In whatever way, however, we allow the principle of the autonomy of individual wills to assert itself, whether it supplements or contradicts a rule established by authority, under no circumstances can it be held to be without limits. Although primarily the exercise of individual wills may create a legal relation at the discretion of the parties interested, sometimes higher interests will intervene to set more or less narrow bounds to its power and to substitute officially a relation imposed by authority to one created freely and spontaneously. In other words, the satisfactory equilibrium of all the interests involved requires in such cases a compulsory standard which can brush aside the divergent fancies of the parties. This is at the bottom of what is commonly called the principle of public order. I shall have to agree that these two words are vague and ill-chosen to express the meaning to be conveyed thereby. Similarly, I confess that all attempts at defining "public order" in this sense, that is, definitions which attempt to discover a criterium outside of every concrete institution, by which one may discern at once the legal rules concealed in the provisions of private agreements, have failed completely. However, to conclude from this, as seems to be the idea of M. de Vareilles-Sommieres, that we ought not to recognize a class of laws as being charged with a superior social interest, but rather to assert that no private person can derogate from the effectiveness of any law, would in my opinion be a vain attempt to find a way out of the dilemma and amount to nothing more than to transpose the difficulty to another place. For it would seem certain that among the rights accorded to individuals by our system of law there are but a few which cannot be voluntarily renounced. It would not be a very difficult matter to determine what particular statutes giving such rights cannot be nullified by inconsistent private agreements, or rather, what are the rights given by statutes which one may not voluntarily surrender.
It would be purposeless, however, to change the customary way of stating the problem, unless the solution could thereby be made easier. The only things worth adopting among the criticisms that have lately been directed against the traditional conception of "public order" in its relations to private law are these: first, that, stating the matter negatively, there is no question here, no matter if the words used may make it appear so, of a set of interests really distinct from and separated, so to speak, by a watertight compartment, from what are properly private interests; furthermore, speaking affirmatively, the question resolves itself into finding out which rules, among those constituting the body of our private law, are those which on account of their nature and purpose cannot be set aside by a free regulation of the interests involved through acts based on the principle of the autonomy of the will; or what rules will at least restrain the exercise of the will of the parties sufficiently to prevent the sacrifice of superior interests by the will of private persons.
When it is put in this form, the question becomes of considerable importance. It has reference not merely to legal rules embodied in the written law, but just as much to every other legal rule that can possibly be affected by the act of private parties, whether such rule arises under customary law or is the result of the free investigation of legal science. In fact the question enters into every law of such a nature that it may sometimes be subject to the will of the parties and sometimes rises superior thereto. In the case of rules that may properly be made statutory, it would seem to be the proper business of the legislator to indicate in his statute what effect he intends to give to it with regard to inconsistent private agreements. It will have to be said that few statutes contain any such clause, but that in most cases the construction of their provisions with regard to this point has been left to the discretion of the courts. It follows that we shall here find a vast field open to the independent investigations of legal scholars not only in connection with customary rules and principles based on scientific research, but even directly in connection with statutory provisions.
Such necessary investigations clearly cannot be carried on profitably except by questioning our moral nature, inquiring into the principles of the political organization under which we live, and studying the requirements of our economic environment so that we may learn thereby those superior rules which form, as one might say, the conditions under which modern society lives and which in consequence must necessarily be held superior to any mere private acts of will.