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“Struggle for Law.' He went so far as to make it a duty on the part of the injured party to assert his right, even where, materially, it would not pay to do so; for, in defending his right, he is defending the whole body of law, and thus contributing to the maintenance of social order. “Desertion, in such a case, is treason to the common cause, for it strengthens the common enemy by increasing his boldness and audacity. When arbitrariness and audacity dare to lift their head, it is sure sign that those who are called upon to defend the law have not done their duty.” Thus, in watching jealously and vigilantly our own rights, we are doing society a service, inasmuch as it would help to bring about a social condition under which torts, crimes, and other breaches of law would be reduced to the minimum. As Jhering says rightly, "If we take man as he actually is, there is no doubt that the certainty of meeting a firm and resolute resistance is far more powerful to prevent the commission of an injustice than a simple prohibition, which has, in fact, no greater force than a moral precept.”+1 On the other hand, it is equally plain that the simplicity and cowardice of some people afford the tricky and cunning and strong ones a temptation to circumvent and wrong them. In short, the gist of Jhering's argument is that we have to be on our guard against all acts of arbitrariness and injustice, in order that public order and peace may be maintained. He looks at the individual rights from the social standpoint, they are but a medium through which society realizes its end. This paves the way for Pound's theory of social interests.
For Pound, as for Jhering, the ultimate sanction of a right lies, not in the right itself, but in the social demand for its enforcement. And if social interest can demand the enforcement of rights, it is obvious enough that it should also be able to demand their delimitation or even abridgment. Whether it demands one measure or another depends upon the special conditions which the society is placed in a given period of time. The thing which we have constantly to bear, in mind is that it is one of the principal functions of law to safeguard the general public against all arbitrary and oppressive acts on the part of those who may happen in a given time and place to possess the power to oppress and otherwise wrong or exploit their fellow-men. The power is not necessarily political in
39. Jhering “The Struggle for Law” transl. by John J. Lalor, Chicago, 1879.
40. Ibid. p. 68. 41. Ibid. p. 70.
42. Cf. Ulpian: Dig., 4, 3, 1; see Pound "Readings in Roman Law". (2 ed.) p. 45.
nature; it may be religious, cultural, or economic. Moreover, power is a relative term; like duress, though on a larger scale, power is relative to the psychology of those upon whom it is exercised, so that it has been rightly said, for instance, that a man in necessity is, in reality, not free, that is, not in his normal psychological state. All sorts of power are subject to abuses, and it is the function of law to prevent arbitrariness in the exercise of any power. But the question is by what standard the exercise of a power is to be judged. Where shall we draw the line of demarcation between reasonable and arbitrary? Pound's criterion is: Does it secure a maximum of interests with a minimum sacrifice of interests?
His tentative outline of the social interests follows: 43
I. General security: Safety; Health ; Peace and order; Security of transactions; Security of acquisitions.
II. Security of social institutions: Domestic; Religious; Political.
IV. Conservation of social resources: Use and conservation of natural resources; Protection and education of dependents and defectives; Reformation of delinquents; Protection of the economically dependent.
V. General progress:
1. Economic progress: (a) Freedom of property from restrictions on sale or use; (b) Free trade; (c) Free industry; (d) Encouragement of invention.
2. Political progress: (a) Free criticism; (b) Free opinion.
3. Cultural progress: (a) Free science; (b) Free letters; (c) Encouragement of arts and letters; (d) Encouragement of higher education; (e) Improvement of æsthetic surroundings.
VI. The individual life.
vary with time and place. In general, it may be said that each item rises and falls in value in direct proportion to the demand of the time and place. In the time of war, for instance, social interest in general security (safety, peace, and order) will be likely to dominate all the others. In a backward nation, social interest in general progress is to be appraised at a comparatively higher value. To a highly cultured but morally decadent nation, an emphasis upon social interest in general morals and in the security of sociał institutions is probably the best antidote. In a country where in
43. For a fuller exposition see Pound "A Theory of Social Interests” Papers and Proceedings of the American Sociological Society Vol. XV (May 1921), and “Judicial Empiricism in The Spirit of the Common Law's (Boston 1921) p. 166ff.
dustrialism threatens to stifle the human element altogether, and to turn humanity into one imposing but lifeless and soulless machinery, which seems to me to be the most terrible catastrophe that can befall mankind, it would not be a bad policy to take special account of social interest in individual life and in cultural progress; material civilization and culture being two different things. In a sterile land, social interest in the conservation of social resources should naturally be given paramount consideration.
In fact, the theory of social interests can be applied to all sets of situations and to all complexes of circumstances, with the necessary reservation, of course, that an emphasis upon one does not imply a neglect of the others. The theory of social interests does not even deny the utility of the heroic doctrine of the natural rights of man, and of the romantic "jurisprudence of conceptions." To a race, for instance, which is struggling to emancipate itself from the shackles of foreign influences and internal traditions, I don't know if there be a more effective stimulus and incentive to united action than the ideas of liberty, equality, and fraternity. To such a race, these generous and life-giving ideas, though exploded in countries that have enjoyed independence and prosperity long enough to forget their beneficent influences, are still true to the letter. In short, as a theory of legislation and as a guide to judicial decision, I know of nothing at once so subtle, so comprehensive and so safe as the theory of social interests.
Each controversy which comes before the court involves ultimately a weighing and balancing of social interests; for, according to Pound, individual interests can be stated in terms of social interests. For example, he says: "In weighing individual interests in view of the social interest in security of acquisitions and security of transactions, we must take account of the social interest in the human life of each individual, and so must restrict the legal enforcement of demands to what is consistent with a human existence on the part of the person subjected thereto."44
Furthermore, the nature of the subject matter of each controversy is to be used as a makeshift in the process of weighing and balancing “In matters of property and commercial law," says Pound, "where the economic forms of the social interest in general security-security of acquisitions and security of transactions—are controlling, mechanical application of fixed, detailed rules or of rigid deduction from fixed conceptions is a wise social engineering
In Bergsonian phrase we are in the proper field of in
44. "A Theory of Social Interests” (supra) pp. 42-43.
telligence, characterized by its power of 'grasping the general element in a situation and relating it to past situations.' ”45 On the other hand, in a controversy involving the moral quality or the reasonableness of individual conduct or of the conduct of enterprises, the apparatus of individualization should be used. Here “we have to do with the element that is unique in each case and calls for 'that perfect mastery of a special situation in which instinct rules.'"'46 Here, in other words, a more subtle balancing of social interests is required, and we must rely on the “trained intuition” of the judges. This reminds us of Justice Holmes' dictum in Lochner v. New York: "General propositions do not decide concrete cases. Their decision will depend on a judgment or intuition more subtle than any articulate major premise."47 In short, while wise social engineering makes use of machines to save human energy, it does by no means dispense altogether with human supervision.
A question might conceivably be raised as to the degree of certainty and definiteness which the theory of social interests is in a position to vouchsafe to the administration of justice. Not being a rigidly logical theory from which we can make definite deductions, does it not allow too much room for the whims and caprices of the judges? and does it not tend to subject all individual rights unreservedly to the vague and indefinite considerations of social interests? This question is well raised, because it leads us to go more deeply into the matter. Let us suppose, what in fact is impossible, that all the future cases can be anticipated even to the minutest detail, and that we can decide them in advance by means of unequivocal statutes. In such a case, it might well seem as though we were in possession of an absolute certainty. But even there, cer
. tainty is “illusion, and repose is not the destiny of men."48 For who is going to guarantee that the future judges will at all follow our commands, or that they will not misapply our rules, or even that they will have enough imagination to enable them to identify the situations that we have anticipated and committed to writing with those which arise actually before them? Between writing and actuality is a wide gulf, and certainty on the one side is not certainty on the other. In order to pass from a rule to its application, we have to bridge over the gulf with such stuff as “will” and “imagination," which are at once more subtle and less predicable than logical thinking. However certain and articulate we may try to make it, the finishing touch of a law has still to be performed by will and imagination.
45. "Interpretations" p. 154.
46. Ibid. p. 155. Whether due to the influence of Bergson or to the general philosophic atmosphere of the age, the time element has been introduced to the science of jurisprudence as a new dimension : see. Pound "Mechanical Jurisprudence" Col. L. Rev. VIII 817, where he emphasized the point that "delay of justice is denial of justice.”
47. 198 U. S. 78. This is one of Mr. Justice Holmes's "chance utterances,” which seems to me to be just as original and genuine as Goethe's “Gelegenheitsgedichte.”
48. Holmes "Collected Legal Papers" 181.
While logic may guarantee the certainty and validity of a theory, psychology alone can guarantee its application. And in the case of law, it is to social psychology that we owe our certainty. As Professor Stammler has said, "the validity of a positive law lies in the possibility of its enforcement,”49 and the possibility is to be measured by the psychological state of the people. Such general notions as “due process of law," "police power,” “public policy,” "fair conduct," "boni mores,” “reasonableness," "natural law," receive their contents continually from the social psychology, or, in a more familiar expression, the “public opinion.” Dicey has shown is how changes of public opinion can influence changes of law. No one will, of course, say that public opinion, as such, is law, but it goes necessarily to the making of it. In the mechanism of law, the above-mentioned general notions are empty vessels through which public opinion is continually conducted to the interior of the machine. These vessels must not be blocked up by solid stuff, if they are to serve as conductors.
To take the police power, for instance, it “is not a definite, specially limited and specially conferred power, like the power of Congress over interstate commerce. Indeed, the significant thing in the 'police power' is not power but purpose. Discussions of the police power are discussions of the power of a government to achieve its ends in ways not forbidden by the fundamental law."'50 of the police power is, thus, to be determined by the current conceptions of the ends of the government. While, in the nineteenth century, the police power was defined exclusively in terms of the general security, it is now being extended to other social interests. The opinion of Justice Holt in State v. Houghton is worth quoting: "It is time that courts recognize the æsthetic as a factor in life; it promotes the general welfare of the dwellers; preserves and enhances values; fosters contentment; creates civic pride; produces better citizens."51 Had the court suffered the nineteenth century stuff of
49. Stammler “Fundamental Tendencies in Modern Jurisprudence" Mich. L. Rev. XXI 901.
50. “A Theory of Social Interests” p. 28-29.
51. (Minn. 1920) 176 N. W. 158. As far as I am aware, it was Justice Holmes who started the question of aesthetic considerations; see Hubbard v: Taunton (1886) 140 Mass. 468, where the “picturesqueness and interest of life" was taken into account alongside with the “rudimentary wants.”