has not yet succeeded in driving even from the biological sciences, are also to be reckoned with. In any event this extreme division of labor had its good side, since analysis and legal history, pursued excessively for a time, have afforded results upon which a new philosophy of law may proceed with assurance. The bad side was the abdication of all juristic function in improving the law, the abandonment of juridical idealism, and the reduction of those who were best qualified to take conscious part in legal development to the position of mere observers. Coinciding with a period of maturity and stability in the law, this juristic pessimism coincided also with the dominance of the idea of laissez faire in economics. Thus the conception of the end of law as an unshackling of individual energy, as an insuring of the maximum of individual free self-assertion, gave rise to a conception of the function of law as a purely negative one of removing or preventing obstacles to such individual self-assertion, not a positive one of directly furthering social progress.

Five types of nineteenth-century juristic thinkers deserve consideration. They may be called (1) the metaphysical jurists, (2) the English utilitarians, (3) the historical jurists, (4) the positivists, and (5) the social-individualists.

Metaphysical jurisprudence begins with Kant, who puts in its final form the conception of the end of law which came in with the Reformation. In principle the Reformation denied the authority of any doctrine the evidence of which the individual could not find in his own reason and denied the authority of any rule which could not be referred to the will of the individual to be bound. Hence the

8 KANT, METAPHYSISCHE ANFANGSGRÜNDE DER RECHTSLEHRE, 2 ed., 1798, English translation, KANT'S PHILOSOPHY OF LAW, by Hastie, 1887 (a good exposition may be found in 2 CAIRD, THE CRITICAL PHILOSOPHY Of Kant, 293–350); FICHTE, GRUNDLAGE DES NATURRECHTS, 1798, new ed. by Medicus, 1908, English translation, FICHTE'S SCIENCE OF RIGHTS, by Kroeger, 1889; HEGEL, GRUNDLINIEN DER PHILOSOPHIE DES RECHTS, 2 ed. by Gans, 1840, new ed. by Lasson, 1911, English translation, HEGEL'S PHILOSOPHY OF RIGHT, by Dyde, 1896; KRAUSE, ABRISS DES SYSTEMES DER PHILOSOPHIE DES RECHTES, 1825; KRAUSE, SYSTEM DER RechtsPHILOSOPHIE (posthumous), ed. by Röder, 1874; AHRENS, COURS DE DROIT NATUREL, 8 ed., 1892 (1 ed., 1837); RÖDER, GRUNDZüge des NaturRECHTS, 2 ed., 1860; GREEN, PRINCIPLES OF POLITICAL OBLIGATION, reprinted from his Complete Works, 1911 (lectures delivered 1879-80); LORIMER, INSTITUTES OF LAW, 1880; LASSON, LEHRBUCH DER RECHTSPHILOSOPHIE, 1882; MILLER, LECTURES ON THE PHILOSOPHY OF LAW, 1884; BOISTEL, Cours de PHILOSOPHIE DE DROIT, 1899; HERKLESS, LECTURES ON JURISPRUDENCE (posthumous),

elaborate arguments by which eighteenth-century jurists seek to make out that each individual has consented to the law through representatives or has willed it through a social compact. In Kant this fiction of consent of the individual will is replaced by an imposition upon the individual free will through the reciprocal action of free wills whereby they may be reconciled by a universal law, which, therefore, is imposed by a necessity inherent in the very idea of freedom.10 Thus we realize individual freedom through rules of law, and the end of law is "to keep self-conscious beings from collision with each other, to secure that each should exercise his freedom in a way that is consistent with the freedom of all others, who are equally to be regarded as ends in themselves." 11

Kant's separation of each man from the social organism was characteristic of the eighteenth century. But this putting of the individual person at the center of juristic theory and the individual conscience at the center of ethical theory "separated him also from the past out of which his intellectual life had grown.' "12 Hegel saw that it was unhistorical and took the moral organism for the central point of his ethical theory.13 Here we have the beginning of a new point of view, which becomes significant in the social philosophical jurists at the end of the century. But nineteenth-century metaphysical jurisprudence remained thoroughly individualist. It insisted not on the proposition that freedom was the realization of the universal will but on the proposition that the end of man was freedom.14 It developed the idea of free will into the practical consequence of civil liberty, an idea of general freedom of action for individuals. Hence the end of law was to secure to each individual the widest possible liberty. The justification of law was that there

9 I BLACKSTONE, COMMENTARIES, 140, 158-59; 1 WILSON, WORKS (Andrews' ed.), 88-89 (written 1790); WOODDESSON, ELEMENTS OF JURISPRUDENCE, Xvii (1792).

10 RECHTSLEHRE, 2 ed., xxii-xxiii. See a good exposition of this in 2 CAIRD, 296300. Compare HERKLESS, LECTURES ON JURISPRUDENCE, 14-15.

11 2 CAIRD, 296.

12 I CAIRD, 64.

13 GRUNDLINIEN DER PHILOSOPHIE DES RECHTS, § 33. See WALLACE, HEGEL'S PHILOSOPHY OF MIND, 21-23; 3 ERDMANN, HISTORY OF PHILOSOPHY (Hough's transl.), 4.

14 See 2 STIRLING, THE SECRET OF HEGEL, 551-52; CROCE, CE QUI EST VIVANT ET CE QUI EST MORT DE LA PHILOSOPHIE DE HEGEL, 114. "The history of the world is nothing but the development of the idea of freedom." HEGEL, PHILOSOPHY OF HISTORY (Sibree's transl.), pt. IV, ch. 3.

is no true liberty except where there is law to restrain the strong who interfere with the freedom of action of the weak and the organized many who interfere with the free individual self-assertion of the few.15 The test of right and justice was the amount of liberty secured.16 Though Anglo-American jurists paid little or no attention to the systems of the metaphysical school, its central idea of abstract individual liberty fitted into our eighteenth-century individualism so well that the school began to have some influence in the United States 17 until a new and more attractive mode of getting to the same result was furnished by the positivists.

While the metaphysical jurists were deducing the whole system of

15 "The value then of the institutions of civil life lies in their operation as giving reality to these capacities of will and reason, and enabling them to be really exercised. In their general effect . . . they render it possible for a man to be freely determined by the idea of a possible satisfaction of himself, instead of being driven this way and that by external forces, and thus they give reality to the capacity called will; and they enable him to realize his reason, i.e., his idea of self-perfection, by acting as a member of a social organization in which each contributes to the better-being of all the rest. So far as they do in fact thus operate they are morally justified." GREEN, PRINCIPLES OF POLITICAL OBLIGATION, 32-33. Cf. COURCELLE-SENEUIL, PRÉPARATION À L'ÉTUDE DU DROIT, 114; PULSZKY, THEORY OF LAW AND CIVIL SOCIETY, § 170; EMERY, CONCERNING JUSTICE, 108-09. See also BENTHAM, THEORY OF LEGISLATION (transl. by Hildreth, 10 ed.), 95.

16 I AHRENS, COURS DE DROIT NATUREL, 8 ed., §§ 17-18; TRENDELENBURG, NATURRECHT, § 46; LORIMER, INSTITUTES OF LAW, 2 ed., 353, 523.

"It reduces the power of coercion to what is absolutely necessary for the harmonious co-existence of the individual with the whole." I LIOY, PHILOSOPHY OF RIGHT (transl. by Hastie), 121.

"Every rule of law in itself is an evil, for it can only have for its object the regulation of the exercise of rights, and to regulate the exercise of a right is inevitably to limit it. On the other hand every rule of law which sanctions a right, which preserves it from an infringement, which protects it from a peril is good because in this way it responds to its legitimate end. Thus if law is an evil, it is a necessary evil." BEUDANT, LE DROIT INDIVIDUEL ET L'ÉTAT, 148 (1891).

Cf. MILLER, LECTURES ON THE PHILOSOPHY OF Law, 70–74.

17 "This, the sole legitimate end and object of law, is never to be lost sight of security to men in the free enjoyment and development of their capacities for happiness." SHARSWOOD, LEGAL ETHICS, 5 ed., 22.

"There is a guide which, when kept clearly and constantly in view, sufficiently informs us what we should aim to do by legislation and what should be left to other agencies. This is what I have so often insisted upon as the sole function both of law and legislation, namely, to secure to each individual the utmost liberty which he can enjoy consistently with the preservation of the like liberty to all others. Liberty, the first of blessings, the aspiration of every human soul, is the supreme object. Every abridgment of it demands an excuse, and the only good excuse is the necessity of preserving it." CARTER, LAW: ITS ORIGIN, GROWTH AND FUNCTION, 337.

rights and the idea of the end of the legal system from a metaphysical conception of free will, another school was seeking a practical principle of law-making. The metaphysical school was a school of jurists. They had their eyes upon the law as a whole, upon systems of law which had come down from the past, and they sought the principles upon which such systems and their doctrines could be based philosophically and by which rules of law might be criticized and their further development might be directed. The English utilitarians,18 on the other hand, were a school of legislators. The metaphysical jurists employed the philosophical method in jurisprudence and did not separate the science of law and the science of legislation. The English utilitarians developed the analytical method in jurisprudence and employed the philosophical method in the science of legislation. Accordingly while the metaphysical jurists sought principles of criticism of what was, the utilitarians sought principles of constructing a new body of law by conscious law-making. Bentham's life work was law reform.19 The practical principle which he laid down, as that which should govern legislative reform of law, was the principle of utility: Does the rule or measure conduce to human happiness? The principle of criticism which he urged was: How far does the rule or measure conduce to human happiness? This principle and this criterion might have been used to break down the individualist idea of justice as Jhering used the idea of purpose later. But at this time individualist ideas were too firmly fixed in men's minds to be questioned. For the individualist tradition of seventeenth and eighteenth-century thought was reinforced by economic reasons in the age of Adam Smith and the great British economists and by political reasons in the reaction from the age of absolute governments which made the period following the French Revolution fearful of centralized authority and jealous of local and individual independence. The

18 BENTHAM, PRINCIPLES OF MORALS AND LEGISLATION, 1780, reprinted by the Clarendon Press, 1879; BENTHAM, TRAITÉS DE LÉGISLATION (ed. by Dumont, 1802), English translation by Hildreth, BENTHAM'S THEORY OF LEGISLATION, IO ed. 1904; BENTHAM, PRINCIPLES OF THE CIVIL CODE, I Works, 295–364; MILL, ON LIBERTY, 1859. For the philosophical side, see ALBEE, HISTORY OF ENGLISH UTILITARIANISM; Stephen, THE ENGLISH UTILITARIANS. For the juristic side, see DICEY, LAW AND PUBLIC OPINION IN ENGLAND DURING THE NINETEENTH CENTURY, Lect. 6; SOLARI, L'IDEA INDIVIDUALE E L'IDEA SOCIALE NEL DIRITTO PRIVATO, §§ 31-36.

19 On Bentham's life and work reference may be made to ATKINSON, JEREMY BENTHAM.

criterion of the greatest good of the greatest number might easily be put in a way that would not be far from recent ideas of justice. Thus, that which serves for the happiness of the greatest number, used as a measure of the conduct of each, might serve as the basis of a social utilitarianism.20 But Bentham did not question individualism. He vacillated between an idea of utility as the greatest happiness of the individual and an idea of utility as the greatest happiness of the greatest number. In truth he did not need to choose between them since he assumed that the greatest general happiness was to be procured through the greatest individual self-assertion. Hence his fundamental principle was not substantially different from that of the metaphysical jurists." Negatively his program was, unshackle men; allow them to act as freely as possible. And this was the idea of the metaphysical school. Positively his program was, extend the sphere and enforce the obligation of contract. This, we shall see presently, was the idea of the historical school.

Bentham's principle, then, was: Allow the maximum of free individual action consistent with general free individual action. Thus the end of law came to the same thing with him as with the metaphysical jurists, namely, to secure the maximum of individual self-assertion. Bentham's theory of the legal order made a strong appeal to the common-law lawyer. Our Anglo-American legal system had kept much of the individualism of the strict law. The stage of equity and natural law had by no means made it over and the development of equity was not complete in England when English law was received in this country.22 Moreover, in the classical contests between the courts and the crown in the seventeenth century the common law had been made to stand between the individual and oppressive state-action. Thus the common-law tradition was thoroughly individualist, and this tradition was especially congenial to the Puritan, who was dominant in America down to the time of the Civil War.23 However much the practising 20 Cf. TANON, L'ÉVOLUTION DU DROIT ET LA CONSCIENCE SOCIALE, 3 ed., 185–89. 21 Dicey has formulated it thus: "Every person is in the main and as a general rule the best judge of his own happiness. Hence legislation should aim at a removal of all those restrictions on the free action of an individual which are not necessary for securing the like freedom on the part of his neighbors." LAW AND PUBLIC OPINION IN ENGLAND, 2 ed., 146.

22 See Pound, "The Place of Judge Story in the Making of American Law," 48 Aм. L. REV. 676.

23 See Pound, "Puritanism and the Common Law," 45 AM. L. REV. 811. To be