ct to an ideal of our polity.

Later in the nineteenth century natural law as a deduction from
American institutions or from "free government" gave way to a
metaphysical-historical theory worked out in Continental Europe.
Natural rights were deductions from a fundamental metaphysically
demonstrable datum of individual free will, and natural law was an
ideal critique of positive law whereby to secure these rights in their
integrity. History showed us the idea of individual liberty realizing
itself in legal institutions and rules and doctrines; jurisprudence
developed this idea into its logical consequences and gave us a
critique of law whereby we might be delivered from futile attempts to
set up legal precepts beyond the necessary minimum for insuring the
harmonious co-existence of the individual and his fellows. This mode
of thought was well suited to a conception of law as standing between
the abstract individual and society and protecting the natural rights
of the former against the latter, which American law had derived from
the seventeenth-century contests in England between courts and crown.
It was easy to generalize this as a contest between the individual and
society, and it became more easy to do so when the common-law rights
of Englishmen secured by common-law courts against the crown had
become the natural rights of man secured to individual men as against
the state by the bills of rights.

Others in England and America turned to a utilitarian-analytical
theory. The legislator was to be guided by a principle of utility.
That which made for the greatest total of individual happiness was to
be the lawmaker's standard. The jurist was to find universal
principles by analysis of the actual law. He had nothing to do with
creative activity. His work was to be that of orderly logical
development of the principles reached by analysis of what he found
already given in the law and improvement of the form of the law by
system and logical reconciliation of details. As it was assumed that
the maximum of abstract individual free self-assertion was the maximum
of human happiness, in the result the legislator was to be busied with
formal improvement of the law and rendering it, as Bentham put it,
more "cognoscible," while the jurist was exercising a like restricted
function so far as he could work with materials afforded exclusively
by the law itself. Not unnaturally metaphysical and historical and
analytical jurists, at the