66
THE GREEN BAG
that it would have differed materially from what it is, a hint whereof is given by the law in regard to the negro race in the Southern states of the Union under slavery. And, indeed, the only considerable part of the law of torts which to-day is unstable is that which relates to combinations tending to inequality, the subject, that is to say, of the contest going on between capital and labor and between the public and capital. Not until the social center of gravity on these subjects becomes fixed will the law become stable; tendency is all that at pres ent can be seen. We fall back now to the question, what is "reasonable" as the word is used above. This must often turn on reasoning, wherein men may and will differ, lawgivers as well as other men. This is true even of rights sometimes called absolute, rights of life, liberty, and property. For, after all, complex elements constantly enter into the composition of what at first appears simple enough. When may life be taken, if at all? When, in a complex case, is a man wrong fully imprisoned? What of the legal right between two men in trade, where in a par ticular set of facts one of them finds that he has been deceived? In a certain peculiar case has another trespassed upon my land? Learned counsel may answer these ques tions one way, while the judge answers them another, both answering on defen sible lines of reasoning. It is plain then that the validity of rea soning cannot be the test of legal rights in such cases, for when men may well differ, how shall the real validity of the reasoning be determined? But there must be an end of question — interest reipublicae ut litium finis sit — and hence the decision of the competent authority must be accepted and settle, so long as it stands, the question of right. In other words, the question of legal right, when a matter of reasoning at least, is, as we have already said, what the law giver declares.
That is somewhat indefinite, and alone would leave the question much at large. But the lawgiver has been constantly em ployed in deciding questions of legal right, and in so doing has found a way of provid ing, and has provided, a body of law, con sisting of doctrines and rules growing out of the general postulate of freedom to do what is reasonable, which are calculated to aid in solving future questions of right. These doctrines and rules make the first limitation upon freedom to do what is rea sonable. So far freedom is hedged about and its meaning narrowed. The limitation itself may or may not rest upon good foundation; but in any case the field of doubt is nar rowed, so long as the limitation holds. Under the pressure of sound theory, which should shift the center of gravity from mere precedent to custom and the pursuits of men generally, rules not well supported should be constantly passing away — " con stantly," for the process must always be going on; still while they live they play their part in the determination of legal rights. Most of the settled rules of' law however, stand upon firm ground and so have properly narrowed the field. The laws relating to tort furnish examples of both kinds of limitation. But whether of the one kind or the other, they afford great help in determining a question of particular legal rights. The law may not decide a given case, for the other limitations, procedure, and the personal factor, must be reckoned with, and the case may further be complex and require reasoning, beyond au thority, where men may differ; but it will be found, nevertheless, that the law has much hedged about the difficulties and will go a long way towards settling the specific question. Still it must be said that, even with the help of the most definite rules of law, legal right, when brought in question before the courts, means, in all but the simplest cases, what the judge (or it may be the judge and a jury) decides.
