In this process it may happen that as a last resort the court must pass upon the relative merit of the several possible interpretations from an ethical standpoint. Also in those exceptional cases for which ordinary legal remedies are not adequate, a court of equity may have a certain margin of power to go upon the moral aspects of a case in granting or denying extraordinary relief. In a few matters there are “mixed questions of law and fact” where the trier of fact, in adjusting a legal standard to the facts of a particular case, may find opportunity for an incidental moral judgment. Finally some matters of administration must be left more or less to the court’s personal sense of what is right. All this is put as if in its everyday course judicial justice was quite divorced from ideas of right and morals, with intrusion of morals into the legal domain only in a residuum of cases for which adequate provision had not been made, or in which an administrative element still lingered in the courts instead of being committed to the executive. But this plausible account represents juristic desire for a certain uniform, predictable justice much more than it represents the judicial process in action. In appellate tribunals the difficulty that brings the cause up for review is usually that legal rules and legal conceptions have to be applied by analogy to causes that depart from the type for which the precept was devised or given shape. Such departures vary infinitely. Hence choice from among competing analogies and choice from among competing modes of analogical development are the staple of judicial opinions.67 The line between “genuine” and “spurious” interpretation can be drawn only for typical cases. They shade into one another and a wide zone between them is the field in which a great part of appellate decision must take place. Likewise the extraordinary relief given by courts of equity has become the everyday form of justice for large classes of controversies and legislation has been adding new classes.68 Moreover, transition to an urban, industrial society has called increasingly for administrative justice and tribunals with flexible procedure and wide powers of discretionary action have been set up everywhere in increasing number. In fact, there are continual points of contact with morals at every turn in the ordinary course of the judicial process. A theory which ignores them or pictures them as few and of little significance is not a theory of the actual law in action.69
Morals are more than potential material for the legislative lawmaker. Ethics can serve us more than as a critique of proposed measures of lawmaking as presented to the legislator. To that extent the analytical jurist was wrong. But in another respect to some extent he was right. When we have found a moral principle we cannot stop at that. There is more to do than formulate it in a rule of law. We must ask how far it has to do with things that may be governed by rules of law. We must ask how far legal machinery of rule and remedy is adapted to the claims the principle recognised and would secure. We must ask how far if we formulate a precept in terms of our moral precept it may be made effective in action.70 Even more we must consider how far it is possible to give the moral principle legal recognition and legal efficacy by judicial decision or juristic reasoning on the basis of the received legal materials and with the received legal technique without impairing the general security by unsettling the legal system as a whole.71 As a fifteenth-century lawyer put it, some things are for the law of the land, some things are for the Chancellor and some things are between a man and his confessor.72
Assuming that their provinces are neither identical nor wholly distinct, what sets off their respective domains? If there are two forms or modes of social control, each covering much of the same ground, yet each having ground that is peculiarly its own, what determines the boundary between them? Is it a distinction in subject matter or in application of legal precepts and moral precepts, or is it in both? Analytical jurists have maintained that it is in both.
With respect to subject matter it is said that morals have to do with thought and feeling, while the law has to do only with acts; that in ethics we aim at perfecting individual character, while law seeks only to regulate the relations of individuals with each other and with the state. It is said that morals look to what is behind acts rather than to acts as such. Law, on the other hand, looks to acts, and only to thoughts and feelings so far as they give character to acts and determine the threat to the general security which they involve.73 The act with malice or dolus is more antisocial than the one with mere stupidity or a slow reaction time behind it. Hence the criminal law calls usually for a guilty mind behind the act. But in a crowded community where mechanical agencies of danger to the general security are in everyday use and many sorts of activity incidentally involve potential infringement of social interests, thoughtlessness and want of care, or stupidity, or even failure to control one’s agent or to keep in hand an agency one maintains, may be as antisocial as a guilty mind, and so a group of legal offences may be defined which take no account of intent.74
Next it is said that as between external and internal observance of the dictates of morals the law has to do with the former only. Thou shalt not covet thy neighbor’s ox is a moral rule. But unless the covetousness takes outward form, e.g., in larceny, the law does not and indeed cannot deal with it.75 Not that the law necessarily and wholly closes its eyes to the internal. But law operates through sanctions; through punishment, substitutional redress, specific redress, or forcible prevention. Hence it must have something tangible upon which to go. Prosecution of Mr. Pecksniff for hypocrisy would achieve more harm than good. The story of the schoolmaster who said, “Boys be pure in heart or I’ll flog you,” is in point.76 Purity in speech and act is the most the penalty of flogging can insure. The lawmaker must have in mind the practical limitations involved in application and administration of laws. He must not suppose he can bring about an ideal moral order by law if only he can hit upon the appropriate moral principles and develop them properly by legislation.
But nineteenth-century jurists were inclined to carry this too far and to ignore moral considerations simply on the ground of a distinction between the legal and the moral. Because it is impracticable to make the moral duty of gratitude into a legal duty, it does not follow that the law is to deal only with affirmative action and not seek to enforce tangible moral duties not involving affirmative action, even though enforcement may be practicable.
For example take the case of damage to one which is clearly attributable to willful and morally inexcusable inaction of another. Suppose a case where there is no relation between the two except that they are both human beings. If the one is drowning and the other is at hand and sees a rope and a life belt in reach and is inert, if he sits on the bank and smokes when he could act without the least danger, the law has generally refused to impose liability. As Ames put it, “He took away nothing from a person in jeopardy, he simply failed to confer a benefit upon a stranger. . . . The law does not compel active benevolence between man and man. It is left to one’s conscience whether he will be the good Samaritan or not.”77
What difficulties are there here to make legislatures and courts and jurists hesitate? To some extent there are difficulties of proof. We must be sure the one we hold culpable was not dazed by the emergency.78 Again he who fails to act may assert some claim which must be weighed against the claim of him whom he failed to help. In the good Samaritan case79 the priest and the Levite may have had cause to fear robbers if they tarried on the way and were not at the inn before sunset. Also it may often be difficult to say upon whom the legal duty of being the good Samaritan shall devolve. If a woman has a fit in a bank, does the duty fall upon the bank as a corporation or on the bank officers and employees present, as individuals, or on the bystanders? Or, take a case where a man was severely injured, without fault of the employees of a railroad company, while attempting to cross ahead of a moving car.80 Why should the moral duty to be good Samaritans fall upon the employees as servants of the company rather than upon them as individuals? However, the case of an athletic young man with a rope and life belt at hand who sits on a bench in a park along a river bank and sees a child drown does not present these difficulties. Yet the law has made no distinction. Practical difficulties are not always or necessarily in the way. In the case put there is nothing intrinsic in the moral principle which should prevent legal recognition of it and the working out of appropriate legal precepts to give it effect. Indeed, a cautious movement in this direction may be seen in American decisions. In most of the cases there was
