Page:The Green Bag (1889–1914), Volume 18.pdf/158

 THEORY AND DOCTRINE OF TORT law is the resultant of social forces working in the State, which resultant may very well conform to moral standards; but where the social resultant falls below the moral stand ard, the case is a matter for the ethical and the religious teacher rather than for muni cipal law. When the higher moral and relig ious impulse becomes the dominating energy in society, then the legal standard may be expected to rise accordingly. What then is the controlling idea as mani fested in the social standard or predominat ing energy of the present time? Is it not that the weaker may be pushed to the wall? And if this is not done by the coarser methods of brutality or deception, or by malicious combination, is not the legal standard in agreement with the social? Recent cases leave no doubt.1 This may import a low standard of ethics, but if the law is to be better from a moral point of view, the dominating power must first become better. Exceptionally some strong lawgiver may lift a small part of the law above the common level; but generally the law will correctly represent the prevailing standards, changing only as those standards change. The social energy may indeed differ at different times; to-day capital may dominate society, to-morrow labor may prevail, the next day morals, or religion, as in the seven teenth and eighteenth centuries was the case under the New England theocracy; 2 or there may be such an even-handed struggle that nothing is settled, and the law vacillates in uncertainty so far as it relates to such conditions. But when energy in any one direction predominates and makes good its hold upon the State, the result will be deter mined. The law is the servant of the dominating social energy;* and malice accord1 Mogul Steamship Co. v, McGregor, 1892, A. C. 25; Plant v. Woods, 176 Mass. 492. 63. 64, 150, 151. 1 This dominant social energy, under the New England theocracy, was not much troubled
 * Centralization and the Law, 6, 12, 23, 45-47,

'35

ingly may at any time be held enough to overcome the "legal right" of common law reasoning, that is, to declare that that which reasoning would fix upon as legal right is not legal right at all. So much for full common law legal right. Unfolding further the general idea of right, we have now to consider privilege as mere permissive legal right. The question whether such right as a defense is affected by intent or motive is much simpler than the other. The answer, indeed, is found in the very terms of the permission. The per mission, as has already been seen, is granted on the terms, express or implied, that it shall be acted upon in good faith — that the motive shall be the one supposed. A gives B license to enter upon A's land, or invites B to accept hospitality at A's house, or extends some other favor of the kind, in derogation of his own rights. B accepts, or is assumed to accept, the favor in the way it is given; his motive in accept ing it is, or is assumed to be, in accord with A's kindly act — his intent, to act upon the favor in good faith. If then his motive be inconsistent with what A understands it to be — if it be a bad motive, a malicious mo tive — or if, while the motive may be said to be good, as where it is merely self-interest, the intent still is bad, as when B is endeavor ing to get some advantage over A which A would not grant — in either case the terms on which the favor is granted have not been complied with, and B has no standing in law against A. The license, the right of hospitality, or like favor, never took effect; B is a trespasser. When, therefore, it is said, as sometimes it has been, that an evil motive (malice) will not effect an act which otherwise is lawful, the word "lawful " must be understood in the with nice questions of the remedy; it made use of transportation, injunction, mandamus, or whatever else suited the purpose. It is a per fect illustration of law as the expression of the prevailing social energy, in this case in full power.