as a force, it is different from other forces, in that it is selective. To illustrate what I mean, instead of a planetary system let us imagine a flying machine in its flight. Now, the position of the flying machine at each instant (for argument's sake we take for granted that time could be divided into instants and space into points) 24 may be said to be a resultant of conflicting forces; but all the same it remains a human invention. Similarly, law in any stage. of its development and in any place is a resultant of conflicting forces, but 'tout de meme' it remains a human institution, invented either consciously or unconsciously by men to satisfy human needs. It might sound curious to speak of an unconscious invention. But in fact, most of the tools used by primitive peoples were unconscious inventions; they worshipped their own tools as sacred gifts from the gods, and this fully shows that they were not conscious of the fact that tools were their own inventions. The same thing is true of primitive laws, which, though inventions of men, were regarded as given by the gods.

The engineering interpretation is faithful to the original, because one can find, in the history of tool making, all the corresponding stages of the evolution of law making. Only I would like to remark that legal evolution has not gone so far as the evolution of engineering; for, in a century in which tool worship is out of question, we are still very near to conceiving of the laws as sacred gifts from our deified ancestors, and to regarding rights as derived from logic rather than as social functions. It has always seemed to me that progress of law consists, from the professional standpoint, in secularization. Law has been secularized from religion, from politics, and from morals; the next step seems to be a secularization of law from logical conceptions, which will be brought about by a purification of logic from all irrelevant stuff. A conceptual jurisprudence such as Stammler offers in his "Theorie der Rechtswissenschaft" is legitimate, because it regards itself as only the abstract part of juristic science and does not try to descend into details so as to interfere with life; "the jurisprudence of conceptions,"25 on the other hand, intends to monopolize the whole field and thus tends to

24. By this assumption we must not be understood as committing ourselves to the fallacy of Zeno with reference to the flying arrow. To us, motion is just as real a fact as the fact that we may make an hypothesis. 25. We must not lose sight of the concrete cases to which Pound has applied this name. His article on "Mechanical Jurisprudence" (Columbia L. Rev. December 1908) contains an inventory of the failures of the jurisprudence of conceptions. For mechanical administration of the law of nations, see the paper of E. D. Dickinson "Les Gouvernements ou Etats non reconnu en Droit Anglais et Americain" in Revue de Droit international et de Legislation comparée (1923 Nos 2-3).

confuse matter with form and life with logic. This is what Pound, no less than the Neo-Kantians, abhors.

As to the question whether Pound's engineering interpretation can serve as a safe guide for the legal development of the future, I think it can be answered in a very few words. No one knows anything definitely about the future; but the safe thing about the engineering interpretation is that it does not guarantee future progress which will largely depend upon the energy and skill of future engineers.

4. Pound's Theory of Social Interests.

Philosophy does not furnish motives, but it shows men that they are not fools for doing what they already want to do: Holmes, Collected Legal Papers.

In the last section, I ventured the remark that progress of law consists, from the professional point of view, in secularization; and I hinted at the desirability of secularizing law from logical conceptions. What I meant is that while we may study law in its logical aspects, we should by no means identify law with logic, any more than we should identify it with religion, politics, or morals.26 Identify it with the will of God, and human will becomes divine, immutable, intolerant, and intolerable; identify it with the authority of kings, and it begins to be capricious, arbitrary, and oppressive; identify it with the dictate of moral sense, and it assumes the dignity of the categorical imperative so as to square human conduct with the Procrustean bed; identify it with the soul of the people as the historical school did, and it is immediately transformed into an evil spirit sucking all the life-blood out of the nation;27 and finally, identify it with logic, and it soon degenerates into a mechanical rule invested with mysterious technicality. These identifications are all superstitions, a host of nebulous phantoms hovering around the enchanted word "law."28

Humanity has been groping after the reality, but has caught nothing but its shadow. Generation after generation, men have sought to explain the origin of legal phenomena in terms of mys

26. Law is a natural phenomenon in human society, a special form of social control, differentiated from the other forms. It is an extra-mental thing, and has an objective reality. Logic cannot grind out the laws any more than it can the cosmos.

27. For criticism of the historical school, Jhering's "Scherz u. Ernst in der Jurisprudenz" is still the most interesting book.

28. Cf. Sigm. Freud: "Words and magic were in the beginning the same thing, and even today words retain much of their magical power": "Introductory Lectures on Psycho-analysis" (London 1922) p. 13.

terious influences.29 Not only in their notions of law in general, but also in their administration of justice, do they betray their belief and unquestioning confidence in the mysterious influences. To illustrate, in the case of wager of battle and ordeals it was believed that the gods would intervene and administer justice to the parties according to their intrinsic merits; and torture was built upon the superstition that the hidden truth would jump out of the body of the accused when he was beaten. The doctrine of the weight of authorities seems to have originated in the fantastic notion that there was an invariable relation between justice and the number of noses. Again, the "jurisprudence of conceptions" is based on the unenlightened belief that whatever is logically consistent should necessarily be a rule of life, and that a definition implies the duty of enforcing it. Let us run our swords through all these humbugs, especially the last one, as it is the most subtle. It is not logic but its misapplication that hurts.30 In fact, a good logician would never mix up questions of logic with the problems of life. Bertrand Russell, who could deal very logically with the abstract notions of continuity, infinity, and causality, would, when he came to the problems of social reconstruction, speak in terms of impulses, desires, needs, purposes, creative activities, and effective action; and he could not tolerate for a moment that "ruthless logic" with which some schoolmasters would fain prove that the young men who died in the Great War "have been sacrificed unavoidably for some coldly abstract end."

1932

31

Rudolf Stammler, probably the most logical-minded jurist history has as yet known, is never tired of talking about adaptation of means to ends, in dealing with the ultimate function of law and legal philosophy.33 The point I am driving at is that merely because a thing happens to exist or happens to be logically explicable

29. We may still say with Santayana that "the costly experiments and disillusions of the past have not yet produced a complete enlightenment": "Life of Reason" Vol. I p. 66.

30. Pound, in his article on "Mechanical Jurisprudence," says: "I have referred to mechanical jurisprudence as scientific because those who administer it believe it such. We no longer hold anything scientific merely because it exhibits a rigid scheme of deductions from a priori conceptions.' But I would say that nothing could be too logical; the trouble with the mechanical jurisprudence is that it is not logical enough, as it is not the part of logic to exalt working hypotheses to the place of absolute principles. 31. I am referring to his book on "Our Knowledge of the External World" (London 1922). For our purpose, the lecture on the notion of cause, with applications to the free-will problem, is important.

32. Russell "Principles of Social Reconstruction" (London, 1917) pp. 247-8. 33. Stammler defines law as a sort of "Zwecksetzung," or purpose

arrangement.

does not give it any claim to our approval; nor, indeed, does it justify our prejudice against it. The question whether a thing is, is altogether different from the question whether it ought to be. Logical validity and moral justification are derived from totally different sources, and should be kept cleanly apart from each other. For instance, it is perfectly logical to say:

All men are sinners;

Paul is a man;

Ergo Paul is a sinner.

Likewise,

But it does not imply that Paul ought to be a sinner. from the formula: 1+1= 2, no conclusion must be drawn that one wrong should be added to another in order to make a couple. The same thing is true of law. The fact that a law has existed, even from time immemorial, does not imply that it should continue to exist. Stammler would inquire after das Recht des Rechtes, or the raison d'être of the law.35 Pound would inquire after its function in society. You enforce a statute, not because it is a statute, but because social interest of the time and place demands that it should be enforced.36 In such cases, it is true that it would not make much difference in point of fact, one way or the other.

But the center of gravity is shifted from the self centered statute to the social interest in its enforcement. From the professional point of view at least, this is no less important and radical a change in juristic thought than the Copernican revolution in astronomy. Moreover, in some doubtful cases, the law is not ready-made, but in the process of making;37 and there it would certainly make a great deal of practical difference whether the judges are guided by a theory of social interests or by the "jurisprudence of conceptions," for, while the former furnishes us with a conscious orienta

34. While I have accidentally mentioned Paul, it recalls to my mind St. Paul, who, in his Epistle to the Romans, describes most vividly his inner struggle between the is and the ought to be (Cap. vii). This seems to me to be symbolical of human history in general.

35. "Das Recht des Rechts" is a happy play of words which cannot be reproduced in English; the "right of the law" comes nearest to the original, using the word "right' in the sense of moral justification. Bergbohm criticizes this phrase as ambiguous: "Jurisprudenz u. Rechtsphilosophie" p. 146. But I am afraid he sticks too much to the letter.

36. John C. Gray, in his excellent book on "The Nature and Sources of the Law," first published in 1909 (2d ed. 1921), takes a realistic view of the law. He thinks that the statutes are not law, but merely raw materials to be moulded by the courts into definite shape. His remark: "Jurisprudence is, in truth, no more a formal science than physiology. As bones and muscles and nerves are the subject-matter of physiology, so the acts and forbearances of men and the events are the subject-matter of jurisprudence" (p. 145) is an anticipation of the sociological jurisprudence.

37. Cf. Winslow, C. J., in Borgnis v. Falk Co. 147 Wis. 327.

tion of law towards its end, the latter is a-groping in the dark and requires too much trust in the intervening Providence of logic. If we strip law of its lion's skin, we shall find it a donkey, which ought to serve us rather than to make us puzzled and frightened. Holmes has shown us the path along which the old donkey is to travel; Stammler has pointed to the final destination; Pound has made out a schedule of the multitudinous errands to be despatched by the donkey on his way. Here we are interested in the errands, and we shall presently see what they are.

As we have already seen, Pound is an out-and-out pragmatist. His philosophy of law is an embodiment of "the attitude of looking away from first things, principles, 'categories,' supposed necessities; and of looking towards last things, fruits, consequences, facts."38 The same pragmatic temperament which led James, as an ethical philosopher, to treat truth as "one species of good" impels Pound, as a juristic philosopher, to subsume rights under interests. James would ask: Why should man search for the truth, if it were not for the fact that it is good and beneficent? Pound would ask: Why does man seek to enforce a right, if it were not for the interest which stands behind it? Conceptually, every right is like every other, and the infringement of one right, no matter how little substantial value it may contain, is just as grave and reprehensible a matter as the infringement of any other right, since it would constitute a menace to all rights. This way of reasoning originated naturally enough in a social need of the security of individual rights from the arbitrary interference of the political power. It served as a safeguard against oppressive governments, and it fairly succeeded in discharging its function. While it was largely a product of the self-preservative instinct of human beings, the whole thing comes to us today as though the rights had consciously formed an alliance among themselves, to the effect that they would stand and fall together, and fight against the "hydra-head of arbitrariness and lawlessness" to the bitter end. In union and adhesion they found strength, for, as soon as any member of the holy alliance was attacked, a whole beehive would be stirred.

We see, then, that the "jurisprudence of conceptions" which today is so much decried by the advanced juristic thinkers was once a most faithful servant of humanity. Jhering, hostile as he was to a Begriffsjuriprudenz, touched unconsciously its mainspring, in his

38. James "Pragmatism" p. 45; see also Dewey "The Influence of Darwin on Philosophy, and Other Essays in Contemporary Thought" (New York 1910) p. 13.