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PART V

SIGNIFICANCE OF THE REVIVAL OF HIGHER LAW CONCEPTS IN THE PUBLIC LAW OF EUROPE AND OF AMERICA

CHAPTER XII

OBJECTIVES IN THE MODERN REVIVAL OF NATURAL LAW THINKING

THOUGH no effort has been made to review any but a few of the many indications of the revival of natural law theories or of other types of higher law notions, sufficient evidence has been given to show that the return to these concepts, as criteria to measure the justice or validity of civil enactments, is more than a casual phase of current legal thought. Many factors are combining to bring to the fore again some of the ideas involved in the ancient doctrines of natural law. With widely differing purposes in view and with varying approaches to the fundamental and permanent principles of the law, legal philosophers, jurists, and judges, in applying concrete formulae of written charters, codes, or statutes, are wont to turn to modernized versions of the law of nature or of its counterpart, the law of reason.[1] It is obvious of course that there are many thinkers in all countries who deny that there is such a thing as natural law with anything more than moral import, and who doubt the possibility of any such thing as a true philosophy of law. This point of view is so well known and is so general in legal thought that it seems unnecessary to elaborate on it in a treatise the object of which is primarily to indicate the significance of opposite opinions.

Among some of the prevailing tendencies in legal thinking which are giving an impetus to the revival of higher law theories are: first, the efforts to introduce in a more direct way ethical concepts into the law; second, the attempts to formulate ideal or philosophical standards to measure positive laws; third, the establishment of criteria for judges and administrators when they act as legislators; fourth, a justification for limits on the sovereignty of states. Each of these modern applications of natural law concepts deserves brief consideration.

1. Natural Law as a Device to introduce Ethical Concepts into the Law. It is apparent that natural law thinking has served many purposes in the process of the evolution of legal systems. None of these purposes has been more constant and influential than the effort to infuse ethical concepts into the practical application of the law by means of natural law principles. Every stage in legal evolution bears witness to the close relation between law and morals and not infrequently the law of nature served as a convenient connecting link. A reference to the stages of legal history previously outlined will indicate some of the obvious relations between these concepts.

In primitive legal systems law and religion were inseparably combined. As law and religion came to be distinguished, law remained organically associated with morals and ethics. It was customary for the Greeks and the Romans to identify jurisprudence with inquiries as to the right and the just by nature and there was no disposition to separate law and morals. The identification of the legal with the moral prevailing at this time and the combination of both in the natural law concepts gave a turn to legal speculation which has influenced the growth of the law in many of its subsequent stages.[2]

During the Middle Ages law was merely a branch of theology and was necessarily associated with moral and ethical thinking. With the Reformation came one of the first efforts to separate jurisprudence and theology, but even then law was considered as intimately connected with moral ideas. And this connection continued until the beginning of the nineteenth century. Kant broke away from the ideas of natural law prevalent in the eighteenth century, but he conceived of natural law in the form of eternal and immutable principles as standards to guide the processes of law making and law-enforcement.[3] The cycle through which man has passed in working out the relations of law and ethics is characterized by Dean Pound as the "ethical-philosophical natural law" of the Romans, the "authoritative-theological natural law" of the Middle Ages, the "rational-ethical natural law" of the seventeenth and eighteenth centuries, the "metaphysical natural law" of Kant, to the repudiation of all theories of natural law by the Analytical School. Thus, he observes,

the cycle is complete. We are back to the state as the unchallengeable authority behind legal precepts. The state takes the place of Jehovah handing the tablets of the law to Moses, or Manu dictating the sacred law, or the Sun-god handing the code to Hammurabi. Law is law by convention and enactment — the proposition, plausibly maintained by sophists, which led Greek philosophers to seek some basis that made a stronger appeal to men to uphold the legal order and the security of social institutions.[4]

The historical school of jurists and the exponents of the positivist theories of jurisprudence sought a complete separation of law and morals. The ethical and moral ideas of earlier times which were translated into effective legal norms were to be replaced either by customs and principles of action which emanated from the sentiments of the people of a given time and locality,[5] or rules of action formulated by a political sovereign which became intrinsically just by the acceptance and promulgation of the state.[6] Analytical jurisprudence, especially as defined in England and in America, carried to the extreme the attempt to separate ethics and law. Exponents of this school believed that the great gain which jurisprudence made during the last century was the recognition of the truth that the law of the state is not an ideal, but something which actually exists. Law, they maintained, is not that which is in accordance with religion or nature or morality; it is not that which ought to be, but that which is. Justice Holmes expressed the prevailing sentiment among analytical jurists when he favored banishing from the law every word of moral significance and suggested that in so doing "we should lose the fossil records of a good deal of history and the majesty got from ethical associations, but by ridding ourselves of an unnecessary confusion we should gain very much in the clearness of our thought."[7]

As a matter of fact the point of view of the analytical jurists did not result in banishing the ethical and moral elements in the administration of justice but only attempted to conceal the process with "dogmatic fictions."[8] Ethical concepts seemingly excluded from the judicial processes were extensively used by English and American judges in molding the ancient rules and principles of the common law to meet new conditions and in the application of standards in which the moral and ethical elements played a not insignificant part.[9] Though the followers of John Austin, such as J. G. Holland, still insist that in England law and morals must be distinctly separated, the following statement will suffice to show the contrast between the profession and the practice in emphasizing the judge's function in translating into law the customary ideas of ethical conduct:

It is the peculiar characteristic of the English system, and of systems derived from it, that the judges, though historically and technically the servants of the state, and bound to enforce its commands, have almost from the first also played the important part of educating the community in the ethics of social conduct. And in that part they have drawn their inspiration, not from abstract and possibly, unpractical ideals, but, by an almost imperceptible process of abstraction and development, from the solutions arrived at by the better members of the community of the many problems of practical life. This is, I think, the inward meaning of their frequent appeals to the example of the "reasonable man," that favorite objective standard of the English judge. With unwearying patience, ingenuity, and unsparing labor, our judges have, if I may so put it, woven into the national, that is, the political life of the community that instinct of justice, that respect for ethical considerations, which, if it be not presumptuous for an Englishman to say so, is one of the most conspicuous as well as one of the most honorable and abiding features of the English character.[10]

The disposition to consider the close relationships of law and ethics even in countries where the analytical or positivist theory has prevailed is indicated in the opinion of a great English justice. After defining law in the ordinary sense as rules of conduct laid down by the sovereign will of the state and enforced by the sanction of compulsion, Lord Haldane observes:

Law, however, imports something more than this. As I have already remarked its full significance cannot be understood apart from the history and spirit of the nation whose law it is. Moreover, it has a real relation to the obligations even of conscience, as well as to something else which I shall presently refer to as the general will of society. In short, if its full significance is to be appreciated, larger conceptions than those of the mere lawyer are essential; conceptions which come to us from the moralist and the sociologist, and without which we cannot see fully how the genesis of law has come about. That is where writers like Bentham and Austin are deficient. One cannot read a great book like the "Esprit des Lois" without seeing that Montesquieu had a deeper insight than Bentham or Austin, and that he had already grasped a truth which, in Great Britain at all events, was to be forgotten for a time.[11]

He then refers to rules of conduct which, so far as the citizen is concerned, are regulated only to a small extent by law and legality on the one hand, and by the dictates of individual conscience on the other (a field which corresponds to the German Sittlichkeit) the system of habitual or customary conduct, ethical rather than legal, which embraces all those obligations of the citizen which it is "bad form" or "not the thing" to disregard. In this field the guide to which the citizen mostly looks is the standard recognized by the community, an illustration of "a sanction which is sufficient to compel observance of a rule without any question of the application of force. This kind of sanction may be of a highly compelling quality." Attention is then directed to the gradual evolution of an international Sittlichkeit which promises a sanction for international obligations not yet fully recognized by formal laws and treaties.[12] Many others who approach the law from the analytical or positivist point of view agree with Judge Dillon that "ethical considerations can no more be excluded from the administration of justice than any one can exclude the vital air from his room and live."

The Philosophical Schools of jurists, on the other hand, have always emphasized the close relations between law and morals, and hence have found as a rule a place for natural law theories. Legal philosophy on the Continent is often closely related to metaphysical and theological thinking wherein law, morals, and religion are inseparably associated. Even when legal philosophers have succeeded in divorcing law from its former metaphysical and theological bearings they have conceived of an ethical basis for all law.[13] Thus Stammler and Kohler, as well as Duguit, Krabbe, and Del Vecchio, subsume an ethical basis for the rules of right or principles of justice to which all true law must conform.

The different schools of jurists, it is claimed, were looking at distinct elements of what is called law. The analytical jurist turned his attention almost exclusively to the fixed body of rules applied by the official organs of the state. The historical jurist placed uppermost the mass of traditional ideas and customs from which actual legal rules are derived. The philosophical jurist emphasized a third element, the social and ethical ideas which are involved in legal rules and by means of which the law is being constantly remolded. "The philosophical jurist," says Dean Pound,

has called this third element "natural law" and has given us a theory of all law on the basis thereof. The historical jurist has called the second element "custom" and has given us a theory of all law on that basis. The analytical jurist has sought to treat the second and third elements as but sources from which legal precepts are made, but which themselves are no part of the law, and so has given us a theory of law exclusively in terms of the first element.[14]

The historical jurists, with their emphasis upon the customs and conventions of the people and upon the process of finding the law through a search among such customs and conventions, were superseded by the school of analytical jurisprudence which directed its attention primarily to statutes and to the interpretation of law by the courts. Coincident with the rise of the Analytical School came the era of prolific law-making when most legal thinking was turned into the channels of the verification of facts, of experimental methods of trial and error, and of an examination for legal purposes of a minutiae of data. Thus with the triumph of the latter school emphasis was directed from rules, principles, and universal formulae to a congeries of facts and conditions to which law was to be made to conform. The search for principles was tabooed as was also, in certain quarters, the study of comparative law. What was thought to be necessary was to discover from the mass of data available what legal corrective was desired and then to have the sovereign make a rule accordingly which ipso facto became the law for the time being until changed by the same sovereign. That the analytical jurists over-emphasized the passing and conventional and failed to take due account of certain other vital factors in evaluating the legal process became more apparent as this point of view was formulated into a recognized system of jurisprudence. The extreme theories of this school have augmented the reaction which is leading jurists again to turn their attention to principles and to rules which are of more than passing moment,[15] and to the necessity of establishing closer relations between ethics and law.

2. Natural Law as an Ideal or Philosophical Standard. Beginning at least with the Greeks and the Romans natural law was thought of as an ideal or philosophical standard toward which temporary enactments or ordinary civil laws were to approximate. Similar use was made of the concept during the Middle Ages. And it is an ideal standard to which appeal may be made when other sources failed to give justice that judges and jurists frequently referred to natural law, natural justice, and natural rights. There are times, as in the seventeenth and eighteenth centuries, when natural law as an ideal was subordinated to certain fixed and immutable conceptions of law and right, but these were only temporary deviations from the main purpose of natural law ideas. For centuries law was liberalized chiefly "by a juristic doctrine that all legal institutions and all legal rules were to be measured by reason and that nothing could stand in law that could not maintain itself in reason."[16] The use of natural law as a standard to guide law in its progressive development is again receiving serious consideration. Law must take its bearings from the ethical standards of justice. This gives rise to certain requirements, as, for example, equality before the law, which involves the idea of fair play. Speaking of the attempts to put in opposition to positive law, the law of nature in the seventeenth and eighteenth centuries, Sir Paul Vinogradoff suggests that "unless I am much mistaken we witness another wave of this kind in our own time."[17] During ancient and mediaeval times, he observes, two purposes of natural law were gradually evolved, one in which it served a theoretic foundation for axiomatic truths from which a rational system of positive law could be derived. According to this purpose existing legal rules were accepted as manifestations of permanent legal principles. On the other hand, the concept was used as a critical standard to distinguish between reasonable and unreasonable rules. It was used by Rousseau and Kant to serve as a philosophical basis for revolutionary ideas. Modern exponents of the law of nature, such as Charmont, Saleilles, and Stammler recur to natural law as a critical standard. The new natural law is regarded as a pervasive method by the help of which rules of law are to be criticized and estimated. Thus the evolution of natural law has been influenced by the tendency toward the scientific treatment of social life in distinction from the rationalistic individualism of the eighteenth century. The problem today is regarded as one of ascertaining certain standards of social value, and in this process the new natural law takes a prominent place, not as a fixed and immutable standard as of the eighteenth century, but as a standard which changes to suit the conditions of various races and divergent times and conditions.

There is a better appreciation today of the fact that in certain divisions of the law there are few rules and that judicial decisions are based chiefly on standards and degrees.[18] The application of such phrases as those of "fair conduct" in the case of a fiduciary, "due care" in the law of negligence, "good faith" and "fair competition" in business transactions, "reasonable facilities" in furnishing public utility services, "fair return" on property invested in a business, and, "due process of law" in depriving an individual of life, liberty, and property are well-known illustrations of the method of determining rights on the basis of standards rather than rules. In cases involving such concepts the judge must form his own standard and measure the degree of agreement or variation of conduct with the standard. "He must balance all his ingredients, his philosophy, his logic, his analogies, his history, his customs, his sense of right, and all the rest, and, adding a little here and taking out a little there, must determine, as wisely as he can, which weight shall tip the scales."[19] Some of these standards found their way into the law through the frank recognition of natural law theories.[20] And there are abundant indications that natural law methods of thinking are conditioning their application in various branches of modern law.

Instead of seeking a law of absolute significance, modern jurists find in natural law an ideal with changing content which furnishes a standard to test what is theoretically and practically just under certain given conditions.[21] This natural law is regarded as "an idealized ethical custom and an ideal picture of the end of law, painted, it may be, with reference to the institutions and ethical customs of the time and place, which may serve as an instrument of shaping and developing legal materials and of drawing in and fashioning materials from outside of law."[22]

We are witnessing, then, the rehabilitation of natural law theories, not as a formal part of positive law, but as conceptions wielding influence on the opinions of judges and legislators.[23]

Some modern commentators on French law admit that from the standpoint of philosophy the jurists have always distinguished natural law from positive law but they join the critics in denying the practical efficacy of natural law theories. Referring to the contention that natural laws consist of rules which emanate directly from God and form the source and sanction of all civil enactments and quoting French authors who deny the existence of such a priori rules, G. Baudry-Lacantinerie and M. Houques-Fouciade observe

that this latter notion of natural law appears to us the only one admissible and it is to this which we would turn if it were absolutely necessary to make a place in juridical science for the idea of such a law. Natural law comprises then all of the rules consecrated or not by positive law, for the observance of which in a given society, it will be desirable that man be restrained by the means of exterior coercion. It will be, then, according to the changes in current opinion, susceptible of variation in the time and place, with the constitution itself of the society envisaged. But the name "rational law," or even theoretic or ideal law, appears to us better than the term "natural," which is affected often by the metaphysical conception associated with it. In other terms this law would be, as we see it, perfect law in opposition to necessarily imperfect law established by positive legislation. This approaches very nearly to the view of M. Huc, who defines natural law as "the law such as it ought to be according to the improvements recognized necessary and possible."[24]

Throughout legal history certain periods have been characterized by emphasis upon particular phases of the growth of the law. There were times when law was thought of primarily as an ideal of reason and of truth whether its source was conceived to be divine or human. Law to be real, effective, and in any sense permanent, had to accord, in a measure at least, with these ideas or ideals. At other times law was conceived largely as a growth. Law was thought to be the creation of the national consciousness or of the spirit of the people. Evidences of it were to be found in the customary habits of the people. And at such times it was regarded as the sole duty of the state to discover and enforce these customary rules. Law has also been considered as the will of a determinate group in any political society — in an ultimate sense the will of a sovereign. From this point of view it was authority or force not truth or justice which made law. There has been an age-long antagonism between the advocates of law as an emanation from authority or force and law as an embodiment of truth and justice. Political thought has varied as one or the other of these conceptions prevailed.

During the past century there has been an increasing tendency to revert to the force theory as a basis for law. But the work of the supposed omnipotent sovereigns has failed to meet with popular approval and has turned public activities too frequently into the direction of discord and strife to receive anything like universal assent. Once more the seers and the prophets are inclined to assert that law is not force, nor is it merely growth from customary habits, but it is right reason, as discovered from the nature of man himself, and that law to be in accord with reason must be found by rational processes based on the experience of man in his social relationships.[25] Thus we are called upon to return to the ancient landmarks — to natural law as an ideal standard as conceived by the Greeks and Romans. The law as idea is again to take a foremost place in the lawmaking processes. But law as force and law as growth from customary conduct may be used as supplementary concepts. "Logic, and history, and custom, and utility, and the accepted standards of right conduct," it is now affirmed, "are the forces which singly or in combination shape the progress of the law."[26]

Vinogradoff suggests that what is needed in contrast with the analytical jurisprudence of the Austinian type or of the older Naturrecht or historical type is a "synthetic jurisprudence" which takes into consideration the various factors which contribute to the making and enforcement of a rule of law.[27] And the Austinian School was not able to discard law as idea or the concepts of natural law. In fact, the Analytical School, though formally repudiating natural law, has been influenced at all times by an anonymous natural law in the form of ethical views as to what is fair and just. Positivists do not in fact deny that moral ideas influence the law; they merely contend that ethical rules of conduct are not law until they receive the approval of the lawmaking or law-enforcing agents of the sovereign. Ethical views are always "streaming into the law through all the human agencies that are connected with it, judges and jurists as well as legislature and public opinion. Indeed the body of the law could not maintain itself if it did not conform in large measure to the prevailing sense of justice."[28]

When an estimate is made of the elements of a legal system the laws and the decisions of a given period are found to be transitory. Conditions arise which constantly require new rules and regulations. The element which endures in the system is the professional ideals of the legal order — a body of philosophical, political, and ethical ideals as to the purpose of the law.[29] To understand a legal system it is more important to discover and evaluate these ideals than minutely to analyze the rules of positive law. For the ideals which are set as the goal not only determine the trend of legal development but also result in the formulation of new legal rules and standards. The antipathy to legislation which is a fundamental principle of the common law,[30] applied in an environment where ideals of government limited in behalf of individual liberty, and of a philosophy of economic and political laissez faire prevailed, gives a clue to many features of American constitutional law. The doctrine of implied limitations on legislatures and the extension of the meaning of due process of law may be traced to legal attitudes compounded from such ideals and accentuated by their application to pioneer conditions.

3. Higher Laws to guide Judges as Legislators. Modern exponents of natural law theories reject the mechanical notion of the place and function of the judge whereby he is expected merely to seek and apply predetermined rules and is not permitted to mold the law in the course of his application of these rules. They believe that whether legal traditions admit it openly or conceal the practice judges necessarily take a prominent part in the lawmaking process as they adapt legal rules to the unusual conditions of concrete cases. They maintain that "the judge who would think and act rightly in his function of rendering judgment must be able, as far as inelastic provisions of the statute do not prevent him, to discover in the law and make effective that which he himself, if placed in the situation of the parties, would feel right and just."[31]

In countries where the civil law prevails the question as to the practice of free legal decision arises in connection with the requirement that the judges render a decision as to the rights of the parties when no code provision or statutory rule is applicable. The French Civil Code makes it compulsory that the judge decide the issue under such circumstances[32] and other nations have followed the French practice. Modern codes in Continental Europe make the duty of judges in this regard more specific, as may be seen in the Swiss, Austrian, and Italian systems.[33]

Though the instances may be infrequent when the judge lacks guidance from the statute or the code and is called upon in his capacity as judge to act as a legislator, the principle is well established in European countries that when occasion arises he should not shirk the responsibility. It is then that he is to be guided by the customary conduct of reasonable men.[34] The statute for the Permanent Court of International Justice also authorizes the justices to apply "the general principles of law recognized by civilized nations" along with international conventions, international custom, judicial decisions, and the teachings of publicists.[35]

In Anglo-American jurisdictions the conflict between the mechanical theory and the theory of free legal decision has been waged over the relation of the judges to public policy and over the nature and scope of judicial legislation. Those who support the mechanical theory hold that it is not the function of the judge to make or to change the law.[36] This theory refuses to recognize anything but formulated legal rules and the facts and the circumstances of a specific case. The advocates of mechanistic ideas in the United States have become the supporters of the eighteenth-century dictum that the ideal to seek is "a government of laws and not of men" and they deprecate the tendency to depart from definite legal rules in the administration of justice. They see grave dangers in the theory of free legal decision and oppose the modern tendencies to increase the range of discretion of judges. They believe that the human element is an undependable thing in administering justice and that little discretion should be given to the judges and even then carefully defined limits should be placed on its exercise. The judge is lauded who aims to arrive by a rigidly mathematical process at the "inherently and necessarily just."[37]

The common law system is largely a product of judge-made law.[38] And, as we have seen, concepts of the law of reason or law of nature have had a large place in the development of various branches of the common law.[39] The fiction that the judges find the law and apply it in a mechanical or slot-machine fashion cannot have been taken seriously by the judges and must have been recognized as having a thin veneer of truth by those not versed in legal lore. At least the proponents of the fiction are becoming less and their avowal of the automaton function of the judge is not so insistent. But more significant is the frank recognition of the duty of judges in common law jurisdictions to assist in the lawmaking processes. "The system of law making by judicial decisions which supply the rule for transactions closed before the decision was announced," Justice Cardozo thinks,

would be indeed intolerable in its hardship and oppression if natural law, in the sense in which I have used the term, did not supply the main rule of judgment to the judge when precedent and custom fail or are displaced. Acquiescence in such a method has its basis in the belief that when the law has left the situation uncovered by any pre-existing rule, there is nothing to do except to have some impartial arbiter declare what fair and reasonable men, mindful of the habits of life of the community, and of the standards of justice and fair dealing prevalent among them, ought in such circumstances to do, with no rules except those of custom and conscience to regulate their conduct.[40]

While there are many opportunities for the influence of personality and of individual views on economics and social policy in the realm of private law through the development of the common law and through the interpretation of statutes, there is a much larger range for free legal decision in the main branches of public law. And this range has been greatly extended in American constitutional law where wide latitude has been assumed in the interpretation of such doctrines as implied limitations on legislatures, due process of law, vested rights free from legislative interference, equal protection of the laws, and the phrases "the nature of republican government" and "the spirit of the constitution."[41] Moreover, the judges, in interpreting the provisions of American constitutions, formerly had no guidance from precedents or established rules and, directed by their own reason, they reached conclusions largely controlled by the influences, opinions, and prejudices to which the justices had been subjected.[42]

President Roosevelt in December, 1908, observed:

The chief law makers in our country may be, and often are, the judges, because they are the final seat of authority. Every time they interpret contract, property, vested rights, due process of law, liberty, they necessarily enact into law parts of a system of social philosophy; and since such interpretation is fundamental, they give direction to all law making. The decisions of the courts on economic and social questions depend upon their economic and social philosophy.[43]

In the terms of the theory of free legal decision, the law is, as a justice of the Supreme Court aptly called it, "a progressive science" in which it is the duty of judges to foster and direct the process of growth. And it is the business of judges by so-called "constructive decisions" to see that the law is made to accord with that somewhat uncertain and elusive thing known as "the prevailing morality or strong and preponderant opinion."[44] In this view it becomes the function of the judges to legislate and to be guided by public policy — in fact, to see that the law accords with the dominant social and political doctrines.

The result in a large number of cases cannot be reached, it is contended, by a strict and logical application of a constitutional text, but instead the courts must decide upon the basis of external facts of which judicial notice is taken. Much depends on the extent to which such facts are recognized and considered. Moreover, where the words of the Constitution, such as "due process of law" have no technical significance and the judges must seek a conclusion without definite guidance, "the meaning given to such words is necessarily influenced by all that makes up in any fundamental way the thoughts of those who are to find the meaning."[45]

In many cases arising in public law in the United States justices are called upon to apply indefinite terms which have political and economic significance and it is here that the personal element or free decision chiefly enters. Evidences of personal opinions are particularly found when courts deal with such matters as the reasonableness of building regulations, public utility regulations, the wholesomeness of foods, public purpose for taxation, and public use for eminent domain. In an extensive review of some of these cases Professor Barnett observes, "there is certainly no principle of law whatever to be found in this mass of contradictions. In fact, courts simply deem it proper to review legislative decisions in the case of some statutes, and improper to do so in case of others."[46]

It is evident that free legal decision plays an important rôle in the decisions of judges applying the general terms of written constitutions. At no point has free decision been more frequently called into service than in the interpretation of the phrases "due process of law" and "equal protection of the laws," whereby much of the old natural rights philosophy has been injected into the Constitution. And remarkable consequences have resulted from the enlargement of the meaning of these terms by decisions which had the effect of constitutional amendments. For fundamental social policies have been formulated by the judges and have been declared to be a part of the fundamental law, hence impossible to change except through the difficult process of amendment. Whenever judges attempt to measure the standards of justice of positive laws or to fill the gaps in enacted law they turn to doctrines of natural right or natural law or to general principles of right for which objective validity is claimed.

Referring to the interesting theories of the law of nature, and the tendency of the Analytical School of jurists to discredit such ideas, Justice Cardozo says,

recent juristic thought has given it a new currency, though in a form so profoundly altered that the old theory survives in little more than name. The law of nature is no longer conceived of as something static and eternal. It does not override human or positive law. It is the stuff out of which human or positive law is to be woven, when other sources fail.[47]

As he views the trend of the times, the exponents of the new natural law and of the modern philosophy of law are joining in the efforts to discover the elements of the just in and beyond the positive law.[48] Justice Cardozo maintains he is not

concerned to vindicate the accuracy of the nomenclature by which the dictates of reason and conscience which the judge is under a duty to obey, are given the name of law before he has embodied them in a judgment and set the imprimatur of the law upon them. I shall not be troubled if we say with Austin and Holland and Gray and many others that till then they are moral precepts, and nothing more. Such verbal disputations do not greatly interest me. What really matters is this, that the judge is under a duty, within the limits of his power of innovation, to maintain a relation between law and morals, between the precepts of jurisprudence and those of reason and good conscience.[49]

In the opinion of Sir Frederick Pollock natural law will have a large and dominant part in the development of whole branches of modern law, as for example, in the efforts of legislatures and courts to restrict unfair methods of competition and unfair restraints of trade. Speaking of the misconception of the law of nature which was current in the eighteenth and nineteenth centuries, Pollock says,

the law of nature is not competent to resolve specific problems offhand. Neither, for that matter, are the general principles of any other science. The law of nature is not the chaos of individual opinions but the tradition of universal reason confirmed by the general custom of civilized mankind.... Natural justice founded in reason is verified by the use of just men, is recognized and applied by judicial authorities no less than the rules of international law, which ultimately rest on the same ground.[50]

If it is the customary morality of right-minded men and women which the judges are to enforce, natural law standards as conceived by them and as developed by the scholars and commentators, will serve as an invaluable guide.[51]

4. Higher Law Theories as a Basis for Limits on State Sovereignty. The revival of theories of natural law or of natural rights is receiving aid from divergent currents of political and social life. Among these currents one which tends to place limits on the omni-competence of the state and to discredit the traditional theories of state sovereignty leads directly towards theories of higher laws. For centuries political rulers and certain schools of jurists looked upon the state as the exclusive lawmaking agency and the dictum of Hobbes that no law made by the state can be unjust[52] was generally accepted despite the continuous undercurrents in opposition. Theories of state omni-competence and of the absolutist dogmas of sovereignty which came in their wake evolved from conditions which were unfavorable to the support of limits on public authorities.[53]

The extremes in theory and practice to which the adherents of state omni-competence went have brought a reaction in a well-defined trend of political thinking. "The notion of sovereignty must be expunged from political theory,"[54] says one of the foremost opponents of the traditional dogmas of state sovereignty.

Most opponents of the doctrine of state sovereignty contend that no such an independent and supreme power exists in any political society; that the unity and all-inclusiveness claimed for this power is, in fact, broken by the divided allegiance which men give to the various social groups to which they belong; that state authority applies to only a small part of human conduct, and that this authority is subject to certain definite limitations, even within this restricted field.[55]

Critics of former theories of sovereignty appear to be seeking certain fundamental principles as the basis of political obligation. Whether the source and sanction of political control be sought in a sovereign, in some kind of general will or social force, or simply in the rule of the majority, there is an insistent demand for some criterion to pass on the efficacy or validity of political acts. Such criteria were found formerly in the theory of natural rights and in the theory of a social compact.[56]

The recent extraordinary enlargement of state functions requires that the sovereign, if there be such, in many of its activities must be subjected to certain rules of law. At the same time a similar growth of international rules and practices requires further limitations on the sovereign, according to other legal rules. From the standpoint of those interested in the growth of international law the traditional theory of sovereignty is condemned as a political dogma no longer in harmony with the facts of international life and "incompatible with the existence of a society of states governed by a recognized and generally observed system of international law."[57] If the sovereign be made subject to a developing body of rules of law in both private and public law, the theory of an absolute sovereign has ceased to have its former all-inclusiveness. Older theories of sovereignty which still retain feudal and monarchic characteristics are apparently in need of revision. "A certain tendency to discredit the state is now abroad. The forces which combine to spread this tendency are various. There is the old doctrine of natural rights, which lies behind most of the contemporary movements that advocate resistance to the authorities of the state."[58]

According to Duguit the notion of sovereignty is merely a survival of the conception of the princely state. "By denying the personality of the state, the sovereignty," he claims, "we disengage ourselves from a valueless and meaningless anthropomorphism and we reject absolutely all the remaining balance of the feudal and princely conception of the state."[59]

Following a period of emphasis upon law as an emanation from a sovereign authority and upon rights as created by such an authority there is a reversion again to the inherent rights of the individual and to the necessity of the protection of these rights. This recurrence to the natural rights of the individual renders it imperative once more to seek limits to the competency of the political powers of the state or to find ways of placing restrictions on the presumed sovereignty of the state. Two well-known English political thinkers, who approach the matter from different points of view, may be referred to as indicating in their works the intention to revive interest in natural rights. "I have," Mr. Laski urges, "rights which are inherent in me as a member of society; and I judge the state, as the fundamental instrument of society, by the manner in which it seeks to secure for me the substance of those rights.... Rights, in this sense, are the groundwork of the state. They are the quality which gives to the exercise of its power a moral penumbra. And they are natural rights in the sense that they are necessary to the good life."[60] Laski believes that a creative view of politics begins in a proper theory of rights. He outlines a functional theory whereby the individual as a person has rights which the state does not create but must recognize in order that the individual may realize his best self. Among the inherent rights of the individual which it is the duty of the state to preserve and protect, he enumerates the right to work, the right to be paid an adequate wage, and to have reasonable hours of work, the right to an education, and the right to participate in the functions of government.

To give vitality to these views it is necessary to insist that there are limits to the exercise of public authority and hence he believes any working theory of the state must concern itself with the efforts to devise limits upon those who exercise powers. The modern concept of an unlimited and relatively absolute sovereign is therefore incompatible with the preservation of these natural rights and in his judgment the concept should be discarded.[61]

Dealing with the same problem from the standpoint of jurisprudence rather than political theory, Sir Paul Vinogradoff raises the inquiry whether "certain fundamental rights and claims ought not to be treated as inherent in the nature of a freeman and a citizen."[62] Showing that to a considerable extent the appeal to natural and imprescriptible rights was made in the eighteenth century in the struggle for freedom of conscience against state absolutism in religious matters, Vinogradoff affirms: "It is of great importance to ascertain that there are claims of right which flow naturally from the conception of human personality as a free agent and as entitled in normal circumstances to certain legal guarantees of the realization of welfare."[63]

Even the great advocate in France of the supremacy of the state, M. Esmein, admitted that the individual had rights anterior and superior to those of the state, which must be respected by the state. As an essential element of constitutional law this principle forbids the sovereign from interfering with individual rights and requires it to take the necessary steps to preserve such rights.[64]

Formerly international law recognized states as sovereign and subject only to those limitations to which they had consented. Now, it is contended, international law must be reconstructed on a new basis.[65] Advocates of this reconstruction discard at the outset the concept of the state with its absolute sovereignty, as a metaphysical abstraction. The old law of nations which was regarded as nothing more than regulations between states is to be replaced by a new law conceived as existing above states. "The final triumph of the new conception of international law will be assured," thinks N. Politis, "because of the irremediable ruin which results from the other fundamental principle of the classical doctrine, that of sovereignty."[66] The concept of sovereignty is held to be inadmissible and the state is regarded as not invested with absolute power but as charged with a social mission which requires that its actions be controlled by rules of law (droit). One of the most direct attacks on the older concepts of sovereignty is made in the interest of the establishment of a secure basis for international law.[67]

5. Limits on the Power to amend Constitutions in America due to Fundamental Principles and Rights. A renewal of efforts to revive a type of higher law philosophy is found in the attempts in American political thinking to place certain limits on the power of the people to amend written constitutions. Amending procedure in the United States was left largely to political control and direction until toward the close of the nineteenth century. Judicial control over the process of amending state constitutions was asserted only once prior to 1880.[68] The next few decades witnessed not only an increasing exercise of the right of judicial control over amendments but also the gradual emergence of a distinction between amendments and additions. Justice Story had suggested the notion of inherent limits on the power of amendment under the federal Constitution when, referring to the adoption of the Constitution by the people, he said: "The Union which is perfected by means of it is indissoluble through any steps contemplated by, or admissible under, its provisions or on the principles on which it is based, and can only be overthrown by physical force effecting a revolution."[69] Following this view it was not infrequently asserted that no amendment could be made which would lead to the destruction of either the Union or the states, or that amendments interfering with the sovereignty either of the states or the nation would be void. Justice Cooley, the foremost advocate of the doctrine of implied limitations on legislatures in order to protect vested rights, believed that there are certain inherent limitations — principles which underlie the federal Constitution and which prevent its radical amendment. Amendments, he insisted, "cannot be revolutionary; they must be harmonious with the body of the instrument."[70] But in a practical, concrete way little significance was attached to this idea until the extension of judicial review of legislative enactments provided a convenient method to apply limitations to the amending process.[71] Thus it became customary to assert that amendments were invalid which contravened the general principles of free republican government, that interfered with the natural rights of life and liberty, or that took away fundamental rights of either the nation or the states.

The attempt to apply the doctrine that there are limits to the amending power under the federal Constitution have arisen primarily in the enactment and interpretation of the Thirteenth, Fourteenth, and Fifteenth Amendments[72] and have acquired greater significance in the movement to hold ineffective the Eighteenth Amendment. The attack on the Civil War Amendments on this ground have not been so persistent and vigorous because these amendments were regarded mainly, in their original purpose, as declaratory of the natural rights of man.[73]

In the briefs on the cases before the Supreme Court attacking the validity of the Eighteenth Amendment a special effort was made to revive Story's notion of implied limits on the amending power by arguments based upon the nature of the federal system.[74] Elihu Root argued that "any amendment which impairs or tends directly to destroy the right and power of the several states and of local self-government should be held void as in conflict with the intent and spirit of implied limitations of the federal Constitution adopted by the people of the United States."[75] It was also claimed that certain principles of the Constitution are unamendable and as an example due process of law was cited as a matter so vital to free government that it may not be destroyed. The Supreme Court substantially rejected all of the arguments presented in favor of such limitations, but the issue has not been dropped in federal constitutional law and the advocates of these doctrines have turned to the states where a more fruitful field is open for the application of implied limits on legislative and constituent powers.

A significant attempt is being made to revive interest in the philosophy and dogmas of the seventeenth and eighteenth centuries in support of the view that indubitable private rights must be preserved, anything in laws or constitutions to the contrary notwithstanding. Mr. Abbot, defender of this return to natural and inalienable rights, asserts "the indisputable truth is that there are rights which no government can lawfully invade. The man who does not believe in them does not understand the difference between right and wrong, does not understand human nature, and does not learn from experience." He thinks the protection of these inalienable and reserved rights is to be preserved under the inexpugnable law of the land, or due process clause. There is, he insists, no power resident anywhere in the Union which can overturn this constitutional principle. "There are," he comments, "a number of constitutive principles of private right which have been so wrought into the fabric of our institutions that they cannot be abrogated." Among these indubitable rights he suggests the use of the natural powers in the pursuit of happiness as long as they do not thereby injure others, and the right of hearing when a man's liberties are at stake; and he concludes that "we find in this country, at least, it is held to be axiomatic, that there are limitations to the power of all government and if so, there are limitations to the power of amending the Constitution of the United States."[76]

The doctrine of higher law or of fundamental principles as a basis for limits to be applied to the amending procedure of the federal Constitution is seldom advocated. American legal thought more commonly follows the doctrine that there are no inalienable rights, that legal rights exist only through law, and that such a thing as a right in any legal sense against the sovereign political authority is unthinkable. From this viewpoint unlimited sovereignty resides only in the people.[77] It is well to recognize, however, that the doctrine of limitations on the power of the people to amend constitutions is much more commonly accepted than is ordinarily believed, that it is a factor not to be ignored in constitutional interpretation, and that when ostensibly repudiated as a legal doctrine it has found its way in judicial decisions in covert processes of legal reasoning.[78]

With the extraordinary growth of the functions of government during the last century, and with a corresponding increase in the number of public officials who are engaged in carrying on these functions, has come a confirmed conviction that some limits must be set to the activities of these functionaries. Jefferson's observation that many despots in a legislative assembly are more to be feared than one has not ceased to gain converts as governments have become increasingly popular in origins and sanctions.[79] It was to be expected that laissez faire exponents of the eighteenth and early nineteenth centuries would seek to limit governmental functions, to divide public powers, and to favor a refined system of checks and balances. It is more difficult to understand why the advocates of popular government and of the extensions of its functions along all lines should at the same time be concerned with fixing limits to the exercise of these functions.

This effort to define the field within which the public officers are permitted to function has two significant phases — one designed to keep officers near to and responsive to public sentiment and to guard certain personal rights and privileges from official encroachment, and another, a direct result of former laissez faire theories, which is designed to prevent the public from invading the individual and corporate rights and privileges of property and contract. The latter forms the basis for the protection of acquired or vested rights. The first of these phases is exemplified especially in the growing tendency to formulate as a part of the public fundamental law bills or charters of individual rights which are regarded in varying degrees as inviolable. In this respect the Declaration of Independence, the bills of rights in the state and federal constitutions of the United States, and the French Declaration of the Rights of Man began a movement which has influenced greatly the entire process of the development of constitutional law.

The other phase of the movement, the disposition to use higher law ideas to protect acquired or vested rights was a gradual development in connection with the emergence of constitutional government. It has had a unique application in the "United States where property owners and corporate organizations have been accorded greater privileges than in any other country. These privileges are protected by an independent judiciary upholding the limitations of a written constitution and of higher laws above the constitution.[80]

6. Concluding Comments. Duguit would have all law conform to an objective right,[81] and other Frenchmen plead for the renaissance of natural law, now a term conceived as involving fundamental principles changing in content and significance with each generation.[82] Krabbe would have all law conform to the community sense of the feeling for right.[83] The gap is not so great after all between the broad rule of reason applied by American justices permitting only those things which do not "shock men's sense of right" and the concepts of higher law now prevalent on the continent of Europe. But it is a different matter for a rule of reason, an objective right, or a feeling for right to form the basis of legal reasoning of justices or of the observations of legal philosophers instead of a more or less mechanical measure to test the validity of legislation. The United States is practically alone in placing super-censors over its legislative chambers with often nothing more than the elusive rule of reason as a standard.[84]

Throughout the evolution of the law there has always been a disposition to seek for law in sources external to man and his lawmaking and law-enforcing agencies. If the law itself is not regarded as originating in such external sources there has been an urgent desire to discover standards outside of the law, or as a significant part of it, to evaluate its justice and fairness in determining the legal relations among men.[85] Law is comprised not alone of rules but of principles, conceptions, and standards. And from the standpoint of the unity, continuity, and permanence of the law the principles, conceptions, and standards are more important than the rules.[86] It is in the former that the ideas involved in the phrase "natural law" are always in evidence. When the principle is announced that one person is not to be enriched unjustly at the expense of another, what is unjust enrichment and by what criterion will such conduct be judged? Similarly, when legislatures and courts lay down the principle that business competition shall not be conducted unfairly, what is the standard by which competition is declared unfair? If unfair competition is anything else than what Judge Hough called the selling of goods by means that "shock judicial sensibilities,"[87] how is the line determined between what does and does not shock judicial sensibilities? What criteria are involved in judgments which insist that the conduct of a fiduciary shall be fair, that public utilities shall receive a fair return upon a reasonable valuation of their property, or that regulations affecting such utilities must be reasonable? The ultimate standard of what is reasonable or fair is the judicial conscience. But what are the controlling factors which turn the scales of justice? Evidently judges, in forming moral judgments on conduct as to whether it is fair or reasonable, are guided by common sense and intuition based on experience. The rule of reason which they are constantly applying has a close resemblance to the ancient and mediaeval concepts of the law of nature, which were accepted as guiding factors of the English common law in its "rules of reason."

It is contended that advocates of theories of natural law usually try to defend certain special interests and that they make their own personal views the test of the validity of legal precepts. Writers have not infrequently aimed to project into the realm of universal laws their own personal and subjective sentiments and it has been difficult to draw a line between such subjective views and the presumed objective rules to which recurrence is usually made as having general validity. It is the subjective phases of natural law theories which are often emphasized to the discredit of all such theorizing.[88] Though there are many indications in natural law thinking of frank or covert appeals to higher laws for the sake of expediency, such instances by no means comprise all of the cases in which superior law concepts are employed.

Natural law theories seem to be conceived and applied for diverse reasons by the absolutists, by the individualists, by the pragmatists, and by those whose legal thinking is inarticulate and subconscious.

From the time men put their thoughts into definite written form there were some who sought the essential and the real qualities of man's social life in external sources, such as God or nature. From this external source come certain absolute ideas or standards which can be comprehended by human thought. Those who find it convenient and comforting to anchor their thinking in concepts of an absolute are likely to conceive as a part of such an absolute certain of the directive principles of social control by means of law. The search for absolute ideas in connection with law as in the field of religion may be inspired by quite divergent motives. But the religious and metaphysical approaches to philosophy frequently lead in the direction of a natural law with absolute connotations.

Starting with an assumption that men lived originally in a state of nature which was governed by the laws of nature, the individualists found a basis for law and rights in the inherent qualities which belonged to men as individuals and as social beings. Doctrines of freedom and equality and of rights to live, possess property, and enjoy certain privileges unmolested were supposed to flow from the conditions of birth and habitation in an environment subject to the laws of nature.

In the United States, where the individualistic viewpoint has been a dominant factor of political and social life, the doctrine of equality has resulted in three claims: that all men ought to be equal before the law, ought to have equal privileges of participation in political affairs, and ought to have equal opportunities. Though these claims have come far from practical realization, they have affected all phases of social and political life and have been reflected in numerous statutes and judicial decisions. The pronouncement in the Fourteenth Amendment that no person shall be denied the equal protection of the laws is the fruition of more than a century of equalitarian theories and of higher law ideas which accompanied them.[89]

The pragmatists' approach to natural law needs little comment. Lawmaker or judge, finding the formal rules of the law unjust in their applications, appealed to a higher law of reason or of nature as his guide to secure a more rational and equitable result. Or, perchance, a group of individuals chafing under the dominion of men guided by laws or personal whims sought in the laws of nature a sanction for resistance to the established order and ultimately for rebellion. Thus the anarchists turned to natural law to sanction opposition to all forms of political authority at the same time that individuals and corporations sought support for the protection of their vested interests in the same law. The fact that natural law ideas can be turned to so many different uses weakens their efficacy when urged for any specific purpose.

The most difficult of all phases of the natural law philosophy to understand and evaluate is its inarticulate and unconscious or subconscious use.[90] As in the development of the common law, the thinking of lawyers and judges may be saturated with an unexpressed and unexplained philosophy which is none other than natural law. Or American judges revolting against the indefinite and vague terms "natural law" and "natural justice", may find a haven in due process of law, which is little else than a natural law given constitutional sanction — with the same vagueness and uncertainty inherent in the standard phrases. The assumptions, the principles, and the philosophies with which legal controversies and the devices for their settlement are approached are often more significant than the formal rules available for application.[91] In such assumptions, principles, or philosophies, one or more of the natural law theories is likely to lurk beneath the formal expressions and to determine partially at least the trend of legal judgments. It is the unexpressed and undefined natural law notions which may serve as a potent weapon to liberalize the law, as was the case with the evolution of English equity, or it may serve as a more sinister weapon when it is championed as a means of sustaining the legal status quo.

Along with the attitude of certain minds to search for ideals and to think in terms of universals there is the related habit of human thought to translate familiar and accepted ideas into the necessary and natural.[92] And another tendency of the human mind which leads in the direction of natural law theories is suggested in some remarks of Justice Holmes. Speaking of "The Lantern-Bearers" of Robert Louis Stevenson, in which he shows how in their hearts all men are idealists, Holmes says: "The same laws are found everywhere, and everything is connected with everything else; and if this is so, there is nothing mean, and nothing in which may not be seen the universal law."[93]

The claim that natural law theorists are merely assuming universal or general validity for their own subjective ideas of justice and rights by no means accounts for the assumptions, preconceived notions, or principles which have been associated with the natural law concept. Law in its generic sense is conceived as "the sense of justice taking form in peoples and races" and in the formation of men's ideas of justice there are some rules and principles which are thought to have universal validity.[94] It matters little whether these principles result from the instinctive, romantic, or religious sentiments of the people, or from the dominant juristic conceptions of a community such as the Anglo-Saxon fundamental principles of justice, or the principles which lie at the basis of free government, or from the free decision of justices applying the ethics and juristic ideas of certain classes — there is for any time and place a uniformity in the application of these principles which gives them a singular permanence and definiteness. It makes a great difference in the results for the development of the law whether these principles or norms are treated as relative and variable or absolute and unchangeable;[95] whether they are applied by judges and legislators in a formalistic and mechanical way as determinate norms for the measurement of conduct or are used to test existing rules of law by standards of fairness and justice, which are constantly being subjected to critical analysis and modification by the legal profession; and whether they are employed as a means of legal growth or of the maintenance of a sanctified legal order.


1. "It is not an accident that something very like a resurrection of natural law is going on the world over" Roscoe Pound, in Harvard Law Review, XXV (December, 1911), 162; also Sir Paul Vinogradoff, Common Sense in Law, p. 246.

2. Roscoe Pound, Law and Morals (2d ed. Chapel Hill, 1926), Lecture I, "The Historical View." Dean Pound has dealt so fully with the relations of law and morals in this series of lectures that only a summary of certain phases of this relation need be considered.

3. Cf. Kant, Metaphysische Anfangsgrunde der Rechtslehre (1797).

4. Pound, op. cit., pp. 12-14.

5. Pound claims that the historical jurist merely indicated a new basis for natural law in insisting on universal ideal principles to which positive law must conform. Op. cit., p. 21.

6. John C. Gray, The Nature and Sources of the Law (2d ed ), p. 94.

7. Collected Legal Papers (New York, 1920), p. 179.

8. Pound, op. cit., pp. 56, 57.

9. See illustrations of the close relations of law and morals in Pound, op. cit., Lecture II, "The Analytical View."

10. Edward Jenks, "The Function of Law in Society," Society of Comparative Legislation and International Law, 3d ser., vol. V, Pt. IV (1923), pp. 176, 177.

11. Lord Haldane, "Higher Nationality: A Study in Law and Ethics," American Bar Association Reports, XXXVIII (1913), 402, 403.

12. Lord Haldane, op. cit., pp. 403-405, 413. Sitte generally refers to custom — Sittlichkeit implies custom and a habit of mind and action.

13. Pound, op. cit., p. 103. Coleman Phillipson suggests that "natural law, in spite of its being frequently maligned and scoffed at, will continue to hold the minds of men as long as men remain psychologists and moralists." Great Jurists of the World, p. 306

14. Op. cit., pp. 23-25.

15. Evidences of the new point of view are at hand even in countries where the Analytical School has been strongest, such as the movement in the United States directed by the American Law Institute to extract principles of law from the welter of statutes and decisions and the efforts now participated in by all of the leading countries to secure a codification of international law.

16. Pound, The Spirit of the Common Law, p. 81.

17. Sir Paul Vinogradoff, "Legal Standards and Ideals," Michigan Law Review, XXXIII (November, 1924), 1 ff. For reference by the same writer to the revival of a modified conception of the law of nature as one of the significant currents of thought in jurisprudence, see Historical Jurisprudence, I, 144, 145.

18. Benjamin N. Cardozo, The Nature of the Judicial Process (New Haven, 1922), pp. 161, 162.

19. Cardozo, op. cit., p. 162.

20. See Pound, Law and Morals, p. 60.

21. Stammler, Wirthschaft und Recht (2d. ed.), p. 181, and Lehre von dem Richtigen Recht (Berlin, 1902), pp. 116-121; Saleilles, "L'École historique et droit naturel," Revue trimestrielle de droit civil, I, 80, 98; R. Demogue, Notions fondamentales du droit privé, p. 22.

Vinogradoff characterized this phase of natural law thinking as follows: "The law of nature is an appeal from Caesar to a better informed Caesar. It is an appeal by society at large, or by the best spirits of a given society, not against single decisions or rules, but against entire systems of positive law. Legislators are called in to amend law by separate statutes; judges may do a great deal in amending the law by decisions in individual cases, but the wisdom of legislators and equity of judges are by themselves powerless against systems, because they start from the recognition of the authority of positive law in general. And yet law, being a human institution, ages not only in its single rules and doctrines, but in its national and historical setting, and the call for purification and reform may become more and more pressing with every generation. Public opinion, then, turns from reality to ideals. Speculation arises as to the essentials of law as conceived in the light of justice. Of course these conceptions of justice are themselves historical, but they are drawn not from the complicated compromises of positive law but from the simpler and more scientific teaching of philosophical doctrine. Thus the contents of the law of nature vary with the ages, but their aim is constant; it is justice; and though this species of law operates not in positive enactments, but in the minds of men, it is needless to urge that he who obtains command over minds will in the end master their institutions." Common Sense in Law, pp. 244, 245. See also, by the same author, "Reason and Conscience in Sixteenth Century Jurisprudence," Law Quarterly Review, XXIV (October, 1908), 379.

22. Pound, Law and Morals, p. 113.

23. Vinogradoff, Common Sense in Law, pp. 235 ff., and Central Law Journal, LXXX (May, 1915), 346.

24. Traité théorique et pratique de droit civil, I (3d ed., 1907), 5.

25. Cf. Joseph H. Drake in editorial preface to Del Vecchio, Formal Bases of Law, P. 28.

26. Cardozo, op cit., p. 112.

27. Custom and Right (Cambridge, 1925), pp. 12, 13.

28. M. R. Cohen, "Jus Naturale Redivivum," Philosophical Review, XXV, 761, 762.

29. Pound, "The Theory of Judicial Decision," Harv. Law Rev., XXXVI (April, 1923), 661.

30. Idem., "Common Law and Legislation," Harv. Law Rev., XXI (April, 1908), 403.

31. Gmelin, The Science of Legal Method (Boston, 1917), p. 89; for a thorough discussion of the function of the judge as a lawmaker, see other selections in this volume. Cf. also my article on "General Observations on the Effects of Personal, Political, and Economic Influences in the Decisions of Judges," Illinois Law Review, XVII (June, 1922), 96. In the following pages a few extracts are used from this article.

32. Art. 4 of the Civil Code provides that "le juge qui refuse de juger sous prétexte du silence, de l'obscurité ou de l'insuffisance de la loi, pourra être poursuivi comme coupable de déni de justice."

33. The pertinent provisions of these codes are:

The statute governs all matters within the letter or the spirit of any of its mandates. In default of an applicable statute, the judge is to pronounce judgment according to the customary law, and in default of a custom, according to the rules which he would establish if he were to assume the part of a legislator. He is to draw his inspiration, however, from the solutions consecrated by the doctrine of the learned and the jurisprudence of the courts. Swiss Civil Code, art. 1.

Should the case, however, remain doubtful, it shall be decided in accordance with the law of nature and with due regard to the circumstances of the case diligently collected and thoroughly considered. Austrian Civil Code Introduction, secs. 6-8.

When a case, however, remains doubtful, one ought to decide according to the general principles of law, taking into account all of the circumstances of the controversy. Italian Civil Code, 1866, sec. 3.

In discussing the language of the Italian code the question arose whether to use the phrase "following the principles of natural law" or "following general principles of law."

Other phrases suggested were "principles of reason," "principles of equity," "principles of natural equity," "principles of natural reason." The general principles of law were referred to as those rules which reason deduces from the nature of things and from their reciprocal relations. Giorgio Del Vecchio, Sui principi generali del diritto (Modena, 1921), pp. 9, 10.

34. See Cardozo, op. cit., p. 106.

When positive laws are silent or vague Stephen suggests that judges may decide "according to the natural reason of the thing"; Geny would have them render judgment according to the "nature of positive things"; and Pollock would have them follow the "ideal standard of scientific fitness and harmony."

The will of the state, expressed in decision and judgment, says Gmelin, 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 prevailing among the community regarding transactions like those in question. And Geny recommends that, on the one hand, 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 phenomena, to ascertain the laws of their harmony and the principles of order which they exact. Sociological Method, trans. Modern Legal Philosophy Series, IX, 131. Geny, Méthode d'interprétation et sources en droit privé positif, II, 92.

35. Cf. art. 38 and Procès-verbaux of the Proceedings of the Advisory Committee of Jurists, pp. 281 ff. These principles were not formulated or defined but were thought to be founded on "the fundamental law of justice and injustice deeply engraved on the heart of every human being and which is given its highest and most authoritative expression in the legal conscience of civilized nations." M. le Baron Descamps, Procès-verbaux, pp. 310, 311.

36. According to Elihu Root the appeal to courts in the matter of social reform rests upon a misconception of the true function of a court. It is not within the judge's function or within his power to enlarge or improve or change law. The Independent, LXXII (April 4, 1912), 704; James Coolidge Carter, Law: Its Origin, Growth and Function (New York, 1907), pp. 172, 173. For opposite view, see John F. Dillon, The Law and Jurisprudence of England and America, p. 267.

37. E. V. Abbot, Justice and the Modern Law, pp 10 ff.

38. A. V. Dicey, Lecture on "Judicial Legislation," in Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century (London, 1926), pp. 359, 360.

39. Supra, pp. 39 ff.

40. Op. cit., pp. 142, 143.

41. Justice Cardozo thinks that in the field of constitutional law in the United States the method of free decision is dominant today. Op. cit., p. 17. Agreeing with this view Judge Bruce says, "we are governed by our judges and not by our legislatures.... It is our judges who formulate our public policies and our basic law." The American Judge (New York, 1924), pp. 6-8.

42. W. D. Coles, "Politics and the Supreme Court of the United States," American Law Review, XXVII (March-April, 1893), 189, 190.

43. Emphasizing the same thought at a dinner to Justice Harlan after twenty-five years' service on the Supreme Bench, President Roosevelt said: "For the judges of the Supreme Court of the land must be not only great jurists, but they must be great constructive statesmen, and the truth of what I say is illustrated by every study of American statesmanship, for in not one serious study of American political life will it be possible to omit the immense part played by the Supreme Court in the creation, not merely the modification, of the great policies through and by means of which the country has moved on to her present position." Amer. Law Rev., XXXVII (January-February, 1903), 93.

44. Noble State Bank v. Haskell, 219 U. S. 104, 111 (1911).

45. W. F. Dodd, "The Problem of State Constitutional Construction," Columbia Law Review, XX (June, 1920), 636.

46. James D. Barnett, "External Evidence of the Constitutionality of Statutes," Amer. Law Rev., LVIII (January-February, 1924), 88.

47. Op. cit., pp. 131, 132.

48. Cardozo, op. cit., p. 132, and Berolzheimer, System der Rechts- und Wirtschaftsphilosophie, II, 27.

49. Cardozo, op. cit., p. 133.

50. Review of Professor Brown's International Society: Its Nature and Interests, Law Quar. Rev., XXXIX (1923). "The best and most rational portion of English law is in the main judge-made law. Our judges have always shown, and still show, a really marvelous capacity for developing the principles of the unwritten law, and applying them to the solution of questions raised by novel circumstances." Pollock, Law Quar. Rev., IX (April, 1893), 106.

"The besetting danger of modern law," to Pollock, "is the tendency of complex facts and minute legislation to leave no room for natural growth, and to choke out the life of principles under a weight of dead matter which posterity may think no better than a rubbish heap." The Expansion of the Common Law, p. 8.

51. Cardozo, op. cit., p. 106. "Another significant current of thought connected with the evolutionist movement in jurisprudence may be seen in the revival of a modified conception of the law of nature — not in the rationalist sense, of course, but in that of a striving toward ideals. If, as Ihering put it, law has not only to register actual rules and to explain their origin, but also aim at the solution of social problems, it is not wrong or presumptuous to reflect on the general principles which in the present state of civilization we ought to accept as the guiding lights for legislators and reformers, and as the critical tests for approving or disapproving existing rules of positive law." Vinogradoff, Historical Jurisprudence, I, 144, 145.

52. Leviathan, chap. 30. For a similar view see John Austin, Lectures on Jurisprudence or The Philosophy of Positive Law (5th ed., London, 1885), pp. 268 ff.

53. A short summary may be found in F. W. Coker, "Pluralistic Theories and the Attack upon State Sovereignty," in A History of Political Theories: Recent Times, edited by Charles E. Merriam and H. E. Barnes (New York, 1924), pp. 81 ff.

54. H. Krabbe, The Modern Idea of the State, trans. by George H. Sabine and Walter J. Shepard (New York, 1922), p. 35. See also A. D. Lindsay, "The State in Recent Political Theory," Political Quarterly, I (February, 1914), 128-145.

55. Coker, op. cit., p. 89, and Louis Le Fur, "La souveraineté et le droit," Revue du droit public, XXV (1908), 389.

Among the critics of the prevailing doctrines of sovereignty, see Léon Duguit, Law in the Modern State (New York, 1919); H. Krabbe, The Modern Idea of the State (New York, 1922); Harold J. Laski, Problem of Sovereignty (New Haven, 1917); Authority in the Modern State (New Haven, 1919); The Foundations of Sovereignty and Other Essays (New York, 1921); and Ernest Barker, "The Superstition of the State," London Times Literary Supplement (July, 1918), p. 329.

56. "When we turn to history for evidence of the cultural tradition of the state and of its relation to law, we find the overwhelming weight of authority opposed to the absolutistic view of sovereignty and of the State and denying the alleged independence of both from the limitations embodied in the conception of law." E. M. Borchard, Yale Law Journal, XXXVI, 1039.

57. See Harv. Law Rev., XXXVI (February, 1923), 495; James W. Garner, "Limitations on Sovereignty in International Relations," American Political Science Review, XIX (February, 1925), 1; and E. M. Borchard, "Political Theory and International Law," in A History of Political Theories: Recent Times (New York, 1924), p. 120.

58. W. Y. Elliot, "Sovereign State or Sovereign Group," Amer. Pol. Sci. Rev., XIX (August, 1925), 482.

Geny, an advocate of the doctrine of natural rights, regards sovereignty as a postulate which is contrary to the facts and conditions of social life. Science et technique en droit privé positif, I, 75.

Surveying the recent progress of political thought in continental Europe, Vinogradoff suggests that "in modern Europe itself there is a marked recurrence of the view that the state is subject to the authority of a higher law. This recurrence may be traced to the wide-spread discontent with the policies of modern states in championing the interests of economic imperialism. The theory culminates in the assertion that it is society which creates law and not the state. Society creates law by developing and applying certain propositions conceived as reasonable and just. In this respect it is not reason as given by Providence and not reason given once for all by human nature, but reason conceived by public opinion and public morality at a particular time." "The Juridical Nature of the State," Mich. Law Rev., XXXIII (December, 1924), 138-142.

59 Duguit, Traité de droit constitutionnel, vol. I, chap. 5.

60. A Grammar of Politics (New Haven, 1925), pp. 39, 40.

61. See especially op. cit., chaps. 2 and 3.

62. "The Foundations of a Theory of Rights," Yale Law Jour., XXXIV (November, 1924), 64.

63. Ibid., p. 67. "As a general conclusion," Vinogradoff asserts, "it may be said that the will of the state is not the one factor in building up Right and Law in human society. There is a second factor of equal importance — the consciousness of men as to their rights. In practice Law appears as a shifting compromise between these two factors." Ibid., p. 69. At another time, he defends the main proposition of Duguit's political philosophy in these words: "The attempt to define the nature of the state in juridical terms is not a quibble of the lawyers. It is an obvious consequence of the view that state and government in a civilized country, in spite of their might have to conform to a rule of law, and that the more closely their functions are subjected to the application of ordinary legal rules and methods, the better will be the guarantees against oppression, corruption and arbitrary measures." Historical Jurisprudence, I, 92.

64. Esmein, Droit constitutionnel (Barthélemy's ed., 1915), pp. 29, 30; also Duguit, "The Law and the State," Harv. Law Rev., XXXI, 38.

An exponent of the theory that the concept of sovereignty should be abandoned is Charles Benoist. For a summary of his views see Duguit, "The Law and the State," op. cit., pp. 171 ff. Benoist became the advocate of a measure to establish in France a supreme court whose duty it should be to uphold the constitution and to prevent violations thereof by the legislative and executive powers. Journal officiel, documents parlementaires, Chambre 1903, session ordinaire, pp. 95, 99.

65. N. Politis, "Les limitations de la souveraineté," Revue de Paris, XXXIII (March, 1926), 7. Politis is an advocate of the views espoused by Duguit. He also regards the state as bound by rules of law.

66. Ibid., p. 9.

67. N. Politis, "Le problème des limitations de la souveraineté et la théorie de l'abus des droits dans les rapports intemationaux," Académie de droit international, VI (1925), 1-121; also Goicochea, El problema de las limitaciones de la soberanía en el derecho público contemporáneo (Madrid, 1923).

68. Collier v. Frierson, 24 Ala. 100 (1854), holding that the procedure defined in the constitution not having been strictly followed, an amendment approved by the people was invalid. Cf. W. F. Dodd, "Amending the Federal Constitution," Yale Law Jour., XXX (February, 1921), 321.

69. Story on the Constitution (5th ed by Cooley), I, 223.

70. T. M. Cooley, "Power to Amend the Federal Constitution," Michigan Law Journal (April, 1893). For Cooley's comments on natural rights see ibid. (June, 1894).

71. State ex. rel. Halliburton v. Roach, 230 Mo. 408, 130 S. W. 689 (1910), initiative petition to submit to the people an amendment to the state constitution was held not to be an amendment but a statutory enactment. The court passed upon the legal sufficiency of a petition to amend the constitution. See dissent of Justice Woodson.

72. See Judge M. F. Morris, "The Fifteenth Amendment to the Federal Constitution," North American Review, CLXXXIX (January, 1909), 82. In the opinion of Judge Morris a distinction must be made between an addition and an amendment to the Constitution. An addition, he suggests, requires the unanimous consent of the states. Ibid., p. 85.

73. Justin Dupratt White, "Is There an Eighteenth Amendment?" Cornell Law Quarterly, V (January, 1920), 113.

Mr. White contends that, on the general theories assumed as a basis for the American system of government, intra-state prohibition cannot be the subject of a valid constitutional amendment, that the consent of the people of all of the states is necessary for such a change, or that such consent must be given through conventions called for this purpose in the states. Certain amendments such as those seeking to reorganize state governments or to interfere with their vital powers are regarded as improper. All of the amendments to the federal Constitution prior to the Eighteenth are thought to be "assertive of those fundamental rights which are the foundation of a republican form of government." The dictum of Chief Justice Chase in Texas v. White, 7 Wall. 700, 725 (1868), that "the Constitution in all of its provisions looks to an indestructible union of indestructible states" is taken to mean that the federal character of the Union cannot be changed except by revolution.

74. Cf. Briefs in the case of Rhode Island v. Palmer, pp. 29, 66, and in the Kentucky Distilleries and Warehouse Co. v. Gregory, 41, and Dodd, op. cit., pp. 330 ff.

75. Brief in case of Feigenspan v. Bodine, p. 64. For argument favoring limitations on the federal amending power see George Ticknor Curtis, Constitutional History of the United States, II, 160. See George D. Skinner, "Intrinsic Limitations on the Power of Constitutional Amendment," Mich. Law Rev., XVIII (January, 1920), 213. Mr. Skinner insists that the Ninth and Tenth Amendments are unamendable — that "the essential form and character of the government being determined by the location and distribution of powers cannot be changed." Also W. L. Marbury, "The Limitations upon the Amending Power," Harv. Law Rev., XXXIII (December, 1919), 223. Mr. Marbury claims that the power to amend does not include the power to destroy the Constitution nor does it include the power to enact ordinary legislation. William L. Frierson replied to Mr. Marbury, Harv. Law Rev., XXXIII (March, 1920), 659.

76. E. V. Abbot, "Inalienable Rights and the Eighteenth Amendment," Col. Law Rev., XX (February, 1920), 183 ff. See also Henry Wynans Jessup, The Bill of Rights and its Destruction by Alleged Due Process of Law (Chicago, 1927).

77. For the generally accepted theory of American lawyers, see D. O. McGovney, "Is the Eighteenth Amendment Void because of its Contents?" Col. Law Rev., XX (May, 1920), 449.

78. See People v. Western Union Co., 70 Col. 90 (1921), and People v. Marx, 70 Col. 100 (1921), for an interesting application of the limits on the power of the people to amend state constitutions A defence of our natural and inherent rights for whose security and preservation our government was instituted, is made by Max Schoetz, "Natural and Inherent Rights protected by the Fourteenth and Fifteenth Amendments of the Constitution of the United States," Marquette Law Review, VII (1922-23), 154.

79. A bill of rights, Jefferson observed, "is what the people are entitled to against every government on earth, general or particular." Letter to Madison. Dec. 20, 1781.

80. "The whole American political and social system is based on industrial property right, far more completely than has ever been the case in any European country." A. T. Hadley, Undercurrents in American Politics (New Haven, 1915), p. 33. See especially the chapter in this volume on "The Constitutional Position of the Property Owner."

81. Traité de droit constitutionnel, 1, 16. "It is above all in the atmosphere of American life," says Mr. Laski, "that the broad accuracy of M. Duguit's interpretation finds its most striking evidence. The whole background of American constitutionalism is a belief in the supremacy of reason." "A Note on M. Duguit," Harv. Law Rev. XXXI (November, 1917), 192.

82. Charmont, La Renaissance du droit naturel and Modern French Legal Philosophy in Modern Legal Philosophy Series, pp. 106 ff.

83. The Modern Idea of the State, chap. 3.

84. "The test of reasonableness is, of course, one that it is seldom easy to apply in a court of law. For it always raises issues which in their nature are ultimately questions of opinion, and it tempts the judge to believe that he is simply finding the law when in fact he is really testing and rejecting other men's views by the light of his own. In arriving at the meaning of this conception, it is therefore urgent for the judge to be certain that he has surveyed the whole ground." Harold J. Laski, "Judicial Review of Social Policy in England: A Study of Roberts v. Hopwood et al." Harv. Law Rev., XXXIX (May, 1926), 832, 842. See (1925) A. C. 578. "Reasonableness then means not a view arrived at by men who, having taken steps to inform themselves of the facts relevant to a decision, arrive at a considered view, but what the courts think they should have come to hold; and they (local councils) will have to pay out of their personal fortune for acting upon a faith different from that of the House of Lords." Ibid., p. 845.

85. "'Objective law,' 'social solidarity,' man's 'sense of right,' like 'natural law' which has dominated men's thinking and molded legislative and judge-made law, are value-standards which embody an implicit dogmatism transcending experience and expressing both an ideal and the quest for and supposed need of perfection and the absolute." Borchard, Yale Law Jour., XXXVI, 1091.

86. Pound, "The Administrative Application of Legal Standards," Amer. Bar Assn. Reports, XLIV, 445.

87. Steiff v. Bing, 215 Fed. 204, 206 (1914).

88. Pound, Law and Morals (2d ed.,), pp. 90, 91; Pollock, Essays in the Law, p. 47.

89. T. V. Smith, "Notes on the American Doctrine of Equality," International Journal of Ethics, XXXV, 164, 377; XXXVI, 31.

90. Cf. Cardozo, op. cit., p. 167.

91. "Implicit in every decision where the question is, so to speak, at large," says Justice Cardozo, "is a philosophy of the origin and aim of law, — the philosophy which, however veiled, is in truth the final arbiter ... neither lawyer nor judge, pressing forward along one line or retreating along another, is conscious at all times that it is philosophy which is impelling him to the front or driving him to the rear." It is in a situation of this kind that "the personality of the judge, his taste, his training or his bent of mind, may prove the controlling factor." Harv. Law Rev., XXXVII (1923), 282; see also The Nature of the Judicial Process, pp. 71, 90.

92. "The jurists who believe in natural law seem to me to be in that naïve state of mind that accepts what has been familiar and accepted by them and their neighbors as something that must be accepted by all men everywhere." Holmes, Collected Legal Papers (New York, 1920), p. 312. "Men in general are inclined to regard the habitual and the simple as identical with the necessary, and the natural." N. M. Korkunov, General Theory of Law, trans. by W. G. Hastings, p. 135.

93. Collected Legal Papers, p. 159. Justice Holmes finds that the jurists' search for criteria of universal validity usually under the guise of natural law is the result of a demand for the superlative which is common to all men. Ibid., p. 310.

94. "Does not the interpretation of the will of the legislature," inquires Geny, "imply an incessant comparison of the formulae or principles which express an ideal of justice and of reason, — formulae which are outside of and above the law. These superior principles of an immanent right [droit] play a decisive role in the interpretation of positive laws." Méthode d'interprétation et sources en droit privé positif (2d ed., Paris, 1919), I, 43 ff.

95. "The sanctification of ready-made antecedent universal principles as methods of thinking is the chief obstacle to the kind of thinking which is the indispensable prerequisite of steady, secure and intelligent social reforms in general and social advance by means of law in particular." John Dewey, "Logical Method and Law," Corn. Law Quar., X (December, 1924), 27.


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