SOCIOLOGICAL JURISPRUDENCE demanded by the idea of social justice. When the standard is equality of freedom of action, all classes other than those few and simple ones, based on so-called natural incapacities, such as infancy and lunacy, are repugnant to the idea of justice. When the standard is equality in the satisfaction of wants, such classification and such return in part to the idea of status are inevitable. Even more marked and of longer standing is the weakening of extreme doctrines of fides est servanda through the shifting to the idea of social justice. Here again the point of view of the common law was extremely individualist. It left the indi vidual free to assume whatever obligation he chose and to determine its details for himself. But here, as elsewhere, it imposed a responsibility corresponding to this free dom. If he chose to assume an obligation, the common law held him to it jealously. He had weighed the risk and had taken it. As he was allowed to incur it like a man, he must bear its consequences like a man. Hence common-law judges were extremely reluctant to permit contract debtors to escape by availing themselves of the statute of limitations, and for a time very nearly nullified that statute so far as it applied to debts.1 But to-day exemption, homestead, and appraisement statutes, not to speak of bankruptcy and insolvency laws, greatly restrict the power of the creditor to enforce the liability assumed.2 There is a growing sentiment that the creditor who extends credit should assume a risk. The principle that promises must be kept yields to the demand that satisfaction of the reasonable 1 See an interesting discussion of this in ' Pritchard v. Howell, i Wis. 131. 2 See also the recent attempt of the federal cir cuit court to force a scheme of reorganization upon reluctant creditors of a public service company in the Chicago Traction Cases. Whatever view may be taken of this decree, it is a sign of the times.
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wants of the debtor be first reasonably provided for. In all cases of divergence between the standard of the common law and the stand ard of the public, it goes without saying that the latter will prevail in the end. Sooner or later what public opinion demands will be recognized and enforced by the courts. A Bench and Bar trained in individualist theories and firm in the persuasion that' the so-called legal justice is an absolute and a necessary standard, from which there may be no departure without the destruc tion of the legal order, may retard but cannot prevent progress to the newer standard recognized by the sociologist. In this progress lawyers should be conscious factors, not unconscious followers of popular thought, not conscious obstructors of the course of legal development. To this end it is the duty of teachers of law, while they teach scrupulously the law that the courts administer, to teach it in the spirit and from the standpoint of the political, eco nomic, and sociological learning of to-day. It is their task to create in this country a true sociological jurisprudence, to develop a thorough understanding between the people and t*he law, to insure that the common law remain, what its exponents have always insisted it is — the custom of the people, the expression of their habits of thought and action as to the relations of men with each other. And if in so doing they must often take issue with courts and practitioners and books of authority as to the nature of justice and of rights and the basis of current legal conceptions and of received principles, they may say as the naturalist to his more conservative colleagues: " raisonniert so viel ihr wollt, aber Jugt Euch in das wissen schaftlich unvermeidliclie. " 1 Lincoln, Neb. August, 1907. 1 Otto Kuntze, Revisio Generum Plantarum, III, fin.
