[58]. The old idea of “contributory negligence” is seen in the following decision: “We must remember that the injury complained of is due to the negligence of a fellow workman, for which the master is responsible neither in law nor morals.” Durkin v. Coal Co. 171, Pa. St. 193, 205. Quoted by Roscoe Pound in Yale Law Journal, 18, 467.
[59]. This is the “new natural law” of which Mr. Pound speaks as “the revival of the idealist interpretation which is the enduring possession of philosophical jurisprudence.” Formerly, we are told, “equity imposed moral limitations. The law to-day is beginning to impose social limitations.” Harv. Law Rev. 27, 227.
[60]. “The Constitutional Opinions of Justice Holmes,” by Felix Frankfurter, Harv. Law Rev. 29, 683–702.
[61]. Quoted by Roscoe Pound in Harv. Law Rev. 25, 505.
[62]. It has been proposed that we should have trained business men on the benches of our supreme courts as well as lawyers. I should think it would be better for our lawyers to be so conversant with social facts that this need not be necessary.
[63]. See [ch. XXIX] for the theory of “objective rights” now held by many as the basis of the new state.
[64]. This is a hoary quarrel. From the beginning of our government it was seen that the equal rights doctrine was a sword which could cut both ways. Both Federalists and Republicans believed in equal rights: the Federalists, therefore, wanted to protect individuals with a strong government; the Republicans wanted a weak government so that individuals could be let alone in the exercise of their equal rights.
[65]. This view of democracy was well satirized by some one, I think Lord Morley, who said, “I do not care who does the voting as long as I do the counting.”
[66]. Proportional representation is interesting to the view put forward in this book because it is a method to bring out all the differences.
[67]. Arcos, Romains and Vildrac are the chief of these. Romains, who has written “La Vie Unanime,” is the most interesting for our present purpose, for his togetherness is so plainly that of the herd: