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of Washington upheld an act 12 of March 14, 1911,13 whereunder for injuries to workmen in extra-hazardous occupations, regardless of questions of fault, – save instances in which the workman himself had “the deliberate intention” to produce the so-called casualty, there shall be compensation, according to a schedule, from a state industrial insurance fund maintained by contributions from employers, the contributions being dependent upon wages paid and the seriousness of the hazard. The court expressed its approval, though unnecessarily, of the method whereby workmen's compensation acts measure the amount of indemnity. The important point, however, was the approval of the burden placed upon employers. As to this the court was emphatic, relying largely on the police power. The court expressly disapproved the New York decision, saying: “The act the court there had in review is dissimilar in many respects to the act before us, and is perhaps less easily defended on economic grounds. The principle embodied in the statutes is, however, the same; and it must be conceded that the case is direct authority against the position we have here taken."

In the Supreme Court of the United States there has been no decision exactly in point. There have been, to be sure, several decisions upholding the power of the state 14 and the federal 15 governments, within their respective spheres, to destroy the fellowservant rule and the defense of contributory negligence, notwithstanding the due process provisions of the Fourteenth and the Fifth Amendments. Further, there appear to be no decisions upholding the conception that the creation of a civil liability requires someone to be morally at fault. On the contrary, there are decisions which give argumentative support to the propositions that our system of law is satisfied if the person held responsible is in the chain of causation, and that a person places himself in this chain whenever he voluntarily enters into an undertaking which, though lawful in itself and conducted carefully by him, results in damage to another. Thus, there has been a decision upholding the power of the states to compel railways, though not negligent, to

12 Wash. Session Laws, 1911, c. 74. 13 This act did not affect causes of action existing on or before September 30.

14 Missouri Pacific Ry. Co. v. Mackey, 127 U. S. 205, 8 Sup. Ct. 1161 (1888); Tullis o. Lake Erie & Western R. Co., 175 U. S. 348, 20 Sup. Ct. 136 (1899).

16 El Paso & Northeastern Ry. Co. o. Gutierrez, 215 U. S. 87, 30 Sup. Ct. 21 (1909). pay for fires caused by their locomotives; 16 but this decision may be subject to the comment that an extraordinary liability has long been recognized as to a harborer of fire. There is also a very recent decision 17 that Congress can compel a carrier engaged in interstate commerce, and receiving merchandise for interstate transportation beyond its line, to pay for a loss to such merchandise even though the original carrier be free from negligence and the loss be caused by a later carrier on the specified route, and even though the bill of lading attempted to exclude this liability. As has been said, the decisions of the Supreme Court of the United States do not cover the very question as to workmen's compensation acts; but certainly they indicate with sufficient clearness this court's view that on the one hand due process of law does not require the perpetuation of old doctrines as to assumption of risk and contributory negligence, and that on the other hand due process of law includes, at any rate in civil cases as distinguished from criminal, no requirement of negligence or moral obliquity.18 Nothing in the decisions of the Supreme Court of the United States appears to prevent legislative bodies from shifting the primary incidence of the financial burden of an employee's accident from the employee himself to the employer, -- that is to say, from one to the other of the two persons who jointly enter upon the industrial undertaking and who thus participate in creating the situation out of which will come the casualty and the resultant loss to society.

The conclusion, then, is that, whether workmen's compensation acts are desirable or not, their essential features, both by reason and by the weight of decision, are constitutional. Apparently in large industrial enterprises the fellow-servant rule, assumption of risk, and contributory negligence are under sentence of death. That is a matter for the statesman and the legislator. To the mere lawyer it is clear enough that these old defenses are not rendered invulnerable and immortal by the Constitution of the United States.

Eugene Wambaugh. HARVARD Law School, Nov. 10, 1911.

26 St. Louis & San Francisco Ry. Co. v. Mathews, 165 U. S. 1, 17 Sup. Ct. 243 (1897). 17 Atlantic Coast Line R. Co. v. Riverside Mills, 219 U. S. 186, 31 Sup. Ct. 164 (1911).

18 Numerous state decisions to the same general effect are cited in State ex rel. Davis-Smith Co. v. Clausen, supra; but, like the decisions in the Supreme Court of the United States, they do not deal directly with workmen's compensation acts.







RADICAL change in jurisprudence began when the social

utilitarians turned their attention from the nature of law to its purpose. On this account, the work of the leader of this group, Rudolf von Jhering (1818-1892), is quite as epoch-making as that of Savigny. A great Romanist, Jhering saw, none the less, the futility of the jurisprudence of conceptions which the historical school had built upon the classical Roman law, and stood for a jurisprudence of actualities. Moreover, legislation was developing steadily in Germany as a living organ of the law, and this development was refuting a fundamental position of the orthodox historical jurisprudence. Not unnaturally, therefore, just as the Benthamian theory of law, which is really a theory of legislation, is utilitarian, Jhering's philosophical standpoint was teleological. Since life is governed by purpose, he held that the science of collective life must employ primarily a teleological method. It is not enough, he

1 The first paper, 24 Harv. L. REV. 591 et seq., treated of schools of jurists and methods of jurisprudence. This paper, continuing that discussion, takes up the socialphilosophical jurists in their relation to sociological jurisprudence.

2 Sternberg, Allgemeine Rechtslehre, I, 188-194; Berolzheimer, System der Rechts und Wirthschaftsphilosophie, II, § 84; Merkel, Gesammelte Abhandlungen aus dem Gebiet der allgemeinen Rechtslehre und des Strafrechts, II, 733, 744 et seq. For critiques of their views, see Berolzheimer, Rechtsphilosophische Studien, 143 el seq.; Stammler, Wirthschaft und Recht, 578-584; Stammler, Lehre von dem richtigen Rechte, 191 et seq. See also Korkunov, General Theory of Law (Hastings' transl.), $8 13-14.

3 Scherz und Ernst in der Jurisprudenz, 1 ed. (1884), 9 ed. (1904). * Maine, Early History of Institutions, Lect. XII and last paragraph of Lect. XIII.

5 Der Zweck im Recht, Vol. I, 1 ed. (1877), 2 ed. (1884), 3 ed., posthumous (1893); Vol. II, 1 ed. (1883), 2 ed. (1886), 3 ed., posthumous (1898); 4 ed., both volumes (1905).

6 Cf. Paulsen, Introduction to Philosophy (Thilly's transl.), xv, arguing that “ethics

conceived, for the jurist to know that law is a development; he must perceive not merely how it has developed, but for what purpose and to what end. He is not to draw the conclusion that legal doctrines and legal institutions are to be left to work themselves out blindly in their own way. They have not so worked themselves out in the past, but have been fashioned by human minds to meet human ends. For, he says, while we explain events of external nature by “because,” human acts are explained by "in order to”; and this "in order to” in the case of the human will is as indispensable as the “because” in the case of a physical object. Hence the law of cause and effect as applied to the human will, that is, the psychological law of cause and effect, is a law of purpose.? Upon this basis he builds an utilitarian philosophy of law, challenging the then philosophical position at the outset. “The sense of right,” he says, “has not produced law, but law the sense of right. Law knows but one source -- the practical one of purpose. ” 8 In other words, whereas the philosophical jurist, adopting an idealistic interpretation of legal history, considered that principles of justice and right are discovered and expressed in rules, and the historical jurist taught that principles of action are found by experience and developed into rules, Jhering held that means of serving human ends are discovered and are fashioned consciously into laws.

All exposition of the doctrines and achievements of the social utilitarians must take account of Jhering's personality. It has been said of him that he was predestined to be a jurist, that "he was a jurist by the grace of God.”! He saw the juristic possibilities of the most trivial events and transactions of every-day life.10 He was born with a sense of right and justice which proved a complete compensation for want of practical training and enabled him on occasion to overcome not merely grave theoretical doubts but even the consensus of authority among civilians. In contrast with his great contemporary, Windscheid, it has been said that legal convictions were intuitions with the one, but the result of

and sociology, jurisprudence and politics, are about to give up the old formalistic treatment and to employ instead the teleological method."

7 Der Zweck im Recht, 4 ed., I, 3-25. 8 Id., I, xiv. • Eck, Zur Feier des Gedächtnisses von B. Windscheid und R. v. Jhering, 11 (1893). 10 See his Law in Daily Life (transl. by Goudy).

regular theoretical deductions with the other. In consequence, Jhering makes a great deal of the sense of right and justice that is in all of us,12 and his view as to the administration of justice according to law calls for exercise by the magistrate of this sense of justice so as to advance the ends of law, and thus for a legal system that will afford due scope for such exercise. This is specially noticeable in his attack upon the “jurisprudence of conceptions” of the historical school.13

In the last half of the nineteenth century, the Romanist legal science of the historical jurists in Germany was coming to be out of touch with practical life. It was academic for the reason that much of our common-law legal science, e. g. assumption of risk, liberty of contract, right to follow a lawful calling, etc., is academic,

- because derived by deduction from historical premises which had lost their value and hence much of their meaning for the society of today. To this academic legal science Jhering sought to oppose “a jurisprudence of realities” in which legal precepts should be worked out and should be tested by their results, by their practical application, and not solely by logical deduction from principles discovered by historical study of Roman and Germanic law. The details of the movement which he started belong to the history of law on the Continent of Europe. But the method by which he brought about a complete change of front marks an era in the modern science of law. Sternberg says:

“With the fundamental proposition that legal conceptions exist for men and not men, whose weal and woe is so largely conditioned by administration of law, for the conceptions, he placed jurisprudence upon the basis of a sound realism of which every separate science, and especially every practical science, has need. The science of law must never lose contact with the present. Its problem is to discover what justice and right require now. It must bring into systematic, scientific order, whereby alone law can fulfil its purpose in the present state of human development, the legal materials brought forth by the living consciousness of right. ... If the scheme of legal conceptions does not express what the consciousness of right brings to the surface in practice, then the

11 Eck, I. c., 11. Perhaps this is what Kohler refers to when he speaks of Jhering as "ein ganz un philosophischer Kopf.Lehrbuch der Rechtsphilosophie, 16.

12 “The ethical self-assertion of the individual.” Der Zweck im Recht, 4 ed., 1, 47–61.

13 As to this see Sternberg, Allgemeine Rechtslehre, I, 187-194; Brütt, Die Kunst der Rechtsanwendung, 87 et seq.

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