
It led to confusion of extra-legal ideals with the ideal element
68. De iure belli ac pacis (1625) 1, 1, 4. Cf.: "That quality in a person

which makes it just or right for him either to possess certain things or to
do certain actions." 1 Rutherforth, Institutes of Natural Law (1754) 2, § 3.
[487 ]
The End of Law
in the positive law and of both with the precept element. It led
to absolute notions of an ideal development of received legal ideas
as the jural order of nature, which more than once have brought
legal thought and popular political thought into an obstinate con-
flict.
Since Jhering's treatment of the subject we have perceived
that "natural rights" mean only interests which we hold ought to
be secured. It is true that neither the law nor the state creates
these interests. But it is destructive of sound thinking to treat
the de facto interest, before or apart from recognition and de-
limitation by the legal order, as a legal conception. Rights in the
legal sense are among the devices of the legal order to secure
these interests so far as they are recognized and as they are de-
limited by law. Legal rights are the creatures of law, although
the interests secured, or which ought to be secured, by legal
rights are independent of law and state. Hence we did not get
much further immediately, when in the seventeenth century jus-
tice (in the sense of the end of law) came to be regarded as a se-
curing of natural rights. What were natural rights was deter-
mined chiefly by ideas drawn from the existing social order and
presently the natural rights of men became as tyrannous as the
divine rights of states and rulers. 9
Although the theory of natural rights led ultimately to a

hard and fast scheme of individual interests, beyond the reach of
the state, which the state was bound to secure by law, it had im-
portant consequences in broadening the conception of justice
and inducing more liberal views as to the end of the law. It soon
became apparent that the theory of inherent moral qualities,
while it would serve for interests of personality-for claims to be
secured in one's body and life and the interests immediately re-
lated thereto-would not serve for the suum cuique element of
69. Moore, Pragmatism and its Critics (1910) 71.

[ 488 ]
8. Juristic Thought
justice, or, as we put it today, for interests of substance. None

of the jurists of that time questioned the existing social order.
They assumed a right of property, with all the incidents of do-
minium in Roman law, as beyond question. 70 They conceived
that security of acquisitions, including what one had acquired
through the existing social order, was a chief end. 7' At the same
time, they could not but see a difference between this natural right
and such natural rights as those to the integrity of one's body,
to free choice of location, and to freedom from coercion. Accord-
ingly, jurists turned for an explanation to the idea of contract,
already given currency in political thought during the medieval
72
contests between the church and temporal rulers.
It must be remembered that contract in this connection has

reference to the civil-law conception of a legal transaction (ne-
gotium, acte juridique, Rechtsgeschift), an act intended to have
legal consequences to which the law attributes the intended legal
result. 73 In the seventeenth and eighteenth centuries this was
the staple legal analogy. The idea of the legal transaction was
one of the most important of civilian contributions to law, and in
an age when trade and commerce were expanding the law of such
transactions was becoming the living part of the law. The juris-
tic problem of the time was to reconcile the needs of business and
the ethical ideas of good faith which accompanied the infusion
of morals into the law with the traditional categories of contract
in Roman law. Naturally, contract loomed large in juristic
70. Pufendorf, De iure naturae et gentium (1672) iv, 4.

71. Grotius, i, 1, 1; ii, 1, 11; ii, 10, 1; ii, 17, 2, § 1.
72. See Figgis, Studies of Political Thought from Gerson to Grotius (1907)
148-151.
73. See Isaacs, John Marshall on Contracts: A Study in Early American
Juristic Theory (1921) 7 Va.Law Rev. 413.
[ 489]
The End of Law
thought for two centuries. 74 Moreover, the central point in the

theory of the legal transaction is will, the will to produce a possi-
ble and legally permissible result. But the central idea in the
theory of natural law and of natural rights was conformity to
the nature of reasoning creatures possessed of wills. So the
question, how could such creatures acquire rights against one
another, seemed easy to answer. How, indeed, could this be ex-
cept by contract, through a legal transaction? Thus the founda-
tion of the natural rights of substance which the law existed to
maintain was taken to be a legal transaction, a compact of all men
with all men, by virtue of which rights and corresponding duties
were created. When property was once established, it was held
that the jus disponendi, postulated as a corollary of property,
perpetuated it. Justice, therefore, consisted in respecting and
observing the terms of this compact, and the business of jurist
and lawmaker was to discover and to interpret its terms? 5 The
74. "The law of contracts, in its widest extent, may be regarded as in-
cluding nearly all the law which regulates the relations of human life. In-
deed it may be looked upon as the basis of human society. All social life
presumes it and rests upon it; for out of contracts, express or implied, de-
clared or understood, grow all rights, all duties, all obligations and all law.
Almost the whole procedure of modern life implies or rather is the fulfillment
of contracts." 1 Parsons, Contracts, * 3 (1855).
Obviously this does not mean "contract" as we now use the term. It re-
fers to a social interest in the fulfilling of reasonable expectations; to good
faith as a jural postulate of our civilization.
75. "It must be observed that the concession of God by which He gives
men the use of terrestrial things is not the immediate cause of ownership
. . . but it [ownership] presupposes a human act and an agreement, ex-
press or implied." Pufendorf, De lure naturae et gentium (1672) 4, § 4.
"From that law of nature by which we are obliged to transfer to another
such rights as being retained hinder the peace of mankind, there followeth
a third, which is this, 'that men perform their covenants made;' without
which covenants are in vain and but empty words, and the right of all men
to all things remaining, we are still in a condition of war. And in this law
of nature consisteth the fountain and original of justice. For where no cove-
nant hath preceded, there hath no right been transferred, and every man
[490 ]
8. Juristic Thought
end of the law was taken to be a giving effect to the inherent

moral qualities in individual men, whereby things are theirs, or a
securing to individual men of those things to which they are enti-
tled under the terms of the social compact.
While at first theories of natural rights and of a

social contract were used to justify and to preserve the
social status quo, they invited inquiry into the founda-
tions of that social status quo. They led men to ask, how
far does it express the terms of the social compact? How
far does it depart from a true interpretation thereof?
It is manifest that such juristic theories might become
very important for political thought. But their chief im-
portance for our present purpose is to be found in their
relation to the abstract individualism of Anglo-American
legal thought. In themselves, the theories are thoroughly
has right to everything, and consequently no action can be unjust. But when
a covenant is made, then to break it is unjust; and the definition of injus-
tice is no other than the not performance of covenant. . . . And there-
fore where there is no 'own,' that is, no property, there is no injustice; and
where there is no coercive power erected, that is, where there is no common-
wealth, there is no property, all men having right to all things; therefore
where there is no commonwealth, there nothing is unjust. So that the na-
ture of justice consists in the keeping of valid covenants; but the validity
of covenants begins not but with the constitution of a civil power sufficient
to compel men to keep them; and then it is also that property begins."
Hobbes, Leviathan (1651) chap. 15.
"Again, in the state of nature no one is by common consent master of any-
thing, nor is there anything in nature which can be said to belong to one man
rather than another. Hence in the state of nature we can conceive no wish
to render to every man his own or to deprive a man of that which belongs
to him; in other words, there is nothing in the state of nature answering
to justice and injustice. Such ideas are only possible in a social state, when
it is decreed by common consent what belongs to one man and what to an-
other." Spinoza, Ethics, iv. pr. 37, n, § 2 (Elwes' transl. 1883).
[491]
The End of Law
abstract individualist. The natural rights which are the

measure of all law, are the rights of individuals who have
entered into a contract. Apart from this contract, and so
apart from the individual consent involved therein, there
would and could be no law and nothing for the law to se-
cure. Individualism of this sort, beginning with the Ref-
ormation and growing with the emancipation of the mid-
dle class," obtained throughout Europe from the seven-
teenth century. Five circumstances reinforced this tend-
ency: (1) Puritanism, with its regime of "consociation
but not subordination" " and its putting of individual
conscience and individual judgment in the first place; ,
(2) the victory of the courts in the contests between
courts and crown in seventeenth-century England, which
seemed to establish that the law was something which
stood between the individual and organized society and
secured his natural rights; (3) political theory in the
eighteenth century culminating in our bills of rights;
(4) the classical political economy; and (5) the phi-
losophy of law in the nineteenth century with its different
modes of demonstrating Kant's formula of justice. All
76. "The cultural mission of the Reformation was to give life to individual
freedom." 2 Berolzheimer, System der Rechts- und Wirtschaftsphilosophie
(1905) 137. The relation of the development of individual rights and the
emancipation and hegemony of the middle class is considered elaborately by
Dr. Berolzheimer in his review of the maturity and downfall of the old nat-
-ural law. Id. chap. 5.
77. See Lord Acton, Lectures on Modern History (1906) 200; Pound, The
Spirit of the Common Law (1921) 37-59.
78. Lord Acton, Lectures on Modern History (1906) 10.
[ 492 ]
8. Juristic Thought
these successively developed and reinforced this tend-

ency to abstract individualism. Thus in England, and
even more in America, there came to be an ultra-individ-
ualism in legal thought which persisted in the United
States to and even beyond the end of the nineteenth cen-
tury.
Putting the matter in modern phrase, according to
the seventeenth century, law, in all three of its meanings,
exists to maintain and protect individual interests.
§ 44. THE EIGHTEENTH CENTURY."9 Seven-

teenth-century theory had taken two directions. On the
one hand, it conceived of rights as the outgrowth of a so-
cial contract. It held that there would be none without
the social organization and that there would be no justice
or law without the political organization. From Hobbes

§ 29; Jellinek, Die Erkldrung der Menschen und Biirgerrechte (3 ed. 1919;
English transl. of 1 ed. by Farrand as The Declaration of the Rights of Men
and of Citizens, 1901); Boutmy, La ddclaration des droits de l'homme et du
citoyen de M. Jellinek, Rtudes politiques, 117; Korkunov, General Theory
of Law (transl. by Hastings, 1909) § 7; Ritchie, Natural Rights (1895) chap.
3; Charmont, La renaissance du droit naturel (1910) 1-43; Sauter, Die philo-
sophischen Grundlagen des Naturrechts (1932) 151-196.
Montesquien, L'esprit des lois (1748) liv. i; Rousseau, Le contrat social
(1762) liv. ii, chaps. 6, 9; Burlamaqui, Principes du droit de la nature et des
gens (1766) i, 1, chap. 5, § 10, and chap. 10, §§ 1-7; Wolff, Institutiones Juris
naturae et gentium (1754) §§ 74-102; Vattel, Le droit des gens (1758) liv. i,
chap. 2, §§ 15-17; Rousseau, Le contrat social (1762) liv. i, chap. 6; 1 Black-
stone, Commentaries (1765) 38-43; Rutherforth, Institutes of Natural Law
(1754) bk. ii, chap. 5, §§ 1-3; Pound, The Formative Era of American Law
(1938) lect. 1; id. The Revival of Natural Law (1942) 17 Notre Dame Lawyer,
287, 291-307, 328-352.
[ 493]
The End of Law
and Spinoza this idea passes to Bentham, and thence in

the nineteenth century to the English analytical jurists
whose theory of the nature of law is in the right line of
descent therefrom. On the other hand, there was the
Grotian idea of rights as qualities inhering in persons.
This theory put rights above civil society and justice out-
side of and above civil society as permanent, absolute
realities which civil society was organized to protect.
It was not that there were justice and rights because
there was an organized society. There was organized
society because there were rights and justice to protect
and to secure. Historically, the latter theory is connect-
ed with the Germanic idea that the state is bound to gov-
ern by law; the notion of the Rechtsstaat, the state as
subject to legal limitations and legal rules of general and
independent validity."0 In the eighteenth century the
second idea definitely prevailed. But a reconciliation
was sought. The social contract was not the source of
rights. It was made for the better securing of preexist-
ing natural rights."' Both theories are thoroughly ab-
stract individualist.
80. It is curious that in England, where the Germanic idea became thor-
oughly established in public law (except as to Parliament after 1688) the
idea that all rights and all justice flowed from organized society prevailed
in juristic thought, while on the Continent, where the Roman idea prevailed
in public law, the Germanic idea got the upper hand in juristic theory. But
the latter had apparent warrant in the Roman ius naturale.
81. "But how great soever the change may be which government and sov-
ereignty make in the state of nature, yet we must not imagine that the civil
state properly subverts all natural society or that it destroys the essential
[ 494 ]
8. Juristic Thought
Eighteenth-century juristic theory, down to Kant,

holds to four propositions: (1) There are natural rights
demonstrable by reason. These rights are eternal and
absolute. They are valid for all men in all times and in
all places." (2) Natural law is a body of precepts, as-
certainable by reason, which perfectly secures all of these
natural rights.8 3 (3) Politically organized society exists
only to secure men in these natural rights.84 (4) Positive
law is the means by which politically organized society
performs this function, and it is obligatory only so far as
it conforms to natural law.85 The appeal is to individual
relations which men have among themselves. . . . This would be nei-

ther physically nor morally possible; on the contrary, the civil state sup-
poses the nature of man, such as the Creator has formed it; it supposes
the primitive state of union and society, with all the relations this state in-
cludes; it supposes, in fine, the natural dependence of man with respect to
God and His laws. Government is so far from subverting this first order that
it has been rather established with a view to give it a new degree of force
and consistency. It was intended to enable us the better to discharge the
duties prescribed by natural laws... ." Burlamaqui, Principes du
droit de la nature et des gens (1766) i, 2, chap. 6, § 2 (Nugent's transl.). Cf.
Vattel, liv. i, chap. 13, § 158. Note two uses of the term natural: (1) as un-
organized, (2) as ideal.
"Organized society is created to secure antecedent rights of individuals or
groups of individuals." Baldwin, in Two Centuries Growth of American
Law (1901) 45.
82. Burlamaqui, Principes du droit de la nature et des gens (1766) i, 1,
chap. 7, § 4; Wolff, Institutiones juris naturae et gentium (1754) §§ 68-69.
83. Burlamaqui, Principes du droit de la nature et des gens (1766) i, 2,
chap. 4.
84. Id. ii, 1, chap. 3; Wolff, Institutiones juris naturae et gentium (1754)
§ 972.
85. Burlamaqui, Principes du droit de la nature et des gens (1766) ii, 3,
chap. 1, § 6; Wolff, Institutiones juris naturae et gentium (1754) § 1069;
Vattel, liv. i, chap. 13, § 159; 1 Blackstone (1765) 41.
[495]
The End of Law
reason. Hence every individual is the judge of this con-

formity. Also on this theory natural rights alone are
legal rights, except as to certain matters morally indif-
ferent, for law is only a means of securing them.
Pushed to its logical limits, this leads straight to anarchy,
and, indeed, the philosophical anarchist of the nineteenth century
argued on this very basis.8 6 But the eighteenth-century writers
who taught that every man's conscience was a measure of the ob-
ligatory force of legal precepts assumed a sort of standard con-
science, a standard man's or conscientious man's conscience, an
abstract conscience of an abstract man, analogous to the prudence
of the reasonable man in our law of torts. They assumed that
if John Doe or Richard Roe asserted his conscience did not sus-
tain the precepts which the philosophical jurist deduced from the
nature of a moral being, either he did not know the dictates of his
own conscience or he was misrepresenting them. It was only in
this way that the social interest in the general security could be
protected effectively under the reign of the abstract individualist
natural law. But this meant in practice that the philosophical
jurist made his personal ethical views the test of the validity of
legal rules and that the lawyer took an ideal form of the settled
legal principles in which he had been trained to be fundamental
and eternal.8 7 The eighteenth-century philosophical method was
86. Brown, Underlying Principles of Modern Legislation (1912) 7 if. (6

ed. 1920 6 ff.); Ritchie, Natural Rights (1895) 65 ff.
87. "The very first and indispensable requisite in legal education .

is the acquisition of a clear and accurate perception . . . of those
unchangeable principles of the common law which underlie and permeate its
whole structure, and which control all its details, its consequences, its appli-
cation to human affairs." Phelps, Methods of Legal Education (1892) 1 Yale
Law Journ. 139, 140.
Compare the cases holding that legislation cannot add new categories of
jurisdiction over crimes but must hew forever to the territorial theory of
[ 496 ]
8. Juristic Thought
of service in jurisprudence in that it led each jurist to work out

ideals which could serve for a critique of the positive law and to
formulate the ideal element in the law so as to make it effective
for creative purposes in an era of growth. On the other hand, it
was a hindrance to jurisprudence in America in that it seemed to
afford a scientific basis for the lawyer's faith in the finality of the
common law. The common law had grown up about an idea that
reason, not arbitrary will, should be the measure of action and de-
cision. 8 The eighteenth century, however, was sure that it had
the one key to reason, and was fond of laying out philosophical
and political and legal charts by which men were to be guided for
all time. The lawyer believed that he had this key in the tradi-
tional principles of Anglo-American law, and drew his charts
accordingly.
It has been pointed out in another connection that the juris-
tic theory of natural rights was thoroughly abstract individual-
ist in both its aspects. As a theory of inherent moral qualities of
persons it was based on deduction from the nature (i. e. the ideal)
of the abstract, isolated individual. As a theory of rights based
upon a social compact, it thought of natural rights as the rights
of the individuals who had made the compact and had thereby set
up the social and political order to secure them. In either view
the end of the law is to maintain and protect individual interests.
This fitted so perfectly the legal theory of the common-law rights
of Englishmen that the founders of our political and legal and
judicial systems who were studying Coke and Blackstone, on the
the common law. State v. Knight, Taylor (N.C.) 65 (1799) S.C. 2 Hayw. (N.C.)
109 (1799); State v. Carter, 27 N.J.L. 499, 501-503 (1859); Campbell, J., in
Tyler v. People, 8 Mich. 320, 341 (1860).
88. Glanvill, preface, ix, 8 (1187); Magna Carta, cc. 4, 7, 14, 20, 29 (1225);
Stonore, C. J., in Langbridge's Case, Y.B. 19 Edw. III, 375 (1345); Littleton,
Tenures, Epilogue (1481); Doctor and Student, (1523) chap. 5; Co.Lit. Ila,
llb, 97b, 394a-395a (1628); Coke, C. J. in Prohibitions del Roy, 12 Rep.
63 (1612); Finch, Law (1627) bk. i, chap. 3.

The End of Law
one hand, and the French and Dutch publicists, on the other
hand, 19 had no doubt they were reading about the same things.
Hence, Americans of the end of the eighteenth century argued for
either or for both. The Declaration of Rights of the Continental
Congress in 1774 asserted the legal rights of Englishmen. The
Declaration of Independence two years later asserted the natural
rights of man. Yet each claimed the same things.
From this identifying of common-law rights with natural

rights it followed that the common law was taken to be a system
of giving effect to individual natural rights. It was taken to
exist in order to secure individual interests not merely against
aggression by other individuals but even more against arbitrary
invasion by state or society.90 It followed also that the bills of
rights were declaratory of natural rights,91 and were likewise
89. E. g. Wilson's Lectures on Law (1804), lectures delivered 1790-1791

by one of the framers of the constitution. Chapters 2 and 3 (Of the Gen-
eral Principles of Law and Obligation and Of the Law of Nature) are based,
on Blackstone, Grotius, Pufendorf, Wolff, Vattel, and Rutherforth's Insti-
tutes of Natural Law (1754-1756) an English exposition of Grotius which
went through two American editions early in the nineteenth century.
90. Fletcher v. Peck, 6 Cranch (U.S.) 87, 134, 3 L.Ed. 162 (1810); Story on
the Constitution (1833) § 1399; Cooley, Constitutional Limitations (1868) 358-
383. Cf. 1 Wilson, Works (Andrews' ed. 1896) 566.
91. Story on the Constitution (1833) § 1381; Chase, J. in Calder v. Bull,
3 Dall.(U.S.) 386, 387-388, 1 L.Ed. 648 (1798); Story, J. in Wilkinson v. Le-
land, 2 Pet.(U.S.) 627, 657, 7 L.Ed. 542 (1829); Story, J. in Terrett v. Taylor,
9 Cranch (U.S.) 43, 49-51, 3 L.Ed. 650 (1815); Miller, J. in Loan Ass'n v. To-
peka, 20 Wall.(U.S.) 655, 662, 22 L.Ed. 455 (1874); Benson v. Mayor, etc., of
New York, 10 Barb.(N.Y.) 223, 224 (1850). "With those judges who assert
the omnipotence of the legislature in all cases where the constitution has
not interposed an explicit restraint, I cannot agree. Should there exist
a case of direct infraction of vested rights too palpable to be questioned and
too unjust to admit of vindication, I could not avoid considering it as a vio-
lation of the social compact, and within the control of the judiciary." Hos-
mer, C. J. in Goshen v. Stonington, 4 Conn. 209, 225 (1822). Cf. Regents of
University of Maryland v. Williams, 9 Gill & Johns.(Md.) 365, 409 (1838).
[ 498 ]
8. Juristic Thought
declaratory of the common law.92 This idea is prominent in

judicial decisions in the nineteenth century, when the ideas of
the eighteenth century had become classical. Thus one court,
in passing on legislation directed against fines in cotton mills,
told us that a statute which violates "fundamental rights [is]
unconstitutional and void even though the enactment of it is not
expressly forbidden." 93 Another court told us that natural per-
sons did not derive their right to contract from the law; hence
whatever the state might do in limiting the power of a corpora-
tion to make certain contracts, because the corporation got its
power from the state, it might not limit the contractual capacity
of natural persons, who got their right to contract from nature,
so that nature alone could remove itY4 Another court, in pass-
ing adversely upon labor legislation infringing liberty of con-
tract, said that any classification was arbitrary and unconstitu-
92. "The usual Anglo-Saxon bill of rights, as contained in our state con-
stitutions, is in fact nothing more or less than the written expression of a
previously existing but silent, limitation upon the power of legislators which
is imposed even without the writing." Abbot, Justice and the Modern Law
(1913) 47. Hence there are rights in every free government beyond the reach
of the state, apparently beyond the reach even of a constitution, so that
there might be a constitutionally adopted but unconstitutional constitutional
amendment. Marshall, C. J. in Fletcher v. Peck, 6 Cranch (U.S.) 87, 135, 3
L.Ed. 162 (1810); Miller, J. in Loan Ass'n v. Topeka, 20 Wall.(U.S.) 655, 662,
22 L.Ed. 455 (1874); Machen, Is the Fifteenth Amendment Void (1910) 23
Harvard Law Rev. 169; Marbury, The Limitations Upon the Amending
Power (1919) 33 Harvard Law Rev. 223. So compensation in eminent do-
main is a "settled principle of universal law reaching back of all consti-
tutional provisions," Harlan, J. in Chicago, B. & Q. R. Co. v. Chicago, 166
U.S. 226, 237-238, 17 S.Ct. 581, 585, 41 L.Ed. 994 (1897) and police regulations
are valid unless they infringe a constitutional provision or "a natural right."
Field, J. in Butchers' Union Co. v. Crescent City Co., 111 U.S. 746, 762, 4
S.Ct. 652, 657, 28 L.Ed. 585 (1884). Cf. Sharswood, Professional Ethics (5 ed.
1896) 31-54.
93. Com. v. Perry, 155 Mass. 117, 28 N.E. 1126, 14 L.R.A. 325 (1891).
94. Leep v. St. Louis, I. M. & S. R. Co., 58 Ark. 407, 25 S.W. 75, 23 L.R.A.
264 (1893).
[499 ]
The End of Law
tional unless it proceeded on the "natural capacity of persons

to contract." 95 Another, in a similar connection, denied that
contractual capacity could be restricted except for physical or
mental disabilities. 6 All these instances come to the proposi-
tion that the common-law categories of disability are final and
that legislation cannot add new ones. The bills of rights and
the Fourteenth Amendment were treated as but declaring a
natural liberty which was also a common-law liberty. Hence
an abridgment not known to the common law was thought to go
counter to their fair construction, if not to their letter. Per-
haps nothing contributed so much to create and foster hostility
to courts and law and constitutions as this conception of the
courts as guardians of individual natural rights against the state
and against society; this conceiving of the law as a final and
absolute body of doctrine declaring these individual natural
rights; this theory of constitutions as declaratory of common-
law principles, which are also natural-law principles, anterior
to the state and of superior validity to enactments by the
authority of the state; this theory of constitutions as hav-
ing for their purpose to guarantee and maintain the natural
rights of individuals against the government and all its agen-
cies. In effect, it set up the received traditional social, po-
litical, and economic ideals of the legal profession as a super-
constitution, beyond the reach of any agency but judicial deci-
sion.
While we were receiving the eighteenth-century the-

ory in America and were making it the foundation of our
political and juristic structures, the theory was about to
get its death-blow at the hands of Immanuel Kant. If
95. State v. Loomis, 115 Mo. 307, 22 S.W. 350, 21 L.R.A. 789 (1893).
96. State v. Fire Creek Coal & Coke Co., 33 W.Va. 188, 10 S.E. 288, 6 L.R.A.
359 (1889).
[500]
8. Juristic Thought
in fact the individual conscience was made the sole test,

the theory could be practically tolerable only at a time
when absolute theories of morals prevailed. All men, or
most men, must agree in their moral standards, or agree
in looking to some ultimate authority for decisive pro-
nouncement on the content and application of moral prin-
ciples, or else legal doctrine would be wholly at large.
Hence the actual situation was that the lawyer took the
principles of the received legal tradition as an authori-
tative guide while the jurist and philosopher sought to
impose their several personal views as final statements of
fundamental principles. Bentham pointed this out in a
famous passage. He said the various criteria proposed
by jurists and moralists "consist in so many contrivances
for avoiding the obligation of appealing to any external
standard and of prevailing upon the reader to accept of
the author's sentiment or opinion as a reason for it-
self." " When absolute theories began to be discarded
and ultimate authorities were no longer recognized;
when, moreover, classes with divergent interests came to
hold diverse views upon fundamental points, natural law
in the eighteenth-century sense became impossible. Ac-
cordingly in the nineteenth century the historical jurists
threw over ideals entirely and the metaphysical jurists
sought to deduce natural law from some unchallengeable
fundamental conception of right or justice.
97. Principles of Morals and Legislation (new ed. 1823) 17.

[ 501]
The End of Law
An immediate cause of this change of base is to be

found in the philosophy of Kant. At the end of the eight-
eenth century he struck a decisive blow at the philosophi-
cal jurisprudence which had obtained for the past two
centuries. If natural rights were inherent moral quali-
ties to be ascertained by reason, granting that reason
could deduce infallibly from given premises, how could
reason give us the premises? If, on the other hand, nat-
ural rights rested on a social contract, how could the de-
tails or the implied terms of a contract of a past genera-
tion bind the men of today? The fiction of representa-
tion, the doctrine insisted upon by Blackstone that we
were represented when our fathers made the contract
and so are bound, was obviously founded on British polit-
ical theory in which all consent to acts of Parliament
through the representatives sent to Westminster to act
for them. It would not bear examination. Hence Kant
sought to find the basis of rights, and of justice as a
means of securing rights, in some ultimate metaphysical
principle, some ultimate datum from which rights might
be deduced. He found this fundamental idea in the con-
scious ego, which one could not deny because in denying
it he affirmed it, and he developed the fundamental datum
to the idea of freedom of will. He conceived that the
problem of law was to reconcile conflicting free wills.
He held that the principle by which this reconciliation
was to be effected was equality in freedom of will, the
application of a universal rule to each action which would
[ 502 ]
8. Juristic Thought
enable the free will of the actor to co-exist along with the
free will of every one else.98 The whole course of nine-
teenth-century juristic theory was determined by this
conception. Kant marks an epoch in philosophical juris-
prudence no less than Grotius9
Summarily stated, to the eighteenth century, justice,
the end of law, meant the securing of absolute, eternal,
universal natural rights of individuals, determined with
reference to the abstract individual man. Kant, on the
other hand, held it to mean the securing of freedom of
will to every one so far as consistent with freedom of all
other wills. Thus the transition was complete from the
idea of justice as a maintaining of the social status quo
to an idea of justice as the securing of a maximum of in-
dividual self-assertion.
§ 45. THE NINETEENTH CENTURY.100 A

characteristic juristic achievement of the nineteenth cen-
98. "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." Metaphysische An-
fangsgriinde der Rechtslehre (2 ed. 1798) xxv. Cf. "I must in all cases rec-
ognize the free being outside of me as such, that is, must limit my liberty by
the possibility of his liberty." I Fichte, Grundlage des Naturrechts (1796)
49 (2 ed. by Medicus 1922, 56).
99. See my paper, Law, in the Kant bicentennary volume edited by Wilm
(1925) 75-82.
100. Pound, The End of Law as Developed in Juristic Thought (1917) 30

Harvard Law Rev. 201; id. The Spirit of the Common Law (1921) lect. 6;
Id. The Philosophy of Law in America (1913) 7 Archiv fUr Rechts- und Wirt-
schaftsphilosophie, 213, 385.
[ 503]
The End of Law
tury was the setting off of jurisprudence as a separate

science. This was the culmination of a development
which began in the sixteenth century in the emancipation
of jurisprudence from theology. Up to the seventeenth
century, jurisprudence and politics were treated along
with theology as applications of its doctrines."' In a sec-
ond stage, jurisprudence, politics, and international law
were treated together. The philosophical foundation was
taken to suffice for all three and the details of each subject
were supposed to be reached by deduction therefrom.""
Separation from politics was gradually achieved in the
nineteenth century,"0 3 and as the three distinct methods,
philosophical, analytical, and historical were definitely
worked out, the English analytical school believed that
they had achieved a separation of jurisprudence from
philosophy and ethics and hence from the science of leg-
101. See ante §§ 37, 38, 39. In Hobbes's Leviathan (1651) two of the four
parts are theological. Cf. also Spinoza's Tractatus Theologico-Politicus (1670).
102. See, for example, the sequence of Burlamaqui, Principes du droit
naturel (1747) and Principes du droit politique (1751); the order of treat-
ment, that is, general philosophical foundation, philosophical jurisprudence,
politics, international law, in Wolff, Institutiones juris naturae et gentium
(1740-1749); and the like order in Rutherforth, Institutes of Natural Law
(1754-1756).
103. It is true the metaphysical jurists of the nineteenth century did not
wholly abandon the old connection of jurisprudence, politics, legislation, and
international law. See, for example, Lorimer, Institutes of Law (1872, 2 ed.
1880) bk. ii, chap. 1, and bk. iv, chap. 3; Stahl, Philosophie des Rechts (1829,
5 ed. 1878) bk. iv (politics and public law). But compare Lasson, System der
Rechtsphilosophie (1882) where the philosophical foundations of public law
are discussed, but not politics.
[ 504 ]
8. Juristic Thought
islation. °' The English historical school, conceiving that

the traditional element in legal systems was the real law
and that law was to be found in the unfolding of the prin-
ciple of justice in human experience rather than made
by legislators, agreed in this separation of jurisprudence
and the science of legislation. Accordingly Maine said:
"Investigation of the principles on which direct im-
provement of substantive legal rules should be conducted
belongs . not to the theorist on jurisprudence but
to the theorist on legislation." 105 Notice direct improve-
ment. He looked for indirect improvement by unfolding
of the idea by its inherent power.
It has been suggested that a like narrow tendency in
nineteenth-century philosophy is to be attributed to divi-
sion of labor in the universities and the requirements of
academic courtesy. No doubt these had some part in the
segregation of jurisprudence and the nineteenth-century
104. Thus Markby says: "What . . . Austin's predecessors do not ap-

pear to me to have fully apprehended, at least not with that sure and firm
grasp which proceeds from a full conviction, is the distinction between pos-
itive law and morals. We find, for example, that Bentham, when drawing
the line between jurisprudence and ethics, classes legislation under juris-
prudence, whereas, as Austin has shown, it clearly belongs to ethics. Austin,
by establishing the distinction between positive law and morals, not only laid
the foundation for a science of law, but cleared the conception of law and
of sovereignty of a number of pernicious consequences to which in the hands
of his predecessors it had been supposed to lead." Elements of Law (6 ed,
1905) § 12. The same proposition stated with less assurance may be found
in the first edition (1871) 5-6. Cf. Austin, Jurisprudence (3 ed. 1869) 1107;
Gray, The Nature and Sources of the Law (1909) § 213 (2 ed. 1921, 94).
105. Early History of Institutions (7 ed. 1897) lect. XII, 345. Cf. 1 Pol-
lock and Maitland, History of English Law (1 ed. 1895) xxiii.
[ 505 ]
The End of Law
Anglo-American tendency to insist upon analytical juris-

prudence, where the lawyer required no aid from with-
out and was continually in an atmosphere of pure posi-
tive law, as the whole of legal science. ' But the expan-
sion of learning in the last century, which prevented any
one from taking more than a corner of knowledge for
his province, and the general tendency of the time to lay
out everything analytically, confine it to defined limits,
and reduce it to rule, a tendency which the idea of evolu-
tion has not yet succeeded in driving even from the bio-
logical sciences, are also to be reckoned with. This ex-
treme division of labor had its good side. Analysis and
philosophical generalization from comparative legal his-
tory, pursued exclusively and more or less independent-
ly for a time, have taught us the possibilities of these
methods and have given results upon which new methods
may be employed with assurance. The bad side was the
abdication of all juristic function in improving the law,
the abandonment of "juridical idealism," 107 and the re-
duction of those who were best qualified to take conscious
part in legal development to the position of mere observ-
ers. Coinciding with a period of maturity and stability
106. Holland, Elements of Jurisprudence (13 ed. 1924) chap. 1; Maine,

Early History of Institutions (7 ed. 1897) lect. XII. The latter says: "The
jurist properly so-called has nothing to do with any ideal standard of law
or morals." id. 370. Compare the more temperate statement of this view by
Gray, Nature and Sources of the Law (1909) §§ 1-9, somewhat altered in 2 ed.
(1921) 140-144.
107. Saleilles' phrase. See ante § 18.

[ 506]
8. Juristic Thought
in the law, this juristic pessimism coincided also with

the doctrine of laissez faire in economics. Thus the con-
ception of the end of law as an unshackling of individual
energy, as an insuring of the maximum of abstract in-
dividual free self-assertion, gave rise to a conception of
the function of law as a purely negative one of removing
or preventing obstacles to such individual self-assertion,
not a positive one of directly furthering social ends or
social progress.
Five types of nineteenth-century juristic thinkers
deserve consideration. They may be called (1) the meta-
physical jurists, (2) the English utilitarians, (3) the
historical jurists, (4) the positivists, and (5) the social
individualists.
(1) The metaphysical jurists.' Metaphysical ju-
risprudence begins with Kant, who puts in its final form

§§ 35-36 (World's Legal Philosophies (1912) 215-259); Korkunov General
Theory of Law (transl. by Hastings, 1909) 320-322; Gray, Nature and Sources
of the Law (2 ed. 1921) 23-24; Lask, Rechtsphilosophie (1905) chap. 2 (in 1
Gesammelte Schriften (1923) 203-213.
Kant, Metaphysische Anfangsgriinde der Rechtslehre (2 ed. 1798, English
transl. by Hastie as Kant's Philosophy of Law, 1887)-a good exposition may
be found in 2 Caird, The Critical Philosophy of Kant (1889) 293-350; Fichte,
Grundlage des Naturrechts (1798, new ed. by Medicus, 1908, 2 ed. by Medicus,
1922; English transl. by Kroeger as Fichte's Science of Rights, 1889); Hegel,
Grundlinien der Philosophie des Rechts (2 ed. by Gans, 1840, new ed. by Las-
son, 1911, English transl. by Knox, Oxford (1942); Krause, Abriss des Sys-
temes der Philosophie des Rechtes (1825); Ahrens, Cours de drolt naturel (8
ed. 1892); Green, Principles of Political Obligation (lectures delivered 1879-
1880, reprinted 1911); Lorimer, Institutes of Law (2 ed. 1880); Lasson, Sys-
tem der Rechtsphilosophie (1882); Miller, Lectures on the Philosophy of Law
[ 507]
The End of Law
the conception of the end of law which came in with the

Reformation. In principle the Reformation denied the
authority of any doctrine the evidence of which the in-
dividual could not find in his own reason and of any
precept which could not be referred to the will of the indi-
vidual to be bound. Hence, the elaborate arguments by
which eighteenth-century jurists seek to make out that
each individual has consented to the law through his rep-
resentatives or has willed it through a social compact.1"
In Kant, this fiction of consent of the individual will is
replaced by an imposition upon the individual free will
through the reciprocal action of free wills whereby they
may be reconciled by a universal law, which, therefore,
is imposed by a necessity inherent in the very idea of free-
dom. 11 Thus we realize individual freedom through
(1884); Boistel, Cours de philosophie du droit (1899); Herkless, Lectures on

Jurisprudence (posthumous, 1901).
Hegel, Grundlinien der Philosophie des Rechts (2 ed. 1840) §§ 29-33; Las-
son, System der Rechtsphilosophie (1882) §§ 24-25; Herkless, Lectures on
Jurisprudence (1901) chap. 4.
109. 1 Blackstone, Commentaries (1765) 140, 158-159; Wilson, Works (An-
drews' ed.) 88-89 (written 1790); Wooddeson, Elements of Jurisprudence
(1792) xvii.
110. Rechtslehre (2 ed. 1798) xxii-xxiii. "A constitution allowing the
greatest possible human freedom in accordance with laws by which the free-
dom of each is made to be consistent with that of all others-I do not speak
of the greatest happiness, for this will follow of itself-is at any rate a nec-
essary idea, which must be taken as fundamental not only in first projecting
a constitution but in all its laws." Kant, Kritik der reinen Vernunft (2 ed.
1787) 373 (Smith's transl. Immanuel Kant's Critique of Pure Reason (1933)
312). See a good exposition of this in 2 Caird, The Critical Philosophy of
Kant (1889) 296-300. Cf. Herkless, Lectures on Jurisprudence (1901) 14-15.
As to the relation of Kant's doctrine to the classical economics, see Cooke,
Adam Smith and Jurisprudence (1935) 51 Law Quart.Rev. 326.
[ 508 ]
8. Juristic Thought
rules of law, and the end of law is "to keep self-conscious

beings from collision with each other, to secure that each
should exercise his freedom in a way that is consistent
with the freedom of all others, who are equally to be re-
garded as ends in themselves." 111 Note that this is a
Kantian way of putting what Ehrlich calls the inner or-
der of groups and associations.
Kant's separation of each man from what we used to call the

social organism i.e. setting him over against society was charac-
teristic of the eighteenth century. What Kant saw and felt was
independence of our mental life. We can live our individual men-
tal lives. But there is no such individual independence in our
economic or social life. Nor can our mental life be as isolated as
Kant felt it was. A mental and moral giant like Kant could live
a free life of the spirit. But the mental life of most of us is like-
ly to be shaped by the thought of the time and the pressure of the
thinking of our fellow men much as our economic life is shaped
by the pressure of the wants and activities of our fellows.
Kant's putting of the individual person at the center of juristic
theory and the individual conscience at the center of ethical
theory, "separated him also from the past out of which his in-
tellectual life had grown." 112 Hegel saw that it was unhistori-
cal and took the moral organism, as it used to be called, for the
central point of his ethical theory.1 1 3 Here we have the begin-
ning of a new point of view, which becomes significant in the
IlI. 2 Caird, The Critical Philosophy of Kant (1S89) 296.

112. I id. 54.
113. Grundlinien der Philosophic des Rechts (2 ed. 1840) § 33. See Wal-
lace, Hegel's Philosophy of Mind (1894) 21-23; 3 Erdmann, History of Philos-
ophy (transl. by Hough, 1910) 4.
[ 509]
The End of Law
social-philosophical jurists at the end of the century.11 4 But

nineteenth century metaphysical jurisprudence remained thor-
oughly abstract individualist. It postulated that the end of man
was freedom.115 It developed the idea of free will into the prac-
tical consequence of civil liberty, an idea of general freedom of
action for individuals-an idea of the maximum of abstract free
individual self-assertion. Hence the end of law was to secure
to each individual the widest possible abstract liberty. The
justification of law was that there is no true liberty-i.e. ab-
stract, universal liberty-except where there is law to restrain
the strong who interfere with the freedom of action of the weak
and the organized many who interfere with the free individual
self-assertion of the few.116 Two points in this doctrine are
noteworthy: (1) Law as a restraint on individual abstract lib-
erty had to be justified; (2) law is used here in the lawyer's
sense of adjustment of relations and ordering of conduct by the
force of a politically organized society. Except where there is
law in this sense it is held there is no liberty. The test of jus-
114. See Boyd, Workmen's Compensation (1913) § 21, as to the influence

of Hegel.
115. See 2 Stirling, The Secret of Hegel (1865) 551-552; Croce, Ce qui est
vivant et ce qui est mort de la philosophie de Hegel (1910) 114. "The history
of the world is nothing but the development of the idea of freedom." Hegel,
Philosophy of History (transl. by Sibree, 1852, rev. ed. 1899) pt. iv, chap. 3.
116. "The value then of the institutions of civil life lies in their operation as
giving reality to these capacities of will and reason, and enabling them to
be really exercised. In their great effect . . . they render it possible
for a man to be freely determined by the idea of a possible satisfaction of
himself, instead of being driven this way and that by external forces, and
thus they give reality to the capacity called will; and they enable him to
realize his reason, i. e. his idea of self-perfection, by acting as a member of
a social organization in which each contributes to the better-being of all
the rest. So far as they do in fact thus operate they are morally justified."
Green, Principles of Political Obligation (1911) 32-33. Cf. Courcelle-Seneuil,
Preparation a l'4tude du droit (1887) 114; Pulszky, Theory of Law and Civil
Society (1888) § 170; Emery, Concerning Justice (1914) 108-109. See also
Bentham, Theory of Legislation (transl. by Hildreth, 10 ed. 1904) 95.
[510 ]
8. Juristic Thought
117
tice was the amount of abstract individual liberty secured.
Though Anglo-American jurists paid little or no direct attention
to the systems of the metaphysical school, its central idea of
abstract individual liberty fitted into our eighteenth-century in-
dividualism and the spirit of a pioneer society so well that the
school had begun to have much influence in the United States,115
when a new and more attractive mode of getting to the same
result was furnished by the positivists.11 9
(2) The English utilitarians." While the meta-

physical jurists were deducing the whole system of rights
117. Ahrens, Cours de droit naturel (8 ed. 1892) §§ 17-18; Trendelenburg,

Naturrecht (2 ed. 1868) § 46; Lorimer, Institutes of Law (2 ed. 1880) 353, 523.
"It reduces the power of coercion to what is absolutely necessary for the
harmonious co-existence of the individual with the whole." Lioy, Philosophy
of Right (transl. by Hastie, 1891) 121.
"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 individuel et l'dtat (1891) 148.
Cf. Miller, Lectures on the Philosophy of Law (1884) 70-74.
118. "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 in-
dividual the utmost liberty which he can enjoy consistently with the preserva-
tion of the like liberty to all others. Liberty, the first of blessings, the aspira-
tion of every human soul, is the supreme object. Every abridgment of it de-
mands an excuse, and the only good excuse is the necessity of preserving it."
Carter, Law: Its Origin, Growth, and Function (1907) 337.
119. On the influence of metaphysical jurisprudence in America and the
American grafting of metaphysical jurisprudence on positivism, see Pound, In-
terpretations of Legal History (1923) 22-23, 32-37, 71-72. Cf. Carter, Law:
Its Origin, Growth, and Function (1907) 132-133, and see also Pound, The Re-
vival of Natural Law (1942) 17 Notre Dame Lawyer, 333-335.
120. 2 Berolzheimer, System der Rechts- und Wirtschaftsphilosophie
(1905) § 28 (World's Legal Philosophies (1912) 137-141); Markby, Elements of
[511]
The End of Law
and the idea of the end of the legal order from a meta-
physical conception of free will, another school was seek-
ing a practical principle of lawmaking. The metaphysi-
cal school was a school of jurists. They had their eyes
upon the legal order and the law as a whole, upon systems
of authoritative grounds of decision and measures of con-
duct which had come down from the past, and they sought
the principles upon which such systems and their doc-
trines could be based philosophically and by which rules
of law might be criticized and their further development
might be directed. The English utilitarians, on the other
hand, were a school of legislators. The metaphysical
jurists employed the philosophical method in jurispru-
dence and did not separate the science of law and the
science of legislation. The English utilitarians devel-
oped the analytical method in jurisprudence and em-
ployed a philosophical method in the science of legisla-
tion. Accordingly, while the metaphysical jurists sought
principles of criticism of what was, the utilitarians
sought principles of constructing new rules of law by
Law (6 ed. 1905) §§ 51-59; Mill, On Liberty (1859) chap. 4; Bentham, Theory
of Legislation, Principles of the Civil Code (1864, new ed. 1931) chaps. 1-7;
Dicey, Law and Public Opinion in England (2 ed. 1914) lect. 6; Solari, L'idea
individuale e l'idea sociale nel diritto privato (1911) §§ 31-36.
Bentham, Principles of Morals and Legislation (1780, reprinted by the Clar-
endon Press, 1879); Id. Traitds de l4gislation (ed. by Dumont, 1802, transl. by
Hildreth as Bentham's Theory of Legislation, 10 ed. 1904); id. 1 Works, Prin-
ciples of the Civil Code (1839) 295-364.
For the philosophical side, see Albee, History of English Utilitarianism
(1902); 1 Stephen, The English Utilitarians (1900); Haldvy, The Growth of
Philosophical Radicalism (1928, transl. by Morris) 35-87.
[ 512 ]
8. Juristic Thought
conscious lawmaking. Bentham's life work was law re-

form." The practical principle which he laid down, as
that which should govern legislative reform of law, was
the principle of utility: Does the rule or measure con-
duce to human happiness? The principle of criticism
which he urged was: How far does the rule or measure
conduce to human happiness? This principle and this
criterion might have been used to break down the ab-
stract individualist idea of justice as Jhering used the
idea of purpose later. But at this time abstract individu-
alist ideas were too firmly fixed in men's minds to be
questioned. For the individualist tradition of seven-
teenth and eighteenth-century thought was reinforced
by economic reasons in the age of Adam Smith and the
great British economists and by political reasons in the
reaction from the age of absolute governments which
made the period following the French Revolution fearful
of centralized authority and jealous of local and individu-
al independence. The criterion of the greatest good of
the greatest number might easily be put in a way that
would not be far from recent ideas of justice. Thus, that
which serves for the happiness of the greatest number,
used as a measure of the conduct of each, might serve as
the basis of a social utilitarianismY But Bentham did
121. On Bentham's life and work, reference may be made to Atkinson,

Jeremy Bentham (1905); Phillipson, Three Criminal Law Reformers, pt. 2,
Bentham (1923); 1 Stephen, The English Utilitarians (1900).
122. Cf. Tanon, L'dvolution du droit et la conscience sociale (3 ed. 1911)
185-189.
1 Pound Jurisprudence-[33 [ 513 1
The End of Law
not question abstract individualism. He vacillated be-

tween an idea of utility as the greatest happiness of the
abstract individual and an idea of utility as the greatest
happiness of the greatest number of concrete individu-
als. In truth, he did not need to choose between them
since he assumed that the greatest general happiness was
to be procured through the greatest abstract individual
self-assertion. Hence his fundamental principle was not
substantially different from that of the metaphysical
jurists.13 Negatively, his program was, unshackle men;
allow them to act as freely as possible. And this was the
idea of the metaphysical school. Positively his program
was, extend the sphere and enforce the obligation of con-
tract. This, we shall see presently, was the idea of the
historical school.
Bentham's principle, then, was: Allow the maximum of
free individual action consistent with general free individual
action. Thus the end of law came to the same thing with him
as with the metaphysical jurists, namely, to secure the maxi-
mum of individual self-assertion. Bentham's theory of the legal
order made a strong appeal to the common-law lawyer. Our
Anglo-American legal system had kept much of the individual-
ism of the strict law. The stage of equity and natural law had
by no means made it over and the development of equity was
not complete in England when English law was received in this
123. Dicey has formulated it thus: "Every person is in the main and as a
general rule the best judge of his own happiness. Hence legislation should
aim at a removal of all those restrictions on the free action of an individual
which are not necessary for securing the like freedom on the part of his neigh-
bors." Law and Public Opinion in England (2 ed. 1914) 146.
[514 ]
8. Juristic Thought
country. 124 Moreover, in the classical contests between the

courts and the Crown in the seventeenth century the common
law had been made to stand between the individual and oppres-
sive state-action. Thus the common-law tradition was thor-
oughly individualist, and this tradition was especially congenial
to the Puritan, who was dominant in America down to the time
of the Civil War,125 and was reinforced by the modes of thought
of the pioneer.'2 However much the practising lawyer might
affect to despise philosophical theories of law, he could but be
content with a theory that put plausible reasons behind his tra-
ditional habits of thought. The one difficulty was the English
utilitarian's fondness for legislative lawmaking, which was out
of accord with the common-law tradition. But this difficulty
presently disappeared.
It is a curious circumstance that while Bentham and Austin

believed in legislation and hoped for an ultimate codification, the
interpretation of utility as requiring a minimum of interference
with the individual led the next generation of English utilitari-
ans to the same position as that of the historical school, namely,
that except in a few necessary cases legislation is an evil. The
historical school held it an evil because it sought to do what
could not be done. The neo-utilitarians held it an evil because
that government was best that governed least and left men
freest to work out their own destiny. Bentham had already put
security as the main end to which the legal order should be di-
rected. 127 A utilitarian version of the nineteenth-century juris-
124. See Pound, The Place of Judge Story in the Making of American Law
(1914) 48 American Law Rev. 676.
125. See Pound, The Spirit of the Common Law (1921) lect. 2.
126. Id. lect. 5. See also Pound, The Administration of Justice in the Mod-
ern City (1913) 26 Harvard Law Rev. 302.
127. Theory of Legislation, Principles of the Civil Code (1864, new ed.
1931) pt. 1, chap. 7. Compare: "This, the sole legitimate end and object of law
[515 ]
The End of Law
tic pessimism was deduced from this idea. We could not

achieve any positive good by law; we could only avert some
evils. 2 8 It is noteworthy, however, that this changed attitude
toward legislation comes after the legislative reform movement
was at an end. The type of legislation which unshackled the
individual, which did away with the restrictions which had come
down from a relationally organized society, had exhausted its
possibilities in England about 1865. From that time legisla-
tion of a new type began to impose the restrictions called for
by the relatively newly arisen industrial society.
Thus the English utilitarians did not contribute much of

moment to the theory of the end of the legal order. They merely
strengthened in the minds of lawyers the extreme individualism
which the latter had inherited with the common-law tradition.
Perhaps their most significant achievement was in definitely
driving the eighteenth-century law of nature out of the English
books. For example, in discussing condemnation of private
is never to be lost sight of-security to men in the free enjoyment and devel-
opment of their capacities for happiness." Sharswood, Professional Ethics (5
ed. 1896) 22.
128. "The value of law is to be measured not by the happiness which it pro-
cures but by the misery from which it preserves us." Markby, Elements of
Law (6 ed. 1905) § 58. "We shall, therefore, look for happiness in the wrong
direction if we expect it to be conferred upon us by the law. Moreover, not
only is it impossible for the law to increase the stock of happiness: it is just
as impossible for the law to secure an equal distribution of it. Equality may
be hindered by the law, it cannot be promoted by it." Id. § 59.
E. g. he would say that "loan shark laws" or small loan acts do not further
equality. Of course, they do not further an abstract equality. For an Ameri-
can statement, see the following: "What is the true province of legislation,
ought to be better understood. It is worth while to remark, that in every new
and amended state constitution, the Bill of Rights spreads over a larger space;
new as well as more stringent restrictions are placed upon legislation. There
is no danger of this being carried too far: as Chancellor Kent appears to have
apprehended that it might be. There is not much danger of erring upon the
side of too little law." Sharswood, Professional Ethics (5 ed. 1896) 22-23.
[ 516 ]
8. Juristic Thought
property, Blackstone said that the public was "in nothing so

essentially interested as in securing to every individual his pri-
vate rights." 129 This is the natural-rights idea of the eighteenth
century. A little more than a century later, Sir George Jessel
said: "If there is one thing more than another public policy
requires, it is that men of full age and competent understanding
shall have the utmost liberty of contracting and that their con-
tracts . . . shall be enforced by courts of justice." 13
Here we have Bentham's program of unshackling men and

extending the sphere of contract. But we have also the indi-
vidual free-will idea, the individual-liberty idea of the meta-
physical jurists. It is worth while to reflect that these words
were written in a case involving a contract as to the use of a
patent. Not only do we limit the freedom of contract of whole
classes of men of full age and competent understanding at every
turn in modern labor legislation, but we are not so sure today
that whatever contract as to use of his patent a patentee may
13
choose to make or to exact is to be upheld at all events. '
129. 1 Commentaries, 139.
130. Printing Co. v. Sampson, 19 Eq. 462, 465 (1875). Cf. "To sustain the
individual freedom of action contemplated by the constitution, is not to strike
down the common good but to exalt it; for surely the good of society as a
whole cannot be better served than by the preservation against arbitrary re-
straint of the liberties of its constituent members." Sutherland, J. in Adkins
v. Children's Hospital, 261 U.S. 525, 561, 43 S.Ct. 394, 402, 24 A.L.R. 123S
(1923).
131. Bauer & Cie v. O'Donnell, 229 U.S. 1, 33 S.Ct. 616, 57 L.Ed. 1041, 50 L.R.
A.,N.S., 1185 (1912); Motion Picture Patents Co. v. Universal Film Mfg. Co.,
243 U.S. 502, 37 S.Ct. 416, 61 L.Ed. 540 (1917). See Montague, The Proposed
Patent Law Revision (1912) 26 Ilarv.L.Rev. 128; Abbot, Patents and the Sher-
man Act (1912) 12 Columbia L.Rev. 709. Cf. recent English decisions as to
covenants not to exercise the calling for which one has trained himself. Hep-
worth Mfg. Co. v. Ryott, [1920] 1 Ch. 1; Attwood v. Lamont [1920] 3 K.B. 571;
Younger, L. J. in Dewes v. Fitch, [1920] 2 Ch. 159, 185.
[ 517]
The End of Law
(3) The historical jurists.1 32 Historical jurists

were more concerned with the nature of law and the con-
tent and development of legal systems than with the end
of law. They took their philosophical ideas from the
metaphysical school and so agreed in holding abstract
individual liberty to be the fundamental idea." This
was facilitated by, or perhaps rather it resulted in, their
adopting the political interpretation of legal history.
They conceived that the history of law was a history of
the gradual acquisition or recognition of individual liber-
ty. This is the central philosophical idea in the writings
of Sir Henry Maine.134 As has been pointed out elsewhere,
Maine's doctrine of the progress from status to contract
is a political type of idealistic interpretation." 5 For a
132. Maine, Ancient Law (1906) chap. 5; id. Early History of Institutions
(1874, 7 ed. 1897) lect. 11; id. Village Communities (7 ed. 1895) 108-116; Car-
ter, Law: Its Origin, Growth, and Function (1907) 133-135, 335-338; Pulszky,
Theory of Law and Civil Society (1888) § 173; Puchta, Cursus der Institution-
en (1841) §§ 1-3; Arndts, Juristische Eneyklopiidie und Methodologie (1860)
12; 1 Wlichter, Pandekten (1880) § 1.
133. "Freedom is the foundation of right, which is the essential principle of
all law." Puchta, Institutionen (Hastie's transl. 1887 in Outlines of the
Science of Jurisprudence) § 2. "In virtue of freedom man is the subject of
right and law. His freedom is the foundation of right and all real relations
of that jural freedom which is externalized and exhibited in persons and their
acts of will and their influence upon objects." Id. § 6.
As to what was meant by freedom or liberty, see Carter, Law: Its Origin,
Growth, and Function (1907) 133.
134. Ancient Law (1906) chap. 5 ad fin.
135. Pound, Interpretations of Legal History (1923) 46, 53-65; id. The
Spirit of the Common Law (1921) lect. 1; id. The End of Law as Developed in
Legal Rules and Doctrines (1914) 30 Harvard Law Rev. 201, 209-221; id. The
Scope and Purpose of Sociological Jurisprudence (1911) 25 Harvard Law Rev.
140, 164.
[518]
8. Juristic Thought
purely ethical idea of right it substitutes a political idea

of individual freedom. It sees in law and in legal history
a manifestation and development of this idea. Hence it
finds the end of law in liberty, conceived in the sense of
the widest possible individual self-assertion. It teaches
that a movement from individual subjection to individual
freedom, from status to contract, is the key to social and
legal development. The goal toward which the law was
moving was the maximum of individual liberty; the
measure of values for legislation and judicial finding of
law was the maximum of free individual self-assertion.
Maine's doctrine has been considered fully in another con-
nection. 136 It is enough to note here that it carried on the view
of the metaphysical jurists that the philosophical basis of law
was to be found in the individual free will. Thus metaphysical
jurist, utilitarian, and historical jurist, much as they differed
in the route by which they got there, came to the same result:
The end of law was to secure the widest possible abstract free-
dom of individual action. It would automatically move forward,
they said, by the inherent power of the idea of liberty to un-
fold and realize itself.
In truth, the nineteenth-century historical school

was not historical. It was metaphysical. The reconcili-
ation of the historical with the metaphysical, which was
current at the end of the century, may be found in He-
gel."' Each was heir to the law-of-nature theories of the
136. Ante, § 17, 2(3).

137. "I maintain that the sequence in the systems of philosophy in history
is similar to the sequence in the logical deduction of the notion-determinations
[519 ]
The End of Law
eighteenth century. Each sought a universal, unchal-

lengeable fundamental principle. One studied the un-
folding thereof in human experience as manifested in
legal institutions and legal doctrines. The other verified
the same process a prioriand unfolded the principle logi-
cally. Hence, the juristic pessimism of the metaphysical
school-the feeling that conscious attempt to improve
the content as distinguished from the form of the law
was futile-was fully shared by the historical school. 3 '
(4) The positivists.'39 Somewhat later the doc-
trines as to the end of law which had become fixed in An-
in the idea. I maintain that if the fundamental conceptions of the systems

appearing in the history of philosophy be entirely divested of what regards
their outward form . . . the various stages in the determination of the
idea are found in their logical notion. Conversely in the logical progression
taken for itself there is, so far as its principal elements are concerned, the
progression of historical manifestations. . . . This succession undoubted-
ly separates itself, on the one hand, into the sequence in time of history, and
on the other, into succession in the order of ideas." I Hegel, History of Phi
losophy (transl. by Haldane, 1892-1896) 30.
138. "It was in no attitude of investigation and reflection . . . that
the Hegelian philosophy even wished to derive the world from its single prin-
ciple; it only proposed to look on and see how the development followed from
the inherent impulse of the idea." Lotze, Logic, § 150 (English transl. 1884, p.
196).
"[The historical school] had clipped its wings and as it were disarmed itself
in declaring that scientifically it could exert no effect upon the phenomenal
development of law; it had only to await, to register, to verify." Saleilles,
icole historique et droit naturel (1902) 1 Revue trimestrielle de droit civil, 80,
94.
139. Spencer, Principles of Sociology, pt. 2, Inductions of Sociology (1876);
id. Justice, (1891) chaps. 4-8. See Ardigo, La morale dei positivisti (1879);
Gumplowicz, Grundriss der Soziologie (1885); id. Soziologie und Politik (1892);
Vanni, Lezioni di filosofia del diritto (3 ed. 1908); Lvy-Bruhl, La morale et la
science des moeurs (1903).
[520]
8. Juristic Thought
glo-American juristic thought under the influence of the

historical school were reinforced in America by the influ-
ence of the positivists. Spencer's writings had much
vogue in France, Italy, and Spain, as well as in America.
Many American cases where judicial opinions show the
effect of his ideas might be cited. The earlier positivists
thought of the universe as governed by mathematical
mechanical laws, and hence of moral and social phenom-
ena as referable to such laws also. The next generation
of positivists, influenced by Darwin, thought of evolu-
tion as governed by some such mechanical laws. Accord-
ingly, the purpose of the positivist jurists was to find
laws of morals, laws of social evolution, and laws of legal
development analogous to gravitation, conservation of
energy and the like."'0 These laws were to be found by
observation and experience. But observation and expe-
rience led them to the same result to which metaphysics
had led the nineteenth-century philosophical jurists and
history had led the historical jurists."" Spencer seems
140. "I always conceive of sovereignty in the abstract as the resultant of

several conflicting forces moving in a curve. If law were the will of the
strongest, it would be logical and direct. Law is not the will of the strongest,
for the will of the strongest is always deflected somewhat from its proper path
by resistance. Sovereignty, therefore, is a compromise, as the earth's orbit
is a compromise." Brooks Adams, in Centralization and the Law (1906) 52.
141. "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
freedom of any other man." Spencer, Justice (1891) § 27. "They urge that, as
throughout civilization the manifest tendency has been continually to extend
the liberties of the subject and restrict the functions of the state, there is rea-
[521]
The End of Law
to have thought of the progress from status to contract

as the rational outcome of the universe. He took abstract
freedom of contract to be, as one might say, the ideal to
which evolution continually tended. Moreover, the posi-
tivists got their data from the historical jurists, and so
looked at them not independently but through the specta-
cles of that school.' Spencer's formula of justice is a
Kantian formula. He had never read Kant.143 But Kant
had become part of the thought of the time so thoroughly
that each of the significant nineteenth-century schools-
son to believe that the ultimate political condition must be one in which per-
sonal freedom is the greatest possible; that, namely, in which the freedom
of each has no limit but the like freedom of all; while the sole governmental
duty is the maintenance of this limit." Spencer, First Principles (1863) § 2.
Cf. id. Social Statics (1866) chap. 6, § 1. "Governments are being remanded, if
not into the rubbish heap of the world's back yard, yet into a secondary and
subordinate place. And whereas men have relied in the past on the sovereign
and the statute book for order, safety, prosperity, happiness, they are now
fast coming to rely for them simply on themselves." Kimball, Morals in Poli-
tics, in Brooklyn Ethical Society, Man and the State (1892) 521-522. The last
statement should be compared with Green (note 115, supra), Carter (note 118,
supra), the utilitarian view as stated by Dicey (note 123, supra), and by Mark-
by (note 128, supra), Sharswood (note 128, supra), and Miller (note 117, supra).
Purporting to be based purely on induction, it exhibits a curious blindness to
the legal and political facts of the time.
142. Maine's Ancient Law is the principal juristic authority used in Spen-
eer's Justice. See the table of references (American ed. p. 287 ff.). It is hardly
a mere coincidence that the idea of the function of law in maintaining the lim-
its within which the freedom of each is to find the widest possible develop-
ment (Spencer, First Principles, § 2, quoted In note 141, 8upra) so closely re-
sembles Savigny's formula: "If free beings are to coexist . . invisible
boundaries must be recognized within which the existence and activity of each
individual gains a secure free opportunity. The rules whereby . . . this
free opportunity is secured are the law." 1 System des heutigen rumischen
Eechts (1840) § 52.
143. Justice (1891) Appendix A.
[ 522]
8. Juristic Thought
the metaphysical school, the English utilitarians, the his-

torical school, and the positivists-came to his position
as to the end of law, though for different reasons and in
different ways." Moreover, the juristic pessimism of
the other schools was fully shared by the positivists.'45
(5) The economic realists. " Juristic radicalism in
the nineteenth century took two paths. On the one hand,
the idea of justice as the maximum of individual self-
assertion and the prevailing juristic pessimism led some
(the anarchist individualists or philosophical anarchists)
to develop to its extreme logical consequences the doctrine
that law is intrinsically evil in that it restrains liber-
ty. 47 Hence they advocated a regime of individual ac-
144. Cf. Charmont, La renaissance du droit naturel (1910) 122. As to Spen-

cer's relation to Kant, see I Maitland, Collected Papers (1911) 279-280.
145. "We are to search out with a genuine humility the rules ordained for
us-are to do unfalteringly, without speculating as to consequences, whatso-
ever these require." Spencer, Social Statics (1866) Conclusion, § 8. "If so-
ciety be, as I assume it to be, an organism operating on mechanical principles,
we may perhaps, by pondering upon history, learn enough of those principles
to enable us to view, more intelligently than we otherwise should, the social
phenomena about us." Adams, Theory of Social Revolutions (1913) 203. See
the comments of Del Vecchio, Formal Bases of Law (transl. by Lisle, 1914) §
70.
146. 2 Berolzheimer, System der Rechts- und Wirtschaftsphilosophie
(1905) §§ 37-40 (World's Legal Philosophies (1912) 260-307); Brown, The Un-
derlying Principles of Modern Legislation (1914) Prologue (The Challenge of
Anarchy).
147. Proudhon, Qu'est-ce que la proprietd? (1840); id. Idde grndrale de ]a
rdvolution au dix-neuviome sicle (1851); id. De la justice dans la rdvolution
et dans l'6glise (1858); Stirner, Der Einzige und sein Eigenthum (1845, English
transl. as The Ego and His Own, 1907); Grace, La socit future (7 ed. 1895).
See Basch, L'individualisme anarchiste: Max Stirner (1904).
[ 523 ]
The End of Law
tion by voluntary cooperation, free from coercion by

-state-enforced rules."' 8 They urged that government and
law were in reality but means of economic oppression.
Hence they claimed to look at realities and styled them-
selves realists. As this group argued for a free consen-
sual rather than a legal ordering of society, naturally
enough it gave us nothing which is of importance for
jurisprudence. On the other hand, the idea of law and
government as means of achieving individual liberty
(i.e. rather than of letting it achieve itself) was taken
up by another group,14 which, rejecting political and ju-
ristic pessimism but holding to the idea of individual
self-assertion as the end, developed what may fairly be
148. "Free association, liberty, which is confined to the maintaining of

equality in the means of production and of equivalence in exchanges, is the
only possible just and true form of society. Politics is the science of liberty;
under whatever name it may be disguised, the government of man by man is
-oppression. The highest form of society is found in the union of order and
anarchy." Proudhon, Qu'est-ce que la propridtd? I Oeuvres Complotes (1873
ed.) 224. So Stirner argues that the "liberty" of the metaphysical school is
but a negative idea; put positively, the end is: "Be your own; live for your-
self, according to your individuality." Accordingly, the only justification for
society is to contribute to the development of the individual and "permit a
larger extension of his powers without demanding restrictions upon his per-
sonality beyond what already exist as natural conditions of life in the environ-
ment in which he is found." Grave, La soci~td future (7 ed. 1895) 157.
149. Menger, Das biirgerliche Recht und die besitzlosen Volksklassen (1889,
4 ed. 1908); id. Ueber die sozialen Aufgaben des Rechts (1895, 3 ed. 1910);
Picard, Le droit pur (1899, reprinted 1920); Barasch, La socialisme juridique
.(1923)-contains a full bibliography; Panunzio, I1 socialismo giuridico (2 ed.
1911).
Here we are concerned with the socialists only in their relation to nine-
teenth-century juristic thought as to the end of law. Reference may be made
ito 2 Berolzheimer, System der Rechts- und Wirtschaftsphilosophie (1905) § 38.
[ 524]
8. Juristic Thought
called a social individualism.' Where the main current

of nineteenth-century juristic thought, following the sev-
enteenth and eighteenth-century tradition, opposed so-
ciety and the individual and was troubled to reconcile
government and liberty, this group sought individual lib-
erty through collective action and called for the maxi-
mum of governmental control as the means to a maxi-
mum of liberty.151 On another side, in contributing to
theories of the social interest in the individual life and in
developing the Hegelian idea of a culture-state (a state
performing services) as distinguished from the Kantian
law-state (a state which enables men to be free), the nine-
teenth-century socialists mark the beginnings of a transi-
tion to a new conception of the end of law. But this as-
pect must be considered in another connection.
150. "Socialism in all its forms leaves intact the individualistic ends, but
resorts to collective action as a new method of attaining them. That socialism
is through and through individualistic in tendency, with emotional fraternal-
ism superadded, is the point I would especially emphasize." Adler, The Con-
ception of Social Welfare (1913) Proceedings of the Conference of Legal and
Social Philosophy, 9. See Radbruch, Grundziige der Rechtsphilosophie (1914)
97-98; id. Rechtsphilosophie (3 ed. 1932) § 6.
151. "It is the function of the state to further the development of the hu-
man race to a state of freedom. . . . It is the eduction and evolution of
the human race to a state of freedom." Lassalle, Arbeiterprogramm (1863) 1
Werke (ed. by Blum) 156, 200. "I take it that the regime of a socialist admin-
istration will involve an enormous change of attitude in dealing with crime.
Firstly, it will without doubt reduce to the minimum the number of actions
characterized by the law as crimes. Secondly, it will certainly regard the
greatest possible consideration for the criminal compatible with the mainte-
nance of social existence at all, as its first duty in the matter." Bax, The
Ethics of Socialism (3 ed. 1893) 57. It should be noted that the first prophecy
is not borne out by modern social legislation.
[ 525 ]
The End of Law
(6) Summary.1" In the nineteenth century, the

idea of justice as the maximum of free individual self-
assertion, which begins to appear at the end of the six-
teenth century, reached its highest development. But at
the same time the actual course of legal rules and doc-
trines began to turn toward a new idea of the end of law,
and the forerunners of that idea appeared in juristic
thought.
§ 46. THE TWENTIETH CENTURY. 5 3 Al-
though nineteenth-century jurists seemed to be agreed in
152. Courcelle-Seneuil's parallel between the ancient ideal and the ideal of
the nineteenth century brings out the nineteenth-century conception of the end
of law. He contrasts "a society ruled by laws, under the supervision of a pub-
lic authority invested with compulsory powers" with "a society living by the
free initiative of its citizens, regulated by the observance of the moral law."
Preparation & l'dtude du droit (1887) 99, 396.
153. Pound, Twentieth Century Ideas as to the End of Law (1934) Harvard
Legal Essays, 357-375; id. How Far Are We Attaining a New Measure of
Values in Twentieth-Century Juristic Thought (1936) 42 West Va. Law Quart.
81; id. Fifty Years of Jurisprudence (1938) 51 Harvard Law Rev. 444, 448-
472; id. Social Control Through Law (1942) 106-134.
Cardozo, Paradoxes of Legal Science (1928) lects. 2, 3; Stammler, Wesen des
Rechtes und der Rechtswissenschaft, §E (in Systematische Rechtswissenschaft,
i-lix, also in 1 Rechtsphilosophische Abhandlungen (1925) 387-443); id. The-
orie der Rechtswissenschaft (2 ed. 1923) 265-310; id. Lehre von dem richtigen
Rechte (2 ed. 1926) 140-143, 144-154, 361-363; Kohler, Lehrbuch der Rechts-
philosophie (1 ed. 1909) 38-43 (Albrecht's transl. 1914, 58-65); id. Rechtsphilos-
ophie und Universalrechtsgeschichte (in 1 Holtzendorff, Enzyklopddie der
Rechtswissenschaft, 7 ed. 1913) §§13-16, 33-34, 51; Radbruch, Grundziige der
Rechtsphilosophie (1914) 82-138; id. Rechtsphilosophie (3 ed. 1932) 54-55;
Gurvitch, Une philosophie antinomique de droit-Gustav Radbruch (1932) Ar-
chives de philosophie du droit, 530, 531-638; Binder, Philosophie des Rechts
(1925) §8; id. System der Rechtsphilosophie (2 ed. 1937) § 9; Lask, Rechtsphil-
osophie (1905) (in 1 Gesammelte Schriften, 1923, 304-306); Huber, Recht und
Rechtsverwirklichung (1921) 102-130; Djuvara, Le fondement du phdnomene
juridique (1913) 88 117-120; Mayer, Rechtsphilosophie (1922) 70-71, 93-97; 1
[ 526 ]
8. Juristic Thought
conceiving of a maximum of free individual self-asser-

tion as the end of the legal order, in the last quarter of
the century courts and lawmakers found themselves
pushed continually toward a new approach to legal prob-
lems because of the pressure of unrecognized or unse-
cured interests. For a time, it affected courts and law-
makers only. It is not too much to say that, except for
the systematic work of analytical jurists, from the stand-
point of making legal institutions effective for their pur-
pose, the courts and the leaders of the practising profes-
sion were ahead of the legal science of the last generation.
While legislative lawmaking and judicial finding and
shaping of law were reaching out for a new conception,
the scientific approach and the orthodox professional ap-
proach remained either rationalist or historical. Each
of these approaches leads back to the rationalism which
replaced authoritarianism at the breakdown of the rela-
tionally organized society of the Middle Ages.
Gdny, Mdthode d'interprdtation et sources en droit privd positif (2 ed. 1919)

§§ 171-177; id. I Science et technique en droit priv6 positif (1913) 9-11; 2 id.
§ 117; Demogue, Notions fondamentales du droit privd (1911) chaps. 1-12, es-
pecially chap. 12 (transl. in Modern French Legal Philosophy (1917) chaps. 12-
23); Picard, Le droit pur (1899) §§ 169-196; Ehrlich, Grundlinien der Soziolo-
gie des Rechts (1913) chaps. 9-10 (transl. by Moll as Fundamental Principles
of the Sociology of Law (1936) 192-244).
2 Berolzheimer, System der Rechts- und Wirtschaftsphilosophie (1905) §§
43-48, 52 (World's Legal Philosophies, 336-431, 466, 477); Cohen, Positivism
and the Limits of Idealism in the Law (1927) 27 Columbia L.Rev. 237, 240;
Duguit, Les transformations gdndrales du droit privd depuis le Code Napoldon
(1912) 1-81.
(5271
The End of Law
No doubt it is too soon to form an assured judgment

as to theories of the end of law in the twentieth century.
But some part of the new paths is apparent, and there
seems good ground for asserting that twentieth-century
law and twentieth-century juristic thinking are taking
two directions: (1) Concern for the concrete individual
life rather than for the abstract individual will, and (2)
concern for civilization as distinct from and contrasted
with politically organized society.
Indeed, two new jural postulates seem to be appear-
ing:
(1) Everyone is entitled to assume that the burdens
incident to life in society will be borne by society.
(2) Everyone is entitled to assume that at least a
standard human life will be assured him; not merely
equal opportunities of providing or attaining it, but im-
mediate material satisfactions.
Thus far they have been affecting the law here and
there, chiefly through legislation. They go along with
the era of socialization of law.
Many causes, social, economic, and political, have
contributed to require shifting of the emphasis from the
abstract will of the abstract individual to concrete claims
of concrete human beings. What compelled jurists to
this shift of emphasis was the development of psychology
in the latter part of the last century. Under attack from
modern psychology, the "individual," in the sense of the
[ 528 ]
8. Juristic Thought
nineteenth-century metaphysical jurisprudence, and the

"individual free will" were as insecure foundations as
"the natural man" and the "state of nature" had proved
to be under the attacks of the critical philosophy a cen-
tury before."' Indeed, before philosophical jurists had
begun to think of such things, legislation was tending
more and more to show concern for concrete human be-
ings at the expense of abstract individualism. The last
quarter of the nineteenth century was marked by a
steady growth of such legislation, and the point of view
was typical in legislation and administration in the first
two decades, and in judicial decision in the second decade,
of the present century.
It will be worth while to look into this change in some detail.
No doubt pioneer conditions were behind homestead and exemp-
tion acts. But they survived pioneer life, and the principle of
this legislation is active in the urban industrial life of today.
Legislation against payment of wages in orders on company
stores was active after 1881, and legislation as to conditions of
labor after 1884. Later, there was legislation as to hours of labor
for women and children, child labor legislation, and minimum
wage legislation. 15 There were small loan acts or loan shark
154. "Man in abstracto, as assumed by philosophies of law, has never ac-

tually existed at any point in time or space." 3 Wundt, Ethics (transl. by
Titchener and others, 1901) 160. Cf. 2 Caird, The Critical Philosophy of Im-
manuel Kant (2 ed. 1909) 330-333; Paulsen, Immanuel Kant (transl. by Creigh-
ton and Lefevre, 1902) 293.
155. Although a majority of the Supreme Court of the United States, going
on abstract considerations, deemed this legislation arbitrary and unreasonable,
it is significant that such statutes were enacted throughout the English-speak-
ing world in the present century (see the appendix to the brief of counsel for
The End of Law
laws, workmen's compensation acts, blue sky laws, and much

more of the sort. It is especially instructive to compare the old
regime of employer's liability for negligence only, enforced by ac-
tions at law, with the new regime of workmen's compensation,
made effective by administrative agencies. The former afforded
a theoretically complete provision for abstract justice to both ab-
stract worker and abstract employer. Yet it failed notoriously
to do justice in concrete cases because of the delay and expense
involved in exact judicial determination of the facts, and the
precise measure of damages, because of the unequal position of
employer and employed,' 5 6 and because of the prejudice of jurors
due to dissatisfaction with a system whereby the risk of acci-
dents, inevitable in the conduct of industrial enterprises, was so
largely thrown upon those least able to bear it. In contrast, the
regime of workmen's compensation is theoretically defective in
many ways. It seeks a rough and ready justice rather than an
equal and exact justice complete for each case. Experience has
shown, however, that the interests of the concrete worker and,
on the whole of the concrete employer, are much better secured
by the regime which is abstractly defective than by the regime
in which the theoretical provision for full and exact justice to
all men in the abstract was quite perfect. Yet abstract indi-
vidualism had become part of our received ideals, and had so
strong a hold upon us that many courts obstinately resisted such
legislation, and most courts insisted for a generation on full
theoretical securing of the abstract individual at the expense of
the full human life of concrete human beings.
Take, for example, the attitude of the courts toward home-
stead and exemption laws. Chief Justice Taney, trained in the
appellant in the District of Columbia Minimum Wage Case) and that the over-
whelming weight of opinion among those who reviewed the decision was ad-
verse thereto. See the collection of reviews in The Supreme Court and Mini-
mum Wage Legislation, compiled by the National Consumers' League (1925).
156. See Smith, Justice and the Poor (3 ed. 1924) 87-90.
[ 530 ]
8. Juristic Thought
classical natural law, was willing to allow a state to make retro-

active exemptions "according to its own views of policy and
humanity." He conceived that a state might "direct that the
necessary implements of agriculture, tools of the mechanic, or
articles of necessity in household furniture, shall, like wearing
apparel, not be liable to execution on judgments ;" that the state
had power in this way to protect its citizens "in those pursuits
which are necessary to the existence and well being of every
community." 157 This view of Chief Justice Taney was approved
by a great text writer and by more than one court.-1' But a
generation later, when the question came directly before the Su-
preme Court of the United States, the waning of the old ethical
natural law, the rise of the conception of giving effect to the
declared will, and the economic development in the northern
states after the Civil War, led to interpretation in the light of
different ideals, and the view of Chief Justice Taney was re-
jected.' 59 In the Virginia Homestead Cases,160 the same year,
the argument of counsel brought out clearly and ably the con-
crete economic situation in the South after the Civil War, to
which the statutes involved in the two cases were palpably di-
rected. 16' The complete ignoring of this background of fact, as
wholly irrelevant,'0 2 should be compared with the weight given
to the de facto housing situation during and after the World
157. Bronson v. Kinzie, 1 How. (U.S.) 311, 315-316, 11 L.Ed. 143 (1843). See
also Woodbury, J. in Planters' Bank of Mississippi v. Sharp, 6 How. (U.S.) 301,
330, 12 L.Ed. 447 (1848).
158. Cooley, Constitutional Limitations (1 ed. 1868); Morse v. Goold, 11

N.Y. 281 (1854); Baldy's Appeal, 40 Pa.St. 328 (1861); Gunn v. Barry, 44 Ga.
351, 353 (1871); Re Kennedy, 2 S.C. 216 (1870); Sneider v. Heidelberger, 45
Ala. 126 (1871).
159. Gunn v. Barry, 15 Wall. (U.S.) 610, 620, 21 L.Ed. 212 (1873).
160. 22 Gratt. (Va.) 266 (1872).
161. Id. 267-268, 274-275.
162. See also Chambliss v. Jordan, 50 Ga. 81 (1873).
[ 531 ]
The End of Law
War in the District of Columbia Rent Cases, 16 3 and the New

York Housing Case, 1 4 and the judicial recognition of the de
facto crisis in the railway wage situation in 1916, which con-
trolled the decision on the Adamson Law.16 5 The concrete point
of view seemed as much a matter of course in the present cen-
tury as the abstract point of view in the last century and in the
dissenting opinions in the District of Columbia Rent Cases. So
strongly did homestead and exemption laws run counter to the
juristic ideas of the last century that, although they had clear
historical warrant in the common law,166 they were for a time
construed strictly, as in derogation of the common law, 6 7 or as
setting up exceptions to a "general rule" and so, as it were, in
derogation of "common right." 168
Another useful comparison may be made if we note the

spirit manifest in the course of decision in the courts from 1886
to 1900, and in some states down to 1910, upon liberty of con-
tract as affected by social legislation.
Two courts in passing adversely upon labor legislation, be-

cause it infringed a theoretical equality of free contract, noted
the frequency of such legislation in recent times, but said (one
of them as late as 1902) that it was not necessary to consider the
reasons therefor in order to determine whether the legislation
163. Block v. Hirsh, 256 U.S. 135, 41 S.Ct. 458, 65 L.Ed. 865, 16 A.L.R. 165
(1921).
164. People ex rel. Brixton Operating Corp. v. La Fetra, 230 N.Y. 429, 130
N.E. 601, 16 A.L.R. 152 (1921).
165. Wilson v. New, 243 U.S. 332, 37 S.Ct. 298, 61 L.Ed. 775, L.R.A.1917E,
938 (1917).
166. See Dick, J. in Re Vogler, 28 Fed.Cas. 1248, 1249 (No. 16,986) (1873).
167. Ward v. Huhn, 16 Minn. 159, 161 (1870); Guillory v. Deville, 21 La.
Ann. 686 (1869).
168. Robinson v. Wiley, 15 N.Y. 489 (1857).
[ 532 ]
8. Juristic Thought
was reasonable. 169 Reasonableness was an abstract question to

be determined from the text of the statute abstractly regarded.
Another court asked what "right"-not what warrant in fact
but what abstract justification-the legislature had to "assume
that one class has need of protection against another." 170 An-
other court said gravely that the remedy for the company-store
evil was "in the hands of the employee," 171 since theoretically
he was on an equal footing with the employer, compulsion in
concrete economic fact being irrelevant where it had no place in
abstract legal theory. 17 Still another said that "theoretically
there is among our citizens no inferior class," 173 and no facts
169. Low v. Rees Printing Co., 41 Neb. 127, 135, 59 N.W. 362, 363, 24 L.R.A.
702 (1894); State v. Kreutzberg, 114 Wis. 530, 537 (1902). Each court, in later
cases, became willing to consider the concrete situation. Wenham v. State, 65
Neb. 394, 91 N.W. 421, 58 L.R.A. 825 (1902); Borgnis v. Falk Co., 147 Wis. 327,
133 N.W. 209, 37 L.R.A.,N.S., 489 (1911).
170. State v. Haun, 61 Kan. 146, 162, 59 P. 340, 346, 47 L.R.A. 369 (1899).
As to the factual situation between employer and employee, as it was in the pe-
riod of this legislation, see Smith, Justice and the Poor (3 ed. 1924) chap. 2.
171. State v. Fire Creek Coal & Coke Co., 33 W.Va. 188, 190, 10 S.E. 288, 289,
6 L.R.A. 359 (1889).
172. Those who had studied the concrete situation had this to say: "He is
not free to make such a contract as might please him because, like every party
to a contract, he must come to such conditions as may possibly be agreed up-
on. He is less free than the parties to most contracts, and, further, he cannot
utilize his labor in many directions; he must contract for it within restricted
lines." Wright, Practical Sociology (5 ed. 1902) 226. It is instructive to com-
pare the reliance upon an abstract equality in the opinion of the West Virginia
court in 1889 with the concrete view of a similar situation taken by Mr. Justice
Holmes in 1907: "Probably the modification of this general principle [assump-
tion of risk] by some judicial decisions and by statutes like [the Federal Safe-
ty Appliance Act] . . . is due to an opinion that men who work with
their hands have not always the freedom and equality of position assumed by
the doctrine of laissez faire to exist." Schlemmer v. Buffalo, R. & P. R. Co., 205
U.S. 1, 12, 27 S.Ct. 407, 409, 51 L.Ed. 681 (1907).
173. Frorer v. People, 141 Ill. 171, 186, 31 N.E. 395, 399, 16 L.R.A. 492 (1892)
holding adversely to a statute prohibiting company stores and requiring miners
to be paid weekly.
[ 533]
The End of Law
could avail against that theory. Other courts, at the end of the
last century, spoke of company-store legislation and laws to
insure fair ascertainment of the laborer's work, where he was
paid on the "basis of work rather than of time," as putting la-
borers under guardianship,17 4 as creating a class of statutory
laborers, 175 and as stamping industrial laborers as imbeciles,176
i.e. as creating status to replace contract. As late as 1908, even
the Supreme Court of the United States dealt with the relation
of employer and employee in railway transportation as if it were
a matter of two neighbors bargaining in the rural, agricultural
neighborhood of a century ago. 177 This artificial type of rea-
soning, on the basis of a theoretical abstract equality, ignoring
the facts of the economic order, began to disappear from the
books, in this particular connection, fifty years ago.178 It no
longer needs to be refuted in spite of a temporary recrudescence
after the first World War. More and more the courts take for
granted that they may, and indeed must, look at life in the con-
crete and not man in the abstract.
174. Braceville Coal Co. v. People, 147 Ii. 66, 74, 35 N.E. 62, 64, 22 L.R.A.
340 (1893) (coal to be weighed for fixing wages); State v. Haun, 61 Kan. 146,
162, 59 P. 340, 47 L.R.A. 369 (1899) (wages to be paid in money).
175. People ex rel. Warren v. Beck, 10 Misc. 77, 30 N.Y.S. 473 (1894) dis-
senting opinion of White, J. The statute fixed hours of labor on municipal con-
tracts.
176. State v. Goodwill, 33 W.Va. 179, 186, 10 S.E. 285, 288, 6 L.R.A. 621
(1889) (statute against payment in store orders). Another court said such leg-
islation was insulting to the manhood of laborers. Godcharles v. Wigeman, 113
Pa.St. 431, 437, 6 A. 354, 355 (1886) (wages to be paid in money). In Lochner
v. New York, 198 U.S. 45, 57, 25 S.Ct. 539, 543, 49 L.Ed. 937 (1905) Peckham, J.
said: "They are in no sense wards of the state."
177. Harlan, J. in Adair v. United States, 208 U.S. 161, 175, 28 S.Ct 277,
280, 52 LEd. 436 (1908). See the comments on this in Mr. Olney's paper, 42
American Law Rev. 164.
178. McLean v. Arkansas, 211 U.S. 539, 29 S.Ct. 206, 53 L.Ed. 315 (1909);
Chicago, B. & Q. R. Co. v. McGuire, 219 U.S. 549, 566-575, 31 S.Ct. 259, 261-265,
55 L.Ed. 328 (1911).
[ 534]
8. Juristic Thought
In the first decade of the present century, economists, sociol-

ogists, and students of politics had become aware of this change
of front at a time when jurists were still repeating the nine-
teenth-century formulas. It was easy to assume that the Kan-
tian conception was identified with law. Hence, the first at-
tempts to formulate a new theory of the end of law were put in
1 79
terms of a contrast between social justice and legal justice.
The divergence between the idea which was growing up in actual
rules and doctrines, especially through legislation, and the ortho-
dox conception in juristic thinking, the divergence between the
idea which was coming to obtain in the other social sciences and
the one which held in jurisprudence, was most acute in the Unit-
ed States at the time of the agitation for recall of judges and
recall of judicial decisions.180 Today the divergence is less
marked or has even disappeared, and other ways of formulating
a newer idea of the end of law have replaced formulation in
terms of contrast. From the side of ethics the change from
the nineteenth-century conception has been put as a shifting
from an economic standpoint, which regarded primarily indi-
vidual claims in property, and promised advantages, to a civil-
ization standpoint, which seeks to make possible for each indi-
vidual a full moral life.' 8' Here, I take it, the term "economic"
is used to refer to the point of view of the classical economics,
179. Pound, The End of Law as Developed in Legal Rules and Doctrines:
1. Social Justice and Legal Justice (1914) 27 Harvard Law Rev. 195, 195-198;
Willoughby, Social Justice (1900) 20-21; Carver, Social Justice (1915) 3-34;
Hobhouse, Elements of Social Justice (1922) chaps. 1-4.
180. See Ross, Social Psychology (1908) 211-212. A number of instances
are collected in my papers, Do We Need a Philosophy of Law (1905) 5 Columbia
Law Rev. 339, 344-347, Liberty of Contract (1909) 18 Yale Law Journ. 454, 463,
470-481.
181. "The old justice in the economic field consisted chiefly in securing to
each individual his rights in property or contracts. The new justice must con-
sider how it can secure for each individual a standard of living, and such a
share in the values of civilization as shall make possible a full moral life."
Dewey and Tufts, Ethics (1908, rev. ed. 1938) 496.
[ 535 ]
The End of Law
which was identical with that of nineteenth-century jurispru-

dence.'" From the standpoint of economic realism the change
has been put as a conception of justice in terms of wants rather
than of wills. 15 3 Juristically it might be put as a shift of em-
phasis from the social interest in the general security (chiefly
in the form of security of acquisitions and security of transac-
tions) to the social interest in the individual life.
Social philosophical jurists have been busy upon

philosophical theories of this change of front and at-
tempts to formulate a new conception of the end of law.
The social utilitarians would see a change from valuing
in terms of individual will to valuing in terms of social
advantage, from the greatest happiness of each as a
measure of the conduct of all to the greatest happiness
of all as a measure of the conduct of each.'" The neo-
Kantians would substitute an attempt to comprehend all
1 15
possible ends for a harmonizing of all individual wills.
The neo-Hegelians would substitute for the simple idea
of freedom a complex idea of civilization. They would
replace the maximum of abstract, individual, free self-
182. "It is very arguable that the science of political economy, as studied
in its first period after the death of Adam Smith (1790), did more harm than
good. It destroyed many economic fallacies, and taught how to think about
the economic revolution then in progress. But it riveted on men a certain set
of abstractions which were disastrous in their influence on modern mentality.
It dehumanised industry." Whitehead, Science and the Modern World (1938)
288.
183. "The satisfaction of every one's wants so far as they are not out-
weighed by others' wants." Ward, Applied Sociology (1906) 22-24.
184. I Jhering, Zweck im Recht (2 ed. 1884) 64-67, 560-570.
185. Stammler, Lehre von dem richtigen Rechte (1902) 196-198.
[ 536]
8. Juristic Thought
assertion, as a measure of values, by the maximum of

human control over nature, both external nature and hu-
man nature, toward the satisfaction of human wants.'86
The neo-Scholastics would subject social life to the scru-
tiny of reason in order to find fundamental norms, i.e.
would think of the phenomena of life in civilized society
as moral phenomena, not merely of the abstract man as
a moral phenomenon." 7 The adherents of the positivist
natural law would think not of the abstract rights of ab-
stract individuals but of the functions of social life in a
civilized society and of the relation of concrete human
behavior thereto.' s The neo-Idealist school, which has
been formative in the last forty years, would think of a
contrast between individual personality values and com-
munity values, and a transcending of both in a concep-
tion of civilization and the values of civilized life.' 9
Finally, those who come to the problems of law from a
psychological approach would think of a task or series of
tasks of adjusting or harmonizing or integrating conflict-
ing or overlapping human desires or expectations so as
to achieve the values of civilization with a minimum of
186. Kohler, Moderne Rechtsprobleme (2 ed. 1913) § 1.

187. 2 Gny, Science et technique en droit privd positif (1913) § 177.
188. Duguit, Les transformations gdnfrales du droit privd depuis le Code
Napoldon (1912) 24.
189. Lask, Rechtsphilosophie (1905) (in 1 Gessammelte Schriften, 1923, 277,

304 ff.); Radbruch, Grundztige der Rechtsphilosophie (1914) 82-158; Binder
Philosophie des Rechts (1925) §§ 8-9.
[ 537]
The End of Law
friction and waste.' It is significant that in one way or

another all have set their faces toward civilization values
as definitely as men in the last three centuries had set
theirs toward individual personality values.
No doubt the will-jurisprudence of the nineteenth century
will hang on here and there for a long time to come, just as the
contract jurisprudence of the eighteenth century has been known
to darken counsel in out-of-the-way cases even in twentieth-
century courts. 91 But as a real force either in the law or in the
science of law, the one is now as spent as the other.
It has been usual to contrast personalism and trans-

personalism, or, as it is more commonly put, individual-
ism and socialism, as exclusive alternatives, and hence
many have conceived of the increasing emphasis upon
civilization values as a movement toward collectivism.
But it has no absolute relation to the controversies be-
tween adherents of an atomistic and advocates of an or-
ganic conception of society. It is not necessary to make
an out and out choice once for all between nineteenth-
century abstract individualism and nineteenth-century
orthodox socialism as inevitable alternatives. It is not
necessary to make a thoroughgoing choice, once for all,
between, on the one hand, looking at all things from the
standpoint of the individual personality-reckoning com-
munity values and civilization values in terms of person-
190. Pound, Interpretations of Legal History (1923) 150-165.

191. Sinclair v. Brougham [1914] A.C. 398, 415,417.
[ 538 ]
8. Juristic Thought
ality value-and, on the other hand, looking at all things

from the standpoint of organized society-reckoning
personality values and civilization values in terms of
community values or political values. It is quite as pos-
sible to reckon both personality values and community
values in terms of civilization values. Everything that
is not abstract individualism is not therefore socialism
in any but a propagandist sense of that term. To lump
the reckoning in terms of civilization values with the
reckoning in terms of community values under an epithet
of "socialism" is superficial. They are quite as distinct
from each other as each is distinct from the abstract in-
dividualism of the last century. If nineteenth-century
abstract individualism carries on the abstract individu-
alism of the law-of-nature school, yet it does so on an
organic basis. And if nineteenth-century socialism has
a Hegelian philosophical pedigree and a historical ju-
ristic pedigree, yet it conceives of the end of law in terms
of abstract individualism. The first and second of the
three standpoints might with equal truth be lumped as
"individualism." Individualist and collectivist or social-
ist in the last century were at one as to the highest good.
Each strove for political and legal institutions which
would promote the greatest and freest self-assertion.
The one sought it through a regime of legal and political
hands off. The other sought it through a regime of all-
embracing legal and political action. For, as has been
said, the orthodox socialism of the last century was in
[ 539 ]
The End of Law
effect a social individualism. It sought a maximum of

free individual self-assertion through a maximum of col-
lective action, as orthodox individualism sought it
through a minimum of collective action. When individu-
al self-assertion becomes means rather than end, we have
something which is neither "individualism" nor "social-
ism," as those terms got their settled application in the
last century, but a distinct tendency, more and more
characteristic of the present century.
Another tendency quite as significant is a relativism
which has definitely given up expectation of converting
all men or even all jurists to some one necessary philo-
sophical version of the highest good or some one absolute
philosophical measure of values, and has given up insist-
ence that until these are found and agreed to the science
of law must stand by and await the result of the philo-
sophical debate. The measure of values for recognizing,
delimiting and securing interests is an ultimate question
for philosophy of law. But we must bear in mind that
men have always differed profoundly, and very likely
always will differ profoundly, as to the theory and the
details of this subject. Indeed, it is largely because they
cannot agree on this measure that we must have law." '
In the nineteenth century, jurists had agreed on a con-
ception of the end of law which was consistent or made
to consist with all the diverse philosophical starting
192. See James, Pragmatism (1907) 10-14.

[ 540 1
8. Juristic Thought
points of the time. In like manner, we must seek a juris-

tic conception of the end of law consistent with the dom-
inant philosophies of today and at the same time consist-
ent with modern psychologies. But here again, there are
fundamental differences, not likely soon to be settled, for
the solution of which jurists cannot wait. What has to
be done, consistently with many philosophical approach-
es and with the current psychologies, is to harmonize,
adjust, reconcile, and so far as possible integrate conflict-
ing or overlapping human expectations. Miss Follett has
indicated how this problem may be approached from the
Gestalt psychology. 93
' One might do the like from the
standpoint of behaviorism 194 or from that of Professor
MacDougall.195
193. Creative Experience (1930) 265-271, 295-299.

194. Watson, Behaviorism (1925) 17, 216-248 (rev. ed. 1930). One would
need only to change the terminology in order to build a like theory of this.
Cf. Allport, Social Psychology and Human Values (1928) 38 Internat.Journ.
of Ethics, 369-373.
195. One need only turn to the list of human "instincts" or "fundamental
tendencies" or "predispositions" in any of the texts on social psychology, or
to the catalogues of "inborn behavior tendencies," or "universal habits," as
they are being called more recently, in order to see an obvious relation between
interests, as the jurist uses that term today, or what we have been wont to call
natural rights or public policies, on the one hand, and these "instincts" or
"fundamental tendencies" or "predispositions" or "universal habits," on the
other hand. Thus in social psychologies we used to read of the parental in-
stinct. In jurisprudence we read of individual interests in the domestic rela-
tions and of the social interest in the security of domestic institutions. In
the one we used to find an "instinct of repugnance" and "predisposition to
aesthetic discrimination." In the other we must consider a social interest in
aesthetic surroundings, which the law is beginning grudgingly to recognize.
In the one we find the "instinct of self abasement," and in the other the so-
called "right of privacy." Likewise there is evident relation between the "in-
[ 541]
The End of Law
William James has shown us how these things may

be put in terms of an ethical theory:
"Take any demand, however slight, which any creature,
however weak, may make. Ought it not for its own sake to be
satisfied? . . . The only possible kind of proof you could
adduce would be the exhibition of another creature who should
make a demand that ran the other way. . . . Any desire
is imperative to the extent of its amount; it makes itself valid
by the fact that it exists at all. Some desires, truly enough, are
small desires; they are put forward by insignificant persons,
and we customarily make light of the obligations which they
bring. But the fact that such personal demands as these impose
small obligations does not keep the largest obligations from
being personal demands. . . . After all, in seeking for a
universal principle, we inevitably are carried onward to the
most universal principle-that the essence of good is simply to
satisfy demand. . . . Since everything which is demanded
is by that fact a good, must not the guiding principle for ethical
philosophy (since all demands conjointly cannot be satisfied in
this poor world) be simply to satisfy at all times as many de-
mands as we can? That act must be the best act, accordingly,
which makes for the best whole, in the sense of awakening the
least sum of dissatisfactions. In the casuistic scale, therefore,
those ideals must be written highest which prevail at the least
cost, or by whose realization the least number of other ideals
are destroyed. . . The course of history is nothing but
stinct of pugnacity," so-called, and the law as to self-defence; between the

"instinct of self-assertion," so-called, and the anxiety of the law that the will
of the individual shall not be trodden upon; between the "instinct of acquisi-
tion," so-called, and the individual interests of substance and social interest
in the security of acquisitions; between the "instinct of gregariousness," so-
called, and loyalty and veracity as tendencies or habits connected therewith,
and the social interest in the security of transactions. McDougall, Social Psy-
chology (12 ed. 1917) 55, 62, 84 ff.; Hayes, Introduction to the Study of So-
ciology (1915) 219; Colvin & Bagley, Human Behavior (2 ed. 1929) 133.
[ 542 ]
8. Juristic Thought
the story of men's struggle from generation to generation to find

the more inclusive order. Invent some manner of realizing your
own ideals which will also satisfy the alien demands-that and
that only is the path of peace! . . . Though some one's
ideals are unquestionably the worse off for each improvement,
yet a vastly greater total number of them find shelter in our
civilized society than in the older savage ways. . . . As
our present laws and customs have fought and conquered other
past ones, so they will in their turn be overthrown by any new-
ly discovered order which will hush up the complaints that they
still give rise to without producing others louder still." 196
No doubt it is too soon to attempt to lay out lines

with assurance. Juristic thought is still too much in
transition to some new conception of the end of law. The
immediate direction, however, seems to be toward seek-
ing to satisfy the maximum of the whole scheme of hu-
man desires or expectations (or wants, or demands) so
far as it may be done through the legal order without too
much sacrifice.
William James tells us that there is a continual search for
the more inclusive order. This is illustrated by the history of
ideas as to the end of law. Thinkers have continually gone be-
hind an idea of the past to a more inclusive one. At first, they
thought of the end as keeping the peace. But why keep the
peace? It seemed to be for the purpose of maintaining the
social order. Hence, the end was taken to be orderly maintaining
of the social status quo. But why maintain the social order? Be-
cause to do that makes division of labor possible and so sets us
free to exert our natural faculties-to do things. Accordingly,
the end was held to be promoting the maximum of free, indi-
196. James, The Will To Believe (1897) 195-206.

[543]
The End of Law
vidual self-assertion. Yet why leave us free to do things? Be-

cause freedom to do things is a strong human desire, or want, or
demand. Thus we come to the idea of a maximum satisfaction of
human desires or wants. Men wish to be free, but they want
much besides. What we have to do in social control, and so in the
legal order, is to reconcile these desires, or wants, so far as we
can, so as to secure as much of the totality of them as we can.
Down to the present, that is the more inclusive order.
It is worth noting how jurisprudence has, as one

might say, experimented with successive analogies. (1)
First, the Greek philosophers used the analogy of the or-
der of physical nature. (2) The scholastic theological
philosophers used the analogy of the legislation of Justi-
nian, and thought of divine legislation for the universe
of which human lawmaking and application of law were
to be a reflection. (3) The rationalists used the analogy
of deducing the properties of a triangle from a limited
number of axioms. (4) The metaphysical-historical
method used the analogy of embryology; of the develop-
ment of a complex organism from a simple embryo
through some energy from within. (5) The positivist so-
ciologists used the analogy of the revolutions of the plan-
ets in orbits calculable through mathematics. Instead of
these, sociological jurisprudence turns to analogies which
do not postulate determinism and yet remind us that
what we do in law is conditioned by many things.197 Ac-
cordingly, I have urged an "engineering interpretation,"
197. See e. g. Cardozo, Paradoxes of Legal Science (1928) lects. 2, 3.
[544 ]
8. Juristic Thought
using the term "engineering" in the broad sense with

which industrial engineering has made us familiar. I
have suggested thinking of jurisprudence as a science of
social engineering, "having to do with that part of the
whole field which may be achieved by an ordering of hu-
man relations through the action of politically organized
society." ...It is an organized body of knowledge with
respect to the means of satisfying human demands, se-
curing interests, giving effect to claims or desires, with
the least friction and the least waste, so far as these
things can be brought about by the legal order, whereby
the means of satisfaction may be made to go so far as pos-
sible. t is the task of the social sciences to make this
process of satisfying human demands, of giving effect to
human desires, continually less wasteful. They seek to
find how to make this process go on with less friction and
to satisfy more effectively a continually greater total of
human demand. As one of the social sciences, jurispru-
dence has for its field to discover what part of this task
may be achieved or furthered by the legal order, and how.
The philosophical jurists of the nineteenth century were
not at all in error in thinking of a task of reconciling or
harmonizing. Indeed, that conception is not the least of
Kant's contributions to the science of law.1 But they
did not think of a process. They sought for a universal
198. Interpretations of Legal History (1923) 150-165.

199. See Immanuel Kant by George Herbert Palmer and others (1925) 81-
82.
The End of Law
abstract reconciling or harmonizing, where today we con-

ceive of a process giving no more than compromises or
adjustments, valid (because effective) for the time and
place.
Other theories of the end of law urge cooperation,"'
or promoting and maintaining social interdependence,"0 '
or maintaining, furthering, and transmitting civiliza-
tion."'2 But cooperation is a process rather than an end.
It must be cooperation toward something, and so we must
ask, cooperation to what end? Certainly, today the stress
is on an ideal of cooperation rather than on one of com-
petitive self-assertion. The idea of cooperation is much
nearer to the realities of urban life today than the idea of
free competitive acquisition. It is enough to consider, as
to any of our cities (and the bulk of our population is now
definitely urban) how many individuals are freely com-
peting, and how many more are doing their part cooper-
atively, in however modest a way, as employees in some
great corporate enterprise, finding a reflected glory in
its greatness and giving it service in return for protection
in a relation very like the old one of lord and man.'O'
200. Kropotkin, Mutual Aid (1902); Picard, Le droit pur (1899) § 186. See
Pound, Social Control Through Law (1942) 126-132.
201. Duguit, L'6tat, le droit objectif, et la loi positive (1901) chaps. 4, 5; Id.
Le droit social, le droit individuel, et la transformation de l'6tat (2 ed. 1911)
lect. 2.
202. Kohler, Lehrbuch der Rechtsphilosophie (2 ed. 1917) 11; Id. En-
fiihrung in die Rechtswissenschaft (1901) § 3.
203. See Pound, The New Feudal System (1930) 19 Kentucky Law Journ. 1,
also under the title of The New Feudalism (1930) 16 A.B.A.J. 553.
[ 546]
8. Juristic Thought
Certainly, if cooperation is not to be the whole idea, it is

evidently to be a large part of it. But I prefer to think
that the recognition of cooperation and new emphasis
upon it in all connections is a step toward some ideal in-
volving organized human effort along with free spontane-
ous initiative, and I seem to see such an ideal in the idea
of civilization. Moreover, if instead of cooperation we
say interdependence we must still ask to what end we seek
to promote interdependence. Shall we think of coopera-
tion toward bringing about and maintaining a balance
between independence and interdependence toward pro-
moting civilization? Some such mode of thought has
brought many to look on civilization as the end. There is
much argument today as to whether jurisprudence is a
"civilization science." '
204. Radbruch, Rechtsphilosophie (3 ed. 1932) 119; HorvIth, Rechtssoziolo-

gie (1934) §§ 27-32; Timasheff, What is Sociology of Law? (1937) 43 Am.J.
Sociol. 225; id. Sociology of Law (1939) chap. 14.
END OF VOLUME
[ 547 ]

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Citation: 1 Roscoe Pound Jurisprudence I 1959

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ST. PAUr, MINN.

WEST PUBLISHING CO.

Roscoe Pound, retired Dean of Harvard Law School, holds

Since Austin, books in English on jurisprudence have been

Faith in this as the sound method of expounding the science

In 1887, when I was in my junior year in college my father

Especially I must acknowledge my debt to John Chipman

Much of what is put in final form in chapters 1 to 19 was

Pound Jurisprudence-b [XIII]

Chapter 2. History of Jurisprudence -------------------- 25

C. The Modern Science of Law

Chapter 6. Sociological Jurisprudence ------------------- 289

Chapter 10. The Nature of Law 97

95. Social Interests-3. Security of Social Institutions -_ 296

Chapter 15. The Securing of Interests

Chapter 17. The Traditional Element

1 Pound Jurisprudence-I [I]

urisprudence in its widest sense is the science

I. Holland, Jurisprudence (13 ed. 1924) chap. 1; Salmond, Jurisprudence

Austin's Province of Jurisprudence Determined (1832),

2. Jurisprudence (13 ed. 1924) 13.

This is one side of the science of law. I shall call it

2. A second use of the term is French, and to some

3. By a not unnatural transition, the word has come

I shall take it, then, that Jurisprudence means the

historical method were the vogue in thinking, men spoke of nat-

6. "Past politics are present history."

or (b) we may study this what-is from theories of what-it-

As to the term "law" as we use it in English, and

tive determinations are to, and on the whole do, proceed.

er I shall speak of the legal order as "law in the first

jurists in the last century. In recent times, however, we

of religious organizations, and of voluntary associations

civilized society by means of an ordered judicial and ad-

points for reasoning. When that is done we get a

I1. See Cicero, De oratore, 42, i § 189.

seeks to reach philosophical presuppositions of the legal

Note that the three methods, as pursued in the nine-

(d) Sociological. This method consists in study of

13. Publications of the Institute of Law of The Johns Hopkins University:

in the last third of the nineteenth century, and got cur-

particulars, would remind one of the frame of mind of a child,

When these four methods of jurisprudence, or some

15. I System des heutigen r~mischen Rechts (1840-1849) preface (Holloway's

A. THE BEGINNINGS OF A SCIENCE OF LAW

§ 1. Greek Philosophy-Philosophical Theories of Justice and

B. THE BEGINNINGS OF THE SCIENCE OF

§ 6. Roman Law and Scholastic Theology.

C. THE MODERN SCIENCE OF LAW

§ 7. The Law-of-Nature School.

THEORIES OF JUSTICE AND THE SO-

I. Aristotle, Nicomachean Ethics, bk. v. bk. viii, 7, 2-4; Aristotle, Politics,

politically organized society. But it was very close to,

hand. They conceived they had found such a basis in

§ 2. SECULARIZATION OF SOCIAL CON-

2. Girard, Manuel 6lmentaire de droit romain (8 ed. 1929) 47-51; Jolowicz,

political societies, begins with lawyers. It begins when

ing; and, as Maitland puts it, "taught law is tough law."