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attention-namely, the physiological improvement of the race of men. One aspect of that problem was thoroughly discussed yesterday, and it is remarkable that neither the able paper of Professor Ross nor any of the discussions of that paper once alluded to the most important and best-established law of demography—that population is inversely proportional to intelligence. Of course there are other things of which the same general principle is true. Suicide, insanity, crime, and vice increase as we rise in the scale of intelligence. You do not find them among animals, and you find them less among savages and lower classes than in the upper strata of society. It is lowest in the scale of organic life that we find the highest fecundity, and the law goes back through the entire animal kingdom until we have those Protozoans in which one individual may be the parent of millions of offspring. This law also extends upward to the very topmost layers of society and finds its maximum expression in the very few who have attained to that lofty realm of wisdom where they not only understand the teachings of eugenics, but are capable of applying them to family life.

The doctrine defended by Professor Wells is the most complete example of the oligocentric world-viewi which is coming to prevail in the higher classes of society, and would center the entire attention of the world upon an almost infinitesimal fraction of the human race and ignore all the rest. It is trying to polish up the gilded pinnacles of the social temple so as to make them shine a little more brightly, while entirely neglecting the great, coarse foundationstones upon which it rests. The education and preservation of the select few, of the higher classes, of the emerged hundredth, to the neglect of the submerged tenth and the rest of the ninety-nine hundredths of society, covers too small a field. I cannot bring myself to work contentedly in a field so narrow, however fascinating in itself. Perhaps mine is a “vaulting ambition,” but I want a field that shall be broad enough to embrace the whole human race.

For an indefinite period yet to come society will continue to be recruited from the base. The swarming and spawning millions of the lower ranks will continue in the future as in the past to swamp all the fruits of intelligence and compel society to assimilate this mass of crude material as best it can.

This is commonly looked upon as the deplorable consequence of the demographic law referred to, and it is said that society is doomed to hopeless degeneracy. Is it possible to take any other view? I think it is, and the only consolation, the only hope, lies in the truth that, so far as the native capacity, the potential quality, the “promise and potency” of a higher life are concerned, those swarming, spawning millions, the bottom layer of society, the proletariat, the working classes, the “hewers of wood and drawers of water," nay, even the denizens of the slums—that all these are by nature the peers of the boasted “aristocracy of brains” that now dominates society and looks down upon them, and the equals in all but privilege of the most enlightened teachers of eugenics.

* Applied Sociology, p. 23.

LEGISLATION AS A SOCIAL FUNCTION

ROSCOE POUND
Harvard University Law School

а.

Of the two agencies of law-making in our legal system, one is thoroughly conscious that it is making rules and imposing standards, while the other purports to be wholly unconscious of power to do anything of the sort. The legislator, holding that law is a conscious product of the human will, takes it for unquestioned that he has but to ascertain the will of the sovereign with respect to the civic conduct of individuals and put such will in the form of chapter and section of the written law. In his view the prefatory "be it enacted,” so far as anything beyond political responsibility is concerned, justifies what follows. On the other hand, the judge, holding that law is something found, not made, that it is reason, not will, and believing that in the long run conscious law-making can achieve little beyond authoritative declaration of what has been discovered in the determination of controversies, proceeds haltingly. He persuades himself to overlook the law-making function which everyone who administers justice must necessarily wield. Hence the one is prone to attempt far too much and to be careless how he carries out the details of what he attempts. Quod principi placuit legis habet vigorem may be the theory of popular as well as of imperial sovereignty. In either case, the feeling that a declaration of the sovereign will suffices to make law gives rise to a mass of arbitrary detail that cannot obtain the force of law in practice. The other agency of law-making, on the other hand, attempts much too little and carries out what is attempted too cautiously and too doubtingly. For the judge is hampered at every turn by

. the theory that he can only discover, that the principles of the unwritten law are invariable, and that application of a rule which has at least a potential logical pre-existence in the received system is his sole function. What he does attempt is of necessity limited

? From the Proceedings of the American Sociological Society.

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by the honest endeavor to make it appear that he is bringing in nothing new.

Theories of law are not theories of law-making. If they are to be so taken, certainly it is not expedient that judges, wielding the common-law power of making binding precedents, have before them consciously a theory that they make law rather than find and declare it. The judge in the Year Books who announced from the bench that law was the will of the justices did not give us a satisfactory theory of judicial law-making. Yet the analytical jurists have done a good service in insisting upon their imperative theory of the form of the law and in demonstrating that law is made and must be made by tribunals. The doctrine of separation of powers works mischief here in confirming the traditional notion that the law is always discovered, that decisions are only declaratory, and that when a precedent is overruled the law is not changed but instead a misinterpretation thereof is corrected. The theory which confines the judicial function to mere application of a rule formulated in advance by an extra-judicial agency proceeds upon an eighteenth-century conception of law and of law-making which we cannot accept today. Our first step in the endeavor to compel law-making to take more account and more intelligent account of the social facts upon which law must proceed and to which it is to be applied must be to make all the agencies of law-making completely conscious of what they are doing. The next step is to make plain the end and purpose of what they are doing.

Subject to the qualification which attaches to all such classifications, namely, that they are divisions of the historian's discourse rather than of the subject itself, we may recognize four stages of legal development. I shall call these stages (1) primitive law, or the beginning of law, (2) the strict law, (3) equity or natural law, and (4) the maturity of law. To these, I conceive, we shall

4 have presently to add a fifth stage, one upon which the law is now definitely entering, which may be called the socialization of law. Ideas of the nature of law and of the end of law, and hence ideas of law-making, are relative to the circumstances of these several stages, and, in consequence, an understanding of the four first named and of their respective contributions to the law of the

а.

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present necessary to any thoroughgoing consideration of modern law-making.

In the beginnings of law the idea is simply to keep the peace. Self-help or the help of the gods through their ministers is resorted to in the majority of cases. The help of the politically organized community is invoked exceptionally. Hence public administration of justice is not an agency for remedying wrongs. Much less is the law an agency for delimiting interests so as to adjust the relations of individuals with each other. It is simply a body of rules by which controversies are adjusted peaceably. At first, therefore, it attempts nothing more affirmatively than to furnish the injured a substitute for revenge. Where the law today thinks of compensation for an injury, primitive law thinks of composition for the desire to be avenged. Where modern law seeks a rational mode of trial that will bring forth the exact truth, primitive law seeks an acceptable mechanical mode of trial which will yield a certain unambiguous result without opportunity for controversy. Accordingly, in its beginnings law is a means toward the peaceable ordering of society. Along with religion and morality it is a regulative agency by means of which men are restrained and the social interest in general security is protected. Indeed, it is the least of the three, since its chief function is to restrain and regulate self-help and selfredress. Law retains this character of a regulative agency and of a means the end whereof is a peaceable ordering, although other ends become manifest as it develops. The contribution of this first period of legal development to the idea of the end of law is the conception of a peaceable ordering of society through the peaceable adjustment of controversies.

In the second stage of legal development, the stage of the strict law, law has definitely prevailed as the regulative agency of society and the state has prevailed as the organ of social control. Selfhelp and self-redress have been superseded for all but exceptional causes. Normally men appeal only to the state to redress wrongs. Hence the rules which determine the cases where men may appeal to the state for help define indirectly the substance of rights and thus indirectly point out and limit the interests recognized and secured. But rights and interests as such are quite unknown.

reverse.

The period is one of remedies, not of rights, for while the logical sequence is interest, right, remedy, the historical sequence is the

And when remedies are known, but not rights, arbitrary and formal limitations must do what in modern times is done by a detailed logical system of rights and the conception that remedies are a means of giving them effect. Accordingly in this stage two causes operate to produce a system of strict law, namely, fear of arbitrary exercise of the power of state assistance to individual victims of wrong and a survival of ideas from the beginning of law, when legal interposition in controversies was not the regular course. Five characteristics of this stage of legal development result: (1) the law is formal in a high degree; (2) it is rigid and immutable; (3) it is extremely individualistic; (4) it is wholly indifferent to the moral aspects of conduct or of transactions which satisfy the letter of its rules, and (5) it restricts capacity to invoke the law and capacity for acts which may lead to legal consequences in ways that now appear utterly arbitrary. These characteristics of the strict law affect the whole course of development of legal justice. The permanent contributions of this stage are the ideas of certainty and uniformity and of rule and form as means thereto.

The next stage, which I have called the stage of equity or natural law, is one of liberalization. The watchword of the period of strict law was certainty, the watchword of this period is some word or phrase of ethical import—in the Roman law, aequum et bonum, with us, equity and good conscience, in the law of Continental Europe, natural law. In consequence the period of strict law relies upon rules and forms; this period relies upon moral ideas and reason. Four ideas of the first magnitude come into the law in this period. The first is that legal personality should extend to all human beings and that incapacities to produce legal consequences should be rejected except where a natural as distinguished from a historical reason can be found for them. The second is that the law should look to the substance and not the form, the spirit and not the letter. This is the most revolutionary change in legal history, for Jhering says truly that every history of a legal system might take for its motto “in the beginning was the word.” Only the systems that went through this change and came to measure things by reason

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