Page:Yale Law Journal - Volume 27.pdf/39

From Wikisource
Jump to navigation Jump to search
This page needs to be proofread.



damage others unreasonably; or stated positively, that of doing those things and those only of which the majority approve. The test, therefore, that our ancestors in fact applied to determine whether one who was injured by the acts of others could recover, was to inquire whether the act which injured him was reasonable or one of which they approved; and the verdict depended on how the majority answered that question. It is clear that, if laws are intended to effectuate public ideals, that is the test which should be applied to determine the legality of an act, for public ideals are the ideals of the majority. In other words, all acts the majority approve either are or should be legal, if the needs of the community are the forces that dominate, the making of laws; and, that they are, is the foundation on which government by the people rests. Any act of which a majority approves is, therefore, customary, reasonable, right, just and equitable regardless of the effect it may have on individuals; and it follows that any rule the majority approves is just and reasonable regardless of the limitations it imposes on individual freedom of action. The law of every community, therefore, should consist of the general rule that it is everyone's duty to do those things, and those only, which the majority approve, and of a more or less complete body of special rules intended to apply the general rule to familiar situations.

The questions of how the needs of the community produce statutes, and how the rules of the common law are evolved, remain to be considered. I shall, however, consider them separately; for the agency the community employs to make statutes is not the same as the one which formulates the rules of the common law, and the knowledge of how statutes are made is apt to be misleading when we are studying the evolution of the common law. Since statutes are made by communities to effectuate their ideals, we must begin our study of how they are made with the study of the evolution of public ideals. That necessitates a study of the evolution of individual ideals, for the evolution of such an ideal is the first step in the evolution of all public ideals. In considering this question, it will be helpful to remember that while a community is an entity with a mind of its own,"[1] it is composed of entities each of whom has a mind separate and distinct from the general mind, and more or less well-developed reasoning faculties; and each of these entities

  1. Small, op. cit. 133.