Omaha daily bee., 1912-05-02
Social Justice and Legal JUS
tice Show Variations
Says an Expert.


What is tustice?"
II fair play among social classes be-
longs to the idea Of justice. does our
juristio thought hold otherwise? II has.
unhappIly up to the present time. This
Is evidenced In the decisions Of our courts
on contracts. Legislation designed 10
give laborers some measure Of practical
independence. placing them in sense
upon a level with their masters. is said
by courts to create a class OF statutory
laborers and thus TO make class distinc-
tons when there should be none.
The highest court In the land told US
the other day that workmen's COM
pensatory act does nothing to conserve
the health. safety or morals of the en-
ployes." Economists and soclologists are
Justified in the criticisms which they
have used against such a position.
How is 1t, then. that the legal idea Of
justice differs from the idea Of the
economist and soclologlst?
The primitive idea Of justice was sim
ply to keep the peace. Whatever served
10 prevent private vengeance or private
war was an instrument OF justice.
The first law attempted only TO fur
nlsh the injured party with a substitute
for revenge. We repair the wrong with
damages. while ancient law bought off
vengeance with a composition. Thus the
ancient Roman law dealt with injury
to the person under the head of insult
the earliest of the Anglo-saxpn laws
E.ia n
bruise was not covered by the clothes
and so subjected the injured party to
chatting and increased his desire for re-
venge; the salic law gave double COM
pensation to the Frank, accustomed to
right his own wrongs. as compared with
the Roman. trained for generations to ad-
just his controversies in court.
Greek philosophy and Roman law soon
got beyond this primitive idea Of law and
construed Justice as q desire to preserve
the social status quo-to keep each man
in his appointed groove and thus avoid
friction.
1t was not until the Reformation that
this status quo idea began to be ques-
toned. Then appeal to reason against
authority led to a new conception in
philosophy, theology. politics and ulti-
mately in legal theory. as a result of
which justice came to be regarded as
desire TO secure a maximum Of individ
ual self-assertion. The beginnings Of
this are IN philosophy. 1t dominated
politics, ethics and finally Jurisprudence.
The conception is purely Individuals
tic. II endeavors by means Of law TO
prevent all interference with self devel
opment and self assertion, so far as this
may be done with like development on
the part Of others.
Spencer formulated this theory when
he zsfined justice as the liberty Of each.
limited only''-mark the "only"-"by the
liberties of ALL" This conception has
given away TO q new conception in poll
tics, ethics and economists. but continues
but no part Of 1t has taken place in our
TO rule in Jurisprudence.
II has been often said that the law
huving put down force must be put down
cunning. The old problem was that some
are physically stronger than their fellows
and take advantage, Of them.
The new problem is that some are
stronger mentally. in force Of character.
and use this superiority to exploit and
oppress So to meet this the organized
brains Of the community must be pltted
against are aggressive individual brains.
Our fathers named as inalienabie rights
life. liberty and pursuit Of happiness, but
today men are claiming that the mass
has q right to realize the preatest pos
sible measure Of happiness.
The orgnlSed brains. as well as muscles.
Of the many are to equalIze the superior
brains as well IS the muscles Of the few.
How far this has gone in social, ethical
and economic theory We need not inquire,
legal thought.
Zazius wrote in 152p-''An sciences have
put off their dirty clothes; only juris-
prudence remains in her rags Today
while all sciences have abandoned deduc-
tions from predetermined conceptions.
such Is stin the accepted method Of
jurisprudence. As law ii is a government
of the living by the dead
There is this difficulty in legal science
as In the administration Of justice-a dif-
ference in rate Of progress, between law
and public opinion. Dissatisfaction with
law Is as old as law itself
Three kinds of defects give rise to this
dissatisfaction: defects due To inherent
difficulties In the administration of JUS
tioe, defects due TO the history Of our
psrtfculzr legal system. defects due to