rather than Coke had been the inspiration of eighteenth century commentators and nineteenth century courts. Moreover, our constitutional models and our bills of rights were drawn in the period in which the natural law school of jurists was at its zenith, and the growing period of American law coincided with the high tide of individualistic ethics and economics. Hence his school course in political economy and his office reading of Blackstone taught the nineteenth century judge the same things as fundamentals.35 He became persuaded that they were the basis of the jural order, and, as often happens, the individualist conception of justice reached its complete logical development after the doctrine itself had lost its vitality. Social justice, the last conception to develop, had already begun to affect not merely legal thought but legislation and judicial decision, while the courts were working out the last extreme deductions from the older conception.38 M. Worms, taking no account of the first stage above suggested, has summed up the other three in these words: "To sum up, justice has tried to organize society to the profit of force, later independently of force, and it dreams to-day of organizing it against force." 37 But our ideal of justice has been to let every force play freely and exert itself completely, limited only by the necessity of avoiding friction. As a result, and as a result of 35 "Like all other contracts, wages should be left to the fair and free competition of the market, and should never be controlled by the interference of the legislature." Ricardo, Principles of Political Economy, Chap. V. § 7. Chapter XI of Bk. V. of Mill's Political Economy, entitled "Of the Grounds and Limits of the Laisser-faire or Non-Interference Principle." was studied by every liberally educated lawyer of the last fifty years. Mill (Ibid., Sect. 12) disapproves of, but at the same time suggests an argument in favor of legislation limiting the hours of labor. In Laughlin's Edition (1884) the editor argues against such legislation (p. 193). We are now prepared to read in the opinion of O'Brien, J., in People v. Coler, 166 N. Y. 1, that “A law that restricts the freedom of contract on the part of both the master and servant cannot in the end operate to the benefit of either” (p. 16). Also: "It was once a political maxim that the government governs best which governs the least. It is possible that we have now outgrown it, but it was an idea that was always present to the minds of the men who framed the Constitution, and it is proper for the courts to bear it in mind when expounding that instrument." (p. 14.) 36 See my paper, The Need of a Sociological Jurisprudence, 19 Green Bag, 607. 37 Philosophie des Sciences Sociales, II, 222. 39 our legal history, we exaggerate the importance of property and of contract, as an incident thereof. A leader of the bar, opposing the income tax, argues that a fundamental object of our polity is "preservation of the rights of private property." 38 Text writers tell us of the divine origin of property. The Supreme Court of Wisconsin tells us that the right to take property by will is an absolute and inherent right, not depending upon legislation." The absolute certainty which is one of our legal ideals, an ideal responsible for much that is irritatingly mechanical in our legal system, is demanded chiefly to protect property."1 And our courts regard the right to contract, not as a phase of liberty-a sort of freedom of mental motion and locomotion-but as a phase of property, to be protected as such.42 A further result is to exaggerate private right at the expense of public interest. Blackstone's proposition that "the public good is in nothing more essentially interested than in the protection of every individual's private rights," has been quoted in more than one American decision ;** and one of these is a case often cited in support of extreme doctrines of liberty of contract. It is but a corollary that liberty of contract cannot be restricted merely in the interest of a contracting party. His right to contract freely is to yield only to the safety, health, or moral welfare of the public. Still another result is that bench and bar distrust and object to legislation. I have discussed the history and the causes of this attitude toward 45 46 38 Argument of Mr. Choate in the Income Tax cases, 157 U. S. 429, 534. 39 Smith, Personal Property, Sect. 33. Berolzheimer sums up the characteristic features of common law legal speculation thus: "Unlimited high valuation of individual freedom and respect for individual property." System des Rechts und Wirthschaftsphilosophie, II. 160. 40 Nunnemacher v. State, 108 N. W. 627. 41 See my paper, Enforcement of Law, 20 Green Bag, 401, 408. 42 Occasionally it is said to be "both a liberty and a property right." Frorer v. People, 141 Ill. 171, 181. Professor Seager suggests another reason for American exaggeration of the importance of property. Introduction to Economics (3rd Ed.), 21. He points out that this exaggeration has resulted in "an industrial civilization which has been marked thus far by intense individualism in thought and practice." 48 I Comm. 139. 44 See for example Wynhamer v. People, 13 N. Y. 378, 387; Chase v. Beal, 31 Mich. 491. 45 Wynhamer v. People, supra. 46 People v. Marcus, 128 N. Y. 257, In re House Bill 203, 21 Col. legislation on another occasion." Suffice it to say here that the doctrine as to liberty of contract is bound up in the decisions of our courts with a narrow view of what constitutes special or class legislation that greatly limits effective law-making. If we can only have laws of wide generality of application, we can have only a few laws; for the wider their application the more likelihood there is of injustice in concrete cases. But from the individualist standpoint a minimum of law is desirable. The common law antipathy to legislation sympathizes with this, and in consequence we find courts saying that it is not necessary to consider the reasons that led up to the type of legislation they condemn's and that the maxim that the government governs best which governs least is proper for courts to bear in mind in expounding the Con stitution.49 The second cause, a condition of mechanical jurisprudence, I have discussed in its relation to the legal system generally in another place. The effect of all system is apt to be petrifaction of the subject systematized. Legal science is not exempt from this tendency. Legal systems have their periods in which system decays into technicality, in which a scientific jurisprudence becomes a mechanical jurisprudence. In a period of growth through juristic speculation and judicial decision, there is little danger of this. But whenever such a period has come to an end, when its work has been done and its legal theories have come to maturity, jurisprudence tends to decay. Conceptions are fixed. The premises are no longer to be examined. Everything is reduced to simple deduction from them. Principles cease to have importance. The law becomes a body of rules. This is the condition Professor Henderson refers to when he speaks of the way of social progress as barred by barricades of dead precedents.51 Manifestations of mechanical jurisprudence are conspicuous in the decisions as to liberty of contract. A characteristic one is the rigorous logical deduction from predetermined conceptions in disregard of and often in the teeth of the actual facts, which 47 Common Law and Legislation, 21 Harvard Law Review, 383. 48 "For some reason, not necessary to consider, there has in modern times arisen a sentiment favorable to paternalism in matters of legislation." Lowe v. Rees Printing Co., 41 Neb. 127, 135. Cf. State v. Krcutzberg, 114 Wis. 530, 537. 49 People v. Coler, 166 N. Y. 1, 14. 50 Mechanical Jurisprudence, 8 Columbia Law Review, 605. 53 Iwas noted at the outset. Two courts, in passing on statutes abridging the power of free contract have noted the frequency of such legislation in recent times but have said that it was not necessary to consider the reasons for it.52 Another court has asked what right the legislature has to "assume that one class has the need of protection against another." Another has said that the remedy for the company store evil "is in the hands of the employee," since he is not compelled to buy from the employer,54 forgetting that there may be a compulsion in fact where there is none in law. Another says, that "theoretically there is among our citizens no inferior class,"55 and of course no facts can avail against that theory. Another tells us that man and woman have the same rights, and hence a woman must be allowed to contract to work as many hours a day as a man may.5 We have already noted how Mr. Justice Harlan insists on a legal theory of equality of rights in the latest pronouncement of the Federal Supreme Court. Legislation designed to give laborers some measure of practical independence, which, if allowed to operate, would put them in a position of reasonable equality with their masters, is said by courts, because it infringes on a theoretical equality, to be insulting to their manhood 57 and degrading,58 to put them under guardianship,59 to create a class of statutory laborers,60 and to stamp them as imbeciles. I know of nothing akin to this 52 See cases in note 48 supra. 53 State v. Haun, 61 Kans. 146, 162. 54 State v. Fire Creek Coal & Coke Co., 33 W. Va. 188, 190. Those who have studied the actual situation do not look at it in this way. "He is not free to make such a contract as might please him because, like every party to a contract, he must come to such conditions as can possibly be agreed upon. He is less free than the parties to most contracts, and, further, he cannot utilize his labor in many directions; he must contract for it within restricted lines." Wright, Practical Sociology (5th Ed.), 226. 55 Frorer v. People, 141 Ill. 171, 186, holding against a statute prohibiting company stores and requiring miners to be paid weekly. 56 Ritchie v. People, 155 Ill. 99, III. 57 Godcharles v. Wigeman, 113 Pa. St. 431, 437 (wages in iron mills 58 State v. Goodwill, 33 W. Va. 179, 186 (store orders). to be paid in money). 59 Braceville Coal Co. v. People, 147 Ill. 66, 74 (coal to be weighed for fixing wages); State v. Haun, 61 Kans. 146, 162 (wages to be paid in money). 60 People v. Beck, 10 Misc. 77 (dissenting opinion of White, J.). The statute fixed hours of labor on municipal contracts. 61 State v. Goodwill, supra; Frorer v. People, 141 Ill. 171, 187 (company stores). artificial reasoning in jurisprudence unless it be the explanation given by Pomponius for the transfer of legislative power from the Roman people during the Empire: "The plebs found, in course of time, that it was difficult for them to meet together, and the general body of the citizens no doubt found it more difficult still." No doubt they did. Cæsar or the praetorian prefect would have seen to that. 62 Survival of a purely juristic notion of the state and of economics and politics, in contrast with the social conception of the present, the third cause suggested, can be looked at but briefly. Formerly the juristic attitude obtained in religion, in morals, and in politics as well as in law. This fundamentally juristic conception of the world, due possibly to Roman law being the first subject of study in the universities, which gave a form of legality even to theology, has passed away elsewhere. But it lingers in the courts. Jurisprudence is the last in the march of the sciences away from the method of deduction from predetermined conceptions. The sociological movement in jurisprudence, the movement for pragmatism as a philosophy of law, the movement for the adjustment of principles and doctrines to the human conditions they are to govern rather than to assumed first principles, the movement for putting the human factor in the central place and relegating logic to its true position as an instrument, has scarcely shown itself as yet in America. Perhaps the dissenting opinion of Mr. Justice Holmes in Lochner v. New York, is the best exposition of it we have. Another factor of no mean importance in producing the line of decisions we are considering is the training of lawyers and judges in eighteenth century theories of natural law. In a book just published by a well-known writer on legal subjects who has also been a teacher of law, the whole basis of discussion is natural law. The learned author does not indicate a suspicion that any 62 Dig. I, 2, 2, Sect. 9. Professor Seager says of these objections: "The opposition to such regulations .. is based on the fear that they may serve to undermine the spirit of independence of the protected persons. Experience seems to indicate that they have in fact a directly contrary effect." Introduction to Economics (3rd Ed.), 421. See also P. 423: "Those who advance it fail to consider that deadening and monotonous toil too long continued is much more inimical to the spirit of independence than any amount of legislation." 68 198 U. S. 45, 75. But see also Holmes, The Path of the Law, 10 Harvard Law Review, 457, 467, 472. |