Page:Harvard Law Review Volume 12.djvu/217

THE LAW AND ITS LIMITATIONS, 197 rules of conduct for individuals. In either aspect, as rules of con- duct it must look for its ultimate justification to all those consid- erations based on morality by which conduct is regularly tested. Only in any particular case the conduct of the judge may be sub- ject to one set of considerations, and the conduct of the parties to an entirely different set. For instance, how far a judge ought to interfere in trouble between members of the same family is one question. How a man ought to treat his wife is another question. Consequently, between conduct becoming a gentleman, on the one hand, and, on the other, conduct so gross that a divorce court will interfere, is a middle ground, including various degrees of brutality that may be technically within a man's " rights." But it does not follow from this that it is right for him to behave like a blackguard. Conclusions drawn with reference to the conduct of the judge are not to be transferred either consciously or unconsciously to prem- ises referring to the conduct of the parties. It is only by keeping these two positions separate, drawing separate conclusions from each point of view, comparing these conclusions, and confining the law to the extent to which they overlap, — it is only in this way that the law, so far as it goes, can be kept in accord with morals, justifying its nomenclature borrowed from morals, and at the same time the liberty of the citizens, including the freedom, in many cases, to make mistakes and suffer their natural conse- quences, can be preserved. All those conclusions drawn from one point of view, and not covered by conclusions drawn from the other point of view also, are not properly within the law. For instance, from the point of view of the individual a man should not covet his neighbor's goods. But from the point of view of the judge a court ought not to give orders in matters of which it cannot be reasonably certain. And it cannot be reasonably certain of what goes on in other men's minds, there being no such thing as general telepathy. Consequently, the passion of covetousness is not prop- erly within the law, and the law is confined to what theologians call external morality.^ This is undoubtedly a limitation from one point of view. But because we naturally refer limitations to the subject-matter of our inquiry rather than to the point of view from which we regard it, especially if that point of view is a more or less unconscious one, we often speak of such instances as limitations of 1 Sir Frederick Pollock, Justice according to Law, Harvard Law Review, ix. 303-