Notre Dame Law Review Volume 18 | Issue 3 Article 1 3-1-1943 Fifty Years' Growth of American Law Roscoe Pound Follow this and additional works at: http://scholarship.law.nd.edu/ndlr Part of the Law Commons Recommended Citation Roscoe Pound, Fifty Years' Growth of American Law, 18 Notre Dame L. Rev. 173 (1943). Available at: http://scholarship.law.nd.edu/ndlr/vol18/iss3/1 This Article is brought to you for free and open access by NDLScholarship. It has been accepted for inclusion in Notre Dame Law Review by an authorized administrator of NDLScholarship. For more information, please contact [email protected]. NOTRE DAME LAWYER A Quarterly Law Review VOL XV1II MARCH, 1943 NO. 3 FIFTY YEARS' GROWTH OF AMERICAN LAW* CONTRACTS AV IAT we see in the law today is partly a development V of the materials of nineteenth-century law, partly a revival of methods and ideas of the older law, which the nine- teenth century discarded, and partly a reshaping of both by new modes of thought, juristic, philosophical, political, ethi- cal, and economic, not as yet clearly worked out or organized, which, indeed, have not obtained long enough to enable the orbit of their operation to be plotted with any assurance. The seventeenth and eighteenth centuries were centuries of philosophy. Everything was referred to philosophically de- rived principles of reason. The nineteenth century was the century of history. Everything was approached by way of its historical development. That development was taken to show the course of unfolding or realizing of the idea which was reality. The nineteenth-century jurists were in revolt from the philosophical jurisprudence of the eighteenth cen- tury as the jurists of today are in revolt from the analytical and historical jurisprudence of the last century. It has proved *A series of four lectures delivered at the College of Law, University of Notre Dame, on January 21, 22, 28, and 29, 1943. NOTRE DAME LAWYER impossible for jurisprudence to get along without philosophy, and there is much to indicate -that it is proving equally im- possible for it to get on without history. Comte defined society as an accumulating activity. A re- cent writer applies to the accumulative aspects of human society the term "time binding." Groups and associations and societies, Gierke tells us, not only enhance the power of those who live contemporaneously, but above all, through their permanence, surviving the personality of the individual, bind the past of the race to those to come and give man the possibility of development. Sir Frederick Pollock reminds us that "the young adventurers of the twentieth century, who profess to owe nothing" to the Victorians, "are really standing on their shoulders." It is not merely that there is continuity of development in the common law. There is a certain likeness of the environment of Anglo-American law today to that of English law in Tudor and Stuart times. There is a clear parallel in the problems of the formative era of American law, when we had to make an American com- mon law from the English land law and legal procedure of the seventeenth and eighteenth centuries, and those of to- day when we have to shape a body of law for the twentieth century from the American common law worked out for the nineteenth century. Looked at critically, such things show us that, if history does not repeat itself, at least like condi- tions will recur and will bring about like (even if not the same) institutions, will give like forms to precepts and doc- trines, and above all will lead to like (if not the same) modes of juristic thought. If the jurists of the last century carried their faith in history too far, the jurists of today carry their rejection of history too far. I began the study of jurisprudence when an undergraduate in college in 1886 with that characteristically nineteenth- century text, Holland's Elements of Jurisprudence. I had a college course in Constitutional Law taught by a professor of history from Judge Cooley's text. A historian, who had FIFTY YEARS' GROWTH OF AMERICAN LAW studied in Germany and turned to institutional history, in- troduced me to Savigny. My law school study was in the ninth decade of the last century and I was admitted to the bar in 1890. Thus I studied and practiced law in the nine- teenth century and began to teach law in 1899 thoroughly imbued with the juristic thought of that time. A few years later, I made the acquaintance of a sociologist who intro- duced me to Ward. In the meantime in practice, on the bench, and in teaching I made it a rule to read the current decisions of common-law courts week by week. Thus I have followed the changes whicl have gone on both in juristic thought and in legislation and judicial decision for more than fifty years. Looking back over them, it stands out that something more than the changes which experience of ap- plication brings about continually in all systems of law has been going on and is still going on; something which calls for examination by the thoughtful jurist as to what it means and whither it leads. Such an examination calls for analysis, history, and philosophy. But first it calls for some detail of exposition as to the changes themselves. A significant aspect of these changes is brought out in-the law of contracts. Two conflicting tendencies may be seen in the develop- ment of our law of contracts in the past fifty years. On one side, there has been a tendency to extend the sphere of en- forceable promises and agreements. Such a tendency had been marked also in the seventeenth and eighteenth cen- turies. But in the nineteenth century the movement to bring the law into accord with morals in this respect slowed down and almost stopped. Analytical jurists rejected all identifica- tion of the legal with the moral. Historical jurists saw that from the beginning the law had only enforced cerfain types or categories of promises, and so held that there was reality in, the idea of the legally enforced as distinguished from the only morally sanctioned promise or agreement. Today, in contrast, extension of the sphere of legal recognition and en- forcement of promises and agreements goes on rapidly. The NOTRE DAME LAWYER historical categories bid fair to disappear. On the other side, there is a movement, no less marked and developing quite as rapidly, to restrict freedom of entering into contracts and limit the enforcement of recognized and generally enforce- able agreements in particular cases and as to particular classes of persons. In part, this is connected with a general tendency to concrete individualization in all types of ac- tivity today. Promises even if fair in their inception which involve supervening great hardship upon the promisor were not enforced specifically in equity. But this did not leave the promisee wholly without remedy. As will be seen presently, the tendency today goes much further. The category of promises and agreements which as a type are enforceable but which are not to be enforced either at law or in equity as to certain types of person or in certain connections, grows continually. The two tendencies, while in opposite directions, are not incompatible. The one goes more to the form, the other more to the substance. The one goes more to the eco- nomic aspect and is based on the social interest in the sedur- ity of transactions. The other goes more on the personality aspect and is based on the social interest in the individual life. Thus they can go on contemporaneously in a system of law, for a time at least, without any fundamental dis- turbance of the general security. But the second tendency goes along with one to turn the whole field over to the do- main of administration and is perhaps in part connected with Marx's theory of the disappearance of law in a society which has done away with trade and commerce. At any rate, we must contrast Bentham's theory of allowing the utmost freedom of making agreements and strictly enforcing them when made, and the doctrine as to liberty of contract which developed in American constitutional law in the last quarter of the nineteenth century, with the attitude toward free con- tract and enforcement of contracts which obtains in legisla- tion and administration and less noticeably in judicial de- cision today. FIFTY YEARS' GROWTH OF AMERICAN LAW In the first of the two tendencies we see the culmination for the time being of one that may be traced almost from the beginnings of law. Indeed, it is part of a general tendency to extend the sphere of legally recognized interests which marks the whole history of law. Putting the matter in an- other way, there is increasing recognition of and giving ef- fect to a jural postulate that in civilized society men must be able to assume that those with whom they deal in th6 general intercourse of society will act in good faith and hence will make good reasonable expectations which their promises and other conduct reasonably create, and will carry out their undertakings according to the expectations which the moral sentiment of the community attaches thereto. For the moment, I shall assume that this jural postulate is at the basis of the law of contracts. But we are becoming conscious of another postulate, not yet so clearly apprehended, that every individual in civilized society is to be assured of a full social life therein, which comes into competition with the former, is the basis of the second of the two tendencies, and must somehow be reconciled and kept in balance with the first.