rather than by arbitrary rule or arbitrary formula have become laws of the world.

The third idea is good faith, the idea that justice demands one should not disappoint well-founded expectations which he has created; in other words, that it is not so much that rules should be certain as that men's conduct should be certain.

The fourth idea is that one person should not be unjustly enriched at the expense of another. Insistence upon these ideas, as moral ideas, leads to a further development of the means by which the legal system secures its ends. In the period of strict law, the means are remedies; in this period they are duties, and remedies are thought of as given to make these duties effective.

But the attempt in this stage to make law coincide with morals leads to two difficulties. One is an attempt to enforce over-high ethical standards and to make legal duties out of moral duties— such as the duty of gratitude-which are not sufficiently tangible to be made effective by legal means. This gradually remedies itself. The other is that it gives too wide a scope for discretion, since, whereas legal rules are of general and absolute application, moral principles must be applied with reference to circumstances and individuals. Hence at first in this stage the administration of justice is too personal and therefore too uncertain. In time this fault is corrected by a gradual fixing of rules and a consequent stiffening of the legal system which leads to a fourth stage. The permanent contributions of the third stage are the conception of promoting and enforcing good faith and moral conduct through the law and reliance upon reason rather than upon rule and form.

In the fourth stage, which I have called the maturity of law, the watchwords are equality and security. The former involves equality in operation of legal rules and equality of opportunity to exercise one's faculties and employ one's substance. The latter involves the idea that everyone is to be secured in his interests against aggression by others and that others are to be permitted to acquire from him or to exact from him only through his will that they do so or because of his infringement of rules devised to secure others in like interests. To this end, the idea of individual rights is worked out thoroughly and is put as the basis of the legal system,

so that duties are regarded as correlative thereto and remedies as vindications thereof. Accordingly the all-important legal institutions of this period are property and contract. But the interest of the promisee in the contract is itself treated as property. Hence Mr. Choate had much justification for asserting as he did in his argument in the income tax cases, that "preservation of the rights of private property" was the fundamental object of the law.

Toward the end of the nineteenth century signs of the beginnings of a new stage of legal development begin to be manifest throughout the world. In the maturity of law, the legal system seeks to secure individuals in the advantages given them by nature or their station in the world and to enable them to use these advantages as freely as is compatible with a like free exercise of their faculties and use of their advantages by others. To accomplish these ends it reverts in some measure to the ideas of the strict law. In consequence a certain opposition between law and morals develops once more, and just as the neglect of the moral aspects of conduct in the stage of strict law required the legal revolution through infusion of lay moral ideas into the law, which in different legal systems we call equity or natural law, so the neglect of the moral worth of the individual and of his claim to a complete moral and social life involved in the insistence upon property and contract in the maturity of law are requiring a similar legal revolution through the absorption into the law of ideas developed in the social sciences. Juristically, this is beginning in the recognition of interests as the ultimate idea behind rights, duties, and remedies. It is seen that the so-called natural rights are something quite distinct in character from legal rights; that they are claims which human beings may reasonably make, whereas legal rights are means which the state employs in order to give effect to such claims. But when natural rights are put in this form it becomes evident that these individual interests are on no higher plane than social interests, and, indeed, for the most part get their significance from a social interest in giving effect to them. In consequence the emphasis comes to be transferred gradually from individual interests to social interests. Such a movement is taking

place palpably in the law of all countries today. Its watchword is satisfaction of human wants, and it seems to put as the end of law the satisfaction of as many human demands as we can with the least sacrifice of other demands. This new stage has been called the socialization of law.

Legislation, in the sense of a deliberate framing and establishing in advance of rules of decision or of rules and standards of conduct by which, therefore, decision is to be governed, is chiefly a phenomenon of the maturity of law. In the first stage of legal development, law-making is wholly subconscious. Historically the judge precedes the law and the court precedes the legislature. What we call legislation in the beginnings of law is wholly declaratory. It is not an authoritative making of new law, it is an authoritative publication of law already existing in the form of traditional modes of applying for judicial action, traditional rules of decision, and traditional limitations upon self-help. The first conscious making of law takes place when choice has to be made between conflicting traditions or where conflicting traditions must be harmonized through amendment. This necessity arises whenever an attempt is made to declare the common custom of a political unit formed by the union of heretofore distinct tribes or peoples with customs of their own. Alfred's laws are the classical example. He tells us in his prologue that he found it necessary to pick and choose and even amend, but, he adds, "I durst not set down much of my own." The first step in the direction of conscious constructive law-making comes when men perceive that by changing the written record of the law they can change the law. Usually when this is discovered a legislative ferment sets in, as in the case of the early republican legislation at Rome, the Frankish capitularies on the Roman imperial model, and perhaps the legislation of Edward I. But the idea of deliberate change in the law is uncongenial to the stage of the strict law. The law is a system of remedies. The idea of rights has not developed. There is no body of principles of substantive law. Hence there are no principles to govern change, and arbitrary change appears to be at war with the very idea of law. Accordingly this brief outburst of legislation is quickly superseded by a purely judicial or juristic development of the law, under the

theory that law is to be found rather than made. This is true even when the law is wholly made over in the stage of equity or natural law. Even then the idea is that principles of superior validity have been discovered and that these principles, which have an independent and intrinsic validity, are simply applied. It is not until the maturity of a legal system that we enter upon a real stage of legislation.

Legislative law-making first becomes conscious of what it is. As soon as conscious constructive law-making begins there comes to be in the legal system an imperative element, an element resting on the expressed will of the sovereign and deriving its authority from the power of the state. This leads one type of thinker to look upon all law as an emanation of the sovereign will. But the main body of the law continues to be traditional in form and continues to be developed along traditional lines by judges or jurists. Resting at first upon the usage and practice of tribunals or the usage and customary modes of advising litigants on the part of those upon whom tribunals rely for guidance, the basis of its authority comes to be reason and conformity to ideals of right. The latter commonly are conceived of as immutable and eternal. Hence the function of judge or jurist in developing the law is taken to be one of discovering in the traditional materials of the legal system the principles which accord with reason and conform to ideals of right and of drawing them out to their logical consequences. This view of judicial law-making accords with the demand of the maturity of law for certainty and uniformity and is furthered by the insistence in this stage upon the security of property and contract. What it may lead to is well illustrated by the jurisprudence of conceptions of which Continental jurists have been complaining so bitterly.

First, then, judicial law-making must know itself; it must know what it is. Next, both judicial law-making and legislative law-making must know the ends to which they are employed. For our trust is in the efficacy of intelligent effort; so far as we make law consciously, we are to make it intelligently. This was hardly possible until we had arrived at the conception of interests. Our hope of achieving it is in definition of the interests that may claim

to be secured and determination of the principles according to which they are to be selected and delimited for legal recognition.

A legal system attains its end by recognizing certain interests, individual, public, and social; by defining the limits within which these interests shall be recognized legally and be given effect through rules of law, and by endeavoring to secure the interests so recognized within the defined limits. It does not create these interests. There is so much truth in the old theories of a law of nature and of natural rights. These interests arise, apart from law, through the competition of individuals with each other, the competition of groups or societies with each other, and of individuals with such groups or societies. What the law-maker has to consider, therefore, is (1) the interests which the law may be called upon to recognize and secure, (2) the principles upon which such interests should be defined and limited for purposes of legal recognition, or, to put it in another way, the principles by which conflicting interests should be weighed or balanced in order to determine which are to be recognized and to what extent, (3) the means by which the law may secure the interests which it recognizes, and (4) the limitations upon effective legal action which may preclude a complete recognition or complete securing of all these interests to the full extent which ethical considerations may demand.

Strictly the concern of the law is with social interests, since it is the social interest in securing the individual interest that must determine the law to secure it. But using interest to mean a claim which a human being or a group of human beings may make, it is convenient to speak of individual interests, public interests, that is interests of the state as a juristic person, and social interests, that is interests of the community at large. This is the order in which they have been recognized in the development of juristic thought.

Although certain great social interests have determined the growth of law from the beginning, individual interests were the first to be worked out critically. For nearly two centuries now philosophical jurisprudence has devoted itself chiefly to this task. The more important of them have become well known to us under the name of natural rights, because of the old theory that the pres