The Ideal Element In Law

XI. The Humanitarian Idea

ELEVEN The Humanitarian Idea Legal history shows a continually widening circle of recognized interests and continually more effective means of securing the interests recognized . Two conspicuous examples of recognition and securing of interests theretofore unknown to the law, in the two generations since I was admitted to the bar in 1890, will suffice for illustration. The "right ofprivacy ," the demand made by the individual that his private, personal affairs shall not be laid bare to the world and be discussed by strangers, a modern demand growing out of the conditions of life and extended means ofcommunication and organized news-gathering agencies in the cities oftoday, was first urged in 1890.1 It was denied by the highest court of New York in 1902.2 For a time it was recognized indirectly by a theory ofinfringement ofa property interest ofbreach ofthe terms ofa contract. Sixty years later it could be said: "Modern decisions allow recovery in situations in which it is not possible rationally to use the older cases of recovery , and the interest is now recognized as having an independent existence ."3Again the claim ofthe employee in industry to a vested right in his job, as a right to continue in the relation of employer and employee as a relation protected by law not simply a contractual claim during the term ofa contract of employment, was not admitted by a majority of the Supreme Court of the United States as late as the second decade of the 1. Warren and Brande, The Right to Privacy (189o) 4 HARVARD LAW REVIEW 193. 2. Roberson v. New York Folding Box Co., 171 N.Y. 538 (1902). 3· 4 American Law Institute, Restatement ofthe Law ofTorts (1949) § 867. 322 ~THE IDEAL ELEMENT IN LAW present century.4 Twenty years later by the National Labor Relations Act5 the interest was recognized and effectively secured and the statute was upheld by a majority of that court.6 The courts now talk about "the fundamental right to work for a living," not a liberty of, if and as one likes, for whom one likes, ifthe employer agrees, but a right secured against the employer.l These examples likewise illustrate how wide extensions in the area of recognized interests may be achieved without impairment of the stability of the legal order and without essential impairment of the system ofauthoritative body ofprecepts and technique ofapplying them (law in the second sense). But new wants and expectations pressing for and getting recognition may affect ideas ofthe end ofthe legal order. As I pointed out in a former lecture, a newer and broader idea of security is indicated for a time when the world has ceased to afford boundless conspicuous opportunities which men only need to be free to seize in order to be assured of satisfaction of their reasonable expectations. Where there are on every side opportunities for freely exerting one's will in pursuit of what he takes to be the goods of existence, security means an ordered competition of free wills in which acquisitive competitive self-assertion is made to operate with a minimum offriction and waste. Where this ordered struggle for existence does not leave opportunities at hand for every one, where the conquest of physical nature has enormously increased the area of human wants and expectations without corresponding increase in the means ofsatisfying them, equality ceases to mean equality of opportunity. Security ceases to mean security of freely taking advantage ofopportunity. Men assert claims to an equality of satisfaction of wants which liberty of itself cannot afford them. They begin to assert claims to living a full life in the society of the time and according to the standards which liberty of itself cannot give them. When a generation which had been brought up in the nineteenthcentury idea ofcomplete liberty as the ideal relation among men began 4· Coppage v. Kansas, 236 U.S. 1(1915). 5· Act ofJuly 5, 1935,49 Stat. L. 449, 29 U.S.C.A. §§151 ff. 6. National Labor Relations Board v. Jones 6 Laughlin Steel Corp., 301 U.S. 1(1937). 7· James v. Marinship Corp., 25 Cal. 2d, 721, 731 (1944). THE HUMANITARIAN IDEA~ 323 to speak of four fundamental freedoms of which the last two were freedom from want and freedom from fear a new idea was coming in, if not to replace, at least to include liberty as only an item in a...