papers in a number of cases addressed to the jurisdiction of the Star Chamber or one of its kindred quasi-courts. These documents are often exceedingly interesting to the antiquarian, but, even in the rare cases where the entire proceedings on the petition are extant, they add nothing to our knowledge of law - if indeed the Star Chamber could in any sense be regarded at this time as a court administering law. The introduction is both learned and interesting, but the only question of law mooted in it during its whole extent of one hundred and thirty pages is concerned with the right to prescribe for a villein in gross. The purpose of the Selden Society is "to encourage the study and advance the knowledge of the history of English Law." It is hardly too much to say that this volume is a valuable contribution to scholarship, but has no tendency to further the objects of the Society. With the Year Books of Edward II issuing at the speed of a snail, with those of Richard II still unpublished after more than five centuries, with the history of our law at its most interesting period still locked up in multitudes of unpublished rolls, and with the generation which instituted the Selden Society passing away without seeing its dream realized, the production of this matter on behalf of the Selden Society tends to make the judicious grieve. We may, however, hope for better things; for the volumes in preparation, besides more Year Books of Edward II, include a second volume of Professor Gross's Law Merchant, and a volume of Select Pleas in Ecclesiastical Courts.

One cannot criticize Mr. Leadam for not doing what he has not professed to do. Regarded as a study in institutional and economic history his Introduction is an excellent piece of work. If a lawyer is not especially interested in whether a suit in the Star Chamber should have begun with a letter of privy seal or a writ of subpoena, or whether it should be addressed to king or chancellor, or whether the members of the privy council and the judges of the common-law courts were real judges or only assessors in this court, these questions are of real and living interest to the antiquarian. And if the lawyer will find nothing new about the origin and development of the law of common, or of forestalling, or of vagabondage, the economic historian will be glad to find that the documents here printed are made the text for interesting essays on the scarcity and prices of corn, butter, and calves, on the inclosure disputes, on the quarrels of merchant and craft gilds, and on municipal expenses. We should be entirely glad to get this good work if it did not prevent us from getting what as lawyers we want even more.

Mr. Leadam's work is done carefully, lovingly, and in a scholarly manner. His proofreader, careful about the exact spelling of the Tudor documents, causes us to rub our eyes for a moment, in the report of an action begun tempore Henry VIII, by dating the decree November 7, 1911. Surely no court, even of Dickens' creation, could be so dilatory.

J. H. B.

HARVARD

LAW REVIEW.

VOL. XXV.

APRIL, 1912.

No. 6.

THE SCOPE AND PURPOSE OF SOCIOLOGICAL JURISPRUDENCE.

SOCIO

[Concluded.]
III.

SOCIOLOGICAL JURISPRUDENCE.

OCIOLOGICAL Jurisprudence is still formative. In diversity of view the sociological jurists but reflect the differences that exist among sociologists. This is no more a ground for denying that there is a sociological school or denying that there is a sociological method in jurisprudence, than the differences among philosophical jurists are ground for denying that there is a philosophical method.

In common with sociology, sociological jurisprudence has its origin in the positivist philosophers in the sense that each subject has a continuous development from Comte's positive philosophy. But both have long got beyond this and are now wholly independent of it. Nevertheless, there are those who appear to insist that sociological jurisprudence must be identified with a philosophical jurisprudence of the positivist type.1 Others, also, because sociological thought went through an anthropologicalethnological stage, both in the social sciences generally and in jurisprudence, assume that sociological jurisprudence can mean only

1 Berolzheimer, System der Rechts und Wirthschaftsphilosophie, II, 385-386; Charmont, La renaissance du droit naturel, 122-127.

a science of law based on anthropology and ethnology. In other words, some insist it must stand for a mechanical interpretation that regards law as the product of an inexorable mechanism of social forces. Others insist that it must stand for an ethnological interpretation; for a science of law developed from comparative study of primitive institutions or for a generalization from the jural materials gathered by a purely descriptive social science.3 Today, such views are held chiefly by the critics of sociological jurisprudence. But they have a certain warrant in an unhappy tendency in the earlier stages of the development of the new school to insist exclusively upon some one phase of social science or some one mode of investigation or some one interpretation. It is to be remembered, however, that all the methods of jurisprudence have suffered from a like tendency; that extreme assertions of an imperative theory at one time brought analytical jurisprudence into disfavor, that historical jurisprudence is now under a cloud because it was so long identified with Savigny's views as to law-making, and that philosophical jurisprudence has still to recover in some countries the ground it lost when it became identified with the metaphysical method of the last century. Sociological jurisprudence did not find itself at once, and some assert it has not yet done so. It has gone through several stages, of which some have

2 Del Vecchio, I presupposti filosofici della nozione del diritto, 86-93.

"What we call sociology is often no more than a mass of facts of experience which logically ought to belong to the science of universal comparative law, and, to speak more broadly, to the science of law from which they have only been excluded because of the over-narrow conception which has obtained heretofore. Institutions and phenomena of social life which, considered in a certain stage of evolution or under some better-known aspect, are indubitably of a juridical nature, are cast out of the official bounds of juridical science when they are presented in a more primitive form, among less civilized peoples or even among peoples of a different civilization. For example, a work upon the parental régime and the patrimonial régime of the Papuans or of the Bogos, and perhaps even of the Aztecs or of the Coreans, would have few chances of being taken into consideration by jurists, who do not like to go beyond the limits of the traditional culture. But such a work would easily find asylum in the often chaotic mass of facts and conjectures which we call sociology, which, in its defective systematization bears the mark of the imperfections of contemporary culture. The truth is that the only sociology which has a raison d'être is a treatise of the rules of method, common to different sciences, to be observed in the study of human facts." Del Vecchio, Sull' idea di una scienza del diritto universale comparato, 11 (1909).

"We employ the expression 'science of law' as synonymous with juridical sociology. It is a science that has yet to be constituted." Rolin, Prolégomènes à la science du droit, I.

been outgrown thoroughly, while others are still represented in current discussion. These stages must be distinguished and borne in mind if we are to understand either sociological jurisprudence or its critics. It is true that they can be distinguished only in a broad and general way. As in so many other cases where periods are to be set off, the lines must be drawn somewhat arbitrarily here and there, for the stages merge or overlap, and the whole course of development has not proceeded for half a century. But, with this reservation, there seems good warrant for holding that sociological jurisprudence has gone through three stages and has entered upon a fourth. These may be called (1) the mechanical stage, (2) the biological stage, (3) the psychological stage, and (4) the stage of unification.5

1. THE POSITIVISTS THE MECHANICAL STAGE."

7

It has been said that Comte's sociology was a "technology of social machinery, a handbook of the soulless forces which turned the wheels of the ages." Comte was a mathematician. Moreover, in the first half of the nineteenth century the central point in scientific thinking was the mechanism of the physical universe. Men's minds were fascinated by the idea of laws, mathematically demonstrable, which control the operations of nature, and for a season they took, as it were, a mathematical view; they sought to find mathematical or mechanical laws according to which all things came into existence and were governed in their course of existence. This type of thinking is to be seen in the first positive philosophies of law and in the first stage of sociological jurisprudence. It was the obvious result of the mental bent of the founder of sociology. But in jurisprudence it was especially congenial and so lingered

So far as they have to do with general sociology, the classification and the discussion following are based upon Small, The Meaning of Social Science, 71-85.

• Berolzheimer, System der Rechts und Wirthschaftsphilosophie, II, § 44; Gumplowicz, Philosophisches Staatsrecht (1877); Allgemeines Staatsrecht (3d edition of the former) (1907); Geschichte der Staatstheorien (1905) (see especially the appendix, Zur Kritik der juristischen Methode im Staatsrecht); Stein, Die soziale Frage im Lichte der Philosophie (1897, 2 ed., 1903) (especially the chapter, Ursprung und sozialer Charakter des Rechts).

7 Small, The Meaning of Social Science, 74.

8 A good account of this may be found in Carle, La vita del diritto, 2 ed., § 229. Compare Korkunov, General Theory of Law (transl. by Hastings) 265 et seq.

longer than elsewhere because of the influence of the historical school. Like the historical jurist, the first type of sociologist looked at law in its evolution, in its successive changes, and sought to relate these changes to the changes undergone by society itself." The historical jurist found metaphysical laws behind them. The positivist substituted physical laws. The result was the same. Each eliminated the old idea of right and with it all idealism in jurisprudence or legislation.10

A later form of what is essentially the same type of juristic sociology is to be seen in attempts to state all jural experience solely in terms of economics. The economic interpretation has been spoken of heretofore. In combination with positivist ideas, it has given rise to a sort of fatalist natural law. The old natural law called for search for an eternal body of principles to which the positive law must be made to conform. This new natural law calls for search for a body of rules governing legal development to which law must and will conform, do what we may. Whatever exists in law exists because of the operation of these rules. The operation of these same rules will change it and will change it in accordance with fixed and definite rules in every way comparable to those which determine the events of nature. The doctrine has been set forth in its most extreme form in America:

"Law is the resultant of the conflict of forces which arises from the struggle for existence among men. Ultimately these forces become fused under the necessity of obtaining expression through a single mouthpiece, and that fusion, effected under this pressure, we call the will of the sovereign. It is, however, the will of a sovereign precisely in the sense that the earth's orbit, which is a resultant of the conflict between centrifugal and centripetal force, is the will of a sovereign. Both the law and the orbit are necessities, and the one and the other have a like relation to an abstract idea of right and justice.'

On this relation of the positivists to the historical jurists, see Charmont, La renaissance du droit naturel, 117.

10 Id. 122. A similar coöperation with the type of analytical jurist who eliminates juridical idealism through insistence upon the imperative character of law and hence upon the sovereign will as the ultimate, self-sufficient source of legal rules, would have been possible had the two schools been brought in contact. Indeed a combination of positivism and of social utilitarianism may be seen in Vander Eycken, Méthode de l'interpretation juridique (1907).

11 Brooks Adams, in Centralization and the Law, 23 (1906).