the jurist was trained are now made to appear as universal, unchallengeable and unchangeable. Thus there are two sides to natural law as we see the idea at work in legal history. For example, the lawyers, judges and teachers in the formative era of American law found their creating and organizing idea in the theory of natural law. This theory of an ideal universal law, to which an appeal lay from the received precepts of the inherited English law, was at work in legislation, in judicial decision, and in doctrinal writing and guided the creative process of applying reason to experience which has been the life of the law. But at the end of the formative era natural law became a stabilizing, not a creative, theory. It led to an idea of the constitution as declaratory of an ideal of the Anglo-American common law as in its main lines and characteristic doctrines an embodiment of universal, immutable precepts “running back of all constitutions.”105 Thus certain common-law doctrines and traditionally received ideals of the profession were made a superconstitution by which the social legislation of the end of the nineteenth century and fore part of the present century was to be judged.106
Natural natural law has been rested wholly on revelation, or on revelation supplemented by reason, or wholly upon reason. But the number of problems confronting the lawyer which can be solved from the Scripture is too small for practical purposes. The attempt to administer justice in the simple pious society of colonial New England from “the word of God” proved vain. Likewise the number which pure reason, either supplementing revelation or by itself, can solve satisfactorily is very small. Indeed, Kant at the end of the eighteenth century effectively demonstrated the limitations of pure reason. For the greater part we have to find by experience workable adjustments of relations and orderings of conduct which will satisfy the most of the expectations incident to life in civilized society with the least friction and waste. From antiquity one of the foundations of natural law was found in the universal and unchallengeable obligation to keep a promise.107 But humanitarian ideas of the full individual social and economic life and psychological juristic ideas of frustration have been creating all over the world what has been called “the right not to pay debts.”108 The attempt to solve all legal liabilities for loss and injury by a moral proposition that liability was necessarily and solely a corollary of fault, put as a fundamental principle in the Code Napoléon, has failed everywhere.109 Often the problem is one of fixing the incidence of a loss among a number of innocent victims. Where no one has been at fault the humanitarian thought of today is not satisfied to leave the burden of a loss upon the luckless victim on whom it fell. Even when an individual has brought an injury upon himself in whole or in part by culpable failure to exercise reasonable care and diligence the humanitarian morals of the time shrink from making him bear the whole burden. What it comes to is that we make the best practical adjustment we can by experience developed by reason and reason tested by experience in order to solve practical problems in a complex social and economic order which do not admit of satisfying solution by simple moral maxims of universal validity. But we must have rules of decision if social control is to be maintained. Men will not long submit to arbitrary subjection of their wills to the wills of others.
In urging this I am not for a moment preaching against conformity of law and of the application of laws to an ideal of justice. Indeed, it is such conformity, so far as we can bring it about, that makes social control through the force of politically organized society tolerable. Does not this mean that natural law has its real function as a critique of the ideal element in the positive law rather than as a test of the validity of positive laws or an authoritative guide to all lawmaking and all application of laws? When we do more we ask too much of natural law and impair its effectiveness for what it can do.
Throughout the world today law, legal institutions, and justice according to law have been under attack for a generation. People are dissatisfied with law and have been willing to try experiments in government without law because they have felt that the law was not operating lawfully. Especially in dealing with the many new questions and providing for newly pressing interests involved in a changing economic and social order, law has been falling short of what was expected of it. We see clearly enough that the received idea which governed in the last century and had been taking form since the sixteenth century is not a true picture of the society of today. But we have not as yet been able to draw an exact picture of that society to take the place of the old one. Perhaps the change has not gone far enough so that we can expect to draw the new picture with assurance. In consequence solution of new legal problems comes to be too much at large. With no well-understood ideal to guide exercise of the force of a politically organized society its exercise becomes personal to those who wield it and arbitrary and so at variance with the very idea of law. A regime of force is substituted for a regime of law. If we are inclined to think badly of the regime of law as it operated in the latter part of the last century, we must nevertheless admit that it achieved much more toward civilization than the regimes of force have been achieving today.
The idea of civilization, the raising of human powers to constantly greater completeness, the maximum of control over external or physical nature and over human or internal nature, of which men are for the time being capable, seems to me the starting point for understanding the social sciences. These two sides of civilization are interdependent. Without the control over internal nature which men have developed, they could have done little toward the conquest of external nature. If men had to go about armed in fear of attack, if they could not assume that others will commit no intentional aggression upon them and will exercise due care not to cast unreasonable risk of injury upon them, it would not be possible to carry on the research and experiment and investigation which have made possible the harnessing of so much of physical nature to man’s use. Thus control over internal nature has made it possible for enormous populations which now occupy the earth to maintain themselves. It has enabled man to inherit the earth and to maintain and increase that inheritance. What this mastery over internal nature is, how it has been achieved, and above all how it may be maintained, furthered and transmitted are the subject matter of the social sciences.
Immediately control over internal nature is maintained by social control; by the pressure upon each man brought to bear by his fellow men in order to constrain him to do his part in upholding civilized society and to deter him from conduct at variance with the postulates of the social order. The major agencies of social control are religion, morals, and law. In the beginnings of law these are not well differentiated. They are increasingly differentiated with the development of politically organized society and after the sixteenth century law becomes more and more the paramount agency.
But organized religion is by no means the least of the three agencies. For a long time in the history of civilization it carries the greater part of the burden of social control. Much of the beginnings of law took over religious institutions and religious precepts and put the force of the state behind them. In the beginnings of English law we find one of the Anglo-Saxon kings exhorting his people as Christians to keep the peace instead of commanding them to do so as subjects.1 On the downfall of the Roman empire in the West the church was the chief agency of social control for some six centuries, and in the later Middle Ages the courts of the church and the law of the church divided jurisdiction over adjustment of relations and ordering of conduct not unequally with the courts of the state. Religion still has an intimate relation to the ideal element in law. One of the leading jurists of today tells us that for our measure of values, which he considers philosophy cannot give us, we must turn to religion.2
There has been no such effective organization behind morals as an agency of social control as there has been everywhere behind religion. But in kin-organized societies the kin-group disciplined the kinsman whose conduct brought reproach upon his
