ENFORCEMENT OF LAW

401

ENFORCEMENT OF LAW BY ROSCOE POUND F, as many assert, law is the body of rules enforced by public or regular tribunals in the administration of justice,2 recent experience has made it manifest that much which goes by the name of law should be required to furnish an abstract of title. A leader of the American bar, indeed, did not hesitate to say that but a small fraction of our huge annual legislative output is law in a real sense.8 And, upon this basis, a great deal that goes by the name of common law has no better claim, as verdicts in causes involving the doctrines as to master and servant bear daily witness. But it is a serious condition if legislatures are sitting at no small expense to no purpose and volumes of reports are pouring forth filled with mere academic discussions of principles that do not obtain in action. Legislatures and courts formulate or seek to formulate the will of all of us as to the conduct of each of us in our relations with each other and with all. That will ought to be wholly effective. That it fails of effect in any degree is a misfortune. That it fails in any great degree is a menace. Hence the ques-' tion of enforcement of law, which many recent occurrences have brought home to us as a living question, concerns the lawyer in his civic quite as much as in his professional capacity. No useful purpose would be subserved on this occasion by encomia upon the law, by exhortations to obedience of it, or by decla mation against those who violate or fail to enforce it. Rather let us ask the meaning ' of the current attitude toward the law, let 1 Address before the Illinois State Bar Association, at Chicago, June 25, 1008. 2 See Holland, Jurisprudence, Chap. 3, Salmond, Jurisprudence, § 5, Pollock c^ Maitland, History of English Law(ist ed.), Introduction, Gray, Definitions and Questions in Jurisprudence, 6 Harv. Law Rev. 24.

• Carter, Law. Its Origin, Growth and Function, 3.

us seek the causes of it, let us ask how these causes may be obviated or mitigated. In the first place, we must observe that complaints of non-enforcement of law are perennial. Indeed, discussion of the subject as a scientific problem is at least as old as Aristotle.1 Many of the causes of this complaint are inherent in the administration of justice, and appear in all systems at all times.2 Some causes also affect the public attitude toward enforcement of law and are in the domain of the politician rather than that of the lawyer. The American citizen, feeling himself a partaker in sovereignty— in some sort a king — may possibly conceive that he wields a royal dispensing power, by virtue whereof he may override the law in particular instances in his own discretion. Undoubtedly the prevalence of eighteenthcentury theories of natural law in our legal and political education leads men to think of the individual conscience and the indi vidual reason as the ultimate arbiters in the matter of obedience to law. We may pass over this phase of the subject. For I believe that the real and serious disrespect for law which undoubtedly exists is due chiefly to causes directly affecting the administration of law by the courts themselves, and that, resulting from, these causes, it is a normal phenomenon in legal history. It argues no degeneracy in the body politic. It proves no decadence of the law itself. It is a normal phenomenon of a period of transition in which the standard of justice is shifting, the growing-point of our • legal system is shifting, and the relative importance of individual and society is shifting. The shifting of the standard of justice leads to temporary disagreement between the law 1 Politics, Bk. VII (VI), Chap. 8. 2 See my "Causes of Popular Dissatisfaction with the Administration of Justice," Rep. Am. Bar Assn. xxix, 395-