Page:The Green Bag (1889–1914), Volume 20.pdf/530

 ENFORCEMENT OF LAW ethics. The one puts as the end of law the protection of the individual. The other puts as the moral end the happiness of the individual. Today moralists and sociolo gists are taking another view of justice. Not liberation of energies but satisfaction of wants is made the central point.1 They are defining social justice. They are teaching that while equality is a concept of individualization, justice is a concept of co-ordi nation.2 In like manner jurists are taking a different view of law. The older formulas are characteristically individualist. Indi vidual rights are the foundation of Blackstone's whole system. Although Austin so far departed from orthodox theory as to lay down that " duty is the basis of right,"* his followers, who ordinarily adhered almost slavishly to his formulas, without exception make individual rights the end of law. On the continent also, until recently individualist formulas were current. Savigny held that the end of legal rules was to give secure and free opportunity to the existence and activity of each individual.4 A German institutional book on Roman law translated and widely used by students in this country puts as the end of law the granting to individuals a power over the outside world.5 Contrast with these older statements the social con ception of law upon which continental jurists are now insisting. Ihering defined law as " the securing, under the form of constraint, of the vital conditionsof society."8 Jellinek defines it as " the sum of conditions necessary for the maintenance of society."7 A French author has recently defined it as "the aggregate of rules whose application should assure the normal functioning of 1 Ward, Applied Sociology, 22-24. • Small, General Sociology, 603. 3 Jurisprudence, Lect. xvi. 4 System des heutigen romischen Rechts, i, §52. 5 Sohm, Institutes of Roman Law, §7. In the last German edition the author substitutes for this a. formula, from the sociological standpoint. 1 Die sozial-ethische Bedeutung von Recht, Unrecht, und Straf, 42.
 * Zweck im Recht, i, 434.

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society." 1 In other words, the center of juristic theory is no longer the individual; it is society. But legal theory lags. While moralists, sociologists and the more advanced jurists have taken up the social conception, the individualist conception dominates the law. Juries are conscious that the law in some way does not accord with the general sense of right, and find verdicts which are crude attempts to vindicate half-grasped conceptions of social justice. Judges feel that settled legal doctrines are leading them in particular cases to results that jar their feelings of right and of distributive justice, and resort to lax or equitable application of the law. Thus the legal machinery loses precision and accuracy of operation. Cer tainty is impaired, and as these failures of the judicial machine to work true become generally perceived, lack of confidence in the legal system results. Of course this friction between ethical and sociological theory and legal theory is a temporary phenomenon. When the shifting to the newer standard of justice is accom plished, when education and the labors of sociologists have brought about the internal conditions of life measured by reason, the judicial machine will run normally once more and law will speedily take care of the external conditions. Conflict between legal theory and judicial practice in the application of legal rules is a more subtle but also more active cause of lax enforcement of and popular disrespect of law. This conflict arises naturally out of the shifting of the growing-point in our legal system from judicial decision to legislation. The first century of American legal history was a period of growth. The principles of the common law had to be tested with reference to American conditions, social, economic, and political, and the application of the principles had to be adjusted accord ingly. This testing and adjusting being left to the courts, the growing-point was in 1 Worms, Philosophic des Sciences Sociales. ii, 210.