12 Roscoe Pound 



which they led respectively side by side without comment, 1 

 adapted a Ciceronian formula so as to make it include both of 

 the current conceptions. 2 English thought continued in the 

 course marked by Hobbes. But on the Continent another period 

 was about to begin under the influence of Kant. 



The problem which confronted Kant and those who followed 

 him more immediately was the relation of law to liberty. On 

 the one hand, we live in an age of legislation, in which there is 

 and must be external restraint and coercion, in which a philoso- 

 phy that sees only reason and ideal justice is not the philosophy 

 of the law that is. On the other hand, we live in a democratic 

 age, in which the arbitrary and authoritative must have some 

 solid basis other than mere authority, and in which the indi- 

 vidual demands the widest possible freedom of action. How 

 were these two ideas, external restraint and individual freedom 

 of action, to be reconciled? This question furnishes the clue to 

 the formulas of philosophers and of jurists during the hegemony 

 of the German historical school. Kant met it by formulating 

 the judicial notion of justice, — the notion of an equal chance to 

 all exactly as they are, with no artificial or extrinsic handicaps. 

 He looked on restraint as a means and freedom as an end, so 

 that there should be complete freedom of action except so far as 

 restraint was needed to insure harmonious coexistence of the 

 individual with his fellows according to a universal rule. 3 Sav- 

 igny (1840), as a lawyer, turned this formula of right into one 

 of law : "The rules whereby the invisible boundaries are deter- 

 mined, within which the existence and the activity of each indi- 

 vidual gain secure and free opportunity." 4 Acollas (1885), in a 

 country governed by a code and in an age of legislation, gives 

 us a modern version : "The aggregate of the rules which pro- 



1 Compare his statement of the extreme view as to conflict of legislation 

 and natural law (I, 43) with his statement as to the omnipotence of parlia- 

 ment (I, 161); his criticism of the state of nature theory (I, 47) with his 

 scheme of rights based on that theory (I, 122); his curious juxtaposition of 

 utilitarianism and Grotian natural law (I, 41). 



2 Commentaries,. I, 44. 



3 Metaphysische Anfangstrrunde der Rechlsfehre, 27 (1797). 

 ^System des heuligen Romischen Rechts, I, 52. 



260 



