SIGNIFICANCE OF THE REVIVAL OF HIGHER LAW CONCEPTS IN THE
PUBLIC LAW OF EUROPE AND OF AMERICA
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. 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
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.
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. 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.
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, or rules of action
formulated by a political sovereign which became intrinsically just by the
acceptance and promulgation of the state. 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."
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." 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. 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.
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.
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. 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
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. 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.
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, 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." 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." 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
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. 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." Some of these
standards found their way into the law through the frank recognition of natural
law theories. 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. 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."
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.
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."
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. 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."
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. 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."
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. 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, 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
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 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
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. 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.
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. 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
The common law system is largely a product of judge-made law.
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. 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.
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."
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
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.
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." 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
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."
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."
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
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.
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. 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
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,
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.
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
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 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
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," 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
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.
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." 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
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
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." 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.
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." 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."
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
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. 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." 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.
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.
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." 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." 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. 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
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 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.
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. 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." 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."
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. 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
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. 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
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.
6. Concluding Comments. Duguit would have all law conform to an
objective right, 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. Krabbe would have all
law conform to the community sense of the feeling for right. 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.
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. 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. 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," 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
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. 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
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.
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. 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. 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. 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."
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. 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; 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
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
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.
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),
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
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,
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
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
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,
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,
45. W. F. Dodd, "The Problem of State
Constitutional Construction," Columbia Law Review, XX (June, 1920),
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
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;
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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