¹ Hocking, W. E., Man and the State (New Haven, 1926), Part IIIGoogle Scholar.

² The Statesman's Book of John of Salisbury, trans, and ed. by Dickinson, John (New York, 1927), pp. xxii, 39, 130Google Scholar.

³ Fouillée, Alfred, “Synthesis of Idealism and Naturalism,” Modern French Legal Philosophy (Boston, 1916), p. 179,Google Scholar

⁴ Pound, Roscoe, An Introduction to the Philosophy of Law (New Haven, 1922), p. 72Google Scholar.

⁵ The idea of public law as related to the structure and function of government is of value in this connection. Sociological definitions of law, as in the works of Duguit, break down the historic distinction between public and private law. The principles of the public are to be properly drawn from public law.

⁶ Early American tradition thought of the people as distinct from the public. The people, though they might not have the right to vote or hold office, could participate in government ultimately by the right of revolution. See Smith, J. A., Growth and Decadence of Constitutional Government (New York, 1930), pp. 14–15, 172–175Google Scholar. The right of revolution complemented a restricted political participation. As the right of revolution is discredited, people and public have been assimilated, confusing the nature of the public. People is a political concept implying allegiance.

⁷ See Lowell, A. L., Public Opinion and Popular Government (New York, 1913)Google Scholar, and Lippmann, Walter, The Phantom Public (New York, 1925)Google Scholar. Lowell's idea that the people may have valid opinions as to how a problem may be settled is developed as a major thesis by Lippmann.

⁸ Cf. Dewey, John, The Public and its Problems (New York, 1927)Google Scholar. Dewey is really developing a thesis as to the nature of the state. The public, in his use of the term, is, when organized, the state. The burden of his argument applies to the consequences of non-governmental behavior rather than to the incidence of governmental action.

⁹ Cf. Bryce, Lord, Modern Democracies (New York, 1921), I, p. 430Google Scholar. “The public opinion of a people is the expression (as applied to politics) of the intelligence, taste, the temper and the moral feelings, of the individual citizens.” Italics are mine.

¹⁰ An indirect suggestion as to the nature of the public occurs in Gény, F., “Judicial Freedom of Decision …” Science of Legal Method (New York, 1921), p. 7Google Scholar. Gény objects to the idea of the legal historical school “that public opinion, representing the general feelings, more or less conscious, of the people interested, can legitimately suggest to the courts the solutions of juridical problems …” Italics are mine.

¹¹ Cf. von Ihering, Rudolph, Law as a Means to an End (Boston, 1913), pp. 223–224Google Scholar. This tendency in the analysis of the public appears in Alvarez, A., “Methods of Scientific Codification,” Science of Legal Method (New York, 1921), p. 430Google Scholar. Observing that political and legal science must train both the governing and the governed class, he says: “Does not the latter class, through the vote, participate in the conduct of a country's affairs? Does not its state of mind synthetically constitute public opinion?” If, however, we use the idea of the general will somewhat more loosely than the Idealists, it is an expression which indicates that there are common interests among the citizens of the state. It was on the basis of common interests and purposes that T. H. Green, in his Lectures on the Principles of Political Obligation, insisted that every one should have an opportunity or right to contribute to the general will. Lindsay, A. D., The Essentials of Democracy (Philadelphia, 1929), pp. 46, 78ffGoogle Scholar, has re-stated this point with great force. It might be added thatmuch of the specific case of the political pluralists is devoted to elaborating means whereby the participation of the individual may be made more vital. The re-statement of the problem of participation is one of their chief contributions.

¹² Hooking, op. cit., pp. 316, 404. The purely psychological approach to opinion chiefly suggests that the only important aspect for political science is behavior with an attendant emphasis on its irrationality. Without denying the importance of behavior, the suggestion is here made that will is equally important.

¹³ Lochner v. New York, 198 U. S. 45 (1905).

¹⁴ See Catlin, G. E. G., A Study of the Principles of Politics (New York, 1930), pp. 24–26Google Scholar.

¹⁵ Fouillée, op. cit., pp. 158, 179–188. As Vinogradoff points out (Outlines of Historical Jurisprudence, Oxford, 1920, I, 37Google Scholar), consciousness once created becomes a powerful agent in itself and one of the means of carrying on evolution. This has been clearly emphasized by Fouillée. Rightly understood, his theory of ideas as forces gets rid of the supposed passivity of the mind and lays stress on the most elemental form of its conscious reaction against the outer world. Cf. Dewey, op. cit., Chap. I.

¹⁶ Cf. Berolzheimer, Fritz, The World's Legal Philosophies (New York, 1912), pp. 64, 68, 83–84, 151Google Scholar, passim.

¹⁷ “The people,” said Cicero, “although ignorant, yet are capable of appreciating the truth, and yield to it readily when it is presented to them by a man whom they esteem worthy of their confidence.” Machiavelli, Niccolo, Historical, Political, and Diplomatic Writings: Discourses (tr. Detmold, C. E., Boston, 1882), II, 106Google Scholar. Cf. Sidgwick, Henry, The Development of European Polity (London, 1903), p. 109Google Scholar. In explaining the errors of public opinion, we may take as a cause the sin of Adam, as Christian theology formerly did; its lack of wisdom or true experience; its lack of intelligence; or its lack of instruction. Laski, in harmony with modern writers, emphasizes the importance of the instructed judgment. A Grammar of Politics (New Haven, 1925), pp. 146–147Google Scholar.

¹⁸ Duguit, Léon, “Theory of Objective Law Anterior to the State,” Modern French Legal Philosophy (Boston, 1916), pp. 267, 272, 294Google Scholar. See Catlin, , Principles, p. 225Google Scholar: “For this combination which involves a measure of community interest and an interdependence which is thought of as in some measure a free act of will, rising above bare mutualism, the term ‘solidarity’ has been put forward by the French school of thought. …” Hocking, op. cit., p. 383: “The affirmation of the state is deeper than conscious acquiescence, deeper also than fear, deep as the instinctive sense of the necessities of personal growth.”

¹⁹ The historical school of jurisprudence in the nineteenth century deserves great credit for insisting on the development of ideas. As Pound, says: “The historical school insisted on the social pressure behind rules where the philosophical school of the preceding centuries had insisted on the intrinsic force of the just rule as binding upon a moral entity and the analytical school later insisted upon the force of politically organized society.” Interpretations of Legal History (New York, 1923), p. 18Google Scholar.

²⁰ See Public Opinion, pp. 81 ff. Cf. Wurzel, K. G., “Methods of Juridical Thinking,” Science of Legal Method (New York, 1921), pp. 339–342Google Scholar, for emphasis on images in the formation of concepts, which are viewed as groups of images connected by memory. Yet Wurzel makes the will the foundation of logical thinking, with logic as a directive power in language and the body of concepts. On p. 371, he shows how valuations make up the great part of our thinking.

²¹ Public Opinion, pp. 87–92, 125, 133, 197, 254, 351. See also The Phantom Public (New York, 1925), pp. 65 ffGoogle Scholar, 127, 128.

²² Public Opinion, p. 254.

²³ For instance, Machiavelli follows Hesiod in stating that the voice of the people (when not corrupted) is the voice of God, but he stresses, in harmony with the above view (divine will being stable), the permanence of popular ideas. Op. cit., II, 217. Cf. the statement of Mr. Justice Holmes (233 U. S. 389): “The universal sense of a people cannot be accidental; its persistence saves it from the charge of unconsidered impulse. …” Mr. Justice Brown said (163 U. S. 537): “The argument also assumes that social prejudices may be overcome by legislation. …” See Catlin, G. E. G., The Science and Method of Politics (New York, 1927), p. 167Google Scholar.

²⁴ See Sorokin, Pitirim, Contemporary Sociological Theories (New York, 1928), p. 710Google Scholar: “When one reads attentively the existing discussions about the rô1e of belief, opinion, ceremony, law, arts, religion, morals, and so on, he may easily discover that under the names of these various agencies there are, to a great extent, identical ‘forces.’ In this way the same agency is counted several times. The theories identify what is different, and separate what is identical.”

²⁵ Cf. Lippmann's views on the transfer of stereotypes to new issues as stated in Public Opinion; Lowell's limitations on the type of questions which may be treated by the public and his insistence on the element of choice between two opposing views, as set forth in his Public Opinion and Popular Government; King, C. L., “Public Opinion in Government,” Introduction to Graves, W. B., Readings in Public Opinion (New York, 1928)Google Scholar; Munro, W. B., “The Pendulum in Politics,” 154 Harper's Monthly (1927), 718–725Google Scholar.

²⁶ Ogburn, W. F., Social Change with Respect to Culture and Original Nature (New York, 1922)Google Scholar, passim.

²⁷ Dewey, op. cit., p. 7. Hocking, op. cit., p. 260, for the functioning of small groups in generating new ideas. Of course, it is the interpretation of mechanical civilization which will change.

²⁸ See Dewey, op. cit., passim; Park, R. E. and Burgess, E. W., Introduction to the Science of Sociology (Chicago, 1921), pp. 280–287Google Scholar. Cf. the discussion of Giddings' views by King, C. L., “Public Opinion as Viewed by Eminent Political Theorists,’ University Lectures, 1915–1916 (University of Pennsylvania Press, 1916), III, 442Google Scholar. In connection with group aspects of opinion, we may ask: What is international public opinion? First, we may deny that there is anything organic in it: it is merely the sum of the public opinion of various countries. Second, granting a legal unity to the states in the League system, there may be a rudimentary international public taking shape in so far as the League involves a system of international legal participation. International public opinion, of course, must be strictly differentiated from public opinion on foreign affairs.

²⁹ See Catlin, G. E. G., The Science and Method of Politics (New York, 1927), p. 96Google Scholar. But see also Dickinson, John, “Democratic Realities and Democratic Dogma,” in this Review, Vol. 24, p. 305 (May, 1930)Google Scholar.

³⁰ See C. L. King, loc. cit., in Graves, op. cit., pp. xxi–xxxi. Cf. Lowell's distinction between “real” opinion and that which is not “real,” and between impression and opinion. Public Opinion and Popular Government, Chap, IV; Public Opinion in War and Peace (Cambridge, 1923), Chap. IGoogle Scholar. See Rice, Stuart A., Quantitative Methods, in Politics (New York, 1928), p. 51Google Scholar, for the conclusions of the Second National Conference on the Science of Politics: (1) opinion need not be the result of a rational process; (2) it need not include an awareness of choice; and (3) it must be sufficiently clear or definite to create a disposition to act upon it under favorable circumstances.

³¹ Catlin, , Principles, pp. 48–49Google Scholar: “In fact, however, it is a commonplace that unity of social ideal is not something which comes by nature, but that it is something wrought by the influences which play upon public opinion. … The study of true ideas is not of itself the study of social forces.”

³² Cf. Eldridge, Seba, The New Citizenship (New York, 1929), pp. 80 ff.Google Scholar

³³ Cf. Ryan, John A. and Millar, M. F. X., The State and the Church (New York, 1922)Google Scholar, passim.

³⁴ Hocking, op. cit., p. 384.

³⁵ Virtue, not opinion, said Penn, is the cement of society. Gooch, G. P., Political Thought in England from Bacon to Halifax (London, 1914–1915), p. 226Google Scholar. Said John of Salisbury: “Vain is the authority of all laws except it bear the image of the divine law; and useless is the decree of the Prince unless it be conformable to the discipline of the Church.” Poole, R. L., Illustrations of the History of Medieval Thought and Learning (2nd. ed., New York, 1920), p. 206Google Scholar. Democratic theory and practice has succeeded to a certain extent in repudiating this restriction on the majority by discrediting natural law. Smith, op. cit., Chap. VIII. But cf. Wu, J. H. C., “The Juristic Philosophy of Roscoe Pound,” 18 Illinois Law Review (1829) 302Google Scholar: “Such general notions as ‘due process of law,’ ‘reasonableness,’ ‘natural law,’ receive their contents continually from the social psychology, or in a more familiar expression, the ‘public opinion.’ … In the mechanism of law, the above-mentioned general notions are empty vessels through which public opinion is continually conducted to the interior of the machine.” Cf. Fouillée, op. cit., p. 202.

³⁶ Ryan, John A., Catholic Doctrine on the Bight of Self-Government (New York, 1920), p. 4Google Scholar.

³⁷ Hocking, loc. cit. “But whatever the machinery of decision, since it is to establish a deed which is the deed of all, the test of its rightness is an eventual unamimity of approval. No present majority, however large, can evade this ultimate test.”

³⁸ Cf. Warren, Charles, The Supreme Court in United States History (Boston, 1922), I, Chap, IGoogle Scholar; II, p. 460; Dickinson, op. cit., p. 290. Cf. Catlin, , Principles, p. 443Google Scholar: “Law, then, does not depend solely upon opinion, but also upon the facts of the social structure.” See also Haines, C. G., The Revival of Natural Law Concepts (Cambridge, 1930)Google Scholar, which shows in detail the use of natural law ideas by American judges.

³⁹ Maclver, R. M., The Modern State (Oxford, 1926), p. 40Google Scholar.

⁴⁰ Catlin, ibid., pp. 85–86.

⁴¹ Cf. Chase, Stuart, “One Billion Wild Horses,” League for Industrial Democracy (New York, 1930)Google Scholar, passim. See Lippmann, Walter, A Preface to Morals (New York, 1929)Google Scholar, passim.

⁴² A complex environment is a great limitation on the action of public opinion. The “unseen environment,” according to Lippmann, adds greatly to the actual complexity of society. He sees it, however, primarily as a problem in the organization and distribution of intelligence. Public Opinion, pp. 270, 345, 369–418. Cf. Demogue, René, “Analysis of Fundamental Notions,” Modern French Legal Philosophy (Boston, 1916), pp. 376–377, 410, 430, 539–540, 569Google Scholar. It might be added that in some ways the rise of dictatorship is an expression of the objective needs of society. Under dictatorship, the function of opinion is to support the leader, and the dictator in turn must achieve the technological integration of the state.

⁴³ Dewey, op. cit., p. 107.

⁴⁴ Ibid., p. 108. See Pound, Roscoe, The Spirit of the Common Law (Boston, 1921), pp. 165, 192, 195–196Google Scholar.

⁴⁶ Pound, Roscoe, Introduction to the Philosophy of Law, pp. 137–138Google Scholar. Another way of stating this fundamental principle of the action of public opinion is to indicate that opinion is effective within those limits in which political discussion is effective, in which discussion may discover the principles of common purpose in society Lindsay, op. cit., pp. 53ff. It can be argued that the term “real” opinion may be used here to denote the area of the creativeness of opinion, and that opinion on objective factors is “non-real” opinion. Ibid., p. 57. Opinion on subjects outside of the competence of opinion, or of the individual, must of necessity be somewhat doubtful. Ibid., p. 58.

⁴⁶ Cf. Taft's opinion in Truax v. Corrigan, 257 U.S. 312 (1921); Smith, op. cit., Chap, v; Charles, and Beard, Mary, The Rise of American Civilization (New York, 1930), I, 295–296Google Scholar; Pound, , The Spirit of the Common Law, pp. 83–84Google Scholar. Cf. Berolzheimer, op. cit., p. xliii. He denies that progress is the issue of conscious, rational, and deliberate striving as depicted in the utilitarian view. “History shows that the ends striven for and attained are not correctly formulated in consciousness; the alleged purpose and the achieved accomplishment are rarely the same.” See also Stammler, Rudolph, The Theory of Justice (New York, 1925), Appendix II, p. 574Google Scholar; Duguit, op. cit., passim, for a treatment of social solidarity; Catlin, , Science and Method of Politics, pp. 160 ff.Google Scholar

⁴⁷ Cf. Bliven, Bruce, “Who Makes our Foreign Policy,” New Republic, April 6, 1927, pp. 187 ff.Google Scholar; White, L. D., Introduction to the Study of Public Administration (New York, 1929), pp. 475–476Google Scholar.

⁴⁸ See Kohler, Josef, “Judicial Interpretation of Enacted Law,” Science of Legal Method (New York, 1921), p. 188Google Scholar. We may admit that force-ideas are not entirely produced by individual minds. Kohler remarks: “We have entirely overlooked the fact that the legislator is a man of his age, completely saturated with the ideas of his time, completely filled with the civilization surrounding him. …”

⁴⁹ Lippmann believes in the creativeness of opinion in his Public Opinion (e.g., p. 159), but in The Phantom Public his concept of the public is based on the uncreative character of opinion. His idea of the rules of the game as simple and external is simply untrue, for it is into the construction of these rules that the best of human thought has been poured for centuries. The rules of the game are the real problems of valuation; they imply valuations. The externality view of opinion in The Phantom Public seems also to contradict the theory of “government in the people” in A Preface to Morals. See Sorokin, op. cit., pp. 706–709, for an opposite view of Lippmann's position in Public Opinion.

⁵⁰ Robinson, J. H., “The Still Small Voice of the Herd,” Political Science Quarterly, Vol. 32, pp. 312–319 (1917)CrossRefGoogle Scholar.

⁵¹ Hocking, op. cit., p. 380.

⁵² Op. cit., I, p. 39. See Miraglia, Luigi, Comparative Legal Philosophy (Boston, 1912), p. 188Google Scholar: “Volition is the act of that energy accumulated by reflection, judgment, and abstract ideation, and is accomplished by a feeling of effort or tendency which a latent activity, overcoming obstacles and expanding, has for self-realization. … Energy is constituted little by little by that freedom which is not a lack of motive but an autonomy of deliberation.”

⁵³ Catlin, , Principles, pp. 49, 56Google Scholar, note 1.