the system of jurisprudence as interpreted by the courts. It is easy to discern a fundamental antithesis between the theory of social or group solidarity underlying much recent legislation and the individualistic philosophy which finds expression in court decisions. It is easy to criticize the legislation as overlooking "natural rights" which the "courts were established to maintain." It is equally easy to condemn the courts for their inability to appreciate the theory of group welfare underlying such legislative enactments. It is a far more difficult problem to suggest a practical way in which the antithesis can be solved.

A third institution under attack is our system of private property. Most of those who condemn the institutions are moved by the inequalities in wealth which they charge to it. Their attitude is alike shortsighted and individualistic. The institution is commonly defended upon the ground that propertyowners are entitled to "what they produce," the assumption being that they "produce" their property. It need not be said that this defense is as weak as the attack. There is, however, a growing disposition to judge the institution by its less immediate "social consequences." Thus it is attacked because of its creation and perpetuation of artificial inequalities in income, because of its influence in stratifying society on pecuniary lines, and because of the dominant social position which it gives to the owners of large aggregates of material wealth. Its defenders, in like manner, stress the incentive which it furnishes to individual initiative, the function which it performs in social organization by placing productive property under efficient management, and its contribution to material development in furthering the accumulation of capital. Perchance a system may be devised for combining the advantages of economic democracy with those of an advancing material culture. If so, by all means let us adopt it. But if the antithesis is irreconcilable, we must choose between two things, both of which offer advantages and disadvantages. Perchance it may be best to sacrifice material advancement; but it is to be feared that the present generation cannot easily be convinced of that. Perhaps we may be fortunate enough to retain the institution, but can succeed in modifying it in such a way as to establish a necessary connection between the privileges and the responsibilities of ownership. At best the problem contains many contradictory values, and turns upon the larger question of the type of society that is desirable.

A fourth and closely related institution is that of individual liberty, embracing as it does the legal convention of freedom of contract. A necessary complement of private property in a flexible industrial system, it is the very epitome of the older institutional complex. Its modification is threatened by the rise of the newer group spirit, through such legislative initiatives as regulation of monopoly, prescription of hours of labor, legal restraints upon hiring and discharge, etc. How sweeping its modification is to be only the future can tell.

Our attention to our institutional framework of society has just begun. The range of inquiry is as broad as human life itself; the other problems discussed in this volume only begin to show its comprehensiveness. By conscious change many of our institutions are to be profoundly modified. If the newer life finds the institutional molds too rigid, the change may be rapid and revolutionary. But most important of all are the changes in these institutions which are gradually being effected by a process of growth which we but dimly see, and the changes which these institutions in turn are inducing in the complex of our developing scheme of life and values.

A. THE LEGAL SYSTEM

316. The Economic Basis of Law1

BY ACHILLE LORIA

Changes in the prevailing economic conditions necessarily involve corresponding alterations in law. The history of law furnishes us with clear and definite demonstration of the fact. During the primitive period when law was worked out upon a family and not upon a property basis, mother-right prevailed universally. Under more modern conditions we are struck with amazement at the similarity in legal systems prevailing among the most diverse peoples. The ancient law of the Romans and Germans alike shows us the same classification of persons; among both the law maintained the inviolability of private property, determined the boundaries of patrimonial fields, proclaimed the personal nature of an obligation, and fixed the rigorous bonds that shackled the liberty of the debtor. That so striking an analogy should exist in the legal system of two peoples so profoundly different and so widely separated is highly significant: on the one hand, because it reverses the theory that law is an emanation of national consciousness; and upon the other, because it shows that the law necessarily depends upon existing economic conditions. The Romans and the primitive Germans were different in race and manners and lived under different climatic conditions. Between the two peoples there was nothing in common beyond the identity of their economic systems; or, to put it more definitely, there was nothing in common except identical territorial conditions, which irresistibly impelled them to adopt an identical economic constitution. The analogy in legal systems must necessarily have resulted from the one element common to them both, their economic system.

The Roman economy and the German economy proceeded together for a certain time. But after the collective economy gave way to the system of capitalistic property, their ways lay apart; for Germany's free land, being of a low grade of fertility, could be taken from the laborer without serious violence, while in Southern Europe, with its fertile land, blood and iron alone could prevent the laborers from establishing themselves on the free land. This led in Southern Europe to an admirably perfected capitalistic

'Adapted from The Economic Foundations of Society, 80-86. Translated by Lindley M. Keasbey (1899).

system upon which a corresponding legal structure was raised. The resulting system of legal relations and doctrines remain to our day a superb monument to Latin genius.

The slave economy was never rigorously established in Teutonic countries; the suppression of free land there assumed the milder form of serfdom. Thus there was produced a legal system differing from that of Rome in three respects: it instituted patriarchal relations between property and labor; it protected the serf from arbitrary acts of violence by the proprietor; and it placed respect for the family and a sentiment of solidarity above the mere satisfaction of brutal egoism. With the disintegration of Roman society, the classic law fell into abeyance. Southern Europe was forced to introduce the serf system, and it then became expedient to substitute the Germanic code for the classic law of Rome. This substitution was not a victory of Teutonic over Roman law; it was simply the natural reproduction of a legal system to meet the reappearance of the very economic conditions that had originally given it life. We thus have additional proof of the law's exclusive dependence upon the economic structure of society.

In a somewhat analogous manner the later institution in Germany of economic relations similar to those formerly prevailing in Rome introduced the Roman law into that country. Here the growing wage economy engendered a new set of relations between property and labor, and these had to give rise to institutions heretofore unknown. The new system offered a profound analogy to that of the Roman slave economy. Thus, though the law regulating the wage contract had to be an original creation of the new economic system, the law regulating the relations among proprietors could practically be reproduced in its classic form. Now it is exactly these relations that constitute the essential object of the law. Roman law, accordingly, emerged from the tomb where it had so long reposed into the expansion of a new life. The movement toward this awakening commenced in Italy where the wage economy first began to develop. Its passing from Italy into Germany was but the necessary correlation of the economic revolution that spread these same conditions throughout Northern Europe.

The

Thus legal history shows us that instead of being the product of abstract reason, or the result of national consciousness, or a racial characteristic, the law is simply the necessary outcome of economic conditions.

317. Social Rights and the Legal System2

BY ROSCOE POUND

A generation ago it would have been hard to find anyone to question that upon the whole the American law was quite what it should be. But first the economists and sociologists and students of government, and then the bar itself, have been thinking upon this matter freely and vigorously until criticism has become stable. The need for agitation has passed. Now for a season we need careful diagnosis and thoroughgoing study of the lines along which change is to proceed.

Legal history shows that from time to time legal systems have to be remade, and that this new birth of a body of law takes place through the infusion into the legal system of something from without. A purely professional development of law, which is necessary in the long run, has certain disadvantages, and the undue rigidity to which it gives rise must be set off from time to time by receiving into the legal system ideas developed outside of legal thought. Such a process has taken place in the history of our own law. In the sixteenth and seventeenth centuries the common law, through purely professional development in the King's Courts, had become so systematic and logical and rigid that it took no account of the moral aspects of causes to which is was to be applied. With equal impartiality its rules fell upon the just and the unjust. The rise of the Court of Chancery and the development of equity brought about an infusion of morals into the legal system-an infusion of the ethical notions of chancellors who were clergymen, not lawyersand made over the whole law. Again, in the eighteenth century, the law had become so fixed and systematized by professional development as to be quite out of accord with a commercial age. As the sixteenth-century judge refused to hear of a purely moral question, asking simply what was the common law, so the eighteenth-century judge at first refused to hear of mercantile custom and commercial usage, and insisted upon the strict rules of the traditional law. But before the century was out, by the absorption of the law merchant, a great body of non-professional ideas, worked out by the experience of merchants, had been infused into the legal system, and had created or made over whole departments of the law.

Today a like process is going on. The sixteenth-century judge who rendered judgment upon a bond already paid, because no formal release had been executed, and refused to take account of the

'Adapted from "Social Problems and the Courts," in the American Journal of Sociology, XVIII, 331-341 (1912).

purely moral aspects of the creditor's conduct; the great judge in the eighteenth century who refused to allow the indorsee of a promissory note to sue upon it, because by the common law things in action were not transferable, and would not listen to the settled custom of merchants to transfer such notes, nor to the statement of the London tradesmen as to the unhappy effect of such a ruling upon business, have their entire counterpart in the judges of one of the great courts of the United States in the twentieth century to whom the economic and sociological aspects of a question appear palpably irrelevant.

The sixteenth- and seventeenth-century law was brought to take account of ethics. The eighteenth-century law came to receive the custom of merchants as part of the law of the land. May we not be confident that in the same way the law of the twentieth century will absorb the new economies and the social science of today and be made over thereby?

on.

It is an infusion of social ideas into the traditional element of our law that we have to bring about; and such an infusion is going The right course is not to tinker with our courts and with our judicial organization in the hope of bringing about particular results in particular kinds of cases, at a sacrifice of all that we have learned or ought to have learned from legal and judicial history. It is rather to provide a new set of premises, a new order of ideas in such form that the courts may use them and develop them into a modern system by judicial experience of actual cases. A body of law which will satisfy the social workers of today cannot 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.

A master of legal history tells us that taught law is tough law. Certainly it is true that our legal thinking and legal teaching are to be blamed more than the courts for the want of sympathy with social legislation which has been so much in evidence in the immediate past. One might almost say that instead of recall of judges, recall of law teachers would be a useful institution. At any rate, what we must insist upon is recall of much of the juristic and judicial thinking of the last century.

For many reasons which cannot be taken up here, our conception of the end of the legal system came to be thoroughly individualistic. Legal justice meant securing of individual interests. It sought by means of law to prevent all interference with individual self