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lawyer might affect to despise philosophical theories of law, he could but be content with a theory that put plausible reasons behind his traditional habits of thought. The one difficulty was the English utilitarian's fondness for legislative lawmaking, which was out of accord with the common-law tradition. But this difficulty presently disappeared.
It is a curious circumstance that while Bentham and Austin believed in legislation and hoped for an ultimate codification, the interpretation of utility as requiring a minimum of interference with the individual led the next generation of English utilitarians to the same position as that of the historical school, namely, that except in a few necessary cases legislation is an evil. The historical school held it an evil because it sought to do what could not be done. The neo-utilitarians held it an evil because that government was best that governed least and left men freest to work out their own destiny. Bentham had already put security as the main end to which the legal order should be directed.24 A utilitarian version of the nineteenth-century juristic pessimism was deduced from this idea. We could not achieve any positive good by law; we could only avert some evils.25
Thus the English utilitarians did not contribute much of moment to the theory of the end of the legal order. They merely strengthened in the minds of lawyers the extreme individualism which the latter had inherited with the common-law tradition. Perhaps their most significant achievement was in definitely driving the eighteenth
complete, one should add the influence of the pioneer in nineteenth-century America. See Pound, “The Administration of Justice in the Modern City," 26 HARV. L. Rev. 302.
24 THEORY OF LEGISLATION, PRINCIPLES OF THE CIVIL CODE, pt. I, ch. 7. Cf. SHARSWOOD, LEGAL ETHICS, 5 ed., 22.
25 “The value of law is to be measured not by the happiness which it procures but by the misery from which it preserves us.” MARKBY, ELEMENTS OF LAW, 6 ed., $ 58. "We shall, therefore, look for happiness in the wrong direction if we expect it to be conferred upon us by the law. Moreover, not only is it impossible for the law to increase the stock of happiness: it is just as impossible for the law to secure an equal distribution of it. Equality may be hindered by the law, it cannot be promoted by it.” Id., & 59.
“What is the true province of legislation, ought to be better understood. It is worth while to remark, that in every new and amended state constitution, the Bill of Rights spreads over a larger space; new as well as more stringent restrictions are placed upon legislation. There is no danger of this being carried too far: as Chancellor Kent appears to have apprehended that it might be. There is not much danger of erring upon the side of too little law.” SHARSWOOD, LEGAL ETHICS, 5 ed., 22–23.
century natural law out of the English books. For example, in discussing condemnation of private property, Blackstone said that the public was “in nothing so essentially interested as in securing to every individual his private rights." 26 This is the natural-rights idea of the eighteenth century. A little more than a century later Sir George Jessel said:
“If there is one thing which more than another public policy requires, it is that men of full age and competent understanding shall have the utmost liberty of contracting and that their contracts shall be enforced by courts of justice.” 27
Here we have Bentham's program of unshackling men and extending the sphere of contract. But we have also the individual freewill idea, the individual-liberty idea of the metaphysical jurists. It is worth while to reflect that these words were written in a case involving a contract as to the use of a patent. Not only do we limit the freedom of contract ɔf whole classes of men of full age and competent understanding at every turn in modern labor legislation, but we are not so sure today that whatever contract as to use of his patent a patentee may choose to make is to be upheld at all events.28
The historical jurists 29 were more concerned with the nature of law and the content of legal systems than with the end of law. They took their philosophical ideas from the metaphysical school and so agreed in holding individual liberty to be the fundamental idea.30 This was facilitated by, or perhaps rather it resulted in their adopting the political interpretation of legal history. For they conceived
1 COMMENTARIES, 139. 27 Printing Co. o. Sampson, 19 Eq. 462, 465 (1875).
28 Bauer v. O'Donnell, 229 U. S. 1 (1912). See Montague, “The Proposed Patent Law Revision,” 26 Harv. L. Rev. 128; Abbot, “Patents and the Sherman Act," 12 COL. L. Rev. 709.
29 MAINE, ANCIENT LAW, 1861, new ed. by Pollock, 1906; MAINE, EARLY HISTORY OF INSTITUTIONS, 1874; MAINE, EARLY LAW AND Custom, 1883; MAINE, VILLAGE COMMUNITIES IN THE EAST AND WEST, 1871; PULSZKY, THEORY OF LAW AND CIVIL SOCIETY, 1888; CARTER, LAW: Its ORIGIN, GROWTH AND FUNCTION, 1907; PUCHTA, CURSUS DER INSTITUTIONEN, $81-3 (1841); ARNDTS, JURISTISCHE ENCYKLOPÄDIE UND METHODOLOGIE, $ 12 (1860); 1 WÄCHTER, PANDEKTEN, $ 1 (1880).
30 “Freedom is the foundation of right, which is the essential principle of all law.” PUCHTA, INSTITUTIONEN, $ 2 (Hastie's transl.). "In virtue of freedom man is the subject of right and law. His freedom is the foundation of right and all real relations of right and law flow from it.” Id., $ 4. “Law is consequently the recognition of that jural freedom which is externalized and exhibited in persons and their acts of will and their influence upon objects.” Id., 6.
that the history of law was a history of the gradual acquisition or recognition of individual liberty. This is the central philosophical idea in the writings of Sir Henry Maine. 31 As has been pointed out elsewhere, Maine's doctrine of the progress from status to contract is a political type of idealistic interpretation.32 For a purely ethical idea of right it substitutes a political idea of individual freedom. It sees in law and in legal history a manifestation and development of this idea. Hence it finds the end of all law in liberty, conceived in the sense of the widest possible individual self-assertion. It teaches that a movement from individual subjection to individual freedom, from status to contract, is the key to social and legal development. It conceives of social progress as an unfolding of the idea of individual liberty by relieving the individual from the constraint of social institutions. It conceives of political progress as a like unfolding of the idea of liberty; as a gradual limitation and direction of state action so as to make possible the maximum of individual self-assertion which is taken to be the maximum realization of the idea of liberty. It conceives of jural progress as a progress from institutions where rights, duties and liabilities are annexed to status or relation to institutions where rights, duties and liabilities flow from voluntary action and are consequences of exertion of the human will.
Maine's teaching was so completely in accord with the individualism which characterized the traditional element of our law for other reasons and accorded so well with the absolute ideas which our law books had inherited from the eighteenth century that it soon got entire possession of the field. Much in American judicial decision with respect to master and servant, liberty of contract and right to pursue a lawful calling, which it has been the fashion of late to refer to class bias of judges or to purely economic influences,33 is in real
31 “The word Status may be usefully employed to construct a formula expressing the law of progress thus indicated, which ... seems to me to be sufficiently ascertained. All the forms of Status taken notice of in the law of persons were derived from, and to some extent are still coloured by, the powers and privileges anciently residing in the Family. If then we employ Status ... to signify these personal conditions only, and avoid applying the term to such conditions as are the immediate or remote result of agreement, we may say that the movement of the progressive societies has hitherto been a movement from status to contract.” ANCIENT LAW, ch. 5 ad fin.
32 See my paper, “The Scope and Purpose of Sociological Jurisprudence,” 25 HARV. L. REV. 140, 164.
33 E. 8., SMITH, SPIRIT OF AMERICAN GOVERNMENT, ch. s; RoE, OUR JUDICIAL
ity merely the logical development of traditional principles of the common law by men who, if they had not been so taught, read every day in their scientific law books of the progress from status to contract and the development of law through securing and giving effect to the human will. But in truth, so far as developed systems of law are concerned, Maine's famous generalization is drawn from the Roman law only. The main characteristics of status are that it is a condition which can not be divested voluntarily, and that rights, duties and liabilities flow from or are annexed to this condition of a person rather than his volition. In the maturity of Roman law, in contrast, the theory of natural law had put an end to most of these conditions directly or indirectly, and the law sought to secure the will of the individual against aggression and to give effect to the will to create legal consequences wherever possible. Hence, if we use contract to mean legal transaction, there was in Roman law a progress from status to contract. There was a progress from a situation where legal institutions paid no regard to volition to one where volition was chiefly regarded.
It is by no means so clear that the generalization may be maintained when applied to Anglo-American law. For a fundamental difference between the Roman system and our own system is involved. In the Romanist system the chief rôle is played by the conception of a legal transaction, an act intended to create legal results to which the law, carrying out the will of the actor, gives the intended effect. The central idea in the developed Roman law, shaped by philosophical theories, is to secure and effectuate the will.34 All things are deduced from or referred to the will of the actor. Arising as the law of the city of Rome when it was a city of OLIGARCHY, ch. 5; MYERS, HISTORY OF THE SUPREME COURT OF THE UNITED STATES, ch. 16.
1 WINDSCHEID, PANDEKTEN, $$ 37, 47, 69; 1 JHERING, GEIST DES RÖMISCHEN RECHTS, $ 10; 3 VOIGT, DAS Ius NATURALE, AEQUUM ET BONUM UND Ius GENTIUM DER RÖMER, $8 17 f.
“The department of law where the peculiar genius of the Roman jurists found full scope is the law of obligations ...; and here again it is more especially the law relating to those contracts where not merely the expressed but also the unexpressed intention of the parties has to be taken into account (the so-called negotia bonae fidei). And in regard to this unexpressed intention which is not, for the greater part, present to the mind of the party himself at the moment of concluding the contract, it was the Roman jurists who discovered it, and discovered it for all times to come, and enunciated the laws which result from its existence." Sohm, INSTITUTES OF ROMAN LAW (Ledlie's transl.), $ 15.
patriarchal households, and as a body of rules for keeping the peace among the heads of these households, its problem was to reconcile the conflicting activities of free men, supreme within their households but meeting and dealing with their equals without. Accordingly it held them in penalties for such injuries as they did wilfully, and held them in obligations to such duties or performances as they undertook in legal form. It held them for what they willed and did willingly, and it held them to what they willed and undertook legally. In our law, by contrast, the central idea is rather relation. Thus, in case of agency the civilian thinks of an act, a manifestation of the will, whereby one person confers a power of representation upon another and of a legal giving effect to the will of him who confers it. Accordingly he talks of a contract of mandate 35 or of a legal transaction of substitution.36 The common-law lawyer, on the other hand, thinks of the relation of principal and agent and of powers, rights, duties and liabilities, not as willed by the parties, but as incident to and involved in the relation. He, therefore, speaks of the relation of principal and agent. So in partnership. The Romanist speaks of the contract of societas. He develops all his doctrines from the will of the parties who engaged in the legal transaction of forming the partnership.37 We speak, instead, of the partnership relation and of the powers and rights and duties which the law attaches to that relation. Again, the Romanist speaks of a letting and hiring of land and of the consequences which are willed by entering into that contract.38 We speak of the law of landlord and tenant and of the warranties which that relation implies, the duties it involves, and the incidents attached thereto. The Romanist speaks of a locatio operarum, a letting of services and of the effects
2 BAUDRY-LACANTINERIE, PRÉCIS DE DROIT CIVIL, 10 ed., $8 1191-94; 2 CHIRONI, ISTITUZIONI DI DIRITTO CIVILE ITALIANO, 2 ed., & 344.
36 See, however, the critique of this conception in SCHLOSSMANN, LEHRE VON DER STELLVERTRETUNG, $$ 3, 4, 80. Accordingly the Romanist does not know our doctrine of undisclosed agency. BARON, PANDEKTEN, $ 65, II. On his theory, necessarily, if agency is disclosed, a contract with the principal is willed; otherwise not. The common law looks rather to the actual existence of the relation of principal and agent.
37 2 BAUDRY-LACANTINERIE, PRÉCIS DE DROIT CIVIL, 10 ed., 88 1014-15. This refers only to “civil partnerships.” The “commercial partnership,” the creature not of the Roman law but of the law merchant, is treated as a juristic person. Id., $ 1021. See also 2 CHIRONI, ISTITUZIONI DI DIRITTO CIVILE ITALIANO, 2 ed., 88 340, 341.
2 WINDSCHET, PANDEKTEN, 88 399-400; 2 BAUDRY-LACANTINERIE, PRÉCIS DE DROIT CIVIL, 10 ed., 88 898–903.