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I certainly have no disposition to question the wisdom of the essential provisions of existing laws. For one, I think that it was necessary to engraft the broad principles of anti-monopoly law upon our national system; and the longer this legislation, as originally framed, is put to the test, the more must we respect the far-sighted wisdom and the ability of its framers.
It remains true, however, that the Federal government halted with a system which is essentially negative. So far we have only denunciation; and it is my belief that order will not be brought out of chaos, until the National Congress accepts the responsibility of an affirmative, constructive policy. If we denounce what is wrong, we should protect what is right. A national system is necessarily unbalanced if in addition to its own regulations of interstate commerce, it permits forty-eight different states to legislate upon the same subject. A harmonious system requires that the affirmative and the negative enactments should emanate from the same authority within the same jurisdiction, and that such regulations should in both respects exclude interference from any other source. The possibility of such conflict was had in mind by the framers of the Constitution; for the danger of encroachment by the states upon the authority of the Federal government was just as clearly pointed out and guarded against, as was the encroachment of the Federal government upon the authority of the state. The integrity of both is necessary to a normal development of the dual system. Until, therefore, the Federal government undertakes by direct provisions to protect as well as denounce commercial organizations engaged in interstate transactions, if necessary even against the interference of state laws, we must be prepared to see a continuance of this flood of state legislation, and to pay the inevitable price of so conflicting and incongruous a system.
So much by way of illustration of one of the causes to which may be attributed what has been aptly termed the "rain of law." But difficult and even threatening as this condition undoubtedly
is, by reason of the hesitation of Congress to grapple with a problem, which so gravely involves our domestic development, and our competition with foreign countries even more, we have not to look far for a more serious cause of over-legislation. We are in a state of statutory law worship. We pin our faith to the letter of the law, forgetting the spirit of the man. We are unmindful of the common truth that all law derives its vitality from the will of the people; just as every resolution is worse than worthless without the determination of the man to carry it out.
Perhaps no one presented this truth more persuasively than did Lord Haldane in his address at the last meeting of the American Bar Association in Montreal. Most clearly and happily does he point out the three forces that are at work in the development of real law. First, there is the standard of the idealist which, however lofty in itself, furnishes no rule for the conduct of his fellowmen. He may be disposed to give what he has for the benefit of others, but obviously no common rule can be based upon his personal generosity; second, we have statutory law which, for reasons manifest to every one, can not prescribe a higher rule of action than the general public can be compelled, or, in the last analysis, is willing, to adopt; third, we have the influence of the ethical sense of a community-not the lofty standards of an individual-not the mere mandate of the statute-but that sense of propriety upon which every community insists for itself. This is the essential law-making force of every people, and in so far as a statute goes beyond, or is not expressive of that sense, it is bound to fail.
In searching for a term to describe this force, Lord Haldane is compelled to resort to the word "Sittlichkeit". For some reason, in naming the country whose growth of law has been had in the manner indicated, the people who furnished him with the appropriate word, was omitted. The correct impression must necessarily imply the foundation thought; and it is therefore safe to assume that even in Germany the development of real law must
move upon lines similar to those which obtain in other civilized countries. Lord Haldane's appreciative reference to Professor Von Ihering brings to mind that eminent author's little volume, "The Struggle for Law," which is translated into many languages, and which it will pay every citizen to read. It is his contention that the salvation of the state depends upon the determination of every citizen at all times to fight for his rights; and that the growth of the law is based upon struggle for right and resistance to wrong.
The author illustrates his contention by comparing the Englishman who resists being duped by innkeepers and hackmen, and the Austrian who, to avoid controversy and sensation, consents to pay. And he concludes that "in the few pieces of silver which the Englishman refuses and which the Austrian pays, there lies concealed more than one would think, of England and Austria; there lies concealed centuries of their political development and of their social life".
I am not clear that it would be as safe to use this illustration now as it was when Ihering wrote.
And again he says:
"Law is idealism-paradoxical as this may seemnot the idealism of the fancy, but of character, that is of the man who looks upon himself as his own end, and esteems all else lightly when he is attacked in his personality. What matters it to him whence this attack upon his rights proceeds-whether from an individual, from his own government, or from a foreign nation? It is not the person of the aggressor that decides what resistance he shall oppose to the attack, but the energy of his feeling of legal right, the moral force with which he is wont to assert himself".
In other words, we find that those of our citizens who insist
upon "throwing" cases into court on principle, have some ground to stand upon, even if their lawyers often have not.
Obviously Von Thering takes issue with Savigny, who stood for the peaceful development of the law. But it must be remembered that Savigny, as the great advocate of the historical development of law, was merely contending, against a codification which at the time he regarded as inopportune; although the distracted and diverse conditions of his country would now appear to have then afforded need for codification, similar to that which afterwards was had when the new German Empire adopted its code to restore harmony of system among all its people.
Upon the main question it appears to me that neither Von Thering nor Savigny need be entirely right or wrong. Law may be developed upon lines of peace or war; that must depend upon immediate conditions. If the warning and criticism of Erasmus had been heeded, Luther might not have arisen in power. Cavour's career might not have been possible without Garibaldi's preparatory struggle; but no one who has read Thayer's life of Cavour can doubt that without this statesman to restore harmony and opportunity for Italy's peaceful development, Garibaldi's efforts would have been useless. If Turgot had lived earlier, or had been heeded when his advice was given, perhaps Robespierre would never have led a French revolution; but even so, in later years the success of a French republic was built largely upon the counsel which Turgot had given at an earlier date. If the dreamers of Germany before 1870 had been able to agree upon a common plan, that country might not have needed a Bismarck--a man of blood and iron-to knock their heads together, and to create a German Empire. And yet the triumph of Bismarck culminated in a realization of the dreams that preceded him. Cromwell was called into power because the warning voice was too long ignored. Either the impatient demands of the abolitionist or the conciliatory policy of Daniel Webster must have re