Lecture II.
The Methods of
History, Tradition and
Sociology
THE method of philosophy comes in competition, however, with other tendencies
which find their outlet in other methods. One of
these is the historical method, or the method of
evolution. The tendency of a principle to expand
itself to the limit of its logic may be counteracted
by the tendency to confine itself within the
limits of its history. I do not mean that even
then the two methods are always in opposition.
A classification which treats them as distinct is,
doubtless, subject to the reproach that it involves
a certain overlapping of the lines and principles
of division. Very often, the effect of history is
to make the path of logic clear.1 Growth may
be logical whether it is shaped by the principle
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of consistency with the past or by that of consistency with some pre-established norm, some
general conception, some "indwelling, and creative
principle.2 The directive force of the precedent
may be found either in the events that made
it what it is, or in some principle which enables
us to say of it that it is what it ought to be.
Development may involve either an investigation
of origins or an effort of pure reason. Both
methods have their logic. For the moment, however, it will be convenient to identify the method
of history with the one, and to confine the
method of logic or philosophy to the other. Some
conceptions of the law owe their existing form
almost exclusively to history. They are not to
be understood except as historical growths. In the
development of such principles, history is likely
to predominate over logic or pure reason. Other
conceptions, though they have, of course, a history, have taken form and shape to a larger
extent under the influence of reason or of comparative
[52]
jurisprudence. They are part of the jus
gentium. In the development of such principles
logic is likely to predominate over history. An
illustration is the conception of juristic or corporate personality with the long train of consequences which that conception has engendered.
Sometimes the subject matter will lend itself as
naturally to one method as to another. In such
circumstances, considerations of custom or utility
will often be present to regulate the choice. A residuum will be left where the personality of the
judge, his taste, his training or his bent of mind,
may prove the controlling factor. I do not mean
that the directive force of history, even where
its claims are most assertive, confines the law of
the future to uninspired repetition of the law
of the present and the past. I mean simply that
history, in illuminating the past, illuminates the
present, and in illuminating the present, illuminates the future. "If at one time it seemed
likely," says Maitland,3 "that the historical spirit
(the spirit which strove to understand the classical
[53]
jurisprudence Of Rome and the Twelve
Tables, and the Lex Salica, and law of all ages
and climes) was fatalistic and inimical to reform,
that time already lies in the past. . . . Nowadays
we may see the office of historical research as that
of explaining, and therefore lightening, the pressure that the past must exercise upon the present,
and the present upon the future. Today we study
the day before yesterday, in order that yesterday
may not paralyze today, and today may not
paralyze tomorrow."
Let me speak first of those fields where there
can be no progress without history. I think the
law of real property supplies the readiest example.4 No lawgiver meditating a code of laws
conceived the system of feudal tenures. History
built up the system and the law that went with it.
Never by a process of logical deduction from
the idea of abstract ownership could we distinguish the incidents of an estate in fee simple from
those of an estate for life, or those of an estate
for life from those of an estate for years. Upon
[54]
these points, "a page of history is worth a volume
of logic."5 So it is wherever we turn in the forest
of the law of land. Restraints upon alienation,
the suspension of absolute ownership, contingent
remainders, executory devises, private trusts and
trusts for charities, all these heads of the law are
intelligible only in the light of history, and get
from history the impetus which must shape their
subsequent development. I do not mean that even
in this field the method of philosophy plays no
part at all. Some of the conceptions of the land
law, once fixed, are pushed to their logical conclusions with inexorable severity. The point is
rather that the conceptions themselves have come
to us from without and not from within, that they
embody the thought, not so much of the present
as of the past, that separated from the past their
form and meaning are unintelligible and arbitrary, and hence that their development, in
order to be truly logical, must be mindful of their
origins. In a measure that is true of most of the
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conceptions of our law. Metaphysical principles
have seldom been their life. If I emphasize the
law of real estate, it is merely as a conspicuous
example. Other illustrations, even though less
conspicuous, abound. "The forms of action we
have buried," says Maitland,6 "but they still rule
us from their graves." Holmes has the same
thought:7 "If we consider the law of contract,"
he says, "we find it full of history. The distinctions between debt, covenant and assumpsit are
merely historical. The classification of certain
obligations to pay money, imposed by the law
irrespective of any bargain as quasi-contracts, is
merely historical. The doctrine of consideration
is merely historical. The effect given to a seal is
to be explained by history alone." The powers
and functions of an executor, the distinctions between larceny and embezzlement, the rules of
venue and the jurisdiction over foreign trespass,
these are a few haphazard illustrations of growths
which history has fostered, and which history
[56]
must tend to shape. There are times when the
subject matter lends itself almost indifferently to
the application of one method or another, and the
predilection or training of the judge determines
the choice of paths. The subject has been penetratingly discussed by Pound.8 I borrow one of
his illustrations. Is a gift of movables inter vivos
effective without delivery? The controversy raged
for many years before it was set at rest. Some
judges relied on the analogy of the Roman Law.
Others upon the history of forms of conveyance
in our law. With some, it was the analysis of
fundamental conceptions, followed by the extension of the results of analysis to logical conclusions. The declared will to give and to accept
was to have that effect and no more which was
consistent with some pre-established definition
of a legal transaction, an act in the law. With
others, the central thought was not consistency
with a conception, the consideration of what
logically ought to be done, but rather consistency
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with history, the consideration of what had been
done. I think the opinions in Lumley v. Gye,
2 El. & Bl. 216, which established a right of
action against A. for malicious interference with
a contract between B. and C., exhibit the same
divergent strains, the same variance in emphasis.
Often, the two methods supplement each other.
Which method will predominate in any case
may depend at times upon intuitions of convenience or fitness too subtle to be formulated,
too imponderable to be valued, too volatile to
be localized or even fully apprehended. Sometimes the prevailing tendencies exhibited in the
current writings of philosophical jurists may
sway the balance. There are vogues and fashions
in jurisprudence as in literature and art and
dress. But of this there will be more to say when
we deal with the forces that work subconsciously
in the shaping of the law.
If history and philosophy do not serve to fix
the direction of a principle, custom may step in.
When we speak of custom, we may mean more
things than one. "Consuetudo," says Coke, "is
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one of the maine triangles of the lawes of England; these lawes being divided into common
law, statute law and customs."9 Here common
law and custom are thought of as distinct.
Not so, however, Blackstone: "This unwritten
or Common Law is properly distinguishable
into three kinds: (1) General customs, which
are the universal rule of the whole Kingdom,
and form the Common Law, in its stricter
and more usual signification. (2) Particular customs, which for the most part affect only the
inhabitants of particular districts. (3) Certain
particular laws, which by custom are adopted
and used by some particular courts of pretty
general and extensive jurisdiction."10
Undoubtedly the creative energy of custom in
the development of common law is less today
than it was in bygone times.11 Even in bygone
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times, its energy was very likely exaggerated by
Blackstone and his followers. "Today we recognize," in the words of Pound,12 "that the custom
is a custom of judicial decision, not of popular
action." It is "doubtful," says Gray,13 "whether
at all stages of legal history, rules laid down by
judges have not generated custom, rather than
custom generated the rules." In these days, at all
events, we look to custom, not so much for the
creation of new rules, but for the tests and standards that are to determine how established rules
shall be applied. When custom seeks to do more
than this, there is a growing tendency in the law
to leave development to legislation. Judges do not
feel the same need of putting the imprimatur of
law upon customs of recent growth, knocking for
entrance into the legal system, and viewed
askance because of some novel aspect of form
or feature, as they would if legislatures were not
in frequent session, capable of establishing a
title that will be unimpeached and unimpeachable.
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But the power is not lost because it is
exercised with caution. "The law merchant,"
says an English judge, "is not fixed and stereotyped, it has not yet been arrested in its growth
by being moulded into a code; it is, to use the
words of Lord Chief Justice Cockburn in Goodwin v. Roberts, L. R. 10 Exch. 346, capable of
being expanded and enlarged to meet the wants
of trade."14 In the absence of inconsistent statute, new classes of negotiable instruments may be created by mercantile practice.15 The obligations of public and private corporations ma
y retain the quality of negotiability, despite the presence of a seal, which at common law would destroy it. "There is nothing immoral or contrary
to good policy in making them negotiable if the
necessities of commerce require that they should
be so. A mere technical dogma of the courts or
the common law cannot prohibit the commercial
world from inventing or issuing any species of
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security not known in the last century."16 So, in
the memory of men yet living, the great inventions that embodied the power of steam and
electricity, the railroad and the steamship, the
telegraph and the telephone, have built up new
customs and new law. Already there is a body
of legal literature that deals with the legal problems of the air.
It is, however, not so much in the making of
new rules as in the application of old ones that
the creative energy of custom most often manifests itself today. General standards of right and
duty are established. Custom must determine
whether there has been adherence or departure.
My partner has the powers that are usual in
the trade. They may be so well known that the
courts will notice them judicially. Such for illustration is the power of a member of a trading
firm to make or indorse negotiable paper in the
course of the firm's business.17 They may be
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such that the court will require evidence of
their existence.18 The master in the discharge of
his duty to protect the servant against harm
must exercise the degree of care that is commonly
exercised in like circumstance by men of ordinary
prudence. The triers of the facts in determining
whether that standard has been attained must
consult the habits of life, the everyday beliefs
and practices, of the men and women about
them. Innumerable, also, are the cases where the
course of dealing to be followed is defined by the
customs, or, more properly speaking, the usages,
of a particular trade or market or profession.19 The constant assumption runs throughout the
law that the natural and spontaneous evolutions
of habit fix the limits of right and wrong. A slight
extension of custom identifies it with customary
morality, the prevailing standard of right conduct, the mores of the time.20 This is the point
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of contact between the method of tradition and
the method of sociology. They have their roots in
the same soil. Each method maintains the interaction between conduct and order, between life
and law. Life casts the moulds of conduct, which
will some day become fixed as law. Law preserves
the moulds, which have taken form and shape
from life.
Three of the directive forces of our law,
philosophy, history and custom, have now been
seen at work. We have gone far enough to appreciate the complexity of the problem. We see
that to determine to be loyal to precedents and
to the principles back of precedents does not
carry us far upon the road. Principles are complex bundles. It is well enough to say that we
shall be consistent, but consistent with what?
Shall it be consistency with the origins of the
rule, the course and tendency of development?
Shall it be consistency with logic or philosophy
or the fundamental conceptions of jurisprudence
as disclosed by analysis of our own and foreign
systems? All these loyalties are possible. All have
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sometimes prevailed. How are we to choose between them? Putting that question aside, how do
we choose between them? Some concepts of the
law have been in a peculiar sense historical
growths. In such departments, history will tend
to give direction to development. In other departments, certain large and fundamental concepts,
which comparative jurisprudence shows to be
common to other highly developed systems, loom
up above all others. In these we shall give a
larger scope to logic and symmetry. A broad field
there also is in which rules may, with approximately the same convenience, be settled one way
or the other. Here custom tends to assert itself
as the controlling force in guiding the choice of
paths. Finally, when the social needs demand
one settlement rather than another, there are
times when we must bend symmetry, ignore history and sacrifice custom in the pursuit of other
and larger ends.
From history and philosophy and custom, we
pass, therefore, to the force which in our day
and generation is becoming the greatest of them
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all, the power of social justice which finds its
outlet and expression in the method of sociology.
The final cause of law is the welfare of society.
The rule that misses its aim cannot permanently justify its existence. "Ethical considerations can no more be excluded from the administration of justice which is the end and
purpose of all civil laws than one can exclude
the vital air from his room and live."21 Logic
and history and custom have their place. We
will shape the law to conform to them when
we may; but only within bounds. The end
which the law serves will dominate them all.
There is an old legend that on one occasion God
prayed, and his prayer was "Be it my will that
my justice be ruled by my mercy." That is a
prayer which we all need to utter at times when
the demon of formalism tempts the intellect with
L the lure of scientific order. I do not mean, of
course, that judges are commissioned to set aside
existing rules at pleasure in favor of any other
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set of rules which they may hold to be expedient
or wise. I mean that when they are called upon
to say how far existing rules are to be extended
or restricted, they must let the welfare of society
fix the path, its direction and its distance. We
are not to forget, said Sir George Jessel, in an
often quoted judgment, that there is this paramount public policy, that we are not lightly to
interfere with freedom of contract.22 So in this
field, there may be a paramount public policy,
one that will prevail over temporary inconvenience or occasional hardship, not lightly to
sacrifice certainty and uniformity and order and
coherence. All these elements must be considered.
They are to be given such weight as sound
judgment dictates. They are constituents of
that social welfare which it is our business to
discover.23 In a given instance we may find that
they are constituents of preponderating value. In
others, we may find that their value is subordinate. We must appraise them as best we can.
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I have said that judges are not commissioned
to make and unmake rules at pleasure in accordance with changing views of expediency or
wisdom. Our judges cannot say with Hobbes:
"Princes succeed one another, and one judge
passeth, another cometh; nay heaven and earth
shall pass, but not one tittle of the law of nature
shall pass, for it is the eternal law of God. Therefore, all the sentences of precedent judges that
have ever been cannot altogether make a law
contrary to natural equity, nor any examples of
former judges can warrant an unreasonable sentence or discharge the present judge of the trouble
of studying what is equity in the case he is to
judge from the principles of his own natural reason."24 Nearer to the truth for us are the words
of an English judge: "Our common law system
consists in applying to new combinations of circumstances those rules of law which we derive
from legal principles and judicial precedents,
and for the sake of attaining uniformity, consistency
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and certainty, we must apply those rules
when they are not plainly unreasonable and inconvenient to all cases which arise; and we are
not at liberty to reject them and to abandon all
analogy to them in those in which they have not
yet been judicially applied, because we think that
the rules are not as convenient and reasonable as
we ourselves could have devised."25 This does not
mean that there are not gaps, yet unfilled, within
which judgment moves untrammeled. Mr. Justice Holmes has summed it up in one of his flashing epigrams: "I recognize without hesitation
that judges must and do legislate, but they do so
only interstitially; they are confined from molar
to molecular motions. A common-law judge could
not say, I think the doctrine of consideration a
bit of historical nonsense and shall not enforce
it in my court."26 This conception of the legislative power of a judge as operating between spaces
is akin to the theory of "gaps in the law" familiar
[69]
to foreign jurists.27 "The general framework
furnished by the statute is to be filled in for
each case by means of interpretation, that is,
by following out the principles of the statute.
In every case, without exception, it is the business of the court to supply what the statute
omits, but always by means of an interpretative
function."28 If the statute is interpreted by the
method of "free decision," the process differs in
degree rather than in kind from the process fol
lowed by the judges of England and America in
the development of the common law. Indeed, Ehrlich in a recent book29 quotes approvingly an English writer, who says30 that "a code would not,
except in a few cases, in which the law at present is obscure, limit any discretion now possessed
[70]
by the judges. It would simply change
the form of the rules by which they are bound."
I think that statement overshoots the mark. The
fissures in the common law are wider than the
fissures in a statute, at least in the form of
statute common in England and the United
States. In countries where statutes are oftener
confined to the announcement of general principles, and there is no attempt to deal with details or particulars, legislation has less tendency
to limit the freedom of the judge. That is why
in our own law there is often greater freedom of
choice in the construction of constitutions than in
that of ordinary statutes. Constitutions are more
likely to enunciate general principles, which must
be worked out and applied thereafter to particular conditions. What concerns us now, however,
is not the size of the gaps. It is rather the
principle that shall determine how they are to be
filled, whether their size be great or small. The
method of sociology in filling the gaps puts its
emphasis on the social welfare.
Social welfare is a broad term. I use it to
[71]
cover many concepts more or less allied. It may
mean what is commonly spoken of as public
policy, the good of the collective body. In such
cases, its demands are often those of mere expediency or prudence. It may mean on the other
hand the social gain that is wrought by adherence to the standards of right conduct, which
find expression in the mores of the community.
In such cases, its demands are those of religion
or of ethics or of the social sense of justice,
whether formulated in creed or system, or immanent in the common mind. One does not
readily find a single term to cover these and
kindred aims which shade off into one another
by imperceptible gradations. Perhaps we might
fall back with Kohler31 and Brütt32 and Berolzheimer33 on the indefinable, but comprehensive
something known as Kultur, if recent history had
not discredited it and threatened odium for
[72]
those that use it. I have chosen in its stead a
term which, if not precise enough for the philosopher, will at least be found sufficiently definite
and inclusive to suit the purposes of the judge.
It is true, I think, today in every department
of the law that the social value of a rule has
become a test of growing power and importance.
This truth is powerfully driven home to the
lawyers of this country in the writings of Dean
Pound. "Perhaps the most significant advance in
the modern science of law is the change from
the analytical to the functional attitude."34 "The
emphasis has changed from the content of the
precept and the existence of the remedy to the
effect of the precept in action and the availability and efficiency of the remedy to attain
the ends for which the precept was devised."35 Foreign jurists have the same thought: "The
whole of the judicial function," says Gmelin,36
[73]
"has . . . been shifted. The will of the State, expressed in decision and judgment is to bring
about a just determination by means of the
subjective sense of justice inherent in the judge,
guided by an effective weighing of the interests of the parties in the light of the opinions
generally prevailing among the community regarding transactions like those in question. The
determination should under all circumstances be
in harmony with the requirements of good faith
in business intercourse and the needs of practical
life, unless a positive statute prevents it; and in
weighing conflicting interests, the interest that
is better founded in reason and more worthy of
protection should be helped to achieve victory."37
"On the one hand," says Gény,38 "we are to
interrogate reason and conscience, to discover in
our inmost nature, the very basis of justice; on
the other, we are to address ourselves to social
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phenomena, to ascertain the laws of their harmony and the principles of order which they
exact." And again:39 "Justice and general utility, such will be the two objectives that will direct
our course."
All departments of the law have been touched
and elevated by this spirit. In some, however,
the method of sociology works in harmony with
the method of philosophy or of evolution or of
tradition. Those, therefore, are the fields where
logic and coherence and consistency must still
be sought as ends. In others, it seems to displace
the methods that compete with it. Those are the
fields where the virtues of consistency must yield
within those interstitial limits where judicial
power moves. In a sense it is true that we are
applying the method of sociology when we pursue logic and coherence and consistency as the
greater social values. I am concerned for the
moment with the fields in which the method is
in antagonism to others rather than with those
in which their action is in unison. Accurate division
[75]
is, of course, impossible. A few broad areas
may, however, be roughly marked as those in
which the method of sociology has fruitful application. Let me seek some illustrations of its
workings. I will look for them first of all in the
field of constitutional law, where the primacy
of this method is, I think, undoubted, then in
certain branches of private law where public
policy, having created rules, must have like
capacity to alter them, and finally in other fields
where the method, though less insistent and pervasive, stands ever in the background, and
emerges to the front when technicality or logic
or tradition may seem to press their claims unduly.
I speak first of the constitution, and in particular of the great immunities with which it surrounds the individual. No one shall be deprived
of liberty without due process of law. Here is a
concept of the greatest generality. Yet it is put
before the courts en bloc. Liberty is not defined.
Its limits are not mapped and charted. How
shall they be known? Does liberty mean the
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same thing for successive generations? May restraints that were arbitrary yesterday be useful
and rational and therefore lawful today? May
restraints that are arbitrary today become useful and rational and therefore lawful tomorrow?
I have no doubt that the answer to these questions must be yes. There were times in our
judicial history when the answer might have been
no. Liberty was conceived of at first as something
static and absolute. The Declaration of Independence had enshrined it. The blood of Revolution had sanctified it. The political philosophy
of Rousseau and of Locke and later of Herbert
Spencer and of the Manchester school of economists had dignified and rationalized it. Laissez
faire was not only a counsel of caution which
statesmen would do well to heed. It was a categorical imperative which statesmen, as well as
judges, must obey. The "nineteenth century
theory" was "one of eternal legal conceptions involved in the very idea of justice and containing
potentially an exact rule for every case to be
reached by an absolute process of logical deduction."40
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The century had not closed, however,
before a new political philosophy became reflected in the work of statesmen and ultimately
in the decrees of courts. The transition is interestingly described by Dicey in his "Law and
Opinion in England."41
"The movement from
individualistic liberalism to unsystematic collectivism" had brought changes in the social
order which carried with them the need of a new
formulation of fundamental rights and duties.
In our country, the need did not assert itself so
soon. Courts still spoke in the phrases of a
philosophy that had served its day.42
Gradually,
however, though not without frequent protest
and intermittent movements backward, a new
conception of the significance of constitutional
limitations in the domain of individual liberty,
emerged to recognition and to dominance. Judge
Hough, in an interesting address, finds the dawn
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of the new epoch in 1883, when Hurtado v.
California, 110 U. S. 516, was argued.43 If the
new epoch had then dawned, it was still obscured by fog and cloud. Scattered rays of light
may have heralded the coming day. They were
not enough to blaze the path. Even as late as
1905, the decision in Lochner v. N. Y., 198 U. S.
45, still spoke in terms untouched by the light
of the new spirit. It is the dissenting opinion of
Justice Holmes, which men will turn to in the
future as the beginning of an era.44 In the instance, it was the voice of a minority. In principle, it has become the voice of a new dispensation, which has written itself into law. "The
Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics."45
"A constitution
is not intended to embody a particular economic
theory, whether of paternalism and the organic
relation of the citizen to the state, or of laissez
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faire."46 "The word liberty in the Fourteenth
Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion,
unless it can be said that a rational and fair man
necessarily would admit that the statute proposed
would infringe fundamental principles as they
have been understood by the traditions of our
people and our law."47 That is the conception of
liberty which is dominant today.48 It has its
critics even yet,49 but its dominance is, I think,
assured. No doubt, there will at times be difference of opinion when a conception so delicate is
applied to varying conditions.50 At times, indeed,
the conditions themselves are imperfectly disclosed and inadequately known. Many and insidious are the agencies by which opinion is
poisoned at its sources. Courts have often been
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led into error in passing upon the validity of a
statute, not from misunderstanding of the law,
but from misunderstanding of the facts. This
happened in New York. A statute forbidding
night work for women was declared arbitrary and
void in 1907.51 In 1915, with fuller knowledge of
the investigations of social workers, a like statute
was held to be reasonable and valid.52 Courts
know today that statutes are to be viewed, not
in isolation or in vacuo, as pronouncements of
abstract principles for the guidance of an ideal
community, but in the setting and the framework of present-day conditions, as revealed by
the labors of economists and students of the
social sciences in our own country and abroad.53
The same fluid and dynamic conception which
underlies the modern notion of liberty, as secured
to the individual by the constitutional immunity,
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must also underlie the cognate notion of equality.
No state shall deny to any person within its
jurisdiction "the equal protection of the laws."54 Restrictions, viewed narrowly, may seem to
foster inequality. The same restrictions, when
viewed broadly, may be seen "to be necessary
in the long run in order to establish the equality
of position between the parties in which liberty
of contract begins."55
Charmont in "La Renaissance du droit naturel,"56
gives neat expression
to the same thought: "On tend à considerer qu'il
n'y a pas de contrat respectable si les parties
n'ont pas ét&eactue; placées dans les conditions non
seulement de liberté, mais d'égalité. Si l'un des
contractants est sans abri, sans ressources, condamné à subir les exigences de l'autre, la liberté de fait est supprimée!"57
From all this, it results that the content of
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constitutional immunities is not constant, but
varies from age to age. "The needs of successive
generations may make restrictions imperative
today, which were vain and capricious to the
vision of times past."58 "We must never forget,"
in Marshalls mighty phrase, "that it is a constitution we are expounding."59 Statutes are designed to meet the fugitive exigencies of the
hour. Amendment is easy as the exigencies
change. In such cases, the meaning, once construed, tends legitimately to stereotype itself in
the form first cast. A constitution states or ought
to state not rules for the passing hour, but
principles for an expanding future. In so far as
it deviates from that standard, and descends into
details and particulars, it loses its flexibility, the
scope of interpretation contracts, the meaning
[83]
hardens. While it is true to its function, it maintains its power of adaptation, its suppleness, its
play. I think it is interesting to note that even
in the interpretation of ordinary statutes, there
are jurists, at any rate abroad, who maintain
that the meaning of today is not always the
meaning of tomorrow. "The President of the
highest French Court, M. Ballot-Beaupré, ex
plained, a few years ago, that the provisions of
the Napoleonic legislation had been adapted to
modern conditions by a judicial interpretation
in 'le sens évolutif.' 'We do not inquire,' he said,
'what the legislator willed a century ago, but
what he would have willed if he had known what
our present conditions would be.'"60 So Kohler:
"It follows from all this that the interpretation
of a statute must by no means of necessity remain the same forever. To speak of an exclusively correct interpretation, one which would be
the true meaning of the statute from the beginning
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to the end of its days, is altogether erroneous."61
I think the instances must be rare, if
any can be found at all, in which this method of
interpretation has been applied in English or
American law to ordinary legislation. I have no
doubt that it has been applied in the past and
with increasing frequency will be applied in the
future, to fix the scope and meaning of the
broad precepts and immunities in state and national constitutions. I see no reason why it may
not be applied to statutes framed upon lines
similarly general, if any such there are. We are
to read them, whether the result be contraction
or expansion, in "le sens évolutif."62
Apposite illustrations may be found in recent
statutes and decisions. It was long ago held by
the Supreme Court that the legislature had the
power to control and regulate a business affected
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with "a public use."63 It is held by the Supreme
Court today that there is a like power where the
business is affected with "a public interest."64
The business of fire insurance has been brought
within that category.65 A recent decision of an
inferior court has put within the same category
the business of the sale of coal where the emergency of war or of the dislocation that results
from war brings hardship and oppression in the
train of unfettered competition.66 The advocates
of the recent housing statutes in New York67
profess to find in like principles the justification for
new restraints upon ancient rights of property. I
do not suggest any opinion upon the question
whether those acts in any of their aspects may
be held to go too far. I do no more than indicate
the nature of the problem, and the method and
spirit of approach.68
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Property, like liberty, though immune under
the Constitution from destruction, is not immune
from regulation essential for the common good.
What that regulation shall be, every generation
must work out for itself.69 The generation
which gave us Munn v. Illinois, 94 U. S. 113
(1876), and like cases, asserted the right of regulation whenever business was "affected with a
public use." The phrase in its application meant
little more than if it said whenever the social need
shall be imminent and pressing. Such a formulation of the principle may have been adequate
for the exigencies of the time. Today there is a
growing tendency in political and juristic thought
to probe the principle more deeply and formulate
it more broadly. Men are saying today that
property, like every other social institution, has
a social function to fulfill. Legislation which destroys the institution is one thing. Legislation
which holds it true to its function is quite another. That is the dominant theme of a new and
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forceful school of publicists and jurists on the
continent of Europe, in England, and even here.
Among the French, one may find the thought
developed with great power and suggestiveness
by Duguit in his "Transformations générales du
droit privé depuis le Code Napoléon."70 It is
yet too early to say how far this new conception
of function and its obligations will gain a lodgment in our law. Perhaps we shall find in the
end that it is little more than Munn v. Illinois
in the garb of a new philosophy. I do not attempt
to predict the extent to which we shall adopt it,
or even to assert that we shall adopt it at all.
Enough for my purpose at present that new times
and new manners may call for new standards and
new rules.
The courts, then, are free in marking the
limits of the individual's immunities to shape
their judgments in accordance with reason and
justice. That does not mean that in judging the
validity of statutes they are free to substitute
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their own ideas of reason and justice for those
of the men and women whom they serve. Their
standard must be an objective one. In such
matters, the thing that counts is not what I believe to be right. It is what I may reasonably
believe that some other man of normal intellect
and conscience might reasonably look upon as
right. "While the courts must exercise a judgment of their own, it by no means is true that
every law is void which may seem to the judges
who pass upon it excessive, unsuited to its ostensible end, or
based upon conceptions of morality with which they disagree. Considerable latitude must be allowed for difference of view as
well as for possible peculiar conditions which this
court can know but imperfectly, if at all. Otherwise a constitution, instead of embodying only
relatively fundamental rules of right, as generally
understood by all English-speaking communities,
would become the partisan of a particular set of
ethical or economical opinions, which by no
means are held semper ubique et ab omnibus."71
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Here as so often in the law, "the standard of
conduct is external, and takes no account of the
personal equation of the man concerned."72 "The
interpreter," says Brütt,73 "must above all things
put aside his estimate of political and legislative
values, and must endeavor to ascertain in a
purely objective spirit what ordering of the social
life of the community comports best with the
aim of the law in question in the circumstances
before him." Some fields of the law there are, indeed, where there is freer scope for subjective
vision. Of these we shall say more hereafter. The
personal element, whatever its scope in other
spheres, should have little, if any, sway in determining
the limits of legislative power. One department of the government may not force upon
another its own standards of propriety. "It must
be remembered that legislatures are ultimate
guardians of the liberties and welfare of the
people in quite as great a degree as courts."74
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Some critics of our public law insist that the
power of the courts to fix the limits of permissible
encroachment by statute upon the liberty of the
individual is one that ought to be withdrawn.75
It means, they say, either too much or too little.
If it is freely exercised, if it is made an excuse
for imposing the individual beliefs and philosophies of the judges upon other branches of the
government, if it stereotypes legislation within
the forms and limits that were expedient in the
nineteenth or perhaps the eighteenth century, it
shackles progress, and breeds distrust and suspicion of the courts.
If, on the other hand, it is interpreted in the broad and variable sense which I
believe to be the true one, if statutes are to be
sustained unless they are so plainly arbitrary and
oppressive that right-minded men and women
could not reasonably regard them otherwise, the
right of supervision, it is said, is not worth the
danger of abuse. "There no doubt comes a time
when a statute is so obviously oppressive and absurd
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that it can have no justification in any sane polity."76
Such times may indeed come, yet only seldom. The occasions must be few when legislatures will enact a statute that will merit condemnation upon the
application of a test so liberal; and if carelessness or haste or momentary passion may at
rare intervals bring such statutes into being with hardship to individuals or classes, we may trust
to succeeding legislatures for the undoing of the wrong. That is the argument of the critics
of the existing system. My own belief is that it lays too little stress on the value of the
"imponderables." The utility of an external power restraining the legislative judgment is not
to be measured by counting the occasions of its exercise. The great ideals of liberty and equality
are preserved against the assaults of opportunism, the expediency of the passing hour, the erosion of small
encroachments, the scorn and derision of those who have no patience with general principles,
by enshrining them in constitutions, and
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consecrating to the task of their protection a body of defenders. By conscious or subconscious
influence, the presence of this restraining power, aloof in the background, but none the less always
in reserve, tends to stabilize and rationalize the legislative judgment, to infuse it with the glow
of principle, to hold the standard aloft and visible for those who must run the race and keep
the faith.77 I do not mean to deny that there have been
times when the possibility of judicial review has worked the other way. Legislatures have sometimes
disregarded their own responsibility, and passed it on to the courts. Such dangers must be
balanced against those of independence from all restraint, independence on the part of public
officers elected for brief terms, without the guiding force of a continuous tradition. On the
whole, I believe the latter dangers to be the more formidable of the two. Great maxims, if they may be
violated with impunity, are honored often with lip-service, which passes
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easily into irreverence. The restraining power of
the judiciary does not manifest its chief worth
in the few cases in which the legislature has
gone beyond the lines that mark the limits of discretion. Rather shall we find its chief worth in
making vocal and audible the ideals that might
otherwise be silenced, in giving them continuity
of life and of expression, in guiding and directing
choice within the limits where choice ranges.
This function should preserve to the courts the
power that now belongs to them, if only the
power is exercised with insight into social values,
and with suppleness of adaptation to changing
social needs.
I pass to another field where the dominance of
the method of sociology may be reckoned as assured. There are some rules of private law which
have been shaped in their creation by public
policy, and this, not merely silently or in conjunction with other forces, but avowedly, and almost,
if not quite, exclusively. These, public policy, as
determined by new conditions, is competent to
change. I take as an illustration modern decisions
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which have liberalized the common law rule condemning contracts in restraint of trade. The
courts have here allowed themselves a freedom
of action which in many branches of the law
they might be reluctant to avow. Lord Watson
put the matter bluntly in Nordenfeldt v. Maxim,
Nordenfeldt Guns & Ammunition Co. L. R.
1894 App. Cas. 535, 553: "A series of decisions
based upon grounds of public policy, however
eminent the judges by whom they were delivered,
cannot possess the same binding authority as
decisions which deal with and formulate principles which are purely legal. The course of policy
pursued by any country in relation to, and for
promoting the interests of, its commerce must,
as time advances and as its commerce thrives,
undergo change and development from various
causes which are altogether independent of the
action of its courts. In England, at least, it is
beyond the jurisdiction of her tribunals to mould
and stereotype national policy. Their function,
when a case like the present is brought before
them, is, in my opinion, not necessarily to accept
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what was held to have been the rule of
policy a hundred or a hundred and fifty years
ago, but to ascertain, with as near an approach
to accuracy as circumstances permit, what is the
rule of policy for the then present time. When
that rule has been ascertained, it becomes their
duty to refuse to give effect to a private contract
which violates the rule, and would, if judicially
enforced, prove injurious to the community." A
like thought finds expression in the opinions of
our own courts. "Arbitrary rules which were
originally well founded have thus been made to
yield to changed conditions, and underlying principles are applied to existing methods of doing
business. The tendencies in most of the American
courts are in the same direction."78 I think we
may trace a like development in the attitude of
the courts toward the activities of labor unions.
The suspicion and even hostility of an earlier
generation found reflection in judicial decisions
which a changing conception of social values
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has made it necessary to recast.79 Some remnants
of the older point of view survive, but they are
remnants only. The field is one where the law
is yet in the making or better perhaps in the remaking. We cannot doubt that its new form will
bear an impress of social needs and values which
are emerging even now to recognition and to
power.
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Continue to Lecture III
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