Page:Philosophical Review Volume 31.djvu/623

No. 6.] It is evidently because of the fruitfulness of the method employed by juristic science that Professor Pound considers Anglo-American law fortunate in entering upon a new period of growth with a well-established doctrine of law-making by judicial decision. He declares that if the causes of the backwardness of the law with respect to social problems are to be found in the traditional element of our legal system, the surest means of deliverance are also to be found there. "Given new premises," he says, "our common law has the means of developing them to meet the exigencies of justice and of molding the results into a scientific system" (p. 185). Indeed, he finds that "a shifting was in progress in our case law from the individualist justice of the nineteenth century ... to the social justice of today even before the change in our legislative policy became so marked"; and he enumerates eight noteworthy changes in the law in the present generation which are in the spirit of recent ethics, recent philosophy and recent political thought (p. 185). This infusion of social ideas into the traditional element of our law must go on, for "a body of law which will satisfy the demands of the society of today can not be made of the ultra-individualist materials of eighteenth-century jurisprudence and nineteenth-century common law based thereon, no matter how judges are chosen or how often they are dismissed. ... The way must be prepared by juristic science and by careful legislation, worked out consistently and upon a clear program, as the legislation of the reform movement in the first half of the nineteenth century was framed on the basis of Bentham's doctrine of utility" (p. 190). What juristic science will have to do in the future is to add to its method by studying the social operation of rules and doctrines and the effects which they produce in action, in order to determine how far they achieve the ends of law.

All this sounds reasonable; the only wonder is that the philosophy of utilitarianism, which received its warmest welcome in the home of the common law, exercised such little influence upon the common law, and that all theories of the law should have remained individualistic until the coming of Jhering who drew his inspiration from English utilitarianism. Professor Pound, who points out that the votaries of the social sciences not so long ago confirmed the lawyers in the ideas they found in their lawbooks, would most likely reply that even teleological moralists like Mill and Spencer who set up the general happiness as the supreme end in their ethics, were individualists in law and politics. They, too, like the jurists, were dominated in their legal and