The Harvard Classics Vol. 51/Political Science V.
V. LAW AND LIBERTY
By Professor Roscoe Pound
FOR what end does the legal order exist? What do we seek to achieve through the political organization? What is the ultimate purpose in lawmaking, that is, in the selection and formulation of the standards for the public administration of justice which organized society establishes or recognizes? These are the first questions in legal and in political philosophy. The history of juristic thought and of political thought is chiefly a history of the way in which men have answered them.
THE AIM OF LAW (l) IN PRIMITIVE SOCIETIES
In primitive societies the answers are that the legal order exists simply to keep the peace, that men seek through the legal order to avert individual self-redress and prevent private war, and that the purpose of lawmaking is to establish rules by which controversies may be adjusted peaceably. Accordingly, whereas to-day we seek, as we say, to do justice, seeking to preserve the peace and to adjust controversies peaceably simply as means thereto and incidents thereof, primitive legal systems make peace the end. Where to-day we think of compensation for an injury, primitive law thinks only of composition for the desire to be avenged. Where to-day we seek to give to each what he ought to have or the nearest possible equivalent, primitive law seeks only to give him a substitute for vengeance in case he is wronged.
(2) IN GREECE AND ROME
Greek philosophy and Roman law soon passed beyond the crude conception of the end of the legal order in primitive society. Instead, they gave these answers: The legal order exists to preserve the social status quo; men seek through the legal order to keep each individual in his appointed groove, and thus to prevent the friction with his fellowmen which primitive law sought only to mitigate. This is brought out very clearly in Greek political philosophy. Thus, in Plato's ideal state the state is to assign everyone to the class for which he is best fitted and the law is to keep him there, in order that a perfect harmony and unity may prevail. St. Paul's well-known exhortation (Ephesians v, 22ff. and vi, 1–5) in which he calls on all the faithful to exert themselves to do their duty in the class in which they find themselves, proceeds upon the same conception. The Roman lawyers turned this idea of political philosophy into law. In the great institutional book of Roman law, the Institutes of Justinian, we are told that the precepts of law come to three; to live honorably, not to injure another, and to give to everyone his due. The idea here is that the state and the law exist to maintain harmoniously the existing social order. What the interests of another are, which one is not to injure, what makes anything another's due, so that it is to be given him, are matters which are left wholly to the traditional social organization.
(3) BEFORE AND AFTER THE REFORMATION
On the downfall of the Roman empire the Germanic invaders brought back for a season the primitive ideas of buying off vengeance and keeping the peace through arbitrary peaceful solution of disputes by mechanical modes of trial and hard and fast rules. But during the Middle Ages these conceptions gradually yielded to the classical idea of the legal order as a means of preserving the social status quo, the more since the latter was fortified by the unassailable authority of texts of scripture and of the Roman law. Moreover, from the thirteenth century on, philosophers more and more sought to sustain authority by reason, and in this way they prepared the way for a new conception which developed in the seventeenth century. For by that time two events of capital importance had compelled a complete revolution in legal and political philosophy. In the first place the Reformation had divorced the philosophy of law and of politics from theology and had set them free from the authority of the church. This was the work of the Protestant jurist theologians of the sixteenth century.[1] Secondly, following the nationalist movement which resulted from the breakdown of the unifying and universal authorities of the Middle Ages, the church and the empire,[2] the Germanists overthrew the idea of the binding authority of the Roman law in modern Europe. Accordingly it became necessary to find new bases for legal and political authority, and those bases were found in reason and in contract, or the consent and agreement of the individual.[3]
REASON AND NATURAL RIGHTS
In the seventeenth and eighteenth centuries reason was made the measure of all obligation. Seventeenth-century legal and political philosophers considered that law existed in order to produce conformity to the nature of rational creatures. In practice, however, though they had broken with authority as such, they accepted the Roman law as embodied reason and essayed very little that did not have authority behind it. In consequence the Roman maxim—not to injure another and to give to everyone his own—was taken to express the nature of rational creatures, and respect for personality and respect for acquired rights remained the two cardinal principles of justice. But these principles raised two obvious questions: (1) What is there in personality that makes aggression an injury, and (2) what is it that makes anything one's own? The answer was sought in a theory of natural rights, or of certain qualities inherent in individual human beings and demonstrated by reason to which society, state, and law were bound to give effect. According to this theory, justice is the maximum of individual self-assertion; it is the function of the state and of the law to make it possible for the individual to act freely. Hence the sphere of law is limited to the minimum of restraint and coercion necessary to allow the maximum of self-assertion by each, limited by the like self-assertion by all. This purely individualist theory of justice culminated in the eighteenth century in the Declarations of the Rights of Man and Bills of Rights which are so characteristic of that time.[4]
At the close of the eighteenth century the foundations of the seventeenth and eighteenth century theory were shattered by Immanuel Kant.[5] But he furnished a new metaphysical foundation for the conception of justice as the maximum of individual self-assertion and in consequence it survived for about a hundred years and was given complete logical development in the political, economic, and juristic writing of the nineteenth century, although the actual law began to break away from this idea in Europe by the middle of the century and was definitely breaking away in America in the last decade thereof.
In the nineteenth century, then, legal and political philosophers were agreed that the end of the legal order, the purpose of political organization and purpose of lawmaking, were to secure and maintain individual liberty. The historian found in history the unfolding of this idea in human experience. The philosophical jurist postulated free will as the fundamental principle and deduced therefrom an ideal system of principles of liberty to which law ought to conform. The utilitarian legislator took individual liberty for the one sure means of producing human happiness and so made it the goal of all lawmaking. Mill's treatise "On Liberty"[6] is the best example of a thoroughgoing exposition of this nineteenth-century idea of abstract liberty. Moreover, it is much more tempered and reasonable in its attitude toward what we now call social legislation, so far as it restrains an abstract liberty of action whereby under pressure the weak barter away their actual liberty, than most contemporary or even subsequent writing from the same standpoint.
THE MODERN SOCIAL POINT OF VIEW
To-day the social-philosophical school has given us a new conception of the end of the legal order. Instead of the maximum of individual self-assertion consistent with a like self-assertion by all others, we are now putting as the end the maximum satisfaction of human wants, of which self-assertion is only one, even if a very important one. Hence juristic and political theory to-day thinks of interests, that is of claims which a human being may make, and of securing or protecting the greatest number of these interests possible with the least sacrifice of other interests. Moreover there are public interests, or claims which the organized political society may make, and social interests, or claims of society at large. Ultimately all interests, individual and public, are secured and maintained because of a social interest in so doing. But this does not mean that individual interests, the details of which the nineteenth century worked out so well, are to be ignored. On the contrary, the chiefest of social interests is the moral and social life of the individual, and thus individual interests become largely identical with a social interest. In securing them because of the social interest in the moral and social life of the individual, however, and in recognizing that individual self-assertion is only one human want, which must be weighed with others in a finite world where all wants cannot be satisfied, a governmental paternalism or even maternalism may become proper, which would have seemed intolerable to thinkers in the last century. In this connection, Mill on Liberty has a permanent value, despite the entire change in our views as to the end of law and of the state. Just as in the seventeenth century an undue insistence upon public interests, thought of as the interests of the sovereign, defeated the moral and social life of the individual and required the assertion of individual interests in Bills of Rights and Declarations of Rights, there is a like danger that certain social interests will be unduly emphasized and that governmental maternalism will become an end rather than a means and will defeat the real purposes of the legal order. Hence, although we think socially, we must still think of individual interests, and of that greatest of all claims which a human being may make, the claim to assert his individuality, to exercise freely the will and the reason which God has given him. We must emphasize the social interest in the moral and social life of the individual, but we must remember that it is the life of a free-willing being.