interpretation and application of legal rules, to take more account, and more intelligent account, of the social facts upon which law must proceed and to which it is to be applied.94 More specifically, they insist upon six points:

(1) The first is study of the actual social effects of legal institutions and legal doctrines. Thus Kantorowicz says:

"I advise one who does not believe this to read a section of the German Civil Code in the following way: Let him ask himself with respect to each statement . . . what harms would social life undergo if instead of this statement the opposite were enacted. And then let him turn to all text-books, commentaries, monographs, and reports of decisions and see how many questions of this sort he will find answered and how many he will find even put. Characteristically, also, statistics upon civil law are almost wholly wanting, so that we can be sure of almost nothing as to the social function of civil law, particularly as to the measure of its realization. For instance, we only know that the Civil Code governs five forms of matrimonial property régime, but we have not the least suggestion in what numerical relation and in what geographical subdivisions the several forms occur now in social life." 95

94 "No glance strays over this Chinese wall into the region of social life for the regulation whereof these precepts were promulgated; that troubles the orthodox jurists as little as the uses which the builders of a machine may chance sometime to make of his formula troubles the pure mathematician." Kantorowicz, Rechtswissenschaft und Soziologie, 5. "So this means only remains: look over the Chinese wall into the region of social life in which it is the task of every rule of law to bring forth some sort of consequences." Id. 7. See also Vander Eycken, Méthode positive de l'interprétation, 109 et seq.; Holmes, The Path of the Law, 10 HARV. L. REV. 457, 467.

Perhaps the most effective study in this direction has been done in Professor Ehrlich's Seminar for Living Law." See Ehrlich, Die Erforschung des lebenden Rechts, Schmollers Jahrbuch, xxXV, 129 (1911). With us, a sign of a new tendency to take more account of the social facts involved in application of legal rules may be seen in the opinion of Winslow, C. J., in Borgnis v. Falk Co., 133 N. W. 209 (Wis., 1911). Reference should be made also to the well-known briefs of Mr. Brandeis in Muller v. State of Oregon, 208 U. S. 412, 28 Sup. Ct. 324 (1908), and Ritchie v. Wayman, 244 Ill. 509, 91 N. E. 695 (1910), and to the brief in State v. Cramer (Supreme Court of Ohio, Jan. 16, 1912). See Boyd, the Economic and Legal Basis of Compulsory Industrial Insurance for Workmen, ro Mich. L. Rev. 345. 5 Rechtswissenschaft und Soziologie, 8. In the United States we are even more backward. Proper statistics of the administration of civil justice, which are a prerequisite of intelligent reform of procedure, are not to be had except for the Municipal Court of Chicago. As to criminal law, see Robinson, History and Organization of Criminal Statistics in the United States (1911); Mayo-Smith, Statistics and Sociology, chap. 12 (1907); Ralston, The Delay in the Execution of Murderers, Paper Read Before the Pennsylvania Bar Association (1911).

(2) The second is sociological study in connection with legal study in preparation for legislation. The accepted scientific method has been to study other legislation analytically. Comparative legislation has been taken to be the best foundation for wise lawmaking. But it is not enough to compare the laws themselves. It is much more important to study their social operation and the effects which they produce, if any, when put in action.96

(3) The third is study of the means of making legal rules effective. This has been neglected almost entirely in the past. We have studied the making of law sedulously. It seems to have been assumed that, when made, law will enforce itself. This is true not only of legislation but also of that more important part of our law which rests in the reports. Almost the whole energy of our judicial system is employed in working out a consistent, logical, minutely precise body of precedents. The important part of our system is not the trial judge who dispenses justice to litigants but the judge of the appellate court who uses the litigation as a means of developing the law; and we judge the system by the output of written opinions and not by the actual results inter partes in concrete causes. But the life of the law is in its enforcement. Serious scientific study of how to make our huge annual output of legislation and judicial interpretation effective is imperative.97

(4) A means toward the end last considered is a sociological legal history; that is, study not merely of how doctrines have evolved and developed, considered solely as jural materials, but of what social effects the doctrines of the law have produced in the past and how they have produced them.98 Accordingly Kantorowicz

96 Legislative reference bureaus are beginning to do this work. See Reinsch, Bestrebungen zur Verbesserung der gesetzgeberischen Tätigkeit, Blätter für verglichende Rechtswissenschaft, viii, 246. Kantorowicz gives as an example: in preparation for housing legislation there should be inquiry as to "how far the statutory law of tenancy is silenced by contracts of leasing." Id. 9. See some sensible, practical remarks upon this phase of sociological jurisprudence in Tanon, L'évolution du droit et la conscience sociale, 3 ed., 196–202. An important recent work, largely from this standpoint, is Jethro Brown, The Underlying Principles of Modern Legislation (1912).

97 See my papers, the Need of a Sociological Jurisprudence, 19 Green Bag 607; Law in Books and Law in Action, 44 Am. L. Rev. 12.

98 "What method shall we employ in studying juridical phenomena? We shall have to investigate: what juridical phenomena are, their classification, the necessary and sufficient conditions in order that they be obligatory, their generality and their permanence. Comparative law can teach us already as to the comparative generality of a phenomenon. Legal history makes us aware of the comparative permanence

...

calls for a legal history which shall not deal with rules and doctrines apart from the economic and social history of their time, as if the causes of change in the law were always to be found in the legal phenomena of the past; a legal history that shall not try to show that the law of the past can give us an answer to every question, by systematic deduction, as if it were a system without hiatus and without antinomies.99 Instead it is to show us how the law of the past grew out of social, economic, and psychological conditions, how it accorded with or accommodated itself to them, and how far we can proceed upon that law as a basis, or in disregard of it, with well-grounded expectations of producing the results desired.100

(5) Another point is the importance of reasonable and just solutions of individual causes, too often sacrificed in the immediate past to the attempt to bring about an impossible degree of certainty. A whole literature has grown up in recent years upon this subject. In general the sociological jurists stand for what has been called equitable application of law; that is, they conceive of the legal rule as a general guide to the judge, leading him toward the just result, but insist that within wide limits he should be free to deal with the individual case, so as to meet the demands of justice between the parties and accord with the general reason of ordinary men.101

(6) Finally, the end, toward which the foregoing points are but some of the means, is to make effort more effective in achieving the purposes of law.102

of these phenomena. . . . One may seek to verify how far the degree of generality of a juridical phenomenon accords with its degree of permanence." Brugeilles, Le droit et la sociologie, 160.

99 Rechtswissenschaft und Sociologie, 30-34.

100 Dicey's Law and Public Opinion in England (1905) is a history of legislation from this standpoint. Compare Wigmore's history of the law of confessions. Evidence, I, § 865.

101 See some account of this doctrine in my paper, The Enforcement of Law, 20 Green Bag 401 (1908).

Out of the great mass of writing upon this subject in the past ten years, reference may be made to the following: Ehrlich, Freie Rechtsfindung und freie Rechtswissenschaft (1903); Gnæus Flavius (Kantorowicz), Der Kampf um die Rechtswissenschaft (1906); Fuchs, Recht und Wahrheit in unserer heutigen Justiz (1908); Oertmann, Gesetzeszwang und Richterfreiheit (1909); Gmelin, Quousque? Beiträge zur soziologischen Rechtsfindung (1910); Kantorowicz, Rechtswissenschaft und Soziologie, 11 et seq. (1911).

102 "The jurist must study the law teleologically; he must observe how the elements of law turn out in their respective working; whether their operation leads to useful or to harmful consequences, to consequences which accord with culture or to those which

Summarily stated, the sociological jurist pursues a comparative study of legal systems, legal doctrines, and legal institutions as social phenomena, and criticizes them with respect to their relation to social conditions and social progress. Comparing sociological jurists with jurists of the other schools, we may say:

1. They look more to the working of the law than to its abstract content.

2. They regard law as a social institution which may be improved by intelligent human effort, and hold it their duty to discover the best means of furthering and directing such effort.

3. They lay stress upon the social purposes which law subserves rather than upon sanction.

4. They urge that legal precepts are to be regarded more as guides to results which are socially just and less as inflexible molds.

5. Their philosophical views are very diverse. Beginning as positivists, recently they have adhered to some one of the groups of the social philosophical school, from which, indeed, the sociological school, on many essential points, is not easily distinguishable. While Professor Moore tells us that the time has come "in the development of the pragmatic movement for systematic and detailed applications of pragmatic conceptions and methods to specific problems, rather than further discussion of general principles," 103 unhappily discussion of general principles goes on and a pragmatist philosophy of law is yet to come. When it is promulgated it may expect many adherents from the sociological jurists.

HARVARD LAW SCHOOL.

Roscoe Pound.

oppose it; to consequences whereby values are appraised justly or unjustly." Kohler, Introduction to Rogge's Methodologische Vorstudien zu einer Kritik des Rechts, viii (1911).

103 Pragmatism and its Critics, Preface.

A PROBLEM IN THE DRAFTING OF WORKMEN'S COMPENSATION ACTS.

[I. - Concluded.]

THE purpose of these acts being to compensate workmen for

industrial accidents and not to insure workmen against want, it is evident that the employer is not bound to compensate the workman for his loss of earning power unless such loss be caused by the employment. The causal connection between the injury and the employment is the subject of two phrases in section 1 of both the English acts. A workman is entitled to compensation if "personal injury arising out of his employment . . . is caused to him. The words "is caused" are taken to relate to the connection between the accident and the harm suffered by the workman. The words "arising out of" point to the origin or cause of the accident, and are descriptive of its character or quality. They relate to the connection between the employment and the accident, the injury-producing occurrence.

Even admitting that the accident arose out of the employment, the master is only liable if the accident, and to the extent to which the accident, incapacitates the servant. All the cases in which the phrase "is caused" is considered, deal with this question. If the accident is regarded as "arising out of the employment," it is consistently held that in determining whether the physical incapacity which deprives the servant of his earning power is caused thereby to the workman, it is not relevant to say that it was not the natural or probable consequence of the accident or occurrence. The employer is bound to compensate the servant for all the results of the accident, however unexpected their extent; it is immaterial that such an accident or occurrence would not normally incapacitate the ordinary workman, or that such an accident would not, save under the most exceptional circumstances, result in any physical disability. The question whether the physical disability, the incapacity to labor, is caused by the accident, .or "where death results, the question whether it results from the injury, resolves itself into an inquiry, into the chain of causation." It is