This account explains both the large arbitrary and contingent element
in laws and their plausible identification with reason, dissimilar
as are the two considerations. There are many transactions in which
the thing of chief importance is that consequences be determinate in
_some_ fashion rather than that they be determined by some inherent
principle to be just such and such. In other words, within limits it
is indifferent what results are fixed by the conditions settled upon;
what is important is that the consequences be certain enough to be
predictable. The rule of the road is typical of a large number of
rules. So is the fixing of sunset or of a specified hour as the exact
time when the felonious entering of the premises of another takes on a
more serious quality. On the other hand, rules of law are reasonable
so that “reason” is appealed to by some as their fount and origin on
the ground pointed out by Hume.[3] Men are naturally shortsighted,
and the shortsightedness is increased and perverted by the influence
of appetite and passion. “The law” formulates remote and long-run
consequences. It then operates as a condensed available check on the
naturally overweening influence of immediate desire and interest over
decision. It is a means of doing for a person what otherwise only his
own foresight, if thoroughly reasonable, could do. For a rule of law,
although it may be laid down because of a special act as its occasion,
is formulated in view of an indefinite variety of other possible
acts. It is necessarily a generalization; for it is generic as to the
predictable consequences of a _class_ of facts. If the incidents of a
particular occasion exercise undue influence upon the content of a rule
of law, it will soon be overruled, either explicitly or by neglect.
Upon this theory, the law as “embodied reason” means a formulated
generalization of means and procedures in behavior which are adapted
to secure what is wanted. Reason expresses a function, not a causal
origin. Law is reasonable as a man is sensible who selects and arranges
conditions adapted to produce the ends he regards as desirable. A
recent writer, who regards “reason” as that which generates laws, says,
“A debt does not in reason cease to be a debt because time has passed,
but the law sets up a limitation. A trespass does not cease in reason
to be a trespass because it is indefinitely repeated, yet the law shows
a tendency to admit an unresisted trespass in time to the status of
right. Time, distance and chance are indifferent to pure reason; but
they play their part in the legal order.”[4] But if reasonableness is
a matter of adaptation of means to consequences, time and distance are
things to be given great weight; for they effect both consequences and
the ability to foresee them and to act upon them. Indeed, we might
select statutes of limitation as excellent examples of the kind of
rationality the law contains. Only if reason is looked upon as “pure,”
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