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Marquette Law Review
VOL. 9 FEBRUARY, I925 No. 2
PRAGMATISM AS A PHILOSOPHY OF LAW
WALTER B. KENNEDY*
F ORMERLY the case-hardened lawyer coldly rejected the suggestion
that legal philosophy might aid him in the practice of the law. His
younger brethren in the law schools caught his look of disdain and resisted
the entry of philosophy of law as a course of study in preparation
for the bar. But times are changing. It is becoming quite respectable
to discuss the nature and the origin of law, its ends and functions. Law
schools are adding such studies to their curricula, and the progressive
lawyer is becoming aware of the fact that the courts are paying tribute
to the law-teacher and the student of juristic science.' The excursion
into this new field of legal development promises dividends in satisfaction
and success amply repaying for the time spent. Judge Cardozo of
the New York Court of Appeals pleads the case for philosophy of law
in these stimulating words:
You think of philosophy as dwelling in the clouds. I hope you
may see that she is able to descend to earth. . . . You think that
there is nothing practical in a theory that is concerned with ultimate
conceptions. That is true perhaps while you are doing the journeyman's
work of your profession. You may find in the end, when you
pass to higher problems, that instead of being true that the study of
the ultimate is profitless, there is little else that is profitable in the study
of anything else.
2
It is precisely this failure of the lawyer to search for "ultimate conceptions"
and his readiness to rest content with a given rule or principle,
without any analysis of its merit or demerit, that has aroused the current
resentment and criticism of the law in extra-legal circles. Law is
pictured as a conglomeration of dry-as-dust precedents, immersed in the
mists of bygone days and unable to penetrate or solve the vital social
and economic problems of the present time.3
* Professor of Law, Fordham University Law School, New York City.
1 Cardozo, The Growth of the Law (I9z4) ii.
'op. cit., 23. Italics used throughout this paper are the present writer's.
'H. G. Wells, Socidl Forces in England and America (914) 59.
MARQUETTE LAW REVIEW
The truth is that the criticism of the law, while often intemperate
and extreme, contains a degree of validity. The law is a learned profession,
but it is also a "bookish" calling. There is a tendency to treat the
law as something which is apart from life. Its study embraces the absorption
of precedents from the reports "in point" and "on all fours"
with the problem under consideration. Victory depends upon the ability
of the attorney to smother his opponent by the sheer weight and
number of similar cases. This process continues to be the prevalent
method of deciding cases, and properly so. The ardent social reformer
in his attack upon the law frequently misses the imperative need of
stability and certainty in the legal order. But the lawyer and the judge
are meeting the critics half-way by the concession that the law must
combine the elements of flexibility and growth with the basic ingredients
of rigidity and permanency. In the old order the rule of stare decisis
was sometimes driven too far. Judges were prone to exaggerate the
finality of former decisions of their courts. A mistake once rooted in
the reports was indelibly fixed in the law although the court regretfully
confessed that the rule was objectionable. 4
There was often the
manifest inclination to drive "a maxim or a definition with relentless
disregard of consequences to a dryly logical extreme."'
Out of this rigid adherence to past authorities there is beginning to
emerge a more conciliatory attitude on the part of the judiciary, a
gradual readjustment of the controlling principles in the light of the
panoramic changes of social and industrial relations. This movement, if
carefully guarded and moderately exercised by the judges, may be commended.
The novelty of a legal question often necessitates the departure
from the lines of strict rule and principle to accomplish justice.8
Again more mature deliberation may enable the court to admit the
error of its former ruling.7
Paralleling this recent enlargement of
""If this were res integra, and there were no decisions on the subject, there
would be a great deal of weight in the defendant's objection." Kenyon, C. J. in
Smith v. Kendall (1794) 6 Term R. 123. Clerke v. Martin (1702) 2 Ld. Raym.
75; Malardy v. McHugh (1909) 202 Mass. 148, 152.
' Cardozo J., Hynes v. V.Y. C. R. R. Co. (1921) 231 N. Y. 229, 235; Wormser,
The True Functions of Schools of Law, address before Bronx Bar Ass'n (June
8, 1923).
'Hynes v. N. Y. C. R. R. Co., note 5; Mitchell v. StandardRepair Co. (1923)
275 Pa. St. 328.
"Klein v. Maravella (1916) 219 N. Y. 383; People v. Schweinler (1915) 214
N. Y. 395; Epstein v. Gluckin (1922) 233 N. Y. 490; Chief Judge Hiscock of the
New York Court of Appeals, in an address before the Bar Ass'n of New York
City, recently enumerated many cases which reversed or overruled earlier New
York cases. See Hiscock, Progressiveness of New York Law, New York Law
Jour., Sept. 5-6, 1924. Cf. Cardozo, op. cit., note I, supra, 99-101. 41-42.
.PRAGMATISM AS A PHILOSOPHY OF LAW
judicial discretion, and strongly supporting this endeavor of the judges
to throw off or reduce the binding force of principles, we may note the
afrival of "pragmatism8
as a philosophy of law; for the adjustment of
principles and doctrines to the human condition they are to govern
rather than to assumed first principles."" Due recognition must be accorded
to the accomplishments of the so-called sociological school of
jurisprudence before attempting the consideration of its limitations and
its weaknesses. Pragmatism with its emphasis upon the needs of mankind
deserves a share of credit for its attack upon the complacency of
the law in the face of cataclysmic changes in the social order of our
time. With telling force the sociological jurists showed the futility
of deciding twentieth-century cases by learned citations from the
Yearbooks. Ours is a compact, urban, industrial community with a
resultant train of novel legal questions unknown to the common law of
England or even of America in colonial days.
The advent of the automobile, the aeroplane and the radio-to mention
but a few modem inventions-is accompanied by numberless problems
of law which defy adequate and just settlement by the simple
citation of precedents. The hoary old maxim, cujus est solum, ejus est
usque ad coelum, which purports to give me a property right to the sky,
slips trippingly from the lips of the beginning student in the law. Yet
tested by the attempt to recover from the "trespassing" aviator who
wings his flight over my land, the rule withers and shrinks in the face
of this modem engine of the air. 0
The analogies drawn from the
8 "Pragmatism" is a term of comparatively recent origin in philosophy. It was
first used in print by William James in I88.
"Pragmatism-a philosophical method and its corresponding doctrine which
holds that the practicaleffects, or way they work, are the sole available criteria
for the truth of human, moral and religious ideals." Funk and Wagnall's Dict.,
sub. tit., Pragmatism. A more particular development of "pragmatism" will be
found in later parts of this article.
9
Roscoe Pound, Mechanical Jurisprudence, 8 Col. Law Rev. 605.
Dean Roscoe Pound of the Harvard Law School must be given first place
among American juristic writers in stressing the advantages of "pragmatism as
a philosophy of law."
"Cf. Uniform State Aviation Act, Sect. 4: "Flight in the air over the lands
and waters of this State is lawful unless at such a low altitude as to interfere
with the existing use to which the land or water or the space over the land or
water is put by the owner. ..."
This section presumably attempts to codify the existing common-law rule;
otherwise it would be unconstitutional since it would constitute a taking of property
without compensation.
McCracken, Air Law (1923) 57 Am. Law Rev. 97; 4 Am. Jour. Nt Law
(191o) 97; 7,iUn. of Pa.Law Rev. (1922) 88.
MARQUETTE LAW REVIEW
presence of telegraph wires" or overhanging branches 12
or projecting
eaves, 13
which occupy the space immediately above my land, fail utterly
to meet the situation of the aeroplane. Is the automobile a dangerous
instrumentality ?
14
While courts differ in the answer," it is doubtful
whether the correct answer can be evolved by a comparison of the automobile
with a stagecoach." Certainly the intrinsic characteristics of
each are readily distinguishable. In these modern controversies the
pragmatic search for a rule which works in action cannot be condemned.
These timely questions provide ample room for the sociological jurist
to display his formula which seeks out a practical solution rather than
"assumed first principles." Here, indeed, the marshalling of the facts,
the balancing of interests and the weighing of values-the science of
axiology, as it is called,'" have a prominent place in the judicial process.
Thus far we may agree with the tenets of pragmatism as a philosophy
of law. The real proving-ground is reached only when we realize the
extent to which the advocate of pragmatism is willing to go in the reconstruction
and readjustment of legal methods. Recognizing its
worth-while contributions to the science of law, it remains to ask
whether the sociological scholars in their enthusiasm may not be claiming
too much credit for this new system. Is pragmatism self-sufficient
and free from the dangers of possible misuse and abuse? Like the
aptly-termed "checks and balances" of the Constitution, may we not find
that pragmatism also needs a "check" and a "balance" to restrain an
excessive use of this stimulating search for the facts?
The starting point of our analysis may begin with an excerpt from
an able paper in the last number of this Law Review. The learned
writer tells us that
What we need in the field of jurisprudence is more thinking with
reference to the facts as they exist and less exposition of eighteenth
century philosophical concepts. We need a clearer apprehension of
" Butler v. Frontier Tel. Co. (i9o6) 186 N. Y. 486; Eels v. Am. Tel. Co.
(1894) I43 N. Y. 133.
'Lemmon v. Webb (1895) A. C. i; Hoffman v. Armstrong (1878) 48 N. Y.
201.
12
Smith v. Smith (1872) 1iO Mass. 302; Loudenslagerv. Pac.Imp. Co. (N. J.
1921) II5 Atl. 752.
"Cuthbert W. Pound, Are Automobiles Inherently Dangerous? 2 Ford. Law
Rev. 57.
'MacPherson v. Buick Mfg. Co. (x916) 2,7 N. Y. 382; Cadillac M. C. Co.
(1915) 221 Fed. 8Ol.
"Winterbottom v. Wright (1842) IO M. and W. 2O9.
Cardozo, op. cit., note i, supra,94.
PRAGMATISM AS A PHILOSOPHY OF LAW
what is necessary to do justice under the present order and less vindication
of the concept of naturalrightsunder the old order. 8
We may go along comfortably with the author in his emphasis upon
the importance of weighing facts in the jural order, but are we ready to
abandon all concepts of naturalrightsunder the old order? Admittedly
the concept of natural rights in any form is a barrier against the free
and unlimited recognition of the facts, but so is the Constitution of the
United States, and, strange to find, although the writer resists the idea
of fixed rights of natural law, he warmly endorses the Constitution 0
with its specific Bill of Rights20
and its certain restrictions upon the
states, or the federal government, or both.2
' If a system of natural
rights clogs and impedes the course of social reform by law, a contention
to be considered later, then so does the Constitution. If the objective
of the philosophy of pragmatism is the unrelenting search for the
"facts," and not the weighing of these facts in terms of "rights,"
whether constitutional or natural, it is difficult to follow the subtle distinction
between the advantages of the fixed rights of the Constitution
and the disadvantagesof fixed natural rights. One destroys or retards
social progress just as much and no more than the other, and, to the
extent that either holds back the full sweep of political changes, it is a
wise and salutary restraint which should not be ruthlessly brushed
aside. Human nature being what it is, we have sufficient justification
for our constitutional form of government, which, it will be seen, reserves
a place for natural rights.
Facts are stubborn things; they are also elusive. However restive
the American people may be over the rigidity of the law, over the failure
of the courts to uphold legislative reforms, over the tardiness of the
"Rosenberry, Law and the Changing Order (1924) 9 Marq. Law Rev. 38, 48.
"The concept of natural rights in the old order" has been variously defined in
different stages of legal history. Justice Rosenberry makes it clear that he is
referring to the eighteenth century definition of natural rights which was dominantly
individualistic in form. This particular form conceived of man as an
abstract, isolated individual with fixed rights completely determined by natural law
which the State was powerless to invade. Pound, The Spirit of the Common
Law (i92) ioo-lo2. Such a conception has been criticised even by those who
argue for a theory of natural rights which antedated the Reformation. Ryan,
The Supreme Court and the Minimum Wage (1923) 29-3o. The overthrow of
eighteenth century concept of natural rights, however, provides no sufficient
reason fcr rejecting all forms of natural rights, a position which the pragmatic
jurist muot logically take. Cf. note 8, supra;note 25, infra.
"op. cit., 43.
'Amendments I-X.
See interesting chart in Stimson, The American Constitution (1923) Appendix,
which enumerates the exact powers forbidden to state and federal govern-
ments.
MARQUETTE LAW REVIEW
judges to view the facts in present-day societal relations, they are more
restive when faced by the danger of the removal of the "checks and
balances" of the Constitution and the extension of the powers of Congress
in order that these facts may be translated more readily into the
living law. Dean Pound, whose opposition to the theory of natural
rights is clear,2
would have us believe that "the people think of themselves
as the authors of all constitutions and limitations and the final
judges of their meaning and effect."'23
The scholarly work of Dean
Pound in juristic philosophy gives considerable force to his mature
analysis of the popular estimate of the nature of law and constitutions,
but it is submitted that the people have, on two recent occasions, proved
rather convincingly that they do not believe that they are the final
arbiters of the American Constitution. In 1912, when Theodore Roosevelt
proposed the recall of judicial decisions, which would give effect
to Dean Pound's interpretation of the people's conception of lawmaking,
they decisively voted to preserve the Constitution from popular
intermeddling. Somewhat the same issue was injected into the political
arena in 1924. Again, and very emphatically, they repelled the offer to
give to their chosen representatives greater freedom in the making of
law. These instances show a strange dislike for the alleged belief of the
citizenry that they or their immediate agents are the final judges of the
meaning and effect of the Constitution.
This brief consideration of the internal workings of the Constitution
is by no means a digression from our central purpose of considering
the doctrines of pragmatism in the field of jurisprudence. It was made
for the purpose of questioning the consistency of reaffirming the permanency
of the Constitution and rejecting the doctrine of natural rights.
Not only do we, as Americans, endorse the peculiar advantages which
flow out of a static Constitution, but it also seems that we find an abiding
place therein for the concept of natural rights.
The Declaration of Independence is still orthodox doctrine in the
American home, and this historic corner stone of our political faith
teaches us
that all men . . . are endowed, by their Creater, with certain unalienable
rights. . . . That to secure these rights, governments are
instituted among men. ...
It will be noted that, in the judgment of the forefathers, the people are
endowed by the Creator, and not by the state, with certain "unalienable
rights." Governments exist, not to create, but to "secure" these vested
rights which antedate the formation of government and come from the
I The Spirit of the Common Law (1921) Ch.4.
=op. cit. note 22, at 99.
PRAGMATISM AS A PHILOSOPHY OF LAW
Creator. These inspiring beliefs are not the special possessions of the
lawyer-class; they find lodgment and support in the people and contest
strongly the claim that the popular mind visualizes the Constitution as
an expression of man-made rights, subject to change in all its parts by
the will of the majority. Lest it be thought that the sweeping changes
in the social order which have enveloped this country since the Declaration
of Independence may have in some manner undermined this basic
concept of natural rights, we may cite the recent utterance of President
Calvin Coolidge which pledges anew our faith in this same doctrine.
In his address to Congress he said:
We do not propose to abandon the theory of the Declaration that
the people have inalienable rights which no majority or power of
government may destroy. Our country does not propose to abandon
the practice of the Constitution which provides, for the protection
of these rights. It believes that within these limitations, which are
imposed not by the fiat of man but by the law of the Creator, selfgovernment
is just and wise.24
Apparently then, in the belief of the founders and in the judgment of
their present successor in office, the theory of natural rights is interwoven
into the texture of the Constitution. The burden of proof, following
the settled rule of procedure, would seem to be upon the pragmatist
who argues that this persistent adherence to the natural-right
doctrine may be carved out of the Constitution and the Declaration without
destroying these fundamental documents.
But even assuming that this juristic operation may be skillfully and
successfully accomplished, what assurance have we that the operation
will cure the patient? It remains to ask whether the absence of the
restraining influence of a system of natural rights and the unimpeded
and full force of the pragmatism in legal action will make for improvement
and justice in society.
Once more we turn to Dean Pound for a definition of the final objective
of law, as interpreted by pragmatic jurists:
. . . if in any field of human conduct or in any human relation the
law, with such machinery as it has, may satisfy a social want without
a disproportionate sacrifice of other claims, there is no eternal limitation
inherent in the nature of things, there are no bounds imposed at
creation, to stand in the way of its doing S0.25'
Needless to say natural rights have no place in this declaration of the
end of law. Nor is there any particular indorsement of the permanency
'Natural Rights and the State, America, Vol. XXXII, Dec. 13, 1924. Cf.
Pound, op. cit., note 2, supra, 102.
'Pound, An Introd. to the Phil. of Law (1922) 97-98; op. cit., infra, note 28,
,57-158.
MARQUETTE LAW REVIEW
of any clause of the Constitution provided we can pile up enough social
wants to offset the sacrifice of the claims of others. Individual "rights"
which President Coolidge tells us "no power of government" and "no
majority" can destroy are wholly absent in this juristic picture. The
morality or immorality of a given "claim" is immaterial unless it rubs
against the "disproportionate" claims of other members of the com-
munity.26
Dean Pound accepts the keynote of pragmatic philosophy
that "the essence of good is simply to satisfy demand" 27
and gives it the
place of honor in his interpretation of legal history.28
The word "right"
has come to mean too much in the vocabulary of the lawyer.2 9
Catalogue
any, and therefore all, human claims, wants and desires; aim
always at a wider circle of legally enforcible claims; stop at nothing
short of a complete gratification of all these demands, for a demand is
per se good, unless it runs counter to the adverse claims of others, and
let these not interfere unless they are "disproportionate" claims."
William James, the chief defender of pragmatism as a philosophy of
law, divides philosophic minds into two classes, the "tender-minded" and
the "tough-minded." The "tender-minded" oppose pragmatic philosophy;
the "tough-minded" are inclined to accept the principles of pragmatism.
The "tender-minded" philosophers, he tells us, are essentially
rationalistic, intellectualistic, idealistic and religious. The "toughminded"
pragmatists are materialistic, sensationalistic, skeptical and
irreligious."' These latter tendencies, dominant in the writings of
James, Dewey and other pragmatists, may be detected in the doctrines
of the pragmatic jurists. Pragmatism is a new philosophy? 2
Yet it
contaifis much that is old. One may discover traces of Egoism or
Egoistic Utilitarianism which makes the pleasure or happiness of the
individual a final end, intermixed with Altruistic Utilitarianism which
emphasizes the welfare of society. The "claims" of all are potentially
"good" in the scales of pragmatic jurisprudence and should be gratified
unless they produce undue friction by the presence of antagonistic and
"disproportionate" claims of others. Even Utilitarianism, under the
direction of John Stuart Mill, finally evolved a standard of values which
would enable us to determine the "claim" which is entitled to recognition.
He developed a standard of higher and lower values depending
'Pound, Law and Morals (1923) 41. Cf. Book Review, Law and Morals,
N. Y. Law Jour. Dec. 4, 1924.
'William James, The Will to Believe, 195 et seq.
'Pound, Interpretationsof Legal History (1923) 157.2
9op. ci., note 28, 159.
Mop. cit., supra, note 25, at 99.
"Pragmatism, 12.
'See note 8.
PRAGMATISM AS A PHILOSOPHY OF LAW
upon the "quality" of the given pleasures. So also Bentham, who emphasizes
the "quantitative" aspects of happiness-the greatest happiness
to the greatest number.33
What test or standard of value does pragmatic jurisprudence offer
to enable us to weigh the clashing "claims" and "wants"? How may we
detect the presence of a "disproportionate" claim which overshadows the
satisfaction of a social want? Dean Pound states that he is "skeptical as
to the possibility of an absolute judgment."''
He suggests that the legal
"yard-stick" may vary with the changing ages. Pragmatism has been
frequently criticized because it is in a sense anarchistic and devoid of
standards or principles.3
' This abandonment of principles may be permissible
in philosophy, but, in any event, it cannot be tolerated in the
law. As a practical science, law requires an appreciable degree of
uniformity, stability and certainty. It does not suffice to shuffle the
mass of wants and claims of the litigants into a confused pile and then
give effect to as many as we can in so far as harmony will permit.
Principles and precedents can be carried too far; and it is true that they
have been frequently over-emphasized in the growth of law.30
But this
provides no reason for lifting them out of the law in their entirety or
relegating them to a corner for their stubborness. The ipse dixit of the
judge working under a formula that invites him to "secure all social
interest so far as he may" is not free from grave dangers of abuse.
The case for the creative jurist is not as clear as some would have us
believe.17
Haste sometimes, of necessity, mars the individual judgment
of the court. Inexperience may be found on the bench as well as in the
Legislature. A "short-cut" may cut short the ends of justice.33
Bias
and prejudice are human failings which sometimes find shelter beneath
the judge's gown. The rule of stare decisis with its arrogant insistance
Introduction to the Principlesof Morals and Legislation (1891) ch. 4.
While the standards of value offered by Bentham and Mill may be theoretically
precise, they present practical difficulties which have not escaped the critics of
Utilitarianism. How can we give numerical values to the pleasures and emotional
states of the individual? Multiply this query to embface the "quantity" or
"quality" of the pleasures of the people at large, and we are immersed in a sea
of confusion. Moore, Hist. Introd. to Ethics (1915) ch. 3.
34op. cit., note 25, supra, 95-96: "How shall we do this work of valuing (the
involved interests)? .. .I do not believe the jurist has to do more than recognize
the problem and perceive that it is presented to him as one of securing all
social interest so far as he may, of maintaining a balance or harmony among them
that is compatible with the securing of all of them."
Schinz, Anti-Praginatsm,76, 77.
'Note 4, supra.
' Cf. Cardozo, op. cit., note i, supra, 133-139.
Danger of "Common Sense" Decisions, 28 Law Notes (19z4) 42.
MARQUETTE LAW REVIEW
upon the finality of precedent may need correction, but it still occupies
the first place in the judicial process and its claim is a valid one.3 9
If it
be said that the Legislature must be given due recognition in the creation
of law and that our legislators should not be hampered by restrictive
principles in the face of a social want, we come perilously close to the
proposal of Senator La Follette. To accomplish this reform is possible,
but we must do so at the expense of our constitutional form of
government. The majority of the people evidently believe that the price
is too high. They are still concerned about "the tyrannies of political
assemblies," as De Tocqueville expressed it."0
That this so-called "engineering interpretation" of law may be put
to ill use is frankly admitted by its leading advocate, but he contends
that, "for a season, the dangers are in another direction."'" It is submitted
that there are evidences that pragmatism as a philosophy of law
must bear its share of blame for certain evils of the social order. Stressing
as it does the virtue of "claims" and "wants" and "desires" to the
exclusion of "rights" and "duties" and "obligations" in the legal order,
what consequences have followed the entry of pragmatic machinery in
the socialization of law?
If natural-right doctrines paid too much tribute to individual rights,
there is a growing danger that pragmatism will unduly exaggerate the
supremacy of "social wants." Pragmatism worships at the altar of
social reform. The pages of the sociologist teem with the inequalities
of our social, marital and industrial relations. Ingenious remedies are
poured forth which aim to make even the path of mankind. Inevitably
these proposals are directed to the state as the effective instrument to
give them effect. A growing portion of the people sense the dangers of
frigid paternalism as a guardian of dependent groups. If we accept the
formula that law exists solely to give effect to "claims" and "wants,"
it is difficult to question this sudden rush to state and federal Legislatures
for relief against all real or imaginary pains and aches of the
body politic, but there is grave doubt whether the law is capable of absorbing
the tasks of social and religious reformation. 42
The social
-Moschzisker, Stare Decisis in Courts of Last Resort (1924) 37 Har.Law
Rev. 409.
' Kennedy, Supreme Court and Social Legislation (1923) Cath. Char. Rev.
Vol. VII, 208.
'uop. cit., note 28, supra, 64.
"'The government of a country never gets ahead of the religion of the
country.... There is no way by which we can substitute the authority of law
for the virtue of man.... It is well to remember this when we are seeking for
social reforms," President Coolidge, Address at the Unveiling of Statue of Bishop
Francis Asbury. See favorable editorial comments, Literary Digest, November
8, 1924. William D. Guthrie, The Oregon Law School, Columbia (K. of C.)
PRAGMATISM AS A PHILOSOPHY OF LAW
reformer is inclined to forget that in the welter of the social and industrial
evolutions the individuality of man may be altered, but it is by no
means entirely lost. Liberty and freedom are not only rights but also
duties which call for recognition and protection from inordinate and
excessive state-control. If there is weight in this criticism of the present-day
tendency to legislate society into a state of perfection, to erase
the shortcomings of human relations by governmental intervention, the
pragmatic jurist must bear a goodly part of the responsibility; they are
the tangible results of the endeavor to infuse into statutes all the demands
of the people without the stabilizing influence of Constitutional
principles or the dictates of natural rights.
But this criticism should not blind the opponent to the fact that pragmatic
jurisprudence has been responsible for a purposeful and direct
attack upon many social and industrial evils which have been resultant
products of modern societal relations. The formula of pragmatism with
its deadly pursuit of the facts can claim substantial credit for the passage
of laws regulating the hours of labor, providing safety appliances
for the workers and placing the financial burden of industrial accidents
upon industry rather than upon the employees. But, the advocate of
natural rights is not obliged to accept the common belief of the sociological
worker that adherence to a theory of natural rights prevents and
clogs the course of just and necessary changes in the law. Proof is
ample that strict observance of a theory of natural rights is perfectly
compatible with a humane and enlightened interest in social welfare
within appropriate and orderly limits.4
' As early as the twelfth century
Mag., June, 1924. Nicholas M. Butler, Law and Lawlessness, address before
Ohio Bar Association, January 26, 1923.
I have considered particular phases of this problem in my articles, Law and
the Railroad Problem, 32 Yale Law Jour. 553, 558-56o; Social Welfare and the
Law, Columbia (K. of C.) Mag., Nov., 1923.
"Pope Leo XIII, Encyclical, On the Condition of Labor (i8gi). Herein
will be found a thorough consideration of economic problems of the day with
reference to the doctrines of natural rights and the advocacy of substantial social
reforms to cure or lessen the noted injustice of the social order.
Ryan, Living Wage (igo6); DistributiveJustice (igi6) ; The Supreme Court
and the Minimum Wage (1923). Dr. Ryan was one of the first American
economists to argue for a legal minimum wage, and yet his thesis rests upon the
natural right of the worker to receive sufficient remuneration to provide the
necessities of life. See also, Husslein, The World Problem (igi8); O'Grady,
Legal Minimum Wage (I9,5).
It is significant to note that the one case, more than any other in American
law, that arouses the ire of the sociological jurist is Adkins v. The Children's
Hosp. (1923) 43 Sup. Ct. Rep. 394, which nullified the Minimum Wage law of
the District of Columbia. Invariably the contention is made that the theory of
natural rights is responsible for this anti-pragmatic decision. Yet all the above
writers argue for the passage of this very law on the grounds of natural rights.
MARQUETTE LAW REVIEW
the writers in the Canon Law gave us a definition of positive law which
provides ample room for the seeds of growth and yet enunciates a system
of natural rights.44
It is safe to say that the people in those days
were not in need of workmen's compensation laws, traffic regulations,
minimum wage statutes and other modern devices to meet the economic
inequalities of their day, but it is pertinent to note that if these stated
laws were "necessary" and "useful" and "suitable to the time and
place"-words which one finds frequently in current sociological arguments-their
concept of law contained specific mention of these elements
as proper ingredients in the fabrication of social legislation. They did,
however, insist that law must be perfective and in accord with man's
nature; that principles and standards derived by reason as established
by the Creator must be duly regarded in the development of the law.
The issue between a natural-right philosophy of law and pragmatic
jurisprudence is thus sharply drawn: The former blends the stable
principles of the natural order with fluidity of the positive law. Both
have a place in the application of law to current legal problems. While
natural rights occupy first place, they do not pre-empt the whole area of
jurisprudence. This intermixture of natural rights and human enactments
and decisions, it is asserted, is the essence of our American
theory of government.4 5
"Novelty," it has been happily stated, "is no
argument against constitutionality."" Nor is novelty of a given social
reform any argument that it violates natural rights. Pragmatic jurisprudence
starts with an open-door policy which gives free and easy
entrance to any and all human and social wants and desires and makes
them the first and last end of law. Gratification and satisfaction of
these demands divorced from external principles, which are shadowy
and abstract things, should be the aim of juristic science. The tenets
of pragmatism are alluring with their "full-speed-ahead" and "givethe-people-what-they-want"
theories and the gracious assumption that
"the essence of good is simply to satisfy demand. '47
Booth Tarkington
" "Law should be honest, just, possible, according to nature, conformed to the
customs of the country, suitable to the time and place, necessary, useful, clear.
...Ivo of Chatres, Canon Law, cited in Ryan and Millar, Church and State
(I9.) Iio; Le Buffe, Pure Jurisprudence (1924) 9.
5Note 24, supra; Stimson, op. cit., note 21, supra, ch. 2.
Cuthbert W. Pound, J., in People ex Rel. Durham R. Co. v. La Fetra (1921)
230 N. Y. 429, 446.
Despite Judge Pound's concession that constitutional law is adaptable to
modern conditions, he expresses himself rather strongly against the "empirical,
inductive, pragmatic and sociological methods of jurisprudence." These, he says,
are "but wild and whirling words." See his paper, Lawyer or Philosopher, reprinted
in 56 Chi. Legal News (1924) 215.
' Note 27.
PRAGMATISM AS A PHILOSOPHY OF LAW
humorously tells us that the all-pervading demand of his boyhood was
to become the proprietor of a candy store.48
But alas, this common
yearning of youth had to be suppressed. Modern psychologists informed
him that this desire to corner the confectionery market was a
"sex tendency" and that it was dangerous to suppress it, but he refuses
to be convinced that his own future welfare was endaftgered by the
stern refusal of his parents. We suspect that here, at least, is a simple
situation wherein the "essence of good is not to satisfy demand." It
was not the "disproportionate" claims of society, nor even the superior
wants of the fond parents, that defeated this particular venture into the
commercial field, but rather the evil tendencies of the given want upon
the individual himself. Demands of humankind are many and diverse,
good and bad, moral and immoral, and it is difficult to perceive how the
magic of pragmatism can make them all "good."
Turning to wider fields and more mature problems of social life we
may decipher the argument of the pragmatist in action, and the results
are not always decisively in favor of the palatable exaltation of human
wants and demands. Without trespassing unduly upon the ecclesiastical
controversies of our day, pragmatism may be discerned in the
background of the so-called Modernist-Fundamentalist disputation. It
is not in our province to discuss the issue, but merely to notice that the
position of the Modernists is at least a diluted form of the pragmatic
philosophy in which doctrines and principles are submerged in the
whirlpool of current desires and demands. Adopting the language and
the test of the modem philosopher, it is somewhat questionable whether
the "results" and "consequences" of this liberalization have made for a
greater efficiency in the churches as vital forces and uplifting agencies
in our daily life. Perhaps this breakdown of religious authority may
partially account for the unwise and futile effort to overload the law
with the task of reforming mankind through the police powers of the
state. The pragmatic theologian might do well to remember that
"Christ spent no time in the antechamber of Caesar."49
Naturally pragmatism, nurtured and developed in our colleges and
universities, has a powerful grip upon our educational systems. Under
the guise of electivism of courses, which may be roughly defined as a
take-the-studies-you-like program, it is possible to extract the earmarks
of an educational pragmatism which invites the youth to satisfy his
demands without any direct interference from the faculty. The same
generosity has been visible in the dissolution of parental authority and
"What I Have Learned From Boys, Am. Mag., Jan. 1925.
"A remark attributed to Tiffany Blake, Chicago, in President Coolidge's Address,
note 42, supra.
MARQUETTE LAW REVIEW
the enlarged freedom of the rising generation. Let Nicholas Murray
Butler, president of Columbia University, tell us what this species of
pragmatic teaching is doing in the social order:
If a youth be taught at home or in school that there are no fundamental
underlying principles,but that the world is his oyster, to be consumed
at such time and in such fashion as he may see fit, or that it is to
be made over to his heart's desire, one need not wonder when a spirit
of lawlessness and restlessnessunder orderandrestraintfind expression
in his life.5°
This picture of pragmatism in action in the domestic and scholastic
fields, producing "a spirit of lawlessness" by its emphasis upon the unlimited
demands of the youth bereft of underlying principles, is not a
very inviting foundation upon which to erect a pragmatic philosophy
of law which stresses these same demands and wants as the ultimate
end of law."
Despite the alleged defects of pragmatic jurisprudence, it is reiterated
that it has its place in the growth and improvement of the law, but it
is also asserted that it has its limitations and its excesses which are unconsciously
overlooked by its defenders. The tendency to generalize
in the old order, the attempt to paint a permanent juristic masterpiece
for all timtle-defects which the sociological scholars delight to ascribe
to the theory of natural rights-may not be wholly absent in their program
of practical jurisprudence. It is submitted that their generalization
of the expansion of wants and claims as the end of law, fluctuating and
changing from time to time, to be weighed without a weighing machine,
while it may in tune with the rhythmic cadence of the present social
order, does not offer convincing proof that it has given us the last word
in jurisprudential development. If an overzealous use of a jurisprudence
of conceptions may be attacked as "mechanical," 2
it is possible
that an "engineering interpretation" of law, with its relentless quest for
claims and wants, its avoidance of friction and waste, with its automatic
devices to enlarge the area of enforcible wants and its disdain of external
brakes and safety-appliances in the form of legal "checks" and
balances," may also fall victim to this artificial terminology which
smacks of the mechanical aroma of the workshop.
Motion is necessary in the development of law, but there is a present
tendency to treat change as synonymous with improvement in the legal
order. It is possible to infuse too much flexibility just as it has been
admitted that the old order paid too much attention to the finality of
W op. cit., note 42. See Delany, Radicalism or Liberalism (1923) No. Am. RevVol.
217, p. 616, 62o-62i.
" See writer's paper, "Jazz" Jurisprudence, America, July ig, x924.
op. cit., note 9, supra.
PRAGMATISM AS A PHILOSOPHY OF LAW 77
precedent. There is no particular virtue in being "on our way" unless
we know where we are going.53
The cautious traveler is not averse to a
guidebook; the experienced hunter includes a compass in his outfit;
even the casual pedestrian does not disdain a glance at the signboards in
strange places. May we not suggest to the pragmatic jurist the importance
of taking on board similiar protection against the hurricane of
social wants and demands, some instrumentalities-in the shape of permanent
constitutional principles and natural rights-before we engage
passage with him on the maiden voyage, before we give an unconditional
welcome to pragmatism as a philosophy of law?
Caldwell, Pragmatism and Idealism (923) 194: "'Action is the vocation
of man !' Strictly speaking, this principle is false. Man is not called upon
to act, but to act justly. If he cannot act without acting injustly, he had better
remain inactive.