If I make an appointment with a dentist or doctor, the transaction is primarily between us. It is my health which is affected and his pocket-book, skill and reputation. But exercise of the professions has consequences so widespread that the examination and licensing of persons who practice them becomes a public matter. John Smith buys or sells real estate. The transaction is effected by himself and some other person. Land, however, is of prime importance to society, and the private transaction is hedged about with legal regulations; evidence of transfer and ownership has to be recorded with a public official in forms publicly prescribed. The choice of a mate and the act of sexual union are intimately personal. But the act is the condition of bearing of offspring who are the means of the perpetuation of the community. The public interest is manifested in formalities which are necessary to make a union legal and for its legal termination. Consequences, in a word, affect large numbers beyond those immediately concerned in the transaction. It is often thought that in a socialistic state the formation and dissolution of marriages would cease to have a public phase. It is possible. But it is also possible that such a state would be even more alive than is the community at present to the consequences of the union of man and woman not only upon children but upon its own well-being and stability. In that case certain regulations would be relaxed, but there might be imposed stringent rules as to health, economic capacity and psychologic compatibility as preconditions of wedlock.
No one can take into account all the consequences of the acts he performs. It is a matter of necessity for him, as a rule, to limit his attention and foresight to matters which, as we say, are distinctively his own business. Any one who looked too far abroad with regard to the outcome of what he is proposing to do would, if there were no general rules in existence, soon be lost in a hopelessly complicated muddle of considerations. The man of most generous outlook has to draw the line somewhere, and he is forced to draw it in whatever concerns those closely associated with himself. In the absence of some objective regulation, effects upon them are all he can be sure of in any reasonable degree. Much of what is called selfishness is but the outcome of limitation of observation and imagination. Hence when consequences concern a large number, a number so mediately involved that a person cannot readily prefigure how they are to be affected, that number is constituted a public which intervenes. It is not merely that the combined observations of a number cover more ground than those of a single person. It is rather that the public itself, being unable to forecast and estimate all consequences, establishes certain dikes and channels so that actions are confined within prescribed limits, and insofar have moderately predictable consequences.
The regulations and laws of the state are therefore misconceived when they are viewed as commands. The “command” theory of common and statute law is in reality a dialectical consequence of the theories, previously criticized, which define the state in terms of an antecedent causation, specifically of that theory which takes “will” to be the causal force which generates the state. If a will is the origin of the state, then state-action expresses itself in injunctions and prohibitions imposed by its will upon the wills of subjects. Sooner or later, however, the question arises as to the justification of the will which issues commands. Why should the will of the rulers have more authority than that of others? Why should the latter submit? The logical conclusion is that the ground of obedience lies ultimately in superior force. But this conclusion is an obvious invitation to trial of forces to see where superior force lies. In fact the idea of authority is abolished, and that of force substituted. The next dialectical conclusion is that the will in question is something over and above any private will or any collection of such wills: is some overruling “general will.” This conclusion was drawn by Rousseau, and under the influence of German metaphysics was erected into a dogma of a mystic and transcendent absolute will, which in turn was not another name for force only because it was identified with absolute reason. The alternative to one or other of these conclusions is surrender of the causal authorship theory and the adoption of that of widely distributed consequences, which, when they are perceived, create a common interest and the need of special agencies to care for it.
Rules of law are in fact the institution of conditions under which persons make their arrangements with one another. They are structures which canalize action; they are active forces only as are banks which confine the flow of a stream, and are commands only in the sense in which the banks command the current. If individuals had no stated conditions under which they come to agreement with one another, any agreement would either terminate in a twilight zone of vagueness or would have to cover such an enormous amount of detail as to be unwieldy and unworkable. Each agreement, moreover, might vary so from every other that nothing could be inferred from one arrangement as to the probable consequences of any other. Legal rules state certain conditions which when met make an agreement a contract. The terms of the agreement are thereby canalized within manageable limits, and it is possible to generalize and predict from one to another. Only the exigencies of a theory lead one to hold that there is a command that an agreement be made in such and such a form.[2] What happens is that certain conditions are set such that if a person conform to them, he can count on certain consequences, while if he fails to do so he cannot forecast consequences. He takes a chance and runs the risk of having the whole transaction invalidated to his loss. There is no reason to interpret even the “prohibitions” of criminal law in any other way. Conditions are stated in reference to consequences which may be incurred if they are infringed or transgressed. We can similarly state the undesirable results which will happen if a stream breaks through its banks; if the stream were capable of foreseeing these consequences and directing its behavior by the foresight, we might metaphorically construe the banks as issuing a prohibition.
This account explains both the large arbitrary and contingent element in laws and their plausible identification with reason, dissimilar as are the two considerations. There are many transactions in which the thing of chief importance is that consequences be determinate in some fashion rather than that they be determined by some inherent principle to be just such and such. In other words, within limits it is indifferent what results are fixed by the conditions settled upon; what is important is that the consequences be certain enough to be predictable. The rule of the road is typical of a large number of rules. So is the fixing of sunset or of a specified hour as the exact time when the felonious entering of the premises of another takes on a more serious quality. On the other hand, rules of law are reasonable so that “reason” is appealed to by some as their fount and origin on the ground pointed out by Hume.[3] Men are naturally shortsighted, and the shortsightedness is increased and perverted by the influence of appetite and passion. “The law” formulates remote and long-run consequences. It then operates as a condensed available check on the naturally overweening influence of immediate desire and interest over decision. It is a means of doing for a person what otherwise only his own foresight, if thoroughly reasonable, could do. For a rule of law, although it may be laid down because of a special act as its occasion, is formulated in view of an indefinite variety of other possible acts. It is necessarily a generalization; for it is generic as to the predictable consequences of a class of facts. If the incidents of a particular occasion exercise undue influence upon the content of a rule of law, it will soon be overruled, either explicitly or by neglect. Upon this theory, the law as “embodied reason” means a formulated generalization of means and procedures in behavior which are adapted to secure what is wanted. Reason expresses a function, not a causal origin. Law is reasonable as a man is sensible who selects and arranges conditions adapted to produce the ends he regards as desirable. A recent writer, who regards “reason” as that which generates laws, says, “A debt does not in reason cease to be a debt because time has passed, but the law sets up a limitation. A trespass does not cease in reason to be a trespass because it is indefinitely repeated, yet the law shows a tendency to admit an unresisted trespass in time to the status of right. Time, distance and chance are indifferent to pure reason; but they play their part in the legal order.”[4] But if reasonableness is a matter of adaptation of means to consequences, time and distance are things to be given great weight; for they effect both consequences and the ability to foresee them and to act upon them. Indeed, we might select statutes of limitation as excellent examples of the kind of rationality the law contains. Only if reason is looked upon as “pure,” that is as a matter of formal logic, do the instances cited manifest limitation of reason.
A third mark of the public organized as a state, a mark which also provides a test of our hypothesis, is that it is concerned with modes of behavior which are old and hence well established, engrained. Invention is a peculiarly personal act, even when a number of persons combine to make something new. A novel idea is the kind of thing that has to occur to somebody in the singular sense. A new project is something to be undertaken and set agoing by private initiative. The newer an idea or plan, the more it deviates from what is already recognized and established in practice. By the nature of the case an innovation is a departure from the customary. Hence the resistance it is likely to encounter. We, to be sure, live in an era of discoveries and inventions. Speaking generically, innovation itself has become a custom. Imagination is wonted to it; it is expected. When novelties take the form of mechanical appliances, we incline to welcome them. But this is far from always having been the case. The rule has been to look with suspicion and greet with hostility the appearance of anything new, even a tool or utensil. For an innovation is a departure, and one which brings in its train some incalculable disturbance of the behavior to which we have grown used and which seems “natural.” As a recent writer has clearly shown, inventions have made their way insidiously; and because of some immediate convenience. If their effects, their long-run consequences, in altering habits of behavior had been foreseen, it is safe to say that most of them would have been destroyed as wicked, just as many of them were retarded in adoption because they were felt to be sacrilegious.[5] In any case, we cannot think of their invention being the work of the state.[6]
The organized community is still hesitant with reference to new ideas of a non-technical and non-technological nature. They are felt to be disturbing to social behavior; and rightly so, as far as old and established behavior is concerned. Most persons object to having their habits unsettled, their habits of belief no less than habits of overt action. A new idea is an unsettling of received beliefs; otherwise, it would not be a new idea. This is only to say that the production of new ideas is peculiarly a private performance. About the most we can ask of the state, judging from states which have so far existed, is that it put up with their production by private individuals without undue meddling. A state which will organize to manufacture and disseminate new ideas and new ways of thinking may come into existence some time, but such a state is a matter of faith, not sight. When it comes it will arrive because the beneficial consequences of new ideas have become an article of common faith and repute. It may, indeed, be said that even now the state provides those conditions of security which are necessary if private persons are to engage effectually in discovery and invention. But this service is a by-product; it is foreign to the grounds on which the conditions in question are maintained by the public. And it must be offset by noting the extent to which the state of affairs upon which the public heart is most set is unfavorable to thinking in other than technical lines. In any case, it is absurd to expect the public, because it is called in no matter how eulogistic a sense the state, to rise above the intellectual level of its average constituents.
When, however, a mode of behavior has become old and familiar, and when an instrumentality has come into use as a matter of course, provided it is a prerequisite of other customary pursuits, it tends to come within the scope of the state. An individual may make his own track in a forest; but highways are usually public concerns. Without roads which one is free to use at will, men might almost as well be castaways on a desert island. Means of transit and communication affect not only those who utilize them but all who are dependent in any way upon what is transported, whether as producers or consumers. The increase of easy and rapid intercommunication means that production takes place more and more for distant markets and it puts a premium upon mass-production. Thus it becomes a disputed question whether railroads as well as highways should not be administered by public officials, and in any case some measure of official regulation is instituted, as they become settled bases of social life.
The tendency to put what is old and established in uniform lines under the regulation of the state has psychological support. Habits economize intellectual as well as muscular energy. They relieve the mind from thought of means, thus freeing thought to deal with new conditions and purposes. Moreover, interference with a well-established habit is followed by uneasiness and antipathy. The efficiency of liberation from attention to whatever is regularly recurrent is reënforced by an emotional tendency to get rid of bother. Hence there is a general disposition to turn over activities which have become highly standardized and uniform to representatives of the public. It is possible that the time will come when not only railways will have become routine in their operation and management, but also existing modes of machine production, so that business men instead of opposing public ownership will clamor for it in order that they may devote their energies to affairs which involve more novelty, variation and opportunities for risk and gain. They might conceivably, even under a régime of continued private property in general, no more wish to be bothered with routinized operations than they would want to take over the care of public streets. Even now the question of the public’s taking charge of the machinery of the manufacture of goods is less a matter of wholesale “individualism” versus “socialism” than it is of the ratio of the experimental and novel in their management to the habitual and matter-of-course; of that which is taken for granted as a condition of other things to that which is significant in its own operation.
A fourth mark of the public is indicated by the idea that children and other dependents (such as the insane, the permanently helpless) are peculiarly its wards. When the parties involved in any transaction are unequal in status, the relationship is likely to be one-sided, and the interests of one party to suffer. If the consequences appear serious, especially if they seem to be irretrievable, the public brings to bear a weight that will equalize conditions. Legislatures are more ready to regulate the hours of labor of children than of adults, of women than of men. In general, labor legislation is justified against the charge that it violates liberty of contract on the ground that the economic resources of the parties to the arrangement are so disparate that the conditions of a genuine contract are absent; action by the state is introduced to form a level on which bargaining takes place. Labor unions often object, however, to such “paternalistic” legislation on the ground that voluntary combinations to ensure collective bargaining is better for those concerned than action taken without the active participation of laborers. The general objection that paternalism tends to keep those affected by it permanently in the status of children, without an impetus to help themselves, rests on the same basis. The difference here is nevertheless not as to the principle that inequality of status may call for public intervention, but as to the best means of securing and maintaining equality.