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and generally speaking, every succeeding phase of a legal
system is superior to the preceding phase. This applies
to all domains of the law — private, public and inter-

But legal progress does not run parallel with social
and economic advance. As a rule the law lags somewhat
behind existing conditions. New factors in our industrial
life from time to time create new social conditions, and
produce new conceptions of social rights and obligations.
These remain abstract and debatable theories until such
time as they have been incorporated in the statute books,
and a penalty has been attached to their violation. Then,


and then only, they are transferred from the domain of
ethics to that of law.

But the recognition of these rights, as a rule, does not
occur automatically. Moral rights do not ripen into laws
by a process of natural growth, nor are acquired laws self-
executing. Reforms in law and legal redress are conquered
in struggle, and, in most cases, in hard, obstinate struggle.
The effort to effect equitable legal reform or secure such
redress, the "struggle for law," as Dr. von Ihering terms
it, assumes different forms in the different provinces of
the law. In the domain of private law such efforts find
daily application in litigation; in the domain of public
law, these efforts are expressed in politics, and their realiza-
tion is sometimes effected by revolutions; in international
law the struggle is expressed in the diplomatic dealings of
the nations, and sometimes culminates in war. " All social
classes," says the eminent Italian jurist Alfredo Tortori,
" are impelled to make such laws, to establish such insti-
tutions and to sanction such customs and beliefs as accord
with their direct or indirect interests. Hence the perpet-
ual movement which drives men and groups to change ex-
isting laws and to adapt them to new social interests." ^

And this struggle for right and law is the key to all social
progress. The man who suffers personal wrong without
protest or opposition, the "peaceful" member of the com-
munity, is a demoralizing factor in our social fabric; the
class that does not struggle for civic and industrial rights
will eventually lapse into slavery; and the nation that
passively countenances encroachments upon its rights
and territory is doomed to dismemberment and national

* "Socialisme et droit prive," in Le Devenir Social, 1896, p. 251.


It is the man who defends his rights, the class that
battles for pohtical and industrial advancement, and the
nation that holds its own against the entire world; it is
the "litigious" person, the "revolutionary" class and the
'' vigilant " nation that keep the world from stagnation
and force it onward on the path of progress.

Conservatism and meekness and the pietistic veneration
for the laws and customs of our forefathers, are not civic
virtues, but vicious manifestations of mental indolence and
political reaction. The progress of mankind lies in the
future, not in the past.

Let us test the truth of these general observations by a
comparison of three systems of law corresponding to three
phases of human civilization ; the feudal system, immedi-
ately preceding our own, the modern or capitalistic system
and the proposed system of socialism.

The Feudal System of Law

The system of feudalism was evolved in the period of
turbulence into which Europe was thrown by the migra-
tion of nations, and represented the first attempt to reduce
the general social chaos and confusion of that period to
some social order.

The system was based on landownership and agriculture,
both of which were rendered highly precarious by inces-
sant wars and pillage, and naturally produced all the
complex features of the social, political and legal organiza-
tion of feudal society.

The tiller of the soil in the early stages of feudal civiliza-
tion was in constant danger of having his fields devastated
and crops destroyed by the incursion of hostile hordes of
marauders, and the protection from this ever present


danger was a necessary part of his agricultural pursuits.
The man with the sword was as indispensable to the culti-
vation of the land as the man with the plow, and the first
division of labor in feudal society is formed on these lines.
The warrior is a public functionary in the early feudal
community ; he protects the tillers of the soil from molesta-
tion in the pursuit of their daily occupations, and in return
he receives from them his necessary means of subsistence
in the shape of a portion of their crops. The warrior
lives among the other members of the community; he is
part of them, but his dwelling house is the largest in the
settlement, and is fortified, so as to offer a refuge to the
villagers and their property and cattle in case of attack.

In the further progress of feudal civilization the social
relations become more permanent and fixed. The division
of social functions develops into class differences. The
warrior through long years of use and a process of heredi-
tary transmission of social functions arrogates to himself
the power over his fellow-men which the monopoly of arms
places in his hands: the settlement becomes the feudal
Manor, and the fortified manor house, the Castle; the
warrior turns into the Noble, the worker into the Villein,
and the voluntary compensation for military services grows
into a fixed annual tribute — the Tithe and compulsory
military service.

Land was now the principal wealth and source of power
in feudal society, and pillage and robbery the accepted
means of its acquisition. War became the industrial
pursuit of the noble.

Conquering a strange community, the victorious leader
frequently reduced its inhabitants to the state of serfdom,
appropriated their land, and endowed his retainers with


portions of it. But just as frequently the noble " protector"
would rob his own subjects of large parcels of the commu-
nal land. The class of the nobles thus became a land-
owning class, and brute force was the origin of its title.

The greed for land and the necessity of defending their
possessions engendered an ever increasing strife among the
nobles and led to military offensive and defensive alliances
between them which made up the graduated and complex
political structure of mediseval society.

At this stage of development, which we may consider
the period of bloom of feudal civilization, the social rela-
tions, notwithstanding their rough appearances, are still
not altogether based on force. The social order, strange
as it may seem, still rests very largely on the principle of
mutual service between the classes.

"The feudal lord," says Lafargue, "only holds his land
and possesses a claim on the labor and harvests of his
tenants and vassals on condition of doing suit and service
to his superiors and lending aid to his dependants. On
accepting the oath of fealty and homage the lord engaged
to protect his vassal against all and sundry by all the means
at his command; in return for which support the vassal
was bound to render military and personal service and
make certain payments to his lord. The latter in his turn,
for the sake of protection, commended himself to a more
puissant feudal lord, who himself stood in the relation of
vassalage to a suzerain, to the king or emperor.

All the members of the feudal hierarchy, from the serf
upwards to the king or emperor, were bound by the ties of
reciprocal duties." ^

' Paul Lafargue, "The Evolution of Property," English Translation,
London, 1894, p. 79.


Under the existing conditions of the times the class of
nobility was, therefore, on the whole a socially useful

But in the succeeding centuries, the onward march of
civilization gradually but radically changed the social
conditions of Europe. The logical trend of feudal de-
velopment led to ever vaster and more powerful alliances
based on a hierarchy of power and duties, to political con-
centration and ultimately to the formation of monarchical
states. The natural effect of this course of development
was to limit strife and warfare, and a number of other
causes served to accelerate that process. The introduc-
tion of gunpowder was a death blow to knight errantry,
and the humanizing influences of a more enlightened
civilization, ushered in by the period of the Renaissance as
well as the rise of commerce and industry, destroyed the
very foundation upon which the feudal order was built.

Feudal society was broken up, and the dominant class
which it had produced was deprived of all its useful social
functions. But not of its power. The nobility ceased to
render service to the community, but it did not discard the
habit of levying tribute upon it. As landowners, courtiers,
magistrates and high dignitaries of church and state, the
noblemen retained themselves in power for centuries after
the passing of feudal society.

But in the course of those centuries, a new and formi-
dable rival for power was slowly developing in the bosom
of society — the class of commercial and industrial burgh-
ers — the bourgeoisie.

Manufacture, which in the earlier stages of feudalism
was a very subordinate occupation confined to the village,
and exercised by its followers as a sort of public service in


return for a scant living, received an ever larger extension
as society became more settled. The development of
village markets and the rise of towns encouraged inde-
pendent production of commodities and stimulated trade,
which, with the discovery of the sea route to India and the
discovery of America, received a new and larger impulse.
The merchants' and manufacturers' guilds soon became
a power in the state, and the town, a growing factor in
the political life of the nation.

Henceforward, the history of Europe is the history of
the struggle between these two classes for political su-
premacy. The titled descendants of the robber barons
of every country unite in the effort to maintain their in-
herited social, political and economic ascendency, and to
stem the threatening tide of the rising power of the churl-
ish newcomers, and in these efforts they are as a rule
supported by the Catholic clergy, whose social and eco-
nomic position is very similar to their own. On the other
hand, the rising bourgeoisie strives everywhere for free-
dom from the fetters of the feudal order, which impede
its movement for the establishment of a free competitive
international market of commerce and manufacture.

The struggle results uniformly in the victory of the
young and vigorous bourgeoisie over the enfeebled nobility.
The last act in this historical drama is the general Euro-
pean Revolution which formally establishes the rule of the
industrial bourgeoisie in all countries of Europe, whether
such revolution is accomplished with little bloodshed, as in
Great Britain in the seventeenth century, or by spectacular
acts and carnage, as in France at the end of the eighteenth
century, or by a slow and almost imperceptible process, as
in Germany towards the middle of the last century.


Such, in brief, is the career of the feudal system, and
that career with all its phases of development and strug-
gles is faithfully portrayed in the laws of the period.

The formative stages of the feudal order are not con-
ducive to the development of any general system of juris-
prudence. Society is split into innumerable separate and
very loosely connected communities, in each of which the
arbitrary will of the feudal lord is the supreme law. The
system of law of that period has been aptly described by
Stubbs as "a graduated system of jurisprudence based on
land tenure, in which every lord taxed and commanded
the class next below him; in which abject slavery formed
the lowest and irresponsible tyranny the highest grade;
in which private war, private coinage, private prisons,
took the place of the imperial institutions of the govern-
ment." ^ The legal doctrine that the sovereign can do no
wrong and the more modern doctrine of the immunity of
the state from legal process, are directly traceable to that
period of jurisprudence.

The succeeding phase of feudalism, with its hierarchic
order of vassalage and the graduated system of reciprocal
rights and duties, finds its expression in the law of prop-
erty and inheritance. Land, practically the sole means
of existence and the source of all social power, is not
considered private property. The feudal lord holds his
land and enjoys the right to its income as a sort of trustee
for his dependants; his title to the land is not one in fee
simple, or absolute ownership, but is subject to the superior
rights of his immediate lord as well as to the numerous
rights and easements of his subjects. The absolute legal
title to all the land vests in the king as the representative

* "Constitutional History," pp. 255, 256.


of the nation, a theory which has left very distinct traces
in the present-day legal doctrme of the right of Eminent

The feudal lord is the military officer in command of
the fief or manor, and that office upon his death descends
to his oldest son, together with the duties of protection
which it entails. His landownership is merely an inci-
dent of office and, therefore, descends to his oldest son
as his successor in office. The entailed estates, the law of
intestacy and primogeniture are the juridical expression of
the social order of that epoch of feudal bloom.

The period of dissolution of feudal society with its
accompanying struggles between the landowning noble
class and the industrial class are written in large letters
in the legal evolution of that period of social transition.
The downfall of feudalism and the triumph of the bour-
geoisie are signalized by the removal of restrictions upon
the alienation of land and freedom of trading, the intro-
duction of the testament, the abolition of guilds and guild
laws, and the eradication of all legal privileges of nobility
and clergy.

The Modern System of Law

The basis of modern society differs from that of the
feudal system in every essential. Under feudalism, as
we have seen, the principal pursuit is agriculture and the
principal form of wealth is landownership. The ownership
of land is the basis of all social relations and political
rights. It creates the hierarchy of rank, the feeling of ter-
ritorial solidarity, the sense of communal interest, and the
spirit of conservatism which are characteristic of that
phase of civilization.


Contemporary society, on the other hand, rests mainly
on manufacture and trading. The wealth of modern
nations is represented principally by movable objects and
commodities, or personal property, and all our social re-
lations are based on the ownership of such property.

The right to produce, consume and dispose of all com-
modities at will, is a necessary incident of their full en-
joyment, hence the absolute ownership of all property,
the freedom of its production and its unrestricted use,
are the pillars upon which all modern law rests.

Private Property and its logical corollaries. Competitive
Industry and Individual Liberty, are the new Trinity
which the rule of the bourgeoisie has established in modem
civilization. These three guiding principles find their
most eloquent and finished expression in the American
Declaration of Independence and the French Declaration
of Human Rights, the two instruments framed spon-
taneously and in their entirety as the expression of violent
political revolutions; they animate the unwritten con-
stitution of England and the written constitutions of all
other parliamentary countries.

Private property is also the foundation of all modern
legislation, for all modern systems of law are principally
designed for its protection.

"In a general way," says the well-known criminologist,
Zerboglio, "it may be considered as an established fact
that the foundation and objects of criminal law are the
preservation and the defense of that class which has
constituted the modern system of jurisprudence for the
purpose of safeguarding its economic power." ^

* A. Zerboglio, "Lutte de classe dans la legislation," in Le Devenir
Social, 1896, p. 142.


"Offenses against property" are acts committed in an
endeavor to acquire property by means not sanctioned by
law, — crimes committed for gain. But the direct offenses
against property are not the only crimes committed from
motives of gain. The overwhelming majority of crimes
against the person, from murder in the first degree to
simple assault, are most frequently committed with the
object of material advantages: if they are not crimes
against property they may be fitly designated as crimes
for property.

And what our criminal laws conceal and disguise to
some extent, our civil laws reveal with the utmost frank-
ness; the civil codes of every modern nation are chiefly
a compilation of rules governing the regulation of disputes
over property rights and regulating relations of property
owners between themselves.

"If we examine any ground of civil action," remarks
Mr. Bax, "we shall find it almost always turns directly
or indirectly on a question of property; that is, on what
individual shall possess certain wealth — the chances be-
ing invariably on the side of the wealthy litigant." *

Except for its protection of private property and the
principle of free competition as instanced by the anti-trust
and anti-monopoly legislation, the general policy of our
modern law is one of non-interference. The famous
watchword, "Laissez-faire," applies to bourgeois laws as
well as to bourgeois economics.

This policy is based on the assumption of equality of
all citizens and their ability to adjust their own relations
without the interference of the state. And in the period

' Ernest Belfort Bax, "The Religion of Socialism," London, 1901,
p. 147.


of inception of the present social order this assumption
was not entirely unwarranted. When manufacture was
in its infancy, and was carried on by primitive methods
and with the aid of simple and inexpensive tools, the in-
dustrial field was practically free to all artisans. There
were no fixed lines between "capitalists" and "wage
workers" as distinct and permanent classes: employer
and employee met on terms of some equality ; their rela-
tions were largely created by voluntary and reciprocal
contract. But with the development of the complex and
expensive modern instruments of production, these instru-
ments passed into the hands of the possessing classes, who
thus acquired a monopoly of the modem mdustrial pro-
cess, while the non-possessing classes were reduced to the
status of wage workers.

The assumed equality of all men thus became a mere
fiction, at least as far as the economic relations of the
citizens are concerned, and all social legislation based on
that assumption henceforward had the effect of sanc-
tioning the power of the strong to exploit the weak. In a
society of economic equals the law might properly abstain
from interfering with the industrial relations of the citi-
zens, but in a society in which economic supremacy places
one class of citizens in an artificial position of advantage
over their fellow-citizens, the office of just legislation
should be to protect the weak against the abuses of the
strong. The failure of modern law to afford such pro-
tection to the workingmen in itself shows partiality in
the interests of the ruling classes.

"Upon this point," observes Loria, "a comparison
between modern and mediaeval law is enlightening.
During the Middle Ages, when capital was weak and


labor acquired its strength from the existence of free land,
the law came to the assistance of capital by regulating
the labor contract in a manner hostile to the laborer's
interest. In our times, on the contrary, when capital is
strong and labor is deprived of its liberty of action, the
law amply fulfills its office of guardian of property by
abstaining from regulating the wage contract at all, and
leaving it to the dictation of capital." ^

A striking instance of this rule is to be found in the
enactment and repeal of the famous English "Statute of
Laborers." The epidemic of the "black death" in the
middle of the fourteenth century had vastly decreased
the supply of labor, and wages were going up rapidly.
Parliament passed a law making work compulsory on
all propertyless persons below the age of sixty years at
wages that had been customary in the year 1347, i.e.,
before the plague, and this law with a number of successive
amendments and variations remained in force until the
beginning of the nineteenth century, when the develop-
ment of machinery and the modern processes of produc-
tion had created a superfluity of labor and a ruinous com-
petition among the workers themselves. The laws fixing
the rate of wages then became useless and embarrassing
to the employing classes, and were speedily repealed.

But the wage contract is not the only instance of the
disadvantage of the workingmen under the law arising
from the principle of non-interference. Another and per-
haps more conspicuous illustration of the iniquitous effect
of that principle is to be found in the employers' liability
laws of modern nations, particularly the nations whose

* Achille Loria, "The Economic Foundations of Society," English
Translation, p. 104.


systems of jurisprudence are based on the Anglo-Saxon
common law. The doctrine of the assumption by the
workingman of the "obvious risks of employment," and
his inability to recover damages for injuries where such
injuries were caused in whole or in part by his "contribu-
tory negligence" or by the negligence of a "fellow-ser-
vant," have for their theoretical basis the fiction that the
modern workingman of his own free choice determines
how, where and with whom he shall work. The practical
effect of these doctrines is that in most cases the work-
ingman remains without remedy against his employer.

The fictitious "equality of all citizens before the law"
furthermore favors the possessing classes as against the
classes of non-possessors in matters of modern legal pro-
cedure at least as much as in matters of substantial law.
The fact that the practice of law is a business pursuit of
the private practitioner coupled with the complicated, tech-
nical and expensive nature of litigation, frequently puts
justice beyond the reach of the poor. "The law," ex-
claims the eminent ItaHan jurist already quoted, "is a
monopoly of wealth, and in the temple of Themis there
is no place reserved for the laborer." ^

Nor is the character of modern law as the guardian of
the possessing classes and the whip of the poor, evidenced
by its passive attitude alone. The rigid prohibitions
against labor combinations in the various modern coun-
tries, the strict penalties for all labor interferences with
the "rights" of the employing class, and the severe treat-
ment by the courts of all "transgressions" of workingmen
in their struggles against their employers, furnish eloquent
proof of the law's positive partiality for the ruling classes.

' Loria, "Economic Foundations of Society," p. 114.


Social Legislation and Socialist Jurisprudence

As the feudal regime at a certain stage of its develop-
ment became burdensome on the class of the " bourgeoisie"
and caused them to revolt against that regime, so has the
modern industrial order become burdensome upon the
working classes, and the latter already show symptoms of
revolt against it. The more advanced workingmen of all
countries begin to regard the economic dependence of
their class and the privileged position of the employing
classes as a social injustice. They feel that the part of
the toilers in the process of production entitles them to a
larger share of the national product, and that they are
despoiled and deprived of their just due by the classes in
power. They demand an ever greater consideration and
protection for labor, and an ever larger curtailment of the
privileges of wealth.

These demands of the workingmen assume for them
the form of social or ethical rights, and their struggles are

Online LibraryMorris HillquitSocialism in theory and practice → online text (page 6 of 26)