,,an ,,introduction ,,to ,,the          
,,philosophy ,,of ,,law                 
,,the ,,addresses ,,contained ,,in      
,,this ,,book ,,were                    
,,delivered ,,in ,,the ,,william ,l4    
,,storrs                    ,,lecture   
,,series1 #aiba1 ,,before ,,the         
,,law ,,school ,,of ,,yale ,,university1
                         ,,new ,,haven1 
,,connecticut                           
,an ,introduction to the                
,philosophy of ,law                     
,,by                                    
,,roscoe ,,pound                        
,,new ,,haven3 ,,yale ,,university      
,,press                        ,,london3
 ,,humphrey ,,milford                   
,,oxford ,,university ,,press           
,,copyright1 #aibb1 ,,by ,,yale         
,,university ,,press                    
,,printed ,,in ,,the ,,united ,,states  
,,of ,,america                          
,first ,published1 ,may1 #aibb4         
,second ,printing1 ,december1 #aibd4    
,third ,printing1 ,may1 #aibe4          

,fourth ,printing1 ,april1 #aicj4       
,,to                           ,,joseph 
,,henry ,,beale                   ,,in  
,,grateful ,,acknowledgment ,,of ,,many 
,,obligations     ,the present volume is
 the second work published under the    
imprint of the ,yale ,university ,press 
in memory of ,arthur ,p4 ,mc,kinstry1   
who died in ,new ,york ,city1 ,july #ba1
 #aiba4 ,born in ,winnebago ,city1      
,minnesota1 on ,december #bb1 #ahha1 he 
was graduated from ,yale ,college in    
#aije1 and in #aijg received the degree 
of ,,ll4,b4 magna cum laude from the    
,yale ,law ,school1 graduating at the   
head of his class4 ,throughout his      
career at ,yale he was noted both for   
his scholarship and for his active      
interest in debating1 which won for him 
first the presidency of the ,freshman   
,union and subsequently the presidency  
of the ,yale ,union4 ,he was also ,class
 ,orator in #aije1 and vice-president of
 the ,yale ,chapter of ,phi ,beta       
,kappa4  ,following his graduation from 

the ,school of ,law he entered upon the 
practice of his profession in ,new ,york
 ,city and early met with the success   
anticipated for him by his friends1--his
 firm1 of which he was the senior       
member1 being recognized at the time of 
his death as among the most prominent of
 the younger firms in the city4 ,he was 
counsel for the ,post-,graduate         
,hospital of ,new ,york1 the ,heckscher 
,foundation for ,children1 of which he  
was also a trustee1 and from #aiab to   
#aiad served as associate counsel to the
 ,agency of the ,united ,states in the  
,american and ,british ,claims          
,arbitration4 ,by his untimely death the
 bar of the ,city of ,new ,york lost a  
lawyer outstanding for his ability1     
common sense1 conscientiousness1 and    
high sense of justice2 and ,yale        
,university lost an alumnus of whom she 
was proud1 who gave freely of his time  
and thought to his class of #aije1 to   
the development of the ,yale ,school of 
,law1 and to the upbuilding of the ,yale

 ,university ,press1 which he served as 
counsel4     ,preface   ,this book is a 
written version of lectures delivered   
before the ,law ,school of ,yale        
,university as ,storrs ,lectures in the 
school year #aiba-aibb4  ,a             
metaphysician who had written on the    
secret of ,hegel was congratulated upon 
his success in keeping the secret4 ,one 
who essays an introduction to the       
philosophy of law may easily achieve a  
like success4 ,his hearers are not      
unlikely to find that he has presented  
not one subject but two1 presupposing a 
knowledge of one and giving them but    
scant acquaintance with the other4 ,if  
he is a philosopher1 he is not unlikely 
to have tried a highly organized        
philosophical apparatus upon those      
fragments of law that lie upon the      
surface of the legal order1 or upon the 
law as seen through the spectacles of   
some jurist who had interpreted it in   
terms of a wholly different             
philosophical system4 ,looking at the   

list of authorities relied upon in      
,spencer's ,justice1 and noting that his
 historical legal data were taken from  
,maine's ,ancient ,law and thus came    
shaped by the political-idealistic      
interpretation of the ,english          
historical school1 it is not difficult  
to perceive why positivist and ,hegelian
 came to the same juristic results by   
radically different methods4 ,on the    
other hand1 if he is a lawyer1 he will  
very likely have been able to do no more
 than attempt none too intelligently to 
work with the complicated and delicate  
engines of others upon the toughest and 
most resistant of legal materials4      
,until some ,anglo-,american jurist     
arises with the universal equipment of  
,josef ,kohler the results of common-law
 incursions into philosophy will        
resemble the effort of the editorial    
writer who wrote upon ,chinese          
,metaphysics after reading in the       
,encyclopdia ,britannica under ,china   
and ,metaphysics and combining his      

information4 ,yet such incursions there 
must be4 ,philosophy has been a powerful
 instrument in the legal armory and the 
times are ripe for restoring it to its  
old place therein4 ,at least one may    
show what philosophy has done for some  
of the chief problems of the science of 
law1 what stands before us to be done in
 some of the more conspicuous problems  
of that science today in which          
philosophy may help us1 and how it is   
possible to look at those problems      
philosophically without treating them in
 terms of the eighteenth-century natural
 law or the nineteenth-century          
metaphysical jurisprudence which stand  
for philosophy in the general           
understanding of lawyers4               
,,roscoe ,,pound4  ,harvard ,law        
,school1    ,october #be1 #aiba4        
,contents       ,i4 ,the ,function of   
,legal ,philosophy                      
#ae    ,,ii4 ,the ,end of ,law          
#ei   ,,iii4 ,the ,application of ,law  
#ajj    ,,iv4 ,liability                

#add     ,v4 ,property                  
#aia    ,,vi4 ,contract                 
#bcf        ,bibliography               
#bhe        ,index                      
#cji     ,i  ,the ,function of ,legal   
,philosophy   ,for twenty-four hundred  
years--from the ,greek thinkers of the  
fifth century ,b4 ,c41 who asked whether
 right was right by nature or only by   
enactment and convention1 to the social 
philosophers of today1 who seek the     
ends1 the ethical basis and the enduring
 principles of social control--the      
philosophy of law has taken a leading   
rle in all study of human institutions4 
,the perennial struggle of ,american    
administrative law with                 
nineteenth-century constitutional       
formulations of ,aristotle's threefold  
classification of governmental power1   
the stone wall of natural rights against
 which attempts to put an end to private
 war in industrial disputes thus far    
have dashed in vain1 and the notion of a
 logically derivable super-constitution1

 of which actual written constitutions  
are faint and imperfect reflections1    
which has been a clog upon social       
legislation for a generation1 bear daily
 witness how thoroughly the             
philosophical legal thinking of the past
 is a force in the administration of    
justice of the present4 ,indeed1 the    
everyday work of the courts was never   
more completely shaped by abstract      
philosophical ideas than in the         
nineteenth century when lawyers affected
 to despise philosophy and jurists      
believed they had set up a              
self-sufficient science of law which    
stood in no need of any philosophical   
apparatus4  ,in all stages of what may  
be described fairly as legal            
development1 philosophy has been a      
useful servant4 ,but in some it has been
 a tyrannous servant1 and in all but    
form a master4 ,it has been used to     
break down the authority of outworn     
tradition1 to bend authoritatively      
imposed rules that admitted of no change

 to new uses which changed profoundly   
their practical effect1 to bring new    
elements into the law from without and  
make new bodies of law from these new   
materials1 to organize and systematize  
existing legal materials and to fortify 
established rules and institutions when 
periods of growth were succeeded by     
periods of stability and of merely      
formal reconstruction4 ,such have been  
its actual achievements4 ,yet all the   
while its professed aim has been much   
more ambitious4 ,it has sought to give  
us a complete and final picture of      
social control4 ,it has sought to lay   
down a moral and legal and political    
chart for all time4 ,it has had faith   
that it could find the everlasting1     
unchangeable legal reality in which we  
might rest1 and could enable us to      
establish a perfect law by which human  
relations might be ordered forever      
without uncertainty and freed from need 
of change4 ,nor may we scoff at this    
ambitious aim and this lofty faith4     

,they have been not the least factors in
 the power of legal philosophy to do the
 less ambitious things which in their   
aggregate are the bone and sinew of     
legal achievement4 ,for the attempt at  
the larger program has led philosophy of
 law incidentally to do the things that 
were immediately and practically        
serviceable1 and the doing of these     
latter1 as it were sub specie           
aeternitatis1 has given enduring worth  
to what seemed but by-products of       
philosophical inquiry4  ,two needs have 
determined philosophical thinking about 
law4 ,on the one hand1 the paramount    
social interest in the general security1
 which as an interest in peace and order
 dictated the very beginnings of law1   
has led men to seek some fixed basis of 
a certain ordering of human action which
 should restrain magisterial as well as 
individual wilfulness and assure a firm 
and stable social order4 ,on the other  
hand1 the pressure of less immediate    
social interests1 and the need of       

reconciling them with the exigencies of 
the general security1 and of making     
continual new compromises because of    
continual changes in society1 has called
 ever for readjustment at least of the  
details of the social order4 ,it has    
called continually for overhauling of   
legal precepts and for refitting of them
 to unexpected situations4 ,and this has
 led men to seek principles of legal    
development by which to escape from     
authoritative rules which they feared or
 did not know how to reject1 but could  
no longer apply to advantage4 ,these    
principles of change and growth1        
however1 might easily prove inimical to 
the general security1 and it was        
important to reconcile or unify them    
with the idea of a fixed basis of the   
legal order4 ,thus the philosopher has  
sought to construct theories of law and 
theories of lawmaking and has sought to 
unify them by some ultimate solving idea
 equal to the task of yielding a perfect
 law which should stand fast forever4   

,from the time when lawgivers gave over 
the attempt to maintain the general     
security by belief that particular      
bodies of human law had been divinely   
dictated or divinely revealed or        
divinely sanctioned1 they have had to   
wrestle with the problem of proving to  
mankind that the law was something fixed
 and settled1 whose authority was beyond
 question1 while at the same time       
enabling it to make constant            
readjustments and occasional radical    
changes under the pressure of infinite  
and variable human desires4 ,the        
philosopher has worked upon this problem
 with the materials of the actual legal 
systems of the time and place1 or with  
the legal materials of the past upon    
which his generation had built4 ,hence  
in closer view philosophies of law have 
been attempts to give a rational account
 of the law of the time and place1 or   
attempts to formulate a general theory  
of the legal order to meet the needs of 
some given period of legal development1 

or attempts to state the results of the 
two former attempts universally and to  
make them all-sufficient for law        
everywhere and for all time4 ,historians
 of the philosophy of law have fixed    
their eyes chiefly on the third4 ,but   
this is the least valuable part of legal
 philosophy4 ,if we look at the         
philosophies of the past with our eyes  
upon the law of the time and place and  
the exigencies of the stage of legal    
development in which they were          
formulated1 we shall be able to         
appreciate them more justly1 and so far 
as the law of the time and place or the 
stage of legal development was similar  
to or different from the present to     
utilize them for the purposes of today4 
,we know ,greek law from the beginnings 
of a legal order as pictured in the     
,homeric poems to the developed         
commercial institutions of the          
,hellenistic period4 ,in its first stage
 the kings decide particular causes by  
divine inspiration4 ,in a second stage  

the customary course of decision has    
become a tradition possessed by an      
oligarchy4 ,later1 popular demand for   
publication results in a body of        
enactment4 ,at first enactments are no  
more than declaratory4 ,but it was an   
easy step from publication of           
established custom to publication of    
changes as if they were established     
custom and thus to conscious and avowed 
changes and intentional new rules       
through legislation4 ,the law of ,athens
 in the fifth and fourth centuries ,b4  
,c4 was a codified tradition eked out by
 legislation and individualized in its  
application through administration of   
justice by large popular assemblies4    
,thus in spite of formal reduction to   
writing it preserved the fluidity of    
primitive law and was able to afford a  
philosophy for ,roman law in its stage  
of equity and natural law--another      
period of legal fluidity4 ,the          
development of a strict law out of      
codified primitive materials1 which in  

,rome happily preceded the stage of     
equity and natural law1 did not take    
place in the ,greek city4 ,hence the    
rules of law were applied with an       
individualized equity that reminds us of
 the ,french droit coutumier--a mode of 
application which1 with all its good    
points1 must be preceded by a body of   
strict law1 well worked out and well    
understood1 if its results are to be    
compatible with the general security in 
a complex social order4 ,in ,athens of  
the classical period the word ,greek3   
nmos1 meaning both custom and enacted   
law as well as law in general1 reflected
 the uncertainty with respect to form   
and the want of uniformity in           
application1 which are characteristic of
 primitive law1 and invited thought as  
to the reality behind such confusion4   
,we may understand the materials upon   
which ,greek philosophers were working  
if we look at an exhortation addressed  
by ,demosthenes to an ,athenian jury4   
,men ought to obey the law1 he said1 for

 four reasons3 because laws were        
prescribed by ,god1 because they were a 
tradition taught by wise men who knew   
the good old customs1 because they were 
deductions from an eternal and immutable
 moral code and because they were       
agreements of men with each other       
binding them because of a moral duty to 
keep their promises4 ,it was not long   
since that men had thought of legal     
precepts as divinely revealed1 nor was  
it long since that law had been a       
tradition of old customs of decision4   
,philosophers were seeking a better     
basis for them in eternal principles of 
right4 ,in the meantime in political    
theory1 at least1 many of them were the 
agreements of ,athenian citizens as to  
how they should conduct themselves in   
the inevitable clashes of interests in  
everyday life4 ,what was needed above   
all was some theory of the authority of 
law which should impose bonds of reason 
upon those who enacted1 upon those who  
applied and upon those who were subject 

to law in such an amorphous legal order4
  ,a sure basis of authority resting    
upon something more stable than human   
will and the power of those who govern  
to impose their will for the time being 
was required also for the problem of    
social control in the ,greek city-state4
 ,in order to maintain the general      
security and the security of social     
institutions amid a strife of factions  
in a society organized on the basis of  
kinship and against the wilfulness of   
masterful individuals boasting descent  
from gods1 in order to persuade or      
coerce both the aristocracy and the mass
 of the low born to maintain in orderly 
fashion the social status quo1 it would 
not do to tell them that law was a gift 
of ,god1 nor that what offended the     
aristocrat as a radical bit of popular  
legislation enacted at the instance of a
 demagogue was yet to be obeyed because 
it had been so taught by wise men who   
knew the good old customs1 nor that     
,demos chafing under some item of a     

class-possessed tradition was bound by  
it as something to which all citizens   
had agreed4 ,the exigencies of the      
social order called for a distinction   
between ,greek3 nmos and ,greek3 t      
nomizmena--between law and rules of law4
 ,the ,minos1 which if not actually a   
dialogue of ,plato's seems clearly      
,platonic and very close to ,plato in   
time1 is taken up with this distinction 
and gives us a clue to the juristic     
problems of the time4  ,another example 
may be seen in ,aristotle's well-known  
discussion in the ,nicomachean ,ethics4 
,it is significant that ,greek thinkers 
always couple custom and enactment2     
things which today we contrast4 ,these  
were the formal bases of legal          
authority4 ,so ,aristotle considers1 not
 natural law and positive law1 but what 
is just in itself--just by nature or    
just in its idea--and what derives its  
sole title to be just from convention or
 enactment4 ,the latter1 he says1 can be
 just only with respect to those things 

which by nature are indifferent4 ,thus  
when a newly reconstituted city took a  
living ,spartan general for its         
eponymus1 no one was bound by nature to 
sacrifice to ,brasidas as to an         
ancestor1 but he was bound by enactment 
and after all the matter was one of     
convention1 which1 in a society framed  
on the model of an organized kindred1   
required that the citizens have a common
 heroic ancestor1 and was morally       
indifferent4 ,the distinction was handed
 down to modern legal science by ,thomas
 ,aquinas1 was embodied in              
,anglo-,american legal thought by       
,blackstone1 and has become staple4 ,but
 it is quite out of its setting as a    
doctrine of mala prohibita and mala in  
se4 ,an example of the distinction      
between law and rules of law has become 
the basis of an arbitrary line between  
the traditionally anti-social1 penalized
 by the common law1 and recently        
penalized infringements of newly or     
partially recognized social interests4  

,although the discrimination between    
what is just and right by nature and    
what is just because of custom or       
enactment has had a long and fruitful   
history in philosophical jurisprudence  
and is still a force in the             
administration of justice1 ,i suspect   
that the permanent contribution of      
,greek philosophy of law is to be found 
rather in the distinction between law   
and rules of law1 which lies behind it  
and has significance for all stages of  
legal development4  ,roman lawyers came 
in contact with philosophy in the       
transition from the strict law to the   
stage of equity and natural law1 and the
 contact had much to do with enabling   
them to make the transition4 ,from a    
purely legal standpoint ,greek law was  
in the stage of primitive law4 ,law and 
morals were still largely               
undifferentiated4 ,hence ,greek         
philosophical thinking of a stage of    
undifferentiated law and morals lent    
itself to the identification of the     

legal and the moral in juristic thinking
 which was characteristic of the        
classical ,roman law4 ,but the strict   
law obviously was indifferent to morals 
and in many vital points was quite at   
variance with the moral ideas of the    
time4 ,the ,greek distinction of just by
 nature and just by convention or       
enactment was suggested at once by such 
a situation4 ,moreover the forms of law 
at the end of the ,republic and at the  
beginning of the ,empire invited a      
theory of law as something composite1   
made up of more than one type of precept
 and resting immediately on more than   
one basis of authority4  ,cicero        
enumerates seven forms of law4 ,three of
 these are not heard of thereafter in   
,roman juristic writing4 ,evidently     
already in ,cicero's time they belonged 
to the past and had ceased to be        
effective forms of the actual law4 ,the 
four remaining1 namely1 statutes1       
resolutions of the senate1 edicts of the
 magistrates1 and the authority of those

 learned in the law1 come to            
three--legislation1 administrative      
edicts1 and juristic reasoning on the   
basis of the legal tradition4 ,and these
 correspond to the three elements which 
made up the law4 ,first1 there was the  
ius ciuile3 the ,twelve ,tables1        
subsequent legislation1 interpretation  
of both1 and the traditional law of the 
city4 ,second1 there was the mass of    
rules1 in form largely procedural1 which
 was contained in the edicts4 ,the      
growing point of the law had been here  
and to some extent growth was still     
going on through this means4 ,indeed    
this part of the law reached its final  
form under ,hadrian4 ,third1 there were 
the writings of the jurisconsults4 ,the 
growing point of the law had begun to be
 here and this was the most important   
form of law in the classical period from
 ,augustus to the third century4 ,this  
part of the law got its final form in   
the ,digest of ,justinian4 ,of the three
 elements1 the first was thought of     

originally as declared and published    
custom4 ,later it was thought of as     
resting on the authority of the state4  
,it was obviously local and peculiar to 
,rome4 ,in form it rested on the        
legislative power of the ,roman people1 
supplemented by a mere interpretation of
 the legislative command with only the  
authority of customary acceptance4 ,in  
,greek phrase it rested on convention   
and enactment4 ,the second purported to 
be the rules observed by civilized      
peoples1 and on points of commercial law
 may well have been an approximation    
thereto4 ,apart from this1 however1     
according to ancient ideas of personal  
law1 the rules which obtained among     
civilized peoples were eminently a      
proper law to apply between citizen and 
non-citizen4 ,in ,greek phrase it was   
law by convention4 ,the basis of the    
third was simply reason4 ,the           
jurisconsult had no legislative power   
and no imperium4 ,the authority of his  
responsum1 as soon as law ceased to be a

 class tradition1 was to be found in its
 intrinsic reasonableness2 in the appeal
 which it made to the reason and sense  
of justice of the iudex4 ,in ,greek     
phrase1 if it was law1 it was law by    
nature4  ,as the rise of professional   
lawyers1 the shifting of the growing    
point of law to juristic writing and the
 transition from the law of a city to a 
law of the world called for a legal     
science1 there was need of a theory of  
what law was that could give a rational 
account of the threefold body of rules  
in point of origin and authority1 which 
were actually in operation1 and would at
 the same time enable the jurists to    
shape the existing body of legal        
precepts by reason so as to make it     
possible for them to serve as law for   
the whole world4 ,the perennial problem 
of preserving stability and admitting of
 change was presented in an acute form4 
,above all the period from ,augustus to 
the second quarter of the third century 
was one of growth4 ,but it was          

revolutionary only if we compare the law
 at the end of the period with the law  
of the generation before ,cicero4 ,the  
jurisconsults were practical lawyers and
 the paramount interest in the general  
security was ever before their eyes4    
,while as an ideal they identified law  
with morals1 they did not cease to      
observe the strict law where it was     
applicable nor to develop its precepts  
by analogy according to the known       
traditional technique when new phases of
 old questions came before them4 ,hence 
what to the ,greeks was a distinction   
between right by nature and right by    
convention or enactment became to them a
 distinction between law by nature and  
law by custom or legislation4 ,the      
,latin equivalent of ,greek3 to dikaion 
7the right or the just7 became their    
word for law4 ,they said ius where      
,cicero said lex4 ,and this convenient  
ambiguity1 lending itself to            
identification of what ought to be and  
what is1 gave a scientific foundation   

for the belief of the jurisconsults that
 when and where they were not bound by  
positive law they had but to expound the
 reason and justice of the thing in     
order to lay down the law4  ,it must be 
borne in mind that nature did not mean  
to antiquity what it means to us who are
 under the influence of the idea of     
evolution4 ,to the ,greek1 it has been  
said1 the natural apple was not the wild
 one from which our cultivated apple has
 been grown1 but rather the golden apple
 of the ,hesperides4 ,the natural object
 was that which expressed most          
completely the idea of the thing4 ,it   
was the perfect object4 ,hence the      
natural law was that which expressed    
perfectly the idea of law and a rule of 
natural law was one which expressed     
perfectly the idea of law applied to the
 subject in question2 the one which gave
 to that subject its perfect            
development4 ,for legal purposes reality
 was to be found in this ideal1 perfect1
 natural law1 and its organ was juristic

 reason4 ,legislation and the edict1 so 
far as they had any more than a positive
 foundation of political authority1 were
 but imperfect and ephemeral copies of  
this jural reality4 ,thus the jurists   
came to the doctrine of the ratio legis1
 the principle of natural law behind the
 legal rule1 which has been so fruitful 
both of practical good and of           
theoretical confusion in interpretation4
 ,thus also they came to the doctrine of
 reasoning from the analogy of all legal
 rules1 whether traditional or          
legislative1 since all1 so far as they  
had jural reality1 had it because and to
 the extent that they embodied or       
realized a principle of natural law4    
,natural law was a philosophical theory 
for a period of growth4 ,it arose to    
meet the exigencies of the stage of     
equity and natural law1 one of the great
 creative periods of legal history4     
,yet1 as we have seen1 even the most    
rapid growth does not permit the lawyer 
to ignore the demand for stability4 ,the

 theory of natural law was worked out as
 a means of growth1 as a means of making
 a law of the world on the basis of the 
old strict law of the ,roman city4 ,but 
it was worked out also as a means of    
directing and organizing the growth of  
law so as to maintain the general       
security4 ,it was the task of the       
jurists to build and shape the law on   
the basis of the old local materials so 
as to make it an instrument for         
satisfying the wants of a whole world   
while at the same time insuring         
uniformity and predicability4 ,they did 
this by applying a new but known        
technique to the old materials4 ,the    
technique was one of legal reason2 but  
it was a legal reason identified with   
natural reason and worked out and       
applied under the influence of a        
philosophical ideal4 ,the conception of 
natural law as something of which all   
positive law was but declaratory1 as    
something by which actual rules were to 
be measured1 to which so far as possible

 they were to be made to conform1 by    
which new rules were to be framed and by
 which old rules were to be extended or 
restricted in their application1 was a  
powerful instrument in the hands of the 
jurists and enabled them to proceed in  
their task of legal construction with   
assured confidence4  ,but the juristic  
empiricism by which the ius ciuile was  
made into a law of the world needed     
something more than a theoretical       
incentive4 ,it was a process of         
analogical development by extension here
 and restriction there1 of              
generalization1 first in the form of    
maxims and later by laying down broad   
principles1 and of cautious striking out
 of new paths1 giving them course and   
direction by trial and error4 ,it was a 
process very like that by which         
,anglo-,american judicial empiricism has
 been able to make a law of the world on
 the basis of the legal precepts of     
seventeenth-century ,england4 ,such a   
process required something to give      

direction to juristic reasoning1 to give
 definite content to the ideal1 to      
provide a reasonably defined channel for
 juristic thought4 ,this need was met by
 the philosophical theory of the nature 
of things and of the law of nature as   
conformity thereto4 ,in practice        
jurist-made and judge-made law have been
 molded consciously1 or unconsciously1  
by ideas as to what law is for2 by      
theories as to the end of law4 ,in the  
beginnings of law men had no more       
ambitious conception than a peaceable   
ordering of society at any cost4 ,but   
the ,greeks soon got a better conception
 of an orderly and peaceable maintaining
 of the social status quo4 ,when the    
theory of natural law is applied to that
 conception1 we get the notion of an    
ideal form of the social status quo--a  
form which expresses its nature1 a      
perfect form of the social organization 
of a given civilization--as that which  
the legal order is to further and       
maintain4 ,thus judge and jurist obtain 

a guide which has served them well ever 
since4 ,they are to measure all         
situations by an idealized form of the  
social order of the time and place and  
are so to shape the law as to make it   
maintain and further this ideal of the  
social status quo4 ,we shall meet this  
idea in various forms throughout the    
subsequent history of the philosophy of 
law4 ,it constitutes the permanent      
contribution of ,rome to legal          
philosophy4  ,as soon as scientific     
legal development begins in the ,middle 
,ages the law once more comes in contact
 with philosophy through the study of   
both in the universities4 ,what was the 
need of the time which philosophy was   
called upon to satisfy8 ,following an   
era of anarchy and disunion and violence
 men desired order and organization and 
peace4 ,they called for a philosophy    
that would bolster up authority and     
rationalize their desire to impose a    
legal yoke upon society4 ,the period was
 one of transition from the primitive   

law of the ,germanic peoples to a strict
 law1 through reception of ,roman law as
 authoritative legislation or through   
compilation of the ,germanic customary  
law more or less after the ,roman model1
 as in the north of ,france1 or through 
declaration of the customary law in     
reported decisions of strong central    
courts1 as in ,england4 ,thus it soon   
became a period of strict law4          
,scholastic philosophy1 with its        
reliance upon dialectic development of  
authoritatively given premises1 its     
faith in formal logic and its central   
problem of putting reason as a          
foundation under authority1 responded   
exactly to these demands4 ,it is no     
misnomer to style the commentators or   
post-glossators of the fourteenth and   
fifteenth centuries the scholastic      
jurists4 ,for it was in large part the  
philosophy that met the needs of the    
time so completely which enabled them to
 put the ,roman law of ,justinian in a  
form to be received and administered in 

the ,europe of nine centuries later4    
,while they made the gloss into law in  
place of the text and made many things  
over1 as they had to be made over if    
they were to fit a wholly different     
social order1 the method of dialectical 
development of absolute and unquestioned
 premises made it appear that nothing   
had been done but to develop the logical
 implications of an authoritative text4 
,men could receive the law of ,bartolus 
so long as they believed it but the     
logical unfolding of the pre-existing   
content of the binding legislation of   
,justinian4 ,it is interesting to note  
in ,fortescue an application of this to 
the rules of the common law in its stage
 of strict law4 ,he assumes that these  
rules are the principles of which he    
reads in the commentators on ,aristotle 
and that they may be compared to the    
axioms of the geometrician4 ,the time   
had not yet come to call rules or       
principles or axioms in question4 ,the  
need was to rationalize men's desire to 

be governed by fixed rules and to       
reconcile1 in appearance at least1 the  
change and growth which are inevitable  
in all law with the need men felt of    
having a fixed1 unchangeable1           
authoritative rule4 ,the scholastic     
philosophy did notable service in these 
respects and1 ,i venture to think1 left 
as a permanent contribution to legal    
science the method of insuring certainty
 by logical development of the content  
of authoritatively defined conceptions4 
,on the breakdown of the feudal social  
organization1 the rise of commerce and  
the era of discovery1 colonization and  
exploitation of the natural resources of
 new continents1 together with the rise 
of nations in place of loose congeries  
of vassal-held territories1 called for a
 national law unified within the        
national domain4 ,starkey proposed      
codification to ,henry ,,viii and       
,dumoulin urged harmonizing and unifying
 of ,french customary law with eventual 
codification4 ,the ,protestant          

jurist-theologians of the sixteenth     
century found a philosophical basis for 
satisfying these desires of the time in 
the divinely ordained state and in a    
natural law divorced from theology and  
resting solely upon reason1 reflecting  
the boundless faith in reason which came
 in with the ,renaissance4 ,thus each   
national jurist might work out his own  
interpretation of natural law by dint of
 his own reason1 as each ,christian     
might interpret the word of ,god for    
himself as his own reason and conscience
 showed the way4 ,on the other hand1 the
 ,catholic jurists of the               
,counter-,reformation found a           
philosophical basis for satisfying these
 same desires in a conception of natural
 law as a system of limitations on human
 action expressing the nature of man1   
that is1 the ideal of man as a rational 
creature1 and of positive law as an     
ideal system expressing the nature of a 
unified state4 ,for the moment these    
ideas were put at the service of a      

growing royal authority and bore fruit  
in the ,byzantine theory of sovereignty 
which became classical in public law4   
,in private law they soon took quite    
another turn4 ,for a new period of      
growth1 demanded by the expansion of    
society and the breaking over the bonds 
of authority1 was at hand to make new   
and wholly different demands upon       
philosophy4  ,glossators and            
commentators had made or shaped the law 
out of ,roman materials for a static1   
locally self-sufficient1 other-worldly  
society1 revering authority because     
authority had saved it from what it     
feared1 regarding chiefly the security  
of social institutions and negligent of 
the individual life because in its      
polity the individual lived his highest 
life in the life of another whose       
greatness was the greatness of those who
 served him4 ,in the seventeenth and    
eighteenth centuries jurists were       
required to make or shape a law out of  
these medievalized ,roman materials to  

satisfy the wants of an active and      
shifting1 locally interdependent1       
this-worldly society1 impatient of      
authority because authority stood in the
 way of what it desired1 and jealously  
individualist1 since it took free       
individual self-assertion to be the     
highest good4 ,in ,england the strict   
law made for feudal ,england out of     
,germanic materials1 sometimes          
superficially ,romanized1 was likewise  
to be made over to do the work of       
administering justice to a new world4 ,a
 period of legal development resulted   
which is strikingly analogous to the    
classical period of ,roman law4 ,once   
more philosophy took the helm4 ,once    
more there was an infusion into law of  
ideas from without the law4 ,once more  
law and morals were identified in       
juristic thinking4 ,once more men held  
as a living tenet that all positive law 
was declaratory of natural law and got  
its real authority from the rules of    
natural law which it declared4 ,once    

more juridical idealism led the jurist  
to survey every corner of the actual    
law1 measuring its rules by reason and  
shaping1 extending1 restricting or      
building anew in order that the actual  
legal edifice might be a faithful copy  
of the ideal4  ,but the theory of       
natural law1 devised for a society      
organized on the basis of kinship and   
developed for a society organized on the
 basis of relations1 did not suffice for
 a society which conceived of itself as 
an aggregate of individuals and was     
reorganizing on the basis of competitive
 self-assertion4 ,again the convenient  
ambiguity of ius1 which could mean not  
only right and law but a right1 was     
pressed into service and ius naturale   
gave us natural rights4 ,the ultimate   
thing was not natural law as before1 not
 merely principles of eternal validity1 
but natural rights1 certain qualities   
inherent in man and demonstrated by     
reason1 which natural law exists to     
secure and to which positive law ought  

to give effect4 ,later these natural    
rights came to be the bane of juristic  
thinking4 ,yet they achieved great      
things in their day4 ,under the         
influence of this theory jurists worked 
out a scheme of legal rights that       
effectively secures almost the whole    
field of individual interests of        
personality and individual interests of 
substance4 ,it put a scientific         
foundation under the medieval scheme of 
the claims and duties involved in the   
relation of king to tenants in chief1   
out of which the judges had developed   
the immemorial rights of ,englishmen1   
and enabled the common-law rights of    
,englishmen to become the natural rights
 of man1 intrenched as such in our bills
 of rights4 ,thus it served as a needed 
check upon the exuberance of growth     
stimulated by the theory of natural law4
 ,it kept a certain needed rigidity in a
 time when law threatened to become     
wholly fluid4 ,and this steadying       
influence was strengthened from another 

quarter4 ,the ,roman jurisconsult was   
teacher1 philosopher and practitioner in
 one4 ,as a lawyer he had the exigencies
 of the general security ever before him
 in that he felt the imperative need of 
being able to advise with assurance what
 tribunals would do on a given state of 
facts4 ,the seventeenth- and            
eighteenth-century jurists were chiefly 
teachers and philosophers4 ,happily they
 had been trained to accept the ,roman  
law as something of paramount authority 
and so were able to give natural law a  
content by assuming its identity with an
 ideal form of the law which they knew  
and in which they had been trained4 ,as 
the ,roman jurisconsult built in the    
image of the old law of the city1 they  
built on idealized ,roman lines4 ,if    
,roman law could no longer claim to be  
embodied authority1 they assumed that1  
corrected in its details by a           
juristic-philosophical critique1 it was 
embodied reason4  ,both of these ideas1 
natural rights and an ideal form of the 

actual law of the time and place as the 
jural order of nature1 were handed down 
to and put to new uses in the nineteenth
 century4 ,in the growing law of the    
seventeenth and eighteenth centuries    
they were but guides to lead growth into
 definite channels and insure continuity
 and permanence in the development of   
rules and doctrines4 ,whether natural   
rights were conceived as qualities of   
the natural man or as deductions from a 
compact which expressed the nature of   
man1 the point was1 not that the jurist 
should keep his hands off lest by       
devising some new precept or in         
reshaping some old doctrine he infringe 
a fundamental right1 but that he should 
use his hand freely and skilfully to    
shape rules and doctrines and           
institutions that they might be         
instruments of achieving the ideal of   
human existence in a state of nature4   
,for the state of nature1 let us        
remember1 was a state which expressed   
the ideal of man as a rational creature4

 ,if a reaction from the formal         
over-refinement of the eighteenth       
century came to identify this with a    
primitive simplicity1 in juristic hands 
it was the simplicity of a rational     
ideal in place of the cumbrous          
complexity of legal systems which had   
become fixed in their ideas in the stage
 of the strict law4 ,thus ,pothier1     
discussing the ,roman categories of     
contract and rejecting them for the     
natural principle that man1 as a moral  
creature1 should keep his engagements1  
declares that the complex and arbitrary 
system of ,roman law1 made up of        
successive additions at different times 
to a narrow primitive stock of legally  
enforceable promises1 is not adhered to 
because it is remote from simplicity4   
,again the ideal form of the actual law1
 which gave content to natural law1 was 
not an ideal form of historically found 
principles1 constraining development for
 all time within historically fixed     
bounds1 as in the nineteenth century1   

but an ideal form of the ratio legis--of
 the reason behind the rule or doctrine 
or institution whereby it expressed the 
nature of the rational human being      
guided only by reason and conscience in 
his relations with similar beings       
similarly guided4 ,attempts to fix the  
immutable part of law1 to lay out legal 
charts for all time1 belong to the      
transition to the maturity of law4 ,the 
eighteenth-century projects for         
codification and the era of codification
 on the ,continent1 in which the results
 of two centuries of growth were put in 
systematic form to serve as the basis of
 a juristic new start1 in form rested   
upon the theory of natural law4 ,by a   
sheer effort of reason the jurist could 
work out a complete system of deductions
 from the nature of man and formulate   
them in a perfect code4 ,go to1 let him 
do so6 ,this was not the mode of thought
 of a period of growth but rather of one
 when growth had been achieved and the  
philosophical theory of a law of nature 

was called upon for a new kind of       
service4  ,at the end of the eighteenth 
century ,lord ,kenyon had determined    
that ,mansfield's innovations were not  
to go on4 ,indeed some of them were to  
be undone4 ,equity was soon to be       
systematized by ,lord ,eldon and to     
become almost as fixed and settled as   
the law itself4 ,the absorption of the  
law merchant was complete in its main   
lines although in details it went on for
 two decades4 ,moreover the legislative 
reform movement which followed only     
carried into detail the ideas which had 
come into the law in the two preceding  
centuries4 ,for a time the law was      
assimilating what had been taken up     
during the period of growth and the task
 of the jurist was one of ordering1     
harmonizing and systematizing rather    
than of creating4 ,likewise law had been
 codifying on the ,continent4 ,down to  
the end of the nineteenth century the   
codes1 whatever their date1 in reality  
speak from the end of the eighteenth    

century and with few exceptions are all 
but copies of the ,french code of #ahjd4
 ,where there were no codes1 the        
hegemony of the historical school led to
 a movement back to the law of          
,justinian which would have undone much 
of the progress of the last centuries4  
,the energies of jurists were turned for
 a time to analysis1 classification and 
system as their sole task4 ,where codes 
obtained1 analytical development and    
dogmatic exposition of the text1 as a   
complete and final statement of the law1
 was to occupy jurists exclusively for  
the next hundred years4 ,we may well    
think of this time1 as it thought of    
itself1 as a period of maturity of law4 
,the law was taken to be complete and   
self-sufficient1 without antinomies and 
without gaps1 wanting only arrangement1 
logical development of the implications 
of its several rules and conceptions1   
and systematic exposition of its several
 parts4 ,legislation might be needed on 
occasion in order to get rid of         

archaisms which had survived the        
purgation of the two prior centuries4   
,for the rest1 history and analysis1    
bringing out the idea behind the course 
of development of legal doctrines and   
unfolding their logical consequences1   
were all the apparatus which the jurist 
required4 ,he soon affected to ignore   
philosophy and often relegated it to the
 science of legislation1 where within   
narrow limits it might still be possible
 to think of creating4  ,yet the        
nineteenth century was no more able to  
get on without philosophy of law than   
were its predecessors4 ,in place of one 
universally recognized philosophical    
method we find four well-marked types4  
,but they all come to the same final    
results1 are marked by the same spirit  
and put the same shackles upon juristic 
activity4 ,they are all modes of        
rationalizing the juristic desires of   
the time1 growing out of the pressure of
 the interest in the general security by
 way of reaction from a period of growth

 and in the security of acquisitions and
 security of transactions in a time of  
economic expansion and industrial       
enterprise4  ,in the ,united ,states1   
since the natural law of the            
eighteenth-century publicists had become
 classical1 we relied largely upon an   
,american variant of natural law4 ,it   
was not that natural law expressed the  
nature of man4 ,rather it expressed the 
nature of government4 ,one form of this 
variant was due to our doctrine that the
 common law of ,england was in force    
only so far as applicable to our        
conditions and our institutions4 ,the   
attempt to put this doctrine            
philosophically regards an ideal form of
 the received common law as natural law 
and takes natural law to be a body of   
deductions from or implications of      
,american institutions or the nature of 
our polity4 ,but yesterday the ,supreme 
,court of one of our states laid down   
dogmatically that primogeniture in      
estates tail 7which by the way is still 

possible in one of the oldest of the    
original states7 could not co-exist with
 the axioms of the constitution which   
guarantees to each state a republican   
form of government4 ,more generally1    
however1 the ,american variant of       
natural law grew out of an attempt at   
philosophical statement of the power of 
our courts with respect to              
unconstitutional legislation4 ,the      
constitution was declaratory of         
principles of natural constitutional law
 which were to be deduced from the      
nature of free government4 ,hence       
constitutional questions were always    
only in terms questions of              
constitutional interpretation4 ,they    
were questions of the meaning of the    
document1 as such1 only in form4 ,in    
substance they were questions of a      
general constitutional law which        
transcended the text2 of whether the    
enactment before the court conformed to 
principles of natural law running back  
of all constitutions and inherent in the

 very idea of a government of limited   
powers set up by a free people4 ,now    
that courts with few exceptions have    
given over this mode of thinking and the
 highest court in the land has come to  
apply the limitations of the fifth and  
fourteenth amendments as legal          
standards1 there are some who say that  
we no longer have a constitutional law4 
,for how can there be law unless as a   
body of rules declaring a natural law   
which is above all human enactment8 ,the
 interpretation of a written instrument1
 no matter by whom enacted1 may be      
governed by law1 indeed1 but can yield  
no law4 ,such ideas die hard4 ,in the   
language of the eighteenth century1 our 
courts sought to make our positive law1 
and in particular our legislation1      
express the nature of ,american         
political institutions2 they sought so  
to shape it and restrain it as to make  
it give effect to an ideal of our       
polity4  ,later in the nineteenth       
century natural law as a deduction from 

,american institutions or from free     
government gave way to a                
metaphysical-historical theory worked   
out in ,continental ,europe4 ,natural   
rights were deductions from a           
fundamental metaphysically demonstrable 
datum of individual free will1 and      
natural law was an ideal critique of    
positive law whereby to secure these    
rights in their integrity4 ,history     
showed us the idea of individual liberty
 realizing itself in legal institutions 
and rules and doctrines2 jurisprudence  
developed this idea into its logical    
consequences and gave us a critique of  
law whereby we might be delivered from  
futile attempts to set up legal precepts
 beyond the necessary minimum for       
insuring the harmonious co-existence of 
the individual and his fellows4 ,this   
mode of thought was well suited to a    
conception of law as standing between   
the abstract individual and society and 
protecting the natural rights of the    
former against the latter1 which        

,american law had derived from the      
seventeenth-century contests in ,england
 between courts and crown4 ,it was easy 
to generalize this as a contest between 
the individual and society1 and it      
became more easy to do so when the      
common-law rights of ,englishmen secured
 by common-law courts against the crown 
had become the natural rights of man    
secured to individual men as against the
 state by the bills of rights4  ,others 
in ,england and ,america turned to a    
utilitarian-analytical theory4 ,the     
legislator was to be guided by a        
principle of utility4 ,that which made  
for the greatest total of individual    
happiness was to be the lawmaker's      
standard4 ,the jurist was to find       
universal principles by analysis of the 
actual law4 ,he had nothing to do with  
creative activity4 ,his work was to be  
that of orderly logical development of  
the principles reached by analysis of   
what he found already given in the law  
and improvement of the form of the law  

by system and logical reconciliation of 
details4 ,as it was assumed that the    
maximum of abstract individual free     
self-assertion was the maximum of human 
happiness1 in the result the legislator 
was to be busied with formal improvement
 of the law and rendering it1 as        
,bentham put it1 more cognoscible1 while
 the jurist was exercising a like       
restricted function so far as he could  
work with materials afforded exclusively
 by the law itself4 ,not unnaturally    
metaphysical and historical and         
analytical jurists1 at the end of the   
century1 were quite willing to say that 
their several methods were not exclusive
 but were complementary4  ,toward the   
end of the last century a positivist    
sociological thinking tended to         
supersede the metaphysical-historical   
and the utilitarian-analytical4 ,all    
phenomena were determined by inexorable 
natural laws to be discovered by        
observation4 ,moral and social and hence
 legal phenomena were governed by laws  

as completely beyond the power of       
conscious human control as the movements
 of the planets4 ,we might discover     
these laws by observation of social     
phenomena and might learn to submit to  
them intelligently instead of rashly or 
ignorantly defying them4 ,but we could  
hope to do no more4 ,except as he could 
learn to plot some part of the          
inevitable curve of legal development   
and save us from futile flyings in the  
face of the laws by which legal         
evolution was inevitably governed1 the  
jurist was powerless4 ,many combined    
this mode of thought with or grafted it 
on the metaphysical-historical theory   
and fought valiantly against the social 
legislation of the last decade of the   
nineteenth century and the first decade 
of the present century with this        
reinforced juristic pessimism as a base4
 ,superficially it appeared that the    
,greek idea of the naturally just1 which
 in its ,roman form of natural law and  
its eighteenth-century form of natural  

rights had made for a creative legal    
science as long as such a science had   
existed1 had at length exhausted its    
possibilities4  ,today1 however1 we hear
 of a revival of natural law4           
,philosophy of law is raising its head  
throughout the world4 ,we are asked to  
measure rules and doctrines and         
institutions and to guide the           
application of law by reference to the  
end of law and to think of them in terms
 of social utility4 ,we are invited to  
subsume questions of law and of the     
application of law under the social     
ideal of the time and place4 ,we are    
called upon to formulate the jural      
postulates of the civilization of the   
time and place and to measure law and   
the application of law thereby in order 
that law may further civilization and   
that the legal materials handed down    
with the civilization of the past may be
 made an instrument of maintaining and  
furthering the civilization of the      
present4 ,we are told that observation  

shows us social interdependence through 
similarity of interest and through      
division of labor as the central fact in
 human existence and are told to measure
 law and the application of law         
functionally by the extent to which they
 further or interfere with this         
interdependence4 ,for the era of legal  
self-sufficiency is past4 ,the work of  
assimilating what had been received into
 the law from without during the period 
of equity and natural law has been done4
 ,the possibilities of analytical and   
historical development of the classical 
materials have been substantially       
exhausted4 ,while jurists have been at  
these tasks1 a new social order has been
 building which makes new demands and   
presses upon the legal order with a     
multitude of unsatisfied desires4 ,once 
more we must build rather than merely   
improve2 we must create rather than     
merely order and systematize and        
logically reconcile details4 ,one has   
but to compare the law of today on such 

subjects as torts1 or public utilities  
or administrative law with the law of a 
generation ago to see that we are in a  
new stage of transition2 to see that the
 juristic pessimism of the immediate    
past1 which arose to save us from taking
 in more from without while what had    
been taken already remained undigested1 
will serve no longer2 and to see that   
the jurist of tomorrow will stand in    
need of some new philosophical theory of
 law1 will call for some new            
philosophical conception of the end of  
law and at the same time will want some 
new steadying philosophical conception  
to safeguard the general security1 in   
order to make the law which we hand down
 to him achieve justice in his time and 
place4     ,,ii  ,the ,end of ,law      
,making or finding law1 call it which   
you will1 presupposes a mental picture  
of what one is doing and of why he is   
doing it4 ,hence the nature of law has  
been the chief battleground of          
jurisprudence since the ,greek          

philosophers began to argue as to the   
basis of the law's authority4 ,but the  
end of law has been debated more in     
politics than in jurisprudence4 ,in the 
stage of equity and natural law the     
prevailing theory of the nature of law  
seemed to answer the question as to its 
end4 ,in the maturity of law the law was
 thought of as something                
self-sufficient1 to be judged by an     
ideal form of itself1 and as something  
which could not be made1 or1 if it could
 be made1 was to be made sparingly4 ,the
 idea of natural rights seemed to       
explain incidentally what law was for   
and to show that there ought to be as   
little of it as possible1 since it was a
 restraint upon liberty and even the    
least of such restraint demanded        
affirmative justification4 ,thus1 apart 
from mere systematic and formal         
improvement1 the theory of lawmaking in 
the maturity of law was negative4 ,it   
told us chiefly how we should not       
legislate and upon what subjects we     

should refrain from lawmaking4 ,having  
no positive theory of creative          
lawmaking1 the last century was little  
conscious of requiring or holding a     
theory as to the end of law4 ,but in    
fact it held such a theory and held it  
strongly4  ,as ideas of what law is for 
are so largely implicit in ideas of what
 law is1 a brief survey of ideas of the 
nature of law from this standpoint will 
be useful4 ,no less than twelve         
conceptions of what law is may be       
distinguished4  ,first1 we may put the  
idea of a divinely ordained rule or set 
of rules for human action1 as for       
example1 the ,mosaic law1 or            
,hammurapi's code1 handed him ready-made
 by the sun god1 or ,manu1 dictated to  
the sages by ,manu's son ,bhrigu in     
,manu's presence and by his direction4  
,second1 there is an idea of law as a   
tradition of the old customs which have 
proved acceptable to the gods and hence 
point the way in which man may walk with
 safety4 ,for primitive man1 surrounded 

by what seem vengeful and capricious    
powers of nature1 is in continual fear  
of giving offence to these powers and   
thus bringing down their wrath upon     
himself and his fellows4 ,the general   
security requires that men do only those
 things and do them only in the way     
which long custom has shown at least not
 displeasing to the gods4 ,law is the   
traditional or recorded body of precepts
 in which that custom is preserved and  
expressed4 ,whenever we find a body of  
primitive law possessed as a class      
tradition by a political oligarchy it is
 likely to be thought of in this way    
just as a body of like tradition in the 
custody of a priesthood is certain to be
 thought of as divinely revealed4  ,a   
third and closely related idea conceives
 of law as the recorded wisdom of the   
wise men of old who had learned the safe
 course or the divinely approved course 
for human conduct4 ,when a traditional  
custom of decision and custom of action 
has been reduced to writing in a        

primitive code it is likely to be       
thought of in this way1 and ,demosthenes
 in the fourth century ,b4 ,c4 could    
describe the law of ,athens in these    
terms4  ,fourth1 law may be conceived as
 a philosophically discovered system of 
principles which express the nature of  
things1 to which1 therefore1 man ought  
to conform his conduct4 ,such was the   
idea of the ,roman jurisconsult1        
grafted1 it is true1 on the second and  
third ideas and on a political theory of
 law as the command of the ,roman       
people1 but reconciled with them by     
conceiving of tradition and recorded    
wisdom and command of the people as mere
 declarations or reflections of the     
philosophically ascertained principles1 
to be measured and shaped and           
interpreted and eked out thereby4 ,in   
the hands of philosophers the foregoing 
conception often takes another form so  
that1 fifth1 law is looked upon as a    
body of ascertainments and declarations 
of an eternal and immutable moral code4 

,sixth1 there is an idea of law as a    
body of agreements of men in politically
 organized society as to their relations
 with each other4 ,this is a democratic 
version of the identification of law    
with rules of law and hence with the    
enactments and decrees of the city-state
 which is discussed in the ,platonic    
,minos4 ,not unnaturally ,demosthenes   
suggests it to an ,athenian jury4 ,very 
likely in such a theory a philosophical 
idea would support the political idea   
and the inherent moral obligation of a  
promise would be invoked to show why men
 should keep the agreements made in     
their popular assemblies4  ,seventh1 law
 has been thought of as a reflection of 
the divine reason governing the         
universe2 a reflection of that part     
which determines the ought addressed by 
that reason to human beings as moral    
entities1 in distinction from the must  
which it addresses to the rest of       
creation4 ,such was the conception of   
,thomas ,aquinas1 which had great       

currency down to the seventeenth century
 and has had much influence ever since4 
,eighth1 law has been conceived as a    
body of commands of the sovereign       
authority in a politically organized    
society as to how men should conduct    
themselves therein1 resting ultimately  
on whatever basis was held to be behind 
the authority of that sovereign4 ,so    
thought the ,roman jurists of the       
,republic and of the classical period   
with respect to positive law4 ,and as   
the emperor had the sovereignty of the  
,roman people devolved upon him1 the    
,institutes of ,justinian could lay down
 that the will of the emperor had the   
force of a law4 ,such a mode of thought 
was congenial to the lawyers who were   
active in support of royal authority in 
the centralizing ,french monarchy of the
 sixteenth and seventeenth centuries and
 through them passed into public law4   
,it seemed to fit the circumstances of  
parliamentary supremacy in ,england     
after #afhh1 and became the orthodox    

,english juristic theory4 ,also it could
 be made to fit a political theory of   
popular sovereignty in which the people 
were thought of as succeeding to the    
sovereignty of parliament at the        
,american ,revolution or of the ,french 
king at the ,french ,revolution4  ,a    
ninth idea of law takes it to be a      
system of precepts discovered by human  
experience whereby the individual human 
will may realize the most complete      
freedom possible consistently with the  
like freedom of will of others4 ,this   
idea1 held in one form or another by the
 historical school1 divided the         
allegiance of jurists with the theory of
 law as command of the sovereign during 
almost the whole of the past century4   
,it assumed that the human experience by
 which legal principles were discovered 
was determined in some inevitable way4  
,it was not a matter of conscious human 
endeavor4 ,the process was determined by
 the unfolding of an idea of right and  
justice or an idea of liberty which was 

realizing itself in human administration
 of justice1 or by the operation of     
biological or psychological laws or of  
race characters1 whose necessary result 
was the system of law of the time and   
people in question4  ,again1 tenth1 men 
have thought of law as a system of      
principles1 discovered philosophically  
and developed in detail by juristic     
writing and judicial decision1 whereby  
the external life of man is measured by 
reason1 or in another phase1 whereby the
 will of the individual in action is    
harmonized with those of his fellow men4
 ,this mode of thought appeared in the  
nineteenth century after the natural-law
 theory in the form in which it had     
prevailed for two centuries had been    
abandoned and philosophy was called upon
 to provide a critique for systematic   
arrangement and development of details4 
,eleventh1 law has been thought of as a 
body or system of rules imposed on men  
in society by the dominant class for the
 time being in furtherance1 conscious or

 unconscious1 of its own interest4 ,this
 economic interpretation of law takes   
many forms4 ,in an idealistic form it   
thinks of the inevitable unfolding of an
 economic idea4 ,in a mechanical        
sociological form it thinks of class    
struggle or a struggle for existence in 
terms of economics1 and of law as the   
result of the operation of forces or    
laws involved in or determining such    
struggles4 ,in a positivist-analytical  
form it thinks of law as the command of 
the sovereign1 but of that command as   
determined in its economic content by   
the will of the dominant social class1  
determined in turn by its own interest4 
,all of these forms belong to transition
 from the stability of the maturity of  
law to a new period of growth4 ,when the
 idea of the self-sufficiency of law    
gives way and men seek to relate        
jurisprudence to the other social       
sciences1 the relation to economics     
challenges attention at once4 ,moreover 
in a time of copious legislation the    

enacted rule is easily taken as the type
 of legal precept and an attempt to     
frame a theory of legislative lawmaking 
is taken to give an account of all law4 
,finally1 twelfth1 there is an idea of  
law as made up of the dictates of       
economic or social laws with respect to 
the conduct of men in society1          
discovered by observation1 expressed in 
precepts worked out through human       
experience of what would work and what  
not in the administration of justice4   
,this type of theory likewise belongs to
 the end of the nineteenth century1 when
 men had begun to look for physical or  
biological bases1 discoverable by       
observation1 in place of metaphysical   
bases1 discoverable by philosophical    
reflection4 ,another form finds some    
ultimate social fact by observation and 
develops the logical implications of    
that fact much after the manner of the  
metaphysical jurist4 ,this again results
 from the tendency in recent years to   
unify the social sciences and consequent

 attention to sociological theories4    
,digression is worth while in order to  
note that each of the foregoing theories
 of law was in the first instance an    
attempt at a rational explanation of the
 law of the time and place or of some   
striking element therein4 ,thus1 when   
the law has been growing through        
juristic activity1 a philosophical      
theory of law1 as declaratory of        
philosophically ascertainable           
principles1 has obtained4 ,when and     
where the growing point of law has been 
in legislation1 a political theory of   
law as the command of the sovereign has 
prevailed4 ,when the law has been       
assimilating the results of a prior     
period of growth1 a historical theory of
 law as something found by experience1  
or a metaphysical theory of law as an   
idea of right or of liberty realizing in
 social and legal development1 has      
tended to be dominant4 ,for jurists and 
philosophers do not make these theories 
as simple matters of logic by inexorable

 development of philosophical           
fundamentals4 ,having something to      
explain or to expound1 they endeavor to 
understand it and to state it rationally
 and in so doing work out a theory of   
what it is4 ,the theory necessarily     
reflects the institution which it was   
devised to rationalize1 even though     
stated universally4 ,it is an attempt to
 state the law1 or the legal institution
 of the time and place in universal     
terms4 ,its real utility is likely to be
 in its enabling us to understand that  
body of law or that institution and to  
perceive what the men of the time were  
seeking to do with them or to make of   
them4 ,accordingly analysis of these    
theories is one way of getting at the   
ends for which men have been striving   
through the legal order4  ,what common  
elements may we find in the foregoing   
twelve pictures of what law is8 ,for one
 thing1 each shows us a picture of some 
ultimate basis1 beyond reach of the     
individual human will1 that stands fast 

in the whirl of change of which life is 
made up4 ,this steadfast ultimate basis 
may be thought of as the divine pleasure
 or will or reason1 revealed immediately
 or mediately through a divinely        
ordained immutable moral code4 ,it may  
be put in the form of some ultimate     
metaphysical datum which is so given us 
that we may rest in it forever4 ,it may 
be portrayed as certain ultimate laws   
which inexorably determine the phenomena
 of human conduct4 ,or it may be        
described in terms of some authoritative
 will for the time and place1 to which  
the wills of others are subjected1 that 
will deriving its authority ultimately  
and absolutely in some one of the       
preceding forms1 so that what it does is
 by and large in no wise a matter of    
chance4 ,this fixed and stable starting 
point is usually the feature upon which 
the chief emphasis is placed4 ,next we  
shall find in all theories of the nature
 of law a picture of a determinate and  
mechanically absolute mode of proceeding

 from the fixed and absolute starting   
point4 ,the details may come from this  
starting point through divine revelation
 or a settled authoritative tradition or
 record1 or an inevitable and infallible
 philosophical or logical method1 or an 
authoritative political machinery1 or a 
scientific system of observation1 or    
historically verifiable ideas which are 
logically demonstrable to be            
implications of the fundamental         
metaphysically given datum4 ,third1 we  
shall see in these theories a picture of
 a system of ordering human conduct and 
adjusting human relations resting upon  
the ultimate basis and derived therefrom
 by the absolute process4 ,in other     
words1 they all picture1 not merely an  
ordering of human conduct and adjustment
 of human relations1 which we have      
actually given1 but something more which
 we should like to have1 namely1 a doing
 of these things in a fixed1 absolutely 
predetermined way1 excluding all merely 
individual feelings or desires of those 

by whom the ordering and adjustment are 
carried out4 ,thus in these subconscious
 picturings of the end of law it seems  
to be conceived as existing to satisfy a
 paramount social want of general       
security4 ,certainly the                
nineteenth-century jurist had this      
conception4 ,but is this because the    
function of law is limited to           
satisfaction of that one want1 or is it 
because that want has been most         
conspicuous among those which men have  
sought to satisfy through law1 and      
because the ordering of human conduct by
 the force of politically organized     
society has been adapted chiefly to     
satisfying that one want in the social  
order of the past8  ,if we turn to the  
ideas which have obtained in conscious  
thinking about the end of law1 we may   
recognize three which have held the     
ground successively in legal history and
 a fourth which is beginning to assert  
itself4 ,the first and simplest idea is 
that law exists in order to keep the    

peace in a given society2 to keep the   
peace at all events and at any price4   
,this is the conception of what may be  
called the stage of primitive law4 ,it  
puts satisfaction of the social want of 
general security1 stated in its lowest  
terms1 as the purpose of the legal      
order4 ,so far as the law goes1 other   
individual or social wants are ignored  
or are sacrificed to this one4          
,accordingly the law is made up of      
tariffs of exact compositions for every 
detailed injury instead of principles of
 exact reparation1 of devices to induce 
or coerce submission of controversies to
 adjudication instead of sanctions1 of  
regulation of self-help and self-redress
 instead of a general prohibition       
thereof1 and of mechanical modes of     
trial which at any rate do not admit of 
argument instead of rational modes of   
trial involving debate and hence dispute
 and so tending to defeat the purpose of
 the legal order4 ,in a society         
organized on the basis of kinship1 in   

which the greater number of social wants
 were taken care of by the              
kin-organizations1 there are two sources
 of friction3 the clash of              
kin-interests1 leading to controversies 
of one kindred with another1 and the    
kinless man1 for whom no                
kin-organization is responsible1 who    
also has no kin-organization to stand   
behind him in asserting his claims4     
,peace between kindreds and peace       
between clansmen and the growing mass of
 non-gentile population is the          
unsatisfied social want to which        
politically organized society must      
address itself4 ,the system of organized
 kindreds gradually breaks down4 ,groups
 of kinsmen cease to be the fundamental 
social units4 ,kin-organization is      
replaced by political organization as   
the primary agency of social control4   
,the legal unit comes to be the free    
citizen or the free man4 ,in this       
transition regulation of self-redress   
and prevention of private war among     

those who have no strong                
clan-organizations to control them or   
respond for them are demanded by the    
general security4 ,the means of         
satisfying these social wants are found 
in a legal order conceived solely in    
terms of keeping the peace4  ,greek     
philosophers came to conceive of the    
general security in broader terms and to
 think of the end of the legal order as 
preservation of the social status quo4  
,they came to think of maintaining the  
general security mediately through the  
security of social institutions4 ,they  
thought of law as a device to keep each 
man in his appointed groove in society  
and thus prevent friction with his      
fellows4 ,the virtue on which they      
insisted was sophrosyne1 knowing the    
limits which nature fixes for human     
conduct and keeping within them4 ,the   
vice which they denounced was hybris1   
wilful bondbreaking--wilful             
transgression of the socially appointed 
bounds4 ,this mode of thinking follows  

the substitution of the city-state      
political organization of society for   
the kin-organization4 ,the organized    
kindreds were still powerful4 ,an       
aristocracy of the kin-organized and    
kin-conscious1 on the one hand1 and a   
mass of those who had lost or severed   
their ties of kinship1 or had come from 
without1 on the other hand1 were in     
continual struggle for social and       
political mastery4 ,also the politically
 ambitious individual and the masterful 
aristocrat were continually threatening 
the none too stable political           
organization through which the general  
security got a precarious protection4   
,the chief social want1 which no other  
social institution could satisfy1 was   
the security of social institutions     
generally4 ,in the form of maintenance  
of the social status quo this became the
 ,greek and thence the ,roman and       
medieval conception of the end of law4  
,transition from the idea of law as a   
device to keep the peace to the idea of 

law as a device to maintain the social  
status quo may be seen in the           
proposition of ,heraclitus1 that men    
should fight for their laws as for the  
walls of their city4 ,in ,plato the idea
 of maintaining the social order through
 the law is fully developed4 ,the actual
 social order was by no means what it   
should be4 ,men were to be reclassified 
and everyone assigned to the class for  
which he was best fitted4 ,but when the 
classification and the assignment had   
been made the law was to keep him there4
 ,it was not a device to set him free   
that he might find his own level by free
 competition with his fellows and free  
experiment with his natural powers4 ,it 
was a device to prevent such            
disturbances of the social order by     
holding each individual to his appointed
 place4 ,as ,plato puts it1 the         
shoemaker is to be only a shoemaker and 
not a pilot also2 the farmer is to be   
only a farmer and not a judge as well2  
the soldier is to be only a soldier and 

not a man of business besides2 and if a 
universal genius who through wisdom can 
be everything and do everything comes to
 the ideal city-state1 he is to be      
required to move on4 ,aristotle puts the
 same idea in another way1 asserting    
that justice is a condition in which    
each keeps within his appointed sphere2 
that we first take account of relations 
of inequality1 treating individuals     
according to their worth1 and then      
secondarily of relations of equality in 
the classes into which their worth      
requires them to be assigned4 ,when ,st4
 ,paul exhorted wives to obey their     
husbands1 and servants to obey their    
masters1 and thus everyone to exert     
himself to do his duty in the class     
where the social order had put him1 he  
expressed this ,greek conception of the 
end of law4  ,roman lawyers made the    
,greek philosophical conception into a  
juristic theory4 ,for the famous three  
precepts to which the law is reduced in 
,justinian's ,institutes come to this3  

,everyone is to live honorably2 he is to
 preserve moral worth in his own person 
by conforming to the conventions of the 
social order4 ,everyone is to respect   
the personality of others2 he is not to 
interfere with those interests and      
powers of action1 conceded to others by 
the social order1 which make up their   
legal personality4 ,everyone is to      
render to everyone else his own2 he is  
to respect the acquired rights of       
others4 ,the social system has defined  
certain things as belonging to each     
individual4 ,justice is defined in the  
,institutes as the set and constant     
purpose of giving him these things4 ,it 
consists in rendering them to him and in
 not interfering with his having and    
using them within the defined limits4   
,this is a legal development of the     
,greek idea of harmoniously maintaining 
the social status quo4 ,the later       
eastern empire carried it to the        
extreme4 ,stability was to be secured by
 rigidly keeping everyone to his trade  

or calling and his descendants were to  
follow him therein4 ,thus the harmony of
 society and the social order would not 
be disturbed by individual ambition4    
,in the ,middle ,ages the primitive idea
 of law as designed only to keep the    
peace came back with ,germanic law4 ,but
 the study of ,roman law presently      
taught the ,roman version of the ,greek 
conception and the legal order was      
thought of once more as an orderly      
maintenance of the social status quo4   
,this conception answered to the needs  
of medieval society1 in which men had   
found relief from anarchy and violence  
in relations of service and protection  
and a social organization which         
classified men in terms of such         
relations and required them to be held  
to their functions as so determined4    
,where the ,greeks thought of a         
stationary society corrected from time  
to time with reference to its nature or 
ideal1 the ,middle ,ages thought of a   
stationary society resting upon         

authority and determined by custom or   
tradition4 ,to each1 law was a system of
 precepts existing to maintain this     
stationary society as it was4  ,in the  
feudal social order reciprocal duties   
involved in relations established by    
tradition and taken to rest on authority
 were the significant legal             
institutions4 ,with the gradual         
disintegration of this order and the    
growing importance of the individual in 
a society engaged in discovery1         
colonization and trade1 to secure the   
claims of individuals to assert         
themselves freely in the new fields of  
human activity which were opening on    
every side became a more pressing social
 want than to maintain the social       
institutions by which the system of     
reciprocal duties was enforced and the  
relations involving those duties were   
preserved4 ,men did not so much desire  
that others perform for them the duties 
owing in some relation1 as that others  
keep hands off while they achieved what 

they might for themselves in a world    
that continually afforded new           
opportunities to the active and the     
daring4 ,the demand was no longer that  
men be kept in their appointed grooves4 
,friction and waste were apprehended1   
not from men getting out of these       
grooves1 but from attempts to hold them 
there by means devised to meet the needs
 of a different social order whereby    
they were made to chafe under arbitrary 
restraint and their powers were not     
utilized in the discovery and           
exploitation of the resources of nature1
 to which human powers were to be       
devoted in the succeeding centuries4    
,accordingly the end of law comes to be 
conceived as a making possible of the   
maximum of individual free              
self-assertion4  ,transition to the     
newer way of thinking may be seen in the
 ,spanish jurist-theologians of the     
sixteenth century4 ,their juristic      
theory was one of natural limits of     
activity in the relations of individuals

 with each other1 that is1 of limits to 
human action which expressed the        
rational ideal of man as a moral        
creature and were imposed upon men by   
reason4 ,this theory differs            
significantly from the idea of          
antiquity1 although it goes by the old  
name4 ,the ,greeks thought of a system  
of limiting men's activities in order   
that each might be kept in the place for
 which he was best fitted by nature--the
 place in which he might realize an     
ideal form of his capacities--and thus  
to preserve the social order as it      
stands or as it shall stand after a     
rearrangement4 ,the sixteenth-century   
jurists of the ,counter-,reformation    
held that men's activities were         
naturally limited1 and hence that       
positive law might and should limit them
 in the interest of other men's         
activities1 because all men have freedom
 of will and ability to direct          
themselves to conscious ends4 ,where    
,aristotle thought of inequalities      

arising from the different worth of     
individual men and their different      
capacities for the things which the     
social order called for1 these jurists  
thought of a natural 7i4e41 ideal7      
equality1 involved in the like freedom  
of will and the like power of conscious 
employment of one's faculties inherent  
in all men4 ,hence law did not exist to 
maintain the social status quo with all 
its arbitrary restraints on the will and
 on employment of individual powers2 it 
existed rather to maintain the natural  
equality which often was threatened or  
impaired by the traditional restrictions
 on individual activity4 ,since this    
natural equality was conceived          
positively as an ideal equality in      
opportunity to do things1 it could      
easily pass into a conception of free   
individual self-assertion as the thing  
sought1 and of the legal order as       
existing to make possible the maximum   
thereof in a world abounding in         
undiscovered resources1 undeveloped     

lands and unharnessed natural forces4   
,the latter idea took form in the       
seventeenth century and prevailed for   
two centuries thereafter1 culminating in
 the juristic thought of the last       
generation4  ,law as a securing of      
natural equality became law as a        
securing of natural rights4 ,the nature 
of man was expressed by certain         
qualities possessed by him as a moral1  
rational creature4 ,the limitations on  
human activity1 of which the ,spanish   
jurist-theologians had written1 got     
their warrant from the inherent moral   
qualities of men which made it right for
 them to have certain things and do     
certain things4 ,these were their       
natural rights and the law existed      
simply to protect and give effect to    
these rights4 ,there was to be no       
restraint for any other purpose4 ,except
 as they were to be compelled to respect
 the rights of others1 which the natural
 man or ideal man would do without      
compulsion as a matter of reason1 men   

were to be left free4 ,in the nineteenth
 century this mode of thought takes a   
metaphysical turn4 ,the ultimate thing  
for juristic purposes is the individual 
consciousness4 ,the social problem is to
 reconcile conflicting free wills of    
conscious individuals independently     
asserting their wills in the varying    
activities of life4 ,the natural        
equality becomes an equality in freedom 
of will4 ,kant rationalized the law in  
these terms as a system of principles or
 universal rules1 to be applied to human
 action1 whereby the free will of the   
actor may co-exist along with the free  
will of everyone else4 ,hegel           
rationalized the law in these terms as a
 system of principles wherein and       
whereby the idea of liberty was         
realizing in human experience4 ,bentham 
rationalized it as a body of rules1 laid
 down and enforced by the state's       
authority1 whereby the maximum of       
happiness1 conceived in terms of free   
self-assertion1 was secured to each     

individual4 ,its end was to make        
possible the maximum of free individual 
action consistent with general free     
individual action4 ,spencer rationalized
 it as a body of rules1 formulating the 
government of the living by the dead1   
whereby men sought to promote the       
liberty of each limited only by the like
 liberty of all4 ,in any of these ways  
of putting it1 the end of law is to     
secure the greatest possible general    
individual self-assertion2 to let men do
 freely everything they may consistently
 with a like free doing of everything   
they may by their fellow men4 ,this is  
indeed a philosophy of law for          
discoverers and colonizers and pioneers 
and traders and entrepreneurs and       
captains of industry4 ,until the world  
became crowded1 it served well to       
eliminate friction and to promote the   
widest discovery and utilization of the 
natural resources of human existence4   
,looking back at the history of this    
conception1 which has governed theories 

of the end of law for more than two     
hundred years1 we may note that it has  
been put to three uses4 ,it has been    
used as a means of clearing away the    
restraints upon free economic activity  
which accumulated during the ,middle    
,ages as incidents of the system of     
relational duties and as expressions of 
the idea of holding men to their place  
in a static social order4 ,this negative
 side played an important part in the   
,english legislative reform movement in 
the last century4 ,the ,english         
utilitarians insisted upon removal of   
all restrictions upon individual free   
action beyond those necessary for       
securing like freedom on the part of    
others4 ,this1 they said1 was the end of
 legislation4 ,again it has been used as
 a constructive idea1 as in the         
seventeenth and eighteenth centuries1   
when a commercial law which gave effect 
to what men did as they willed it1 which
 looked at intention and not at form1   
which interpreted the general security  

in terms of the security of transactions
 and sought to effectuate the will of   
individuals to bring about legal        
results1 was developed out of ,roman law
 and the custom of merchants through    
juristic theories of natural law4       
,finally it was used as a stabilizing   
idea1 as in the latter part of the      
nineteenth century1 when men proved that
 law was an evil1 even if a necessary   
evil1 that there should be as little law
 made as possible1 since all law        
involved restraint upon free exertion of
 the will1 and hence that jurist and    
legislator should be content to leave   
things legal as they are and allow the  
individual to work out in freedom his   
own happiness or misery on that basis4  
,when this last stage in the development
 of the idea of law as existing to      
promote or permit the maximum of free   
individual self-assertion had been      
reached1 the juristic possibilities of  
the conception had been exhausted4      
,there were no more continents to       

discover4 ,natural resources had been   
discovered and exploited and the need   
was for conservation of what remained   
available4 ,the forces of nature had    
been harnessed to human use4 ,industrial
 development had reached large          
proportions1 and organization and       
division of labor in our economic order 
had gone so far that anyone who would   
could no longer go forth freely and do  
anything which a restless imagination   
and daring ambition suggested to him as 
a means of gain4 ,although lawyers went 
on repeating the old formula1 the law   
began to move in another direction4 ,the
 freedom of the owner of property to do 
upon it whatever he liked1 so he did not
 overstep his limits or endanger the    
public health or safety1 began to be    
restricted4 ,nay1 the law began to make 
men act affirmatively upon their        
property in fashions which it dictated1 
where the general health was endangered 
by non-action4 ,the power to make       
contracts began to be limited where     

industrial conditions made abstract     
freedom of contract defeat rather than  
advance full individual human life4 ,the
 power of the owner to dispose freely of
 his property began to be limited in    
order to safeguard the security of the  
social institutions of marriage and the 
family4 ,freedom of appropriating res   
nullius and of using res communes came  
to be abridged in order to conserve the 
natural resources of society4 ,freedom  
of engaging in lawful callings came to  
be restricted1 and an elaborate process 
of education and examination to be      
imposed upon those who would engage in  
them1 lest there be injury to the public
 health1 safety or morals4 ,a regime in 
which anyone might freely set up a      
corporation to engage in a public       
service1 or freely compete in such      
service1 was superseded by one of legal 
exemption of existing public utilities  
from destructive competition4 ,in a     
crowded world1 whose resources had been 
exploited1 a system of promoting the    

maximum of individual self-assertion had
 come to produce more friction than it  
relieved and to further rather than to  
eliminate waste4  ,at the end of the    
last and the beginning of the present   
century1 a new way of thinking grew up4 
,jurists began to think in terms of     
human wants or desires rather than of   
human wills4 ,they began to think that  
what they had to do was not simply to   
equalize or harmonize wills1 but1 if not
 to equalize1 at least to harmonize the 
satisfaction of wants4 ,they began to   
weigh or balance and reconcile claims or
 wants or desires1 as formerly they had 
balanced or reconciled wills4 ,they     
began to think of the end of law not as 
a maximum of self-assertion1 but as a   
maximum satisfaction of wants4 ,hence   
for a time they thought of the problem  
of ethics1 of jurisprudence1 and of     
politics as chiefly one of valuing2 as a
 problem of finding criteria of the     
relative value of interests4 ,in        
jurisprudence and politics they saw that

 we must add practical problems of the  
possibility of making interests         
effective through governmental action1  
judicial or administrative4 ,but the    
first question was one of the wants to  
be recognized--of the interests to be   
recognized and secured4 ,having         
inventoried the wants or claims or      
interests which are asserting and for   
which legal security is sought1 we were 
to value them1 select those to be       
recognized1 determine the limits within 
which they were to be given effect in   
view of other recognized interests1 and 
ascertain how far we might give them    
effect by law in view of the inherent   
limitations upon effective legal action4
 ,this mode of thinking may be seen1    
concealed under different terminologies1
 in more than one type of jurist in the 
last three decades4  ,three elements    
contributed to shift the basis of       
theories as to the end of law from wills
 to wants1 from a reconciling or        
harmonizing of wills to a reconciling or

 harmonizing of wants4 ,the most        
important part was played by psychology 
which undermined the foundation of the  
metaphysical will-philosophy of law4    
,through the movement for unification of
 the social sciences1 economics also    
played an important part1 especially    
indirectly through the attempts at      
economic interpretation of legal        
history1 reinforcing psychology by      
showing the extent to which law had been
 shaped by the pressure of economic     
wants4 ,also the differentiation of     
society1 involved in industrial         
organization1 was no mean factor1 when  
classes came to exist in which claims to
 a minimum human existence1 under the   
standards of the given civilization1    
became more pressing than claims to     
self-assertion4 ,attention was turned   
from the nature of law to its purpose1  
and a functional attitude1 a tendency to
 measure legal rules and doctrines and  
institutions by the extent to which they
 further or achieve the ends for which  

law exists1 began to replace the older  
method of judging law by criteria drawn 
from itself4 ,in this respect the       
thought of the present is more like that
 of the seventeenth and eighteenth      
centuries than that of the nineteenth   
century4 ,french writers have described 
this phenomenon as a revival of         
juridical idealism4 ,but in truth the   
social utilitarianism of today and the  
natural-law philosophy of the           
seventeenth and eighteenth centuries    
have only this in common3 ,each has its 
attention fixed upon phenomena of       
growth2 each seeks to direct and further
 conscious improvement of the law4  ,in 
its earlier form social-utilitarianism1 
in common with all nineteenth-century   
philosophies of law1 was too absolute4  
,its teleological theory was to show us 
what actually and necessarily took place
 in lawmaking rather than what we were  
seeking to bring about4 ,its service to 
the philosophy of law was in compelling 
us to give over the ambiguous term right

 and to distinguish between the claims  
or wants or demands1 existing           
independently of law1 the legally       
recognized or delimited claims or wants 
or demands1 and the legal institutions1 
which broadly go by the name of legal   
rights1 whereby the claims when         
recognized and delimited are secured4   
,also it first made clear how much the  
task of the lawmaker is one of          
compromise4 ,to the law-of-nature       
school1 lawmaking was but an absolute   
development of absolute principles4 ,a  
complete logical development of the     
content implicit in each natural right  
would give a body of law adequate to    
every time and place4 ,it is true an    
idea of compromise did lurk behind the  
theory of the metaphysical jurists in   
the nineteenth century4 ,but they sought
 an absolute harmonizing rather than a  
working compromise for the time and     
place4 ,conflicting individual wills    
were to be reconciled absolutely by a   
formula which had ultimate and universal

 authority4 ,when we think of law as    
existing to secure social interests1 so 
far as they may be secured through an   
ordering of men and of human relations  
through the machinery of organized      
political society1 it becomes apparent  
that we may reach a practicable system  
of compromises of conflicting human     
desires here and now1 by means of a     
mental picture of giving effect to as   
much as we can1 without believing that  
we have a perfect solution for all time 
and for every place4 ,as the            
,neo-,kantians put it1 we may formulate 
the social ideal of the time and place  
and try juristic problems thereby       
without believing ourselves competent to
 lay out a social and political and     
legal chart for all time4 ,as the       
,neo-,hegelians put it1 we may discover 
and formulate the jural postulates of   
the civilization of the time and place  
without assuming that those postulates  
are a complete and final picture of     
ultimate law1 by which it must be       

measured for all time4  ,social         
utilitarianism has stood in need of     
correction both from psychology and from
 sociology4 ,it must be recognized that 
lawmaking and adjudication are not in   
fact determined precisely by a weighing 
of interests4 ,in practice the pressure 
of wants1 demands1 desires1 will warp   
the actual compromises made by the legal
 system this way or that4 ,in order to  
maintain the general security we        
endeavor in every way to minimize this  
warping4 ,but one needs only to look    
below the surface of the law anywhere at
 any time to see it going on1 even if   
covered up by mechanical devices to make
 the process appear an absolute one and 
the result a predetermined one4 ,we may 
not expect that the compromises made and
 enforced by the legal order will always
 and infallibly give effect to any      
picture we may make of the nature or    
ends of the process of making and       
enforcing them4 ,yet there will be less 
of this subconscious warping if we have 

a clear picture before us of what we are
 seeking to do and to what end1 and if  
we build in the image thereof so far as 
we consciously build and shape the law4 
,difficulties arise chiefly in          
connection with criteria of value4 ,if  
we say that interests are to be         
catalogued or inventoried1 that they are
 then to be valued1 that those which are
 found to be of requisite value are to  
be recognized legally and given effect  
within limits determined by the         
valuation1 so far as inherent           
difficulties in effective legal securing
 of interests will permit1 the question 
arises at once1 ,how shall we do this   
work of valuing8 ,philosophers have     
devoted much ingenuity to the discovery 
of some method of getting at the        
intrinsic importance of various         
interests1 so that an absolute formula  
may be reached in accordance wherewith  
it may be assured that the weightier    
interests intrinsically shall prevail4  
,but ,i am skeptical as to the          

possibility of an absolute judgment4 ,we
 are confronted at this point by a      
fundamental question of social and      
political philosophy4 ,i do not believe 
the jurist has to do more than recognize
 the problem and perceive that it is    
presented to him as one of securing all 
social interests so far as he may1 of   
maintaining a balance or harmony among  
them that is compatible with the        
securing of all of them4 ,the last      
century preferred the general security4 
,the present century has shown many     
signs of preferring the individual moral
 and social life4 ,i doubt whether such 
preferences can maintain themselves4    
,social utilitarians would say1 weigh   
the several interests in terms of the   
end of law4 ,but have we any given to us
 absolutely8 ,is the end of law anything
 less than to do whatever may be        
achieved thereby to satisfy human       
desires8 ,are the limits any other than 
those imposed by the tools with which we
 work1 whereby we may lose more than we 

gain1 if we attempt to apply them in    
certain situations8 ,if so1 there is    
always a possibility of improved tools4 
,the ,greek philosopher who said that   
the only possible subjects of lawsuit   
were insult1 injury and homicide1 was as
 dogmatic as ,herbert ,spencer1 who     
conceived of sanitary laws and housing  
laws in our large cities as quite       
outside the domain of the legal order4  
,better legal machinery extends the     
field of legal effectiveness as better  
machinery has extended the field of     
industrial effectiveness4 ,i do not mean
 that the law should interfere as of    
course in every human relation and in   
every situation where some one chances  
to think a social want may be satisfied 
thereby4 ,experience has shown          
abundantly how futile legal machinery   
may be in its attempts to secure certain
 kinds of interests4 ,what ,i do say is1
 that if in any field of human conduct  
or in any human relation the law1 with  
such machinery as it has1 may satisfy a 

social want without a disproportionate  
sacrifice of other claims1 there is no  
eternal limitation inherent in the      
nature of things1 there are no bounds   
imposed at creation1 to stand in the way
 of its doing so4  ,let us apply some of
 the other theories which are now       
current4 ,the ,neo-,hegelians say3 ,try 
the claims in terms of civilization1 in 
terms of the development of human powers
 to the most of which they are          
capable--the most complete human mastery
 of nature1 both human nature and       
external nature4 ,the ,neo-,kantians    
say3 ,try them in terms of a community  
of free-willing men as the social ideal4
 ,duguit says3 ,try them in terms of    
social interdependence and social       
function4 ,do they promote or do they   
impede social interdependence through   
similarity of interest and division of  
labor8 ,in these formulas do we really  
get away from the problem of a balance  
compatible with maintaining all the     
interests1 with responding to all the   

wants and claims1 which are involved in 
civilized social existence8  ,for the   
purpose of understanding the law of     
today ,i am content with a picture of   
satisfying as much of the whole body of 
human wants as we may with the least    
sacrifice4 ,i am content to think of law
 as a social institution to satisfy     
social wants--the claims and demands    
involved in the existence of civilized  
society--by giving effect to as much as 
we may with the least sacrifice1 so far 
as such wants may be satisfied or such  
claims given effect by an ordering of   
human conduct through politically       
organized society4 ,for present purposes
 ,i am content to see in legal history  
the record of a continually wider       
recognizing and satisfying of human     
wants or claims or desires through      
social control2 a more embracing and    
more effective securing of social       
interests2 a continually more complete  
and effective elimination of waste and  
precluding of friction in human         

enjoyment of the goods of existence--in 
short1 a continually more efficacious   
social engineering4     ,,iii  ,the     
,application of ,law   ,three steps are 
involved in the adjudication of a       
controversy according to law3 7#a7      
,finding the law1 ascertaining which of 
the many rules in the legal system is to
 be applied1 or1 if none is applicable1 
reaching a rule for the cause 7which may
 or may not stand as a rule for         
subsequent cases7 on the basis of given 
materials in some way which the legal   
system points out2 7#b7 interpreting the
 rule so chosen or ascertained1 that is1
 determining its meaning as it was      
framed and with respect to its intended 
scope2 7#c7 applying to the cause in    
hand the rule so found and interpreted4 
,in the past these have been confused   
under the name of interpretation4 ,it   
was assumed that the function of the    
judge consisted simply in interpreting  
an authoritatively given rule of wholly 
extra-judicial origin by an exact       

process of deducing its logically       
implied content and in mechanically     
applying the rule so given and          
interpreted4 ,this assumption has its   
origin in the stage of the strict law in
 the attempt to escape from the         
overdetail on the one hand1 and the     
vague sententiousness on the other hand1
 which are characteristic of primitive  
law4 ,for the most part primitive law is
 made up of simple1 precise1 detailed   
rules for definite narrowly defined     
situations4 ,it has no general          
principles4 ,the first step toward a    
science of law is the making of         
distinctions between what comes within  
and what does not come within the legal 
meaning of a rule4 ,but a body of       
primitive law also often contains a     
certain number of sententious legal     
proverbs1 put in striking form so as to 
stick in the memory1 but vague in their 
content4 ,the strict law by means of a  
conception of results obtained          
inevitably from fixed rules and         

undeviating remedial proceedings seeks  
relief from the uncertainty inherent in 
the finding of a larger content for     
overdetailed special rules through      
differentiation of cases and the        
application of legal proverbial sayings 
through the equity of the tribunal4 ,it 
conceives of application of law as      
involving nothing but a mechanical      
fitting of the case with the            
strait-jacket of rule or remedy4 ,the   
inevitable adjustments and extendings   
and limitations1 which an attempt to    
administer justice in this way must     
involve1 are covered up by a fiction of 
interpretation in order to maintain the 
general security4  ,philosophical       
rationalizing of the attempt to avoid   
the overpersonal administration of      
justice incident to the partial         
reversion to justice without law in the 
stage of equity and natural law1        
reinforced the assumption that judicial 
application of law was a mechanical     
process and was but a phase of          

interpretation4 ,in the eighteenth      
century it was given scientific form in 
the theory of separation of powers4 ,the
 legislative organ made laws4 ,the      
executive administered them4 ,the       
judiciary applied them to the decision  
of controversies4 ,it was admitted in   
,anglo-,american legal thinking that    
courts must interpret in order to apply4
 ,but the interpretation was taken not  
to be in any wise a lawmaking and the   
application was taken not to involve any
 administrative element and to be wholly
 mechanical4 ,on the ,continent         
interpretation so as to make a binding  
rule for future cases was deemed to     
belong only to the legislator4 ,the     
maturity of law was not willing to admit
 that judge or jurist could make        
anything4 ,it was not the least service 
of the analytical jurisprudence of the  
last century to show that the greater   
part of what goes by the name of        
interpretation in this way of thinking  
is really a lawmaking process1 a        

supplying of new law where no rule or no
 sufficient rule is at hand4 ,the fact  
is1 says ,gray most truly1 that the     
difficulties of so-called interpretation
 arise when the legislature has had no  
meaning at all2 when the question which 
is raised on the statute never occurred 
to it2 when what the judges have to do  
is1 not to determine what the           
legislature did mean on a point which   
was present to its mind1 but to guess   
what it would have intended on a point  
not present to its mind had the point   
been present4 ,the attempt to maintain  
the separation of powers by             
constitutional prohibitions has pointed 
to the same lesson from another side4   
,lawmaking1 administration and          
adjudication cannot be rigidly fenced   
off one from the other and turned over  
each to a separate agency as its        
exclusive field4 ,there is rather a     
division of labor as to typical cases   
and a practical or historical           
apportionment of the rest4  ,finding the

 law may consist merely in laying hold  
of a prescribed text of a code or       
statute4 ,in that event the tribunal    
must proceed to determine the meaning of
 the rule and to apply it4 ,but many    
cases are not so simple4 ,more than one 
text is at hand which might apply2 more 
than one rule is potentially applicable1
 and the parties are contending which   
shall be made the basis of a decision4  
,in that event the several rules must be
 interpreted in order that intelligent  
selection may be made4 ,often the       
genuine interpretation of the existing  
rules shows that none is adequate to    
cover the case and that what is in      
effect1 if not in theory1 a new one must
 be supplied4 ,attempts to foreclose    
this process by minute1 detailed        
legislation have failed signally1 as1   
for example1 in the overgrown code of   
civil procedure in ,new ,york4          
,providing of a rule by which to decide 
the cause is a necessary element in the 
determination of a large proportion of  

the causes that come before our higher  
tribunals1 and it is often because a    
rule must be provided that the parties  
are not content to abide the decision of
 the court of first instance4  ,cases   
calling for genuine interpretation are  
relatively few and simple4 ,moreover    
genuine interpretation and lawmaking    
under the guise of interpretation run   
into one another4 ,in other words1 the  
judicial function and the legislative   
function run into one another4 ,it is   
the function of the legislative organ to
 make laws4 ,but from the nature of the 
case it cannot make laws so complete and
 all-embracing that the judicial organ  
will not be obliged to exercise a       
certain lawmaking function also4 ,the   
latter will rightly consider this a     
subordinate function4 ,it will take it  
to be one of supplementing1 developing  
and shaping given materials by means of 
a given technique4 ,none the less it is 
a necessary part of judicial power4     
,pushed to the extreme that regards all 

judicial lawmaking as unconstitutional  
usurpation1 our political theory1 a     
philosophical classification made over  
by imperfect generalization from the    
,british constitution as it was in the  
seventeenth century1 has served merely  
to intrench in the professional mind the
 dogma of the historical school1 that   
legislative lawmaking is a subordinate  
function and exists only to supplement  
the traditional element of the legal    
system here and there and to set the    
judicial or juristic tradition now and  
then in the right path as to some       
particular item where it had gone       
astray4  ,in ,anglo-,american law we do 
not think of analogical development of  
the traditional materials of the legal  
system as interpretation4 ,in ,roman-law
 countries1 where the law is made up of 
codes supplemented and explained by the 
codified ,roman law of ,justinian and   
modern usage on the basis thereof1 which
 stands as the common law1 it seems     
clear enough that analogical application

 whether of a section of the code or of 
a text of the ,roman law is essentially 
the same process4 ,both are called      
interpretation4 ,as our common law is   
not in the form of authoritative texts1 
the nature of the process that goes on  
when a leading case is applied by       
analogy1 or limited in its application1 
or distinguished1 is concealed4 ,it does
 not seem on the surface to be the same 
process as when a text of the ,digest is
 so applied or limited or distinguished4
 ,hence it has been easy for us to      
assume that courts did no more than     
genuinely interpret legislative texts   
and deduce the logical content of       
authoritatively established traditional 
principles4 ,it has been easy to accept 
a political theory1 proceeding on the   
dogma of separation of powers1 and to   
lay down that courts only interpret and 
apply1 that all making of law must come 
from the legislature1 that courts must  
take the law as they find it1 as if they
 could always find it ready-made for    

every case4 ,it has been easy also to   
accept a juristic theory that law cannot
 be made2 that it may only be found1 and
 that the process of finding it is a    
matter purely of observation and logic1 
involving no creative element4 ,if we   
really believed this pious fiction1 it  
would argue little faith in the logical 
powers of the bench in view of the      
diversity of judicially asserted        
doctrines on the same point which so    
frequently exist in our case law and the
 widely different opinions of our best  
judges with respect to them4 ,as        
interpretation is difficult1 when it is 
difficult1 just because the legislature 
had no actual intent to ascertain1 so   
the finding of the common law on a new  
point is difficult because there is no  
rule of law to find4 ,the judicial and  
the legislative functions run together  
also in judicial ascertainment of the   
common law by analogical application of 
decided cases4  ,as interpretation on   
the one side runs into lawmaking and so 

the judicial function runs into the     
legislative function1 on the other side 
interpretation runs into application and
 so the judicial function runs into the 
administrative or executive4 ,typically 
judicial treatment of a controversy is a
 measuring of it by a rule in order to  
reach a universal solution for a class  
of causes of which the cause in hand is 
but an example4 ,typically              
administrative treatment of a situation 
is a disposition of it as a unique      
occurrence1 an individualization whereby
 effect is given to its special rather  
than to its general features4 ,but      
administration cannot ignore the        
universal aspects of situations without 
endangering the general security4 ,nor  
may judicial decision ignore their      
special aspects and exclude all         
individualization in application without
 sacrificing the social interest in the 
individual life through making justice  
too wooden and mechanical4 ,the idea    
that there is no administrative element 

in the judicial decision of causes and  
that judicial application of law should 
be a purely mechanical process goes back
 to ,aristotle's ,politics4 ,writing    
before a strict law had developed1 in   
what may be called the highest point of 
development of primitive law1 when the  
personal character and feelings for the 
time being of kings or magistrates or   
dicasts played so large a part in the   
actual workings of legal justice1       
,aristotle sought relief through a      
distinction between the administrative  
and the judicial4 ,he conceived that    
discretion was an administrative        
attribute4 ,in administration regard was
 to be had to times and men and special 
circumstances4 ,the executive was to use
 a wise discretion in adjusting the     
machinery of government to actual       
situations as they arose4 ,on the other 
hand1 he conceived that a court should  
have no discretion4 ,to him the judicial
 office was a ,procrustean one of       
fitting each case to the legal bed1 if  

necessary by a surgical operation4 ,such
 a conception met the needs of the      
strict law4 ,in a stage of legal        
maturity it was suited to the ,byzantine
 theory of law as the will of the       
emperor and of the judge as the         
emperor's delegate to apply and give    
effect to that will4 ,in the ,middle    
,ages it had a sufficient basis in      
authority and in the needs of a period  
of strict law4 ,later it fitted well    
into the ,byzantine theory of lawmaking 
which ,french publicists adopted and    
made current in the seventeenth and     
eighteenth centuries4 ,in the ,united   
,states it seemed to be required by our 
constitutional provisions for a         
separation of powers4 ,but in practice  
it has broken down no less completely   
than the analogous idea of entire       
separation of the judicial from the     
lawmaking function4  ,almost all of the 
problems of jurisprudence come down to a
 fundamental one of rule and discretion1
 of administration of justice by law and

 administration of justice by the more  
or less trained intuition of experienced
 magistrates4 ,controversies as to the  
nature of law1 whether the traditional  
element or the imperative element of    
legal systems is the typical law1       
controversies as to the nature of       
lawmaking1 whether the law is found by  
judicial empiricism or made by conscious
 legislation1 and controversies as to   
the bases of law's authority1 whether in
 reason and science on the one hand or  
in command and sovereign will on the    
other hand1 get their significance from 
their bearing upon this question4       
,controversies as to the relation of law
 and morals1 as to the distinction of   
law and equity1 as to the province of   
the court and of the jury1 as to fixed  
rule or wide judicial power in          
procedure1 and as to judicial sentence  
and administrative individualization in 
punitive justice are but forms of this  
fundamental problem4 ,this is not the   
place to discuss that problem4 ,suffice 

it to say that both are necessary       
elements in the administration of       
justice and that instead of eliminating 
either1 we must partition the field     
between them4 ,but it has been assumed  
that one or the other must govern       
exclusively1 and there has been a       
continual movement in legal history back
 and forth between wide discretion and  
strict detailed rule1 between justice   
without law1 as it were1 and justice    
according to law4 ,the power of the     
magistrate has been a liberalizing      
agency in periods of growth4 ,in the    
stage of equity and natural law1 a stage
 of infusion of moral ideas from without
 into the law1 the power of the         
magistrate to give legal force to his   
purely moral ideas was a chief          
instrument4 ,today we rely largely upon 
administrative boards and commissions to
 give legal force to ideas which the law
 ignores4 ,on the other hand rule and   
form with no margin of application have 
been the main reliance of periods of    

stability4 ,the strict law sought to    
leave nothing to the judge beyond seeing
 whether the letter had been complied   
with4 ,the nineteenth century abhorred  
judicial discretion and sought to       
exclude the administrative element from 
the domain of judicial justice4 ,yet a  
certain field of justice without law    
always remained and by one device or    
another the balance of the supposedly   
excluded administrative element was     
preserved4  ,in the strict law          
individualization was to be excluded by 
hard and fast mechanical procedure4 ,in 
practice this procedure was corrected   
and the balance between rule and        
discretion1 between the legal and the   
administrative1 was restored by fictions
 and by an executive dispensing power4  
,roman equity has its origin in the     
imperium of the praetor--his royal power
 to dispense with the strict law in     
particular situations4 ,also ,english   
equity has its origin in the royal power
 of discretionary application of law and

 dispensing with law in particular      
cases1 misuse of which as a political   
institution was one of the causes of the
 downfall of the ,stuarts4 ,thus we get 
a third agency for restoring the balance
 in the form of systematic interposition
 of praetor or chancellor on equitable  
grounds1 leading to a system of equity4 
,carried too far in the stage of equity 
and natural law1 overdevelopment of the 
administrative element brings about a   
reaction and in the maturity of law     
individualization is pushed to the wall 
once more4 ,yet this elimination of the 
administrative takes place more in      
theory and in appearance than in        
reality4 ,for justice comes to be       
administered in large measure through   
the application of legal standards which
 admit of a wide margin for the facts of
 particular cases1 and the application  
of these standards is committed to      
laymen or to the discretion of the      
tribunal4 ,moreover a certain judicial  
individualization goes on4 ,partly this 

takes the form of a margin of           
discretionary application of equitable  
remedies1 handed down from the stage of 
equity and natural law4 ,partly it takes
 the form of ascertainment of the facts 
with reference to the legal result      
desired in view of the legal rule or of 
choice between competing rules in effect
 covering the same ground1 although     
nominally for distinct situations4 ,in  
other words1 a more subtle fiction does 
for the maturity of law what is done for
 the strict law by its relatively crude 
procedural fictions4  ,of these five    
agencies for preserving the             
administrative element in judicial      
justice1 in periods when legal theory   
excludes it1 two call for special       
consideration4  ,it is usual to describe
 law as an aggregate of rules4 ,but     
unless the word rule is used in so wide 
a sense as to be misleading1 such a     
definition1 framed with reference to    
codes or by jurists whose eyes were     
fixed upon the law of property1 gives an

 inadequate picture of the manifold     
components of a modern legal system4    
,rules1 that is1 definite1 detailed     
provisions for definite1 detailed states
 of fact1 are the main reliance of the  
beginnings of law4 ,in the maturity of  
law they are employed chiefly in        
situations where there is exceptional   
need of certainty in order to uphold the
 economic order4 ,with the advent of    
legal writing and juristic theory in the
 transition from the strict law to      
equity and natural law1 a second element
 develops and becomes a controlling     
factor in the administration of justice4
 ,in place of detailed rules precisely  
determining what shall take place upon a
 precisely detailed state of facts1     
reliance is had upon general premises   
for judicial and juristic reasoning4    
,these legal principles1 as we call     
them1 are made use of to supply new     
rules1 to interpret old ones1 to meet   
new situations1 to measure the scope and
 application of rules and standards and 

to reconcile them when they conflict or 
overlap4 ,later1 when juristic study    
seeks to put the materials of the law in
 order1 a third element develops1 which 
may be called legal conceptions4 ,these 
are more or less exactly defined types1 
to which we refer cases or by which we  
classify them1 so that when a state of  
facts is classified we may attribute    
thereto the legal consequences attaching
 to the type4 ,all of these admit of    
mechanical or rigidly logical           
application4 ,a fourth element1 however1
 which plays a great part in the        
everyday administration of justice1 is  
of quite another character4  ,legal     
standards of conduct appear first in    
,roman equity4 ,in certain cases of     
transactions or relations involving good
 faith1 the formula was made to read    
that the defendant was to be condemned  
to that which in good faith he ought to 
give or do for or render to the         
plaintiff4 ,thus the judge had a margin 
of discretion to determine what good    

faith called for and in ,cicero's time  
the greatest lawyer of the day thought  
these actiones bonae fidei required a   
strong judge because of the dangerous   
power which they allowed him4 ,from this
 procedural device1 ,roman lawyers      
worked out certain standards or measures
 of conduct1 such as what an upright and
 diligent head of a family would do1 or 
the way in which a prudent and diligent 
husbandman would use his land4 ,in      
similar fashion ,english equity worked  
out a standard of fair conduct on the   
part of a fiduciary4 ,later the         
,anglo-,american law of torts worked    
out1 as a measure for those who are     
pursuing some affirmative course of     
conduct1 the standard of what a         
reasonable1 prudent man would do under  
the circumstances4 ,also the law of     
public utilities worked out standards of
 reasonable service1 reasonable         
facilities1 reasonable incidents of the 
service and the like4 ,in all these     
cases the rule is that the conduct of   

one who acts must come up to the        
requirements of the standard4 ,yet the  
significant thing is not the fixed rule 
but the margin of discretion involved in
 the standard and its regard for the    
circumstances of the individual case4   
,for three characteristics may be seen  
in legal standards3 7#a7 ,they all      
involve a certain moral judgment upon   
conduct4 ,it is to be fair1 or          
conscientious1 or reasonable1 or        
prudent1 or diligent4 7#b7 ,they do not 
call for exact legal knowledge exactly  
applied1 but for common sense about     
common things or trained intuition about
 things outside of everyone's           
experience4 7#c7 ,they are not          
formulated absolutely and given an exact
 content1 either by legislation or by   
judicial decision1 but are relative to  
times and places and circumstances and  
are to be applied with reference to the 
facts of the case in hand4 ,they        
recognize that within the bounds fixed  
each case is to a certain extent unique4

 ,in the reaction from equity and       
natural law1 and particularly in the    
nineteenth century1 these standards were
 distrusted4 ,lord ,camden's saying that
 the discretion of a judge was the law  
of tyrants1 that it was different in    
different men1 was casual and dependent 
upon temperament1 has in it the whole   
spirit of the maturity of law4 ,american
 state courts sought to turn the        
principles by which the chancellors were
 wont to exercise their discretion into 
hard and fast rules of jurisdiction4    
,they sought to reduce the standard of  
reasonable care to a set of hard and    
fast rules4 ,if one crossed a railroad1 
he must stop1 look and listen4 ,it was  
negligence per se to get on or off a    
moving car1 to have part of the body    
protruding from a railroad car1 and the 
like4 ,also they sought to put the      
duties of public utilities in the form  
of definite rules with a detailed1      
authoritatively fixed content4 ,all     
these attempts to do away with the      

margin of application involved in legal 
standards broke down4 ,the chief result 
was a reaction in the course of which   
many states turned over all questions of
 negligence to juries1 free even from   
effective advice from the bench1 while  
many other jurisdictions have been      
turning over subject after subject to   
administrative boards and commissions to
 be dealt with for a season without law4
 ,in any event1 whether the standard of 
due care in an action for negligence is 
applying by a jury1 or the standard of  
reasonable facilities for transportation
 is applying by a public service        
commission1 the process is one of       
judging of the quality of a bit of      
conduct under its special circumstances 
and with reference to ideas of fairness 
entertained by the layman or the ideas  
of what is reasonable entertained by the
 more or less expert commissioner4      
,common sense1 experience and intuition 
are relied upon1 not technical rule and 
scrupulously mechanical application4    

,we are familiar with judicial          
individualization in the administration 
of equitable remedies4 ,another form1   
namely1 individualization through       
latitude of application under the guise 
of choice or ascertainment of a rule1 is
 concealed by the fiction of the logical
 completeness of the legal system and   
the mechanical1 logical infallibility of
 the logical process whereby the        
predetermined rules implicit in the     
given legal materials are deduced and   
applied4 ,to a large and apparently     
growing extent the practice of our      
application of law has been that jurors 
or courts1 as the case may be1 take the 
rules of law as a general guide1        
determine what the equities of the cause
 demand1 and contrive to find a verdict 
or render a judgment accordingly1       
wrenching the law no more than is       
necessary4 ,many courts today are       
suspected of ascertaining what the      
equities of a controversy require1 and  
then raking up adjudicated cases to     

justify the result desired4 ,often      
formulas are conveniently elastic so    
that they may or may not apply4 ,often  
rules of contrary tenor overlap1 leaving
 a convenient no-man's-land wherein     
cases may be decided either way         
according to which rule the court       
chooses in order to reach a result      
arrived at on other grounds4            
,occasionally a judge is found who      
acknowledges frankly that he looks      
chiefly at the ethical situation between
 the parties and does not allow the law 
to interfere therewith beyond what is   
inevitable4  ,thus we have in fact a    
crude equitable application1 a crude    
individualization1 throughout the field 
of judicial administration of justice4  
,it is assumed by courts more widely    
than we suspect1 or at least1 more      
widely than we like to acknowledge4     
,ostensibly there is no such power4 ,but
 when one looks beneath the surface of  
the law reports1 the process reveals    
itself under the name of implication or 

in the guise of two lines of decisions  
of the same tribunal upon the same point
 from which it may choose at will1 or in
 the form of what have been termed soft 
spots in the law--spots where the lines 
are so drawn by the adjudicated cases   
that the court may go either way as the 
ethical exigencies of the special       
circumstances of the case in hand may   
require1 with no apparent transgression 
of what purport to be hard and fast     
rules4 ,such has been the result of     
attempts to exclude the administrative  
element in adjudication4 ,in theory     
there is no such thing except with      
respect to equitable remedies1 where it 
exists for historical reasons4 ,in      
practice there is a great deal of it1   
and that in a form which is unhappily   
destructive of certainty and uniformity4
 ,necessary as it is1 the method by     
which we attain a needed                
individualization is injurious to       
respect for law4 ,if the courts do not  
respect the law1 who will8 ,there is no 

exclusive cause of the current ,american
 attitude toward the law4 ,but judicial 
evasion and warping of the law1 in order
 to secure in practice a freedom of     
judicial action not conceded in theory1 
is certainly one cause4 ,we need a      
theory which recognizes the             
administrative element as a legitimate  
part of the judicial function and       
insists that individualization in the   
application of legal precepts is no less
 important than the contents of those   
precepts themselves4  ,three theories of
 application of law obtain in the legal 
science of today4 ,the theory which has 
the largest following among             
practitioners and in dogmatic exposition
 of the law is analytical4 ,it assumes a
 complete body of law with no gaps and  
no antinomies1 given authority by the   
state at one stroke and so to be treated
 as if every item was of the same date  
as every other4 ,if the law is in the   
form of a code1 its adherents apply the 
canons of genuine interpretation and ask

 what the several code provisions mean  
as they stand1 looked at logically      
rather than historically4 ,they endeavor
 to find the pre-appointed code         
pigeonhole for each concrete case1 to   
put the case in hand into it by a purely
 logical process and to formulate the   
result in a judgment4 ,if the law is in 
the form of a body of reported          
decisions1 they assume that those       
decisions may be treated as if all      
rendered at the same time and as        
containing implicitly whatever is       
necessary to the decision of future     
causes which they do not express4 ,they 
may define conceptions or they may      
declare principles4 ,the logically      
predetermined decision is contained in  
the conception to which the facts are   
referred or involved in the principle   
within whose scope the facts fall4 ,a   
purely logical process1 exactly         
analogous to genuine interpretation of a
 legislative rule1 will yield the       
appropriate conception from given       

premises or discover the appropriate    
principle from among those which        
superficially appear to apply4          
,application is merely formulation in a 
judgment of the result obtained by      
analysis of the case and logical        
development of the premises contained in
 the reported decisions4  ,among        
teachers a historical theory has the    
larger following4 ,if the law is in the 
form of a code1 the code provisions are 
assumed to be in the main declaratory of
 the law as it previously existed2 the  
code is regarded as a continuation and  
development of pre-existing law4 ,all   
exposition of the code and of any       
provision thereof must begin by an      
elaborate inquiry into the pre-existing 
law and the history and development of  
the competing juristic theories among   
which the framers of the code had to    
choose4 ,if the law is in the form of a 
body of reported decisions1 the later   
decisions are regarded as but declaring 
and illustrating the principles to be   

found by historical study of the older  
ones2 as developing legal conceptions   
and principles to be found by historical
 study of the older law4 ,hence all     
exposition must begin with an elaborate 
historical inquiry in which the idea    
that has been unfolding in the course of
 judicial decision is revealed and the  
lines are disclosed along which legal   
development must move4 ,but when the    
content of the applicable legal precept 
is discovered in these ways1 the method 
of applying it in no way differs from   
that which obtains under the analytical 
theory4 ,the process of application is  
assumed to be a purely logical one4 ,do 
the facts come within or fail to come   
within the legal precept8 ,this is the  
sole question for the judge4 ,when by   
historical investigation he has found   
out what the rule is1 he has only to fit
 it to just and unjust alike4           
,analytical and historical theories of  
application of law thus seek to exclude 
the administrative element wholly and   

their adherents resort to fictions to   
cover up the judicial individualization 
which none the less obtains in practice 
or else ignore it1 saying that it is but
 a result of the imperfect constitution 
of tribunals or of the ignorance or     
sloth of those who sit therein4 ,the    
latter explanation is no more satisfying
 than the fictions1 and a new theory has
 sprung up of late in ,continental      
,europe which may be understood best by 
calling it the equitable theory1 since  
the methods of the ,english ,chancellor 
had much to do with suggesting it4 ,to  
the adherents of this theory the        
essential thing is a reasonable and just
 solution of the individual controversy4
 ,they conceive of the legal precept1   
whether legislative or traditional1 as a
 guide to the judge1 leading him toward 
the just result4 ,but they insist that  
within wide limits he should be free to 
deal with the individual case so as to  
meet the demands of justice between the 
parties and accord with the reason and  

moral sense of ordinary men4 ,they      
insist that application of law is not a 
purely mechanical process4 ,they contend
 that it involves not logic only but    
moral judgments as to particular        
situations and courses of conduct in    
view of the special circumstances which 
are never exactly alike4 ,they insist   
that such judgments involve intuitions  
based upon experience and are not to be 
expressed in definitely formulated      
rules4 ,they argue that the cause is not
 to be fitted to the rule but the rule  
to the cause4  ,much that has been      
written by advocates of the equitable   
theory of application of law is         
extravagant4 ,as usually happens1 in    
reaction from theories going too far in 
one direction this theory has gone too  
far in the other4 ,the last century     
would have eliminated individualization 
of application4 ,now1 as in the         
sixteenth- and seventeenth-century      
reaction from the strict law1 come those
 who would have nothing else2 who would 

turn over the whole field of judicial   
justice to administrative methods4 ,if  
we must choose1 if judicial             
administration of justice must of       
necessity be wholly mechanical or else  
wholly administrative1 it was a sound   
instinct of lawyers in the maturity of  
law that led them to prefer the former4 
,only a saint1 such as ,louis ,,ix under
 the oak at ,vincennes1 may be trusted  
with the wide powers of a judge         
restrained only by a desire for just    
results in each case to be reached by   
taking the law for a general guide4 ,and
 ,st4 ,louis did not have the crowded   
calendars that confront the modern      
judge4 ,but are we required to choose8  
,may we not learn something from the    
futility of all efforts to administer   
justice exclusively by either method8   
,may we not find the proper field of    
each by examining the means through     
which in fact we achieve an             
individualization which we deny in      
theory1 and considering the cases in    

which those means operate most          
persistently and the actual             
administration of justice most          
obstinately refuses to become as        
mechanical in practice as we expect it  
to be in theory8  ,in ,anglo-,american  
law today there are no less than seven  
agencies for individualizing the        
application of law4 ,we achieve an      
individualization in practice3 7#a7     
through the discretion of courts in the 
application of equitable remedies2 7#b7 
through legal standards applied to      
conduct generally when injury results   
and also to certain relations and       
callings2 7#c7 through the power of     
juries to render general verdicts2 7#d7 
through latitude of judicial application
 involved in finding the law2 7#e7      
through devices for adjusting penal     
treatment to the individual offender2   
7#f7 through informal methods of        
judicial administration in petty courts1
 and 7#g7 through administrative        
tribunals4 ,the second and fourth have  

been considered4 ,let us look for a     
moment at the others4  ,discretion in   
the exercise of equitable remedies is an
 outgrowth of the purely personal       
intervention in extraordinary cases on  
grounds that appealed to the conscience 
of the chancellor in which equity       
jurisdiction has its origin4 ,something 
of the original flavor of equitable     
interposition remains in the doctrine of
 personal bar to relief1 and in the     
ethical quality of some of the maxims   
which announce policies to be pursued in
 the exercise of the chancellor's       
powers4 ,but it was possible for the    
nineteenth century to reconcile what    
remained of the chancellor's discretion 
with its mode of thinking4 ,where the   
plaintiff's right was legal but the     
legal remedy was not adequate to secure 
him in what the legal right entitled him
 to claim1 equity gave a concurrent     
remedy supplementing the strict law4 ,as
 the remedy in equity was supplementary 
and concurrent1 in case the chancellor  

in his discretion kept his hands off1 as
 he would if he felt that he could not  
bring about an equitable result1 the law
 would still operate4 ,the plaintiff's  
right was in no wise at the mercy of    
anyone's discretion4 ,he merely lost an 
extraordinary and supplementary remedy  
and was left to the ordinary course of  
the law4 ,such was the orthodox view of 
the relation of law and equity4 ,equity 
did not alter a jot or tittle of the    
law4 ,it was a remedial system alongside
 of the law1 taking the law for granted 
and giving legal rights greater efficacy
 in certain situations4 ,but take the   
case of a hard bargain1 where the       
chancellor in his discretion may deny   
specific performance4 ,in ,england and  
in several states the damages at law do 
not include the value of the bargain    
where the contract is for the sale of   
land4 ,hence unless specific performance
 is granted1 the plaintiff's legal right
 is defeated4 ,it is notorious that     
bargains appeal differently to different

 chancellors in this respect4 ,in the   
hands of some the doctrine as to hard   
bargains has a tendency to become       
wooden1 as it were4 ,there is a hard and
 fast rule that certain bargains are    
hard and that equity will not enforce   
them4 ,in states where the value of the 
bargain may be recovered at law1 it may 
well be sometimes that the bargain might
 as well be enforced in equity1 if it is
 not to be cancelled4 ,but the          
chancellor is not unlikely to wash his  
hands of a hard case1 saying that the   
court of law is more callous2 let that  
court act1 although that court is the   
same judge with another docket before   
him4 ,in other hands1 the doctrine tends
 to become ultro-ethical and to impair  
the security of transactions4 ,in other 
words1 the margin of discretion in      
application of equitable remedies tends 
on the one hand to disappear through    
crystallization of the principles       
governing its exercise into rigid rules1
 or on the other hand1 to become        

overpersonal and uncertain and          
capricious4 ,yet as one reads the       
reports attentively he cannot doubt that
 in action it is an important engine of 
justice2 that it is a needed safety     
valve in the working of our legal       
system4  ,at common law the chief       
reliance for individualizing the        
application of law is the power of      
juries to render general verdicts1 the  
power to find the facts in such a way as
 to compel a different result from that 
which the legal rule strictly applied   
would require4 ,in appearance there has 
been no individualization4 ,the judgment
 follows necessarily and mechanically   
from the facts upon the record4 ,but the
 facts found were found in order to     
reach the result and are by no means    
necessarily the facts of the actual     
case4 ,probably this power alone made   
the common law of master and servant    
tolerable in the last generation4 ,yet  
exercise of this power1 with respect to 
which1 as ,lord ,coke expressed it1 the 

jurors are chancellors1 has made the    
jury an unsatisfactory tribunal in many 
classes of cases4 ,it is largely        
responsible for the practice of repeated
 new trials which makes the jury a most 
expensive tribunal4 ,the crude          
individualization achieved by juries1   
influenced by emotional appeals1        
prejudice and the peculiar personal     
ideas of individual jurors1 involves    
quite as much injustice at one extreme  
as mechanical application of law by     
judges at the other extreme4 ,indeed the
 unchecked discretion of juries1 which  
legislation has brought about in some   
jurisdictions1 is worse than the hobbled
 court and rigid mechanical application 
of law from which it is a reaction4     
,our administration of punitive justice 
is full of devices for individualizing  
the application of criminal law4 ,our   
complicated machinery of prosecution    
involves a great series of mitigating   
agencies whereby individual offenders   
may be spared or dealt with leniently4  

,beginning at the bottom there is the   
discretion of the police as to who and  
what shall be brought to the judicial   
mill4 ,next are the wide powers of our  
prosecuting officers who may ignore     
offences or offenders1 may dismiss      
proceedings in their earlier stages1 may
 present them to grand juries in such a 
way that no indictment results1 or may  
enter a nolle prosequi after indictment4
 ,even if the public prosecutor desires 
to prosecute1 the grand jury may ignore 
the charge4 ,if the cause comes to      
trial1 the petit jury may exercise a    
dispensing power by means of a general  
verdict4 ,next comes judicial discretion
 as to sentence1 or in some             
jurisdictions1 assessment of punishment 
by the discretion of the trial jury4    
,upon these are superposed              
administrative parole or probation and  
executive power to pardon4 ,the         
lawyer-politician who practices in the  
criminal courts knows well how to work  
upon this complicated machinery so as to

 enable the professional criminal to    
escape as well as those or even instead 
of those for whom these devices were    
intended4 ,they have been developed to  
obviate the unhappy results of a theory 
which would have made the punishment    
mechanically fit the crime instead of   
adjusting the penal treatment to the    
criminal4 ,here1 as elsewhere1 the      
attempt to exclude the administrative   
element has brought about back-handed   
means of individualization which go     
beyond the needs of the situation and   
defeat the purposes of the law4  ,even  
more striking is the recrudescence of   
personal government1 by way of reaction 
from an extreme of government of laws   
and not of men1 which is involved in the
 setting up of administrative tribunals 
on every hand and for every purpose4    
,the regulation of public utilities1    
apportionment of the use of the water of
 running streams among different        
appropriators1 workmen's compensation1  
the actual duration and nature of       

punishment for crime1 admission to and  
practice of professions and even of     
trades1 the power to enter or to remain 
in the country1 banking1 insurance1     
unfair competition and restraint of     
trade1 the enforcement of factory laws1 
of pure food laws1 of housing laws and  
of laws as to protection from fire and  
the relation of principal and agent1 as 
between farmers and commission          
merchants1 are but some of the subjects 
which the living law1 the law in action1
 is leaving to executive justice in     
administrative tribunals4 ,to some      
extent this is required by the          
increasing complexity of the social     
order and the minute division of labor  
which it involves4 ,yet this complexity 
and this division of labor developed for
 generations in which the common-law    
jealousy of administration was dominant4
 ,chiefly our revival of executive      
justice in the present century is one of
 those reversions to justice without law
 which are perennial in legal history4  

,as in the case of like reversions in   
the past it is the forerunner of growth4
 ,it is the first form of reaction from 
the overrigid application of law in a   
period of stability4 ,a bad adjustment  
between law and administration and      
cumbrous1 ineffective and unbusinesslike
 legal procedure1 involving waste of    
time and money in the mere etiquette of 
justice1 are doing in our time what like
 conditions did in ,english law in the  
middle of the sixteenth century4  ,if we
 look back at the means of              
individualizing the application of law  
which have developed in our legal       
system1 it will be seen that almost     
without exception they have to do with  
cases involving the moral quality of    
individual conduct or of the conduct of 
enterprises1 as distinguished from      
matters of property and of commercial   
law4 ,equity uses its powers of         
individualizing to the best advantage in
 connection with the conduct of those in
 whom trust and confidence have been    

reposed4 ,legal standards are used      
chiefly in the law of torts1 in the law 
of public utilities and in the law as to
 fiduciary relations4 ,jury lawlessness 
is an agency of justice chiefly in      
connection with the moral quality of    
conduct where the special circumstances 
exclude that intelligence without       
passion which1 according to ,aristotle1 
characterizes the law4 ,it is           
significant that in ,england today the  
civil jury is substantially confined to 
cases of defamation1 malicious          
prosecution1 assault and battery and    
breach of promise of marriage4 ,judicial
 individualization through choice of a  
rule is most noticeable in the law of   
torts1 in the law of domestic relations 
and in passing upon the conduct of      
enterprises4 ,the elaborate system of   
individualization in criminal procedure 
has to do wholly with individual human  
conduct4 ,the informal methods of petty 
courts are meant for tribunals which    
pass upon conduct in the crowd and hurry

 of our large cities4 ,the              
administrative tribunals1 which are     
setting up on every hand1 are most      
called for and prove most effective as  
means of regulating the conduct of      
enterprises4  ,a like conclusion is     
suggested when we look into the related 
controversy as to the respective        
provinces of common law and of          
legislation4 ,inheritance and           
succession1 definition of interests in  
property and the conveyance thereof1    
matters of commercial law and the       
creation1 incidents and transfer of     
obligations have proved a fruitful field
 for legislation4 ,in these cases the   
social interest in the general security 
is the controlling element4 ,but where  
the questions are not of interests of   
substance but of the weighing of human  
conduct and passing upon its moral      
aspects1 legislation has accomplished   
little4 ,no codification of the law of  
torts has done more than provide a few  
significantly broad generalizations4 ,on

 the other hand1 succession to property 
is everywhere a matter of statute law   
and commercial law is codified or       
codifying throughout the world4         
,moreover the common law insists upon   
its doctrine of stare decisis chiefly in
 the two cases of property and          
commercial law4 ,where legislation is   
effective1 there also mechanical        
application is effective and desirable4 
,where legislation is ineffective1 the  
same difficulties that prevent its      
satisfactory operation require us to    
leave a wide margin of discretion in    
application1 as in the standard of the  
reasonable man in our law of negligence 
and the standard of the upright and     
diligent head of a family applied by the
 ,roman law1 and especially by the      
modern ,roman law1 to so many questions 
of fault1 where the question is really  
one of good faith4 ,all attempts to cut 
down this margin have proved futile4    
,may we not conclude that in the part of
 the law which has to do immediately    

with conduct complete justice is not to 
be attained by the mechanical           
application of fixed rules8 ,is it not  
clear that in this part of the          
administration of justice the trained   
intuition and disciplined judgment of   
the judge must be our assurance that    
causes will be decided on principles of 
reason and not according to the chance  
dictates of caprice1 and that a due     
balance will be maintained between the  
general security and the individual     
human life8  ,philosophically the       
apportionment of the field between rule 
and discretion which is suggested by the
 use of rules and of standards          
respectively in modern law has its basis
 in the respective fields of            
intelligence and intuition4 ,bergson    
tells us that the former is more adapted
 to the inorganic1 the latter more to   
life4 ,likewise rules1 where we proceed 
mechanically1 are more adapted to       
property and to business transactions1  
and standards2 where we proceed upon    

intuitions1 are more adapted to human   
conduct and to the conduct of           
enterprises4 ,according to him1         
intelligence is characterized by its    
power of grasping the general element in
 a situation and relating it to past    
situations1 and this power involves loss
 of that perfect mastery of a special   
situation in which instinct rules4 ,in  
the law of property and in the law of   
commercial transactions it is precisely 
this general element and its relation to
 past situations that is decisive4 ,the 
rule1 mechanically applied1 works by    
repetition and precludes individuality  
in results1 which would threaten the    
security of acquisitions and the        
security of transactions4 ,on the other 
hand1 in the handmade1 as distinguished 
from the machine-made product1 the      
specialized skill of the workman gives  
us something infinitely more subtle than
 can be expressed in rules4 ,in law some
 situations call for the product of     
hands1 not of machines1 for they involve

 not repetition1 where the general      
elements are significant1 but unique    
events1 in which the special            
circumstances are significant4 ,every   
promissory note is like every other4    
,every fee simple is like every other4  
,every distribution of assets repeats   
the conditions that have recurred since 
the ,statute of ,distributions4 ,but no 
two cases of negligence have been alike 
or ever will be alike4 ,where the call  
is for individuality in the product of  
the legal mill1 we resort to standards4 
,and the sacrifice of certainty in so   
doing is more apparent than actual4 ,for
 the certainty attained by mechanical   
application of fixed rules to human     
conduct has always been illusory4       
,,iv  ,liability   ,a systematist who   
would fit the living body of the law to 
his logical analytical scheme must      
proceed after the manner of ,procrustes4
 ,indeed1 this is true of all science4  
,in life phenomena are unique4 ,the     
biologist of today sometimes doubts     

whether there are species and disclaims 
higher groups as more than conveniences 
of study4 ,dividing lines1 said a great 
,american naturalist1 do not occur in   
nature except as accidents4             
,organization and system are logical    
constructions of the expounder rather   
than in the external world expounded4   
,they are the means whereby we make our 
experience of that world intelligible   
and available4 ,it is with no illusion1 
therefore1 that ,i am leading you to a  
juristic ultima ,thule that ,i essay a  
bit of systematic legal science on a    
philosophical basis4 ,even if it never  
attains a final system in which the law 
shall stand fast forever1 the continual 
juristic search for the more inclusive  
order1 the continual juristic struggle  
for a simpler system that will better   
order and better reconcile the phenomena
 of the actual administration of        
justice1 is no vain quest4 ,attempts to 
understand and to expound legal         
phenomena lead to generalizations which 

profoundly affect those phenomena1 and  
criticism of those generalizations1 in  
the light of the phenomena they seek to 
explain and to which they give rise1    
enables us to replace them or modify    
them or supplement them and thus to keep
 the law a growing instrument for       
achieving expanding human desires4  ,one
 of the stock questions of the science  
of law is the nature and system and     
philosophical basis of situations in    
which one may exact from another that he
 give or do or furnish something 7to use
 the ,roman formula7 for the advantage  
of the former4 ,the classical ,roman    
lawyer1 thinking in terms of natural    
law1 spoke of a bond or relation of     
right and law between them whereby the  
one might justly and legally exact and  
the other was bound in justice and law  
to perform4 ,in modern times1 thinking1 
whether he knows it or not1 in terms of 
natural rights and by derivation of     
legal rights1 the analytical jurist     
speaks of rights in personam4 ,the      

,anglo-,american lawyer1 thinking in    
terms of procedure1 speaks of contracts 
and torts1 using the former term in a   
wide sense4 ,if pressed1 he may refer   
certain enforceable claims to exact and 
duties of answering to the exaction to a
 ,romanist category of quasi-contract1  
satisfied to say quasi because on       
analysis they do not comport with his   
theory of contract1 and to say contract 
because procedurally they are enforced  
ex contractu4 ,pressed further1 he may  
be willing to add quasi tort for cases  
of common-law liability without fault   
and workmen's compensation--quasi       
because there is no fault1 tort because 
procedurally the liability is given     
effect ex delicto4 ,but cases of duties 
enforceable either ex contractu or ex   
delicto at the option of the pleader and
 cases where the most astute pleader is 
hard pushed to choose have driven us to 
seek something better4  ,obligation1 the
 ,roman term1 meaning the relation of   
the parties to what the analytical      

jurists have called a right in personam 
is an exotic in our law in that sense4  
,moreover the relation is not the       
significant thing for systematic        
purposes1 as is shown by civilian       
tendencies in the phrases active        
obligation and passive obligation to    
extend the term from the relation to the
 capacity or claim to exact and duty to 
answer to the exaction4 ,the phrase     
right in personam and its co-phrase     
right in rem are so misleading in their 
implications1 as any teacher soon       
learns1 that we may leave them to the   
textbooks of analytical jurisprudence4  
,in this lecture1 ,i shall use the      
simple word liability for the situation 
whereby one may exact legally and the   
other is legally subjected to the       
exaction4 ,using the word in that sense1
 ,i shall inquire into the philosophical
 basis of liability and the system of   
the law on that subject as related to   
that basis4 ,yellowplush said of        
spelling that every gentleman was       

entitled to his own4 ,we have no        
authoritative institutional book of     
,anglo-,american law1 enacted by        
sovereign authority1 and hence every    
teacher of law is entitled to his own   
terminology4  ,so far as the beginnings 
of law had theories1 the first theory of
 liability was in terms of a duty to buy
 off the vengeance of him to whom an    
injury had been done whether by oneself 
or by something in one's power4 ,the    
idea is put strikingly in the           
,anglo-,saxon legal proverb1 ,buy spear 
from side or bear it1 that is1 buy off  
the feud or fight it out4 ,one who does 
an injury or stands between an injured  
person and his vengeance1 by protecting 
a kinsman1 a child or a domestic animal 
that has wrought an injury1 must        
compound for the injury or bear the     
vengeance of the injured4 ,as the social
 interest in peace and order--the       
general security in its lowest          
terms--comes to be secured more         
effectively by regulation and ultimate  

putting down of the feud as a remedy1   
payment of composition becomes a duty   
rather than a privilege1 or in the case 
of injuries by persons or things in     
one's power a duty alternative to a duty
 of surrendering the offending child or 
animal4 ,the next step is to measure the
 composition not in terms of the        
vengeance to be bought off but in terms 
of the injury4 ,a final step is to put  
it in terms of reparation4 ,these steps 
are taken haltingly and merge into one  
another1 so that we may hear of a       
penalty of reparation4 ,but the result  
is to turn composition for vengeance    
into reparation for injury4 ,thus       
recovery of a sum of money by way of    
penalty for a delict is the historical  
starting point of liability4  ,one's    
neighbor whom one had injured or who had
 been injured by those whom one harbored
 was not the only personality that might
 desire vengeance in a primitive        
society4 ,one might affront the gods1   
and by one's impiety in so doing might  

imperil the general security1 since the 
angered gods were not unlikely to hit   
out indiscriminately and to cast        
pestilence or hurl lightning upon just  
and unjust alike in the community which 
harbored the impious wrongdoer4 ,hence  
if1 in making a promise1 one called the 
gods to witness it was needful that     
politically organized society1 taking   
over a field of social control exercised
 by the priesthood1 give a legal remedy 
to the promisee lest he invoke the aid  
of the gods and jeopardize the general  
security4 ,again in making a promise one
 might call the people or the           
neighborhood to witness and might       
affront them by calling them to witness 
in vain4 ,here1 too1 the peace was      
threatened and politically organized    
society might give a remedy to the      
promisee1 lest he invoke the help of his
 fellow citizens or his neighbors4 ,a   
common case might be one where a        
composition was promised in this way for
 an injury not included in the detailed 

tariff of compositions that is the      
staple of ancient codes4 ,another common
 case was where one who held another's  
property for some temporary purpose     
promised to return it4 ,such a case is  
lending2 for before the days of coined  
money1 the difference between lending a 
horse to go to the next town and lending
 ten sheep to enable the borrower to pay
 a composition is not perceptible4 ,thus
 another starting point of liability is 
recovery of a thing certain1 or what was
 originally the same1 a sum certain1    
promised in such wise as to endanger the
 general security if the promise is not 
carried out4 ,in ,roman law1 the        
condiction1 which is the type of actions
 in personam1 and thus the starting     
point historically of rights in personam
 and of theories of obligation1 was at  
first a recovery of a thing certain or a
 sum certain due upon a promise of this 
sort4 ,in juristic terms1 the central   
idea of the beginnings of liability is  
duty to make composition for or         

otherwise avert wrath arising from the  
affronted dignity of some personality   
desirous of vengeance1 whether an       
injured individual1 a god or a          
politically organized society4 ,greek   
law and ,roman law give the name of     
insult to legally cognizable injury to  
personality4 ,insult to a neighbor by   
injury to him or to one of his          
household1 insult to the gods by impious
 breach of the promise they had         
witnessed1 insult to the people by      
wanton disregard of the undertaking     
solemnly made in their presence1        
threatened the peace and order of       
society and called for legal remedy4    
,lawyers begin to generalize and to     
frame conscious theories in the later   
part of the stage of the strict law4 ,at
 first these theories are analytical    
rather than philosophical4 ,the attempt 
is to frame general formulas by which   
the rigid rules of the strict law may be
 reconciled where they overlap or       
conflict or may be distinguished in     

their application where such overlapping
 or conflict threatens4 ,by this time1  
the crude beginnings of liability in a  
duty to compound for insult or affront  
to man or gods or people1 lest they be  
moved to vengeance1 has developed into  
liability to answer for injuries caused 
by oneself or done by those persons or  
those things in one's power1 and        
liability for certain promises made in  
solemn form4 ,thus the basis of         
liability has become twofold4 ,it rests 
on the one hand upon duty to repair     
injury4 ,it rests on the other hand upon
 duty to carry out formal undertakings4 
,it is enough for this stage of legal   
development that all cases of liability 
may be referred to these two types and  
that useful distinctions may be reached 
therefrom4 ,consideration of why one    
should be held to repair injury1 and why
 he should be held to formal            
undertakings1 belongs to a later stage4 
,juristic theory1 beginning in the      
transition from the strict law to the   

stage of equity or natural law1 becomes 
a force in the latter stage4 ,as the    
relations with which the law must deal  
become more numerous and the situations 
calling for legal treatment become more 
complicated1 it is no longer possible to
 have a simple1 definite1 detailed rule 
for every sort of case that can come    
before a tribunal1 nor a fixed1 absolute
 form for every legal transaction4      
,hence1 under the leadership of         
philosophical jurists1 men turn to      
logical development of the nature or    
ideal form of situations and to ethical 
ideas of what good faith or good        
conscience demands in particular        
relations or transactions4 ,the strict  
law1 relying on rule and form1 took no  
account of intention as such4 ,the words
 took effect quite independently of the 
thought behind them4 ,but as lawyers    
began to reflect and to teach something 
more than a class or professional       
tradition1 as they began to be          
influenced by philosophy to give over   

purely mechanical methods and to measure
 things by reason rather than by        
arbitrary will1 emphasis shifted from   
form to substance2 from the letter to   
the spirit and intent4 ,the statute was 
thought of as but the lawmaker's        
formulation of a principle of natural   
law4 ,it was not the uerba that were    
efficacious1 as in the strict law1 which
 had inherited the primitive faith in   
the power of words and thought of the   
legal formula as if it were a formula of
 incantation possessing inherent magical
 force4 ,it was the ratio iuris1 which  
transcended words and formulas4 ,so also
 the traditional rule was not a magic   
formula discovered by our fathers4 ,it  
was a customary expression of a         
principle of natural law4 ,likewise the 
formal transaction was not a bit of     
private magic employed to conjure up    
legal liability4 ,it was the clothing in
 legally recognized vestments of an     
intention to do what reason and good    
faith demand in a given situation4 ,when

 form and intention concurred the       
promisor must answer for what he        
undertook4 ,when the form used did not  
express or went beyond the intention or 
was the product of an apparent but not a
 real intention1 the promisee was not to
 be enriched unjustly at the promisor's 
expense on the sole basis of the form4  
,moreover the duty was to be one of     
doing what good faith demanded1 not one 
of doing literally and exactly what the 
letter of the undertaking called for4   
,and although there was no express      
undertaking1 there might be duties      
implied in the relation or situation or 
transaction1 viewed as one of good      
faith1 and one might be held to a       
standard of action because an upright   
and diligent man1 who was his own       
master1 would so act4 ,such is the mode 
of thinking in the classical period of  
the ,roman law and it is closely        
paralleled by an independent development
 of juristic thought in the rise of     
equity and the absorption of the law    

merchant in our law4  ,it was easy to   
fit the two categories1 delict and      
formal undertaking1 which had come down 
from the strict law1 into the new mode  
of thought4 ,the typical delict required
 dolus--intentional aggression upon the 
personality or the substance of another4
 ,indeed ,aquilian culpa1 in which the  
fault did not extend to intentional     
aggression1 is a juristic equitable     
development4 ,hence when the legal was  
identified with the moral1 and such     
identification is a prime characteristic
 of this stage1 the significant thing in
 delict seemed to be the moral duty to  
repair an injury caused by wilful       
aggression4 ,the legal precept was      
alienum non laedere4 ,also the duty to  
perform an intentional undertaking      
seemed to rest on the inherent moral    
quality of a promise that made it       
intrinsically binding on an upright man4
 ,the legal precept was suum cuique     
tribuere4 ,thus liability seemed to flow
 from intentional action--whether in the

 form of aggression or in the form of   
agreement4 ,the natural sources of      
liability were delict and contract4     
,everything else was assimilated to one 
or the other of them4 ,liability without
 fault was quasi-delictal4 ,liability   
imposed by good faith to prevent unjust 
enrichment was quasi-contractual4 ,the  
central idea had become one of the      
demands of good faith in view of        
intentional action4  ,in the nineteenth 
century the conception of liability as  
resting on intention was put in         
metaphysical rather than ethical form4  
,law was a realization of the idea of   
liberty1 and existed to bring about the 
widest possible individual liberty4     
,liberty was the free will in action4   
,hence it was the business of the legal 
order to give the widest effect to the  
declared will and to impose no duties   
except in order to effectuate the will  
or to reconcile the will of one with the
 will of others by a universal law4     
,what had been a positive1 creative     

theory of developing liability on the   
basis of intention1 became a negative1  
restraining1 one might say pruning1     
theory of no liability except on the    
basis of intention4 ,liability could    
flow only from culpable conduct or from 
assumed duties4 ,the abstract individual
 will was the central point in the      
theory of liability4 ,if one was not    
actually culpable and yet established   
legal precepts which were not to be     
denied held him answerable1 it was      
because he was deemed culpable1 the     
historical legal liability being the    
proof of culpability4 ,if he had not    
actually assumed a duty1 and yet        
established legal precepts which were   
not to be denied held him to answer for 
it1 this must be because he had assumed 
some relation or professed some calling 
in which an undertaking to that effect  
was implied or had participated in some 
situation in which it was implied1--the 
implication being a deduction from the  
liability4 ,the bases of liability were 

culpable conduct and legal transaction1 
and these came down to an ultimate basis
 in will4 ,the fundamental conception in
 legal liability was the conception of  
an act--of a manifestation of the will  
in the external world4  ,roman law and  
,english law begin with a set of what   
might be called nominate delicts or     
nominate torts4 ,in ,roman law there    
were furtum 7conversion71 rapina        
7forcible conversion7 and iniuria       
7wilful aggression upon personality74   
,all these involved dolus1 i4e4         
intentional aggression4 ,the lex        
,aquilia added damnum iniuria datum     
7wrongful injury to property74 ,later   
there were added what might be called   
the equitable delicts of dolus 7fraud7  
and metus 7duress74 ,here also there was
 wilful aggression1 and the delict of   
dolus gets its name from the intentional
 misleading that characterizes it in    
,roman law as it does deceit in ,english
 law4 ,in damnum iniuria datum1 a wider 
conception of fault1 as distinguished   

from intentional aggression1 grew up by 
juristic development1 and ,aquilian     
culpa1 that is1 a fault causing injury  
to property and therefore actionable on 
the analogy of the lex ,aquilia1        
furnished the model for the modern law4 
,all these may be fitted to the will    
theory and modern systematic writers    
regularly do so4 ,but noxal liability   
for injury done by a child or slave or  
domestic animal did not fit it1 nor did 
the liability of a master of a ship1 an 
innkeeper or a stable keeper to respond 
without regard to fault4 ,liability for 
injury done by child or slave or        
domestic animal was enforced in a noxal 
action on the analogy of the action     
which lay for the same injury if done by
 the defendant in person4 ,hence        
procedurally it seemed liability for a  
delict involving intentional aggression1
 and it was possible to say that there  
was fault in not restraining the agency 
that did the injury1 although no fault  
had to be shown nor could absence of    

fault be shown as a defence4 ,there was 
fault because there was liability1 for  
all liability grew out of fault4 ,such  
treadings on the tail of its own        
argument are very common in legal       
reasoning4 ,likewise in the case of the 
absolute liability of the master of a   
ship1 the innkeeper and the stable      
keeper1 the institutional writers could 
say that they were at fault in not      
having proper servants1 although here   
also fault need not be established by   
proof nor could want of fault be made a 
defence4 ,as procedurally these         
liabilities arose in actions on the     
facts of particular cases1 the jurists  
at first lumped them with many other    
forms of liability1 which were not in   
fact dependent on intention and were    
enforced in actions in factum1 as       
obligations arising from the special    
facts of cases 7obligationes ex uariis  
causarum figuris74 ,later they were     
called quasi-delictual obligations and  
they are so designated in the fourfold  

classification of the ,institutes4      
,buckland has remarked that in almost   
all of the liabilities included under   
quasi-delict in the ,institutes there is
 liability at one's peril for the act of
 another1 especially for one's servant1 
as in the noxal actions1 the actio de   
deiectis et diffusis 7for things thrown 
or poured from buildings upon a way7 and
 the actio de recepto against an        
innkeeper4 ,in other words1 in these    
cases one was held without regard to    
fault for injuries incidental to the    
conduct of certain enterprises or       
callings and for failure to restrain    
potentially injurious agencies which one
 maintained4  ,modern law has given up  
both the nominate delicts and           
quasi-delict1 as things of any          
significance4 ,the ,french civil code   
made the idea of ,aquilian culpa into a 
general theory of delictal liability1   
saying1 ,every act of man which causes  
damage to another obliges him through   
whose fault it happened to make         

reparation4 ,in other words1 liability  
is to be based on an act1 and it must be
 a culpable act4 ,act1 culpability1     
causation1 damage1 were the elements4   
,this simple theory of liability for    
culpable causation of damage was        
accepted universally by civilians until 
late in the nineteenth century and is   
still orthodox4 ,taken up by text       
writers on torts in the last half of    
that century1 it had much influence in  
,anglo-,american law4 ,but along with   
this generalization the ,french code    
preserved a liability without fault1    
developed out of the noxal actions1     
whereby parents and teachers may be held
 for injuries by minors under their     
charge1 masters for injuries by their   
apprentices1 employers for injuries by  
employees and those in charge of animals
 for injuries by such animals4 ,also it 
provided an absolute liability for      
injury by a res ruinosa1 developed out  
of the ,roman cautio damni infecti4 ,in 
the case of parents1 teachers and       

masters of apprentices1 there is only a 
presumption of fault4 ,they may escape  
by showing affirmatively that they were 
without fault and that what happened    
could not have been prevented by        
diligence on their part4 ,in the case of
 employers no excuse is admitted4 ,the  
liability is absolute4 ,in the case of  
animals1 fault of the victim1 inevitable
 accident and vis maior may be shown    
affirmatively by way of defence4 ,in the
 case of a res ruinosa there is no      
presumption of fault4 ,but if the       
structure fell or did injury because of 
a defect of construction or want of     
repair1 the owner is liable absolutely  
and may not show that he had no notice  
of the defect and no reason to suspect  
it1 or that it was not in his power to  
prevent the structure from falling4     
,thus it will be seen that ,french law  
came very near to a logically consistent
 scheme of liability for fault1 and     
civil liability for fault only1         
throughout the whole delictal field4    

,employer's liability remained absolute1
 and liability for animals but little   
short of absolute4 ,for the rest there  
was in certain cases an imposition of   
the burden of proof that there had been 
no fault1 leaving the ultimate liability
 to rest upon a presumed fault1 if want 
of fault was not established4 ,none the 
less this1 the most thoroughgoing       
attempt to make delictal liability flow 
exclusively from culpability--to make it
 a corollary of fault and of fault      
only--fell short of complete attainment 
of its aim4 ,recent ,french authors do  
not hesitate to say that the attempt    
must be given over and that a new theory
 of civil delictal liability must be    
worked out4 ,meanwhile the same movement
 away from the simple theory of delictal
 liability for culpable causation of    
damage had taken place elsewhere on the 
,continent4 ,binding had subjected the  
culpa-prinzip to thorough analysis1 and 
following him it had come to be rejected
 generally by recent ,german and ,swiss 

jurists4  ,in the common law1 as has    
been said1 we begin likewise with a set 
of nominate torts--assault1 battery1    
imprisonment1 trespass on lands1        
trespass on chattels1 conversion1       
deceit1 malicious prosecution1 slander  
and libel--developed procedurally       
through the action of trespass and the  
action of trespass on the case4 ,all of 
these1 except trespass on lands1        
trespass upon possession of chattels and
 conversion1 are cases of intentional   
injury4 ,trespass on lands1 trespass on 
chattels and conversion involve more    
than the general security and must be   
considered in connection with ideas of  
property4 ,the social interest in       
security of acquisitions demands that we
 be able to rely on others keeping off  
of our lands and not molesting our      
chattels2 that they find out for        
themselves and at their own risk where  
they are or with whose chattels they are
 meddling4 ,but even here there must be 
an act4 ,if there is no act1 there is no

 liability4 ,to these nominate torts1   
each with its own special rules1 coming 
down from the strict law1 we added a new
 ground of liability1 namely1           
negligence1 going on a principle1 not of
 duty to answer for aggression1 but of  
duty to answer for injuries resulting   
from falling short of a legal standard  
of conduct governing affirmative courses
 of action4 ,some1 indeed1 sought to    
give us a tort of negligence as a       
nominate tort4 ,but it was soon         
recognized that in negligence we have a 
principle of liability dependent upon a 
standard1 not a tort to be ranged       
alongside of assault or imprisonment4   
,later1 with the rise of doctrines as to
 injury to advantageous relations and   
the failure of negligence to account for
 all unintended harms of which the law  
actually was taking note1 we developed  
an indefinite number of innominate      
torts4 ,today with the obsolescence of  
procedural difficulties1 there is no    
reason why we should not generalize1 as 

the civil law did at the beginning of   
the last century2 and such a            
generalization was attempted in the last
 third of the nineteenth century4 ,it   
became orthodox common law that         
liability was a corollary of fault4 ,so 
far as established common-law rules     
imposed a liability without fault1 they 
were said to be historical exceptions1  
and some of our courts1 under the       
influence of this theory1 were willing  
to go a long way in abrogating them4    
,liability1 without regard to fault1 for
 the acts of servants and employees was 
reconciled with this theory by the      
fiction of representation1 exposed long 
ago by ,mr4 ,justice ,holmes and later  
by ,dr4 ,baty4 ,finally it came to be   
thought that no liability without fault 
was not merely common law but was       
natural law and that any legislative    
imposition of such liability was        
arbitrary and unreasonable in itself and
 hence unconstitutional4 ,on that       
theory1 the ,new ,york ,court of        

,appeals held workmen's compensation    
unconstitutional1 and a minority of the 
,supreme ,court of the ,united ,states  
recently announced the same proposition4
  ,because of its implications for      
constitutional law1 in view of the      
increasing frequency of legislation     
imposing responsibility at one's peril  
in certain enterprises1 in the case of  
certain dangerous agencies and in       
situations where it is felt that the    
loss should be borne by all of us rather
 than by the luckless individual who    
chances to be hurt1 the basis of tort   
liability has become a question of      
moment beyond the immediate law of      
torts4 ,it is a practical question of   
the first importance1 as well as a      
theoretical question of interest1       
whether we are to generalize our whole  
system of tort liability by means of one
 principle of liability for fault and   
for fault only1 as the ,french sought to
 do and as we later sought to do largely
 under their influence1 or1 on the other

 hand1 are to admit another source of   
delictal liability alongside of fault1  
as the ,french law does in fact and is  
coming to do in theory1 and as our law  
has always done in fact4 ,for in our law
 as it stands one may perceive readily  
three types of delictual liability3 7#a7
 ,liability for intentional harm1 7#b7  
liability for unintentional culpable    
harm1 7#c7 liability in certain cases   
for unintended non-culpable harm4 ,the  
first two comport with the doctrine of  
no liability without fault4 ,the third  
cannot be fitted thereto4 ,we must      
either brand cases of the third type as 
historical anomalies1 of which we are   
gradually to rid ourselves1 or else     
revise our notions of tort liability4   
,let us remember that the nineteenth    
century was well advanced before we     
understood the subject of negligence and
 that before we had convinced ourselves 
that no liability without fault was     
orthodox common law1 the highest court  
of ,england had given absolute liability

 a new field by the decision in ,rylands
 v4 ,fletcher4 ,we are not questioning a
 long-established dogma in              
,anglo-,american administration of      
justice1 therefore1 when we ask whether 
the orthodox theory of the last         
generation is adequate as an analytical 
statement of the law that is1 or as a   
philosophical theory of the law that    
ought to be4 ,my own belief is that it  
is neither4  ,suppose that instead of   
beginning with the individual free will 
we begin with the wants or claims       
involved in civilized society--as it has
 been put1 with the jural postulates of 
civilized society4 ,one such postulate1 
,i think we should agree1 is that in    
civilized society men must be able to   
assume that others will do them no      
intended injury--that others will commit
 no intentional aggressions upon them4  
,the savage must move stealthily1 avoid 
the sky-line and go armed4 ,the         
civilized man assumes that no one will  
attack him and so moves among his fellow

 men openly and unarmed1 going about his
 business in a minute division of labor4
 ,otherwise there could be no division  
of labor beyond the differentiation of  
men of fighting age1 as we see it in a  
primitive society4 ,this postulate is at
 the foundation of civilized society4   
,everywhere dolus is first dealt with4  
,the system of nominate delicts or      
nominate torts1 both in ,roman law and  
in our law1 proceeds on this postulate4 
,is it not another such postulate that  
in civilized society men must be able to
 assume that their fellow men1 when they
 act affirmatively1 will do so with due 
care1 that is with the care which the   
ordinary understanding and moral sense  
of the community exacts1 with respect to
 consequences that may reasonably be    
anticipated8 ,such a postulate is the   
basis of delictal culpa1 using culpa in 
the narrower sense1 and of our doctrine 
of negligence4 ,in ,roman law and at one
 time in our law attempts were made to  
develop this postulate contractually4   

,if in a transaction involving good     
faith--that is an informal legal        
transaction--one's conduct fell short of
 action to which the other party was    
justified by the understanding of       
upright men in expecting him to adhere1 
there was contractual culpa2 there was a
 violation of a promise implied in the  
transaction and consequent liability4   
,we borrowed something of this mode of  
thought from the ,romans in our law of  
bailments and hence think indifferently 
in terms of tort or contract in that    
connection1 although historically our   
action for such cases is delictal4 ,in  
other connections also our law for a    
time sought to develop this postulate   
contractually by means of an implied    
undertaking to use skill for which one  
must answer if his skill fell short of  
that which the legal standard of        
affirmative conduct called for under the
 circumstances4 ,also in the ,year      
,books an undertaking implied in certain
 relations or callings to use the skill 

or diligence which the relation or      
calling demanded is often made the basis
 of liability4 ,but here the basis of   
liability must be found in a relation4  
,the fiction of an undertaking to use   
the skill or diligence involved in a    
relation or calling is a juristic way of
 saying that one who deals with another 
in such a relation or with another who  
professes such a calling is justified in
 assuming the skill and diligence       
ordinarily involved therein1 so that the
 law holds those in the relation or     
engaged in the calling to that standard 
in order to maintain the general        
security4 ,in other words another1      
though closely related1 postulate of    
civilized society is involved4  ,it is  
worth a moment's digression to suggest  
that such things show how little the    
historical categories of delict and     
contract represent any essential or     
inherent need of legal thinking4 ,austin
 thought that the distinction of        
obligations 7or of duties corresponding 

to rights against persons specifically  
determined7 into obligations which arise
 from contracts1 obligations which arise
 from injuries1 and obligations which   
arise from incidents which are neither  
contracts nor injuries1 was a necessary 
distinction1 without which a system of  
law evolved in a refined community could
 not be conceived4 ,this necessary      
systematic scheme1 which must be a      
constituent part of any imaginable      
developed legal system1 is but the      
,roman division into obligations ex     
contractu1 obligations ex delicto and   
obligations ex uariis causarum figuris1 
in which the third category is obviously
 a catch-all4 ,in trying to fit our law 
into this necessary scheme1 we find     
three types of cases must go in the     
third3 7a7 ,duties or liabilities       
attached by law to a relation1 7b7      
duties imposed by law to prevent unjust 
enrichment1 7c7 duties involved in an   
office or calling4 ,in the third of     
these our ,anglo-,american procedure    

allows recovery either ex delicto or ex 
contractu4 ,in the second our law       
sometimes goes on a property theory of  
constructive trust4 ,in the first duties
 are sometimes sanctioned affirmatively 
by conferring legal powers or negatively
 by legal non-restraint of natural      
powers1 as in the law of domestic       
relations1 where the wife has a power to
 pledge the husband's credit for        
necessaries and the law does not        
interfere with the parent's             
administering reasonable correction to  
the child4 ,are we to say that these    
dogmatic departures of our law from the 
,roman scheme are inconceivable or that 
because of them our law is not matured  
or was not evolved in a refined         
community8 ,or are we to say that       
,austin derived his systematic ideas1   
not from scientific study of ,english   
law1 but from scientific study of ,roman
 law in a ,german university8 ,are we to
 say that we cannot imagine coherently a
 system of law which enforces warranties

 indifferently ex contractu or ex       
delicto as our law does1 or which goes  
further and applies the contract measure
 of damage ex delicto as does the law of
 ,massachusetts8 ,but enough of this4   
,what we have here is not any necessary 
distinction4 ,it is rather what ,austin 
calls a pervading notion1 to be found   
generally in the systematic ideas of    
developed legal systems by derivation   
from the ,roman books4 ,roman law may   
have a contractual conception of        
obligation ex delicto--thinking of the  
delict as giving rise to a debt--and the
 common law a delictual conception of   
liability upon contract--thinking in    
terms of recovery of damages for the    
wrong of breaking a promise--without    
much difference in the ultimate results4
 ,the fundamental things are not tort   
and contract but justifiable assumptions
 as to the mode in which one's fellow   
men will act in civilized society in    
many different situations of which      
aggression and undertaking are but two  

common types4  ,returning to our second 
postulate of due care in affirmative    
courses of conduct1 we may note that in 
the society of today it is no less      
fundamental than the postulate of no    
intentional aggression4 ,aggression is  
the chief if not the only form of       
anti-social conduct in a primitive      
society4 ,indeed1 a ,greek writer on law
 and politics of the fifth century ,b4  
,c4 knew of no other subject of legal   
precepts4 ,but with the development of  
machinery and consequent increase in    
human powers of action1 the general     
security comes to be threatened quite as
 much by the way in which one does      
things as by what he does4 ,carelessness
 becomes a more frequent and more       
serious source of danger to the general 
security than aggression4 ,hence a set  
of nominate delicts requiring dolus is  
supplemented by a theory of culpa4      
,hence a set of nominate torts1         
characterized by intentional aggression1
 is supplemented by liability for       

negligence1 and the latter becomes the  
more important source of legal liability
 in practice4  ,must we not recognize   
also a third postulate1 namely1 that men
 must be able to assume that others1 who
 keep things or maintain conditions or  
employ agencies that are likely to get  
out of hand or escape and do damage1    
will restrain them or keep them within  
proper bounds8 ,just as we may not go   
effectively about our several businesses
 in a society dependent on a minute     
division of labor if we must constantly 
be on guard against the aggressions or  
the want of forethought of our neighbor1
 so our complex social order based on   
division of labor may not function      
effectively if each of us must stay his 
activities through fear of the breaking 
loose or getting out of hand of         
something which his neighbor harbors or 
maintains4 ,there is danger to the      
general security not only in what men do
 and the way in which they do it1 but   
also in what they fail to do in not     

restraining things they maintain or     
agencies they employ which may do injury
 if not kept strictly in hand4 ,the     
general security is threatened by wilful
 aggression1 by affirmative action      
without due regard for others in the    
mode of conducting it1 and by harboring 
and maintaining things and employing    
agencies likely to escape or to go out  
of bounds and do damage4 ,looked at in  
this way1 the ultimate basis of delictal
 liability is the social interest in the
 general security4 ,this interest is    
threatened or infringed in three ways3  
7#a7 ,intentional aggression1 7#b7      
negligent action1 7#c7 failure to       
restrain potentially dangerous things   
which one maintains or potentially      
dangerous agencies which one employs4   
,accordingly these three are the        
immediate bases of delictal liability4  
,controversial cases of liability       
without fault involve the third         
postulate4 ,systematic writers have     
found no difficulty in reconciling the  

law of negligence with the will theory  
of liability and the doctrine of no     
liability without fault4 ,yet they must 
use the term fault in a strained sense  
in order to fit our law of negligence   
with its objective standard of due care1
 or the ,roman cases of liability for   
culpa judged by the abstract standard1  
into any theory of moral                
blameworthiness4 ,the doctrine of       
liability for fault and for fault only  
has its roots in the stage of equity and
 natural law1 when the moral and the    
legal are identified1 and means that one
 shall respond for injuries due to      
morally blameworthy conduct upon his    
part4 ,as ,ames puts it1 the unmoral    
standard of acting at one's peril is    
replaced by the question1 ,was the act  
blameworthy8 ,but is an act blameworthy 
because the actor has a slow reaction   
time or was born impulsive or is        
naturally timid or is easily rattled and
 hence in an emergency does not come up 
to the standard of what a reasonably    

prudent man would do in such an         
emergency1 as applied ex post facto by  
twelve average men in the jury box8 ,if 
our use of culpable here were not1 as it
 were1 ,pickwickian1 we should allow the
 defendant in such cases to show what   
sort of man nature had made him and to  
call for individualization with respect 
to his character and temperament as well
 as with respect to the circumstances   
under which he acted4 ,as the ,romanist 
would say1 we should apply a concrete   
standard of culpa4 ,but what the law is 
really regarding is not his culpable    
exercise of his will but the danger to  
the general security if he and his      
fellows act affirmatively without coming
 up to the standard imposed to maintain 
that security4 ,if he acts1 he must     
measure up to that standard at his peril
 of answering for injurious             
consequences4 ,whenever a case of       
negligence calls for sharp application  
of the objective standard1 fault is as  
much a dogmatic fiction as is           

representation in the liability of the  
master for the torts of his servant4 ,in
 each case the exigencies of the will   
theory lead us to cover up a liability  
irrespective of fault1 imposed to       
maintain the general security1 by a     
conclusive imputation of fault to one   
who may be morally blameless4 ,this is  
no less true of cases where we speak of 
negligence per se4  ,reconciliation of  
common-law absolute liabilities for the 
getting out of hand of things likely to 
escape and do damage with the doctrine  
of no liability without fault has been  
sought by means of a fiction of         
negligence1 by pronouncing them         
disappearing historical anomalies1 by an
 economic interpretation that regards   
them as results of class interest       
distorting the law1 and by a theory of  
res ipsa loquitur4 ,blackstone resorted 
to the first of these4 ,a man is        
answerable1 he said1 for not only his   
own trespass but for that of his cattle 
also2 for if by his negligent keeping   

they stray upon the land of another 444 
this is a trespass for which the owner  
must answer in damages4 ,but note that  
the negligence here is a dogmatic       
fiction4 ,no proof of negligence is     
required of the plaintiff1 nor may the  
defendant show that there was in fact no
 negligence4 ,the negligence is         
established by the liability1 not the   
liability by the negligence4  ,in the   
last century it was usual to refer to   
absolute liability for trespassing      
animals1 for injuries by wild animals   
and for injuries by domestic animals1   
known to be vicious1 as disappearing    
rudiments of the old liability to make  
composition4 ,the common ,american      
doctrine as to cattle running at large  
upon uncultivated lands seemed to       
confirm this4 ,yet one need but look    
beneath the surface to see that the     
,english rule was rejected for a time in
 ,america1 not because it was in        
conflict with a fundamental principle of
 no liability without fault1 but because

 it presupposed a settled community1    
where it was contrary to the general    
security to turn cattle out to graze1   
whereas in pioneer ,american communities
 of the past vacant lands which were    
owned and those which were not owned    
could not be distinguished and the      
grazing resources of the community were 
often its most important resources4 ,the
 common-law rule1 without regard to its 
basis1 was for a time inapplicable to   
local conditions4 ,it is significant    
that as the conditions that made the    
rule inapplicable have come to an end   
the rule has generally re-established   
itself4 ,in ,england it is in full vigor
 so that the owner of trespassing       
animals is held for disease communicated
 by them although he had no knowledge or
 reason to suppose they were diseased4  
,a rule that can re-establish itself and
 extend its scope in this way is not    
moribund4 ,it must have behind it some  
basis in the securing of social         
interests4 ,nor have the attempts of    

some ,american courts to narrow         
common-law liability for injuries by    
known vicious animals to cases of       
negligent keeping made much headway4    
,the weight of ,american authority      
remains with the common-law rule and in 
,england the ,court of ,appeal has      
carried the rule out to the extent of   
holding the owner notwithstanding the   
animal was turned loose by the wrongful 
act of an intermeddling third person4   
,nor have the predictions that the      
doctrine of ,rylands v4 ,fletcher would 
disappear from the law through the      
courts' smothering it with              
exceptions--predictions commonly made at
 the end of the last century--been      
verified in the event4 ,in #aiad the    
,english courts refused to limit the    
doctrine to adjacent free-holders and   
they have since extended it to new      
situations4 ,moreover in ,america1 where
 we had been told it was decisively     
rejected1 it has been applied in the    
past decade by more than one court4 ,the

 leading ,american cases that profess to
 reject the doctrine did not involve it 
nor did they involve the postulate of   
civilized society on which1 as ,i think1
 it is based4 ,also the ,court of       
,appeals of ,new ,york1 the leading     
exponent of no liability without fault1 
had theretofore imposed a liability     
without regard to negligence in the case
 of blasting4  ,an ingenious explanation
 of the doctrine of ,rylands v4         
,fletcher by means of the economic      
interpretation of legal history demands 
more notice4 ,we are told that the      
,english courts were manned by          
landowners or by judges drawn from the  
land-owning class2 that the doctrine of 
,rylands v4 ,fletcher is a doctrine for 
landowners and so was not accepted by   
artisans in the ,united ,states4 ,but   
consider which states applied the rule  
and which rejected it4 ,it was applied  
in ,massachusetts in #ahgb1 in          
,minnesota in #ahgb1 in ,ohio in #ahif1 
in ,west ,virginia in #aiaa1 in         

,missouri in #aiac1 in ,texas in #aiaf4 
,it was rejected by ,new ,hampshire in  
#ahgc1 by ,new ,york in #ahgc1 by ,new  
,jersey in #ahgf1 by ,pennsylvania in   
#ahhf1 by ,california in #ahie1 by      
,kentucky in #aijc1 by ,indiana in      
#aiaa4 ,is ,new ,york a community of    
artisans but ,massachusetts a community 
of landowners8 ,did the ,united ,states 
begin to change from a country of       
artisans to one of landowners about the 
year #aiaj so that a drift toward the   
doctrine began at that time after a     
steady rejection of it between #ahgc and
 #ahif8 ,rylands v4 ,fletcher was       
decided in #ahfg and is connected with  
the movement ,dicey calls collectivism1 
which1 he says1 began in #ahfe4 ,it is a
 reaction from the notion of liability  
merely as a corollary of culpability4   
,it restrains the use of land in the    
interest of the general security4 ,if   
this view is well taken1 if it was an   
attempt to take account of the social   
interest in the general security in a   

crowded country1 this may explain the   
reluctance with which it was received in
 the ,united ,states at first1 where    
pioneer ideas1 appropriate to a less    
crowded agricultural country1 lingered  
at least to the end of the nineteenth   
century4 ,in the actual ,american       
decisions1 some follow ,rylands v4      
,fletcher as an authoritative statement 
of the common law4 ,other cases go      
rather on the principle that liability  
flows from culpability4 ,agricultural   
states and industrial states alike      
divide along these doctrinal lines4     
,massachusetts and ,pennsylvania1 both  
industrial states1 are on opposite      
sides4 ,so are ,texas and ,kentucky1    
which are agricultural states4          
,massachusetts and ,new ,jersey1 each   
with an appointive bench1 are on        
opposite sides1 and so are ,ohio and    
,new ,york1 each with an elective bench4
 ,in truth the ,massachusetts court     
followed authority4 ,in ,new ,hampshire 
,chief ,justice ,doe was not willing to 

go on mere authority and decided on the 
general principle that liability must   
flow from fault4  ,another view is that 
the doctrine of ,rylands v4 ,fletcher is
 a crude attempt1 when negligence and   
the doctrine of res ipsa loquitur were  
none too well understood1 to apply the  
principle of the latter doctrine1 and   
that those doctrines will suffice to    
reach the actual result4 ,no doubt res  
ipsa loquitur gives a possible mode of  
treating cases where one maintains      
something likely to get out of hand and 
do injury4 ,for four possible solutions 
may be found for such cases4 ,one is    
absolute liability1 as in ,rylands v4   
,fletcher4 ,another is to put the burden
 of proof of due care on the defendant1 
as ,french law does in some cases and as
 is done by some ,american decisions and
 some statutes in case of fires set by  
locomotives4 ,a third is to apply the   
doctrine of res ipsa loquitur4 ,a fourth
 would be to require the plaintiff to   
prove negligence1 as is done by the     

,supreme ,court of ,new ,jersey where a 
known vicious animal breaks loose4 ,that
 the fourth1 which is the solution      
required by the theory of no liability  
without fault1 has found but two courts 
to uphold it1 and that only in the case 
of vicious domestic animals1 is         
suggestive4 ,res ipsa loquitur may      
easily run into a dogmatic fiction1 and 
must do so1 if made to achieve the      
result of the doctrine of ,rylands v4   
,fletcher1 which does not permit the    
defendant to go forward with proof1     
short of vis maior or the unanticipated 
unlawful act of a third person beyond   
defendant's control4 ,the vitality and  
persistence of the doctrine against     
theoretical assault for more than a     
generation show that it is more than a  
historical anomaly or a dogmatic        
blunder4  ,another type of common-law   
liability without fault1 the so-called  
liability of the carrier as an insurer  
and the liability of the innkeeper1 is  
relational and depends upon a different 

postulate4 ,nineteenth-century courts in
 the ,united ,states endeavored to hold 
down the former1 restricting it because 
of its inconsistency with the doctrine  
of liability as a corollary of fault4   
,but it has proved to have abundant     
vitality1 has been extended by          
legislation in some states to carriers  
of passengers and has been upheld by    
recent legislation everywhere4  ,two    
other types of liability1 contractual   
and relational1 must receive brief      
notice4 ,the former has long done       
valiant service for the will theory4    
,not only liability arising from legal  
transactions but liability attached to  
an office or calling1 liability attached
 to relations and liability to          
restitution in case of unjust enrichment
 have been referred to express or       
implied undertaking and hence to the    
will of the person held4 ,but beneath   
the surface the so-called contract by   
estoppel1 the cases of acceptance of a  
wrongly transmitted offer1 the doctrine 

that a public utility has no general    
power of contract as to facilities or   
rates except to liquidate the terms of  
its relational duties in certain        
doubtful cases1 and cases of imposition 
of duties on husband or wife after      
marriage by change of law1 have caused  
persistent and recurring difficulties   
and call everywhere for a revision of   
our ideas4 ,also the objective theory of
 contract has undermined the very       
citadel of the will theory4 ,may we not 
refer these phenomena1 not to the will  
of the person bound1 but to another     
postulate of civilized society and its  
corollaries8 ,may we not say that in    
civilized society men must be able to   
assume that those with whom they deal in
 the general intercourse of society will
 act in good faith8 ,if so1 four        
corollaries will serve as the bases of  
four types of liability4 ,for it will   
follow that they must be able to assume 
7a7 that their fellow men will make good
 reasonable expectations created by     

their promises or other conduct1 7b7    
that they will carry out their          
undertakings according to the           
expectation which the moral sentiment of
 the community attaches thereto1 7c7    
that they will conduct themselves with  
zeal and fidelity in relations1 offices 
and callings1 and 7d7 that they will    
restore in specie or by equivalent what 
comes to them by mistake or             
unanticipated situation whereby they    
receive what they could not have        
expected reasonably to receive under    
such circumstances4 ,thus we come back  
to the idea of good faith1 the idea of  
the classical ,roman jurists and of the 
philosophical jurists of the seventeenth
 century1 out of which the will theory  
was but a metaphysical development4     
,only we give it a basis in social      
philosophy where they sought a basis in 
theories of the nature of transactions  
or of the nature of man as a moral      
creature4  ,looking back over the whole 
subject1 shall we not explain more      

phenomena and explain them better by    
saying that the law enforces the        
reasonable expectations arising out of  
conduct1 relations and situations1      
instead of that it proceeds upon willed 
action and willed action only1 enforcing
 the willed consequences of declared    
intention1 enforcing reparation for     
willed aggression and enforcing         
reparation for culpable carrying on of  
willed conduct8 ,if we explain more and 
explain it more completely by saying    
that the ultimate thing in the theory of
 liability is justifiable reliance under
 the conditions of civilized society    
than by saying that it is free will1 we 
shall have done all that we may hope to 
do by any theory4     ,v  ,property     
,economic life of the individual in     
society1 as we know it1 involves four   
claims4 ,one is a claim to the control  
of certain corporeal things1 the natural
 media on which human existence depends4
 ,another is a claim to freedom of      
industry and contract as an individual  

asset1 apart from free exercise of one's
 powers as a phase of personality1 since
 in a highly organized society the      
general existence may depend to a large 
extent upon individual labor in         
specialized occupations1 and the power  
to labor freely at one's chosen         
occupation may be one's chief asset4    
,third1 there is a claim to promised    
advantages1 to promised performances of 
pecuniary value by others1 since in a   
complex economic organization with      
minute division of labor and enterprises
 extending over long periods1 credit    
more and more replaces corporeal wealth 
as the medium of exchange and agency of 
commercial activity4 ,fourth1 there is a
 claim to be secured against            
interference by outsiders with          
economically advantageous relations with
 others1 whether contractual1 social1   
business1 official or domestic4 ,for not
 only do various relations which have an
 economic value involve claims against  
the other party to the relation1 which  

one may demand that the law secure1 but 
they also involve claims against the    
world at large that these advantageous  
relations1 which form an important part 
of the substance of the individual1     
shall not be interfered with4 ,legal    
recognition of these individual claims1 
legal delimitation and securing of      
individual interests of substance is at 
the foundation of our economic          
organization of society4 ,in civilized  
society men must be able to assume that 
they may control1 for purposes          
beneficial to themselves1 what they have
 discovered and appropriated to their   
own use1 what they have created by their
 own labor and what they have acquired  
under the existing social and economic  
order4 ,this is a jural postulate of    
civilized society as we know it4 ,the   
law of property in the widest sense1    
including incorporeal property and the  
growing doctrines as to protection of   
economically advantageous relations1    
gives effect to the social want or      

demand formulated in this postulate4 ,so
 also does the law of contract in an    
economic order based upon credit4 ,a    
social interest in the security of      
acquisitions and a social interest in   
the security of transactions are the    
forms of the interest in the general    
security which give the law most to do4 
,the general safety1 peace and order and
 the general health are secured for the 
most part by police and administrative  
agencies4 ,property and contract1       
security of acquisitions and security of
 transactions are the domain in which   
law is most effective and is chiefly    
invoked4 ,hence property and contract   
are the two subjects about which        
philosophy of law has had the most to   
say4  ,in the law of liability1 both for
 injuries and for undertakings1         
philosophical theories have had much    
influence in shaping the actual law4 ,if
 they have grown out of attempts to     
understand and explain existing legal   
precepts1 yet they have furnished a     

critique by which to judge those        
precepts1 to shape them for the future  
and to build new ones out of them or    
upon them4 ,this is much less true of   
philosophical theories of property4     
,their rle has not been critical or     
creative but explanatory4 ,they have not
 shown how to build but have sought to  
satisfy men with what they had built    
already4 ,examination of these theories 
is an illuminating study of how         
philosophical theories of law grow out  
of the facts of time and place as       
explanations thereof and then are given 
universal application as necessarily    
explanatory or determinative of social  
and legal phenomena for all time and in 
every place4 ,it has been said that the 
philosophy of law seeks the permanent or
 enduring element in the law of the time
 and place4 ,it would be quite as true  
to say that it seeks to find in the law 
of the time and place a permanent or    
enduring picture of universal law4  ,it 
has been said that the individual in    

civilized society claims to control and 
to apply to his purposes what he        
discovers and reduces to his power1 what
 he creates by his labor1 physical or   
mental1 and what he acquires under the  
prevailing social1 economic or legal    
system by exchange1 purchase1 gift or   
succession4 ,the first and second of    
these have always been spoken of as     
giving a natural title to property4     
,thus the ,romans spoke of them as modes
 of natural acquisition by occupation or
 by specification 7making a species1    
i4e41 creation74 ,indeed1 taking        
possession of what one discovers is so  
in accord with a fundamental human      
instinct that discovery and occupation  
have stood in the books ever since      
substantially as the ,romans stated     
them4 ,a striking example of the extent 
to which this doctrine responds to      
deep-seated human tendencies is afforded
 by the customs as to discovery of      
mineral on the public domain upon which 
,american mining law is founded and the 

customs of the old whale-fishery as to  
fast-fish and loose-fish which were     
recognized and given effect by the      
courts4 ,but there is a difficulty in   
the case of creation or specification in
 that except where the creation is      
mental only materials must be used1 and 
the materials or tools employed may be  
another's4 ,hence ,grotius reduced      
creation by labor to occupation1 since  
if one made from what he discovered1 the
 materials were his by occupation1 and  
if not1 the title of others to the      
materials was decisive4 ,this           
controversy as to the respective claims 
of him who creates by labor and him who 
furnishes the materials goes back to the
 ,roman jurists of the classical period4
 ,the ,proculians awarded the thing made
 to the maker because as such it had not
 existed previously4 ,the ,sabinians    
awarded it to the owner of the materials
 because without materials the new thing
 could not have been made4 ,in the      
maturity of ,roman law a compromise was 

made1 and various compromises have      
obtained ever since4 ,in modern times1  
however1 the claim of him who creates   
has been urged by a long line of writers
 beginning with ,locke and culminating  
in the socialists4 ,the ,romans spoke of
 what one acquired under the prevailing 
social1 economic or legal system as held
 by civil acquisition and conceived that
 the principle suum cuique tribuere     
secured the thing so acquired as being  
one's own4  ,roman jurists recognized   
that certain things were not subject to 
acquisition in any of the foregoing     
ways4 ,under the influence of the ,stoic
 idea of naturalis ratio they conceived 
that most things were destined by nature
 to be controlled by man4 ,such control 
expressed their natural purpose4 ,some  
things1 however1 were not destined to be
 controlled by individuals4 ,individual 
control would run counter to their      
natural purpose4 ,hence they could not  
be the subjects of private ownership4   
,such things were called res extra      

commercium4 ,they might be excluded from
 the possibility of individual ownership
 in any of three ways4 ,it might be that
 from their nature they could only be   
used1 not owned1 and from their nature  
they were adapted to general use4 ,these
 were res communes4 ,or it might be that
 they were made for or from their nature
 they were adapted to public use1 that  
is use for public purposes by public    
functionaries or by the political       
community4 ,these were res publicae4    
,again it might be because they had been
 devoted to religious purposes or       
consecrated by religious acts           
inconsistent with private ownership4    
,such things were res sanctae1 res      
sacrae and res religiosae4 ,in modern   
law1 as a result of the medieval        
confusion of the power of the sovereign 
to regulate the use of things 7imperium7
 with ownership 7dominium7 and of the   
idea of the corporate personality of the
 state1 we have made the second category
 into property of public corporations4  

,and this has required modern systematic
 writers to distinguish between those   
things which cannot be owned at all1    
such as human beings1 things which may  
be owned by public corporations but may 
not be transferred1 and things which are
 owned by public corporations in full   
dominion4 ,we are also tending to limit 
the idea of discovery and occupation by 
making res nullius 7e4g41 wild game7    
into res publicae and to justify a more 
stringent regulation of individual use  
of res communes 7e4g41 of the use of    
running water for irrigation or for     
power7 by declaring that they are the   
property of the state or are owned by   
the state in trust for the people4 ,it  
should be said1 however1 that while in  
form our courts and legislatures seem   
thus to have reduced everything but the 
air and the high seas to ownership1 in  
fact the so-called state ownership of   
res communes and res nullius is only a  
sort of guardianship for social         
purposes4 ,it is imperium1 not dominium4

 ,the state as a corporation does not   
own a river as it owns the furniture in 
the state house4 ,it does not own wild  
game as it owns the cash in the vaults  
of the treasury4 ,what is meant is that 
conservation of important social        
resources requires regulation of the use
 of res communes to eliminate friction  
and prevent waste1 and requires         
limitation of the times when1 places    
where and persons by whom res nullius   
may be acquired in order to prevent     
their extermination4 ,our modern way of 
putting it is only an incident of the   
nineteenth-century dogma that everything
 must be owned4  ,it is not hard to see 
how the ,romans came to the distinction 
that has obtained in the books ever     
since4 ,some things were part of the    
,roman's familia1 were used by him upon 
the public domain which he occupied or  
were traded by him to those with whom he
 had legal power of commercial          
intercourse4 ,he acquired them by       
discovery1 by capture in war1 by labor  

in agriculture or as an artisan1 by     
commercial transactions or by           
inheritance4 ,for these things private  
actions lay4 ,other things were no part 
of his or of anyone's household4 ,they  
were used for political or military or  
religious purposes or1 like rivers1 were
 put to use by everyone without being   
consumed thereby4 ,as to these1 the     
magisterial rather than the judicial    
power had to be invoked4 ,they were     
protected or use of them was regulated  
and secured by interdicts4 ,one could   
not acquire them so as to maintain a    
private action for them4 ,thus some     
things could be acquired and conveyed   
and some could not4 ,in order to be     
valid1 however1 according to juristic   
theory the distinction must lie in the  
nature of things1 and it was generalized
 accordingly4  ,in a time when large    
unoccupied areas were open to settlement
 and abundant natural resources were    
waiting to be discovered and developed1 
a theory of acquisition by discovery and

 appropriation of res nullius1 reserving
 a few things as res extra commercium1  
did not involve serious difficulty4 ,on 
the other hand1 in a crowded world1 the 
theory of res extra commercium comes to 
seem inconsistent with private property 
and the theory of discovery and         
occupation to involve waste of social   
resources4 ,as to the latter1 we may    
compare the law of mining and of water  
rights on the public domain1 which      
developed along lines of discovery and  
reduction to possession under the       
conditions of #ahdi and the federal     
legislation of #ahff and #ahgb1 with    
recent legislation proceeding on ideas  
of conservation of natural resources4   
,the former requires more consideration4
 ,for the argument that excludes some   
things from private ownership may seem  
to apply more and more to land and even 
to movables4 ,thus ,herbert ,spencer    
says1 in explaining res communes3  ,if  
one individual interferes with the      
relations of another to the natural     

media upon which the latter's life      
depends1 he infringes the like liberties
 of others by which his own are         
measured4  ,but if this is true of air  
and of light and of running water1 men  
will insist upon inquiring why it is not
 true of land1 of articles of food1 of  
tools and implements1 of capital and    
even1 it may be1 of the luxuries upon   
which a truly human life depends4       
,accordingly1 how to give a rational    
account of the so-called natural right  
of property and how to fix the natural  
limits of that right became vexed       
questions of philosophical              
jurisprudence4  ,antiquity was content  
to maintain the economic and social     
status quo or at least to idealize it   
and maintain it in an ideal form4 ,the  
,middle ,ages were content to accept    
suum cuique tribuere as conclusive4 ,it 
was enough that acquisition of land and 
movables and private ownership of them  
were part of the existing social system4
 ,upon the downfall of authority1       

seventeenth-and eighteenth-century      
jurists sought to put natural reason    
behind private property as behind all   
other institutions4 ,when ,kant had     
undermined this foundation1 the         
nineteenth-century philosophical jurists
 sought to deduce property from a       
fundamental metaphysical datum2 the     
historical jurists sought to record the 
unfolding of the idea of private        
property in human experience1 thus      
showing the universal idea2 the         
utilitarian demonstrated private        
property by his fundamental test and the
 positivist established its validity and
 necessity by observation of human      
institutions and their evolution4 ,in   
other words1 here as elsewhere1 when    
eighteenth-century natural law broke    
down1 jurists sought to put new         
foundations under the old structure of  
natural rights1 just as natural rights  
had been put as a new foundation to     
support institutions which theretofore  
had found a sufficient basis in         

authority4  ,theories by which men have 
sought to give a rational account of    
private property as a social and legal  
institution may be arranged conveniently
 in six principal groups1 each including
 many forms4 ,these groups may be       
called3 7#a7 ,natural-law theories1 7#b7
 metaphysical theories1 7#c7 historical 
theories1 7#d7 positive theories1 7#e7  
psychological theories and 7#f7         
sociological theories4  ,of the         
natural-law theories1 some proceed on a 
conception of principles of natural     
reason derived from the nature of       
things1 some on conceptions of human    
nature4 ,the former continue the ideas  
of the ,roman lawyers4 ,they start with 
a definite principle found as the       
explanation of a concrete case and make 
it a universal foundation for a general 
law of property4 ,as it has been put1   
they find a postulate of property and   
derive property therefrom by deduction4 
,such theories usually start either from
 the idea of occupation or from the idea

 of creation through labor4 ,theories   
purporting to be based on human nature  
are of three forms4 ,some proceed on a  
conception of natural rights1 taken to  
be qualities of human nature reached by 
reasoning as to the nature of the       
abstract man4 ,others proceed upon the  
basis of a social contract expressing or
 guaranteeing the rights derived by     
reason from the nature of man in the    
abstract4 ,in recent thinking a third   
form has arisen which may be called an  
economic natural law4 ,in this form of  
theory1 a general foundation for        
property is derived from the economic   
nature of man or from the nature of man 
as an economic entity4 ,these are modern
 theories of natural law on an economic 
instead of an ethical basis4  ,grotius  
and ,pufendorf may be taken as types of 
the older natural-law theories of       
property4 ,according to ,grotius1 all   
things originally were res nullius4 ,but
 men in society came to a division of   
things by agreement4 ,things not so     

divided were afterward discovered by    
individuals and reduced to possession4  
,thus things came to be subjected to    
individual control4 ,a complete power of
 disposition was deduced from this      
individual control1 as something        
logically implied therein1 and this     
power of disposition furnished the basis
 for acquisition from others whose      
titles rested directly or indirectly    
upon the natural foundation of the      
original division by agreement or of    
subsequent discovery and occupation4    
,moreover1 it could be argued that the  
control of an owner1 in order to be     
complete1 must include not only the     
power to give inter vivos but also the  
power to provide for devolution after   
death as a sort of postponed gift4 ,thus
 a complete system of natural rights of 
property was made to rest mediately or  
immediately upon a postulated original  
division by agreement or a subsequent   
discovery and occupation4 ,this theory  
should be considered in the light of the

 facts of the subject on which ,grotius 
wrote and of the time when he wrote4 ,he
 wrote on international law in the      
period of expansion and colonization at 
the beginning of the seventeenth        
century4 ,his discussion of the         
philosophical foundation of property was
 meant as a preliminary to consideration
 of the title of states to their        
territorial domain4 ,as things were1 the
 territories of states had come down in 
part from the past4 ,the titles rested  
on a sort of rough adjustment among the 
invaders of the ,roman empire4 ,they    
could be idealized as the result of a   
division by agreement and of successions
 to1 or acquisitions from1 those who    
participated therein4 ,another part     
represented new natural titles based on 
discovery and occupation in the new     
world4 ,thus a ,romanized1 idealized    
scheme of the titles by which ,european 
states of the seventeenth century held  
their territories becomes a universal   
theory of property4  ,pufendorf rests   

his whole theory upon an original pact4 
,he argues that there was in the        
beginning a negative community4 ,that   
is1 all things were originally res      
communes4 ,no one owned them4 ,they were
 subject to use by all4 ,this is called 
a negative community to distinguish it  
from affirmative ownership by co-owners4
 ,he declares that men abolished the    
negative community by mutual agreement  
and thus established private ownership4 
,either by the terms of this pact or by 
a necessary implication what was not    
occupied then and there was subject to  
acquisition by discovery and occupation1
 and derivative acquisition of titles   
proceeding from the abolition of the    
negative community was conceived to be a
 further necessary implication4  ,in    
,anglo-,american law1 the justification 
of property on a natural principle of   
occupation of ownerless things got      
currency through ,blackstone4 ,as       
between ,locke on the one side and      
,grotius and ,pufendorf on the other1   

,blackstone was not willing to commit   
himself to the need of assuming an      
original pact4 ,apparently he held that 
a principle of acquisition by a         
temporary power of control co-extensive 
with possession expressed the nature of 
man in primitive times and that         
afterwards1 with the growth of          
civilization1 the nature of man in a    
civilized society was expressed by a    
principle of complete permanent control 
of what had been occupied exclusively1  
including as a necessary incident of    
such control the ius disponendi4 ,maine 
has pointed out that this distinction   
between an earlier and a later stage in 
the natural right of property grew out  
of desire to bring the theory into      
accord with ,scriptural accounts of the 
,patriarchs and their relations to the  
land grazed by their flocks4 ,in either 
event the ultimate basis is taken to be 
the nature of man as a rational         
creature1 expressed in a natural        
principle of control of things through  

occupation or in an original contract   
providing for such ownership4  ,with the
 revival of natural law in recent years 
a new phase of the justification of     
property upon the basis of human nature 
has arisen4 ,this was suggested first by
 economists who deduced property from   
the economic nature of man as a         
necessity of the economic life of the   
individual in society4 ,usually it is   
coupled with a psychological theory on  
the one side and a social-utilitarian   
theory on the other side4 ,in the hands 
of writers on philosophy of law it has  
often taken on a metaphysical color4    
,from another standpoint1 what are      
essentially natural-law theories have   
been advocated by socialists1 either    
deducing a natural right of the laborer 
to the whole produce of his labor from a
 natural principle of creation or       
carrying out the idea of natural        
qualities of the individual human being 
to the point of denying all private     
property as a natural institution and   

deducing a general regime of res        
communes or res publicae4  ,metaphysical
 theories of property are part of the   
general movement that replaced          
seventeenth-and eighteenth-century      
theories of natural rights1 founded on  
the nature of the abstract man or on an 
assumed compact1 by metaphysical        
theories4 ,they begin with ,kant4 ,he   
first sets himself to justify the       
abstract idea of a law of property--the 
idea of a system of external meum and   
tuum4 ,here1 as everywhere else1 he     
begins with the inviolability of the    
individual human personality4 ,a thing  
is rightfully mine1 he says1 when ,i am 
so connected with it that anyone who    
uses it without my consent does me an   
injury4 ,but to justify the law of      
property we must go beyond cases of     
possession where there is an actual     
physical relation to the object and     
interference therewith is an aggression 
upon personality4 ,the thing can only be
 mine for the purposes of a legal system

 of meum and tuum where ,i will be      
wronged by another's use of it when it  
is not actually in my possession4 ,this 
raises in the first instance the        
question ,how is a merely juridical or  
rational as distinguished from a purely 
physical possession possible8 ,he       
answers the question by a metaphysical  
version of the occupation theory of the 
eighteenth century4 ,conceding that the 
idea of a primitive community of things 
is a fiction1 the idea of a logically   
original community of the soil and of   
the things upon it1 he says1 has        
objective reality and practical         
juridical reality4 ,otherwise mere      
objects of the exercise of the will1    
exempted therefrom by operation of law1 
would be raised to the dignity of       
free-willing subjects1 although they    
have no subjective claim to be          
respected4 ,thus the first possessor    
founds upon a common innate right of    
taking possession1 and to disturb him is
 a wrong4 ,the first taking of          

possession has a title of right behind  
it in the principle of the original     
common claim to possession4 ,it results 
that this taker obtains a control       
realized by the understanding and       
independent of relations of space1 and  
he or those who derive from him may     
possess a parcel of land although remote
 from it physically4 ,such a possession 
is only possible in a state of civil    
society4 ,in civil society1 a           
declaration by word or act that an      
external thing is mine and making it an 
object of the exercise of my will is a  
juridical act4 ,it involves a           
declaration that others are under a duty
 of abstaining from the use of the      
object4 ,it also involves an admission  
that ,i am bound in turn toward all     
others with respect to the objects they 
have made externally theirs4 ,for we are
 brought to the fundamental principle of
 justice that requires each to regulate 
his conduct by a universal rule that    
will give like effect to the will of    

others4 ,this is guaranteed by the legal
 order in civil society and gives us the
 regime of external mine and thine4     
,having thus worked out a theory of meum
 and tuum as legal institutions1 ,kant  
turns to a theory of acquisition1       
distinguishing an original and primary  
from a derived acquisition4 ,nothing is 
originally mine without a juridical act4
 ,the elements of this legal transaction
 of original acquisition are three3 7#a7
 ,prehension of an object which belongs 
to no one2 7#b7 an act of the free will 
interdicting all others from using it as
 theirs2 7#c7 appropriation as a        
permanent acquisition1 receiving a      
lawmaking force from the principle of   
reconciling wills according to a        
universal law1 whereby all others are   
obliged to respect and act in conformity
 to the will of the appropriator with   
respect to the thing appropriated4 ,kant
 then proceeds to work out a theory of  
derivative acquisition by transfer or   
alienation1 by delivery or by contract1 

as a legal giving effect to the         
individual will by universal rules1 not 
incompatible with a like efficacy in    
action of all other wills4 ,this        
metaphysical version of the ,roman      
theory of occupation is evidently the   
link between the eighteenth century and 
,savigny's aphorism that all property is
 founded in adverse possession ripened  
by prescription4  ,when ,kant's theory  
is examined it will be found to contain 
both the idea of occupation and the idea
 of compact4 ,occupation has become a   
legal transaction involving a unilateral
 pact not to disturb others in respect  
of their occupation of other things4    
,but the pact does not derive its       
efficacy from the inherent moral force  
of a promise as such or the nature of   
man as a moral creature which holds him 
to promises4 ,its efficacy is not found 
in qualities of promises or of men1 but 
in a principle of reconciling wills by a
 universal law1 since that principle    
requires one who declares his will as to

 object ,a to respect the declaration of
 his neighbor's will as to object ,b4   
,on the other hand1 the idea of creation
 is significantly absent4 ,writing at   
the end of the eighteenth century1 in   
view of the ideas of ,rousseau1 who held
 that the man who first laid out a plot 
of ground and said1 ,this is mine1      
should have been lynched1 and of the    
interferings with vested rights in      
,revolutionary ,france1 ,kant was not   
thinking how those who had not might    
claim a greater share in what they      
produced but how those who had might    
claim to hold what they had4  ,hegel    
develops the metaphysical theory further
 by getting rid of the idea of          
occupation and treating property as a   
realization of the idea of liberty4     
,property1 he says1 makes objective my  
personal1 individual will4 ,in order to 
reach the complete liberty involved in  
the idea of liberty1 one must give his  
liberty an external sphere4 ,hence a    
person has a right to direct his will   

upon an external object and an object on
 which it is so directed becomes his4   
,it is not an end in itself2 it gets its
 whole rational significance from his   
will4 ,thus when one appropriates a     
thing1 fundamentally he manifests the   
majesty of his will by demonstrating    
that external objects that have no wills
 are not self-sufficient and are not    
ends in themselves4 ,it follows that the
 demand for equality in the division of 
the soil and in other forms of wealth is
 superficial4 ,for1 he argues1          
differences of wealth are due to        
accidents of external nature that give  
to what ,a has impressed with his will  
greater value than to what ,b has       
impressed with his1 and to the infinite 
diversity of individual mind and        
character that leads ,a to attach his   
will to this and ,b to attach his will  
to that4 ,men are equal as persons4     
,with respect to the principle of       
possession they stand alike4 ,everyone  
must have property of some sort in order

 to be free4 ,beyond this1 among persons
 differently endowed inequality must    
result and equality would be wrong4     
,nineteenth-century metaphysical        
theories of property carry out these    
ideas or develop this method4 ,and it is
 to be noted that they are all open to  
attack from the standpoint of the theory
 of res extra commercium4 ,thus ,hegel's
 theory comes to this3 ,personality     
involves exercise of the will with      
respect to things4 ,when one has        
exercised his will with respect to a    
thing and so has acquired a power of    
control over it1 other wills are        
excluded from this thing and are to be  
directed toward objects with which other
 personalities have not been so         
identified4 ,so long as there are vacant
 lands to occupy1 undeveloped regions   
awaiting the pioneer1 unexploited       
natural resources awaiting the          
prospector--in short1 so long as there  
are enough physical objects in reach1 if
 one may so put it1 to go round--this   

would be consistent with the            
nineteenth-century theory of justice4   
,but when1 as at the end of the         
nineteenth century1 the world becomes   
crowded and its natural resources have  
been appropriated and exploited1 so that
 there is a defect in material nature   
whereby such exercise of the will by    
some leaves no objects upon which the   
wills of others may be exerted1 or a    
deficiency such as to prevent any       
substantial exertion of the will1 it is 
difficult to see how ,hegel's argument  
may be reconciled with the argument put 
behind the conception of res extra      
commercium4 ,miller1 a ,scotch          
,hegelian1 seeks to meet this           
difficulty4 ,he says that beyond what is
 needed for the natural existence and   
development of the person1 property can 
only be held as a trust for the state4  
,in modern times1 however1 a periodical 
redistribution1 as in antiquity1 is     
economically inadmissible4 ,yet if      
anyone's holdings were to exceed the    

bounds of reason1 the legislature would 
undoubtedly interfere on behalf of      
society and prevent the wrong which     
would be done by caricaturing an        
abstract right4 ,in view of our bills of
 rights1 an ,american ,hegelian could   
not invoke the deus ex machina of an    
,act of ,parliament so conveniently4    
,perhaps he would fall back on graduated
 taxation and inheritance taxes4 ,but   
does not ,miller when hard pressed      
resort to something very like           
social-utilitarianism8  ,lorimer        
connects the metaphysical theory with   
theories resting on human nature4 ,to   
begin with1 he deduces the whole system 
of property from a fundamental          
proposition that the right to be and to 
continue to be implies a right to the   
conditions of existence4 ,accordingly he
 says that the idea of property is      
inseparably connected not only with the 
life of man but with organic existence  
in general2 that life confers rights to 
its exercise corresponding in extent to 

the powers of which it consists4 ,when1 
however1 this is applied in explaining  
the basis of the present proprietary    
system in all its details resort must be
 had to a type of artificial reasoning  
similar to that employed by the jurists 
of the seventeenth and eighteenth       
centuries4 ,the abstract idea of        
ownership is not the only thing the     
legal philosopher has to consider4      
,moreover the reasoning by which that   
application is made may not be          
reconciled with the arguments by which  
the doctrine of res extra commercium is 
regarded also as a bit of natural law4  
,although it purports to be wholly      
different1 the positive theory of the   
basis of property is essentially the    
same as the metaphysical4 ,thus         
,spencer's theory is a deduction from a 
fundamental law of equal freedom        
verified by observation of the facts of 
primitive society4 ,but the law of equal
 freedom supposed to be ascertained by  
observation1 in the same way in which   

physical or chemical laws are           
ascertained1 is in fact1 as has often   
been pointed out1 ,kant's formula of    
justice4 ,and the verification of       
deductions from this law by observation 
of the facts of primitive civilization  
is not essentially different from the   
verification of the deductions from the 
metaphysical fundamental law carried on 
by the historical jurists4 ,the         
metaphysical jurist reached a principle 
metaphysically and deduced property     
therefrom4 ,the historical jurist       
thereupon verified the deduction by     
showing the same principle as the idea  
realizing itself in legal history4 ,in  
the hands of the positivists the same   
principle is reached by observation1 the
 same deduction is made therefrom1 and  
the deduction is verified by finding the
 institution latent in primitive society
 and unfolding with the development of  
civilization4 ,the most notable         
difference is that the metaphysical and 
historical jurists rely chiefly on      

primitive occupation of ownerless       
things1 while the positivists have been 
inclined to lay stress upon creation of 
new things by labor4 ,in any event1     
laying aside the verification for the   
moment1 the deduction as made by        
,spencer involves the same difficulties 
as those involved in the metaphysical   
deduction4 ,moreover1 like the          
metaphysical deduction1 it accounts for 
an abstract idea of private property    
rather than for the regime that actually
 exists4 ,inequalities are assumed to be
 due to greater strength1 greater       
ingenuity or greater application of     
those who have acquired more than their 
fellows4 ,hence1 as the end of law is   
taken to be the bringing about of a     
maximum of individual free              
self-assertion1 any interference with   
one's holding the fruits of his greater 
strength or greater ingenuity or greater
 application1 and his resulting greater 
activity in creative or acquisitive     
self-assertion1 would contravene the    

very purpose of the legal order4 ,it    
will be noted also that this theory1    
like all that had gone before1 assumes a
 complete ius disponendi as implied in  
the very notion of property4 ,but does  
not this also require demonstration8 ,is
 the ius disponendi implied in the idea 
which they demonstrate or is it only an 
incident of the institution they are    
seeking to explain by the demonstration8
  ,historical jurists have maintained   
their theory on the basis of two        
propositions3 7#a7 ,the conception of   
private property1 like the conception of
 individual personality1 has had slow   
but steady development from the         
beginnings of law2 7#b7 individual      
ownership has grown out of group rights 
just as individual interests of         
personality have been disentangled      
gradually from group interests4 ,let us 
look at each of these propositions in   
some detail4  ,if we examine the law of 
property analytically1 we may see three 
grades or stages in the power or        

capacity which men have of influencing  
the acts of others with respect to      
corporeal objects4 ,one is a mere       
condition of fact1 a mere physical      
holding of or physical control over the 
thing without any other element         
whatever4 ,the ,roman jurists called    
this natural possession4 ,we call it    
custody4 ,writers on analytical         
jurisprudence regard it as an element of
 possession4 ,but this natural          
possession is something that may exist  
independently of law or of the state1 as
 in the so-called pedis possessio of    
,american mining law1 where1 before law 
or state authority had been extended to 
the public domain in the mining country1
 the miners recognized the claim of one 
who was actually digging to dig without 
molestation at that spot4 ,the mere     
having of an object in one's actual     
grasp gives an advantage4 ,but it may be
 only an advantage depending on one's   
strength or on recognition of and       
respect for his personality by his      

fellow men4 ,it is not a legal advantage
 except as the law protects personality4
 ,it is the physical person of the one  
in natural possession which is secured1 
not his relation to the thing held4     
,analytically the next grade or stage is
 what the ,romanist calls juristic      
possession as distinguished from natural
 possession4 ,this is a legal           
development of the extra-legal idea of  
custody4 ,where custody or the ability  
to reproduce a condition of custody is  
coupled with the mental element of      
intention to hold for one's own         
purposes1 the legal order confers on one
 who so holds a capacity protected and  
maintained by law so to hold1 and a     
claim to have the thing restored to his 
immediate physical control should he be 
deprived of it4 ,as the ,romanist puts  
it1 in the case of natural possession   
the law secures the relation of the     
physical person to the object2 in       
juristic possession the law secures the 
relation of the will to the object4 ,in 

the highest grade of proprietary        
relation1 ownership1 the law goes much  
further and secures to men the exclusive
 or ultimate enjoyment or control of    
objects far beyond their capacity either
 to hold in custody or to possess--that 
is1 beyond what they could hold by      
physical force and beyond what they     
could actually hold even by the help of 
the state4 ,natural possession is a     
conception of pure fact in no degree    
dependent upon law4 ,the legally        
significant thing is the interest of the
 natural possessor in his personality4  
,possession or juristic possession is a 
conception of fact and law1 existing as 
a pure relation of fact1 independent of 
legal origin1 but protected and         
maintained by law without regard to     
interference with personality4          
,ownership is a purely legal conception 
having its origin in and depending on   
the law4  ,in general the historical    
development of the law of property      
follows the line thus indicated by      

analysis4 ,in the most primitive social 
control only natural possession is      
recognized and interference with natural
 possession is not distinguished from   
interference with the person or injury  
to the honor of the one whose physical  
contact with the physical object is     
meddled with4 ,in the earlier legal     
social control the all-important thing  
is seisin1 or possession4 ,this is a    
juristic possession1 a conception both  
of fact and of law4 ,such institutions  
as tortious conveyance by the person    
seised in the common law are numerous in
 an early stage of legal development4   
,they show that primarily the law       
protected the relation to an object of  
one who had possession of it4 ,indeed   
the idea of dominium1 or ownership as we
 now understand it1 was first worked out
 thoroughly in ,roman law1 and other    
systems got their idea of it1 as        
distinguished from seisin1 from the     
,roman books4  ,recognition of          
individual interests of substance1 or in

 other words individual property1 has   
developed out of recognition of group   
interests1 just as recognition of       
individual interests of personality has 
evolved gradually from what in the first
 instance was a recognition of group    
interests4 ,the statement which used to 
be found in the books that all property 
originally was owned in common means    
nothing more than this3 ,when interests 
of substance are first secured they are 
interests of groups of kindred because  
in tribally organized society groups of 
kindred are the legal units4 ,social    
control secures these groups in the     
occupation of things which they have    
reduced to their possession4 ,in this   
sense the first property is group       
property rather than individual         
property4 ,yet it must be noted that    
wherever we find a securing of group    
interests1 the group in occupation is   
secured against interference of other   
groups with that occupation4 ,two ideas 
gradually operated to break up these    

group interests and bring about         
recognition of individual interests4    
,one of these is the partition of       
households4 ,the other is the idea of   
what in the ,hindu law is called        
self-acquired property4  ,in primitive  
or archaic society as households grow   
unwieldy there is a partition which     
involves partition of property as well  
as of the household4 ,indeed in ,hindu  
law partition is thought of as partition
 of the household primarily and as      
partition of property only incidentally4
 ,also in ,roman law the old action for 
partition is called the action for      
partitioning the household4 ,thus1 at   
first1 partition is a splitting up of an
 overgrown household into smaller       
households4 ,presently1 however1 it     
tends to become a division of a         
household among individuals4 ,thus in   
,roman law on the death of the head of a
 household each of his sons in his power
 at his death became a pater familias   
and could bring a proceeding to         

partition the inheritance although he   
might be the sole member of the         
household of which he was the head4 ,in 
this way individual ownership became the
 normal condition instead of household  
ownership4 ,in ,hindu law household     
ownership is still regarded as the      
normal condition4 ,but with changes in  
society and the rise of commercial and  
industrial activity1 a change has been  
taking place rapidly which is making    
individual ownership the normal type in 
fact1 if not in legal theory4           
,self-acquired property1 the second     
disintegrating agency1 may be seen in   
,hindu law and also in ,roman law4 ,in  
,hindu law all property is normally and 
prima facie household property4 ,the    
burden is upon anyone who claims to be  
the individual owner of anything4 ,but  
an exceptional class of property is     
recognized which is called self-acquired
 property4 ,such property might be      
acquired by valor1 that is1 by leaving  
the household and going into military   

service and thus earning or acquiring by
 way of booty1 or by learning1 that is1 
by withdrawing from the household and   
devoting oneself to study and thus      
acquiring through the gifts of the pious
 or the exercise of knowledge4 ,a third 
form was recognized later1 namely1      
property acquired through the use of    
self-acquired property4 ,in the same way
 in ,roman law the son in the household1
 even if of full age1 normally had no   
property4 ,legally all property acquired
 by any member of the household was the 
property of the head of the household as
 the legal symbol and representative    
thereof4 ,later the head of the         
household ceases to be thought of as    
symbolizing the household and the       
property was regarded legally as his    
individual property4 ,but ,roman law    
recognized certain kinds of property    
which sons in the household might hold  
as their own4 ,the first of these was   
property earned or acquired by the son  
in military service4 ,later property    

earned in the service of the state was  
added4 ,finally it came to be law that  
property acquired otherwise than through
 use of the patrimony of the household  
might be held by the son individually   
though he remained legally under the    
power of the head4  ,in the two ways    
just explained1 through partition and   
through the idea of self-acquired       
property1 individual interests in       
property came to be recognized          
throughout the law4 ,except for the     
institution of community property       
between husband and wife in civil-law   
countries1 or as it is called the       
matrimonial property regime1 there is   
practically nothing left of the old     
system of recognized group interests4   
,and even this remnant of household     
group ownership is dissolving4 ,all     
legally recognized interests of         
substance in developed legal systems are
 normally individual interests4 ,to the 
historical jurist of the nineteenth     
century1 this fact1 coupled with the    

development of ownership out of         
possession1 served to show us the idea  
which was realizing in human experience 
of the administration of justice and to 
confirm the position reached by the     
metaphysical jurists4 ,individual       
private property was a corollary of     
liberty and hence law was not thinkable 
without it4 ,even if we do not adopt the
 metaphysical part of this argument and 
if we give over the idealistic-political
 interpretation of legal history which  
it involves1 there is much which is     
attractive in the theory of the         
historical jurists of the last century4 
,yet as we look at certain movements in 
the law there are things to give us     
pause4 ,for one thing1 the rise and     
growth of ideas of negotiability1 the   
development of the maxim possession vaut
 titre in ,continental law1 and the     
cutting down in other ways of the sphere
 of recognition of the interest of the  
owner in view of the exigencies of the  
social interest in the security of      

transactions1 suggests that the tendency
 involved in the first of the two       
propositions relied on by the historical
 school has passed its meridian4 ,the   
,roman doctrine that no one may transfer
 a greater title than he has is         
continually giving way before the demand
 for securing of business transactions  
had in good faith4 ,and in ,roman law in
 its maturity the rules that restricted 
acquisition by adverse possession and   
enabled the owner in many cases to      
reclaim after any lapse of time were    
superseded by a decisive limitation of  
actions which cut off all claims4 ,the  
modern law in countries which take their
 law from ,rome has developed this      
decisive limitation4 ,likewise in our   
law the hostility to the statute of     
limitations1 so marked in               
eighteenth-century decisions1 has given 
way to a policy of upholding it4        
,moreover the rapid rise in recent times
 of limitations upon the ius disponendi1
 the imposition of restrictions in order

 to secure the social interest in the   
conservation of natural resources1 and  
,english projects for cutting off the   
ius abutendi of the landowner1 could be 
interpreted by the nineteenth-century   
historical jurists only as marking a    
retrograde development4 ,when we add    
that with the increase in number and    
influence of groups in the highly       
organized society of today a tendency is
 manifest to recognize practically and  
in back-handed ways group property in   
what are not legal entities1 it becomes 
evident that the segment of experience  
at which the historical jurists were    
looking was far too short to justify a  
dogmatic conclusion1 even admitting the 
validity of their method4  ,it remains  
to consider some twentieth-century      
theories4 ,these have not been worked   
out with the same elaboration and       
systematic detail as those of the past1 
and as yet one may do no more than      
sketch them4  ,an instinctive claim to  
control natural objects is an individual

 interest of which the law must take    
account4 ,this instinct has been the    
basis of psychological theories of      
private property4 ,but thus far these   
theories have been no more than         
indicated4 ,they might well be combined 
with the historical theory1 putting a   
psychological basis in place of the     
nineteenth-century metaphysical         
foundation4 ,a social-psychological     
legal history might achieve much in this
 connection4  ,of sociological theories1
 some are positivist1 some psychological
 and some social-utilitarian4 ,an       
excellent example of the first is       
,duguit's deduction from social         
interdependence through similarity of   
interest and through division of labor4 
,he has but sketched this theory1 but   
his discussion contains many valuable   
suggestions4 ,he shows clearly enough   
that the law of property is becoming    
socialized4 ,but1 as he points out1 this
 does not mean that property is becoming
 collective4 ,it means that we are      

ceasing to think of it in terms of      
private right and are thinking of it in 
terms of social function4 ,if one doubts
 this he should reflect on recent rent  
legislation1 which in effect treats the 
renting of houses as a business affected
 with a public interest in which        
reasonable rates must be charged as by a
 public utility4 ,also it means that    
cases of legal application of wealth to 
collective uses are becoming continually
 more numerous4 ,he then argues that the
 law of property answers to the economic
 need of applying certain wealth to     
definite individual or collective uses  
and the consequent need that society    
guarantee and protect that application4 
,hence1 he says1 society sanctions acts 
which conform to those uses of wealth   
which meet that economic need1 and      
restrains acts of contrary tendency4    
,thus property is a social institution  
based upon an economic need in a society
 organized through division of labor4   
,it will be seen that the results and   

the attitude toward the law of property 
involved are much the same as those     
which are reached from the              
social-utilitarian standpoint4          
,psychological sociological theories    
have been advanced chiefly in ,italy4   
,they seek the foundation of property in
 an instinct of acquisitiveness1        
considering it a social development or  
social institution on that basis4       
,social-utilitarian theories explain and
 justify property as an institution     
which secures a maximum of interests or 
satisfies a maximum of wants1 conceiving
 it to be a sound and wise bit of social
 engineering when viewed with reference 
to its results4 ,this is the method of  
,professor ,ely's well-known book on    
,property and ,contract4 ,no one has yet
 done so1 but ,i suspect one might      
combine this mode of thought with the   
civilization interpretation of the      
,neo-,hegelians and argue that the      
system of individual property1 on the   
whole1 conduces to the maintaining and  

furthering of civilization--to the      
development of human powers to the most 
of which they are capable--instead of   
viewing it as a realization of the idea 
of civilization as it unfolds in human  
experience4 ,perhaps the theories of the
 immediate future will run along some   
such lines4 ,for we have had no         
experience of conducting civilized      
society on any other basis1 and the     
waste and friction involved in going to 
any other basis must give us pause4     
,moreover1 whatever we do1 we must take 
account of the instinct of              
acquisitiveness and of individual claims
 grounded thereon4 ,we may believe that 
the law of property is a wise bit of    
social engineering in the world as we   
know it1 and that we satisfy more human 
wants1 secure more interests1 with a    
sacrifice of less thereby than by       
anything we are likely to devise--we may
 believe this without holding that      
private property is eternally and       
absolutely necessary and that human     

society may not expect in some          
civilization1 which we cannot forecast1 
to achieve something different and      
something better4     ,,vi  ,contract   
,wealth1 in a commercial age1 is made up
 largely of promises4 ,an important part
 of everyone's substance consists of    
advantages which others have promised to
 provide for or to render to him2 of    
demands to have the advantages promised 
which he may assert not against the     
world at large but against particular   
individuals4 ,thus the individual claims
 to have performance of advantageous    
promises secured to him4 ,he claims the 
satisfaction of expectations created by 
promises and agreements4 ,if this claim 
is not secured friction and waste       
obviously result1 and unless some       
countervailing interest must come into  
account which would be sacrificed in the
 process1 it would seem that the        
individual interest in promised         
advantages should be secured to the full
 extent of what has been assured to him 

by the deliberate promise of another4   
,let us put this in another way4 ,in a  
former lecture ,i suggested1 as a jural 
postulate of civilized society1 that in 
such a society men must be able to      
assume that those with whom they deal in
 the general intercourse of the society 
will act in good faith1 and as a        
corollary must be able to assume that   
those with whom they so deal will carry 
out their undertakings according to the 
expectations which the moral sentiment  
of the community attaches thereto4      
,hence1 in a commercial and industrial  
society1 a claim or want or demand of   
society that promises be kept and that  
undertakings be carried out in good     
faith1 a social interest in the         
stability of promises as a social and   
economic institution1 becomes of the    
first importance4 ,this social interest 
in the security of transactions1 as one 
might call it1 requires that we secure  
the individual interest of the promisee1
 that is1 his claim or demand to be     

assured in the expectation created1     
which has become part of his substance4 
,in civil-law countries the interest of 
the promisee1 and thus the social       
interest in the security of             
transactions1 is well secured4 ,the     
traditional requirement of a causa      
ciuilis1 a civil1 i4e41 legal1 reason   
for enforcing a pact1 gave way before   
natural-law ideas in the eighteenth     
century4 ,pothier gave over the contract
 categories of the ,roman law as being  
very remote from simplicity4 ,then came 
the rise of the will theory of legal    
transactions in the nineteenth century4 
,french law made intention of           
gratuitously benefiting another a causa4
 ,the ,austrian code of #ahaa presumed a
 causa1 requiring a promisor to prove   
there was none4 ,and this means that he 
must prove the promise was not a legal  
transaction--that there was no intention
 to enter into a binding undertaking4   
,in the result1 abstract promises1 as   
the civilian calls them1 came to be     

enforced equally with those which came  
under some formal ,roman category and   
with those having a substantial         
presupposition4 ,modern ,continental    
law1 apart from certain requirements of 
proof1 resting on the same policy as our
 ,statute of ,frauds1 asks only1 ,did   
the promisor intend to create a binding 
duty8  ,likewise in civil-law countries 
the enforcing machinery is modern and   
adequate4 ,the oldest method of         
enforcement in ,roman law was seizure of
 the person1 to coerce satisfaction or  
hold the promisor in bondage until his  
kinsmen performed the judgment4 ,later  
there was a pecuniary condemnation or1  
as we should say1 a money judgment in   
all cases1 enforced in the classical law
 by universal execution or1 as we should
 say1 by involuntary bankruptcy4 ,but   
along with this remedy specific relief  
grew up in the actio arbitraria1 a      
clumsy device of specific performance on
 the alternative of a heavy money       
condemnation1 which repeated itself in  

,pennsylvania before equity powers were 
given the courts1 and is substantially  
repeating in our federal courts in their
 attempts to apply equitable relief to  
torts committed in foreign              
jurisdictions4 ,the civil law developed1
 or perhaps the canon law developed and 
the civil law took over1 an actio ad    
implendum or action to require          
performance1 with natural execution1    
that is a doing by the court or its     
officers at the expense of the          
defendant1 of that to which he is bound 
as ascertained by the judgment4 ,in     
general in civil-law countries today    
what we call specific performance is the
 rule4 ,a money reparation for breach of
 contract is the exceptional remedy4 ,it
 is only when for some reason specific  
relief is impracticable or inequitable1 
as in contracts of personal service1    
that money relief is resorted to4  ,in  
countries governed by the common law we 
do not secure this interest so          
completely nor so effectively4 ,for one 

thing we do not recognize as legally    
enforceable all intentional promises    
intended to be binding upon the         
promisor4 ,many technical rules as to   
consideration1 rules having chiefly a   
historical basis1 stand in the way4     
,many jurisdictions have abolished      
private seals and have made no provision
 for formal gratuitous or abstract      
promises4 ,moreover1 we do not give     
specific relief ordinarily but only     
exceptionally where pecuniary relief is 
considered inadequate4 ,hence in the    
great majority of cases the promisee    
cannot compel performance in specie4    
,if we look into the reasons for this   
wide and effective enforcement of       
promises in the one system and narrower 
and less effective enforcement in the   
other1 we come in both cases upon a     
mixture of historical background and    
philosophical reasoning1 each           
influencing the other and neither       
governing the subject completely4       
,philosophical theories have arisen to  

explain existing rules and have been the
 basis of new rules and of remaking of  
old ones4 ,but they have been the means 
also1 at times1 of intrenching the rules
 they sought to explain and of fastening
 on the law doctrines of which it were  
better rid4 ,nowhere is the reciprocal  
action of legal rules and philosophical 
theories more strikingly manifest than  
in our law of contractual liability4    
,law did not concern itself at first    
with agreements or breaches of          
agreements4 ,its function was to keep   
the peace by regulating or preventing   
private war and this only required it to
 deal with personal violence and with   
disputes over the possession of         
property4 ,i may remind you of the      
proposition of ,hippodamus in the fifth 
century ,b4 ,c4 that there were but     
three subjects of lawsuits1 namely1     
insult1 injury and homicide4 ,if a      
dispute over breach of an agreement led 
to an assault and a breach of the peace1
 tribunals might be called on to act4   

,but it was the assault not the breach  
of agreement with which they were       
concerned4 ,controversy as to possession
 of property was a fertile source of    
disturbance of the peace and tribunals  
would entertain an action to recover    
possession4 ,agreements to compound for 
a wrong are perhaps the earliest type4  
,but the law had its eye upon the need  
of composition1 not upon the agreement4 
,no basis for a law of contracts was to 
be found in the power of the tribunals  
with respect to injuries although our   
law did make assumpsit out of trespass  
on the case4 ,on the other hand recovery
 of property could be used for this     
purpose4 ,hence the first legal1 as     
distinguished from religious1 contract  
was worked out on the analogy of a real 
transaction4 ,before this1 however1     
another possibility had developed in the
 religiously sanctioned promise4        
,religion1 the internal discipline of   
the organized kindred1 and the law of   
the state were three co-ordinate        

agencies of social control in ancient   
society4 ,nor was law for a long time   
the chief of these nor the one which    
covered the widest field4 ,if the gods  
had been called to witness or good faith
 had a religious sanction1 the duty to  
keep a promise was a matter for         
religion4 ,otherwise the mere pact or   
agreement not within the cognizance of  
the priests was but a matter for        
self-help4 ,hindu law shows the idea of 
religious duty to keep faith in full    
vigor4 ,in the ,hindu system the        
relation between the parties to a debt  
is not legal but religious and now that 
a law has grown up under ,english       
influence it is said that there is a    
legal obligation because there is a     
religious obligation4 ,a man is bound in
 law because and to the extent that he  
is bound in religion and not otherwise  
and no more4 ,to the ,hindu lawyer a    
debt is not an obligation merely4 ,it is
 a sin the consequences whereof follow  
the debtor into another world4          

,vrihaspati says3 ,he who1 having       
received a sum lent or the like does not
 return it to the owner1 will be born   
hereafter in his creditor's house a     
slave1 a servant1 a woman or a          
quadruped4 ,narada says that when one   
dies without having paid his debt1 the  
whole merit of his devotions or of his  
perpetual fire belongs to his creditors4
 ,in short the debtor is looked on as   
one who wrongfully withholds from the   
creditor the latter's property and hence
 as in some sort a thief4 ,the legal    
idea1 so far as there is one1 is not one
 of obligation but of a property right  
in the creditor4 ,one may suspect that  
religious obligation arising from the   
detention of property is a legal way of 
putting it in a polity in which social  
control is primarily religious and      
religious precepts are turning into     
legal precepts4 ,at any rate the ,hindus
 carry the idea of religious obligation 
so far that a descendant is bound to pay
 the debts of his ancestor in many cases

 whether he receives any assets of the  
ancestor or not4 ,the liability of the  
son to pay the father's debt is held to 
arise from the moral and religious duty 
of rescuing the father from the         
penalties attaching in a future state to
 non-payment of debts4 ,accordingly if  
the debt is of such a kind that no      
penalties would so attach1 there is no  
religious duty and hence no obligation  
imposed upon the descendant4  ,roman law
 in its earliest stage was not unlike   
this4 ,agreements of themselves were not
 cognizable by the tribunals4 ,it was no
 ground for summoning a defendant before
 the magistrate that he had made a      
promise and had broken it4 ,agreements  
were matters for religion or for kin or 
guild discipline4 ,if one had called on 
the gods to witness his promise or sworn
 to fulfil it1 he was liable to         
pontifical discipline4 ,the presence of 
an impious oath breaker was a social    
danger and he might be devoted to the   
infernal gods4 ,as law replaced religion

 as the controlling regulative agency1  
the old religiously sanctioned promise  
becomes a formal legal contract4 ,thus  
in the strict law we get formal         
contracts with their historical origin  
in religious duty1 and formal contracts 
with their historical origin in a legal 
duty created by a real transaction of   
suretyship or conveyance1 perhaps by    
calling the people to witness so that   
there is an affront to the state if they
 are called upon in vain4  ,when contact
 with ,greek philosophers set the ,roman
 jurists to thinking about the basis of 
obligation1 there were two sorts of     
promises3 7#a7 ,formal promises1 7a7 by 
stipulation1 using the sacramental word 
spondeo and thus assuming the pouring   
out of a libation that the gods might   
take notice of the promise1 7b7 by      
public ceremony apparently symbolizing a
 real transaction before the whole      
people1 7c7 entered upon the household  
books of account1 and 7#b7 mere informal
 promises not recognized by law4 ,the   

latter depended wholly on the good faith
 of the maker since the law had put down
 self-help which formerly had been      
available to the promisee4 ,accordingly 
,roman jurists distinguished civil      
obligations and natural                 
obligations--those recognized and       
secured legally and those which         
primarily had only a moral efficacy4 ,a 
nudum pactum or mere agreement or mere  
promise1 not clothed with legal efficacy
 because it did not come within any of  
the categories of legal transactions    
sanctioned by the ius ciuile1 created   
only a natural obligation4 ,it was right
 and just to adhere to such a pact1 but 
only contracts1 undertakings recognized 
by law because of their form or nature1 
were enforceable4  ,with increasing     
pressure of the social interest in the  
security of transactions through        
economic development and commercial     
expansion1 the natural-law philosophy   
slowly affected this simple scheme of   
formal undertakings legally recognized  

and enforceable and informal            
undertakings of only moral efficacy1 and
 brought about the complicated system of
 enforceable undertakings in the        
maturity of ,roman law with which you   
are familiar4 ,four features of this    
movement are noteworthy4 ,in the first  
place it led to a juristic theory of    
formal contract which has affected our  
ideas ever since4 ,in the strict law the
 source of obligation was in the form   
itself4 ,for in primitive thinking forms
 have an intrinsic efficacy4 ,it has    
often been pointed out that the faith in
 legal forms belongs to the same order  
of thought as faith in forms of         
incantation and that legal forms are    
frequently symbols to be classed        
psychologically with the symbols of     
magic4 ,the stage of equity and natural 
law1 relying on reason rather than on   
form1 governed by philosophy instead of 
by nave faith1 looked for the substance 
and found it in a pact preceding and    
presupposed by the formal ceremony4     

,thus a formal contract was a pact with 
the addition of legal form4 ,the pact   
was the substance of the transaction4   
,the form was a causa ciuilis or legal  
reason for enforcing the pact4 ,but if  
the form was only a legal reason for    
enforcing something that got its natural
 efficacy in another way1 it followed   
that there might well be other legal    
reasons for enforcement besides form4   
,consequently new categories of contract
 were added to the old formal contracts 
and it is significant that while the    
latter were transactions stricti iuris  
the former were considered transactions 
bonae fidei involving liability to what 
good faith demanded in view of what had 
been done4 ,in the scope of their       
obligation these contracts responded    
exactly to the postulate of civilized   
society that those with whom we deal    
will act in good faith and will carry   
out their undertakings according to the 
expectations of the community4 ,on the  
other hand the old formal contracts     

responded thereto in part only since    
their obligation was one to do exactly  
what the terms of the form called for1  
no more and no less4 ,when one makes    
nexum1 said the ,twelve ,tables1 as he  
says orally so be the law4 ,new         
categories were added in successive     
strata1 as it were1 and juristic science
 sought afterward to reduce them to     
system and logical consistency4 ,thus   
real contracts1 consensual contracts and
 innominate contracts were added4 ,but  
it is evident that many of these are    
juristic rationalizings of what had been
 done for a long time through formal    
transactions4 ,thus the consensual      
contract of sale with its implied       
warranties rationalizes transfer by     
traditio with stipulations for the price
 and for warranties4 ,the real contract 
of depositum rationalizes fiducia cum   
amico4 ,the real contract of mutuum     
rationalizes pecunia credita4 ,but the  
latter was so thoroughly established as 
a formal transaction that the case of a 

loan of money1 analytically a real      
contract1 preserved the incidents of the
 strict law4 ,moreover certain pacts1   
pacta adiecta1 pacta praetoria1 became  
actionable which do not fit into the    
analytical scheme of the ,institutes4   
,for example1 a causa or reason for     
enforcing these pacts was found in their
 being incidental to something else or  
in a pre-existing natural obligation    
which they undertook to satisfy4 ,there 
still remained natural obligations which
 had not been given legal efficacy as   
the basis of actions4 ,the mere will of 
the person who undertook or the claim of
 the promisee was not a reason for      
enforcing4 ,yet in reason they were     
morally binding and the legal and moral 
should coincide4 ,hence they might be   
used defensively or as the basis of a   
set-off4 ,meanwhile the forms of        
stipulation and of literal contract had 
been reduced to their lowest terms by   
conceiving them in terms of substance1  
and taking orally expressed agreement to

 be the substance of the one and writing
 to be the substance of the other4 ,the 
results have defied analysis although   
the best that juristic ingenuity could  
do has been expended upon them for      
centuries4  ,in the ,middle ,ages       
primitive ideas came back for a time    
through ,germanic law4 ,general security
 in its lowest terms of peace and order 
was the pressing social interest4 ,there
 was little commercial activity4 ,the   
civilization of the time did not involve
 the corollaries of our jural postulate4
 ,religiously sanctioned undertakings by
 promissory oath and real transactions  
of pledge of person or property and of  
exchange gave rise to a simple system of
 formal undertakings4 ,out of these came
 a theory of causa debendi1 or reason   
for owing the promised performance1     
which has had a profound influence upon 
subsequent thinking4 ,the ,roman causa  
ciuilis was a legal reason for enforcing
 a pact4 ,under the influence of the    
,germanic idea causa becomes a reason   

for making the pact1 the good reason for
 making it furnishing a sufficient      
reason for enforcing it4 ,for a time it 
seemed that the church might succeed in 
establishing a jurisdiction over        
promises4 ,oaths and vows involved      
religious duties and might well be      
claimed as the province of the          
spiritual4 ,but the moral obligation of 
pacts1 binding the conscience of a      
,christian1 might also be cognizable by 
a zealous corrector of the conduct of   
the faithful for their soul's welfare4  
,had not the power of the canon law     
broken down and the law of the state    
developed rapidly in respect of the     
security of transactions after the      
sixteenth century1 the law of contracts 
might have grown along religious instead
 of along philosophical lines1 and      
perhaps not to its advantage4 ,as it is1
 one need but read ,doctor and ,student 
with the title de pactis of the ,corpus 
,iuris ,canonici and casuist writings as
 to the moral efficacy of promises      

before him1 to see that religion paved  
the way for much that was done presently
 in the name of philosophy4  ,to the    
jurists of the seventeenth and          
eighteenth centuries no distinction     
between natural obligations and civil   
obligations was maintainable since all  
natural rights or obligations must for  
the very reason that they were natural  
be legal also4 ,if it was morally       
obligatory that one adhere to a pact1   
then it must be treated as a contract4  
,however much systematized analytically1
 the ,roman categories of contract did  
not deal with undertakings from this    
standpoint4 ,what the jurists desired   
was not analytical categories but a     
principle upon which men were to be held
 or not to be held upon their promises4 
,thus the philosophy of contract1 the   
principles underlying the binding force 
of promises and agreements1 became the  
chief problem of philosophical          
jurisprudence of the seventeenth        
century1 as interests of personality    

were the chief subject of discussion in 
the eighteenth century1 and interests of
 substance1 the philosophy of the law of
 property1 the chief subject of         
discussion in the nineteenth century4   
,the decisive element in                
seventeenth-century thought as to       
contract was the idea of natural law2   
the idea of deduction from the nature of
 man as a moral creature and of legal   
rules and legal institutions which      
expressed this ideal of human nature4   
,but the idea was put to work upon      
existing materials and the result was a 
reciprocal influence of the conception  
of enforcing promises as such because   
morally binding1 on the one hand1 shaped
 to some extent by canon law and casuist
 discussions of what promises were      
binding in conscience and when1 and the 
ideas of nudum pactum and causa debendi 
on the other hand4 ,roman law was       
assumed to be embodied reason4 ,as      
,d',aguesseau put it1 ,rome was ruling  
by her reason1 having ceased to rule by 

her authority4 ,hence all consideration 
of the subject starts with the          
assumption that there are morally naked 
agreements which for that reason are to 
be naked legally4 ,where there was an   
exchange of promises there was the      
authority of ,justinian for enforcement 
7synallagma7 and it was easy to find a  
reason in the analogy of exchange of    
property4 ,where something was exchanged
 for a promise1 that something was a    
causa debendi4 ,but suppose there was no
 exchange of promises nor was anything  
exchanged for the promise4 ,there was   
nothing but a promise assented to4 ,in  
,roman law this would have to take the  
form of a stipulation4 ,in the ,germanic
 law it would have required an oath or  
the form of a real transaction of pledge
 or exchange4 ,at common law it required
 delivery of a sealed instrument4       
,clearly there was no moral efficacy    
inherent in these forms4 ,why should    
these abstract promises be enforced and 
not others8 ,should every such promise  

be enforced or should none be enforced  
without something in the way of         
exchange1 or should such promises be    
classified for the purpose of           
enforcement1 and if so1 how8  ,two      
theories arose in the seventeenth       
century4 ,one may be called the theory  
of an equivalent4 ,this theory is       
obviously a rationalization of the      
,germanic causa debendi influenced by   
canon law and casuist writings4         
,according to this theory an abstract   
promise1 no equivalent having been given
 for it1 is not naturally and hence is  
not legally binding4 ,three reasons have
 been given for this which have figured 
in juristic discussion of the subject   
ever since4 ,it was said that one who   
trusts another who makes a promise for  
no equivalent does so rashly4 ,he cannot
 ask to be secured in such an unfounded 
expectation4 ,this is too much in the   
spirit of the strict law4 ,it denies any
 interest except where the law secures  
it4 ,it says that if the law does not   

secure the interest1 one is a fool to   
rely on the promise and so has no       
interest4 ,in like manner the strict law
 said that if one gave his formal       
undertaking through fraud or mistake or 
coercion1 he was a fool or a coward and 
was not to be helped4 ,but we cannot    
prove the interest by the law4 ,we must 
measure the law with reference to the   
interest4 ,again it was said that if one
 promises without equivalent he does so 
more from ostentation than from real    
intention and so an equivalent shows    
that he acted from calculation and      
deliberately4 ,it is only deliberate    
promises that are morally binding1 for  
only such promises are relied upon by   
the prudent1 upright man in his         
intercourse with his neighbors4 ,if this
 reason is sound1 equivalent is only a  
mode of proving deliberation and the    
real point should be that the promise   
was made deliberately as something by   
which the maker expected to be bound1   
not that the deliberation was evidenced 

in a particular way by an equivalent4 ,a
 third reason was that one who parted   
with an equivalent in exchange for or in
 reliance on a promise is injured in his
 substance if the promise is not kept4  
,but if this is the reason1 the law     
should simply require restitution in    
case of non-performance4 ,if the        
interest involved is the deduction from 
substance through rendering the         
equivalent1 the obligation should be    
quasi ex contractu rather than ex       
contractu4  ,our ,anglo-,american law of
 contracts was much influenced by this  
theory of equivalents4 ,in the          
seventeenth century four types of       
promise were legally enforceable at     
common law3 7#a7 ,a formal              
acknowledgment of indebtedness by bond  
under seal1 often conditioned upon      
performance of a promise for which it   
was a security1 7#b7 a covenant or      
undertaking under seal1 7#c7 the real   
contract of debt1 and 7#d7 a simple     
promise upon consideration1 that is1 in 

exchange for an act or for another      
promise4 ,the first conclusively        
acknowledged an equivalent1 in the      
second it could be said that the seal   
presupposed or implied one1 in the third
 the obligation arose from the detention
 of something by him to whom it had been
 delivered1 and in the fourth the act or
 counter-promise was the motive or      
consideration for the promise and as a  
cause of or reason for making it was the
 equivalent for which the promisor chose
 to assume the undertaking4 ,with some  
aid from a dogmatic fiction in the case 
of covenants1 the common law could be   
adjusted to this theory reasonably well4
 ,accordingly as far back as ,bacon we  
find consideration treated from this    
standpoint in the ,english books4 ,but  
it was never a satisfactory explanation4
 ,if the theory was sound it ought not  
to matter whether the equivalent was    
rendered before the promise or after it 
or simultaneously with it4 ,indeed1     
,english equity in the nineteenth       

century took subsequent action in       
reliance upon a promise of a gift to be 
a common-law consideration on the basis 
whereof the promise was specifically    
enforceable4 ,equity never wholly       
adopted this or any other theory4 ,at   
least after the middle of the eighteenth
 century equity was supposed to follow  
the law as to what was a contract4 ,but 
the common law was not settled till the 
nineteenth century and we find the      
chancellors using consideration         
frequently to mean not equivalent but   
any reason for making the promise and   
thus making it synonymous with the      
civilian's causa4 ,the so-called        
meritorious consideration1 consideration
 of blood and of love and affection1 and
 the cases of promises sustained by     
moral obligation of a debtor to secure  
his creditor1 of a husband to settle    
property on his wife and of a parent to 
provide for a child1 show the idea of   
causa at work in equity4 ,it is         
significant that ,doctor and ,student   

was often cited in these connections4   
,the most thoroughgoing attempt to apply
 the equivalent theory to be found in   
the books is ,langdell's working out of 
a system of the so-called conditions    
implied in law or dependent promises on 
that basis4 ,as an example of vigorous  
legal analysis it rivals ,austin4 ,but  
it did not succeed in shaping the law4  
,on the ,continent the second theory1   
the theory of the inherent moral force  
of a promise made as such1 came to      
prevail4 ,this was the theory of        
,grotius4 ,it was generally adopted by  
,continental writers of the eighteenth  
century and1 as has been seen1 it broke 
down the ,roman categories and led to   
the rule that a promise as such1        
intending a legal transaction1 created  
legal obligation4 ,at the end of the    
eighteenth century ,lord ,mansfield came
 very near establishing it in our law by
 his doctrine that no promise made as a 
business transaction could be nudum     
pactum4 ,but he was too late4 ,growth   

stopped for a season and the nineteenth 
century set itself to systematize and   
harmonize what it had received rather   
than to carry the development further4  
,when the natural-law foundation of     
enforcing promises crumbled1 the        
metaphysical jurists sought to provide a
 new one4 ,kant said that it was        
impossible to prove that one ought to   
keep his promise1 considered merely as a
 promise1 and deduced contract from     
property as a form of conveyance or     
alienation of one's substance involved  
in the very idea of individual rights4  
,so far as consistent with abstract     
freedom of will according to a universal
 law one might alienate his services as 
well as his property1 and an undertaking
 to perform something was an alienation 
of that sort4 ,this view was generally  
taken so that while the seventeenth     
century sought to rest rights upon      
contract and the eighteenth century     
rested contract on the inherent moral   
significance of a promise1 the          

nineteenth century1 making the          
philosophy of property the important    
thing1 rested contract on property4     
,three of these theories are worth a    
moment's notice4  ,fichte says that the 
duty of performing an agreement arises  
when one party thereto begins to act    
under it4 ,juristically this seems to be
 a rationalization of the ,roman        
innominate contract4 ,there1 in case a  
pact was performed on one side1 he who  
performed might claim restitution quasi 
ex contractu or claim the               
counter-performance ex contractu4       
,philosophically the idea seems to be   
that of the equivalent theory1 in the   
form with which we are familiar in      
,anglo-,american discussion of this     
subject as the injurious-reliance       
theory4 ,according to the latter1 unless
 the promisee has parted with an        
equivalent or has begun to act in       
reliance upon the agreement1 he has no  
moral claim to fulfilment4 ,this is not 
a theory of the law as it is or as it   

ever has been4 ,formal contracts require
 nothing of the sort4 ,it is true1      
,english equity1 under the influence of 
the equivalent theory1 did lay down in  
the nineteenth century that a contract  
under seal with no common-law           
consideration behind it would not be    
enforced4 ,but that proposition was     
subject to many exceptions when it was  
announced1 more have since developed and
 more are developing4 ,as things are1   
the exceptions are of more frequent     
application than the rule itself4 ,nor  
is ,fichte's theory a statement of moral
 ideas of his day or of ours4 ,then and 
now the moral duty to keep abstract     
promises was and is recognized4 ,that a 
man's word should be as good as his bond
 expresses the moral sentiment of       
civilized society4 ,but the philosopher 
saw that the law did not go so far and  
was trying to frame a rational          
explanation of why it fell short4 ,it   
should be noticed that ,fichte is really
 trying to show why a promise may be    

regarded as a part of one's substance   
and why one's claim to performance may  
be treated as his property4  ,hegel also
 explains contract in terms of property1
 treating a promise as a disposition of 
one's substance4 ,hence in his view the 
so-called abstract promise is a mere    
subjective qualification of one's will  
which he is at liberty to change4 ,this 
theory and the foregoing assume the     
,roman law or the older law of          
,continental ,europe1 and speak from the
 reaction from natural law which in     
,england at the same time was overruling
 the liberal doctrines of ,lord         
,mansfield4  ,later metaphysical jurists
 rely upon the idea of personality4 ,the
 ,romanist thinks of a legal transaction
 as a willing of some change in a       
person's sphere of rights to which the  
law1 carrying out his will1 gives the   
intended effect4 ,if the transaction is 
executed1 revocation would involve      
aggression upon the substance of        
another4 ,if it is executory1 however1  

why should the declared intent that the 
change take place in the future be      
executed by law despite the altered will
 of the promisor8 ,some say that this   
should be done where there is a joint   
will from which only joint action may   
recede4 ,where the parties have come to 
an agreement1 where their wills have    
been at one1 the law is to give effect  
to this joint will as a sort of         
vindication of personality4 ,it is      
evident1 however1 that this explanation 
assumes the will theory1 the subjective 
theory of legal transactions4 ,if we    
start from the objective theory it      
breaks down4 ,take for instance the case
 of an offer1 which a reasonable man    
would understand in a given way1        
accepted by the offeree in that         
understanding when the offerer really   
meant something else4 ,or take the case 
of an offer wrongly transmitted by      
telegraph and accepted in good faith as 
it is transmitted4 ,here there is no    
community of will and yet the law may   

well hold1 as we do in ,america1 in both
 cases1 that there is a contract4 ,no   
metaphysical theory has prevailed to    
prevent the steady march of the law and 
of juristic thought in the direction of 
an objective doctrine of legal          
transactions4 ,nowhere1 indeed1 has the 
deductive method broken down so         
completely as in the attempt to deduce  
principles upon which contracts are to  
be enforced4  ,later in the nineteenth  
century men came to think more about    
freedom of contract than about          
enforcement of promises when made4 ,to  
,spencer and the mechanical positivists1
 conceiving of law negatively as a      
system of hands off while men do things1
 rather than as a system of ordering to 
prevent friction and waste so that they 
may do things1 the important institution
 was a right of free exchange and free  
contract1 deduced from the law of equal 
freedom as a sort of freedom of economic
 motion and locomotion4 ,justice        
required that each individual be at     

liberty to make free use of his natural 
powers in bargains and exchanges and    
promises except as he interfered with   
like action on the part of his fellow   
men1 or with some other of their natural
 rights4 ,whether all such transactions 
should be enforced against him or only  
some1 and if the latter1 which1 are     
questions belonging to an affirmative   
rather than to a negative science of    
law4  ,historical jurists accepted the  
will theory and have been its leading   
advocates in modern times4 ,they saw    
that the whole course of legal history  
had been one of wider recognition and   
more effective enforcement of promises4 
,those who accepted the ethical         
idealistic interpretation of legal      
history could see freedom as an ethical 
idea realizing itself in a larger       
freedom of self-assertion and           
self-determination through promises and 
agreements and a wider giving effect to 
the will so asserted and determined4    
,for the most part they wrote on the    

,continent where the field of legally   
enforceable promises had ceased to be   
bounded by a narrow fence of ,roman     
historical categories4 ,thus they had no
 call to rationalize dogmas of not      
enforcing promises made as business     
transactions4 ,those who accepted the   
political interpretation saw freedom as 
a civil or political idea realizing     
itself in a progress from status to     
contract in which men's duties and      
liabilities came more and more to flow  
from willed action instead of from the  
accident of social position recognized  
by law4 ,the ,english historical jurists
 might well have asked how far ,english 
rules as to consideration were consonant
 with the implications of such a theory1
 and whether they must not be expected  
to give way as the idea unfolded more   
completely in experience of popular     
action and judicial decision4 ,but the  
leader of this school was not a         
common-law lawyer and the ,american     
historical jurists devoted their        

energies to devising a                  
historical-analytical theory of         
consideration rather than to the wider  
question of what promises should be     
enforced and why4  ,here as in other    
places the historical jurist and the    
utilitarian were in agreement as to     
results although they differed widely as
 to the mode of reaching them4 ,the     
former saw in contract a realization of 
the idea of liberty4 ,the latter saw in 
it a means of promoting that maximum of 
individual free self-assertion which he 
took to be human happiness4 ,hence the  
former called for freedom of contract   
and should have called for wide general 
enforcement of promises4 ,the latter    
held to a doctrine of unshackling men   
and allowing them to act as freely as   
possible1 which involved the            
complementary position of extending the 
sphere and enforcing the obligation of  
contract4 ,the difference between these 
ways of thinking and those of the end of
 the eighteenth century is brought out  

if we compare ,blackstone 7#agfe7 with a
 dictum of ,sir ,george ,jessel a       
century later 7#ahge74 ,the former says 
that the public is in nothing so        
essentially interested as in securing to
 every individual his private rights4   
,the latter1 discussing a question of   
what agreements are against public      
policy and therefore unenforceable1     
says3 ,if there is one thing more than  
another which public policy requires it 
is that men of full age and competent   
understanding shall have the utmost     
liberty of contracting and that such    
contracts shall be enforced by courts of
 justice4 ,but the utilitarians put the 
emphasis upon the first1 the negative1  
rather than upon the second1 the        
affirmative1 part of this twofold       
program4 ,this is true also of the      
historical jurists and of the           
positivists4 ,the ,english trader and   
entrepreneur was not seeking for legal  
instruments4 ,he could work passably    
with those which the law furnished if   

the law would but let him4 ,what he     
sought was to be free from legal        
shackles which had come down from a     
society of a different nature organized 
on a different basis and with other     
ends4 ,hence juristic thought addressed 
itself to this for a season rather than 
to the doctrine of consideration and the
 reason for non-enforcement of          
deliberate promises where not put in the
 form of bargains4  ,no one of the four 
theories of enforcing promises which are
 current today is adequate to cover the 
whole legal recognition and enforcement 
of them as the law actually exists4     
,putting them in the order of their     
currency1 we may call them 7#a7 the will
 theory1 7#b7 the bargain theory1 7#c7  
the equivalent theory1 7#d7 the         
injurious-reliance theory4 ,that is1    
promises are enforced as a giving effect
 to the will of those who agree1 or to  
the extent that they are bargains or    
parts of bargains1 or where an          
equivalent for them has been rendered1  

or where they have been relied on by the
 promisee to his injury1 according to   
the theory chosen4 ,the first is the    
prevailing theory among civilians4 ,but 
it must give way before the onward march
 of the objective theory of legal       
transactions and is already fighting a  
rear-guard action4 ,in our law it is    
impossible4 ,we do not give effect to   
promises on the basis of the will of the
 promisor1 although our courts of equity
 have shown some tendency to move in    
that direction4 ,the attempt in the     
nineteenth century to ,romanize our     
theories of liability involved a        
,romanized will-theory of contract4 ,but
 no one who looks beneath the surface of
 our law reports can doubt that the     
attempt has failed wholly4 ,we no longer
 seek solutions on every side through a 
pedantic ,romanized law of bailments and
 in the law of bailments itself we are  
coming to talk in common-law terms of   
negligence in view of the circumstances 
and not in ,romanist terms of the willed

 standard of diligence and corresponding
 degrees of negligence4 ,in ,america1 at
 least1 the objective theory of contract
 is orthodox and the leader of ,english 
analytical jurists of the present       
generation has expounded it zealously4  
,courts of equity1 which inherit modes  
of thought from the time when the       
chancellor searched the conscience of a 
defendant by an examination under oath1 
and believed he could reach subjective  
data that were beyond the cognizance of 
a jury1 are the last stronghold of the  
exotic subjective theory in the common  
law4  ,probably the bargain theory is   
the one most current in common-law      
thinking4 ,it is a development of the   
equivalent theory4 ,it will not cover   
formal contracts but under its influence
 the formal contracts have been slowly  
giving way4 ,the seal imports a         
consideration4 ,legislation has         
abolished it in many jurisdictions and  
often it does no more than establish a  
bargain prima facie1 subject to proof   

that there was in fact no consideration4
 ,courts of equity require a common-law 
consideration1 at least on the face of  
their general rule1 before they will    
enforce a sealed contract4 ,also the    
formal contracts of the law merchant are
 subject to defeat by showing there was 
no consideration1 except when in the    
hands of holders for value without      
notice4 ,here1 however1 consideration is
 used in the sense of equivalent1 to the
 extent of admitting a past             
consideration1 and the bargain theory1  
appropriate to simple contracts1 is not 
of entire application4 ,on the other    
hand the extent to which courts today   
are straining to get away from the      
bargain theory and enforce promises     
which are not bargains and cannot be    
stated as such is significant4          
,subscription contracts1 gratuitous     
promises afterwards acted on1 promises  
based on moral obligations1 new promises
 where a debt has been barred by        
limitation or bankruptcy or the like1   

the torturing of gifts into contracts by
 equity so as to enforce pacta          
donationis specifically in spite of the 
rule that equity will not aid a         
volunteer1 the enforcement of gratuitous
 declarations of trust1 specific        
enforcement of options under seal       
without consideration1 specific         
performance by way of reformation in    
case of security to a creditor or       
settlement on a wife or provision for a 
child1 voluntary relinquishment of a    
defense by a surety and other cases of  
waiver1 release by mere acknowledgment  
in some states1 enforcement of gifts by 
way of reformation against the heir of a
 donor1 mandates where there is no res1 
and stipulations of parties and their   
counsel as to the conduct of and        
proceedings in litigation--all these    
make up a formidable catalogue of       
exceptional or anomalous cases with     
which the advocate of the bargain theory
 must struggle4 ,when one adds          
enforcement of promises at suit of      

third-party beneficiaries1 which is     
making headway the world over1 and      
enforcement of promises where the       
consideration moves from a third person1
 which has strong advocates in ,america 
and is likely to be used to meet the    
exigencies of doing business through    
letters of credit1 one can but see that 
,lord ,mansfield's proposition that no  
promise made as a business transaction  
can be nudum pactum is nearer           
realization than we had supposed4  ,yet 
the equivalent theory and the           
injurious-reliance theory are even less 
adequate to explain the actual law4 ,the
 equivalent theory must wrestle at the  
outset with the doctrine that inadequacy
 of consideration is immaterial so that 
the equivalency is often ,pickwickian4  
,hegel could argue for it on the basis  
of the ,roman laesio enormis4 ,but when 
a court of equity is willing to uphold a
 sale of property worth #bj1jjj for     
#bjj1 even a dogmatic fiction is        
strained4 ,moreover the catalogue of    

anomalies with which the bargain theory 
must wrestle contains more than one     
difficulty for the adherent of either   
theory4 ,stipulations in the course of  
litigation do not need equivalents nor  
do they need to be acted on in order to 
be enforceable4 ,a release by mere      
acknowledgment1 when good at all1 needs 
no equivalent and need not be acted on4 
,waiver by a surety of the defense of   
release by giving time to the principal 
needs no element of consideration nor of
 estoppel4 ,defectively executed        
securities1 settlements and advancements
 need no equivalent and need not be     
acted on in order to be reformed4       
,options under seal are held open in    
equity on the basis of the seal alone4  
,a gratuitously declared trust creates  
an obligation cognizable in equity      
without more4 ,in truth the situation in
 our law is becoming much the same as   
that in the maturity of ,roman law and  
for the same reason4 ,we have three main
 categories4 ,first1 there are formal   

contracts1 including sealed instruments1
 recognizances1 and the formal contracts
 of the law merchant1 in which latter   
the form consists in the use of certain 
words1 requirements as to sum certain1  
payment at all events1 and certainty as 
to time4 ,second1 there are the real    
contracts of debt and bailment4 ,third1 
there are simple contracts1 without form
 and upon consideration4 ,the latter is 
the growing category although the formal
 contracts of the law merchant have     
shown some power of growth and the      
business world has been trying to add   
thereto letters of credit using the     
formal words confirmed or irrevocable4  
,but the category of enforceable simple 
promises defies systematic treatment as 
obstinately as the actionable pacts in  
,roman law4 ,successive additions at    
different times in the endeavor of      
courts to hold men to their             
undertakings1 in view of the social     
interest in the security of transactions
 and the jural postulates of the        

civilization of the day1 proceed on all 
manner of different theories and        
different analogies and agree only in   
the result--that a man's word in the    
course of business should be as good as 
his bond and that his fellow men must be
 able to rely on the one equally with   
the other if our economic order is to   
function efficiently4 ,it is evident    
that many courts consciously or         
subconsciously sympathize with ,lord    
,dunedin's feeling that one can have no 
liking for a doctrine which enables a   
promisor to snap his fingers at a       
promise deliberately made1 fair in      
itself1 and in which the person seeking 
to enforce it has a legitimate interest 
according to the ordinary understanding 
of upright men in the community4 ,it is 
significant that although we have been  
theorizing about consideration for four 
centuries1 our texts have not agreed    
upon a formula of consideration1 much   
less our courts upon any consistent     
scheme of what is consideration and what

 is not4 ,it means one thing--we are not
 agreed exactly what--in the law of     
simple contracts1 another in the law of 
negotiable instruments1 another in      
conveyancing under the ,statute of ,uses
 and still another thing--no one knows  
exactly what--in many cases in equity4  
,letters of credit afford a striking    
illustration of the ill-adaptation of   
our ,american common law of contract to 
the needs of modern business in an urban
 society of highly complex economic     
organization4 ,well known abroad and    
worked out consistently on general      
theories in the commercial law of       
,continental ,europe1 these instruments 
came into use in this country on a large
 scale suddenly during the war4 ,there  
was no settled theory with respect to   
them in our books and the decisions     
warranted four or five views leading to 
divergent results in matters of vital   
moment to the business man who acted on 
them4 ,characteristically the business  
world set out to make of them formal    

contracts of the law merchant by the use
 of certain distinctive words which gave
 the instruments character and made     
their nature clear to those who         
inspected them anywhere in the world4   
,but for a season our category of       
mercantile specialties had ceased to    
admit of growth and the doctrine of     
consideration with its uncertain lines  
stood in the way of many things which   
the exigencies of business called for   
and business men found themselves doing 
in reliance on each other's business    
honor and the banker's jealousy of his  
business credit1 with or without        
assistance from the law4 ,certainly no  
one would say that such a situation     
bears witness to wise social engineering
 in an economically organized society   
resting on credit4  ,two circumstances  
operate to keep the requirement of      
consideration alive in our law of simple
 contract4 ,one is the professional     
feeling that the common law is the legal
 order of nature1 that its doctrines in 

an idealized form are natural law and   
that its actual rules are declaratory of
 natural law4 ,this mode of thinking is 
to be found in all professions and is a 
result of habitual application of the   
rules of an art until they are taken for
 granted4 ,in law it is fortified by the
 theory of natural law which has        
governed in our elementary books since  
,blackstone1 was taught to all lawyers  
until the present century1 and is       
assumed in much of our judicial         
decision4 ,later it was strengthened by 
the theories of the historical school   
which ruled in our law schools in the   
last quarter of the nineteenth century  
and taught us to think that growth must 
inevitably follow lines which might be  
discovered in the ,year ,books4 ,these  
things co-operated with the temper of   
the last century and the instinctive    
aversion of the lawyer to change1 lest  
in some unperceived way a door be opened
 to magisterial caprice or to the       
personal equation of the judge4 ,thus   

some thought of consideration1 whatever 
it was1 as inherent in the very idea of 
enforceable promises4 ,others assumed   
that it was a historically developed    
principle by which the future evolution 
of the law of contracts must be         
governed4 ,many others simply thought   
that it was dangerous to talk of change4
 ,and yet change has gone on rapidly1 if
 subconsciously1 until the present      
confused mass of unsystematized and     
unsystematizable rules has resulted4    
,the second circumstance operating to   
keep alive the requirement of           
consideration is a more legitimate      
factor4  ,nowhere could psychology      
render more service to jurisprudence    
than in giving us a psychological theory
 of nuda pacta4 ,for there is something 
more than the fetish of a traditional   
,latin phrase with the hallmark of      
,roman legal science behind our         
reluctance to enforce all deliberate    
promises simply as such4 ,it should be  
compared with the reluctance of courts  

to apply the ordinary principle of      
negligence to negligent speech1 with the
 doctrine as to seller's talk1 with the 
limitations upon liability for oral     
defamation and with many things of the  
sort throughout our law4 ,all of these  
proceed partly from the attitude of the 
strict law in which our legal           
institutions first took shape4 ,but they
 have persisted because of a feeling    
that talk is cheap1 that much of what   
men say is not to be taken at face value
 and that more will be sacrificed than  
gained if all oral speech is taken      
seriously and the principles applied by 
the law to other forms of conduct are   
applied rigorously thereto4 ,this is    
what was meant when the writers on      
natural law said that promises often    
proceeded more from ostentation than    
from a real intention to assume a       
binding relation4 ,but this feeling may 
be carried too far4 ,undoubtedly it has 
been carried too far in the analogous   
cases above mentioned4 ,the rule of     

,derry v4 ,peek goes much beyond what is
 needed to secure reasonable limits for 
human garrulousness4 ,the standard of   
negligence1 taking into account the fact
 of oral speech and the character and   
circumstances of the speech in the      
particular case1 would amply secure     
individual free utterance4 ,so also the 
doctrine that one might not rely on     
another's oral representation in the    
course of a business transaction if he  
could ascertain the facts by diligence  
went much too far and has had to be     
restricted4 ,likewise we have had to    
extend liability for oral defamation4   
,accordingly because men are prone to   
overmuch talk it does not follow that   
promises made by business men in        
business dealings or by others as       
business transactions are in any wise   
likely to proceed from ostentation or   
that we should hesitate to make them as 
binding in law as they are in business  
morals4 ,without accepting the will     
theory1 may we not take a suggestion    

from it and enforce those promises which
 a reasonable man in the position of the
 promisee would believe to have been    
made deliberately with intent to assume 
a binding relation8 ,the general        
security is more easily and effectively 
guarded against fraud by requirements of
 proof after the manner of the ,statute 
of ,frauds than by requirements of      
consideration which is as easy to       
establish by doubtful evidence as the   
promise itself4 ,this has been          
demonstrated abundantly by experience of
 suits in equity to enforce oral        
contracts taken out of the ,statute of  
,frauds by great hardship and part      
performance4  ,revived philosophical    
jurisprudence has its first and perhaps 
its greatest opportunity in the         
,anglo-,american law of contracts4 ,the 
constantly increasing list of           
theoretical anomalies shows that        
analysis and restatement can avail us no
 longer4 ,indeed the lucid statement of 
,williston but emphasizes the inadequacy

 of analysis even when eked out by      
choice from among competing views and   
analytical restatements of judicial     
dogma in the light of results4 ,projects
 for restatement of the law are in the  
air4 ,but a restatement of what has     
never been stated is an impossibility   
and as yet there is no authoritative    
statement of what the law of            
consideration is4 ,nothing could be     
gained by a statement of it with all its
 imperfections on its head and any      
consistent analytical statement would   
require the undoing of much that the    
judges have done quietly beneath the    
surface for making promises more widely 
enforceable4 ,given an attractive       
philosophical theory of enforcement of  
promises1 our courts in a new period of 
growth will begin to shape the law      
thereby and judicial empiricism and     
legal reason will bring about a workable
 system along new lines4 ,the           
possibilities involved may be measured  
if we compare our old law of torts with 

its hard and fast series of nominate    
wrongs1 its distinctions growing out of 
procedural requirements of trespass and 
trespass on the case and its crude idea 
of liability1 flowing solely from       
causation1 with the law of torts at the 
end of the nineteenth century after it  
had been molded by the theory of        
liability as a corollary of fault4 ,even
 if we must discard the conception that 
tort liability may flow only from fault1
 the generalization did a service of the
 first magnitude not only to legal      
theory but to the actual administration 
of justice4 ,no less service will be    
rendered by the twentieth-century       
philosophical theory1 whatever it is1   
which puts the jural postulate of       
civilized society in our day and place  
with respect to good faith1 and its     
corollary as to promises1 in acceptable 
form1 and furnishes jurist and judge and
 lawmaker with a logical critique1 a    
workable measure of decision and an     
ideal of what the law seeks to do1      

whereby to carry forward the process of 
enlarging the domain of legally         
enforceable promises and thus enlarging 
on this side the domain of legal        
satisfaction of human claims4           
,bibliography   ,,lecture ,i  ,plato    
7,b4 ,c4 #dbg-cdg71 ,republic4  ----1   
,laws4      ,translations in ,jowett's  
,plato4 ,the translation of the         
,republic is published separately4      
,pseudo-,plato1 ,minos4      ,now       
generally considered not to be a genuine
 work of ,plato's     and variously     
dated from as early as c4 #ccg ,b4 ,c4  
to as late     as c4 #bej ,b4 ,c4 ,there
 is a convenient translation in ,bohn's 
,libraries4  ,aristotle 7,b4 ,c4        
#chd-cbb71 ,nicomachean ,ethics4        
,convenient translation by ,browne in   
,bohn's ,libraries4  ----1 ,politics4   
,translation by ,jowett should be used4 
,reference may be made to ,berolzheimer1
 ,system der ,rechts-     und           
,wirthschaftsphilosophie1 ,,ii1  #ac-af 
7,world's ,legal     ,philosophies1     

#df-gg72 ,hildenbrand1 ,geschichte und  
,system     der ,rechts- und            
,staatsphilosophie1  #a-aba4  ,cicero   
7,b4 ,c4 #ajf-dc71 ,de ,legibus4        
,reference may be made to ,berolzheimer1
 ,system der ,rechts-     und           
,wirthschaftsphilosophie1 ,,ii1  #ag-bj 
7,world's ,legal     ,philosophies1     
#gh-ib72 ,hildenbrand1 ,geschichte und  
,system der     ,rechts- und            
,staatsphilosophie1  #aca-ace1 #adc-adg2
 ,voigt1     ,das ,ius ,naturale1 aequum
 et bonum und ,ius ,gentium der ,rmer1  
,i1  #af1 #ce-da1 #dd-fd1 #hi-if4       
,thomas ,aquinas 7#abbe or #abbg-abgd71 
,summa ,theologiae4      ,convenient    
translation of the parts relating to law
 in     ,aquinas ,ethicus4              
,reference may be made to ,berolzheimer1
 ,system der ,rechts-     und           
,wirthschaftsphilosophie1 ,,ii1  #ba-bc 
7,world's ,legal     ,philosophies1     
#ic-aaa74  ,oldendorp1 ,iuris naturalis 
gentium et ciuilis ,greek3 eisagg       
7#aeci74  ,hemmingius 7,henemingsen7 ,de

 ,iure naturale apodictica methodus     
7#aefb74  ,winckler1 ,principiorum iuris
 libri ,v 7#afae74      ,these are      
collected conveniently in ,kaltenborn1  
,die ,vorlufer     des ,hugo ,grotius4  
,reference may be made to ,berolzheimer1
 ,system der ,rechts-     und           
,wirthschaftsphilosophie1 ,,ii1  #bd    
7,world's ,legal     ,philosophies1     
#aab-aad72 ,hinrichs1 ,geschichte der   
,rechts-     und ,staatsprincipien seit 
der ,reformation1 ,i1 #a-fj2            
,gierke1 ,johannes ,althusius1 #b ed41  
#ah-di1 #adb-afb1 #cba4  ,soto1 ,de     
justitia et iure 7#aehi74  ,suarez1 ,de 
legibus ac deo legislatore 7#afai74     
,reference may be made to ,figgis1      
,studies of ,political ,thought     from
 ,gerson to ,grotius1 ,lect4 ,v4        
,grotius1 ,de iure belli et pacis       
7#afbe74      ,whewell's edition with an
 abridged translation is convenient4    
,pufendorf1 ,de jure naturae et gentium 
7#afgb74      ,kennet's translation     
7#agjc7 may be found in several         

editions4  ,burlamaqui1 ,principes du   
droit naturel 7#agdg74      ,nugent's   
translation is convenient4  ,wolff1     
,institutiones juris naturae et gentium 
7#agej74  ,rutherforth1 ,institutes of  
,natural ,law 7#aged-agef74  ,vattel1   
,le droit des gens1 ,prliminaires       
7#ageh74      ,there are many           
translations of ,vattel4  ,rousseau1    
,contrat social 7#agfb74      ,tozer's  
translation is convenient4  ,blackstone1
 ,commentaries on the ,laws of ,england1
 ,introduction1 sect4 ,,ii 7#agfe74     
,reference may be made to ,berolzheimer1
 ,system der ,rechts-     und           
,wirthschaftsphilosophie1 ,,ii1  #be-bg1
 #bi 7,world's ,legal     ,philosophies1
 #aae-acd1 #ada-aef72 ,hinrichs1        
,geschichte der     ,rechts- und        
,staatsprincipien seit der ,reformation1
 ,i1 #fj-bgd1     ,,ii1 ,,iii1 #a-cah2  
,korkunov1 ,general ,theory of ,law1    
transl4 by     ,hastings1  #g2          
,charmont1 ,la renaissance du droit     
naturel1     #aj-dc4  ,hobbes1          

,leviathan 7#afea74  ,spinoza1 ,ethica  
7#afgd74  ----1 ,tractatus              
theologico-politicas 7#afgj74           
,elwes' translation of the two last in  
,bohn's ,libraries must     be used with
 caution4  ,bentham1 ,principles of     
,morals and ,legislation 7#aghj74       
,a convenient reprint is published by   
the ,clarendon ,press4  ----1 ,theory of
 ,legislation4 7,originally published in
 ,french1 #ahbj74 ,translated by        
,hildreth 7#ahfd71 and in many editions4
  ,mill1 ,on ,liberty 7#ahei74          
,courtney's edition 7#ahib7 is          
convenient4      ,reference may be made 
to ,duff1 ,spinoza's ,political and     
,ethical ,philosophy2 ,berolzheimer1    
,system der ,rechts- und                
,wirthschaftsphilosophie1 ,,ii1  #bh    
7,world's ,legal ,philosophies1         
#acd-ada72 ,dicey1 ,law and ,public     
,opinion in ,england1 ,lect4 #f2        
,albee1 ,history of ,english            
,utilitarianism2 ,stephen1 ,the         
,english ,utilitarians2 ,solari1 ,l'idea

 individuale e l'idea     sociale nel   
diritto privato1  #ca-cf4  ,kant1       
,metaphysische ,anfangsgrnde der        
,rechtslehre 7#b ed4 #agih74 ,translated
 by ,hastie as ,kant's ,philosophy of   
,law 7#ahhg74  ,fichte1 ,grundlage des  
,naturrechts 7#agif1 new ed4 by         
,medicus1 #aijh74 ,translated by        
,kroeger as ,fichte's ,science of       
,rights 7#ahhi74  ,hegel1 ,grundlinien  
der ,philosophie des ,rechts 7#ahba71   
ed4 by ,gans 7#ahdj71 new ed4 by ,lasson
 7#aiaa74 ,translated by ,dyde as       
,hegel's ,philosophy of ,right 7#ahif74 
,this translation must be used          
cautiously4  ,krause1 ,abriss des       
,systemes der ,philosophie des ,rechtes 
7#ahbh74  ,ahrens1 ,cours de droit      
naturel 7#ahcg1 #h ed4 #ahib74          
,twenty-four editions in seven          
languages4 ,the ,german #fth edition    
7,naturrecht1 #ahgj-ahga7 contains      
important matter not in the ,french     
editions4  ,green1 ,principles of       
,political ,obligation4 ,lectures       

delivered in #ahgi-ahhj4 ,reprinted from
 his ,complete ,works 7#aiaa74          
,lorimer1 ,institutes of ,law 7#b ed4   
#ahhj74  ,lasson1 ,lehrbuch der         
,rechtsphilosophie 7#ahhb74  ,miller1   
,lectures on the ,philosophy of ,law    
7#ahhd74  ,boistel1 ,cours de           
philosophie du droit 7#ahgj1 new ed4    
#ahii74  ,herkless1 ,lectures on        
,jurisprudence 7#aija74  ,brown1 ,the   
,underlying ,principles of ,modern      
,legislation 7#aiab74      ,mention may 
be made of ,beaussire1 ,les principes du
 droit     7#ahhh72 ,beudant1 ,le droit 
individuel et l'tat 7#ahia72 ,carle1    
,la vita del diritto 7#b ed4 #ahij72    
,dahn1 ,rechtsphilosophische            
,studien 7#ahhc72 ,giner y ,calderon1   
,filosofia del derecho     7#ahih72     
,harms1 ,begriff1 ,formen und           
,grundlegung der     ,rechtsphilosophie 
7#ahhi72 ,hennebicq1 ,philosophie de    
droit et     droit naturel 7#ahig72     
,herbart1 ,analytische ,beleuchtung des 
,naturrechts und der ,moral 7#ahcf72    

,jouffroy1 ,cours de droit     naturel  
7#e ed4 #ahgf72 ,kirchmann1             
,grundbegriffe des ,rechts     und der  
,moral 7#b ed4 #ahgc72 ,krause1 ,das    
,system der     ,rechtsphilosophie      
7posthumous1 ed4 by ,rder1 #ahgd72      
,miraglia1     ,filosofia del diritto   
7#c ed4 #aijc1 transl4 in ,modern ,legal
     ,philosophy ,series1 #aiab72 ,rder1
 ,grundzge des ,naturrechts     oder der
 ,rechtsphilosophie 7#b ed4 #ahfj72     
,rosmini1 ,filosofia     del diritto 7#b
 ed4 #ahfe72 ,rothe1 ,trait de droit    
naturel1     thorique et appliqu        
7#ahhd72 ,schuppe1 ,grundzge der ,ethik 
und ,rechtsphilosophie 7#ahha72 ,stahl1 
,philosophie des ,rechts     7#e ed4    
#ahgh72 ,tissot1 ,introduction          
historique et philosophique      l'tude 
du droit 7#ahge72 ,trendelenburg1       
,naturrecht auf dem     ,grunde der     
,ethik 7#ahfh72 ,vareilles-,sommires1   
,les principes     fondamentaux du droit
 7#ahhi72 ,wallaschek1 ,studien zur     
,rechtsphilosophie 7#ahhi74             

,reference may be made to ,gray1 ,nature
 and ,sources of the ,law1      #g-i2   
,bryce1 ,studies in ,history and        
,jurisprudence1 ,essay     #ab2         
,pollock1 ,essays in ,jurisprudence and 
,ethics1 #a-cj2     ,korkunov1 ,general 
,theory of ,law1 translated by          
,hastings1  #d2     ,bergbohm1          
,jurisprudenz und ,rechtsphilosophie1   
#f-ae2 ,pound1     ,the ,scope and      
,purpose of ,sociological               
,jurisprudence1 #bd     ,harvard ,law   
,rev41 #eja2 ,pound1 the ,philosophy of 
,law in     ,america1 ,archiv fr        
,rechts- und ,wirthschaftsphilosophie1  
,,vii1     #bac1 #bhe4  ,jhering1 ,der  
,zweck im ,recht 7#ahgg-ahhc1 #d ed4    
#aijd74 ,the first volume is translated 
by ,husik under the title ,law as a     
,means to an ,end 7#aiac74  ,jhering1   
,scherz und ,ernst in die ,jurisprudenz 
7#ahhd1 #i ed4 #aijd74      ,reference  
may be made to the appendices to        
,jhering1 ,law as a     ,means to an    
,end1 transl4 by ,husik2 ,berolzheimer1 

,system der     ,rechts- und            
,wirthschaftsphilosophie1 ,,ii1  #dc    
7,world's ,legal     ,philosophies1     
#cbg-cea72 ,korkunov1 ,general ,theory  
of ,law1     translated by ,hastings1   
#ac-ad2 ,tanon1 ,l'volution du droit    
et la conscience sociale 7#c ed4 #aiaa71
 pt4 ,i1 ch4 #c4  ,stammler1 ,ueber die 
,methode der geschichtlichen            
,rechtstheorie 7#ahhh74  ----1          
,wirthschaft und ,recht 7#ahif1 #b ed4  
#aije74  ----1 ,die ,gesetzmssigkeit in 
,rechtsordnung und ,volkswirthschaft    
7#aijb74  ----1 ,lehre von dem rechtigen
 ,rechte 7#aijb74  ----1 ,systematische 
,theorie der ,rechtswissenschaft        
7#aiaa74  ----1 ,rechts- und            
,staatstheorien der ,neuzeit 7#aiag74   
,del ,vecchio1 ,the ,formal ,bases of   
,law1 translated by ,lisle 7#aiad74 ,a  
translation of ,i presupposti filosofici
 della nozione del diritto 7#aije71 ,il 
concetto del diritto 7#aijf1 reprinted  
#aiab71 ,il concetto della natura e il  
principio del diritto 7#aijh74      ,for

 critiques of ,stammler1 see            
,berolzheimer1 ,system der     ,rechts- 
und ,wirthschaftsphilosophie1 ,,ii1  #dh
 7,world's ,legal     ,philosophies1    
#cih-dbb72 ,kantorowicz1 ,zur ,lehre vom
 richtigen     ,recht2 ,croce1          
,historical ,materialism and the        
,economics of     ,karl ,marx1 ch4 #b2  
,geny1 ,science et technique en droit   
priv     positif1 ,,ii1 #abg-acj2       
,binder1 ,rechtsbegriff und ,rechtsidee 
7#aiae72 ,binder1 ,kritische und        
metaphysische ,rechtsphilosophie1       
,archiv fr ,rechts- und                 
,wirthschaftsphilosophie1 ,,ix1 #adb1   
#bfg2     ,vinogradoff1 ,common ,sense  
in ,law1 ch4 #i4  ,kohler1              
,rechtsphilosophie und                  
,universalrechtsgeschichte1 in          
,holtzendorff1 ,enzyklopdie der         
,rechtswissenschaft1 ,i 7#f ed4 #aijd1  
#g ed4 #aiac74 7,not in prior editions47
  ,kohler1 ,lehrbuch der                
,rechtsphilosophie 7#aiji1 #b ed4       
#aiag74 ,translated by ,albrecht as     

,philosophy of ,law 7#aiad74  ,kohler1  
,moderne ,rechtsprobleme 7#aijg1 #b ed4 
#aiac74  ,berolzheimer1 ,system der     
,rechts-und ,wirthschaftsphilosophie    
7#aijd-aijg74 ,vol4 ,,ii1 history of    
juristic thought1 translated by ,jastrow
 7somewhat abridged7 under the title    
,the ,world's ,legal ,philosophies      
7#aiab71 ,vol4 ,,iii1 general system of 
legal and economic philosophy1 ,vol4    
,,iv1 philosophy of interests of        
substance1 ,vol4 ,v1 philosophy of      
criminal law1 are important for our     
purposes4      ,see also ,berolzheimer1 
,rechtsphilosophische ,studien 7#aijc72 
,barillari1 ,diritto e filosofia        
7#aiaj-aiab72 ,kohler1 ,das ,recht      
7#aiji72 ,kohler1 ,recht und            
,persnlichkeit in die ,kultur der       
,gegenwart 7#aiad74  ,radbruch1         
,grundzge der ,rechtsphilosophie        
7#aiad74  ,miceli1 ,principii di        
filosofia del diritto 7#aiad74          
,tourtoulon1 ,principes philosophiques  
de l'histoire du droit 7#aijh-aibj74    

,demogue1 ,notions fondamentales du     
droit priv 7#aiaa74  ,geny1 ,mthode     
d'interprtation et sources en droit priv
 positif 7#ahii1 #b ed4 #aiai74 ,a book 
of the first importance4  ----1 ,science
 et technique en droit priv positif     
7#aiac74  ,duguit1 ,l'tat1 le droit     
objectif et la loi positive 7#aija74    
----1 ,le droit social1 le droit        
individuel et la transformation de l'tat
 7#b ed4 #aiaa74  ----1 ,les            
transformations gnrales du droit priv   
7#aiab74 ,translated in ,continental    
,legal ,history ,series1 ,vol4 ,,xi1 ch4
 #c4  ----1 ,law and the ,state 7#aiag74
      ,reference may be made to ,modern 
,french ,legal ,philosophy     7#aiaf7  
in the ,modern ,legal ,philosophy       
,series2 ,jung1 ,das     ,problem des   
natrlichen ,rechts 7#aiab74      ,see   
also ,boucaud1 ,qu'est-ce que le droit  
naturel 7#aijf72     ,charmont1 ,la     
renaissance du droit naturel 7#aiaj72   
,charmont1     ,le droit et l'esprit    
democratique 7#aijh72 ,djuvara1 ,le     

fondement du phnomne juridique 7#aiac72 
,fabreguettes1 ,la     logique          
judiciaire et l'art de juger 7#aiad72   
,leroy1 ,la loi     7#aijh74            
,compare ,cathrein1 ,recht1 ,naturrecht 
und ,positives ,recht     7#aija74      
,see also ,cohen1 ,jus naturale         
redivivum1 ,philosophical ,rev41        
,,xxv1 #gfa 7#aiaf74  ,spencer1 ,justice
 7#ahia74      ,see also ,anzilotti1 ,la
 filosofia del diritto e la sociologia  
7#aijg72 ,brugi1 ,introduzione          
enciclopedica alle scienze              
giuridiche e sociale 7#d ed4 #aijg1 #a  
ed4 #ahij72 ,cosentini1     ,filosofia  
del diritto e sociologia 7#aije72       
,cosentini1     ,criticismo e           
positivismo nella filosofia del diritto 
7#aiab72     ,daguanno1 ,la genesi e    
l'evoluzione del diritto civile 7#ahij72
     ,eleutheropoulos1                  
,rechtsphilosophie1 ,sociologie und     
,politik     7#aijh72 ,fragapane1       
,obbietto e limiti della filosofia del  
diritto 7#ahig72 ,levi1 ,il diritto     

naturale nella filosofia di     ,r4     
,ardigo 7#aijd72 ,nardi ,greco1         
,sociologia giuridica 7#aijf72          
,porchat1 ,sociologia e direito 7#aijb72
 ,ratto1 ,sociologia e     filosofia del
 diritto 7#ahid72 ,vadale ,papale1 ,la  
filosofia del     diritto a base        
sociologica 7#ahhe72 ,vander ,eycken1   
,mthode     positive de l'interprtation 
juridique 7#aijg74  ,post1 ,der         
,ursprung des ,rechts 7#ahgf74  ----1   
,bausteine fr eine allgemeine           
,rechtswissenschaft 7#ahhj74  ----1 ,die
 ,grundlagen des ,rechts und die        
,grundzge seiner                        
,entwickelungsgeschichte 7#ahhd74       
,kuhlenbeck1 ,natrliche ,grundlagen des 
,rechts 7#aije74      ,a discussion of  
fundamental problems of jurisprudence   
from     the ,darwinian standpoint4     
,richard1 ,origine de l'ide de droit    
7#ahib74  ,vaccaro1 ,les bases          
sociologiques du droit et de l'tat      
7#ahih74 ,translation of ,le basi del   
diritto e dello stato 7#ahic74 ,a theory

 of law as the outcome of class         
struggles4      ,for critiques of the   
foregoing1 see ,tanon1 ,l'volution du   
droit et la conscience sociale 7#c ed4  
#aiaa72 ,tourtoulon1     ,principes     
philosophiques de l'histoire du droit   
7#aijh-aibj72     ,charmont1 ,la        
renaissance du droit naturel 7#aiaj74   
,tarde1 ,les transformations du droit   
7#f ed4 #aiji74 ,first published in     
#ahid4  ,vanni1 ,lezioni di filosofia   
del diritto 7#c ed4 #aijh74 ,first      
published in #aija-aijb4      ,see also 
,bonucci1 ,l'orientazione psicologica   
dell' etica e     della filosofia del   
diritto 7#aijg72 ,bozi1 ,die            
,weltanschauung     der ,jurisprudenz   
7#aijg1 #b ed4 #aiaa72 ,bozi1 ,die      
,schule der     ,jurisprudenz 7#aiaj72  
,cruet1 ,la vie du droit et             
l'impuissance     des lois 7#aiad72     
,grasserie1 ,principes sociologiques du 
droit     civil 7#aijf72 ,jellinek1 ,die
 sozialethische ,bedeutung von          
,recht1 ,unrecht und ,strafe 7#b ed4    

#aijh1 #ast ed4 #ahgh72     ,lagorgette1
 ,le fondement du droit 7#aijg72        
,miceli1 ,le fonti     del diritto dal  
punto di vista psichico-sociale 7#aije72
     ,miceli1 ,lezioni di filosofia del 
diritto 7#aijh74  ,holmes1 ,the ,path of
 the ,law1 #aj ,harvard ,law ,review1   
#dfg 7#ahig72 ,collected ,papers1       
#afg-bjb4  ,ehrlich1 ,soziologie und    
,jurisprudenz 7#aijc74  ,wurzel1 ,das   
juristische ,denken1 #ih-ajb 7#aijd74   
,translated in ,the ,science of ,legal  
,method 7,modern ,legal ,philosophy     
,series1 ,vol4 #i1 #dba-dbh74  ,gnaeus  
,flavius 7,kantorowicz71 ,der ,kampf um 
die ,rechtswissenschaft 7#aijf74        
,kantorowicz1 ,rechtswissenschaft und   
,soziologie 7#aiaa74  ,kelsen1 ,ueber   
,grenzen zwischen juristischer und      
soziologischer ,methode 7#aiaa74        
,brugeilles1 ,le droit et la sociologie 
7#aiaj74  ,rolin1 ,prolgomnes  la       
science du droit 7#aiaa74  ,ehrlich1    
,erforschung des lebenden ,rechts1 in   
,schmoller's ,jahrbuch fr ,gesetzgebung1

 ,,xxv1 #aij 7#aiaa74  ----1            
,grundlegung der ,soziologie des ,rechts
 7#aiac74  ----1 ,das lebende ,recht der
 ,vlker der ,bukowina 7#aiac74  ,page1  
,professor ,ehrlich's ,czernowitz       
,seminar of ,living ,law1 ,proceedings  
of ,fourteenth ,annual ,meeting of      
,association of ,american ,law ,schools1
 #df 7#aiad74  ,cosentini1 ,filosofia   
del diritto 7#aiad74  ,ehrlich1 ,die    
juristische ,logik 7#aiah74  ,kornfeld1 
,allgemeine ,rechtslehre und            
,jurisprudenz 7#aibj74      ,see also   
,cosentini1 ,la rforme de la lgislation 
civile     7#aiac7 7revised and         
augmented translation of ,la riforma    
della legislazione civile1 #aiaa72      
,kornfeld1 ,soziale                     
,machtverhltnisse1 ,grundzge einer      
allgemeinen ,lehre vom     positiven    
,rechte auf soziologischer ,grundlage   
7#aiaa72 ,levi1     ,la socit et l'ordre
 juridique 7#aiaa72 ,levi1 ,contributi  
ad una teoria filosofica dell' ordine   
giuridico 7#aiad74   ,,lecture ,,ii     

,miller1 ,the ,data of ,jurisprudence1  
ch4 #f4  ,salmond1 ,jurisprudence1  #i4 
,pulszky1 ,theory of ,law and ,civil    
,society1  #agc4  ,bentham1 ,theory of  
,legislation1 ,principles of the ,civil 
,code1 pt4 ,i1 ch4 #a-g4  ,holland1     
,jurisprudence1 ch4 #f4  ,kant1         
,philosophy of ,law 7,hastie's          
translation7 #de-df4  ,spencer1         
,justice1 ch4 #e-f4  ,willoughby1       
,social ,justice1 ch4 #b4  ,paulsen1    
,ethics 7,thilly's translation71 ch4 #i4
  ,gareis1 ,vom ,begriff ,gerechtigkeit4
  ,demogue1 ,notions fondamentales de   
droit priv1 #aai-ace4  ,picard1 ,le     
droit pur1 liv4 #i4  ,pound1 ,the ,end  
of ,law as ,developed in ,legal ,rules  
and ,doctrines1 #bg ,harvard ,law       
,review1 #aie4  ,holmes1 ,common ,law1  
,lect4 #a4  ,post1 ,ethnologische       
,jurisprudenz1 ,,ii1  #eh-ei4  ,fehr1   
,hammurapi und das ,salische ,recht1    
#ace-ach4  ,ames1 ,law and ,morals1 #bb 
,harvard ,law ,review1 #ig4  ,voigt1    
,das ,ius naturale1 aequum et bonum und 

,ius ,gentium der ,rmer1 ,i1 #cba-cbc4  
,stephen1 ,liberty1 ,equality1          
,fraternity1 #ahi-bee4  ,maine1 ,early  
,history of ,institutions 7,american    
ed471 #cih-djj4  ,ritchie1 ,natural     
,rights1 ch4 #ab4  ,demogue1 ,notions   
fondamentales de droit priv1 #fc-aaj1   
#acf-adb4  ,jhering1 ,scherz und ,ernst 
in die ,jurisprudenz 7#aj ed471         
#djh-dbe4  ,pound1 ,liberty of          
,contract1 #ah ,yale ,law ,journal1     
#ded4  ----1 ,the ,end of ,law as       
,developed in ,juristic ,thought1 #bg   
,harvard ,law ,review1 #fje1 #cj        
,harvard ,law ,review1 #bja4            
,berolzheimer1 ,the ,world's ,legal     
,philosophies1  #ag-bd4  ,figgis1       
,studies of ,political ,thought from    
,gerson to ,grotius1 ,lect4 #f4         
,berolzheimer1 ,the ,world's ,legal     
,philosophies1  #be-bg4  ,hobbes1       
,leviathan1 ch4 #ae4  ,berolzheimer1    
,the ,world's ,legal ,philosophies1     
#bi4  ,korkunov1 ,general ,theory of    
,law 7translated by ,hastings71  #g4    

,ritchie1 ,natural ,rights1 ch4 #c4     
,charmont1 ,la renaissance de droit     
naturel1 #aj-dc4  ,berolzheimer1 ,the   
,world's ,legal ,philosophies1  #ce-cg4 
,korkunov1 ,general ,theory of ,law     
7translated by ,hastings71 #cbj-cbb4    
,gray1 ,nature and ,sources of the ,law1
  #eh4  ,berolzheimer1 ,the ,world's    
,legal ,philosophies1  #bh4  ,mill1 ,on 
,liberty1 ch4 #d4  ,dicey1 ,law and     
,public ,opinion in ,england1 ,lect4 #f4
  ,berolzheimer1 ,the ,world's ,legal   
,philosophies1  #dc-dh1 #eb4  ,stammler1
 ,wesen des ,rechts und der             
,rechtswissenschaft 7in ,systematische  
,rechtswissenschaft1 i-lix74  ,kohler1  
,rechtsphilosophie und                  
,universalrechtsgeschichte1  #ac-af1    
#cc-cd1 #ea4   ,,lecture ,,iii  ,geny1  
,mthode d'interprtation et sources en   
droit priv positif 7#b ed4 #aiai74      
,vander ,eycken1 ,mthode positive de    
l'interprtation juridique 7#aijg74      
,mallieux1 ,l',exgse des codes 7#aijh74 
,ransson1 ,essai sur l'art de juger     

7#aiab74      ,see ,wigmore1 ,problems  
of ,law1 #fe-aja2 ,pound1 ,the          
,enforcement     of ,law1 #bj ,green    
,bag1 #dja2 ,pound1 ,courts and         
,legislation1 #g     ,american          
,political ,science ,review1 #cfa-chc4  
,science of ,legal ,method1 ,modern     
,legal ,philosophy ,series1 ,vol4 #i    
7#aiag74  ,gnaeus ,flavius              
7,kantorowicz71 ,der ,kampf um die      
,rechtswissenschaft 7#aijf74  ,fuchs1   
,recht und ,wahrheit in unserer heutigen
 ,justiz 7#aijh74  ----1 ,die           
gemeinschdlichkeit der konstruktiven    
,jurisprudenz 7#aiji74  ,oertmann1      
,gesetzeszwang und ,richterfreiheit     
7#aiji74  ,rumpf1 ,gesetz und ,richter  
7#aijf74  ,brtt1 ,die ,kunst der        
,rechtsanwendung 7#aijg74  ,gmelin1     
,quousque8 ,beitrge zur soziologischen  
,rechtsfindung 7#aiaj74  ,reichel1      
,gesetz und ,richterspruch 7#aiae74     
,jellinek1 ,gesetz1 ,gesetzesanwendung  
und ,zweckmssigkeitserwgung 7#aiac74    
,kbl1 ,das ,rechtsgefhl 7#aiac74  ,heck1

 ,gesetzesauslegung und                 
,interessenjurisprudenz 7#aiad74        
,stampe1 ,grundriss der                 
,wertbewegungslehre 7#aiab1 #aiai74     
,see ,kohler1 ,lehrbuch des brgerlichen 
,rechts1 ,i1  #ch-dj2     ,austin1      
,jurisprudence 7#c ed471 #ajbc-ajcf2    
,pound1 ,spurious     ,interpretation1  
#g ,columbia ,law ,review1 #cgi2 ,gray1 
,nature     and ,sources of the ,law1   
#cgj-cii2 ,somlo1 ,juristische          
,grundlehre1  #aaj-abb2 ,stammler1      
,rechts- und ,staatstheorien     der    
,neuzeit1  #ah2 ,pound1 ,introduction to
 ,english ,translation     of           
,saleilles1 ,individualization of       
,punishment2 ,saleilles1                
,individualization of ,punishment1      
translated by ,jastrow1 ch4     #i2     
,pound1 ,administrative ,applications of
 ,legal ,standards1 #dd     ,rep4       
,american ,bar ,assn41 #dde2 ,laun1 ,das
 freie ,ermessen und     seine ,grenzen 
7#aiaj74   ,,lecture ,,iv  ,holmes1     
,collected ,papers1 #di-aaf 7#aibj74    

,baty1 ,vicarious ,liability 7#aiaf74   
,hasse1 ,die ,culpa des rmischen ,rechts
 7#b ed4 #ahch74  ,jhering1 ,der        
,schuldmoment im rmischen ,privatrecht  
7#ahfg74  ,rmelin1 ,schadensersatz ohne 
,verschulden 7#aiaj74  ,triandafil1     
,l',ide de faute et l'ide de risque     
comme fondement de la responsabilit     
7#aiad74      ,see ,binding1 ,die       
,normen und ihre ,uebertretung1 ,i1     
#ej-ea2     ,meumann1 ,prolegomena zu   
einem ,system des ,vermgensrechts1 #hj  
ff4 7#aijc72 ,duguit in ,progress of    
,continental ,law in the     ,nineteenth
 ,century 7,continental ,legal ,history 
,series1 ,vol4     ,,xi71 #abd-abh2     
,geny1 ,risque et responsabilit1 ,revue 
trimestrielle de droit civil1 ,i1 #hab2 
,rolin1 ,responsabilit     sans faute1  
,revue de droit international et        
legislation     compare1 ,,xxxviii1 #fd2
 ,demogue1 ,fault1 ,risk and            
,apportionment     of ,risk in          
,responsibility1 #ae ,illinois ,law     
,review1 #cfi2     ,thayer1 ,liability  

,without ,fault1 #bi ,harvard ,law      
,review1 #hja2     ,smith1 ,tort and    
,absolute ,liability1 #cj ,harvard ,law 
,review1     #bda1 #cai1 #dji2 ,bohlen1 
,the ,rule in ,rylands v4 ,fletcher1 #ei
     ,university of ,pennsylvania ,law  
,review1 #bih1 #cgc1 #dbc2 ,isaacs1     
,fault and ,liability1 #ca ,harvard ,law
 ,review1 #ied4   ,,lecture ,v  ,ely1   
,property and ,contract in ,their       
,relation to the ,distribution of       
,wealth1 ,i1 #ea-ic1 #acb-beh1 #bie-ddc1
 ,,ii1 #dge-edi4  ,hobson and ,others1  
,property1 ,its ,rights and ,duties1    
,historically1 ,philosophically and     
,religiously ,considered 7#b ed471      
essays #a-c1 #e-h4  ,green1 ,principles 
of ,political ,obligation1  #baa-bca4   
,miller1 ,lectures on the ,philosophy of
 ,law1 ,lect4 #e4  ,herkless1           
,jurisprudence1 ch4 #aj4  ,russell1     
,social ,reconstruction1 ch4 #d4        
,spencer1 ,justice1 ch4 #ab4  ,kohler1  
,philosophy of ,law1 ,albrecht's        
translation1 #abj-acc4  ,maine1 ,ancient

 ,law1 ch4 #h4  ----1 ,early ,history of
 ,institutions 7,american ed471 #ih-aah4
  ----1 ,early ,law and ,custom         
7,american ed471 #cce-cfa4  ,duguit1 in 
,progress of the ,law in the ,nineteenth
 ,century 7,continental ,legal ,history 
,series1 ,vol4 ,,xi71 #abi-adf4         
,wagner1 ,volkswirthschaft und ,recht1  
besonders ,vermgensrecht 7#ahid74       
,perreau1 ,cours d'conomie politique1   
,,ii1  #fbc-fie 7#aiaf74  ,de la        
,grasserie1 ,les principes sociologiques
 du droit civil1 ch4 #c4  ,cosentini1   
,la rforme de la lgislation civile1     
#cga-dbb 7#aiac74  ,fouille1 ,la proprit
 sociale et la democratie 7#ahhd74      
,landry1 ,l',utilit sociale de la       
proprit individuelle 7#aija74  ,meyer1  
,l',utilit publique et la proprit prive 
7#ahic74  ,thzard1 ,la proprit          
individuelle3 tude de philosophie       
historique du droit 7#ahgb74  ,thomas1  
,l',utilit publique et la proprit prive 
7#aijd74  ,berolzheimer1 ,system der    
,rechts- und ,wirthschaftsphilosophie1  

,,iv1  #a-ac4  ,felix1                  
,entwickelungsgeschichte des ,eigenthums
 7#ahhc-ahii74  ,karner1 ,die sociale   
,funktion der ,rechtsinstitute1         
besonders des ,eigenthums 7#aijd74      
,conti1 ,la propriet fondiaria nel      
passato e nel presente 7#aije74         
,cosentini1 ,filosofia del diritto1     
#bej-bgi 7#aiad74  ,fadda1 ,teoria della
 propriet 7#aijg74  ,labriola1 ,sul     
fondamento della propriet privata       
7#aijj74  ,loria1 ,la propriet fondiaria
 e la questione sociale 7#ahig74        
,piccione1 ,concetto positivo del       
diritto di propriet 7#ahij74            
,velardita1 ,la propriet secondo la     
sociologia 7#ahih74  ,grotius1 ,de jure 
belli et pacis1 ,,ii1 #c1 #a-e1 ,,ii1   
#f1 #a and #ad1  #a4  ,pufendorf1 ,de   
jure naturae et gentium1 ,,iv1 #d1      
#b-f1 #ad4  ,locke1 ,on ,government1 ch4
 #e4  ,blackstone1 ,commentaries1 ,,ii1 
#c-aj4  ,kant1 ,metaphysische           
,anfangsgrnde der ,rechtslehre 7#b ed471
  #a1 #f-g1 #h1 #aj1 #ah-ba4  ,hegel1   

,grundlinien der ,philosophie des       
,rechts1  #dd1 #df1 #di4  ,lorimer1     
,institutes of ,law 7#b ed471 #bae ff4  
,,lecture ,,vi  ,ely1 ,property and     
,contract in ,their ,relation to the    
,distribution of ,wealth1 ,,ii1         
#egf-gea4  ,amos1 ,systematic ,view of  
the ,science of ,jurisprudence1 ch4 #aa4
  ,herkless1 ,jurisprudence1 ch4 #ab4   
,kohler1 ,philosophy of ,law1           
,albrecht's translation1 #acd-aia4  ,de 
la ,grasserie1 ,les principes           
sociologiques du droit civil1 ch4 #f4   
,duguit1 in ,progress of the ,law in the
 ,nineteenth ,century 7,continental     
,legal ,history ,series1 ,vol4 ,,xi71   
#ajj-abd4  ,kant1 ,metaphysische        
,anfangsgrnde der ,rechtslehre 7#b ed471
  #ah-ba4  ,hegel1 ,grundlinien der     
,philosophie des ,rechts1  #ga-ha4      
,richte1 ,grundlage des ,naturrechts1   
#ah-bj4  ,williston1 ,contracts1 ,i1    
#ii-bjd4  ,ames1 ,the ,history of       
,assumpsit1 #b ,harvard ,law ,review1   
#a1 #ec4  ----1 ,two ,theories of       

,consideration1 #ab ,harvard ,law       
,review1 #eae2 #ac ,harvard ,law        
,review1 #bi4  ,beale1 ,notes on        
,consideration1 #ag ,harvard ,law       
,review1 #ga4  ,langdell1 ,mutual       
,promises as a ,consideration for ,each 
,other1 #ad ,harvard ,law ,review1 #dif4
  ,pollock1 ,afterthoughts on           
,consideration1 #ag ,law ,quarterly     
,review1 #dae4  ,hershey1 ,letters of   
,credit1 #cb ,harvard ,law ,review1 #a4 
,lorenzen1 ,causa and ,consideration in 
the ,law of ,contracts1 #bh ,yale ,law  
,journal1 #fba4  ,pound1 ,consideration 
in ,equity1 #ac ,illinois ,law ,review1 
#ffg 7,wigmore ,celebration ,essays1    
#dce74     ,index     ,abstract promise 
#bfb1 #bfc    ,acquisition     by       
creation #aie     by discovery #aie1    
#bja     by occupation #aif1 #baa       
civil #aif-aig     derivative #bjg      
in ,roman law #aid-bjj     ,kant's      
theory of #baj-bac     natural #aie     
things not subject to #aig    ,act1 as  
basis of liability #aeh    ,acting at   

one's peril #afg1 #agh    ,action     de
 deiectis et diffusis #afb     de       
recepto #afb     in factum #afj     in  
personam #aea     noxal #afb            
,adjudication     administrative element
 in #abb-abc     steps in #ajj          
,administration #ajh     adjustment with
 law #acg    ,administrative tribunals  
#acj1 #acf    ,ames1 ,james ,barr #agh  
,analogy1 reasoning by #cb    ,analysis 
#ec    ,analytical application #abc-abe 
reasoning #aje     theory #ec-ed        
,anglo-,saxon ,law #adh    ,application 
of ,law #ajj ff4     agencies of        
individualizing #abi-ach     analytical 
#abc-abe     equitable #abb1 #abf-abi   
historical #abe-abf     latitude of     
#abj1 #abi     margin of #aab     rules 
#adb     theories of #abc-abi           
,aquilian culpa #aef1 #aei1 #afb        
,aquinas1 ,st4 ,thomas #be-bf           
,aristotle #be1 #ch1 #gf1 #hb1 #ach     
on application of law #aji-aaj          
threefold classification of governmental
 powers #ae    ,austin1 ,john #agb-agd1 

#bei     ,bacon #beh    ,bailment #agj1 
#bgj1 #bge    ,bartolus #cg    ,baty1   
,t4 #aff    ,bentham #ed1 #hd           
,bergson #ada    ,bills of ,rights #dc1 
#ec1 #baf    ,binding #afd              
,blackstone #bf1 #ahj1 #bjh1 #bfh1 #bgh 
,buckland1 ,w4 ,w4 #afa     ,callings1  
restrictions on engaging in #hh         
,camden1 ,lord #aai    ,canon law #beb1 
#bed    ,carrier1 liability of #ahf     
,casuists #bed    ,catholic             
jurist-theologians #ci    ,causa #bei   
civilis #bdh1 #bej1 #bea     debendi    
#bea1 #bed1 #bee    ,causation #afb1    
#afd    ,certainty #adb-adc    ,change1 
reconciliation with stability #cj1 #ch  
,cicero #bg1 #cj1 #ca1 #aag             
,civilization1 as a measure of value #ih
     jural postulates of1 #ef1 #afi-agi1
 #bhd    ,civil law1 #bcg-bdj           
,classes1 social1 #ia    ,codification1 
#df-dg1 #aci-adj    ,coke1 ,sir ,edward1
 #acc    ,commentators1 the1 #cg        
,common ,law1 the1 and legislation1     
#aci-adj     professional view as to1   

#bgh     types of delictal liability in1
 #afh    ,community property1 #bbi      
,composition1 #adi1 #bda-bdb            
,compromises1 #id-ie    ,conceptions1   
legal1 #aaf    ,conditions implied in   
law1 #bei    ,conduct1 application of   
law to1 #acg-aci     expectations       
arising from1 #ahi    ,consciousness1 as
 starting point1 #hd    ,consideration1 
#bdj1 #beh-bei1 #bfg1 #bfh1 #bga-bgc1   
#bgh-bgi     adequacy of1 #bgc-bgd      
circumstances keeping doctrine alive1   
#bgh-bhb     in equity1 #beh-bei1 #bgg  
meanings of1 #bgf-bgg     meritorious1  
#bei    ,contract     analogy of real   
transactions1 #bdb     ,anglo-,american 
law of1 #beg-bei     anomalies in law   
of1 #bhb     bargain theory of1 #bfi1   
#bga-bgc     by estoppel1 #ahg          
categories of1 #bdh     civil-law       
enforcement of1 #bch-bdj     common-law 
categories of1 #bgd-bge     common-law  
enforcement of1 #bdj     consensual1    
#bdi     equivalent theory of1 #bee-bef1
 #beg-bei1 #bfi1 #bgc-bgg     ,fichte's 

theory of1 #bfa-bfb     formal1 #bde-bga
     ,hegel's theory of1 #bfc           
historical background of law of1 #bda   
ff4     historical category of1 #agb    
historical theory of1 #bff-bfi          
injurious-reliance theory of1 #bfa      
innominate1 #bdi1 #bfa     ,kant's      
theory of1 #bfa     metaphysical        
theories of1 #bfj-bfe     natural-law   
theory of1 #bfj     natural principle   
of1 #de-df     objective theory of1     
#bfd-bfe     oral1 #bhb     philosophy  
of1 #bec     philosophical theories of1 
#bda     positive theory of1 #bfe       
real1 #bdi1 #bge     religious origins  
of1 #bdb-bdg1 #beb     ,roman categories
 of1 #de1 #bec1 #bfj1 #bff     ,romanist
 theory of1 #bfc-bfe     simple1 #bge   
specific enforcement of1 #bch-bdj       
,spencer's theory of1 #bfe              
subjective theory of1 #bga     theory of
 basis in personality1 #bfc-bfe         
theory of inherent moral force1         
#bei-bfj1 #bfa     third-party          
beneficiaries of1 #bgc     will theory  

of1 #bfd-bfe1 #bfi-bga1 #bha-bhb        
,corpus ,iuris ,canonici1 #beb    ,court
 and jury1 #aaa    ,courts1 contest with
 ,crown1 #ec    ,culpa1 #agj1 #age      
abstract standard of1 #agg     concrete 
standard of1 #agh     contractual1 #agj 
delictal1 #agj    ,culpability #aeh     
as basis of liability #ahd     fiction  
of #aeh1 #agh    ,custody #bbb-bbc      
,d',aguesseau #bed    ,debt #agd1 #bdd1 
#bge    ,defamation #bhj1 #bha          
,delicts1 equitable #aei     historical 
category of #agb     nominate #afb1     
#afi-agj1 #age    ,demosthenes #bb      
,depositum #bdi    ,derivative          
acquisition #bjg    ,derry v4 ,peek #bha
    ,dicey1 ,a4 ,v4 #ahd    ,digest of  
,justinian #ajg    ,discovery #aie1 #bja
    ,discretion #aag1 #aai1 #abi        
margin of #acb     of the chancellor    
#acj-acc     relation of to rule #aab1  
#ada-adc    ,dispensing power #aac      
,distributions1 ,statute of #adb        
,division of labor #ef1 #agf1 #aia      
,doctor and ,student #beb1 #bei    ,doe1

 ,chief ,justice #ahe    ,dolus #aef1   
#aei1 #afi1 #age    ,dominium #aii1 #bbe
    ,due care #agj1 #age     standard of
 #aai-abj    ,duguit1 ,l4 #ih1 #bcb     
,dumoulin #ci    ,dunedin1 ,lord #bgf   
,duress #aei    ,duties #agc            
relational #he     ,economic            
interpretation #ff-fg1 #agi-ahj         
,eldon1 ,lord #dg    ,empiricism1       
judicial #cd1 #bhc     juristic #cd     
,end of law #ed1 #ei-ii     as a measure
 of value #if     ,greek conception of  
#gd-gg     ideals of as basis of        
juristic theories #ga-gb     keeping the
 peace as #gb-gd     maximum individual 
self-assertion as #hd-hg     medieval   
conception of #gh-hj                    
nineteenth-century conception of #hc-he 
preserving social status quo as #gd-ha  
rise of new ideas as to #hg-ii          
,roman conception of #gg-gh     theories
 of #gb-ii    ,english juristic theory  
#fd    ,englishmen1 common-law rights of
 #dc1 #ec    ,enterprises1 conduct of   
#acg-ahi    ,equality #hb-he            

,equitable application of law #abb1     
#abf-abi    ,equities #aba    ,equity   
#bh1 #dg1 #eg1 #ei1 #aag1 #acj-acc1     
#acg-ach1 #beh-bei1 #bga     and natural
 law #da1 #ajb1 #aab1 #aad1 #aec1 #agh  
of the tribunal #ajb     provision for a
 child as consideration in #bgb1 #bgd   
securing a creditor as consideration in 
#bgb     settlement on a wife as        
consideration in #bgb1 #bgd     will not
 aid a volunteer #bgb    ,ethical       
interpretation #bff     ,familia #bjj   
,fichte1 theory of contract #bfa-bfb    
,fictions #ajb-ajh1 #aae     dogmatic   
#agi1 #ahj1 #bgd     of culpability     
#agh-agi     of negligence #agi     of  
representation #aff1 #agi     of        
undertaking #aga    ,fiducia cum amico  
#bdi    ,fifth ,amendment #ea           
,finding law #ajj1 #ajd-aje    ,form and
 intention #aed-aee    ,formal          
contracts1 #bde1 #bga1 #bge             
historical origin of1 #bde-bdg          
,formal undertaking1 #aee    ,forms in  
primitive thinking1 #bdg-bdh            

,formulas1 elasticity of1 #aba          
,fortescue1 #ch    ,fourteenth          
,amendment1 #ea    ,freedom of contract1
 #aia1 #bfe1 #bfg-bfi    ,freedom of    
industry1 #aia    ,french ,civil ,code1 
#dh1 #afb1 #afc     law of delictal     
liability1 #afg-afh     monarchy1 legal 
theory under1 #fd    ,functional        
attitude1 #ia     ,generalizations1 #ade
    ,general security1 #gb1 #if1        
#adi-aej1 #aga1 #age1 #agf1 #agi1 #aic1 
#bhb     how infringed1 #agg            
,germanic law1 #cf1 #da1 #gi1 #bea1 #bed
    ,gifts1 reformation of1 #bgc        
,gloss1 ,the1 #cg    ,glossators1 #dj   
,good faith1 #aec1 #aee1 #aeg1 #agj     
corollaries of1 #ahh-ahi    ,gray1 ,j4  
,c41 #ajb    ,greek city1 problem of    
order in1 #ge     security of social    
institutions in1 #ge    ,greek law1     
#bj-bg1 #aea1 #age    ,greek            
philosophers1 conception of the end of  
law1 #ce1 #gd-gg     conception of the  
nature of law1 #ha     conception of the
 general security1 #gd     on subjects  

of litigation1 #ig1 #bda    ,grotius1   
#aif1 #bje-bjg1 #bfj     ,hammurapi1 #fj
    ,hard bargains1 #acb    ,hegel1 #hd1
 #baf1 #bgd     theory of contract1 #bfb
     theory of property1 #bad-baf       
,heraditus1 #gf    ,hindu law1 #bbf-bbg1
 #bdc-bde    ,hippodamus1 #bda          
,historical application of law1 #abe-abf
    ,historical categories1 #agb        
,historical school1 #bgi    ,holmes1    
,mr4 ,justice1 #aff    ,household1      
partition of1 #bbf-bbg    ,husband and  
wife1 #ahh     matrimonial property     
regime1 #bbi    ,hybris1 #gg            
,idealism1 juridical1 #da-db1 #ia       
,idealistic interpretation1 #bff        
,imperium1 #aii    ,implied             
undertakings1 #aeh1 #aga    ,individual 
free self-assertion1 #ed                
,individualization1 #aaa1 #aac-aad      
by juries1 #acc-acd     in criminal     
procedure1 #ach     in punitive justice1
 #acd-ace     judicial1 #abj-aba        
moral element in1 #acg     of penal     
treatment1 #abi-acj    ,individual life1

 #if    ,inheritance1 #aci              
,innkeeper1 liability of1 #ahf          
,insult1 #aea    ,intention1 #ahi     as
 source of liability1 #aeg              
,interdependence1 #ef    ,interdicts1   
#bjj    ,interests1 #hi-ij              
compromises of1 #id-ie     delimitation 
of1 #aib     giving effect to1 #ij      
group1 #bbe     harmony of1 #if         
individual1 in promised advantages1 #bcf
     intrinsic importance of1 #ie       
inventory of1 #ij     of substance1     
#aci1 #bcg     recognition of1 #ij1 #aib
     securing of #if1 #ig     valuing of
 #hi1 #ie-ii     weighing of #hi1 #id   
,interpretation #ea-eb1 #ajj     fiction
 of #ajb-ajh     genuine #aje1 #abd     
relation to law making #aje     ,jessel1
 ,sir ,george #bfh    ,judicial1        
contrasted with administrative #ajh     
,jural postulates #afi-agi1 #ahh1       
#aib-aic1 #aic-aid1 #bcg1 #bdi1 #bhd    
,juridical idealism #da-db1 #ia         
,jurisconsults #cj1 #dc-dd              
,jurisprudence1 problems of #aaa        

,juristic theories1 nature of #fi       
,jurists1 metaphysical #eb1 #fh         
search for the more inclusive order #ade
     seventeenth and eighteenth-century 
#dc-dd    ,jurist-theologians #ci       
,spanish #ha-hb1 #hc    ,jury #abi1     
#acc-acd     lawlessness of #ach    ,jus
 #ca    ,jus disponendi #bba    ,just1  
the1 by nature or by convention #be1    
#bg1 #ca1 #ee    ,justice1 ,aristotle on
 #be1 #gg     definition of in the      
,institutes #gg     executive #acg      
idea of #fe     without law #ajb1 #aac  
,justinian1 ,institutes of #gg-gh       
,kant #hd1 #bjb1 #bai1 #bfj     theory  
of contract #bfj-bfa     theory of      
property #baj-bad    ,kenyon1 ,lord #dg 
,kin organization #gd     ,laesio       
enormis #bgd    ,langdell1 ,c4 ,c4 #bei 
,law1 adjustment with administration    
#acg     and morals #bg1 #cj1 #da1 #aaa1
 #aab     application of #ajj ff4     as
 an aggregate of rules #aaj     as a    
body of agreements #fc     as a body of 
commands #fd     as a body of divinely  

ordained rules #fj     as a keeping of  
the peace #gb-gd     as a reflection of 
divine reason #fc     as a system of    
principles #fb1 #ff     as custom #fa1  
#fb     as declaratory of economic or   
social laws #fg-fh     as precepts      
discovered by experience #fe     as     
recorded traditional wisdom #fa     as  
restraint on liberty #fj     as rules   
imposed by dominant class #ff     as    
standing between the individual and     
society #ec     as unfolding an idea of 
right #fe     basis of authority of #ai1
 #bc-bd1 #bg1 #bh-bi1 #ch1 #fi-gb       
,byzantine theory of #aaj               
distinguished from rules of law #bd     
elements of #aae-aaf     end of #ce-cf1 
#ei ff4     effectiveness of #aic       
finding #ajj1 #ajd-aje     forms of     
#bg-bh     government of #acf           
historical theory of #fe1 #fh     how   
far made #ajg-ajh     idea of           
self-sufficiency of #ag1 #fg     judge  
made #ce     jurist made #ce            
maturity of #dh1 #ei1 #ajb     merchant 

#aee1 #bga1 #bge     nature of #ei1 #ia1
 #aaa     nature of theories of #fh-fi  
political theory of #fh     restatement 
of the #bhb     science of #aja     soft
 spots in the #bhb     theories of the  
nature of #fj-fh    ,law making1        
judicial #aje     presuppositions of #ei
    ,legal standards #ea1 #aad1         
#aaf-abj1 #abi1 #ada    ,legal          
transactions #aec     bonae fidei #bdh  
categories of #bdg     formal #bdi      
stricti iuris #bdh    ,lending #aej     
,letters of credit #bge1 #bgf-bgg       
,lex #ca    ,lex ,aquilia #aei          
,liability1 absolute #agi     act as    
basis of #aeh1 #ahb     analytical      
theory of #aeb-aec     as corollary of  
fault #afc-afd1 #aff1 #afh1 #aha1 #ahg1 
#bhc-bhd     basis of delictal #agg     
delictal #afc1 #afg-afi     elements of 
#afb-afc     employer's #afc     fault  
as basis of #afj1 #afc-afd1 #afg     for
 cattle going on vacant lands #ahj-aha  
for injury by animal #afc1 #afd1 #ahj   
for injury by child #aei     for injury 

by minor #afb     for injury by a res   
ruinosa #afb     for injury by slave    
#aei     for intentional harm #afh      
for negligence #age1 #ahj     for       
non-restraint of agencies #agf     for  
tort1 basis of #afg     for tort1       
common-law theory of #afh-afi     for   
trespassing cattle #ahj     for         
unintended non-culpable harm #afh       
for unintentional culpable harm #afh    
for vicious animals #ahb1 #ahf     from 
culpability #ahd     from legal         
transactions #ahg     fundamentals of   
#agd     historical anomalies in #aff1  
#agi1 #ahf     in ,french law #afa-afd  
intention as basis of #aeg1 #afj        
justifiable reliance as basis of #ahi   
meaning of #adg     natural sources of  
#aef     noxal #aei     of carrier #ahf 
of innkeeper #aei1 #afj1 #ahf     of    
master of ship #aei1 #afj     of stable 
keeper #aei1 #afj     on implied terms  
of transaction #agj     philosophical   
theories of #aic-aid     primitive      
grounds of #adi-aea                     

quasi-contractual #aef                  
quasi-delictal #aef     relational      
#ahf-ahh     to make restitution #ahg   
theories of #adh     will-theory of     
#aeg1 #agg1 #agi1 #ahi     without fault
 #aef1 #afb1 #aff1 #agg1 #agi           
,liberty #hd-he     idea of #fe1 #bfg   
idea of as source of liability #aeg     
law and #fj    ,locke1 ,john #bjh       
,lorimer1 ,james #bah    ,louis ,,ix    
#abh     ,magistrate1 power of #aab     
,maine1 ,sir ,henry #bjh    ,mala       
prohibita #bf    ,mandate #bgb          
,mansfield1 ,lord #dg1 #bfj1 #bfb1 #bgc 
,manu #fj    ,maturity of law #dh1 #ei1 
#ajb    ,maxims #cd    ,metaphysical    
jurists #ib    ,metus #aei    ,middle   
,ages1 conception of end of law in      
#gh-hj     idea of law in #gg-ha        
juristic need in #cf    ,miller1 ,w4 ,g4
 #baf-bag    ,mining customs #aie       
law #bja1 #bbb    ,minos                
7pseudo-,platonic dialogue7 #bd         
,mosaic law #fj    ,mutuum #bdi         
,narada #bdd    ,nationalism in law #ci 

,natural1 meaning of in philosophy of   
law #ca-cb    ,natural law #be1 #ca1    
#ce1 #dj1 #da1 #de-eb1 #ee1 #aed1 #aff1 
#bji1 #bec1           #bgh1 #bhj        
,american variant of #ej     as a theory
 of growth #cc-cd     as deduced from a 
free government #eb     as ideal        
critique #eb     economic #bje          
theory of #db    ,natural obligation    
#bej    ,natural reason #bjb    ,natural
 rights #ae1 #db-dc1 #ee1 #hc1 #ib-ic1  
#adf1 #bjd1 #bje                        
historical-metaphysical theory of #eb   
theories of #dd-de     to produce of    
labor #bji    ,nature1 meaning of in    
,greek philosophy #ca-cb     state of   
#de    ,necessary distinctions #agb1    
#agd    ,negative community #bjg        
,negligence #aai-abj1 #afe1 #afh1 #agg1 
#agi1 #bgj1 #bhj     fiction of #agi1   
#ahj     in speaking #bhj1 #bha     per 
se #agi    ,neo-,hegelians #id1 #ih     
,neo-,kantians #ic1 #ih    ,new ,york1  
,code of ,civil ,procedure #aje         
,nexum #bdi    ,nomos1 meanings of #bb  

,noxal liability #aei    ,nudum pactum  
#bdf1 #bed1 #bgc1 #bhj     ,oaths and   
vows #bea    ,obligation1 civil #beb    
ex contractu #adf1 #agb     ex delicto  
#adf1 #agb1 #agd     ex uariis causarum 
figuris #af1 #agb     meaning of #adg   
moral basis of #bej     natural #bej1   
#beb-bec     nature of #ade     oaths as
 basis of #bea-beb     quasi ex         
contractu #beg     religious #bdd       
will as basis of #bej    ,occupation    
#aif1 #baa     as a legal transaction   
#bac-bad    ,office or calling1 duties  
attached to #agc    ,options #bgb1 #bgd 
,ownership1 analytical theory of        
#bbb-bbd     development of the idea of 
#bba-bca     dogma that everything must 
be owned #aii     things excluded from  
#aii    ,pacta donationis #bgb    ,pacts
 #bdh1 #bej1 #bfa1 #bge    ,partition   
#bbf-bbg1 #bbh    ,part performance #bhb
    ,paul1 ,st4 #gg    ,peculium        
#bbg-bbh    ,pecunia credita #bdi       
,pedis possessio #bbb    ,penal         
treatment1 individualizing of #abi-acj  

,penalty1 for delict #adi     of        
reparation #adi    ,personal government 
#ace-acf    ,personality #aia           
,pessimism1 juristic #eg    ,petty      
courts #acj1 #ach    ,philosophers1     
attempt to unify law and law making #ai 
attempt to reconcile authority with need
 of change #ai     quest for an ultimate
 solving idea #ai    ,philosophical     
thinking1 achievements of in law #af-ah 
as a force in administration of justice 
#af     needs determining as to law #ah 
possibilities of in law of contracts    
#bhd    ,plato #bd1 #gf    ,pledge #bea 
,political interpretation #bff          
,positivism #ed-ef    ,possession       
#bcc-bcd    ,post-,glossators #cg       
,pothier #de    ,primitive law #gb-gd   
faith of in verbal formulas #aed        
,primogeniture #ej    ,principles #cd1  
#ec1 #aaf    ,procedure #aaa            
,proculians #aif    ,promised advantages
 #aia    ,promises1 abstract #bee1 #bfb1
 #bfc     an element in wealth #bcf     
exchange of #bed     from ostentation   

#bef1 #bhj1 #bha     moral duty to keep 
#bfb     philosophical theory of        
enforcing #bhc     simple #bge          
theories of enforcing #bfi-bgf          
theory of inherent force of #bei-bfj    
,promissory oath #aej-aea1 #bea         
,property1 acquisition of #aid-bjj1 #bjd
     analytical theory of #bba-bbd      
basis in creation #bji     basis in     
division by agreement #bje     basis in 
economic nature of man #bje1 #bji       
community #bbi     effectiveness of law 
as to #aic     ,grotius' theory of      
#bje-bjg     ,hegel's theory of #bad-baf
     historical development of law of   
#bbd-bcb     historical theory of #bai1 
#bba-bcb     household #bbf-bbg1 #bbi   
inequalities in #bae1 #bba     in       
natural media of life #bja-bjb     jural
 postulates of #aic1 #aid     ,kant's   
theory of #baj-bad     law of #ada      
,lorimer's theory of #bah     medieval  
theory of #bjb     metaphysical theories
 of #baj-bah     modes of acquiring     
#aid-bjb     natural acquisition of #aie

     natural-law theories of #bjd-baj   
natural limits of right of #aie         
negative community in #bjg              
philosophical theories of #aid ff4      
positive theory of #bai-bba             
psychological theory of #bji1 #bc1 #bcd 
restrictions on appropriation of #hh    
restrictions on use and disposition of  
#hg-hh     self-acquired #bbg-bbh       
seventeenth-century theory of #bjb      
socialization of #bcc                   
social-utilitarian theory of #bbe       
sociological theories of #bcb           
,spencer's theory of #bai     theories  
of #bjb-bbe     theory of in            
,anglo-,american law #bjh     theory of 
in antiquity #bjb     things not subject
 to #aig     titles to #aie-aig1 #baa   
twentieth-century theories of #bcb      
,protestant jurist-theologians #ci      
,psychology #ij1 #id1 #bgi-bhj          
,publicists1 ,french #aaj    ,public    
utilities #aag1 #acf     exemption of   
from competition #hh-hi     power to    
contract #ahg    ,pufendorf #bjg-bjh    

,punitive justice #aaa                  
individualization of #acd-ace           
,quasi-delict #afa1 #afb     ,ratio     
legis1 doctrine of #cb1 #df    ,reason1 
excessive faith in #ci1 #df-dg          
,reform movement1 legislative #dg1 #he  
,relations #aga     duties attached to  
#agc     economic value of #aib         
interference with #aib     legal        
protection of #aic    ,release #bgb1    
#bgd    ,religion #bdb ff4              
,reparation #adi    ,representation #agi
    ,res communes #aig1 #aih1 #aii1     
#bjg1 #baj     extra commercium #aig1   
#bja1 #baf1 #bag     ipsa loquitur #ahj1
 #ahe-ahf     nullius #aii1 #bje        
publicae #aih1 #baj     religipsae #aih 
ruinosa #afb-afc     sacrae #aih        
sanctae #aih    ,responsibility at one's
 peril #afg    ,right1 idea of #fe      
natural and conventional #ae1 #be-bf1   
#ca    ,rights1 in personam #adf     in 
rem #adg    ,roman conception of end of 
law #gg-gh     jurisconsults #cj1 #dc   
,roman law #bf1 #cf1 #da1 #de1 #aje-ajf1

 #ade1 #aea1 #aee1 #agj1 #agc-agd1      
#aie1 #aii1 #bjj1 #bbe1 #bbh1 #bde-bej1 
#bed1 #bge     as basis of medieval law 
#dj     as basis of law in ,,xvii and   
,,xviii centuries #da     contribution  
of to legal philosophy #cf    ,rousseau 
#bad    ,rules #aae-aaf     adapted to  
commercial transactions #ada     adapted
 to property #ada     and discretion    
#ada-adc     application of #adb     as 
guides #aba     mechanical application  
of #adb-adc    ,rylands v4 ,fletcher    
#afh1 #ahb-ahf     ,sabinians #aif      
,sale #bdi    ,satisfaction of wants1 as
 an ideal #ih-ii    ,savigny1 ,f4 ,c4   
von #bac    ,scholastic philosophy #cf  
permanent contribution of #ch    ,seals 
#bdj1 #bga1 #bge     contract under seal
 #bee    ,security of transactions #aic1
 #bcg    ,seisin #bbe    ,self help #gc 
,seller's talk #bhj    ,separation of   
powers #ajb-ajc1 #ajg    ,set off #bej  
,social contract #bjd    ,social control
 #ii1 #bbe    ,social engineering #ii   
,social ideal #ef     as a measure of   

values #ih    ,social interdependence   
#bcb     as a measure of values #ih     
,social interests #ii     in peace and  
order #adh     in security of           
transactions #bcg    ,social laws #ed-ee
    ,social order1 feudal #gi-hj        
idealized form of the #ce     static #he
    ,social sciences1 unification of #ia
    ,social status quo1 as end of law   
#ce-cf    ,social utilitarianism #ib-ih 
,socialists #bji    ,society1 ,greek    
conception of #gi     jural postulates  
of civilized #afi-agi     kin-organized 
#gc-gd     medieval conception of #gi   
,sociology #id    ,sophrosyne #gg       
,sovereignty1 ,byzantine theory of #dj  
,specification #aie    ,specific        
performance #aca-acb1 #bch-bdj          
,spencer1 ,herbert #hd1 #ig1 #bja1 #bfe 
his law of equal freedom #bai     his   
theory of property #bai-bba    ,spirit  
and letter #aed    ,standards1 legal    
#ea1 #aad1 #aaf-abj1 #abi1 #ada         
,stare decisis #adj    ,status to       
contract #bff    ,statute of ,frauds    

#bhb    ,statute of ,uses #bgg          
,stipulation #bdf     of counsel #bgc1  
#bgd    ,stoics #aig    ,strict law #cc1
 #aja1 #aab-aac1 #aec1 #aee1 #afe1 #bhj 
,substance1 interests of #aci1 #bbe     
,super constitution #ae1 #ea    ,symbols
 #bdh     ,teleology1 legal #ib         
,theories of law1 elements in #gj-ga    
,third-party beneficiaries #bgc         
,title1 by creation #aie     by         
discovery #aie     by occupation #aif1  
#baa     natural #aie    ,tort of       
negligence #aje    ,torts #bhc          
development of liability for #afd-afg   
generalization of liability for #afg    
law of #aag1 #afg     nominate #afd1    
#afe1 #agj1 #age1 #bhc    ,traditio #bdi
    ,trust1 constructive #agc           
gratuitous declaration of #bgb1 #bgd    
,twelve ,tables #bdi     ,unjust        
enrichment #agc1 #ahg    ,utilitarians  
#bfg1 #bfh    ,utility #ec     ,value1  
criteria of #hi1 #ie-ii    ,vrihaspati  
#bdc     ,waiver #bgb1 #bgd    ,wants1  
as juristic starting point #hi-ij       

limitations on satisfaction of #ig-ih   
satisfaction of #hi-ij    ,warranties   
#agd1 #bdi    ,whale fishing #aie       
,will1 as basis of liability #aeg1 #afi 
as basis of obligation #bej     as      
juristic starting point #hd1 #hi        
,will theory #ahi     of contract       
#bfd-bfe    ,williston1 ,s4 #bhb        
,wills1 harmonizing of #hd1 #ij1 #ib-ic 
,workman's compensation #afg            
,,storrs ,,lectures  ,,published ,,by   
,,yale ,,university ,,press     ,,the   
,,reform ,,of ,,legal ,,procedure4 ,by  
,moorfield ,storey4   ,,the ,,judiciary 
,,and ,,the ,,people4 ,by ,frederick ,n4
 ,judson4   ,,concerning ,,justice4 ,by 
,lucilius ,a4 ,emery4   ,,woman',s      
,,suffrage ,,by ,,constitutional        
,,amendment4 ,by ,henry           ,st4  
,george ,tucker4   ,,the ,,nature ,,of  
,,the ,,judicial ,,process4 ,by         
,benjamin ,n4 ,cardozo4                 
,,transcriber',s ,,notes   #a4 ,passages
 in italics are surrounded by           
underscores4  #b4 ,the original text    

includes ,greek characters4 ,for this   
text version these letters have been    
replaced with transliterations4  #c4    
,the following misprints have been      
corrected3      predicability corrected 
to predictability 7page #cc7            
,aristole corrected to ,aristotle 7page 
#cac7  #d4 ,other than the corrections  
listed above1 printer's inconsistencies 
in spelling1 punctuation1 and           
hyphenation have been retained4