THE LEGAL ORDER In recent jurisprudence the question is constantly to the fore, What is the function or end of law? The immediate object of the law, as anyone can see, is the solution of social conflicts. But not every conflict. Where then is the line to be drawn? Accord ing to Roscoe Pound, the function of the law is so to balance interest as to secure the utmost of each while sacrificing in the general interest the least of any. But the English courts ex pect the parties to have delimited their interests for themselves, with or without previous governmental aid. With first hand knowl edge of the main factors affecting them, the parties stake out their respective claims, and, with reference to the law of the land, formulate the scheme that is to govern their relations. A price fixing agreement is a common modern example. In the absence of such a formula and when the ordinary law is silent, the court may have to find a rule of its own. On the other hand, where social interests have to be weighed (e.g., the validity of contracts in restraint of trade), the court is soon back at its old task of meting out even-handed justice between man and man. The fact is that Roscoe Pound's theory is more truly a theory of legislation and it is in that direction that its practical bearings are so impor tant. All his instances of what is actually going on in legal systems are examples of legislative change. And as a rule a theory of legis lation will not serve as a theory of adjudication ("for the wisdom of a law maker is one thing and of a lawyer another"). It may readily be conceded that the policeman on point duty has dimin ished enormously the number of accidents, but he is hardly the proper person to decide which of two insurance companies is to pay for a collision. And conversely, Dr. Johnson had some orig inal notions as to the proper functions of the lord chancellor, but point duty was not one of them. Of more importance per
haps is it to consider the implication that it is the business of the jurist to ascertain and formulate the "jural postulates" of the period. He is to ascertain and weigh the various claims that emerge from among contending social forces and decide how they are to receive recognition by the community. This task is indeed formidable. One may well hope with 0. W. Holmes that "it is finally for science to determine, so far as it can, the relative worth of our different social ends" (Collected Papers, p. 242) and yet doubt whether jurisprudence is that science. Let the judge, the text-writer, the great lawyer be as "creative" as a kind Provi dence may allow, who is he to act the arbiter of the values of the modern world? The theory may well brave ridicule, indeed for its compelling plea for social enlightenment among lawyers it will outlast many a fashion; still the purely descriptive method of Dicey's Law and Opinion in the ipth Century seems a much safer guide. There one may see how social conflicts work them selves out and leave a deposit on the law, even though the reader be left in the end with a more chastened view of the jurist's functions. In the meantime the original inquiry has been lost sight of. What after all is the answer to the question first propounded? Hitherto no satisfactory answer has been forth coming. In the future it may be different, at least if studies like John Dickinson's Administrative Justice and the Supremacy of Law are any guide. Ultimately the question seems one for prac tical judgment. Should workmen's compensation be for the Min istry of Health, or for the county courts? Should the latest frontier incident in the Balkans be settled by the League Council or the Permanent Court? Let the OpOvi,mos decide.