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THE GREEN BAG
and a large portion of the public as to the end of law, and thus makes administration of justice, adjustment of relations of indi viduals with each other and with the state, in accordance with the moral sense of the community, difficult, if not impossible. But this accord of legal result and public moral sense is a bulwark of the law. Whenever that is weakened or impaired, the law must of necessity suffer. The shifting of the growing-point of law from judicial decision to legislation leads to a complete change in what is demanded of the courts. When courts were relied on to make the law as well as to apply it, the exigencies of each case of necessity yielded to the public demand for a sound rule. As it was put, " John Doe must suffer for the Commonwealth's sake." But today the public do not look to the courts to work out principles and formulate rules. That work, for the most part, has been done. So far as it is undone, the public look to the legislature to do it. Hence today the demand is for satisfactory decision of individual cases. And elective courts naturally respond to that demand by lax or, if you will, equitable, methods of applying the law to concrete cases, which are out of accord with legal theory.1 Finally, shifting of relative importance of individual and society leads to a complete change in the relation of law to administration, a relation with respect to which our common-law polity is characteristic and difficult of readjustment. To the necessary and inevitable difficulties in the way of enforcement of law which grow out of the conditions just enumerated, one further cause of difficulty must be added, which is unnecessary and avoidable, —• one, indeed, which has no excuse for existence in 1 A less important result of the growing importance of legislation in our law may also be noted as affecting respect for the legal system. "All the potency of the law to secure obedience depends upon habit, and habit can only be formed by lapse of time; so that the ready transition from the existing laws to others that are new is a weakening of the efficacy of law itself."—Aristotle, Politics, Bk. ii, Chap. 9.
a progressive age and among a business-like people — archaic judicial organization and obsolete procedure. Thus we may recognize four chief causes of the difficulties which beset enforcement of law today in the United States : (i ) Shifting of the standard of justice, shifting of the emphasis from property to person, shifting of the standpoint from individualism to collectivism, shifting of the end of law from the old so-called legal justice to the new social justice — a process which is going on the world over and is giving rise to the same problems even-where; (2) con flict between legal theory and judicial prac tice in the application of law; (3) want of accord of the common-law theory of the relation of law to administration with the needs of the time, so that on the one hand vigorous executive action is hampered and on the other hand the law staggers under a burden of administrativework it is ill adapted to and all application of law is made unduly difficult; and (4) the backwardness of judicial organization and procedure in America. I have discussed the shifting of the stand ard of justice now in progress on another occasion.1 Here we may simply note its connection with current problems of appli cation of law and its effect upon enforcement of and respect for legal rules. As justice, which is the end of law, is an ethical concep tion, theories as to the significance and the basis of law are usually direct reflections of corresponding ethical theories. But as law is conservative and even more lawyers are conservative, legal theory is very apt to be a reflection of ethical theory of the past. The older conception of law, to which very likely a preponderance of jurists as well as a great majority of practitioners still adhere, was thoroughly individualist. Blackstone has made it classical for us.3 This concep tion corresponds faithfully to individualistic 1 The Need of a Sociological Jurisprudence, 19 GREEN BAG, 607. 1 "The public good is in nothing more essentially interested than in the protection of every individual's private rights." — i Bl. Comm. 139.
