Justice and the modern law

Front matter

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REFERENCE LIBRARY

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Contents

Introduction . . vii

I. The Ethical Principles of the Law * . . . 3

II. The Law as it is Practiced 84

Chapter I

That in the last analysis legal obligation rests upon ethical obligation has not been, and cannot be, successfully denied. All men, including even those who try to deny it, instinctively demand that the law be “ just,” and in the insistent demand for “ justice ” lies an explicit and constant repudiation of the notion that the law can be divorced from ethics: justice is only the application of ethics to human affairs.

It is perhaps worth while to pause long enough to analyze the error into which they have fallen who believe that law can be separated from ethics. Austin defines the law as the command of a political superior, that is, the sovereign, to a political inferior, that is, the subject;1 and his definition embodies that usual conception which forbids us to seek any reason for the law behind the law itself. This theory, however, resembles the somewhat similar theory of an original state 1 Austin on Jurisprudence (5 ed.), 83, 86.

of nature propounded by the French Encyclopaedists in that, however attractive it may be as theory, it is not justified as history, because, except in a comparatively small number of instances, the requirements of the law are ascertained and declared long before any command issues from the sovereign.

Let us assume a case of first impression, that is to say, a case for which there is no precedent and no statute, arising at common law. How is the law ascertained and applied? In the first place, we have argument by interested advocates about the principles involved. In the next place, we have a determination by disinterested judges of the principles as to which the advocates have been arguing. In the third place, and finally, we have a command by the sovereign in the form of a judgment directed to the litigants personally and requiring them to obey the principles so ascertained. Chronologically, therefore, the only command of the sovereign which enters into the entire process of adjudicating a case of first impression follows the determination of the law, and does not precede it. What is true in a case of first impression is true always in cases arising under the common, or unwritten, law. The command of the sovereign does not issue until the principles have been determined by an investigation in which commands by the sovereign find no place whatever. It is only when the law has changed its character and, having ceased to be unwritten, has become statutory, that is to say, has been embodied in an enactment by the legislative branch of the government, that we ever find a command of the sovereign which determines the law, or which declares legal obligations. What is true in English jurisprudence is true in every other jurisprudence. Until the civilization of the community has advanced to a point at which a legislative power, be it king, or parliament, or the people at large, reduces the unwritten law to writing and promulgates it as a rule of conduct to be obeyed by the people generally, the adjudication of rights is fully accomplished without any command from the sovereign whatsoever. The power of the sovereign is, indeed, invoked to make the adjudication effective, and then commands are issued to the parties to the litigation ; but the command which is embodied in an adjudication affects only the rights of the particular parties to the suit and their successors in interest, and is not the kind of command which declares the law for a community. It is a special, and not a general, rule of conduct. As a matter of history, the exercise of legislative power in the enactment of laws, that is to say, the actual promulgation of general rules of conduct by the political sovereign, comes late in the life of any people and marks an already high development in their juristic perceptions.

Even after a people have arrived at the exercise of legislative power, they seldom try to include the whole domain of the law in their statutory enactments. Perhaps the Romans are the only race who have made such an effort. Certainly the Anglo-Saxons have not made it, and to-day the great majority of judgments in English-speaking countries turn upon principles which have never received the sanction of legislative enactment and do not therefore rest upon any command of any political superior. We have, indeed, in the common law a doctrine of stare decisis ; but it is not in any sense the equivalent of a legislative command. The final judgment in a given litigation is conclusive upon the parties and their successors in interest, but upon nobody else, and in subsequent litigations other parties are entitled to an independent consideration of the entire issue. The court itself, while paying great respect to its former decisions, refuses to regard itself as absolutely bound to follow them. Hence arise the phenomenon in the common law of overruled cases and the familiar process of the development of the law, in which ancient principles are abandoned and newer and more enlightened principles take their place. A legislative command, however, differs fundamentally from this judgment of the court, because it imposes an obligation upon the people generally and is conclusive upon even the courts. Precedent, therefore, is by no means equivalent to statutory enactment, and investigation into the chronologic sequence of events shows, as we have said before, that in the great majority of cases throughout the world the rights of litigants have been determined according to principles which even to-day have not received their form, or derived their validity, from any sovereign command.

Whence come these principles?

The answers to this vital question are nearly as numerous as the writers on jurisprudence, and it is manifestly impossible to consider them all. There is, however, one dominant characteristic of the modern views which will enable us to treat them as a group and will therefore justify a brief discussion of them. These views generally hold, in one form or another, that the law is a social institution which declares and administers in any community a standard of conduct which that community has devised or has discovered through its own experience to be best adapted to its needs. They hold, therefore, in one form or another, that the principles of the non-statutory law are to be sought in the experience and habits of the community. Inasmuch as communities differ greatly among themselves in stages of development, there are corresponding differences in the character of the various systems of jurisprudence ■which they have formulated. It is a common view, therefore, that there is such a thing as a science of comparative jurisprudence, and that it is to be prosecuted through the study and comparison of the legal principles which are in vogue in the different countries and states of the world, not merely of those which are now extant, but also of those which have passed away hut have left records from which their legal institutions can be reconstructed, and that out of this science a new and truer system is still to be established. It is a further characteristic of modern theories that they usually regard the law as in general lagging behind the social development of the community, so that effort is necessary in order to bring the law, both in form and administration, up to the most enlightened standards. These theories of jurisprudence have been aptly described as sociological, and the description is just, because, whatever may be their minor divergencies, in fundamentals they agree in finding the principles of the law in social experience.1

1 See an article by Professor Roscoe Pound, entitled “ The Scope and Purpose of Sociological Jurisprudence/ * published in 24 Harvard Law Review, 591 ; 25 ibid. 140, 489.

The sociological theory of jurisprudence is a manifest advance upon the Austinian conception of the command of the sovereign. In the place of that command, which, as we have seen, does not exist as a matter of fact except in the form of actual legislation, it substitutes human experience as the origin of legal principles, and regards the unwritten law as but the judicial formulation of that experience in more or less definite rules of conduct. With all this advance, however, it does not escape the underlying error of the Austinian theory. For the definite command of the sovereign it merely substitutes an indefinite command of the community as a whole, because, while society does not prescribe its non-statutory legal principles by the voice of any definite organ in which its sovereignty is supposed to reside, such as a king or a legislature, it does, in that view, prescribe them by its own multitudinous voice. It is not true, as a matter of historical fact, however, that in the actual process of declaring and administering the non-statutory law as to the rights and duties of individuals to each other, our jurists have regarded human experience as furnishing the principles by which judgment is to be rendered, and, therefore, when we return to the judicial process, — as we always must when we would think aright on these topics, — we shall find that the socioro logical jurisprudence is just as much at war with the facts of history as the Austinian jurisprudence. We may search the records of juridical investigation in all countries and in all times, and we shall not find that they follow the rational procedure which the sociological theory of jurisprudence would require. That juridical reasoning which has ended in judgments, as distinguished from that which has ended in theories, discloses no study of the experience of the community, no investigation into its customs, no comparison of its present with its past, or its past with its future, and yet some or all of these would be necessary if the principles which are used in the rendition of judgment were to be found in the experience of the people.

It must be remembered that we are discussing now the judicial and not the legislative process, the process, that is to say, by which the unwritten law is ascertained and applied in the determination of disputes between definite individuals. What has actually happened in that field of the law is that every jurist, whether he has been some savage leader of savages at the dawn of civilization, or a modern judge sitting in a court of last resort, has sought for the principles which should determine his judgment in something apart from and above the experience of the race; in something which is objective, not merely to each individual, but to the race as a whole ; in an ideal of justice which both he and his people have cherished in their hearts and the principles of which they have endeavored to apprehend and apply as the standard of their daily conduct. The difference may be illustrated by a simple example of what takes place in another sphere of investigation. The judicial process in ascertaining and applying the unwritten law is essentially similar to the learning process by which we acquire our knowledge of geometry. The Pythagorean theorem is that the square erected upon the hypothenuse of a right-angled triangle is equal to the sum of the squares erected upon the other two sides, and it is so named because it is supposed to have been discovered by Pythagoras. This mathematical law, however, was understood, so it is said, by the Egyptians as a matter of practical experience long before the theoretical proof of it was discovered by the Greek mathematician, and the truth of it has of course been confirmed by uniform human experience in all the ages.

In other words, reason and experience, theory and practice, are here in agreement. Nevertheless, when we teach geometry we do not appeal to experience, nor are we content with practice : we appeal to reason and we demand the theory. We do not ask the boy to believe it to be true either because Pythagoras discovered it, which is the principle of authority, or because it has always been found to be true, which is the principle of experience. On the contrary, we set the triangle before him, we make him study its inherent properties, we require him to ascertain for himself that they necessarily involve the truth of the theorem. So, too, when he has apprehended the demonstration, he believes it and accepts it as true for the rest of his life, and it never occurs to him to test its truth by practical use. Let us compare this process with the judicial process in ascertaining the principles to be applied to some question of human conduct when there is no statute which is applicable. Suppose a landlord were to attempt to break a lease and seek to put the tenant out of possession upon the ground of some violation of the covenants of the lease, and suppose further that even in the act of maintaining judicial proceedings to oust the tenant from possession, he should exact the rent as it accrued from month to month. We are, of course, continuing our assumption that it is the first instance of the kind, so that no precedent for it is to be found in the books. What is the intellectual process of the judge who undertakes to ascertain the law and apply it to the landlord’s attempt? He does not examine the records of the community to find out what the community has done in similar

THE ETHICAL PKINCIPLES OF THE LAW 13

cases, or what the general belief of the community may be as to the propriety of such an attitude on the part of the landlord, or what solution of the problem is best adapted to the stage of development which the community has attained. On the contrary, he turns to the transaction itself. Like the boy studying the Pythagorean theorem, he dissects it into its ultimate elements and bases his conclusion upon the principles which he thus discovers. He decides that the landlord ought not to be allowed to blow hot and cold, to disaffirm the lease and oust the tenant from possession at the very time that he affirms the lease and accepts payment for possession in the form of rent, and he reaches his conclusion, not at all because it is the experience of the community, but because it is inherently and necessarily just.

It is not to be supposed that there are no exceptions to this rational process. On the contrary, there have undoubtedly been occasions in which there have been both tacit and express appeals to experience as warranting judgments of the court ; but they have been, and from the nature of the case necessarily must be, extremely rare in comparison with the great mass of judgments, and they do not in the least degree disturb the conclusion which we are compelled to reach as to the nature of the judicial process in general. If anybody is interested to learn just how rare are these exceptions, let him examine the historical records of juridical investigation in administering the law, as distinguished from juridical investigation in determining its theory. He will then find, perhaps to his amazement, how few are the cases in which an appeal to experience is even possible.

Of course, at this late date in legal history, it is difficult, if not impossible, to find a case in which a really new principle of the law is to he applied, and consequently it is not always easy to strip from the juridical process its accidental features and arrive at those which are fundamental and necessary. It is difficult, for example, to distinguish between precedent and custom. The great body of modern jurisprudence, however, whether in the common law or in the law of Rome, has grown up in historic times, so that we can trace most of our present juridical doctrines to their origin, and thus ascertain what has actually happened when a new principle has been introduced into the law. The rise of the chancery system in England and of the praetorian system in Rome furnishes a striking illustration of the process in each case. These systems, which marked the emergence of the law of England and Rome from the status of elaborated tribal usage into the status of real jurisprudence, were based upon what the jurists of either system believed to be equity and good conscience, and were not, consciously or otherwise, related to the special stage of development of the community. In other words, whatever may be the theory of philosophers in their closets, the history of the law shows that those who have actually made it have been animated by a belief in moral principles, and that the legal principles which they have formulated have been the product of those moral principles. Indeed, in many cases, the rules of conduct thus prescribed were far in advance of the standards of the community in which they were established, so that each community was compelled to grow up to the principles which its jurists enunciated. Of course, not even the wisest jurist has always found the true rule to be applied in any given case ; but as civilization has advanced, our juristic views have tended to a continually closer approximation to the ideal, and always and everywhere, by tacit assumption or open reference, the ideal has been regarded as the ultimate goal of juristic effort. Thus it will be seen that the underlying error of the sociological jurists is precisely that which has been rendered immortal through the stubborn assertion in the nineteenth century that “ the sun do move.” Both the sociological jurists and the Rev. Mr. Jasper have made the mistake, as between two bodies which have been changing their relative positions, of not knowing which was moving. It is the views of the community which advance toward a moral standard : it is not the moral standard which advances with the views of the community.

The facts of history, then, lead us to reject alike the theory of a definite command by a definite organ of the body politic prescribing a rule of conduct to the people generally, and the theory of an indefinite command of the people themselves through the vague facts of their social organization. They go further. They lead us to the conclusion that what for untold years the human race has been trying to prescribe to itself as its rule of conduct is something which it has sought outside of its own experience, which it has held up to itself as an ideal of justice, and which, through doubt and error, through weakness and sin and suffering, it has sought to make as real as human fallibility will permit. It is true, of course, that with the progress of the years this ideal of justice is more clearly appreciated and is therefore seen to be confirmed by human experience: but it is nevertheless to the ideal, and not to the experience, that we make our appeal. If, therefore, we are to understand the law at all, we must realize that it is based upon that ineradicable and invincible instinct of the race which leads it to believe in a law which is not man-made, is not dependent upon human sanctions, and is, in fact, a moral law, and that at any given point of time the man-made law of any community is the expression of what it believes that moral law to be. In other words, the law is only the promulgation of ethical principles as they are understood and applied by the community, and, therefore, if we would find the true principles of the law, we must look to the principles of ethics.

What is true of the unwritten law is true, though with a difference, of the written law as well : it derives its ultimate sanction from the fact that the people believe it to have its foundations, not in their experience, but in ultimate principles of ethics.

There has never been a satisfactory philosophical determination of the scope or character of the fundamental moral principles, or of the grounds upon which they rest. Fortunately for the race, however, the principles themselves are comparatively simple and obvious, and we have had a rough, but approximately accurate, conception of them for a period of time which long precedes the records of history. Indeed our evolutionary progress may be justly measured by the increasing accuracy with which we have been able to understand them. The learning process has been largely intuitional and woefully illogical, but surprisingly good in its results. Through purely empirical methods we have achieved canons of applied ethics which need only to be rationalized, to have their natural errors eliminated, their excrescences pruned and their deficiences supplied, to he substantially correct. The two leading races, for example, the Latin and the Germanic, have developed, side by side and with comparatively little intercommunication, two systems of jurisprudence which embody identical ethical principles and which in fundamentals are ethically just. Even the less enlightened nations in their customs and habits apply the same basic principles, and it may be said generally that while the administration of justice varies all the way from the tyranny of an Eastern despot to the constitutional guaranties of a modern republic, the legal structure of society in all parts of the world is substantially uniform, just as the skeletal structure of the human body is substantially uniform in all races and in all climes.

What, then, are the fundamental principles of ethics ?

One of the early internecine quarrels of Rome was averted, so it is said, by the fable of the belly and the members.1 By means of that fable, Menenius Agrippa made it clear to the dissatisfied

1 Livy, History of Rome , vol. I, sec. 32. See Shakespeare’s CoriolanuSf Act i, Sc. 1.

commons that plebeians and patricians were alike dependent upon each other, precisely as the belly and the members are dependent upon each other in the human body, and that only by means of a frank and full acceptance of their mutual dependence could either hope to survive the perils which encompassed them. The fable of the belly and the members is one of the earliest statements of the mutuality of the relation which exists between man and man to be found in European literature, and, so far as it goes, it is an accurate statement of that relation. Certainly it served its purpose. It did not, however, attain to a complete analysis because it omitted one element of vital importance. It proclaimed the mutual dependence of the members of the community, but there it stopped. Mutual dependence, however, is a relation of material interest merely, and not of ethical obligation. Because it was for the obvious material advantage of the plebeians to sink their quarrels with the patricians and act in a general spirit of harmony, it does not follow that such an advantage involved any moral duty. Interest is not the same thing as obligation, and until the gap between interest and obligation can be rationally bridged, therefore, so that we find rational grounds for the conclusion that man’s community of interest involves also a mutuality of moral obligation, have we achieved any really ethical results. We have, indeed, by means of that fable, reached the stage of enlightened selfishness, or that peculiarly British Philistinism, the greatest good of the greatest number; but we do not learn from it the meaning, or the scope, or even the existence, of a moral duty. In the course of time we have changed our terminology. From the fable of the belly and the members, we have passed to utilitarianism, from utilitarianism we have passed to the organic relation of man to man, and from the organic relation of man to man we have passed to universal human brotherhood. In this advance in modes of expression, there has, indeed, been a broadened vision, but even the theory of human brotherhood does not by itself bridge the gap and does not furnish a satisfactory transition from material interest to moral obligation.

It is no part of our task to discuss philosophy, and we need not attempt to bridge the gap. On the contrary, we may content ourselves with the universal human perception that moral obligation does exist, and we may take it for granted that a philosophic justification for our belief in it will sometime be discovered. Let us venture, therefore, to assume without proof that the gap can be bridged, to believe that there are grounds for the affirmation that the mutual relations between man and man are more than material, that they are ethical as well, and to believe that these grounds will satisfy our insistent hunger for sufficient reasons. This, after all, is no great draft upon our credulity, because precisely that conclusion has dominated the ethical thought and the actual conduct of mankind from time immemorial. We have always believed in an objective justice even if we have been unable to define it or discover whence it springs, and the conception that the form of that justice is to be found in the organic constitution of society has long since passed from a truth into a truism. Let us assume, then, as a frankly unproved, but plausible and working, hypothesis, that the material relation of mutual dependence which exists between the organs of the organism has its analogue in an ethical relation of mutual obligation which exists between the freely acting members of a community. On this assumption we can readily segregate and define three great ethical principles.

In the first place, the integrity of the organism and the integrity of the community alike involve the integrity of the component organs and individuals. In each case the subordinate unit must achieve its fullest possible development and its action must be free and untrammeled by the other units. This is an organic interest in the organism. In terms of ethical obligation to the community, it means that each individual ought to be free to use his natural powers without molestation. The ethical principle therefore is that each individual has a right, as against every other individual, to be unrestrained in the exercise of his natural powers. Here, then, is the first ethical principle, the right of freedom.

In the second place, the integrity of the organism and the integrity of the community alike involve the direction by the subordinate units of their several activities to the common end, and, according to their several positions in the whole, to the service of the other units in helping them to fulfill their tasks. Again, therefore, we find an organic interest of mutual help, and this interest, translated as before into terms of ethical obligation, means that each man rests under a duty to cooperate with his fellow men in the achievement of the common end and to render service to them in that activity. Here, then, is the second ethical principle, the duty to help.

The organism differs profoundly from the community in the physical dependence of its component parts. The belly cannot exist in separation from the other members of the body, whereas one man can exist, for a time, at any rate, in total separation from his fellow men. This physical independence of the man, combined with an intellectual capacity which is denied to the organ, gives rise to an ethical phenomenon in the community for which the organism furnishes no analogue, that is to say, the ability of the individual to create voluntary rights and obligations. Men agree to do, or refrain from doing, specific acts as to which the two natural moral principles already ascertained involve no specific right or obligation. Here then is a third ethical principle, the reciprocating rights and duties of contract, which are, of course, solely defined by the terms of the contract itself.

These three principles, the egoistic right of freedom, the altruistic duty to help, and the voluntary reciprocating rights and duties of contract, constitute the fundamental principles of ethics, and each of them is firmly wrought into the structure of all human jurisprudence, be it Roman, English, or any other. It is not a difficult matter, if we are attentive, to trace them in any existing system. In the following pages, therefore, we shall try to follow them in the structure of our common law, though we can only attempt this in the broadest of outlines and to a great degree inadequately.

First, then, of the right of freedom.

The most obvious instance in which the ethical right of freedom becomes a legal right is to be found in the protection accorded by the law to man’s corporal safety. Battery of the person is forbidden, and even a threatened battery, that is, an assault, may become illegal. A more subtle application of the right lies in the protection accorded to the relations which man establishes between himself on the one hand and inanimate things and the lower order of animal life on the other. One of the first steps by which he effected his egress from a purely animal existence was taken in the more or less permanent appropriation for his personal use of the hitherto unappropriated natural opportunities which surrounded him, first, in the construction of implements for war, hunting and the household, later, in the domestication of animals, and, last of all, in the permanent settlement upon land. The act of appropriation of that which has not been hitherto appropriated establishes at once a purely physical relation between the man and the thing, a power of dominion or control, which the law of all ages has recognized, more or less adequately, as a proper object of its protection. Property, ownership, title, — these are merely synonyms in our law expressing the legal perception of a man’s natural right to be untrammeled in the physical control which he establishes over inanimate things and the lower animals. We are accustomed to regard these terms as denoting a bundle of rights. Accurately understood, however, they indicate merely a single right, and that the right of freedom.