claims once made for the so-called ethnological jurisprudence may well have gone too far. Thus it has been said: While equally with the individual each race depends on its heredity and bears the consequences thereof, the law is no more individual than any other social fact. It is the product of the group. The thought which emanates from the group is freed from physiological influence, since it emanates from other thoughts and not from an organic body. Consequently race has no influence upon institutions. White, yellow, or black of the same degree of development, placed in the same conditions, would reproduce exactly the same law, while remaining in their private psychology white, yellow, and black." 32 As Tourtoulon says of this, it is true that individual characters combine in the group, but they are not lost there. The argument that seeks to prove that race has nothing to do with law would demonstrate that the laws enacted by an assembly of drunk men would carry no trace of the merely personal drunkenness of each individual.33 More thorough study is required. But enough has been done at one point to yield valuable results. The problem of the relation of law and mixed races is becoming acute in some parts of the world, and the effect upon the law of a mixed race, whose members are moved by diverse ideals and are incapable of concerted action toward a common goal, is becoming manifest.34 Comparative study of primitive law is showing also that the relativity of jural principles has been much overrated since the downfall of the law-of-nature school. After a comparison of the laws of Hammurabi (B. C. 2285-2242) with the Salic Law (A. D. 466-511), Fehr says: Over and above race and nation there must be conditions of general validity governing the production of law. The fundamental forms of spiritual social life, from which the law springs, are more independent of race and nation than the historical school conceded. The likeness of law in cases of the most striking unlikeness of race can only be explained by a common human basis." 35 The philosophical type of bio-sociological theory of law proceeds in one form or another upon the idea of selection. In one form, the development of law is conceived as resulting from a conflict or 32 Tourtoulon, Les principes philosophiques de l'histoire du droit, 85, stating Durkheim's view. 34 Id. 125. 35 Hammurapi und das Salisches Recht, 136. 33 Id. 86. competition of legal institutions or of legal doctrines, from which those emerge which are most adapted to further the progress of the race. Accordingly law is held to be an aggregate of the means by which each group protects itself against hindrances to its continuance and to its progress found in the actions of certain of its members or in the hostility of other groups.36 A complete legal system is worked out in this way after a fashion that reminds one forcibly of the method of the metaphysical jurists. Thus with Richard the starting-point in every case is prohibitive intervention designed to obviate conflict. For example, society forbids its members to possess themselves by force or fraud of a good already possessed; it punishes theft, robbery, and plundering and so creates ownership. In the same way contract is developed by opposition from measures taken to repress deceit, fraud, abuse of trust and the like, the validity of an agreement concluded honestly and fairly being deduced ultimately by way of consequence.37 This type of sociological jurisprudence is quite as barren as the metaphysical jurisprudence which it imitates. Indeed, that sociological jurisprudence should take such a turn at all is but one more illustration of the influence of propinquity upon juristic thought. We' must remember that the metaphysical school was still alive and not without vigor in France at the very end of the nineteenth century. In another form of the philosophical type under consideration race-conflict or conflict of race ideas is made the basis. Enough has been said of ethnological interpretations heretofore. In still another form, which has had no little currency, class-conflict is taken as the basis, not, however, as in the mechanical sociology, by conceiving of class-conflict as fixing mechanically the whole 36 Richard, Origines de l'idée du droit, 5. Compare: "To my mind sociology is the study of adaptations of men (these are principally mental adaptations) to life in society. Law is one of these adaptations; the one which has for its end to combat by constraint the effects or the causes of certain defaults of adaptation which are considered intolerable. Juridical sociology is, then, the study of the mental adaptations of men living in society, which adaptations are destined to struggle by means of constraint against certain inadaptations of the same men. Considered from this point of view, the science of law appears a chapter of the natural history of man." Rolin, Prolégomènes à la science du droit, 4-5. The italics are in the original. Korkunov gives us the best version of this type of theory: "Legal development as a whole is a struggle of old law, unconsciously established, against new law consciously adopted." General Theory of Law (transl. by Hastings) 165. 37 Richard, Origines de l'idée du droit, 54-55. content of legal systems, but by conceiving of it as resulting in a process of selection by which, as it were, the unfit institution and the unfit rule are weeded out or by which the race or nation falls behind or is eliminated which does not develop and preserve the fit institution and the fit rule.38 The idea of selection through class-conflict has been urged chiefly by Vaccaro.39 In his view, law grows out of the struggle of social classes for supremacy. He does not deduce therefrom, however, that the sole function of law is to express the will of the dominant class for the time being "to crown the victor." 40 In quite another spirit from those who adhere to the imperative form of the economic interpretation," he says that its function is to adapt men to the social environment by determining the conditions of their coexistence.42 This is simply a sociological version of an idea which is to be found frequently in the writings of the metaphysical and historical jurists.43 The most important difference is in the insistence upon relativity. Thus, Vaccaro says: "The conditions of coexistence imposed by law are not those that ought to be in order to assure the greatest possible prosperity of all the associates, but those which result from the action and reaction of men as they are at a given historical moment." 44 38 "The institutions of civilized peoples have been considered as the product of a selection because societies which have not disciplined or organized themselves, which have practiced theft, violence, assassination, have been eliminated." Charmont, La renaissance du droit naturel, 119. It is noteworthy that Montesquieu had an idea not unlike this. See his description of the Troglodytes, who perished utterly because they wilfully violated contracts. Lettres Persanes, Lettre XIV et seq. 39 Le basi del diritto e dello stato (1893), translated by Gaure as Les bases sociologiques du droit et de l'état (1898). For an appreciation and critique, see Gumplowicz, Geschichte der Staatstheorien, § 137. 40 Brooks Adams in Centralization and the Law, 132. Here again the influence of propinquity upon juristic thought is manifest. Brooks Adams wrote in a country where analytical jurisprudence was one of the two prevailing methods. His lectures are full of attacks upon the orthodox analytical position. Yet his sociological theory is essentially analytical. Vaccaro wrote in a country where natural law was far from dead and the analytical theory almost unheard of. 42 Les bases sociologiques du droit et de l'état, 452. 66 43 E. g.:-"The sum of the conditions of social co-existence with regard to the activity of the community and of individuals." Pulszky, Theory of Law and Civil Society, 312 (1888). The power of coercion . . . necessary for the harmonious co-existence of the individual with the whole." Lioy, Philosophy of Right with Special Reference to the Principles and Development of Law (transl. by Hastie), II, 122 (1891). Les bases sociologiques du droit et de l'état, 452. The point will be more clear if Perhaps enough has been said to indicate that this idea of relativity, valuable as it is in enabling us to combat absolute ideas of justice and hard and fast schemes of supposed fundamental jural principles, may itself be carried too far. No action and reaction of men as they have been at any given moment since republican Rome will explain the long history of the doctrine of impossible and illegal conditions precedent in testaments; no theory of the power of a creditor class will explain the beneficium excussionis, its long and involved history in the modern world, and its tendency to disappear in favor of creditors at the very time when both law and public opinion are becoming more and more tender of debtors. But such matters are of more importance in legal systems and have more significance for jurisprudence than the short-lived penal legislation from which most of the data for the theories of class-struggle as the determining factor in legal history have been drawn. Such theories, however, have had an important consequence in directing attention to the unequal operation of doctrines derived by the nineteenth-century method of abstraction, when applied to a society in which industrial progress has resulted in sharply differentiated classes. A group of socialist-jurists has worked upon this matter with zeal and effect.45 Foremost among those who have examined actual legal systems with a view of ascertaining the relation of existing rules and doctrines to the interests of the industrial class is Anton Menger.46 The law of modern Continental Europe was reformulated in codes which, except in the case of the new code of the German Empire, for the most part antedate modern industrial conditions. Hence in this juristic new start the laborer was not taken into account at all.47 we compare this with Trendelenburg's formula: "The sum of those universal determinations of action through which it happens that the ethical whole and its parts may be preserved and further developed." Naturrecht, § 46. 45 See Berolzheimer, System der Rechts und Wirthschaftsphilosophie, § 40; Charmont, Le droit et l'esprit démocratique, chap. 2 (la socialisation du droit); Gumplowicz, Die soziologische Staatsidee, 115 et seq.; Stein, Die soziale Frage im Lichte der Philosophie, 2 ed., 336 et seq. "Das Recht auf den vollen Arbeitsertrag (1886, 3 ed., 1904); Das bürgerliche Recht und die besitzlosen Klassen (1889, 3 ed., 1904); Ueber die sozialen Aufgaben der Rechtswissenschaft (1895, 2 ed., 1905). 47 Compare Glasson's observations upon the French code: Le code civil et la question ouvrière, 6. Also Tissier, Le code civil et les classes ouvrières, Livre du centennaire du code civil, 71–94. Menger's comparisons of the interests which the law secures with those which it leaves unsecured showed that a situation had arisen for which the codes had made no provision. Indeed from the standpoint of class-struggle, it is said that the working class was left wholly out of the reckoning in the drawing up of the codes. This can hardly be maintained. The French code, which served as a model, was based chiefly upon the juristic writing of the century before and represents the law of a period when there was no such class to attract attention. But it is true of the codes of Continental Europe, as of our Anglo-American common law, that their abstractions, proceeding upon a theoretical equality, do not fit at all points a society divided into classes by conditions of industry. Much of what has been written in Europe from this standpoint might have been written by American social workers. Thus: "Insanitary housing, exorbitant rent, payment in advance, subjection to shop regulations, fixing of the method and the duration of work, fines, the sweating system,—all is covered by the fiction of liberty of contract. Meanwhile in fact liberty is suppressed." 48 In compelling study of the relation of law to social classes and so making for a socialization of the law, the group of socialist jurists has done a considerable service. The organismic type of bio-sociological theory of law is in reality a philosophical theory couched in bio-sociological terminology. Thus Fouillé says: "The laws of natural history are valid for nations, for at the same time that a nation is a work of voluntary consent it is also a natural organism." 49 Hence, he holds, the same laws of natural history obtain for national institutions, including legal systems. In application, however, his method is that of the metaphysical jurists, and his formula of law "The concrete and complete law, at the same time ideal and real, becomes the maximum of liberty, equal for all individuals, which is compatible with the maximum of liberty, of force and of interest for the social organism " 50 — 48 Andler, preface to the French version of Menger's Recht auf den vollen Arbeitsertrag (Droit au product integral du travail). 49 L'idée moderne du droit, 6 ed., 402 (1909). 50 Id. 394. |