40 One leading thinker, of the neo-Hegelian School, has even claimed for law the superior mission of leading the way.-Kohler, "Philosophy of Law" (Albrecht's tr.). pp. 58 seq.
What is the proper scope of law in modern society? What influence, if any, do changing economic conditions have in the consideration of the question? The centralization and expansion of industrialism within recent years have brought a pronounced change in the scope of law. Liability now extends beyond the concept of fault and is now objectified and de-personalized as one of the ordinary risks of business. The State does not any longer permit an employer to assume all risks of negligence, but requires positive measures which reduce the probability of risks of injuries. The sphere of formal liberty has been reduced in a variety of directions to a kind of status.41 Regulations of building, sanitation, and (for public employees) of deportment, of the personal use of narcotics, of hours of labor, of methods of competition, and of other matters in a laissez faire regime within the province of liberty, have been recast on the models of the most ancient codes. Price and trade regulation has returned to the pattern of the Middle Ages. Not only has the sphere of formal liberty - what in loose language one has a "right" to do-been abridged, but an entirely new concept has been introduced by modern legislation in the "right to work," a claim of the individual against the State itself. Enough has been said to show that the scope of law is not stationary any more than the rules of law.
Should legislation be intrusted to experts, in analogy to the learned judiciary? In other words, should the process of legislating be made esoteric as is the case with Anglo-American case-law, or should it continue to be democratic, and, in the scientific sense, ineffective? Here, again the solution is not so apparent that he who runs may read.
41 Cf. Sir Frederick Pollock's note (L) to Maine's "Ancient Law"; Dicey, "Law and Public Opinion," p. 283; Pound, "A Feudal Principle in Modern Law." 25 Int. J. Eth. 22.
Such are a few of the larger problems of legislative policy; and the mere statement of them, without any attempt at solution, is enough to indicate the important sociological, historical, and philosophical soundings which must be made before satisfactory answers may be ventured.
III. This leads to a statement in a very summary way, also, of some of the present defects of legislative method.
First, it is assumed that any normal adult is competent to legislate. The human composition of our State legislatures in average intelligence is a clamoring witness of this childlike belief; but, so far as we may intrude our views in a discussion not intended from a controversial point of view, we would regard it as fallacious to think that a legislature of academicians would work out any better practical results in the present state of legislative science. There is yet a golden mean.
Another capital defect is the preponderance of subjectivism. The legislator takes for his standard of human conduct his own limited impressions of the nature of the world and seeks to thrust upon an incorrigible flux of social evolution his own subjective views, instead of taking the world itself as the standard. This error is in part neutralized by the inertia of the assembly; and the further correction comes, at last, in the actual play of legal phenomena. Then, and then only, is the objective standard realized.
The next defect is that of ideality. This has always been one of the most conspicuous shortcomings of legislative policy. The possible is commonly disregarded for the desirable,42 or, more accurately, what is subjectively found desirable. An exaggerated belief in the efficacy of legislation assumes perfect receptivity of the governed to every sort of legislative mandate. What requires to be urged against this mistaken optimism is that human nature must be taken as it is, with all its harshness, wilfulness, egoism, and unreason - in short, with all its physiological and psychological wants and tendencies. There is a relation between the efficacy of legislation and human wants. What is not assimilated within the life of a people cannot have the force of law. Law, therefore, is a kind of organic growth43 which may be affected by harmonious or inharmonious elements. The harmonious elements are readily assimilated and accord with the nature of the organism; the inharmonious elements are either cast out, remain inactive, or produce a pathological condition temporarily, and, in some cases, permanently, obstructing the normal development of social growth.44
42 "II ne suffit pas qu'une reforme soit desiree; il faut qu'elle soit possible, et qu'on emploie des moyens propres a la realiser."- Tanon, "L'Evolution du droit," Paris, 1911, p. 199; see, also, Vaccaro, "Les Bases sociologiques du droit et de l'Etat," Paris, 1898, p. 456.
A last defect in legislative method which is in part the product of other defects, is superficiality. Anyone who has attempted to analyze or discover the plan of reasoning disclosed or undisclosed of a group, large or small, attempting to deal with a normative problem, cannot fail to be struck by the vagueness, shallowness, and incongruity which usually dominates the argument. The diversity of views which are urged, each highly complex in itself, and the extent to which emotional bias enters, often make it difficult to look upon the resolutions of many minds, acting in the same dialectic, as products of reason in any proper sense, but rather as intuitional, or, perhaps, unwilled, phenomena brought into being under the illusion of consciously selected issues of the mind.
43 In this lies, as it would seem, the real strength of the doctrine of the Historical School, and again from another point of outlook of the school of Krause, ("System der Rechtsphilosophie," Leipzig, 1874, pp. 431 seq.). See the published presidential address of Elihu Root before the American Bar Association, Aug. 30, 1916: "No statute can ever long impose a law upon [the people] which they do not assimilate," 2 Am. Bar Assn. Journal 751.