in Adair v. United States the court goes no further than to say that membership in a union does not of itself have any relation to the welfare of the parties to the wage contract. Whether that be true or not, the decision does not assert that if it had some relation which made for the benefit of the workers at the expense of the employers, the legislature could not favor the workers. In Knoxville Iron Co. v. Harbison2 the opinion certainly contemplated the equalization of the relative advantages between the parties. The court says: 3 "Its tendency, though slight it may be, is to place the employer and employee upon equal ground in the matter of wages, and, so far as calculated to accomplish that end, it deserves commendation." If a statute requiring wages to be paid in cash is valid on that account, there can be no distinction against one which has the same end in view in limiting the hours of work. The same reasoning seems necessary to support St. Louis Iron Mountain Ry. v. Paul, in which a statute was sustained providing that a discharged employee could recover all his wages earned to date. For the state to intervene to make more just and equal the relative strategic advantages of the two parties to the contract, of whom one is under the pressure of absolute want, while the other is not, is as proper a legislative function as that it should neutralize the relative advantages arising from fraudulent cunning or from superior physical force. At one time the law did not try to equalize the advantages of fraud, but we have generally come to concede that the exercise of such mental superiority as fraud indicates, has no social value, but the opposite. It may well be that the uncontrolled exercise of the advantages derived from possessing the means of living of other men will also become recognized as giving no social benefit corresponding to the evils which result. If so, there is no ground for leaving it uncontrolled in the hands of individuals. Long since, the ownership of property which is devoted to certain public purposes has been limited by the state, even when the state has given no special franchises to its owner. By an analogy. which was not perhaps conscious, the ownership of factories and certain other forms of capital is likewise now attended with certain 1 208 U. S. 161. 8 P. 20. 2 183 U. S. 13. 4 173 U. S. 404. Munn v. Illinois, 94 U. S. 113; Budd v. New York, 143 U. S. 517. limitations special to such owners, as has been shown. It was at one time thought, and it is yet thought by some persons, that if the owner of such property keep within the limits of fraud and force, it is best not to meddle with him. No one can be insensible to the implications in a denial of his absolute rights. They involve social activity which may be used to destroy the initiative of the individual and those diversities between individuals which are the source of emulation and ambition. Yet no one today denies that to a certain degree we must face that possibility and answer the problems which it raises, with such wisdom as society can collectively muster. The question for the courts is not whether the problems have been wisely answered, but whether they can be answered at all, or whether they are taboo. So far as concerns laws limiting the hours of work, the present position seems quite untenable. Even assuming that women are not physically the equal of men,' the arguments against any regulation whatever of hours apply equally to men as to them. If the whole matter is dependent upon what is vaguely called "supply and demand," and if to favor an economic class in one way imposes on it some corresponding loss in another, it is because no deliberate and "artificial" change can make head against economic laws which work regardless of the individual, or the social, will. There are indubitably strong arguments in favor of such a position, but there are also cogent arguments contra. If the arguments opposed are in any case allowed to have enough cogency to "raise an issue," each case is a matter for special consideration. There are some cases in which the courts have conceded that such an issue is raised, and that throws the whole matter open for exclusive consideration, and for exclusive determination, by the legislature, unless the court is to step out of the rôle of interpreter of the Constitution and to decide the questions itself as another legislature. In short, the whole matter is yet to such an extent experimental that no one can with justice apply to the concrete problems the yardstick of abstract economic theory. We do not know, and we cannot for a long time learn, what are the total results of such "meddlesome interference with the rights of the individual."2 He would be as rash a theorist who should assert with certainty their 1 Muller v. Oregon, 208 U. S. 412. beneficence, as he who would sweep them all aside by virtue of some pragmatical theory of "natural rights." The only way in which the right, or the wrong, of the matter may be shown, is by experiment; and the legislature, with its paraphernalia of committee and commission, is the only public representative really fitted to experiment. That the legislature may be moved by faction, and without justice, is very true, but so may even the court. There is an inevitable bias upon such vital questions in all men, and the courts are certainly recruited from a class which has its proper bias, like the rest. Indeed the legislature, though less courageous because it is less independent, is more genuinely representative. At present it is prone to evade its responsibility by throwing off all the odium of opposition on the court. If it could not do so, it would be compelled to meet the question more squarely and more fairly; and we should not have the inconsistent spectacle of a government, in theory representative, which distrusted the courage and justice of its representatives, and put its faith in a body which was, and ought to be, the least representative of popular feeling. "No evils arising from such legislation could be more far-reaching than those that might come to our system of government, if the judiciary, abandoning the sphere assigned to it by the fundamental law, should enter the domain of legislation, and upon grounds of justice or reason or wisdom annul statutes that had received the sanction of the people's representatives." It is, therefore, in no sense as patrons or opponents of the wisdom of such efforts, that the courts may approach such laws. There no doubt comes a time when a statute is so obviously oppressive and absurd that it can have no justification in any sane polity. If we are to abandon the theory that what is customary is 1 Atkin v. Kansas, 191 U. S. 207, 223. 2 It is, for example, no answer to urge dialectically that if an eight-hour law is valid, then a six-hour, four-hour, or two-hour law would also be valid. It is no doubt true that the court must consider in the end the real effects of the law. That does not throw open the actual statute for consideration as res integra. No one now seriously believes in a four-hour law. If the control of men over natural energy became so great that in four hours a man could produce commodities equal to what he now produces in eight, it might be rationally contended that his "welfare" would be promoted by that limitation. The political body to determine that, under such changed economic conditions, would be the legislature. At present the court could, and must, take notice of the actual economic conditions to the extent necessary to determine whether the provision is merely perverse and absurd. Such a conclusion cannot honestly be held permissible, perhaps the question is no more than of the temper in which the court awaits that time. However, that time has not come when the matter which is before them is one upon which men can, and do, diverge widely, and upon which the deliberate judgment of great numbers of quite reasonable persons is at variance with the majority of the court. Before the court the question is political, not economic; it is the question of where the power to pass upon such subjects should rest, whether in the legislature or in the whole people acting through the Constitution. If the subject be one already fairly within the field of rational discussion and interest, it would seem to be for the legislature. Such a subject, I submit, is the possible wisdom of an eight-hour law. Learned Hand. NEW YORK. when the limit is eight hours; nor has the court ever said this. They have overset the law by a relapse if I may be pardoned the word-into the theory of "natural rights." UNIFORMITY OF LAW IN THE SEVERAL STATES AS AN AMERICAN IDEAL.1 OTHER II. STATUTE LAW. THER decisions might be cited which, like Lawrence v. Fox, have led to uncertainty and confusion in the common law and created a need for legislation as the only available means of restoring consistency and certainty. Without stopping to multiply such instances, I will proceed at once to the consideration of statute law, and its probable effect upon uniformity of law in the several states. If it were necessary to consider the entire body of statute law, the problem would certainly be discouraging. A striking fact, however, in connection with statutes is that a large proportion of them relate to administrative law; that is, the body of law regulating the administration of the government through boards, commissions, or public officers. Under the same head belong all statutes relating to local administration through the agency of cities and towns. Although the legislatures have an undoubted right, subject to any limitations imposed by the state and national constitutions, to enact laws modifying the entire body of private law, including common law and equity, the use of this right in the past has been moderate. The great bulk of the private law of the country has been left by the legislatures to be declared by the courts. In England "nine-tenths of each annual volume of statutes are concerned with what may be called administrative law; and an analysis of the general acts during the last four centuries would probably show a similar proportion. On the other hand, at least nine-tenths of the leading rules which make up the law of contract and tort are common law, and their origin and development are to be found in the pages of the Year Books and Law Reports, and not of the statute book." Savigny in Germany 1 Continued from 21 HARV. L. REV. 430. 2 "The number of legislative enactments passed in the states in a single year has exceeded fourteen thousand, covering in printed form some twenty to twenty-five thousand pages. During the five years from 1899 to 1904 the total number of acts passed by American legislatures was 45,552." Reinsch, Am. Legislatures, 300. Ilbert, Leg. Methods, 6, 209. |