development and self-assertion, so far as this might be done consistently with a like self-development and self-assertion on the part of others. It conceived that the function of the state and of the law was to make it possible for the individual to act freely. Hence it called for a minimum of legal restraint, restricting the sphere of law to such checks as are necessary to secure "a harmonious coexistence of the individual and of the whole." This purely individualist theory of justice culminated in the eighteenth century in the Declaration of the Rights of Man and the Bill of Rights so characteristic of that period. Spencer's formula of justice, "the liberty of each limited only by the like liberties of all," represents the ideal which American law has had before it during its whole existence. In politics, in ethics, and in economics this conception has decayed, and has given way to a newer idea of justice. But it continues to rule in jurisprudence.

In contrast with such juristic thinking of the immediate past, which started from the premise that the object of the law was to secure individual interests and knew of social interests only as individual interests of the state or sovereign, the juristic thinking of the present must start from the proposition that individual interests are to be secured by law because and to the extent that they are social interests. There is a social interest in securing individual interests so far as securing them conduces to general security, security of institutions and the general rural and social life of individuals. Hence while individual interests are one thing and social interests another, the law, which is a social institution, really secures individual interests because of a social interest in so doing.

Study of fundamental problems of jurisprudence, not petty changes of the judicial establishment, is the road to socialization of the law. First of all, there must be a definition of social justice to replace the individualistic or so-called legal justice which we have; there must be a definition of social interests and a study of how far these are subserved by securing the several individual interests which the law has worked out so thoroughly in the past; there must be a study of the means of securing these social interests otherwise than by the methods which the past had worked out for purely individual interests. Second, there must be a study of the actual social effects of legal institutions and legal doctrines. Courts cannot do this, nor can law teachers or law writers, except within narrow limits. The futility of a self-sufficing, self-centered science of law has become apparent to jurists.

318. Law and Social Statics3

BY OLIVER W. HOLMES

This case is decided upon an economic theory which a large part of the country does not entertain. If it were a question whether I agreed with the theory I should desire to study further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of the majority to embody their opinion in law. It is settled that state constitutions and laws may regulate life in many ways that we as legislators might think injudicious, or if you like, as tyrannical as this, and which equally interfere with the liberty of contract. This liberty of the citizen to do as he likes so long as he does not interfere with the like liberty of others to do the same, which has been a shibboleth for many wellknown writers, is interfered with by school laws, by the Post Office, by every state and municipal institution which takes his money for purposes thought desirable, whether he likes it or not. The 14th Amendment does not enact Herbert Spencer's Social Statics. A constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relations of a citizen to the state, or of laissez-faire. It is made for people of fundamentally differing views.

General propositions do not solve concrete problems. The decision will depend on a judgment or intuition more subtle than any articulate major premise. Every opinion tends to become law. I think that the word liberty in the 14th amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair minded man would necessarily admit that the proposed statute would infringe fundamental principles as they have been understood by the traditions and the laws of our people.

319. The Social Function of Law

BY HOMER HOYT

The critics of the current legal system seem to be agreed as to the baneful effect of its static character. Law is said to be a survival of eighteenth-century philosophy which cannot be justly ap

Lochner v. New York, 198 U. S. 74. This the well-known "bake-shop case." A statute passed by the New York legislature, regulating the hours of labor in bake shops, was declared unconstitutional. The selection given is an excerpt from a dissenting opinion (1904).

plied to twentieth-century society. The favorable hearing which this plea is receiving indicates that it is in keeping with the growing tendency of an age of industrial change to emphasize the dynamic and evolutionary elements of its institutions. The demand for relative standards of jurisprudence becomes more insistent, as people become more convinced of the unique and marvelous character of their own epoch. We are told that legal codes should be developed out of the experience of the society to which they are to be applied, and that any law whose basis is broader than the time and place in which it is now established, to the extent that it fails of this coincidence, is clearly unjust. In particular, our present society, which is so different from other societies both in degree of complexity and in kind of organization, necessarily requires rules of conduct which are adapted to its institutions. The scope of laws is not only to be narrowed to a brief time unit, but their application to different classes of individuals at the same moment is to be carefully reștricted. As commonly expressed, justice consists in giving to every person a square deal, and this is generally interpreted to mean judgment of the individual by the rules of the game which were set for his particular social environment. Perfect justice could be secured. in every case, according to these critics, by discarding past standards and by deciding each case upon its merits. This involves nothing less than the abandonment of objective rules of judgment, and the substitution in their place of the subjective test of the psychological laboratory. The indictment is thus chiefly directed against the social value of static standards of law.

The apologists for the existing legal institutions assert that stable standards of law are necessary to secure this very special consideration of the merits of each individual case, which constitutes the very essence of individual justice. They would remind their critics that legal principles originate in social intercourse, and are concerned with the conduct of individuals in relationships where some community of understanding is indispensable. The social conventions and institutions are the relatively static elements in society, and it is necessary for their function as media of social communication that they should be so. Their purpose is to furnish a convenient agency of mutual expression, which can be acquired with a minimum of effort on the part of the individual, and to establish an agreement among diverse and heterogeneous interests in regard to matters where unanimity is of great advantage to the individual. Law acquires its static character by becoming so familiar that it no longer requires conscious attention. Men form habits in regard to their legal institutions, for the same purpose that they form habits in

regard to language-to economize the time and effort of carrying on relations with their fellows. Legal standards thus enter indissolubly into the thoughts, acts, and characters of men as a part of their fundamental assumptions, which they accept without question. Individual acts inevitably carry forward the theory of law which existed prior to their performance, and thus tend to perpetuate the same principles. The prohibition of retroactive laws is universally considered necessary to prevent confiscation of property, and forfeiture of vested rights, but it accomplishes its purpose by guaranteeing a certain degree of stability in our legal system. Justice to the individual, according to the conception entertained in the preceding paragraph, can be assured only by recognizing the social value of static laws in setting up guideposts to direct individuals to the legal road. The complexity of modern civilization confuses and bewilders one who has no definite knowledge of its laws. As an immigrant in a strange land feels helpless and insecure because of ignorance of the unfamiliar social organization, so the native citizen is nonplused by shifting and unstable legal standards. The consequences of action may be that the individual is subjected to extraordinary civil and criminal liability, for society imputes legal responsibility to one definite act of the many which have co-operated to produce the final result. The criminal act itself is criminal in view of the social attitude which prevails at the time, and the justice of enforcing the social attitude is dependent upon announcement of it beforehand in terms sufficiently definite to put individuals upon their guard.

Uncertainty as to what is legal, when the consequences of guessing wrongly may result in heavy penalties, blights forward action in its very inception, at the moment when the individual is deciding to make the positive step required to overcome the safety and certainty of doing nothing. At this point the society whose duty it was to establish laws and administer justice finds itself deeply concerned, for upon the decision of the individuals depends its progress as a group. Activity of individuals is even more necessary to society than regulatory measures whose purpose is to secure the best type of activity. But when the rules of law depart from fixed standards to suit the exigencies of particular cases to such an extent that they cease to be trustworthy guides for future action, then law, instead of creating an attitude favorable to progress, deadens individual activity. In society as at present organized the social advantages of continued production and the opening of new lines of enterprise would be destroyed, were law made immediately responsive to social conditions, by the very agency which is designed to increase

social efficiency. A fairly stable and certain standard of law must necessarily be established to tempt individual initiative, and this implies that individual standards of justice must give way to a common standard of justice, which all individuals having social dealings can understand and interpret. Otherwise the plea of unusual circumstances or peculiar temperament will readily lend itself to arbitrary and capricious rules of law, the very possibility of which will foster suspicion and distrust of judicial processes. It is only because men are fairly certain that the main bases of property and contract rights will not be suddenly and substantially altered to their disadvantage, that they strike out into new fields of enterprise. It is only because individuals are confident that the court will not construct special standards to apply to their acts, that they will proceed with decision upon tomorrow's work. If all things were subject to change, would anyone confine his attention to one task even for a moment? Entrepreneurs may be able to calculate with some degree of accuracy the probable changes in the factors which will affect future markets for their products, but if the very standards by which they have made their calculations vary at the discretion of a future court, how accurately can they allow for these unprecedented psychological factors?

Definite rules of law are formulated by court decisions as well as by statutory enactment. In the case of court-made law the recognition of precedents is indispensable to the existence of the law, for a legal principle is not established until it comes to be acknowledged as binding upon the facts to which it applies. As fast as new laws are developed, the number of doubtful questions is diminished, and the road is cleared for fresh consideration of new situations which arise out of the dynamic progress of society. It is as necessary, therefore, that the courts be relieved of the enormous burden of reconsidering old issues, as it is for the individual to find definiteness in the law. As individuals accept the greater part of the questions arising out of their social relations as definitely settled, and proceed to expend money and effort upon the assumption that the definite rules will not be reversed, so the courts resolve new cases by comparing them with cases already decided. In thus basing their decisions on precedent, the courts are often unfairly accused of applying a blind rule of thumb to avoid the trouble of exerting ingenuity and using wisdom in devising methods of equitable relief. But it is manifestly far more unjust to reverse the settled principles upon the faith of which men have acquired power and governed their courses of action in the past than to enact into law the court's own unfettered opinion as to the justice of the case, which may or may