The American Idea of Government
WHAT IS BEHIND THE TEACHINGS THAT QUESTION THIS IDEA?
By ROSCOE POUND, Dean Emeritus and Professor of Law,Harvard University Law School, Cambridge, Mass.
Delivered before the Rotary Club of Chicago, Chicago, Ill., July 18, 1944
Vital Speeches of the Day, Vol. X, pp. 681-687.
ETYMOLOGICALLY, idea means picture—a mental picture of something. Let us, then, for the moment say, "picture." From the adoption of our federal constitution to the present generation, the American picture of government had involved seven points. Not that these seven features of our polity came into the American picture at once and' at the same time as the drafting of our federal constitution. Most of them go a long way back in English political history. Some were redrawn to the experience of seven teeth -century Englishmen with the Stuart kings and of eighteenth-century colonists with the government at Westminster. Some represent experience of government in the new world. At any rate, seven stand out: (1) a constitutional democracy; (2) a settled polity of home rule; (3) as a corollary, a federal polity; (4) a written constitution as the supreme law of the land; (5) guaranteed individual rights; (6) a settled doctrine that no one is above the law; and (7) a deep-seated repugnance to deposit of unlimited government power anywhere or in any one.
When our American polity was formative in the last quarter of the eighteenth century, the era was one of absolute governments. The model before every one's eyes was the old regime in. France. England in the last decade of the eighteenth century had definitely rejected royal absolutism, but had set up a parliamentary absolutism, contrary to the views of the medieval and the seventeenth-century lawyers, although, as was the doctrine of those lawyers, the agents of the crown were held to act under the law. In the new world, the colonies had become provinces, provincial legislatures had become strong, courts and judicial systems had been set up, and the development of American law and American legal institutions had begun. On the basis of what they read in the English law books, which spoke fromthe seventeenth rather than from the eighteenth century, American lawyers were restive under the absolute rule of Parliament and even more restive under the administrative absolutism of the Privy Council, while the American who would carry on enterprises or engage in trade was quite as restive under the centralized control of such things at Westminster. For down to the Revolution, as to things American, there was a complete centralization of political power at Westminster, ultimately in Parliament, but immediately in practice in the Privy Council. Thus a great change was wrought by the federal constitution. In place of centralized control by an administrative body, we had for a time a loose and ineffective government for external affairs along with practically thirteen independent states with their own legislatures, their own courts, their own laws. Then came the federal legal polity under which we have Jived since 1789—a constitutional democracy, as it became, with a parceling out of political power between nation and state, and in each political entity a distribution of power between co-equal, independent departments, constrained to keep within their appointed limits by the constitution as the supreme law of the land.
But, some say to me, that is an old-fashioned way of speaking about our American polity. You speak as if in the continuity of its historical development our polity was still that set up in 1789. A generation ago no one would have doubted this nor would any one of consequence who administered or taught our institutions have wished it otherwise. In the nineteenth century, in the age of philosophical history, continuity and identity were found in an idea which was taken to be unfolding or realizing itself in the development of an institution. On the other hand, perhaps the present, by way of reaction, insists too much on discontinuity. If the one put too much stress on the idea which it found from the whole course of development and upon the general aspects from which the idea was gathered, the other sees the story piece by piece in unrelated fragments and lays too much stress upon the details. Radioactivity has taught us that even in physical nature nothing stays exactly the same. Much less do institutions keep an exact identity of detail. Yet in their significant aspects both physical objects and institutions may preserve a long continued identity under many changes and notwithstanding much change of detail.
Closely connected with the stress upon discontinuity and upon detail rather than upon general aspects putting the details in the order of reason, is a rejection of ideas and conceptions and principles. We are told that psychology has undermined reason; that reason is but a pretense to cover up behavior proceeding from deep-seated wishes which are the real motivation. The boundless faith in reason which came in at the Renaissance, the belief in a creative reason equal to all social and political and legal questions which characterized the seventeenth and eighteenth centuries, have given way to a rejection of reason by those who would be up-to-date and belief in social and political and legal phenomena as no more admitting of reasoned control than are the phenomena of physical nature. Relativism has been teaching us not to talk about good and bad and right and wrong. Judgments of value are subjective opinions only. They are unscientific. Hence we are to understand that canons of value and attempts to conserve values by law are futile. We must accept the phenomena of government as we must accept those of physical nature. In politics and jurisprudence the result is a cult of force which for a generation has been manifest throughout the world and has been especially marked in international relations. In theories of government and of law there has been increasing insistence upon force. We are told that the reality which we can observe and verify is force, and that subjection of that force to reason is a pious wish, a superstition. Where the Middle Ages looked at the problems of government and law in terms of authority, where the seventeenth and eighteenth centuries looked at them in terms of reason, where the nineteenth century looked at them in terms of history, today we seem to be looking at them in terms of impulse.
One phase of this cult of force is an idea that if there is to be a democracy it must be an absolute democracy—which certainly was not the idea of our constitutions, national or state. We are told that from its very nature a democracy must be an absolute subjection of a politically organized society to the unlimited and unrestrained rule of the majority or even of a plurality for the time being, just as an autocracy is an absolute subjection of such a society to the unlimited rule of a personal ruler. But in the present connection, at least, democracy is a form of government. There may be an absolute monarchy or there may be a constitutional monarchy. A king may rule or he may only reign. There is no such thing as a limited or constitutional autocracy. The autocrat of limited powers is not an autocrat. But a democracy is not necessarily autocratic. It may be an absolute democracy or it may be a constitutional democracy. I grant that this last proposition is not universally conceded. There are self-styled logical realists, skeptical of everything but their own skepticism, who tell us that a constitutional democracy is a contradiction in terms. I submit, however, that this begs the question by assuming what is to be shown, namely, that a democracy must be an absolute democracy. If one starts by defining government as the unlimited application of the force of a politically organized society to those subject to its power, a government of any sort, and hence a government by the people, must be absolute and unlimited. But experience of our own, which is the outstanding democratic polity in the world, does not bear out the assumed nature of government. We may very well meet the relativist-realist's proposition by adopting Diogenes' answer—solvitor gubernando.
If one suggests that there is too much insistence on thinking of democracy in terms of power only, ignoring the responsibility which is the correlative of power, he may be told that power is a fact, exercise of power is an observed and verifiable phenomenon, whereas the correlative responsibility is only a subjective ideal, a pious wish of no scientific validity, belonging to the realm of ought-to-be, not to the realm of what is. But I might respond that the idea of an absolute democracy, a people as a whole, ruling benevolently over a great domain, administering an enlightened personal justice after the manner of St. Louis under the oak at Vincennes, enacting wise laws after the manner of Solon, and providing an efficient personal administration after the manner of Napoleon, is something of a pious wish itself. Even the simplest and purest democracy must act through agents. Demos himself may, in a democratic polity, have ultimate unlimited power. But it is no contradiction of this proposition to add that he may put limits to the exercise of his powers by his agents whom he chooses to carry out his purposes. Nor are his ultimate purposes and those of a plurality of the electorate for the time being necessarily the same. One may question whether it is the end of government to enable a majority to exercise force for the sake of exercising it, or rather also to direct the exercise of force no matter who is exercising it. At any rate, the proposition that a democracy must be an absolute democracy, that a constitutional democracy is a contradiction in terms, in the hands of self-styled realists, who hold that government is only a name for the individual men who wield the force of a politically organized society, becomes a proposition that theofficials who act as the agents of a democracy must in the nature of things be free of constitutional restraints. Such is not the American idea of government.
An idea of a covenant of a people not to do certain things and only to do certain other things in a certain way was well known in the formative era of our polity. It was an idea of the Puritan Revolution in seventeenth-century England. Lord Acton tells us that the Puritan ideal was "the ideal of local self-government and of democracy." But the idea of an absolute democracy has no place for local self-government. Shall we say, then, that the foundations of modern democracy were undemocratic, or shall we say that Demos no less than Rex may, in the words attributed to a great medieval lawyer, rule under God and the law? To the Puritan, the precedent of the covenant which made Abraham and his seed forever the people of God justified the self-limitation of a sovereign people to keep within the bounds of a bill of rights, really a bill of liberties, and to respect the claims of localities to self-government. But, it is said, from a logical analytical standpoint this idea is untenable. How can the postulated political omnipotence put limits on itself or on the agents through whom it must act, since these agents, so the self-styled realists tell us, are the reality which we cover up by a pious wish or superstition of rule by the whole people. In America we are beginning to hear this theoretical objection to our constitutional polity from the advocates of bureaucratic administrative absolutism. The same logical-analytical objection was urged against charters and constitutions granted by absolute monarchs. In the nature of things, it was said, the sovereign, which was above legal limitation, could not limit itself. Nothing but force could hold down a man or a body of men who wielded the force of a politically organized society. We are told that law must have behind it, must be imposed by, a force able to impose itself upon all other forces. Hence, it is argued, law rests upon force; there is nothing to law but force. In this way of thinking, whatever is done by those who exercise the force of politically organized society is law. It is not that they may act according to law or against law or without law. The proposition is that what they do is law because they do it. Each item of what they do is law. Attempt to generalize and lay down principles of their action is said to be superstition. Such is certainly not the American theory of government. I suppose the answer will be that we have been politically a blindly superstitious people for one hundred and fifty years until light has been brought to us from the teachers of continental Europe. When we put on the great seal of the United States the words novus ordo saeclorum, a new order of the ages, we were only deceiving ourselves. It was the old order of force over again.
This doctrine calls itself realism. But it is as much a theory of government as the teaching it rejects as unreal and as being a mere theory. It is as unreal as any theory purporting to give a systematized picture of actualities can be. The history of civilization shows increasing restraint upon exercise of force simply as such. Indeed, there has always been something restraining behind even the most autocratic of autocrats. In a constitutional democracy this restraining element is given expression and efficacy by a written constitution declared to be the supreme law of the land, binding upon all the agencies of the sovereign people, and what is regarded as the solemn covenant of that people to rule according to law and to uphold the rights and liberties which its bill of rights has declared.
It is not the American idea of government that democracy must be the absolute rule of those chosen by popular election and their subordinates. The unanimity with which, after independence, the colonies, now become states set up written constitutions as fundamental law, not merely as frames of government, established bills of rights, and founded their polities upon the separation of powers, is significant. But we are told today that constitutional limitations, bills of rights, and the separation of powers are only fashions of eighteenth-century thought. This is something to which I shall address myself presently in another connection.
A second characteristic of American government is home rule or local self-government. So far as is compatible with the effective existence of the national government the locality is to govern itself. This is so thoroughly a part of our American polity that many states have constitutional provisions for home rule in their larger cities, giving these cities what are almost separate constitutions making them as to local matters to a high degree free from state legislation. As we have insisted on a balance between government and the individual, so we have insisted likewise on a balance between central government and local government both in the nation and in the state. But this feature of the American idea of government is likewise under attack today. We are told by a high official of the national government that we have in this country too many governmental subdivisions. The system of continental Europe, in which the local official is the agent not of the local but of the central government is pointed to as the modern system. Theoretically, such a system may make for a maximum of efficiency. But business experience seems to show that there is a point beyond which a single organization may become too big for efficiency. Moreover, too high a price may be paid for efficiency. The concentration of political power involved in a centralized control of local as well as national functions of government runs counter to the inherited political instincts of the American people. The idea of local self-government was deep-rooted in those who settled America in the seventeenth century. Indeed, the non-conformists even carried it into religious organization.
Third, as a corollary of the idea of local self-government, our American polity is a federal polity. Such a polity does not have the simple theoretical lines of a centralized government. It involves complexities, and overlappings, and none too clearly defined boundaries raising problems which are often far from easy. Hence it does not commend itself to the logical academic mind. Moreover, it involves a difficult idea of balance. It requires keeping in mind more than one idea at a time. But few things are more difficult, and certainly few are more needful, than keeping two or more competing ideas in mind at the same time. The difficulty of doing this embarrasses political and legal thinking at every turn. I have often compared it to the feat of the juggler who keeps a number of balls in the air at the same time, letting none fall to the ground and none interfere with another. The unskilled man may find it hard to keep even one going from his hand into the air and back and forth without dropping the ball. To keep two going at once is commonly beyond his power without long practice. So it is with ideas. It is only by dint of experience and training that men can keep two of them, superficially incompatible, in mind at the same time, not losing sight of either so that, as it were, it falls to the ground, and not allowing one to interfere with the other so as to frustrate the activity in which they are engaged. To keep in balance nation and state, state and locality, government and individual, losing sight of none and giving due weight to each, is not the easiest of tasks. Inability to see but one at a time is manifest in the extreme abstract individualism which could see only the individual man and the equally extreme collectivism which could only see an omnicompetent central government. If it requires an effort to comprehend a federal polity,apart from the Anglo-American instinct for local self-government, as a matter of experience the case for a federal system is quite clear. No domain of continental extent has been ruled otherwise than as an autocracy or as a federal state. Confederacies have fallen apart. Consolidations of independent states, unless in a limited domain, have developed into autocracies. In antiquity, the consolidation achieved by Alexander and the almost world-wide consolidation achieved by the Romans resulted in autocratically ruled empires. In the modern world, the German-Roman empire of the Middle Ages fell apart. It was neither autocratic nor federal. The British Commonwealth of Nations has fallen apart politically. Russia has only changed its type of autocrat. But the United States and Canada and Australia show us what we may well call continental domains held together politically, sometimes under great stress, by a federal polity.
A federal polity cannot he an autocracy. The unlimited political power of the autocrat necessarily swallows up the authority of the local governments. The agents of politically organized society in the locality are but the agents of the central autocrat. Nor can it be organized on the basis of absolute rule of a majority of the whole. The absolute power of the majority in the whole swallows up the authority of the majority as well as that of the agents of local government in the part. The latter are all of them the agents of the majority in the whole, not those of the majority in the part. This is true also in a polity in which there is a central oligarchy of unlimited power. A federal organization is impossible under such an oligarchy. But choice is not limited to, on the one hand, the absolute rule of an autocrat or an unlimited oligarchy or an unlimited majority of the whole, and, on the other hand, a mere federation with at most a feeble central authority. As there can be, as our political history has shown, a balance between the executive or administrative and the legislative organ of a politically organized society, so there can be a balance between the central government and the local government, There may even be, as experience in the present century in many states has shown, a balance between the general state government and municipal governments upon which the state constitution has devolved a large lawmaking power with respect to matters of local concern. Under such a polity each governmental agency has full power within its scope, but each is limited in respect of that scope. Thus there may be a democratic polity in the central government and a democratic polity in each local government, and yet no absolute majority without limit on its power in either. A generation ago there would have been no need of arguing for the federal polity which we set up at the beginning and have steadfastly maintained. But today the hegemony of the federal executive, economic unification of the country, if not of the world, and the tendency of power to assert and extend itself, have been pushing us toward centralized government at the expense of the states. Also many of the professors of political science seem to be doubtful of our complex system and to be bringing up a generation without faith in it. 1 Fourth, our American idea of government presupposes a j written constitution which is the supreme law of the land. The idea of a fundamental law is one that goes back to the beginnings of the political and legal institutions of the English-speaking world. It is fashionable in academic circles today to say that Magna Carta was nothing but a treaty between King John and his tenants-in-chief in 1215. But such a treaty declaring rights and duties as between the ultimate landlord and his tenants, when the King was looked on as ruler rather than as landlord, easily became a declaration of rights and duties as between ruler and ruled. Limitations on royal authority imposed by fundamental law and responsibility of the King's agents and servants for exceeding the authority given them by law became settled features of the English polity which we inherited. Already in the fourteenth century the court of King's Bench laid down that while Edward III, King of England, could pardon an offender under the Great Seal, Edward Plantagenet could not write a private letter to the sheriff under his privy seal and interfere with the due course of justice in the courts. Parliament, too, was thought of as subject to fundamental law. Before the Reformation the division of jurisdiction between the state and the church was fundamental. Those things which were in the authority of the church were beyond the sphere of the King or of Parliament. Hence when Parliament sought to prescribe who should have custody of the seal of a monastery or to make the King a parson so he could hold church property, the English medieval courts held that such things were for the law of the church or for the Pope and that the statutes were "impertinent to be observed." In the seventeenth century, Parliament more than once sought to make certain persons judges of their own cases or to make the same person both accuser and judge. In no fewer than five cases between 1605 and 1701 the English courts held that this was beyond the power of Parliament, and that an act contrary to common right and reason would not be given effect. One of the effects of the Revolution of 1688 was to make Parliament absolute and supreme. There is no longer any fundamental law in England, although as to the responsibility and liabilities of the Kings ministers the law remains as it was settled in the Middle Ages.
In colonial America the charters limited legislative power by the common law. Magna Carta was taken as a declaration of fundamental law and the common-law rights of Englishmen, as set forth in Lord Coke's commentary on Magna Carta were claimed as the birthright of the colonists. We must remember that Americans from colonization to independence had two centuries of experience of absolute government. It was not merely that a Parliament in which they were not represented could make laws for them and tax them. Government of them was centralized in the Privy Council at Westminster in which they had no voice. While the colonies had their provincial legislatures, any act could be disapproved by the Privy Council within five years and if it was not disapproved might later, when relied on in litigation, be held bad by the Privy Council as in contravention of the colonial or provincial charter. Thus the ultimate legislative authority was substantially in the Privy Council.
Even more, the ultimate executive authority was in the same body. The governor was appointed by the crown; was given elaborate and detailed instructions by the Privy Council through one of its boards as to the conduct of his office; and was required to make reports showing compliance with the instructions. He commonly appointed his council and he and his council were the upper house of the legislature. Sometimes they were also the highest court of the province. But whatever the judicial organization of the province, the same Privy Council was the final court of appeal. In other words, the whole legislative, executive, and judicial power, undifferentiated, was in the Privy Council. That such absolute powers, exercised at long range, were exercised arbitrarily goes without saying. The veto power was used to keep Pennsylvania without a system of courts for twenty years. The executive power was used by the board of trade and plantations to prevent the setting up or development of industries in the colonies. The judicial power was used to impose doctrines of primogeniture and inheritance of land
wholly alien to those held by the colonists. The first settlers had come to America during the contests with the Stuart Kings to maintain the supremacy of the law as against masterful monarchs seeking to rule autocratically after the manner of the French King of the old regime. The later generations of colonists had lived in the contests with the government at Westminster and with Parliament in the endeavor to secure a reasonable measure of self-government. The need of a fundamental law, of limitations on exercise of governmental authority, of separation of powers, and of written constitutions had been driven home to them.
Written declarations of fundamental law were no new idea to them. Each of the colonies had something of the sort in its charter and Rhode Island operated under its charter as a constitution till the '40s of the nineteenth century. During the Puritan Revolution the Commonwealth had set up a written Frame of Government. The Pilgrims in the cabin of the Mayflower had set up a body politic by a written compact. Moreover, written formulations of liberties were the staple of English and colonial history; witness Magna Carta and its successive reissues, the Petition of Right, the English Bill of Rights, the Declaration of Rights of the Continental Congress in 1774, and the enumeration of violations of fundamental rights in the Declaration of Independence. It is no wonder that as the several states set up their own governments on the morrow of the Declaration of Independence they established written constitutions, declared to be their fundamental law, grounded upon separation of the powers of government, and putting a bill of rights at the fore.
Today the idea of a fundamental law is pronounced outmoded and a doctrine of disappearance of law is much preached. Also it is fashionable in the science of politics to speak of the separation of powers as a mistaken interpretation of the British constitution by Montesquieu which became a mere eighteenth-century fashion. On the contrary, its universal adoption in this country was the result of American experience in the colonial era. The attacks upon the fundamental doctrine of our American polity are a part of the movement toward absolutism which is going on all over the world. They go along with the teaching of continental ideas of public law and the rise of administrative absolutism which have been going forward in England and in the United States in the last twenty-five years.
A fifth feature of American government is a body of guaranteed rights, or, as the seventeenth-century declarations called them, liberties, made a part of the fundamental law. The Declaration of Independence pronounced the endowment of all men with rights a self evident truth, and rights had long been a basic conception in politics and in law. But today what a right is and whether there are rights have become debated questions. An Irish judge tells a story of a jury in a manslaughter prosecution which sent in a communication to the trial judge asking whether a man who had a spot in his skull where it was no thicker than an eggshell did not "have a right to get killed" if he went to the pig fair. No doubt the man did have a reasonable expectation of being killed under such circumstances. We need not argue for natural rights, eternal and inviolable established in the very nature of the universe. If we can't put them any higher, we can at least put rights as reasonable expectations involved in civilized life, which long experience and the reasoned judgment of mankind have established and recognized. But even this is now denied by many. In the so-called realist theory which refers everything in politics and law ultimately to the force exercised by those who wield the authority of politically organized society, there are no rights. Law is simply a body of threats of exercise of governmental force, and the making and enforcing of these threats are relative to the personalities of those who exercise the force. Rights are but an illegitimate inference from the threats. It is not that men have rights and the state makes threats in the form of laws in order to give effect to the rights. The ruling group has interests, and the threats made to secure them give rise to claims miscalled rights. That this exotic theory, recently imported from continental Europe, is not in accord with the American idea of government I do not need to say. That it is the theory on which autocratic and totalitarian governments have proceeded is true enough. But such governments have not been so successful as to justify turning to them for models and basic ideas.
A sixth feature of American government is the supremacy of law—the doctrine that no one is above the law. There is here a far reaching distinction between the Roman polity which is characteristically administrative and the Anglo-American polity which is characteristically judicial. The countries which have taken their legal ideas from the Roman law books of the maturity of Roman law in the eastern Roman empire, think of the supremacy of the state and so of the superior position of the official who exercises the authority of the state. The English-speaking countries, which have taken their legal ideas from the writings of the great common-law lawyers, think of the supremacy of the law, and so of the official and of all those who wield governmental power or authority as on an equality with every one else. What they may do is determined by law and what they do is to be scrutinized, as the acts of every one else are scrutinized, judicially in ordinary proceedings in the ordinary courts on complaint of any one injured thereby. To us law is not what is done officially but the measure of what ought to be done officially and how it ought to be done. Hence what the Roman-law world calls public law, the special rules relating to the superior position of the official, is unknown, or has been unknown until recently, to our law. The rise of administrative agencies, claiming and to some extent enjoying immunity from judicial review of their action, has been introducing the Roman type of public law into our system and there_are teachers of law and of politics who assert that it is "gradually eating.up" the private law which secures the individual rights of the citizen.
There is a certain deceptive quality in the term public law which makes a proposition of this sort attractive to those who do not perceive what it really means. It sounds as if a public law which is a possession of all of us was superseding a private law which was a possession of a privileged few of us. But this is not in the least its meaning. Continental jurists tell us that the distinction corresponds to a contrast between coordinating law, which secures interests by reparation and the like, treating all individuals as equal, and subordinating law which prefers some or the interests of some to others according to its measure of values. In this view, public law subordinates the individual to the official, and on a theory of subordinating the interests of the individual to public interests, leaves it to the official to subordinate the interests of some to those of others by identifying the latter with the public interests according to policies of his own. In the continental theory administrative officials are the final judges of their own powers. Thus the selfstyled realist comes to the conclusion that law is whatever is done officially in place of the Anglo-American doctrine that what is done officially must be done according to law.
All this runs counter to what has been the last but by no means the least marked characteristic of the American idea of government, namely, rooted opposition to the reposing of unlimited power anywhere. An English judge in a recent case where unlimited power was asserted on behalf of admimstrative officials said that he had been listening to arguments which "might have been addressed acceptably to the Court of King's Bench in the reign of Charles I." So far has the time swung back to absolute ideas of government. Let us remember that autocracy and law are incompatible except on the theory that what the autocrat does or his agents do in his name is law simply because they do it.
What is behind the teachings so general in the world of today which have been coming into vogue in America also and are leading to a questioning of all the main features of the American idea of government? Looking at the world as a whole, they are largely a product of the disillusionment so widespread after the first world war and the extreme idealism which it generated for a time. Men had seen elaborate paper constitutions come to naught, ambitious projects of world organizations achieve little, noble experiments fail, and expectations of a new world order remain unrealized. In America the growing bigness of things seemed to make an intelligent, systematic grasp of our political and legal and economic orders impossible. The transition from a rural, agricultural to an urban, industrial society put a heavy strain on our political and legal institutions which they bore with difficulty and for which conventional remedies seemed wholly inadequate. The give-it-up philosophies which disillusionment had fostered in Europe appealed more and more to us also. On the continent cynical acquiescence in a revived absolutism became general. With us, types of so-called realism appeared which led in the same direction.
Philosophically we may see behind the ideas of the moment as to the inevitableness of an absolute democracy, the necessity of centralization and doing away with local self-government, the giving up of the idea of supremacy of law and of fundamental law, the rejection of rights, and the acquiescence in unlimited power in those who exercise the authority of politically organized society, partly the Marxian economic interpretation of history and doctrine of the disappearance of law, partly what calls itself psychological realism, applying the Freudian idea of the wish to politics and law, and partly certain new types of thinking since the first world war, either relativist and largely influenced by Einstein or phenomenalismMarx thought of history as the record of a progressive realizing of an economic idea of the maximum satisfaction of material wants. This interpretation was little noticed till the last decade of the nineteenth century, when it came into vogue on the continent. It spread to the United States in the first decade of the present century. The idea of satisfying material wants as the end and aim of society, rather than one of satisfying a spiritual want to be free, has gradually had a profound effect upon political and legal thought and so upon political and legal institutions throughout the world. In the materialist polity there is no place for the supremacy of law nor for fundamental law. Marx urged that law was a product of class domination and that with the elimination of private property and consequent disappearance of classes law, too, would disappear. For a time Soviet Russia went upon this assumption. Law was to be replaced by administration. It was said that in the ideal society there would be no law, or rather but one rule of law, namely, that there were no laws but only administrative orders. Much of this seems to have been given up under the present regime, but the idea of disappearance of law has been gaining acceptance in many quarters. Along with it has gone a rise of political absolutism in Europe, setting a growing fashion of faith in administrative absolutism everywhere.
Economic realism, as it calls itself, was the first outgrowth of Marx's economic interpretation. It holds that all human behavior proceeds on economic motives; that judges decide, lawmakers make laws, jurists work out theories of rights, and moralists work out theories of justice or of right and wrong solely as expressions of the self interest of the dominant social class. Hence it all gets down to the force which this class is able to exert or to control. Next comes a combination of Marx and Freud in the form of psychological realism. This teaches that as a matter of psychology it is impossible for a human judge to judge objectively. He can only do what his temperament and prejudices, determined by his bringing up and social surroundings, dictate. A decisive element in the judicial process is found in the Freudian wish.
This was soon followed by a combination of Marx and Einstein and Neo-Kantian epistemology. According to Kant's theory of knowledge we cannot and do not know things as they are. We only know mental creations of our own derived from our individual perceptions and experience. As none of us have exactly the same perceptions and experience, we can't have the same knowledge and can't prove anything to each other. Yellowplush said of spelling that every gentleman was entitled to his own. The skeptical relativist says that in political and legal thought every one is entitled to whatever starting point he chooses. So government is really a series of unconnected acts and threats of action and law a series of unconnected enforcings of or failures to enforce the threats. Beyond this all is superstition or pious wish.
Thus we are offered a give-it-up philosophy. We can't prove anything. We can only leave it to those who govern to find their own starting points and develop them in their own way. Talk about good and bad, right and wrong, is mere unscientific subjective epithet thinking and must be given up.
A related mode of thinking has been called phenomenalism. It tells us that there is nothing beyond or behind phenomena. They are all that we have to do with. There is nothing behind them but their own phenomenality. They are all equally significant and insignificant. As one might put it, all phenomena are created free and equal. Hence every item of official action is valid in and of itself as a phenomenon. We don't qualify the phases of the moon as good or bad. Neither should we make unscientific value judgments in the social sciences. The law and the state itself are only the aggregate of official acts.
Such thinking must be very heartening to autocrats and dictators and ambitious heads of administrative agencies, and in a time in which such philosophies are taught in the universities we need not wonder at the spread of absolutism and the cult of force throughout the world.
But are we bound to accept the give-it-up philosophies and abandon the American idea of government which has made America a land to which men come or seek to come eagerly from every land in order to live under law administered by their fellow men on the same plane with them rather than under administrative orders made and executed by supermen agents of a supersuperman? If we cannot effect that phenomena of physical nature by thought, if man by taking thought cannot add a cubit to his physical stature, yet throughout the history of civilization men by taking thought have added many cubits to their moral stature.
Politics and law are practical sciences and can achieve much practically without being logically invulnerable. Einstein has shown us that we live in a curved universe in which there are no straight lines nor planes nor right angles nor perpendiculars. But we do not on that account give up surveying. Things are near enough to the postulates of geometry for the purposes of a practical activity. If our perceptions and experience are not the same so that we can'tconclusively prove anything to each other, yet they are on the whole near enough to the same so that we need not throw political science and the science of law into the waste basket but may continue to have faith in the ideas developed by Anglo-American experience of effective government by law both in the old and in the new world.