按键盘上方向键 ← 或 → 可快速上下翻页，按键盘上的 Enter 键可回到本书目录页，按键盘上方向键 ↑ 可回到本页顶部！
————未阅读完？加入书签已便下次继续阅读！
obvious doubts and questions which are suggested by these general views。
I know of none which are not easy to answer； but what I am trying to do
now is only by a series of hints to throw some light on the narrow path
of legal doctrine； and upon two pitfalls which； as it seems to me； lie
perilously near to it。 Of the first of these I have said enough。 I
hope that my illustrations have shown the danger； both to speculation
and to practice； of confounding morality with law； and the trap which
legal language lays for us on that side of our way。 For my own part； I
often doubt whether it would not be a gain if every word of moral
significance could be banished from the law altogether； and other words
adopted which should convey legal ideas uncolored by anything outside
the law。 We should lose the fossil records of a good deal of history
and the majesty got from ethical associations； but by ridding ourselves
of an unnecessary confusion we should gain very much in the clearness of
our thought。
So much for the limits of the law。 The next thing which I wish to
consider is what are the forces which determine its content and its
growth。 You may assume； with Hobbes and Bentham and Austin； that all
law emanates from the sovereign； even when the first human beings to
enunciate it are the judges； or you may think that law is the voice of
the Zeitgeist； or what you like。 It is all one to my present purpose。
Even if every decision required the sanction of an emperor with despotic
power and a whimsical turn of mind； we should be interested none the
less； still with a view to prediction； in discovering some order； some
rational explanation； and some principle of growth for the rules which
he laid down。 In every system there are such explanations and
principles to be found。 It is with regard to them that a second fallacy
comes in； which I think it important to expose。
The fallacy to which I refer is the notion that the only force at work
in the development of the law is logic。 In the broadest sense； indeed；
that notion would be true。 The postulate on which we think about the
universe is that there is a fixed quantitative relation between every
phenomenon and its antecedents and consequents。 If there is such a
thing as a phenomenon without these fixed quantitative relations； it is
a miracle。 It is outside the law of cause and effect； and as such
transcends our power of thought； or at least is something to or from
which we cannot reason。 The condition of our thinking about the
universe is that it is capable of being thought about rationally； or； in
other words； that every part of it is effect and cause in the same sense
in which those parts are with which we are most familiar。 So in the
broadest sense it is true that the law is a logical development； like
everything else。 The danger of which I speak is not the admission that
the principles governing other phenomena also govern the law； but the
notion that a given system； ours； for instance； can be worked out like
mathematics from some general axioms of conduct。 This is the natural
error of the schools； but it is not confined to them。 I once heard a
very eminent judge say that he never let a decision go until he was
absolutely sure that it was right。 So judicial dissent often is blamed；
as if it meant simply that one side or the other were not doing their
sums right； and if they would take more trouble； agreement inevitably
would come。
This mode of thinking is entirely natural。 The training of lawyers is a
training in logic。 The processes of analogy； discrimination； and
deduction are those in which they are most at home。 The language of
judicial decision is mainly the language of logic。 And the logical
method and form flatter that longing for certainty and for repose which
is in every human mind。 But certainty generally is illusion； and repose
is not the destiny of man。 Behind the logical form lies a judgment as
to the relative worth and importance of competing legislative grounds；
often an inarticulate and unconscious judgment； it is true； and yet the
very root and nerve of the whole proceeding。 You can give any
conclusion a logical form。 You always can imply a condition in a
contract。 But why do you imply it？ It is because of some belief as to
the practice of the community or of a class； or because of some opinion
as to policy； or； in short； because of some attitude of yours upon a
matter not capable of exact quantitative measurement； and therefore not
capable of founding exact logical conclusions。 Such matters really are
battle grounds where the means do not exist for the determinations that
shall be good for all time； and where the decision can do no more than
embody the preference of a given body in a given time and place。 We do
not realize how large a part of our law is open to reconsideration upon
a slight change in the habit of the public mind。 No concrete
proposition is self evident； no matter how ready we may be to accept it；
not even Mr。 Herbert Spencer's 〃Every man has a right to do what he
wills； provided he interferes not with a like right on the part of his
neighbors。〃
Why is a false and injurious statement privileged； if it is made
honestly in giving information about a servant？ It is because it has
been thought more important that information should be given freely；
than that a man should be protected from what under other circumstances
would be an actionable wrong。 Why is a man at liberty to set up a
business which he knows will ruin his neighborhood？ It is because the
public good is supposed to be best subserved by free competition。
Obviously such judgments of relative importance may vary in different
times and places。 Why does a judge instruct a jury that an employer is
not liable to an employee for an injury received in the course of his
employment unless he is negligent； and why do the jury generally find
for the plaintiff if the case is allowed to go to them？ It is because
the traditional policy of our law is to confine liability to cases where
a prudent man might have foreseen the injury； or at least the danger；
while the inclination of a very large part of the community is to make
certain classes of persons insure the safety of those with whom they
deal。 Since the last words were written； I have seen the requirement of
such insurance put forth as part of the programme of one of the best
known labor organizations。 There is a concealed； half conscious battle
on the question of legislative policy； and if any one thinks that it can
be settled deductively； or once for all； I only can say that I think he
is theoretically wrong； and that I am certain that his conclusion will
not be accepted in practice semper ubique et ab omnibus。
Indeed； I think that even now our theory upon this matter is open to
reconsideration； although I am not prepared to say how I should decide
if a reconsideration were proposed。 Our law of torts comes from the old
days of isolated； ungeneralized wrongs； assaults； slanders； and the
like； where the damages might be taken to lie where they fell by legal
judgment。 But the torts with which our courts are kept busy today are
mainly the incidents of certain well known businesses。 They are
injuries to person or property by railroads； factories； and the like。
The liability for them is estimated； and sooner or later goes into the
price paid by the public。 The public really pays the damages； and the
question of liability； if pressed far enough； is really a question how
far it is desirable that the public should insure the safety of one
whose work it uses。 It might be said that in such cases the chance of a
jury finding for the defendant is merely a chance； once in a while
rather arbitrarily interrupting the regular course of recovery； most
likely in the case of an unusually conscientious plaintiff； and
therefore better done away with。 On the other hand； the economic value
even of a life to the community can be estimated； and no recovery； it
may be said； ought to go beyond that amount。 It is conceivable that
some day in certain cases we may find ourselves imitating； on a higher
plane； the tariff for life and limb which we see in the Leges
Barbarorum。
I think that the judges themselves have failed adequately to recognize
their duty of weighing considerations of social advantage。 The duty is
inevitable； and the result of the often proclaimed judicial aversion to
deal with such considerations is simply to leave the very ground and
foundation of judgments inarticulate； and often unconscious； as I have
said。 When socialism first began to be talked about； the comfortable
classes of the community were a good deal frightened。 I suspect that
this fear has influenced judicial action both here and in England； yet
it is certain that it is not a conscious factor in the decisions to
which I refer。 I think that something similar has led people who no
longer hope to control the legislatures to look to the courts as
expounders of the constitutions； and that in some courts