In the domain of individual activity, seeking its own ends, the modern law performs its proper functions best by allowing full independence so long as such activities do not come into conflict with superior interests. This principle of the autonomy of the individual will developed gradually and unnoticed from the time when the ancient social forms were disappearing. It was, in our country and in civil relations at least, emphasized by the decay of primitive formalism, beginning about the thirteenth century. It continued to develop without interruption, but is seen at the present day to be only the expression of the necessary condition of our whole social organization. One may say that it is contained, by implication, in certain provisions of our written public law; in its broadest form, perhaps, in section 4 of the Declaration of Rights of 1789, which reads: "Liberty consists in the right of doing anything which does not injure another." At any rate, the authors of the Civil Code have recognized it in the most concrete manner by enacting it into law as the freedom of private contract,4 or perhaps one may say that they have done so in a still broader fashion by establishing the freedom of legal transactions.
All this may appear, in our day, as quite beyond dispute. It may be different, however, when it comes to putting this principle into effect to its full extent, and to developing its essence until it penetrates to the very heart of our daily life, or even when it is merely a question of expressing the applications of the principle with that degree of certainty which practical affairs demand. Is it always true that in such cases we interpret the law with a sufficiently deep and subtle understanding of the social and psychological elements on which the formula of the autonomy of the will must be based and from which its application takes its life? May one not imagine that there may be new and beneficial applications of the principle discovered by a more unhampered study of these elements?
Take the notable case of a legal transaction validly performed and unquestionably recognized by the law, let us say a contract if you will. While we emphasize, in principle, the power of individual wills which constitutes it, yet are we not often harking back to and docilely accepting the consequences of the Roman categories which, as we must admit, still dominate on the whole our written law in regard to these subjects? Although these categories may quite legitimately continue to be used as throwing light on the real intentions of the parties, we ought not to forget that in our day the statutory provisions based on these categories are to be taken merely as supplementing the actual intentions of the parties. They are never mandatory, but on the contrary may be modified where the actual facts suggest the propriety of such modification. We may even be justified in overcoming them by presumptions inconsistent with them, whenever the circumstances of a case show that this would be proper. At any rate, we may and should establish new rules to supply what is omitted in the statutes and the customary law, in order to put into full effect the principle of the autonomy of the will of the parties. Furthermore, we must remember that the traditional categories do not comprise everything; that it was quite possible for the parties to agree upon something "sui generis," provided only that higher rights, and especially the vested rights of third parties, are not infringed thereby.
4 See sections 537, par. 1; 1134; 1156 seq., Civil Code.
In this way it has been possible, although the Code says nothing about it, to allow in our modern French law the validity of a contract for substitution of debtors with the consent of the two parties concerned, in such manner that the first debtor may pass the debt on to the second for payment, without the previous consent of the creditor, although of course the latter cannot be bound thereby. Similarly, the doctrine will no doubt find favor that the mere will of the parties may establish novel kinds of rights "in rem," provided only that they do not offend against the fundamental principles of our social order. In the same way it will be easily possible to add to the forms of property come down to us from the Romans, new ones based simply on the free agreement of the parties, especially new forms of ownership in common adapted to our economic needs, new forms of trust described in the deed of trust itself; there may be also new forms of easements besides the servitudes expressly recognized by the law, and other ways of establishing a divided ownership, whereby the utilization of property may be diversified and its value increased. All that may be possible simply by further developing the principle of autonomous wills, provided always that the rights of third parties are not affected and that the interests of the commonwealth are protected. I do not fail to recognize that frequently these general reservations will require considerable restrictions, and that sometimes the method of free decision will not suffice to formulate these restrictions independently of legislation. That method, however, will at least be capable of preparing the way for the intervention of other sources of positive law, such as statutes and custom, which may complete the body of rules already outlined by the .use of the free decision method. If anybody should hesitate before the practical difficulties in the way of applying that method as here suggested, he would not, at least, decline to interpret the contracts which are currently made in the course of business without constantly referring them to some one of the legally recognized types, and would prefer to uphold them directly in accordance with the principle of the autonomy of the will. Now, the will of the parties, when it finds no typical formulas which it can use, will proceed in accordance with the moral, psychological, economic, briefly, the social circumstances under which it tries to accomplish its aims. Any doubt regarding the intention of the parties can be solved only by presumptions based upon an examination of these circumstances. Where there is no presumption regarding the intention of the parties in the strict legal sense, it will be incumbent upon the court to base its conclusion on a consideration of all the interests to be considered. A balance between these interests would establish a probability that such was the real intention of the parties, and would properly take the place of direct evidence regarding their intention where that cannot be had. One can readily see that an almost boundless field for the activity of the method of free decision is here opened up; especially if the courts will attach all the weight that belongs to it to the doctrine of good faith, which we may say constitutes in our modern law the pivot around which the play of autonomous individual wills must revolve.
I desire, however, to call attention to still another point in connection with the same general theory.