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that if a man of our race is compelled to choose, he will violate a positive law rather than perform an ungentlemanly act. We need call to mind but one instance to serve as an illustration of the powerful effect of these sanctions. On that dark April night when the "Titanic" collided with an iceberg in the North Atlantic Ocean there was an example of the imperativeness of the sanctions which obtain in this field. Men willingly, not in response to the commands of positive law, but because they were first of all and above all men and gentlemen, stood back, saying "Ladies first," and without hesitation they went to their death. In that hour of peril statutes were forgotten but the spirit of obedience to the unenforceable which resides in the hearts and consciences of gentlemen and gentlewomen everywhere rose to the occasion.
Let us briefly examine the development of law in this country, having in mind these three great domains of human action. We shall observe that during the last century, with the advent of the industrial revolution and through manifold inventions by which steam, electricity, and gas have been applied to processes of manufacture and transportation, we have moved away from the habits, customs, and traditions which obtained under the old agricultural order. We have not yet had time to acquire a new tradition. In bodies politic traditions cannot be made by resolution, as they are sometimes in the college world. Traditions are matters of slow growth, hence their great tenacity.
The movement from one order to the other has been one of tremendous rapidity. Here in the Middle West it has come within a hundred years. An index to its speed is furnished by the fact that we have produced and used more iron and steel since 1906 than in all the previous history of the country, and in the world at large more iron and steel has been produced since 1900 than in all the previous history of the world. We can see the beginnings of a new tradition, but there has not been time enough for the tradition to take shape. It is new, nebulous, and ineffective. In our efforts to adapt ourselves to this change we have had resort to positive law.
Especially since the period of the Civil War we have been lifting out of the domain of free choice and obedience to the unenforceable many things which had been there undisturbed for centuries, and by the enactment of statutes have placed them in the field of positive law. We have diminished the boundaries of the domain of obedience to the unenforceable and have correspondingly enlarged the domain of positive law, and have on occasions invaded the domain of free choice.
Much of this legislation has been necessary. The movement being too rapid for change in the traditional attitude of the people, resort to legislation was the only method by which a speedy adjustment could be made. In the year 1925 there were introduced into our legislatures, state and national, 49,141 bills, of which 16,298 became laws. From 1906 to 1925, both inclusive, there were introduced into our legislatures, state and national, 954,625 bills, of which 233,563 became laws. In addition to the work of the legislatures there were, in
almost every state, numerous commissions having power to enact rules and regulations having the force and effect of law. During the same period the courts were handing down from thirty to thirty-five thousand opinions annually, and yet there are people who think that a lawyer should know all the law. In the face of this mass of legislation and decision the individual finds himself as restricted in his action under the new régime of liberty as he was under the old régime of autocracy. In fact the conviction is growing that we have substituted one autocracy for another.
We have reached a point where we no longer put faith in the probity, honesty, and civic responsibility of our people. The tendency at the present time is to put nearly everything into the domain of positive law. Laws of the most sweeping character are enacted oftentimes to remedy a very slight irregularity or relieve a condition which would cure itself with the lapse of time. Even religion and learning, heretofore supposed to lie wholly in the domain of free choice, and from which are derived many of the sanctions which obtained in the field of obedience to the unenforceable, have not escaped the attention of the well-meaning but reckless lawmaker.
Neither here nor elsewhere will a defense of the doctrine of laissez faire be attempted, but it had some virtues and bore some good fruit. Under the influence of that doctrine it may be that individualism was unwarrantably emphasized, that the general welfare was sometimes sacrificed, and that it was better adapted to a stable though primitive society than to one as complex and shifting as the present industrial and commercial age. On the other hand it made for character in the individual. Each man became the architect of his own fortune, and it made for courage, strength, and virility in our people. Too great a reliance upon positive law results in a process of constriction and political deterioration. The remedy for too much positive law seems to be more law. The bands of the social order are continually tightened. Under such circumstances as this history teaches us that the social order finally flies apart in revolution always destructive of social values.
The transfer of control of human action in certain particulars from the domain of obedience to the unenforceable to the domain of positive law has a byproduct to which too little attention has been given. When an action lies within the domain of obedience to the unenforceable the individual may choose whether he will obey or not. The motives which prompt obedience are an index of the individual's sense of responsibility. He obeys not because he is compelled to obey, but because he chooses to obey. If, after exercising his best judgment, he thinks obedience should not be given, the whole responsibility for the decision is his. The whole process by which obedience is given is subjective. The prompting of obedience comes from within, not without, the individual.
When an action is removed from the domain of obedience to the unenforceable and placed in the domain of positive law, obedience to the law is enforced by the sovereign. The sanctions which obtain in that field are those annexed
to the statutes, and conformity to positive law closely approximates the power of the sovereign as represented by the police and the executive officers of the government to enforce obedience no enforcement, no obedience, except such as may obtain by a hang-over of those sanctions which impelled obedience when the act still remained in the domain of obedience to the unenforceable. In the domain of positive law, the process by which obedience is obtained is an objective process By taking the action out of the domain of obedience to the unenforceable and placing it in the domain of positive law an objective process has been substituted for a subjective process.
This substitution of one process for the other has more vital and far-reaching consequences than is ordinarily recognized. We deal at this point with some of the fundamental characteristics of human nature. Watson tells us that if a child is told to slide downhill twelve times the child quite naturally regards sliding downhill as a task. It is no longer play, but work; although the process is identical in each case, the attitude of mind is exactly opposite. Under one attitude the act is pleasurable; under the other it is disagreeable. In one instance the thing is done in response to a prompting of its own nature, and in the other it is commanded by a superior power and obedience involves a certain effacement of personality. When a matter is taken from the field of obedience to the unenforceable and put in the field of positive law, the natural tendency of people is to say, "If I am commanded to obey let those who command me compel me to obey. I shall obey so far as I am compelled to or feel compelled to, and not farther." The individual loses in some degree, not entirely of course, his sense of duty in the premises. The fact that he is compelled to yield a part of his personal freedom dulls his feeling of responsibility for the public welfare. He feels that responsibility has been lifted from his shoulders and placed upon the shoulders of the enforcing officers by the enactment of a statute. This alone of course will not account for the increasing amount of lawlessness of all kinds, small and great, among all classes of people, good and bad, but that it is a contributing factor there is no doubt. Plato said:1
Do you know that governments vary as the characters of men vary, and that there must be as many of the one as there are of the other? Or perhaps you suppose that States are made of "oak and rock," and not out of the human natures which are in them, and which turn the scale and draw other things after them?
The States are as the men are; they do but grow out of human characters.
It is certain that much legislation was necessary to bridge over the time while we were establishing a new tradition for the new order. On the other hand it must be conceded that the flood of legislation which we have witnessed, especially in the last forty years, has not been an unmixed blessing. If, as Plato says, "States do but grow out of human characters," we cannot forever neglect the effect upon human character of taking from the domain of obedience to the unenforceable those things which make for character and planting them by the enactment of a statute in the domain of positive law.
• Plato's Republic, Book VIII, chap. 543, lines 58-66.
With these observations as to the sanctions of law, what it is, and what it does, we come to a consideration of the relation of law to social progress, for we must bear in mind the relation of law to the whole field of human conduct in order to get a proper perspective of the subject with which we are dealing. While no one would attempt to define social progress, it is necessary to establish some limit to the field of our discussion in order to reach ground for common understanding. Even if we agree with Dr. J. B. Bury' that over long periods of time it is doubtful whether or not the race progresses, we may nevertheless indicate what we mean by social progress as applied to the period in which we live. We progress socially when society as a whole increases the material means by which it maintains itself, enlarges the opportunities of the individual citizen to require education and training in the humanities, sciences, and arts; promotes the public health; affords opportunity for recreation; stimulates the development of spiritual power, and gives to every citizen opportunity for the development of character and personality.
In a civilization where the mental and physical energy of the citizen is exhausted in an effort to obtain a bare subsistence there can be little social progress in the sense in which we use that term. Life becomes under such conditions a struggle for existence in which the fittest survive. Social progress depends on a per capita increase in the amount of consumable goods justly distributed-thereby releasing a certain amount of energy and time for us in other directions. Social progress is in direct proportion to the amount of released time and energy devoted to education, health, recreation, public affairs, and the like.
When we speak of the relation of law to social progress we mean the relation of substantive law to that subject. Procedural law has to do with the method by which rights are protected and wrongs are redressed. While the imperfections of procedural law may produce social consequences, procedural law is an index rather than a causative factor in social progress. For the present we shall lay it to one side and consider only substantive law. During the last three centuries stress has been placed on the sanction for individual growth. English and American law, from the time of Cromwell down to the middle of the nineteenth century, was the result of a struggle to enlarge the rights of the individual and to reduce to a minimum the privileges and immunities of the privileged classes. The basis upon which this struggle was waged is set forth in certain axiomatic propositions stated in general terms in the Declaration of Independence. They were also embodied in the Preamble to the Constitution of the United States, and repeated in some of the constitutions of the various states. In its essence it was a struggle for political equality. It resulted in the development of a body of law relating to the rights of persons, including the right of persons to property. The law relating to public rights and duties underwent comparatively little change and may be found principally in the criminal law of the time. The basic theory was that if each individual were permitted the largBury, The Idea of Progress.
est possible measure of freedom, the public welfare would be advanced thereby, and that the state should act merely as a policeman and arbiter in the settlement and adjustment of conflicts between individuals. In fact, during that period the criminal law was moderated by a reduction of penalties and reducing many felonies to misdemeanors. From 160 capital offenses in the time of Blackstone1 there remain today but three or four in any jurisdiction where the common law prevails. Not until the industrial revolution was well on its way was the existence of a new set of problems recognized. No sooner had political privilege been reduced to a minimum than there gradually arose to take its place economic privilege. It became apparent to the most casual observer and student of affairs that the Declaration of Independence and the adoption of written constitutions was not to be a final solution, as many enthusiastic radicals of that day had hoped it would be. It was apparent that powerful individuals, without any infraction of the criminal laws, could perform acts detrimental to the general welfare and harmful to individual citizens for which there existed no remedy. In this presence one need not go into detail in this matter. Beginning with the enactment of the interstate commerce law in 1887, followed by the antitrust acts of the early nineties, the regulation of natural monopolies in the first decade of the twentieth century, the quickening of the public conscience by the disclosure of great abuses in the government of cities and the appearance of large corporations throughout this period were productive of results which are familiar to all. A new field was occupied, and laws intended to advance the general welfare and to produce a greater degree of economic equality were enacted in almost every jurisdiction. In the enactment, interpretation, and administration of these laws were disclosed the conflict between the static quality of law and the dynamic character of social forces, both of which are factors in social progress. It took long years of effort to induce the legislatures to recognize that it was their duty to provide a solution for the problems produced by an increasingly complex industrial and social organization. After the legislatures had been brought to a sense of their responsibility in the premises it was necessary to convince the courts that the legislation was not in contravention of some of the fundamental concepts upon which our government rests, and at this point it may be said there is a common belief that law, instead of being an aid to social progress, has oftentimes thwarted it and rendered abortive efforts to promote the general welfare. After the enactment had run the gauntlet of the legislatures and the courts, administrative and executive officers applied it in accordance with their personal notions as to its expediency and availability. Lawyers trained in the legal philosophy of a previous period were, with notable exceptions, found in opposition to legislation which was in their opinion fundamentally opposed to the legal concepts upon which our law rests. Upon the one side therefore we have the legislatures, judges, lawyers, executive officers, and administrators yielding with greater or less reluctance to the demands of the • Blackstone Com. 18.