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Title: An Introduction to the Philosophy of Law

Author: Roscoe Pound

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*** START OF THE PROJECT GUTENBERG EBOOK AN
INTRODUCTION TO THE PHILOSOPHY OF LAW ***

AN INTRODUCTION TO THE
PHILOSOPHY OF LAW
THE ADDRESSES CONTAINED IN THIS BOOK WERE
DELIVERED IN THE WILLIAM L. STORRS
LECTURE SERIES, 1921, BEFORE THE
LAW SCHOOL OF YALE UNIVERSITY,
NEW HAVEN, CONNECTICUT

An Introduction to the
Philosophy of Law
BY

ROSCOE POUND
NEW HAVEN: YALE UNIVERSITY PRESS
LONDON: HUMPHREY MILFORD
OXFORD UNIVERSITY PRESS

COPYRIGHT, 1922, BY YALE UNIVERSITY PRESS
PRINTED IN THE UNITED STATES OF AMERICA

First Published, May, 1922.
Second Printing, December, 1924.
Third Printing, May, 1925.
Fourth Printing, April, 1930.

TO

JOSEPH HENRY BEALE

IN GRATEFUL ACKNOWLEDGMENT OF MANY
OBLIGATIONS

The present volume is the second work published under the imprint of the
Yale University Press in memory of Arthur P. McKinstry, who died in New
York City, July 21, 1921. Born in Winnebago City, Minnesota, on
December 22, 1881, he was graduated from Yale College in 1905, and in
1907 received the degree of LL.B. magna cum laude from the Yale Law
School, graduating at the head of his class. Throughout his career at Yale he
was noted both for his scholarship and for his active interest in debating,

which won for him first the presidency of the Freshman Union and
subsequently the presidency of the Yale Union. He was also Class Orator in
1905, and vice-president of the Yale Chapter of Phi Beta Kappa.
Following his graduation from the School of Law he entered upon the
practice of his profession in New York City and early met with the success
anticipated for him by his friends,—his firm, of which he was the senior
member, being recognized at the time of his death as among the most
prominent of the younger firms in the city. He was counsel for the Post-
Graduate Hospital of New York, the Heckscher Foundation for Children, of
which he was also a trustee, and from 1912 to 1914 served as associate
counsel to the Agency of the United States in the American and British
Claims Arbitration. By his untimely death the bar of the City of New York
lost a lawyer outstanding for his ability, common sense, conscientiousness,
and high sense of justice; and Yale University lost an alumnus of whom she
was proud, who gave freely of his time and thought to his class of 1905, to
the development of the Yale School of Law, and to the upbuilding of the
Yale University Press, which he served as counsel.

Preface
This book is a written version of lectures delivered before the Law School
of Yale University as Storrs Lectures in the school year 1921-1922.
A metaphysician who had written on the secret of Hegel was congratulated
upon his success in keeping the secret. One who essays an introduction to
the philosophy of law may easily achieve a like success. His hearers are not
unlikely to find that he has presented not one subject but two, presupposing
a knowledge of one and giving them but scant acquaintance with the other.
If he is a philosopher, he is not unlikely to have tried a highly organized
philosophical apparatus upon those fragments of law that lie upon the
surface of the legal order, or upon the law as seen through the spectacles of
some jurist who had interpreted it in terms of a wholly different
philosophical system. Looking at the list of authorities relied upon in
Spencer's Justice, and noting that his historical legal data were taken from
Maine's Ancient Law and thus came shaped by the political-idealistic
interpretation of the English historical school, it is not difficult to perceive
why positivist and Hegelian came to the same juristic results by radically
different methods. On the other hand, if he is a lawyer, he will very likely
have been able to do no more than attempt none too intelligently to work
with the complicated and delicate engines of others upon the toughest and
most resistant of legal materials. Until some Anglo-American jurist arises
with the universal equipment of Josef Kohler the results of common-law
incursions into philosophy will resemble the effort of the editorial writer
who wrote upon Chinese Metaphysics after reading in the Encyclopædia
Britannica under China and Metaphysics and combining his information.
Yet such incursions there must be. Philosophy has been a powerful
instrument in the legal armory and the times are ripe for restoring it to its
old place therein. At least one may show what philosophy has done for
some of the chief problems of the science of law, what stands before us to
be done in some of the more conspicuous problems of that science today in
which philosophy may help us, and how it is possible to look at those
problems philosophically without treating them in terms of the eighteenth-

century natural law or the nineteenth-century metaphysical jurisprudence
which stand for philosophy in the general understanding of lawyers.
Roscoe Pound.
Harvard Law School,
October 25, 1921.

Contents
I. The Function of Legal Philosophy 15
II. The End of Law 59
III. The Application of Law 100
IV. Liability 144
V. Property 191
VI. Contract 236
Bibliography 285
Index 309

I

The Function of Legal Philosophy
For twenty-four hundred years—from the Greek thinkers of the fifth
century B. C., who asked whether right was right by nature or only by
enactment and convention, to the social philosophers of today, who seek the
ends, the ethical basis and the enduring principles of social control—the
philosophy of law has taken a leading rôle in all study of human
institutions. The perennial struggle of American administrative law with
nineteenth-century constitutional formulations of Aristotle's threefold
classification of governmental power, the stone wall of natural rights
against which attempts to put an end to private war in industrial disputes
thus far have dashed in vain, and the notion of a logically derivable super-
constitution, of which actual written constitutions are faint and imperfect
reflections, which has been a clog upon social legislation for a generation,
bear daily witness how thoroughly the philosophical legal thinking of the
past is a force in the administration of justice of the present. Indeed, the
everyday work of the courts was never more completely shaped by abstract
philosophical ideas than in the nineteenth century when lawyers affected to
despise philosophy and jurists believed they had set up a self-sufficient
science of law which stood in no need of any philosophical apparatus.
In all stages of what may be described fairly as legal development,
philosophy has been a useful servant. But in some it has been a tyrannous
servant, and in all but form a master. It has been used to break down the
authority of outworn tradition, to bend authoritatively imposed rules that
admitted of no change to new uses which changed profoundly their
practical effect, to bring new elements into the law from without and make
new bodies of law from these new materials, to organize and systematize
existing legal materials and to fortify established rules and institutions when
periods of growth were succeeded by periods of stability and of merely
formal reconstruction. Such have been its actual achievements. Yet all the
while its professed aim has been much more ambitious. It has sought to
give us a complete and final picture of social control. It has sought to lay
down a moral and legal and political chart for all time. It has had faith that
it could find the everlasting, unchangeable legal reality in which we might

rest, and could enable us to establish a perfect law by which human
relations might be ordered forever without uncertainty and freed from need
of change. Nor may we scoff at this ambitious aim and this lofty faith. They
have been not the least factors in the power of legal philosophy to do the
less ambitious things which in their aggregate are the bone and sinew of
legal achievement. For the attempt at the larger program has led philosophy
of law incidentally to do the things that were immediately and practically
serviceable, and the doing of these latter, as it were sub specie aeternitatis,
has given enduring worth to what seemed but by-products of philosophical
inquiry.
Two needs have determined philosophical thinking about law. On the one
hand, the paramount social interest in the general security, which as an
interest in peace and order dictated the very beginnings of law, has led men
to seek some fixed basis of a certain ordering of human action which should
restrain magisterial as well as individual wilfulness and assure a firm and
stable social order. On the other hand, the pressure of less immediate social
interests, and the need of reconciling them with the exigencies of the
general security, and of making continual new compromises because of
continual changes in society, has called ever for readjustment at least of the
details of the social order. It has called continually for overhauling of legal
precepts and for refitting of them to unexpected situations. And this has led
men to seek principles of legal development by which to escape from
authoritative rules which they feared or did not know how to reject, but
could no longer apply to advantage. These principles of change and growth,
however, might easily prove inimical to the general security, and it was
important to reconcile or unify them with the idea of a fixed basis of the
legal order. Thus the philosopher has sought to construct theories of law and
theories of lawmaking and has sought to unify them by some ultimate
solving idea equal to the task of yielding a perfect law which should stand
fast forever. From the time when lawgivers gave over the attempt to
maintain the general security by belief that particular bodies of human law
had been divinely dictated or divinely revealed or divinely sanctioned, they
have had to wrestle with the problem of proving to mankind that the law
was something fixed and settled, whose authority was beyond question,
while at the same time enabling it to make constant readjustments and
occasional radical changes under the pressure of infinite and variable

human desires. The philosopher has worked upon this problem with the
materials of the actual legal systems of the time and place, or with the legal
materials of the past upon which his generation had built. Hence in closer
view philosophies of law have been attempts to give a rational account of
the law of the time and place, or attempts to formulate a general theory of
the legal order to meet the needs of some given period of legal
development, or attempts to state the results of the two former attempts
universally and to make them all-sufficient for law everywhere and for all
time. Historians of the philosophy of law have fixed their eyes chiefly on
the third. But this is the least valuable part of legal philosophy. If we look at
the philosophies of the past with our eyes upon the law of the time and
place and the exigencies of the stage of legal development in which they
were formulated, we shall be able to appreciate them more justly, and so far
as the law of the time and place or the stage of legal development was
similar to or different from the present to utilize them for the purposes of
today.
We know Greek law from the beginnings of a legal order as pictured in the
Homeric poems to the developed commercial institutions of the Hellenistic
period. In its first stage the kings decide particular causes by divine
inspiration. In a second stage the customary course of decision has become
a tradition possessed by an oligarchy. Later, popular demand for publication
results in a body of enactment. At first enactments are no more than
declaratory. But it was an easy step from publication of established custom
to publication of changes as if they were established custom and thus to
conscious and avowed changes and intentional new rules through
legislation. The law of Athens in the fifth and fourth centuries B. C. was a
codified tradition eked out by legislation and individualized in its
application through administration of justice by large popular assemblies.
Thus in spite of formal reduction to writing it preserved the fluidity of
primitive law and was able to afford a philosophy for Roman law in its
stage of equity and natural law—another period of legal fluidity. The
development of a strict law out of codified primitive materials, which in
Rome happily preceded the stage of equity and natural law, did not take
place in the Greek city. Hence the rules of law were applied with an
individualized equity that reminds us of the French droit coutumier—a
mode of application which, with all its good points, must be preceded by a

body of strict law, well worked out and well understood, if its results are to
be compatible with the general security in a complex social order. In Athens
of the classical period the word νόμος, meaning both custom and enacted
law as well as law in general, reflected the uncertainty with respect to form
and the want of uniformity in application, which are characteristic of
primitive law, and invited thought as to the reality behind such confusion.
We may understand the materials upon which Greek philosophers were
working if we look at an exhortation addressed by Demosthenes to an
Athenian jury. Men ought to obey the law, he said, for four reasons: because
laws were prescribed by God, because they were a tradition taught by wise
men who knew the good old customs, because they were deductions from
an eternal and immutable moral code and because they were agreements of
men with each other binding them because of a moral duty to keep their
promises. It was not long since that men had thought of legal precepts as
divinely revealed, nor was it long since that law had been a tradition of old
customs of decision. Philosophers were seeking a better basis for them in
eternal principles of right. In the meantime in political theory, at least, many
of them were the agreements of Athenian citizens as to how they should
conduct themselves in the inevitable clashes of interests in everyday life.
What was needed above all was some theory of the authority of law which
should impose bonds of reason upon those who enacted, upon those who
applied and upon those who were subject to law in such an amorphous legal
order.
A sure basis of authority resting upon something more stable than human
will and the power of those who govern to impose their will for the time
being was required also for the problem of social control in the Greek city-
state. In order to maintain the general security and the security of social
institutions amid a strife of factions in a society organized on the basis of
kinship and against the wilfulness of masterful individuals boasting descent
from gods, in order to persuade or coerce both the aristocracy and the mass
of the low born to maintain in orderly fashion the social status quo, it would
not do to tell them that law was a gift of God, nor that what offended the
aristocrat as a radical bit of popular legislation enacted at the instance of a
demagogue was yet to be obeyed because it had been so taught by wise men
who knew the good old customs, nor that Demos chafing under some item
of a class-possessed tradition was bound by it as something to which all

citizens had agreed. The exigencies of the social order called for a
distinction between νόμος and τα νομιζόμενα—between law and rules of
law. The Minos, which if not actually a dialogue of Plato's seems clearly
Platonic and very close to Plato in time, is taken up with this distinction and
gives us a clue to the juristic problems of the time.
Another example may be seen in Aristotle's well-known discussion in the
Nicomachean Ethics. It is significant that Greek thinkers always couple
custom and enactment; things which today we contrast. These were the
formal bases of legal authority. So Aristotle considers, not natural law and
positive law, but what is just in itself—just by nature or just in its idea—and
what derives its sole title to be just from convention or enactment. The
latter, he says, can be just only with respect to those things which by nature
are indifferent. Thus when a newly reconstituted city took a living Spartan
general for its eponymus, no one was bound by nature to sacrifice to
Brasidas as to an ancestor, but he was bound by enactment and after all the
matter was one of convention, which, in a society framed on the model of
an organized kindred, required that the citizens have a common heroic
ancestor, and was morally indifferent. The distinction was handed down to
modern legal science by Thomas Aquinas, was embodied in Anglo-
American legal thought by Blackstone, and has become staple. But it is
quite out of its setting as a doctrine of mala prohibita and mala in se. An
example of the distinction between law and rules of law has become the
basis of an arbitrary line between the traditionally anti-social, penalized by
the common law, and recently penalized infringements of newly or partially
recognized social interests. Although the discrimination between what is
just and right by nature and what is just because of custom or enactment has
had a long and fruitful history in philosophical jurisprudence and is still a
force in the administration of justice, I suspect that the permanent
contribution of Greek philosophy of law is to be found rather in the
distinction between law and rules of law, which lies behind it and has
significance for all stages of legal development.
Roman lawyers came in contact with philosophy in the transition from the
strict law to the stage of equity and natural law, and the contact had much to
do with enabling them to make the transition. From a purely legal
standpoint Greek law was in the stage of primitive law. Law and morals
were still largely undifferentiated. Hence Greek philosophical thinking of a

stage of undifferentiated law and morals lent itself to the identification of
the legal and the moral in juristic thinking which was characteristic of the
classical Roman law. But the strict law obviously was indifferent to morals
and in many vital points was quite at variance with the moral ideas of the
time. The Greek distinction of just by nature and just by convention or
enactment was suggested at once by such a situation. Moreover the forms of
law at the end of the Republic and at the beginning of the Empire invited a
theory of law as something composite, made up of more than one type of
precept and resting immediately on more than one basis of authority.
Cicero enumerates seven forms of law. Three of these are not heard of
thereafter in Roman juristic writing. Evidently already in Cicero's time they
belonged to the past and had ceased to be effective forms of the actual law.
The four remaining, namely, statutes, resolutions of the senate, edicts of the
magistrates, and the authority of those learned in the law, come to three—
legislation, administrative edicts, and juristic reasoning on the basis of the
legal tradition. And these correspond to the three elements which made up
the law. First, there was the ius ciuile: the Twelve Tables, subsequent
legislation, interpretation of both, and the traditional law of the city.
Second, there was the mass of rules, in form largely procedural, which was
contained in the edicts. The growing point of the law had been here and to
some extent growth was still going on through this means. Indeed this part
of the law reached its final form under Hadrian. Third, there were the
writings of the jurisconsults. The growing point of the law had begun to be
here and this was the most important form of law in the classical period
from Augustus to the third century. This part of the law got its final form in
the Digest of Justinian. Of the three elements, the first was thought of
originally as declared and published custom. Later it was thought of as
resting on the authority of the state. It was obviously local and peculiar to
Rome. In form it rested on the legislative power of the Roman people,
supplemented by a mere interpretation of the legislative command with
only the authority of customary acceptance. In Greek phrase it rested on
convention and enactment. The second purported to be the rules observed
by civilized peoples, and on points of commercial law may well have been
an approximation thereto. Apart from this, however, according to ancient
ideas of personal law, the rules which obtained among civilized peoples
were eminently a proper law to apply between citizen and non-citizen. In

Greek phrase it was law by convention. The basis of the third was simply
reason. The jurisconsult had no legislative power and no imperium. The
authority of his responsum, as soon as law ceased to be a class tradition,
was to be found in its intrinsic reasonableness; in the appeal which it made
to the reason and sense of justice of the iudex. In Greek phrase, if it was
law, it was law by nature.
As the rise of professional lawyers, the shifting of the growing point of law
to juristic writing and the transition from the law of a city to a law of the
world called for a legal science, there was need of a theory of what law was
that could give a rational account of the threefold body of rules in point of
origin and authority, which were actually in operation, and would at the
same time enable the jurists to shape the existing body of legal precepts by
reason so as to make it possible for them to serve as law for the whole
world. The perennial problem of preserving stability and admitting of
change was presented in an acute form. Above all the period from Augustus
to the second quarter of the third century was one of growth. But it was
revolutionary only if we compare the law at the end of the period with the
law of the generation before Cicero. The jurisconsults were practical
lawyers and the paramount interest in the general security was ever before
their eyes. While as an ideal they identified law with morals, they did not
cease to observe the strict law where it was applicable nor to develop its
precepts by analogy according to the known traditional technique when new
phases of old questions came before them. Hence what to the Greeks was a
distinction between right by nature and right by convention or enactment
became to them a distinction between law by nature and law by custom or
legislation. The Latin equivalent of το δίκαιον (the right or the just) became
their word for law. They said ius where Cicero said lex. And this convenient
ambiguity, lending itself to identification of what ought to be and what is,
gave a scientific foundation for the belief of the jurisconsults that when and
where they were not bound by positive law they had but to expound the
reason and justice of the thing in order to lay down the law.
It must be borne in mind that "nature" did not mean to antiquity what it
means to us who are under the influence of the idea of evolution. To the
Greek, it has been said, the natural apple was not the wild one from which
our cultivated apple has been grown, but rather the golden apple of the
Hesperides. The "natural" object was that which expressed most completely

the idea of the thing. It was the perfect object. Hence the natural law was
that which expressed perfectly the idea of law and a rule of natural law was
one which expressed perfectly the idea of law applied to the subject in
question; the one which gave to that subject its perfect development. For
legal purposes reality was to be found in this ideal, perfect, natural law, and
its organ was juristic reason. Legislation and the edict, so far as they had
any more than a positive foundation of political authority, were but
imperfect and ephemeral copies of this jural reality. Thus the jurists came to
the doctrine of the ratio legis, the principle of natural law behind the legal
rule, which has been so fruitful both of practical good and of theoretical
confusion in interpretation. Thus also they came to the doctrine of reasoning
from the analogy of all legal rules, whether traditional or legislative, since
all, so far as they had jural reality, had it because and to the extent that they
embodied or realized a principle of natural law.
Natural law was a philosophical theory for a period of growth. It arose to
meet the exigencies of the stage of equity and natural law, one of the great
creative periods of legal history. Yet, as we have seen, even the most rapid
growth does not permit the lawyer to ignore the demand for stability. The
theory of natural law was worked out as a means of growth, as a means of
making a law of the world on the basis of the old strict law of the Roman
city. But it was worked out also as a means of directing and organizing the
growth of law so as to maintain the general security. It was the task of the
jurists to build and shape the law on the basis of the old local materials so
as to make it an instrument for satisfying the wants of a whole world while
at the same time insuring uniformity and predictability. They did this by
applying a new but known technique to the old materials. The technique
was one of legal reason; but it was a legal reason identified with natural
reason and worked out and applied under the influence of a philosophical
ideal. The conception of natural law as something of which all positive law
was but declaratory, as something by which actual rules were to be
measured, to which so far as possible they were to be made to conform, by
which new rules were to be framed and by which old rules were to be
extended or restricted in their application, was a powerful instrument in the
hands of the jurists and enabled them to proceed in their task of legal
construction with assured confidence.

But the juristic empiricism by which the ius ciuile was made into a law of
the world needed something more than a theoretical incentive. It was a
process of analogical development by extension here and restriction there,
of generalization, first in the form of maxims and later by laying down
broad principles, and of cautious striking out of new paths, giving them
course and direction by trial and error. It was a process very like that by
which Anglo-American judicial empiricism has been able to make a law of
the world on the basis of the legal precepts of seventeenth-century England.
Such a process required something to give direction to juristic reasoning, to
give definite content to the ideal, to provide a reasonably defined channel
for juristic thought. This need was met by the philosophical theory of the
nature of things and of the law of nature as conformity thereto. In practice
jurist-made and judge-made law have been molded consciously, or
unconsciously, by ideas as to what law is for; by theories as to the end of
law. In the beginnings of law men had no more ambitious conception than a
peaceable ordering of society at any cost. But the Greeks soon got a better
conception of an orderly and peaceable maintaining of the social status quo.
When the theory of natural law is applied to that conception, we get the
notion of an ideal form of the social status quo—a form which expresses its
nature, a perfect form of the social organization of a given civilization—as
that which the legal order is to further and maintain. Thus judge and jurist
obtain a guide which has served them well ever since. They are to measure
all situations by an idealized form of the social order of the time and place
and are so to shape the law as to make it maintain and further this ideal of
the social status quo. We shall meet this idea in various forms throughout
the subsequent history of the philosophy of law. It constitutes the permanent
contribution of Rome to legal philosophy.
As soon as scientific legal development begins in the Middle Ages the law
once more comes in contact with philosophy through the study of both in
the universities. What was the need of the time which philosophy was
called upon to satisfy? Following an era of anarchy and disunion and
violence men desired order and organization and peace. They called for a
philosophy that would bolster up authority and rationalize their desire to
impose a legal yoke upon society. The period was one of transition from the
primitive law of the Germanic peoples to a strict law, through reception of
Roman law as authoritative legislation or through compilation of the

Germanic customary law more or less after the Roman model, as in the
north of France, or through declaration of the customary law in reported
decisions of strong central courts, as in England. Thus it soon became a
period of strict law. Scholastic philosophy, with its reliance upon dialectic
development of authoritatively given premises, its faith in formal logic and
its central problem of putting reason as a foundation under authority,
responded exactly to these demands. It is no misnomer to style the
commentators or post-glossators of the fourteenth and fifteenth centuries
the "scholastic jurists." For it was in large part the philosophy that met the
needs of the time so completely which enabled them to put the Roman law
of Justinian in a form to be received and administered in the Europe of nine
centuries later. While they made the gloss into law in place of the text and
made many things over, as they had to be made over if they were to fit a
wholly different social order, the method of dialectical development of
absolute and unquestioned premises made it appear that nothing had been
done but to develop the logical implications of an authoritative text. Men
could receive the law of Bartolus so long as they believed it but the logical
unfolding of the pre-existing content of the binding legislation of Justinian.
It is interesting to note in Fortescue an application of this to the rules of the
common law in its stage of strict law. He assumes that these rules are the
principles of which he reads in the commentators on Aristotle and that they
may be compared to the axioms of the geometrician. The time had not yet
come to call rules or principles or axioms in question. The need was to
rationalize men's desire to be governed by fixed rules and to reconcile, in
appearance at least, the change and growth which are inevitable in all law
with the need men felt of having a fixed, unchangeable, authoritative rule.
The scholastic philosophy did notable service in these respects and, I
venture to think, left as a permanent contribution to legal science the
method of insuring certainty by logical development of the content of
authoritatively defined conceptions.
On the breakdown of the feudal social organization, the rise of commerce
and the era of discovery, colonization and exploitation of the natural
resources of new continents, together with the rise of nations in place of
loose congeries of vassal-held territories, called for a national law unified
within the national domain. Starkey proposed codification to Henry VIII
and Dumoulin urged harmonizing and unifying of French customary law

with eventual codification. The Protestant jurist-theologians of the sixteenth
century found a philosophical basis for satisfying these desires of the time
in the divinely ordained state and in a natural law divorced from theology
and resting solely upon reason, reflecting the boundless faith in reason
which came in with the Renaissance. Thus each national jurist might work
out his own interpretation of natural law by dint of his own reason, as each
Christian might interpret the word of God for himself as his own reason and
conscience showed the way. On the other hand, the Catholic jurists of the
Counter-Reformation found a philosophical basis for satisfying these same
desires in a conception of natural law as a system of limitations on human
action expressing the nature of man, that is, the ideal of man as a rational
creature, and of positive law as an ideal system expressing the nature of a
unified state. For the moment these ideas were put at the service of a
growing royal authority and bore fruit in the Byzantine theory of
sovereignty which became classical in public law. In private law they soon
took quite another turn. For a new period of growth, demanded by the
expansion of society and the breaking over the bonds of authority, was at
hand to make new and wholly different demands upon philosophy.
Glossators and commentators had made or shaped the law out of Roman
materials for a static, locally self-sufficient, other-worldly society, revering
authority because authority had saved it from what it feared, regarding
chiefly the security of social institutions and negligent of the individual life
because in its polity the individual lived his highest life in the life of
another whose greatness was the greatness of those who served him. In the
seventeenth and eighteenth centuries jurists were required to make or shape
a law out of these medievalized Roman materials to satisfy the wants of an
active and shifting, locally interdependent, this-worldly society, impatient
of authority because authority stood in the way of what it desired, and
jealously individualist, since it took free individual self-assertion to be the
highest good. In England the strict law made for feudal England out of
Germanic materials, sometimes superficially Romanized, was likewise to
be made over to do the work of administering justice to a new world. A
period of legal development resulted which is strikingly analogous to the
classical period of Roman law. Once more philosophy took the helm. Once
more there was an infusion into law of ideas from without the law. Once
more law and morals were identified in juristic thinking. Once more men

held as a living tenet that all positive law was declaratory of natural law and
got its real authority from the rules of natural law which it declared. Once
more juridical idealism led the jurist to survey every corner of the actual
law, measuring its rules by reason and shaping, extending, restricting or
building anew in order that the actual legal edifice might be a faithful copy
of the ideal.
But the theory of natural law, devised for a society organized on the basis of
kinship and developed for a society organized on the basis of relations, did
not suffice for a society which conceived of itself as an aggregate of
individuals and was reorganizing on the basis of competitive self-assertion.
Again the convenient ambiguity of ius, which could mean not only right
and law but "a right," was pressed into service and ius naturale gave us
natural rights. The ultimate thing was not natural law as before, not merely
principles of eternal validity, but natural rights, certain qualities inherent in
man and demonstrated by reason, which natural law exists to secure and to
which positive law ought to give effect. Later these natural rights came to
be the bane of juristic thinking. Yet they achieved great things in their day.
Under the influence of this theory jurists worked out a scheme of "legal
rights" that effectively secures almost the whole field of individual interests
of personality and individual interests of substance. It put a scientific
foundation under the medieval scheme of the claims and duties involved in
the relation of king to tenants in chief, out of which the judges had
developed the immemorial rights of Englishmen, and enabled the common-
law rights of Englishmen to become the natural rights of man, intrenched as
such in our bills of rights. Thus it served as a needed check upon the
exuberance of growth stimulated by the theory of natural law. It kept a
certain needed rigidity in a time when law threatened to become wholly
fluid. And this steadying influence was strengthened from another quarter.
The Roman jurisconsult was teacher, philosopher and practitioner in one.
As a lawyer he had the exigencies of the general security ever before him in
that he felt the imperative need of being able to advise with assurance what
tribunals would do on a given state of facts. The seventeenth- and
eighteenth-century jurists were chiefly teachers and philosophers. Happily
they had been trained to accept the Roman law as something of paramount
authority and so were able to give natural law a content by assuming its
identity with an ideal form of the law which they knew and in which they

had been trained. As the Roman jurisconsult built in the image of the old
law of the city, they built on idealized Roman lines. If Roman law could no
longer claim to be embodied authority, they assumed that, corrected in its
details by a juristic-philosophical critique, it was embodied reason.
Both of these ideas, natural rights and an ideal form of the actual law of the
time and place as the jural order of nature, were handed down to and put to
new uses in the nineteenth century. In the growing law of the seventeenth
and eighteenth centuries they were but guides to lead growth into definite
channels and insure continuity and permanence in the development of rules
and doctrines. Whether natural rights were conceived as qualities of the
natural man or as deductions from a compact which expressed the nature of
man, the point was, not that the jurist should keep his hands off lest by
devising some new precept or in reshaping some old doctrine he infringe a
fundamental right, but that he should use his hand freely and skilfully to
shape rules and doctrines and institutions that they might be instruments of
achieving the ideal of human existence in a "state of nature." For the state
of nature, let us remember, was a state which expressed the ideal of man as
a rational creature. If a reaction from the formal over-refinement of the
eighteenth century came to identify this with a primitive simplicity, in
juristic hands it was the simplicity of a rational ideal in place of the
cumbrous complexity of legal systems which had become fixed in their
ideas in the stage of the strict law. Thus Pothier, discussing the Roman
categories of contract and rejecting them for the "natural" principle that
man, as a moral creature, should keep his engagements, declares that the
complex and arbitrary system of Roman law, made up of successive
additions at different times to a narrow primitive stock of legally
enforceable promises, is not adhered to because it is "remote from
simplicity." Again the ideal form of the actual law, which gave content to
natural law, was not an ideal form of historically found principles,
constraining development for all time within historically fixed bounds, as in
the nineteenth century, but an ideal form of the ratio legis—of the reason
behind the rule or doctrine or institution whereby it expressed the nature of
the rational human being guided only by reason and conscience in his
relations with similar beings similarly guided. Attempts to fix the
immutable part of law, to lay out legal charts for all time, belong to the
transition to the maturity of law. The eighteenth-century projects for

codification and the era of codification on the Continent, in which the
results of two centuries of growth were put in systematic form to serve as
the basis of a juristic new start, in form rested upon the theory of natural
law. By a sheer effort of reason the jurist could work out a complete system
of deductions from the nature of man and formulate them in a perfect code.
Go to, let him do so! This was not the mode of thought of a period of
growth but rather of one when growth had been achieved and the
philosophical theory of a law of nature was called upon for a new kind of
service.
At the end of the eighteenth century Lord Kenyon had determined that
"Mansfield's innovations" were not to go on. Indeed some of them were to
be undone. Equity was soon to be systematized by Lord Eldon and to
become "almost as fixed and settled" as the law itself. The absorption of the
law merchant was complete in its main lines although in details it went on
for two decades. Moreover the legislative reform movement which
followed only carried into detail the ideas which had come into the law in
the two preceding centuries. For a time the law was assimilating what had
been taken up during the period of growth and the task of the jurist was one
of ordering, harmonizing and systematizing rather than of creating.
Likewise law had been codifying on the Continent. Down to the end of the
nineteenth century the codes, whatever their date, in reality speak from the
end of the eighteenth century and with few exceptions are all but copies of
the French code of 1804. Where there were no codes, the hegemony of the
historical school led to a movement back to the law of Justinian which
would have undone much of the progress of the last centuries. The energies
of jurists were turned for a time to analysis, classification and system as
their sole task. Where codes obtained, analytical development and dogmatic
exposition of the text, as a complete and final statement of the law, was to
occupy jurists exclusively for the next hundred years. We may well think of
this time, as it thought of itself, as a period of maturity of law. The law was
taken to be complete and self-sufficient, without antinomies and without
gaps, wanting only arrangement, logical development of the implications of
its several rules and conceptions, and systematic exposition of its several
parts. Legislation might be needed on occasion in order to get rid of
archaisms which had survived the purgation of the two prior centuries. For
the rest, history and analysis, bringing out the idea behind the course of

development of legal doctrines and unfolding their logical consequences,
were all the apparatus which the jurist required. He soon affected to ignore
philosophy and often relegated it to the science of legislation, where within
narrow limits it might still be possible to think of creating.
Yet the nineteenth century was no more able to get on without philosophy
of law than were its predecessors. In place of one universally recognized
philosophical method we find four well-marked types. But they all come to
the same final results, are marked by the same spirit and put the same
shackles upon juristic activity. They are all modes of rationalizing the
juristic desires of the time, growing out of the pressure of the interest in the
general security by way of reaction from a period of growth and in the
security of acquisitions and security of transactions in a time of economic
expansion and industrial enterprise.
In the United States, since the natural law of the eighteenth-century
publicists had become classical, we relied largely upon an American variant
of natural law. It was not that natural law expressed the nature of man.
Rather it expressed the nature of government. One form of this variant was
due to our doctrine that the common law of England was in force only so
far as applicable to our conditions and our institutions. The attempt to put
this doctrine philosophically regards an ideal form of the received common
law as natural law and takes natural law to be a body of deductions from or
implications of American institutions or the nature of our polity. But
yesterday the Supreme Court of one of our states laid down dogmatically
that primogeniture in estates tail (which by the way is still possible in one
of the oldest of the original states) could not co-exist with "the axioms of
the constitution" which guarantees to each state a republican form of
government. More generally, however, the American variant of natural law
grew out of an attempt at philosophical statement of the power of our courts
with respect to unconstitutional legislation. The constitution was
declaratory of principles of natural constitutional law which were to be
deduced from the nature of free government. Hence constitutional questions
were always only in terms questions of constitutional interpretation. They
were questions of the meaning of the document, as such, only in form. In
substance they were questions of a general constitutional law which
transcended the text; of whether the enactment before the court conformed
to principles of natural law "running back of all constitutions" and inherent

in the very idea of a government of limited powers set up by a free people.
Now that courts with few exceptions have given over this mode of thinking
and the highest court in the land has come to apply the limitations of the
fifth and fourteenth amendments as legal standards, there are some who say
that we no longer have a constitutional law. For how can there be law unless
as a body of rules declaring a natural law which is above all human
enactment? The interpretation of a written instrument, no matter by whom
enacted, may be governed by law, indeed, but can yield no law. Such ideas
die hard. In the language of the eighteenth century, our courts sought to
make our positive law, and in particular our legislation, express the nature
of American political institutions; they sought so to shape it and restrain it
as to make it give effect to an ideal of our polity.
Later in the nineteenth century natural law as a deduction from American
institutions or from "free government" gave way to a metaphysical-
historical theory worked out in Continental Europe. Natural rights were
deductions from a fundamental metaphysically demonstrable datum of
individual free will, and natural law was an ideal critique of positive law
whereby to secure these rights in their integrity. History showed us the idea
of individual liberty realizing itself in legal institutions and rules and
doctrines; jurisprudence developed this idea into its logical consequences
and gave us a critique of law whereby we might be delivered from futile
attempts to set up legal precepts beyond the necessary minimum for
insuring the harmonious co-existence of the individual and his fellows. This
mode of thought was well suited to a conception of law as standing between
the abstract individual and society and protecting the natural rights of the
former against the latter, which American law had derived from the
seventeenth-century contests in England between courts and crown. It was
easy to generalize this as a contest between the individual and society, and
it became more easy to do so when the common-law rights of Englishmen
secured by common-law courts against the crown had become the natural
rights of man secured to individual men as against the state by the bills of
rights.
Others in England and America turned to a utilitarian-analytical theory. The
legislator was to be guided by a principle of utility. That which made for the
greatest total of individual happiness was to be the lawmaker's standard.
The jurist was to find universal principles by analysis of the actual law. He

had nothing to do with creative activity. His work was to be that of orderly
logical development of the principles reached by analysis of what he found
already given in the law and improvement of the form of the law by system
and logical reconciliation of details. As it was assumed that the maximum
of abstract individual free self-assertion was the maximum of human
happiness, in the result the legislator was to be busied with formal
improvement of the law and rendering it, as Bentham put it, more
"cognoscible," while the jurist was exercising a like restricted function so
far as he could work with materials afforded exclusively by the law itself.
Not unnaturally metaphysical and historical and analytical jurists, at the end
of the century, were quite willing to say that their several methods were not
exclusive but were complementary.
Toward the end of the last century a positivist sociological thinking tended
to supersede the metaphysical-historical and the utilitarian-analytical. All
phenomena were determined by inexorable natural laws to be discovered by
observation. Moral and social and hence legal phenomena were governed
by laws as completely beyond the power of conscious human control as the
movements of the planets. We might discover these laws by observation of
social phenomena and might learn to submit to them intelligently instead of
rashly or ignorantly defying them. But we could hope to do no more.
Except as he could learn to plot some part of the inevitable curve of legal
development and save us from futile flyings in the face of the laws by
which legal evolution was inevitably governed, the jurist was powerless.
Many combined this mode of thought with or grafted it on the
metaphysical-historical theory and fought valiantly against the social
legislation of the last decade of the nineteenth century and the first decade
of the present century with this reinforced juristic pessimism as a base.
Superficially it appeared that the Greek idea of the naturally just, which in
its Roman form of natural law and its eighteenth-century form of natural
rights had made for a creative legal science as long as such a science had
existed, had at length exhausted its possibilities.
Today, however, we hear of a revival of natural law. Philosophy of law is
raising its head throughout the world. We are asked to measure rules and
doctrines and institutions and to guide the application of law by reference to
the end of law and to think of them in terms of social utility. We are invited
to subsume questions of law and of the application of law under the social

ideal of the time and place. We are called upon to formulate the jural
postulates of the civilization of the time and place and to measure law and
the application of law thereby in order that law may further civilization and
that the legal materials handed down with the civilization of the past may be
made an instrument of maintaining and furthering the civilization of the
present. We are told that observation shows us social interdependence
through similarity of interest and through division of labor as the central
fact in human existence and are told to measure law and the application of
law functionally by the extent to which they further or interfere with this
interdependence. For the era of legal self-sufficiency is past. The work of
assimilating what had been received into the law from without during the
period of equity and natural law has been done. The possibilities of
analytical and historical development of the classical materials have been
substantially exhausted. While jurists have been at these tasks, a new social
order has been building which makes new demands and presses upon the
legal order with a multitude of unsatisfied desires. Once more we must
build rather than merely improve; we must create rather than merely order
and systematize and logically reconcile details. One has but to compare the
law of today on such subjects as torts, or public utilities or administrative
law with the law of a generation ago to see that we are in a new stage of
transition; to see that the juristic pessimism of the immediate past, which
arose to save us from taking in more from without while what had been
taken already remained undigested, will serve no longer; and to see that the
jurist of tomorrow will stand in need of some new philosophical theory of
law, will call for some new philosophical conception of the end of law and
at the same time will want some new steadying philosophical conception to
safeguard the general security, in order to make the law which we hand
down to him achieve justice in his time and place.

II

The End of Law
Making or finding law, call it which you will, presupposes a mental picture
of what one is doing and of why he is doing it. Hence the nature of law has
been the chief battleground of jurisprudence since the Greek philosophers
began to argue as to the basis of the law's authority. But the end of law has
been debated more in politics than in jurisprudence. In the stage of equity
and natural law the prevailing theory of the nature of law seemed to answer
the question as to its end. In the maturity of law the law was thought of as
something self-sufficient, to be judged by an ideal form of itself, and as
something which could not be made, or, if it could be made, was to be made
sparingly. The idea of natural rights seemed to explain incidentally what
law was for and to show that there ought to be as little of it as possible,
since it was a restraint upon liberty and even the least of such restraint
demanded affirmative justification. Thus, apart from mere systematic and
formal improvement, the theory of lawmaking in the maturity of law was
negative. It told us chiefly how we should not legislate and upon what
subjects we should refrain from lawmaking. Having no positive theory of
creative lawmaking, the last century was little conscious of requiring or
holding a theory as to the end of law. But in fact it held such a theory and
held it strongly.
As ideas of what law is for are so largely implicit in ideas of what law is, a
brief survey of ideas of the nature of law from this standpoint will be useful.
No less than twelve conceptions of what law is may be distinguished.
First, we may put the idea of a divinely ordained rule or set of rules for
human action, as for example, the Mosaic law, or Hammurapi's code,
handed him ready-made by the sun god, or Manu, dictated to the sages by
Manu's son Bhrigu in Manu's presence and by his direction.
Second, there is an idea of law as a tradition of the old customs which have
proved acceptable to the gods and hence point the way in which man may
walk with safety. For primitive man, surrounded by what seem vengeful and
capricious powers of nature, is in continual fear of giving offence to these

powers and thus bringing down their wrath upon himself and his fellows.
The general security requires that men do only those things and do them
only in the way which long custom has shown at least not displeasing to the
gods. Law is the traditional or recorded body of precepts in which that
custom is preserved and expressed. Whenever we find a body of primitive
law possessed as a class tradition by a political oligarchy it is likely to be
thought of in this way just as a body of like tradition in the custody of a
priesthood is certain to be thought of as divinely revealed.
A third and closely related idea conceives of law as the recorded wisdom of
the wise men of old who had learned the safe course or the divinely
approved course for human conduct. When a traditional custom of decision
and custom of action has been reduced to writing in a primitive code it is
likely to be thought of in this way, and Demosthenes in the fourth century
B. C. could describe the law of Athens in these terms.
Fourth, law may be conceived as a philosophically discovered system of
principles which express the nature of things, to which, therefore, man
ought to conform his conduct. Such was the idea of the Roman jurisconsult,
grafted, it is true, on the second and third ideas and on a political theory of
law as the command of the Roman people, but reconciled with them by
conceiving of tradition and recorded wisdom and command of the people as
mere declarations or reflections of the philosophically ascertained
principles, to be measured and shaped and interpreted and eked out thereby.
In the hands of philosophers the foregoing conception often takes another
form so that, fifth, law is looked upon as a body of ascertainments and
declarations of an eternal and immutable moral code.
Sixth, there is an idea of law as a body of agreements of men in politically
organized society as to their relations with each other. This is a democratic
version of the identification of law with rules of law and hence with the
enactments and decrees of the city-state which is discussed in the Platonic
Minos. Not unnaturally Demosthenes suggests it to an Athenian jury. Very
likely in such a theory a philosophical idea would support the political idea
and the inherent moral obligation of a promise would be invoked to show
why men should keep the agreements made in their popular assemblies.

Seventh, law has been thought of as a reflection of the divine reason
governing the universe; a reflection of that part which determines the
"ought" addressed by that reason to human beings as moral entities, in
distinction from the "must" which it addresses to the rest of creation. Such
was the conception of Thomas Aquinas, which had great currency down to
the seventeenth century and has had much influence ever since.
Eighth, law has been conceived as a body of commands of the sovereign
authority in a politically organized society as to how men should conduct
themselves therein, resting ultimately on whatever basis was held to be
behind the authority of that sovereign. So thought the Roman jurists of the
Republic and of the classical period with respect to positive law. And as the
emperor had the sovereignty of the Roman people devolved upon him, the
Institutes of Justinian could lay down that the will of the emperor had the
force of a law. Such a mode of thought was congenial to the lawyers who
were active in support of royal authority in the centralizing French
monarchy of the sixteenth and seventeenth centuries and through them
passed into public law. It seemed to fit the circumstances of parliamentary
supremacy in England after 1688, and became the orthodox English juristic
theory. Also it could be made to fit a political theory of popular sovereignty
in which the people were thought of as succeeding to the sovereignty of
parliament at the American Revolution or of the French king at the French
Revolution.
A ninth idea of law takes it to be a system of precepts discovered by human
experience whereby the individual human will may realize the most
complete freedom possible consistently with the like freedom of will of
others. This idea, held in one form or another by the historical school,
divided the allegiance of jurists with the theory of law as command of the
sovereign during almost the whole of the past century. It assumed that the
human experience by which legal principles were discovered was
determined in some inevitable way. It was not a matter of conscious human
endeavor. The process was determined by the unfolding of an idea of right
and justice or an idea of liberty which was realizing itself in human
administration of justice, or by the operation of biological or psychological
laws or of race characters, whose necessary result was the system of law of
the time and people in question.

Again, tenth, men have thought of law as a system of principles, discovered
philosophically and developed in detail by juristic writing and judicial
decision, whereby the external life of man is measured by reason, or in
another phase, whereby the will of the individual in action is harmonized
with those of his fellow men. This mode of thought appeared in the
nineteenth century after the natural-law theory in the form in which it had
prevailed for two centuries had been abandoned and philosophy was called
upon to provide a critique for systematic arrangement and development of
details.
Eleventh, law has been thought of as a body or system of rules imposed on
men in society by the dominant class for the time being in furtherance,
conscious or unconscious, of its own interest. This economic interpretation
of law takes many forms. In an idealistic form it thinks of the inevitable
unfolding of an economic idea. In a mechanical sociological form it thinks
of class struggle or a struggle for existence in terms of economics, and of
law as the result of the operation of forces or laws involved in or
determining such struggles. In a positivist-analytical form it thinks of law as
the command of the sovereign, but of that command as determined in its
economic content by the will of the dominant social class, determined in
turn by its own interest. All of these forms belong to transition from the
stability of the maturity of law to a new period of growth. When the idea of
the self-sufficiency of law gives way and men seek to relate jurisprudence
to the other social sciences, the relation to economics challenges attention at
once. Moreover in a time of copious legislation the enacted rule is easily
taken as the type of legal precept and an attempt to frame a theory of
legislative lawmaking is taken to give an account of all law.
Finally, twelfth, there is an idea of law as made up of the dictates of
economic or social laws with respect to the conduct of men in society,
discovered by observation, expressed in precepts worked out through
human experience of what would work and what not in the administration
of justice. This type of theory likewise belongs to the end of the nineteenth
century, when men had begun to look for physical or biological bases,
discoverable by observation, in place of metaphysical bases, discoverable
by philosophical reflection. Another form finds some ultimate social fact by
observation and develops the logical implications of that fact much after the
manner of the metaphysical jurist. This again results from the tendency in

recent years to unify the social sciences and consequent attention to
sociological theories.
Digression is worth while in order to note that each of the foregoing
theories of law was in the first instance an attempt at a rational explanation
of the law of the time and place or of some striking element therein. Thus,
when the law has been growing through juristic activity, a philosophical
theory of law, as declaratory of philosophically ascertainable principles, has
obtained. When and where the growing point of law has been in legislation,
a political theory of law as the command of the sovereign has prevailed.
When the law has been assimilating the results of a prior period of growth,
a historical theory of law as something found by experience, or a
metaphysical theory of law as an idea of right or of liberty realizing in
social and legal development, has tended to be dominant. For jurists and
philosophers do not make these theories as simple matters of logic by
inexorable development of philosophical fundamentals. Having something
to explain or to expound, they endeavor to understand it and to state it
rationally and in so doing work out a theory of what it is. The theory
necessarily reflects the institution which it was devised to rationalize, even
though stated universally. It is an attempt to state the law, or the legal
institution of the time and place in universal terms. Its real utility is likely to
be in its enabling us to understand that body of law or that institution and to
perceive what the men of the time were seeking to do with them or to make
of them. Accordingly analysis of these theories is one way of getting at the
ends for which men have been striving through the legal order.
What common elements may we find in the foregoing twelve pictures of
what law is? For one thing, each shows us a picture of some ultimate basis,
beyond reach of the individual human will, that stands fast in the whirl of
change of which life is made up. This steadfast ultimate basis may be
thought of as the divine pleasure or will or reason, revealed immediately or
mediately through a divinely ordained immutable moral code. It may be put
in the form of some ultimate metaphysical datum which is so given us that
we may rest in it forever. It may be portrayed as certain ultimate laws which
inexorably determine the phenomena of human conduct. Or it may be
described in terms of some authoritative will for the time and place, to
which the wills of others are subjected, that will deriving its authority
ultimately and absolutely in some one of the preceding forms, so that what

it does is by and large in no wise a matter of chance. This fixed and stable
starting point is usually the feature upon which the chief emphasis is placed.
Next we shall find in all theories of the nature of law a picture of a
determinate and mechanically absolute mode of proceeding from the fixed
and absolute starting point. The details may come from this starting point
through divine revelation or a settled authoritative tradition or record, or an
inevitable and infallible philosophical or logical method, or an authoritative
political machinery, or a scientific system of observation, or historically
verifiable ideas which are logically demonstrable to be implications of the
fundamental metaphysically given datum. Third, we shall see in these
theories a picture of a system of ordering human conduct and adjusting
human relations resting upon the ultimate basis and derived therefrom by
the absolute process. In other words, they all picture, not merely an ordering
of human conduct and adjustment of human relations, which we have
actually given, but something more which we should like to have, namely, a
doing of these things in a fixed, absolutely predetermined way, excluding
all merely individual feelings or desires of those by whom the ordering and
adjustment are carried out. Thus in these subconscious picturings of the end
of law it seems to be conceived as existing to satisfy a paramount social
want of general security. Certainly the nineteenth-century jurist had this
conception. But is this because the function of law is limited to satisfaction
of that one want, or is it because that want has been most conspicuous
among those which men have sought to satisfy through law, and because the
ordering of human conduct by the force of politically organized society has
been adapted chiefly to satisfying that one want in the social order of the
past?
If we turn to the ideas which have obtained in conscious thinking about the
end of law, we may recognize three which have held the ground
successively in legal history and a fourth which is beginning to assert itself.
The first and simplest idea is that law exists in order to keep the peace in a
given society; to keep the peace at all events and at any price. This is the
conception of what may be called the stage of primitive law. It puts
satisfaction of the social want of general security, stated in its lowest terms,
as the purpose of the legal order. So far as the law goes, other individual or
social wants are ignored or are sacrificed to this one. Accordingly the law is
made up of tariffs of exact compositions for every detailed injury instead of

principles of exact reparation, of devices to induce or coerce submission of
controversies to adjudication instead of sanctions, of regulation of self-help
and self-redress instead of a general prohibition thereof, and of mechanical
modes of trial which at any rate do not admit of argument instead of rational
modes of trial involving debate and hence dispute and so tending to defeat
the purpose of the legal order. In a society organized on the basis of kinship,
in which the greater number of social wants were taken care of by the kin-
organizations, there are two sources of friction: the clash of kin-interests,
leading to controversies of one kindred with another, and the kinless man,
for whom no kin-organization is responsible, who also has no kin-
organization to stand behind him in asserting his claims. Peace between
kindreds and peace between clansmen and the growing mass of non-gentile
population is the unsatisfied social want to which politically organized
society must address itself. The system of organized kindreds gradually
breaks down. Groups of kinsmen cease to be the fundamental social units.
Kin-organization is replaced by political organization as the primary agency
of social control. The legal unit comes to be the free citizen or the free man.
In this transition regulation of self-redress and prevention of private war
among those who have no strong clan-organizations to control them or
respond for them are demanded by the general security. The means of
satisfying these social wants are found in a legal order conceived solely in
terms of keeping the peace.
Greek philosophers came to conceive of the general security in broader
terms and to think of the end of the legal order as preservation of the social
status quo. They came to think of maintaining the general security
mediately through the security of social institutions. They thought of law as
a device to keep each man in his appointed groove in society and thus
prevent friction with his fellows. The virtue on which they insisted was
sophrosyne, knowing the limits which nature fixes for human conduct and
keeping within them. The vice which they denounced was hybris, wilful
bondbreaking—wilful transgression of the socially appointed bounds. This
mode of thinking follows the substitution of the city-state political
organization of society for the kin-organization. The organized kindreds
were still powerful. An aristocracy of the kin-organized and kin-conscious,
on the one hand, and a mass of those who had lost or severed their ties of
kinship, or had come from without, on the other hand, were in continual

struggle for social and political mastery. Also the politically ambitious
individual and the masterful aristocrat were continually threatening the
none too stable political organization through which the general security got
a precarious protection. The chief social want, which no other social
institution could satisfy, was the security of social institutions generally. In
the form of maintenance of the social status quo this became the Greek and
thence the Roman and medieval conception of the end of law.
Transition from the idea of law as a device to keep the peace to the idea of
law as a device to maintain the social status quo may be seen in the
proposition of Heraclitus, that men should fight for their laws as for the
walls of their city. In Plato the idea of maintaining the social order through
the law is fully developed. The actual social order was by no means what it
should be. Men were to be reclassified and everyone assigned to the class
for which he was best fitted. But when the classification and the assignment
had been made the law was to keep him there. It was not a device to set him
free that he might find his own level by free competition with his fellows
and free experiment with his natural powers. It was a device to prevent such
disturbances of the social order by holding each individual to his appointed
place. As Plato puts it, the shoemaker is to be only a shoemaker and not a
pilot also; the farmer is to be only a farmer and not a judge as well; the
soldier is to be only a soldier and not a man of business besides; and if a
universal genius who through wisdom can be everything and do everything
comes to the ideal city-state, he is to be required to move on. Aristotle puts
the same idea in another way, asserting that justice is a condition in which
each keeps within his appointed sphere; that we first take account of
relations of inequality, treating individuals according to their worth, and
then secondarily of relations of equality in the classes into which their
worth requires them to be assigned. When St. Paul exhorted wives to obey
their husbands, and servants to obey their masters, and thus everyone to
exert himself to do his duty in the class where the social order had put him,
he expressed this Greek conception of the end of law.
Roman lawyers made the Greek philosophical conception into a juristic
theory. For the famous three precepts to which the law is reduced in
Justinian's Institutes come to this: Everyone is to live honorably; he is to
"preserve moral worth in his own person" by conforming to the conventions
of the social order. Everyone is to respect the personality of others; he is not

to interfere with those interests and powers of action, conceded to others by
the social order, which make up their legal personality. Everyone is to
render to everyone else his own; he is to respect the acquired rights of
others. The social system has defined certain things as belonging to each
individual. Justice is defined in the Institutes as the set and constant purpose
of giving him these things. It consists in rendering them to him and in not
interfering with his having and using them within the defined limits. This is
a legal development of the Greek idea of harmoniously maintaining the
social status quo. The later eastern empire carried it to the extreme. Stability
was to be secured by rigidly keeping everyone to his trade or calling and his
descendants were to follow him therein. Thus the harmony of society and
the social order would not be disturbed by individual ambition.
In the Middle Ages the primitive idea of law as designed only to keep the
peace came back with Germanic law. But the study of Roman law presently
taught the Roman version of the Greek conception and the legal order was
thought of once more as an orderly maintenance of the social status quo.
This conception answered to the needs of medieval society, in which men
had found relief from anarchy and violence in relations of service and
protection and a social organization which classified men in terms of such
relations and required them to be held to their functions as so determined.
Where the Greeks thought of a stationary society corrected from time to
time with reference to its nature or ideal, the Middle Ages thought of a
stationary society resting upon authority and determined by custom or
tradition. To each, law was a system of precepts existing to maintain this
stationary society as it was.
In the feudal social order reciprocal duties involved in relations established
by tradition and taken to rest on authority were the significant legal
institutions. With the gradual disintegration of this order and the growing
importance of the individual in a society engaged in discovery, colonization
and trade, to secure the claims of individuals to assert themselves freely in
the new fields of human activity which were opening on every side became
a more pressing social want than to maintain the social institutions by
which the system of reciprocal duties was enforced and the relations
involving those duties were preserved. Men did not so much desire that
others perform for them the duties owing in some relation, as that others
keep hands off while they achieved what they might for themselves in a

world that continually afforded new opportunities to the active and the
daring. The demand was no longer that men be kept in their appointed
grooves. Friction and waste were apprehended, not from men getting out of
these grooves, but from attempts to hold them there by means devised to
meet the needs of a different social order whereby they were made to chafe
under arbitrary restraint and their powers were not utilized in the discovery
and exploitation of the resources of nature, to which human powers were to
be devoted in the succeeding centuries. Accordingly the end of law comes
to be conceived as a making possible of the maximum of individual free
self-assertion.
Transition to the newer way of thinking may be seen in the Spanish jurist-
theologians of the sixteenth century. Their juristic theory was one of natural
limits of activity in the relations of individuals with each other, that is, of
limits to human action which expressed the rational ideal of man as a moral
creature and were imposed upon men by reason. This theory differs
significantly from the idea of antiquity, although it goes by the old name.
The Greeks thought of a system of limiting men's activities in order that
each might be kept in the place for which he was best fitted by nature—the
place in which he might realize an ideal form of his capacities—and thus to
preserve the social order as it stands or as it shall stand after a
rearrangement. The sixteenth-century jurists of the Counter-Reformation
held that men's activities were naturally limited, and hence that positive law
might and should limit them in the interest of other men's activities, because
all men have freedom of will and ability to direct themselves to conscious
ends. Where Aristotle thought of inequalities arising from the different
worth of individual men and their different capacities for the things which
the social order called for, these jurists thought of a natural (i.e., ideal)
equality, involved in the like freedom of will and the like power of
conscious employment of one's faculties inherent in all men. Hence law did
not exist to maintain the social status quo with all its arbitrary restraints on
the will and on employment of individual powers; it existed rather to
maintain the natural equality which often was threatened or impaired by the
traditional restrictions on individual activity. Since this natural equality was
conceived positively as an ideal equality in opportunity to do things, it
could easily pass into a conception of free individual self-assertion as the
thing sought, and of the legal order as existing to make possible the

maximum thereof in a world abounding in undiscovered resources,
undeveloped lands and unharnessed natural forces. The latter idea took
form in the seventeenth century and prevailed for two centuries thereafter,
culminating in the juristic thought of the last generation.
Law as a securing of natural equality became law as a securing of natural
rights. The nature of man was expressed by certain qualities possessed by
him as a moral, rational creature. The limitations on human activity, of
which the Spanish jurist-theologians had written, got their warrant from the
inherent moral qualities of men which made it right for them to have certain
things and do certain things. These were their natural rights and the law
existed simply to protect and give effect to these rights. There was to be no
restraint for any other purpose. Except as they were to be compelled to
respect the rights of others, which the natural man or ideal man would do
without compulsion as a matter of reason, men were to be left free. In the
nineteenth century this mode of thought takes a metaphysical turn. The
ultimate thing for juristic purposes is the individual consciousness. The
social problem is to reconcile conflicting free wills of conscious individuals
independently asserting their wills in the varying activities of life. The
natural equality becomes an equality in freedom of will. Kant rationalized
the law in these terms as a system of principles or universal rules, to be
applied to human action, whereby the free will of the actor may co-exist
along with the free will of everyone else. Hegel rationalized the law in these
terms as a system of principles wherein and whereby the idea of liberty was
realizing in human experience. Bentham rationalized it as a body of rules,
laid down and enforced by the state's authority, whereby the maximum of
happiness, conceived in terms of free self-assertion, was secured to each
individual. Its end was to make possible the maximum of free individual
action consistent with general free individual action. Spencer rationalized it
as a body of rules, formulating the "government of the living by the dead,"
whereby men sought to promote the liberty of each limited only by the like
liberty of all. In any of these ways of putting it, the end of law is to secure
the greatest possible general individual self-assertion; to let men do freely
everything they may consistently with a like free doing of everything they
may by their fellow men. This is indeed a philosophy of law for discoverers
and colonizers and pioneers and traders and entrepreneurs and captains of
industry. Until the world became crowded, it served well to eliminate

friction and to promote the widest discovery and utilization of the natural
resources of human existence.
Looking back at the history of this conception, which has governed theories
of the end of law for more than two hundred years, we may note that it has
been put to three uses. It has been used as a means of clearing away the
restraints upon free economic activity which accumulated during the
Middle Ages as incidents of the system of relational duties and as
expressions of the idea of holding men to their place in a static social order.
This negative side played an important part in the English legislative reform
movement in the last century. The English utilitarians insisted upon removal
of all restrictions upon individual free action beyond those necessary for
securing like freedom on the part of others. This, they said, was the end of
legislation. Again it has been used as a constructive idea, as in the
seventeenth and eighteenth centuries, when a commercial law which gave
effect to what men did as they willed it, which looked at intention and not at
form, which interpreted the general security in terms of the security of
transactions and sought to effectuate the will of individuals to bring about
legal results, was developed out of Roman law and the custom of merchants
through juristic theories of natural law. Finally it was used as a stabilizing
idea, as in the latter part of the nineteenth century, when men proved that
law was an evil, even if a necessary evil, that there should be as little law
made as possible, since all law involved restraint upon free exertion of the
will, and hence that jurist and legislator should be content to leave things
legal as they are and allow the individual "to work out in freedom his own
happiness or misery" on that basis.
When this last stage in the development of the idea of law as existing to
promote or permit the maximum of free individual self-assertion had been
reached, the juristic possibilities of the conception had been exhausted.
There were no more continents to discover. Natural resources had been
discovered and exploited and the need was for conservation of what
remained available. The forces of nature had been harnessed to human use.
Industrial development had reached large proportions, and organization and
division of labor in our economic order had gone so far that anyone who
would could no longer go forth freely and do anything which a restless
imagination and daring ambition suggested to him as a means of gain.
Although lawyers went on repeating the old formula, the law began to move

in another direction. The freedom of the owner of property to do upon it
whatever he liked, so he did not overstep his limits or endanger the public
health or safety, began to be restricted. Nay, the law began to make men act
affirmatively upon their property in fashions which it dictated, where the
general health was endangered by non-action. The power to make contracts
began to be limited where industrial conditions made abstract freedom of
contract defeat rather than advance full individual human life. The power of
the owner to dispose freely of his property began to be limited in order to
safeguard the security of the social institutions of marriage and the family.
Freedom of appropriating res nullius and of using res communes came to be
abridged in order to conserve the natural resources of society. Freedom of
engaging in lawful callings came to be restricted, and an elaborate process
of education and examination to be imposed upon those who would engage
in them, lest there be injury to the public health, safety or morals. A regime
in which anyone might freely set up a corporation to engage in a public
service, or freely compete in such service, was superseded by one of legal
exemption of existing public utilities from destructive competition. In a
crowded world, whose resources had been exploited, a system of promoting
the maximum of individual self-assertion had come to produce more
friction than it relieved and to further rather than to eliminate waste.
At the end of the last and the beginning of the present century, a new way of
thinking grew up. Jurists began to think in terms of human wants or desires
rather than of human wills. They began to think that what they had to do
was not simply to equalize or harmonize wills, but, if not to equalize, at
least to harmonize the satisfaction of wants. They began to weigh or
balance and reconcile claims or wants or desires, as formerly they had
balanced or reconciled wills. They began to think of the end of law not as a
maximum of self-assertion, but as a maximum satisfaction of wants. Hence
for a time they thought of the problem of ethics, of jurisprudence, and of
politics as chiefly one of valuing; as a problem of finding criteria of the
relative value of interests. In jurisprudence and politics they saw that we
must add practical problems of the possibility of making interests effective
through governmental action, judicial or administrative. But the first
question was one of the wants to be recognized—of the interests to be
recognized and secured. Having inventoried the wants or claims or interests
which are asserting and for which legal security is sought, we were to value

them, select those to be recognized, determine the limits within which they
were to be given effect in view of other recognized interests, and ascertain
how far we might give them effect by law in view of the inherent
limitations upon effective legal action. This mode of thinking may be seen,
concealed under different terminologies, in more than one type of jurist in
the last three decades.
Three elements contributed to shift the basis of theories as to the end of law
from wills to wants, from a reconciling or harmonizing of wills to a
reconciling or harmonizing of wants. The most important part was played
by psychology which undermined the foundation of the metaphysical will-
philosophy of law. Through the movement for unification of the social
sciences, economics also played an important part, especially indirectly
through the attempts at economic interpretation of legal history, reinforcing
psychology by showing the extent to which law had been shaped by the
pressure of economic wants. Also the differentiation of society, involved in
industrial organization, was no mean factor, when classes came to exist in
which claims to a minimum human existence, under the standards of the
given civilization, became more pressing than claims to self-assertion.
Attention was turned from the nature of law to its purpose, and a functional
attitude, a tendency to measure legal rules and doctrines and institutions by
the extent to which they further or achieve the ends for which law exists,
began to replace the older method of judging law by criteria drawn from
itself. In this respect the thought of the present is more like that of the
seventeenth and eighteenth centuries than that of the nineteenth century.
French writers have described this phenomenon as a "revival of juridical
idealism." But in truth the social utilitarianism of today and the natural-law
philosophy of the seventeenth and eighteenth centuries have only this in
common: Each has its attention fixed upon phenomena of growth; each
seeks to direct and further conscious improvement of the law.
In its earlier form social-utilitarianism, in common with all nineteenth-
century philosophies of law, was too absolute. Its teleological theory was to
show us what actually and necessarily took place in lawmaking rather than
what we were seeking to bring about. Its service to the philosophy of law
was in compelling us to give over the ambiguous term "right" and to
distinguish between the claims or wants or demands, existing independently
of law, the legally recognized or delimited claims or wants or demands, and

the legal institutions, which broadly go by the name of legal rights, whereby
the claims when recognized and delimited are secured. Also it first made
clear how much the task of the lawmaker is one of compromise. To the law-
of-nature school, lawmaking was but an absolute development of absolute
principles. A complete logical development of the content implicit in each
natural right would give a body of law adequate to every time and place. It
is true an idea of compromise did lurk behind the theory of the
metaphysical jurists in the nineteenth century. But they sought an absolute
harmonizing rather than a working compromise for the time and place.
Conflicting individual wills were to be reconciled absolutely by a formula
which had ultimate and universal authority. When we think of law as
existing to secure social interests, so far as they may be secured through an
ordering of men and of human relations through the machinery of organized
political society, it becomes apparent that we may reach a practicable
system of compromises of conflicting human desires here and now, by
means of a mental picture of giving effect to as much as we can, without
believing that we have a perfect solution for all time and for every place. As
the Neo-Kantians put it, we may formulate the social ideal of the time and
place and try juristic problems thereby without believing ourselves
competent to lay out a social and political and legal chart for all time. As
the Neo-Hegelians put it, we may discover and formulate the jural
postulates of the civilization of the time and place without assuming that
those postulates are a complete and final picture of ultimate law, by which it
must be measured for all time.
Social utilitarianism has stood in need of correction both from psychology
and from sociology. It must be recognized that lawmaking and adjudication
are not in fact determined precisely by a weighing of interests. In practice
the pressure of wants, demands, desires, will warp the actual compromises
made by the legal system this way or that. In order to maintain the general
security we endeavor in every way to minimize this warping. But one needs
only to look below the surface of the law anywhere at any time to see it
going on, even if covered up by mechanical devices to make the process
appear an absolute one and the result a predetermined one. We may not
expect that the compromises made and enforced by the legal order will
always and infallibly give effect to any picture we may make of the nature
or ends of the process of making and enforcing them. Yet there will be less

of this subconscious warping if we have a clear picture before us of what
we are seeking to do and to what end, and if we build in the image thereof
so far as we consciously build and shape the law.
Difficulties arise chiefly in connection with criteria of value. If we say that
interests are to be catalogued or inventoried, that they are then to be valued,
that those which are found to be of requisite value are to be recognized
legally and given effect within limits determined by the valuation, so far as
inherent difficulties in effective legal securing of interests will permit, the
question arises at once, How shall we do this work of valuing? Philosophers
have devoted much ingenuity to the discovery of some method of getting at
the intrinsic importance of various interests, so that an absolute formula
may be reached in accordance wherewith it may be assured that the
weightier interests intrinsically shall prevail. But I am skeptical as to the
possibility of an absolute judgment. We are confronted at this point by a
fundamental question of social and political philosophy. I do not believe the
jurist has to do more than recognize the problem and perceive that it is
presented to him as one of securing all social interests so far as he may, of
maintaining a balance or harmony among them that is compatible with the
securing of all of them. The last century preferred the general security. The
present century has shown many signs of preferring the individual moral
and social life. I doubt whether such preferences can maintain themselves.
Social utilitarians would say, weigh the several interests in terms of the end
of law. But have we any given to us absolutely? Is the end of law anything
less than to do whatever may be achieved thereby to satisfy human desires?
Are the limits any other than those imposed by the tools with which we
work, whereby we may lose more than we gain, if we attempt to apply them
in certain situations? If so, there is always a possibility of improved tools.
The Greek philosopher who said that the only possible subjects of lawsuit
were "insult, injury and homicide," was as dogmatic as Herbert Spencer,
who conceived of sanitary laws and housing laws in our large cities as quite
outside the domain of the legal order. Better legal machinery extends the
field of legal effectiveness as better machinery has extended the field of
industrial effectiveness. I do not mean that the law should interfere as of
course in every human relation and in every situation where some one
chances to think a social want may be satisfied thereby. Experience has
shown abundantly how futile legal machinery may be in its attempts to

secure certain kinds of interests. What I do say is, that if in any field of
human conduct or in any human relation the law, with such machinery as it
has, may satisfy a social want without a disproportionate sacrifice of other
claims, there is no eternal limitation inherent in the nature of things, there
are no bounds imposed at creation, to stand in the way of its doing so.
Let us apply some of the other theories which are now current. The Neo-
Hegelians say: Try the claims in terms of civilization, in terms of the
development of human powers to the most of which they are capable—the
most complete human mastery of nature, both human nature and external
nature. The Neo-Kantians say: Try them in terms of a community of free-
willing men as the social ideal. Duguit says: Try them in terms of social
interdependence and social function. Do they promote or do they impede
social interdependence through similarity of interest and division of labor?
In these formulas do we really get away from the problem of a balance
compatible with maintaining all the interests, with responding to all the
wants and claims, which are involved in civilized social existence?
For the purpose of understanding the law of today I am content with a
picture of satisfying as much of the whole body of human wants as we may
with the least sacrifice. I am content to think of law as a social institution to
satisfy social wants—the claims and demands involved in the existence of
civilized society—by giving effect to as much as we may with the least
sacrifice, so far as such wants may be satisfied or such claims given effect
by an ordering of human conduct through politically organized society. For
present purposes I am content to see in legal history the record of a
continually wider recognizing and satisfying of human wants or claims or
desires through social control; a more embracing and more effective
securing of social interests; a continually more complete and effective
elimination of waste and precluding of friction in human enjoyment of the
goods of existence—in short, a continually more efficacious social
engineering.

III

The Application of Law
Three steps are involved in the adjudication of a controversy according to
law: (1) Finding the law, ascertaining which of the many rules in the legal
system is to be applied, or, if none is applicable, reaching a rule for the
cause (which may or may not stand as a rule for subsequent cases) on the
basis of given materials in some way which the legal system points out; (2)
interpreting the rule so chosen or ascertained, that is, determining its
meaning as it was framed and with respect to its intended scope; (3)
applying to the cause in hand the rule so found and interpreted. In the past
these have been confused under the name of interpretation. It was assumed
that the function of the judge consisted simply in interpreting an
authoritatively given rule of wholly extra-judicial origin by an exact process
of deducing its logically implied content and in mechanically applying the
rule so given and interpreted. This assumption has its origin in the stage of
the strict law in the attempt to escape from the overdetail on the one hand,
and the vague sententiousness on the other hand, which are characteristic of
primitive law. For the most part primitive law is made up of simple, precise,
detailed rules for definite narrowly defined situations. It has no general
principles. The first step toward a science of law is the making of
distinctions between what comes within and what does not come within the
legal meaning of a rule. But a body of primitive law also often contains a
certain number of sententious legal proverbs, put in striking form so as to
stick in the memory, but vague in their content. The strict law by means of a
conception of results obtained inevitably from fixed rules and undeviating
remedial proceedings seeks relief from the uncertainty inherent in the
finding of a larger content for overdetailed special rules through
differentiation of cases and the application of legal proverbial sayings
through the "equity of the tribunal." It conceives of application of law as
involving nothing but a mechanical fitting of the case with the strait-jacket
of rule or remedy. The inevitable adjustments and extendings and
limitations, which an attempt to administer justice in this way must involve,
are covered up by a fiction of interpretation in order to maintain the general
security.

Philosophical rationalizing of the attempt to avoid the overpersonal
administration of justice incident to the partial reversion to justice without
law in the stage of equity and natural law, reinforced the assumption that
judicial application of law was a mechanical process and was but a phase of
interpretation. In the eighteenth century it was given scientific form in the
theory of separation of powers. The legislative organ made laws. The
executive administered them. The judiciary applied them to the decision of
controversies. It was admitted in Anglo-American legal thinking that courts
must interpret in order to apply. But the interpretation was taken not to be in
any wise a lawmaking and the application was taken not to involve any
administrative element and to be wholly mechanical. On the Continent
interpretation so as to make a binding rule for future cases was deemed to
belong only to the legislator. The maturity of law was not willing to admit
that judge or jurist could make anything. It was not the least service of the
analytical jurisprudence of the last century to show that the greater part of
what goes by the name of interpretation in this way of thinking is really a
lawmaking process, a supplying of new law where no rule or no sufficient
rule is at hand. "The fact is," says Gray most truly, "that the difficulties of
so-called interpretation arise when the legislature has had no meaning at all;
when the question which is raised on the statute never occurred to it; when
what the judges have to do is, not to determine what the legislature did
mean on a point which was present to its mind, but to guess what it would
have intended on a point not present to its mind had the point been present."
The attempt to maintain the separation of powers by constitutional
prohibitions has pointed to the same lesson from another side. Lawmaking,
administration and adjudication cannot be rigidly fenced off one from the
other and turned over each to a separate agency as its exclusive field. There
is rather a division of labor as to typical cases and a practical or historical
apportionment of the rest.
Finding the law may consist merely in laying hold of a prescribed text of a
code or statute. In that event the tribunal must proceed to determine the
meaning of the rule and to apply it. But many cases are not so simple. More
than one text is at hand which might apply; more than one rule is potentially
applicable, and the parties are contending which shall be made the basis of
a decision. In that event the several rules must be interpreted in order that
intelligent selection may be made. Often the genuine interpretation of the

existing rules shows that none is adequate to cover the case and that what is
in effect, if not in theory, a new one must be supplied. Attempts to foreclose
this process by minute, detailed legislation have failed signally, as, for
example, in the overgrown code of civil procedure in New York. Providing
of a rule by which to decide the cause is a necessary element in the
determination of a large proportion of the causes that come before our
higher tribunals, and it is often because a rule must be provided that the
parties are not content to abide the decision of the court of first instance.
Cases calling for genuine interpretation are relatively few and simple.
Moreover genuine interpretation and lawmaking under the guise of
interpretation run into one another. In other words, the judicial function and
the legislative function run into one another. It is the function of the
legislative organ to make laws. But from the nature of the case it cannot
make laws so complete and all-embracing that the judicial organ will not be
obliged to exercise a certain lawmaking function also. The latter will rightly
consider this a subordinate function. It will take it to be one of
supplementing, developing and shaping given materials by means of a
given technique. None the less it is a necessary part of judicial power.
Pushed to the extreme that regards all judicial lawmaking as
unconstitutional usurpation, our political theory, a philosophical
classification made over by imperfect generalization from the British
constitution as it was in the seventeenth century, has served merely to
intrench in the professional mind the dogma of the historical school, that
legislative lawmaking is a subordinate function and exists only to
supplement the traditional element of the legal system here and there and to
set the judicial or juristic tradition now and then in the right path as to some
particular item where it had gone astray.
In Anglo-American law we do not think of analogical development of the
traditional materials of the legal system as interpretation. In Roman-law
countries, where the law is made up of codes supplemented and explained
by the codified Roman law of Justinian and modern usage on the basis
thereof, which stands as the common law, it seems clear enough that
analogical application whether of a section of the code or of a text of the
Roman law is essentially the same process. Both are called interpretation.
As our common law is not in the form of authoritative texts, the nature of
the process that goes on when a leading case is applied by analogy, or

limited in its application, or distinguished, is concealed. It does not seem on
the surface to be the same process as when a text of the Digest is so applied
or limited or distinguished. Hence it has been easy for us to assume that
courts did no more than genuinely interpret legislative texts and deduce the
logical content of authoritatively established traditional principles. It has
been easy to accept a political theory, proceeding on the dogma of
separation of powers, and to lay down that courts only interpret and apply,
that all making of law must come from the legislature, that courts must
"take the law as they find it," as if they could always find it ready-made for
every case. It has been easy also to accept a juristic theory that law cannot
be made; that it may only be found, and that the process of finding it is a
matter purely of observation and logic, involving no creative element. If we
really believed this pious fiction, it would argue little faith in the logical
powers of the bench in view of the diversity of judicially asserted doctrines
on the same point which so frequently exist in our case law and the widely
different opinions of our best judges with respect to them. As interpretation
is difficult, when it is difficult, just because the legislature had no actual
intent to ascertain, so the finding of the common law on a new point is
difficult because there is no rule of law to find. The judicial and the
legislative functions run together also in judicial ascertainment of the
common law by analogical application of decided cases.
As interpretation on the one side runs into lawmaking and so the judicial
function runs into the legislative function, on the other side interpretation
runs into application and so the judicial function runs into the
administrative or executive. Typically judicial treatment of a controversy is
a measuring of it by a rule in order to reach a universal solution for a class
of causes of which the cause in hand is but an example. Typically
administrative treatment of a situation is a disposition of it as a unique
occurrence, an individualization whereby effect is given to its special rather
than to its general features. But administration cannot ignore the universal
aspects of situations without endangering the general security. Nor may
judicial decision ignore their special aspects and exclude all
individualization in application without sacrificing the social interest in the
individual life through making justice too wooden and mechanical. The idea
that there is no administrative element in the judicial decision of causes and
that judicial application of law should be a purely mechanical process goes

back to Aristotle's Politics. Writing before a strict law had developed, in
what may be called the highest point of development of primitive law, when
the personal character and feelings for the time being of kings or
magistrates or dicasts played so large a part in the actual workings of legal
justice, Aristotle sought relief through a distinction between the
administrative and the judicial. He conceived that discretion was an
administrative attribute. In administration regard was to be had to times and
men and special circumstances. The executive was to use a wise discretion
in adjusting the machinery of government to actual situations as they arose.
On the other hand, he conceived that a court should have no discretion. To
him the judicial office was a Procrustean one of fitting each case to the legal
bed, if necessary by a surgical operation. Such a conception met the needs
of the strict law. In a stage of legal maturity it was suited to the Byzantine
theory of law as the will of the emperor and of the judge as the emperor's
delegate to apply and give effect to that will. In the Middle Ages it had a
sufficient basis in authority and in the needs of a period of strict law. Later
it fitted well into the Byzantine theory of lawmaking which French
publicists adopted and made current in the seventeenth and eighteenth
centuries. In the United States it seemed to be required by our constitutional
provisions for a separation of powers. But in practice it has broken down no
less completely than the analogous idea of entire separation of the judicial
from the lawmaking function.
Almost all of the problems of jurisprudence come down to a fundamental
one of rule and discretion, of administration of justice by law and
administration of justice by the more or less trained intuition of experienced
magistrates. Controversies as to the nature of law, whether the traditional
element or the imperative element of legal systems is the typical law,
controversies as to the nature of lawmaking, whether the law is found by
judicial empiricism or made by conscious legislation, and controversies as
to the bases of law's authority, whether in reason and science on the one
hand or in command and sovereign will on the other hand, get their
significance from their bearing upon this question. Controversies as to the
relation of law and morals, as to the distinction of law and equity, as to the
province of the court and of the jury, as to fixed rule or wide judicial power
in procedure, and as to judicial sentence and administrative
individualization in punitive justice are but forms of this fundamental

problem. This is not the place to discuss that problem. Suffice it to say that
both are necessary elements in the administration of justice and that instead
of eliminating either, we must partition the field between them. But it has
been assumed that one or the other must govern exclusively, and there has
been a continual movement in legal history back and forth between wide
discretion and strict detailed rule, between justice without law, as it were,
and justice according to law. The power of the magistrate has been a
liberalizing agency in periods of growth. In the stage of equity and natural
law, a stage of infusion of moral ideas from without into the law, the power
of the magistrate to give legal force to his purely moral ideas was a chief
instrument. Today we rely largely upon administrative boards and
commissions to give legal force to ideas which the law ignores. On the
other hand rule and form with no margin of application have been the main
reliance of periods of stability. The strict law sought to leave nothing to the
judge beyond seeing whether the letter had been complied with. The
nineteenth century abhorred judicial discretion and sought to exclude the
administrative element from the domain of judicial justice. Yet a certain
field of justice without law always remained and by one device or another
the balance of the supposedly excluded administrative element was
preserved.
In the strict law individualization was to be excluded by hard and fast
mechanical procedure. In practice this procedure was corrected and the
balance between rule and discretion, between the legal and the
administrative, was restored by fictions and by an executive dispensing
power. Roman equity has its origin in the imperium of the praetor—his
royal power to dispense with the strict law in particular situations. Also
English equity has its origin in the royal power of discretionary application
of law and dispensing with law in particular cases, misuse of which as a
political institution was one of the causes of the downfall of the Stuarts.
Thus we get a third agency for restoring the balance in the form of
systematic interposition of praetor or chancellor on equitable grounds,
leading to a system of equity. Carried too far in the stage of equity and
natural law, overdevelopment of the administrative element brings about a
reaction and in the maturity of law individualization is pushed to the wall
once more. Yet this elimination of the administrative takes place more in
theory and in appearance than in reality. For justice comes to be

administered in large measure through the application of legal standards
which admit of a wide margin for the facts of particular cases, and the
application of these standards is committed to laymen or to the discretion of
the tribunal. Moreover a certain judicial individualization goes on. Partly
this takes the form of a margin of discretionary application of equitable
remedies, handed down from the stage of equity and natural law. Partly it
takes the form of ascertainment of the facts with reference to the legal result
desired in view of the legal rule or of choice between competing rules in
effect covering the same ground, although nominally for distinct situations.
In other words, a more subtle fiction does for the maturity of law what is
done for the strict law by its relatively crude procedural fictions.
Of these five agencies for preserving the administrative element in judicial
justice, in periods when legal theory excludes it, two call for special
consideration.
It is usual to describe law as an aggregate of rules. But unless the word rule
is used in so wide a sense as to be misleading, such a definition, framed
with reference to codes or by jurists whose eyes were fixed upon the law of
property, gives an inadequate picture of the manifold components of a
modern legal system. Rules, that is, definite, detailed provisions for
definite, detailed states of fact, are the main reliance of the beginnings of
law. In the maturity of law they are employed chiefly in situations where
there is exceptional need of certainty in order to uphold the economic order.
With the advent of legal writing and juristic theory in the transition from the
strict law to equity and natural law, a second element develops and becomes
a controlling factor in the administration of justice. In place of detailed rules
precisely determining what shall take place upon a precisely detailed state
of facts, reliance is had upon general premises for judicial and juristic
reasoning. These legal principles, as we call them, are made use of to
supply new rules, to interpret old ones, to meet new situations, to measure
the scope and application of rules and standards and to reconcile them when
they conflict or overlap. Later, when juristic study seeks to put the materials
of the law in order, a third element develops, which may be called legal
conceptions. These are more or less exactly defined types, to which we refer
cases or by which we classify them, so that when a state of facts is
classified we may attribute thereto the legal consequences attaching to the
type. All of these admit of mechanical or rigidly logical application. A

fourth element, however, which plays a great part in the everyday
administration of justice, is of quite another character.
Legal standards of conduct appear first in Roman equity. In certain cases of
transactions or relations involving good faith, the formula was made to read
that the defendant was to be condemned to that which in good faith he
ought to give or do for or render to the plaintiff. Thus the judge had a
margin of discretion to determine what good faith called for and in Cicero's
time the greatest lawyer of the day thought these actiones bonae fidei
required a strong judge because of the dangerous power which they allowed
him. From this procedural device, Roman lawyers worked out certain
standards or measures of conduct, such as what an upright and diligent head
of a family would do, or the way in which a prudent and diligent
husbandman would use his land. In similar fashion English equity worked
out a standard of fair conduct on the part of a fiduciary. Later the Anglo-
American law of torts worked out, as a measure for those who are pursuing
some affirmative course of conduct, the standard of what a reasonable,
prudent man would do under the circumstances. Also the law of public
utilities worked out standards of reasonable service, reasonable facilities,
reasonable incidents of the service and the like. In all these cases the rule is
that the conduct of one who acts must come up to the requirements of the
standard. Yet the significant thing is not the fixed rule but the margin of
discretion involved in the standard and its regard for the circumstances of
the individual case. For three characteristics may be seen in legal standards:
(1) They all involve a certain moral judgment upon conduct. It is to be
"fair," or "conscientious," or "reasonable," or "prudent," or "diligent." (2)
They do not call for exact legal knowledge exactly applied, but for common
sense about common things or trained intuition about things outside of
everyone's experience. (3) They are not formulated absolutely and given an
exact content, either by legislation or by judicial decision, but are relative to
times and places and circumstances and are to be applied with reference to
the facts of the case in hand. They recognize that within the bounds fixed
each case is to a certain extent unique. In the reaction from equity and
natural law, and particularly in the nineteenth century, these standards were
distrusted. Lord Camden's saying that the discretion of a judge was "the law
of tyrants," that it was different in different men, was "casual" and
dependent upon temperament, has in it the whole spirit of the maturity of

law. American state courts sought to turn the principles by which the
chancellors were wont to exercise their discretion into hard and fast rules of
jurisdiction. They sought to reduce the standard of reasonable care to a set
of hard and fast rules. If one crossed a railroad, he must "stop, look and
listen." It was negligence per se to get on or off a moving car, to have part
of the body protruding from a railroad car, and the like. Also they sought to
put the duties of public utilities in the form of definite rules with a detailed,
authoritatively fixed content. All these attempts to do away with the margin
of application involved in legal standards broke down. The chief result was
a reaction in the course of which many states turned over all questions of
negligence to juries, free even from effective advice from the bench, while
many other jurisdictions have been turning over subject after subject to
administrative boards and commissions to be dealt with for a season
without law. In any event, whether the standard of due care in an action for
negligence is applying by a jury, or the standard of reasonable facilities for
transportation is applying by a public service commission, the process is
one of judging of the quality of a bit of conduct under its special
circumstances and with reference to ideas of fairness entertained by the
layman or the ideas of what is reasonable entertained by the more or less
expert commissioner. Common sense, experience and intuition are relied
upon, not technical rule and scrupulously mechanical application.
We are familiar with judicial individualization in the administration of
equitable remedies. Another form, namely, individualization through
latitude of application under the guise of choice or ascertainment of a rule,
is concealed by the fiction of the logical completeness of the legal system
and the mechanical, logical infallibility of the logical process whereby the
predetermined rules implicit in the given legal materials are deduced and
applied. To a large and apparently growing extent the practice of our
application of law has been that jurors or courts, as the case may be, take
the rules of law as a general guide, determine what the equities of the cause
demand, and contrive to find a verdict or render a judgment accordingly,
wrenching the law no more than is necessary. Many courts today are
suspected of ascertaining what the equities of a controversy require, and
then raking up adjudicated cases to justify the result desired. Often formulas
are conveniently elastic so that they may or may not apply. Often rules of
contrary tenor overlap, leaving a convenient no-man's-land wherein cases

may be decided either way according to which rule the court chooses in
order to reach a result arrived at on other grounds. Occasionally a judge is
found who acknowledges frankly that he looks chiefly at the ethical
situation between the parties and does not allow the law to interfere
therewith beyond what is inevitable.
Thus we have in fact a crude equitable application, a crude
individualization, throughout the field of judicial administration of justice.
It is assumed by courts more widely than we suspect, or at least, more
widely than we like to acknowledge. Ostensibly there is no such power. But
when one looks beneath the surface of the law reports, the process reveals
itself under the name of "implication" or in the guise of two lines of
decisions of the same tribunal upon the same point from which it may
choose at will, or in the form of what have been termed "soft spots" in the
law—spots where the lines are so drawn by the adjudicated cases that the
court may go either way as the ethical exigencies of the special
circumstances of the case in hand may require, with no apparent
transgression of what purport to be hard and fast rules. Such has been the
result of attempts to exclude the administrative element in adjudication. In
theory there is no such thing except with respect to equitable remedies,
where it exists for historical reasons. In practice there is a great deal of it,
and that in a form which is unhappily destructive of certainty and
uniformity. Necessary as it is, the method by which we attain a needed
individualization is injurious to respect for law. If the courts do not respect
the law, who will? There is no exclusive cause of the current American
attitude toward the law. But judicial evasion and warping of the law, in
order to secure in practice a freedom of judicial action not conceded in
theory, is certainly one cause. We need a theory which recognizes the
administrative element as a legitimate part of the judicial function and
insists that individualization in the application of legal precepts is no less
important than the contents of those precepts themselves.
Three theories of application of law obtain in the legal science of today. The
theory which has the largest following among practitioners and in dogmatic
exposition of the law is analytical. It assumes a complete body of law with
no gaps and no antinomies, given authority by the state at one stroke and so
to be treated as if every item was of the same date as every other. If the law
is in the form of a code, its adherents apply the canons of genuine

interpretation and ask what the several code provisions mean as they stand,
looked at logically rather than historically. They endeavor to find the pre-
appointed code pigeonhole for each concrete case, to put the case in hand
into it by a purely logical process and to formulate the result in a judgment.
If the law is in the form of a body of reported decisions, they assume that
those decisions may be treated as if all rendered at the same time and as
containing implicitly whatever is necessary to the decision of future causes
which they do not express. They may define conceptions or they may
declare principles. The logically predetermined decision is contained in the
conception to which the facts are referred or involved in the principle
within whose scope the facts fall. A purely logical process, exactly
analogous to genuine interpretation of a legislative rule, will yield the
appropriate conception from given premises or discover the appropriate
principle from among those which superficially appear to apply.
Application is merely formulation in a judgment of the result obtained by
analysis of the case and logical development of the premises contained in
the reported decisions.
Among teachers a historical theory has the larger following. If the law is in
the form of a code, the code provisions are assumed to be in the main
declaratory of the law as it previously existed; the code is regarded as a
continuation and development of pre-existing law. 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. If the
law is in the form of a body of reported decisions, the later decisions are
regarded as but declaring and illustrating the principles to be found by
historical study of the older ones; as developing legal conceptions and
principles to be found by historical study of the older law. Hence all
exposition must begin with an elaborate historical inquiry in which the idea
that has been unfolding in the course of judicial decision is revealed and the
lines are disclosed along which legal development must move. But when
the content of the applicable legal precept is discovered in these ways, the
method of applying it in no way differs from that which obtains under the
analytical theory. The process of application is assumed to be a purely
logical one. Do the facts come within or fail to come within the legal
precept? This is the sole question for the judge. When by historical

investigation he has found out what the rule is, he has only to fit it to just
and unjust alike.
Analytical and historical theories of application of law thus seek to exclude
the administrative element wholly and their adherents resort to fictions to
cover up the judicial individualization which none the less obtains in
practice or else ignore it, saying that it is but a result of the imperfect
constitution of tribunals or of the ignorance or sloth of those who sit
therein. The latter explanation is no more satisfying than the fictions, and a
new theory has sprung up of late in Continental Europe which may be
understood best by calling it the equitable theory, since the methods of the
English Chancellor had much to do with suggesting it. To the adherents of
this theory the essential thing is a reasonable and just solution of the
individual controversy. They conceive of the legal precept, whether
legislative or traditional, as a guide to the judge, leading him toward the just
result. But they insist that within wide limits he should be free to deal with
the individual case so as to meet the demands of justice between the parties
and accord with the reason and moral sense of ordinary men. They insist
that application of law is not a purely mechanical process. They contend
that it involves not logic only but moral judgments as to particular
situations and courses of conduct in view of the special circumstances
which are never exactly alike. They insist that such judgments involve
intuitions based upon experience and are not to be expressed in definitely
formulated rules. They argue that the cause is not to be fitted to the rule but
the rule to the cause.
Much that has been written by advocates of the equitable theory of
application of law is extravagant. As usually happens, in reaction from
theories going too far in one direction this theory has gone too far in the
other. The last century would have eliminated individualization of
application. Now, as in the sixteenth- and seventeenth-century reaction from
the strict law, come those who would have nothing else; who would turn
over the whole field of judicial justice to administrative methods. If we
must choose, if judicial administration of justice must of necessity be
wholly mechanical or else wholly administrative, it was a sound instinct of
lawyers in the maturity of law that led them to prefer the former. Only a
saint, such as Louis IX under the oak at Vincennes, may be trusted with the
wide powers of a judge restrained only by a desire for just results in each

case to be reached by taking the law for a general guide. And St. Louis did
not have the crowded calendars that confront the modern judge. But are we
required to choose? May we not learn something from the futility of all
efforts to administer justice exclusively by either method? May we not find
the proper field of each by examining the means through which in fact we
achieve an individualization which we deny in theory, and considering the
cases in which those means operate most persistently and the actual
administration of justice most obstinately refuses to become as mechanical
in practice as we expect it to be in theory?
In Anglo-American law today there are no less than seven agencies for
individualizing the application of law. We achieve an individualization in
practice: (1) through the discretion of courts in the application of equitable
remedies; (2) through legal standards applied to conduct generally when
injury results and also to certain relations and callings; (3) through the
power of juries to render general verdicts; (4) through latitude of judicial
application involved in finding the law; (5) through devices for adjusting
penal treatment to the individual offender; (6) through informal methods of
judicial administration in petty courts, and (7) through administrative
tribunals. The second and fourth have been considered. Let us look for a
moment at the others.
Discretion in the exercise of equitable remedies is an outgrowth of the
purely personal intervention in extraordinary cases on grounds that
appealed to the conscience of the chancellor in which equity jurisdiction has
its origin. Something of the original flavor of equitable interposition
remains in the doctrine of personal bar to relief, and in the ethical quality of
some of the maxims which announce policies to be pursued in the exercise
of the chancellor's powers. But it was possible for the nineteenth century to
reconcile what remained of the chancellor's discretion with its mode of
thinking. Where the plaintiff's right was legal but the legal remedy was not
adequate to secure him in what the legal right entitled him to claim, equity
gave a concurrent remedy supplementing the strict law. As the remedy in
equity was supplementary and concurrent, in case the chancellor in his
discretion kept his hands off, as he would if he felt that he could not bring
about an equitable result, the law would still operate. The plaintiff's right
was in no wise at the mercy of anyone's discretion. He merely lost an
extraordinary and supplementary remedy and was left to the ordinary

course of the law. Such was the orthodox view of the relation of law and
equity. Equity did not alter a jot or tittle of the law. It was a remedial system
alongside of the law, taking the law for granted and giving legal rights
greater efficacy in certain situations. But take the case of a "hard bargain,"
where the chancellor in his discretion may deny specific performance. In
England and in several states the damages at law do not include the value of
the bargain where the contract is for the sale of land. Hence unless specific
performance is granted, the plaintiff's legal right is defeated. It is notorious
that bargains appeal differently to different chancellors in this respect. In
the hands of some the doctrine as to hard bargains has a tendency to become
wooden, as it were. There is a hard and fast rule that certain bargains are
"hard" and that equity will not enforce them. In states where the value of
the bargain may be recovered at law, it may well be sometimes that the
bargain might as well be enforced in equity, if it is not to be cancelled. But
the chancellor is not unlikely to wash his hands of a hard case, saying that
the court of law is more callous; let that court act, although that court is the
same judge with another docket before him. In other hands, the doctrine
tends to become ultro-ethical and to impair the security of transactions. In
other words, the margin of discretion in application of equitable remedies
tends on the one hand to disappear through crystallization of the principles
governing its exercise into rigid rules, or on the other hand, to become
overpersonal and uncertain and capricious. Yet as one reads the reports
attentively he cannot doubt that in action it is an important engine of justice;
that it is a needed safety valve in the working of our legal system.
At common law the chief reliance for individualizing the application of law
is the power of juries to render general verdicts, the power to find the facts
in such a way as to compel a different result from that which the legal rule
strictly applied would require. In appearance there has been no
individualization. The judgment follows necessarily and mechanically from
the facts upon the record. But the facts found were found in order to reach
the result and are by no means necessarily the facts of the actual case.
Probably this power alone made the common law of master and servant
tolerable in the last generation. Yet exercise of this power, with respect to
which, as Lord Coke expressed it, "the jurors are chancellors," has made the
jury an unsatisfactory tribunal in many classes of cases. It is largely
responsible for the practice of repeated new trials which makes the jury a

most expensive tribunal. The crude individualization achieved by juries,
influenced by emotional appeals, prejudice and the peculiar personal ideas
of individual jurors, involves quite as much injustice at one extreme as
mechanical application of law by judges at the other extreme. Indeed the
unchecked discretion of juries, which legislation has brought about in some
jurisdictions, is worse than the hobbled court and rigid mechanical
application of law from which it is a reaction.
Our administration of punitive justice is full of devices for individualizing
the application of criminal law. Our complicated machinery of prosecution
involves a great series of mitigating agencies whereby individual offenders
may be spared or dealt with leniently. Beginning at the bottom there is the
discretion of the police as to who and what shall be brought to the judicial
mill. Next are the wide powers of our prosecuting officers who may ignore
offences or offenders, may dismiss proceedings in their earlier stages, may
present them to grand juries in such a way that no indictment results, or
may enter a nolle prosequi after indictment. Even if the public prosecutor
desires to prosecute, the grand jury may ignore the charge. If the cause
comes to trial, the petit jury may exercise a dispensing power by means of a
general verdict. Next comes judicial discretion as to sentence, or in some
jurisdictions, assessment of punishment by the discretion of the trial jury.
Upon these are superposed administrative parole or probation and executive
power to pardon. The lawyer-politician who practices in the criminal courts
knows well how to work upon this complicated machinery so as to enable
the professional criminal to escape as well as those or even instead of those
for whom these devices were intended. They have been developed to
obviate the unhappy results of a theory which would have made the
punishment mechanically fit the crime instead of adjusting the penal
treatment to the criminal. Here, as elsewhere, the attempt to exclude the
administrative element has brought about back-handed means of
individualization which go beyond the needs of the situation and defeat the
purposes of the law.
Even more striking is the recrudescence of personal government, by way of
reaction from an extreme of government of laws and not of men, which is
involved in the setting up of administrative tribunals on every hand and for
every purpose. The regulation of public utilities, apportionment of the use
of the water of running streams among different appropriators, workmen's

compensation, the actual duration and nature of punishment for crime,
admission to and practice of professions and even of trades, the power to
enter or to remain in the country, banking, insurance, unfair competition
and restraint of trade, the enforcement of factory laws, of pure food laws, of
housing laws and of laws as to protection from fire and the relation of
principal and agent, as between farmers and commission merchants, are but
some of the subjects which the living law, the law in action, is leaving to
executive justice in administrative tribunals. To some extent this is required
by the increasing complexity of the social order and the minute division of
labor which it involves. Yet this complexity and this division of labor
developed for generations in which the common-law jealousy of
administration was dominant. Chiefly our revival of executive justice in the
present century is one of those reversions to justice without law which are
perennial in legal history. As in the case of like reversions in the past it is
the forerunner of growth. It is the first form of reaction from the overrigid
application of law in a period of stability. A bad adjustment between law
and administration and cumbrous, ineffective and unbusinesslike legal
procedure, involving waste of time and money in the mere etiquette of
justice, are doing in our time what like conditions did in English law in the
middle of the sixteenth century.
If we look back at the means of individualizing the application of law which
have developed in our legal system, it will be seen that almost without
exception they have to do with cases involving the moral quality of
individual conduct or of the conduct of enterprises, as distinguished from
matters of property and of commercial law. Equity uses its powers of
individualizing to the best advantage in connection with the conduct of
those in whom trust and confidence have been reposed. Legal standards are
used chiefly in the law of torts, in the law of public utilities and in the law
as to fiduciary relations. Jury lawlessness is an agency of justice chiefly in
connection with the moral quality of conduct where the special
circumstances exclude that "intelligence without passion" which, according
to Aristotle, characterizes the law. It is significant that in England today the
civil jury is substantially confined to cases of defamation, malicious
prosecution, assault and battery and breach of promise of marriage. Judicial
individualization through choice of a rule is most noticeable in the law of
torts, in the law of domestic relations and in passing upon the conduct of

enterprises. The elaborate system of individualization in criminal procedure
has to do wholly with individual human conduct. The informal methods of
petty courts are meant for tribunals which pass upon conduct in the crowd
and hurry of our large cities. The administrative tribunals, which are setting
up on every hand, are most called for and prove most effective as means of
regulating the conduct of enterprises.
A like conclusion is suggested when we look into the related controversy as
to the respective provinces of common law and of legislation. Inheritance
and succession, definition of interests in property and the conveyance
thereof, matters of commercial law and the creation, incidents and transfer
of obligations have proved a fruitful field for legislation. In these cases the
social interest in the general security is the controlling element. But where
the questions are not of interests of substance but of the weighing of human
conduct and passing upon its moral aspects, legislation has accomplished
little. No codification of the law of torts has done more than provide a few
significantly broad generalizations. On the other hand, succession to
property is everywhere a matter of statute law and commercial law is
codified or codifying throughout the world. Moreover the common law
insists upon its doctrine of stare decisis chiefly in the two cases of property
and commercial law. Where legislation is effective, there also mechanical
application is effective and desirable. Where legislation is ineffective, the
same difficulties that prevent its satisfactory operation require us to leave a
wide margin of discretion in application, as in the standard of the
reasonable man in our law of negligence and the standard of the upright and
diligent head of a family applied by the Roman law, and especially by the
modern Roman law, to so many questions of fault, where the question is
really one of good faith. All attempts to cut down this margin have proved
futile. May we not conclude that in the part of the law which has to do
immediately with conduct complete justice is not to be attained by the
mechanical application of fixed rules? Is it not clear that in this part of the
administration of justice the trained intuition and disciplined judgment of
the judge must be our assurance that causes will be decided on principles of
reason and not according to the chance dictates of caprice, and that a due
balance will be maintained between the general security and the individual
human life?

Philosophically the apportionment of the field between rule and discretion
which is suggested by the use of rules and of standards respectively in
modern law has its basis in the respective fields of intelligence and
intuition. Bergson tells us that the former is more adapted to the inorganic,
the latter more to life. Likewise rules, where we proceed mechanically, are
more adapted to property and to business transactions, and standards; where
we proceed upon intuitions, are more adapted to human conduct and to the
conduct of enterprises. According to him, intelligence is characterized by
"its power of grasping the general element in a situation and relating it to
past situations," and this power involves loss of "that perfect mastery of a
special situation in which instinct rules." In the law of property and in the
law of commercial transactions it is precisely this general element and its
relation to past situations that is decisive. The rule, mechanically applied,
works by repetition and precludes individuality in results, which would
threaten the security of acquisitions and the security of transactions. On the
other hand, in the handmade, as distinguished from the machine-made
product, the specialized skill of the workman gives us something infinitely
more subtle than can be expressed in rules. In law some situations call for
the product of hands, not of machines, for they involve not repetition, where
the general elements are significant, but unique events, in which the special
circumstances are significant. Every promissory note is like every other.
Every fee simple is like every other. Every distribution of assets repeats the
conditions that have recurred since the Statute of Distributions. But no two
cases of negligence have been alike or ever will be alike. Where the call is
for individuality in the product of the legal mill, we resort to standards. And
the sacrifice of certainty in so doing is more apparent than actual. For the
certainty attained by mechanical application of fixed rules to human
conduct has always been illusory.

IV

Liability
A systematist who would fit the living body of the law to his logical
analytical scheme must proceed after the manner of Procrustes. Indeed, this
is true of all science. In life phenomena are unique. The biologist of today
sometimes doubts whether there are species and disclaims higher groups as
more than conveniences of study. "Dividing lines," said a great American
naturalist, "do not occur in nature except as accidents." Organization and
system are logical constructions of the expounder rather than in the external
world expounded. They are the means whereby we make our experience of
that world intelligible and available. It is with no illusion, therefore, that I
am leading you to a juristic ultima Thule that I essay a bit of systematic
legal science on a philosophical basis. Even if it never attains a final system
in which the law shall stand fast forever, the continual juristic search for the
more inclusive order, the continual juristic struggle for a simpler system
that will better order and better reconcile the phenomena of the actual
administration of justice, is no vain quest. Attempts to understand and to
expound legal phenomena lead to generalizations which profoundly affect
those phenomena, and criticism of those generalizations, in the light of the
phenomena they seek to explain and to which they give rise, enables us to
replace them or modify them or supplement them and thus to keep the law a
growing instrument for achieving expanding human desires.
One of the stock questions of the science of law is the nature and system
and philosophical basis of situations in which one may exact from another
that he "give or do or furnish something" (to use the Roman formula) for
the advantage of the former. The classical Roman lawyer, thinking in terms
of natural law, spoke of a bond or relation of right and law between them
whereby the one might justly and legally exact and the other was bound in
justice and law to perform. In modern times, thinking, whether he knows it
or not, in terms of natural rights and by derivation of legal rights, the
analytical jurist speaks of rights in personam. The Anglo-American lawyer,
thinking in terms of procedure, speaks of contracts and torts, using the
former term in a wide sense. If pressed, he may refer certain enforceable
claims to exact and duties of answering to the exaction to a Romanist

category of quasi-contract, satisfied to say "quasi" because on analysis they
do not comport with his theory of contract, and to say "contract" because
procedurally they are enforced ex contractu. Pressed further, he may be
willing to add "quasi tort" for cases of common-law liability without fault
and workmen's compensation—"quasi" because there is no fault, "tort"
because procedurally the liability is given effect ex delicto. But cases of
duties enforceable either ex contractu or ex delicto at the option of the
pleader and cases where the most astute pleader is hard pushed to choose
have driven us to seek something better.
Obligation, the Roman term, meaning the relation of the parties to what the
analytical jurists have called a right in personam is an exotic in our law in
that sense. Moreover the relation is not the significant thing for systematic
purposes, as is shown by civilian tendencies in the phrases "active
obligation" and "passive obligation" to extend the term from the relation to
the capacity or claim to exact and duty to answer to the exaction. The
phrase "right in personam" and its co-phrase "right in rem" are so
misleading in their implications, as any teacher soon learns, that we may
leave them to the textbooks of analytical jurisprudence. In this lecture, I
shall use the simple word "liability" for the situation whereby one may
exact legally and the other is legally subjected to the exaction. Using the
word in that sense, I shall inquire into the philosophical basis of liability
and the system of the law on that subject as related to that basis.
Yellowplush said of spelling that every gentleman was entitled to his own.
We have no authoritative institutional book of Anglo-American law, enacted
by sovereign authority, and hence every teacher of law is entitled to his own
terminology.
So far as the beginnings of law had theories, the first theory of liability was
in terms of a duty to buy off the vengeance of him to whom an injury had
been done whether by oneself or by something in one's power. The idea is
put strikingly in the Anglo-Saxon legal proverb, "Buy spear from side or
bear it," that is, buy off the feud or fight it out. One who does an injury or
stands between an injured person and his vengeance, by protecting a
kinsman, a child or a domestic animal that has wrought an injury, must
compound for the injury or bear the vengeance of the injured. As the social
interest in peace and order—the general security in its lowest terms—comes
to be secured more effectively by regulation and ultimate putting down of

the feud as a remedy, payment of composition becomes a duty rather than a
privilege, or in the case of injuries by persons or things in one's power a
duty alternative to a duty of surrendering the offending child or animal. The
next step is to measure the composition not in terms of the vengeance to be
bought off but in terms of the injury. A final step is to put it in terms of
reparation. These steps are taken haltingly and merge into one another, so
that we may hear of a "penalty of reparation." But the result is to turn
composition for vengeance into reparation for injury. Thus recovery of a
sum of money by way of penalty for a delict is the historical starting point
of liability.
One's neighbor whom one had injured or who had been injured by those
whom one harbored was not the only personality that might desire
vengeance in a primitive society. One might affront the gods, and by one's
impiety in so doing might imperil the general security, since the angered
gods were not unlikely to hit out indiscriminately and to cast pestilence or
hurl lightning upon just and unjust alike in the community which harbored
the impious wrongdoer. Hence if, in making a promise, one called the gods
to witness it was needful that politically organized society, taking over a
field of social control exercised by the priesthood, give a legal remedy to
the promisee lest he invoke the aid of the gods and jeopardize the general
security. Again in making a promise one might call the people or the
neighborhood to witness and might affront them by calling them to witness
in vain. Here, too, the peace was threatened and politically organized
society might give a remedy to the promisee, lest he invoke the help of his
fellow citizens or his neighbors. A common case might be one where a
composition was promised in this way for an injury not included in the
detailed tariff of compositions that is the staple of ancient "codes." Another
common case was where one who held another's property for some
temporary purpose promised to return it. Such a case is lending; for before
the days of coined money, the difference between lending a horse to go to
the next town and lending ten sheep to enable the borrower to pay a
composition is not perceptible. Thus another starting point of liability is
recovery of a thing certain, or what was originally the same, a sum certain,
promised in such wise as to endanger the general security if the promise is
not carried out. In Roman law, the condiction, which is the type of actions
in personam, and thus the starting point historically of rights in personam

and of theories of obligation, was at first a recovery of a thing certain or a
sum certain due upon a promise of this sort. In juristic terms, the central
idea of the beginnings of liability is duty to make composition for or
otherwise avert wrath arising from the affronted dignity of some personality
desirous of vengeance, whether an injured individual, a god or a politically
organized society. Greek law and Roman law give the name of "insult" to
legally cognizable injury to personality. Insult to a neighbor by injury to
him or to one of his household, insult to the gods by impious breach of the
promise they had witnessed, insult to the people by wanton disregard of the
undertaking solemnly made in their presence, threatened the peace and
order of society and called for legal remedy.
Lawyers begin to generalize and to frame conscious theories in the later
part of the stage of the strict law. At first these theories are analytical rather
than philosophical. The attempt is to frame general formulas by which the
rigid rules of the strict law may be reconciled where they overlap or conflict
or may be distinguished in their application where such overlapping or
conflict threatens. By this time, the crude beginnings of liability in a duty to
compound for insult or affront to man or gods or people, lest they be moved
to vengeance, has developed into liability to answer for injuries caused by
oneself or done by those persons or those things in one's power, and liability
for certain promises made in solemn form. Thus the basis of liability has
become twofold. It rests on the one hand upon duty to repair injury. It rests
on the other hand upon duty to carry out formal undertakings. It is enough
for this stage of legal development that all cases of liability may be referred
to these two types and that useful distinctions may be reached therefrom.
Consideration of why one should be held to repair injury, and why he
should be held to formal undertakings, belongs to a later stage.
Juristic theory, beginning in the transition from the strict law to the stage of
equity or natural law, becomes a force in the latter stage. As the relations
with which the law must deal become more numerous and the situations
calling for legal treatment become more complicated, it is no longer
possible to have a simple, definite, detailed rule for every sort of case that
can come before a tribunal, nor a fixed, absolute form for every legal
transaction. Hence, under the leadership of philosophical jurists, men turn
to logical development of the "nature" or ideal form of situations and to
ethical ideas of what "good faith" or "good conscience" demands in

particular relations or transactions. The strict law, relying on rule and form,
took no account of intention as such. The words took effect quite
independently of the thought behind them. But as lawyers began to reflect
and to teach something more than a class or professional tradition, as they
began to be influenced by philosophy to give over purely mechanical
methods and to measure things by reason rather than by arbitrary will,
emphasis shifted from form to substance; from the letter to the spirit and
intent. The statute was thought of as but the lawmaker's formulation of a
principle of natural law. It was not the uerba that were efficacious, as in the
strict law, which had inherited the primitive faith in the power of words and
thought of the legal formula as if it were a formula of incantation
possessing inherent magical force. It was the ratio iuris, which transcended
words and formulas. So also the traditional rule was not a magic formula
discovered by our fathers. It was a customary expression of a principle of
natural law. Likewise the formal transaction was not a bit of private magic
employed to conjure up legal liability. It was the clothing in legally
recognized vestments of an intention to do what reason and good faith
demand in a given situation. When form and intention concurred the
promisor must answer for what he undertook. When the form used did not
express or went beyond the intention or was the product of an apparent but
not a real intention, the promisee was not to be enriched unjustly at the
promisor's expense on the sole basis of the form. Moreover the duty was to
be one of doing what good faith demanded, not one of doing literally and
exactly what the letter of the undertaking called for. And although there was
no express undertaking, there might be duties implied in the relation or
situation or transaction, viewed as one of good faith, and one might be held
to a standard of action because an upright and diligent man, who was his
own master, would so act. Such is the mode of thinking in the classical
period of the Roman law and it is closely paralleled by an independent
development of juristic thought in the rise of equity and the absorption of
the law merchant in our law.
It was easy to fit the two categories, delict and formal undertaking, which
had come down from the strict law, into the new mode of thought. The
typical delict required dolus—intentional aggression upon the personality or
the substance of another. Indeed Aquilian culpa, in which the fault did not
extend to intentional aggression, is a juristic equitable development. Hence

when the legal was identified with the moral, and such identification is a
prime characteristic of this stage, the significant thing in delict seemed to be
the moral duty to repair an injury caused by wilful aggression. The legal
precept was alienum non laedere. Also the duty to perform an intentional
undertaking seemed to rest on the inherent moral quality of a promise that
made it intrinsically binding on an upright man. The legal precept was suum
cuique tribuere. Thus liability seemed to flow from intentional action—
whether in the form of aggression or in the form of agreement. The
"natural" sources of liability were delict and contract. Everything else was
assimilated to one or the other of them. Liability without fault was quasi-
delictal. Liability imposed by good faith to prevent unjust enrichment was
quasi-contractual. The central idea had become one of the demands of good
faith in view of intentional action.
In the nineteenth century the conception of liability as resting on intention
was put in metaphysical rather than ethical form. Law was a realization of
the idea of liberty, and existed to bring about the widest possible individual
liberty. Liberty was the free will in action. Hence it was the business of the
legal order to give the widest effect to the declared will and to impose no
duties except in order to effectuate the will or to reconcile the will of one
with the will of others by a universal law. What had been a positive,
creative theory of developing liability on the basis of intention, became a
negative, restraining, one might say pruning, theory of no liability except on
the basis of intention. Liability could flow only from culpable conduct or
from assumed duties. The abstract individual will was the central point in
the theory of liability. If one was not actually culpable and yet established
legal precepts which were not to be denied held him answerable, it was
because he was "deemed" culpable, the historical legal liability being the
proof of culpability. If he had not actually assumed a duty, and yet
established legal precepts which were not to be denied held him to answer
for it, this must be because he had assumed some relation or professed some
calling in which an undertaking to that effect was "implied" or had
participated in some situation in which it was "implied,"—the implication
being a deduction from the liability. The bases of liability were culpable
conduct and legal transaction, and these came down to an ultimate basis in
will. The fundamental conception in legal liability was the conception of an
act—of a manifestation of the will in the external world.

Roman law and English law begin with a set of what might be called
nominate delicts or nominate torts. In Roman law there were furtum
(conversion), rapina (forcible conversion) and iniuria (wilful aggression
upon personality). All these involved dolus, i.e. intentional aggression. The
lex Aquilia added damnum iniuria datum (wrongful injury to property).
Later there were added what might be called the equitable delicts of dolus
(fraud) and metus (duress). Here also there was wilful aggression, and the
delict of dolus gets its name from the intentional misleading that
characterizes it in Roman law as it does deceit in English law. In damnum
iniuria datum, a wider conception of fault, as distinguished from intentional
aggression, grew up by juristic development, and Aquilian culpa, that is, a
fault causing injury to property and therefore actionable on the analogy of
the lex Aquilia, furnished the model for the modern law. All these may be
fitted to the will theory and modern systematic writers regularly do so. But
noxal liability for injury done by a child or slave or domestic animal did not
fit it, nor did the liability of a master of a ship, an innkeeper or a stable
keeper to respond without regard to fault. Liability for injury done by child
or slave or domestic animal was enforced in a noxal action on the analogy
of the action which lay for the same injury if done by the defendant in
person. Hence procedurally it seemed liability for a delict involving
intentional aggression, and it was possible to say that there was fault in not
restraining the agency that did the injury, although no fault had to be shown
nor could absence of fault be shown as a defence. There was fault because
there was liability, for all liability grew out of fault. Such treadings on the
tail of its own argument are very common in legal reasoning. Likewise in
the case of the absolute liability of the master of a ship, the innkeeper and
the stable keeper, the institutional writers could say that they were at fault in
not having proper servants, although here also fault need not be established
by proof nor could want of fault be made a defence. As procedurally these
liabilities arose in actions on the facts of particular cases, the jurists at first
lumped them with many other forms of liability, which were not in fact
dependent on intention and were enforced in actions in factum, as
obligations arising from the special facts of cases (obligationes ex uariis
causarum figuris). Later they were called quasi-delictual obligations and
they are so designated in the fourfold classification of the Institutes.
Buckland has remarked that in almost all of the liabilities included under
quasi-delict in the Institutes there is liability at one's peril for the act of

another, especially for one's servant, as in the noxal actions, the actio de
deiectis et diffusis (for things thrown or poured from buildings upon a way)
and the actio de recepto against an innkeeper. In other words, in these cases
one was held without regard to fault for injuries incidental to the conduct of
certain enterprises or callings and for failure to restrain potentially injurious
agencies which one maintained.
Modern law has given up both the nominate delicts and quasi-delict, as
things of any significance. The French civil code made the idea of Aquilian
culpa into a general theory of delictal liability, saying, "Every act of man
which causes damage to another obliges him through whose fault it
happened to make reparation." In other words, liability is to be based on an
act, and it must be a culpable act. Act, culpability, causation, damage, were
the elements. This simple theory of liability for culpable causation of
damage was accepted universally by civilians until late in the nineteenth
century and is still orthodox. Taken up by text writers on torts in the last
half of that century, it had much influence in Anglo-American law. But
along with this generalization the French code preserved a liability without
fault, developed out of the noxal actions, whereby parents and teachers may
be held for injuries by minors under their charge, masters for injuries by
their apprentices, employers for injuries by employees and those in charge
of animals for injuries by such animals. Also it provided an absolute
liability for injury by a res ruinosa, developed out of the Roman cautio
damni infecti. In the case of parents, teachers and masters of apprentices,
there is only a presumption of fault. They may escape by showing
affirmatively that they were without fault and that what happened could not
have been prevented by diligence on their part. In the case of employers no
excuse is admitted. The liability is absolute. In the case of animals, fault of
the victim, inevitable accident and vis maior may be shown affirmatively by
way of defence. In the case of a res ruinosa there is no presumption of fault.
But if the structure fell or did injury because of a defect of construction or
want of repair, the owner is liable absolutely and may not show that he had
no notice of the defect and no reason to suspect it, or that it was not in his
power to prevent the structure from falling.
Thus it will be seen that French law came very near to a logically consistent
scheme of liability for fault, and civil liability for fault only, throughout the
whole delictal field. Employer's liability remained absolute, and liability for

animals but little short of absolute. For the rest there was in certain cases an
imposition of the burden of proof that there had been no fault, leaving the
ultimate liability to rest upon a presumed fault, if want of fault was not
established. None the less this, the most thoroughgoing attempt to make
delictal liability flow exclusively from culpability—to make it a corollary
of fault and of fault only—fell short of complete attainment of its aim.
Recent French authors do not hesitate to say that the attempt must be given
over and that a new theory of civil delictal liability must be worked out.
Meanwhile the same movement away from the simple theory of delictal
liability for culpable causation of damage had taken place elsewhere on the
Continent. Binding had subjected the culpa-prinzip to thorough analysis,
and following him it had come to be rejected generally by recent German
and Swiss jurists.
In the common law, as has been said, we begin likewise with a set of
nominate torts—assault, battery, imprisonment, trespass on lands, trespass
on chattels, conversion, deceit, malicious prosecution, slander and libel—
developed procedurally through the action of trespass and the action of
trespass on the case. All of these, except trespass on lands, trespass upon
possession of chattels and conversion, are cases of intentional injury.
Trespass on lands, trespass on chattels and conversion involve more than
the general security and must be considered in connection with ideas of
property. The social interest in security of acquisitions demands that we be
able to rely on others keeping off of our lands and not molesting our
chattels; that they find out for themselves and at their own risk where they
are or with whose chattels they are meddling. But even here there must be
an act. If there is no act, there is no liability. To these nominate torts, each
with its own special rules, coming down from the strict law, we added a
new ground of liability, namely, negligence, going on a principle, not of
duty to answer for aggression, but of duty to answer for injuries resulting
from falling short of a legal standard of conduct governing affirmative
courses of action. Some, indeed, sought to give us a "tort of negligence" as
a nominate tort. But it was soon recognized that in negligence we have a
principle of liability dependent upon a standard, not a tort to be ranged
alongside of assault or imprisonment. Later, with the rise of doctrines as to
injury to advantageous relations and the failure of negligence to account for
all unintended harms of which the law actually was taking note, we

developed an indefinite number of innominate torts. Today with the
obsolescence of procedural difficulties, there is no reason why we should
not generalize, as the civil law did at the beginning of the last century; and
such a generalization was attempted in the last third of the nineteenth
century. It became orthodox common law that liability was a corollary of
fault. So far as established common-law rules imposed a liability without
fault, they were said to be historical exceptions, and some of our courts,
under the influence of this theory, were willing to go a long way in
abrogating them. Liability, without regard to fault, for the acts of servants
and employees was reconciled with this theory by the fiction of
representation, exposed long ago by Mr. Justice Holmes and later by Dr.
Baty. Finally it came to be thought that no liability without fault was not
merely common law but was natural law and that any legislative imposition
of such liability was arbitrary and unreasonable in itself and hence
unconstitutional. On that theory, the New York Court of Appeals held
workmen's compensation unconstitutional, and a minority of the Supreme
Court of the United States recently announced the same proposition.
Because of its implications for constitutional law, in view of the increasing
frequency of legislation imposing responsibility at one's peril in certain
enterprises, in the case of certain dangerous agencies and in situations
where it is felt that the loss should be borne by all of us rather than by the
luckless individual who chances to be hurt, the basis of tort liability has
become a question of moment beyond the immediate law of torts. It is a
practical question of the first importance, as well as a theoretical question of
interest, whether we are to generalize our whole system of tort liability by
means of one principle of liability for fault and for fault only, as the French
sought to do and as we later sought to do largely under their influence, or,
on the other hand, are to admit another source of delictal liability alongside
of fault, as the French law does in fact and is coming to do in theory, and as
our law has always done in fact. For in our law as it stands one may
perceive readily three types of delictual liability: (1) Liability for intentional
harm, (2) liability for unintentional culpable harm, (3) liability in certain
cases for unintended non-culpable harm. The first two comport with the
doctrine of no liability without fault. The third cannot be fitted thereto. We
must either brand cases of the third type as historical anomalies, of which
we are gradually to rid ourselves, or else revise our notions of tort liability.

Let us remember that the nineteenth century was well advanced before we
understood the subject of negligence and that before we had convinced
ourselves that no liability without fault was orthodox common law, the
highest court of England had given absolute liability a new field by the
decision in Rylands v. Fletcher. We are not questioning a long-established
dogma in Anglo-American administration of justice, therefore, when we ask
whether the orthodox theory of the last generation is adequate as an
analytical statement of the law that is, or as a philosophical theory of the
law that ought to be. My own belief is that it is neither.
Suppose that instead of beginning with the individual free will we begin
with the wants or claims involved in civilized society—as it has been put,
with the jural postulates of civilized society. One such postulate, I think we
should agree, is that in civilized society men must be able to assume that
others will do them no intended injury—that others will commit no
intentional aggressions upon them. The savage must move stealthily, avoid
the sky-line and go armed. The civilized man assumes that no one will
attack him and so moves among his fellow men openly and unarmed, going
about his business in a minute division of labor. Otherwise there could be
no division of labor beyond the differentiation of men of fighting age, as we
see it in a primitive society. This postulate is at the foundation of civilized
society. Everywhere dolus is first dealt with. The system of nominate delicts
or nominate torts, both in Roman law and in our law, proceeds on this
postulate.
Is it not another such postulate that in civilized society men must be able to
assume that their fellow men, when they act affirmatively, will do so with
due care, that is with the care which the ordinary understanding and moral
sense of the community exacts, with respect to consequences that may
reasonably be anticipated? Such a postulate is the basis of delictal culpa,
using culpa in the narrower sense, and of our doctrine of negligence. In
Roman law and at one time in our law attempts were made to develop this
postulate contractually. If in a transaction involving good faith—that is an
informal legal transaction—one's conduct fell short of action to which the
other party was justified by the understanding of upright men in expecting
him to adhere, there was contractual culpa; there was a violation of a
promise implied in the transaction and consequent liability. We borrowed
something of this mode of thought from the Romans in our law of bailments

and hence think indifferently in terms of tort or contract in that connection,
although historically our action for such cases is delictal. In other
connections also our law for a time sought to develop this postulate
contractually by means of an "implied undertaking to use skill" for which
one must answer if his skill fell short of that which the legal standard of
affirmative conduct called for under the circumstances. Also in the Year
Books an undertaking implied in certain relations or callings to use the skill
or diligence which the relation or calling demanded is often made the basis
of liability. But here the basis of liability must be found in a relation. The
fiction of an undertaking to use the skill or diligence involved in a relation
or calling is a juristic way of saying that one who deals with another in such
a relation or with another who professes such a calling is justified in
assuming the skill and diligence ordinarily involved therein, so that the law
holds those in the relation or engaged in the calling to that standard in order
to maintain the general security. In other words another, though closely
related, postulate of civilized society is involved.
It is worth a moment's digression to suggest that such things show how little
the historical categories of delict and contract represent any essential or
inherent need of legal thinking. Austin thought that "the distinction of
obligations (or of duties corresponding to rights against persons specifically
determined) into obligations which arise from contracts, obligations which
arise from injuries, and obligations which arise from incidents which are
neither contracts nor injuries," was a "necessary distinction," without which
a "system of law evolved in a refined community" could not be conceived.
This "necessary" systematic scheme, which must be "a constituent part" of
any imaginable developed legal system, is but the Roman division into
obligations ex contractu, obligations ex delicto and obligations ex uariis
causarum figuris, in which the third category is obviously a catch-all. In
trying to fit our law into this necessary scheme, we find three types of cases
must go in the third: (a) Duties or liabilities attached by law to a relation,
(b) duties imposed by law to prevent unjust enrichment, (c) duties involved
in an office or calling. In the third of these our Anglo-American procedure
allows recovery either ex delicto or ex contractu. In the second our law
sometimes goes on a property theory of constructive trust. In the first duties
are sometimes sanctioned affirmatively by conferring legal powers or
negatively by legal non-restraint of natural powers, as in the law of

domestic relations, where the wife has a power to pledge the husband's
credit for necessaries and the law does not interfere with the parent's
administering reasonable "correction" to the child. Are we to say that these
dogmatic departures of our law from the Roman scheme are inconceivable
or that because of them our law is not matured or was not "evolved in a
refined community?" Or are we to say that Austin derived his systematic
ideas, not from scientific study of English law, but from scientific study of
Roman law in a German university? Are we to say that we cannot "imagine
coherently" a system of law which enforces warranties indifferently ex
contractu or ex delicto as our law does, or which goes further and applies
the contract measure of damage ex delicto as does the law of
Massachusetts? But enough of this. What we have here is not any necessary
distinction. It is rather what Austin calls a "pervading notion," to be found
generally in the systematic ideas of developed legal systems by derivation
from the Roman books. Roman law may have a contractual conception of
obligation ex delicto—thinking of the delict as giving rise to a debt—and
the common law a delictual conception of liability upon contract—thinking
in terms of recovery of damages for the wrong of breaking a promise—
without much difference in the ultimate results. The fundamental things are
not tort and contract but justifiable assumptions as to the mode in which
one's fellow men will act in civilized society in many different situations of
which aggression and undertaking are but two common types.
Returning to our second postulate of due care in affirmative courses of
conduct, we may note that in the society of today it is no less fundamental
than the postulate of no intentional aggression. Aggression is the chief if not
the only form of anti-social conduct in a primitive society. Indeed, a Greek
writer on law and politics of the fifth century B. C. knew of no other subject
of legal precepts. But with the development of machinery and consequent
increase in human powers of action, the general security comes to be
threatened quite as much by the way in which one does things as by what he
does. Carelessness becomes a more frequent and more serious source of
danger to the general security than aggression. Hence a set of nominate
delicts requiring dolus is supplemented by a theory of culpa. Hence a set of
nominate torts, characterized by intentional aggression, is supplemented by
liability for negligence, and the latter becomes the more important source of
legal liability in practice.

Must we not recognize also a third postulate, namely, that men must be able
to assume that others, who keep things or maintain conditions or employ
agencies that are likely to get out of hand or escape and do damage, will
restrain them or keep them within proper bounds? Just as we may not go
effectively about our several businesses in a society dependent on a minute
division of labor if we must constantly be on guard against the aggressions
or the want of forethought of our neighbor, so our complex social order
based on division of labor may not function effectively if each of us must
stay his activities through fear of the breaking loose or getting out of hand
of something which his neighbor harbors or maintains. There is danger to
the general security not only in what men do and the way in which they do
it, but also in what they fail to do in not restraining things they maintain or
agencies they employ which may do injury if not kept strictly in hand. The
general security is threatened by wilful aggression, by affirmative action
without due regard for others in the mode of conducting it, and by
harboring and maintaining things and employing agencies likely to escape
or to go out of bounds and do damage. Looked at in this way, the ultimate
basis of delictal liability is the social interest in the general security. This
interest is threatened or infringed in three ways: (1) Intentional aggression,
(2) negligent action, (3) failure to restrain potentially dangerous things
which one maintains or potentially dangerous agencies which one employs.
Accordingly these three are the immediate bases of delictal liability.
Controversial cases of liability without fault involve the third postulate.
Systematic writers have found no difficulty in reconciling the law of
negligence with the will theory of liability and the doctrine of no liability
without fault. Yet they must use the term fault in a strained sense in order to
fit our law of negligence with its objective standard of due care, or the
Roman cases of liability for culpa judged by the abstract standard, into any
theory of moral blameworthiness. The doctrine of liability for fault and for
fault only has its roots in the stage of equity and natural law, when the
moral and the legal are identified, and means that one shall respond for
injuries due to morally blameworthy conduct upon his part. As Ames puts
it, "the unmoral standard of acting at one's peril" is replaced by the
question, "Was the act blameworthy?" But is an act blameworthy because
the actor has a slow reaction time or was born impulsive or is naturally
timid or is easily "rattled" and hence in an emergency does not come up to

the standard of what a reasonably prudent man would do in such an
emergency, as applied ex post facto by twelve average men in the jury box?
If our use of "culpable" here were not, as it were, Pickwickian, we should
allow the defendant in such cases to show what sort of man nature had
made him and to call for individualization with respect to his character and
temperament as well as with respect to the circumstances under which he
acted. As the Romanist would say, we should apply a concrete standard of
culpa. But what the law is really regarding is not his culpable exercise of
his will but the danger to the general security if he and his fellows act
affirmatively without coming up to the standard imposed to maintain that
security. If he acts, he must measure up to that standard at his peril of
answering for injurious consequences. Whenever a case of negligence calls
for sharp application of the objective standard, fault is as much a dogmatic
fiction as is representation in the liability of the master for the torts of his
servant. In each case the exigencies of the will theory lead us to cover up a
liability irrespective of fault, imposed to maintain the general security, by a
conclusive imputation of fault to one who may be morally blameless. This
is no less true of cases where we speak of "negligence per se."
Reconciliation of common-law absolute liabilities for the getting out of
hand of things likely to escape and do damage with the doctrine of no
liability without fault has been sought by means of a fiction of negligence,
by pronouncing them disappearing historical anomalies, by an economic
interpretation that regards them as results of class interest distorting the law,
and by a theory of res ipsa loquitur. Blackstone resorted to the first of these.
"A man is answerable," he said, "for not only his own trespass but for that
of his cattle also; for if by his negligent keeping they stray upon the land of
another ... this is a trespass for which the owner must answer in damages."
But note that the negligence here is a dogmatic fiction. No proof of
negligence is required of the plaintiff, nor may the defendant show that
there was in fact no negligence. The negligence is established by the
liability, not the liability by the negligence.
In the last century it was usual to refer to absolute liability for trespassing
animals, for injuries by wild animals and for injuries by domestic animals,
known to be vicious, as disappearing rudiments of the old liability to make
composition. The common American doctrine as to cattle running at large
upon uncultivated lands seemed to confirm this. Yet one need but look

beneath the surface to see that the English rule was rejected for a time in
America, not because it was in conflict with a fundamental principle of no
liability without fault, but because it presupposed a settled community,
where it was contrary to the general security to turn cattle out to graze,
whereas in pioneer American communities of the past vacant lands which
were owned and those which were not owned could not be distinguished
and the grazing resources of the community were often its most important
resources. The common-law rule, without regard to its basis, was for a time
inapplicable to local conditions. It is significant that as the conditions that
made the rule inapplicable have come to an end the rule has generally re-
established itself. In England it is in full vigor so that the owner of
trespassing animals is held for disease communicated by them although he
had no knowledge or reason to suppose they were diseased. A rule that can
re-establish itself and extend its scope in this way is not moribund. It must
have behind it some basis in the securing of social interests. Nor have the
attempts of some American courts to narrow common-law liability for
injuries by known vicious animals to cases of negligent keeping made much
headway. The weight of American authority remains with the common-law
rule and in England the Court of Appeal has carried the rule out to the
extent of holding the owner notwithstanding the animal was turned loose by
the wrongful act of an intermeddling third person. Nor have the predictions
that the doctrine of Rylands v. Fletcher would disappear from the law
through the courts' smothering it with exceptions—predictions commonly
made at the end of the last century—been verified in the event. In 1914 the
English courts refused to limit the doctrine to adjacent free-holders and they
have since extended it to new situations. Moreover in America, where we
had been told it was decisively rejected, it has been applied in the past
decade by more than one court. The leading American cases that profess to
reject the doctrine did not involve it nor did they involve the postulate of
civilized society on which, as I think, it is based. Also the Court of Appeals
of New York, the leading exponent of no liability without fault, had
theretofore imposed a liability without regard to negligence in the case of
blasting.
An ingenious explanation of the doctrine of Rylands v. Fletcher by means
of the economic interpretation of legal history demands more notice. We are
told that the English courts were manned by landowners or by judges drawn

from the land-owning class; that the doctrine of Rylands v. Fletcher is a
doctrine for landowners and so was not accepted by artisans in the United
States. But consider which states applied the rule and which rejected it. It
was applied in Massachusetts in 1872, in Minnesota in 1872, in Ohio in
1896, in West Virginia in 1911, in Missouri in 1913, in Texas in 1916. It
was rejected by New Hampshire in 1873, by New York in 1873, by New
Jersey in 1876, by Pennsylvania in 1886, by California in 1895, by
Kentucky in 1903, by Indiana in 1911. Is New York a community of
artisans but Massachusetts a community of landowners? Did the United
States begin to change from a country of artisans to one of landowners
about the year 1910 so that a drift toward the doctrine began at that time
after a steady rejection of it between 1873 and 1896? Rylands v. Fletcher
was decided in 1867 and is connected with the movement Dicey calls
collectivism, which, he says, began in 1865. It is a reaction from the notion
of liability merely as a corollary of culpability. It restrains the use of land in
the interest of the general security. If this view is well taken, if it was an
attempt to take account of the social interest in the general security in a
crowded country, this may explain the reluctance with which it was
received in the United States at first, where pioneer ideas, appropriate to a
less crowded agricultural country, lingered at least to the end of the
nineteenth century. In the actual American decisions, some follow Rylands
v. Fletcher as an authoritative statement of the common law. Other cases go
rather on the principle that liability flows from culpability. Agricultural
states and industrial states alike divide along these doctrinal lines.
Massachusetts and Pennsylvania, both industrial states, are on opposite
sides. So are Texas and Kentucky, which are agricultural states.
Massachusetts and New Jersey, each with an appointive bench, are on
opposite sides, and so are Ohio and New York, each with an elective bench.
In truth the Massachusetts court followed authority. In New Hampshire
Chief Justice Doe was not willing to go on mere authority and decided on
the general principle that liability must flow from fault.
Another view is that the doctrine of Rylands v. Fletcher is a crude attempt,
when negligence and the doctrine of res ipsa loquitur were none too well
understood, to apply the principle of the latter doctrine, and that those
doctrines will suffice to reach the actual result. No doubt res ipsa loquitur
gives a possible mode of treating cases where one maintains something

likely to get out of hand and do injury. For four possible solutions may be
found for such cases. One is absolute liability, as in Rylands v. Fletcher.
Another is to put the burden of proof of due care on the defendant, as
French law does in some cases and as is done by some American decisions
and some statutes in case of fires set by locomotives. A third is to apply the
doctrine of res ipsa loquitur. A fourth would be to require the plaintiff to
prove negligence, as is done by the Supreme Court of New Jersey where a
known vicious animal breaks loose. That the fourth, which is the solution
required by the theory of no liability without fault, has found but two courts
to uphold it, and that only in the case of vicious domestic animals, is
suggestive. Res ipsa loquitur may easily run into a dogmatic fiction, and
must do so, if made to achieve the result of the doctrine of Rylands v.
Fletcher, which does not permit the defendant to go forward with proof,
short of vis maior or the unanticipated unlawful act of a third person beyond
defendant's control. The vitality and persistence of the doctrine against
theoretical assault for more than a generation show that it is more than a
historical anomaly or a dogmatic blunder.
Another type of common-law liability without fault, the so-called liability
of the carrier as an insurer and the liability of the innkeeper, is relational
and depends upon a different postulate. Nineteenth-century courts in the
United States endeavored to hold down the former, restricting it because of
its inconsistency with the doctrine of liability as a corollary of fault. But it
has proved to have abundant vitality, has been extended by legislation in
some states to carriers of passengers and has been upheld by recent
legislation everywhere.
Two other types of liability, contractual and relational, must receive brief
notice. The former has long done valiant service for the will theory. Not
only liability arising from legal transactions but liability attached to an
office or calling, liability attached to relations and liability to restitution in
case of unjust enrichment have been referred to express or implied
undertaking and hence to the will of the person held. But beneath the
surface the so-called contract by estoppel, the cases of acceptance of a
wrongly transmitted offer, the doctrine that a public utility has no general
power of contract as to facilities or rates except to liquidate the terms of its
relational duties in certain doubtful cases, and cases of imposition of duties
on husband or wife after marriage by change of law, have caused persistent

and recurring difficulties and call everywhere for a revision of our ideas.
Also the objective theory of contract has undermined the very citadel of the
will theory. May we not refer these phenomena, not to the will of the person
bound, but to another postulate of civilized society and its corollaries? May
we not say that in civilized society men must be able to assume that those
with whom they deal in the general intercourse of society will act in good
faith? If so, four corollaries will serve as the bases of four types of liability.
For it will follow that they must be able to assume (a) that their fellow men
will make good reasonable expectations created by their promises or other
conduct, (b) that they will carry out their undertakings according to the
expectation which the moral sentiment of the community attaches thereto,
(c) that they will conduct themselves with zeal and fidelity in relations,
offices and callings, and (d) that they will restore in specie or by equivalent
what comes to them by mistake or unanticipated situation whereby they
receive what they could not have expected reasonably to receive under such
circumstances. Thus we come back to the idea of good faith, the idea of the
classical Roman jurists and of the philosophical jurists of the seventeenth
century, out of which the will theory was but a metaphysical development.
Only we give it a basis in social philosophy where they sought a basis in
theories of the nature of transactions or of the nature of man as a moral
creature.
Looking back over the whole subject, shall we not explain more phenomena
and explain them better by saying that the law enforces the reasonable
expectations arising out of conduct, relations and situations, instead of that
it proceeds upon willed action and willed action only, enforcing the willed
consequences of declared intention, enforcing reparation for willed
aggression and enforcing reparation for culpable carrying on of willed
conduct? If we explain more and explain it more completely by saying that
the ultimate thing in the theory of liability is justifiable reliance under the
conditions of civilized society than by saying that it is free will, we shall
have done all that we may hope to do by any theory.

V

Property
Economic life of the individual in society, as we know it, involves four
claims. One is a claim to the control of certain corporeal things, the natural
media on which human existence depends. Another is a claim to freedom of
industry and contract as an individual asset, apart from free exercise of
one's powers as a phase of personality, since in a highly organized society
the general existence may depend to a large extent upon individual labor in
specialized occupations, and the power to labor freely at one's chosen
occupation may be one's chief asset. Third, there is a claim to promised
advantages, to promised performances of pecuniary value by others, since
in a complex economic organization with minute division of labor and
enterprises extending over long periods, credit more and more replaces
corporeal wealth as the medium of exchange and agency of commercial
activity. Fourth, there is a claim to be secured against interference by
outsiders with economically advantageous relations with others, whether
contractual, social, business, official or domestic. For not only do various
relations which have an economic value involve claims against the other
party to the relation, which one may demand that the law secure, but they
also involve claims against the world at large that these advantageous
relations, which form an important part of the substance of the individual,
shall not be interfered with. Legal recognition of these individual claims,
legal delimitation and securing of individual interests of substance is at the
foundation of our economic organization of society. In civilized society
men must be able to assume that they may control, for purposes beneficial
to themselves, what they have discovered and appropriated to their own use,
what they have created by their own labor and what they have acquired
under the existing social and economic order. This is a jural postulate of
civilized society as we know it. The law of property in the widest sense,
including incorporeal property and the growing doctrines as to protection of
economically advantageous relations, gives effect to the social want or
demand formulated in this postulate. So also does the law of contract in an
economic order based upon credit. A social interest in the security of
acquisitions and a social interest in the security of transactions are the forms

of the interest in the general security which give the law most to do. The
general safety, peace and order and the general health are secured for the
most part by police and administrative agencies. Property and contract,
security of acquisitions and security of transactions are the domain in which
law is most effective and is chiefly invoked. Hence property and contract
are the two subjects about which philosophy of law has had the most to say.
In the law of liability, both for injuries and for undertakings, philosophical
theories have had much influence in shaping the actual law. If they have
grown out of attempts to understand and explain existing legal precepts, yet
they have furnished a critique by which to judge those precepts, to shape
them for the future and to build new ones out of them or upon them. This is
much less true of philosophical theories of property. Their rôle has not been
critical or creative but explanatory. They have not shown how to build but
have sought to satisfy men with what they had built already. Examination of
these theories is an illuminating study of how philosophical theories of law
grow out of the facts of time and place as explanations thereof and then are
given universal application as necessarily explanatory or determinative of
social and legal phenomena for all time and in every place. It has been said
that the philosophy of law seeks the permanent or enduring element in the
law of the time and place. It would be quite as true to say that it seeks to
find in the law of the time and place a permanent or enduring picture of
universal law.
It has been said that the individual in civilized society claims to control and
to apply to his purposes what he discovers and reduces to his power, what
he creates by his labor, physical or mental, and what he acquires under the
prevailing social, economic or legal system by exchange, purchase, gift or
succession. The first and second of these have always been spoken of as
giving a "natural" title to property. Thus the Romans spoke of them as
modes of "natural acquisition" by occupation or by specification (making a
species, i.e., creation). Indeed, taking possession of what one discovers is so
in accord with a fundamental human instinct that discovery and occupation
have stood in the books ever since substantially as the Romans stated them.
A striking example of the extent to which this doctrine responds to deep-
seated human tendencies is afforded by the customs as to discovery of
mineral on the public domain upon which American mining law is founded
and the customs of the old whale-fishery as to fast-fish and loose-fish which

were recognized and given effect by the courts. But there is a difficulty in
the case of creation or specification in that except where the creation is
mental only materials must be used, and the materials or tools employed
may be another's. Hence Grotius reduced creation by labor to occupation,
since if one made from what he discovered, the materials were his by
occupation, and if not, the title of others to the materials was decisive. This
controversy as to the respective claims of him who creates by labor and him
who furnishes the materials goes back to the Roman jurists of the classical
period. The Proculians awarded the thing made to the maker because as
such it had not existed previously. The Sabinians awarded it to the owner of
the materials because without materials the new thing could not have been
made. In the maturity of Roman law a compromise was made, and various
compromises have obtained ever since. In modern times, however, the
claim of him who creates has been urged by a long line of writers beginning
with Locke and culminating in the socialists. The Romans spoke of what
one acquired under the prevailing social, economic or legal system as held
by "civil" acquisition and conceived that the principle suum cuique tribuere
secured the thing so acquired as being one's own.
Roman jurists recognized that certain things were not subject to acquisition
in any of the foregoing ways. Under the influence of the Stoic idea of
naturalis ratio they conceived that most things were destined by nature to
be controlled by man. Such control expressed their natural purpose. Some
things, however, were not destined to be controlled by individuals.
Individual control would run counter to their natural purpose. Hence they
could not be the subjects of private ownership. Such things were called res
extra commercium. They might be excluded from the possibility of
individual ownership in any of three ways. It might be that from their nature
they could only be used, not owned, and from their nature they were
adapted to general use. These were res communes. Or it might be that they
were made for or from their nature they were adapted to public use, that is
use for public purposes by public functionaries or by the political
community. These were res publicae. Again it might be because they had
been devoted to religious purposes or consecrated by religious acts
inconsistent with private ownership. Such things were res sanctae, res
sacrae and res religiosae. In modern law, as a result of the medieval
confusion of the power of the sovereign to regulate the use of things

(imperium) with ownership (dominium) and of the idea of the corporate
personality of the state, we have made the second category into property of
public corporations. And this has required modern systematic writers to
distinguish between those things which cannot be owned at all, such as
human beings, things which may be owned by public corporations but may
not be transferred, and things which are owned by public corporations in
full dominion. We are also tending to limit the idea of discovery and
occupation by making res nullius (e.g., wild game) into res publicae and to
justify a more stringent regulation of individual use of res communes (e.g.,
of the use of running water for irrigation or for power) by declaring that
they are the property of the state or are "owned by the state in trust for the
people." It should be said, however, that while in form our courts and
legislatures seem thus to have reduced everything but the air and the high
seas to ownership, in fact the so-called state ownership of res communes
and res nullius is only a sort of guardianship for social purposes. It is
imperium, not dominium. The state as a corporation does not own a river as
it owns the furniture in the state house. It does not own wild game as it
owns the cash in the vaults of the treasury. What is meant is that
conservation of important social resources requires regulation of the use of
res communes to eliminate friction and prevent waste, and requires
limitation of the times when, places where and persons by whom res nullius
may be acquired in order to prevent their extermination. Our modern way of
putting it is only an incident of the nineteenth-century dogma that
everything must be owned.
It is not hard to see how the Romans came to the distinction that has
obtained in the books ever since. Some things were part of the Roman's
familia, were used by him upon the public domain which he occupied or
were traded by him to those with whom he had legal power of commercial
intercourse. He acquired them by discovery, by capture in war, by labor in
agriculture or as an artisan, by commercial transactions or by inheritance.
For these things private actions lay. Other things were no part of his or of
anyone's household. They were used for political or military or religious
purposes or, like rivers, were put to use by everyone without being
consumed thereby. As to these, the magisterial rather than the judicial
power had to be invoked. They were protected or use of them was regulated
and secured by interdicts. One could not acquire them so as to maintain a

private action for them. Thus some things could be acquired and conveyed
and some could not. In order to be valid, however, according to juristic
theory the distinction must lie in the nature of things, and it was generalized
accordingly.
In a time when large unoccupied areas were open to settlement and
abundant natural resources were waiting to be discovered and developed, a
theory of acquisition by discovery and appropriation of res nullius,
reserving a few things as res extra commercium, did not involve serious
difficulty. On the other hand, in a crowded world, the theory of res extra
commercium comes to seem inconsistent with private property and the
theory of discovery and occupation to involve waste of social resources. As
to the latter, we may compare the law of mining and of water rights on the
public domain, which developed along lines of discovery and reduction to
possession under the conditions of 1849 and the federal legislation of 1866
and 1872, with recent legislation proceeding on ideas of conservation of
natural resources. The former requires more consideration. For the
argument that excludes some things from private ownership may seem to
apply more and more to land and even to movables. Thus Herbert Spencer
says, in explaining res communes:
"If one individual interferes with the relations of another to the natural
media upon which the latter's life depends, he infringes the like liberties of
others by which his own are measured."
But if this is true of air and of light and of running water, men will insist
upon inquiring why it is not true of land, of articles of food, of tools and
implements, of capital and even, it may be, of the luxuries upon which a
truly human life depends. Accordingly, how to give a rational account of the
so-called natural right of property and how to fix the natural limits of that
right became vexed questions of philosophical jurisprudence.
Antiquity was content to maintain the economic and social status quo or at
least to idealize it and maintain it in an ideal form. The Middle Ages were
content to accept suum cuique tribuere as conclusive. It was enough that
acquisition of land and movables and private ownership of them were part
of the existing social system. Upon the downfall of authority, seventeenth-
and eighteenth-century jurists sought to put natural reason behind private

property as behind all other institutions. When Kant had undermined this
foundation, the nineteenth-century philosophical jurists sought to deduce
property from a fundamental metaphysical datum; the historical jurists
sought to record the unfolding of the idea of private property in human
experience, thus showing the universal idea; the utilitarian demonstrated
private property by his fundamental test and the positivist established its
validity and necessity by observation of human institutions and their
evolution. In other words, here as elsewhere, when eighteenth-century
natural law broke down, jurists sought to put new foundations under the old
structure of natural rights, just as natural rights had been put as a new
foundation to support institutions which theretofore had found a sufficient
basis in authority.
Theories by which men have sought to give a rational account of private
property as a social and legal institution may be arranged conveniently in
six principal groups, each including many forms. These groups may be
called: (1) Natural-law theories, (2) metaphysical theories, (3) historical
theories, (4) positive theories, (5) psychological theories and (6)
sociological theories.
Of the natural-law theories, some proceed on a conception of principles of
natural reason derived from the nature of things, some on conceptions of
human nature. The former continue the ideas of the Roman lawyers. They
start with a definite principle found as the explanation of a concrete case
and make it a universal foundation for a general law of property. As it has
been put, they find a postulate of property and derive property therefrom by
deduction. Such theories usually start either from the idea of occupation or
from the idea of creation through labor. Theories purporting to be based on
human nature are of three forms. Some proceed on a conception of natural
rights, taken to be qualities of human nature reached by reasoning as to the
nature of the abstract man. Others proceed upon the basis of a social
contract expressing or guaranteeing the rights derived by reason from the
nature of man in the abstract. In recent thinking a third form has arisen
which may be called an economic natural law. In this form of theory, a
general foundation for property is derived from the economic nature of man
or from the nature of man as an economic entity. These are modern theories
of natural law on an economic instead of an ethical basis.

Grotius and Pufendorf may be taken as types of the older natural-law
theories of property. According to Grotius, all things originally were res
nullius. But men in society came to a division of things by agreement.
Things not so divided were afterward discovered by individuals and
reduced to possession. Thus things came to be subjected to individual
control. A complete power of disposition was deduced from this individual
control, as something logically implied therein, and this power of
disposition furnished the basis for acquisition from others whose titles
rested directly or indirectly upon the natural foundation of the original
division by agreement or of subsequent discovery and occupation.
Moreover, it could be argued that the control of an owner, in order to be
complete, must include not only the power to give inter vivos but also the
power to provide for devolution after death as a sort of postponed gift. Thus
a complete system of natural rights of property was made to rest mediately
or immediately upon a postulated original division by agreement or a
subsequent discovery and occupation. This theory should be considered in
the light of the facts of the subject on which Grotius wrote and of the time
when he wrote. He wrote on international law in the period of expansion
and colonization at the beginning of the seventeenth century. His discussion
of the philosophical foundation of property was meant as a preliminary to
consideration of the title of states to their territorial domain. As things were,
the territories of states had come down in part from the past. The titles
rested on a sort of rough adjustment among the invaders of the Roman
empire. They could be idealized as the result of a division by agreement and
of successions to, or acquisitions from, those who participated therein.
Another part represented new "natural" titles based on discovery and
occupation in the new world. Thus a Romanized, idealized scheme of the
titles by which European states of the seventeenth century held their
territories becomes a universal theory of property.
Pufendorf rests his whole theory upon an original pact. He argues that there
was in the beginning a "negative community." That is, all things were
originally res communes. No one owned them. They were subject to use by
all. This is called a negative community to distinguish it from affirmative
ownership by co-owners. He declares that men abolished the negative
community by mutual agreement and thus established private ownership.
Either by the terms of this pact or by a necessary implication what was not

occupied then and there was subject to acquisition by discovery and
occupation, and derivative acquisition of titles proceeding from the
abolition of the negative community was conceived to be a further
necessary implication.
In Anglo-American law, the justification of property on a natural principle
of occupation of ownerless things got currency through Blackstone. As
between Locke on the one side and Grotius and Pufendorf on the other,
Blackstone was not willing to commit himself to the need of assuming an
original pact. Apparently he held that a principle of acquisition by a
temporary power of control co-extensive with possession expressed the
nature of man in primitive times and that afterwards, with the growth of
civilization, the nature of man in a civilized society was expressed by a
principle of complete permanent control of what had been occupied
exclusively, including as a necessary incident of such control the ius
disponendi. Maine has pointed out that this distinction between an earlier
and a later stage in the natural right of property grew out of desire to bring
the theory into accord with Scriptural accounts of the Patriarchs and their
relations to the land grazed by their flocks. In either event the ultimate basis
is taken to be the nature of man as a rational creature, expressed in a natural
principle of control of things through occupation or in an original contract
providing for such ownership.
With the revival of natural law in recent years a new phase of the
justification of property upon the basis of human nature has arisen. This
was suggested first by economists who deduced property from the
economic nature of man as a necessity of the economic life of the individual
in society. Usually it is coupled with a psychological theory on the one side
and a social-utilitarian theory on the other side. In the hands of writers on
philosophy of law it has often taken on a metaphysical color. From another
standpoint, what are essentially natural-law theories have been advocated
by socialists, either deducing a natural right of the laborer to the whole
produce of his labor from a "natural" principle of creation or carrying out
the idea of natural qualities of the individual human being to the point of
denying all private property as a "natural" institution and deducing a
general regime of res communes or res publicae.

Metaphysical theories of property are part of the general movement that
replaced seventeenth-and eighteenth-century theories of natural rights,
founded on the nature of the abstract man or on an assumed compact, by
metaphysical theories. They begin with Kant. He first sets himself to justify
the abstract idea of a law of property—the idea of a system of "external
meum and tuum." Here, as everywhere else, he begins with the inviolability
of the individual human personality. A thing is rightfully mine, he says,
when I am so connected with it that anyone who uses it without my consent
does me an injury. But to justify the law of property we must go beyond
cases of possession where there is an actual physical relation to the object
and interference therewith is an aggression upon personality. The thing can
only be mine for the purposes of a legal system of meum and tuum where I
will be wronged by another's use of it when it is not actually in my
possession. This raises in the first instance the question "How is a merely
juridical or rational [as distinguished from a purely physical] possession
possible?" He answers the question by a metaphysical version of the
occupation theory of the eighteenth century. Conceding that the idea of a
primitive community of things is a fiction, the idea of a logically original
community of the soil and of the things upon it, he says, has objective
reality and practical juridical reality. Otherwise mere objects of the exercise
of the will, exempted therefrom by operation of law, would be raised to the
dignity of free-willing subjects, although they have no subjective claim to
be respected. Thus the first possessor founds upon a common innate right of
taking possession, and to disturb him is a wrong. The first taking of
possession has "a title of right" behind it in the principle of the original
common claim to possession. It results that this taker obtains a control
"realized by the understanding and independent of relations of space," and
he or those who derive from him may possess a parcel of land although
remote from it physically. Such a possession is only possible in a state of
civil society. In civil society, a declaration by word or act that an external
thing is mine and making it an object of the exercise of my will is "a
juridical act." It involves a declaration that others are under a duty of
abstaining from the use of the object. It also involves an admission that I am
bound in turn toward all others with respect to the objects they have made
"externally theirs." For we are brought to the fundamental principle of
justice that requires each to regulate his conduct by a universal rule that will
give like effect to the will of others. This is guaranteed by the legal order in

civil society and gives us the regime of external mine and thine. Having
thus worked out a theory of meum and tuum as legal institutions, Kant turns
to a theory of acquisition, distinguishing an original and primary from a
derived acquisition. Nothing is originally mine without a juridical act. The
elements of this legal transaction of original acquisition are three: (1)
"Prehension" of an object which belongs to no one; (2) an act of the free
will interdicting all others from using it as theirs; (3) appropriation as a
permanent acquisition, receiving a lawmaking force from the principle of
reconciling wills according to a universal law, whereby all others are
obliged to respect and act in conformity to the will of the appropriator with
respect to the thing appropriated. Kant then proceeds to work out a theory
of derivative acquisition by transfer or alienation, by delivery or by
contract, as a legal giving effect to the individual will by universal rules, not
incompatible with a like efficacy in action of all other wills. This
metaphysical version of the Roman theory of occupation is evidently the
link between the eighteenth century and Savigny's aphorism that all
property is founded in adverse possession ripened by prescription.
When Kant's theory is examined it will be found to contain both the idea of
occupation and the idea of compact. Occupation has become a legal
transaction involving a unilateral pact not to disturb others in respect of
their occupation of other things. But the pact does not derive its efficacy
from the inherent moral force of a promise as such or the nature of man as a
moral creature which holds him to promises. Its efficacy is not found in
qualities of promises or of men, but in a principle of reconciling wills by a
universal law, since that principle requires one who declares his will as to
object A to respect the declaration of his neighbor's will as to object B. On
the other hand, the idea of creation is significantly absent. Writing at the
end of the eighteenth century, in view of the ideas of Rousseau, who held
that the man who first laid out a plot of ground and said, "This is mine,"
should have been lynched, and of the interferings with vested rights in
Revolutionary France, Kant was not thinking how those who had not might
claim a greater share in what they produced but how those who had might
claim to hold what they had.
Hegel develops the metaphysical theory further by getting rid of the idea of
occupation and treating property as a realization of the idea of liberty.
Property, he says, "makes objective my personal, individual will." In order

to reach the complete liberty involved in the idea of liberty, one must give
his liberty an external sphere. Hence a person has a right to direct his will
upon an external object and an object on which it is so directed becomes
his. It is not an end in itself; it gets its whole rational significance from his
will. Thus when one appropriates a thing, fundamentally he manifests the
majesty of his will by demonstrating that external objects that have no wills
are not self-sufficient and are not ends in themselves. It follows that the
demand for equality in the division of the soil and in other forms of wealth
is superficial. For, he argues, differences of wealth are due to accidents of
external nature that give to what A has impressed with his will greater value
than to what B has impressed with his, and to the infinite diversity of
individual mind and character that leads A to attach his will to this and B to
attach his will to that. Men are equal as persons. With respect to the
principle of possession they stand alike. Everyone must have property of
some sort in order to be free. Beyond this, "among persons differently
endowed inequality must result and equality would be wrong."
Nineteenth-century metaphysical theories of property carry out these ideas
or develop this method. And it is to be noted that they are all open to attack
from the standpoint of the theory of res extra commercium. Thus Hegel's
theory comes to this: Personality involves exercise of the will with respect
to things. When one has exercised his will with respect to a thing and so has
acquired a power of control over it, other wills are excluded from this thing
and are to be directed toward objects with which other personalities have
not been so identified. So long as there are vacant lands to occupy,
undeveloped regions awaiting the pioneer, unexploited natural resources
awaiting the prospector—in short, so long as there are enough physical
objects in reach, if one may so put it, to go round—this would be consistent
with the nineteenth-century theory of justice. But when, as at the end of the
nineteenth century, the world becomes crowded and its natural resources
have been appropriated and exploited, so that there is a defect in material
nature whereby such exercise of the will by some leaves no objects upon
which the wills of others may be exerted, or a deficiency such as to prevent
any substantial exertion of the will, it is difficult to see how Hegel's
argument may be reconciled with the argument put behind the conception
of res extra commercium. Miller, a Scotch Hegelian, seeks to meet this
difficulty. He says that beyond what is needed for the natural existence and

development of the person, property "can only be held as a trust for the
state." In modern times, however, a periodical redistribution, as in antiquity,
is economically inadmissible. Yet if anyone's holdings were to exceed the
bounds of reason, "the legislature would undoubtedly interfere on behalf of
society and prevent the wrong which would be done by caricaturing an
abstract right." In view of our bills of rights, an American Hegelian could
not invoke the deus ex machina of an Act of Parliament so conveniently.
Perhaps he would fall back on graduated taxation and inheritance taxes. But
does not Miller when hard pressed resort to something very like social-
utilitarianism?
Lorimer connects the metaphysical theory with theories resting on human
nature. To begin with, he deduces the whole system of property from a
fundamental proposition that "the right to be and to continue to be implies a
right to the conditions of existence." Accordingly he says that the idea of
property is inseparably connected "not only with the life of man but with
organic existence in general"; that "life confers rights to its exercise
corresponding in extent to the powers of which it consists." When, however,
this is applied in explaining the basis of the present proprietary system in all
its details resort must be had to a type of artificial reasoning similar to that
employed by the jurists of the seventeenth and eighteenth centuries. The
abstract idea of ownership is not the only thing the legal philosopher has to
consider. Moreover the reasoning by which that application is made may
not be reconciled with the arguments by which the doctrine of res extra
commercium is regarded also as a bit of natural law.
Although it purports to be wholly different, the positive theory of the basis
of property is essentially the same as the metaphysical. Thus Spencer's
theory is a deduction from a fundamental "law of equal freedom" verified
by observation of the facts of primitive society. But the "law of equal
freedom" supposed to be ascertained by observation, in the same way in
which physical or chemical laws are ascertained, is in fact, as has often
been pointed out, Kant's formula of justice. And the verification of
deductions from this law by observation of the facts of primitive civilization
is not essentially different from the verification of the deductions from the
metaphysical fundamental law carried on by the historical jurists. The
metaphysical jurist reached a principle metaphysically and deduced
property therefrom. The historical jurist thereupon verified the deduction by

showing the same principle as the idea realizing itself in legal history. In the
hands of the positivists the same principle is reached by observation, the
same deduction is made therefrom, and the deduction is verified by finding
the institution latent in primitive society and unfolding with the
development of civilization. The most notable difference is that the
metaphysical and historical jurists rely chiefly on primitive occupation of
ownerless things, while the positivists have been inclined to lay stress upon
creation of new things by labor. In any event, laying aside the verification
for the moment, the deduction as made by Spencer involves the same
difficulties as those involved in the metaphysical deduction. Moreover, like
the metaphysical deduction, it accounts for an abstract idea of private
property rather than for the regime that actually exists. Inequalities are
assumed to be due to "greater strength, greater ingenuity or greater
application" of those who have acquired more than their fellows. Hence, as
the end of law is taken to be the bringing about of a maximum of individual
free self-assertion, any interference with one's holding the fruits of his
greater strength or greater ingenuity or greater application, and his resulting
greater activity in creative or acquisitive self-assertion, would contravene
the very purpose of the legal order. It will be noted also that this theory, like
all that had gone before, assumes a complete ius disponendi as implied in
the very notion of property. But does not this also require demonstration? Is
the ius disponendi implied in the idea which they demonstrate or is it only
an incident of the institution they are seeking to explain by the
demonstration?
Historical jurists have maintained their theory on the basis of two
propositions: (1) The conception of private property, like the conception of
individual personality, has had slow but steady development from the
beginnings of law; (2) individual ownership has grown out of group rights
just as individual interests of personality have been disentangled gradually
from group interests. Let us look at each of these propositions in some
detail.
If we examine the law of property analytically, we may see three grades or
stages in the power or capacity which men have of influencing the acts of
others with respect to corporeal objects. One is a mere condition of fact, a
mere physical holding of or physical control over the thing without any
other element whatever. The Roman jurists called this natural possession.

We call it custody. Writers on analytical jurisprudence regard it as an
element of possession. But this natural possession is something that may
exist independently of law or of the state, as in the so-called pedis possessio
of American mining law, where, before law or state authority had been
extended to the public domain in the mining country, the miners recognized
the claim of one who was actually digging to dig without molestation at that
spot. The mere having of an object in one's actual grasp gives an advantage.
But it may be only an advantage depending on one's strength or on
recognition of and respect for his personality by his fellow men. It is not a
legal advantage except as the law protects personality. It is the physical
person of the one in natural possession which is secured, not his relation to
the thing held. Analytically the next grade or stage is what the Romanist
calls juristic possession as distinguished from natural possession. This is a
legal development of the extra-legal idea of custody. Where custody or the
ability to reproduce a condition of custody is coupled with the mental
element of intention to hold for one's own purposes, the legal order confers
on one who so holds a capacity protected and maintained by law so to hold,
and a claim to have the thing restored to his immediate physical control
should he be deprived of it. As the Romanist puts it, in the case of natural
possession the law secures the relation of the physical person to the object;
in juristic possession the law secures the relation of the will to the object. In
the highest grade of proprietary relation, ownership, the law goes much
further and secures to men the exclusive or ultimate enjoyment or control of
objects far beyond their capacity either to hold in custody or to possess—
that is, beyond what they could hold by physical force and beyond what
they could actually hold even by the help of the state. Natural possession is
a conception of pure fact in no degree dependent upon law. The legally
significant thing is the interest of the natural possessor in his personality.
Possession or juristic possession is a conception of fact and law, existing as
a pure relation of fact, independent of legal origin, but protected and
maintained by law without regard to interference with personality.
Ownership is a purely legal conception having its origin in and depending
on the law.
In general the historical development of the law of property follows the line
thus indicated by analysis. In the most primitive social control only natural
possession is recognized and interference with natural possession is not

distinguished from interference with the person or injury to the honor of the
one whose physical contact with the physical object is meddled with. In the
earlier legal social control the all-important thing is seisin, or possession.
This is a juristic possession, a conception both of fact and of law. Such
institutions as tortious conveyance by the person seised in the common law
are numerous in an early stage of legal development. They show that
primarily the law protected the relation to an object of one who had
possession of it. Indeed the idea of dominium, or ownership as we now
understand it, was first worked out thoroughly in Roman law, and other
systems got their idea of it, as distinguished from seisin, from the Roman
books.
Recognition of individual interests of substance, or in other words
individual property, has developed out of recognition of group interests, just
as recognition of individual interests of personality has evolved gradually
from what in the first instance was a recognition of group interests. The
statement which used to be found in the books that all property originally
was owned in common means nothing more than this: When interests of
substance are first secured they are interests of groups of kindred because in
tribally organized society groups of kindred are the legal units. Social
control secures these groups in the occupation of things which they have
reduced to their possession. In this sense the first property is group property
rather than individual property. Yet it must be noted that wherever we find a
securing of group interests, the group in occupation is secured against
interference of other groups with that occupation. Two ideas gradually
operated to break up these group interests and bring about recognition of
individual interests. One of these is the partition of households. The other is
the idea of what in the Hindu law is called self-acquired property.
In primitive or archaic society as households grow unwieldy there is a
partition which involves partition of property as well as of the household.
Indeed in Hindu law partition is thought of as partition of the household
primarily and as partition of property only incidentally. Also in Roman law
the old action for partition is called the action for partitioning the
household. Thus, at first, partition is a splitting up of an overgrown
household into smaller households. Presently, however, it tends to become a
division of a household among individuals. Thus in Roman law on the death
of the head of a household each of his sons in his power at his death became

a pater familias and could bring a proceeding to partition the inheritance
although he might be the sole member of the household of which he was the
head. In this way individual ownership became the normal condition instead
of household ownership. In Hindu law household ownership is still
regarded as the normal condition. But with changes in society and the rise
of commercial and industrial activity, a change has been taking place
rapidly which is making individual ownership the normal type in fact, if not
in legal theory.
Self-acquired property, the second disintegrating agency, may be seen in
Hindu law and also in Roman law. In Hindu law all property is normally
and prima facie household property. The burden is upon anyone who claims
to be the individual owner of anything. But an exceptional class of property
is recognized which is called self-acquired property. Such property might be
acquired by "valor," that is, by leaving the household and going into
military service and thus earning or acquiring by way of booty, or by
"learning," that is, by withdrawing from the household and devoting oneself
to study and thus acquiring through the gifts of the pious or the exercise of
knowledge. A third form was recognized later, namely, property acquired
through the use of self-acquired property. In the same way in Roman law
the son in the household, even if of full age, normally had no property.
Legally all property acquired by any member of the household was the
property of the head of the household as the legal symbol and representative
thereof. Later the head of the household ceases to be thought of as
symbolizing the household and the property was regarded legally as his
individual property. But Roman law recognized certain kinds of property
which sons in the household might hold as their own. The first of these was
property earned or acquired by the son in military service. Later property
earned in the service of the state was added. Finally it came to be law that
property acquired otherwise than through use of the patrimony of the
household might be held by the son individually though he remained legally
under the power of the head.
In the two ways just explained, through partition and through the idea of
self-acquired property, individual interests in property came to be
recognized throughout the law. Except for the institution of community
property between husband and wife in civil-law countries, or as it is called
the matrimonial property regime, there is practically nothing left of the old

system of recognized group interests. And even this remnant of household
group ownership is dissolving. All legally recognized interests of substance
in developed legal systems are normally individual interests. To the
historical jurist of the nineteenth century, this fact, coupled with the
development of ownership out of possession, served to show us the idea
which was realizing in human experience of the administration of justice
and to confirm the position reached by the metaphysical jurists. Individual
private property was a corollary of liberty and hence law was not thinkable
without it. Even if we do not adopt the metaphysical part of this argument
and if we give over the idealistic-political interpretation of legal history
which it involves, there is much which is attractive in the theory of the
historical jurists of the last century. Yet as we look at certain movements in
the law there are things to give us pause. For one thing, the rise and growth
of ideas of "negotiability," the development of the maxim possession vaut
titre in Continental law, and the cutting down in other ways of the sphere of
recognition of the interest of the owner in view of the exigencies of the
social interest in the security of transactions, suggests that the tendency
involved in the first of the two propositions relied on by the historical
school has passed its meridian. The Roman doctrine that no one may
transfer a greater title than he has is continually giving way before the
demand for securing of business transactions had in good faith. And in
Roman law in its maturity the rules that restricted acquisition by adverse
possession and enabled the owner in many cases to reclaim after any lapse
of time were superseded by a decisive limitation of actions which cut off all
claims. The modern law in countries which take their law from Rome has
developed this decisive limitation. Likewise in our law the hostility to the
statute of limitations, so marked in eighteenth-century decisions, has given
way to a policy of upholding it. Moreover the rapid rise in recent times of
limitations upon the ius disponendi, the imposition of restrictions in order to
secure the social interest in the conservation of natural resources, and
English projects for cutting off the ius abutendi of the landowner, could be
interpreted by the nineteenth-century historical jurists only as marking a
retrograde development. When we add that with the increase in number and
influence of groups in the highly organized society of today a tendency is
manifest to recognize practically and in back-handed ways group property
in what are not legal entities, it becomes evident that the segment of

experience at which the historical jurists were looking was far too short to
justify a dogmatic conclusion, even admitting the validity of their method.
It remains to consider some twentieth-century theories. These have not been
worked out with the same elaboration and systematic detail as those of the
past, and as yet one may do no more than sketch them.
An instinctive claim to control natural objects is an individual interest of
which the law must take account. This instinct has been the basis of
psychological theories of private property. But thus far these theories have
been no more than indicated. They might well be combined with the
historical theory, putting a psychological basis in place of the nineteenth-
century metaphysical foundation. A social-psychological legal history might
achieve much in this connection.
Of sociological theories, some are positivist, some psychological and some
social-utilitarian. An excellent example of the first is Duguit's deduction
from social interdependence through similarity of interest and through
division of labor. He has but sketched this theory, but his discussion
contains many valuable suggestions. He shows clearly enough that the law
of property is becoming socialized. But, as he points out, this does not mean
that property is becoming collective. It means that we are ceasing to think
of it in terms of private right and are thinking of it in terms of social
function. If one doubts this he should reflect on recent rent legislation,
which in effect treats the renting of houses as a business affected with a
public interest in which reasonable rates must be charged as by a public
utility. Also it means that cases of legal application of wealth to collective
uses are becoming continually more numerous. He then argues that the law
of property answers to the economic need of applying certain wealth to
definite individual or collective uses and the consequent need that society
guarantee and protect that application. Hence, he says, society sanctions
acts which conform to those uses of wealth which meet that economic need,
and restrains acts of contrary tendency. Thus property is a social institution
based upon an economic need in a society organized through division of
labor. It will be seen that the results and the attitude toward the law of
property involved are much the same as those which are reached from the
social-utilitarian standpoint.

Psychological sociological theories have been advanced chiefly in Italy.
They seek the foundation of property in an instinct of acquisitiveness,
considering it a social development or social institution on that basis.
Social-utilitarian theories explain and justify property as an institution
which secures a maximum of interests or satisfies a maximum of wants,
conceiving it to be a sound and wise bit of social engineering when viewed
with reference to its results. This is the method of Professor Ely's well-
known book on Property and Contract. No one has yet done so, but I
suspect one might combine this mode of thought with the civilization
interpretation of the Neo-Hegelians and argue that the system of individual
property, on the whole, conduces to the maintaining and furthering of
civilization—to the development of human powers to the most of which
they are capable—instead of viewing it as a realization of the idea of
civilization as it unfolds in human experience. Perhaps the theories of the
immediate future will run along some such lines. For we have had no
experience of conducting civilized society on any other basis, and the waste
and friction involved in going to any other basis must give us pause.
Moreover, whatever we do, we must take account of the instinct of
acquisitiveness and of individual claims grounded thereon. We may believe
that the law of property is a wise bit of social engineering in the world as
we know it, and that we satisfy more human wants, secure more interests,
with a sacrifice of less thereby than by anything we are likely to devise—
we may believe this without holding that private property is eternally and
absolutely necessary and that human society may not expect in some
civilization, which we cannot forecast, to achieve something different and
something better.

VI

Contract
Wealth, in a commercial age, is made up largely of promises. An important
part of everyone's substance consists of advantages which others have
promised to provide for or to render to him; of demands to have the
advantages promised which he may assert not against the world at large but
against particular individuals. Thus the individual claims to have
performance of advantageous promises secured to him. He claims the
satisfaction of expectations created by promises and agreements. If this
claim is not secured friction and waste obviously result, and unless some
countervailing interest must come into account which would be sacrificed
in the process, it would seem that the individual interest in promised
advantages should be secured to the full extent of what has been assured to
him by the deliberate promise of another. Let us put this in another way. In
a former lecture I suggested, as a jural postulate of civilized society, that in
such a society men must be able to assume that those with whom they deal
in the general intercourse of the society will act in good faith, and as a
corollary must be able to assume that those with whom they so deal will
carry out their undertakings according to the expectations which the moral
sentiment of the community attaches thereto. Hence, in a commercial and
industrial society, a claim or want or demand of society that promises be
kept and that undertakings be carried out in good faith, a social interest in
the stability of promises as a social and economic institution, becomes of
the first importance. This social interest in the security of transactions, as
one might call it, requires that we secure the individual interest of the
promisee, that is, his claim or demand to be assured in the expectation
created, which has become part of his substance.
In civil-law countries the interest of the promisee, and thus the social
interest in the security of transactions, is well secured. The traditional
requirement of a causa ciuilis, a civil, i.e., legal, reason for enforcing a pact,
gave way before natural-law ideas in the eighteenth century. Pothier gave
over the contract categories of the Roman law as being "very remote from
simplicity." Then came the rise of the will theory of legal transactions in the
nineteenth century. French law made intention of gratuitously benefiting

another a causa. The Austrian code of 1811 presumed a causa, requiring a
promisor to prove there was none. And this means that he must prove the
promise was not a legal transaction—that there was no intention to enter
into a binding undertaking. In the result, abstract promises, as the civilian
calls them, came to be enforced equally with those which came under some
formal Roman category and with those having a substantial presupposition.
Modern Continental law, apart from certain requirements of proof, resting
on the same policy as our Statute of Frauds, asks only, Did the promisor
intend to create a binding duty?
Likewise in civil-law countries the enforcing machinery is modern and
adequate. The oldest method of enforcement in Roman law was seizure of
the person, to coerce satisfaction or hold the promisor in bondage until his
kinsmen performed the judgment. Later there was a pecuniary
condemnation or, as we should say, a money judgment in all cases, enforced
in the classical law by universal execution or, as we should say, by
involuntary bankruptcy. But along with this remedy specific relief grew up
in the actio arbitraria, a clumsy device of specific performance on the
alternative of a heavy money condemnation, which repeated itself in
Pennsylvania before equity powers were given the courts, and is
substantially repeating in our federal courts in their attempts to apply
equitable relief to torts committed in foreign jurisdictions. The civil law
developed, or perhaps the canon law developed and the civil law took over,
an actio ad implendum or action to require performance, with natural
execution, that is a doing by the court or its officers at the expense of the
defendant, of that to which he is bound as ascertained by the judgment. In
general in civil-law countries today what we call specific performance is the
rule. A money reparation for breach of contract is the exceptional remedy. It
is only when for some reason specific relief is impracticable or inequitable,
as in contracts of personal service, that money relief is resorted to.
In countries governed by the common law we do not secure this interest so
completely nor so effectively. For one thing we do not recognize as legally
enforceable all intentional promises intended to be binding upon the
promisor. Many technical rules as to consideration, rules having chiefly a
historical basis, stand in the way. Many jurisdictions have abolished private
seals and have made no provision for formal gratuitous or abstract
promises. Moreover, we do not give specific relief ordinarily but only

exceptionally where pecuniary relief is considered inadequate. Hence in the
great majority of cases the promisee cannot compel performance in specie.
If we look into the reasons for this wide and effective enforcement of
promises in the one system and narrower and less effective enforcement in
the other, we come in both cases upon a mixture of historical background
and philosophical reasoning, each influencing the other and neither
governing the subject completely. Philosophical theories have arisen to
explain existing rules and have been the basis of new rules and of remaking
of old ones. But they have been the means also, at times, of intrenching the
rules they sought to explain and of fastening on the law doctrines of which
it were better rid. Nowhere is the reciprocal action of legal rules and
philosophical theories more strikingly manifest than in our law of
contractual liability.
Law did not concern itself at first with agreements or breaches of
agreements. Its function was to keep the peace by regulating or preventing
private war and this only required it to deal with personal violence and with
disputes over the possession of property. I may remind you of the
proposition of Hippodamus in the fifth century B. C. that there were but
three subjects of lawsuits, namely, insult, injury and homicide. If a dispute
over breach of an agreement led to an assault and a breach of the peace,
tribunals might be called on to act. But it was the assault not the breach of
agreement with which they were concerned. Controversy as to possession
of property was a fertile source of disturbance of the peace and tribunals
would entertain an action to recover possession. Agreements to compound
for a wrong are perhaps the earliest type. But the law had its eye upon the
need of composition, not upon the agreement. No basis for a law of
contracts was to be found in the power of the tribunals with respect to
injuries although our law did make assumpsit out of trespass on the case.
On the other hand recovery of property could be used for this purpose.
Hence the first legal, as distinguished from religious, contract was worked
out on the analogy of a real transaction. Before this, however, another
possibility had developed in the religiously sanctioned promise.
Religion, the internal discipline of the organized kindred, and the law of the
state were three co-ordinate agencies of social control in ancient society.
Nor was law for a long time the chief of these nor the one which covered

the widest field. If the gods had been called to witness or good faith had a
religious sanction, the duty to keep a promise was a matter for religion.
Otherwise the mere pact or agreement not within the cognizance of the
priests was but a matter for self-help. Hindu law shows the idea of religious
duty to keep faith in full vigor. In the Hindu system the relation between the
parties to a debt is not legal but religious and now that a law has grown up
under English influence it is said that there is a legal obligation because
there is a religious obligation. A man is bound in law because and to the
extent that he is bound in religion and not otherwise and no more. To the
Hindu lawyer a debt is not an obligation merely. It is a sin the consequences
whereof follow the debtor into another world. Vrihaspati says: "He who,
having received a sum lent or the like does not return it to the owner, will be
born hereafter in his creditor's house a slave, a servant, a woman or a
quadruped." Narada says that when one dies without having paid his debt,
"the whole merit of his devotions or of his perpetual fire belongs to his
creditors." In short the debtor is looked on as one who wrongfully
withholds from the creditor the latter's property and hence as in some sort a
thief. The legal idea, so far as there is one, is not one of obligation but of a
property right in the creditor. One may suspect that religious obligation
arising from the detention of property is a legal way of putting it in a polity
in which social control is primarily religious and religious precepts are
turning into legal precepts. At any rate the Hindus carry the idea of religious
obligation so far that a descendant is bound to pay the debts of his ancestor
in many cases whether he receives any assets of the ancestor or not. The
liability of the son to pay the father's debt is held to arise from the moral
and religious duty of rescuing the father from the penalties attaching in a
future state to non-payment of debts. Accordingly if the debt is of such a
kind that no penalties would so attach, there is no religious duty and hence
no obligation imposed upon the descendant.
Roman law in its earliest stage was not unlike this. Agreements of
themselves were not cognizable by the tribunals. It was no ground for
summoning a defendant before the magistrate that he had made a promise
and had broken it. Agreements were matters for religion or for kin or guild
discipline. If one had called on the gods to witness his promise or sworn to
fulfil it, he was liable to pontifical discipline. The presence of an impious
oath breaker was a social danger and he might be devoted to the infernal

gods. As law replaced religion as the controlling regulative agency, the old
religiously sanctioned promise becomes a formal legal contract. Thus in the
strict law we get formal contracts with their historical origin in religious
duty, and formal contracts with their historical origin in a legal duty created
by a real transaction of suretyship or conveyance, perhaps by calling the
people to witness so that there is an affront to the state if they are called
upon in vain.
When contact with Greek philosophers set the Roman jurists to thinking
about the basis of obligation, there were two sorts of promises: (1) Formal
promises, (a) by stipulation, using the sacramental word spondeo and thus
assuming the pouring out of a libation that the gods might take notice of the
promise, (b) by public ceremony apparently symbolizing a real transaction
before the whole people, (c) entered upon the household books of account,
and (2) mere informal promises not recognized by law. The latter depended
wholly on the good faith of the maker since the law had put down self-help
which formerly had been available to the promisee. Accordingly Roman
jurists distinguished civil obligations and natural obligations—those
recognized and secured legally and those which primarily had only a moral
efficacy. A nudum pactum or mere agreement or mere promise, not clothed
with legal efficacy because it did not come within any of the categories of
legal transactions sanctioned by the ius ciuile, created only a natural
obligation. It was right and just to adhere to such a pact, but only contracts,
undertakings recognized by law because of their form or nature, were
enforceable.
With increasing pressure of the social interest in the security of transactions
through economic development and commercial expansion, the natural-law
philosophy slowly affected this simple scheme of formal undertakings
legally recognized and enforceable and informal undertakings of only moral
efficacy, and brought about the complicated system of enforceable
undertakings in the maturity of Roman law with which you are familiar.
Four features of this movement are noteworthy. In the first place it led to a
juristic theory of formal contract which has affected our ideas ever since. In
the strict law the source of obligation was in the form itself. For in primitive
thinking forms have an intrinsic efficacy. It has often been pointed out that
the faith in legal forms belongs to the same order of thought as faith in
forms of incantation and that legal forms are frequently symbols to be

classed psychologically with the symbols of magic. The stage of equity and
natural law, relying on reason rather than on form, governed by philosophy
instead of by naïve faith, looked for the substance and found it in a pact
preceding and presupposed by the formal ceremony. Thus a formal contract
was a pact with the addition of legal form. The pact was the substance of
the transaction. The form was a causa ciuilis or legal reason for enforcing
the pact. But if the form was only a legal reason for enforcing something
that got its natural efficacy in another way, it followed that there might well
be other legal reasons for enforcement besides form. Consequently new
categories of contract were added to the old formal contracts and it is
significant that while the latter were transactions stricti iuris the former
were considered transactions bonae fidei involving liability to what good
faith demanded in view of what had been done. In the scope of their
obligation these contracts responded exactly to the postulate of civilized
society that those with whom we deal will act in good faith and will carry
out their undertakings according to the expectations of the community. On
the other hand the old formal contracts responded thereto in part only since
their obligation was one to do exactly what the terms of the form called for,
no more and no less. When one makes nexum, said the Twelve Tables, as he
says orally so be the law. New categories were added in successive strata, as
it were, and juristic science sought afterward to reduce them to system and
logical consistency. Thus real contracts, consensual contracts and
innominate contracts were added. But it is evident that many of these are
juristic rationalizings of what had been done for a long time through formal
transactions. Thus the consensual contract of sale with its implied
warranties rationalizes transfer by traditio with stipulations for the price
and for warranties. The real contract of depositum rationalizes fiducia cum
amico. The real contract of mutuum rationalizes pecunia credita. But the
latter was so thoroughly established as a formal transaction that the case of
a loan of money, analytically a real contract, preserved the incidents of the
strict law. Moreover certain pacts, pacta adiecta, pacta praetoria, became
actionable which do not fit into the analytical scheme of the Institutes. For
example, a causa or reason for enforcing these pacts was found in their
being incidental to something else or in a pre-existing natural obligation
which they undertook to satisfy. There still remained natural obligations
which had not been given legal efficacy as the basis of actions. The mere
will of the person who undertook or the claim of the promisee was not a

reason for enforcing. Yet in reason they were morally binding and the legal
and moral should coincide. Hence they might be used defensively or as the
basis of a set-off. Meanwhile the forms of stipulation and of literal contract
had been reduced to their lowest terms by conceiving them in terms of
substance, and taking orally expressed agreement to be the substance of the
one and writing to be the substance of the other. The results have defied
analysis although the best that juristic ingenuity could do has been
expended upon them for centuries.
In the Middle Ages primitive ideas came back for a time through Germanic
law. General security in its lowest terms of peace and order was the
pressing social interest. There was little commercial activity. The
civilization of the time did not involve the corollaries of our jural postulate.
Religiously sanctioned undertakings by promissory oath and real
transactions of pledge of person or property and of exchange gave rise to a
simple system of formal undertakings. Out of these came a theory of causa
debendi, or reason for owing the promised performance, which has had a
profound influence upon subsequent thinking. The Roman causa ciuilis was
a legal reason for enforcing a pact. Under the influence of the Germanic
idea causa becomes a reason for making the pact, the good reason for
making it furnishing a sufficient reason for enforcing it. For a time it
seemed that the church might succeed in establishing a jurisdiction over
promises. Oaths and vows involved religious duties and might well be
claimed as the province of the spiritual. But the moral obligation of pacts,
binding the conscience of a Christian, might also be cognizable by a zealous
corrector of the conduct of the faithful for their soul's welfare. Had not the
power of the canon law broken down and the law of the state developed
rapidly in respect of the security of transactions after the sixteenth century,
the law of contracts might have grown along religious instead of along
philosophical lines, and perhaps not to its advantage. As it is, one need but
read Doctor and Student with the title de pactis of the Corpus Iuris
Canonici and casuist writings as to the moral efficacy of promises before
him, to see that religion paved the way for much that was done presently in
the name of philosophy.
To the jurists of the seventeenth and eighteenth centuries no distinction
between natural obligations and civil obligations was maintainable since all
natural rights or obligations must for the very reason that they were natural

be legal also. If it was morally obligatory that one adhere to a pact, then it
must be treated as a contract. However much systematized analytically, the
Roman categories of contract did not deal with undertakings from this
standpoint. What the jurists desired was not analytical categories but a
principle upon which men were to be held or not to be held upon their
promises. Thus the philosophy of contract, the principles underlying the
binding force of promises and agreements, became the chief problem of
philosophical jurisprudence of the seventeenth century, as interests of
personality were the chief subject of discussion in the eighteenth century,
and interests of substance, the philosophy of the law of property, the chief
subject of discussion in the nineteenth century. The decisive element in
seventeenth-century thought as to contract was the idea of natural law; the
idea of deduction from the nature of man as a moral creature and of legal
rules and legal institutions which expressed this ideal of human nature. But
the idea was put to work upon existing materials and the result was a
reciprocal influence of the conception of enforcing promises as such
because morally binding, on the one hand, shaped to some extent by canon
law and casuist discussions of what promises were binding in conscience
and when, and the ideas of nudum pactum and causa debendi on the other
hand. Roman law was assumed to be embodied reason. As D'Aguesseau put
it, Rome was ruling by her reason, having ceased to rule by her authority.
Hence all consideration of the subject starts with the assumption that there
are morally naked agreements which for that reason are to be naked legally.
Where there was an exchange of promises there was the authority of
Justinian for enforcement (synallagma) and it was easy to find a reason in
the analogy of exchange of property. Where something was exchanged for a
promise, that something was a causa debendi. But suppose there was no
exchange of promises nor was anything exchanged for the promise. There
was nothing but a promise assented to. In Roman law this would have to
take the form of a stipulation. In the Germanic law it would have required
an oath or the form of a real transaction of pledge or exchange. At common
law it required delivery of a sealed instrument. Clearly there was no moral
efficacy inherent in these forms. Why should these "abstract" promises be
enforced and not others? Should every such promise be enforced or should
none be enforced without something in the way of exchange, or should such
promises be classified for the purpose of enforcement, and if so, how?

Two theories arose in the seventeenth century. One may be called the theory
of an equivalent. This theory is obviously a rationalization of the Germanic
causa debendi influenced by canon law and casuist writings. According to
this theory an abstract promise, no equivalent having been given for it, is
not naturally and hence is not legally binding. Three reasons have been
given for this which have figured in juristic discussion of the subject ever
since. It was said that one who trusts another who makes a promise for no
equivalent does so rashly. He cannot ask to be secured in such an
unfounded expectation. This is too much in the spirit of the strict law. It
denies any interest except where the law secures it. It says that if the law
does not secure the interest, one is a fool to rely on the promise and so has
no interest. In like manner the strict law said that if one gave his formal
undertaking through fraud or mistake or coercion, he was a fool or a coward
and was not to be helped. But we cannot prove the interest by the law. We
must measure the law with reference to the interest. Again it was said that if
one promises without equivalent he does so more from "ostentation" than
from real intention and so an equivalent shows that he acted from
calculation and deliberately. It is only deliberate promises that are morally
binding, for only such promises are relied upon by the prudent, upright man
in his intercourse with his neighbors. If this reason is sound, equivalent is
only a mode of proving deliberation and the real point should be that the
promise was made deliberately as something by which the maker expected
to be bound, not that the deliberation was evidenced in a particular way by
an equivalent. A third reason was that one who parted with an equivalent in
exchange for or in reliance on a promise is injured in his substance if the
promise is not kept. But if this is the reason, the law should simply require
restitution in case of non-performance. If the interest involved is the
deduction from substance through rendering the equivalent, the obligation
should be quasi ex contractu rather than ex contractu.
Our Anglo-American law of contracts was much influenced by this theory
of equivalents. In the seventeenth century four types of promise were
legally enforceable at common law: (1) A formal acknowledgment of
indebtedness by bond under seal, often conditioned upon performance of a
promise for which it was a security, (2) a covenant or undertaking under
seal, (3) the real contract of debt, and (4) a simple promise upon
consideration, that is, in exchange for an act or for another promise. The

first conclusively acknowledged an equivalent, in the second it could be
said that the seal presupposed or implied one, in the third the obligation
arose from the detention of something by him to whom it had been
delivered, and in the fourth the act or counter-promise was the motive or
consideration for the promise and as a cause of or reason for making it was
the equivalent for which the promisor chose to assume the undertaking.
With some aid from a dogmatic fiction in the case of covenants, the
common law could be adjusted to this theory reasonably well. Accordingly
as far back as Bacon we find consideration treated from this standpoint in
the English books. But it was never a satisfactory explanation. If the theory
was sound it ought not to matter whether the equivalent was rendered
before the promise or after it or simultaneously with it. Indeed, English
equity in the nineteenth century took subsequent action in reliance upon a
promise of a gift to be a common-law consideration on the basis whereof
the promise was specifically enforceable. Equity never wholly adopted this
or any other theory. At least after the middle of the eighteenth century
equity was supposed to follow the law as to what was a contract. But the
common law was not settled till the nineteenth century and we find the
chancellors using consideration frequently to mean not equivalent but any
reason for making the promise and thus making it synonymous with the
civilian's causa. The so-called meritorious consideration, consideration of
blood and of love and affection, and the cases of promises sustained by
moral obligation of a debtor to secure his creditor, of a husband to settle
property on his wife and of a parent to provide for a child, show the idea of
causa at work in equity. It is significant that Doctor and Student was often
cited in these connections. The most thoroughgoing attempt to apply the
equivalent theory to be found in the books is Langdell's working out of a
system of the so-called conditions implied in law or dependent promises on
that basis. As an example of vigorous legal analysis it rivals Austin. But it
did not succeed in shaping the law.
On the Continent the second theory, the theory of the inherent moral force
of a promise made as such, came to prevail. This was the theory of Grotius.
It was generally adopted by Continental writers of the eighteenth century
and, as has been seen, it broke down the Roman categories and led to the
rule that a promise as such, intending a legal transaction, created legal
obligation. At the end of the eighteenth century Lord Mansfield came very

near establishing it in our law by his doctrine that no promise made as a
business transaction could be nudum pactum. But he was too late. Growth
stopped for a season and the nineteenth century set itself to systematize and
harmonize what it had received rather than to carry the development further.
When the natural-law foundation of enforcing promises crumbled, the
metaphysical jurists sought to provide a new one. Kant said that it was
impossible to prove that one ought to keep his promise, considered merely
as a promise, and deduced contract from property as a form of conveyance
or alienation of one's substance involved in the very idea of individual
rights. So far as consistent with abstract freedom of will according to a
universal law one might alienate his services as well as his property, and an
undertaking to perform something was an alienation of that sort. This view
was generally taken so that while the seventeenth century sought to rest
rights upon contract and the eighteenth century rested contract on the
inherent moral significance of a promise, the nineteenth century, making the
philosophy of property the important thing, rested contract on property.
Three of these theories are worth a moment's notice.
Fichte says that the duty of performing an agreement arises when one party
thereto begins to act under it. Juristically this seems to be a rationalization
of the Roman innominate contract. There, in case a pact was performed on
one side, he who performed might claim restitution quasi ex contractu or
claim the counter-performance ex contractu. Philosophically the idea seems
to be that of the equivalent theory, in the form with which we are familiar in
Anglo-American discussion of this subject as the injurious-reliance theory.
According to the latter, unless the promisee has parted with an equivalent or
has begun to act in reliance upon the agreement, he has no moral claim to
fulfilment. This is not a theory of the law as it is or as it ever has been.
Formal contracts require nothing of the sort. It is true, English equity, under
the influence of the equivalent theory, did lay down in the nineteenth
century that a contract under seal with no common-law consideration
behind it would not be enforced. But that proposition was subject to many
exceptions when it was announced, more have since developed and more
are developing. As things are, the exceptions are of more frequent
application than the rule itself. Nor is Fichte's theory a statement of moral
ideas of his day or of ours. Then and now the moral duty to keep abstract
promises was and is recognized. That a man's word should be "as good as

his bond" expresses the moral sentiment of civilized society. But the
philosopher saw that the law did not go so far and was trying to frame a
rational explanation of why it fell short. It should be noticed that Fichte is
really trying to show why a promise may be regarded as a part of one's
substance and why one's claim to performance may be treated as his
property.
Hegel also explains contract in terms of property, treating a promise as a
disposition of one's substance. Hence in his view the so-called abstract
promise is a mere subjective qualification of one's will which he is at liberty
to change. This theory and the foregoing assume the Roman law or the
older law of Continental Europe, and speak from the reaction from natural
law which in England at the same time was overruling the liberal doctrines
of Lord Mansfield.
Later metaphysical jurists rely upon the idea of personality. The Romanist
thinks of a legal transaction as a willing of some change in a person's sphere
of rights to which the law, carrying out his will, gives the intended effect. If
the transaction is executed, revocation would involve aggression upon the
substance of another. If it is executory, however, why should the declared
intent that the change take place in the future be executed by law despite the
altered will of the promisor? Some say that this should be done where there
is a joint will from which only joint action may recede. Where the parties
have come to an agreement, where their wills have been at one, the law is to
give effect to this joint will as a sort of vindication of personality. It is
evident, however, that this explanation assumes the will theory, the
subjective theory of legal transactions. If we start from the objective theory
it breaks down. Take for instance the case of an offer, which a reasonable
man would understand in a given way, accepted by the offeree in that
understanding when the offerer really meant something else. Or take the
case of an offer wrongly transmitted by telegraph and accepted in good faith
as it is transmitted. Here there is no community of will and yet the law may
well hold, as we do in America, in both cases, that there is a contract. No
metaphysical theory has prevailed to prevent the steady march of the law
and of juristic thought in the direction of an objective doctrine of legal
transactions. Nowhere, indeed, has the deductive method broken down so
completely as in the attempt to deduce principles upon which contracts are
to be enforced.

Later in the nineteenth century men came to think more about freedom of
contract than about enforcement of promises when made. To Spencer and
the mechanical positivists, conceiving of law negatively as a system of
hands off while men do things, rather than as a system of ordering to
prevent friction and waste so that they may do things, the important
institution was a right of free exchange and free contract, deduced from the
law of equal freedom as a sort of freedom of economic motion and
locomotion. Justice required that each individual be at liberty to make free
use of his natural powers in bargains and exchanges and promises except as
he interfered with like action on the part of his fellow men, or with some
other of their natural rights. Whether all such transactions should be
enforced against him or only some, and if the latter, which, are questions
belonging to an affirmative rather than to a negative science of law.
Historical jurists accepted the will theory and have been its leading
advocates in modern times. They saw that the whole course of legal history
had been one of wider recognition and more effective enforcement of
promises. Those who accepted the ethical idealistic interpretation of legal
history could see freedom as an ethical idea realizing itself in a larger
freedom of self-assertion and self-determination through promises and
agreements and a wider giving effect to the will so asserted and determined.
For the most part they wrote on the Continent where the field of legally
enforceable promises had ceased to be bounded by a narrow fence of
Roman historical categories. Thus they had no call to rationalize dogmas of
not enforcing promises made as business transactions. Those who accepted
the political interpretation saw freedom as a civil or political idea realizing
itself in a progress from status to contract in which men's duties and
liabilities came more and more to flow from willed action instead of from
the accident of social position recognized by law. The English historical
jurists might well have asked how far English rules as to consideration were
consonant with the implications of such a theory, and whether they must not
be expected to give way as the idea unfolded more completely in
experience of popular action and judicial decision. But the leader of this
school was not a common-law lawyer and the American historical jurists
devoted their energies to devising a historical-analytical theory of
consideration rather than to the wider question of what promises should be
enforced and why.

Here as in other places the historical jurist and the utilitarian were in
agreement as to results although they differed widely as to the mode of
reaching them. The former saw in contract a realization of the idea of
liberty. The latter saw in it a means of promoting that maximum of
individual free self-assertion which he took to be human happiness. Hence
the former called for freedom of contract and should have called for wide
general enforcement of promises. The latter held to a doctrine of
unshackling men and allowing them to act as freely as possible, which
involved the complementary position of extending the sphere and enforcing
the obligation of contract. The difference between these ways of thinking
and those of the end of the eighteenth century is brought out if we compare
Blackstone (1765) with a dictum of Sir George Jessel a century later (1875).
The former says that the public is "in nothing so essentially interested as in
securing to every individual his private rights." The latter, discussing a
question of what agreements are against public policy and therefore
unenforceable, says: "If there is one thing more than another which public
policy requires it is that men of full age and competent understanding shall
have the utmost liberty of contracting and that such contracts shall be
enforced by courts of justice." But the utilitarians put the emphasis upon the
first, the negative, rather than upon the second, the affirmative, part of this
twofold program. This is true also of the historical jurists and of the
positivists. The English trader and entrepreneur was not seeking for legal
instruments. He could work passably with those which the law furnished if
the law would but let him. What he sought was to be free from legal
shackles which had come down from a society of a different nature
organized on a different basis and with other ends. Hence juristic thought
addressed itself to this for a season rather than to the doctrine of
consideration and the reason for non-enforcement of deliberate promises
where not put in the form of bargains.
No one of the four theories of enforcing promises which are current today is
adequate to cover the whole legal recognition and enforcement of them as
the law actually exists. Putting them in the order of their currency, we may
call them (1) the will theory, (2) the bargain theory, (3) the equivalent
theory, (4) the injurious-reliance theory. That is, promises are enforced as a
giving effect to the will of those who agree, or to the extent that they are
bargains or parts of bargains, or where an equivalent for them has been

rendered, or where they have been relied on by the promisee to his injury,
according to the theory chosen. The first is the prevailing theory among
civilians. But it must give way before the onward march of the objective
theory of legal transactions and is already fighting a rear-guard action. In
our law it is impossible. We do not give effect to promises on the basis of
the will of the promisor, although our courts of equity have shown some
tendency to move in that direction. The attempt in the nineteenth century to
Romanize our theories of liability involved a Romanized will-theory of
contract. But no one who looks beneath the surface of our law reports can
doubt that the attempt has failed wholly. We no longer seek solutions on
every side through a pedantic Romanized law of bailments and in the law of
bailments itself we are coming to talk in common-law terms of negligence
in view of the circumstances and not in Romanist terms of the willed
standard of diligence and corresponding degrees of negligence. In America,
at least, the objective theory of contract is orthodox and the leader of
English analytical jurists of the present generation has expounded it
zealously. Courts of equity, which inherit modes of thought from the time
when the chancellor searched the conscience of a defendant by an
examination under oath, and believed he could reach subjective data that
were beyond the cognizance of a jury, are the last stronghold of the exotic
subjective theory in the common law.
Probably the bargain theory is the one most current in common-law
thinking. It is a development of the equivalent theory. It will not cover
formal contracts but under its influence the formal contracts have been
slowly giving way. The seal "imports" a consideration. Legislation has
abolished it in many jurisdictions and often it does no more than establish a
bargain prima facie, subject to proof that there was in fact no consideration.
Courts of equity require a common-law consideration, at least on the face of
their general rule, before they will enforce a sealed contract. Also the
formal contracts of the law merchant are subject to defeat by showing there
was no consideration, except when in the hands of holders for value without
notice. Here, however, consideration is used in the sense of equivalent, to
the extent of admitting a "past consideration," and the bargain theory,
appropriate to simple contracts, is not of entire application. On the other
hand the extent to which courts today are straining to get away from the
bargain theory and enforce promises which are not bargains and cannot be

stated as such is significant. Subscription contracts, gratuitous promises
afterwards acted on, promises based on moral obligations, new promises
where a debt has been barred by limitation or bankruptcy or the like, the
torturing of gifts into contracts by equity so as to enforce pacta donationis
specifically in spite of the rule that equity will not aid a volunteer, the
enforcement of gratuitous declarations of trust, specific enforcement of
options under seal without consideration, specific performance by way of
reformation in case of security to a creditor or settlement on a wife or
provision for a child, voluntary relinquishment of a defense by a surety and
other cases of "waiver," release by mere acknowledgment in some states,
enforcement of gifts by way of reformation against the heir of a donor,
"mandates" where there is no res, and stipulations of parties and their
counsel as to the conduct of and proceedings in litigation—all these make
up a formidable catalogue of exceptional or anomalous cases with which
the advocate of the bargain theory must struggle. When one adds
enforcement of promises at suit of third-party beneficiaries, which is
making headway the world over, and enforcement of promises where the
consideration moves from a third person, which has strong advocates in
America and is likely to be used to meet the exigencies of doing business
through letters of credit, one can but see that Lord Mansfield's proposition
that no promise made as a business transaction can be nudum pactum is
nearer realization than we had supposed.
Yet the equivalent theory and the injurious-reliance theory are even less
adequate to explain the actual law. The equivalent theory must wrestle at
the outset with the doctrine that inadequacy of consideration is immaterial
so that the equivalency is often Pickwickian. Hegel could argue for it on the
basis of the Roman laesio enormis. But when a court of equity is willing to
uphold a sale of property worth $20,000 for $200, even a dogmatic fiction
is strained. Moreover the catalogue of anomalies with which the bargain
theory must wrestle contains more than one difficulty for the adherent of
either theory. Stipulations in the course of litigation do not need equivalents
nor do they need to be acted on in order to be enforceable. A release by
mere acknowledgment, when good at all, needs no equivalent and need not
be acted on. Waiver by a surety of the defense of release by giving time to
the principal needs no element of consideration nor of estoppel. Defectively
executed securities, settlements and advancements need no equivalent and

need not be acted on in order to be reformed. Options under seal are held
open in equity on the basis of the seal alone. A gratuitously declared trust
creates an obligation cognizable in equity without more. In truth the
situation in our law is becoming much the same as that in the maturity of
Roman law and for the same reason. We have three main categories. First,
there are formal contracts, including sealed instruments, recognizances, and
the formal contracts of the law merchant, in which latter the form consists
in the use of certain words, requirements as to sum certain, payment at all
events, and certainty as to time. Second, there are the real contracts of debt
and bailment. Third, there are simple contracts, without form and upon
consideration. The latter is the growing category although the formal
contracts of the law merchant have shown some power of growth and the
business world has been trying to add thereto letters of credit using the
formal words "confirmed" or "irrevocable." But the category of enforceable
simple promises defies systematic treatment as obstinately as the actionable
pacts in Roman law. Successive additions at different times in the endeavor
of courts to hold men to their undertakings, in view of the social interest in
the security of transactions and the jural postulates of the civilization of the
day, proceed on all manner of different theories and different analogies and
agree only in the result—that a man's word in the course of business should
be as good as his bond and that his fellow men must be able to rely on the
one equally with the other if our economic order is to function efficiently. It
is evident that many courts consciously or subconsciously sympathize with
Lord Dunedin's feeling that one can have no liking for a doctrine which
enables a promisor to snap his fingers at a promise deliberately made, fair
in itself, and in which the person seeking to enforce it has a legitimate
interest according to the ordinary understanding of upright men in the
community. It is significant that although we have been theorizing about
consideration for four centuries, our texts have not agreed upon a formula
of consideration, much less our courts upon any consistent scheme of what
is consideration and what is not. It means one thing—we are not agreed
exactly what—in the law of simple contracts, another in the law of
negotiable instruments, another in conveyancing under the Statute of Uses
and still another thing—no one knows exactly what—in many cases in
equity.

Letters of credit afford a striking illustration of the ill-adaptation of our
American common law of contract to the needs of modern business in an
urban society of highly complex economic organization. Well known
abroad and worked out consistently on general theories in the commercial
law of Continental Europe, these instruments came into use in this country
on a large scale suddenly during the war. There was no settled theory with
respect to them in our books and the decisions warranted four or five views
leading to divergent results in matters of vital moment to the business man
who acted on them. Characteristically the business world set out to make of
them formal contracts of the law merchant by the use of certain distinctive
words which gave the instruments character and made their nature clear to
those who inspected them anywhere in the world. But for a season our
category of mercantile specialties had ceased to admit of growth and the
doctrine of consideration with its uncertain lines stood in the way of many
things which the exigencies of business called for and business men found
themselves doing in reliance on each other's business honor and the
banker's jealousy of his business credit, with or without assistance from the
law. Certainly no one would say that such a situation bears witness to wise
social engineering in an economically organized society resting on credit.
Two circumstances operate to keep the requirement of consideration alive in
our law of simple contract. One is the professional feeling that the common
law is the legal order of nature, that its doctrines in an idealized form are
natural law and that its actual rules are declaratory of natural law. This
mode of thinking is to be found in all professions and is a result of habitual
application of the rules of an art until they are taken for granted. In law it is
fortified by the theory of natural law which has governed in our elementary
books since Blackstone, was taught to all lawyers until the present century,
and is assumed in much of our judicial decision. Later it was strengthened
by the theories of the historical school which ruled in our law schools in the
last quarter of the nineteenth century and taught us to think that growth
must inevitably follow lines which might be discovered in the Year Books.
These things co-operated with the temper of the last century and the
instinctive aversion of the lawyer to change, lest in some unperceived way a
door be opened to magisterial caprice or to the personal equation of the
judge. Thus some thought of consideration, whatever it was, as inherent in
the very idea of enforceable promises. Others assumed that it was a

historically developed principle by which the future evolution of the law of
contracts must be governed. Many others simply thought that it was
dangerous to talk of change. And yet change has gone on rapidly, if
subconsciously, until the present confused mass of unsystematized and
unsystematizable rules has resulted. The second circumstance operating to
keep alive the requirement of consideration is a more legitimate factor.
Nowhere could psychology render more service to jurisprudence than in
giving us a psychological theory of nuda pacta. For there is something
more than the fetish of a traditional Latin phrase with the hallmark of
Roman legal science behind our reluctance to enforce all deliberate
promises simply as such. It should be compared with the reluctance of
courts to apply the ordinary principle of negligence to negligent speech,
with the doctrine as to seller's talk, with the limitations upon liability for
oral defamation and with many things of the sort throughout our law. All of
these proceed partly from the attitude of the strict law in which our legal
institutions first took shape. But they have persisted because of a feeling
that "talk is cheap," that much of what men say is not to be taken at face
value and that more will be sacrificed than gained if all oral speech is taken
seriously and the principles applied by the law to other forms of conduct are
applied rigorously thereto. This is what was meant when the writers on
natural law said that promises often proceeded more from "ostentation" than
from a real intention to assume a binding relation. But this feeling may be
carried too far. Undoubtedly it has been carried too far in the analogous
cases above mentioned. The rule of Derry v. Peek goes much beyond what
is needed to secure reasonable limits for human garrulousness. The standard
of negligence, taking into account the fact of oral speech and the character
and circumstances of the speech in the particular case, would amply secure
individual free utterance. So also the doctrine that one might not rely on
another's oral representation in the course of a business transaction if he
could ascertain the facts by diligence went much too far and has had to be
restricted. Likewise we have had to extend liability for oral defamation.
Accordingly because men are prone to overmuch talk it does not follow that
promises made by business men in business dealings or by others as
business transactions are in any wise likely to proceed from "ostentation" or
that we should hesitate to make them as binding in law as they are in
business morals. Without accepting the will theory, may we not take a

suggestion from it and enforce those promises which a reasonable man in
the position of the promisee would believe to have been made deliberately
with intent to assume a binding relation? The general security is more easily
and effectively guarded against fraud by requirements of proof after the
manner of the Statute of Frauds than by requirements of consideration
which is as easy to establish by doubtful evidence as the promise itself. This
has been demonstrated abundantly by experience of suits in equity to
enforce oral contracts taken out of the Statute of Frauds by great hardship
and part performance.
Revived philosophical jurisprudence has its first and perhaps its greatest
opportunity in the Anglo-American law of contracts. The constantly
increasing list of theoretical anomalies shows that analysis and restatement
can avail us no longer. Indeed the lucid statement of Williston but
emphasizes the inadequacy of analysis even when eked out by choice from
among competing views and analytical restatements of judicial dogma in
the light of results. Projects for "restatement of the law" are in the air. But a
restatement of what has never been stated is an impossibility and as yet
there is no authoritative statement of what the law of consideration is.
Nothing could be gained by a statement of it with all its imperfections on its
head and any consistent analytical statement would require the undoing of
much that the judges have done quietly beneath the surface for making
promises more widely enforceable. Given an attractive philosophical theory
of enforcement of promises, our courts in a new period of growth will begin
to shape the law thereby and judicial empiricism and legal reason will bring
about a workable system along new lines. The possibilities involved may be
measured if we compare our old law of torts with its hard and fast series of
nominate wrongs, its distinctions growing out of procedural requirements of
trespass and trespass on the case and its crude idea of liability, flowing
solely from causation, with the law of torts at the end of the nineteenth
century after it had been molded by the theory of liability as a corollary of
fault. Even if we must discard the conception that tort liability may flow
only from fault, the generalization did a service of the first magnitude not
only to legal theory but to the actual administration of justice. No less
service will be rendered by the twentieth-century philosophical theory,
whatever it is, which puts the jural postulate of civilized society in our day
and place with respect to good faith, and its corollary as to promises, in

acceptable form, and furnishes jurist and judge and lawmaker with a logical
critique, a workable measure of decision and an ideal of what the law seeks
to do, whereby to carry forward the process of enlarging the domain of
legally enforceable promises and thus enlarging on this side the domain of
legal satisfaction of human claims.

Bibliography
LECTURE I

Plato (B. C. 427-347), Republic.
----, Laws.
Translations in Jowett's Plato. The translation of the Republic is
published separately.
Pseudo-Plato, Minos.
Now generally considered not to be a genuine work of Plato's
and variously dated from as early as c. 337 B. C. to as late as c.
250 B. C. There is a convenient translation in Bohn's Libraries.
Aristotle (B. C. 384-322), Nicomachean Ethics.
Convenient translation by Browne in Bohn's Libraries.
----, Politics.
Translation by Jowett should be used.
Reference may be made to Berolzheimer, System der Rechts- und
Wirthschaftsphilosophie, II, §§ 13-16 (World's Legal Philosophies, 46-77);
Hildenbrand, Geschichte und System der Rechts- und Staatsphilosophie, §§ 1-121.

Cicero (B. C. 106-43), De Legibus.
Reference may be made to Berolzheimer, System der Rechts- und
Wirthschaftsphilosophie, II, §§ 17-20 (World's Legal Philosophies, 78-92);
Hildenbrand, Geschichte und System der Rechts- und Staatsphilosophie, §§ 131-135,
143-147; Voigt, Das Ius Naturale, aequum et bonum und Ius Gentium der Römer, I,
§§ 16, 35-41, 44-64, 89-96.

Thomas Aquinas (1225 or 1227-1274), Summa Theologiae.

Convenient translation of the parts relating to law in Aquinas
Ethicus.
Reference may be made to Berolzheimer, System der Rechts- und
Wirthschaftsphilosophie, II, §§ 21-23 (World's Legal Philosophies, 93-111).

Oldendorp, Iuris naturalis gentium et ciuilis εισαγώγη (1539).
Hemmingius (Henemingsen) De Iure naturale apodictica methodus (1562).
Winckler, Principiorum iuris libri V (1615).
These are collected conveniently in Kaltenborn, Die Vorläufer
des Hugo Grotius.
Reference may be made to Berolzheimer, System der Rechts- und
Wirthschaftsphilosophie, II, § 24 (World's Legal Philosophies, 112-114); Hinrichs,
Geschichte der Rechts- und Staatsprincipien seit der Reformation, I, 1-60; Gierke,
Johannes Althusius, 2 ed., 18-49, 142-162, 321.

Soto, De justitia et iure (1589).
Suarez, De legibus ac deo legislatore (1619).
Reference may be made to Figgis, Studies of Political Thought from Gerson to
Grotius, Lect. V.

Grotius, De iure belli et pacis (1625).
Whewell's edition with an abridged translation is convenient.
Pufendorf, De jure naturae et gentium (1672).
Kennet's translation (1703) may be found in several editions.
Burlamaqui, Principes du droit naturel (1747).
Nugent's translation is convenient.
Wolff, Institutiones juris naturae et gentium (1750).
Rutherforth, Institutes of Natural Law (1754-1756).

Vattel, Le droit des gens, Préliminaires (1758).
There are many translations of Vattel.
Rousseau, Contrat social (1762).
Tozer's translation is convenient.
Blackstone, Commentaries on the Laws of England, Introduction, sect. II
(1765).
Reference may be made to Berolzheimer, System der Rechts- und
Wirthschaftsphilosophie, II, §§ 25-27, 29 (World's Legal Philosophies, 115-134, 141-
156); Hinrichs, Geschichte der Rechts- und Staatsprincipien seit der Reformation, I,
60-274, II, III, 1-318; Korkunov, General Theory of Law, transl. by Hastings, § 7;
Charmont, La renaissance du droit naturel, 10-43.

Hobbes, Leviathan (1651).
Spinoza, Ethica (1674).
----, Tractatus theologico-politicas (1670).
Elwes' translation of the two last in Bohn's Libraries must be
used with caution.
Bentham, Principles of Morals and Legislation (1780).
A convenient reprint is published by the Clarendon Press.
----, Theory of Legislation. (Originally published in French, 1820).
Translated by Hildreth (1864), and in many editions.
Mill, On Liberty (1859).
Courtney's edition (1892) is convenient.
Reference may be made to Duff, Spinoza's Political and Ethical Philosophy;
Berolzheimer, System der Rechts- und Wirthschaftsphilosophie, II, § 28 (World's
Legal Philosophies, 134-141); Dicey, Law and Public Opinion in England, Lect. 6;
Albee, History of English Utilitarianism; Stephen, The English Utilitarians; Solari,
L'idea individuale e l'idea sociale nel diritto privato, §§ 31-36.

Kant, Metaphysische Anfangsgründe der Rechtslehre (2 ed. 1798).
Translated by Hastie as "Kant's Philosophy of Law" (1887).
Fichte, Grundlage des Naturrechts (1796, new ed. by Medicus, 1908).
Translated 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). Translated by Dyde as "Hegel's Philosophy of
Right" (1896). This translation must be used cautiously.
Krause, Abriss des Systemes der Philosophie des Rechtes (1828).
Ahrens, Cours de droit naturel (1837, 8 ed. 1892). Twenty-four editions in
seven languages. The German 6th edition (Naturrecht, 1870-1871) contains
important matter not in the French editions.
Green, Principles of Political Obligation. Lectures delivered in 1879-1880.
Reprinted from his Complete Works (1911).
Lorimer, Institutes of Law (2 ed. 1880).
Lasson, Lehrbuch der Rechtsphilosophie (1882).
Miller, Lectures on the Philosophy of Law (1884).
Boistel, Cours de philosophie du droit (1870, new ed. 1899).
Herkless, Lectures on Jurisprudence (1901).
Brown, The Underlying Principles of Modern Legislation (1912).
Mention may be made of Beaussire, Les principes du droit (1888); Beudant, Le droit
individuel et l'état (1891); Carle, La vita del diritto (2 ed. 1890); Dahn,
Rechtsphilosophische Studien (1883); Giner y Calderon, Filosofia del derecho (1898);
Harms, Begriff, Formen und Grundlegung der Rechtsphilosophie (1889); Hennebicq,
Philosophie de droit et droit naturel (1897); Herbart, Analytische Beleuchtung des
Naturrechts und der Moral (1836); Jouffroy, Cours de droit naturel (5 ed. 1876);
Kirchmann, Grundbegriffe des Rechts und der Moral (2 ed. 1873); Krause, Das
System der Rechtsphilosophie (posthumous, ed. by Röder, 1874); Miraglia, Filosofia
del diritto (3 ed. 1903, transl. in Modern Legal Philosophy Series, 1912); Röder,
Grundzüge des Naturrechts oder der Rechtsphilosophie (2 ed. 1860); Rosmini,

Filosofia del diritto (2 ed. 1865); Rothe, Traité de droit naturel, théorique et appliqué
(1884); Schuppe, Grundzüge der Ethik und Rechtsphilosophie (1881); Stahl,
Philosophie des Rechts (5 ed. 1878); Tissot, Introduction historique et philosophique à
l'étude du droit (1875); Trendelenburg, Naturrecht auf dem Grunde der Ethik (1868);
Vareilles-Sommières, Les principes fondamentaux du droit (1889); Wallaschek,
Studien zur Rechtsphilosophie (1889).

Reference may be made to Gray, Nature and Sources of the Law, §§ 7-9; Bryce,
Studies in History and Jurisprudence, Essay 12; Pollock, Essays in Jurisprudence and
Ethics, 1-30; Korkunov, General Theory of Law, translated by Hastings, § 4;
Bergbohm, Jurisprudenz und Rechtsphilosophie, §§ 6-15; Pound, The Scope and
Purpose of Sociological Jurisprudence, 24 Harvard Law Rev., 501; Pound, the
Philosophy of Law in America, Archiv für Rechts- und Wirthschaftsphilosophie, VII,
213, 285.

Jhering, Der Zweck im Recht (1877-1883, 4 ed. 1904). The first volume is
translated by Husik under the title "Law as a Means to an End" (1913).
Jhering, Scherz und Ernst in die Jurisprudenz (1884, 9 ed. 1904).
Reference may be made to the appendices to Jhering, Law as a Means to an End,
transl. by Husik; Berolzheimer, System der Rechts- und Wirthschaftsphilosophie, II, §
43 (World's Legal Philosophies, 327-351); Korkunov, General Theory of Law,
translated by Hastings, §§ 13-14; Tanon, L'évolution du droit et la conscience sociale
(3 ed. 1911), pt. I, ch. 3.

Stammler, Ueber die Methode der geschichtlichen Rechtstheorie (1888).
----, Wirthschaft und Recht (1896, 2 ed. 1905).
----, Die Gesetzmässigkeit in Rechtsordnung und Volkswirthschaft (1902).
----, Lehre von dem rechtigen Rechte (1902).
----, Systematische Theorie der Rechtswissenschaft (1911).
----, Rechts- und Staatstheorien der Neuzeit (1917).
Del Vecchio, The Formal Bases of Law, translated by Lisle (1914). A
translation of I presupposti filosofici della nozione del diritto (1905), Il

concetto del diritto (1906, reprinted 1912), Il concetto della natura e il
principio del diritto (1908).
For critiques of Stammler, see Berolzheimer, System der Rechts- und
Wirthschaftsphilosophie, II, § 48 (World's Legal Philosophies, 398-422);
Kantorowicz, Zur Lehre vom richtigen Recht; Croce, Historical Materialism and the
Economics of Karl Marx, ch. 2; Geny, Science et technique en droit privé positif, II,
127-130; Binder, Rechtsbegriff und Rechtsidee (1915); Binder, Kritische und
metaphysische Rechtsphilosophie, Archiv für Rechts- und Wirthschaftsphilosophie,
IX, 142, 267; Vinogradoff, Common Sense in Law, ch. 9.

Kohler, Rechtsphilosophie und Universalrechtsgeschichte, in Holtzendorff,
Enzyklopädie der Rechtswissenschaft, I (6 ed. 1904, 7 ed. 1913). (Not in
prior editions.)
Kohler, Lehrbuch der Rechtsphilosophie (1909, 2 ed. 1917). Translated by
Albrecht as "Philosophy of Law" (1914).
Kohler, Moderne Rechtsprobleme (1907, 2 ed. 1913).
Berolzheimer, System der Rechts-und Wirthschaftsphilosophie (1904-
1907). Vol. II, history of juristic thought, translated by Jastrow (somewhat
abridged) under the title "The World's Legal Philosophies" (1912), Vol. III,
general system of legal and economic philosophy, Vol. IV, philosophy of
interests of substance, Vol. V, philosophy of criminal law, are important for
our purposes.
See also Berolzheimer, Rechtsphilosophische Studien (1903); Barillari, Diritto e
filosofia (1910-1912); Kohler, Das Recht (1909); Kohler, Recht und Persönlichkeit in
die Kultur der Gegenwart (1914).

Radbruch, Grundzüge der Rechtsphilosophie (1914).
Miceli, Principii di filosofia del diritto (1914).
Tourtoulon, Principes philosophiques de l'histoire du droit (1908-1920).
Demogue, Notions fondamentales du droit privé (1911).
Geny, Méthode d'interprétation et sources en droit privé positif (1899, 2 ed.
1919). A book of the first importance.

----, Science et technique en droit privé positif (1913).
Duguit, L'état, le droit objectif et la loi positive (1901).
----, Le droit social, le droit individuel et la transformation de l'état (2 ed.
1911).
----, Les transformations générales du droit privé (1912). Translated in
Continental Legal History Series, Vol. XI, ch. 3.
----, Law and the State (1917).
Reference may be made to Modern French Legal Philosophy (1916) in the Modern
Legal Philosophy Series; Jung, Das Problem des natürlichen Rechts (1912).

See also Boucaud, Qu'est-ce que le droit naturel (1906); Charmont, La renaissance du
droit naturel (1910); Charmont, Le droit et l'esprit democratique (1908); Djuvara, Le
fondement du phénomène juridique (1913); Fabreguettes, La logique judiciaire et l'art
de juger (1914); Leroy, La loi (1908).

Compare Cathrein, Recht, Naturrecht und Positives Recht (1901).

See also Cohen, Jus naturale redivivum, Philosophical Rev., XXV, 761 (1916).

Spencer, Justice (1891).
See also Anzilotti, La filosofia del diritto e la sociologia (1907); Brugi, Introduzione
enciclopedica alle scienze giuridiche e sociale (4 ed. 1907, 1 ed. 1890); Cosentini,
Filosofia del diritto e sociologia (1905); Cosentini, Criticismo e positivismo nella
filosofia del diritto (1912); Daguanno, La genesi e l'evoluzione del diritto civile
(1890); Eleutheropoulos, Rechtsphilosophie, Sociologie und Politik (1908);
Fragapane, Obbietto e limiti della filosofia del diritto (1897); Levi, Il diritto naturale
nella filosofia di R. Ardigo (1904); Nardi Greco, Sociologia giuridica (1906); Porchat,
Sociologia e direito (1902); Ratto, Sociologia e filosofia del diritto (1894); Vadale
Papale, La filosofia del diritto a base sociologica (1885); Vander Eycken, Méthode
positive de l'interprétation juridique (1907).

Post, Der Ursprung des Rechts (1876).
----, Bausteine für eine allgemeine Rechtswissenschaft (1880).

----, Die Grundlagen des Rechts und die Grundzüge seiner
Entwickelungsgeschichte (1884).
Kuhlenbeck, Natürliche Grundlagen des Rechts (1905).
A discussion of fundamental problems of jurisprudence from the
Darwinian standpoint.
Richard, Origine de l'idée de droit (1892).
Vaccaro, Les bases sociologiques du droit et de l'état (1898). Translation of
Le basi del diritto e dello stato (1893). A theory of law as the outcome of
class struggles.
For critiques of the foregoing, see Tanon, L'évolution du droit et la conscience sociale
(3 ed. 1911); Tourtoulon, Principes philosophiques de l'histoire du droit (1908-1920);
Charmont, La renaissance du droit naturel (1910).

Tarde, Les transformations du droit (6 ed. 1909). First published in 1894.
Vanni, Lezioni di filosofia del diritto (3 ed. 1908). First published in 1901-
1902.
See also Bonucci, L'orientazione psicologica dell' etica e della filosofia del diritto
(1907); Bozi, Die Weltanschauung der Jurisprudenz (1907, 2 ed. 1911); Bozi, Die
Schule der Jurisprudenz (1910); Cruet, La vie du droit et l'impuissance des lois
(1914); Grasserie, Principes sociologiques du droit civil (1906); Jellinek, Die
sozialethische Bedeutung von Recht, Unrecht und Strafe (2 ed. 1908, 1st ed. 1878);
Lagorgette, Le fondement du droit (1907); Miceli, Le fonti del diritto dal punto di
vista psichico-sociale (1905); Miceli, Lezioni di filosofia del diritto (1908).

Holmes, The Path of the Law, 10 Harvard Law Review, 467 (1897);
Collected Papers, 167-202.
Ehrlich, Soziologie und Jurisprudenz (1903).
Wurzel, Das juristische Denken, 98-102 (1904). Translated in The Science
of Legal Method (Modern Legal Philosophy Series, Vol. 9, 421-428).
Gnaeus Flavius (Kantorowicz), Der Kampf um die Rechtswissenschaft
(1906).

Kantorowicz, Rechtswissenschaft und Soziologie (1911).
Kelsen, Ueber Grenzen zwischen juristischer und soziologischer Methode
(1911).
Brugeilles, Le droit et la sociologie (1910).
Rolin, Prolégomènes à la science du droit (1911).
Ehrlich, Erforschung des lebenden Rechts, in Schmoller's Jahrbuch für
Gesetzgebung, XXV, 190 (1911).
----, Grundlegung der Soziologie des Rechts (1913).
----, Das lebende Recht der Völker der Bukowina (1913).
Page, Professor Ehrlich's Czernowitz Seminar of Living Law, Proceedings
of Fourteenth Annual Meeting of Association of American Law Schools, 46
(1914).
Cosentini, Filosofia del diritto (1914).
Ehrlich, Die juristische Logik (1918).
Kornfeld, Allgemeine Rechtslehre und Jurisprudenz (1920).
See also Cosentini, La réforme de la législation civile (1913) (revised and augmented
translation of La riforma della legislazione civile, 1911); Kornfeld, Soziale
Machtverhältnisse, Grundzüge einer allgemeinen Lehre vom positiven Rechte auf
soziologischer Grundlage (1911); Levi, La société et l'ordre juridique (1911); Levi,
Contributi ad una teoria filosofica dell' ordine giuridico (1914).

LECTURE II

Miller, The Data of Jurisprudence, ch. 6.
Salmond, Jurisprudence, § 9.
Pulszky, Theory of Law and Civil Society, § 173.
Bentham, Theory of Legislation, Principles of the Civil Code, pt. I, ch. 1-7.

Holland, Jurisprudence, ch. 6.
Kant, Philosophy of Law (Hastie's translation) 45-46.
Spencer, Justice, ch. 5-6.
Willoughby, Social Justice, ch. 2.
Paulsen, Ethics (Thilly's translation), ch. 9.
Gareis, Vom Begriff Gerechtigkeit.
Demogue, Notions fondamentales de droit privé, 119-135.
Picard, Le droit pur, liv. 9.
Pound, The End of Law as Developed in Legal Rules and Doctrines, 27
Harvard Law Review, 195.
Holmes, Common Law, Lect. 1.
Post, Ethnologische Jurisprudenz, II, §§ 58-59.
Fehr, Hammurapi und das Salische Recht, 135-138.
Ames, Law and Morals, 22 Harvard Law Review, 97.
Voigt, Das Ius naturale, aequum et bonum und Ius Gentium der Römer, I,
321-323.
Stephen, Liberty, Equality, Fraternity, 189-255.
Maine, Early History of Institutions (American ed.), 398-400.
Ritchie, Natural Rights, ch. 12.
Demogue, Notions fondamentales de droit privé, 63-110, 136-142.
Jhering, Scherz und Ernst in die Jurisprudenz (10 ed.), 408-425.
Pound, Liberty of Contract, 18 Yale Law Journal, 454.
----, The End of Law as Developed in Juristic Thought, 27 Harvard Law
Review, 605, 30 Harvard Law Review, 201.

Berolzheimer, The World's Legal Philosophies, §§ 17-24.
Figgis, Studies of Political Thought from Gerson to Grotius, Lect. 6.
Berolzheimer, The World's Legal Philosophies, §§ 25-27.
Hobbes, Leviathan, ch. 15.
Berolzheimer, The World's Legal Philosophies, § 29.
Korkunov, General Theory of Law (translated by Hastings), § 7.
Ritchie, Natural Rights, ch. 3.
Charmont, La renaissance de droit naturel, 10-43.
Berolzheimer, The World's Legal Philosophies, §§ 35-37.
Korkunov, General Theory of Law (translated by Hastings), 320-322.
Gray, Nature and Sources of the Law, § 58.
Berolzheimer, The World's Legal Philosophies, § 28.
Mill, On Liberty, ch. 4.
Dicey, Law and Public Opinion in England, Lect. 6.
Berolzheimer, The World's Legal Philosophies, §§ 43-48, 52.
Stammler, Wesen des Rechts und der Rechtswissenschaft (in Systematische
Rechtswissenschaft, i-lix).
Kohler, Rechtsphilosophie und Universalrechtsgeschichte, §§ 13-16, 33-34,
51.

LECTURE III

Geny, Méthode d'interprétation et sources en droit privé positif (2 ed. 1919).
Vander Eycken, Méthode positive de l'interprétation juridique (1907).
Mallieux, L'Exégèse des codes (1908).

Ransson, Essai sur l'art de juger (1912).
See Wigmore, Problems of Law, 65-101; Pound, The Enforcement of Law, 20 Green
Bag, 401; Pound, Courts and Legislation, 7 American Political Science Review, 361-
383.

Science of Legal Method, Modern Legal Philosophy Series, Vol. 9 (1917).
Gnaeus Flavius (Kantorowicz), Der Kampf um die Rechtswissenschaft
(1906).
Fuchs, Recht und Wahrheit in unserer heutigen Justiz (1908).
----, Die gemeinschädlichkeit der konstruktiven Jurisprudenz (1909).
Oertmann, Gesetzeszwang und Richterfreiheit (1909).
Rumpf, Gesetz und Richter (1906).
Brütt, Die Kunst der Rechtsanwendung (1907).
Gmelin, Quousque? Beiträge zur soziologischen Rechtsfindung (1910).
Reichel, Gesetz und Richterspruch (1915).
Jellinek, Gesetz, Gesetzesanwendung und Zweckmässigkeitserwägung
(1913).
Kübl, Das Rechtsgefühl (1913).
Heck, Gesetzesauslegung und Interessenjurisprudenz (1914).
Stampe, Grundriss der Wertbewegungslehre (1912, 1919).

See Kohler, Lehrbuch des bürgerlichen Rechts, I, §§ 38-40; Austin, Jurisprudence (3
ed.), 1023-1036; Pound, Spurious Interpretation, 7 Columbia Law Review, 379; Gray,
Nature and Sources of the Law, §§ 370-399; Somlo, Juristische Grundlehre, §§ 110-
122; Stammler, Rechts- und Staatstheorien der Neuzeit, § 18; Pound, Introduction to
English Translation of Saleilles, Individualization of Punishment; Saleilles,
Individualization of Punishment, translated by Jastrow, ch. 9; Pound, Administrative
Applications of Legal Standards, 44 Rep. American Bar Assn., 445; Laun, Das freie
Ermessen und seine Grenzen (1910).

LECTURE IV

Holmes, Collected Papers, 49-116 (1920).
Baty, Vicarious Liability (1916).
Hasse, Die Culpa des römischen Rechts (2 ed. 1838).
Jhering, Der Schuldmoment im römischen Privatrecht (1867).
Rümelin, Schadensersatz ohne Verschulden (1910).
Triandafil, L'Idée de faute et l'idée de risque comme fondement de la
responsabilité (1914).
See Binding, Die Normen und ihre Uebertretung, I, §§ 50-51; Meumann,
Prolegomena zu einem System des Vermögensrechts, 80 ff. (1903); Duguit in
Progress of Continental Law in the Nineteenth Century (Continental Legal History
Series, Vol. XI), 124-128; Geny, Risque et responsabilité, Revue trimestrielle de droit
civil, I, 812; Rolin, Responsabilité sans faute, Revue de droit international et
legislation comparée, XXXVIII, 64; Demogue, Fault, Risk and Apportionment of
Risk in Responsibility, 15 Illinois Law Review, 369; Thayer, Liability Without Fault,
29 Harvard Law Review, 801; Smith, Tort and Absolute Liability, 30 Harvard Law
Review, 241, 319, 409; Bohlen, The Rule in Rylands v. Fletcher, 59 University of
Pennsylvania Law Review, 298, 373, 423; Isaacs, Fault and Liability, 31 Harvard Law
Review, 954.

LECTURE V

Ely, Property and Contract in Their Relation to the Distribution of Wealth, I,
51-93, 132-258, 295-443, II, 475-549.
Hobson and Others, Property, Its Rights and Duties, Historically,
Philosophically and Religiously Considered (2 ed.), essays 1-3, 5-8.
Green, Principles of Political Obligation, §§ 211-231.
Miller, Lectures on the Philosophy of Law, Lect. 5.
Herkless, Jurisprudence, ch. 10.
Russell, Social Reconstruction, ch. 4.
Spencer, Justice, ch. 12.
Kohler, Philosophy of Law, Albrecht's translation, 120-133.
Maine, Ancient Law, ch. 8.
----, Early History of Institutions (American ed.), 98-118.
----, Early Law and Custom (American ed.), 335-361.
Duguit, in Progress of the Law in the Nineteenth Century (Continental
Legal History Series, Vol. XI), 129-146.
Wagner, Volkswirthschaft und Recht, besonders Vermögensrecht (1894).
Perreau, Cours d'économie politique, II, §§ 623-695 (1916).
De la Grasserie, Les principes sociologiques du droit civil, ch. 3.
Cosentini, La réforme de la législation civile, 371-422 (1913).
Fouillée, La propriété sociale et la democratie (1884).
Landry, L'Utilité sociale de la propriété individuelle (1901).
Meyer, L'Utilité publique et la propriété privée (1893).
Thézard, La propriété individuelle: Étude de philosophie historique du droit
(1872).

Thomas, L'Utilité publique et la propriété privée (1904).
Berolzheimer, System der Rechts- und Wirthschaftsphilosophie, IV, §§ 1-
13.
Felix, Entwickelungsgeschichte des Eigenthums (1883-1899).
Karner, Die sociale Funktion der Rechtsinstitute, besonders des Eigenthums
(1904).
Conti, La proprietà fondiaria nel passato e nel presente (1905).
Cosentini, Filosofia del diritto, 250-279 (1914).
Fadda, Teoria della proprietà (1907).
Labriola, Sul fondamento della proprietà privata (1900).
Loria, La proprietà fondiaria e la questione sociale (1897).
Piccione, Concetto positivo del diritto di proprietà (1890).
Velardita, La proprietà secondo la sociologia (1898).
Grotius, De jure belli et pacis, II, 3, 1-5, II, 6, 1 and 14, § 1.
Pufendorf, De jure naturae et gentium, IV, 4, §§ 2-6, 14.
Locke, On Government, ch. 5.
Blackstone, Commentaries, II, 3-10.
Kant, Metaphysische Anfangsgründe der Rechtslehre (2 ed.), §§ 1, 6-7, 8,
10, 18-21.
Hegel, Grundlinien der Philosophie des Rechts, §§ 44, 46, 49.
Lorimer, Institutes of Law (2 ed.), 215 ff.

LECTURE VI

Ely, Property and Contract in Their Relation to the Distribution of Wealth,
II, 576-751.

Amos, Systematic View of the Science of Jurisprudence, ch. 11.
Herkless, Jurisprudence, ch. 12.
Kohler, Philosophy of Law, Albrecht's translation, 134-191.
De la Grasserie, Les principes sociologiques du droit civil, ch. 6.
Duguit, in Progress of the Law in the Nineteenth Century (Continental
Legal History Series, Vol. XI), 100-124.
Kant, Metaphysische Anfangsgründe der Rechtslehre (2 ed.), §§ 18-21.
Hegel, Grundlinien der Philosophie des Rechts, §§ 71-81.
Richte, Grundlage des Naturrechts, §§ 18-20.
Williston, Contracts, I, §§ 99-204.
Ames, The History of Assumpsit, 2 Harvard Law Review, 1, 53.
----, Two Theories of Consideration, 12 Harvard Law Review, 515; 13
Harvard Law Review, 29.
Beale, Notes on Consideration, 17 Harvard Law Review, 71.
Langdell, Mutual Promises as a Consideration for Each Other, 14 Harvard
Law Review, 496.
Pollock, Afterthoughts on Consideration, 17 Law Quarterly Review, 415.
Hershey, Letters of Credit, 32 Harvard Law Review, 1.
Lorenzen, Causa and Consideration in the Law of Contracts, 28 Yale Law
Journal, 621.
Pound, Consideration in Equity, 13 Illinois Law Review, 667 (Wigmore
Celebration Essays, 435).

Index
Abstract promise 262, 263

Acquisition
by creation 195
by discovery 195, 201
by occupation 196, 211
civil 196-197
derivative 207
in Roman law 194-200
Kant's theory of 210-213
natural 195
things not subject to 197

Act, as basis of liability 158

Acting at one's peril 167, 178

Action
de deiectis et diffusis 162
de recepto 162
in factum 160
in personam 151
noxal 162

Adjudication
administrative element in 122-123
steps in 100

Administration 108
adjustment with law 137

Administrative tribunals 130, 136

Ames, James Barr 178

Analogy, reasoning by 32

Analysis 53

Analytical application 123-125
reasoning 105
theory 53-54

Anglo-Saxon Law 148

Application of Law 100 ff.
agencies of individualizing 129-138
analytical 123-125
equitable 122, 126-129
historical 125-126
latitude of 120, 129
margin of 112
rules 142
theories of 123-129

Aquilian culpa 156, 159, 162

Aquinas, St. Thomas 25-26

Aristotle 25, 38, 76, 82, 138
on application of law 109-110
threefold classification of governmental powers 15

Austin, John 172-174, 259

Bacon 258

Bailment 170, 270, 275

Bartolus 37

Baty, T. 166

Bentham 54, 84

Bergson 141

Bills of Rights 43, 53, 216

Binding 164

Blackstone 26, 180, 208, 268, 278

Buckland, W. W. 161

Callings, restrictions on engaging in 88

Camden, Lord 119

Canon law 252, 254

Carrier, liability of 186

Casuists 254

Catholic jurist-theologians 39

Causa 259
civilis 248, 250, 251
debendi 251, 254, 255

Causation 162, 164

Certainty 142-143

Change, reconciliation with stability 30, 38

Cicero 27, 30, 31, 117

Civilization, as a measure of value 98
jural postulates of, 56, 169-179, 284

Civil law, 237-240

Classes, social, 91

Codification, 46-47, 139-140

Coke, Sir Edward, 133

Commentators, the, 37

Common Law, the, and legislation, 139-140
professional view as to, 278
types of delictal liability in, 168

Community property, 229

Composition, 149, 241-242

Compromises, 94-95

Conceptions, legal, 116

Conditions "implied in law", 259

Conduct, application of law to, 137-139
expectations arising from, 189

Consciousness, as starting point, 84

Consideration, 240, 258-259, 267, 268, 271-273, 278-279
adequacy of, 273-274
circumstances keeping doctrine alive, 278-282
in equity, 258-259, 277
meanings of, 276-277
meritorious, 259

Contract
analogy of real transactions, 242
Anglo-American law of, 257-259
anomalies in law of, 282
bargain theory of, 269, 271-273
by estoppel, 187
categories of, 248
civil-law enforcement of, 238-240
common-law categories of, 274-275
common-law enforcement of, 240
consensual, 249
equivalent theory of, 255-256, 257-259, 269, 273-277
Fichte's theory of, 261-262
formal, 245-271
Hegel's theory of, 263
historical background of law of, 241 ff.
historical category of, 172
historical theory of, 266-269
injurious-reliance theory of, 261
innominate, 249, 261
Kant's theory of, 261
metaphysical theories of, 260-265
natural-law theory of, 260
"natural principle of", 45-46
objective theory of, 264-265
oral, 282
philosophy of, 253
philosophical theories of, 241
positive theory of, 265
real, 249, 275

religious origins of, 242-247, 252
Roman categories of, 45, 253, 260, 266
Romanist theory of, 263-265
simple, 275
specific enforcement of, 238-240
Spencer's theory of, 265
subjective theory of, 271
theory of basis in personality, 263-265
theory of inherent moral force, 259-260, 261
third-party beneficiaries of, 273
will theory of, 264-265, 269-271, 281-282

Corpus Iuris Canonici, 252

Court and jury, 111

Courts, contest with Crown, 53

Culpa, 170, 175
abstract standard of, 177
concrete standard of, 178
contractual, 170
delictal, 170

Culpability 158
as basis of liability 184
fiction of 158, 178

Custody 222-223

D'Aguesseau 254

Debt 174, 244, 275

Defamation 280, 281

Delicts, equitable 159
historical category of 172
nominate 162, 169-170, 175

Demosthenes 22

Depositum 249

Derivative acquisition 207

Derry v. Peek 281

Dicey, A. V. 184

Digest of Justinian 107

Discovery 195, 201

Discretion 117, 119, 129
margin of 132
of the chancellor 130-133
relation of to rule 112, 141-143

Dispensing power 113

Distributions, Statute of 142

Division of labor 56, 176, 191

Doctor and Student 252, 259

Doe, Chief Justice 185

Dolus 156, 159, 169, 175

Dominium 199, 225

Due care 170, 175
standard of 119-120

Duguit, L. 98, 232

Dumoulin 39

Dunedin, Lord 276

Duress 159

Duties 173
relational 85

Economic interpretation 66-67, 179-180

Eldon, Lord 47

Empiricism, judicial 34, 283
juristic 34

End of law 54, 59-99
as a measure of value 96
Greek conception of 74-77
ideals of as basis of juristic theories 71-72
keeping the peace as 72-74
maximum individual self-assertion as 84-87
medieval conception of 78-80
nineteenth-century conception of 83-85
preserving social status quo as 74-81
rise of new ideas as to 87-99
Roman conception of 77-78
theories of 72-99

English juristic theory 64

Englishmen, common-law rights of 43, 53

Enterprises, conduct of 137-189

Equality 82-85

Equitable application of law 122, 126-129

Equities 121

Equity 28, 47, 57, 59, 117, 130-133, 137-138, 258-259, 271
and natural law 41, 102, 112, 114, 153, 178
of the tribunal 102
provision for a child as consideration in 272, 274
securing a creditor as consideration in 272
settlement on a wife as consideration in 272, 274
will not aid a volunteer 272

Ethical interpretation 266

Familia 200

Fichte, theory of contract 261-262

Fictions 102-108, 115
dogmatic 179, 180, 274
of culpability 178-179
of negligence 179
of representation 166, 179
of undertaking 171

Fiducia cum amico 249

Fifth Amendment 51

Finding law 100, 104-105

Form and intention 154-155

Formal contracts, 245, 271, 275
historical origin of, 245-247

Formal undertaking, 155

Forms in primitive thinking, 247-248

Formulas, elasticity of, 121

Fortescue, 38

Fourteenth Amendment, 51

Freedom of contract, 191, 265, 267-269

Freedom of industry, 191

French Civil Code, 48, 162, 163
law of delictal liability, 167-168
monarchy, legal theory under, 64

Functional attitude, 91

Generalizations, 145

General security, 72, 96, 149-150, 171, 175, 176, 179, 193, 282
how infringed, 177

Germanic law, 36, 41, 79, 251, 254

Gifts, reformation of, 273

Gloss, The, 37

Glossators, 40

Good faith, 153, 155, 157, 170
corollaries of, 188-189

Gray, J. C., 102

Greek city, problem of order in, 75
security of social institutions in, 75

Greek law, 20-27, 151, 175

Greek philosophers, conception of the end of law, 35, 74-77
conception of the nature of law, 81
conception of the general security, 74
on subjects of litigation, 97, 241

Grotius, 196, 205-207, 260

Hammurapi, 60

Hard bargains, 132

Hegel, 84, 216, 274
theory of contract, 262
theory of property, 214-216

Heraditus, 76

Hindu law, 226-227, 243-245

Hippodamus, 241

Historical application of law, 125-126

Historical categories, 172

Historical school, 279

Holmes, Mr. Justice, 166

Household, partition of, 226-227

Husband and wife, 188
matrimonial property regime, 229

Hybris, 77

Idealism, juridical, 41-42, 91

Idealistic interpretation, 266

Imperium, 199

"Implied" undertakings, 158, 171

Individual free self-assertion, 54

Individualization, 111, 113-114
by juries, 133-134
in criminal procedure, 138
in punitive justice, 134-135
judicial, 120-121
moral element in, 137
of penal treatment, 129-130

Individual life, 96

Inheritance, 139

Innkeeper, liability of, 186

Insult, 151

Intention, 189
as source of liability, 157

Interdependence, 56

Interdicts, 200

Interests, 89-90
compromises of, 94-95
delimitation of, 192
giving effect to, 90
group, 225
harmony of, 96
individual, in promised advantages, 236
intrinsic importance of, 95
inventory of, 90
of substance, 139, 237
recognition of, 90, 192
securing of 96, 97
valuing of 89, 95-99
weighing of 89, 94

Interpretation 51-52, 100
fiction of 102-108
genuine 105, 124
relation to law making 105

Jessel, Sir George 268

Judicial, contrasted with administrative 108

Jural postulates 169-179, 188, 192-193, 193-194, 237, 249, 284

Juridical idealism 41-42, 91

Jurisconsults 30, 43-44

Jurisprudence, problems of 111

Juristic theories, nature of 69

Jurists, metaphysical 52, 68
search for the more inclusive order 145
seventeenth and eighteenth-century 43-44

Jurist-theologians 39
Spanish 81-82, 83

Jury 129, 133-134
lawlessness of 138

Jus 31

Jus disponendi 221

Just, the, by nature or by convention 25, 27, 31, 55

Justice, Aristotle on 25, 77
definition of in the Institutes 77
executive 137
idea of 65
without law 102, 113

Justinian, Institutes of 77-78

Kant 84, 202, 219, 260
theory of contract 260-261
theory of property 210-214

Kenyon, Lord 47

Kin organization 74

Laesio enormis 274

Langdell, C. C. 259

Law, adjustment with administration 137
and morals 27, 30, 41, 111, 112
application of 100 ff.
as an aggregate of rules 110
as a body of agreements 63
as a body of commands 64
as a body of divinely ordained rules 60
as a keeping of the peace 72-74
as a reflection of divine reason 63
as a system of principles 62, 66
as custom 61, 62
as declaratory of economic or social laws 67-68
as precepts discovered by experience 65
as recorded traditional wisdom 61
as restraint on liberty 60
as rules imposed by dominant class 66
as standing between the individual and society 53
as unfolding an idea of right 65
basis of authority of 19, 23-24, 27, 28-29, 38, 69-72
Byzantine theory of 110
distinguished from rules of law 24
elements of 115-116
end of 35-36, 59 ff.
effectiveness of 193
finding 100, 104-105
forms of 27-28
government of 136
historical theory of 65, 68

how far made 107-108
idea of self-sufficiency of 17, 67
judge made 35
jurist made 35
maturity of 48, 59, 102
merchant 155, 271, 275
nature of 59, 91, 111
nature of theories of 68-69
political theory of 68
restatement of the 282
science of 101
soft spots in the 282
theories of the nature of 60-68

Law making, judicial 105
presuppositions of 59

Legal standards 51, 114, 116-120, 129, 141

Legal transactions 153
bonae fidei 248
categories of 247
formal 249
stricti iuris 248

Lending 150

Letters of credit 275, 276-277

Lex 31

Lex Aquilia 159

Liability, absolute 179
act as basis of 158, 182
analytical theory of 152-153
as corollary of fault 163-164, 166, 168, 181, 187, 283-284

basis of delictal 177
delictal 163, 167-169
elements of 162-163
employer's 163
fault as basis of 160, 163-164, 167
for cattle going on vacant lands 180-181
for injury by animal 163, 164, 180
for injury by child 159
for injury by minor 162
for injury by a res ruinosa 162
for injury by slave 159
for intentional harm 168
for negligence 175, 180
for non-restraint of agencies 176
for tort, basis of 167
for tort, common-law theory of 168-169
for trespassing cattle 180
for unintended non-culpable harm 168
for unintentional culpable harm 168
for vicious animals 182, 186
from culpability 184
from legal transactions 187
fundamentals of 174
historical anomalies in 166, 179, 186
in French law 161-164
intention as basis of 157, 160
justifiable reliance as basis of 189
meaning of 147
natural sources of 156
noxal 159
of carrier 186
of innkeeper 159, 160, 186
of master of ship 159, 160
of stable keeper 159, 160
on "implied" terms of transaction 170
philosophical theories of 193-194
primitive grounds of 149-151

quasi-contractual 156
quasi-delictal 156
relational 186-188
to make restitution 187
theories of 148
will-theory of 157, 177, 179, 189
without fault 156, 162, 166, 177, 179

Liberty 84-85
idea of 65, 267
idea of as source of liability 157
law and 60

Locke, John 208

Lorimer, James 218

Louis IX 128

Magistrate, power of 112

Maine, Sir Henry 208

Mala prohibita 26

Mandate 272

Mansfield, Lord 47, 260, 262, 273

Manu 60

Maturity of law 48, 59, 102

Maxims 34

Metaphysical jurists 92

Metus 159

Middle Ages, conception of end of law in 78-80
idea of law in 77-81
juristic need in 36

Miller, W. G. 216-217

Mining customs 195
law 201, 222

Minos (pseudo-Platonic dialogue) 24

Mosaic law 60

Mutuum 249

Narada 244

Nationalism in law 39

Natural, meaning of in philosophy of law 31-32

Natural law 25, 31, 35, 40, 41, 45-52, 55, 154, 166, 209, 253, 278, 280
American variant of 50
as a theory of growth 33-34
as deduced from "a free government" 52
as ideal critique 52
economic 205
theory of 42

Natural obligation 250

Natural reason 202

Natural rights 15, 42-43, 55, 83, 92-93, 146, 204, 205
historical-metaphysical theory of 52
theories of 44-45
to produce of labor 209

Nature, meaning of in Greek philosophy 31-32
state of 45

Necessary distinctions 172, 174

Negative community 207

Negligence 119-120, 165, 168, 177, 179, 270, 280
fiction of 179, 180
in speaking 280, 281
per se 179

Neo-Hegelians 94, 98

Neo-Kantians 93, 98

New York, Code of Civil Procedure 105

Nexum 249

Nomos, meanings of 22

Noxal liability 159

Nudum pactum 246, 254, 273, 280

Oaths and vows 251

Obligation, civil 252
ex contractu 146, 172
ex delicto 146, 172, 174

ex uariis causarum figuris 16, 172
meaning of 147
moral basis of 250
natural 250, 252-253
nature of 145
oaths as basis of 251-252
quasi ex contractu 257
religious 244
will as basis of 250

Occupation 196, 211
as a legal transaction 213-214

Office or calling, duties attached to 173

Options 272, 274

Ownership, analytical theory of 222-224
development of the idea of 221-231
dogma that everything must be owned 199
things excluded from 199

Pacta donationis 272

Pacts 248, 250, 261, 275

Partition 226-227, 228

Part performance 282

Paul, St. 77

Peculium 227-228

Pecunia credita 249

Pedis possessio 222

Penal treatment, individualizing of 129-130

Penalty, for delict 149
of reparation 149

Personal government 135-136

Personality 191

Pessimism, juristic 57

Petty courts 130, 138

Philosophers, attempt to unify law and law making 19
attempt to reconcile authority with need of change 19
quest for an ultimate solving idea 19

Philosophical thinking, achievements of in law 16-18
as a force in administration of justice 16
needs determining as to law 18
possibilities of in law of contracts 284

Plato 24, 76

Pledge 251

Political interpretation 266

Positivism 54-56

Possession 233-234

Post-Glossators 37

Pothier 45

Primitive law 72-74
faith of in verbal formulas 154

Primogeniture 50

Principles 34, 53, 116

Procedure 111

Proculians 196

Promised advantages 191

Promises, abstract 255, 262, 263
an element in wealth 236
exchange of 254
"from ostentation" 256, 280, 281
moral duty to keep 262
philosophical theory of enforcing 283
simple 275
theories of enforcing 269-276
theory of inherent force of 259-260

Promissory oath 150-151, 251

Property, acquisition of 194-200, 204
analytical theory of 221-224
basis in creation 209
basis in division by agreement 205
basis in economic nature of man 205, 209
community 229
effectiveness of law as to 193
Grotius' theory of 205-207
Hegel's theory of 214-216
historical development of law of 224-232
historical theory of 219, 221-232
household 226-227, 229

inequalities in 215, 221
in natural media of life 201-202
jural postulates of 193, 194
Kant's theory of 210-214
law of 141
Lorimer's theory of 218
medieval theory of 202
metaphysical theories of 210-218
modes of acquiring 194-202
"natural" acquisition of 195
natural-law theories of 204-210
natural limits of right of 195
negative community in 207
philosophical theories of 194 ff.
positive theory of 219-221
psychological theory of 209, 23, 234
restrictions on appropriation of 88
restrictions on use and disposition of 87-88
self-acquired 227-228
seventeenth-century theory of 202
socialization of 233
social-utilitarian theory of 225
sociological theories of 232
Spencer's theory of 219
theories of 202-225
theory of in Anglo-American law 208
theory of in antiquity 202
things not subject to 197
titles to 195-197, 211
twentieth-century theories of 232

Protestant jurist-theologians 39

Psychology 90, 94, 279-280

Publicists, French 110

Public utilities 117, 136
exemption of from competition 88-89
power to contract 187

Pufendorf 207-208

Punitive justice 111
individualization of 134-135

Quasi-delict 161, 162

Ratio legis, doctrine of 32, 46

Reason, excessive faith in 39, 46-47

Reform movement, legislative 47, 85

Relations 171
duties attached to 173
economic value of 192
interference with 192
legal protection of 193

Release 272, 274

Religion 242 ff.

Reparation 149

Representation 179

Res communes 197, 198, 199, 207, 210
extra commercium 197, 201, 216, 217
ipsa loquitur 180, 185-186
nullius 199, 205

publicae 198, 210
religipsae 198
ruinosa 162-163
sacrae 198
sanctae 198

Responsibility at one's peril 167

Right, idea of 65
natural and conventional 15, 25-26, 31

Rights, in personam 146
in rem 147

Roman conception of end of law 77-78
jurisconsults 30, 43

Roman law 26, 36, 41, 45, 105-106, 145, 151, 155, 170, 173-174, 195, 199,
200, 225, 228, 245-250, 254, 275
as basis of medieval law 40
as basis of law in XVII and XVIII centuries 41
contribution of to legal philosophy 36

Rousseau 214

Rules 115-116
adapted to commercial transactions 141
adapted to property 141
and discretion 141-143
application of 142
as guides 121
mechanical application of 142-143

Rylands v. Fletcher 168, 182-186

Sabinians 196

Sale 249

Satisfaction of wants, as an ideal 98-99

Savigny, F. C. von 213

Scholastic philosophy 36
permanent contribution of 38

Seals 240, 271, 275
contract under seal 255

Security of transactions 193, 237

Seisin 225

Self help 73

Seller's talk 280

Separation of powers 102-103, 107

Set off 250

Social contract 204

Social control 99, 225

Social engineering 99

Social ideal 56
as a measure of values 98

Social interdependence 232
as a measure of values 98

Social interests 99
in peace and order 148
in security of transactions 237

Social laws 54-55

Social order, feudal 79-80
idealized form of the 35
static 85

Social sciences, unification of 91

Social status quo, as end of law 35-36

Social utilitarianism 92-98

Socialists 209

Society, Greek conception of 79
jural postulates of civilized 169-179
kin-organized 73-74
medieval conception of 79

Sociology 94

Sophrosyne 77

Sovereignty, Byzantine theory of 40

Specification 195

Specific performance 131-132, 238-240

Spencer, Herbert 84, 97, 201, 265
his law of equal freedom 219
his theory of property 219-221

Spirit and letter 154

Standards, legal 51, 114, 116-120, 129, 141

Stare decisis 140

Status to contract 266

Statute of Frauds 282

Statute of Uses 277

Stipulation 246
of counsel 273, 274

Stoics 197

Strict law 33, 101, 112-113, 153, 155, 165, 280

Substance, interests of 139, 225

Super constitution 15, 51

Symbols 248

Teleology, legal 92

Theories of law, elements in 70-71

Third-party beneficiaries 273

Title, by creation 195
by discovery 195
by occupation 196, 211
"natural" 195

"Tort of negligence" 105

Torts 283
development of liability for 164-167
generalization of liability for 167
law of 117, 167
nominate 164, 165, 170, 175, 283

Traditio 249

Trust, constructive 173
gratuitous declaration of 272, 274

Twelve Tables 249

Unjust enrichment 173, 187

Utilitarians 267, 268

Utility 53

Value, criteria of 89, 95-99

Vrihaspati 243

Waiver 272, 274

Wants, as juristic starting point 89-90
limitations on satisfaction of 97-98
satisfaction of 89-90

Warranties 174, 249

Whale fishing 195

Will, as basis of liability 157, 169
as basis of obligation 250
as juristic starting point 84, 89

Will theory 189
of contract 264-265

Williston, S. 282

Wills, harmonizing of 84, 90, 92-93

Workman's compensation 167

STORRS LECTURES
Published by Yale University Press

The Reform of Legal Procedure. By Moorfield Storey.
The Judiciary and the People. By Frederick N. Judson.
Concerning Justice. By Lucilius A. Emery.
Woman's Suffrage by Constitutional Amendment. By Henry
St. George Tucker.
The Nature of the Judicial Process. By Benjamin N. Cardozo.

TRANSCRIBER'S NOTES
Other than the corrections listed below, printer's inconsistencies in spelling
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