to commercial transactions, the rules which maintain the security of acquisitions and security of transactions in a society of complex economic organization, may be and should be of general and absolute application. But such rules are not the whole of the law nor may they be taken for the type of all legal precepts as the analytical jurist sought to do. Precepts for human conduct, precepts determining for what conduct one shall respond in civil proceedings and how he shall respond, may admit of a wide margin of individualized application. Indeed, in this connection, the law often employs standards rather than rules. In case of negligence the law applies the standard of the conduct of a reasonable, prudent man under the circumstances and puts it to a jury, largely in effect as a moral proposition, to decide (within limits) on their individual notions of what is fair and reasonable in the particular case. So in Roman law, where a standard of what a prudent husbandman would do is applied to a usufructuary, or the standard of a prudent and diligent head of a household is applied to the parties to a transaction of good faith. The opposition between law and morals with respect to application is significant only in the law of property and in commercial law, subjects which were to the fore in the nineteenth century, and tends to disappear in the law as to civil liability for action injurious to others, the subject in which growth is going on today.
It is equally a mistake to separate wholly law and morals, as the analytical jurists sought to do, and wholly to identify them, as the natural-law jurists sought to do. For granting all that has been said as to the analytical distinction between law and morals with respect to subject matter and application, there remain three points at which ethical theory can be of but little help to the jurist and with respect to which important areas in the law will have at least a non-moral character. In the first place, in order to maintain the social interest in the general security, to prevent conflict, and to maintain a legal order in place of private war, the law must deal with many things which are morally indifferent. In many cases in the law of property and in the law of commercial transactions the law might require either of two alternative courses of action or patterns of decision with equal justice, but must choose one and prescribe it in order to insure certainty and uniformity. In such cases developed legal systems often exhibit the greatest diversity of detail. Usually the only moral element here is the moral obligation attaching to the legal precept merely as such because of the social interest in the security of social institutions, among which law is fundamental. Aristotle saw this in drawing his distinction between that which is just by nature or just in its idea and that which derives its sole title to be just from convention or enactment.91
Again, the law does not approve many things which it does not expressly condemn. Many injuries are out of its reach. They are not susceptible of proof or they are inflicted by means too subtle or too intangible for the legal machinery of rule and sanction. Many interests must be left unsecured in whole or in part because they require too fine lines in their delimitation, or they are infringed by acts too intangible to admit of securing them by legal means. Such things as the long hesitation of American courts to deal adequately with nervous illness caused by negligence without any bodily impact, using language of the past which was belied at every point by modern physiology and psychology,92 or the reluctance of some courts to give adequate legal security to personality, especially to the individual claim to privacy,93 demonstrate the practical importance of insisting that our science of law shall not ignore morals. So long as for good reasons we cannot deal with such things legally, we must fall short of the moral order. But we must not allow an analytical distinction between law and morals to blind us to the need of legal treatment of such cases whenever the onward march of human knowledge puts it in our power to deal with them effectively.
Thirdly, law has to deal with incidence of loss where both parties are morally blameless.94 In such cases it may allow the loss to remain where it falls or it may seek to secure some social interest by changing the incidence of the loss. A large part of the legal difficulty arises from the very circumstance that the parties may be equally blameless.95 This is notable in what was at one time called “the insurance theory of liability,” a theory I shall consider at length in a later lecture. Here it is enough to say that it presupposes that we all of us should bear the losses incident to life in civilized society instead of leaving many, at least, to be borne by the one who happens to be injured. There has been a growing tendency in this direction. Juristically these liabilities thus far have been incident to some relation. Also the reasons for legislative imposings of them have been primarily economic. Very likely the juristic and economic considerations may be given an ethical formulation. Nevertheless one may suspect that in this case ethics has followed jurisprudence and that ethical theory does not help us here beyond recognizing the moral quality of obedience to the legal rule. Thus respondeat superior is not a universal moral rule.96 Shifting the burden to the employer under the Workmen’s Compensation Acts, no matter how careful and diligent he may have been and how free from fault, proceeds on the basis of the social interest in the general security, which is maintained best by holding those who conduct enterprises in which others are employed to an absolute liability for what their servants do in the course of the enterprise. Such, at any rate, was the reason formerly given. But with the coming of collective bargaining, closed shops, and employee control of conditions, this reason is ceasing to obtain. Evidently the basis of liability may have to be found in the so-called insurance theory. The law is to pass the burden back to all of us by imposing liability upon some one who is in a position to bear it in the first instance and impose it ultimately upon the public in the form of charges for services rendered. But this proposition will be considered in a later lecture.
Such cases require definite rules in order to prevent arbitrary action by the magistrate. They differ from cases, such as negligence, where the moral quality of acts is to be judged with reference to a legally fixed standard applied to the circumstances. In the latter, within wide limits each trier of fact may have his own ideas. In the former, this could not be tolerated. The most we may ask in the former is that our measure for maintaining the general security be not ethically objectionable. Whenever we make a rule for a case of the former type, we are not unlikely to provide a legal which is not a moral rule.
A closely related situation which has given much difficulty arises where both parties to a controversy have been at fault and the law must fix the incidence of loss in view of the culpability of each. It might be allowed to rest where it falls (contributory negligence)97 or the whole might be cast on the one more culpable (comparative negligence)98 or the one last culpable (last clear chance)99 or the loss may be divided100 or apportioned101 (as in the civil law and in admiralty) or recovery may be abated in view of the negligence of the complaining party,102 or, without regard to contributory negligence of the injured person the whole burden may be put upon an enterprise conducted for public advantage which is in a position to pass the loss on to the public at large.103 If we had any machinery for accurate quantitative or qualitative measurement of culpability in such cases the rule of the civil law would be required on ethical grounds. It is because all apportionment in such cases is theoretical, and at best arbitrary, that the law is troubled what to do.104 The fact that seven doctrines have obtained on this subject speaks for itself.105
In addition there is a characteristic of law that makes for a certain opposition or at least contrast between the legal and the moral. The very conception of law, whether as legal order or as a body of laws or as the judicial process, involves ideas of uniformity, regularity, and predictability. In other words, it involves rule, using that word in the wide sense. Administration of justice according to law is administration of justice in accordance with legal precepts and largely by rules in the strict sense. But even the most flexible of mechanisms will operate more or less mechanically, and it is not easy to make legal machinery flexible and at the same time adequate to the general security. The requirements of particular cases must yield more or less to the requirements of generality and certainty in legal precepts and of uniformity and equality in their application. Hence even though in general the law tends to bring about results accordant with the moral sense of the community, the necessarily mechanical application of legal rules will in particular cases produce situations where the legal result and the result demanded by the moral sense of the community are out of accord. When such things happen it is often because some particular legal precept has survived the social or economic conditions to which it was