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Thus Kohler's doctrine calls for an understanding of the social history of a people and of its relation to law, whereas in the past we have looked to political history and the relation thereof to legal systems. Moreover, he conceives that legal history affords generalizations which are fundamental for the philosophy of law. By comparative study, we are able to construct a universal legal history which has for its task to show
"how the law has developed in the course of history, and in connection with the history of culture, to show what results in the culture of a people have been bound up in law, how the culture of a people has been conditioned by law and how law has furthered the progress of culture.” 68
In this way history is to be used to enforce the lesson that law must grow and to point the goal and indicate the means of growth, instead of being used to show the futility of conscious change as in the nineteenth century.
But Kohler's most important contribution is his theory of sociological interpretation and application of law. This deserves to be set forth in his own words:
“Thus far we have overlooked most unfortunately the sociological significance of law-making. While we had come to the conviction that it was not the individual who made history but the totality of peoples, in law-making we recognized as the efficient agency only the person of the law-maker. We overlooked completely that the law-maker is the man of his time, thoroughly saturated with the thoughts of his time, thoroughly filled with the culture that surrounds him, that he works with the views and conceptions which are drawn from his sphere of culture, that he speaks with words that have a century of history behind them and whose meanings were fixed by the sociological process of a thousand years of linguistic development, and not through the personality of the individual. The opinion that the will of the law-maker is controlling in construing legislation is only an instance of the unhistorical treatment of the facts of the world's history and should disappear entirely from jurisprudence. Hence the principle: rules of law are not to be interpreted according to the thought and will of the law-maker, but they are to be interpreted sociologically, they are to be interpreted as products of the whole people, whose organ the law-maker has become.” 69 8. THE REVIVAL OF NATURAL LAW IN FRANCE.70
68 Rechtsphilosophie und Universalrechtsgeschichte, $ 8. 69 Lehrbuch des bürgerlichen Rechts, I, § 38.
In France also the influence of Savigny established the tenets of the historical school, and the philosophical method, while not abandoned entirely, as is demonstrated by a continuous succession of treatises extending through the whole course of the nineteenth century, for a season commanded little attention.72 But the dominance of the historical school was much less complete than in Germany. France had a code, and that code remained the model for new codes in every part of the world until the new German code went into effect in 1900. Hence historical jurisprudence in France had merely the easy task of overthrowing the eighteenth-century law of nature. No other object of attack was at hand. It helped push “juridical idealism" into the background for a time. But the active force was rather the positivists and the older type of sociologists, who became the leaders of French juristic thought in the latter part of the nineteenth century. Presently the movement to bring the law into accord with life which began with Jhering, the vigorous development of the social sciences in France, and a resulting agitation for greater flexibility in the application of legal rules,73 here as elsewhere brought about a new development of philosophical jurisprudence. In France, however, for the reasons suggested above, the movement represents a reaction not only from the historical school but from the positivists and the older type of sociologists as well.
Charmont puts the beginning of the movement as far back as 1891, the date of Beudant's Droit individuel et l'état.74 But it is hard to see a forerunner in that vigorous and well written assertion of the individualist view as to the state. Written in a period which called for political idealism, its main purpose was to vindicate the
70 Charmont, La renaissance du droit naturel (1910); Demogue, Les notions fondamentales du droit privé, 21 et seq. (1911).
71 See some account of these and of the decadence of philosophy of law in nineteenthcentury France in the preface to Boistel, Cours de philosophie du droit, I, iii-xiv.
72 See the apologetic prefaces to Courcelle Seneuil, Préparation à l'étude du droit (1887); Beaussire, Les principes du droit (1888); Vareilles-Sommières, Les principes fondamentaux du droit (1889).
73 The leader of this movement, which has had a very important bearing upon recent juristic thought on the Continent, was Gény, Méthode d'interpretation (1899).
74 La renaissance du droit naturel, 128.
individual as against the state, which it sought to do by going back to the declaration of the rights of man, reasserting the political theory of natural law, and founding law upon reason. This return to natural law in its eighteenth-century form was quite another thing than the revival of the idealistic interpretation which is the enduring possession of philosophical jurisprudence. The decisive impetus seems to have come from Stammler, whose Wirthschaft und Recht was made the subject of comment by Saleilles in 1902. Stammler's striking phrase "natural law with changing content" served in name to bridge the gap between the old natural law and the new.
But in truth beyond the name they have in common only the critical attitude and the insistence upon ideals which must characterize all philosophical jurisprudence.
It is interesting to note that the paper which may be regarded as marking the turning point in France did not come from an exponent of the philosophy of law. At the very end of the nineteenth century Boistel proceeded by deducing a whole system from an individualist principle of respect for personality and thus gave us simply a modernized metaphysical jurisprudence. 76 Stammler's ideas were taken up instead by an avowed adherent of the historical method 77 who at the same time was a leader in the field of comparative law.78 Thus the factors in the revival in France appear to be three: the influence of Stammler's doctrine, the survival of philosophical jurisprudence both of the eighteenth-century and of the metaphysical type, and, not least, the verification of the idealistic interpretation by comparative law.
Two extracts will show the spirit of the new juristic thought in France. In the paper referred to Saleilles says:
"What does not change is the fact that there is a justice to be realized here below, the sentiment that we owe to all respect for their right, according to the measure of social justice and social order. But what shall be this measure, what shall be this justice, what shall be this social order ? No one can say a priori. All these questions depend upon certain social facts with which the law comes in contact. These facts change, evolve, and are transformed. But that depends also upon the conceptions one frames as to justice, as to authority and liberty, as to the right of the community and the rights of individuals, as to the proportion to be established in the incessant strife between these opposing forces; and this proportion varies and alternates.” 79
75 L'école historique et droit naturel d'après quelques ouvrages recents, Revue trimestrielle de droit civil, I, 80 (1902).
78 Cours de philosophie du droit (1899). 77 See ante, note 53.
78 See a brief notice of Professor Saleilles and of his writings upon comparative law in my introduction to the English version of his Individualisation of Punishment.
"The idea of natural law, then, is conceived differently than it was formerly. It rests upon a different basis. At the same time it undergoes certain transformations. It is reconciled with the idea of evolution and with the idea of utility. It loses its absolute and immovable character. It has only a variable content. It takes account of the interdependence of the individual and of the whole. It tends also to reconcile the individual conscience and the law instead of putting them in opposition. In so transforming, juridical idealism is not weakened. On the contrary it is strengthened and broadened.” 80
Perhaps Demogue states it as well as it can be stated in saying that the new juridical idealism seeks “the ideal of an epoch" instead of endeavoring to realize an absolute ideal. 81 This means that the historical school and the philosophical school have come together in France, as the historical school and the analytical school came together in England. The historical jurists overthrew the old edifice of a law of nature and showed the futility of attempts to deduce a universal model code from abstract principles. But their attempt to find all the principles of law for the present and the future in the past proved futile also. Each has had to concede something. The philosophical jurist has been driven to concede the relativity of juristic ideals; the historical jurist finds himself driven to concede that ideals of right and justice have always been the motive force in periods of development and are needed to preserve life in the law. He is forced to admit that the past does not furnish all the materials for a healthy criticism. Thus we get a school of jurists who preserve and apply the historical method and at the same time preserve and apply the philosophical method; using the one to explain and the other to criticize the materials of existing law. History enables us to understand what we have and to perceive what we may hope to do with it. Philosophy enables us to understand the measure by which it should be judged and the extent to which our juridical material conforms thereto.
79 L'école historique et droit naturel, Revue trimestrielle de droit civil, I, 80, 98. 80 La renaissance du droit naturel, 217–218. & Les notions fondamentales du droit privé, 22.
The mechanical ideas of the positivists and of the older sociologists have likewise been given over. In the end they were leading to the same condition of juristic stagnation to which the historical school had led us. As Demogue puts it:
“In spite of the historical school, in spite of the importance of the sociological school which in its turn believed it could limit everything to study of the laws of evolution, we believe in the necessity of an ideal; for there is in human activity a certain element of the conscious, of the willed, which must be directed. To deny this is to put the laws of the physical world in the same rank with the principles of human action and to reduce the law to a descriptive study. It is also to refuse to guide the law-maker." 82
It is not an accident that something very like a resurrection of natural law is going on the world over in the wake of the psychological movement in sociology.&
9. THE ECONOMIC INTERPRETATION. 84
The relation of law to political science and economics is such that it was to be expected that the Marxian economic interpretation of history would be taken up in jurisprudence. This did happen. But it was long in coming and the progress of the idea in jurisprudence has been slight. Yet no account of contemporary juristic thought would be complete without some statement of the doctrine and of its applications to jurisprudence.
Seven ways of interpreting history have been recognized.85 The
82 Ibid. Sociologists today make the same criticism of the older sociological methods. Small, General Sociology, 636-639.
83 See the use of Ahrens and Röder by Adler in his paper upon Persönlichkeitsrechte in Festschrift zur Jahrhundertfeier des allgemeinen bürgerlichen Gesetzbuches, 165, 175 et seq.; the “strengthening of the philosophical portion” in recent German texts, e. g. Gareis, Science of Law (Kocourek's transl.), xx; and Bigelow's attempt to found a sociological natural law, Centralization and Law, Lectures III and IV.
84 Berolzheimer, System der Rechts und Wirthschaftsphilosophie, II, § 38, i; Stammler, Wirthschaft und Recht, 22-80; Menger, Neue Staatslehre, 2 ed., 16-27; Gumplowicz, Geschichte der Staatstheorien, 371 et seq.; Berolzheimer, Rechtsphilosophische Studien, 81 et seq.; Croce, Riduzione della filosofia del diritto alla filosofia dell'economia.
85 In my account of this I have relied upon Seligman, The Economic Interpretation