University of Pennsylvania

Law Review
FOUNDED 1852

Formerly
American Law Register
VOL. 100 OCTOBER, 1951 No. 1

PHILOSOPHY OF LAW AND COMPARATIVE LAW

By RosCOE PouND t

There is a growing and healthy interest both in philosophy of law

and in comparative law in America today. This suggests considera-
tion of the relation of philosophy of law to comparative law, of the
function of philosophical method in the science of law, and of the prob-
lems of the science of law at the moment as to which philosophy of law
may or even must be of help, and of what present-day philosophies of
law may be expected to do for them.
When comparative law was a comparison of the legal precepts
on given subjects in one system with those obtaining on the same sub-
ject in other systems an analytical method was employed. It was true
even in this stage of development that historical method was not to
be ignored. What legal precepts are depends much upon what they
have been and how they have come to be what they are. But a fruitful
comparative law must involve more than comparison of legal precepts,
important as that is. There should be comparison of systems of law
as systems, not merely precept by precept.
History has played a decisive part in the development of systems
of law more than once. A taught tradition is a decisive element in a
system. Two distinct iong traditions, the one going back to the Roman
jurisconsults of the classical era, the other to the teaching of the law
of the King's Courts by medieval English lawyers, have kept their
identity since the Middle Ages. They have put their mark upon the
significant features of the respective systems and have set the two sys-
tems off as independent however much either may have borrowed
something from the other at one time or another. Whatever the Con-
tinental law borrows it Romanizes. Witness the community (matri-
t Dean Emeritus, Harvard Law School.
2 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 100

monial property) regime borrowed from Germanic law. Whatever the

Anglo-American law borrows it Anglicizes. Thus the doctrines of
admiralty as to collisions have been made over in recent times in the
United States to the Anglo-American law of torts. Whenever anything
is taken over from the one system into the other it is made to fit into
the system into which it is received and takes on new form and color.
From the Middle Ages the Continental lawyer and the English lawyer
have had a different bringing up. The course of the taught tradition
is for the most part determined by the most conspicuous analogy at
hand when lawmaker or jurist or judge has to work out an answer
to a new problem. In order to understand a system of law, therefore,
we must get at the basic ideas and analogies of the beginnings of its
taught tradition.
Moreover, comparative law must involve comparison of the au-
thoritative techniques and received ideals which govern the develop-
ment and application of legal precepts in the judicial and administrative
processes. For these, philosophical method is required no less than
historical method. Even in comparing the course of legislation, de-
cision, and juristic doctrine on the same point in different jurisdictions,
the ideals, jural postulates, and ideas as to the end of law are highly
significant. Such things are not well understood without the help of
philosophy.
When human beings are associated in groups or societies, di-
vergent drives, competing desires, conflicting ambitions, cause friction
and unless the conflicts are put down, the causes of friction are held
to a minimum, and a reasonable ordering is achieved, the association
or society will be disrupted by internal strife or will fall apart or dis-
solve. Hence organization of society involves some regime of social
control and the most highly developed social control is the regime of
adjusting relations and ordering conduct by the systematic application
of the force of a politically organized society which we call the legal
order. This general task of the legal order takes form in a number
of sub-tasks as they might be called. The simplest is one of what
Llewellyn calls "trouble cases," situations of conflict which break up
the peace and order of society, lead to private war or obstinate assertion
and obstinate denial of claimed expectations. These have, in the devel-
opment of the legal order, been dealt with in a great variety of ways,
by restricting, limiting, and finally suppressing private war, by arbitra-
tion and coerced compromise becoming legal procedure, by penal treat-
ment extending to execution, by discretionary action of patriarch or
king, by compelling recourse to judges, and by different devices for
determining the facts behind the contentions of the disputants. Another
1951] PHILOSOPHY OF LAW AND COMPARATIVE LAW

sub-task is, to use the words of Llewellyn, "the channelling of conduct,

habit, and expectation in such fashion as to prevent or reduce the
emergence of such trouble-cases; and especially in a mobile society such
as ours there is the peculiarly important job of rechannelling conduct,
of creating new habit and expectation appropriate to the changing con-
ditions of personal and group life, still without touching off too un-
manageably much in the way of trouble-cases." Both experience and
reason enter into the performance of these tasks of social control. To
understand them we must resort to history and to philosophy. But
they are by no means so simple as the abstract formulas of philosophers
make them appear. Accepting William James's proposition of seeking
the more inclusive order, we may unify the categories of sub-tasks by
putting as the task of law the satisfying of human desires or demands
or expectations, looked at as a whole, with the least friction and waste
so far as this can be achieved by a regime of adjusting relations and
ordering conduct by applying the force of a politically organized society.
Often the best that we are able to achieve is a rough compromise
between two conflicting expectations urged in good faith and confident
belief in their intrinsic justice by strong groups in society. Dicey long
ago showed how this was the best English law had been able to do as
to libel. In the same way we have found by hard experience in Amer-
ica that in labor disputes some tolerance of disorder is a political
necessity even where logic would call for a strict enforcement of law.
Such things cannot be dealt with by simple theories of rights or ethical
pronouncements as to right and wrong. But it does not follow that
our only resource is arbitrary expression of a lawmaker's will on
the one hand, or arbitrary determination of an administrative agency
on the other hand. Nor does it follow that authoritative legal pre-
cepts are a delusion; that, as the skeptical neo-realists assert, judicial
decisions are results of, are determined by, the individual characteristics
and surroundings of the men who decide, not by the law in the sense
of the body of authoritative norms of decision nor of the received tech-
nique of applying those norms. The things which hold down the per-
sonality of the judge and insure in practice a reasonable certainty, pre-
dictability and uniformity in the judicial process as a whole are: (1)
That the decisions which go to shape the law are decisions. of a bench
of judges, not of a single judge, and the idiosyncracies of individual
judges are counteracted and held back by the give and take of discussion
in the consultations which precede decision; (2) criticism by the bar
which on the whole keeps a vigilant eye on the course of decision and
makes the opinion of the profession known and hence is a strong force
for certainty, uniformity and predictability; (3) criticism by jurists
4 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 100

and teachers of law in the legal periodicals, and (4) uniform training
of the judges in their formative years which leads to identity of atti-
tude toward legal precepts and their interpretation and application,
and a received idea of values and body of received ideals as to the end
and purpose of social control and so of law. Here we get help,; even
if only help, from philosophy.
What are the problems of the science of law at the moment which
call for philosophical method? One set of problems grow out of the
rise of the service state and its effect upon Anglo-American constitu-
tional law. It is characteristic of the service state to make lavish
promises of satisfying desires which it calls rights. Thus, in the spirit
of the service state some projects for world declarations of rights re-
cently proclaim a right of every one everywhere to "release from the
bondage of poverty" and a right in all men to "just terms of leisure."
When a constitution promises such things to every individual those
who draft it do not ask themselves whether such provisions are laws,
parts of the supreme law of the land, or only preachments of policies
which no court can enforce and no executive and no legislative body
can be made to regard. Such preachments enfeeble a legal constitutional
structure. As they cannot be enforced they lend themselves to a doc-
trine that constitutional provisions in a written constitution which
declares itself the supreme law of the land and contains a bill of rights
declaring specific liberties, which have been secured to Englishmen
since the contests between courts and crown in the seventeenth century,
and to Americans from the beginnings of our constitutional policy, by
legal remedies in the courts available to all injured individuals, may be
disregarded at any time in the interest of political policy of the moment.
They weaken the whole constitutional polity which we have built up
in the United States. Setting up such .things in a declaration of guar-
anteed rights makes a farce of constitutions. Guarantees which are
no more than promissory declarations of policy not only deceive, they
go to undermine those which are enforceable and made to be enforced.
Rise of the service state, the state which, instead of preserving
peace and order and maintaining the general security, takes the whole
domain of human welfare, except the welfare of our souls in the here-
after, for its province and would cure all economic and social ills
through its administrative activities, has affected American constitu-
tional law at another point. After experience of resumption of grants
and revocation of franchises at every turn of fortune in seventeenth-
century England, and of colonial legislation interfering with enforce-
ment of contracts and revoking charters, Americans put in our federal
constitution a prohibition of state legislation impairing the obligation
1951] PHILOSOPHY OF LAW AND COMPARATIVE LAW 5

of contract. This constitutional provision- has, in large part at least,

become a mere preaching. Legislation impairing or doing away with
the practical legal means of enforcing promises is upheld in a doctrine
that a power of the legislature to relieve promisors of liability is im-
plied in the sovereignty of the state and is to be read into every con-
tract as a tacit term thereof. This has gone along with a notable
relaxation of morals in the breakdown of the feeling of duty to per-
form promises. What is called the prediction theory of obligations is
taught. There is no longer any strong feeling of moral duty to
perform, and impairment of the legal duty as well undermines a main
pillar of the economic order.
Anglo-American systematists have thought of public law as only
a specialized branch of private law until the growth of administration
under the service state compelled them to look to Continental Europe
for some new systematic ideas. The effect of rise of the service state
upon American constitutional law is only a phase of a movement which
has been going on in private law throughout the world and is recasting
the theory of obligation and of liability to respond for injury or loss
by others along new lines involving fundamental questions of the
philosophy of- law.
In 1715 Strykius said: "Agreements are to be kept . . . this
maxim has proceeded from the mouth of God, and for that reason
God is bound by a pact, and the devil and the prince, and there is no
greater justice than to observe pacts." In contrast we read today
that a promise is no more than a prediction that the promisor will be
able and willing to render some ipecified performance at some future
date. We read of "the principle of favor to the debtor," and of what
Ripert calls ironically "the right not to pay debts." This is connected
with the growth of what Josserand calls "contractual dirigism." When
contracts are made for people by the service state they do not feel
any strong moral duty to adhere to them. If the state makes them
let the state take care of performance.
Article 1134 of the French Civil Code put emphatically the ob-
ligatory force of a contract: "Agreements legally formed take the place
of law for those who have made them." Planiol tells us that this
obligatory force had a twofold basis: "A moral idea, respect for the
given word; and economic interest, the necessity of credit." But the
idea of a contract as a making of law for themselves by the parties
fitted in with the idea of promotion of free individual self-assertion
as the end of law which.obtained increasingly after the sixteenth cen-
tury and was characteristic of the maturity of law in the nineteenth
century. Comparison of a contract to a law was, indeed, traditional.
6 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 100

Ulpian so put it in the Digest. Domat had repeated it. The nine-
teenth century metaphysical jurists, to whom freedom of the individual
will was the central point in their science of law, developed and re-
fined it. The free wills of the parties had made the law for them.
The courts could no more change this than any other part of the
law. Even the legislator was bound to respect it as to contracts of the
past. That idea was put in the constitution of the United States.
This high valuing of contract has been disappearing all over the
world. In France it was covered up for a time by what Austin would
have called spurious interpretation. By assuming that the will of
the parties had not been fully expressed, courts could discover in con-
tracts terms which were not there and were not in the minds of the
parties and could modify the terms which they found there. French
legislation went further and gave judges power to suspend or rescind
contracts and change their conditions. The parties no longer made law
for' themselves by free contract. In this as in everything else the
omnicompetent state makes the law for them. Partly there was a
moral idea here. Contracts might be improvident or changes in the
economic situation might affect the value of the promised performance
or of the given or promised equivalent. Partly there was a political
idea of helping debtors under severe burdens in time of economic
crisis. This is akin to an idea we shall see at work in the theory of
liability everywhere-a humanitarian idea of lifting or shifting burdens
and losses so as to put them upon those better able to bear them.
Belief in the obligatory force of contracts and respect for the given word
are going, if not gone.
It means a shift to a directed economy. Planiol well says: "If
the state undertakes to direct the economy itself it cannot admit the
maintenance of contract relations contrary to those it envisages. Con-
tracts of long duration become impossible where in all cases they are
exposed to revision of their clauses. Legal reglementation is substi-
tuted for contractual reglementation. The contract is no more than
the submission of the parties to an obligatory regime."
Things have not gone so far in the English-speaking world, but
they are moving in the same direction., Standard contracts, adminis-
trative prescribing of contract provisions and control over making, per-
forming and enforcing of contracts are becoming everyday matters.
In the history of the Anglo-American common law we see con-
tinually more extended securing of claims to performance of agree-
ments and promises as such until the rise of administrative agencies
with control over contract begins a new development in another direc-
tion. In Roman law down to Justinian we see the same continually
19511 PHILOSOPHY OF LAW AND COMPARATIVE LAW

wider securing of claims to promised advantages. So it is in the

modem Continental law from the Middle Ages to the end of the nine-
teenth century and coming of the doctrine of favor to debtors and of
contractual dirigism in the present century.
Natural law put the sanctity of promise and agreement at the
foundation of law. The nineteenth-century metaphysical jurisprudence
found a like fundamental sanctity in the free will with which agree-
ments were entered into and the terms of agreements were fixed.
Neither of these are suited to the course of development of the law of
contracts as it seems coming to be. At least as to the Anglo-American
law of contracts revived philosophical jurisprudence has a real oppor-
tunity. The constantly increasing list of theoretical anomalies in the
law of contracts as it stands in America today shows that analysis
and restatement have exhausted their possibilities. Given an attractive
philosophical theory of making and enforcement of promises, with some
aid from legislation to afford a starting point, the courts in a new period
of growth may shape the law to a principle adequate to its purposes as
now understood, and judicial empiricism and legal reason will bring
about a workable system on modem lines.
A closely related change is going on in the law as to liability to
answer for loss or damage incurred by others. As we look back on
the development of the law on this subject in each of the legal systems
of the modem world we may see a succession of five ideas as to the
basis of such liability.
(1) At first we have a simple idea of causation, the vengeance
idea. The beginnings of law asked simply, did the defendant do the
physical act which damaged the plaintiff? If he did he aroused a
desire for vengeance in the injured person which would lead to private
war and disturbance of the peace of society. One who so endangered
the general security must buy off the desire for vengeance he had
awakened.
(2) The idea of fault, culpable causation, a moral idea. This sub-
stituted the general morals for the general security as the underlying
idea. "The law of today," said Ames in 1908, "except in certain
cases based upon public policy, asks the further question 'was the act
blameworthy.' The ethical standard of reasonable conduct has replaced
the unmoral standard of acting at one's peril."
(3) The idea of control of the causing factor as determinative of
liability to repair loss or damage, a return to the idea of a basis in the
general security. Notice that this idea was coming in and gave Ames
pause in 1908. He says that the basis is blameworthy action except
8 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 100

in certain cases "based upon public policy." The public policy to which
he referred was the social interest in the general security which called
for holding men without regard to fault where they maintained things
or employed agencies likely in ordinary experience tb get out of hand
and do damage, unless at their peril of answering for resulting damage
they restrained these things and agencies and kept them within bounds.
Cases of liability without fault within this category have steadily mul-
tiplied in Anglo-American law in the present century, and liability
for wrongs done by agents and servants which covered up liability
without fault by a fiction of representation identifying servant with
master and agent with principal, had a long and detailed development.
(4) The idea of ability to pass the loss on to the public, the
so-called insurance idea. We were all to bear the losses falling upon
any of us as risks of life in civilized society, and, as means of achieving
that just distribution of the burden of loss, the law should impose the
loss in the first instance upon those able to pass it on to the public at
large through charges for service in the case of public utilities, or price
of goods manufactured in case of products of the factory, or prices for
products raised in agriculture.
(5) Parallel with or else out of the so-called insurance idea a
new basis of liability has been increasingly advocated in recent years
and is making headway. It looks like an idea of greater ability to bear
the loss as a ground of liability. It is urged as a humanitarian idea
but is often coupled with the insurance idea which under administrative
regimes of the time is fallacious in actual application.
A shift from the idea of liability as attached to fault to some
newer basis of liability not based on morals nor primarily upon the
general security has been going on throughout the world. It is quite
as marked in the law of Continental Europe as in Anglo-American
law. But what it is and what idea is behind it can be shown sufficiently
for the present purpose from American law, and I shall confine myself
to American illustrations.
At the beginning of the present century, and increasingly since,
judges and law teachers have been saying that something more was in
the air than imposition of liability without fault in order to maintain
the general security where the person to be held had the right and
power of control of the thing or agency to which loss or damage was
attributable. Fifty years ago Mr. Justice Holmes, speaking for the
Supreme Court of Massachusetts, answering a type of argument fre-
quently made today, said it was not plain that a man's misfortunes or
necessities would justify shifting damages to his neighbor's shoulders.
1951] PHILOSOPHY OF LAW AND COMPARATIVE LAW 9

A decade later Judge Jeremiah Smith, discussing the growth of lia-

bility without fault, suggested a new category, arguing that this sort
of liability was not a tort category at all. Only procedural reasons
led to referring it to tort, just as procedural reasons had led jurists
to refer liability for restitution to prevent unmerited acquisition of
benefits to contract and to speak of "contract implied in law" or of
"quasi-contract." In the same connection in speaking of the doctrine
of the "attractive nuisance," one of the steps toward a general doctrine
of humanitarian liability, he said: "The apparent assumption i that
all the children in the world are mere waifs and strays, and that the
duty of caring for them must be imposed upon the land owner because
the law can find no one else to bear the burden." The point is in the
words in italics, but I have supplied the italics. At the Harvard
Tercentenary, later, in a lecture entitled, "The Common Law in
America," Mr. Justice Stone spoke of "a vast system of statutory
rights and liabilities, founded upon the idea, new to English law,
that the basis of liability is not the fault of a wrongdoer, but such a
method of distributing the burden of loss as accepted social policy
dictates." Accordingly a law teacher recently, writing on "Touch-
stones of Tort Liability," suggests that a new touchstone which is
emerging is "legal fault," which he defines as "a falling below the
standard of conduct set by those forces in society which have the power
of social control." But liabilities are being created where there is no
conduct. Moreover the term legal fault gives us only what Jhering
called a dogmatic fiction. It is legal fault because it is not fault, or
fault in a Pickwickian sense, like "promise implied in law" because
there was no promise, or "condition implied in law" because there was
no condition.
What is the social policy of which Mr. Justice Stone spoke? What
moves those who, as Professor Stone of Tulane tells us, have the power
of social control, to impose liability for purely legal fault? A writer
of a book on Legal Theory has assayed an answer. He says: "Prac-
tical necessity forced all systems alike not only to seek evidence of
fault in conduct rather than in a state of mind, but increasingly to
shift emphasis in the law of torts from moral blame to social respon-
sibility." But what is the basis of this social responsibility? The last
century would have said it was duty to repair injury due to fault.
Fifty years ago we were beginning to say it was right and power to
control the things and agencies that caused injury. What are we to
say now under the extensions of liability that are developing? There
is much to suggest that it is the duty of those of greater means to come
to the assistance of those of lesser means. Shall we say that this is
10 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 100

again a moral idea? Planiol points out' that at first abandonment of

respect for contract was masked by a pretense of interpretation, Note
in the same way how giving up of the idea of fault is sought to be
masked by a dogmatic fiction of legal fault or by saying that fault is
in conduct rather than intention. Will some one presently impute fault
to possession of superior means and vouch the case of the Good
Samaritan? But his exertion to help out the injured was voluntary,
not coerced by the state.
As the law had been there could be no recovery if the injury or
loss suffered was due to no one's fault. This proposition had come
down from Roman law. Where injuries resulted without any one's
fault, or where no one had control of the thing or agency causing the
loss, it was taken for granted that each of us must bear the risks which.
are inevitable in human existence. The first inroad upon this proposi-
tion was made when legislation made the employer liable for injuries
in accidents in the course of employment occurring without fault of
any one. Here there was an extension of the ground of liability for
causation under the control of the person held. But a movement is
going on beyond the analogy of that idea and on a wholly different
proposition which may well remake the whole theory of liability.
In the last century the general security was generally taken to be
the paramount social interest. In the English-speaking world, until the
present generation, security has meant security from aggression or
fault or wrongdoing of others. Today "security" is being used to
mean much more-how much more it is not easy to say. At least it
is made to include security against one's own fault, improvidence, ill
luck, and even defects of character. Thus there is an extension of lia-
bility beyond a basis in the general security as understood in the past.
Indeed, there is more than an extension. There is emergence of a new
idea and building a new presupposition upon it. All new social ideas,
until experience has brought about a firm grasp of them, are likely to
give us caricatures for a time in their experimental development. Thus
a developing humanitarian idea seems to think of repairing, at some
one's expense, all loss to every one, no matter how caused. It seems
to presuppose that in civilized society every one must be able to expect
a full economic and social life. To fulfill this expectation, to guarantee
the expected full economic and social life, the law seems more and more
to be called on to find for every victim of loss and every one who for
any reason cannot keep the pace of attaining his expectations, what I
have called an involuntary Good Samaritan to pull him out of the
ditch, bind up his wounds, set him on his way and pay his hotel bill.
1951] PHILOSOPHY OF LAW AND COMPARATIVE LAW 11

Forty years ago this began to be urged in the form of what was
then called the insurance theory of liability. In one phase of this
humanitarian movement there was a real and immediate shifting of
the burden from the luckless individual who was injured to the public
at large. It used to be that the state could not be held for injuries to
individuals through the wrongful acts of public officers. The officers
who wrought the injury were personally liable to repair it. But
throughout the world there has been for a generation a tendency by
legislation to provide that public funds shall respond for injuries to
individuals in the course of operation of governmental agencies. Legis-
lation in America has been extending the doctrine of respondeat
superior to the government. Here, just as in case of injuries due to
wilful or negligent action of servants of public utilities or of great
industrial enterprises done in the course of their employment, the
wrongdoing servant is seldom able to satisfy a judgment for damages
in this time of multiplying limitations upon the power of creditors or
injured parties to exact satisfaction of judgments for debts or dam-
ages. The proposition is that losses incidental to services performed
for the benefit of all of us should be borne by all of us. If we adopt
Duguit's teaching that the state is simply a great public service com-
pany, the extension to it of liability under the doctrine of respondeat
superioris understandable.
Here, however, as in the case bf liability of private employ&s for
what is done by their employees in the course of their employment,
there is liability only for a wrong done. There has been no extension
to the state of absolute liability on the ground of causation without
fault. Legislation has increasingly created, in order to maintain the
social interest in the general security, offenses which dispense with
criminal intent and impose penalties for creating danger to health or
safety although the offender has used all due care and has knowingly
done nothing more than put on the market a carefully manufactured
article, fully inspected and of a kind in itself in no wise dangerous,
which nevertheless bursts or otherwise develops a defect and causes
injury. There are now strong proponents of extending civil liability
without fault to such cases.
In a recent case in California one of the outstanding state judges
of today in a concurring opinion, which he has since repeated in another
case, proposed extension of the liability of manufacturers for injuries
to purchasers of manufactured articles made to be sold in the market,
put in circulation accordingly, and ultimately acquired by the person
injured. He said: "I believe that the manufacturer's negligence should
no longer be singled out as the basis of a plaintiff's right to recover.
12 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 100

In my opinion it should now be recognized that a manufacturer incurs

an absolute liability when an article he has placed upon the market,
knowing that it is to be used without inspection, proves to have a defect
that causes injury to a human being."
This goes beyond the jural postulate of liability without fault as
heretofore known to Anglo-American law. Under that postulate the
defendant must at his peril restrain an object or activity that has a
tendency to get out of hand and do damage. Even if he takes all due
care he is liable for something which he maintains getting out of hand
and doing damage. But here he is not maintaining anything and
nothing has got out of hand. He has put something on the market
intended to go through a number of hands and ultimately reach a pur-
chaser who will use it. If in this activity he fails in any respect to exer-
cise due care and subjects others to an unreasonable risk of injury, he
is liable for injuries resulting from his negligence. If the defect causing
the injury existed latent when he put the article on the market, if up
to that time he had complete control of it, and the defect could not have
existed and been undetected except in ordinary experience through
negligence, then the ordinary principle of negligence supplemented by
res ipsa loquitur will suffice for a satisfactory result. But if all we know
is that when the article came to be used by the plaintiff it proved de-
fective and injury resulted, with nothing to show how or when the
defect developed nor to demonstrate that it must have existed in the
defendailt's hands, we have to find a new principle of liability.
It must be conceded that the manufacturer may anticipate some
hazards and guard against the recurrence of them. Accordingly the
chief proponent of absolute liability argues thus: "Those who suffer
'injury from defective products are unprepared to meet its conse-
quences. The cost of an injury and the loss of time or health may be
an overwhelming misfortune to the person injured, and a needless one,
for the risk of injury can be insured by the manufacturer and dis-
tributed among the public as a cost of doing business." As to the power
of the manufacturer to insure, one might remark that those who buy
automobiles can have and probably very generally carry accident insur-
ance. This is not equally true of those who drink Coca Cola or other
carbonated drinks, which seem to account for most of the cases in the
recent reports. But all the establishments that put carbonated soft
drinks on the market are by no means great corporations with ample
means of procuring insurance, and the argument as to ability to pass
the loss on to or distribute it among the public has little force under the
administrative regulation of utilities and administrative control of enter-
prises which obtain today.
19511 PHILOSOPHY OF LAW AND COMPARATIVE LAW

It should be noted that workmen's compensation does not go so

far as the proposition before us, since it only covers injuries and losses
in the course of the employment, although both administrative agencies
and courts are tending to make that category very elastic. Also work-
men's compensation has been coming to extend widely to cases of
injury through fault of the employee himself which were at first ex-
cluded. Moreover, projects are now being urged to turn over the
whole subject of traffic accidents on the highways to an administrative
board to be dealt with on the analogy of workmen's compensation and,
indeed, extend beyond that analogy.
Proponents of absolute liability support the proposition by the
absolute penal liability imposed by the Pure Food and Drug Acts and
like legislation. This legislation is directed to maintaining the general
security by putting heavy pressure on the manufacturer to use the
highest diligence in supervising the process of manufacture and choos-
ing and inspecting the materials used and inspecting the finished prod-
uct. As the penal liability is absolute the only escape can be a maximum
of care and diligence which will so far as possible preclude defects.
But if the general security is what is aimed at, is it not sufficiently
upheld by the penal legislation? Why in addition impose an absolute
civil liability for perhaps hundreds of thousands of dollars damage
without fault? This liability, added to that for negligence of em-
ployees, may put an intolerable burden upon enterprise. One may
agree that an idea that all of us should bear the losses and injuries
which potentially afflict each of us makes a strong appeal: But under
the circumstances of life in the welfare state, in which the cost of gov-
ernment has become enormously multiplied and all manner of heavy
demands upon already over-burdened public resources appear to pre-
clude adding any more, there is inevitable reluctance to press the idea
to its conclusion by direct and immediate imposing upon government
the repairing of losses and injuries without fault of any one.
In the bureau organization of the service state today the proposi-
tion as to passing damages for losses incurred by no one's fault on to
the public by way of employer or public utility or industrial enterprise
is fallacious. One bureau or commission fixes rates for service. Another
fixes or may be fixing prices. Another has control of wages and hours.
A jury or some administrative agency fixes responsibility and assesses
the damages or the amount of accident compensation. Each of these
agencies operates independently, subject to no effective coordinating
power. Those that control rates and prices are zealous to keep the
cost to the public as low as may be. Those that control the imposition
of liability on employers are apt to be zealous to afford the maximum
14 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 100

of relief to the injured or to their dependents. With continual pressure

upon industry and enterprise to relieve the tax-paying public of the
heavy burdens our recent humanitarian programs involve, the practical
result is likely to be that the burden is shifted arbitrarily to the most
convenient victim. There is very little if any validity to the proposition
that compensation for loss or injury without fault of the utility or
enterprise is passed on to the public.
But the deceptive doctrine that we are all of us insuring each of us
in that way makes for growing acceptance of absolute liability. One
state court has now pronounced for it as to manufactured articles and
it is proposed to incorporate it in the new commercial code in prepara-
tion by the Commissioners on Uniform State Laws and the American
Law Institute. Furthermore, a teacher in one of the great American
law schools argues for abolition of the doctrine of the independent con-
tractor in our law of Agency. Our law is that respondeat superior
applies where there is right and power of control over the person im-
mediately acting. Where the actor is an independent contractor there
is no such control. But frequently the independent contractor has no
means sufficient to be reached on execution. Hence we are told losses
and injuries are left unrepaired, which must not be. In the same spirit
one of the justices of the highest court of the land intimates that the
requirement of causation is artificial and should be abrogated. Sup-
pose X deterriines to commit suicide and stands at the corner waiting
for a bus or heavy truck as the chosen agent of self-destruction. When
one comes along he throws himself beneath its wheels and is killed.
If causation is eliminated and fault too, should not the transportation
or trucking company repair the loss to the widow and children? Thus
we achieve high humanitarian purposes by the easy method of using
the involuntary Good Samaritan as the Greek playwright used the god
from the machine. Looking at realities, however, it is the method of
Robin Hood or that of Lord Bramwell's pickpocket who went to the
charity sermon and was so moved by the preacher's eloquence that he
picked the pockets of everyone in reach and put the contents in the
plate. -
What seems to be developing as a jural postulate is: "In civilized
society men are entitled to assume that they will be secured by the state
against all loss or injury, even though the result of their own fault or
improvidence, and to that end that liability to repair all loss or injury
will be cast by law on some one better able to bear it."
Is it not a task of philosophical jurisprudence to give us a critique
and a better formulation of the "accepted social policy" behind the
doctrine of the involuntary Good Samaritan?
1951] PHILOSOPHY OF LAW AND COMPARA4TIVE LAW 15

But contractual dirigism and imposition of liability to repair loss

and injury, irrespective of fault, control over the actor, or causation,
are not the only new features of the law of today for which we may call
upon philosophy of law for help. To adopt Josserand's phrase we have
already moved everywhere toward proprietary dirigism. This may be
part of a general regime of dirigism. But it is viewed with satisfaction
and even promoted by many who by no means believe in an omnicom-
petent state. Let us note some items in the growth of state superseding
of the liberties and powers of owners. In American law restrictions
on liberty of using (jus utendi) are added to constantly. Some ex-
amples are bill board laws, zoning laws, restrictions on what shall be
grown on land in a particular season, limitation of planting and sowing
in order to keep up prices of farm products. In some parts of the
world this has been carried so far as administrative determination that
the owner is not using land to the maximum of its productivity and
appointing a receiver to manage it for him. -Restrictions on the jus
fruendi in the form of rent control are an everyday matter. In Cali-
fornia the system of administrative adjustment of water rights is ac-
cused of setting up a new theory, destroying all priorities' and putting
each user on an equal footing with every other regardless of the time
of origin or basis of his right. A judge of the highest court of that
state says of this: "Under this doctrine a long established, and what
was thought to be a prior vested right to divert and use a given quan-
tity of water, is not only placed upon a parity with later acquired
rights, but an administrative agency of the state steps in and administers
the water at the expense of the users. Practically the control of the
owner is supeyseded." Likewise the Supreme Court of the United
States, giving up the settled doctrine of the British courts, holds that
the foreshore and soil beneath the marginal sea being necessary to
national defense, dominium and imperium there are inseparable, so
that although when the Republic of Texas was annexed and its public
domain was reserved to it, yet they passed with sovereignty to the
United States. -If this is carried out it would do away with private
ownership of land throughout the country under the conditions of
aerial warfare and attack by bombing planes today.
One may look upon what has been happening in the law of con-
tracts, the law of torts, and the law of property as indicating a con-
tinually widening circle of satisfaction of human wants. But the one
conspicuous human demand which in America was the one chiefly
asserted and chiefly respected, namely, the claim to liberty-to free
self-assertion or self-determination-is almost disappearing.
16 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 100

Contracts, torts, property are basic subjects of the law as we have

known it since the Romans worked out the beginnings of legal system.
What has been going on and is threatened in the basic subjects, and
what it all signifies for the law as a whole, calls upon us to rethink
legal theory. Pressure of unsatisfied claims and expectations upon
courts and legislators causes the law to advance here and there before
legal theory catches up with it. Certainly courts were much in advance
of juristic theory in the last decades of the nineteenth century in
America, and it may be that we are seeing a like situation. But if ex-
perience enables the law to deal with new situations and conditions,
reason develops and organizes that experience and gives it stability and
permanence. In contrast with the last century we have in the present
century been laying stress on individualization. Stammler set this
movement going and his influence has been strong here. Also in the
present century we have felt the need of team work with the other
social sciences. Sociologists have been active in promoting this. But
we need, in order to meet the tasks of the law today, if it is possible, a
received measure of values or at any rate development and formulation
of a practical theory of valuing interests. Here above all we need a
fruitful philosophy of law. We cannot be content with the "give-it-up"
philosophy which has held the ground since the first world war. Also
we need philosophical theory of the limits of effective social control
through law. The lavish promises of the service state and the broad
humanitarian idea which is behind at least the movements in the law
of contract and the law of torts, to which I have sought to direct your
attention, call for serious study of the extent to which laudable humani-
tarian ideals may be translated into practical action through law. For
that matter not all of social control can be achieved through law. Here
is something about which we must be thinking also in view of projects
for a world legal order and universal bills of rights or declarations of
rights.
American sociological jurists are criticized on the Continent for
not being sociological. When Durkheim's methodology was accepted
in France it seemed to a French writer a generation ago that we in
America must tie to Durkheim's sociology or we could not be sociolo-
gists. Others, whom the descriptive sociology had attracted, were
sure that sociological jurisprudence could never be anything but a set
of generalizations from anthropology. Indeed, it was not long ago
that sociQlogical jurists were told that they could never get beyond
their historical beginnings in the mechanical sociology. Today Rad-
bruch, for whom as a philosopher I have the highest respect, holds
that in America we misuse the term sociology "which designates the
 1951] PHILOSOPHY OF LAW AND COMPARATIVE LAW 17

theoretical science of society and excludes valuations of a practical and

political nature." But I can remember when, fifty years ago, sociology,
in the time of Ward, was called the American science. American
sociological jurists, seeking only to approach the science of law from
the standpoint of a science of society, are quite warranted in going our
own way and refusing to be confined to what seems to us a sterile
logicism or to busy ourselves exclusively with methodology.
In much the same way it is not infrequently said that Americans
who write about philosophy of law as an instrument are not philoso-
phers. Very likely we are not. From the standpoint of the pure
philosopher it is very likely that we stop where from his standpoint we
ought to begin. We are not conducting a sit-down strike until we can
-be assured as to what is the highest good or as to an absolute universal
measure of values and doctrine as to the end and purpose of social
control.
American sociological jurists are primarily lawyers, deeply con-
cerned with the practical task of adjusting relations and ordering con-
duct by application of the force of politically organized society, and the
endeavor to do this with a minimum of friction and waste, so that the
social order will not disintegrate from failure to achieve the purpose of
making it an effective agency of maintaining and furthering civilization.
If this could be achieved on simple Thomist or neo-Thomist lines no
one would be better pleased than I. It does not seem to have been
achieved or notably furthered in this way since the era in which St.
Thomas wrote. He did great things for juristic thought of the later
Middle Ages. But increasingly effective and continually more com-
plete harnessing of external nature to men's purposes have multiplied
the claims and wants and expectations of which the law must take
account beyond what he could reckon with.
Kohler accused Jhering of a gang unphilosophischerKopf. I sup-
pose that describes most of us Anglo-Americans who, like Jhering, are
primarily concerned with how things work. I owe much to Kohler's
idea of the jural postulates of the civilization of the time and place, to
Radbruch's antinomies and his ideas of justice and of morals. I owe
much also to Hauriou's great contribution in his idea of the "institu-
tion." In common with most Americans who had a scientific training
in the '80s of the last century, I was brought up on Comtian positivism
and turned thence to Comtian sociology at the beginning of the present
century. Studying law in the meantime, like all Americans of the
latter part of the nineteenth century, I fell under the spell of Sir Henry
Maine and thus of Savigny. Ultimately the radical empiricism of
William James seemed to do most in enabling me to see the task of law
18 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 100

and how we go about performing it. Without enlisting as Thomist,

or Kantian, or Hegelian, or Comtian, I am helped by much each has to
tell me and can use much of what they have worked out in advancing
the practical science of law.
Radbruch's antinomies, however, need not lead to an abdication of
all claim to impose checks upon administrative or legislative absolutism.
As he now sees it, although justice, morals, and the general security, if
any of them is carried out with logical completeness; negate each other,
yet each includes a certain minimum. If this is not recognized, a system
so failing may not claim to be called by the name of law. Thus we get'
a new sort of revived natural law. But the difficulties American courts
are having with our bills of rights in concrete application carry a warn-
ing. The nineteenth-century American judges held that the provisions
of our federal bill of rights were declaratory of natural law. Now that
they are held to have been made applicable to state legislation by the
Fourteenth Amendment, it is felt that every provision cannot be im-
posed upon the states and yet it has not been possible to draw a satis-
factory line. Hence a supplementary idea of a "fair trial" is being
brought in from the outside to enable the declared rights to be ex-
tended at some points and restricted at others. To me Radbruch's later
doctrine seems to be one of certain presuppositions of life in civilized
society, a set of fundamental expectations-or wants which an effective
social engineering, must contrive to satisfy without ignoring other ex-
pectations or wants which men in varying degrees in time and place
assimilate to them.
What we can fall back on is experience of how to adjust relations
and order conduct in accordance with norms of decision. These norms,
discovered by experience are developed by reason. Others are dis-
covered by reason and tested by experience. We are not like Vyshinski
to discard reason. But reason working on and with experience is
something very different from reason giving us deductions as to infinite
details of good and evil, right and wrong, for the complex social order
of today.
I have spoken chiefly of some of the problems facing the con-
temporary jurist. They call for the help of philosophy, but contem-
porary philosophy is doing little for them. At the end of the eighteenth
century the French Revolution had introduced new ideas and men were
troubled to reconcile authority and liberty; the authority of the law and
the freedom of the individual will in which men were coming to be-
lieve. Kant gave us the philosophical theory which governed in the
science of law for one hundred years and, indeed, persisted in many
places well into the twentieth century. The neo-Kantians are still prob-
1951] PHILOSOPHY OF LAW AND COMPARATIVE LAW 19

ably the niost active group and the group of most influence in philo-
sophical jurisprudence today. But the Kantian idea of justice has done
its work as the natural law of pure reason had done its work at the
end of the eighteenth century. Must we not hope for some new Kant
to find the path for the jurisprudence of the era on which we are enter-
ing and to give us the theory of justice for another time of fruitful
philosophical science of law?