JURISPRUDENCE AND LEGISLATION 627 



these two principles, or upon both, a considerable mass of economic 

 and social legislation has been declared unconstitutional. 



While, as has been before observed, the respect of vested rights 

 is an universal principle of law controlling every system of juris- 

 prudence, this is not true of the two principles last named. Both 

 the civil and the common law rest upon freedom of contract, and 

 the systems of legislation based upon them recognize this freedom as 

 a fundamental rule of policy. As a policy, however, it is subject to 

 legislative control and not, like a rule of law, binding upon the 

 legislature. In modern systems of law equality holds exactly the 

 same place. 



Has American jurisprudence changed these rules of policy into 

 binding rules of law? and if so are they proclaimed as fundamental 

 rules of justice or merely as principles demanded by, because con- 

 formable to, the American type of government and of society ? 



Decisions have undoubtedly been rendered in considerable number, 

 declaring unconstitutional, as violating the rights of liberty or of 

 equality, or both, certain statutes of a social or an economic char- 

 acter; some, perhaps the majority of them, dealing with the employ- 

 ment of labor, others with a great variety of other forms of business, 

 and the courts have been emphatic in asserting that the consti- 

 tutions guarantee a certain sphere of freedom of contract and of 

 business and prohibit unwarranted discrimination. 



But does such assertion amount to the laying down of a positive 

 principle? What does it mean, to say that the fundamental law 

 secures a certain amount of liberty, if it is not said how much, or 

 that it forbids unjust discrimination, if the injustice is not denned? 

 It is the merest commonplace that some restraint of liberty of con- 

 tract and business, some discrimination, is not merely valid, but 

 essential to the interests of society. Can the fundamental law be 

 satisfied with the proclamation of rights of absolutely indeterminate 

 content, directly contrary to other recognized principles, or is not 

 limitation and definition of some sort absolutely essential to an 

 intelligible rule of law? The courts have given us criticism, denun- 

 ciation, and condemnation, but no positive guidance. The course 

 of adjudication is marked by divided jurisdictions and divided 

 courts, resulting in a lamentable uncertainty as to the limits of 

 legislative power. 



Ill 



Yet the position taken by the courts is not merely acquiesced in, 

 but regarded as indispensable, and, on the whole, beneficent. For 

 this judicial censorship is not only justified, but made necessary, 

 by prevailing legislative conditions. It would be untrue to say that 



