Warren & Brandeis, Right to Privacy (4 Harv. Law Rev. 193)

494

William Dodd v. John Browning et al. (Cal. Proc. Chan. I, xiii)

159

HISTORY AND SYSTEM OF THE

COMMON LAW

CHAPTER I

FUNDAMENTAL CONCEPTIONS

JUSTICE

The object of Law is the administration of justice. Law is a body of rules for the systematic and regular public administration of justice. Hence we may ask, at the outset, what is justice?1

INSTITUTES OF JUSTINIAN, I, 1, secs. 1, 3.

Justice is the set and constant purpose which gives to every man his due. The precepts of law are these: to live honorably, to injure no one, and to give every man his due.

KANT, RECHTSLEHRE (2 ed.), xxxiii.

Right is therefore the sum of the conditions under which the will of one can be brought into harmony with the will of another according to a universal law of freedom. Every act is right which, in itself, or in accordance with its maxim, can co-exist with the freedom of the will of each and all according to a universal law.

SPENCER, JUSTICE, sec. 27.

Hence, that which we have to express in a precise way, is the liberty of each limited only by the like liberties of all. This we do by saying: Every man is free to do that which he wills, provided he infringes not the equal freedom of any other man.

WILLOUGHBY, SOCIAL JUSTICE, 20-21.

Justice to the individual, then, must according to these principles consist in the rendering to him, so far as possible, all those

1 Salmond, Jurisprudence (3 ed.), §§ 6, 7, 9, 10, 25, 26; Miller, the Data of Jurisprudence, chap. 6; Markby, Elements of Law, § 201; Gareis, Science of Law (Kocourek's translation), 48. See also, Bentham, Theory of Legislation, Principles of the Civil Code, pt. I, chaps. 1-7.

services, and surrounding him with all those conditions, which he requires for his highest self, for the satisfaction of those desires which his truest judgment tells him are good. Conversely, opportunity for fulfillment of highest aims is all that may be justly claimed as a right.1

PAULSEN, ETHICS (Thilly's translation), chap. 9.

Justice, as a moral habit, is that tendency of the will and mode of conduct which refrains from disturbing the lives and interests of others, and, as far as possible, hinders such interference on the part of others. This virtue springs from the individual's respect for his fellows as ends in themselves and as his co equals. The different spheres of interests may be roughly classified as follows: body and life; the family, or the extended individual life; property, or the totality of the instruments of action; honor, or the ideal existence; and finally freedom, or the possibility of fashioning one's life as an end in itself. The law defends these different spheres, thus giving rise to a corresponding number of spheres of rights, each being protected by a prohibition. . To violate the rights, to interfere with the interests of others, is injustice. All injustice is ultimately directed against the life of the neighbor; it is an open avowal that the latter is not an end in itself, having the same value as the individual's own life. The general formula of the duty of justice may therefore be stated as follows: Do no wrong yourself, and permit no wrong to be done, so far as lies in your power; or, expressed positively: Respect and protect the right.

POLLOCK, FIRST BOOK OF JURISPRUDENCE (3 ed.), 32-33. Law presupposes ideas, however rudimentary, of justice. But, law being once established, just, in matters of the law, denotes whatever is done in express fulfillment of the rules of law, or is approved and allowed by law. Not everything which is not forbidden is just. Many things are left alone by the state, as it were under protest, and only because it is thought that interference would do more harm than good. In such things the notion of justice has

1 "The old justice in the economic field consisted chiefly in securing to each individual his rights in property or contracts. The new justice must consider how it can secure for each individual a standard of living, and such a share in the values of civilization as shall make possible a full moral life." Dewey and Tufts, Ethics, 496.

no place.

The words "just" and "justice," and corresponding words in other tongues, have never quite lost ethical significance even in the most technical legal context. The reason of this (unduly neglected by some moderns for the sake of a merely verbal and illusive exactness) is that in the development of the law both by legislative and by judicial processes appeal is constantly made to ethical reason and the moral judgment of the community. Doubtless the servants of the law must obey the law, whether the specific rules of law be morally just in their eyes or not: this, however, is only saying that the moral judgment we regard is the judgment of the community, and not the particular opinion of this or that citi

Further, some conflict between legal and moral justice can hardly be avoided, for morality and law can not move at exactly the same ratio. Still, in a well-ordered State such conflict is exceptional and seldom acute. Legal justice aims at realizing moral justice within its range, and its strength largely consists in the eral feeling that this is so.

LAW1

gen

Justice may be administered, according to the discretion of the person who administers it for the time being, or according to law. Law means uniformity of judicial action, generality, equality, and certainty in the administration of justice. The advantages of law are: (1) It enables us to predict the course the administration of justice will take. (2) It prevents errors of individual judgment. (3) It protects against improper motives on the part of judicial officers. (4) It gives the magistrate the benefit of all the experience of his predecessors.

BLACKSTONE, COMMENTARIES, I, 44-46.

Thus much I thought it necessary to premise concerning the law of nature, the revealed law, and the law of nations before I proceeded to treat more fully of the principal subject of this section, municipal or civil law; that is, the rule by which particular districts, communities, or nations are governed; being thus defined by Justinian, “jus civile est quod quisque sibi populus constituit." I call

1 Salmond, Jurisprudence, chaps. 2 and 3; Holland, Elements of Jurisprudence, chaps. 2 and 3; Markby, Elements of Law, §§ 1-26; Gray, Nature and Sources of Law, chap. 4; Pollock, First Book of Jurisprudence, pt. 1, chap. 1; Austin, Jurisprudence, Lects. 1 and 5; Korkunov, General Theory of Law (Hastings' translation) 40-115; Clark, Practical Jurisprudence, pt. 1, chap. 7 to middle of p. 93, conclusion of chap. 11 (p. 134), conclusion of chap. 14 (p. 172); Maine, Early History of Institutions, chap. 13; Lee, Historical Jurisprudence, 1-5.