Nature and Reason in Law

8/12/2019 Nature and Reason in Law

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Nature and Reason in LawAuthor(s): John DeweySource: International Journal of Ethics, Vol. 25, No. 1 (Oct., 1914), pp. 25-32Published by: The University of Chicago PressStable URL: http://www.jstor.org/stable/2989560.

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NATURE AND REASON IN LAW. 25

NATURE AND REASON IN LAW.JOHN DEWEY.

IN Pollock's Expansion of the Common Law, there isfound the following interesting passage from St. Ger-man, written early in the sixteenth century: It is not usedamong them that be learned in the laws of England, toreason what thing is commanded or prohibited by the Lawof Nature and what not, but all the reasoning in that be-half is under this manner. As when anything is groundedupon the Law of Nature, they say that Reason will thatsuch a thing be done; and if it be prohibited by the Law ofNature they say it is against Reason, or that Reason willnot suffer that to be done. I It is a commonplace to thestudent of the history of law that this identification ofnatural and rational, and the equating of both with themorally right, has been at various times a source of greatimprovements in law. Professor Pound has recently desig-nated the stage in the development of law that follows uponand corrects many of the abuses of the stage of strict lawas that of equity or natural law. He says: The capitalideas of the stage of equity or natural law are the identifi-cation of law with morals; the conception of duty and theattempt to make moral duties into legal duties, and relianceupon reason rather than upon arbitrary rule to keep downcaprice and eliminate the personal element in the adminis-tration of justice. 2 Aside from the introduction of equity,the abolition of technicalities which obstructed rather thanfurthered justice, the adoption by the courts of usages thatwere more reasonable than those perpetuated in older law,the idea of the subordination of government to social ends,and the furtherance of humane international relations area few of the many services rendered by the identification

1 Pollock, The Expansion of the CommonLaw, p. 109.2 27 Harvard Law Review, p. 213.

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26 INTERNATIONAL JOURNAL OF ETHICS.of the natural with the reasonable. Looking back and tak-ing the intellectual temper and equipment of the times intoaccount, it is hard to see what other intellectual instrumen-tality could have done the work effected by the concept ofnatural reason in the seventeenth and eighteenth centuries.In the view of such facts the title given by Pollock to theLaw of Nature, a living embodiment of the collectivereason of civilized mankind, 3 is not so much out of the wayas it seems to the philosopher who has been trained to lookwith suspicion upon any reference to Nature as a norm;and who is conscious of the seemingly individualistic, ifnot anti-social connotation of the term in political philos-ophy. But even in Locke, careful analysis shows that thelimitation of governmental action to the protection ofpre-existent natural rights is much more an assertion ofthe subordination of governmental action to ends that arereasonable, or moral, than appears from a hasty reading.Restricting the action of government by moral considera-tions, that is to say considerations of reason, is what Lockeis chiefly concerned with.

But, unfortunately, nature and reason are ambiguousterms; hence their use as equivalents of what is morallydesirable is subject to diverse interpretations. Naturealso means the existent, the given, the antecedent state ofthings; or the present state of things so far as that is con-nected with the antecedent condition by casual laws. Ap-peal to nature may, therefore, signify the reverse of anappeal to what is desirable in the way of consequences;it may denote an attempt to settle what is desirable amongconsequences by reference to an antecedent and hencefixed and immutable rule.Accordingly, while at one time or with some people, orwith some persons part of the time, natural justice meantthat which commends itself to the best judgment of themost experienced or to the collective common sense of therace, as over against the conventional and technical jus-

3 Op. cit., p. 128.



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NATURE AND REASON IN LAW. 27tice of inherited legal rules; at other times it meant accept-ance of the given state of distribution of advantages anddisadvantages. Such a view of natural justice finds, forexample, a typical representative in Herbert Spencer. Itis, so to speak, purely accidental that such philosophieshave been what we lately call individualistic as againstcollective or socialistic. The essential thing in them is thesubordination of the human, whether several or conjoint,to the given, to the physical. The central feature of thelaissez fare doctrine is that human reason is confined todiscovering what antecedently exists, the pre-existentsystem of advantages and disadvantages, resources andobstacles, and then to conforming action strictly to thegiven scheme. It is the abnegation of human intelligencesave as a bare reporter of things as they are and as a powerconforming to them. It is a kind of epistemological realismin politics. That such a doctrine should work out, nomatter how personally benevolent its holders, in the direc-tion of Beati possidentes, is inevitable.This mode of interpretation affected the idea of Reasonas well as of Nature, not merely because of the historicequating of Reason and Nature in judicial philosophy,but for special reasons. To the century that felt the in-fluence of Newtonian science, Nature was more Reason thanhuman reason itself. Human reason was reason only as afaculty of retracing the wisdom, harmony, the uniform andcomprehensive laws, embodied in Nature-that is, in thephysically given world. The Lockean and Deistic identi-fication of Reason with God, the benevolent ordainer andarranger of things, flavored even the most free-thinkingspeculation of the times. Those who prided themselvesthat they had no fear of God attributed to Nature the sameoptimistic benevolence that had characterized the God ofnatural religion. In order to be really reasonable and moralin action, that is, to act in behalf of good consequences, onehad but to get his own interfering intelligence out of theway, and permit Nature, true Reason, to execute her ownharmonious and benevolent designs. With respect to



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28 INTERNATIONAL JOURNAL OF ETHICS.Reason as to Nature, the emphasis upon individualism wasextraneous and secondary; the intrinsic and primary thingwas the denial of a characteristic, a unique function, tohuman intelligence. Nature, not human thought, deter-mined the formation of true purposes.If I trace an analogous movement in the decisions of thecourts relative to due diligence and undue negligence, it isnot for the sake of demonstrating the influence of this typeof philosophy upon the minds of judges; that would besomewhat absurd. But there is demonstrable, in myopinion, a parity of logic; and in addition there was prob-ably some indirect influence in so far as this mode of thoughtwas in the air. Reason is appealed to as a standard ofaction. A man's liability depends upon whether he usesthe proper degree of reasonable care and prudence. Butwhat measures this? Obviously ordinary prudence is avague and relative matter-relative in the sense of varyingwith the circumstances of the situations, as the courts havepointed out. But this very vagueness and variability makethe more necessary some principle for detecting the mean-ing of reasonable in special cases. It is obvious at a glancethat the reference to what reasonable and prudent men door would do in similar cases, has exactly the ambiguity wehave been dealing with. It may mean reasonable in thesense of involving the kind of foresight that would, in similarsituations, conduce to desirable consequences; or it maymean the amount and kind of foresight that, as a matterof fact, are customary among men in like pursuits, eventhough it be demonstrable that, upon the whole, the cus-toms involve deplorable consequences.

That this ambiguity is not merely a theoretical possibilityis evidenced by the course of court decisions in the matterof the due diligence of employers in the last half century.While, in some cases, the courts have taken the positionwhich identifies reason with foresight of specific conse-quences, the general tendency for a long time was to identifyreasonable prudence with the ruling customs of the trade,no matter how unreasonable those customs themselves



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NATURE AND REASON IN LAW. 29were when looked at from the standpoint of the sort ofconsequences they tend to produce. For a long time theSupreme Court was almost alone in saying: Ordinarycare on the part of a railway company implies, as betweenit and its employees, not simply that degree of diligencewhich is customaryamong those intrusted with the manage-ment of railroad property, but such as having respect tothe exigencies of the particular service, oughtreasonably tobe observed . . . such watchfulness, caution, andforesight as, under all the circumstances of the particularservice, a corporation controlled by careful, prudent menought to exercise. . . . The court cannot give theirassent to the doctrine that ordinary care in such cases meansonly the degree of diligence which is customary, or is sanc-tioned by the general practice and usage which obtains. 4Such a quotation, on the contrary side, as the following,from a federal court, shows well the different interpre-tations of reasonable care put upon the obligations of thecorporation to the general public it served and to those forwhose services it paid: As respects travel on steam rail-ways many of the courts of this country hold the carrierbound to keep pace with new inventions in the directionof safety. But this rule is an exceptional one, establishedupon grounds of public policy, and for the safety of humanlife. It has never been applied to the relation of masterand servant. 5

When we consider the implications of the contract fromthe side of the employee, as these have been developedthrough court decisions with respect to the assumption ofrisks, we find yet another aspect of the same matter. NoKantian philosopher ever went further in ascribing a ready-made antecedent faculty of reason to man than the courts,in endowing the laborers of this country with unboundedforesight of the consequences implied in taking a job; andno transcendentalist ever went further in assuming that this

4WabashRy. Co.v. McDaniels, 107 U. S. 454.; italics are mine.140 Fed. 784



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30 INTERNATIONAL JOURNAL OF ETHICS.antecedently possessed reason was in a position to makeitself effective in action. As far as the workmen wereconcerned the courts were committed to the idealisticassumption: Mens agitat molem. In its application, thismeant, that risks which the laborer ran as matter of factin the performance of his habitual duties were assumed tohave been deliberately or intentionally undertaken by him.The whole doctrine of the assumption of risk was, in prag-matic effect, a rendering of brute physical situations interms of purpose or reason.In short, in substance although not in form, the reason-able or natural was identified with the antecedentlygiven, with the state of affairs that customarily obtained,not with the exercise of intelligence to correct defects andto bring about better consequences. From the side of theemployer, it meant Beati possidentes, To him that hathshall be given; from the side of the employee, Vwevictis,From him that hath not shall be taken away even thatwhich he seemeth to have.It would not be difficult to trace the same logic in thedenial of the principle of liability without fault. Undercertain conditions, the doctrine is doubtless reasonable, inthe sense in which reasonable means due foresight of con-sequences. Under other conditions, where industrial pur-suits bring about different consequences, the doctrinethat in pure accident of misadventure it is reasonable forthe loss to lie where it falls, is, when laid down as a dogma,the deliberate identification of the reasonable with thephysically existent, and wilful refusal to use intelligencein such a way as to ameliorate the impact of disadvantages.

Fortunately, many of the specific things dealt with inthis paper are now by way of becoming historic reminis-cences. But for this very reason they may the better illus-trate the main thesis of this paper. The principle of nat-ural law and justice in the sense that technical and officiallegal rules need to be adapted to secure desirable resultsin practice, may well be accepted. But we also find thatone of the chief offices of the idea of nature in political and



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NATURE AND REASON IN LAW. 31judicial practice has been to consecrate the existent stateof affairs, whatever its distribution of advantages and dis-advantages, of benefits and losses; and to idealize, ration-alize, moralize, the physically given-for customs from aphilosophical point of view are part of the physical stateof affairs. By reading between the lines, moreover, wefind that the chief working difference between moral phi-losophies in their application to law is that some of themseek for an antecedent principle by which to decide; whileothers recommend the consideration of the specific conse-quences that flow from treating a specific situation this wayor that, using the antecedent material and rules as guidesof intellectual analysis but not as norms of decision.My point is practically made. But, in concluding, Iwill say that I see nothing new in principle in the recentattempt to rehabilitate the principle of natural rights byconnecting it with the nature of consciousness. The prob-lem is the same whether we use the older word reasonor the newer word consciousness. Is consciousnesstaken as a possessed fact, something given in some men,and relatively lacking in others? Then we have still aphysical morals-a worship of consciousness or intelligencein name; a denial, an abdication of it in fact, since whatalready exists is taken as the norm of action, in spite of thefact that intelligence is concerned with what the given maylead to. But if by consciousness we mean interest indesirable consequences and if we include in its attributionto a person the perception that similar intelligence is de-sirable in others (a man being stupid or unconscious sofar as he does not effectively recognize this fact), thenwe have a situation where reference to individualism is ir-relevant and misleading, I and where the significant thing

6Individualism. Warner Fite. Longmans. 1912.7 What wouldone think of a physiologistwho today in describing he diges-tion of food lugged in the individual, or the fact that all circulation isindividual as an enlightening and explanatory fact? To dwell upon aconceptionof consciousness hat identifiesit with impartialand comprehensiveforesight,and then to insist that consciousnessis individual in a way that

qualifies or denies the natural implicationsof the prior conceptions,seems toVol. XXV.-No. 1. 3



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32 INTERNATIONAL JOURNAL OF ETHICS.is the need of the exercise of intelligence to bring aboutconditions that will develop more intelligence-a versionof natural law to which I heartily subscribe.I would suggest that the question of the moral right ofthe employer to exploit (as by means of the doctrine of theassumption of risk) the inferior intelligence of the employeeaffords an admirable opportunity for removing the ambi-guity that still, to my own mind, affects the doctrine ofnatural rights as developed in chapter four of Fite's In-dividualism. The author seems, especially in his criti-cism of other views, to be falling back upon intelligence as aphysical fact, that is, as a given thing. But when he is asanxious to show that his theory is generous as anotherschool is to show that its views are social, he appears toshift to the view that identifies intelligence with effectiveforesight of impartially and comprehensively distributedconsequences. If he means the latter, the difference be-tween it and what other people call a social view of intelli-gence is verbal; if he means the former, the difference is,pragmatically, fundamental and insurmountable. And,I repeat, while we hear much about intelligence, the effectof any theory that identifies intelligence with the given,instead of with the foresight of better and worse, is denialof the function of intelligence. JOHN DEWEY.

COLUMBIA UNIVERSITY.

be on a par with the procedureof the physiologist,who, after telling us thatcirculation s a matter of specific fact, thinks to add or change somethingbyhitching the facts on to an individual. Either ProfessorFite's individualis the intelligenceover again, or it is something assumedready-made,neveranalyzedor described,and yet usedto negatethe essentialtraits of intelligence.

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Nature and Reason in Law