definitely and the definite penalty. To individualize punishment seems to the old view to abandon legal security and to open the floodgates of judicial arbitrariness. This view, however, is based on an inadequate logic which fails to appreciate the necessarily provisional character of all legal classification and the consequent necessity of discretion to make definite that which would otherwise be really indefinite. Logically the task of the law is similar to that of the wholesale manufacturer of shoes or any similar commodity. Human feet vary in size, and perhaps there is truth in the saying that no two are exactly alike. On the assumption that . the shoe should fit the foot, the theoretical consequence would be that no two shoes should be made exactly alike. Experience, however, without contradicting these postulates of the perfect art of shoemaking, finds that a limited number of classes of "sizes" will satisfy all normal demands. How is the number of these "sizes" determined? Obviously by striking a balance between the (very slight) inconvenience of having a shoe that may be one sixteenth of an inch too long and the inconvenience of doubling or tripling the number of sizes. The same method is at the basis of the criminal law. The number of ways and circumstances, for instance, in which the life of one person can be destroyed by another is endless. What the law does is to group them into a small number of classes, viz., murder, homicide, manslaughter, etc., attempting to define the characteristics of each type in such a way that no one can take the life of a fellow-being in a way that society disapproves without falling in one or other of these groups. There is, of course, no logical reason why the division into groups should be so rough, and it is abstractly possible to carry the classification to any degree of fineness and discrimination, except that the difficulty of making juries understand the difference between murder in the second degree and manslaughter is already sufficiently great. It is foolish to attempt results more delicate than the instruments at your disposal will permit. Would we attempt to carve a delicately featured wooden statue with an ax? Judicial discretion in the individualization of punishment is simply an attempt to bring into the penal machinery a greater degree of discrimination than is practically possible by the prescription of hard and fast general rules. The same argument applies to legislative discretion. "If the legislature has power to fix the maximum number of hours in an industry to ten, then why not nine, etc.? Where are you going to draw the line?" The answer is that no such line can be drawn a priori, since we are dealing with a line that must necessarily vary in different industries and at different times. Jurists, like other men, are in their attitude to the employment of logic either intellectualists or mystics. The intellectualist not only trusts implicitly all the results of reasoning, but believes that no safe result can be obtained in any other way. Hence in law he emphasizes the rule rather than the decision. This, however, leads to an ignoring of the absurd consequences to which the logical application of rules frequently leads. Summa jus summa injuria. The mystics distrust reasoning. They have faith in intuition, sense, or feeling. "Men are wiser than they know," says Emerson, and the Autocrat of the Breakfast Table, who was not a stranger to the study of the law, adds, "You can hire logic, in the shape of a lawyer, to prove anything that you want to prove." But shall we subscribe to the primitive superstition that only the frenzied and the mentally beclouded are divinely inspired? Like other useful instruments, logic is very dangerous, and it requires great wisdom to use it properly. A logical science of law can help us digest our legal material, but we must get our food before we can digest it. The law draws its sap from feelings of justice and social need. It has grown and been improved by sensitively minded judges attending to the conflicting claims of the various interests before them, and leaving it to subsequent developments to demonstrate the full wisdom or unwisdom of the decision. The intellectualist would have the judge certain of everything before deciding, but this is impossible. Like other human efforts, the law must experiment, which always involves a leap into the dark future. But for that very reason the judge's feelings as to right and wrong must be logically and scientifically trained. The trained mind sees in a flash of intuition that which the untrained mind can succeed in seeing only after painfully treading many steps. They who scorn the idea of the judge as a logical automaton are apt to fall into the opposite error of exaggerating as irresistible the force of bias or prejudice. But the judge who realizes that all men are biased before listening to a case, is more likely to make a conscientious effort at impartiality than one who believes that elevation to the bench makes him at once an organ of infallible logical truth. A good deal of the wisdom of life is apt to appear foolishness to a narrow logic. We urge our horse down hill and yet put the brake on the wheel - clearly a contradictory process to a logic too proud to learn from experience. But a genuinely scientific logic would see in this humble illustration a symbol of that measured straining in opposite directions which is the essence of that homely wisdom which makes life livable. COLLEGE OF THE CITY OF NEW YORK. Morris R. Cohen. EQUITABLE RELIEF AGAINST DEFAMATION AND INJURIES TO PERSONALITY THE HE hesitation, if not downright refusal, of American law to allow preventive remedies in order to secure interests of personality, where redress by way of damages is often obviously inadequate or even wholly inapplicable, has frequently been criticised.1 Reading the American cases on this point, one may recall the words of Mr. Justice Holmes upon the subject of trespass ab initio: "It is revolting to have no better reason for a rule of law than that it was laid down in the reign of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since and the rule simply persists from blind imitation of the past.” 2 As he says, in the same address: "It does not follow because we all are compelled to take on faith at second hand most of the rules on which we base our action and our thought that each of us may not try to set some corner of his world in the order of reason, or that all of us collectively should not aspire to carry reason as far as it will go throughout the whole domain. . . . A body of law is more rational and more civilized when every rule it contains is referred articulately and definitely to an end which it subserves, and when the grounds for desiring that end are stated or are ready to be stated in words." 3 If the legal remedy for breach of a contract is inadequate to secure to the promisee his interest in a promised advantage which the law recognizes, he may have specific reparation in equity. If a tort results in injury to property for which the legal remedy of damages is wholly inadequate and the equitable remedy is practicable, the owner may have specific redress by restoration of the status quo. If a threatened tort involves injury to property for which the legal remedy is inadequate, making some allowance for difficulties as to 1 See, e. g., ABBOT, JUSTICE AND THE MODERN LAW, 32. 2 The Path of the Law, 10 HARV. L. REV. 457, 469. establishment of title at law, growing largely out of the unsatisfactory character of the old mode of trial in equity, we may say fairly that preventive relief is now normally available. But if an injury to personality is threatened, wholly destructive of plaintiff's dearest interests, we are told that his only recourse is the legal remedy of damages although no pecuniary measure can possibly be applied to the interest and no pecuniary standard to the wrong. May we give any reasons other than purely historical for a doctrine which at first blush is so arbitrary and unjust? Do the rules which our books still announce upon this subject rest upon any basis more legitimate than unintelligent adherence to the dicta of a great judge in the pioneer case? May we put this corner of the law in the order of reason by making the rules thereof conform to the general principle of concurrent jurisdiction where the legal remedy for a legal right is inadequate or by showing sound reason why, in this one spot, that general principle should not obtain? Three classes of cases have raised these questions recently: (1) Cases where injunctions were sought against defamation or disparagement of property, (2) cases where equity jurisdiction was invoked against injuries to privacy or to the domestic relations, and (3) cases of unlawful interference with social and political relations where the significant wrong was injury to feelings, sensibilities, and honor. Each of these classes involves peculiar difficulties. Hence it will be convenient to take them up separately. I DEFAMATION AND DISPARAGEMENT OF PROPERTY Defamation has a two-fold aspect. On the one hand it may be an injury to personality affecting the feelings, the sensibilities, the honor of the person defamed. On the other hand it may be an injury to substance, since credit plays so large a part in society that the confidence of one's fellows may be a valuable asset. Elsewhere I have tried to show the importance of distinguishing the two interests which are secured by the legal right of reputation. Such a distinction, strictly pursued, would preclude consideration of equitable relief against disparagement of property in the present 4 Interests of Personality, 28 HARV. L. REV. 445, 447. 5 "This is Bower's phrase for what we have been wont to call "slander of title." CODE OF ACTIONABLE DEFAMATION, 240, 241. It is to be preferred, since without disparaging |