Citation: 1940 Roscoe Pound Contemporary Juristic Theory 57 1940

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THE POSSIBILITY OF A MEASURE

OF VALUES
Ill

to yourselves a crowd at the box office of

a movie theatre at the first performance of a new
and much advertised film or a crowd trying to get in
to see the crucial baseball game of an exciting race
at the end of the season, where forty thousand try to
get into a baseball park normally seating thirty thousand. Spontaneously as a matter of custom or else
under the compulsion of a policeman, people line up
and take their turn and are served rapidly with no
pulling and hauling and no injury to anyone until all
the seats are taken. Experience has taught us that this
is the only practical way in which such situations can
be handled and that experience has crystallized in
the custom followed spontaneously or enforced upon
refractory persons by the police. But suppose there
was no such custom or no policeman to enforce
against refractory individuals the rule indicated by
experience. In that event no one could get in without
a struggle in which many would be hurt and the
struggle would take up so much time and involve so
much injury that many would not try to get in and
many more after pulling and hauling would give up
the attempt. The ordered line-up insures that as many
will be served as may be and that they will be served
with a minimum of friction. So it is with life in a
iaruRE

58

CONTEMPORARY JURISTIC THEORY

civilized society. As the saying is, we all want the

earth. There are many of us, but there is only one
earth. It is the problem of social control so to line us
up and order our endeavors to satisfy our desires, so
to rule our strivings to obtain the material goods of
existence, that if there is not enough to go around,
yet what there is may be made to go as far as possible
with the least friction and waste.
At the end of the eighteenth century Kant saw that
there was a problem of reconciling or ordering conflicting claims. But he thought of the problem in terms
of the free individual will. Each of us was seeking to
exert his will in the external world. When, however,
we did exert our wills we clashed with others who
were exerting their wills. Thus there had to be some
systematic ordering of the exertions of free will
whereby each would have the greatest freedom in this
respect consistent with the like freedom of all. He
put the matter, therefore, as one of bringing about a
maximum of free individual self-assertion. Spencer also
put it in terms of liberty, formulating his theory of
social control in what he called the law of equal freedom: the liberty of each limited only by the like
liberties of all so as to bring about a maximum of
individual liberty. To Marx the problem seemed one
of satisfying material wants, and he conceived of a
social order so ruling the distribution of the material
goods of existence as to give to each a maximum equal
use of the means of satisfaction of those wants.
Let us pass by the philosophical and ethical and
economic questions involved in these theories which

A MEASURE OF VALUES

59

held the ground in the last century and see exactly

how the problem is presented to the jurist as a practical problem to be dealt with in a practical way. It is
obvious that he cannot expect to secure every claim
made or demand asserted by everybody or even a
selected number of claims to their full extent. Nor can
the selection be made arbitrarily. All experience has
shown that unrecognized claims or demands will
continually press for recognition until lawmakers or
courts or administrative agencies or jurists find out
what to do about them. First, therefore, there is the
task of making an inventory of the wants, desires,
claims or demands which men assert and call upon the
legal order to satisfy or to enable them to satisfy, of
which, therefore the legal order must take account.
But an inventory of such magnitude is not usable
unless it is classified. Hence as it is made it must be
arranged systematically. There must be a classification
of the claims pressing for recognition as well as of
those already recognized with which the newly urged
claims come into competition. Next must come selection out of the whole inventory of the claims which
are to be recognized. But none of them can be recognized to their full extent in view of other recognized
claims. Those which are recognized must be delimited. We must fix the limits within which they are
to be given effect in view of others. Finally we have
to devise legal institutions-rights, duties, liabilities,
powers, liberties and privileges-whereby to give effect
to the legally recognized claims or demands within
the limits fixed upon.

6o

CONTEMPORARY JURISTIC THEORY

At every step in this processs we encounter the

problem of values. In the very first step after we have
made our classified inventory we must ask why are
we to admit this claim or demand to our scheme of
recognized interests and not that one? Again we have
to ask why do we limit our recognition of this claim
or demand differently from that one? Why do we
limit each as we do? Next we must ask why do we
give effect to one by a legal right with correlative
duty, to another by imposing a liability, to another by
creating a power, to another by providing a privilege,
and to another by leaving a whole field of activity untouched and recognizing a liberty? Why do we give
effect to this one by punishment or by penal treatment, to that one by an action for damages, to another
by an injunction, and to another by exempting certain
occasions from the legal liability which generally
attaches to actions of the sort? All of these things, and
indeed, every step in the process just sketched, call for
comparison of one claim or one set of claims with
another which it overlaps or with which it comes in
competition or in conflict and a giving of more weight
or wider recognition or more effective securing to
those which are held to have higher value.
Since Jhering showed us the difference between the
legal institution we set up to secure a recognized claim
or demand and the claim or demand itself, as it exists
apart from the law, we have known the claim or demand by the name of interest. The term has occasioned some confusion because it has easily been
confused with an idea of advantage; the more so since

A MEASURE OF VALUES

61

Jhering's social utilitarianism made social advantage

the criterion of value and treated it as something
given, as something we know exactly as we know that
a certain claim or demand exists de facto and is pressed
upon lawmakers and courts for recognition. Everyone has an interest in, that is, makes a claim to the
satisfaction of his desires. They are his interests as he
sees it, and his view of the matter cannot be ignored
by telling him it is not to his advantage to want what
he feels he wants and insists he ought to have. Very
likely we can't give him what he claims or all that he
claims, but it is because we have to consider the conflicting or overlapping claims of others, not because
we decide he does not want it. We must, therefore,
as I have said, begin by ascertaining what are the
claims or demands which press upon lawmakers and
judges and administrative agencies for recognition and
securing.
In the inventory with which we must begin it is
convenient to classify the interests of which the legal
order must take account as individual or public or
social. All interests are those of individual human beings asserted by individuals. But some are claims or
demands or desires involved in the individual life and
asserted in tide of that life. Others are claims or demands or desires involved in life in the politically
organized society and asserted in title of that society.
Others or the same in other aspects are claims or
demands or desires involved in social life in civilized
society and asserted in tide of that life. Every claim
does not necessarily go once and for all in one of these

62

CONTEMPORARY JURISTIC THEORY

categories. The same claim may be asserted and may

have to be looked at from different standpoints; it
may be asserted in title of more than one aspect of life.
Thus my claim to my watch may be asserted as an
individual interest of substance when I sue someone,
who walks off with it without my consent, either to
recover possession of it or to obtain the money value
as damages for converting it. But it may be looked at
also as a social interest in the security of acquisitions
and asserted as such when I persuade the district attorney to prosecute for larceny someone who has stolen
it from me.
A mere sketch in broad lines of the scheme of interests which have pressed upon the legal order in the
past will suffice for our purposes. Individual interests
are interests of personality or interests in the domestic
relations or interests of substance. Interests of personality are those involved in the individual physical
and spiritual existence; in one's body and life, i.e.
security of his physical person and his bodily health,
in free exertion of one's will, i.e. freedom from coercion, and from deception as to what one is tricked into
doing by false representations, in free choice of location, in one's reputation, in freedom to contract and of
entering into relations with others, in free industry,
i.e. in freely employing himself or gaining employment in any occupation or activity for which he is
or is considered qualified, and in free individual belief
and opinion. It is enough to point out in passing that
the interests in freedom of contract and in freedom
of industry overlap or come into competition with

A MEASURE OF VALUES

63

claims of laboring men asserted through trade unions

and have raised typically difficult questions for the
courts for a generation.
Like difficult questions are raised by individual interests in the domestic relations. It is obvious that
husband and wife have each a claim or demand which
they make against the whole world that oufsiders
shall not interfere with the relation. Yet on a weighing
of all the interests involved California and many other
states have been impelled to abrogate the action for
alienation of affections by which that interest had
been secured. The interest is still recognized but
effective security is now denied. It is obvious too that
the relation involves reciprocal claims or demands
which each asserts against the other. The claims of the
husband to the society of the wife and to her services
for the benefit of the household, formerly well secured, are now deprived of all substantial security on
a weighing in comparison with the individual interest
of the wife in individual free self-assertion. But the
claim or demand of the wife for support and maintenance is not only recognized but is secured in a
variety of ways which make it one of the best secured
interests known to the law. So it is with the interests
involved in the relation of parent and child. Formerly
the claims of the parent were given effect by privileges of correction, by control of the child's earnings,
and by a wide authority of shaping the training and
bringing up of the child in every phase. Everywhere
today individual interests of the child and a social
interest in dependents have been weighed against the

64

CONTEMPORARY JURISTIC THEORY

claims of parents, and juvenile courts, courts of domestic relations, and family courts in our large cities have
greatly changed the balance of these interests.
By interests of substance we mean the claims or
demands asserted by individuals in title of the individual economic existence. Claims with respect to
property involve too many questions to make it worth
while to do more than mention them in the present
connection. It will be more useful for our immediate
purpose to look at a group of interests in economically
advantageous relations with others. Such relations may
be social or domestic or official or contractual. If a
man is wrongfully and maliciously expelled from a
social club the injury to his social standing in the
community may have a serious economic effect upon
him. Yet other claims have to be considered and the
courts cannot compel the members of the club to
associate with him if they persist in refusing to do so.
In one case where the courts ordered the expelled
member restored to membership the club reinstated
him and then dissolved and formed a new club, leaving
him out. We have noted already how claims of the
husband to the services of the wife in the household
are no longer effectively secured either against outside
interference with the relation or against the wife's
refusal to perform. As to official relations, public interests have to be weighed and the older conception
of property in a profitable office has been given up.
But the most significant questions have arisen with
respect to contractual relations. If A has a contract
with B he makes a claim against the whole world

A MEASURE OF VALUES

65

that third persons shall not interfere to induce B to

break the contract. Yet the third person may assert
claims which have to be taken account of in this connection, and some of the hardest questions in labor
law have turned on recognition of claims of labor
organizations to induce breaking of contracts of employment and what should be regarded as giving a
privilege to interfere with such contracts.
As to public interests, it will be enough to instance
one type of question where difficult problems of
weighing have arisen. How far is the dignity of the
political organization of society an interest to be taken
into account? When the political organization was
struggling with kin organization and religious organization for the primacy in social control, the dignity of
the state was a very serious matter. Hence it was
settled that the state could not be sued without its
consent, that its debts could not be set off against its
claims, that it was not estopped by what was done
by its officials, and that its claims were not lost by
official neglect to assert them nor barred by limitation.
Other public interests, e.g. a claim to unimpaired
efficiency of the political organization, entered into
the reckoning. But the extent to which the rules just
mentioned secure no more than the dignity of the state
and the weight to be given to that interest today are
controversial subjects in public law.
One could devote a whole lecture to a catalogue
of social interests. First we may put the general security, including claims to peace and order, the first social
interest to obtain legal recognition, the general safety,

66

CONTEMPORARY JURISTIC THEORY

long recognized under the maxim that the public

safety is the highest law, the general health, the security of acquisitions and the security of transactions.
The two last afford an excellent example of the overlapping and conflict of recognized interests. From the
standpoint of the security of. acquisitions a thief or
one who wrongfully holds another's property should
not be able to transfer to a third person a better tide
than he has. But from the standpoint of the security
of transactions, people generally who have no knowledge or notice of the owner's claim and, acting in
good faith, part with value in a business transaction
with one in possession of the property ought to be
protected. Possession ought to give a power of business transactions as to the thing possessed and apparently owned. This question as to the limits of what
is called negotiability has been coming up all over the
world and recent legislation has been giving greater
effect to the security of transactions in comparison
with the security of acquisitions. Closely related, and
scarcely less important is the social interest in the
security of social institutions, domestic, religious,
political, and economic. According as one gives the
chief weight to the individual claims of husband and
wife or to the social interest in marriage as a social
institution, he arrives at different results on the vexed
questions of divorce legislation. According as he gives
more weight to individual interests in free belief and
opinion or to the social interest in the security of
political institutions, he will reach different results as
to legislation against and prosecutions for sedition.

A MEASURE OF VALUES
67
Other important social interests are an interest in the
general morals, an interest in the use and conservation
of social resources, and an interest in general progress,
social, political, economic and cultural. Finally and by
no means least there is the social interest in the individual life, the claim or demand asserted in title of
social life in civilized society that each individual be
secure in his freedom, have secured to him opportunities, political, social and economic, and be able to
live at least a reasonably minimum human life in
society. Here again all manner of overlappings and
conflicts are continually encountered. But perhaps
enough has been said to bring out that every item in
the catalogue requires to be weighed with many others
and that no one can be admitted to its full extent
without impairing the scheme as a whole.
There is, moreover, a constant struggle to obtain a
higher valuing of particular claims or demands. Thus,
for example, the case pressed upon the legal order by
organized labor is not that laborers and labor organizations were not treated as other litigants and litigant
organizations, but that they were so treated, whereas
they claimed a higher value than that accorded by
legal formulas which put them on the same plane with
other men and treated their disputes as ordinary controversies about trespass, breach of contract and interference with contracts and business relations. There
are standing puzzles of the law about which lawmakers and jurists have debated and exercised their
ingenuity since the time of Cicero which are no
nearer satisfactory solution now than they were then.

68

CONTEMPORARY JURISTIC THEORY

Perhaps the best illustration is afforded by ihe case

where one in good faith adds his labor to another's
materials to make a new thing. Someone must be
owner of the new thing and someone must be left
to a claim for the value of his labor or materials as the
case may be. The classical Roman jurists differed as
between two solutions. Justinian chose a third. The
modem codes have tried others and one of the greatest
gave the matter up and left each case to the discretion
of the judge in that case. The Anglo-American courts
have not agreed and one of them added another possible solution which has been much followed.
From the Greek philosophers of the fifth century
B.C. political philosophers and jurists have busied
themselves in the quest of a measure of values for the
problems of social control and the legal order. In its
first stage of development the law aimed at nothing
more than keeping the peace. It made no attempt at
any general adjustment of relations and did not
attempt to order conduct beyond putting an end to
revenge and private war as the means of redressing
injuries. A philosopher of an earlier date, quoted by
Aristotle, considered that there were but three possible subjects of legal proceedings, namely, insult
(which seems to have included injuies to the physical person), theft, and homicide. The burden of social
control was carried by kin organization or religious
organization rather than by political organization of
society. Greek thought, directed to the phenomena
of the developed city state, soon got beyond this
primitive conception and put as the end of social con-

A MEASURE OF VALUES

69

trol an orderly maintaining of the social status quo.

The highest good was harmony, and harmony was to
be assured by assigning each man to the groove for
which he was fitted in the social order and keeping
him there. The versatile man, so dear to the imagination of the American pioneer, was out of place in the
Greek city. Roman jurists took over this idea and
made it the theory of the legal order; and whatever
had behind it the combined authority of Aristotle and
of the Roman law was accepted as a matter of course
by the later Middle Ages. A wholly different idea
that the end of social control and so of the legal order
is to bring about and maintain a maximum of individual free self-assertion begins to be urged after the
Reformation, develops in the seventeenth and eighteenth centuries and culminates in the nineteenth century, although for juristic purposes it gets its classical
formulation at the hands of Kant at the end of the
eighteenth century. After the middle of the next century the Kantian idea of the end of law begins to be
contested by an idea of a maximum satisfaction of material wants, putting material wants where Kant put
free wills. Later this last idea merged in one of bringing
about and maintaining a maximum of strength and
efficiency in organized society, identifying the political organization of society with civilization.
But such ideas of the end of law have not so much
given a measure of valuing interests as a starting point
for legal reasoning, a criterion of interpretation, and a
measure of the application of standards. For the practical purposes of recognizing, delimiting, and securing

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CONTEMPORARY JURISTIC THEORY

interests, lawyers have without formulating it worked

out a practical measure which has been adapted to
different ideas of the end of the legal order and yet
has a distinct idea implicit in it.
Let us put some examples of practical problems
with which courts have been wrestling recently. A
woman falls in a fit or has a stroke in a bank. A surgeon who has just drawn some money is going out to
keep an immediate appointment at a hospital where
he is to perform an important operation. There are
many bank employees about and many customers.
What is his legal duty? A ship is tied up to a dock
unloading. It has finished unloading and its license to
remain tied up has expired when a severe windstorm
comes up. It remains tied up and is pounded against
the dock, injuring it. Granting it has a privilege in
the emergency to remain tied up, which would otherwise be a trespass, does the privilege cover the damages to the dock or only the occupancy of the dock
after the license to be there had expired? Waste matter from an oil refinery operated with all care is carried into the soil by rains and penetrates to percolating
water so that it reaches a creek and poisons the stock
of a farmer who uses the creek to water his animals.
Is there liability? A passenger seeking to get on a
moving train at a station is helped by a porter so carelessly that a parcel he is carrying drops on the rails
and is run over. It contains explosives and the explosion which follows blows the weights off of scales
on the platform and one flies to some distance and hits

A MEASURE OF VALUES

7'

a woman who is waiting for another train. Is the railway company liable for the injury? Here we have the
antinomy which runs all through the law as to liability for injuries. Is the emphasis to be put on culpability-no liability without fault-or on security?
Or take the case of the sit-down strike. Are the claims
of labor organizations to advance the cause of the
working class to be given greater value than the general security? A novelist picks out the most unlikely
name he can think of and attributes to a man of that
name participation in flagrant municipal corruption
in a city easily identified as one of the principal cities
of the land. There had been prosecutions in that very
city for corruption of the sort and, unknown to the
author, a man of the very name used had been indicted
in connection with this prosecution but it had been
dismissed as to him. People generally who knew him
would think this man was described, although the
author had no idea of doing so. Again we have the
question as between fault and security. As the law has
stood if employees so carry on the course of their
employment as to create a nuisance, although the employer uses all care to prevent their doing so, the
employer is liable to a criminal prosecution because
when the rule arose he had full control and could pick
and discharge as he liked. What is to be the effect of
a regime of collective bargaining upon this rule? We
are told by philosophers today that these questions,
put as questions of morals, cannot be answered with
assurance. But the law must answer them and perhaps

72

CONTEMPORARY JURISTIC THEORY

we may learn something by perceiving how it has

gone about answering them in the light of experience
in the past.
Generally experience has revealed practical adjustments of interests to competing interests. Sometimes
however, it has taken a long time and a cautious
process of trial and error or of inclusion and exclusion, with the inevitable errors involved in trial and
error, to reveal the workable compromise or workable harmonizing. But the solutions arrived at in this
way have pointed the way for analogous cases and
reason acting upon experience has achieved much
more than reason proceeding independently, which
was relied upon in the era of natural law in the seventeenth and eighteenth centuries.
In the last century philosophical jurisprudence
sought to solve the practical problems of law by a
theory of natural rights. These rights, it was held,
could be defined with precision as deductions from a
fundamental idea of liberty. Every natural right was
to be fully secured and as these rights had full and
equal validity they could not conflict or overlap.
What we now term social interests were put on a
lower plane as mere policies guiding interpretation
and application but not calling for securing in and of
themselves. Thus the natural-rights theory put individual claims or demands, arranged in abstract categories, and thought of as having universal validity,
above state and society. They could be secured but
they must not be infringed. They did not admit of
adjustment or compromise. They could only be

A MEASURE OF VALUES

73

recognized and given legal effect. But no one was ever

equal to giving them the precise delimitation in detail
which the theory demanded. The problems of the law
in action lay at the periphery-in the undefined and
undefinable uncharted ground between these rights.
As to these the theory simply darkened counsel because it did not admit the validity of the adjustments
and compromises which experience had shown to be
necessary. Claims which had been traditionally recognized and were delimited by traditional legal precepts
were postulated as beyond the reach of legislation.
Claims which it was considered ought to be recognized and secured were confused with the legally
delimited claims and the apparatus by which the law
secured or sought to secure them. But all experience
showed that recognized interests must be reconciled
with each other in action by some sort of compromise;
that no claim could be admitted to its full logical
extent. The courts and lawmakers were left to do
blunderingly and yet with much practical effectiveness what they had always been doing in the way of
trial and error.
After interests have been recognized and delimited
there still remains how to secure them and the problem
of a measure of values is decisive here also. One way
is to confer a legal right, that is a capacity of influencing others through invoking the force of politically organized society. My interest of substance is
secured in one of its aspects by a legal right of possession of my watch. If someone takes it I can regain
possession by an action in the courts. My interest of

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CONTEMPORARY JURISTIC THEORY

substance is secured in another of its aspects by a

legal right of excluding others from my garden. All
others are under a legal duty of keeping out and can
be sued in court if they do not and are under a legal
liability if in anything they do they cast an unreasonable risk of injury upon it and injury results. I can
go into the courts and enforce that liability. Another
way is to confer a legal power. A wife has an interest
in support by the husband. If he does not provide her
with necessaries, she can pledge his credit at the
grocer's and he can be held by the grocer as if he
had bought them himself. Again recognized interests
may be secured legally by privileges. You have a
recognized interest in the integrity of your physical
person. I have a recognized interest in the exclusive
enjoyment of my garden. If a lunatic chases you with
a hatchet, the law confers on you a privilege in that
emergency of running across my garden to safety.
Or finally, recognized interests may be secured by a
liberty, by a condition of legal hands off, as for instance what is called the right to pursue a lawful
calling. The law leaves your natural liberty in that
respect unrestrained. You may choose what calling*
you like. It will be seen that an adjustment of claims
to a measure of values governs here as in every other
step in the legal adjustment of relations and ordering
of conduct.
There is still another matter to be taken into account before the task of adjusting competing interests
is complete. There are limits to the possibility of
securing some types of interest by the machinery

A MEASURE OF VALUES
75
of the legal order. If someone converts my watch to
his own use the law can award me the value of the
watch by way of damages and I can buy a new one
just as good. If someone takes wrongful possession of
my house I can have a judgment of recovery of possession and the sheriff can put him out and put me
in againt. But if a libeler injures my reputation I can't
buy a new one with money damages nor if a malicious
and unfounded prosecution for a detestable crime is
brought against me can the judgment of a court
wholly restore me to good esteem in the community.
The books are full of proofs that pitch, even when
wrongfully applied, will defile. The catalogue of cases
in which any remedy which the legal order can
apply is intrinsically inadequate is a long one. When
the legal order seems to fall short of what is demanded
by morals this must be borne in mind.
One more caution about juristic theories as to the
adjustment of competing interests must be added.
We must be careful to compare them upon the same
plane. It is easy to answer our question in the way we
put it. If we label one claim an individual interest
and the other a social interest, that may afford a seeming answer although both claims could be put equally
in either category. There has been too much of this
in recent political and juristic arguing.
What then is the practical measure of values which
the law has been using where theories have failed it?
Put simply it has been and is to secure as much
as possible of the scheme of interests as a whole as
may be with the least friction and waste; to secure

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CONTEMPORARY JURISTIC THEORY

as much of the whole inventory of interests as may

be with the least impairment of the inventory as a

whole. No matter what theories of the end of law
have prevailed, this is what the legal order has been
doing, and as we look back we see has been doing
remarkably well.
One of the hard problems of the law as to wrongs
is that of causation. Just how close must be the connection between fault and injury so that responsibility
for resulting damage should be thrown upon a careless actor? People must be secure so far as reasonably
may be. But other people must be free to act so far
as reasonably may be, and a margin of bad judgment
has proved to be inherent in human behavior. It is
significant that the Roman jurists, commenting on an
old statute of the Roman republic about wrongful
injury to property, put most of the hard questions
of causation with which we in England and America
have been wrestling for the past hundred years and
dealt with them very much as courts have dealt with
them independently in our common-law system in
modem times. Our courts have had a sound instinct
that it is not wise to carry responsibility for wrongs
done by a servant or agent, or for carelessness where
an unreasonable risk to others is not reasonably in
sight, too far. It is not sound social engineering to
carry the idea of security so far as to discourage individual enterprise by making it carry too heavy
a burden.
Anyone who thinks that the whole of modem law
may be thrown over and the legal order replaced by

A MEASURE OF VALUES

77

administrative absolutism, should look at the title Ad

Legem Aquiliam in Justinian's Digest and see how
perennial questions of intentional aggression upon
others and injury to others through culpably casting
upon them an unreasonable risk of injury have proved
to be; how universal practically workable solutions
of the questions raised by these aggressions and injuries have proved to be; how experience in every
part of the world has led to and confirmed results
reached on the basis of experience and reason by
Roman jurisconsults two thousand years ago.
What are the substitutes proposed to take the place
of the legal order-to take the place of adjustment
of relations and ordering of conduct by a judicial
process, employing an authoritative technique upon a
body of authoritative precepts formulating experience
of the administration of justice? One is a regime of
free contractual determination of rights and duties
by individuals whose claims come into competition.
This was the program of philosophical anarchy a
generation ago. It is out of fashion today because of
its ultra-individualist presuppositions and in any event
it is built on a faith in the efficacy of promises as intrinsically binding and self-enforcing which runs
counter to the realist thought of today. Another, following Marx's doctrine of disappearance of law with
the disappearances of classes, sees a regime of administrative absolutism. As one of the clearest exponents
of the doctrine puts it, in the ideal society there will
be no law, or rather only one rule of law, namely that
there are no laws but only administrative ordinances

78
CONTEMPORARY JURISTIC THEORY
and orders. Yet the country in which this was adopted
as a policy and applied under every favorable condition after two decades is reverting to law. A third
is what is called the corporative state, a state in which
the unit is no longer the individual human being but
instead the occupational group. In such a state, we
are told, law will not be necessary. Controversies
between members of the same group will be adjusted
by a committee of the group and those between members of different groups by a general committee in
which all groups are represented. The country in
which this has been preached as the outcome of a
totalitarian state has not as yet tried to put the program into practice. But legal history shows us that
a somewhat similar regime in kin organized society
simply led to the development of law.
Propositions not unlike that of the corporative
state, involving off-hand disposition of cases by laymen
applying their discretion to each case as something
unique, are not uncommon in our own land in recent
years. We have by no means outgrown the pioneer's
faith in versatility. The pioneer had perforce to be
versatile and he believed any man equal to anything.
During the Civil War it took us some time to learn
at much cost that a lawyer could not be made into a
competent general by giving him a major general's
commission. We were a long time learning that lay
judges were not equal to administration of justice in
a highly developed legal order. Lay healers still make
good incomes where legislation does not exclude
them. Any man appointed to a commission or board

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79

or bureau becomes an ex officio expert equal to regulating the most technical activities, the most highly
developed enterprises, in the light of his good intentions and personal ideals, without the guidance of the
law. If no measure of valuing competing interests is
possible, this may be as good a way out as any. But
the courts have in fact found and used one and formulated experience of using it in the law.
It is too much to expect that the results achieved
by long experience of administering justice according
to law can be achieved independently by even the
wisest of men acting on single cases with nothing but
their personal judgment to guide them. If a court in
one of our large cities, with one hundred and fifty
thousand cases a year before it, had to work out a
balancing or harmonizing or adjustment of interests
in each case, as something unique for the single case,
there could not be judges enough provided to do the
work. An architect may use formulas of the strength
of materials although he could not work out one of
them independently. A judge may use a formula of
law, embodying long experience of deciding cases,
although he personally has had little or none of the
experience formulated and would not know how to
reach the formula independently.
While philosophers are debating whether a scheme
of values is possible, lawyers and courts have found a
workable one which has proved as adequate to its
tasks as any practical method is in any practical activity. Without putting it in that way they have treated
the task of the legal order as an engineering task of

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achieving practical results with a minimum of friction

and waste. We must not forget that law is not the
only agency of social control. The household, the
church, the school, voluntary organizations such as
trade associations, professional associations, social
clubs and fraternal organizations, each with their
canons of conduct, do a greater or lesser part of the
task of social engineering. But the brunt of the task
falls on the legal order. The increasing secularization
of social control, the disintegration of kin organization,
loosening of the discipline of the household, loss of
ground by the church and secularizing of education,
have added immeasurably to what we expect of the
law. It is the more idle to expect its task to be performed by some off-hand system of personal discretion
applied to single cases as unique.
There is at any rate an engineering value in what
serves to eliminate or minimize friction and waste.
It may be that an ethical value may be found in what
gives the most effect to human demand with the least
sacrifice. At any rate William James thought so. It
may be that this adjustment of competing interests
with a minimum of waste makes for civilization and
has a philosophical value.
I am not offering this idea of social engineering as
a cure-all to be taken over by political and juristic
theory and used to solve all the difficult problems of
the science of law in the world of today. What I have
set forth is no more than a description of how the
legal order actually functions. It is a sketch of what
courts do and jurists and judges have been doing

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8x

since the Roman jurisconsults of the first century. In

the whole development of modem law courts and
lawmakers and law teachers, very likely with no clear
theory of just what they were doing, have been at
work finding practical adjustments and reconcilings,
and if nothing more was possible, practical compromises of conflicting and overlapping interests.
Sometimes philosophy has moved ahead of the law,
guiding its development. Sometimes the science of law
has moved ahead of the practice, guiding the work of
tribunals by criticizing and defining their ideals. But
sometimes philosophy has come after legal development and done no more than organize what has been
discovered in practice. So it was with the metaphysical jurisprudence of the historical school and with
positivism and utilitarianism in the last half of the
nineteenth century. They did no more than intrench
the ideas of past eras of legal development and enable
the established legal tradition to fight an obstinate
rear-guard action for the first generation of the present century. Now for a season philosophy is neither
leading nor organizing. It is telling us lawyers that
we can't do what it is our job to do.
But jurists are perceiving what it is that the legal
order has to do and has been doing, even if we have
had no clear theory of it. It may be that we can
expect no more than an organizing legal philosophy
to give us a critique of what we now see we have been
doing and of how we do it. Be this as it may, to the
proposition that we can't arrive at a measure of values
we may answer that we have found one, and a very

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workable one, whether we can prove its philosophical

validity or not.
We may concede, if you will, that there is no absolute value; that value is relative to something. Perhaps
value in jurisprudence is relative to civilization. Proximately it is relative to the task of the legal order, to
the task of enabling men to live together in civilized
society with a minimum of friction and a minimum of
waste of the goods of existence. What accords with
the jural postulates of the civilization of the time and
place has juristic value. If it will work in adjusting
relations and ordering conduct so as to eliminate or
minimize friction and waste, it is a valuable measure
for a practical activity.
But I am not giving up faith in philosophical jurisprudence because the fashionable philosophies of the
moment despair of doing anything for law. In the
Anglo-American political-legal polity questions of
reasonableness have to be determined with respect to
new types of social legislation. More and more in the
ordering of conduct, especially the conduct of enterprises, the law relies today on standards rather than
on rules. Also constitutional provisions, intended to
maintain a balance of state and national government,
have to be interpreted. Application of standards and
interpretation are done with reference to received
ideals, authoritative pictures of the social order which
are as much a part of the law as rules and principles
and conceptions and technique. It is here that most of
what creates dissatisfaction with the work of American courts has its origin. If philosophy cannot give us

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83

a measure of values, it can give us a critique of the

traditional ideals of the law. Our nineteenth century
ideal was drawn from the society of economically
self-sufficient neighborhoods of economically selfsufficient individuals in pioneer, rural, agricultural
America. Certainly it is not a picture of American
society of today. What the administration of justice
in America needs is not a reversion to justice without
law, a further development of absolutism, but a redrawing of the authoritative picture of the society in
which justice is administered.
It is bad social engineering to administer justice to
a blue print of a society of the past as a means of
maintaining the jural postulates of civilization in a
different society of the present.