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we recognize that this was a mistake and that the social interest in general security dictated the very beginnings of law, so that individual rights were only a means gradually worked out for furthering this social interest, and rewrite our legal histories accordingly, we shall be able to make historical jurisprudence more effective. In the same way much that has been written as to individual natural rights, when recast from the standpoint of a social interest in security of acquisitions, may be made useful. But the jurist cannot work alone at this task. In order to construct a scheme of social interests that will serve the jurisprudence of tomorrow as the thoroughly elaborated schemes of natural rights served the jurisprudence of yesterday, the social sciences must coöperate. This does not mean that any jurist shall take all the social sciences for his province. It does mean, however, that he shall know that they all have materials for him and shall be willing and able to go to them therefor.
2. INDIVIDUAL INTERESTS 5
Individual interests which it is conceived the law ought to secure are usually called "natural rights” because they are not the creatures of the state and it is held that the pressure of these interests has brought about the state. In the stage of equity or natural law, when what ought to be law is made the test of what is, it is natural to confuse the interests which the law does secure, the interests it ought to secure, and the means of securing them under the one name of “rights.” Those which are secured and the means whereby they are secured are called legal rights; those which ought to be secured are called natural rights. The usual mode of proceeding has been to deduce natural rights from a supposed social compact or from the qualities of man in the abstract or from some formula of right or justice. The first was abandoned after Kant. With respect to the second, Wundt has said justly:
* Although he confuses the sociological conception of law with the conception of the historical school, Mr. Abbot's critique of sociological jurisprudence assumes the conventional interpretation of legal history. Justice and the Modern Law, 8-13. When some historian writes the history of juristic and judicial lawmaking viewed as social functions, it will be easy to vouch history for the other side. See my paper, Legislation as a Social Function, 18 American Journal of Sociology 755.
5 Brown, The Underlying Principles of Modern Legislation, chs. 7-8; Abbot, Justice and the Modern Law, ch. 1; Spencer, Justice, chs. 9-18. See also n. 1, p. 343. “Man in abstracto, as assumed by philosophies of law, has never actually existed at any point in time or space.” 6 With respect to the third, we may note that, as such formulas of right and justice in the nineteenth century were individualistic, we got in this way a scheme of fundamental individual rights, that is, individual interests which the law ought to secure, - above and beyond the reach of the state, which it was conceived the state could and must secure, but from which it was conceived the state could not derogate. The same conception was reached, indeed, by the second mode of treatment, that is, by deduction from the qualities of man in the abstract, because man in the abstract was conceived of as the individual man and not as the social man. Anglo-American juristic thinking has been especially insistent upon this conception of fundamental individual rights which, as natural rights, are quite above and beyond the reach of the state and to which social interests must yield.?
While it is true that the law recognizes individual interests but does not create them, it is quite as untrue that the law exists primarily in order to secure them or that state and law result simply from the pressure of such interests. As social institutions, state and law exist for social ends, and from the beginning have recognized and secured individual interests as a means thereto.
“The moral criterion by which to try social institutions and political measures may be summed up as follows: The test is whether a given custom or law sets free individual capacities in such a way as to make them available for the development of the general happiness or the common good. The formula states the test with the emphasis falling upon the side of the individual. It may be stated from the side of associated life, as follows: The test is whether the general, the public, organization and order, are promoted in such a way as to equalize opportunity for all."8 It is important to remember that the progress of civilization has given rise to many of these individual interests and that the growth of law has made men conscious of them. For the growth of law and the growth of consciousness of individual interests have gone on together. Recognition of such interests is relatively late in the development of law. The first interests to be recognized are group interests. With economic development, individual interests gradually arise out of these and come to be recognized. In the Roman law, recognition of the individual human being as the subject of rights, or, in other words, as having individual interests which the law should secure, is a doctrine of the ius naturale." But even the Roman law of the classical period did not recognize private rights in the sense of our eighteenth- and nineteenthcentury jurisprudence. This is especially true of the interest of substance or, as it is called, the natural right of property.10
6 Ethics (trans. by Titchener and others), III, 160.
? Blackstone, Commentaries, I, 129 ff., especially 139; Calder v. Bull, 3 Dall. (U. S.) 386 (1798); Fletcher v. Peck, 6 Cranch (U. S.) 87 (1810); Loan Association 7. Topeka, 20 Wall. (U. S.) 655, 662 (1874); Butchers' Union, etc. Co. v. Crescent City, etc. Co., II U. S. 746, 762 (1884); Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 237 (1897); Wynhamer v. People, 13 N. Y. 378, 387 (1856); Matter of Jacobs, 98 N. Y. 98 (1885); People v. Marcus, 185 N. Y. 257 (1906); Beal v. Chase, 31 Mich. 491 (1875); In re House Bill 203, 21 Col. 27, 39 Pac. 431 (1895); Braceville Coal Co. v. People, 147 IH. 66, 35 N. E. 62 (1893). See Berolzheimer, System der Rechts- und Wirtschaftsphilosophie, II, 160.
8 Dewey and Tufts, Ethics, 482-483.
In speaking of the administration of law by the British in India, Maine says:
“If I had to state what for the moment is the greatest change which has come over the people of India . . . I should say it was the growth on all sides of the sense of individual legal right; of a right, not for the total group, but for the particular member of it grieved, who has hecome conscious that he may call in the arm of the state to force his neighbors to obey the ascertainable rule." 11 Again, in speaking of the breaking up of village communities in India, he says:
“The probability, however, is that the causes have had their opuration much hastened by the English, but have not been created by them. The sense of personal right, growing everywhere into greater strength, and the ambition which points to wider spheres of action than can be found within the community are both destructive of the authority of its internal rules.” 12
9 Dig. L, 17, 32; XXVIII, 1, 20, $ 7; XXVIII, 8, 1; XLVIII, 10, 7.
10 Compare, for example, the ideas as to freedom of testamentary disposition in eighteenth- and nineteenth-century juristic thinking with the Roman law. Spencer, Justice, 8 68; Miller, Philosophy of Law, 311; Miraglia, Comparative Legal Philosophy (Lisle's trans.), $ 510; Beaussire, Les principes du droit, 265-271; Boistel, Philosophie du droit, I, $ 270. See also Hegel, Grundlinien der Philosophie des. Rechts, $ 180 (Dyde's trans., 184).
11 Village Communities, 7 ed., 73. 12 Id., 112.
Accordingly he tells us that partition of inheritances is demanded to-day everywhere in India and that: “the brethren of some one family are always wishing to have their shares separately.” What Maine saw going on in India in his time, legal history shows us has gone on in all systems.14 Up to the end of the eighteenth century the whole course of development of the law had been to disentangle individual interests from group interests and to protect and secure these individual interests by legal rights.
We may say, then, that the law slowly worked out a conception of private rights as distinguished from group rights. This culminated in the eighteenth century in a working out of individual interests as distinguished from public interests, to which our bills of rights, in which the natural rights of the individual are solemnly asserted against the state, still bear witness.25 Next the law began to work out social interests as such and to endeavor to reach a balance between individual interests and social interests. But there is a social interest in the individual moral and social life. In securing individual interests to this end, the law is securing a social interest. Therefore the problem ultimately is not to balance individual interests and social interests, but to balance this social interest with other social interests and to weigh how far securing this or that individual interest is a suitable means of achieving the result which such a balancing demands.
Individual interests may be classified as (a) interests of personality, — the individual physical and spiritual existence; (b) domestic interests, — "the expanded individual life;" 16 and (c) interests of substance, — the individual economic life.
All classifications are more or less arbitrary, and the foregoing also may seem to be of that character. For instance, defamation infringes both personality and substance, since one's reputation is an asset as well as a part of his personality. Indeed Spencer, in his discussion of natural rights, includes reputation under incorporeal property.17 Again, malicious prosecution of a civil action may infringe both personality and substance. Again, the common-law action for seduction is in form based on an injury to substance, not on an injury to a domestic interest. In fact, in the common-law system, injuries to domestic relations generally are in form viewed as infringements of interests of substance. But this is due to historical reasons. Along with so many other anomalies of our law, it arose from the exigencies of the action on the case, which was the only available remedy at common law. In consequence not only is this mode of viewing such injuries unjustifiable analytically, but it is largely disappearing in the modern law of torts. With the general development of law the lines between these interests are clearing and it is becoming apparent that the remedy must be applied with reference not to the act, but to the exact interest or interests which that act infringes.
13 Village Communities, 7 ed., 113.
14 See post, p. 356. 15 See Declaration of Rights of Virginia (1776), art. 1; Déclaration des droits de l'homme et du citoyen (1789), art. 2; Déclaration des droits de l'homme et du citoyen (1793), art. 1. 16 Paulsen, Ethics (Thilly's trans.), 634.
17 Justice, $ 62.
Many German jurists put domestic interests under interests of personality.18 Some of them put all individual interests in the first group,- that is, they regard all individual interests as interests of personality.19 The threefold distinction suggested above was made by Kant. He distinguished natural rights as (a) personal, that is, involving the physical person; (6) personal but real in kind, that is, having a certain relation to substance also; and (c) real, that is, involving the relations of individuals to things.20 Hegel criticizes this classification, arguing that all individual interests are interests of personality because, as he holds, all natural rights flow from the principle of respect for the free will of others.21 The central position of the free will in all legal philosophy in the nineteenth century led to a general acceptance of this view, and the indirect influence of the socialist jurists in Europe, who object to individual interests of substance, has kept it alive in the attempt to include as much as possible in what is taken to be an unimpeachable interest of personality. In the best recent discussion of the matter Adler prefers to confine the interest of personality to the physical person and the so-called spiritual person.
18 E. g., Lasson, System der Rechtsphilosophie, $ 48, par. 6.
19 Gareis, Science of Law (Kocourek's trans.), 122-135; Gierke, Deutsches Privatrecht, I, 702.
20 Metaphysische Anfangsgründe der Rechtslehre, $$ 11, 18, 24. 21 Grundlinien der Philosophie des Rechts, $ 40, n.
22 Die Persönlichkeitsrechte im allgemeinen bürgerlichen Gesetzbuch, Festschrift zur Jahrhundertsfeier des allgemeinen bürgerlichen Gesetzbuches, 165.