6l2
THE GREEN BAG
as much the circumstances and conditions, gists speak of this conception as "legal jus social and economic, to which these prin tice," and it is sometimes assumed that ciples are to be applied; he should know law must needs aim at a different kind of the state of popular thought and feeling justice from what is commonly understood which makes the environment in which and regarded by the community. But the principles must operate in practice. this cannot be. Law is a means, not an Legal monks who pass their lives in an end. Such a divergence cannot endure atmosphere of pure law, from which every unless the law is in the hands of a progres worldly and human element is excluded, sive and enlightened caste whose conceptions cannot shape practical principles to be are in advance of the public and whose applied to a restless world of flesh and leadership is bringing popular thought to blood. The most logical and skillfully a higher level.1 When, instead, law is in reasoned rules may defeat the end of law the hands of a highly cautious and conser in their practical administration because vative profession, whose thought on such not adapted to the environment in which matters lags behind, the divergence pro they are to be enforced.1 It is, therefore, vokes irritation at law and disregard of the duty of American teachers of law to its mandates . To-day, while jurists in Amer investigate the sociological foundations, not ica are repeating individualist formulas of of law alone, but of the common law and justice, sociologists are speaking rather of of the special topics in which they give "the enforcement by society of an artificial instruction, and, while teaching the actual equality in social conditions which are law by which courts decide, to give to naturally unequal. " * They are defining their teaching the color which will fit new justice as the satisfaction of everyone's generations of lawyers to lead the people wants so far as they are not outweighed by as they should, instead of giving up their others' wants.3 That this is the direction legitimate hegemony in legislation and of popular thought is shown by the uncon politics to engineers and naturalists and scious drift of the law in the same direction. economists. It is true we still harp upon the sacredness Without trenching upon points of con of property before the law. The leader troversy, it may be assumed that the of our profession tells us that a fundamental practical end of the administration of object is, "preservation of the rights of justice according to law, is such adjustment private property. " * A text book used in of the relations of men to each other and to more than one law school advises us that society as conforms to the moral sense of the "the right of property is of divine origin community. In the past this adjustment 1 An excellent example may be seen in the has conformed to the general moral sense history of equity in England. Equity was by proceeding along lines of strict individ unpopular, but it was in the right line of progress. ualism. The idea has been, so far as pos The chancellors, however, developed doctrines sible, to allow everyone to do and to acquire of an ultra-ethical character which went beyond the requirements of common sense, and these all that he can. The individualist con refinements of equity have been largely swept ception of justice as the liberty of each away. For instances of this, the doctrine as to limited only by the like liberties of all compensation of trustees, precatory trusts, and has been the legal conception. So com the rules as to clogging the equity of redemption pletely has this been true that sociolo- may suffice. ■ Ward, Applied Sociology, 23.
- Ward, Applied Sociology, 22-24, Willoughby.
1 See Brunner's comment upon the effect of the reception of Roman law in Germany on Social Justice, 20-25. 1 Argument of Mr. Choate in the Income Tax peasant possessions. Grundzuge der Deutschen Cases, 157 U. S. 429, 534. Rechtsgeschichte, 216.
