IRKIlIf

LIBRARY
UNIVERSITY OP
CALKORNIA
THE MODERN LEGAL PHILOSOPHY
SERIES

General Theory of Law

 THE MODERN LEGAL PHILOSOPHY
SERIES

Edited by a Committee of the

ASSOCIATION OF AMERICAN LAW SCHOOLS

INTRODUCTION TO THE SCIENCE OF LAW. By KARL

GAREISof the University of Munich. Translated by ALBERT
KOCOUREK of Northwestern University.
THE WORLD'S LEGAL PHILOSOPHIES. By FRITZ BEROLZ-
HEIMER of Berlin. Translated by RACHEL S. JASTROW.

COMPARATIVE LEGAL PHILOSOPHY, applied to Legal

Institutions. By LUIGI MIRAGLIA of the University of
Naples. Translated by JOHN LISLE of L'IC Philadelphia Bar.

GENERAL THEORY OF LAW. By N. M. KORKUNOV of the

University of St. Petersburg. Translated by W. G. HASTINGS
of the University of Nebraska.

LAW AS A MEANS TO AN END. By RUDOLF VON IHERING

of the University of Berlin. Translated by ISAAC HUSIK of
. the University of Pennsylvania.

MODERN FRENCH LEGAL PHILOSOPHY. By A. FOUILLEE,

J. CHARMONT, L. DUGUIT and R. DEMOGUE of the Uni-
versities of Paris, Montpellier, Bordeaux and Lille. Trans-
lated by MRS. F. W. SCOTT and JOSEPH P. CHAMBERLAIN.
SCIENCE OF LEGAL METHOD, SELECT ESSAYS. By
Various Writers.

THE FORMAL BASES OF LAW. By G. DEL VECCHIO of the

University of Bologna. Translated by JOHN LISLE of the

Philadelphia Bar.

THE PHILOSOPHY OF LAW. By JOSEF KOHLER of the Uni-

versity of Berlin. Translated by ADALBERT ALBRECHT.
 Modern Legal Philosophy Series: IV

GENERAL THEORY
OF LAW
BY
N. M. KORKUNOV
LATE PROFESSOR OF PUBLIC LAW
UNIVERSITY OF ST. PETERSBURG

ENGLISH TRANSLATION
BY
W. G. HASTINGS
DEAN OP THE LAW FACULTY, UNIVERSITY OF NEBRASKA

SECOND EDITION

flew
THE MACMILLAN COMPANY
1922
All rights reserved
PRINTED IN THE UNITED STATES OF AMERICA

'

LOAN STACK

COPYRIGHT, 1909,
BY THE MACMILLAN COMPANY

New edition with corrections January, 1922.

EDITORIAL COMMITTEE OF THE ASSOCIATION
OF AMERICAN LAW SCHOOLS

MORRIS R. COHEN, Professor of Philosophy, College of the City of

New York.
JOSEPH H. DRAKE, Professor of Law, University of Michigan.
ALBERT KOCOUREK, Professor of Law, Northwestern University.
ERNEST G. LORENZEN, Professor of Law, Yale University.
FLOYD R. MECHEM, Professor of Law, University of Chicago.
ROSCOE POUND, Professor of Law, Harvard University.
ARTHUR W. SPENCER, Brookline, Mass.
JOHN H. WIGMORE, Chairman, Professor of Law, Northwestern
University.

LIST OF TRANSLATORS
ADALBERT ALBRECHT, South Easton, Mass.
ERNEST BRUNCKEN, Washington, D. C.
JOSEPH P. CHAMBERLAIN, Columbia University.
WM. G. HASTINGS, Professor of Law, University of Nebraska.
ISAAC HUSIK, Professor of Philosophy, University of Pennsylvania.
RACHEL SZOLD J ASTRO w, Madison, Wis.
ALBERT KOCOUREK, Chicago, 111. (of the Editorial Committee).
JOHN LISLE, Philadelphia, Pa. (of the Philadelphia Bar).
MARTHA Me. READ, Washington, D. C.
ETHEL FORBES SCOTT, Urbana, 111.
JOHN SIMPSON, New York, N. Y. (of the New York Bar).

C54
 GENERAL INTRODUCTION TO
THE SERIES
BY THE EDITORIAL COMMITTEE

"Until either philosophers become kings," said Soc-

rates, "or kings philosophers, States will never succeed
in remedying their shortcomings." And if he was loath
to give forth this view, because, as he admitted, it might
"sink him beneath the waters of laughter and ridicule,"
so to-day among us it would doubtless resound in folly
if we sought to apply it again in our own field of State
life, and to assert that philosophers must become lawyers

or lawyers philosophers, if our law is ever to be advanced

into its perfect working.
And yet there is hope, as there is need, among us to-day,
of some such transformation. Of course, history shows
that there always have been cycles of legat progress,
and that they have often been heralded and guided by
philosophies. But particularly there is hope that our
own people may be the generation now about to exem-
plify this.
There are several reasons for thinking our people
apt thereto. But, without delaying over the grounds
for such speculations, let us recall that as shrewd and

good-natured an observer as De Tocqueville saw this

in us. He admits that "in most of the operations of
the mind, each American appeals to the individual exer-
cise of his own understanding alone; therefore in no

country in the civilized world is less attention paid to

philosophy than in the United States." But, he adds,
"the Americans are much more addicted to the use of
general ideas than the English, and entertain a much
viii GENERAL INTRODUCTION
greater relish for them." And since philosophy is, after
all, only the science of general ideas analyzing, restat-
ing, and reconstructing concrete experience we may
well trust that (if ever we do go at it with a will) we shall

discover in ourselves a taste and high capacity for it,

and shall direct our powers as fruitfully upon law as we
have done upon other fields.
Hitherto, to be sure, our own outlook on juristic
learning has been insular. The value of the study of
comparative law has only in recent years come to be
recognized by us. Our juristic methods are still primi-
tive, in that we seek to know only by our own experi-
ence, and pay no heed to the experience of others. Our
historic bond with English law alone, and our conse-
quent lack of recognition of the universal character of
law as a generic institution, have prevented any wide
contact with foreign literatures. While heedless of
external help in the practical matter of legislation, we
have been oblivious to the abstract nature of law. Phi-
losophy of law has been to us almost a meaningless and
alien phrase. "All philosophers are reducible in the
"
end to two classes only: utilitarians and futilitarians,
is the cynical epigram of a great wit of modern fiction. 1

And no doubt the philistines of our profession would

echo this sarcasm.
And yet no country and no age have ever been free
(whether conscious of the fact or not) from some drift
of philosophic thought. "In each epoch of time," says
M. Leroy, in a brilliant book of recent years, "there is
current a certain type of philosophic doctrine a phi-
losophy deep-seated in each one of us, and observable
clearly and consciously in the utterances of the day
alike in novels, newspapers, and speeches, and equally

1 M. Dumaresq, in Mr. Paterson's "The Old Dance Master."

 GENERAL INTRODUCTION ix

in town and country, workshop and counting-house."

Without some fundamental basis of action, or theory
of ends, all legislation and judicial interpretation are
reduced to an anarchy of uncertainty. It is like mathe-
matics without fundamental definitions and axioms.
Amidst such conditions, no legal demonstration can be
fixed, even for a moment. Social institutions, instead
of being governed by the guidance of an intelligent free
will, are thrown back to the blind determinism of the
forces manifested in the natural sciences. Even the
phenomenon which is pecu-
of experimental legislation,
liar to Anglo-American countries, cannot successfully

ignore the necessity of having social ends.

The time is ripe for action in this field. To quote the
statement of reasons given in the memorial presented at
the annual meeting of the Association of American Law
Schools in August, 1910:

The need of the series now proposed is so obvious as hardly to

need advocacy. We are on the threshold of a long period of construc-
tive readjustment and restatement of our law in almost every depart-
ment. We come to the task, as a profession, almost wholly untrained
in the technic of legal analysis and legal science in general. Neither
we, nor any community, could expect anything but crude results
without thorough preparation. Many teachers, and scores of
students and practitioners, must first have become thoroughly
familiar with the world's methods of juristic thought. As a first
preparation for the coming years of that kind of activity, it is the
part of wisdom first to familiarize ourselves with what has been
done by the great modern thinkers abroad to catch up with the
general state of learning on the subject. After a season of this, we
shall breed a family of well-equipped and original thinkers of our
own. Our own law must, of course, be worked out ultimately by
our own thinkers; but they must first be equipped with the state
of learning in the world to date.
How far from "unpractical" this field of thought and research
really is has been illustrated very recently in the Federal Supreme
Court, where the opposing opinions in a great case (Kuhn v. Fair-
x GENERAL INTRODUCTION
mont Coal upon the respective conceptions of "law"
Co.) turned
and where Professor Gray's recent work on "The
in the abstract,
Nature and Sources of the Law" was quoted, and supplied direct
material for judicial decision.

Acting upon this memorial, the following resolution

was passed at that meeting:
That a committee of five be appointed by the president, to arrange
and publication of a series of continental master-
for the translation
works on jurisprudence and philosophy of law.

The committee spent a year in collecting the material.

Advice was sought from a score of masters in the leading
universities of France, Germany, Italy, Spain, and else-
where. The present series is the result of these labors.
In the selection of this series, the committee's pur-
pose has been, not so much to cover the whole field of
modern philosophy of law, as to exhibit faithfully and
fairly all the modern viewpoints of any present impor-
tance. The older foundation-works of two generations
ago are, with some exceptions, already accessible in
English translation. But they have been long sup-
planted by the products of newer schools of thought
which are offered in this series in their latest and most
representative form. It is believed that the complete
series will
represent compact form a collection of
in
materials whose equal cannot be found at this time in
any single foreign literature.
The committee has not sought to offer the final solu-
tion of any philosophical or juristic problems; nor to
follow any preference for any particular theory or school
of thought. Its chief purpose has been to present to

English readers the most representative views of the

most modern writers in jurisprudence and philosophy
of law. The shows a wide geographical represen-
series

tation; but the selection has not been centered on the

 GENERAL INTRODUCTION xi

notion of giving equal recognition to all countries. Pri-

marily, the desire has been to represent the various
schools of thought; and, consistently with this, then to
represent the different chief countries. This aim, how-
ever, has involved little difficulty; for Continental
thought has lines of cleavage which make it easy to rep-
resent the leading schools and the leading nations at
the same time.
To offer here an historical introduction, surveying the
various schools of thought and the progress from past
to present, was regarded by the committee as unneces-
sary. The volumes of Dr. Berolzheimer and Professor
Miraglia amply serve this purpose; and the introductory
chapter of the latter volume provides a short summary
of the history of general philosophy, rapidly placing
the reader in touch with the various schools and their
standpoints. The series has been so arranged (in the
numbered list fronting the page) as to indicate that
title

order of perusal which will be most suitable for those who

desire to master the field progressively and fruitfully.
The committee takes great pleasure in acknowledg-
ing the important part rendered in the consummation
of this project, by the publisher, the authors, and the
translators. Without them this series manifestly would
have been impossible.
To
the publisher we are grateful for the hearty spon-
sorship of a kind of literature which is so important to
the advancement of American legal science. And here
the Committee desires also to express its indebtedness
to Elbert H. New York City, for his
Gary, Esq., of
ample provision of materials for legal science in the Gary
Library of Continental Law (in Northwestern University).
In the researches of preparation for this Series, those
materials were found indispensable.
The authors (or their representatives) have cordially
granted the right of English translation, and have shown
xii GENERAL INTRODUCTION
a friendly interest in promoting our aims. The com-
mittee would be assuming too much to thank these
learned writers on its own behalf, since the debt is one
that we all owe.
The severe labor of this undertaking fell upon the
translators. It required not only a none too common
linguistic skill, but also a wide range of varied learning
in fields little travelled. Whatever success may attend
and whatever good may follow will in a peculiar way
be attributable to the scholarly labors of the several
translators.
The committee finds special satisfaction in having
been able to assemble in a common purpose such an array
of talent and learning; and it will feel that its own small
contribution of this unified effort has been amply recom-
pensed if this series will measurably help to improve
and to refine our institutions for the administration of
justice.
 TABLE OF CONTENTS
Pages
1. General Introduction to the Series vii

2. Translator's Preface xxi

3. Translator's Preface to the Second Edition xxvii

INTRODUCTORY CHAPTER 1-39

Section 1.Necessity for Generalized Knowledge 1-8

Encyclopedism and philosophic generalization, 3.
Special need of generalized science in the study of
law, 5.
Section 2. Encyclopedia of Law 9-22
Meaning of word encyclopedia, 9. Beginnings of
encyclopedia of law, 10. Encyclopedia in 17th and
18th centuries, 11. Insufficiency of encyclopedia as
brief outline of special sciences, 12. Hegel's and Schel-
ling's views, 13. Encyclopedia in first half of 19th
century, 15. Latest German encyclopedia of law, 17.
Russian juridical encyclopedia, 20. Encyclopedia in
other literatures, 22.
Section3. Philosophy of Law 23-30
Philosophy as science of extremest generalization, 23.
\ Teaching as to natural law, 24. Most recent philosophy
of law, 28. Insufficiency of philosophy as special science
of the highest generality, 29.
Section 4. General Theory of Law 31-39
General theory and philosophy, 31. Views of Schutze,
32. Identifying general science with encyclopedia, 34.
Views of Zveriov, 34. Muller's definition of the general
purpose in teaching law, 36. Post's definition, 37.
General tendencies of Russian legal encyclopedia to-
wards a general theory of law, 38.

BOOR I

CONCEPTIONS OP LAW 40-165

CHAPTER I. DEFINITION OF LAW 40-78

Section 5. Technical and Ethical Norms 41-46

Conception of norms as necessary rules, 41. Technical
and ethical norms, 42. Their differences, how material
and how formed, 43. Relativity of obligation of tech-
xiv TABLE OF CONTENTS
Section 5 Continued. Pages
nicalnorms and absoluteness of ethical ones, 44. Differ-
ence in content of these and other norms, 45.
Section 6. Juridical Norms and Moral Norms 47-54
Moral norms, rules for evaluing interests, 48.
Subjec-
tivity of moral valuations, 49. Two possible types of
co-ordinated interests, 51. Legal rules as norms for
limiting interests, 52. Difference between moral and
legal rules, 53.
Section 7. Relationship of Law and Morals 55-64
Opposition of law and morals, 55. Their mutual con-
nection, 58. Hegel's and Ahrens' views, 60. Jellinek's
and Wallaschek's views, 61. Necessary correlation of
law and morals, 63.
Section 8. "Law" in the Legal and in the Scientific Sense 65-71
Notion of law in the scientific sense, 65. Do
legal rules
fill the place of laws of nature? 67. Whether juridical
norms represent the popular conception of natural laws,
68. Correlation of legal rules and natural laws, 70.
Section 9. Relativity of Law 72-78
Relativity of laws as phenomena, 73. Gradual recog-
nition of the relativity of laws, 75. Importance of such
recognition, 77.

CHAPTER II. LEADING DIFFERENT CONCEPTIONS OF

LAW 79-115

Section 10. The Definition of Law by What it Embraces. . . 79-85

Capital differences between definitions of law, 79.
Causes of variances in the contents of law, 80. Lead-
ing different definitions of law by its contents, 81. Defi-
nition of law as norms of freedom, 82. Its connection
with individualism, 83.
Section 11. Definition of Law by its Source 86-93
Causes for the popularity of such definitions, 86. Defi-
nition of legal norm as commands of governmental
power, 90. Criticism of this definition, 91. Definition
of legal rules as social norms, 92.

Section 12. Definition of Law as Coercive Norms 94-103

Connection of this definition with dualistic world con-
cepts, 94. Objections against the possibility of such a
definition, 96. Impossibility of a purely coercive basis.
Necessity of popular assent, 97. Psychical coercion,
101. Importance of coercion with regard to law, 102.
Section 13. Formal and Utilitarian Conceptions 104-115
Historical and theoretical basis for the formal theory of
law, 104. Reaction against this theory on the part of
 TABLE OF CONTENTS xv
Section 13 Continued. Pages
the school of the organic theory, 106. Ihering's doctrine,
107. Insufficiency of his definition, 109. Mourom-
tzev's definition, 113. Criticism of this definition, 114.

CHAPTER III. HYPOTHESIS OF NATURAL LAW. . 116-138

Section 14. General Characteristics 116-122
Variableness of legal rules together with their inde-
pendence of human wills, 116. Essentially historical
conceptions, the cause of the ruling theory of natural
law, 118. Idea of a legally ordered historical develop-
ment of law, 118. Incomplete expression of this idea
in the doctrines of the historical school, 119.

Section 15. Natural Law in the Roman Jurists 123-128

Peculiarity on the views of the Roman jurists, 123.
Legal rules arising from the nature of man, things and
relations, 124. Criticism of preceding examples, 126.
Section 16. Later Theories of Natural Law 129-133
Criticism of the Rationalist theory of natural law, 129.
Criticism of the empiricist theory, 131. Theory of the
19th Century, 132.
Section 17. General Criticism of the Idea of Natural Law. 134-138 .

Appearance of truth in natural law idea, a popular de-

lusion, 134. Apparent transfer of some rules to the
natural law category, 135. Historical importance 6T~
the conception of natural law, 137.

CHAPTER IV. ORIGIN OF LAW 139-165

Section 18. Theory of the Voluntary Establishment of Law, 139-142

Apparent origin of law by command of government, 139.
Contract theory, 141.
Section 19. Doctrine of the Historical School 143-156
Views of Gustave Hugo, 143. Doctrine of Savigny, 146.
Doctrine of Puchta, 153.
Section 20. The Origin of Law 157-161
Inadmissibility of innate ideas of law, 157. Bain's ex-
of the origin of conscious will generally, 158.
glanation
teinthal's explanation of the origin of language, 159.
Analogous explanation of the origin of law, 159.
Section 21. Development of Law 162-165
Hypothesis of voluntary establishment, and Hypothesis
of natural growth, 162. Idea of a "Struggle for Law,"
164. Necessary limits of this theory, 165.
xvi TABLE OF CONTENTS
BOOK II
Pages
OBJECTIVE AND SUBJECTIVE SIDES OF LAW 167-257

CHAPTER I. LAW OBJECTIVELY CONSIDERED 167-191

Section 22. The Objective and the Subjective Points of View

Law
in 167-168
Norms and relations, 167. Correlation of objective and
subjective law (Right), 168.
Section 23. Juridical Norms, Orders 169-175
General form of juridical norms, 168. Defining and de-
scriptive articles, 170. Question as to the commanding
character of legal norms, 172. Command and prohibi-
tion, 174.
Section 24. Elements of Legal Norms 176-182
Hypothesis and disposition, 176. Form of hypothesis,
178. Dispository norms, 179. Elements of norms of
criminal law, 181.
Section 25. Content of Juridical Norms 180-186
General content of norms, 183. Limitations on identical
interest of different persons, 184. Limitation upon un-
equivalent interests, 185. Combined interests, 186.
Section 26. Sanction of Legal Rules 187-191
Notion of a sanction, 187. Leges perfects, 186. Leges
plus quam perfectce, 187. Leges minus quam perfectce t
189. Leges imperfectce, 190.

CHAPTER II. LAWS IN THE SUBJECTIVE SENSE (RIGHT) 192-231

Section 27. Juridical Relations 192-199

Relations of fact, 192. Juridical relations, 194. Active
and passive side of relations, 195. Juridical institu-
tions, 197.
Section 28. Subject (Bearer) of Juridical Relations 200-207
Subjects (bearers) are persons only, 200. Juridical
(fictitious) persons, 202. Boundaries of legal capacity,
204. Beginning and end of legal capacity, 206.
Section 29. Rights and Duties 208-215
Conception of rights, 208. Reflex effect of law, 211.
Extent of rights, 212.
Section 30. The Objects of Rights 216-223
Conception of objects, things over which rights extend,
216. Four categories of objects, 217. The subject's
(bearer's) personal forces, 217. Other persons' forces,
218. Forces of nature, 221. Social forces, 223.

Section 31. Juridical Facts 224-231

Conception of established facts, 224. Subjective and
objective aspect of established facts, 225. Classification
 TABLE OF CONTENTS xvii

Section 31 Continued. Pages

of juridical facts, 226. Juridical action, 227. Forms
of it, 228. Representation, 229. Illegal situations and
violations of right, 230.

CHAPTER III. PRIVATE AND PUBLIC LAW 232-258

Section 32. Classification According to Difference of Con-
tent 232-242
Ulpian's formula, 232. Savigny's and Stahl's classifi-
cation, 234. Ahrens' classification, 235. Kaveline's
classification, 236. Zitovich's classification, 240.
Section 33. Formal Classification 243-250
Kant's classification, 244. Puchta's classification, 244.
Jellinek's, 247. Thon's, 248.
Section 34. Basis of the Distinction between Public and
Private Law 251-258
Two forms of delimitation of interests; use of objects
and dominion over them, 251. Insufficiency of each
separately, 252. Derivation from these different special
forms of all the characteristics of private and public law,
253. Explanation of both classifications, 255.

BOOK III

SOCIAL CONDITIONS OF LEGAL DEVELOPMENT 259-391

CHAPTER I. SOCIETY 259-335
Section 35. The Mechanical Theory 259-269
Opposition of mechanical and organic conceptions, 259.
General philosophic and evolutionary foundation of the
mechanical theory, 260. Considerations against it, 262.
Its historical services, 264. Its latest modifications,
266. Criticism of Thon, 267.
Section 36. Organic Theory 270-286
Conditions of its origination, 270. Its different forms,
274. Absence of general coincidence of organic and
social phenomena, 275. Proofs of the analogy not veri-
fiable, 276. Unfruitful ness of the organic theory as a
scientific hypothesis, 277. Spencer's argument, 278.
Differences between phenomena of growth and of
specialization, 280. Absence of true multiplication and
of natural death of societies, 283. Nonconsecutiveness
of social phenomena, 284. Difference between acci-
dental and teleological relations, 285.
Section 37. Nature of Society 287-297
Difference in conditions for investigating the organic
and the inorganic world, 287. Creator complexity of
social phenomena, 289. Importance of ideals in the
xviii TABLE OP CONTENTS
Section 37 Continued. Pages
social life, 290. Psychic character of the bond holding
men in society, 291. Importance of the organic theory,
293. Results from the psychical theory of society, 294.
Section 38. Man's Psychical Nature 298-302
Extremes of intuitionism and sensationalism, 298.
Fusing point of the general views of late experimental
psychology, 300.
Section 39. Freedom of the Will 303-315
Formulation of the question, 303. Relation of fatalism
to the question, 305. Importance of vital statistics, 306.
Solution of a partially free will. Fouillee's theory, 307.
Reid's doctrine, 309. Opposition between internal and
external conditions, 311. Considerations against the
will's freedom, 312. Chief arguments against it, 313.
Section 40. Society and Individuality 316-322
Notion of individuality, 316. Relationship of the indi-
vidual to society with fusion of views of the organic and
the mechanical theories, 319. A mediating view, 320.
Section 41. Law as Social Order 323-327
Law as the bulwark of individuality, 324. Law as a
social product, 325. Co-ordinating functions of law,
326.
Section 42. Forms of Social Groups 328-335
Involuntary and voluntary associations, 328. Origin
of opposing associations in the state, 328. Doctrine
of Hegel and of Lorenz Stein, 330. Ahrens' views, 333.
Mohl's theory, Id. Indispensable amendments of this
theory, 335.

CHAPTER II. THE STATE 336-391

Section 43. Conception of the State 336-344
Causes for the different definitions of the state, 337. The
distinguishing mark of a state, 339. Distinguishing
peculiarity of governmental authority, 341. Formula-
tion of definitions, 342.
Section 44. Governmental Authority 345-351
Authority as lawful will, 345. Authority as supreme
will, 346. Government has no unified will, 347. Gov-
ernmental authority not the general will, 348. Defini-
tion of governmental authority, 350.
Section 45. Organs of Authority 352-363
Notion of organs of government, 352. Deciding and
co-operating organs, 356. Preparatory, advisory and
executive classes of co-operating organs, Id. Uni-per-
sonal and collegiate forms, 358. Comparative lack of
deciding functions in various organs, 359. Co-operat-
ing and executive organs, 360. Position of govern-
mental establishments in various epochs of history, 361.
Representative and professional elements, 362.
 TABLE OP CONTENTS xix
Pages
Section 46. Forms of Governmental Organization 364-370
The threefold classification according to the number of
rulers, 364. Its insufficiency, Id. Difference between
monarchy and republic, 366. Varieties of monarchies
and of republics, 369.
Section 47. Authority and Law 371-376
Relationship of government and law according to the
natural law school, 372. Ihering's doctrine, 373. Lim-
iting of government by law as an objective fact, 375.
Section 48. Combinations of Governmental Powers 377-391
Montesquieu's doctrine, 377. Propositions to amend
it, by Constant and Hegel, 380. Generality of accep-
tance of Montesquieu's principle, 383. Co-ordination
of governmental powers, 390.

BOOK IV
POSITIVE LAW 393-501
CHAPTER I.THE SOURCES OF POSITIVE LAW. . . 393-434
Section 49. Conception of Positive Law 393-396
Objective character of legal control, 393. Positive law
as an element of civilization, 394. Disadvantages and
advantages of positive law, 395.
Section 50. Foundation of Action of Positive Law 397-401
General foundation of positive law, 397. Peculiarities
in every system of positive law, 398. Ordinary editing,
399. Legislative codifying, Id.
Section 51. Sources of Law 402-409
Definition of sources of law, 403. Sources of the recog-
nition of law, Id. Source in the force asserting law, 405.
Importance of sources of law, 406. Acceptance of the
judgment of positive law, 407.

Section 52. The Common Law 410-419

Old theory for explaining the force of custom, 410.
Puchta's doctrine, 412. Savigny's suggestions as to it,
413. Adicke's doctrine, 414. Formation of juridical
customs according to Puchta's doctrine, 416. Savigny's
rectification of it, 417. Marks of juridical customs, 418.
Section 53. Judicial Practice 420-424
Relationship of judicial practice to law and custom, 420.
Doubts as to its independent importance as a source of
law, 421. Action of judicial practice as a source of law
affirmed, 422.
Section 54. Legislation 425-434
Definition of enacted law, 426. Specially obligatory
force of it, 427. Enactments and decretals, 429. Order
followed in enacting laws, 430. Ordinary legislation
and constitution making, 431. Order of promulgation,
432. Arrangement and codification, 433.
xx TABLE OF CONTENTS
Pages
CHAPTER II. SOURCES OF RUSSIAN LAW 435-471
Section 55. Relationship of Different Sources 435-438
Special legislation, 435. Common law, Id. Judicial
Practice, 436.
Section 56. Russian Legislation 439-447
Distinctive marks of legislation, 439. Possibility of
variances between legislation and general decrees in ab-
solute monarchy, 441. Verbal and written orders, 442.
Order followed in adopting legislation, 444. Promulga-
tion, 446.
Section 57. Full Collections of Statutes 448-452
Characteristic peculiarities of complete statutes and of
codes, 448. Three such collections, 450. Relationship
of the code to the collection of decrees, 451.
Section 58. First Editions of the Code 453-457
Establishment of the code, 453. Its system, 454. Its
contents, 455.
Section 59. Last Editions of the Code and Supplements. . . 458-467
Original plan of new editions, 458. Edition of 1842, 459.
Edition of 1857, 461. Later editions, Id. General
contents of the code, 463. Establishment of the mili-
tary code, 465. Establishment of the admiralty code,
466. Local laws, Id.
Section 60. Importance and Force of the Code 468-471
Relationship of the code to its sources, 468. Mani-
festo of Jan. 31, 1833, 469. Opinion of Zitovich, Id.
Practical value of the code, 470.

CHAPTER III. APPLICATION OF POSITIVE LAW. .. 472-501

Section 61. Criticism 472-476
Higher criticism, 472. Criticism of official editions, 474.
Minor criticism, 475.
Section 62. Relationship of Laws from Different Times and
Places 477-485
Statement of the question, 477. Two possibilities in
their application, Id. Considerations in favor of the
law of the time and place of the fact, 478. General for-
mula and its analysis, 480. Idea of a division of the
fact, 481. Place and time generally complex facts, 483.
The greater complexity in relationship of laws of differ-
ent places, 484.
Section 63. Interpretation 486-492
Purpose of interpretation, 486. Grammatical and logi-
cal interpretation, 487. Historical interpretation, 488.
Systematic interpretation, Id. Professional and doc-
trinal interpretation, 491. Analogy, 492.
Section 64. Scientific Culture of Law 493-501
Insufficiency of interpretation, 493. Analysis, 494.
Construction, 495. Classification, 501.
 TRANSLATOR'S PREFACE

IN the year 1905 there came into my hands a cata-

logue of a Paris publisher in which was advertised an
International Library of Public Law. The English
and American works were excellent selections. My
attention was attracted to the fact that these French
"
publishers of international" books, in whose own
country Boistel's work had lately appeared, and where
Fouillee and Renouvier were still writing, had taken for
their work on General Theory of the Law that of a
Russian writer of whom I had never heard. The whole
field of English, German, and Italian theorists seemed
to be passed by, in thus going outside of France, by
these French publishers who were, evidently, seeking
the best works in their several departments. The curi-
osity thus excited resulted in an order for the French
version.
It was found to have a preface by Prof. Larnaude of
the University of Paris, sketching briefly the develop-
ment Western Europe and England in
of legal theory in
late years, and Kor-
justifying the selection of Prof.
kunov's work, as representing most fully the tendencies
u
of that development, notwithstanding the ceui)res

mattresses" in France, Germany, England and Belgium,

which the Paris professor cited. The book, on examina-
tion, seemed to justify its selection, and Prof. Larnaude's
declaration that it is not a "simple reflection of German
science," but that "it has originality of its own, and
above all a surprising clearness of form and expression."
Another statement of Prof. Larnaude's preface was
entirely justifiedby the French copy. "They (the
readers) will make some discoveries not lacking in inter-
est. Notably they will see that Korkunov, "though
xxi
xxii PREFACE
teaching in a country of absolutism and of the censor-
ship, does not fear to attack the most delicate problems
of public law. If it were not published under a Russian

name, no one would suspect that it was written in

Russia. It has boldnesses which perhaps will astonish
a little the Russians themselves. Who would believe
that ideas like the following are taught in Russia? 'The
regular development of social life will be seriously fettered
if conditions which are indispensable to it are sacrificed

to the present hour, to that interest, for example, which

offers to assure external order; as in stifling the mani-
festation of all ideas in order to restrain the propagation
of dangerous ones, order might be re-established more

readily,but society would long feel the disastrous con-

sequences of suppressing freedom of speech and of the
press.'"
"There will be no less astonishment at this passage:
'Though the government is the representative of all the
people, yet the people can also act sometimes directly
on their own behalf. It is probable that rules which
grow up of themselves are better applicable to the

people's interests than are those which the government

might propose.' Individual liberty, too, is characterized
as 'playing a great role in Modern Law,' and modern
law itself as 'giving the preference to solutions the most
1

compatible with individual liberty."

"Those searching carefully will find in Prof. Kor-
kunov's book the theory of popular sovereignty and
everywhere the refutation of the dogma of the his-
torical school that law is a development purely national,
and that a bird can as easily become a mammal, or vice
versa, as a state can change its institutions, the organiza-
tion conformed to its national genius."
1
"This opinion of the historical school, says Kor-
'

kunov, is false, since we have seen that a change brought

about in the social ideal may bring on a change in social
 PREFACE xxin

development itself. By studying the origination of

another people and its political development the mem-
bers of a given society can bring about the formation
"
of a political ideal like that of such other people.'
"When I have stated that this passage refers expressly
to the attempts made at the end of the XVIII century
to bring into Russia English political institutions, I
shall have shown how strong a spirit of liberalism un-
doubtedly animates the instruction given by the facul-
ties of law in Russia. It must be so, since we find the
clearest expression of it in the work of one of the most
famous of professors in the Russian Universities, con-
sequently in the official instruction itself, but it is in
curious contrast with the administrative practices which
are at least said to prevail in Russia."
The interest excited by such statements from Russian
instruction was succeeded by scepticism as
official legal

to the authenticity of some of them. It seemed desir-

able to test, by comparison with the original Russian,
some of these "surprising" passages. It happened that
I have lived for a good many years in a Czech, or
Bohemian, community and had a somewhat extensive
acquaintance with that language. I had been informed
that its relationship with Russian was close. After
getting the Cyrillic Alphabet, it was found that the
pronouns and prepositions in the two languages are
almost identical, the verb structure and inflection nearly
so, and the other inflections are much alike, and the
vocabularies in large part the same.
There is in Lincoln, Nebraska, a Russian population
of several thousand. An instructor was found who was
a graduate of the University of Nebraska, and the
French version was carefully compared with the Russian,
and the liberal sentiments were found to be all in the
original and stated with even more pith, condensation
and force than in the French. It seemed desirable that
XXIV PREFACE
a translation should be made, and the one here offered
was prepared.
Free use has been made of M. TchernofFs French
version, and I have had the assistance of my in-
structor, Mr. Felix Newton, a born Russian, without
whom this rendering would never have been attempted,
but the responsibility for the English form of the work
is my own. It is hoped that no injustice is done to the

distinguished Russian teacher or to his work, the first

Russian edition of which was published in 1887.
The author was at that time a professor in the Uni-
versity of St. Petersburg, having in 1878 succeeded
Prof. Redkin to the chair of Legal Encyclopedia. He
had been previously a teacher of the same subject
in the Imperial Alexandrian Lyceum at St. Petersburg.
In 1889, on the death of Prof. Gradovsky, he succeeded
to the chair of Public Law in the University of St.
Petersburg. This he held till his death in 1902 at the
age of forty-nine. His distinction in his own country
rests largely on his Russian Public Law, of which the
sixth edition by his surviving colleagues appeared in
1908.
A Russian Biographical Dictionary says that his work
"is distinguished by penetrating analysis, and abundant
"
originality of view.
Of Theory of Law, which is here trans-
his General
lated,an eighth edition was published in 1908, which I
have not seen. The one used in making this translation
was the sixth, published in 1904, the first after his death,
and stated to be "without change."
Besides its interest as the authoritative statement of
the head of legal instruction in the Russian Empire at the
close of the XlXth century, the book seems fully to
deserve Prof. Larnaude's claim for its and
originality
clearness, above given. The and teach-
author's studies
ing while holding the chair of "Encyclopedia of Law,"
 PREFACE xxv

made him familiar with the writings, ancient and

modern, of the theorizers of all nations. He seems to
have been most strongly drawn to English writers and
thinkers on law and government, especially J. S. Mill.
His point of view is certainly much less individual-
istic than theirs. He seeks to harmonize their concep-
tions with his own inclination to see all problems from
the point of view of society instead of that of the indi-
vidual. He is permeated with the evolutionary philso-
phy and tries to bring social and legal development
within it. To what extent he has succeeded will, of
course, be a matter of controversy.
He has at all events given a singular^ lucid, though
condensed, perhaps lucid because condensed, statement
of the various views which have prevailed as to the ele-
ments of law and its functions in human society, and
has added many acute observations of his own. His
work would seem to go far towards justifying the recent
declaration of a learned writer, Bruckner, in his History
of Russian Literature, that if the Russians have no great

philosophers they have great legists as well as great

theologians.
Prof. Larnaude in his preface to the French version,
which has been already quoted at length, says that no
competent instruction is even yet to be found in the
"
French schools upon this "Cours, designed to show
"the object and end of juridical science, the different
parts of which it is composed, the connection of all these
parts, the order in which they ought to be successively
treated, and, above all, the method which ought to be
"
employed to fill this gap." He adds: For the moment
they (the publishers of the French version) are giving
us a book which, while not especially Russian, is from
many points of view excellent."
"Korkunov's General Theory of law contains in truth
parts of rare vigor and originality. As to natural law,
xxvi PREFACE
the origin of law, legal norms, the distinction between
public and private law, the theory of the three powers,
moral persons, the nature of society and of the state,
and a good many other questions, there will not simply
be found, formulated with great precision and uncommon
force of reasoning, the chief theories which are at the
bottom of universal legal thought. There will be found,
too, Russian theories, often very ingenious. Russian
thought is not, even in the legal domain, though pro-
foundly influenced by German science, a mere reflection
of it. From these different points of view Prof. Kor-
kunov's book will be read I think with very great in-
terest by all those who for the first time penetrate into
Russian juridical thought."
hoped that in its English form the book will in-
It is

spire some such interest in others as its Russian and

French forms have in the translator. The Russian, in
itscondensation, seems to lend itself to re-expression in
English even better than in French. If the English
version does not do justice to the author's thought, the
fault must be laid at the translator's door. The need
for such teaching in English is not less than Prof. Lar-
naude says it is in French.

W. G. HASTINGS.

LINCOLN, NEBRASKA, July 23, 1909.

 TRANSLATOR'S PREFACE TO THE
SECOND EDITION

The exhaustion of the edition of this work, printed in

1909, and the necessity of setting it up in type again, as

there were no plates of the former printing, have furnished
an opportunity to correct a few obvious typographical
errors in the first edition.
In truth, Prof. Korkunov's book seems to have justified
its translation into English. The call for a reprinting is

very gratifying. The St. Petersburg law teacher, who has

been dead for nineteen years, was evidently a phenomenal
man in his power of intellectual detachment and analysis,
combined with moral earnestness. The breakdown, for
the time, of the legal system under which he worked does
not of course in any way impair the philosophic value of
his conclusions. That the official head of Russian legal
instruction at the close of the nineteenth century was
capable of forming, and was permitted to teach, such

opinions as are here represented is a vindication of at

least some parts of that Czaristic regime. That the down-
fall of the imperial system was in some degree precipitated
by Czaristic reaction against the legalist movement which
developed the Duma of
1905, seems now clear.
Prof. Korkunov would surely, had he lived to see them,
have been as disappointed as any of us at the terrible con-
sequences of the collapse at once of the official govern-
ment and the official church throughout the vast empire.
That the breakdown is only temporary, and that there
will follow a reorganization which will embody sound
xxvii
xxviii PREFACE TO THE SECOND EDITION
and political administration,
practical principles of justice
the presence of such work as Korkunov's in the great body
of Russian literature is certainly a strong guarantee.

W. G. H.
STATE UNIVERSITY, LINCOLN, NEBRASKA,
June 1, 1921.
General Theory of Law
 THEORY OF LAW

INTRODUCTION
NEED FOR GENERAL KNOWLEDGE
SCHELLING. Vorlesungen uber die akad. Studium, 1802.
COMTE, AUG. Cours de philosophic positive. Tome 1 (Premiere
.

b;on.)

Section 1. Human knowledge as shown in the sepa-

rate sciences presents itself only as divided into frag-
ments. Observation by gives us nothing general.
itself

We gain from it, only knowledge of isolated,

directly,
partial facts. Meanwhile, for practical life, a purpose
not to be left out of view by any living science, frag-
mentary knowledge does not answer. The life, even of
a single individual, presents at every step very broad
and general questions, and answers to them he expects
precisely from science. One for whom even a little
corner of existence has opened, disclosing henceforth to
him the world of scientific comprehension, does not
easily reconcile himself again to surroundings of total
darkness. Moral satisfaction in the complete finishing
of his separate work he will experience only in the con-

necting of that isolated work with the universal, funda-

mental questions of life. A fully comprehended and
satisfactorily finished work is possible only under the
condition of being performed as a vitally connected part
of the work of all humanity; and for such an understand-

ing of his own isolated labors, that of each special one

does not suffice the man. Every one involuntarily
shows the tendency towards enlarging his knowledge,
giving it the character of generality, so that all questions
which life raises may receive scientific treatment and
solution as far as possible.
1
2 THEORY OF LAW
But how shall we attain this purpose? Under what
form turn fragmentary into systematic science? The
simple means for that purpose at first view would seem
to be the augmenting of the quantity of knowledge.
To arrange so that I should know all the science attain-
ableby any one and serve myself with the general knowl-
edge held by all mankind, would seemingly solve the
problem. If the bulk of this knowledge seems too great,
and passes the strength of any individual man, it is
possible to lighten it at the expense of quality.Though
an imperfect, superficial knowledge, yet it would be
unrestricted and all-embracing. Reaching this aim, we
attain an all-embracing universal science.
To settle the question in this manner is to resort to
the encyclopedic method. But whatever the importance
of an encyclopedic science, it is not that which is to
furnish our solution. The encyclopedic method can give
no science as a whole. The different elements of human
knowledge will all be found grouped as one may arrange
the elements of science acquired by a single individual.
But the comprehension of this mass of matters through
the construction of an articulated system is not the
immediate result of the encyclopedic method. It can
bring us to know in one domain the small details, and
by the side of this our ignorance may be complete as to
other questions of much greater importance. We have
found by the aid of spectral analysis the chemical con-
tents of the most distant stars. But how is it with
obscure points as to the organization of our own bodies?
Comparative philology shows us the degree of civiliza-
tion of the oldest Aryans, while the question of the

origin of Russia remains as insoluble for us as when the

comparative method was not even a name.
Human science is a book with leaves gone. Here on
one page we have read all which has been written, but
the pages which precede and those which follow do not
 INTRODUCTION 3

exist and that which we have read only irritates us as

an undecipherable enigma. Moreover, human science in
its final results shows itself fragmentary. Even if I
should attain to the assimilation of all which men know,
my science would not exhibit a unified system. Even
in antiquity when the mass of material facts of science
was not yet so great, and minds were not uncommon
which embraced the entire stock of human knowledge,
its fragmentary character made itself felt. Even then
generalization of knowledge and its co-ordination into a
general system was struggled for. As a means to this
came the thought of changing the very method of study.
Among the Greeks, accordingly, appeared philosophy as
a special form of science. Not in the extending of
empirical knowledge did the Greek thinkers find the
means for giving to our science generalization and com-
pleteness. They sought it in the analysis of primary
conceptions found in all men, in decomposing them into
their ultimate elements, and in bringing them into more

general conceptions, so as to form a systematic, inde-

pendent whole, detached from the accidental frame of
empiric notions. Thereby the very source of knowledge
was changed. Observation gave only fragmentary
science and therefore they filled in with deduction. I
can observe only accessible phenomena. Meditation,
however, knows no exterior bounds. Everything may
be the subject of meditation. Freed from necessity of
observation, it can go forward to the establishing of an
entire, complete system, to what is called a philosophic
system.
among mankind have
Since Plato's time the thinkers
worked out not a few such systems. But their very
number and the impossibility of finding a sufficient
objective reason for preferring any one of all these
different ones, could not fail to produce doubts of the
utility of metaphysical paths towards a genuine science
4 THEORY OF LAW
of real things and not merely a collection of opinions.
And so in positivism appeared the absolute denial of any

help from metaphysics. But even the positivists were

compelled to recognize the imperative necessity of gen-
eralizing this special knowledge gained by empirical
method. Even the founder of positivism, Auguste
Comte, explained in great detail the insufficiency of
simple special knowledge.
In the very beginning stage of our science, declared
he, it is not possible to recognize any determinate divi-
sion of intellectual labor. All the sciences are cultivated
at the same time by the same men. This stage of human
knowledge, inevitable at changes
first, by little little

according as separate branches of science develop. By

virtue of a law of evident necessity, each branch of the
scientificsystem separates itself insensibly from the stem
just far enough to enlarge itself so as to be the subject
of a separate science, that is, to occupy by itself the

activity of certain minds. It is to this division of

scientific researchinto distinct categories, divided out
to distinct groups of savants, that we owe the remark-
able development which is taking place before our eyes
in each branch of knowledge. From this new state of
science there results for the modern savant an evident
impossibility of beginning again those encyclopedic
studies which were so easy and common in antiquity.
In a word the division of labor, becoming more and more
marked, one of the distinguishing characteristics of
is

modern development. But in fully recognizing

scientific
the advantages of such a division one cannot avoid, on
the other hand, being struck with the disadvantages
resulting from this excessive subdivision of the studies
with which the learned are occupied. These disadvan-
tages are in a degree inevitable, but we may be per-
mitted to seek an alleviation of that in them which is
most troublesome, while leaving in its entirety the
 INTRODUCTION 5

division itself. The golden mean, evidently, consists

not in a return towards antiquity with its absence of
all division. This would result in hindering the future
progress of knowledge. It consists, on the contrary, in

developing this division. Let a group of savants deemed

fit for such work, instead of devoting themselves to some

one of existing separate sciences, consecrate themselves

to the exclusive examination of their present state,
their tendencies with regard to each other, the explana-
tion of their connections and mutual relations, the
reduction, so far as possible, of their leading principles
to a less number of more general ones; let other savants
guide themselves by these general principles so that by
harmony with those who established them, they may
verify by a common effort their results, and thus the
division of labor in the domain of scientific activity
can be developed to its extreme limits without science
losing itself in the accumulation of details, "without the
trees preventing our seeing the forest."
If this scientific method is used, a synthetic science
will be reached which in its method will not differ from
the special sciences. Science so constituted will not
reject the teachings of daily experience, nor be meta-
physical, nor claim to have attained to the absolute.
It will propose but one task, to reach the highest point
of a generalization founded upon acquaintance with

phenomena, consequently upon that relative knowledge

which is the subject of the special sciences.
All which has just been said of science in general can
be applied particularly and specially to the study of
law. Among all the branches of science it is precisely
in law that the compelling necessity for a generalized
system is felt. This arises from the fact that we cannot
observe law in its entirety. The vault of heaven with
its stars, or an animal's body, we conceive before all as

a whole, and it is only scientific analysis that teaches

6 THEORY OF LAW
us to regard them as complex aggregations of a multi-
tude of special elements. This is not the case with law.
We directly perceive only separate laws, distinct trans-
actions, and it is only by scientific synthesis that we
combine these separate elements into a single concep-
tion of juridical order, into a single idea of law con-
sidered as the norm of social life. Therefore in the
study of law the fragmentary condition of the elements
of our knowledge is so much the more serious because
we do not recognize its unity by observation, by direct
perception. To be sure, legal relations, the peculiar
relations which men have with each other, are not
without connection between themselves. But these rela-
tions, and the bond which unites them, are not evident
nor palpable and, moreover, lawyers do not study them
directly. They study, to tell the truth, custom, laws,
judgments, transactions between individuals. But all
this matter is at first view extremely varied, and the

greater the development of social life, the greater is this

variety. The development of social life gives birth to a

larger and everlarger number of extremely diverse inter-

ests, which struggle together and whose delimitation and
determination form the task of law. In a social life,
so complex and entangled, the same interests may give
rise to a multiplicity of relations, and each form which

they take demands for its control a special legal rule.

For example, the rules as to individual inheritances in
modern legislation are not controlled by a single general
law, but by a multitude of different ones, distributed
among various branches of legislation. Therefore, a
comprehensive view of the legal organization of the
rules of descent of property can be secured only by the
aid of scientific synthesis embracing the numerous differ-
make up such legislation.
ent rules which
At the same time no science touches more closely
upon the immediate questions of life than does that of
 INTRODUCTION 7

law. You can find, perhaps, in our social organization

a man who has never concerned himself with natural
science or history.
Well, search the age, there is no one
wholly unconcerned with legal questions. It is some-

thing quite unthinkable. Be ever so misanthropic,

avoid mankind however carefully, yet legal questions
shall not pass around you. In any event there is one
domain of law, that of personal liberty, which shall

imperatively demand your attention. In shunning men

you must say to them, "Here commence the bounds of
that domain where I am free; you have no right to
encroach upon it." For all these reasons, it is in legal
science that the tendency to generalize ought to manifest
itselfmore imperiously than anywhere else; and, in fact,
there has been for a long time an idea of creating by the
side of the special juridical sciences one which should

give a complete knowledge of the law. It has chosen

the first of the means which we have indicated for
reaching generalization in science, the encyclopedic
method. Its task consists in multiplying and expand-
ing the different elements of the science, in reuniting
into a single branch various concrete facts, and in
arranging these branches. The philosophy of law in its
turn seeks to establish a science of law by the deductive
method. This science, because of the end which it
seeks, strives towards a unified system. Finally, the
general theory of law which finds birth in our day has
for its purpose the creating of a unified theory out of
the concrete, empiric elements, furnished by the special
branches of the subject.
The encyclopedia and the philosophy of law ordinarily
form part of the instruction in faculties for legal train-
ing. In Germany both are taught; in England and
France philosophy alone. In Russia at present we con-
cern ourselves only with encyclopedia, though formerly,
before the university crisis of 1835, it was the philosophy
8 THEORY OF LAW
of law which was obligatory, but now, as we have said, it
is encyclopedia which has replaced it. These three
forms of science having the same object, we must give
some effort for the attentive examination of each of
them and shall estimate them in turn in the following-
sections of this introduction.
 INTRODUCTION

ENCYCLOPEDIA OF LAW
FRIEDLANDER. Juristische Encyclopadie oder System der
Rechtswissenschaft. Heidelburg, 1847.
ORTLOFF. Die Encyclopadie der Rechtswissenschaft in ihrer
gegenwartigen Bedeutung. Jena, 1857.
ORNATSKY. Comparative examination of Modern, with
Ancient Greek and Roman ideas of "Encyclopedia." Collec-
tion ofJanuary 12, 1855. Art. 7. Moscow.
REDKINE. Review of Legal Encyclopedic Literature. Red-
kine and Janevich-Janovsky's Juridical Memories. Vol. 5. St.

Petersburg, 1860.
KARASEVICH. Encyclopedia of Law. Lectures, given at
Laroslavl, 1872. In Demidoff's Journal of the Juridical Lycee.
ZWAIREV. Encyclopedia's place in the organization of Juridi-
cal Science. Juridical Messenger, 1880, No. 1.

Section 2. Encyclopedia in its usual meaning does

not denote a special science. It ordinarily means not
a science but a circle of sciences. We speak, for ex-
ample, of the Encyclopedia of Bacon, of Wolf, or of
Comte, meaning by that the modes of classification of
the sciences which those writers have adopted. If we

apply the term to a book we mean by it a work contain-

ing in some order, often merely alphabetic, a review of a
more or less extended group of sciences, sometimes of
all the sciences at once. This understanding of the
term is based on etymology. It comes from a Greek
its

expression meaning a circle of sciences answering to a

program of the secondary education of that time. The

Romans kept the same meaning. In reality the words
"Encyclopedia," "Cyclopedia," the form it usually has
in English, or simply "Pedia," were not in use before
the sixteenth century. The first book bearing this title
was Ringelberg's Lucubrations vel potius Absolutis-
sima Kyklopaideia, 1541. The author has combined
10 THEORY OF LAW
some studies upon grammar, rhetoric, dialectics, and in
a distinct part, "Chaos," he placed what would not go
under the other three rubrics.
When we apply this meaning of the word to the ency-
clopedia of law in particular we mean by it only a gen-
eral and succinct resume of materials of all the juridical
sciences. The firstbook bearing the name of Encyclo-
pedia of Law was Hunnius', 1638. But he was only the
first to make use of the name. A book whose subject
was the same was published before his, under another
title. It is claimed, indeed, that the first encyclopedic
work on law was the Speculum Judiciale of Durantis,
1275. This is not to be accepted. The assertion of it
rests upon the fact that the nature of his subject includes
Roman as well as canon law. This, however, is not
sufficient ground for calling Durantis' Speculum Judi-
ciale encyclopedic. First: It does not embrace all law.
Feudal law is not treated. Roman law is, moreover,
so closely bound up with canon law that the common
study of both parts was necessary aside from any
encyclopedic purpose. Second: Durantis' Speculum
was intended to serve as a manual not for the study
of law as a whole, but for lawyers in judicial employ-
ments. The author sets forth his general views in a
little preface in which he distinguishes among other six

laws after the number of wings of the cherubim: "Per

sex alas sex leges intellige: prima est lex naturalis, secunda
mosaica, tertia prophetica, quarta evangelica, quinta
apostolica, sexto, canonical
It is more correct to place the origin of -encyclopedic
literature in the XVI century when we can show
the coming of many works of a systematic, methodical

character, covering all branches of the law. Among

them that of Lagus, a German jurist, Lagus' Methodica
Juris utriusque Traditio, 1543, deserves special atten-
tion. It had up to the end of the century six editions
 INTRODUCTION 11

and afterwards two more which later were revised by

Freigius. This proves the book had an unquestionable
success. It ought to be considered as the first syste-
matic encyclopedia of law. It includes not only law,
public and private, but also positive law and the
philosophy of law. It is divided into two parts, first,
pars philosophical second, pars The first part
historica.
embraces the origin of law, legislation, manners, the
commentary and application of law, the theory of analo-
gies, and that of fictions, and, besides, natural law. In
the second part is positive law. He describes, too, the
different sorts of legal relations, forma juris, and for
each of them sets four questions: Who is the owner of
the rights? How does he get a right? How lose it
and how keep it?

The expression "Encyclopedia of Law" as we have

said does not appear till the XVII century and the
first work bearing the name was Hunnius' Encyclo-
pedia Juris Universi, Cologne, 1638. It was re-edited in
1642, 1658 and 1675. The book is divided into five
parts and contains a review of law under an artificial

system. First, Jus personae. Second, De Judiciis et

processu Judicario. Third, De contractibus. Fourth,
De Materia ultimarum Voluntatum.
All the historians of encyclopedic literature of the
law consider Hunnius as not only the first to employ it,
but as the only one of that century. This latter is incor-
rect. Two years after his book, in 1640, there was pub-
lished at Frankfort a work entitled, Encyclopedia Juris,
publici privatique, civilis, criminalis, feudalis, Autore

Joanne Philippo a Vorburg. At the head of the book is

found a discourse of Hallutius upon the importance of
encyclopedia in general. Then comes a preface by
Vorburg himself upon Juridical Encyclopedia. The
book has two very unequal divisions. First, Collection
of legal rules, Nux regularis Juridica sive Accurata et
12 THEORY OF LAW
articulosa enucleatio atque expositio omnium Juris
civilisregularum, by Wolfgang Sigismond of Barburg,
Dean of Ashfenburg; and second, A Legal Dictionary.
Besides this work of Vorburg, one, which is not men-
tioned by any encyclopedist, appeared in 1675, that of
Unverfarth, Paediae Jurisprudentise. The author defines
his "Pedia" thus: "Pcedice wcabulum proprie significat
institutionem puerilem, qua, si bona sit animi ad
virtutes et bonas artes capessendas subiguntur" He
assigns "Pedia" seven ends, among them: First,
to
Determination of sources and criteria of scientific truth;
third, of the scientific method also; fourth, a table of
books and documents for the use of the learned. The
book is divided according to this scheme. It has twenty-
three chapters devoted exclusively to setting forth the
general questions just mentioned without going into the
detailed development of any branch of juridical science.
For this reason Unverfarth's book ought to be credited
with much more value than that of Hunnius.
In the XVIII century two diametrically opposing
tendencies show themselves in
juridico-encyclopedic
literature. This was the time when the rupture was
most complete between the philosophic and the positive
sciences. Some were written under the dogmatic or
positive tendency, as it was then called. Such, for
example, was Stephane (Putter's) Entwurfeiner Juris-
tischen Encyclopedia, Gottingen, 1757, which really
brought the term encyclopedia into current use, and
which also separated methodology from encyclopedia,
which cannot be reckoned, to tell the truth, as a merit.
Others belong to the philosophic tendency. Such are
the works of Nettelbladt, Wolf's celebrated pupil, who
wrote several encyclopedic manuals, well known at that
time. The encyclopedias written under this influence
remained, as before, brief compends of the contents of the
special sciences and nothing more. The philosophic
 INTRODUCTION 13

system gave to summary expositions of this kind a suit-

able form, some ready made plans, some rubrics and cate-
gories, but did not bring forth the intrinsic unity, the
general idea which should dominate the whole.
It is only with the commencement of the XIX

century that the characters of legal encyclopedias

change. Some new and enlarged requirements were
made of them. The encyclopedists were not satisfied
with brief expositions of the materials of special juridical
sciences. They aspired to make of encyclopedia an
independent science having its own task. This new
tendency, which sees in encyclopedia not only a special
manner of setting forth a science, but a distinct and inde-

pendent science, was formed under the immediate influ-

ence of Schelling's and Hegel's doctrines, who first had
spoken of encyclopedia as a science.
The needof raising encyclopedia to the level of an

independent science is recognized when the insuffi-

ciency of the notion of it till then prevailing is observed.
Encyclopedia was certainly designed in the thought of
its inventors to remedy those inconveniences which lie

at the commencement of legal study in its special

branches, civil and political law for example; the study
of special parts supposing always a knowledge of a
series of general juridical notions, such as law in the
subjective and objective sense, the state, capacity of
persons, etc. Even the history of law supposes this
knowledge, since history is essentially the translation
all

of historic phenomena into the language of modern

notions and the history of law into the language of
modern juridical ideas. So, indeed, one feels the need
of an introduction to the study of law which shall not
leave the professor under the necessity of beginning to
study certain parts of a science whose outline remains
unknown. But it is doubtful whether the means pro-
posed would answer the purpose; whether a brief sketch
14 THEORY OF LAW
of all the parts of the science can serve as a satisfactory
introduction to the study of law. If it is difficult to

begin by a detailed study of some of the parts, it is

equally so, to begin by a superficial study of more. The
difficulty consists not in the abundance of details but in
the too fragmentary character of the study itself. A
rational study o! law does not consist simply in recog-
nizing the meaning of the principal terms, the division
of the science into distinct branches and investigating
the material with which each of them deals. To get
brief notions of details is not to get the idea of a whole.
To join parts into a whole is not simple and easy even
to those who are acquainted with the parts. The con-
troversies of which the general system of law is the

subject, are, as we shall see, the proof of this. rapid A

review of all parts of law makes an even more defective
preparation for legal study than does an elaborate and
detailed study of a separate branch. A
special study
sufficiently thorough permits of studying some part in
its relations to the whole. In showing him to the
bottom all the materials of one branch of the law, the
student is at a stroke introduced in medias res. The
richness of the content interests, attracts him, and a
rigorously scientific study accustoms him to scientific
observation and analysis. A rapid study, condensed
like a manual, incapable of interesting him because
is

of the poverty of its content; superficial, it does not go

to the bottom of the subject and instead of fruit gives
him the bark.
With these considerations, which are suggested to us
by the conditions of instruction, a good many others
unite. It is not merely the beginners who feel the need
and difficulty of conceiving science as a whole. A
specialist who only some particular scientific
studies
question experiences the same necessity. The develop-
ment of science brings with it greater and greater
 INTRODUCTION 15

specialization. In legislation, as in other things, speciali-

zation unceasingly increases. One finds quite frequently
among the ancient lawyers, authors devoted to studies
bearing upon all branches of legal science. So in the
first half of this century there were savants equally
perfect in two or three branches of legal study. For
example, K. S. Zacharia, who treated of public and
private law; Heffter, who employed himself upon both
criminal and international law; Blunt schli, who taught
international, and private law, etc.
public Now by
pressure of things in the domain of law the learned are
compelled to restrict their field of research. But this
concentration of scientific effort upon a more limited
domain, this concentration required by the develop-
ment and specialization of science, ought not to have
as a result, it goes without saying, the restricting of the
jurist's horizon. As we have said, special and particular
research upon a determinate matter can produce, if
well conducted, extensive results which throw a new
light on man's conception of the universe. The best
example is Darwin's. Being, and always remaining, a
mere zoologist, he nevertheless reached, in his study
upon The Origin of Species, the establishment of a
vast and profound system which gave birth to a new
"
conception of the Universe called by good right Darwin-
ism."
But that a special study may have this fruitfulness,
the desired direction must be given It is necessary
it.

in working upon individual questions not to lose sight

of general principles, and to consider the development
of parts a means and not an end. In a word, every
however peculiar his subject, ought to have
specialist,
as hisaim science considered as a whole. To attain this
aim the savant must be inspired with a fixed conception
embracing all the progress realized by science at a given
moment; but, by what means is he to reach such a con-
16 THEORY OF LAW
ception? He cannot create it himself. This would re-
quire a preliminary labor would prevent his
which
devoting himself to his special studies, since a rapid
review of different materials of science is absolutely
helpless to bring out the idea of unified knowledge.
A rapid review of this kind never determines the connec-
tion between the particular question of the savant's
studies and other scientific questions.
So we think we have established that encyclopedia, as
ordinarily understood, cannot satisfy the requirements
of scientific instruction. It gives no general notion of a
science conceived as a whole.
regarded as a rapid
It is these defects of encyclopedia,

superficial review of materials, as a manual of other

sciences, which have given birth to the idea that it must
be allowed standing as a separate science, designed to
show the general connection between the different ques-
tions which the special sciences study separately. Schel-
ling developed this idea in his Discourse upon Academic
Studies conformably to his conception of the Universe,
according to which the whole is organically bound
together. He considered science as a living organism.
Its distinct parts are not, for him, dead mechanical por-

tions, but living parts of a living whole. Just as an

organ of any organism can be understood only on con-
dition of being studied in its relation with the entire
organism, so one can suitably study and comprehend
each branch of a science only in its connections with the
" "
whole of it. It is this purpose that Encyclopadie
ought to serve, having as object the study of all human
science. It appears then not as one of the special
sciences but as the science of sciences which commands
"
the rest, as a "potential science containing in itself all the
essentials which the special sciences develop in detail.

Hegel's doctrine offers a synthesis even more har-

monious and more audacious. For him the whole uni-
 INTRODUCTION 17

verse is only an uninterrupted dialectic development of

absolute thought. He has extended this synthetic view

to science, which, being itself one of the phases of dialectic
development, presents, also, in its branches phases of
this movement. This is why he demands
that special
sciences be studied in their connection with the whole,
since they are for him only phases of methodic develop-
ment of a unified science, "The One."
These ideas by Schelling and Hegel induced
set forth
a considerable movement in encyclopedic literature. The
best of more recent legal encyclopedias have all been
made more or less under the influence of these ideas.
Among those thus made are Karl Putter's Der Inbegriff
der Rechtswissenschaft, oder Juristische Encyclopadie
und Methodologic, 1846, which first introduced into the

encyclopedia the study of the general history of the

law, and Friedlander's Juristische Encyclopadie oder
system der Rechtswissenschaft, 1847, which gives in a
little book the best attempt yet made to present "Ency-

clopadie" as a special science. The encyclopedias which

show the direct influence of Schelling's system like that
of Rudhart, Encyclopadie und Methodologic der Rechts-
wissenschaft, 1823, do not shine by any special quali-
ties. But the organic conception of the Universe, the
main point of Schelling's doctrine, has given birth to
the three best later German Encyclopedias, Ahrens',
Warnkonig's, and Walter's. In that of Ahrens,
Juristische Encyclopadie, 1857, the organic conception of
the Universe appears with the modifications which
Krause, one of Schelling's successors, had brought in.
Warnkonig, Juristische Encyclopadie, 1853, shows him-
selfa partisan of the same organic system as the younger
Fichte. In Walter's Juristische Encyclopadie, 1856,
the organic tendency is joined with Stahl's theological
one. All the encyclopedias of the XIX century
which we have cited follow, then, the philosophic ten-
 18 THEORY OF LAW
dency; but has not been the only one. Even in the
it

XVIII century there was observed besides it a con-

trary tendency which has now everywhere a historic
character. To it belong Falk's Juristische Encyclopadie,
1821-5, Ausgab. Jhering, 1851, and Bluhme's Ency-
v.

clopadie der in Deutschland geltenden Rechte. First,

Ausg. 1847-54. Second, Ausg. 1855-69. For the
XIX century the period from 1840 to 1860 marks the
time of greatest development of encyclopedic literature.
The following period marks its decline. If we leave out
Goldschmidt's book, Encyclopadie der Rechtswissen-
schaft, 1862, which does not set forth an "Encyclopadie"
but gives only a resume of matters embraced in uni-
versity instruction, with notation of authors to be con-
sulted, no attempt was made in Germany after those
mentioned till the period from 1870 to 1880 to set forth

the "Encyclopadie" of law as a whole. HoltzendorfF s

Encyclopadie der Rechtswissenschaft, 1889, is only a
collection of articles by different authors. They are in
two separate volumes. In the first the author has set
forth a short expose of the special juridical sciences
preceded by a brief study of the general history of law
by Merkel. The second volume is a juridical dictionary.
So we do not recognize it as an "Encyclopadie" as Schel-
ling and Hegel conceived one. It is only in 1885 that a
new systematic study of "Encyclopadie" is attempted.
Merkel in his Juristische Encyclopadie, 1885, does not
follow, to say the truth, the tendencies of the encyclop-
edists of 1850 to 1860. He does not make of his "Ency-

clopadie" an independent science. It consists of a review

of the special juridical sciences and has not, consequently,
the character of an independent one. This does not
reduce its value. The first part, especially where he
gives a brief sketch of the General Theory of Law, is a
very precious and interesting contribution to legal litera-
ture. It is the same with Gareis' Encyclopadie und
 INTRODUCTION 19

Methodologic der Rechtswissenschaft, 1887. It is still

more like a simple review of special juridical matters,
for its general part is less developed. Gareis, himself,
defines "Encyclopadie" as a systematic review of the
law.
The little book of Ratkovsky, Encyclopadie der
Rechtswissenschaft und Staatswissenschaften als Ein-
leitung in deren Studium, Vienna, 1890, is divided into
three parts. In the first part are explained the leading
legal conceptions. In the second is found a review of
sciences rigorously juridical, and in the third a review
of the political sciences, all in a hundred pages. Thus
the authors of the most recent works on "Juristische
Encyclopadie" have not sought to make of it an inde-
pendent science. How explain this fact? Why, after
such a series of efforts to raise it to the level of a science,
is there a return to the old conception long since con-

demned? Why is " Encyclopadie" considered again as a

mere brief resume of special matters without any intrin-
sic unity, made generally upon an arbitrary plan, alpha-
betic at need? There is only one explanation. Lawyers
no longer believe that it is possible to realize Schel-
ling's and Hegel's ideas. They no more admit that
"Encyclopadie" can be made a science of sciences dis-
tinct and independent and embracing the content of all
the special sciences. The German
philosophers thought
to inspire themselves with the idea that each special
question ought to be studied in its connections with the
whole; otherwise the study would have no living value,
would be sterile. Meanwhile, this is the general condi-
tion necessary to all science which seeks to keep a char-
acter genuinely scientific. It is a condition which every
science ought to fulfill and not merely the pretended
encyclopedic one. Only, this last, it is said, to consti-
tute a science must bear upon special and independent
matter. What is that matter? We are told that "Ency-
20 THEORY OF LAW
clopadie" embraces the materials of all the sciences. To
this we may object with Konopake, either "Encyclo-
padie" is not a science or it is incapable of embracing
the materials of all the sciences, for the sum cannot be
equal to each of the parts taken separately. Aside from
this entirely formal argument, we must observe that
the existence of "Ency clopadie" as a science of the
sciences would render these other sciences absurd and
objectless. It would swallow up in itself all the matters
of which they treat. On the other hand it is the divi-
sion of our scientific studies that makes necessary most
of the special sciences and impossible the existence of a
distinct and independent one embracing all human

knowledge. So, it is necessary to recognize in the

decadence of encyclopedic literature no passing phe-
nomenon; it is rather a proof of the sterility of the
encyclopedic idea itself.

In setting forth the history of encyclopedic literature

we have spoken only of Germany, for German literature
alone presents on this subject a regular development
prepared by a current of preceding ideas. If some

encyclopedias of law have been published in other

countries they have been only imitations of the Ger-
mans, and are to be considered as accidental facts with-
" "
out importance. In Russia Encyclopadie was taught
for the first time at the end of the eighteenth century by
German savants at the University of Moscow. The
first professor of it was the celebrated Bause, who was
inspired with the principles of Wolf's philosophy; after
him came Purgold. But encyclopedic instruction at
this period was optional. It was only after the legisla-
tion of 1835 that it was introduced into the University's
programme as obligatory. From this time date the
Russian encyclopedias of law. Down to 1835 there had
been published only Degai's, entitled, Advice and Rules
for Applying Russian Law, or materials for the Ency-
 INTRODUCTION 21

clopedia, Methodology, and History of Russian Law,

1831. This book is only a compilation and has now
only one interest, that of showing us our own jurispru-
dence before the promulgation of the code. The next
following book was Nivoline's Encyclopedia of Juris-
prudence, second edition, 1857, decidedly better
1839,
in scientific quality. At its head is a short philosophic
introduction where the author explains the notion of
law. He tries to base this part upon Hegel's and Stahl's

philosophic doctrines, defending with Stahl the existence

of a personal God who governs at his will the fate of the

philosophy of legislation and then that of positive legis-

lation. In the history of the philosophy the author
gives a detailed analysis of philosophic doctrines founded
upon a direct study of the sources. The history of
positive legislationis treated with less personal care.

Rojestvensky's Encyclopedia of Law, 1863, is con-

cerned in quite a different order of ideas. The author
excludes absolutely from his book philosophic doctrines
of the law and all history of positive law. The book,
simply dogmatic, contains a sketch of materials of
juridical sciences and is found preceded by a general
philosophic introduction inspired by the doctrines of
the younger Fichte.
Rojestvensky's book is, moreover, the only Russian
encyclopedia giving an outline of matters of juridical
science. The work of Kapoustine, published in 1868,
Juridical Dogmatics, and that of Rennenkamp, Outline
of Juridical Encyclopedia, 1880, second edition, are only

general studies in the law. They present no application

of fixed philosophic ideas. They are eclectic in char-
acter. Yet they are the best two manuals of encyclo-
pedia of law in Russian literature. Unfortunately, they
are no longer in current use. In the last twenty years
many new works in legal literature and upon legislation
have appeared, but the Juridical Dogmatics of Prof.
22 THEORY OF LAW
Kapoustine is still in its first edition. Prof. Rennen-
kampf s book, republished in 1880, appeared again in
1889 in briefer form, under the title Juridical Encyclo-
pedia. But even the last is not brought up abreast
with current legislation. Thus in the 1889 edition the
author declares that our legislation contains no enact-
ments concerning Catholic and Protestant churches,
although such regulations were incorporated into the code
of 1857. The author, and this is more strange, employs
the edition of the code of 1857 even for questions treated
in the editions of 1876 and 1886. The old theories, for
example Hegel's distinction between the false in criminal
and in civil matter, are accepted as absolute verities.
In the period from 1870 to 1880 appeared two new
works upon encyclopedia, Karasevich's Encyclopedia of
Law, 1872, and Delarov's Outline of Encyclopedia of

Law, 1878, but they remain unfinished. Karasevich

had one fascicule published, containing little more
than the preface. Delarov's work according to the
author's plan was to have three volumes. first, In the
law is considered as one of the factors of social life. To
speak properly, the author has concerned himself little

with positive law. The first is the only volume pub-

lished. other two which have not appeared were
The
to contain an exposition of the general theory of law,
Vol. 1; and the application of this theory by means of
the civil law, Vol. 2. In the literature of other countries
are scarcely found, so far as I know, works upon legal
"Encyclopadie." Holland must be excepted, for there
is found Anne den Tex. Encyclopaedic Jurisprudentiae,

1835, and also the Belgian Roussel's Encyclopedic du

droit, 1813. Second edition at Namur, 1874. One
might also two
cite French works, Eshbach's Cours
d'introduction generale a 1'etude du droit ou Manuel
d'encyclopedie Juridique, third edition, 1856, and
Courcelle-Seneuil's Preparation a 1'etude du droit, 1897.
 INTRODUCTION 23

PHILOSOPHY OP LAW
MASARYK. Versuch einer Konkrete Logik, 1887. Wundt
Logik, Section 619.
HARMS. Begriff Formen und Grundlegung der Rechts-
philosophie, 1889.
BERGBOHM. Jurisprudent und Rechtsphilosophie 1, 1892.

Section 3. With the ancients philosophy was univer-

sal science. For them it was a science which general-
ized the others in bringing out the traits common to
them. So Aristotle's philosophy embraces mathematics,

physics, ethics and poetics. What the author called

"primary philosophy," irp^rrj <iXoo-o<ia and his ancient
commentators "metaphysics," because it followed physics,
had as object the study of the fundamental principles of
the Universe. The word "metaphysics" indicated to
them only the order of succession of Aristotle's studies,
but, subsequently, it took another signification. It desig-
nates a priori studies. In England philosophy still usu-
ally meansscience in general, as with Aristotle. On the
continent, however, and above all in Germany, philoso-
phy means a particular transcendental view both of the
object of study and of the source of the science. As to
the first, it regards philosophy as the science of supra-
natural phenomena; for example, those of the soul, of
the supreme cause of general phenomena, of the absolute,
in contradistinction to relative knowledge of sensible
phenomena. As to the second, philosophy can have the
same object and the same content as the empirical sci-
ences on condition that the method applied to the study
of these phenomena be not empirical. According to this
method, which has especially prevailed since the time of
Chr. Wolf, each thing can be the subject of a double
24 THEORY OP LAW
study, one empirical finding its matter in sensible ex-
perience, the other philosophical seeking knowledge of
the supra-sensible; so, for example, by the side of em-
pirical science of nature is philosophy of nature, and by
the side of empirical psychology is philosophic, rational
psychology, etc.
As law is not a phenomenon of external material
nature, but one of the consequences of man's rational
activity, it has been for a long time classed among the
subjects of philosophical research. The setting forth of
the idea of law, the determination of its origin, and other
such questions, are studied in that philosophy styled
"practical" or "ethical." Antiquity ignored legal phi-
losophy as a distinct branch, in the same way in which it
failed to recognize elsewhere the divisions of science. As
for the middle ages, philosophy of law as a distinct
branch of learning distinguished from ethics appeared
only in the XVII century. Starting with the XVII cen-
tury, it passed in its development through two
entirely
distinct phases. At first the philosophy of law differed
from the science of positive law not only by its method,
but by very object, which was not positive law,
its

variable and changeableas we find it, but the in-

variable, eternal, natural law on which positive law,
it was thought, should rest. It was only at the
end of the XVIII century, when the new historical
school had shown the insufficiency of the conception
of natural law, that philosophy applied itself to the
explanation of positive law. Briefly, the philosophic
study of law was known to the XVII and XVIII cen-
turies under the name of natural law Jus naturale,
and to the XIX century under the name of philosophy
of law.
The beginnings of natural law are found in the cele-
brated treatise of the learned Hollander, Hugo Grotius,
De Jure Belli ac Pacis Libri Tres, 1625. The fundamen-
 INTRODUCTION 25

tal idea of his doctrine is, that there should be recog-

nized beside or beneath the variable positive law estab-
lished by the will of God or of men (Jus Voluntarium),
an invariable natural law derived from the nature of man
regarded as a reasonable being, and especially from his
inward need for iiving in society. (Appetitus Societas.}
'

"That is just, proclaimed Grotius, "which is conformed

to the nature of society among reasonable beings. Such
law is absolutely natural and independent of time and
place. No one can change it. It would exist and remain
the same even if there were no God."
Grotius' doctrine was presently a good deal extended
Already, in the XVII century some new theories of natu-
ral law appeared. Such was, first, the theory of Thomas
Hobbes in his Elementa Philosophica de Give, 1842,
which repeated Grotius' principle of sociability and rec-
ognized as humanity's leading trait, fear, upon which he
established his fundamental natural law, "Pax est Quas-
renda." Samuel Puffendorf applied to natural law the
doctrine of the Cartesians. With him as with "Grotius
the principle of sociability is the primary natural base.
His doctrine was very popular in the law schools of the
time because it was the first to set forth natural law
according to a well ordered system and also because he
had connected his theory with the more philosophic doc-
trine of Descartes. His book, De Officiis hominis et
Civis, 1673, translated into several Ianguage3, became a
current manual of natural law.
The theories of the XVII century did not yet distin-
guish morality from law, at least from natural law. So
in these theories the opposition between natural and posi-
tive law is not yet very clear. It was confused with the

scarcely recognized distinction between law and morality.

But at the beginning of the XVIII century Chr.
Thomasius first distinguished definitively law from mo-
rality. He went so far as to oppose the one to the other,
26 THEORY OF LAW
giving to the theory of natural law a more precise and
rigorous character.
Starting from this time, natural law is only law as op-
posed to moral rules. About the middle of the XVIII
century Chr. Wolf and his disciples gave to the theory of
natural law a systematic form, but in the spirit of the
doctrine of Leibnitz. The theorists of the XVII and
XVIII centuries all alike employed in developing the
natural law a deductive method. It is, however, neces-
sary to observe that the elements on which they build
were not created a priori, were not innate ideas. Kant
(1714-1804), in his Metaphysische Anfangsgrunde der
Rechtslehre, had sought to give to the theory of natural
law the absolute, a priori character, which it lacked.
He deduced from an absolute a priori
all its principles

category of our which

reason, can be formulated
in the following terms: Act in such a manner that

your liberty shall accord with that of all and of

each.
The doctrines of natural law penetrated into Russia
at the commencement of the XVIII century. That of
Puffendorf was particularly esteemed. In 1726 there
was printed a translation of his book made by order
of Peter the Great. Ch. F. Gross, professor of moral
philosophy at the academy of sciences (1725-1731), and
the first professor of the law faculty at Moscow, Diltei,
used this book in their classes. From 1790 to 1800 Prof.
Skiadan used it also. We might an original
cite, too,
attempt to set forth the theory of natural law by V.
Zolotnitsky in his Abridgment of Natural Law, Ex-
tracted from Various Authors for the Use of Russian
Society, 1764. The author gives as the foundation of
his science the rule "know thyself," which leads us to a

comprehension of our dependence upon God, and our

neighbor and the necessity of guarding our own preser-
vation.
 INTRODUCTION 27

However, the taste for the doctrines of natural law

was not at that time general. On the contrary, from
1760 to 1770 one observes in Russian savants a tendency
to study legal history. We might name among those
who showed this, Polenov, and especially Diesnitzky, the
firstRussian law professor to criticise the theory of natu-
ral law severely in his Opinion Concerning the Most
Direct and Shortest Means for Studying Jurisprudence.
"The work of Puffendorf is really useless," says he, "for

writing upon imaginary states of mankind without show-

ing how property, possession or inheritance take birth

and are regulated, does not answer to our ideas or pur-
poses."
was the foreign savants who contributed to spread-
It

ing in Russia the doctrine of Wolf. Kant's doctrine rep-

resents the culminating point in the natural law theory
in its first phase.He presses to its extreme limits the
opposition between natural and positive law. But at
the same time that his doctrine was spreading, an His-
torical School of Legislation was forming in Germany,
having as its principal representatives Gustave Hugo
(1798-1844), Fri. K. Savigny (1779-1860) and Geo. Fr.
Puchta (1798-1846). This school declared energetically
against the existence of natural law as a special norm
having its place beside the positive law. It claimed to
show that all law is a historical product of the people's
life, that it is not created by the will of a legislator and
is not a code of eternal, absolute, invariable principles.
According to this school, law is a historic element in the
life of a people, capable of a regular evolution.

The blow to the theory of natural law given by the

historical school was a heavy one. In philosophic liter-
ature, too, a reaction appeared against the extreme ab-
straction of the rationalist doctrines. With Schelling
(1775-1854) the philosophers abandoned the study of
empty abstractions, to turn towards concrete and living
28 THEORY OF LAW
realities. In opposition to the abstract systems of the
rationalists who did not concern themselves with con-
crete reality, contemning the positive law which they
considered as only a mutilation of the eternal principles
of natural law, Schelling elaborated his system of posi-
tive philosophy which was to explain the meaning and
inner reason of all that exists. The late representatives
of German philosophy followed Schelling. Among them
we will cite the three who have had most influence upon
modern philosophy of law: Hegel, Grundlinien der
Philosophic des Rechts, 1821 Krause, System der Rechts-
;

and Herbart, Analytisch Beleuchtung

philosophie, 1874,
des Naturrechts und der Moral, 1836. None of them
maintain the existence of a natural law by the side of
positive law. They follow a different purpose, that of
comprehending the positive law in its historic forms and
explaining their basis. If they employ still sometimes
the words "Natural Law," they no longer mean the
famous code of natural and eternal laws, but the philo-
sophic basis for positive law. The disciples of Hegel
(Michelet, Gans, L. Stein, Lasson, Lassalle, Max Stirner),
taking for starting point the identification of laws of
being with laws of thought, have struggled to present
the development of different systems of positive laws as
a dialectic development of a general idea, that of liberty.
Krause's disciples, who form what is called the organic
school where can be ranked Roder, Ahrens, and a good
many Italian writers like Pepere, Lioy, and others, think
to find in the harmonious development of the individual
the definitive ideal towards which the development of
positive law tends. Lastly, the disciples of Herbart
(Thilo, Geyer, Ziller) seek to draw all the great variety
of historic forms of law from two ideas, that of right, re-

sulting from conflict, and that of justice (remuneration),

which are, according to them, the absolute base of all
which we deem just and equitable.
 INTRODUCTION 29

Among all these schools the most influential one in

Russia has been Hegel's. Chitcherin followed it, making
original applications of History of Political Doctrines,
it :

1878. Property and Government, 1882-1883. Principles

of Logic and
of Metaphysics, 1894.

Although the philosophy of law in its latest form has

turned towards the explanation of positive law, it is,
nevertheless, not to be confused with the science of posi-
tive law. It keeps its own method. It employs neither
observation nor induction. It continues to suppose that
an explanation of eternal principles of positive law can
be given, not by the empirical method, but by way of
metaphysics with the aid of principles conceived imme-
diately by our reason without aid from experience. It
thinks this peculiarity of method allows philosophy to
reach not only an absolute knowledge of law, to explain
not merely legal relations, but also, the profound reasons
of the law.
The conception of legal philosophy regarded as a spe-
cial science supposes, first, the possibility of a knowledge

not founded upon any experimental system; second, the

necessity, or at least desirability, of separating the a
priori elements of the science from the empirical ones. I

do not wish to pass upon the first proposition. It belongs

to the theory of knowledge, a theory having no special
connection with law and offering still a vast field of con-
troversy. We
will say only that in these last days, the

theory of knowledge a priori is more and more corn-

batted. Whatever opinion one adopts as to the theory
of knowledge, I do not think it possible to maintain the
necessity of a legal philosophy, conceived as a metaphys-
ical science of law.
If metaphysical knowledge of absolute truth is possi-
ble, why separate it from empirical study of the variable
and the relative? In this case, the relative deserves
study as a special manifestation of the absolute. The
30 THEORY OF LAW
metaphysical knowledge of the absolute and the empiri-
cal knowledge would both gain much from such a com-
bination. The notion of the absolute explained by the
knowledge of the special and relative form of its mani-
festation would become more concrete, more living.
Knowledge of the relative, illuminated by understanding
its absolute and fundamental principles, would become
more profound and more rational. This is why, if there
are several methods of knowledge, there is no reason for
separating them. They ought all to be combined into the
study of the object.
scientific

Moreover, it is necessary to declare that in our day we

are more and more led to refuse to admit the existence of
philosophy as a special metaphysical science bearing upon
the elements which constitute the domain of the empiri-
cal sciences. If philosophy has still pretensions to being
a special and independent science, it is not as an a priori
knowledge of being, but as a theory of knowledge, or as a
general theory having, nevertheless, the same sources as
the different special sciences. 1

1
Wallaschek Studien zur Rechtsphilosophie 1889. S. 107. Die Zuruck-
fuhrung des in der Rechtsordnung formulierten Inhalts auf allgemeine Denk-
formen ist die Aufgabe der Rechtsphilosophie, sie ist die Wissenschaft vom
Juristischen Denken.
 INTRODUCTION 31

THE GENERAL THEORY OF LAW

MERKEL. Ueber das Verhaltniss der Rechtsphilosophie zur
positiven Rechtswissenschaft (Grunhut's Zeitschrift, Sec. 1, 1874).
SCHUETZE. Die stellung der Rechtsphilosophie jur positiven
Rechtswissenschaft. Id. Sec. 6, 1879.
BERGBOHM. Jurisprudentz und Rechtsphilosophie, 1892. Vol.
1, pp. 90-100.
MUELLER. Die Elemente des Rechts und der Rechtsbildung,
1877.
POST. Bausteine fur eine Allgemeinen Rechtswissenschaft,
1880.
MERKEL. Elemente der Allgemeinen Rechtslehre, 1889.
(Holtzendorff's Encyclopadie der Rechtswissenschaft.)

Section 4. As seen in the last section we maintain

that neither the encyclopedic method which seeks a rem-
edy for the excessively fragmentary condition of our sci-
ence in a review, superficial it is true, of the whole of it
in all its branches, nor the philosophic system which
attempt to find the deepest source of the science in some
a priori principles, have reached their object. In our
day no one any longer believes they can. Both the ency-
clopedic and the philosophic literature of the law are
going through a phase of decadence. Philosophy, which
was conceived as a science having its own peculiar source
and distinct method, is regarded in our time as a more
general science, but one supporting itself by experimental
proofs like all the rest. Its actual task extends only to
the generalization of materials furnished b}^ the various
special sciences.
Consequently, the philosophy of law, the metaphysical
science of absolute legal principles, is replaced little by
little with general theory of law, which has as its base

positive and historic proofs. This tendency is very

marked in England where it is known under the name of
32 THEORY OF LAW
the analytical school. John Austin is considered its
founder with his Province of Jurisprudence Determined,
1832, and Lectures on Jurisprudence or Philosophy of
Positive Law, 3d Edition, 1869. He has at the present
time a good many followers. 1
In Germany, too, the necessity of replacing metaphys-
ical construction by a general theory of positive law is

recognized. As early as 1820-1830 Falk had demon-

strated the need of the change. In contemporary Ger-
man literature view
especially sustained by Merkel,
this is

who thinksabsolutely necessary to eliminate from all

it

serious study of the law, that of the metaphysical phi-

losophy of it, or at least no longer to recognize it as

drawing its proofs from any special source. It is to be
considered only as general theory with the rank such
theory holds in all other sciences. Meanwhile, this opin-
ion has not been approved by all the world. It meets
numerous adversaries who present various objections.
Schutze, for example, defends the old separation be-
tween positive law and the philosophy of law. Accord-
ing to him Merkel's general theory is "Encyclopadie."
"The philosophy of law is a branch of practical philoso-
phy, that is, of that philosophy which applies deduc-
tively the formal laws of thought to the establishing of
the absolute and its ideal content. It is precisely that

part which is to concern itself with law in drawing it

out from a higher conception and studying it in its
logical development." This sufficiently obscure distinc-
tion Schutze explains by some examples which show in
what consists for him the difference between a philo-
sophic, and a positive study of legal institutions. For
this purpose he passes in review the most important in-

stitutions, contract, property, the state, and penalties.

"For the lawyer or the historian," said he, "the obliga-
1
Markby, Elements of Law. 1871. Holland, Elements of Jurisprudence.
1880. 10th Edition. 1906. Pollock, Essays. 1882. Passim.
 INTRODUCTION 33

tory force of a contract is a fixed fact, a principle, an in-

contestable result. The philosopher, however, cannot
pass over in silence the preliminary questions. Are con-
tracts obligatory and if so what is the basis of their ob-
ligatory force? In the same
way for private property,
the philosopher asks to what point it agrees with the
idea of law and, above all, with the equal claim of all
men to the means of satisfying their necessities. The
lawyer and historian meet only by chance with such
questions along their way. In the same way, as to the
state, the philosophy of law asks these questions: Is
the existence of the state a rational need or only a histor-
ical product? What form of government is best con-
formed to reason ? Does government in essence rest upon
contract?" etc.
But, even these examples are not satisfying proofs.
Without being able to claim to give a complete solution
to these questions, positive law, to the extent which it
involves them, is compelled to find some solution for
them. The lawyer must ask what are the conditions of
the validity of contracts. It is impossible to explain

these conditions without setting forth the basis of their

obligatory force. On the other hand it is useless to ask
such questions as what form of government conforms
best to reason, for one cannot estimate the different
forms of government without taking into consideration
the historic conditions of the times. The fact appears
that juridico-philosophical literature, so understood, is
falling more and more into decadence, and is replaced by
investigations upon general questions of law. These in-
vestigations bear upon the study of the historic and posi-
tive elements and make no claim to find the solution of

deep legal problems in metaphysical science. So, we

think ourselves authorized in considering as superannu-
ated and abandoned the idea formerly held of the pur-
pose of legal philosophy. The future belongs, in our
34 THEORY OF LAW
opinion, to the philosophy of law considered only as gen-
eral theory of law.
But if we identify philosophy of law with its general
theory, how does it differ from encyclopedia of law? Are
they to be confounded? What will the philosophers say
to that? Thus, Friedlander in showing the scientific im-

portance of the encyclopedia of law affirmed that legal

philosophy could not exist by its side as a distinct sci-
ence. In Russia, it was Prof. Karasevich who first as-
serted the necessity of identifying philosophy of law and
its encyclopedia.
In Germany, this opinion is not generally admitted.
The German jurists are so much in the habit of separat-

ing the two that Merkel himself, who demanded so reso-

lutely that philosophy of law be replaced by its general
theory, believed in the independent existence of an En-
cyclopedia of Law, meaning an abridgment of all branches
of the law, embracing in it a general theory of the law.
" "
But, Encyclopadie thus understood has no longer the
character of an independent science.
In Russian literature there are some jurists who pro-
nounce for maintaining the distinction between philoso-
phy and encyclopedia of law. Prof. Zveriov, notably, is
of this opinion. According to him the encyclopedia of
law has no subject of study of its own. It borrows nearly
all its materials from philosophy. It is for him an in-

complete repetition of the philosophy of law. It does

not reproduce the whole of legal philosophy. It takes
of it only what is strictly necessary to serve as an in-
troduction to instruction in the law. The philosophy in
an independent science, while encyclopedia
his opinion is
isonly a form of instruction. It is the incomplete copy
whose original is philosophy. Conceived as an intro-
duction to the juridical sciences, composed of materials
which the philosophy of law furnishes to it, encyclo-
pedia presents to us throughout definite results so far
 INTRODUCTION 35

as this ispossible in the present situation of legal knowl-

edge. Philosophy, on the contrary, makes of these same
matters the object of its researches and studies juridical
norms in the process of their formation.
" "
Encyclopadie affirms and sets forth; philosophy dis-
cusses and studies. The one is dogmatic, the other
critical. If
encyclopedia proposes prepare the be-
to

ginner for the study of the special legal sciences, the phi-
losophy of law seeks to be the conclusion of his studies.
If the first serves to trace a plan for study, and show
the route to be taken, the second is to give a general
view of what has been done as a whole, to set in order
the acquired knowledge and to take account of the
work accomplished.
Zveriov's opinion does not fail to leave some diffi-

culties. At the very start can we be satisfied to define

encyclopedia as an object of instruction and to oppose

it as such to philosophy as a science? Is not science,

then, an object of instruction? Zveriov means, prob-

ably, that encyclopedia is only a special means of giving
instruction in legal philosophy; but even with this
correction his conclusion raises some doubts. He claims
that encyclopedia gives a dogmatic exposition of some
questions as to which philosophy presents a critical
study. He adds even that encyclopedia exhibits results
without showing the means which obtained them. We
do not believe he means to say by this that it ought to
proceed by simple affirmations. Such a bad method for
any kind of instruction is especially so for university
teaching.
We believe that he wished to say that encyclopedia,
without insisting upon the differences which separate
the schools, applies itself generally to setting forth fixed
doctrines of systems as wholes. In this sense we can
say that it prefers the dogmatic to the critical method.
But even when so presented his observations raise
36 THEORY OF LAW
objections. The choice of one or the other method is

not left free. If for a given question there is as yet no

theory accepted by the scientific world, we must be
with expounding controversies.
satisfied
So we cannot consider the philosophy of law as a
science distinct from the encyclopedia of it. They are
but one. They are only transition phases. They are
but preliminary elements of one discipline, the general
theory of law. The usefulness of a general theory of
law was long ago recognized, but it was imagined that
it could exist beside the encyclopedia without being

absorbed by this last. Such is notably Falk's opinion.

He proposed to replace natural law by a general theory
of law, that is, by an exposition of the general prin-

ciples resulting from analysis of positive law. But at

the moment this conception was brought forth it could
hardly survive. Only in our day does it begin to be
admitted.
Miiller develops it in considerable detail. He pre-
sents the general theory of the law as a system of prin-
ciples of law, System der Rechtsgrunde. Without speak-
ing of direct practical utility for legal science, it has
a double task to perform. First, it studies the varie-
ties of the facts, systematizing them and applying to
them different methods, speculative-idealistic, histor-
ical, and
empirico-realistic. Second, from the mate-
rial of law thus constituted it derives the general prin-
ciples, combines them according to their intrinsic nature
and makes of them a system which is the general theory
of the law. Once the leading principles are isolated
they are applied to the estimating of existing law, to
show and clear up at the same time the path of evolu-
tion. The general theory of law evidently cannot have
direct application to life, for it contains only general
principles and not the distinct juridic rules which con-
trol the relations of daily life. Moreover, it is impos-
 INTRODUCTION 37

sible to derive a science of practical law from the prin-

ciples of general theory. The evolution of law has for
its starting point natural elements, the relations of life.
The theorist draws his general notions from the study of
these relations, and of the practical law to which they
have given birth. He ought to conceive as a whole the
system of practical rules and of legal relations of daily
life, and then to decompose this general organism into

its organs and distinct elements, to determine their

relations and reciprocal influence, the norms and the

purposes of their action, as well as the role of the whole
and of each of the parts. The general theory of law
verifies everywhere the positive law from the technical
and logical point of view, shows the internal connection,
the essence of the social organism, and refers them to the
general principles of human activity in society and the
state. It is thus the keystone of jurisprudence. It
binds into a whole the separate parts and their diverse
contents. To attain this object it ought to observe
rigorously the objective method, and avoid all subjec-
tive construction. If in our day some general considera-

tions precede the study of the different categories of

legal training, it is because we have not yet a suitable
theory of law, and each jurist finds the need of setting
forth some of his own opinions concerning it.
In this way Albert Post believed that the development
of law, conceived as one of the branches of positive
social science, will have as a result the fusing of history
and philosophy. Only the general study of law, eine
allgemeine Rechtswissenschaft, can subsist at the side
of the history of the law. It will have an empirical
character when it is studying the phenomena of juridical
life,a philosophic character when studying the causes
of those phenomena. But the two parts of jurispru-
dence, history and theory, ought to be closely bound
together.
38 THEORY OF LAW
Muller and Post in imagining the role of general
theory of the law did not examine its relations to ency-
clopedia. The first German jurist who is pronouncedly
in favor of their identification is Schutze. In his course
on the encyclopedia of law he conformed to this idea,
as his printed plan for the course shows. The lectures
themselves were, unfortunately, not published.
In our day nearly all Russian encyclopedists recognize
the necessity of identifying encyclopedia and general
theory of law. At least, all the printed courses on
"Encyclopadie," except those of Nivoline and of Rojest-
vensky, present only the general study of law. Kapous-
tine, even, replaces the name "Encyclopadie" with that
of "General Dogmatics." But, as Karasevich rightly
says, this terminology is not well chosen, for dogma is,

as all the world agrees, opposed to history, and means

an applied science of law.
This between the Russian encyclopedias
difference
and the German ones, the best and most systematic of
which for example, Falks's, Walter's, Ahrens', Warn-
konig's and Merkel's are only brief expositions of the
separate juridical sciences preceded by a short general
introduction; this difference,
say, we is explained by the
conditions of our legal instruction. In Germany, instruc-
tion in law consists simply, according to Stein's state-
ment, in some studies in civil law in its different mani-
festations. The other branches, one may say, are not
tolerated. There is no occasion to be astonished, then,
that there no general theory of the law, but only a
is

brief exposition of civil law, Roman or German, and

sometimes, as in Putter, Ahrens, and Warnkonig, the
general history of law. Things do not go the same in
our universities. The civil law has never predominated.
Since Peter the Great, legal and political instruction
have been combined. For this reason the Russian ency-
clopedist cannot put into his course a rapid exposition
 INTRODUCTION 39

of all which taught in the law faculties. The matters

is

being very diverse, even a brief resume of them would

be something too complex. The conditions of our
university instruction require of an encyclopedist not
a resume of the special sciences, but a general theory
of the law.
 BOOK I

THE CONCEPTION OF LAW

CHAPTER I

THE DEFINITION OF LAW

Section 5. Technical and Ethical Norms
Endowed with a faculty of generalization which be-
longs to us in our capacity as reasonable beings, we are
guided in our conscious activity not only by concrete
notions, but also by rules which indicate the line of con-
duct necessary to follow to attain such or such a desired
end. These rules which depend upon the nature of the
proposed end bear the general name of "norms." They
vary with their ends, but all unite in two leading groups,
technical and ethical norms.
Technical norms are rules which indicate the manner
of acting in order to attain a determinate end. Such are
rules of hygiene, of pedagogy, of grammar, of architec-
ture, which teach us to preserve our health, to develop the
faculties ofan infant, to express our ideas in an intelli-
gible manner, to build a house. There are as many tech-
nical norms as there are different ends sought by men.
Observation of each of them brings only the realiza-
tion of a single given end without assisting towards
the other ends of human activity, and sometimes even
hindering their realization. If the end pursued is vast
and complex, its realization is naturally determined by
a complicated system of rules bound together by the
unity of the end. The systems of this kind form so
many distinct arts. Thence comes the name, technical
norms.
Distinct technical norms correspond to the different

objects of human activity; this is why men act always

41
42 THEORY OF LAW
conformably to their ends. Each separate technical norm
follows a single determinate end and leads to a realiza-
tion of a single distinct purpose without entangling con-
nections with others. At the same time, however, the
different ends of human activity struggle together inevi-
tably. The realization of one impedes often that of an-
other. The man, limited in strength, in external forces,
and in time,must give up the complete realization of
his purposes. It is necessary for him to sacrifice secon-
dary objects to attain leading ones. Obliged thus to
choose between different ends man cannot do without a
guiding principle to show the line of conduct to follow,
the ends to sacrifice, and those to which the preference
is to be given. The technical norms cannot answer this
need. Showing the way to realize a given end, they do
not give rules intended to introduce harmony into the
realization of several ends. So there exist, besides the
technical norms, some of a different kind, the ethical
ones. Man cannot guide himself through life merely by
technical norms suited only to the attaining of separate
ends. He is guided necessarily by another principle

which determines the choice of ends themselves. Accord-

ing as men are more or less capable of realizing this or
that specific end we estimate their capacity in the given
art. According to their manner of comprehending the
mutual relations of these ends and by their choice of
them we judge of their morals, of what the Greeks ex-
pressed by the word (rjdos). So the rules which deter-
mine the correlation of the different ends of human ac-
tivity are called "ethical."
According to what has been said the distinction be-
tween technical and ethical norms may be formulated
thus. Technical norms are the rules directly applicable
to the realization of the distinct ends of human activity,
ethical norms to the realization simultaneously of all
human ends.
 THE CONCEPTION OF LAW 43

Certainly we must conclude from this that ethical

cannot replace technical norms. They have not the
force of a general technical rule and cannot be applied

directly towards the realization of a distinct and sepa-

rate end. Observation of ethical rules does not lead
directly to the accomplishment of any single practical
purpose. That is always effected by conformity to tech-
nical rules. Ethical rules act only in the delimitation,
so to speak, of separate ends, not their realization, only
in determining their mutual correlation. They render
possible the realization of several ends simultaneously
by defining their "form," the formal side of their recip-
rocal connections, but these objects themselves are real-
ized only in conformity with rules suited to their intrinsic
nature. In this sense ethical norms are distinguished
from technical ones as formal from material norms.
Their observance only adds to the mutual correlation of
ends a harmonious form, but does not advance the reali-
zation of their content.
Technical rules are as numerous as the ends which
life assigns to us. The men who pursue distinct ends
are guided by different technical norms. On the
other hand, ethical norms, which preside not at the
realization of separate ends, but over the determina-
tion of the relations constituting the combination of
ends, do not vary with the nature of the end pursued at
a given moment. The same person does not have
different ethical rules for the different circumstances
of his life. Ethical rules determine the connection of
different ends. They are necessarily the same for
all the manifestations of human activity, for all

the circumstances of life. norms are

Thus, ethical
characterized by unity and technical norms by va-
riety, by plurality. The same man at the same
time may be controlled by the most diverse technical
rules.
44 THEORY OF LAW
If technical rules are those indicating means for

attaining determinate ends, their observance ought to be

optional. All depends here upon the value assigned to
the end pursued, whose realization is sought in accord-
ance with a certain rule. Only he who counts his health
important, will observe hygienic rules. No one would
recommend them to a man who was seeking to put an
end to his life or destroy, scientifically, his health. On
the other hand, the man finds himself bound to yield
to a rule which establishes the harmony, the desired
unity, between the different objects which solicit his ac-
tivity. If I have several ends to realize, it is impossible

not to wish that there be harmony between them. Only

the man attacked with mania concentrates himself upon
a single one. The man enjoying normal health as-
signs always several ends for his activity. That the
harmonious simultaneous realization of several ends is
desired by most men, admits of no doubt, so there can
be no doubt of the obligation to observe the rules of
ethics. Therefore, technical norms are optional and eth-
icalones obligatory.
not simply their obligatory character which dis-
It is

tinguishes ethical from technical norms. If a technical

rule is not observed, there results only that a given end

is not attained. That is all. This negligence has no
influence upon the man's activity. I have
rest of the
cultivated my field
badly, but perhaps I can build a
house. A bad farmer may be a good pedagogue. Inob^
servance of ethical rules, however, disturbs our whole
activity by destroying the harmony which guides it.
The consequences of the violation of ethical norms are
always felt. They have their counter stroke in all our
affairs and prevent us, often, from attaining the most
important ends. When we are conscious that the com-
plete violation of ethical norms has placed us beyond the
possibility of realizing for the future other human objects
 THE CONCEPTION OF LAW 45

of the highest kind, we experience remorse, and recognize

thereby the imperative character of these rules. To
this interior sanction has been added another one out-
side. The violation of technical rules brings only the
stopping of a given enterprise, and, consequently,
touches only the persons interested in the affair. Who-
ever does not follow these rules, we call unskillful
or imprudent, but the matter does not directly concern
us. It does not matter to us whether the technical
rule is observed or not. On the contrary, the violation
of ethical rules brings into play the general interest.
All human interests turn upon two main centres, the
individual and society. Every ethical system, what-
ever be its characteristic principle, determines neces-

sarily the connections of thesetwo categories of human

interests.Society cannot remain indifferent if ethical
norms are violated, if the harmony of human ends does
not exist, if What-
personal and social interests conflict.
ever violates norms provokes, infallibly, the
ethical

disapprobation of society, which is interested in the ex-

istence of a certain relation between the purposes of
individual men and collective social purposes. Society
wishes each member to observe moral rules; it condemns
those violating them, and, in grave cases, even proceeds
to punish them. Observance of moral rules is not then
leftto the subjective judgment of the individual. It has
the character of an objective obligatory rule, of an im-
perative order.
But, if we consider the content of technical and moral
norms, the connection between the two is going to ap-
pear under a different aspect. In their content technical
norms are objective. In fact, to act conformably to a
given end, is to employ the forces of nature to effectuate
that end But the action of nature's forces is always
rigorously constant. This is why if the law of a given
group of phenomena is known, the corresponding tech-
46 THEORY OF LAW
nical rules will be the logically inevitable consequences
of that law. For example, the rules of architecture are
the logically inevitable consequences of the laws of
mechanics. For technical norms, the choice once
made of some determined end, are the rules of its reali-
zation, and are indicated of themselves, as inevitable
consequences of the law of the corresponding phenomena.
It results that the content of technical rules is deter-
mined by objective facts, except as to the connection
between the man and these rules. If, sometimes, tech-
nical norms are insufficiently determined objectively,
for example, the rules of pedagogy, it is only because

the laws of the corresponding phenomena have not been

ascertained with the needed precision, in the case given,
the laws of the mental life. The law of the phenomena
being known, there can be no doubt as to the corre-
sponding technical norm.
It is altogether different with ethical norms. They are
never presented as inevitable consequences of a law.
The rule to adopt for controlling the relations between
different ends of human activity is conditioned by a
series of absolutely subjective circumstances which are
extremely variable. Each man has his objects, appre-
ciates them subjectively, and settles according to his
taste their reciprocal relations. What is secondary for
one may constitute the chief end in life for another. Per-
sonal tendencies, theoretic ideas, religious beliefs, social
customs, all these factors alter to infinity human inter-
ests and the relations among them. It is not logical con-
sequences of a certain conception, but rather sentiments,
which determine the relations which we establish be-
tween the different ends of our activity. The content of
ethical norms has necessarily a subjective character. It
is marked by the existence of many shades. It is always
an object of controversy. We cannot base it upon rigor-
ously logical arguments, carrying to all the evidence of
incontestable truth.
 THE CONCEPTION OF LAW 47

Section 6. Legal and Moral "Norms"

We
have just shown the difference between two lead-
ing categories of norms, the technical and the ethical.
With which shall we rank legal ones? The answer
is not doubtful. Juridical norms present all the char-
acteristicsof ethical norms. The observance of rules
of law not directly necessary to any material end.
is

Law only outlines the frame for the various material

interests and activities, forming the content of social
life. At the same time, the observance of juridical
norms is acknowledged as binding on all, independ-
ently of its desirability for this or that special end. In
short, the content of law is not simply the inevitable
logical consequence of natural laws, as is evident from
the fact of the variety and even contradictoriness of
legal rules existing in different times and countries.
But juridical norms are not the sole ethical norms. By
their side are moral ones. For the exact definition of
legal rules they must be separated from moral ones.
To that end, we shall try to show how it is generally
possible to effect the combination and harmony of the
various interests of human life. From this of itself will
be obtained the main division of ethical norms, their
separation into morality and law.
Full and unlimited realization of each of man's differ-
ent aims is, in view of his limited strength and means,

impossible. He is compelled to limit the accomplish-

ment of some purposes, even to renounce some alto-
gether. He must make a choice among his different
ends, separate them one from the other, estimate one
as more important, another as less so; in a word, the
is unavoidable.
relative appraisal of interests Without
such moral appraisal one could not guide himself in the
48 THEORY OF LAW
multiplicity of interests so varied and conflicting, could
not recognize the importance of one aim over another.
This appraisement of values determines their prefer-
ence. But this appraisement of aims and interests
belongs to morality. However different the moral prin-
ciples advanced by
different theories, all agree in pro-

posing a criterion by the aid of which different interests

in competition can be weighed. 1
In this function of fixing the relative importance of
interests centre all the moral theories. Whether we
deduce moral rules from utility, truth, harmony, beauty,
pity, love or innate feeling independent of all morality,
matters 'ittle. The difference of foundations upon
which moral theories rest produces divergences in the
criteria which they use, but all the theories forever
result in the elaboration of some criterion, which is the
dist'nctive and indispensable mark of the theory pro-
ducing it. The moral rules determine rigorously the dis-
tinction between good and evil, between what is to
be done and what is not to be done, between moral
and immoral ends. They present the higher principles
which direct our whole activity, the criteria for all our
actions.
The isolated man, outside of social life, may subordi-
nate his activity to moral rules. Nothing, indeed, pre-
vents his establishing a harmony between the different
ends whose realization he seeks, after estimating their
Good and evil appear in gradations.
respective values.
Good ends and bad are ranged in a definite order and
thus there can be established a fixed relation between
all human aims. When several conflict in their accom-
plishment, one can always by applying a moral test
decide which should be placed highest in the moral
scale, and, consequently, which are to be preferred.

1
It goes without saying that this declaration relates not to mere material
interests alone, but also includes the highest moral interests of man.
 THE CONCEPTION OP LAW 49

But reality does not show us isolated men, mutually

independent. Each instant we must recognize our de-
pendence upon our fellows. All our activity depends

upon our relations with other men; without them the

realization of our interests would be impossible. Those
interestswhich are general subjects of human activity
are not merely subjected to other individual existences,
they are universally subordinated to general conditions
of social life; for this reason many interestshave not an
individual but a social character. Man must act con-
formably not merely to his personal interests, but to
those also of other men without whom he cannot exist.
When a man enters into relations with his fellows
not only do his own interests contest together, but his
own interests conflict with those of other members of
society, the adoption of a common criterion, the estab-
lishment of the desired harmony, of a fixed order among
the different interests in view, becomes more difficult.
The interests of another against which our own are
in conflict may be exactly equivalent or identical with
ours. The moral criterion cannot then give such an
indication as to settle the conflict. It is not merely
when identical interests are in conflict that the moral
criterion is insufficient. The application of a moral
criterion to a multiplicity of interest at once can only
be conceived as possible if the criterion is accepted by
them all. Otherwise there will be under consideration
some acts which will conform to a fixed moral rule, but
which will not be the same for all the interests. The
divergence will appear not only between the interests
but also between the conditions which inspired them.
Very rarely do men apply the same moral rules to the
lesser details of their acts. In society only the more
important requirements are recognized as obligatory.
The details of our action are tried only by a subjective
standard. The personal opinions of one man cannot
50 THEORY OF LAW
be obligatory upon another. A common criterion may
be lacking by which to test and compare the divergent
interests of two men. Finally, even when the moral
norms applied by the individuals are identical, the
evaluation and comparison of the interests of different
individuals may be impossible. The aims of human ac-
tivity do not present themselves separately and in a dis-
tinct they are mingled, interlaced, dependent
manner;
one upon another, and subordinate one to another.
When the question is as to the evaluation of the aims
of a single man, there is no difficulty. The man himself
can organize his individual aims and their reciprocal
connections. But the aims of others are unknown to us
except as manifested in external actions. Others' pro-
jects are known to us only by objective proofs, not in
their subjective details. But without such knowledge
a complete evaluation of different ends is impossible.
Thus, the acquisition of a good is moral or immoral
according to the intended use of it. This is why, when,
proposing to acquire something, I establish that my
acts injure another's interests, I cannot make upon these
facts an accurate moral judgment. I cannot know cer-

tainly whether own interest, or his, ought to be

my
considered of most importance.
So, when the interests of people conflict, there cannot
be established between them a fixed relation by com-
paring them and applying them the same criterion.
to
The interests are often The many details
identical.

upon which depends the judgment we apply remain

ordinarily unknown. Finally, the complexity of our
moral ideas complicates the question still further. It is

only in their most intimate relations that men can under-

stand each other and be led to apply the same moral
rule with a view to reconcile the various interests under
consideration. Many conditions must be fulfilled to
establish such a state of things, absolute identity of
 THE CONCEPTION OF LAW 51

moral ideas, entire freedom, perfect mutual confidence,

and a love that mingles another's interest with one's
own on equal terms. Such relations are not the rule
in social life. Ordinarily men's relations are not marked
by identity of opinions, by freedom, by confidence and
by affection. As a result, it is difficult to find a rule
readily accepted by all the world. It becomes neces-

sary to recognize the infinite variety of situations and

of personal preferences, to establish a fixed relation
between others' interests and our own personal ones.
The mutual relations between men whose interests
are in conflict may present two essentially different

types. 1st. The interests of one

be wholly sub-
may
ordinated to the other's so that the former is only a
means for effecting the latter 's ends. In a case of
absolute subordination of this kind, the master's re-
lations with the subject are determined by the same

principles as with other animals, and things which are

considered merely as means for realizing ends. The
accomplishment of these aims
guided by is technical
norms, choice among them by morality. There can
be here no new peculiar norm to regulate the mutual
relations established by hypothesis between master and
subject. 2d. The persons whose interests conflict may
present themselves clothed in the same legal capacity
without bond of subordination between them. In such
case the conflict cannot be settled by the complete
subjection of one to the other. One ought under this
hypothesis to establish a certain sphere in which each
of the diverging interests can be realized fully, or in
other terms, the simultaneous realization of these in-
terests, to be free, can only proceed if their respective
domains are set off to them beforehand; and thus
the human conscience was obliged to work out some
rule for securing a moral criterion for the evaluation
of our acts and some other rules for fixing and marking
52 THEORY OF LAW
off the respective domains wherein our interests and

those of others can be realized. These different norms

have the same function, the simultaneous realization
ofmen's different aims. Consequently, the norms which
delimit the field of action for our interests are ethical
norms. But they do not give, differing in this from
moral norms, a criterion for the evaluation of our in-
terests, for the distinction of evil from good. They
teach us only to fix limits, give the law for the reali-
zation of our interests when they trench upon those
of others. Consequently, the norms for the delimita-
tion of interests set the boundary between law and not
law and constitute "juridical norms."
Thus, the distinction between morals and law can
be formulated very simply: Morality furnishes the
criterion for the proper evaluation of our interests;
law marks out the limits within which they ought to
be confined. To analyze out a criterion for the evalua-
tion of our interests is the function of morality; to
settle the principles of the reciprocal delimitation of
one's own and other people's interests is the function
of law. It is not difficult to show that from this fun-
damental distinction between law and morals result the
other differences between juridical and moral norms.
They are all explained by the capital distinction just
stated.
Since law is the delimitation of the interests of differ-
ent persons, juridical norms govern only our relations
with others and not those with ourselves. Moral rules,
on the contrary, determine our duties toward ourselves,
for our acts have a moral quality even when they con-
cern only ourselves.
The application of juridical norms is conditioned by
the opposition between others' interests and our own,
and by consequence, their observance is obligatory only
when such interest of another exists. It is that interest
 THE CONCEPTION OP LAW 53

which compels observance of juridical norms. If the

person whose interests limit mine releases me from
their observance they are no longer obligatory: Volenti
non fit injuria. On the contrary, the obligation of
moral rules does not depend upon the interest which
other persons have in their fulfillment. Even if no one
impose it upon me, moral duty keeps for me all its force;
for the evaluation of interests, in a moral point of view,
does not change even when they are no longer in conflict
It results likewise from this, that moral norms impose
an inflexible moral duty upon us. From juridical norms
there results for us a right and a correlative duty. The
right is precisely the ''faculty" to which corresponds the
"
obligation another person, the
binding faculty" of
realizing a given interest within the limits fixed by jurid-
ical norms. The juridical obligation is the obligation
to satisfy the requirements which flow from the right
with which another is vested in regard to us, the obli-
gation of observing the limits assigned to the different
interests under consideration, as determined by the
juridical norms. It is thus that, differing from moral
duty, juridical obligation continues only while the in-
terests for which it was established.
exist Such, for
example, the idea of prescription which extinguishes
is

obligations. Morality does not recognize this idea which

has produced such juridical effects.
The moralevaluation of our interests arises from our
conscience. Their delimitation depends upon exterior
relations which are found established between the dif-
ferent persons under consideration subject to law. Mo-
rality, arising only from the conscience, admits of no
constraint.Convictions are not created by the action
of external
force. Law, on the other hand, admits
sometimes of constraint, precisely in the case of an
encroachment upon the domain within whose limits it
recognizes our right to act freely. Constraint cannot
54 THEORY OF LAW
dictate to us our convictions, but can arrest and prevent
an illegal act. The moral evaluation of interests can
find its application when it is adopted by a single man,
who constrains himself by it in his own acts. On the
other hand, that there may be a place for the juridical
delimitation of our interests all the persons whose inter-
ests are under consideration must realize the obligatory
force of thenorm employed. Morality is, then, rather
a. rule forthe individual, law a social rule. All these
secondary differences between law and morals are con-
sequences of the fundamental distinction which we
have indicated, that the one is the delimitation, the
other the evaluation of interests.
From another point of view, it is not difficult to prove
that every juridical norm is necessarily a norm for the
delimitation of interests. This appears, first, from the
fact that juridical norms find no application in our rela-
tions with our animals and slaves, who are considered
as beings whose interests are inseparable from their
master's and wholly absorbed by the latter; and, second,
from the fact that every juridical norm supposes neces-
sarily an existing relation between several interests,
the norm serving to establish their respective limits.
Civil law marks off the private interests of individuals
who enter into relation with each other, those, for

example, of husband and wife, parents and children,

vendor and purchaser, landlord and tenant, debtor and
creditor. In criminal proceedings, on one side, are
observed the interests of the accused, and on the other
those of society, represented by the government. In
civil proceedings the interests of plaintiff and defendant;
in constitutional law the interests of all the members
of the state, from monarch to serving man; in interna-
tional law the interest of states as members of the
international community and of men as citizens of the
different states.
 THE CONCEPTION OF LAW 55

Section 7. Relationship of Law and Morals

RENNENKAMPF. Law and Morals in their Reciprocal Relations.

(Archives of practical and historical instruction, 1860.)
SCHTEGLOV. Law and Morals, 1883.
STAHL. Die Philosophic des Rechts, 1878. Vol. 2. s. 191.
AHRENS. Die Rechts-Philosophie. Vol. 1. s. 145.
ROEDER. Grtmdzuge des Naturrechts, 1860. Vol. 1. s. 110.
SCHAEFFLE. Bau und Leben des socialen Korpers, 1881. Vol.
1. s. 593.
LASSON. System der Rechtsphilosophie, 1880.
JELLINEK. Die Socialistische Bedeutung von Recht, Unrecht,
und Strafe, 1878. s. 42.
WALLASCHEK. Studien zur Rechtsphilosophie, 1889. s. 52.
HALTS. Les fondements de la morale et de droit, 1890.

Law, then,in contradistinction to morals, does not

present the ethical appraisal of our interests but their

delimitation. How define, then, the relation between
the two? Before fixing the proper domain exclusively
assigned to some given interest do we first appraise its
moral value? On the contrary, is not this last com-

pletely ignored in settling legally the status of many

interests together? The extremely individualistic theo-
ries which were in favor in the XVII and XVIII cen-
turies ended their development with the negation of
all connection between law and morals. In order to
explain social phenomena, these theories, as we know,
take for a starting point the individual, absolutely iso-
lated, enjoying unfettered liberty and without connec-
tion with his fellows. According to the theorists of
that time, relations between individuals are caused by
their voluntary and deliberate action. Their starting
point was the full liberty of the natural man. The
formation of society and constitution of a government,
the establishment of a bond of mutual dependence,
56 THEORY OF LAW
was regarded as the spontaneous work of the human
will. Placing oneself at the point of view of this theory,
the chief task of the legislator, called to the delimitation
of the interests under consideration, consisted in pre-

venting each person from encroaching upon the natural

liberty of his neighbor. The legislator had not to ask
himself in what this liberty consisted or for what pur-
pose the man designed to use it.
The first author of the XVIII century to mark in an
exact fashion the opposition between law and morals
was Christian Thomasius. (Fundamenta Juris natures et
gentium ex sensi communi deducta in quibus ubique
secernetur principia honesti, Justi ac decori, 1718.) He
gave to legal rules an absolutely negative character,
which prescribed the doing of nothing, while fixing at
the same time rules for discharging our full duty to our
fellows. In accordance with this, he recognized as the
chief principle of law the following rule: Quod tibi
non vis fieri, alter i ne feceris. "Whatever you do not
wish done to you, do not to another." Morals, on the
contrary, according to him include all the rules deter-
mining duties towards ourselves. The fundamental rule
of morality is the following: Do to yourself whatever
you wish others to do to themselves. The rules of law
and of morality him, by their content, are
distinct, for
so, likewise, Moral duties, being
in their application.

positive and regarding only ourselves, can be taught

under the form of advice. Juridical duties, being only
negative and regarding others, call for a command
which if not observed brings punishment. No one can
be left to the free determination of each observance of
duty towards his fellows. The power of the state,
armed with constraint, is upon to oversee the
called
observance of juridical duties and of them alone. The
state'spower ought not to extend to the sphere of moral
duties.
 THE CONCEPTION OF LAW 57

The authors
of that century who followed him, above
allKant, and Fichte, continued to accent the opposition
between law and morals which Thomasius sketched.
Kant considered as the fundamental principle of law,
from which all legal norms flow by logical necessity, the
following rule: "Act in such a way that your liberty
accords with that of everyone else." Consequently,
legal rules take effect only on the external side of actions
and rest for their realization on constraint. With Fichte
this idea receives more rigorous expression. For him,
law is an absolutely mechanical result of the existence
together of a number of persons, and the combination
of external conditions produced by constraint and nec-
essary for the common existence of them all.

The opposition between law and morality affirmed by

the individualistic theories became a kind of watch-
word in the struggle for liberty of conscience and indi-
vidual liberty generally against the system of exagger-
ated tutelage by the state. The religious persecutions,
and the state interferences in the most intimate mani-
festations of personal life, resulted from the confusion
of law and morals at this time. In this state of things
legislation, called upon to establish juridical norms, nat-
urally extended itself over questions of conscience and
disregarded the moral dignity of human actions. On
the other hand, the separation of law and morality
brought on an application of the opposite rule which
makes law indifferent to questions of morals. Its task
was conceived as to set bounds to the external liberty
of men without troubling itself as to how they would
use that liberty, whether conformably to moral require-
ments or not.
As a reaction against the excessive oppression of indi-
vidual liberty by the state's intervention, this theory
has great importance. Moral ideas are always more or
less subjective, touch always the most intimate and
58 THEORY OF LAW
secret side of man's personal life. This is why legisla-
tion, which establishes as the foundation of its delimita-
tion of interests a fixed moral evaluation, results infal-

libly in oppression to individual liberty. Indifference on

the part of law with regard to morals agrees best with
an extended liberty.
But, by the side of this advantage, the opposition
between law and morals has also its weak points. If
the law neglects moral rules, it necessarily results that
it permits immoral actions on condition that the man
does not actually pass the bounds to his liberty which
it sets. The highest moral interests must, then, yield
and be sacrificed to the formal exigencies of the law.
The strict application of the law appears often in such
cases as the height of injustice. "Summum jus summa
injuria" This is why as soon as the rigorous separation
of law and morals has caused the triumph of individual
and above all of the liberty of conscience, the
liberty,
extreme consequences of this doctrine attract attention
and a reaction commences. Attempts are made to
bring them together again. Fichte was of this opinion.
In his first works he appears as a determined represen-
tative of the doctrine which separates law and morals.
(Grundlage des Naturrechts. 1796.) In his last, he
inclines to the contrary idea and recognizes in his System
der Rechtslehre, 1812, the necessity of bringing law
and morals together. At present the whole world is

agreed upon this, thanks above all to the efforts of the

organic school.
In reality law
is never wholly separated from morality.

The delimitation of interests cannot neglect their moral

evaluation so as to base itself wholly on that negative
norm which forbids assailing others' interests and others'
wishes. The natural state of man is by no means that
of isolation. The establishment of society is not the
product of the conscious free will of the individuals
 THE CONCEPTION OF LAW 59

who make it up, but depends upon the e

very-day con-
ditions which establish their mutual relations quite in-
voluntarily on their part. It does not suffice, then, for
the delimitation of men's interests to prevent their in-
terfering arbitrarily with each other. Humanity forms
an aggregated whole, a solidarity is established among
its members independently of their will. It results that
many interests by their contenthave a character not
individual but social. Their essence supposes relations
among many men and a common solidified activity,
tending towards the same end. Consequently, the de-
limitation a man's interests viewed in connection
of
with his relations to others' requires almost always not
only that others' interests be not trenched upon, but
also that man limit the realization of his own interests
in order to permit the realization of higher ones of others.
In these conditions it is clear that norms for the delimi-
tation of our interests cannot be established without
making a comparative moral evaluation of ends; in
fact, inactual legislation moral principles, such as they
were, have had a very great influence upon the manner
of disposing of interests.
Moreover, law not limited to regulating the exterior
is

side of actions. always takes more or less account of

It
motives. Modern law goes much farther than primitive
law in this respect. To establish obligations with re-
gard to contracts, it requires that there be a real con-
sent, a real meeting of wills. Moreover, the law makes
this consent sufficient. It demands no observance of

any special external form. Formerly, on the other

hand, the obligation consisted solely in the observance
of this form. It did not matter whether the consent
was really voluntary. Now, the juridical character of
an act is fixed not merely by the result to the injured,
but by the intention of the doer.
A person who, having the intention to slay another,
60 THEORY OF LAW
causes only some severe wounds, is prosecuted for at-

tempted assassination. He who has mortally injured

another without intention to kill, is prosecuted for the

blow or the wounding, but not for assassination. The

severity of the punishment depends much more upon
the intention than upon the injury which has resulted
from carrying it out.
Moreover, morality requires us not only to have good
intentions, but to act properly and, especially, properly
towards others. Love for one's neighbor is the basis
of Christian morals; and modern ethical theories, while
not resting entirely upon religious principles, have for
the most part an altruistic character.
Because, at the present time, it is admitted that the
individualistic theories are replaced by doctrines which,
in explaining human relations, start, not with the prin-

ciple of individual independence, but from the fact of

the social dependence of men, no one longer seeks to
resolve the question as to the relations of law and morals
by opposing directly the one to the other.
one any No
longer thinks that law
absolutely independent of
is

morals. On the contrary, law is placed in a relation

of subordination. The end of law is now regarded as
the realization of morality.
This change of tack with regard to the correlation of
law and morals is observable already in Hegel. He
regarded law, morals and morality, as successive steps
in the dialectical development of liberty. He con-
ceives law and morals as different aspects of morality.
The very idea of morality has withhim a quite original
form. Morality according to him signifies
(Sittlichkeit) ,

a social order, the family, civil society, the state. The

correlation of law and morals, he represented as an
antithesis. Law in itself is deprived of all fixed content
and is only the possibility of liberty. Morals, on the
contrary, determine not the possible, but what ought
 THE CONCEPTION OF LAW 61

to be. So law and morals are opposed to each other

as the possible and the obligatory, and their opposition
disappears in the highest unity, that of morality, which
is the reality of that which in law appears only as the

possible and in morals only as the obligatory.

The subordination of law to morality is still more com-

plete in the doctrines of the organic school. Thus,

Ahrens recognizes as the essential motive to human
activity the tendency towards the realization of the
human ideal, identical with the supreme good of human-
ity. This tendency is manifest in the desire to realize
the different special aims which belong to human nature.
As man is before all an independent, distinct creature,
his aims spring before all from the needs of the per-
sonal life. Such are the preservation of his life, his
health, of his honor. But man is a social being. For
that reason he has also social needs, language, religion,
scienceand art.
So we have two groups of goods which make up the
ends of human activity. These two groups Ahrens calls
material goods. By their side are, moreover, formal
goods, which represent no special human interest, but
only a fixed correlation between different elements of
human life. Such are law and morality. Morality con-
trols the motives and ends of human activity, and law
determines what are the conditions for the realization of
aims indicated by morality, conditions which depend
upon the human will.

These opinions are likewise widely spread among the

modern representatives of the positive tendency. The
celebrated publicist, Jellinek, defines the correlation of
law and morals thus: Law is a minimum ethics, that
isto say the whole combined requirements of morals,
whose observance, at a given stage of social develop-
ment, is absolutely indispensable. By consequence, law
is only a part of morals, the part which fixes the indis-
62 THEORY OF LAW
pensable conditions of the given social order. All moral
requirements beyond this indispensable minimum, con-
stitute morals in the strict sense as distinguished from
law The observanceof these requirements is only de-
sirable, not indispensable; they are in some sort an
ethical luxury. Wallaschek expresses the same notion,
modifying it a little and making it more precise. Law
and morals according to him ought to be connected
together as form and content. Morals show the ideal
to be assigned to human activity and law seeks to effec-
tively realize it. Every manifestation of morals must
receive its envelope in the form of a juridical rule, and
every law have its moral content. But since moral rules
do not all impinge upon the mind with the force of ob-
jective truth, since they may be discussed and even
denied, men ought be satisfied with the realization under
the form of law of a certain number of moral truths,
strictly indispensable that society may exist. To sub-
ordinate in this manner law to morals as means to an
end, as form to contents, is to formulate a theory quite
as extreme as that which before entirely separated them.
We cannot see in law merely the realization of moral
whole content of law is not deter-
rules, for, first, the
mined by moral principles. There are juridical norms
which absolutely leave out the moral point of view.
Such are, for example, the rules of law which control
the forms of juridical acts, provide for arrests and ad-
journments, the number of witnesses, etc. Second, the
thing which demonstrates the inaccuracy of the theory
we are combatting is the following fact: The law com-
prises a number of rules which have as their precise
object the assuring to each one the liberty of his moral
convictions. Since moral convictions are not identical
among men, law cannot be brought into the realiza-
all

tion of moral ideals. Law can only fix limits within

which the man, held to the realization of a certain moral
 THE CONCEPTION OF LAW 63

order, should confine himself, within which he can move

freely without getting in conflict with other moral con-
ceptions perhaps absolutely opposed to his own and
equally worthy of protection.
One cannot, then, draw out the relation of law and
morals in a single formula equally applicable to all
social phases and types of development. When in a
society all moral opinions are alike they fix the delim-
itation of conflicting interests. When the matter in
hand is the delimitation of interests as to which there is

unanimity them an unequal value, the

in assigning to

highest in the moral point of view must be given pref-

erence. Interests less important which are opposed to
it are necessarily restrained in their realization. This
is why primitive society, in which were no differing
moral opinions, where everybody lived in conformity
to long established manners, fixed the delimitation of
interests in accordance with such manners and the con-
fusion of law with morals resulted. But when, with
social development, long established manners lost their
former stability and uniformity under the influence
of more complex and variable social conditions, when
new moral opinions began to penetrate the social con-
sciousness, the law which ought to be recognized by all,
based itself still upon the old moral principles; but the
moral opinions were no longer the moral code upon
which the former delimitation of interests established
by law rested. Moral notions progress faster and de-
velop quicker than law. The latter presents, so to
speak, a lower step in development, a step which morals
have already taken. This correlation, however, of law
and morals is not necessary. When the law is fixed
not only by ancient customs but also by the direction
of a competent man, by a government which can free
itself at least partially from the authority of custom,

legislation can rest upon moral notions which rise much

64 THEORY OF LAW
above the medium level of moral development of the
given society. Finally, when with the ever-increasing
complexity of social life several different general doc-
trines come to light in society, the delimitation of in-
terests can only rest upon the fund of moral truth com-
mon upon what is admitted by all.
to all these doctrines,
Consequently, there is formed a sphere of moral activity
outside of the sphere of the law, which latter can em-
brace only the moral truths held in common by the
generality of individuals, not the divergences which sep-
arate extreme opinions. The limits of this sphere and
the degree, so to speak, of the separation of law and
morals are not constant and change in proportion to
the number of moral rules recognized by everybody.
It cannot be said that these limits vary exactly accord-

ing to the advance of social development. This devel-

opment certainly brings a more complex social life and
more heterogeneous and probably more profound moral
divergences. But in the most advanced phases of social
development there may arise a general attraction towards
some given religious or moral doctrine, and then the
interpenetration of law by morals becomes closer and
more intimate.
 THE CONCEPTION OF LAW 65

Section 8. "Law" in the Legal and in the Scientific

Sense

MILL. System of Logic 1. p. 345.

EUCKEN. Geschichte und Kritik der Grundbegriffe der Gegen-
wart, 1878. s. 115.
MOUROMTZEV. Sketch of a General Theory of Private Law,
1887, p. 85.

Every general norm, juridic or moral, ethical or tech-

nical, isa rule conditioned by a determinate end; in other
terms, it formulates that which is obligatory and impera-
tive. By this peculiarity norms are distinguished from
laws in the scientific sense. Law in the scientific sense is
a general formula expressing an established uniformity
of phenomena. It expresses not that which ought to be,
but that which in reality is, not that which ought to
come, but that which exists. The scientific "law" is
only a generalized expression for reality.
It results that norms can be distinguished from the
laws of science by saying that the former can be broken
while the latter cannot. Norms show only how it is
necessary to act to attain some given end; but action
can easily be contrary to duty, and the observance of a
norm neglected. The scientific law, on the other hand,
does not depend upon men's wills, for it does not ex-
press what ought to be realized through a will, but what
isindependent of the human will and exists inevitably.
There is yet another difference between norms and laws
of science. Norms guide the activity of men and indi-
cate to them the means of attaining their ends, fix the
conditions of their actions, and thereby control the phe-
nomena which they provoke. The laws of nature only
display the uniformity of existing phenomena and cannot
be the cause of them. They do not explain for us why
66 THEORY OP LAW
phenomena are produced, but how they are produced.
It is not "laws" which cause phenomena, but other
phenomena, with which the first are in the relation of
cause and effect. Thus, the law of gravitation does
not explain why bodies gravitate toward each other,
but merely in what way they do so. If we sometimes
say that such or such a phenomenon is produced be-
cause there exists such or such a law, we mean not a
connection of cause, but a logical connection. To sum
up, it is agreed to call laws, the most general formulas as
to the uniformity of phenomena, formulas which can-
not be replaced with others still more general. This
is why all partial generalizations appear as logical conse-
quences of laws which are more comprehensive generali-
zations. For example, if we say that the movement of
a falling body is accelerated because gravitation is in-
versely proportional to the square of the distance, the
firstproposition, which is particular, is a logical conse-
quence of the second, which is general. There is here no
causal connection.
So in opposition to norms which are imperative and
obligatory rules, and may be broken, and which serve as
causes for human action, law in the scientific sense is
only the expression of actual uniformity in phenomena,
admits of no violation, and, from that very fact, cannot
be the cause of phenomena.
This definition of such "law," generally adopted in
moral science, is recognized alike by positivists and by
Thus, Lewes cautions us against the
1
metaphysicians.
error of believing that natural laws direct phenomena,
while in reality they only give formulas of the manifes-
tation of those phenomena. In the same way, Eduard
Hartmann says that "laws are not beings, which dwell
in the air, but only abstractions for forces and sub-
1
Lewes, Problems of Life and Mind. 1. 105. Hartmann, Philosophic des
Unbewussten.
 THE CONCEPTION OP LAW 67

stances"; it is not because the given forces or substances

are such as they are that they act in such or such a
manner this constancy in a fixed action is what we call a
;

law of nature.
Juridical norms express not
what is, but what ought
to be. They can be broken.At the same time they
are causes of phenomena, and precisely of all those
phenomena whose whole constitutes the juridical life
of society. Moreover, they cannot be reduced to the
notion of law in the scientific sense, a mere uniformity of
action. But what is the relation between that "law,"
in the scientific sense, and juridical norms? Legal lit-
erature gives some widely different answers to this ques-
tion.
Some authors affirm that juridical norms supply in
the social life the action of laws in the scientific sense.
While in nature regular and uniform order is estab-
lished of itself as the result of the inevitable regularity
of phenomena, in society it is established artificially by

juridical norms which are enforced by human will. It

is supposed that in social life, which is composed of

conscious human actions, laws in the scientific sense can
find no application. This theory is the result of the
false opinion which regards laws as causes of phenomena,
an error which proceeds from the fact that the word
"law" is understood not only in its scientific meaning but
also in that of norm. Thus, we talk of laws of art and
of morals, of laws divine and constitutional. The primi-
tive meaning of the word was exactly this Nomos-Lex.

By "law" was not meant the unfailing uniformity of

phenomena, but a rule established by man's conscious
will. In Aristotle there is no notion of scientific law.
Roman writers first began to use the word "law" not
only to designate rules for human activity but also to
indicate the inevitably necessary order of natural phe-
nomena. Lucretius talks of Leges natur. If we hold
68 THEORY OF LAW
to its primitive meaning, if we understand law as the
cause of phenomena and think phenomena are neces-
sarily produced because there are in the world laws
acting as special forces in producing phenomena, it will
certainly be necessary to put back into a separate
sphere the phenomena induced by our wills, for their
causa is manifestly not law, but the will. In fact, how-
ever, laws in the scientific meaning as already recog-
nized, ought not to be considered as the cause of phe-
nomena. They are rather consequences than causes.
Giving to these "laws" their correct signification, there
is left no reason for refusing to extend their action over

the field of human activity. Our actions are brought

about by our conscious wills. That is incontestable.
This proposition explains why we act; it is because there
isin us a will which presses us to action; but it does not

explain how we act. The nature of man presents cer-

tain qualities which are common to everything and this
common character gives birth to a certain uniformity
in men's actions. This uniformity, established and
formulated, constitutes the (scientific) law of our activ-
ity. So law, considered as the expression for a fixed
uniformity in phenomena, is applicable likewise to
human activity. We
cannot say that such laws have no
control over such activity, that they must be replaced
with something else. In truth modern science has suc-
ceeded in showing a certain regularity in social phe-
nomena. Statistical research has shown the existence of
constant laws for various phenomena of social life. So,
too, we try to ascertain the laws of the coexistence
and development of social phenomena by the historical
and comparative study of human societies. If the laws
of social phenomena are thus established, we cannot say
that they are replaced for human society by juridical
norms.
Contrary to the theory just examined, other authors
 THE CONCEPTION OF LAW 69

claim there is no essential difference between the rules

of that which ought to be, and scientific laws; that what

we call obligatory norms, morality laws, are but con-
jectures, hypotheses, which we make as to the laws
which inevitably control our activity. With our imper-
fect means of investigation we cannot attain perfect

knowledge, but approach it nearer and nearer by replac-

ing the hypotheses which we make at first, with others
more truthlike.
The idea just examined has the defect of mingling es-
sentially distinct conceptions. Just as the preceding one
is based upon the confusion between the (scientific) laws
of phenomena, and their causes, this neglects a capital
difference between norms and laws.
This difference, from which results the impossibility
of seeing in law simply some hypotheses conceived by
man's mind as to the laws designed to control his activ-
ity, appears chiefly under two connections. First, Law
is not an existing fact outside of man's will and con-

sciousness, a fact which he is restricted to ascertaining,

as he is with regard to the laws of science. A rule, even
if conceived as absolute and eternal, is so conceived

only on condition of being considered as a norm whose

observance is a duty to all. A legal rule is not a "law"
which affirms the uniformity of a series of acts, of a
group of phenomena. It is not in the repetition, the
periodical and regular reproduction of these acts, that
legal rules find their realization. Those who drew the
celebrated declaration of the rights of man, in fully
recognizing liberty, equality, and fraternity, as the
immovable basis of enacted law, were compelled to rec-
ognize the fact that they had been forgotten by men,
and for a very great while prevented from realization.
Whether men know them or not, the laws of science
none the less exist. When Newton found the laws of
gravity, the order of phenomena did not change at all.
70 THEORY OF LAW
Before, as after him, the force of gravity was as the
square of the distance. On the contrary, if we compare
antique society which knew not the idea of equality,
and modern society which has appropriated it, we see
an essential difference between them, which appears,
for example, in considering the question of slavery. Sec-
ond, What distinguishes in a still more clear manner
scientific laws from legal rules, is their infallible, invio-
lable action. The on the other hand is broken
legal rule
continually, even by those who know and acknowledge
it. Consequently we cannot say that law is an unevad-
able order. That an order is obligatory does not mean
that it is inevitable. We are under obligation to yield
to duty, but we can repudiate it. We are powerless,
however, against necessity. We must yield to it. Neces-
sity may even release us from duty, impossibilium nulla
obligatio.
So, whatever idea we form of law, we must conclude
that it does not present the leading characteristics of
scientific "laws."
Considering attentively juridical laws, it is not hard to
see that they have as a whole a very relative character
and one with which that of scientific laws cannot be
compared. These last express the general uniformity of
a given group of phenomena which admits of no excep-
tion. Its action does not change with time or place. Al-

ways, everywhere, and for every such case, it has abso-

lute effect. Moreover, it is agreed to call a law of sci-
ence not every general proposition, but only those which
in the given conditions represent the utmost possible
limit of generalization and cannot be reduced to formulas
still more general and simple. Juridical norms have a
very conventional general character. They are general
rules, but applying only to relations which exist in a
given society and for a given time, usually compara-
tively short. Consequently in different places, and in
 THE CONCEPTION OF LAW 71

the same place at different times, we discover variations

in the action of law. In such case the juridical norm
does not represent the extreme limit of generalization.
The juridical norm put out under the form of special
custom or legislative enactments only the combina-
is

tion of several different norms designed to regulate a

given category of things. It can always be reduced to
a more general and simple principle. For the same
reason a juridical norm is not the expression of what is
general or unchangeable even in juridical relations, but
represents a variable and concrete element in the jurid-
ical order. Norms appear, change, disappear, act in a
certain way upon the combinations of juridical rela-
tions, and cause these to take some other particular
form. So they correspond not to laws in the scientific
meaning, but to particular phenomena which are general-
ized by the formulas of scientific laws. If juridical
norms, as we have shown, cannot be identified with sci-
entific laws, nor recognized as capable of filling their

place in the moral spheres, what can they be but phe-

nomena? That juridical laws and scientific laws are
absolutely heterogeneous notions, Gustave Hugo, the
founder of the historic school of law, showed clearly at
the beginning of the last century. Unfortunately, his idea
was not sufficiently perceived by his disciples, and even
now some jurists, misled by resemblance of names, still
confuse juridical with scientific laws.
72 THEORY OF LAW

Section 9. Relativity of Law

To explain the actual relation of law to laws of nature,

in the scientific sense, is an indispensable condition for

determining the character of law in order to say whether

it is absolute or relative. If juridical laws represent only

a group of the phenomena of social life, law like all phe-

nomena in general has naturally only a relative charac-
ter. Being a phenomenon it is variable, depending upon
conditions of time and place. The distinction between
the just and the unjust, like that between the positive
and negative quality of phenomena, between warm and
cold, between heavy and light, arises from our personal
feeling. The same delimitation of interests, appraised
according to our personal impressions, may be found
just or unjust. If this is so, the circle of phenomena
which constitute the object oflegal science is determined,
not by the opposition of the just and the unjust, but by
that between all the phenomena which admit of a jurid-
ical qualification positive or negative, no matter which,
and those to which the opposition of just and unjust is
not applicable because they do not admit of that
quality.
The question is put quite differently if legal rules are
to be regarded as the natural law of social phenomena, or
as something that for such phenomena holds the place
of it. In that case law is everything which conforms
to such a natural law, prescribing their form of action
to all the rest, a necessary order, constant and not to be
disturbed, of their phenomena. By consequence law
should not be relative but absolute, eternal and univer-
sal, independent of time and place. The distinction of
just and of unjust from this point of view would be an
absolutely objective distinction, not founded upon a
 THE CONCEPTION OF LAW 73

subjective relation, but upon the immovable natural law

expressing objective reality. As a result the task of the
science would be determined altogether differently. The
scientific explanation of law would need to begin by

defining this natural law of right. Without having de-

fined it we could not advance in the scientific study of
law, for the simple reason that without it we would not
know what is conformable to law and what is not; and

these are precisely the points which are the very object
of our research.
In truth, almost all the old juridical literature, which
occupied with these general questions, followed this
itself

tendency. At the very beginning, for these authors it

was necessary to find at any price a principle of law to
serve as a measure, a criterion, to distinguish between
the just and the unjust. This principle once discovered,
would serve as a sort of philosopher's stone to make
known to us the secret of the determination of the jurid-
ical order and be applicable everywhere and at all stages
of the historic development of society. Sociability, fear,
tendency to happiness, perfectibility, liberty, equality,
harmonious development, and a series of such principles,
have been successively proposed for this purpose; but
none of them could answer the practical test. The actual
life of peoples with its complex character could not be

confined within the framework which this alchemy of

law thought to trace out beforehand. If there were no
surer method for the scientific study of law, it would be
necessary to follow the opinion of those who, despairing
of finding a basis more solid for the science in their
ephemeral constructions, restricted the task of jurispru-
dence, and considered it simply as the art of interpreting
the various systems of national law, an art which serves
merely the immediate needs of practice.
But if we consider law as a whole made up of phe-
nomena, the scientific study of its materials finds another
74 THEORY OF LAW
opening. If we regard it as a whole made up of phe-
nomena, then between lawful and unlawful there is no
absolute opposition; there is only a relative difference.
In the phenomenal world are no absolute differences.
For example, the difference between hot and cold is
purely relative. What is cold for Reaumur, is warm for
Fahrenheit. All depends upon the measure chosen, and
there is no absolute measure. When the physicist under-
takes the investigation of the phenomena of heat and
cold, he sets himself no task of discovering an absolute
difference between them, but only of explaining the pecu-
liarities of these phenomena compared with others, as for
example, those of light or electricity. When juridical
problems are to be passed on, it should be in the same
way, if to be regarded simply as the ensemble of
law is

juridical phenomena. From this point of view, the dis-

tinction of just and unjust is relative and therefore
variable. What is recognized as just among one people
at a given epoch, is at another time or among another
people considered unjust. Still further, if we place our-
selves in a given phase of development of a particular

people, the distinction is relative and cannot furnish

an immutable criterion, since the concrete conditions
in which the given fact is found must be taken into
account. So the judge, placing himself at the point of
view of actual law, declares to be just that which con-
forms to legislation and current customs. A publi-
cist who has not the task of applying the law, who sat-
isfies himself with fixing its value, may find the law
itself unjust, and that to be just which opposes it.
Another publicist standing at another point of view may
express a contrary opinion and a third put forth a
wholly new moral doctrine as to the point in contro-
versy.
If this relativity in the distinction between just and
unjust be granted, the task of law is not limited to the
 THE CONCEPTION OF LAW 75

defining merely of the just. Just as the mechanician

exhibits the identity of swift movement and slow, the
physicist of the phenomena of heat and cold, so also a
jurist, considering law as an assemblage of phenomena,
must unite in his circle of phenomena both the just and
the unjust. The distinction of just and unjust will not
have him capital value, but the distinction between
for
what is related to the group of juridical phenomena and

that which does not come within the juridical definition,

no matter whether negative or positive, will do so.
To be sure, in drawing out mentally the distinctive
points of a given group of phenomena to zero, or to in-
finity, we can image to ourselves law and not law as an
absolute opposition. But this distribution of the phe-
nomena will have value only as an hypothesis of our own
imagining. It will have no value as reality. Where we
establish a complete absence of law, the distinction of
just and unjust would not be applicable and would have
no meaning. The historic life of a people will certainly
never present an example of such a state of things. In
point of fact we have to do with an order of phenomena
which has reached neither zero nor infinity.
In a word, for the science of law there is no need to
mark an absolute distinction between just and unjust.
It knows no such distinction. It takes under examina-
tion equally the just and the unjust, placing as the basis
for the delimitation of the object of its researches not
that distinction, but the one between what is and what is
not law. To be sure, we can still find a good many
people who think that to admit the relativity of law is

to commit an unpardonable heresy. But in examining

closely the development of the science of law commenc-
ing with the end of the XVIII century we may observe
that this principle of relativity has been more and more
recognized. The school of natural law which appears in
the XVII century and marks the beginning of philosophic
76 THEORY OF LAW
legal study, held a rigorously absolute theory. But this

theory supposed the original qualities of human nature

to be known. It broke in pieces upon the necessity of
finding an objective criterion for distinguishing in man
what is natural from what is not. The historic school
which, at the beginning of the XIX century replaced
that of natural law, undertook to show the relativity of
law, and its national character, penetrated with the
genius of the people who shaped it.

Ifeach people has its special law, no one may talk of

its absolute principles. But to determine the spirit of
a people, and its qualities, together with their delimita-
tion in relation to those of an individual, has seemed as
impossible as the distinction in a man of what is natural
from that which is not so. It is necessary either to

adopt Puchta's mystic doctrine which personifies the

mind of a people, or, placing oneself on more real

ground, recognize that a people's mind is simply the

manifestation, simultaneous and collective, of that of the
who compose the people. If
individuals this is true the

popular mind can have no determinate character; con-

sequently, law is not a product of the popular mind,
producing itself and developing of its own accord, but
on the contrary a result of the struggle of different inter-
ests which represent members of the people, a result
which changes with the progress of the struggle. Iher-
ing accepts this idea in his latest theory and proclaims
the complete relativity of legal principles. There is
only one point as to which, indeed, Ihering has not
ventured to declare the relativity of law. Recognizing
completely that the matter of legal principles cannot be
rigorously determined, that it is relative and variable,
he believes, nevertheless, that the source of these prin-
ciples always and necessarily the same, the state's
is

authority. Consequently, from this point of view, he

does not recognize the relativity of law. But there is
 THE CONCEPTION OF LAW 77

left only one step to take, for under this condition it is

admitted without reserve.

It is very important to show that the distinction of
just and unjust is First, It is only on
purely relative.
this condition that one can establish a single idea of
law, which can embrace all juridical phenomena. In
the different opinions which are produced as to law,
there is to be observed a certain duality. On one side
different actions are examined with reference to their

conformity to existing law or to their disagreement with

it. On the other side the existing law in force is itself
examined from the point of view of more general princi-
ples. Whenthe just and the unjust are rigorously dis-
tinguished, no explanation of this can be found except in
recognizing a double law, a positive and a natural one.
But the doctrine of the relativity of law gives another
explanation of the phenomenon just mentioned. It rec-
onciles the variety of judgments as to the just and the
unjust with the unity of law. It explains the diversity
of judgments which we pass upon the different manifes-
tations of law by that of the criteria applied to the defi-
nition of the just.
Second, The construction of the science itself gains in
unity. According to the general opinion the science of
law ought to study only law. But every jurist needs to
occupy himself with what is not law, and there is a dis-
tinct juridical science, the criminal law, which occupies
itself with the special study of violations of law. It is
true that criminalists generally affirm that the true sub-
ject of their science is the sanction. Nevertheless, the
determination of crime itself has a genuinely juridical
character; punishment, on the contrary, is more political
in its nature, and generally considerations of policy slip
in. The center of gravity of the penal law is the defini-
tion of the constituent elements of the crime, and not
the explanation of what is peculiar in the different sys-
78 THEORY OF LAW
terns of penal repression adopted by the legislator. In
recognizing the relativity of the distinction between just
and unjust and in connecting both of them with the ob-
ject of legal science there is removed at the same time
the necessity of any artificial reasoning to explain the
juridical character of criminal law.
Third, If one admits that law is relative, it is impossi-
ble to restrict the science of it to any particular form of

the delimitation of interests. If law in its entirety is

relative, there isno reason to exclude from the circle of

phenomena, which the science of it studies, any norms
for the delimitation of interests, whatever their form of
construction, whether they are norms established by
representatives of social authority, or by custom, or by
reason of subjective ideas which individuals have of
their rights. Certainly the subjective notion of law is
relative, and a reason for not
in this relativity there is

admitting the existence of any "natural" law by the

side of the positive law which is the true object of the
science. But if law in its entirety is relative, nothing
prevents placing among the notions of it even the norms
for the delimitation of interests elaborated by the indi-
vidual conscience. This gives to legal science a greater
breadth, a greater unity, even a more solid base; for the
ideas of law which are manifested in customs and in leg-
islation are elaborated first of all by the individual
conscience. The theory, which neglects this
juridical
source, cannot explain the origin or the development of
law.
In defining law as the delimitation of interests, I admit
the complex relativity of it. This definition embraces all
the delimitations of interests, whatever they may be,
whether from the subjective point of view just or un-
and in whatsoever manner these delimitations may
just,
be established, by customs, legislation, judicial pro-
cedure, or by the subjective notion of law.
 CHAPTER II

THE LEADING DIFFERENT CONCEPTIONS OF LAW

Section 10. The Definition of Law by What it Embraces

To define legal norms as "norms for the delimitation of

interests" is to give a definition of law which is not rec-
ognized by all the world. None, however, which has ob-
tained universal assent can be found in legal literature.
Those actually in use are very diverse, and several among
them find partisans among the most distinguished jurists.
It is necessary then to make a choice, and to do this with
full knowledge, it is indispensable to study them all, in

order to show their respective bases and values. It would

be aside from the purpose to make here a detailed analy-
sis of all the definitions of law which have been produced
up to our time. It is the task of the history of legal

philosophy to set out all the definitions of law in their

historic order. For us it will suffice to examine the most
typical definitions, the ones most widely received and
which lie at the base of the modern tendencies in legal
science.
If we compare our definition with others, we shall ob-
serve first of all that it does not contain certain features
which play a leading part in others. Our definition
does not in any way determine the substance (materiam)
itself of legal norms, the manner in which they delimit

conflicting interests, or the principles which form the

basis of the delimitation. The questions 'as to how legal
rules are formed, by whom they are established, are
equally left open. Finally, in our definition nothing is
said of the coercive character of law which is often con-
sidered as its fundamental, distinctive attribute. Mean-
79
80 THEORY OF LAW
while, the very terms of our definition may raise doubts
and controversies. Some authors, partisans of the for-
mal tendency, would say that law delimits not merely
interests, but also wills. Partisans of the utilitarian ten-
dency, on the contrary, would assert that instead of de-
limiting interests, law protects them. It is consequently
necessary to explain why we have chosen this intermedi-
ary formula which passes by in silence the matter and
the sources of legal rules as well as the means of enforc-
ing them.
To define law according to the matter, the content, of
its rules, it would be necessary that such matter be iden-

tical and common in all laws so that they could appear

as the result of the same general principle. In reality,
however, the legal conceptions of different countries and
of different epochs of history, and even those of a given

people at a given historical period, do not present such a

single system of logical consequences derived from some
sole general principle. The law of each people is the
result of a continuous evolution throughout its history.
Every epoch, however, brings its own moral
historic
notions, its own conditions of life, which determine the
matter of its laws. So the law of a people is built up in
a series of historical layers. It is necessary, also, to take
into consideration the borrowings from foreign legisla-
tion. In this manner there enters into the composition
of the law's substance some ancient principles, and some
new ones resulting from more recent evolution, principles
peculiar to the genius of the country, along with bor-
rowed ones.
The
material of every system of law is therefore very
complex. When one seeks to define law by its matter
there inevitably result formulas which determine not
what the law actually is, but what in the author's view
it ought to be. Instead of a scientific, objective, defini-
tion of law, we have only a subjective judgment. It is
 THE CONCEPTION OP LAW 81

impossible to bring into one general common formula the

heterogeneous materials of all laws existing and which
have existed; and for this reason, to define law according
to its matter one must commence by choosing between
different legal principles. This choice can be based upon
no objective fact. It depends on the subjective judg-
ment of the author. The result is a great variety of for-
mulas. The perfecting of human society (Leibnitz) ;
the
harmonious development of the person (Ahrens) the ;

maintenance and development of the moral order (Tren-

delenburg); the realization of well-being (Kapoustine) ;

the combining of liberty and equality (Soloviov); these

and a whole series of others are presented by their
authors as the distinctive matter of legal rules. In
point of fact we find a good many laws which do not
have for their end the harmonious development of the
person (laws organizing social classes) or the combining
of liberty and equality (laws establishing slavery),
etc.
Such definitions do not show the characters common
to law, but merely determine the ideal for the devel-
all

opment of law in the future, an ideal entirely subjective.

Meanwhile, among the different proposed definitions there
has been one which has enjoyed great favor among the
learned. It is found among partisans of the most differ-
ent tendencies. It is the definition of legal rules as
''norms of liberty." 1
1
Hobbes. "Neque enim jus aliud significatur quam libertas quam quisque
habet facultatibus naturalibus secundum rectam rationem utendi."
Kant. "Das Recht ist der Inbegriff der Bedingungen unter denen die Will-
kur des einen mit der Willkur des andern nache einem allgemeinen Gesetze der
Freiheit zusammen vereinigt werden kann."
Krause. "Das Recht ist ein Lebensgesetz fur die Freiheit vernunf tiger
Wesen."
Fridlander. "Das Recht ist die Gestaltung der Lebensverhaltnisse zum
zwecke der Freiheit."
Bauman. "Das Recht ist der Inbegriff derjenigen Forderungen vom Mensch
zum Mensch welche fur einen auf Freiheit Aller gegriindeten Verkehr unerloslich
sind."
Pachman. "Law is the measure of freedom in the community."
Binding. "Das Recht ist eine Ordnung menschlicher Freiheit."
82 THEORY OF LAW
It is the ambiguity of the formula which explains its
success. If one recognizes in the definition of law as
"
norms of liberty" a definition founded upon the matter

they contain, he must mean by it that the principle of

liberty is the basis of all legal rules; this principle must
furnish the essential substance of them all. They would
consist, then, merely in the application of the principle
of liberty to the regulation of human relations.
Such, indeed, was Kant's opinion. For him, law is
merely a combination of special logical consequences re-
sulting from the fundamental rule, "Act in such a way
that your liberty shall accord with that of all and of
each one." But it is impossible to bring under such a
formula the mass of legal rules as we see they are. The
oriental states by their legislation establish castes. The
states of antiquity recognized slavery. Those of the mid-
dle ages with their feudal aristocracy show how difficult
it is to see in legal rules merely logical applications of
the principle of liberty. Kant himself in propounding
the principle had in view not the actual law of which
historic reality shows us the spectacle, but only that of
reason, Vernunftrecht.
When this definition is applied to positive law in its
historic development a different meaning is given to it.
Legal rules are then considered as logical consequences of
the principle of liberty because they are all in one fashion
or another delimitations of human liberty, establishing
its boundaries, measure, and restrictions, and in this
sense forming "norms of liberty."
Undoubtedly, in delimiting interests the law limits
their realization, and consequently from this point of
view is a restraint upon human freedom. But even so,
the substance of legal rules is not determined by the for-
mula we are examining. This definition affirms merely
that legal rules restrain, regulate liberty; but the formula
does not explain in what way this regulation is accom-
 THE CONCEPTION OF LAW 83

plished. It results that this formula like the one pro-

posed in this book, leaves at one side the subject matter

of laws.
It must not, however, be supposed that the two defini-
tions are identical. If every delimitation of interests is

considered as a norm
of liberty, this definition will appear

altogether too broad. Every rule establishes necessarily

a limitation of liberty whether it be a rule of law or of
morals. So the definition of law as norms of liberty will
not answer by itself. It leaves no room to distinguish
between delimitations of liberty by rules of law and by
rules of morals.
Moreover, the Kantian definition of law as "norms of
liberty" has the further defect of supposing a rigorous
contradiction, a complete separation between the inter-
under consideration, and consequently
ests of the persons
suffersfrom attributing to law merely the function of
separating and dividing, and not that of unifying and
grouping the persons subject to it. In truth, liberty as
an object of conscious volition may be merely a property
of an individual; but it presents itself, also, as a purely

negative idea in so far as it puts the individual in oppo-

sition to the rest of the world. On the other hand the
notion of an interest, of a need, is a positive one, and
the needs, the interests of an individual, are precisely
the bonds connecting him with the world, and especially
to the other persons around him. Ourby interests are
no means exclusively personal, less individual.
still

Most of them are common either to all humanity, or at

least to a more or less extensive special group of men.
In realizing these interests we may encounter those of
other men; this possible contact makes their delimita-
tion necessary. In delimiting, however, these common
law does not delimit the liberty of each
interests, the
individual. combines the liberty of all by the unity
It
of law with a view to facilitating the common realiza-
84 THEORY OF LAW
tion. The rules of international law, for example, which
delimit the common interests for all humanity and for
each nation, cannot be defined as "norms of liberty."
The basis of this delimitation is not the opposition of
one individual and his interests to another, but that
of a private person to a commonwealth and of one nation
to the community of nations. But these two groups
of interests belong to every man when regarded at
the same time in his quality as a man and also as a
member of some particular nation. This is why in de-
limiting these interests we do not delimit the liberty
of one in relation to that of another, but merely locate
the two interests which are equally a part of the liberty
of each individual. To take another example, the state
is concerned that the excessive exploitation of labor

shall not bring on in the future destructive consequences

by reason of the physical and moral degeneration of
the workers which might result, and the state, there-
the length of the working day, protects preg-
fore, limits
nant women, and little children, etc. Such regulations
do not limit the liberty of the workman in relation to
that of the employer. They affect equally that of both.
They may be more vexatious for the workman than
for the manufacturer; but they assure for the future
the health and morals of the workers. There is no
opposition of one private interest to another, but the
opposition is between the present and the future, the
temporary and the eternal. Each of us lives in the
future as well as in the present. To feel entirely safe
in the present, one must be sure of the future. So in
this example we must recognize not a limitation of
one person's liberty in respect to another person, but
care of an interest which makes a part of the freedom
of each.
The definition of law as "norms of liberty" is a mani-
festation of the individualistic tendency in legal science.
 THE CONCEPTION OF LAW 85

So long as one sees in society only a combination of inde-

pendent individuals bound together by a social com-
pact, it was entirely correct. But with the change of
ideas as to society and as to the relations of individuals
to it, the definition has become quite inapplicable. To-
day the individual is not considered as the chief factor,
determining the whole social order. On the contrary
he is himself considered as a product of society, and
we are rather inclined to make him depend upon so-

ciety. Legislation is not confined merely to the task of

delimiting individual interests, but is occupied more and
more with realizing common interests which cannot be
considered as the exclusive property of any one. Con-
sequently, law cannot be defined as "norms of lib-
erty."
 THEORY OF LAW

Section 11. Definition of Law by its Source

MOUROMTZEV. Definition and Fundamental Division of Law,

1879.
THON. Der Rechtsbegriff. (Zeitschrift fur Privat und Oeffent-
liches Recht. B. VII, 1888. s. 245.)
SCHAEFFLE. Bau und Leben des socialen Korpers. B. I., 1881.
s. 623.
SCHEIN. Unsere Rechtsphilosophie und Jurisprudenz. 1889.

The norms according to their

definitions of juridical
source aremore objective than those which are based
upon the matter of law. They do not contain a judg-
ment upon law as it ought to be. They propose to de-
termine the distinctive character of actually existing legal
norms. This certainly explains their favor with the
jurists who are partisans of a tendency which is a re-
action against the idealist conceptions which preceded it.

Widely spread in later times in Germany, it has pene-

trated into Russia. The definitions of this kind present,
one may say, two varieties. Those of one kind define
legal norms as those established by the state's organs of
authority; the other recognizes in a more general way
that society as a whole is the source of law.
In the first case juridical norms are regarded as orders
emanating from the organs of state power. From this
point of view, law presents itself as the ensemble of state
legislation. All which is not founded upon some state
enactment is not law. Therefore, there is no law where
there is no state. Law finds birth only in a state, is an
exclusively state product. Customary law is not true
law. There can be no law acting outside of a state's
boundaries. In other words, international law is not
conceivable. From another point of view, since legis-
lation (lex) is here recognized as the sole source of law,
no juridical principles from any other source can oppose
 THE CONCEPTION OP LAW 87

the will of the legislator, whether it be customs, science,

or the individual conscience. So law and legislation are

identified.
The popularity which this theory enjoys is explained
chiefly by the necessities of judicial practice. In daily
life legal contests centre in fact, most of the time,
upon
the question whether or not such a precise question is
provided for by legislation. Customary law in most
modern states does not play anything like such a r61e,
having been almost effaced by written legislation. Very
few persons are compelled to occupy themselves with
mere theoretic questions of law, with its evaluation, with
legislation. The great majority are accustomed by life
itself to confuse the notion of law with that of leg-

islation. Accustomed to see in the latter the measure

for the delimitation of interests, we forget that to the
interest of legality, to the interest favoring invariable
action according to legislation, other interests may
be opposed which sometimes compel authority itself to
give up the absolute enforcement of its legal powers
which happens, for example, when an amnesty is
granted.
But aside from this practical foundation, the positive
notion of law finds still another one in theoretical ten-
dencies altogether different. The partisans of the old
school, who admit the existence of an absolute idea of
justice, see in the identification of law and legislation a
means of reconciling their doctrine with fact. The di-
versity and variability, in a word, the relativity of law,
is a too evident fact. By consequence, to save the dogma
of an absolute justice, a rigid dividing line is traced be-
tween law and justice, and the first is considered as
an accidental and variable form of the second. In dem-
onstrating the relativity of law it is thought, at the
same time, the absolute character of justice can be bet-
ter defended. Such was Stahl's method. Even in the
88 THEORY OF LAW
modern literature we meet with partisans of this
still

theory. It will suffice to cite Lasson (System der Rechts-

philosophie von Adolf Lasson, 1882). The law, said he,
is an exterior order having an historic form more or less
accidental. Therefore all law is positive law. It can

only exist in a state. It is a product of the authority of

that state. Justice is an absolute principle. It has its
source in equality. which the law ought
It is the ideal
to pursue (ideate Anfcrderung), but which nevertheless
can never be completely realized. This manner of look-
ing at the question is no doubt compatible with the
theory of the existence of an absolute principle of justice,
for in this case its most objective, palpable and just

form, the positive law, is considered as something abso-

lutely distinct from Consequently, to dis-
this justice.
cover justice properly so called, it would be necessary to
have recourse to the more subjective, and less determi-
nate ideas, which our consciousness gives. The phe-
nomena which we are examining, being inexact and not
seizable by the senses, it is naturally difficult for us to
reach a precise result.
But partisans of the realistic tendency who make no
pretensions to demonstrate an absolute principle of jus-
tice admit equally the identity of law and legislation.
The realists think in that way to be able to apply to

legal study the positive method which was created for

the natural sciences. In comparing the science of law
with the natural sciences we take account first of the
objective and, so to say, palpable character of the very
subject of the natural sciences. In applying to juris-
prudence this positive method which has brought such

progress to the physical sciences, the realists think to

reach results as precise and palpable. The palpable form
of law being legislation, the identification of them is con-
sidered a requirement of the positive method.
Behold the reasons because of which we admit very
 THE CONCEPTION OF LAW 89

often the identity of law and legislation, understanding

it as an order coming from the supreme organ of the
state's authority. This opinion has received its most
vigorous expression from the pen of Schein. Law, ac-
cording to him, is a norm established by the state and
not by individuals. At the same time, it is not an order
compelling the state to act conformably to certain prin-
ciples. The norm indicates only how the state itself acts
ordinarily. The law is for the state as for the individual
the ensemble of principles which it follows in its actions,
which it imposes upon or observes voluntarily.
itself,
Schein means by the state not the whole society but
only the government, the organs of authority. Private
law itself he considers a collection of rules promulgated
by the state. All the rulesonly of civil law exist
to serve as norms for the
power. acts of judicial
By the enacted laws the state only announces that
it intends to follow in the future certain princi-
ples.
This definition brings up at bottom in the negation of
law. The actions of the state are at bottom the actions
of men who are considered as organs of the state's au-
thority. Man to no purpose undertakes the function of
an organ of authority; his psychic nature is not thereby

changed. He still guides himself by ethical and techni-

cal rules. Consequently, if we accept Schein's defini-
tion and develop its logical consequences, we must then
go so far as to say that every technical rule, every
rule of architecture, for example, acquires the char-
acter of a rule of law when the organs of state
authority are led to apply it in their acts. Meanwhile,
the rules which govern the line of conduct of the state
cannot be considered as juridical norms.
all Thus,
among the acts of governmental activity we place
apart always its political acts of government. It

is the same when the government, charged with

90 THEORY OF LAW
the administration of the country, applies hygienic
rules or other technical norms. It cannot act her
by "law."
Generally, writers do not go as far as Schein. Norms
are considered as juridical only when imposed by state
authority for observance and declared obligatory by the
1
government.
In this case it is the imperative character of these dis-
positions which constitutes the distinctive trait of law.
If it becomes thus possible to distinguish between jurid-

ical, technical, and moral norms, it is always true to say

that,on the other hand, this conception restricts beyond

measure the domain of law. According to this system,
in fact, only promulgations of the legislator constitute
law. Customary rules are excluded. But the study of
juridical phenomena shows us every day that positive
legislation is not the sole source of law.
The jurist who identifies law and legislation ought not
to neglect the examination of the question as to the for-
mation of legal enactments. He ought to examine the
conditions of their first formation, and those of the latest
ones. These researches will inevitably lead to the con-
clusion that law in its entirety cannot be referred to
legislation.History shows us that the first enactments
were only customs thus registered after having been es-
tablished and preserved by the judicial proceedings of
that time. All primitive legislation bears the character
of a supplement to existing customary law. The making
of special additions to and changes in it, of course neces-
sarily presupposes its existence. So we see that legisla-
tion is separated from custom only by the wholly exterior
process of enactment through state authority. The con-
ditions of legislation at the beginning, therefore, do not
allow of the general identification of law with its mere
1
Jellinek. Die Rechtliche Natur der Staatenvertrage. 1880. s. 31. Thon.
Cited above.
 THE CONCEPTION OF LAW 91

special form of enacted legislation, and compel the recog-

nition of juridically sanctioned customs as law. We
reach the same conclusion if we turn to the formation
of modern legislation. Here the opinions as to just and
unjust, which have had birth in society, are enacted into
law as a result of an external formal act; for example, the
taking of a vote in Parliament. But the matter of the
law existed already before its publication, having been
furnished either by public opinion or by ordinary judicial
procedure.
If law and legislation (jus et lex) were identical con-

ceptions, the existence of juridical theories would be hard

to conceive. Every theory which did not result in en-
acted law could not be qualified as juridical, and mean-
while it is known there are upon each question, no mat-
ter how numerous theories which are not
insignificant,
admitted in law and have not found expression in
official

positive legislation. If we recognize a juridical character

in these theories formulated outside of all state author-

ity by some savant, we shall find ourselves in the pres-

ence of juridical norms not coming from the state. If
norms become juridical only in taking the official form
(lex) the theory of their derivation from enactment or
recognition would be the only one possible. The doc-
trines having the same content, which develop the same
matter from juridical norms, as well as from enacted
laws, could not exist. But it will suffice to open any
treatise on civil or criminal law to be convinced of the
existence of such doctrines as to the matter of law. They
may serve the material of legislation, but they have a
juridical character even before their transformation into
it. It is true there are writers who do not admit the
existence of a theoretic law. They say that the idea of
a theoretic law, of a law which does not act, is as ab-
surd as that of a wind which does not blow. 1
1
Bergbohm. Jurisprudenz und Rechtsphilosophie. s. 437.
92 THEORY OF LAW
Meanwhile, it must be admitted that man conceives
the existence of enacted laws which do not act, where,
for instance, they are abrogated. Juridical norms, re-
placed by others, do not become thereby rules of art or
moral principles. They remain juridical norms despite
all, quite as if still acting. The laws of the XII tables
are in our time regarded by everybody as forming part
of the law of the world as much as at the time they
were in force. In the same way men always conceive of
a law which is no longer acting; but as it exists in con-
sciousness, it has a necessary effect upon relations, usages,
judicial procedure, and legislation.
Other writers while completely recognizing the source
of law as its distinctive trait and the true ground for its
definition, yet do not identify it with state legislation.
They define juridical norms as social norms, opposing
1
them to moral ones which they style individual norms.
This is not so defective a definition as the one just pre-
viously examined. We might even say, in general, that
it sensibly nears the truth, but is extremely vague.
What is individual in human life is so closely connected
with what is social that it is impossible to draw a sepa-
rating between them.
line Norms established by an
individual cannot be distinguished from those estab-
lished by society. In truth norms, as in general every-
thing in and human consciousness, are the joint
life

product of individual and social factors. Man is born

into society, inherits from his parents a collection of
customs and social habits. He is educated in society,

1
Brocher de la Flehere, Les revolutions du droit, I. p. 29. Le droit n'est pas
autre chose qu'une espece de conscience sociale. Schaffle. Bau und Leben, 2
Ausg. II. s. 80. Das Recht eine durch den Trieb der Selbsterhaltung geschaffene
und den entwickelungsgeschichtlichen Bedingungen der Gesammt erhaltung
angemessene gesellschaftliche Ordnung der Anpassungen und Organisationen, der
Vererbungen Streitfuhrungen, streitentscheidungen und Streiterfolge darstellt.
Kashnitsa. Essence of Law. P. 152. Law is the conformity of social relations
to the essence, the life, the destiny, of society as a whole, or conformity of the
individual life to the social life.
 THE CONCEPTION OF LAW 93

acts in society, belongs to it by every side of his exist-

ence. How can he believe that there is any precise
limit between the socialand the individual spheres so
that certain ethical norms are created by the individual
activity and others, which we call legal, by the social
activity ?

We must then disavow all these definitions of law by

its source because of their common defect. They pre-
suppose as determined one of the most difficult of ques-
tions, the one most discussed in the science of law, that
of its origin. Does law spring up as a result of indi-
vidual activity? Is it createdby the conditions of social
life? Does its existence depend, or does it not, upon
that of the state ? All these questions are still widely dis-
cussed. Until these questions as to the origin of law
are settled, it will remain impossible to define law by
means of its source.
94 THEORY OP LAW

Section 12. Definition of Law as Coercive Norms

IHERING. Zweck im Recht. B. 1. 2d Edition, 1884. s. 320.

MERKEL. Recht und Macht. (Schmoller's Jahrbuch fur
Gesetzgebung B. V.)
BIERLING. Zur Kritik der Juristischen Grundbegriff. B. I.,
1877.

Already in the middle ages it was quite generally ad-

mitted that constraint was the essential, distinctive char-
This opinion was everywhere adopted
acteristic of law.
from the beginning of thelast century. Law as a sys-
tem of rules enforced by constraint was then opposed
to morals which admit of no constraint, which require
a voluntary submission. Thomasius, Kant, and above
all Fichte, pushed this distinction even to the complete

opposition of law and morals which they considered re-

spectively as rules for the outer and inner life of man.
The basis of this contrast was certainly the dualistic
conception of the universe. If conformably to Descartes'
doctrine mind and matter
are recognized as two inde-
pendent substances, the external and the internal life
are two absolutely separate and distinct spheres. There
is between them no mutual bond, no reciprocal influ-
ence. Each of them exists by itself, each has its peculiar
laws and in each, equally, its own peculiar forces act.
The exterior and interior life would be opposite poles.
Consequently the exterior order, law, could not be up-
held by internal agents. It rests exclusively upon ex-
ternal force, upon constraint. Between constraint and
the forces of interior life, there is nothing in common.
There nothing which by transition unites them. There-
is

fore constraint can have no internal psychic foundation.

It constitutes the independent external base of law's
action. 1
1
Doppel proposes this scholastic argument: "Quidam volunt Jus dictum esse
per metathesin, ut sit jus quasi vis conversis literis."
 THE CONCEPTION OP LAW 95

Such is the necessary consequence of the rigorous and

absolute separation of the internal and external spheres
of human activity. This separation, as we know, is
completely rejected by modern science. We know that
our moral life depends upon our physical vigor, that
even physiological phenomena change constantly into
psychic ones and the latter into physiological ones again.
Their rigorous delimitation is often impossible. In a
word, the moral and physical sides of our existence are
not two sedulously separated parts; on the contrary,
they interpenetrate, so to say, each other and touch at
every moment. From this point of view it would seem
that the theory which claims that law being only an ex-
ternal order ought to be based solely upon constraint
should fall of itself. If the moral and the physical life
depend upon one another, external constraint necessarily
provokes internal movements and the theory that law is
an external order ought to be allowed no value. This
theory, as has been first stated, has at the present time
no meaning, for we no longer, as in the past, oppose ex-
ternal and internal phenomena. In fact, the organic
school, which starts, as has been said, with assuming
the mutual dependence of all phenomena of the universe
and of all the manifestations of human life, no longer
considers law as a system of external conditions and
constraint as its essential attribute. It would seem
that the realists who extend the application of the prin-
ciple of causality to all phenomena without exception
ought to be the first to rally to the support of this con-
clusion. They ought to reject that limitation of law
and of morals which makes of the first an external
rule resting upon constraint, and of the second a moral
law supported by internal moral agencies. But the
phenomenon, which always occurs in such cases, ap-
pears here. Realism which appeared as a natural reac-
tion against the idealism previously all-powerful in the
96 THEORY OF LAW
science of law has fallen into the contrary excess. Just
as formerly the gross materialism, which referred
everything to external experience, was opposed to the
theory of innate ideas, so modern realism declines
to admit into the domain of law any rule which has
not the sanction of external constraint for its enforce-
ment.
This theory, widely received among the learned who
occupy themselves with positive law, has found much
support and a general theoretic base in the celebrated
work of Ihering, Zweck im Recht. 1
This doctrine contains a very grave error, as I shall
endeavor to prove. Constraint is neither a fundamental,
nor even a general, attribute of juridical phenomena.
First of all, it is not a fundamental attribute. One
calls fundamental, an attribute which is presupposed

by all the others from which they all flow in such sort
that without it the phenomenon could not be conceived
to exist. All the other characteristics depend upon the
fundamental one. By it alone can we conceive a phe-
nomenon, since it carries in itself, so to speak, all the
rest.
But is not connected with law in this man-
constraint
ner. Wecan conceive of law without this attribute.
If society were composed only of perfect men, constraint
would be superfluous and unknown. Each one without
stimulation by it would respect the right of another
and fulfill his own duties. Law would exist none the
less, for in order to fulfill my duties and render to each
what is his, I must know wherein my duties consist and
what is owed to each one. Even in the real society of
men with all their weaknesses it is recognized that
1 Zweck im Recht. 1. 318. "Die gangbare definition lautet: Recht ist
der Inbegriff der in einem Staat geltenden Zwangsnormen und sie in meinen
Augen vollkommen das Richtige getroffen. Die beiden momente welche sie
in sich schliesst sind die der Norm und die der Verwirklichung durch den
Zwang."
 THE CONCEPTION OF LAW 97

society is the more normal the more rarely constraint is

used. 1
Inadmissible is the law which is supported completely
and exclusively by constraint alone; inadmissible a state
of things where no one fulfills voluntarily his juridical

duty, where it is necessary to constrain everybody to

obedience of the law. It is inadmissible because what
power is there to be charged in such case with exercising

the right of constraint? 2

All these facts are so clear and evident that those who
think constraint the essential attribute of law dare not
affirm that it suffices for its enforcement. 3 Commonly
they put the question a little differently. They are sat-
isfied to affirm that if the force of law, its power, is not
based on constraint alone, constraint is nevertheless an
indispensable supposition, preceding all the other foun-
dations on which the predominance of law might be
left to rest; and that if law had not constraint behind

it, all the other bases of its power, religious sentiments,

4
utility, etc., would To sum up, they
lose their effect.

say law supposes reciprocity. I am obliged to re-

spect the rights of another if he respects mine. If one

attacks me unjustly, I am not bound to respect his
rights while doing so, vim vi repellere licet. This is why,
to fulfill completely our juridical duties, it is necessary
to be sure that they are observed by everybody. For
the same reason juridical norms are just or useful only

1
Ziller. Allgemeine philosophische Ethik. 1880. s. 221. Man ist auch
wenigstens allgemein xiberzeugt, dass Rechtsleben urn so gesunder sei, je-
weniger zwang angewendet zu werden brauche.
2 Ahrens.
Encyclopadie, 1857. s. 43. Trendelenburg. Naturrecht, s.
19. 89. Jellinek. Recht, Unrecht, Strafe, s. 50. Bierling. Zur Kritik der
juristischen grundbegriffe, I. 1877. s. 51. Thilo. Die theologisirende Rechts
und Staatslehre. 1861. s. 330.
3
Ihering. Zweck im Recht, I. s. 556. Schaffle. Bau und Lben des
socialen Korpers, I. 1881. s. 663.
* "
See especially Pichte. Grundlage des Naturrechts." 1796. I. s. 163-179.
Among contemporary writers, Lasson, "System der Rechtsphilosophie." 1882. s.

205-207.
98 THEORY OF LAW
if they are generally observed. If laws were observed
only by reasonable men and itwas granted to others
to break their requirements, the most righteous law
would become absurd. That law, for example, is very
just which directs the an animal attacked, or
killing of
suspected of being so, with a contagious malady. But
it is just only if everybody observes it. If some

evil-minded persons neglect it all the losses sustained

by the upright will be useless, since the sick animals
kept by their selfish owners will suffice to spread the
malady.
At first sight these arguments appear irrefutable. But
on examining them it is not difficult to show that they
go too far and either prove nothing or too much. In
fact, if law can really be observed at all, only on condi-
tion of being absolutely and rigorously so by all the
world, then it never will be observed. When the law in
force has a coercive sanction it may still be broken.
There is not in the world any power which can constrain
every one to obey it. Moreover, men in general do not
guide their conduct by certainty since it is hardly ever
to be had; but they act upon probability, which answers
practically to show us the line of conduct to follow. So
far as concerns law, men are satisfied with a probability
of its observance in the great mass of cases. Whether
law has a coercive sanction or not, there never is as-
surance that it be observed by everybody under all
will
circumstances. Under no conditions is it certain that
allanimals attacked by contagious maladies will be de-
stroyed as quickly as possible; but that this requirement
may be reasonable it answers that it is likely that most
of them will be, for thus we may hope that the disease
will not spread as readily as before. But if it is prob-
able, even before its publication, that the law will be
observed in most cases, constraint does not go for noth-
ing. Thus it is almost certain that, even when coercive
 THE CONCEPTION OF LAW 99

measures are taken with a view to assuring the com-

pletest application of the measure, a law for the destruc-
tion of diseased animals will be observed only if every-
body thinks it useful.
So constraint is not the fundamental attribute of the
law. Neither is it an attribute common to legal phe-
nomena. The theory that constraint is the essential
characteristic of law has been able to take form and
spread, owing to a special fact. As Bierling has already
shown, general questions of law have been studied hith-
erto jurists who were concerned mainly with the civil
by
law. General dogmatic instruction is ordinarily given in
civil law studies. 1 Moreover, even the system of natural
law arose chiefly from analysis of civil law institutions.
But it is only necessary to turn to public law institu-
tions to be satisfied that constraint cannot be accounted
a common characteristic of all law. To begin with po-
litical they may
laws, be violated by the government's
organs themselves. It may be asked how, in this case,
can constraint be used to sanction the violated rights. 2
But, perhaps we shall be told that a preliminary ques-
tion belongs here, Is public law really law? Does not
Rennenkampf claim that public law has not a rigor-
3
ously juridical character? Does not Gumplowicz af-
firm, his part, that if private law is law, then
for

public law ought not to be so called, but ought to

be designated by some other term, for it differs quali-
4
tatively?
Leaving aside for the moment public law, even in the
domain of civil law can all be realized by constraint?
Are not the parties often without possibility of real-

Bierling. L. C. s. 11. Die Lehre von den allgemeinen Grundbegriffen gehorte

1

gewissermasen zur Domaine des Privatrechts.

2 Thon. Rechtsnorm und subjektives Recht. 1878. s. 6.
3
Sketch of Legal Encyclopedia. 1868. p. 159.
4
Gumplowicz. Rechts-staat und Socialismus. s. 13.
100 THEORY OF LAW
izing their juridical claims because the judges are
too indulgent to the defendant, or because he has
for the time concealed all his goods in some secure
1
place F

The opinion which we are setting forth may be other-

wise expressed. In considering constraint as an essen-
tial attribute of law, it cannot be affirmed thereby that

every concrete juridical claim is realized by constraint,

but only that all laws in general and in the normal
order of things are capable of being realized in that
way. Therefore, the discussion is not as to the real con-
crete possibility of restraint, but as to an ideal supposed

possibility. If this is so it cannot be said that every law

can be enforced by constraint. It must be said only
that such a possibility ought to exist. question thus The
put becomes exceedingly vague. In every case the ques-
tion as to what are the attributes of law turns into
"what ought to be its attributes." Admitting, more-
over, this manner of stating the question, the theory
we are combatting gains nothing. To begin with,
there are norms which do not suppose constraint.
Those whose violation brings coercion are only a
part of juridical norms. If they are considered as

the only juridical norms, it will be necessary to ex-

clude those whose violation is followed by punish-
ment, for to punish is not to compel the observance of
the rule for whose violation the punishment is in-
2
flicted.

It is not difficult to show that the observance of a

good many laws cannot possibly be fully enforced
through constraint.
3
Those to whom this condition
1
Geyer. Phil. Eint. Holtzendorf s Encyclopadie. 4 Aufl. 1882. s. 5.
2
Thon. Rechtsbegriff. Grunhut's Zeitschrift. 1880. VII. B. Heft 2. s.

245.
3
Kuhnast. Ihering's Definition des Rechts (Beitrage zur Erlauterung des
deutschen Rechts, herausgbn. von Rassow und Kuntzel? 1880. No. 2-4?) s.

155. Es scheint aber auch, als ob die Frage wohl aufgeworfen werden darf ob
uberhaupt die Erfullung irgend einer Rechtspflicht und insbesondere die Leistung-
sabischt erzwingbar ist.
 THE CONCEPTION OF LAW 101

is applicable are, strictly speaking, norms which carry

the obligation of not doing something, those imposing
obligation to give up something or its profit. But
laws requiring of a person an act, especially a
personal act, cannot be enforced by constraint. A
man cannot be compelled by force to do a par-
ticular task. There may be cases, and are such in
fact, where the man will prefer to submit to capital
punishment rather than to an act contrary to his
conscience or even his interest.
In all this discussion in speaking of constraint physical
constraint is meant. The whole argument relates to
that. Constraint can, certainly, be understood differ-
ently. Thus, Ihering in making constraint the funda-
mental attribute of law, has in view not only physical
but also moral constraint. Why not give it this large
meaning? If it is taken thus, the idea of constraint is

enlarged so as to make the discussion useless. If con-

straint regarded as including both physical and moral
is

pressure, it certainly does accompany all juridical phe-

nomena. But when so understood, it serves as the
sanction not only of juridical norms, but also of moral
principles, religious dogmas, and even the "laws" of
logic and aesthetics. The conscious violation of moral
duty inseparable from ideas of repentance, of fear and
is

of contempt. Sin evokes the idea of wrath and chas-

tisement from God. The violation of the rules of logic

brings error and uncertainty in results obtained.

The violation of the laws of beauty, themselves, finds
a sanction in the discomfort produced by ugly spec-
tacles. All these ideas produce the same moral con-
straint as does the threat of legal exaction, or punish-
ment. In this broad meaning the degree and character
of the constraint is very variable; but the constraint

applied for juridical ends is far from being the severest.

Fear of God's wrath or infamy may be vastly greater
102 THEORY OF LAW
than that of a pecuniary loss or a few days in prison.
Moral constraint thus cannot be regarded as the essen-
tial attribute of law. It forms a part of everything
that has to do with human consciousness. Conse-
quently in saying that law is supported by moral con-
straint we mean only that the orders in juridical norms
are addressed to the human conscience and nothing
more.
Thus, there cannot be recognized in constraint the
essential and distinctive mark of law. Doubtless, and
we freely admit it, constraint, and above all moral
constraint, plays a very vital part in law. Its im-

portance comes from the fact that the development of

juridical order has always for a result the prevention
of all violence. However undeveloped a society may
be, juridically, constraint is always recognized as a
means of social authority. In our day the organs of
authority ought to use constraint only to compel observ-
ance of legal requirements. Consequently the moral
order of things in modern society is such that physical
'

constraint is employed only in the law's service. It is

only in this sense that we can say that it is the dis-

tinctive attribute of law. This surely does not mean
that it is the general characteristic, or indispensable
basis, of law. We say only that with the progress of
social lifelaw tends to put itself above force and to use
it only so far as it is a valuable means for enforcing legal

requirements. It is very important that public powers

have in general monopolized in their own hands the use
of force. It serves not only to guarantee social peace;
it consolidates the rights to which it can give effect,

and which do not thereby lose their nature. For the

same reason it strengthens all other rights. The realiza-
tion of a right by constraint impresses men's minds
necessarily. In the minds of the great mass, who know
not how to fix limits for the possible application of con-
 THE CONCEPTION OF LAW 103

straint, the notion of law becomes involuntarily asso-

ciated with its coercive enforcement.
When a rudimentary idea, one made without the
aid of critical analysis, is formed of law, it always
carries the persuasion that all laws without exception
can be made respected by force. This elementary notion
may have its social value, but has none in science, since,
as we have seen, it cannot withstand a rigorous analysis.
104 THEORY OP LAW

Section 13. Formal and Utilitarian Conceptions

As we have said, our conception of law as rules for

the delimitation of interests conflicts with two con-

trary opinions. The partisans of the formal tendency

object that without doubt the function of law consists
in delimitation: but that what it delimits is not interests,
but individual wills. The partisans of the utilitarian
tendency, on the other hand, think that law is not the
delimitation, but the protection of interests. Let us
see what is the meaning of each of these different for-
mulas, and try to show that each is contaminated with

an exclusiveness which prevents our accepting either.

The formal theory of law is the older. It found its
birth at the same time as the school of natural law, and
is characterized by individualism and by its mechanical

theory of society. It reachedits highest development

in the XVIII century in the doctrines of Thomasius,

of Kant, and of Fichte. These authors entirely sepa-
rated law from morality, and gave a character rigorously
formal to law. They saw in law the exterior order of
human relations. Its function was to assign to each
individual an inviolable sphere where he could freely
realize hisown will. But they did not seek to know in
what the will consisted and the interests which cause
it to act.
The predominating influence of the formal theory at
the beginning of the XIX century and during the pre-
ceding one, had a double cause, historical and theoretical.
This formal theory, which considered law as having for
its sole task the assigning to each one a certain sphere

for the free realization of his will, and did not concern
itself about the use which the individual might make
of his liberty, was a reaction against excessive develop-
 THE CONCEPTION OF LAW 105

ment of government tutelage. The administration at

this time thought itself called upon to meddle in all
the details of personal activity. Legislation undertook
to impose upon each one his residence, his costume,
what he should do, and how to do it.

This excessive development of state control com-

pletely destroyed individual initiative, that chief agent
of social progress. The state legislated as to matters
of conscience, prescribed religious beliefs and persecuted
those who departed from rigorous orthodoxy. Under
such conditions it was necessary to set limits to the
state's in the sphere of individuality by
interference
giving to the individual himself a sphere of autonomous
activity. Such was the historical basis of the formal
theory of law. Its theoretical basis rested on the his-
toric notion of human society which was dominant at
that time.
When we consider society as a simple and mechanical
aggregate, composed of a certain number of individuals,
when we do not see in the individual a product of social
life,but when society itself appeared as the result of a
when, in a word, the mechanical theory
social contract;
of society was accepted, at such a time the individual
with his conscious will might be regarded as the one
activity in social life. The social order according to
this theory consists in the delimitation of different

spheres assigned for the activity of the different indi-

viduals making up society. The sphere, so assigned to
each one, and in which his will is all powerful, is con-

sidered as constituting his right in the subjective sense.

The rules which control the individual wills constitute
the objective law.
Once formulated, this idea of law has been admitted
even by authors who have abandoned the mechanical
theories of society. Hegel, who thinks that the interests
of the individual ought to be subordinated to the social
106 THEORY OP LAW
order,whose end is the realization of morality, under-
stands law, nevertheless, in a purely formal manner.
The theory of the will receives, too, in him a peculiar
development. With Kant the individual will is limited
by ourselves; with Hegel by will, itself, but by the
which is expressed in the state's
objective, general will,
organization. So the notion of law for Hegel comes
altogether from that of will; law for him is a delimita-
tion of the individual subjective will, by a general
objective one.
The doctrines of Kant and of Hegel exercised a very

great influence over legal literature in the first half of

the XIX
century. It is not astonishing that the formal
theory which considers law as the delimitation of the
will has maintained until now its importance. We find
1
itvery often in the definitions of current manuals.
But historical conditions having changed and the
organic doctrine having taken the place of the mechani-
cal theory of society, this view has been somewhat
abandoned.
Intervention of the state with the sphere of the
individual actually limited in all countries, and in
is

certain ones even too much so. Individual liberty is

almost universally recognized. To the old preoccupa-
tions which gave birth to the formal theory of law, have
succeeded new ones inspiring other tendencies. The
individual man freed from state tutelage has not been
found to be as free as was expected. When intervention
of the statewas suppressed it was perceived for the first
time in what dependence individuals find themselves
with respect to society, in what degree the disinherited
are subject to the wealthy.
But the state, so far as it represents the conception of
morality, cannot admit that the highest interests, for
1
Windscheids Pandekten 1. sec. 37. Kuntz. Wendepunkt der Jurispru-
dentz 32.
 THE CONCEPTION OP LAW 107

example public health and safety, should be subjected

to lower interests, simply because these last have force
on their side. A new appeal is made for its interven-
tion, which is necessary in order that the liberty of the
weaker be protected against the strong, and so it becomes
necessary to enlarge the sphere of legislation. The
law may not content itself with delimiting the spheres
for the realization of individual wills. It is obliged to
take into the different interests, which
consideration
make up those spheres themselves. All these ques-
tions, set by life itself, have had as a result a new manner
of understanding the law. The first school to oppose
itselfto the formalism of the old legal theories was the
organic school represented by Krause, Ahrens and
1
Roder.
Having rejected the mechanical theory of society
this school naturally could not continue to understand
law as a combination of rules directing individual
wills. The notion which it has developed is much
of law
wider. According to it, law is the combination of con-
ditions necessary for the harmonious development of
the individual. It also defines subjective right, as indi-
vidual will limited by legal rule.
The first writer who separated completely the defini-
tion of law from that of will is Ihering, in the third
volume of his Geist des Romischen Rechts. For him
subjective right is not a will which can be limited. He
replaces the will by interests. The social work of law
is the protection of interests, not the delimitation of
2
wills.

Ihering's conception of the social functions of law

offers doubtless advantages over the theories which
define law as the delimitation of wills. In the old
theories legal science maintained a strictly formal char-

1
Ahrens. Encyclopadie 51.
2 Geist des Romischen Rechts, III. sec. 60.
108 THEORY OF LAW
acter which took no consideration of the subjects of
human activity, the aspirations, the needs, the neces-
sities,which guide it, but only of its external forms.
So understood, jurisprudence cannot show the social
value of legal institutions, nor the conditions which have
caused them, nor the ends to whose realization they
lead.
On the contrary a jurist, who considers law as the
juridical protection of interests, is led involuntarily to a
more complete study of existing institutions. In
examining the interests which direct human activity
and which are protected by the law to which they gave
birth it is possible for him to pass beyond the limit of a

simple study of legal forms of protection. He explains

the reasons for this protection, its influence upon the
progress and development of social life, how it con-
tributes to progress, and how hinders it. He becomes
able to understand the historic alteration in legal forms
by applying himself to the study of the changes in the
character and tendency of the interests protected by
them. With respect to the legal forms in force, espe-
cially the newly established ones, he reaches the possi-
bility of exhibiting them clearly, and developing fully
their beginning before him in scarcely recognized
embryo, so that by recognizing the alteration of inter-
ests we can predict also the changes in the forms
of their legal protection, or at least foretell their

tendency.
These changed notions of law have necessarily exer-
cised, and are exercising each in its turn, their influence
upon the legislator. The first separates him from life
and the other brings him in contact with it. The will,
regarded apart from its material manifestation, appeared
the same in all the world as one of the general forms of
life. Hence the idea that law is independent of condi-
tions of time and place, and that it is possible to justify
 THE CONCEPTION OP LAW 109

oneself in promulgating law upon considerations

wholly abstract. 1 On the other hand, interests

vary indefinitely with different persons, times and

places.
The who takes into consideration the mate-
legislator
rial of law has to study the manners of the society for
which his laws are designed. With our conception of it,
it is impossible to write laws without previously study-

ing the interests of society. The conditions of social

lifewith which the legislator has to do are local and
concrete, and not abstract ones.
So that following the idea just given of law we assign
to the legislator a function very extensive and complex.
If we protect the will without concerning ourselves with

the use which the subjects are going to make of such a

right, of course only very general conditions, under
which the protecting help shall be extended, can be
established. These conditions, moreover, are generally
negative, and are limited to protecting the individual
against direct infringement of his right. On the con-
trary, if the legislator proposes to protect interests., the

conditions of protection have in view the peculiarities of

each interest, and, consequently, can be of a positive kind.
The comparison of these contrasting theories leads
to the preference of Ihering's, but other arguments can
be found to show that the theory, which assigns to law
only the function of delimiting wills, does not conform
to the real phenomena of juridical life and that among
these phenomena are several which it leaves without
explanation.
1
Stein, himself, despite the essentially historical character of his theories,
is led by his manner of understanding law, which he borrowed from Hegel, to
affirm that law in its fundamental principle is quite opposed to its own
matter, that it does not arise from the activities of life but by means of the
simple idea of it (Gegenwart 94), and still further he affirmed that law by
itself has no history and that what we are accustomed to call its history is
the history of life in those relations in which it turns to legal ideas. Id.,
page 100.
110 THEORY OF LAW
In the different legislative rules in force one can find
institutions which do not simply protect the will, but
protect only as it is applied to the realization of an
it

interest which is thought worthy of protection. Of

this fact a very general example, which the whole world

recognizes, can be cited. Justice does not enforce all

contracts, but only those pertaining to an interest of
some importance. No tribunal would attempt to com-
pel performance of an agreement to dance the waltz
at a party with a particular person. No one would
think the interest resulting from such an agreement
1
enough for the law to be applied to vindicate it.
Besides those interests which are not essential, those
which are contrary to morals are not protected, and
the law refuses its protection to contracts concerning
them. So, contracts having protection as their object
are not sanctioned
by any tribunal.
One can also show the inconsistency of the old theory
by demonstrating that persons who have no wills are
nevertheless invested with certain rights. For example,
the law protects the interests of unborn infants, idiots
and the insane.
Finally, the protection of interests takes place some-
times at the instance of the individual, and sometimes
contrary to it. We find examples of such protection
in the institution of guardianship of minors and spend-
thrifts, in compulsory instruction and compulsory vac-
cination.

1
By Am. Translator. The explanation of this in our manuals of the
law of contracts, viz., that the parties themselves make such agreements with
the understanding that they are not binding, either offers no explanation, or
is an instance of the illegitimate use of fiction for that purpose, like that of

corporate personality mentioned below in this section. Such understanding

either arises from the nonenforcement, which is sought to be explained, or is
a pure fiction. Usually it is the latter, and the matter of nonenforcement is
not at the time adverted to by either party. The vera causa, unquestion-
ably, is the insignificance of the interest in question. De minimis non curat
 THE CONCEPTION OF LAW 111

So that if we make the will the subject-matter of law,

it is impossible to explain its institutions because there
are laws whose object is not the protection of any indi-
vidual will. On the contrary, no law can be cited which
does not protect some interest, if the law is actually in

force. Without doubt many legal institutions find a

rational and sufficing explanation in the theory which sees
in the law only a delimitation of wills. This does not
prevent the defining it as a protection of interests, for
the fact that a definite sphere is guaranteed to the
individual for the free realization of his will, establishes
also an interest; consequently, in defining law as the
protection of interests, we regard it from a more general
point of view. This definition embraces the preceding
one, which looks only to a particular case of the protec-
tion of interest.
It is necessary to add also that in understanding law,
as the delimitation of wills, one necessarily shows him-
self a partisan of the individualistic conception. The
will is always individual. Each one has his will; and
this is why, in admitting this theory, it becomes neces-
sary to oppose the individual and his rights to society.
Meanwhile, the real legal order presents a good many
rights which cannot be connected with any particular
individual. The theory based upon the will can explain
a good many phenomena only by an appeal to the
theory of legal persons, to whom are accorded rights
analogous to those conferred upon individuals. But
the judicial person is a fiction by means of which some
group of persons, or some undetermined one, is con-
sidered as a distinct person, and, like an individual, is
endowed with rights and obligations. There may be
cited as belonging to this class of ideas the loan societies,
the various corporations, benevolent societies, etc. For
the purposes of legal construction this kind of fiction is
perfectly legitimate, it simplifies the explanation of
112 THEORY OF LAW
certain acts. But it loses all value when resorted to for a
philosophical explanation of the existence of rights which
do not belong to any individual. In such a case fiction?
ought not to be employed. However, by replacing
"will" with "interests" we can explain the phenomena
without employing fictions. The will isan attribute of
human personality. Men's interests, on the contrary,
are very little determined by their individual organiza-
tion. For the most part interests are products of social
conditions and have therefore a social character. The
interests of mankind cannot, like man's will, be opposed
to those of society. Most interests are common to all
men, others are at least common to some distinct groups
of persons, and it is only a very few which have a strictly
individual character. So in understanding law as the
legal protection of interests we are led to replace the
individualist's with the social theory. Law is not con-
sidered as something which the individual opposes to
society, but something that society has created and
which gives to the individual.
it In fact, the theory of
Ihering and his partisans presents itself to us under this
aspect as the social theory of law.
Nevertheless, despite its value, Ihering's conception
cannot be accepted without submitting it to extensive
modifications. His point of view, that law is a protec-
tion of interests, cannot be accepted. If one holds to
this definition of law he is compelled to recognize that
if in society a
single interest alone was protected to the
exclusion of all others, this protected interest would

nevertheless have a legal right, and that consequently

the relations which the man, possessing it, would have
with his fellows would be legal relations. Such, for
example, would be the relations of a despot with an
oppressed people; those of a father with the rest of his
family who do not enjoy legal rights; those of citizens
with foreigners at a time when these latter had no legal
 THE CONCEPTION OP LAW 113

rights; those of a master with a slave. But all this

contradicts the truth that one can exercise a legal right
only in connection with persons who are also subjects
of law, that juridical relations are only possible between
persons who enjoy legal rights.One can have a right
"over" a slave but not "with" him. The interest pro-
tectedby the law which consists in disposing at pleas-
ure of the slave's life is restrained and limited in its
realization notby the slave's interests, which are not
taken into consideration or protected, but by those of
other persons who do possess legal rights; by those,
for instance, of the true owner who has given me the
right to employ the slave's services. It is the interests
of this man which, like own, my
are protected by the
law. On the other hand, we cannot have a right "over"
persons who possess their legal rights. So, when you
make a contract of hiring with a domestic, you have a
right in connection with the person whom you take into
your service, but not "over" him. Your right is only
to his labor.
Our Professor Mouromtzev thought he avoided this
difficulty by adding to his definition of law, that law is
protection given by society to an individual, having for
its end only the guaranteeing of him against obstacles

coming from other members of the society. He

regarded the law as a peculiar form of society's influence
over human relations. Men's relations are made com-
plex generally by the effect of the special situations in
which they are worked out, of the society in which men
live. Society is naturally disposed to assist men when
they seek to establish relations with each other. This
social assistance may come in two ways. First, It may
be employed with a view to removing obstacles thrown
in the way by men not belonging to the local society.
Mouromtzev calls this the first "modality" of protection.
Second, Society protects the relations which some of its
114 THEORY OF LAW
members have with each other against attacks by per-
sons who are equally parts of its organization. It
appears under two forms, organized and unorganized.
Organized protection is distinguished from the other
by following a course of procedure settled beforehand,
and by means specially designed to do this. This form
of protection, determined beforehand, is the law, accord-
ing to Prof. Mouromtzev's definition. Consequently, the
law is, for him, not the whole means of protection, but
only socially organized protection directed against the
dangers that come from within the society itself. This
formula presents no advantage.
rectification of Ihering's
It comes necessarily to the denial of all international
law whose subjects are precisely members of different
societies. Besides Mouromtzev, to be consistent with
himself, must deny the validity of some parts of inter-
national law whose juridical character is incontestible.
To be while holding to his theory one can still
sure,
attribute a juridical character to that protection of inter-
ests which is brought about by the aid of collective meas-

ures, with the co-operationmerely of the international

community, because under this hypothesis we have a
protection given by the international community to
one of its members; but impossible on this theory
it is

to affirm the juridical character of the prohibition

against a foreigner's reprinting a book without the

author's permission. In this case, and in other analo-
gous ones, the protection having for object to prevent
a fact from taking place on territory not subject to the
legal group, could not be regarded as juridical protec-
tion according to Mouromtzev's definition. Too narrow
in this hypothesis, the definition on analysis is found to
be too large in other cases. It extends, in fact, to the
attributing of a juridical character to the protection
which is given against the act of an individual who is a
part of the local group, but who enjoys no legal rights
 THE CONCEPTION OF LAW 115

and has no interests guaranteed by law. The rela-

tions of a master with a slave deprived of all rights, and,
in general, our relations with individuals outside of the

pale of the law would have to be recognized as juridical.

All these consequences resulting from the formula
which we are combatting are avoided if our definition
is accepted. The function of law consists, in our view,
not in the protection but in the delimitation of interests.
Consequently, juridical relations can exist only with
persons who have legal rights, and whose interests are
placed under the protection of the law. Where the
protected interest exists only on one side there can be
no delimitation of interests. In such a case the pro-
tected interest absorbs completely what is not protected.
It is necessary to observe that the utilitarian definition,

according to which it is the function of law to protect

interests, leads in its logical consequences to an exces-
sive intervention on the part of the state. The pro-
tection of interests supposes naturally the choice of
the best means for their realization. It results that if
the task of the law to protect interests, it ought to
is

compel the adopt in the realization of their

citizens to
interests the means which are considered the best and,

consequently, might stifle completely the personal initia-

tive, that capital agent in social development. The
delimitation of interests, on the contrary, checks only
their collision without mingling itself with the choice
of means for realizing them. To the degree that realiza-
tion of the given interest does not prevent that of others
it is determined only by the extent of opportunity and

the requirements of morals without being regulated by

legal rules. If we assign to the law as its function the de-
limitation of interests it stands thus between these two
extremes, between the indifference to individual action
which the formal conception of law requires, and the sup-
pression of individual independence which would seem to
be the logical consequence of the utilitarian theory of law.
 CHAPTER III

HYPOTHESIS OF NATURAL LAW

Section 14. General Characteristics

The matter constituting juridical norms is extremely

variable according to time and place. The same inter-
ests are differently delimitated by law in different states
and at different historical epochs. From this fact it

seems to result that the matter making up juridical

norms depends wholly upon the free choice of men,
that law is the voluntary and intended work of human-
ity. But by the side of variable and temporary ele-
ments of law, can be found elements imposed by objective
necessity. Although the judgments of man vary in the
course of society's historic evolution, we find, neverthe-
less, that the conceptions of law and non-law which are
formed in us in one way or another cannot be modified
at will; so that in the history of almost all legislatures,
we can find cases where attempts to borrow foreign legis-
lation, or to put in force unsuitable theoretical prin-
ciples of law, have wholly failed. The will of the legis-
lature encounters obstacles in social conditions and the
law, after being promulgated, remains a dead letter and
is not applied.
We are forced to recognize in the law, by the side of
this variety and diversity, elements
imposed by objective
necessity. The presence of these elements has been
observed by the very earliest savants who attempted a
scientific explanation of legal phenomena. It was neces-
sary to fix that element of law which appeared to arise
without the action of man. As there was not until the
XVIII century any accurate notion of regular historical

evolution, following certain laws, they found themselves

116
 THE CONCEPTION OF LAW 117

in the alternative of considering law as instituted

by
man, entirely arbitrary, governed by no necessity, or
else as something immediately provided
by nature and,
consequently, unchangeable and independent of men's
wills. The first of these points of view is superficial,
contrary to the inevitable character of law, and did
not satisfy even minds which were not prepared to
appreciate the problem of law's origin. The second
point of view resulted in the theory of natural law
unchangeable, eternal, and universal, resulting neces-
sarily from man's nature and independently of his will.
It is a seductive
hypothesis. It assimilates legal
norms to laws of nature. Instead of subjecting man to
arbitrary orders from his fellows, it subjects him to
unchangeable orders of nature. Instead of an artifi-
cial and conventional law it sets up a natural and neces-

sary one but this

; hypothesis finds in the fact of variety and
inconsistency of law an irrefutable objection. If there
exists a natural law which is unchangeable and eternal,
how can a positive law which is imperfect find a place
beside it? Despite all this, the manner in which the
question was put being granted, and granted that it
was necessary to choose between arbitrary man-made
law and it, the hypothesis of natural law becomes the
only possible explanation for that character of necessity
and generality which belongs to law.

Despite the sure manifestation of variable elements,

which seemed to contradict its necessary character,
every reflective mind was compelled to recognize in law
an objective necessity and not a purely human creation
only. Practicing lawyers alone could be brought to
deny the hypothesis of natural law. It appeared incon-
testable as soon as the question was examined, from the
philosophic point of view. For several centuries this
hypothesis ruled without division, and was almost
unanimously accepted as the scientific explanation of law.
 118 THEORY OF LAW
Appearing for the first time in Greece, with Socrates,
it was strongly developed by the Roman jurists. They
considered natural law as a common and indispensable
element of all law in opposition to the vagaries of
national legislation. In the philosophy of the middle
ages, conformably to the religious tendencies of that
time, natural law was identified with divine law, eternal
and unchangeable, to which were opposed variable
human laws. In the XVII and XVIII centuries, under
the influence of the dominant rationalism the theory of
natural law wholly separated again from all religious
basis, and natural law once more was considered as an
abstract system which was derived by logical necessity
from man's reasonable nature and which existed by the
side of the positive law.
It is only the historical school, represented by Hugo
and Savigny, which has refuted for the first time in a
philosophical way the hypothesis of natural law. This
was not the result of chance,but of the logical tendency
of the school, which applied to the explanation of law
the historical conception. The historic study of law
existed previously, but the historic conception appeared
only with this school. In the XVI century the French
jurists,with Cujas as their chief, studied the history of
Roman law; but their labors were only historic researches.
They sought to reconstitute the old Roman juridical
life and nothing more. There was no question of the
process of historic development. It could not be other-
wise, for the idea of historic evolution had not yet been
formulated. It appeared only in the XVIII century,
thanks to the labors of Vico, Montesquieu, and Herder.
The historic school has great value, especially because
it applied to the study of law the new conception of a

regular historic evolution. This conception led it to

deny the hypothesis of natural law. The regular char-
acter, and by consequence the necessity, of the develop-
 THE CONCEPTION OF LAW 119

ment of law historically being ascertained, this hypoth-

esis was no longer indispensable. Doubtless, law is in
part necessary and independent of man's will, but the
regularity of its development best explains its necessity.
This explanation has the advantage of harmonizing at
the same time with the idea of the variety and of the
variability of legal institutions. The doctrine of the his-
toric school easily overcame the theory of natural law.
Neither Hugo nor Savigny saw any need to spend much
time upon its refutation. These authors simply opposed
to that theory the idea of historic evolution. This the-
ory, when put forward, took away at once the main
foundation for the old one; that is to say, the legal phi-
losopher was no longer in the alternative of choosing be-
tween the natural law theory and the arbitrary charac-
ter of law. The historic school showed that it was pos-
sible to solve theproblem while avoiding this alternative.
Law not formed directly by nature, nor is it, either,
is

an arbitrary creation by man. Law, according to the

doctrine of the historic school, is a product of social life
which follows in its evolution a regular advance, and to
that extent is necessary. It is not created by the arbi-
trary will of individuals, but by the steady inevitable
advance of human development. Being neither arbi-
trary nor natural, law is a historic necessity.
However, the historic school did not give to this idea
of regular historic development, a formula so general.
It saw in law a product not of human society, but of
each separate people. Law, for it, is exclusively national
and ought to be defined as a product of the conscious
spirit of a people, whose qualities determine the
con-
tent of each national legal system. At the same time,
the national mind is not conceived as forming, develop-
ing, and gradually changing itself. On the contrary,
believed that each people at its appearance on
they
the arena of history had already its popular genius defi-
120 THEORY OF LAW
nitely established and containing in itself all the his-
toric life of the people. In other terms, this school
comprehended the historic development as an organic
and not a progressive one, not as an evolution. This
was not meant to affirm that the development of law
is the creation of some new factor, but only that it is

the production of what from the beginning was already

in embryoin the popular genius. This doctrine does not

explain how
the genius itself of the people is formed,
containing in itself the peculiarities of each national legal

system. It does not determine the connections between

what is national and what is universal. But it is pre-
cisely in the development of law that one observes
some common characteristics in spite of the complexity
of national legal systems. Legal development, in the
most different peoples, presents always a certain uni-
formity.
To give such a narrow formula to the historic evolu-
tion of law was to explain law in an incomplete way.
The theory of natural law reappeared, but this time
under a new form. Hegel and his partisans commenced
to oppose natural law not to arbitrary law (Jus Volun-
tarium) but to historic and national law. At this point
of view, natural law reappeared as the general and im-
movable base upon which historic systems arose and
were regularly developed. In changing a little the way
of putting the question, the organic school sees in nat-
ural law a general unchangeable ideal whose realization
determines the meaning of the historic development of
law. On the other hand it is necessary to admit, ac-
cording to this school, that if the lines of the develop-
ment of law are invariable and identical for all human
societies, the results of this development ought necessa-
rily to present common characteristics. This resemblance
in the result of the historic evolution of national sys-
tems might be otherwise exhibited as a consequence
 THE CONCEPTION OF LAW 121

of the analogy, or of the uniformity of the principles,

which control the formation and the evolution of each
system of law. The latest theories of natural law
go much farther and claim that this law presents itself
not only as the general foundation for the historic de-
velopment of law, but also as its ideal end, prior to all
history. They do not admit that this general founda-
tion which constitutes the subject-matter of natural law
was created by history, like the special concrete elements
of law. According to these latter theories natural law
was given to us without conscious intervention of the
human will and independently of our activity. It
existed before any historic development, whose very
possibility depends upon its existence. Consequently,
these theories do not have merely the name of theories
of natural law; they affirm the actual existence in nat-
ural law of a prehistoric element which has not arisen in
the course of historic evolution and which in this sense
is eternal.
The appearance of these theories after that of the doc-
trine of the historic school is explained, as we have al-

ready said, by the fact that the historic school under-

stood historic development in too narrow a way, and de-
fined it as an organic development of a type determined
beforehand, and not as a progressive and creative devel-
opment. The connection of different systems of law
with universal principles thus remained without explana-
tion. The partisans of Hegel and the organic school
sought to explain it by saying that historic forms of law
are only special manifestations of a sole and eternal
principle of law, and in that way they went back to the
old theory of natural law. Nevertheless, it is not diffi-
cult to show that the idea
of a regular evolution, relieved
of the too narrow formula which the historic school gave
to it and expressed under the more general one of a pro-
gressive and not simply an organic development, explains
122 THEORY OF LAW
with sufficing clearness the existence in law of necessary
and universal elements.
The inevitable uniformity in natural phenomena has
for a that identical conditions produce always
result,
identical consequences. The conditions for the existence
and development of different human societies, various as
they are in their special elements, are nevertheless en-
tirely identical in certain general ones. Always and
everywhere there are found certain conditions of human
life on earth. The actors and the stage in the historical

development of humanity are always the same. There

is much more resemblance than difference among men.

The surface of the earth, diversified as it is, remains

always a whole. This is why human life wherever de-
veloped presents universally the same general leading
characteristics, despite the difference in individual ones.
Human law, whatever the complexity of its contents,
possesses inevitably some general qualities. But this
does not prove that there is outside of the historic
process a general unchangeable principle which marks
out the course of legal development. The generality is
only the result of the action of general conditions, noth-
ing more.
We cannot limit ourselves on this subject to these gen-
eral remarks. Given the extensive importance of the
hypothesis of natural law, and its profound influence
upon legislation and legal science, it is necessary to ex-
amine in greater detail the different phases of its devel-

opment.
 THE CONCEPTION OF LAW 123

Section 15. The Natural Law of the Roman Jurists

VOIGT. Die Lehre von Jus naturale, asquum et bonum und

Jus gentium der Romer. 1856. B. I. s. 267-336.
LEIST. Die realen Grundlagen und die Stoffe des Rechts.
BOGOLIEPOV. Importance of Private International Law. 1876,
p. 26.
MOUROMTZEV. Sketch of a General Theory of Private Law.
1877, p. 241.

According to the doctrine of the Roman jurists natural

law is a part of positive law. According to them, the
positive law of each country is made up of two essen-
tially distinct elements. Some rules are established by
men's wills and can be changed at their pleasure; others
are unchangeable, existing of necessity always and every-
where, because they depend upon nature itself. Natural
law distinguished from positive law by this necessity,
is

unchangeableness and independence of human will. But

they recognize a positive law, also, as acting at the
same time and in the same way as natural law. They

placed the latter in the sphere of concrete phenomena.

They attributed to its action as genuine a force as to
that of positive law.
Under this form the hypothesis of natural law can be
subjected to a critical verification by which it can be
ascertained whether it is true that those legal rules re-
garded as natural are always and everywhere necessary
elements of positive law. If it is established that all

these legal rules, apparently natural, depend upon con-

ditions of time and place and are necessary elements of

positive law, the hypothesis as set forward by the Roman

jurists must be rejected.
The Roman jurists give in their works a good many
reasons tending to show that legal rules do not depend
124 THEORY OF LAW
upon the human will, but are created by nature itself.
They attribute to them as a basis, either human nature,
or the nature of the things which are the subjects of
rights, or thenature of the legal relations themselves.
So, basing them upon human nature, they affirm that it
isnecessary to admit that minors cannot undertake bind-
ing obligations and that the institution of guardianship
is indispensable. Since in its nature humanity remains
always the same, whether slave or free, the Pom-
peian law which punishes the murder of parents and
patrons and which in its strict meaning applies only
to free men, ought to be applied also to slaves. In
its own nature humanity cannot be likened to a fruit.

Hence a slave's infant born at the time when its mother

was under the control of a master, who had in her only
a "usufruct," ought, notwithstanding the general rule,
to be restored with the mother to her general owner.
(Ulpianus. Vetus fuit qu&stio an partus ad fructuarium
pertinet, sed Bruti sententia obtinuit; fructuarium in eo
loco non habere; ne que enim in fructu hominis homo esse

potest, hoc ratione nee usumfructum in eo fructuarius

habebit.)
In his own man can be instructed indefinitely;
nature
then, if in mention
a will is made of slaves who have

learned the art of hair dressing, it must be held to

include those who have studied this calling only two
months. (Martianus. Ornatricibus legatis, Celsus scrip-
sit, eos qua duos tantum menses apud magistrum fuerint.

legato non cedere; alii et has cedere; ne necesse sit, nullam

cedere, quum omnes ad hue discere possint et omne arti-

ficium incrementum recipiat. Quod magis obtinere debet,

quia humane natures congruum est.)
The Roman jurist deduced another category of legal
norms from the nature of things. "Perhaps someone
will ask," saidt the jurist Paul, "why by silver we mean
also things made of silver, while by marble we mean
 THE CONCEPTION OP LAW 125

only the mere material." This rule rests upon the fol-
lowing proposition: all which from its own nature can
be several times transformed without losing identity,
because of such a power in the material, is regarded
as never subject to such action. (Illud fortasse quceritu-
rus sit aliquis, cur argenti appelatione etiam factum
argentum comprehendatur, quum si
esset, marmor legatum
nihil pr&ter rudem materiam demonstratum videri
posset. Cujus h&c ratio traditur, quippe ea, qua
talis natures sint, ut s&pius in sua redigi possint
initia, ea materice potentia victa, nunquam vires ejus
ejffugiant.)
All the world, according to natural law, can but make
use of the sea, of running water, and the air. (Martianus.
Et quidem naturali jure omnium communia sunt ilia:
aer, aqua profluens et mare.) Gaius thinks that natural
reason requires that a contiguous wall be the common
property of the neighbors. When certain things by their
very nature are consumed in use, they may not be made
subjects of "usufruct." (Rebus exceptis his qui ipso usu
consumuntur: nam e<z neque naturali ratione neque civili
recipiunt usumfructum.)
Finally, the nature of the relations themselves can be
also considered as a source of legal institutions. The
Sabinian School, starting with the notion that the law of
property is the most absolute part of law and least sub-
ject to arbitrary adjustment, affirmed that, according to
natural reason, in a case of specification, the right of
property over a thing must always remain in its owner.
It is contrary to nature that one man should possess
the same object as another. (Paul. Contra naturam
est, ut, cum ego aliquid teneam tu quoque id tenere
videaris . . . non magis enim eadem possessio apud duos
esse potesi, quam ut stare videaris in loco eo, in quo ego sto,
vel in quo ego sedeo tu sedere videaris.) Conformably to
nature relations cease to exist in the same way that they
 126 THEORY OF LAW
are created. (Ulpianus. Nihil tarn naturale, est, quam
eo genere quidquam dissohere quo colligatum est.)
If, then, an exchange provided for by a contract is im-

possible, the agreement itself becomes so. It is a deter-

mination required by natural law. (Si id quo dari stipu-
lemur, tale sit, ut dari non possit, palam est naturali ratione
inutilem esse stipulationem.)
The examples just cited differ decidedly from each
other. First, Several of them have no connection with
"nature" and are only necessary consequences of ex-

periences and
ideas historically established. The expla-
nation, for example, given by Paul of the difference
between the expressions "silver" and "marble," rests en-
tirely on the way in which the Romans understood these
words. With us the meaning which they gave them
would have no force; because sculptors call with us "mar-
ble," not only the block of marble but also objects cut
from this material, just as they call "bronze," a work in
bronze, and "canvas," the picture painted upon canvas.
So the rule, according to which things consumed by their
use cannot be subjects of "usufruct," or of lease, is a
logical consequence of certain exclusively Roman notions
which are absolutely conventional. In the Russian lan-
guage there are no corresponding expressions.
Second, Another group of the examples is formed
where the term "nature" is taken in a moral sense, as
for example, where it is recognized as contrary to nature
for a man to be assimilated to a fruit. It is certainly

contrary to man's nature that he be considered as the

fruit of anything. It is also quite as contrary to his
nature to consider him in any way as a "thing." Not-
withstanding this, in Roman law, itself, slaves were
counted as things.
And lastly, third, Among the cited examples, some in
truth have a connection with objective natural condi-
tions; but this does not mean that they contain legal
 THE CONCEPTION OF LAW 127

rules established by nature. In this class of ideas are all

cases where a limit, fixed by the conditions of physical
regarded as a legal rule. Thus, it is impos-
possibility, is
sible take the air into one's exclusive possession.
to
This element, therefore, cannot be a subject of owner-
ship. This indicates only that our actions are limited by
natural laws; thatwe cannot do that which is physically
impossible. But this limit is set by the physical nature
of matter, and is no legal rule. It determines no legal
obligation. To the same order of ideas belong, also, a
good many examples in which legal rules, which are es-
tablished by human will, are regarded as natural ones
but only in connection with some natural distinction
among men or things. These are precisely the legal
rules most commonly recognized as those of natural law.
In fact, what is due here to "nature," is the distinction
between the qualities of the man or of the things, a dis-
tinction which causes a variation in human interests,
from which results a necessity for using special rules for
their delimitation. These rules are established not by
nature but by man, and are, consequently, not always
and everywhere the same.
Such, for example, is the legal distinction among men
according to their age. The distinctions are certainly
natural, and exist independently of any legislator's will.
But the fact of our attributing to them legal importance
is neither universal nor necessary. On the contrary, it
results from history, existing at one place, and one

epoch, and not under other conditions. For

existing
example, in Russia and France, infants under ten years
old cannot for lack of discretion be subjected to legal
penalties. But in Russia there is a formal law according
to which no criminal prosecution can be commenced
against children under ten, while in France there is no
such rule.

Nevertheless, there have been cases of prosecution in,

128 THEORY OF LAW
this country of children of three and five years. This
proves that if the distinction according to age is really a
natural one, it nevertheless has in itself no legal effect.
This effect can be given it only by a law, and such a law
may not exist.
It is the same with the legal distinction between per-
sonal and real property. As a natural fact, this distinc-
tion always exists, but a legal effect to it can be given
only under historic conditions which are quite variable.
In modern law, and generally in that of the middle ages,
ithas great legal importance, for from it result numerous
consequences in regard to the means of acquiring and of
protecting such property afforded by law, especially in
the matter of succession. But in the Roman law, for
example, it had very little weight. In distinguishing res
mancipi and res nee mancipi the distinction between
movables and immovables was not observed.
To sum up, we are unable to recognize in these exam-
ples any necessary natural rules. They are all variable,

and established historically by positive law.

 THE CONCEPTION OF LAW 129

Section 16. The New Theories of Natural Law

LASSON. System der Rechtsphilosophie, 1882.
STAHL. Die Philosophic des Rechts, 4 Aufl., 1870. B. I.

The school of natural law, which appeared in the XVII

century, considered it not as an integral part of positive
law, but as an unchangeable independent law existing by
the side of the positive. In determining the value of this
idea, we cannot use the process which served for refuting
the Roman doctrine as to natural law. If we oppose
natural to positive law there is no longer need to show
in this last the existence of elements of natural law.

Consequently, the complete absence in positive law of

absolute and unchangeable principles can no longer serve
us as an argument against the correctness of the doctrine
we are setting forth. Positive law can be variable and
heterogeneous, if above it rises always the eternal law
of nature. To refute this theory no longer requires,
merely, insistence upon the variety and divergence of
fundamental principles. It is impossible to say that if
natural law really existed there would be no question as
to the nature of its fundamental principle. The move-
ments of the heavenly bodies are fixed by an unchange-
able law, but how many different opinions arose as to
them before mankind succeeded in understanding the
law!
For the refutation of the natural law doctrines of mod-
ern times, other means must be employed and other aids
depended on. It is, before all, a hypothesis and, at the
same time, one founded upon the supposed existence of
a factor whose reality is exhibited by no empirical dem-
onstration. Similar hypotheses exist in the natural sci-
ences; for example, that of ether; but these hypotheses,
although they cannot be directly verified by experi-
130 THEORY OF LAW
ment, nevertheless must not contradict the results of
experience, or lead to consequences not in harmony with
its results. It is only on such condition that an hypoth-
esis can be scientific in character. This is why, if the
new doctrine of natural law leads invariably to the
negation of positive law, whose existence is an undoubted
fact, it must be regarded as false. There is no difficulty
in showing that this doctrine, so far as it is a system
of special absolute rules, leads in truth to this con-
clusion.
The theories of the XVII and XVIII centuries saw in
natural law a complete system of juridical norms. All
the relations of man without exception can in their view
be regulated by the principles of natural law. But how
is it possible that there exists, in addition, by its
side a positive law? How can this latter arise if there
has long been a system of natural juridical norms, suffi-
cient by themselves? Natural law is a collection of
rules dictated by reason and in conformity with nature.
It contains, they say, in itself the absolute, unchange-
able, principles of justice. Consequently, every institu-
tion of positive law which contradicts natural law neces-
sarily violates the eternal and absolute principles of
right and justice. Why, then, despite this, call
these principles, which contradict right and justice, law?
If in the natural we have an absolute test of what is
law and what is not, how can we bring under
the conception of law all the institutions of the positive
law?
To say the truth, the early authors of the school of
natural law sought to reconcile the fact of the existence
of positive law with the supposition of the natural law,
but they only reached such reconciliation by contradict-
ing themselves. According to the doctrines of Grotius,
and the representatives of the rationalist tendency in
the school of natural law (Puffendorf, Thomasius, Leib-
 THE CONCEPTION OF LAW 131

nitz, Wolfe), natural law is inborn in man, and is that

upon which positive law is based. Thus, for them, the
obligatory observance of contracts is one of the rules
prescribed by natural law. Consequently, if men agree
to set political power with a view to establish order
up a
and give to it the right to make laws, these
in society,
laws are obligatory upon everybody. But these con-
tracts, these rules, can they contradict the requirements
of natural law, or on the contrary, have they force only
so far as they conform to its principles? If we admit
that positive law, to be obligatory, must not contradict
natural law, the extreme diversity of positive legal rules
is not explainable. If we examine simultaneously several

contradictory institutions of positive law, only one among

them can conform to natural law; all the others must
contradict it. But if we admit that the institutions of
positive law based upon contract are obligatory even if
they contradict the principles of natural law, this does
not harmonize with the rigorously obligatory character
of the latter. Natural law is eternal and unchangeable,
not only by man, but by God himself, as Grotius affirms.
How, then, can man replace its laws by others in con-
tradiction with it? Rousseau, infinitely more logical,
derives the inalienability of natural rights from the free-
dom, innate and absolute, of natural law. But in re-
venge, Rousseau comes thus to a denial of the obligatory
character of positive law, that is to say, to contesting an
absolute fact in order to justify the hypothesis he
adopts.
The representatives of the empirical tendency (Hobbes,
Locke, Hume) have sought another explanation. They
do not admit that the natural law is innate. There is
such a law, but we must learn it by experience. The
variety and diversity of positive law systems comes from
the imperfection of human knowledge. If natural law
were fully known, it alone would govern men's mutual
132 THEORY OF LAW
relations. Further, if natural law is the only one
in conformity with nature, then positive law is con-
trary to nature. How, then, can it exist? Is that
which is contrary to nature possible? The representa-
tives of the empirical tendency cannot affirm such a
proposition, especially as they do not admit the dualism
which opposes spirit to matter and since they subject
psychical phenomena to the law of causality. If our

psychical life is subject to the law of causality there

can be nothing in it contrary to nature. On this sup-
position there cannot exist rules which are not in har-
mony with nature. Consequently, the variable norms
of positive law are also in harmony with nature, and in
this sense natural. We cannot oppose to them the fa-
mous " natural law" as the only one in harmony with
nature.
In the XIX century, in place of the doctrine of the
school of natural law, appeared a theory which under-
stands natural law as an eternal idea manifesting itself in
the historic development of positive law. Such is the
opinion of Hegel and his school. But this new way of

understanding natural law leads in reality to its nega-

tion. In fact, the idea which serves as a basis for his-
toric development cannot be a law practicably applicable
and capable of regulating the legal relations of men.
This idea determines the development of law but not the
rights of man. In thus understanding natural law the
coexistence of the two, natural and positive law, is not
admitted. Hegel recognized only positive law, but sees
in it a manifestation of the absolute idea of law. The
pre-existence of the absolute idea of law, before its his-
toric development, does not agree with historic facts; if
the historic development took place in this fashion there
would be found in the law in all the phases of its devel-
opment, common and identical characteristics; but we
can only establish such common characteristics by
 THE CONCEPTION OF LAW 133

comparing corresponding stages of legal develop-

ment.
This proves that the common characteristics in the law
do not precede its historic development, but are products
of its history.
134 THEORY OF LAW

Section 17. General Criticisms of the Natural Law Idea

We
have examined the principal forms which the nat-
ural law hypothesis has taken in the course of its devel-
opment and have criticised each of them, but natural law
does not give birth merely to scientific hypothesis. It is
not mere scientific theory, unconnected with practical
life. On the contrary, the idea of natural law has played
a very important r61e in practical life as well as in the
scientific theory of law. For many persons it is not a
mere supposition, but a fervent belief. Its existence has
been deemed self-evident and necessary. How shall we
explain the origin of this idea of natural law and its in-
fluence?
The appearance of the idea is explained by the follow-
ing fact. Our conceptions are not produced solely by the
generalization of notions derived from experience, but
also by the contrast, or opposition to these notions which

they generate in the mind. We can directly observe only

what is conditional, limited, temporal, only what exists.
But by the aid of direct contrast with these immediate
results of experience we form notions of the absolute, the
unlimited, and the eternal, and even reach the concep-
tion of the non-existent. by direct ob-
So, recognizing
servation a variable, complex and conditional positive
law, we form in our minds, by an antithesis such as has
been mentioned, the notion of a single, unchangeable, ab-
solute law.
In this way is the appearance of the conception of
natural law explained; but how does the conviction arise
that there is an actual law corresponding to this con-
ception?
We constantly meet with such a conviction, the cause
of which is in the a priori errors to which the human
 THE CONCEPTION OF LAW 135
mind is subject. "Mankind," says Mill, "in all ages
have had a strong propensity to conclude that wherever
there is a name there must be a distinct
separate entity
corresponding to the name, and every complex idea
which the mind has formed for itself by
operating upon
its conceptions of individual things was considered to
have an outward objective reality answering to it." l

This tendency to attribute reality to all our

concep-
tions is found not only in the ordinary
judgments of
men, it serves as the basis for philosophic systems. This
error was at the base of the platonic doctrine of
ideas,
and is the basis of mediasval realism which began with
Scotus' teaching. On this error rests, still, the anti-Kan-
tian or dogmatic rationalism. The time when dogmatic
rationalism had a predominating influence was precisely
that of the greatest development of the natural law hy-
pothesis.
Thus, the notion of natural law springs from the sim-
ple antithesis to variable law which we recognize in
our experience, and from the tendency of the mind to
attribute external reality to all our notions. It still
remains to explain how certain principles of positive
law, in reality variable, have been taken for immutable
principles of natural law. Here again the judgment
was deceived by a priori error, but of a little different
kind.
Men in general are inclined to regard the habitual and
the simple as identical with the necessary, and the nat-
ural. Almost always the quite simple and the familiar
seem to us necessary. Thus, Lactantius thought he
found an argument against the doctrine of the earth's
spherical form in the impossibility of imagining antip-
odes, where it would be necessary, to use his expression,
that one's feet be higher than his head. Today no one
finds any difficulty in imagining antipodes. His trouble
1
Logic, Book 5. Chapter 3, Par. 4.
136 THEORY OF LAW
was because his mind was not accustomed to this idea.
Aristotle thought a descending motion in liquids and sol-
ids was the most natural, and that ascending motion was
an artificial one, produced by force; and, consequently,
he thought the first had an increasing, and the latter a
decreasing, rate of speed. Modern mechanics regard both
alike as equally natural. Every one is surprised to ob-
serve the Roman jurist affirming in the Pandects that the
adulterer is blameworthy only from the point of view of
natural law; but that the violation of the trust of guar-
dianship is condemned because of custom; that poisons

cannot be used as remedies, and cannot, because of their

nature, be objects of commerce.
The influence of custom is insufficient to explain by
itself allcases wherein juridical rules appear to us as nat-
ural, for there have been some principles regarded as
natural which are not more frequently applied in the
law than others and have no general legal force. Thus,
for the Romanjurists it seemed natural that a legal
relation be ended by the same procedure by which it
was established. This correlation between formation and
extinction of the legal rule had not in Roman law the
force of a general rule. In our day equality is announced
as a rule of natural justice. Meanwhile, it is only in
modern life that the inequality is disappearing which

has heretofore prevailed. So, several representatives

of the school of natural law have made unrestricted
liberty the basis of it, but such liberty has never found
an effective realization. To explain the origin of this
kind of doctrines it is necessary again to take into con-

sideration our tendency to prefer in everything the

simple to the complex. What the mind grasps most
easily, thanks to its simplicity, we are inclined to con-
sider asmost regular and truth-like or even as an indis-
putable proposition. Thus, for a great while, the orbits
of the heavenly bodies were supposed to be circles
 THE CONCEPTION OF LAW 137

because it was thought the circle represents the most

perfect line. In the same way, the proposition that
nature acts always by the simplest means, was recog-
nized as an axiom. The same reasons explain the widely
received opinion which attributes a natural character
to the simplest legal forms and principles.
All these explanations as to the origin of the belief
in the natural character of different principles of law,

despite their apparent difference, are based upon and

lead back to the common one of a priori errors. In
other words, the belief in natural law owes its origin to
the logical error of wrongly recognizing as evident and
necessary, institutions which in fact are not so.
But how comes it that this error has played so con-
siderable a r61e in human history and has been in the
past a factor of progress? To understand this phe-
nomenon it is necessary to recall the fact that the idea
of progress is a recent one, and dates only from the
XVIII century. Till then, the golden age was regarded
not as in the future but in the past. All change was
thought to remove man farther and farther from the
happy and to bring with it increase of evil. A
past,
prudent statesman could have only one ambition, that
of keeping society in statu quo. There could be no
question of improvement. The golden age was gone
beyond return. The only thing possible was not to
remove it too far. When this general idea prevailed,

new ideas and new principles could have no success.

The new, because of its novelty, appeared dangerous;
to be received it must take on an appearance of
antiquity. But what could present itself with such a
as that
genuine seal of the antiquity of the remote past
nature which existed always even when the oldest cus-
toms were forming ?
natural law, then, was the oldest part of law that
The
with the
belonged to the remotest past. It appeared
138 THEORY OF LAW
first man, and preceded all other law. It was sufficient,
then, to present a new idea as a principle of natural
law to get it received. This gave it all the prestige of
antiquity which belongs to the most archaic positive law.
In this way the Roman jurists took up the moral doc-
trines of the stoics in proposing them as a manifestation
of natural law taught men by nature itself. So, in the
XVIII centurythe new principles of liberty were opposed
to the law of the middle ages, whose force was ex-
hausted, as new principles of natural law, eternal and
unchangeable.
 CHAPTER IV
ORIGIN OF LAW
Section 18. Theory of the Arbitrary Formation of Law
MOUROMTZEV. The Formation of Law as conceived in Ger-
man Legal Science, 1886.

If the hypothesis of natural law ought to be rejected

in its entirety, if the whole law ought to be considered
as a product of historic development, the question as
to its origin acquires a special importance. In admitting
the existence of natural law, we are compelled to hold
that law is innate in man. On this supposition men in
creating variable institutions of positive law, start with
the notion of a ready-made natural law which they find
in the minds of their fellow men. But if we do not
admit the existence of natural law, we must recognize
that there has been a time when human consciousness con-
tained no notion of law. How, then, could it make its ap-
pearance and how could a conception of law take its rise?
It would appear somewhat difficult to settle this

question. In all legal literature there has not been up

to the present time any one received explanation of the
genesis of law.
Before the historic school, law was presented in all its

parts as an institution formed by man. It was looked

upon as something men had fashioned for their own

convenience. At first sight this explanation may seem
the simplest, but if we look at the matter carefully, there
is no difficulty in recognizing that it has no value.
This explanation may have, and has in fact had, two
different forms. The origin of law can be connected
either with an order from the state or with contract.
139
140 THEORY OF LAW
The doctrine, which
sees the origin ot law in an order
from the government, rests upon the fact that law
established by the political power of the state forms the
principal part of law in modern life. The conclusion
has been drawn from this that it has always been so,
and that law owes its origin to governmental authority.
To this are to be added some psychological considera-
tions. It is claimed that force and power inspire an
instinctive fear in men, and that they are always inclined
to attribute an eminently obligatory character to that
which the state ordains. There
is certainly something

of truth in this assertion. The

fear of authority, and
its prestige, certainly play a great role in the formation

of law. But this is not sufficient to explain its origin.

Respect for authority brings men to obedience, but
obedience is not law. Obedience may take different
forms, and that which depends upon the sentiment of
law presupposes that one recognizes in the government
the right to establish legal rules, otherwise this obedi-
ence would have no juridical character. One would
obey from fear, blindly, instinctively, unconsciously.
Besides, law was primitively regarded as something
necessary and independent of human will. It was
attributed to a divine author and in general assigned to
celestial origin. According to this, the contents of legal
rules were not dependent on the wills of men. Men
ought to find the substance of these rules all prepared
and ready-made without the action of their own will or
consciousness. But by whom was this matter fur-
nished? Evidently the theory which explains the origin
of law, by the state's order, can give no satisfactory
answer to this question. The authority of the hypoth-
esis we are discussing, having existed only in men's
imagination, cannot be the real source of legal rules.
But even in cases where the governing will is an actual
will of men, there rises a new question. How comes it
 THE CONCEPTION OF LAW 141

that other men recognize in these persons the right to

establish obligatory rules for the whole society? The
establishment of the earliest obligatory rules must be
preceded by recognition of a certain right in the govern-
ment. Moreover, even in despotic states we never see
arbitrary power raised to the height of a principle.
Even the despot regarded as acting according to the
is

requirements of justice. His actions may be regarded

as unjust. If this is so, the standard of justice is not
in his sole will.
Another opinion, also inspired by the theory which
makes the conscious and creative will of man the author
of law, connects itself with the theory of contract. It is
asserted that law was originally established by agree-
ment between all the members of the given society. Here
we are led to observe again, that from the existing state of
things conclusions are drawn as to the conditions of
the original formation of law. In our actual society
the rules which control the present relations of man are
often established by contract. But for such a creation
of legal rules to be possible, we must admit the obligatory
character of contract; but this is not a self-evident
axiom. The obligatory force of contract, on the con-
trary, is a legal principle historically elaborated, and by
no means considered to be the general rule. In modern
law the obligatory character of contracts is generally
recognized, but not without exception. Agreements
touching very slight interests and immoral agreements
have no obligatory force. It was not, then, the agree-
ment which made the obligation, but its particular
form. Without the latter it had no force. It was in
this way that the obligatory character of contracts

actually came about. This is why if we attempt to

explain the origin of law by contract we fall into a
vicious circle. It is to say that the origin of legal rules
is in contract, and then admit that the obligatory force
142 THEORY OP LAW
of contract results from a legal rule established only in
the course of history. But this legal rule sanctifying
contract, is it, too, founded on contract? An affirma-
tive response leads to an absurdity and a negative one
shows the impossibility of explaining the origin by a
contract.
It is quite as impossible to explain by a contract the

origin of law as it is that of language. When language

exists, we can by agreement introduce new words into
use, as, for example, new technical terms are brought in.
But it impossible to explain in this way the first
is

origin of the language, for if it did not exist it could

not thus be extended. The institution of legal rules by
contract presupposes, therefore, the existence of a law
as a necessary basis upon which to rest the validity of
the contract.
 THE CONCEPTION OP LAW 143

Section 19. The Doctrine of the Historical School

LABOULAYE. Essai sur la vie et les doctrines de F. C. de

Savigny, 1842.
LENTZ. Ueber geschichtliche Entstehung des Rechts,
1854.

The question of the origin of law was treated in a

more detailedand scientific way by the historic school.
Before this school, the search for rational principles of
law absorbed the efforts of the learned. The historical
school placed the question of the origin of law upon
different ground. They placed it upon the plane of
positive law; they thought it impossible to derive a
theory of law from speculative efforts of human reason,
and proposed to turn scientific effort towards the study
of historic reality. Consequently, it became necessary
to ask the question, not "what is law?" but "how came
it to be?"

The founder of the historic school, Gustave Hugo

(1768-1844), formulated the question in these terms.
His Lehrbuch des Naturrechts als einer Philosophic
des positiven Rechts, 1809, consists of two parts. The
first man, regarding him
studies as an animal, as a
reasonable being, and as a member of the state. In the
second he sets forth the principles of civil and public
law. In this second part he begins by examining how
law is formed. He
assails the opinion, then current,
.

that it is
simply a result of legislation. His paragraph
130, though quite short, contains the germs of the his-
toric school's doctrine. He shows that law is formed
outside of legislation, that in all states, and especially

in England, as at Rome, we find parts of the law develop-

ing independently of legislative authority. Such, for

example, is customary and pretorian law. He returns
144 THEORY OF LAW
with more detail to the subject of this theory in his
criticism upon Schlosser's book in an article in the
Gottinger gelehrte Anzeiger of 1789, and in an article

entitled, "Is Legislation the Sole Source of Legal Rules,"

published in Civilistiches Magazin in 1814. The positive
law of a people, said he, is a part of its language. We
may say the same of all science, that it is only a well-
made language. Mathematics, even, is no exception.
We do not a priori call angle all that enters into
that term; numeration is not founded a priori upon
the decimal system; the circle is not divided a
priori into hundred and sixty degrees. It is
three
still more true sciences where the signification of
in
words varies, and consequently in all that con-
nects itself with manners, in whatever is positive,
and so in law. The Roman contract, for example,
was not by any means the same thing as that of
today.
How is our language formed? Formerly, it was
thought that God himself invented and had taught it
to men. Thus, language was thought to have been
made by an enactment. Other authors supposed it
was made by an agreement among men, through which
names were given to things. Such explanations no
longer get any credence. Everybody knows our lan-
guage forms itself, and that the example of those who
speak well, or are thought to do so, has a great influence
over our development. It is the same with manners;
no administrator, no combination of men ever decided
that respect should be shown in Europe by uncovering
the head, and in Asia by veiling it.
It is the same with law; like language and manners,
it develops itself without aid of enactments or prescrip-

tions, according as circumstances present themselves,

according as our fellows act in this way or that, accord-
ing as the rules so established best suit the given cases.
 THE CONCEPTION OF LAW 145

In this way positive law can shape itself independently

of the legislator's intervention. But when the govern-
ment thinks it useful to establish a new rule for the
future, this rule belongs naturally to positive law, and
is taken into consideration like all government orders.
This not to say, however, that everything prescribed
is

isalways actually observed. At Gottingen, the streets

to which the authorities wished to give new names
continued in spite of all ordinances to be called by the
old ones. Many laws and agreements are never ob-
served. Nobody dreams that each enactment will be
rigorously observed. Legislators themselves expect no
precise execution of their enactments. Laws are vio-
lated, not only by the ill-disposed, but by perfectly
well-meaning persons. Nobody can deny this fact. He
may regard it as a defective condition of things. Never-
theless, he must not forget that it has always been so
everywhere; and this observation has its value. He
must not forget at the same time that the object sought
by the positive written law is to determine and make
exact the legal order of things,, to make its observance
more certain by giving fixity to its principles. But
what is the factor which co-operates most effectively
to the knowledge and observance of a rule is it a printed
;

enactment which few have ever seen, or a permanent

practice with which all competent people are in har-
mony? Suppose a group of people recognize wills having
six witnesses, as valid; and, relying on this, each will is
made with six witnesses. Suppose afterwards it is
found that a statute absolutely requires seven wit-
nesses. Which rule ought to be the law, the statute of
which no one was informed or the custom familiar to
all? Although the government is the representative of
all the people, the people also can well do something
directly for itself. It is probable that the rules so
derived suit the interests of the people better than those
proposed by the government.
146 THEORY OF LAW
Thebest explanation is in comparing the formation
of law with that of games. Every game, billiards,
cards, etc., is a contest according to fixed rules, accord-
ing to Some details are agreed upon in
"laws."
advance, such as the first play, etc. There is a category
of rules governing the playing; but the game has its
own rules independent of all agreement. How are they
formed? Some games, to be sure, for example Boston,
have been invented all complete by some single man.
But most games are of a different kind, like whist,
whose rules have been established little by little by the
successive resolution of doubtful questions in the par-
ticular cases. A
large number of determinations of this
kind result in fixed rules of the game which thus form
themselves without enactment or agreement. (Civil-
istisches Magazin von Prof. Ritter Hugo in Gottingen.
B. IV. Berlin, 1811. Sees. 117-134.)
In Hugo we thus find already indicated the char-
acteristic traits of the historical school's doctrine. The
comparison he proposes between law and language is

notable, for the

representatives of this school con-
stantly use it. It is in Savigny's (1779-1861) works
that it is completely set forth. He is counted even
outside of Germany as the greatest jurist of the XIX
century. He was
not a pupil of Hugo, but, as he himself
recognized, Hugo's work had great influence over him.
The first work of Savigny which attracted attention to
its author was a study upon possession. It placed him
at once in the first rank of contemporary jurists. Already
there can be observed in it quite distinctly the peculiar
characters of the new tendency. But the general idea
of law and development, Savigny has particularly
its

set forth in his two works, Vom Beruf unser Zeit

fur und Rechtswissenschaft, Heidel-
Gesetzgebung
terg, and also the first volume of his System
1814;
des Heutigen Romischen Rechts, Berlin, 1840. The
 THE CONCEPTION OP LAW 147

political events, then marking the course of German

history, impelled him to write the first of these works,
a pamphlet. Germany had just been relieved
little

of French domination
during which there had been
applied some places the French code, a system
in
quite preferable to the old German law. This intro-
duction of French law offended the national sentiment
of the Germans, but showed them the inefficiency of
their own
law. When the French domination was
thrown off they began to ask what was to be done in
the way of legislation. Some declared for returning to
the old condition of things. Others demanded a single
code for all Germany. The chief representative of this
lattertendency was Thibaut (1771-1840). His Ueber
die Nothwendigkeit eines allgemeinen burgerlichen
Rechts fur Deutschland was published in 1814, and
again the same year in a second edition in the Civil-
istische Abhandlungen, Heidelberg. He proposed to
assemble a congress of theoretical and practical jurists
to prepare a general code for all Germany. He thought
local legislatures passing laws for each separate state
could not reach the desired result; first, because there
might not be in some particular state men of learning
equal to the task; second, because local legislation with the
political subdivision then prevailing would lead to the
complete breaking to pieces of Germany a total failure
of national unity.
As to the object, properly speaking, of this common
code and of the reform, Thibaut justifies this by show-
ing the defects in German legislation of that time.
According to him the codes were superannuated and
All legislation consisted in a series
defective in form.
of separate enactments, which, established by emperors
and princes, remained separated and appeared so anti-
quated that the most conservative jurists themselves
would not urge the cause of their maintenance. Roman
148 THEORY OP LAW
law was generally employed; but it was a foreign law
and its dominant ideas did not, as Thibaut considered,
answer to the legal ideas of the German people, the less
so because introduced into Germany under the form
given them during the final decadence of the Roman
empire.
Moreover, said Thibaut, the main part of the contents
of these Roman laws does not answer to the require-
ments of modern conditions; and he cited as examples
the law of paterfamilias, of guardianship, and of hypoth-
ecation. To the many inconveniences resulting from
the use of Roman law, Thibaut added that the Roman
law was not known because the authentic text has not
come down to us. We have several different editions,
so that in Gebauer's, for instance, the variations, taken

together, constitute a fourth of the text, and their

number augments constantly with the finding of new
ones. If they were all harmonized this would not
prevent jurists from
having opposite opinions upon
various questions, for a conscientious jurist never accepts
another's opinion without first examining it. If this is

so, practicing lawyers would be greatly embarrassed by

having to choose between equally authoritative conclu-
sions supported by equally authoritative persons who
have devoted themselves to the study of Roman insti-
tutions. Convinced of the insufficiency of existing law,
Thibaut demanded the enactment of a new code which
should fulfill the requirements of modern life in general,
and of German life in particular.
In developing this thesis, however, Thibaut did not
anticipate the objections which Savigny was to bring
forward. Savigny did not inquire whether the existing
law was good or bad, perfect or imperfect. He put the
question on another ground. In the introduction to
his Vom Beruf, he attempted to show that the work
of Thibaut could not be taken separately, but must
 THE CONCEPTION OF LAW 149

connect itself with the historic conditions of its time.

In Thibaut's project of reform, says Savigny, you will
not fail to find traces of that contempt for the past
which characterized the XVIII century and an exag-
geration of the role of the present, which expects nothing
less from the latter than the realization of absolute
perfection. This had its influence on law. New codes
were demanded which could by their improved opera-
tion give to justice the precision of mechanics. At the
same time these codes were not to be submitted to his-
toric conditions, were to law as a pure
set forth the
abstraction applicable people and all times.
to all

Moreover, he continues, these views as to making over

the codes are inspired by one's theory as to the forma-
tion of law. They think that law is created by the
simple act of the legislator and the material in legisla-
tion is an absolutely accidental phenomenon which can
be altered to suit the legislator's taste. Savigny sets
himself to the task of showing that both the ideas on
which Thibaut's proposition rested, the exaggerated
hope he had of his own time and the dependence of law
upon the are equally false, that law cannot
legislator,
be fashioned to suit the legislator's fancy, and, in par-
ticular, that it could not be admitted that at the begin-
ning of a new age a codification should be attempted
while German jurisprudence was admittedly so far
behind.
Passing over this last consideration we shall limit
ourselves to a resume here of Savigny's ideas upon the
origin of law.
According to Savigny, it cannot be admitted that
law in its origin depends either upon chance or human
choice. Fact contradicts this. Every time a legal
problem is solved we find ourselves in the presence of

completely formed legal rules. So, it is impossible to

say that law was created by the will of the separate
150 THEORY OF LAW
individuals who compose a people. On the contrary, it
must be considered as a product of the people's genius
manifesting itself in all the members of the people and
leading them thus to the notion of law. We cannot
prove the soundness of this opinion by direct historic
proofs. History finds in all peoples law already estab-
lished, having a positive character with an original
national imprint like language, manners and
their

political organizations. But we find indirect proofs to

support the hypothesis. The fact that in our con-

sciousness the notion of positive law is always connected
with that of necessity, which would be impossible if
law were a creation of our free will, testifies in favor of a
formation of law in which the will has no part. Another
argument can be given furnished by the analogy with
certain other manifestations of popular life, especially
with language, which is also by no means a product of
man's free will.
The law exists in the general consciousness of the
people evidently not under the form of an abstract idea,
but under that of a living comprehension of legal insti-
tutions in their organic combination. Generally at the
beginning of their formation people are not rich in
ideas. But they have then a consciousness of their
state of their vital conditions, and of the law, which
is not then complex in itsmatter, and would appear to
them asan object of immediate belief. A material
form then, needed for every manifestation of spiritual
is,

function. In the case of language this material form is

its continual use; in that of political organizations its
material representative is the existing legal institutions.
In our time, when the mind is trained to abstraction, the
main leading principles contained in the current legal
formulas play the same part.
But this supposes already a good many abstract ideas
which are not to be found in primitive law. We find in
 THE CONCEPTION OP LAW 151

this phase of legal development a series of symbolic

actions which accompany the creation and cessation of
legal relations and which, thanks
to their exteinal mani-
tend to keep the law to a fixed form. These
festation,
symbolic actions were a sort of grammar of the law
which answered the necessities of their time. This
solidarity of the law with the popular genius persists
into later epochs, and in this respect again law may be
compared to language. Just like our language and all
other manifestations of popular life, law develops unin-
terruptedly and its evolution like its first appearance
is under the law of internal necessity. But in a civilized
society this internal development is complicated, and
the study of law becomes exceedingly difficult.
Law has its source, no doubt, in the general conscious-
ness of the people. If we take, for example, Roman law,
we might well admit that its chief foundations, the
law of family, of property, etc., existed in the general
consciousness of the people; but hardly so as to the com-
plex matter which the pandects offer. This observa-
tion leads us to examine the question under another
aspect. With the
progress of social life the different
sides of national individualize and separate
activity
from one another. What was before done by all the
world becomes the function of a special class. The jurists
form thus a special class, and their legal studies replace
the immediate activity of the people as a whole. There-
after the law becomes more complex, more technical.
There is, so to speak, a double existence: on the one
side a general national life, on the other the distinct
science of the jurists. The relation of law to the gen-
eral life of the people might be called its political ele-

ment; its connection with juristic science, its technical

element. The correlation of these two elements varies
with the elements of the life of a people, but both par-
ticipate more or less in the development of law.
152 THEORY OF LAW
Iflaw is thus considered as a product of a people's
life, as a manifestation of its spirit, it is clearly of much
importance to define just what Savigny means by "the
people." In his Vom Beruf he leaves this question
aside. only in the System which appeared when
It is
the principles of the historical school had received their
full development that we find a paragraph devoted to
explaining the notion of a "people."
If we abstract the matter, the contents of law, in

order to examine only the general essence of all law, it

appears to us as a norm determining in a certain manner
the community life of a collectivity. An accidental
aggregate forming an indeterminate collection of men
is an arbitrary notion destitute of all reality. If such
an aggregate really existed, it would surely be incapable
of making a law. But wherever we see men live together,
we see them forming a spiritual unity. This unity mani-
fests and declares itself in the use of a common lan-

guage. Law forms a part of this spiritual unity since

in the popular spirit with which everybody is permeated
there is manifest a force capable of satisfying the need
for regulation of this common life of men. In con-
ceiving the people as a unity, we must not only think of
living numbers of the existing generation; the spiritual
unity embraces also successive generations, the future
and the past. Law is preserved in the people by force
of tradition which establishes and maintains itself
because the succession of generations does not take
place rapidly and at a stroke, but regularly and insen-
sibly.
It might appear too narrow a view that law is a
product of the life of a people; perhaps one might say
that the source of law should be sought not in the
genius of a people, but in that of humanity.
The formation of law is marked by a character of
solidarity; it is possible only where solidarity of thought
 THE CONCEPTION OF LAW 153

and action are to be found. These conditions are only

found within the limits of distinct nations. Naturally
in the life of each people there appear also universal
tendencies and qualities.
Savigny is the most typical representative of the
historical school. Puchta, the first of his disciples (1798-
1846), in Encyclopadie als Einleitung zu Institu-
his
tionen, and in the first volume of his Insti-
1825,
tutes, 1844, a work which was translated into Russian,
yielded to the influence of the philosophic doctrines cf
his contemporary, Schelling. Puchta makes objective,
personifies, the popular mind. He considers it as a
force acting in the organism of popular life and existing

independently of the consciousness of the individuals

who make up the people. The popular mind, like the
soul in the organism, produces all, including the law.
Individuals take no active part in its formation. It is
upon the nature of a people's genius that the develop-
ment of its law depends; not upon its consciousness.
This is why if Savigny speaks still of the formation of

law as a result of the common life (eine gemeinsckaftliche

That) Puchta on the contrary considers the development
of law as natural and independent (Naturwuchsigkeit) .

According to this doctrine, law proceeds from the popu-

lar spirit as the plant from the germ; its form as well as
its evolution is fixed in advance. Individuals are only
passive bearers of the law which they have had no part
in making.
Puchta has developed with a good deal of detail his
idea as to the origin of law in his celebrated monograph
on customary law. (Gewohnheitsrecht, 1828.) Here is
his demonstration: Holy Scripture, said he, explains the
origin of mankind manner. There was first one
in this
individual, then two, a man and a woman, then their
descendants. The first individuals formed from the
start a determinate group, the family group. The first
154 THEORY OF LAW
family multiplying, divided into several and became
a tribe, a people, who, continuing to multiply, divided
into new tribes to become in their turn new people.
This explanation is so natural that we find it in the

pagan legends. The important thing it establishes

is

that at no moment did men ever live without forming

some organic unity. The unity of a people is founded
upon unity of origin not only physical but spiritual.
Common parentage, however, does not alone suffice to
form a people. There would then be only one. The
separation between one people and another is marked
by the delimitation of their territories, and thus, to
their natural unity is added another, which is expressed
in the political organization (Verfassung) ,
thanks to
which the people forms a state.
The state is not a natural group. It is established by
will. The political organization is the expression of the
general will as to that which makes the essence of the
state. This general will could have originally and
immediately no other source than natural agreement
and unanimity (Naturlicke Uebereinstimmung). The
state, then, is created by the immediate action of will,
but this will, and consequently the state itself, has its

root in the natural society. The people should be con-

ceived as a natural group. Consequently, the possibility
of its acting ought to be abandoned, for only an indi-
vidual can act. A
mere grouping, a unity, so far as it
is only a mere idea a body wholly uncertain, cannot
act. The action of the people in the natural meaning
of the term can be considered only as an indefinite influ-
ence over its members, an influence depending upon
the nature of the "people," that is to say, its parentage.
Law is connected with these manifestations of popular
life. (Tkdtigkeiten der Volk.) Climate, etc., does not
influence men directly; it determines the qualities of the
nation and these later act upon its members. The
 THE CONCEPTION OF LAW 155

individual can reflect the law in his consciousness, not in

his capacity as an individual, or as member of a family,
but only as a member of a people. This characteristic
distinguishes law from matter of individual conscious-
ness. The existence of juridical liberty supposes that
to the man's will is opposed another, which is considered

as partly foreign and exterior, and partly the individual's

own will, based upon his personal convictions. Man be-
comes a legal person and subject to law only so far as his
will is at the same time individual and general, is at the
same time absolutely independent, and meanwhile is
based upon a general conviction that it is acting in har-
mony with others.
Puchta provesin the following manner that law can

only out
arise of the life of a people: As long as there
was only one man there was opposed to his will only
that of God which would wholly overcome his. When
there was only one family and not a people, the husband
was master of his wife, who had no distinct will. So, it
is only in a people that there arises that opposition of
wills necessary to the formation of law. By this process,

however, one can only prove that the people is causa

instrumental of law. It is necessary also to prove what
is causa principalis. Two phases in law can be distin-
guished; first, the conviction as to what is law; second,
the realization, the application of that conviction. Law
which cannot be realized is no law. Still further, an ac-
cidental realization, as by war, for example, does not
answer, for a force purely natural serves law only acci-
dentally, since it could as well enforce what is not law.
The law's protection, strictly corresponding to law itself,
can only be applied by a special organ of the "general
will," that is to say,by the political organization. The
source of law nothing else than that will which directs
is

the formation of the state, the general will of the people.

The state cannot be considered as the creator of law.
156 THEORY OF LAW
The state is only an organ of expression for the general
will which exists before it and which created the law.
But before the creation of the state there is no law be-
cause thereis no organ which expresses the general will.

In considering the people as the creator of law there is

no need of opposing "people" to "government." It is
not necessary to believe in anything more than an activ-
ity of the people, either composed of individual activity,
or derived from this last.
Here Puchta enters into a discussion with Schlegel.
He the latter's opinion upon this point trivial and
calls

superficial. The conviction of an individual he declares

cannot transform itself into that of a people.
Thus, ac-
cording to Puchta the popular mind
a distinct, inde-
is

pendent force. It is not a product of the historic life of

a people, it exists from the beginning of the people's
historic evolution and determines both the customs and

history of the people. It carries in itself its own notion

of law which is manifested in the consciousness of each
member of the people. The popular idea as to law is its

primitive source. But Puchta stops here. He does

not explain how this general idea of the people as
to law is formed. He supposes it simply given and
existing. Therefore, his explanation stops midway, in-
complete.
 THE CONCEPTION OF LAW 157

Section 20. The Origin of Law

In order to explain the origin of law we must not limit

ourselves to explaining its evolution. The main and
most difficult question arises in the explanation of its
primordial origin, in explaining the way in which the
conception of it first appeared. In modern life its activ-
ity is conscious. We start with the idea that existing
law is incomplete. But whence came the first concep-
tion of law? The determination of this question is by
so muchthe more difficult as the idea supposes always
an object and materials already existing. Ordinarily the
object of a conscious act is given by another conscious
act which precedes. But when the question relates to
the prime origin of the conception of something this mode
of explanation cannot be used. We can only suppose
either that the conception of law is innate or that the
object of this conception was originally given by uncon-
scious act.
The idea of law might be innate. This proposition can
be understood in two ways. First, The material of law,
its subject-matter, can be regarded as innate, but this

necessitates admitting the hypothesis of natural law

which we have just shown is incorrect. Second, The con-
sciousness of the necessity of legal rules might be re-
garded as innate independently of their possible sub-
stance. If this were so, the notion of law must appear
from the beginning in human consciousness under its gen-
eral form, separated in a distinct manner from other

ideas, such as morality, and religion, for example. But

in reality discover the contrary. The idea of law ap-
we
pears primitively under a concrete form; the general idea
of law, which embraces all of its concrete elements, is

relatively late in forming. An uncultivated man recog-

158 THEORY OP LAW
nizes only separate laws; he has not reached the idea of
law in general. In the same way the separation between
law, on the one side, and morality and religion, on the
other, is a thing which appears relatively late. In the
beginning, law, morals, religion and customs form a sin-
gle whole. Therefore, from this point of view we cannot
admit that the conception of law is innate.
There remains the
possibility of supposing that primi-
tively the conception of law acquires its materials uncon-
sciously. But how explain this fact? How can legal
rules be unconsciously established?
To
give an explanation of it, the manner in which the
primary origin of conscious activity is understood must
be considered. Modern psychology does not admit that
conscious will is innate in us. Thus Bain (The Emotions
and the Will) explains the phenomena of will by the
general psychological law of association. According to
him the will is not inborn as a primitive faculty of the
mind; it is a product of our psychic development. Primi-
tively, we act unconsciously; it is the spontaneous activ-
ity of our organization that presses us to action. This
activity depends upon the nervous energy which accumu-
lates in us, thanks to the vital phenomena which produce
it. So are explained the movements of the foetus; it
is that children act, cry and run; it is thus
thus
that we ourselves act without any reason after a long,
fatiguing inaction. But all acts which we perform un-
consciously leave behind them in consciousness two ideas,
that of the action itself, and that of its consequences,
agreeable or otherwise. The oftener this experience
is repeated, the closer the association in our mind
of the two ideas, so that when we recall the action this
idea brings up the associate one, that is to say, that of
the consequences agreeable or disagreeable; and it is
thus that the given action seems to us good or bad,
desirable or not. The more perfect the association of
 THE CONCEPTION OF LAW 159

these ideas the more fixed are our desires; the weaker
the association the more vague are our desires. But
even when conscious desires arise by the reproduction
of the idea of a given action and of its consequences,
this does not suffice to produce the given action. Many

things appear desirable which we never reach. "Video

meliora, proboque, deteriora sequor."This explains that
the idea alone cannot arouse activity. There must be
a certain tension of energy in the nervous system for
action to follow. The same desires, according to the
state of the nervous system, according as it is depressed
or excited, may transform themselves into actions, or may
not do so.
Steinthal (Abriss der Sprachwissenschaft) explains in
the same way the origin of language: Influenced by
emotion man makes involuntarily certain sounds; these
sounds make on him and on his fellows a certain impres-
sion. With a return of the same circumstances there
is formed little by little a closer and closer association

between the idea of the sound and that of the impres-

sion which led to it. The idea of this impression arouses
in the mind, thanks to the association, an idea of the
sound, and if the impression is agreeable the sound is
pronounced consciously. This association explains the
transformation of involuntary sounds in consciously
pronounced words. The idea of the impression, asso-
ciated with the sound, constitutes the meaning of the
word.
It seems to me we can explain, also, in the same way
the origin of law.
Given the identity of conditions and the simplicity of
relations in primitive society, the individuals who make
itup must live in an identical fashion. The weak devel-
opment of the conscious idea, the repetition and narrow-
ness of experienced impressions, a very strong tendency
to imitation, cause the primitive man to act in most
160 THEORY OF LAW
cases just like his fellows, like his father and his early
ancestors. Consequently, each man is persuaded that
under the same conditions everybody will act the same
way. He expects this habitually invariable conduct; he
counts upon and with this expectation arranges his
it

own affairs. on some particular occasion he

If as result

is disappointed in his expectations, if some one does not

act towards him as he anticipated, as others usually act
in such circumstances, he experiences a feeling of dissat-
isfaction and anger; he utters reproaches against the be-
trayer of his expectations and seeks to avenge himself.
The oftener collisions of this kind occur, the more the
idea of violation of the conduct which custom has estab-
lished is associated with that of reproaches, with anger,
and revenge on the part of the sufferer from such viola-
tion. And so the observation of customs, first instinc-
tive and unconscious, and is transformed
establishes itself
into a conscious idea. At length the custom is observed
not merely because of habit and unconscious propensity,
but also because of the idea of disagreeable results which
the violation of custom brings. Consequently, the con-
sciousness of an obligatory character in custom has then
appeared. The custom is observed, even when there
is some interest and some tendency to violate it, in

order to avoid unpleasant consequences of its vio-

lation. The appearance of this idea of necessity, opinio

necessitates, a simple habit unconsciously

transforms
and instinctively observed into juridical custom, con-
sciously observed, and recognized as obligatory. This
custom is the primitive form of juridical norms. Thus,
the origin of law depends upon the conscious observ-
ance of certain rules recognized as obligatory, but the
matter in these primitive juridical norms is not con-
sciously formed; it is given unconsciously by established
customs.
This explanation of the origin of law makes compre-
 THE CONCEPTION OF LAW 161

hensible the reason why, primitively, law is considered as

an order independent of will, why a divine origin is as-
signed to it. Human consciousness finds law already es-
tablished and set up as the result of customs unconsciously
established. As he is unable to explain in a natural man-
ner the origin of these customs, man regards law as a
divine institution. Law has thus, in men's eyes, the guise
of objective order, independent of human will, and of the
free choice of man.
In considering as obligatory the long established cus-
toms, man makes no distinction between the primitive
form and the matter of these customs. He regards as ab-
solutely obligatory an observance of the form as well as
of the matter which it carries. For this reason the first
phases of development of law are characterized by rigor-
ous formalism.
If ancient customs were looked upon as obligatory,
whatever their matter, this explains the complete confu-
sion in primitive society of morality, religion and rules of
convenience.
162 THEORY OF LAW

Section 21. Development of Law

IHERING. Kampf urn's Recht, 7. Aufl. 1884.

In the preceding paragraph it was sought to explain

the origin of law. It remains to show how it develops.
We find very different opinions as to this in legal litera-
ture. They can all be brought under three categories.
According to some, law does not develop regularly, and
the changes produced by time are accidental or arbitrary.
This is the point of view of the old theories which pre-
ceded the historical school. These theories have been
definitely abandoned. The idea of legal historic evolu-
tion is so universally admitted, that the doctrine of the
arbitrary, or accidental character, of historic changes in
the law does not even find adversaries in modern litera-
ture.
Another theory as to the character of the development
of law, which has held up till now its vogue, is that of
the historical school. One can characterize it by saying
that it is the doctrine of the natural formation of law
(Naturwuchsigkeit) The historic evolution of law ap-
.

peared as the successive development of the principles

of law conceived by the popular mind; it was conceived
as a development taking place without any struggle, as
pacific as that of the plant springing from a germ. Just
as in the germ the qualities of the plant which comes
from it are naturally and necessarily already fixed, so

in the popular mind, from the people's appearance on

the historic arena, the principles which determine the
matter of its national system of law are settled in ad-
vance. In this respect, law is completely analogous to
language. Juridical norms like rules of grammar develop
of themselves without the intervention of the individual
will.
 THE CONCEPTION OF LAW 163

This doctrine of the historical school evidently exag-

gerates the idea of the regularity of historical develop-
ment of law. In resisting the theory which conceives the
law as a product of individual choice, the historic school
came naturally to deny to the individual will any part
in the law's development. Besides, the conservative ten-

dency of the school helped to render still more negative

the part of human will in legal development. The his-
toric school appeared at the commencement of the XIX

century as a formal reaction against the revolutionary

doctrines which rested upon the rationalistic system of
the XVIII century. The doctrine of a legal develop-
ment, independent of human will, took away all field for
revolutionary attempts towards changing old organiza-
tions.
This idea as to the development of law was not a nec-
essary consequence of the historical tendency. Pressed
too far, it would contradict the notion of historic evolu-
tion of law. History is not a progress taking place of
itself, where human beings are only uninterested specta-
tors; it is made up precisely of human actions; it is cre-

ated by man. If history in general has this character,

the history of law in particular can have no other. Hu-
man actions constitute the chief immediately acting fac-
tor in Legal rules are not indifferent to men like those
it.

of grammar, as, for instance, the employment of this

or that preposition following such a case, or of con-
junctions after such a mode. They touch directly
upon the vital' interests of man. Therefore, the estab-
lishment or removal of a legal rule provokes necessarily a
struggle.
Thus, the natural development of law cannot go on
without stirring up strife. In fact, law springs up as the
fruit of a strife, sometimes a lasting and obstinate one.
But this does not prevent the regularity of its de-
velopment. The question is only to know what are
164 THEORY OF LAW
the forces acting upon this development which lead to
it. Is it the struggle of human interests, or is it
some mysterious popular spirit sprung from no one
knows where? The regularity of the action of the
forces which form law remains outside of this considera-
tion.
This new theory that the development of law is a prod-
uct of the struggle between social interests was brought
forward by Ihering in opposition to the doctrine of the
historical school as to the natural growth of law. Ihering
made this theory the subject of a small but substantial
pamphlet : The Struggle for Law.
"
The idea of a struggle for law" expresses, much more
simply than does that of its "natural growth," its his-
toric development and the manner of its production.
The theory of natural development considers as an ab-
surdity the revolutionary changes which we meet with
so often in history. It is incapable of expressing in a sat-

isfactory manner the heterogeneous character of a nat-

ural system of law, some parts of which, after their dis-

similarity is recognized, cannot be considered as the result

of natural development of eternal and unchangeable
principles in the popular mind.
The idea of the "struggle for law" has still another ad-
vantage over that of its natural growth. This latter con-
siders law exclusively as a product of the popular life.
The historical school was compelled, for example, to deny
the existence of international law because it cannot be
recognized as a product of a single people's life. The
representatives of the historical school ignored completely
any universal character in law, attaching importance only
to its national peculiarities. On the contrary, according
to the theory of the "struggle for law" the development
of law does not connect itself with any special form of
social life. Therefore it can show why law may be
elaborated not only within the confines of a single
 THE CONCEPTION OF LAW 165

people's life, but in those of the whole social collectiv-

ity.

Notwithstanding all this, Ihering's doctrine cannot be

adopted without some reserves. We cannot admit that
in its entirety law is a product of conscious activity,
of conscious strife. On the contrary, it must be ad-
mitted that, primitively, customs are established uncon-
sciously, and that with the lapse of time they become
legal institutions. These ancient customs have the
advantage of being very precise. Being old and in
constant use and known to all the world they are more
stable,more fixed, than any mere legal rule. Therefore,
in the interests of public order it is desirable that they
be maintained. But at the same time they are very
formal. Being old, they never correspond to the latest
conditions of social and when social relations change,
life,

these old customs become very inconvenient and embar-

rassing. It becomes more and more necessary to re-
place them, using new legal rules consciously established
and corresponding to actual vital conditions. In con-
trast with the old law, rigorous and troublesome, these
new legal rules seem to us more just. Whence it follows
that legal development as a whole a struggle of
is

old law unconsciously established against new law con-

sciously adopted. The Roman jurists had already ob-
served this duality in the law; the difference which they
make between jus strictum et aquitas has precisely this
meaning.
 BOOK II

LAW FROM THE OBJECTIVE AND THE SUB-

JECTIVE POINTS OF VIEW
CHAPTER I

LAW OBJECTIVELY CONSIDERED

THON. Rechtsnorm und subjektives Recht.
BIERLING. Zur Kritik der Juristischen Grundbegriffen. B.
II., 1883.
THOEL. Einleitung in das Deutsche Privatrecht.
BINDING. Die Normen und ihre Uebertretungen. B. II., 1872.

Section 22. The Objective and the Subjective Points of

View in Law

In regulating human activity, legal rules give to men's

relations with each other a special character. From rela-
tions of fact they transform them into relations of law.
Every man regulates his own activity according to legal
rules. His relations with his fellows are not determined
in each case of conflicting interest, according to the facts
which present themselves, but according to the delimi-
tation of those interests by law. Men's mutual rela-
tions controlled by legal rules are made up of rights and
obligations which correspond to and depend upon each
other. In delimiting the interests in conflict the legal
rule sets,first, the limits within which a given interest

may be realized. This is the right. Second, it sets at

the same time corresponding limits excluding other con-
temporary interests. This is the obligation. The rela-
tion thus established between right and obligation is a
juridical one.
In this way law comprehends at the same time rules
and relations. These legal rules and legal relations are
two quite distinct, if inseparable sides of law, the objec-
tive and the subjective sides.
168 THEORY OF LAW
Legal relations are called law (right) in the subjective
sense because the right and the obligation alike pertain to
the "subject," their bearer. 1 Without him they could
not Rights and obligations must necessarily per-
exist.
tain to one. On the other hand, legal rules do not
some
necessarily imply any one's presence. They have a gen-
eral and abstract character, and are not designed for any

particular person (subject). This law is in a sense ob-

jective.
As we are proceeding now to examine the distinctive
characteristics of legal rules relations, we will com-
and
mence with objective law, which from its abstract char-
acter submits itself more readily to analysis. We must
observe meanwhile that objective law did not precede sub-
jective right; quite the contrary.Historical development

begins with the particular, not with the general. So, at

the beginning, rights (subjective law) first spring up.
Then come the general rules which regulate these rights.
Before the appearance of a single general themis, there
was a belief in a plurality of such deities, applying them-
selves to the determination of individual cases. The
primitive judge did not apply pre-existing general rules
of law to particular cases, but for each new case affirmed
a new law, and only by the method of successive and
gradual generalization of the particular decisions in time
reached general rules, rules not yet presenting at first a
high degree of generality, but comparatively narrow
casuistical rules.
Of whatever sort they are, general legal rules once ac-
cepted, necessarily control subjective rights. The for-
mula for determining every such right takes the form of
a syllogism. The legal rule serves as major premise, the
different interests controlled by it as the minor one, and
the statement of rights and obligations which results
forms the conclusion.

l "Pravo"
(law) in Russian, like droit in French and jus in Latin, and Recht
in German, has the double meaning of "law" and "right."
 OBJECTIVE AND SUBJECTIVE 169

Section 23. Juridical Norms. Orders

SAVIGNY. System. 81. 25.

THOEL. Einleitung, 34-39.
THON. Rechtsnorm und subjektives Recht, 345.
BIERLING. Zur Kritik der Grundbegriffe II, 307.
ZITELMANN. Irrthum und Rechtsgeschaft, 1879. s. 200-229.

Juridical norms, as in general all others, are require-

ments to do something, and in this sense, orders. Being

orders, they are not permissions, enunciations, or indica-

tions. They always command. They indicate what is to
be done and in what way it is necessary to proceed for
the accomplishment of an act in order to avoid a clash of
interests.
It is by no means necessary to conclude from this, as is
sometimes done, that all juridical norms are the work of
a conscious will or of the authority of some man. The
rule as to what is to be done contains, certainly, a com-
mand, but it is not an order emanating from an indi-
vidual will. Thus, we know that technical rules are not
the work of any man, but the natural consequences of
the existence of certain natural laws, just as moral rules,
to the extent that they are not divinely revealed, are
not established by any one's will, but result from a moral
sentiment. equally the case with juridical laws.
This is

To the degree that they present themselves at first under

the form of customs, they are not acts of any ordaining
will.

Zitelmann, who contests the imperative character of

legal rules, as dispositions established by volition, is

clearly right on this point, but he goes too far when he
affirms that these legal rules, even in their content, are
not commands, but only judgments, as to relations of
cause and effect between juridical facts. He himself ac-
170 THEORY OF LAW
knowledges, however, that a legal rule is a hypothetic
judgment as to what is to be done; but every judgment
of this sort constitutes in itself naturally a command.
Moreover, the relation of juridical acts, determined by
juridical norms, is not one of fact and necessity. Such a
relation will only be recognized by those men who con-
sider it as obligatory.

Legal rules do not carry permission, definition, nor

enumeration. Sometimes the articles of a law take such
a form as to lead to the belief that there are other than
ordaining rules and such as to produce a belief in the
existence of rules which authorize or which define. This
opinion has had followers even amongst Roman jurists,
as Modestinus, who distinguished four categories of law.
Legis virtus, said he, est imperare, vetare, permittere, punire.
But even then his definition was questioned and Cicero,
for example, admitted the existence only of ordaining
and prohibiting laws. Legem esse csternam (De legibus,
II, c. 4).
Modestinus' classification is evidently wrong. We can-
not, indeed, put imperare, vetare, permittere and punire
in the same rank. Penal laws which indicate pun-
ishment do not in truth contain the order for punish-
ing the criminals. That belongs to the tribunal. For
a long time, however, Modestinus' definition prevailed.
Savigny gave it a decisive blow and showed the impossi-
bility of setting in a separate group the rules for punish-
ment. On the contrary, a good many jurists have
always admitted the existence of rules which author-
ize, and even of those which define, as was done by
Thol.
It is in the meanwhile difficult to recognize, in the
form of these different rules, anything which modifies
them essentially. a legislative act we find an arti-
If in
cle exhibiting the form of a definition, nevertheless, in
its actual application this act is nothing but a command.
 OBJECTIVE AND SUBJECTIVE 171

So, law gives the definition of a contract or a crime,

if

there here only an order for connecting with human

is

actions constituting a contract or a crime, the juridical

consequences of such contract or crime.
It is important to observe here that the juridical rule is
not expressed by a single article but in several. One de-
fines, the others indicate the juridical consequences con-
nected with the acts previously defined.
Sometimes it happens that the legislator employs the
descriptive form instead of the imperative one. Instead,
for example, of saying that some person ought to do this,
he says that the person does do it. So, for example, ar-
ticle 47 of the Fundamental Laws declares that "The

government of the Russian Empire rests upon the solid

basis of laws." This means undoubtedly that it ought
to be so. Otherwise the legislator would appear to go so
far as to deny the possibility, even, of failure of compli-
ance with his rule. When the law describes the person-
nel and the organization of institutions and state services,
itsays that these subdivisions of the administration have
at their head certain persons, that they possess a certain

organization. This means, in fact, that there ought to

be such persons and that such an organization is fixed by
law. The replacing of the imperative form by the de-
scriptive is explained either simply by greater conven-
ience of expression, or by a briefer turn of phrase some- ;

times, also,by the desire of impressing upon the dispo-

sition created by law a more absolute character. The

imperative form, in fact, would appear to suppose the pos-

sibility of a reality not corresponding to that required.
The descriptive form, on the contrary, which sets forth
that which ought to be, as already existing, excludes even
the idea of a reality different from that indicated in the
legal formula.
The
existence of rules carrying a permission is warmly
disputed. The partisans of this category of rules assert
 172 THEORY OF LAW
the existence of articles of this nature in all legislation.

They add some considerations of a more general theoretic

character. In we
meet, in fact, quite fre-
all legislation

quently with articles having the character of permission

which may be divided into four distinct groups. The
first articles of this kind is explained historically.
group of
They are those which indicate the suppression of a pro-
hibitive rule formerly existing. The suppression of a
prohibition is naturally a permission, but we must ob-
serve that it institutes no new rule, only suppresses an
older one.
Then there are some articles in which the authoriza-
tion is the consequence of the terms of the formula.
They serve in general as an introduction to distinct pro-
hibitions, limiting the scope of these latter by certain per-
missions.
After an article like this, "All the world is authorized
to, or may," follows a series of articles enumerating the
exceptions to this general permission. Evidently the
juridical rule is contained in the special prohibition and
not in the general authorization. If we suppose the au-
thorization suppressed, there would be no change in the
legal rule; only its form would require some modification.
To say that an act is permitted except in some particular
case or to say that in that case it is forbidden, is abso-
lutely the same thing.
The
character of the articles which compose the third
group more disputable. In the laws which organize the
is

public of a state we meet frequently with

service
articlesproviding that "there can be taken such a
measure or such other one." 1 In reality these articles
are not rules carrying permissions. Legislation in
organizing a public service, that of justice for example,

1
The character of these provisions raises the more doubt because they are
generally intercalated between others which contain unquestionable com-
mands.
 OBJECTIVE AND SUBJECTIVE 173

imposes upon itusually the absolute duty of doing some

certain act if certain facts are presented. The tribunal
cannot set aside such a rule. It is not permitted to inquire
whether the application of this rule in the given cir-
cumstances is indispensable or even useful. Sometimes,
on the contrary, the law leaves to the tribunal itself the
duty of ascertaining according to the circumstances the
necessity for applying the measure. Does this mean
that the tribunal can according to its liking apply it
or not? By no means, for if the necessity or utility of
the measure is recognized, the tribunal is bound to

apply it.
Such a law, then, is not an authorization to the
tribunal; on the contrary, it imposes a double duty, the

estimating of the need of the measure, and the applying

of it, if such need is recognized.
the law says that in certain cases the police may
If
call the army to assistance, this means merely that if
the police recognize the utility of such a measure, its

duty is to employ it.

The fourth group is made up of rules by which alter-

native obligations are created, when no direct command

is given, but the choice is left of doing some one of

several given acts.

Here, then, it is a matter of course that the alterna-
tive order keeps its character of a command and the
alternative rules are distinctly imperative ones. The
permission consists wholly in the fact that choice
between the performing of several obligations is author-
juridical force of these rules consists not
The
ized. in

the permitting of a choice, but in forbidding the making

of a choice outside of the established alternative.
So the examples given of rules asserted to carry
all

permissions are without force. It remains still to

examine one proof furnished to support the existence
of these rules of permission. It is of a more general
174 THEORY OF LAW
character than those just examined. Some have gone
so far as todeny the general rule that that which is not
forbidden permitted. They have set forth that not
is

to forbid not the same thing as to permit. The

is

absence of prohibition does not give a right to perform

the unforbidden action. Permission given by law to
perform an act establishes, on the other hand, a right.
To answer this it is necessary to establish first clearly
the meaning of the maxim, "Everything not forbidden
is permitted." If we consider permission as equivalent
to the creation of a right, man has a right to do every
permitted act and undoubtedly what is not forbidden
cannot on that account be considered as permitted. In
making no prohibition, no right was created, because a
right, as we shall see later, supposes always a corre-
sponding obligation, and merely from the fact that the
law does not forbid an act, we should not conclude that
any obligation is imposed by such fact. The law does
not forbid anybody to look at the setting sun, but this
does not mean that I am compelled to place my house
so as not to interfere with another's view of the west.
Permission to one does not mean obligation upon
another. A permitted act can become a right only
when everything is forbidden which might interfere
with that permitted action, because it is only on this
condition that any corresponding obligation arises. So
a right can find birth only in a prohibition and not in a
mere permission. 1
We conclude, then, that all legal rules arecommands,
but commands may take various forms. Every limita-
tion upon the realization of interests which are in con-
flict may be of two kinds. We can reduce them either
to the prohibition of acts which prevent the perform-
ance of some act, or to the requirement of the per-

1
A legal right, then, is not merely capacity to do an act, but capacity aided
by law through establishing an obligation. Translator.
 OBJECTIVE AND SUBJECTIVE 175

formance of the acts necessary to the realization of such

interests. So one may say that the command in a legal
rule may be either positive or negative, an order properly
so called, or a prohibition. It is true that every com-
mand may be expressed under the form of a prohibition
and every prohibition under the form of a command.
To direct the performance of an action is the same thing
as to forbid its non-accomplishment. This does not
destroy, however, the importance of the distinction
between positive and negative rules, between com-
mands and prohibitions.
This difference is manifested especially in the obliga-
tions which each creates. Orders produce obligations
to do, positive obligations; prohibitions engender obliga-
tions to abstain, or negative ones. From this distinc-
tion among obligations depends, as we have already
seen, the coercive effectuation of commands, and all
prohibitive rules admit of coercive realization. Rules
which contain the injunction to perform a positive act
are susceptible of coercive realization only when they
create no personal obligation.
176 THEORY OF LAW

Section 24. Elements of the Legal Norm

TSITOVICH. Course in Civil Law. I. p. 45.

BINDING. Normen. I. p. 74.

Juridical norms are not simply commands, they are

at the same time conditional commands. The limits
given for the realization of an act are variable, and the
rules arising from the realization of this act vary accord-

ing as this or that interest, more or less important, opposes

such realization.
So the explanation of a legal norm depends upon the
presence of certain facts. There are no absolute juridi-
cal norms. Even the rule absolute from the moral
point of view, like the provision against attacking a
human life, is not absolute as a legal norm. The greater
number of human interests ought, it is true, to yield to
the interest of preserving life, but not all. In the case
of lawful defense, war, and in the application of penal
laws, to kill is permitted by law. Legal rules, then, are
conditional rules. Each one
consists naturally in the
definition of the conditions for applying the rule and
in the exposition of the rule itself. The first of these
two elements styled hypothesis or supposition, and
is

the second, disposition or order. Such a legal rule can

be expressed in the following fashion: "If then ..." . . .

Example: "If the deceased has several sons, then his

goods shall be divided into equal parts." "If any one
commits a theft, then he is punishable by imprison-
ment."
Each article of the law does not always necessarily
contain these two elements. The rule may be set out
One article may contain the hypoth-
in several articles.
esisand another the disposition. So it happens that
the law may not contain an express declaration of its
 OBJECTIVE AND SUBJECTIVE 177

conditionality. Instead of: "If ... then . . ." we can

use another formula, "He who does this or that is pun-
ishable by . .
."; or, better, "In such case the goods
which . . . shall return to ..."
But all these formulas come finally to, "If . . .

then ..." That is the fundamental formula to which

the others can be reduced, while the other formulas
cannot be applied in every case. Thus, the laws which
regulate the descent of estates cannot be expressed by
the formula, "He who shall do such act shall have the
right ..." The command being the form common to
all juridical norms, the hypothesis and disposition are
their universal elements.
These two elements may take different forms. The
hypothesis can in effect be expressed under a general
and abstract form, or under a concrete, casuistical, one.
The circumstances on which the application of the
norm depends may be the result of general principles
and the hypothesis will be under an abstract form, or on the
other hand, they may have their origin in individual in-
stances and the hypothesis will take a casuistical form.
The thought in all primitive peoples assumes the
concrete form. Their legal rules, consequently, are
clothed at first in concrete forms applied to each par-
ticular caseand it is only little by little, in generalizing
themselves, that these concrete forms become abstract
and general definitions.
The casuistical form is defective, for it causes a
multiplicity of rules and does not adapt itself to the
generality of legal definitions.
With casuistical rules each case demands for itself a
separate rule and meanwhile, as the diversity of pos-
sible cases is infinite, the casuistical rules, however great
their number, cannot always include every case which
lifepresents.
The abstract form, on the contrary, has great advan-
178 THEORY OF LAW
tages. In a single definition all the homogeneous cases
are indicated and combined. It requires, then, only a
quite moderate number of rules, which at the same
time are fully comprehensive.
It however, some inconveniences. In the
presents,
first place,the abstract form, because of its too general
character, leads to a certain vagueness in the applica-
tion. There is no embarrassment as to the casuistical
rule in knowing whether or not it is to be applied to a
given case. With the abstract form it is not always

so, and a large field is sometimes opened for contra-

dictory interpretations.
Besides the differences which we have just indicated
among the hypotheses, sometimes casuistical and some-
times abstract, there are others which arise from differ-
ent degrees of definiteness in These
the hypotheses.
hypotheses may be, indeed,
absolutely determined or
undetermined or may be relatively determined.
A hypothesis is said to be absolutely determined
when the facts on which it depends are distinctly indi-
cated in its own
form, when we indicate, for example,
that every contract involving an amount greater than
five rubles must be upon stamped paper.
There is an absolutely indeterminate hypothesis when
the rule comprises no mention of the facts on which its
application depends, but places upon each agent of
authority the necessity of stating them. For example,
ifthe law permits "in case of necessity" the taking of
such or such a measure. Here the hypothesis is abso-
lutely indeterminate.
When will the condition arise? On what terms?
The law does not say; in this last case the agent charged
with accomplishing the rule has a power which is called
discretionary. He can act, taking for a guide certain
considerations, but he is only bound by the formal
restrictions of the law.
 OBJECTIVE AND SUBJECTIVE 179

Lastly, we say that the hypothesis is relatively deter-

mined when the application of the law is subjected to
certain conditions; for example, if certain measures are
prescribed only in case of an epidemic, and in such
case not absolutely, but only under condition that these
measures shall be recognized as necessary by com-
petent authority. The rule may then, under this
hypothesis, not be applied at all, and if an epidemic
supervenes, it will be applied only if it is recognized as
necessary.
Rules with the hypothesis relatively or absolutely
undetermined are found often in administrative law
and also in procedure. The courts have, in fact, a
quite extensive discretionary power.
The necessity for the application of these rules depends
on circumstances so varied that it is unavoidable to
give to administrations and courts of justice some dis-
cretionary power.
Concrete restrictions, unchangeable at law, must be
replaced by definitions which are elastic, so to speak,
adapting themselves readily to the multiplicity and
variability of facts. These definitions are given by
judges and administrators.
Thedistinction between casuistical and abstract forms
is not applicable to the disposition. This latter con-
tains, in fact, a rule, a command, and contains nothing
else.
We distinguish several kinds of "dispositions"
according to the degree of determination of the com-
mands which they contain.
Like the hypothesis, the disposition may be abso-
lutely determined, absolutely indeterminate, or rela-
tively determined.
In the disposition absolutely determined, the com-
mand is a categorical rule. No discretion or latitude is
given to him who executes it. Such, for example, are
180 THEORY OF LAW
dispositions of the kind which indicate the date when a
bill of exchange is outlawed, or those which indicate the

eldest son as the successor to a throne. These are cate-

gorical commands, leaving no option to the one charged
with their execution.
Dispositions of an indeterminate form are, on the
contrary, those which leave to the one who is to apply
them a discretion to moderate their application or even
not apply them at all. For examples we will cite the
texts which authorize the police to take some measure
deemed necessary in case of a riot for the re-establish-
ment of order, or again, in case of epidemic, all the
useful measures for arresting the spread of contagion.
All the dispositions of the criminal code are indeter-
minate. Criminal laws, in fact, are applied by tribunals
which have the right to choose between laws.
We observe in all our examples that the exact and im-
mediate application of the rule is confided to some organ
of government, or of the police, or of the court. These
agencies are bound to fulfill this function and at need
can be constrained to do so. There are rules also which
require some given individual to enforce them. Ranged
in this class should be the rule which requires that
goods of a defunct shall belong to a devisee indicated
in the will of the deceased, or that which in a contract
leaves to parties the privilege of arranging details.
Doubtless there are fixed limits to the rights of the
devisee .or parties to the contract, but there is, none the
less, a large share in the application of the rule confided
to them.
Experience has shown that parties to a contract do
not employ very freely the authority which the law
gives them of arranging their mutual relations, and the
law usually fixes some general rules which operate by
the side of those which the contracting persons estab-
lish forthemselves. If these Jast do not indicate in the
 OBJECTIVE AND SUBJECTIVE 181

contract all the details of its application, it will be neces-

sary to refer to those which the law has established.

These rules, which apply only in cases where the inter-
ested persons have fixed none themselves, might be
called dispositive rules and the others which apply in
every case, prescriptive rules. Rennenkampf has re-

cently proposed the name "ordinative" instead of dis-

positive, and "imperative" instead of prescriptive,

respectively, for such rules; but his names have not
prevailed.
The relatively determinate disposition may have two
forms. It can fix
merely the extreme limits within
which the competent authority, or the persons inter-
ested, may choose. For instance, when the maximum
or the minimum of a reparation is fixed, or the maximum
of delay in a contract of hiring, leaving to the parties
the right of stipulating for a shorter one. It can also
take an alternative form, limiting itself to indicating
several measures between which choice must be made
in applying the rule.For example, the court has often
the choice between requiring a reparation to be made
or the imprisonment of the guilty party. The trial
judge may have a discretion to order an imprisonment
or to satisfy himself with a reprimand.
Individuals themselves have quite frequently to apply
dispositions of this kind. The victim of a crime, for
example, can institute proceedings for damages before
a civil tribunal or a prosecution before the criminal
jurisdiction, just as, also, one who has to complain of a
violation of a contract with the treasury can take his
demands before the administrative, or before the judi-
cial, tribunals.
All which has just been said as to juridical norms and
the elements which compose them is absolutely general.
The hypothesis and the disposition are indispensable
elements in every legal norm. They are, of course, in
182 THEORY OP LAW
every penal law; but they take then some particular
names because of the special situation occupied by
penal laws in the general system. Each penal law is
composed of two parts; in the first are indicated the
acts, the facts which constitute the crime or delict, and
in the second are the punishments.
All the formulas for penal laws can be reduced to this
one: "If any one commits such or such an action, he
such or such a penalty."
shall suffer
In our modern legislation we do not usually indicate
that all forbidden action is to be punished. This is
understood. It is the natural conclusion resulting from
the penalty incurred by the doer of the act.
Also, in a penal law the first part contains, besides
the indication of the facts constituting the offense, the
disposition of another rule which forbids the criminal
action, and this is why criminalists reserve this word
"disposition" for that first part, while they denominate
as "sanction" the second part of the penal rule. The
penalty constitutes the sanction for the observance of
the legal rule, since it can be incurred only as that law
is violated.
 OBJECTIVE AND SUBJECTIVE 183

Section 25. The Matter of Juridical Norms

Because of the great diversity of interests at play and

also of the numerous juridical principles by which they
are controlled, the matter of legal rules is extremely
varied. The detailed knowledge of them is nothing
less than that of all branches of positive law, of law
studied in its historical evolution and in comparative

legislation. We some gen-

shall limit ourselves here to
eral rulesand to the summary indication of the funda-
mental categories into which all the matter of juridical
norms may be reduced. Such a generalization is
possible, because all human interests, despite their
great diversity, are on the whole subjected to identical
conditions.
To reach a proposed end, man employs forces. Thanks
to these, he produces changes in the conditions of his
existence, of his individual well-being. The forces
which man employs for the satisfaction of his needs
and pleasures are limited. Meanwhile, the man cannot
attain his ends without a certain exhaustion of these
forces. The struggle between individuals thus appears
to us as a struggle for the possession of those forces
which alone can assure to individuals the realiza-
tion of their projects. Legal rules have precisely for
their end the regulation of the human struggle for the
control of these forces.
Laws, in fact, enjoin upon the man, first, not to
employ for the realization of his interests other forces
than those which the law recognizes as good; second,
the performing only of acts leaving possible for other
men the utilization of forces corresponding in their
limits with those assigned by law.

Legal rules, then, have for their end the avoiding

of
184 THEORY OP LAW
the shock of the collision of individual interests; they
are established with a view to order.
As the relations between the different interests under
consideration are not the same, the content of legal
rules, while keeping certain general traits, varies also.
We can bring into three groups these different con-
of interest: first, the conflict of interests absolutely
flicts

equal belonging to different persons; second, the conflict

of equivalent but unequal interests; and third, the
conflict of interests which are not equivalent.
The first group presents some interests offering this
peculiarity, that itis quite difficult to assign to them

an exact limit. Since the two interests in view are

absolutely equal, there is no reason to prefer one to the

other. Their realization, therefore, should be admitted

in an exactly equal degree. If, on the other hand, the
realization of only one of them is possible, then the
choice between the two is left absolutely to chance. We
find frequent application of this rule. Thus we accord
the use of a thing to the party who first takes posses-
sion, according to the rule, Qui, prior tempore, potior est
jure. In the same way in case of danger incurred by
two persons, if the safety of one can be obtained only
by the destruction of the other, the issue is left to brute
force as between the two. Sometimes the law is used
to decide between the interests in conflict.
The unequal but equivalent interests may be com-
patible or may not. Compatible interests are delimited
as in the case we have just examined, by applying the
rule of perfect equality.
We must observe always a difference. If in the case
of absolutely equal interests we were to apply perfect
equality, it would be arithmetical equality. In the
case we are now concerned with, however, it is propor-
tional, geometric equality which is required. The forces
are distributed between the interests which ought to be
 OBJECTIVE AND SUBJECTIVE 185

delimited in a fashion
proportional to the quantity
which is necessary for their realization as regards each
other.
In the case of incompatible equivalent interests the
choice can be left merely to chance. These interests
being different, it is easy, as a matter of fact, to find
reasons a choice between them. It will be, for
for

example, the interest of the majority or that of the

minority, or the one will be older than the other and
already recognized by usage, and will be preferred for
this reason.
This difference between the interests may arise, either
from the subjects, that is, the bearers of the interests,
or from their matter, of what sort they are. The
organization of society into classes is an application of
this difference of interests, as to the subject. It happens
also that general interests are naturally preferred to
individual ones. Interests of the state, for example,
are estimated higher than those of a province, or of a
commune, and these latter are given consideration
before those of an individual. Even in this last case it
may happen that the interests of one should be pre-
ferred to those of another. Thus, in the case of viola-
tion of a law, the interests of the just are preferred to
those of the wrongdoer. When it is necessary to. choose
between the interests of the mother and those of an
unborn infant, the mother's are preferred. The mother
exists already; the infant has only a problematic exist-
ence. It is plain that the importance attached to a
certain interest depends upon the moral ideas domi-
nant in society.
Let us observe besides, that in the application of
legal norms, general interests, even for a particular case
which concerns only a conflict between individuals, are
taken into consideration merely for the reason that, as
we have alreadv seen, laws are established with a view
186 THEORY OF LAW
to order. Peace being a very important general inter-
est, it is most part that
in the interest of peace for the
the interests in play will be regulated. Hobbes was not
wrong in considering as a fundamental law the Roman
rule, "Pax qu&renda est" and Herbart gave as the
origin of all la,w the necessity of settling conflict. How-
ever it obtained, peace
is always an advantage. It
is

procures an economy of force which in its absence would

be absorbed in the conflict. It permits the regarding of
the future with confidence, while on the other hand, the
issue of a struggle is always uncertain.
So, in view of the great advantages which peace
offers, when we are controlling the interests under con-
sideration,whatever they may be, we give preference
to the adjustment which contributes most to the estab-
lishment of peace. For this reason law in general is
disposed to preserve interests already existing and
applies the rule "Beati possidentes" For this reason,

too, effective possession if it lasts long enough, assures

to the possessor property in the object and turns into a
right in him. Property can be acquired even by unlaw-
ful possession,provided it be old enough.
Besides this very general interest, which precedes the
others and which peace offers in regulating the interests
at play, there are others which, without having so
general a value, are also applied, as the interest of indi-
vidual liberty which plays such a great role in modern
law. Because of it, modern law gives preference to the
solutions best compatible with individual liberty. It is

needless to say that other collective interests are set in

play by the conflicts between individuals. Their greater
or less importance affects the solution adopted by the
legislator.
 OBJECTIVE AND SUBJECTIVE 187

Section 26. The Sanction of Legal Rules

Legal rules as orders addressed to the conscious wills

of men are not always observed; so they have need of
special guaranties for their enforcement.
It is necessary to constrain the man to the observance
of legal rules; without such constraint the rules would
remain a dead letter. These means of constraint are
"sanctions." In what do these sanctions consist? Each
violation of a legal rule gives birth to a new clash of
contradictory interests. On the one side we find the
interest of him who injured by the violation of law.
is

He wants compensation. On the other side is found

the interest of the wrongdoer, the author of the harm.
Frequently, too, he can invoke some rights for his
defence.
Wecan say that the general consequence of violation
of anylegal norm is the birth of a new rule created to
regulate the interests brought into presence as a result
of the violation of law. Let us examine how these
interests are regulated.
Lawis violated generally because it interferes with us

in the accomplishment of some act, because it prevents

the realization of some of our interests.
The first means for producing observance of legal
rules is to prevent the actions which violate those rules
from attaining their end. Such acts are to be recog-
nized as void. For example, the sale of immovable
goods by a secret act is considered as void, without
value to any one. Property sold in this manner is con-
sidered as The purchaser gets no rights of
unsold.
property. The law requires every sale of this kind to
be made before a notary. The object is thus attained,
and if by private act the sale cannot take place, there
188 THEORY OF LAW
is no motive for individuals to proceed in that
fashion.
The laws which have as their sanction the inefficacy
them are called perfect, for they
of acts which violate
come the nearest to a law of nature. This inefficacy
may have two forms. The acts may be absolutely null
at law, or they may be only voidable, that is, such
as may be annulled. They are absolutely null
when that is the result decreed as a consequence
of non-observance of the law. Such, for instance, is
the result of a sale of real property by a private act,
although the parties were agreed as to the intention
to transfer the property. It is, on the other hand,
only voidable, when rescission can be demanded
by one of the parties interested in the contract.
Thus a contract produced by duress can be annulled
only on the application of the party subjected to the
violence.
It is necessary to distinguish farther, absolute from
relative nullities. The
act violating the law and con-
sidered as totally non-existent is stricken with absolute
nullity, as for example, the sale of real estate by a
private act. When the act is only relatively void, it is
because some clauses of the contract be upheld.
may
A bill of exchange, given by a married
for example,
woman without her husband's consent is void as a bill
of exchange. It has, however, a certain value. It is
that of an ordinary obligation.
Sometimes a void act has already produced its result.
It will not suffice then to proclaim or demand the

nullity of the act. The annulment of the act must be

followed by one which re-establishes the violated right.
Such a re-establishment of the violated right may be
accomplished by the agents of authority and may consist
either, first, in the cessation, if necessary by force, of an
unlawful condition, the expulsion, for example, of a
 OBJECTIVE AND SUBJECTIVE 189

renter from a house which does not belong to him; or it

may consist, second, in the accomplishment of a vio-
lated obligation and this at the expense of the one who
has violated it, as the repairing of a pavement of a
torn-up street.
There are also some cases where the act which vio-
lates a right contains in itself the realization of the
object with which the wrong was done, robbery for
example; some cases where the right violated cannot be
re-established, murder for example. To acknowledge
the crime is not sufficient in such a case to repair the
injury done, so law has established other sanctions.
These acts, which violate law, bring with them conse-
quences indicated in the law, as in the laws which the
Romans called leges plus quam perfect. These con-
sequences may be of two kinds, damages for the
civil

benefit of the injured, and punishments set up by

public authority in the general interest.
Wemight say that to a certain extent every violation
oflaw works an irreparable injury.
This harm is from one point of view that offense which
every injured person experiences and from another point
of view the violation of the law itself, all whose pre-
is

scriptions are meant to be scrupulously followed. These

harms are of so great a variety that it is impossible to
classify them. They depend usually upon the condi-
tionsunder which they are wrought.
We
know only that private damages are the oldest.
As to penalties denounced for the general interest, we
may say that they depart farther and farther from
private damages in the degree that governmental
authority is augmented; and in our modern law the
sphere of application of these punishments is not fixed
by any general principle, but by different considerations
which are set forth in the penal code.
These consequences attached by the law to the
190 THEORY OF LAW
criminal act which it punishes do not render unnecessary

the re-establishment, so far as possible, of the violated

right. Thus in the case of forgery, besides the penalty
to which the guilty one is subjected, the writing is void.
So in a case of robbery, besides the punishment involved
of the robber, he is required to restore the stolen things.
It may happen meanwhile that the re-establishment of
a violated right may bring on forbidden consequences
to those absolutely strangers to the doing of the acts.
The annulment of a marriage, for example, may bring
upon children the consequence of becoming illegitimate.
So the nullity of a marriage results only from a very
grave violation of law. Any less important act may
bring about the punishment of the parties, but leaves
the marriage valid.
It is the same when a contract has not been made
upon stamped paper. The wrongdoers pay a penalty.
The validity of the contract as to third parties remains.
Such laws, whose violation brings penalties upon
those who violate them while preserving the legal force
of the act, are called "leges minus quam perfects."
Besides these laws, classed so by the sanction which
they carry, the existence must be recognized of a whole
category of laws which offer no sanction, the conse-
quences for whose violation have not been fixed. These
laws deserve some attention. They are for the most
part laws fixing the rights of the organs of authority.
The organization of a service charged with the execu-
tion of the laws is considered by itself, as a preventive
measure against action contrary to the law, and for this
reason it is in public law that the leges imperfect are
the most numerous.
But the organization of a service is always weakened
by such imperfection, since the agents who have it to
do are men. If a certain liberty, however, is not given
them in the performance of their task, such an organiza-
 OBJECTIVE AND SUBJECTIVE 191

tion will become stiff and dead. It will by no means

satisfy the numerous requirements of the development
of life and movement of society. If you make an or-

ganization more vital, more mobile, better applicable

to concrete conditions, to the necessities of the times,

you give necessarily to individual tendencies the possi-

bility of manifesting themselves. The organizations em-
ployed for the development of the state consequently
explain, but without justifying them, the leges imper-
fects. The vice of such a system commences to show
itself.

We must consider as inapplicable the theories of the

constitutional school which boasted above all of the or-
ganization of its governmental machine.
There general agreement today in recognizing the
is

necessity of attributing a sanction to the rules of public

law. The prosecutions which can be instituted in our
day against acts of administration have transformed a
good part of them from imperfect laws into leges per-
fects.
There are, however, some laws which necessarily will
remain always without sanction. These will be the ones
which establish the supreme power. This supreme power,
which is not subjected here below to any authority,
which is controlled only by its own moral dignity, can in
fact possess only in itself the guaranty for the accom-

plishment of all the duties which devolve upon it.

 CHAPTER II

THE SUBJECTIVE RIGHT

SAVIGNY. System d. heut. rom. Rechts B. I.

IHERING. Geist. d. rom. Rechts. B. III.

IHERING. Zweck im Recht B. I. s. 72.
MUELLER. Die Elernente des Rechts und der Rechtsbildung,
1878.
BIERLING. Zur Kritik der juristischen Grundbegriffe. Jh. II.
53, 47-148.
REGELSBERGER. Pandekten I, 1893, 57-82; 195-233.

Section 27. Legal Relations

NEUNER. Wesen und Arten der Privatrechtsverhaltnisse,

1886.
PLOSZ. Beitrage zur Theorie des Klagerechts, 1880. 65-76.
PUNTSCHART. Die moderne Theorie des Privatrechts und ihre
grundbegriffischen Mangel, 1893.
MOUROMTZEV. Fundamental Definitions and Divisions in Law,
1879, pp. 53-122.

Since legal relations are also social relations, but gov-

erned by a legal rule, it is necessary in order to explain
them satisfactorily to treat first of the relations in gen-
eral.

Every relation supposes a "lien," a dependence, and a

capacity of influence by means of this "lien." Where
there is no dependence there is no relation. If between
several trigonometrical quantities, for instance, it is said
that there exists a given relation, this means that they
depend one upon the other and that changes in one of
them provoke corresponding changes in the others. So,
then, if between given phenomena there exists a causal
means that the consequences depend upon
relation, this
the cause and that the presence of the cause produces
 OBJECTIVE AND SUBJECTIVE 193

that of the consequence. On the other hand, if between

several things there is no dependence, we assume that
there is no relation between them.
So, human relations consist in some sort of a depend-
ence, in the power which certain individuals have over
others.
Men's mutual dependence is caused by several condi-

tions which may be placed in three groups: physiolog-

ical, economical, moral.
The physiological distinctions of sex and age introduce
mutual dependence among men. Because of their
sexual inclinations, human individuals experience the
necessity of uniting. The child from its birth requires
the care of the parents and these last become old and
require in their turn the aid of their children. might We
add to this the influence of the laws of heredity, which
are also physiological laws. By their means men of a
common origin present strong physiological and moral
resemblances and form natural groups according to race,
independently of their wills. To this group also, must
be added the propagation of maladies among men by con-
tagion or by heredity. From the point of view of their
health men are thus dependent upon one another.
In the same way man's necessity for protecting him-
self against external forces of nature, which is the
basis of economical activity, brings also mutual depend-
ence. The forces of one isolated man are too weak for
the struggle with the elements around him. Men find
themselves compelled to mutual aid in two ways; there
is simple collaboration in regard to a labor performed
by united forces, and the complex collaboration which
we call the division of labor. In this latter each
man does something special and each for all and all for

each.
The moral life of man increases still more the mutual
dependence of one upon another, since the necessity of
194 THEORY OF LAW
exchanging thoughts is one of the very strongest, and
mankind support isolation only with great difficulty.
The mutual dependence of men from the moral point of
view, indeed, is so much stronger that in the psychical
development of man the social factor plays, perhaps, the
chief role. Our turn of mind is not, for the most part,
our own work, but the product of the social life to which
we belong. It is necessary only to recall the important
role played in the development of mind by language,
which by its is necessarily a product of the social
essence
life, common to all, and cannot be an attribute of any

single person. The dependence of men with regard to

each other, springing from society, increases in direct
proportion to the development of social life, and even the
physiological conditions of such dependence act with
greater and greater force. Thanks to the development of
social culture the time during which the man lives under
relations of dependence on his parents grows longer and
longer. The bonds which unite the spouses become
stronger since their relations with each other include
those necessary for education of their descendants. To
the influence of heredity is added that of education which
gives the child traits of character not possessed by his

ancestry.
The increasing density of population, and the lack of
space, introduces among men a dependence in increasing
degree which we might call hygienic. The force, and
action, and economic demands of these dependences in-
crease unceasingly. On the one side economic necessities

augment, and on the other the division of labor grows.

Social development is inseparably bound up with the de-
velopment of man's moral faculties. It increases these
latter, augments their moral interests in extending
the
moral solidarity of ever enlarging groups. Because, also,
of these conditions human life is made up of many differ-

ent relations among men. These relations have doubt-

 OBJECTIVE AND SUBJECTIVE 195

less an artificial character, but men are combined by

their means, and through them exercise influence over
one another.
Men, so far as they aid themselves by legal rules,
transform their social relations into legal ones, social de-
pendence into a legal obligation, and the power of influ-
ence which they have over each other into rights. The
legal rules fixing human interests delimit necessarily the
realization of those interests and impose upon each
man some obligation of guaranteeing the realization
of others' interests. So the law adds to the existing
bases of mutual dependence a new one, a legal base.
If my relations with other men are fixed by law, the

realization of my interests depends not only upon social

conditions, but also upon my
legal rights legal and my
duties. At the same time, conformably to these obliga-
tions there is created for others a possibility of influ-
encing me in a particular way under the form of legal
claims.
Legal relations suppose, then, a dependence under the
form of rights and duties, and suppose also a legal claim,
that is to say, an enforceable right, which is the conse-
quence of this dependence.
Among Roman jurists these relations, established by
law, were designated by the expression juris mnculum.
The characteristic peculiarity of these legal relations con-
sisted for them precisely in the dependence upon objec-
tive law. The active side of the legal relation, that is to
say, the legal claim occupied their attention so little that
the conception of a subjective right in the sense of a
1
capacity had not even taken birth.
The jurists of western Europe, on the other hand, and
in the very beginning, the glossators, attributed a par-
ticular value to the active side of the relation, to the as-
sertion of the legal claim. They do not assign the origin
Bekker. Pandekten. I. 1886, p. 46.
196 THEORY OP LAW
of the legal claim to the legal relation, but, on the con-

trary, consider the relation as a consequence of the as-

sertion of the claim.
The explanation of the difference between the schools
"
is readily accounted for by the subjectivism" peculiar
to the Germanic peoples in opposition to the "objectiv-
ism'-' of antiquity, and also by this second reason that
Christianity developed the role of the will with peculiar
force.
The law, as concerned in western Europe, does not
it is

consider its subjective side as an element of legal rules,

but as a free and individual will, recognized and pro-
tected by law.
Since in law this individual will is recognized, there
results the altogether natural consequence, that the duty
of other men is not to encroach upon the domain of this
will, and thus are established the relations between two
wills.
The logical development of this conception leads natu-
rally to the complete negation of legal relation and to its
replacing by the simple conception of subjective right in
the sense of a legal assertion as Brinz exhibits it.
1
But
the exclusive importance given to the legal claim is not
compatible with the real character of legal phenomena.
In public law especially, it is impossible to consider the
legal claim as the formative principle, the fundamental
base of the manifestation of law.
The obligations in public law are indicated in an ex-
tremely clear fashion. The subjects of such obligations
are always exactly determined, while, on the contrary,
rights are scarcely more than the consequences of these
obligations and it isan indeterminate body of persons
who enjoy them. Nearly all constitutional law reduces
itself to the study of the duties of the organs of author-
ity, and the rights which are given them are so many
1
Brinz. Archiv. f. civil. Praxis. Bd. LXX. s. 379.
 OBJECTIVE AND SUBJECTIVE 197

conditions, guaranteeing their assurance of the possibility

of accomplishing their duties. Judges, for example, are
bound to render justice and it is with this view only,
that of accomplishing this function, that they are ac-
corded certain rights.
So, too, all the relations of private law cannot be ex-
plained as consequences of the legal pretensions of the
owner of some right. The relations of passive action of
it, cannot be thus explained.
right, as Ihering defines We
find such action only where there is an obligation with-
out a corresponding assertion of claim. Such are the ob-
ligations which the law imposes for the protection of the
interests of unborn children. Such are the duties of a
debtor with regard to an unknown creditor, a debt whose
proprietor is anonymous or unknown, and such the duties
of the owner of a servient tenement where the dominant
one is res nullius.
These different examples show clearly that the obliga-
tion can exist without there being a corresponding right
in any definite person to assert it, and that it is, conse-
quently, impossible to derive all legal relations from the
assertion of right.
A legal claim, on the contrary, cannot exist without
a corresponding duty. If nobody is bound to yield to
my assertion of a legal right, if it is not obligatory upon
anybody, it has no legal validity. This is why in legal
relations as generally in all others, it is the passive
side, the obligation, which has most importance. This
importance is recognized today even by the civilists.

It is thus that Puntschart thought it necessary to

replace the conception of juridical relation by the

conception of juridical dependence (Rechtsverband) ,

translating by this term the Roman expression juris

vinculum.
This new conception is scarcely practical. The jurid-
ical connection is a term recognized by all, and which
198 THEORY OF LAW
offers this advantage, that it embraces the idea of the
realization in the active role and at the same time
in the passive one, of the action, as well as of the de-

pendence.
Every relation is defined by circumstances of fact as
well as by legal rules. There is no relation completely
and exclusively determined merely by the law. Rights
and obligations exclusively fixed by the law do not exist.
The relations, for example, of husband and wife, lessor
and lessee, master and servant, are governed by the law
and also by the social situation, by their practicability,
the character of the parties, their mutual dispositions,
their moral and religious convictions, etc. It is by the

diversity of these social conditions that the individual

and peculiar physiognomy of each concrete and peculiar
relation is created, but the juridical form of all these
identical relations, all marriages, for example, all con-
tracts for leasing, remains absolutely the same because
the same legal rule is applied to all. Since it is precisely
the juridical form of relations which concerns a jurist,
we comprehend readily how important it is for the
juridical critic to distinguish this legal form from the
variety of facts.
So the jurists have imagined the conception of legal re-
lationswhich should be completely and exclusively de-
termined by legal rules. In these relations there is only
one legal form common to all the identical ones. These
relations are called juridical institutions. They are a
legal abstraction from the concrete, actual matter, and if
this legal form is common to all the relations of a certain

kind, it serves as the common type for all the relations of

that sort.
The different interests which make up our social life
are so closely bound up that the
legal relations, which
have the struggle between these interests for a base, are
not isolated, but on the contrary form an inseparable
 OBJECTIVE AND SUBJECTIVE 199

whole. This combination of legal relations forms what

we callthe juridical state. It is the same with legal in-
stitutions considered as the common type of legal rela-
tions. They form a whole which we will call the jurid-
ical order.

Every legal relation, as we have seen, is composed of

a right and a duty. Neither can exist separately. They
are necessarily attributes of some subject. So the indis-
pensable element in every legal relation is the subject.
This element is not always single. The right is the pos-
sibility of realizing an interest and the realization of my
interests supposes necessarily the use of some sort of
means. Every right requires, then, necessarily to be ex-
ercised on an object whose use leads to the realization of
the sought-for interest; so every legal relation supposes a
subject of right, a subject of obligation, and object. It
is by the examination of these elements that we reach the

determination of legal relations.

This examination, meanwhile, is not all. Legal rela-
tions do not stand immovable; they change, they evolve
without ceasing. It is then necessary, besides studying
their form, to regard also their conditions and changes.
200 THEORY OP LAW

Section 28. The Subject of Juridical Relations

KIERULT. Theories des Civilrechts B. I. s. 82.

ROEDER. Naturrecht. B. I. 52 und ff.
TRENDELENBURG. Naturrecht. 85-88.
LASSON. Naturrecht. 46.
BEKKER. Iherings Jahrbucher fur Dogmatik. B. XII. Rechts-
subjekten.
WALLASCHEK. Studien zur Rechtsphilosophie, 1889. ss.

144-181.

Juridical rules, being rules for the delimitation of hu-

man interests, are applicable only to relations between
men. Moral rules are absolute duties. They do not de-
pend upon the interest which other persons may have in
their accomplishment. There can, therefore, be moral
duties towards oneself and these duties have for each
man an obligatory force. Law, on the other hand, hav-
ing for its end the delimitation of interests in conflict,
presupposes a relation between these interests and there-
fore between persons.
We cannot in this matter subscribe to the opinion of
Dernburg, Regelsberger, Mouromtzev and some others
1

who recognize the existence of juridical relations with

regard to things. The relation of the proprietor of a
thing with that thing is not distinguishable from the re-
lation of that thing towards one who has no right over
it. The proprietor, just like one who has no ownership
but uses it,employs the object according to fixed tech-
nical rules and according to personal taste. The only
difference between the one and the other is in relation to
other persons. When a relation is established with re-
spect to the thing by another person, then a legal claim
would appear. Legal relations exist then, not between an

1 22.
Dernburg, Pandekten, I.
 OBJECTIVE AND SUBJECTIVE 201

individual and a thing, but only between several indi-

viduals on account of the use of a thing.
Legal relations, it is readily seen, are possible, then,
only between individuals. Only individuals can be sub-
jects of juridical relations. They alone are capable of
them. This faculty of being subjects of legal relations we
shall call ''capacity."
Law in its modern conception recognizes in fact the ex-
man. It was not always
istence of legal capacity only in
so. Primitive man, assimilating natural phenomena to
human acts, considered them as the manifestations of
some conscious will. Legal rules were not limited to their
action upon human relations, and were recognized as to
things and animals, giving them rights and duties. Even
in the middle ages animals were brought to judgment and

punished; but at present only men are recognized as ac-

countable for their acts.
The punishments inflicted upon those who mistreat
animals do not contradict this principle. It is not in the
animal's interest that the punishment has been fixed, but
with a view to protecting the sentiment of humanity in
those who would be offended at the purposeless torture
of an animal. The proof of this is that if the harm to the
animal has some reasonable object, whether in the inter-
est of science, or to supply the table, there is no punish-
ment.
A
quite recent German opinion, specially advanced by
Bekker, maintains, however, that animals can also be
subjects of legal relations. If, for example, someone

leaves by will certain goods under this condition, that

they shall serve after his death for the maintenance of his
dog or his horse, these animals become proprietors of the
goods and are subjects of certain rights.
Some years later, however, in the Pandects, Bekker
of
recognized that it is better to restrict the conception
subject of a right to persons alone. Such a limitation is
202 THEORY OF LAW
necessary not only in the interest of convenience, but also
in that of truth.
We can in truth assign goods to any use we please, but
as a matter of fact these goods are assured of their des-
tination only so long as there is a man interested in
some way in its accomplishment, whether by esteem for
the memory of the deceased or for some other cause;
so, after the disappearance of the interested person, the
interests of the dog or horse are no longer guaranteed.
Then, even in this case the interests of the animals do
not constitute by themselves directly the basis of the
but only in a conditional, indirect fashion,
legal relation,
and to the degree in which they serve some human ad-

vantage or interest. The real subject of the legal re-

lation even here is one or more persons interested in
the accomplishment of the devise made for the animal's

profit.
As much, also must be said as to what concerns super-
natural beings and physical forces. The repression of
religious crimes does not have for its purpose the inter-
est of the divinity, for the divinity has no need of such

protection, but only the religious sentiment of the believ-

ers. The goods of which the church is the proprietary
assure the satisfaction of religious needs, those of the
ministers of the cult, and consequently of men.
We to another question. To recognize only
come thus
men as subjects of legal relations, does not this contra-
dict the conception of the legal personality of moral per-
sons? This conception is based, we know, upon the fact
that certain rights and certain duties exist for the advan-
tage, not of individuals,but of a class of individuals,
corporations, for example, or establishments. We
dis-

tinguish, for example, the goods and the duties of the

actionaries from those of the society which they serve,
those of individuals from those of the state, those of the
administration of a hospital and of the sick who are
 OBJECTIVE AND SUBJECTIVE 203

found there, from those of the hospital itself considered

as a public establishment.
As Savigny, who is an authority in this whole matter,
urges, such juridical persons are not genuine subjects of
legal relations but are only a fiction. Brinz goes farther
yet and rejects absolutely the whole idea of fiction; this
whole conception of legal persons is, as he says, entirely
unnecessary.
The on the other hand, like Beseler, Gierke,
writers,
Dernburg, Regelsberger, defend the existence of legal per-
sons, and recognize them as real subjects of legal relations
and not as pure fictions.Regelsberger formulates thus
his opinion: The object of the laws, says he, is the
guaranteeing of human interests, but a good many of
these interests cannot be realized in whole or in part
except by the combined powers of several individuals.
This is why there exist other subjects of legal relations
than individuals. There are these moral juridical per-
sons. While possessing no corporal individuality, they
are real subjects of rights; they constitute social organ-
isms. Their vivifying element comes from man, but in so
far as they are members of the organism and act con-
formably to its purpose these men give birth to a particu-
lar force (verbandsleben) ,
and to a collective will distinct
from their individual wills. In the view, then, of the de-
fenders of the real existence of moral juridical persons as
distinct subjects of 'right, the purpose is always the same;
it issome human interest, but an interest common to a
whole group of individuals. The force of this moral per-
son is the product of the activity of all the members or
representatives of this group; its will is that of the indi-
viduals who compose it. All the juridical relations of a
moral person can, then, be reduced to relations of indi-
viduals, but these relations are very complex, greatly
mingled, and it is for this reason that they are considered
for the advantage of legal analysis as the relations of a
204 THEORY OF LAW
single subject artificially constructed, and this subject is
the moral person.
It is in this way that Ihering explains his conception of
a juridical moral person. The conception of juridical per-
son is for him only a particular process in the juridical
construction of the actual relations of physical persons.
Here, also, are some men who are the real bearers of
interests delimitedby law, but these interests are com-
mon to the whole group of individuals whose composi-
tion can be varied without changing its identity; so the
legal rules, instead of delimiting separately the identical
interests of a throng of individuals, consider these
identical interests as a single one and the group itself as
a single subject of legal relations, as a single juridical
person.
It is only a special process for reaching a simplifica-
tion of the mutual relations of men. It would be very
difficult, for example, to determine the relation existing
between the person who buys something of a stock com-
pany and each stockholder of the society, or again, the
relation which exists between every holder of a state's

obligation and each citizen of the state. It is much sim-

1

pler to consider the relation only between the purchaser

and the society, or between the citizen and the
state.
Our conception of legal personality might be com-
pared to that of the parentheses in algebra. Just as in
algebra we place within the parentheses the quantities
united by and minus to simplify the calcula-
signs plus
tion, so in law we place together all the identical inter-
ests of a certain group of persons by the conception of

juridical personality, and determine afterwards the rela-

tions between the group and each member.
It is, as we have seen, only men who can be subjects of

legal relations. This does not mean that all would always
be "capable."
 OBJECTIVE AND SUBJECTIVE 205

The modern law, on the other hand, offers

history of
us a good many examples to support this idea. For a
long time slaves were considered only as things, goods,
which could not be subjects of legal relations, and were
without any juridical capacity. In modern civilized states
slavery has been abolished under all its forms, but in
the barbarous states like those in central Africa it still
exists.
Modern law, then, recognizes all men as "capable"
but each one does not possess equal capacity for all
rights. This capacity can be more or less extended. All
the incapacitated can be brought, however, into four
different categories: those who are smitten with nat-
ural restrictions, or with social restrictions, those which
have their source in incompatibility with certain legal
relations, and finally, those which result from penal re-
strictions.

By natural restrictions we mean restrictions which have

for cause age, sex, race. It is thus that in a general way
women are recognized as incapable of exercising political
rights. Individuals under sixteen years of age cannot
serve as administrators. Deaf-mutes cannot be members
of a jury.
Social restrictions depend upon social situations, as the

inequality between classes, between professions, and be-

tween religions. Members of religious bodies, for exam-
ple, cannot own land. Innkeepers are sometimes denied
the right of being electors in the towns. The Jews are
not allowed to live outside the territory assigned to them.
The restrictions which have their source in certain in-
compatibilities with legal relations arise from the fact
that the possession of certain rights precludes others. A
married person cannot marry again so long as the pre-
ceding marriage is not dissolved. High functionaries in
the state cannot at the same time hold private employ-
ments.
206 THEORY OP LAW
Finally there is, we have said, a class of penal restric-
tions. These are the consequences of an arrest or a judg-
ment. They are an integral part of the penalty involved
upon one condemned.
Capacity means that the person can have certain rights,
but does not necessarily mean that the person actually
possesses them. To have ability to acquire a right, and
to exercise it, are not the same thing. If one is capable
of possessing an ownership of real property, this does not
mean that everybody has it. Capacity and possession
are two quite different things.
Certain rights require, besides capacity, the presence
of particular facts, certain events, as, for example, the
death of a testator, or certain acts, an acquisition, for ex-
ample, by which the connection between the person and
the right is created.
The appropriation of rights by their subject is called
the acquisition of right, and the rights are rights acquired.
There are rights which have an exclusive character and
which cannot be exercised at the same time by several
persons, and as an example of such rights we cite the
right of property, but if the right is not exclusive and
may belong at the same time to an indefinite number of
persons, the presence of the conditions necessary for ca-
pacity suffices for their possession; for example, the elec-
toral right.

Capacity commences at birth, to end only at death.

It is only living persons who have it. The child born
dead cannot be the subject of legal relations. It is con-
sidered by the law as if it had never existed. However,
certain rights exist for the advantage of the infant not
yet born, but under the condition that it shall be born
alive, and thus certain duties are imposed upon persons
who have, so to say, charge of the birth and life of the
infant. They cannot, for example, during pregnancy
divide the father's estate if he is already dead.
 OBJECTIVE AND SUBJECTIVE 207

Man is recognized as capable of rights from the instant

of his birth; from the complete detachment of his body
from that of his mother. This capacity lasts until his
death, that is to say, until the final disappearance of the
last signs of life, the beat of the heart and the respira-
tion.
A
prolonged absence, if the dwelling place is unknown,
is equivalent to death and brings to the absent a loss of
capacity. Some legislative enactments, that of the Bal-
tic, for example, recognize as dead one who in his absence

has attained the average age of mankind, that is to

say, seventy years of age. Other legislators, Russian for
example, recognize as dead one who has been absent a
certain length of time independently of his age.
With death, capacity completely disappears. A dead
body has no rights. If the law has proclaimed penalties
against the desecrater of tombs, it is with a view to the
protection of those persons whom such conduct would of-
fend owing to their relations to the deceased.
208 THEORY OF LAW

Section 29. Rights and Duties

JEERING. Geist des rom. Rechts. B. III.

THON. Rechtsnorm und subjektives Recht, 1878, 223 und ff.

BIERLING. Kritik der jurist. Begriffe, II. 49, ff.

BEKKER. System, I. s. 46.

SCHUPPE. Der begriff des subjektiven Rechts, 1888.
ZENTHOEFER. Das subjektives Recht, 1891.
SCHLOSSMANN. Der Vertrag, 1876. ss. 213, ff.

The explanation of the conception of right in the sub-

jective sense, of right-power, is the most difficult

and controverted question in the study of legal rela-
tions.
The influence of legal rules over the conditions for real-
ization of our interests is so varied and these different
forms of influence interpenetrate so closely that it

is very difficult to proceed to a special examination

of each of them and to separate with clearness the

"right-power" from other consequences which the legal

rule draws with it into the sphere of the realization of
our interests.
Legal rules first of all forbid the use of certain means
for realizing human interests and so make a distinction
between what is permitted by the law and what is for-

bidden by it.
The prohibition limits the possibility of actual realiza-
tion of an interest, restricts it. Permission, on the other
hand, brings no change in the conditions of the realiza-
tion of an interest. What is not forbidden may within
the limits of possibility be done. Where the law does
not forbid the doing of a thing, only the lack of material
means serves to prevent its accomplishment under this
permission.
 OBJECTIVE AND SUBJECTIVE 209

It is permitted to all the world to ride in a carriage,

but he only can do it who has the necessary means. The
legal rule here neither creates nor guarantees the possi-
bility, but authorizes it as it in fact exists.
The influence of legal rules over the conditions for the
realization of human interests is not limited solely to
negative action. It is shown also under a positive form,
and may have as a result an extension of the actual pos-
sibility.
In forbidding the employment of certain means for the
realization of human interests, it enlarges by this

very fact the possibility of the realization of other

interests. The other interest may reach its realization
not only within the limits of actual possibility but its
owner can demand also that the prohibition in the law
be observed and the obligation imposed, of not doing
some particular act, obeyed. In this case the legal rule
adds a new force and increases the favored person's
power for the realization of his interests. It is this
direct and
positive influence of legal rules, this in-
fluence which confers an enlarged possibility of realiza-
tion, which we call "subjective right" or "right-power."
In other terms, this right is a possibility of the realiza-
tion of an interest to which corresponds a legal obliga-
tion.

By this fact, that the law creates a corresponding obli-

gation, it distinguished from a simple permission.

is

When one has a right to anything, all is permitted to

him, but he has no right over all which is permitted, but
only over the things guaranteed by the creation of a cor-
responding obligation. These rights can exist only be-
tween individuals and not in our relations to the phe-
nomena of the outer world.
We must distinguish, then, the simple permission to do
something which is only an absence of restrictions, from
the right created by the increased possibility of accom-
210 THEORY OP LAW
plishment resulting from the extension of a corresponding
capacity.
The influence of the legal rule can also take another
form, a form which holds the mean at the same time be-
tween the simple absence of interdiction and the creation
of a new right. Human interests are, in general, so
closely bound together that any change produced in the
conditions for the realization of one of them brings al-
ways some consequences for other interests which are
bound up with it more or less complexly.
So the creation by a legal rule of a duty to guarantee
the realization of any interest brings always consequences
as to the realization of other connected interests. So,
for example, the creation of a higher tariff upon imports
brings advantages, not only to the producers of the com-
modity in the interior of the country, but also to
smugglers. The obligation on the proprietor's part, as
the result of a contract with his tenant, to maintain a
stairway to the rented story, and cover it with a carpet,
gives to the tenants on the lower stories the possibility of
using each.
But neither the smuggler nor the tenant have rights
because of the advantages which they draw from the ex-
isting legal obligation. They can make use of it only
under the circumstances of fact which the contract points
out. If the circumstances change and they can no longer
use these advantages, they have no right to ask of any-
body the re-establishment of the former state of things,
so as to use the carpet or to draw greater profits from
smuggling. The person, on the other hand, who has a
right, if circumstances intervene which interfere with its
exercise, can demand its restoration and this by virtue of
a legal rule.
We should, then, distinguish right from mere power,
as a possibility to which directly corresponds a legal ob-
ligation, as distinguished from the possibility which we
 OBJECTIVE AND SUBJECTIVE 211

have of using accidental consequences of others' rights

for the realization of our interests. The action of legal
rules here exhibited is called by Ihering reflex action
of law. The
obligation corresponding to a right can
be imposed upon all those whose situation would lead
to resistance to its use. In this case the subject of
the obligation is not determined by his personal char-
acter, but by an objective character, from the op-
position which arises as a result of the use of the given
thing.
The rights to which such an obligation, which is com-
mon to all, corresponds are called rights over things.
They are called also rights against all, or again, real
rights. Opposed to them are rights against persons.
The obligation corresponding to these last rests only upon
a determinate individual or individuals. It is only by
connection with this obligation that rights as against per-
sons can be realized.
The right of property might serve as an example of
the "real right" (in rem). The owner of the thing can
require of everybody that he do not stand in the way of
the owner's right of property. As an example of rights
against persons, in personam may be cited in hiring for
service.

Every right supposes, necessarily, a corresponding ob-

ligation. If the obligation does not exist, there will be

only a permission and not a "right." But an obligation

may sometimes exist without a corresponding right.
This happens when the interest which constitutes the
subject-matter of the corresponding right arises subse-
quently to it or is temporarily suspended. Thus the ob-
ligation not to assail the right of an unborn child corre-
sponds to no right, since the foetus is not yet a subject
of right. The obligation is here created in expectation
and by way of protection of the life of the infant to be

born.
212 THEORY OF LAW
In the same way when a bill of exchange is lost and is

temporarily out of possession of anybody, the obligation

of the acceptor has not for the time being any cor-
responding right. The obligation meanwhile does not
disappear on this account, because the instrument
may be found by some person and this person acquire
the rights given by the bill of exchange. The ac-
tion in such a case Ihering calls passive action of
law.
We have denned subjective right (right-power, droit-

pouvoir, pravomochia) as the possibility of the realization

of an interest to which corresponds directly an obli-

gation. The definition assumes the formal and mate-

rialpoint of view of legal right. On the external and
formal side this right is a claim (Rechtsanspruch] of
an individual for the performance of the obligation
by the one subject to it. On the internal and mate-
rial side it is the possibility of the realization of
an interest, and as this realization supposes always the
use of some natural forces the "matter" of the
legal right in general, the use of such forces.
is, Their
use supposes only the presence of needs. The asser-
tion of a claim supposes necessarily a conscious
will. Our will can be set in movement not only
to satisfy our personal needs, but also those of
others.
Mancan act in the interest of another, but the use he
makes is inseparable from the need which he
of goods
has of them. The claim which he has for the perform-
ance of an obligation, guaranteeing the satisfaction of
his needs, can be realized by other persons. This clearly

happens when the subject who has the need has no con-
scious will or not enough. To guarantee the realization
of his interests it is, then, necessary that there be the
will of another person who directs him. Guardians act
thus for the demented and for minors.
 OBJECTIVE AND SUBJECTIVE 213

The same effect is reproduced with a view to con-

venience when a regulation of interests common to a
whole group of individuals is attempted. Instead of all
the wills acting together in the common interest, one of
these wills acts for the whole, and so arises what we call
the legal person. Meanwhile, even when such a distinc-
tion is under consideration as that between the subjects
of a will, serving a given interest, and that interest itself,
one ought to separate the bearer of the interest, the bene-
ficiary, from the bearer of the will, the director. When
the will acts for the advantage of another there results,
not a right, but an obligation. He for whose advantage
the right exists which produces a legal rule is not always
the bearer of the right. Sometimes, owing to the reflex
action of law, he enjoys the advantage of a right which
he could not have independently. He would become the
subject of a right only if the possibility of the use of it

is guaranteed to him by a corresponding title, even if

1
that title is by another's voluntary action.
realized
Most jurists, on the contrary, in defining the notion
of the subject of a right, attach importance only to the

right, or to the claim, or rather, to its employment, and

they reach in this way some radically false conse-
quences.
It is thus that we must
explain Bekker's paradoxical
doctrine, System I, s. to him, the owner
56.
According
of the right over given goods is the party whose bills,
drawn against them, are guaranteed by these goods; as
if it were possible to decide what bills are secured by

the goods if one does not know to whom the goods

belong.

1
It is in this precise way that Bernatzik, Kritische Studien uber Begriff
fur juristischen Person (Archiv fur off. R. B. V., 1890. s. 223) defines the
"
subject of a right. Rechtssubjekt ist der Trager eines jeden menschlichen
Zweckes, den die herrschende Rechtsordnung als Selbstzweck dadurch aner-
kennt, dass sie dem zu seiner Realisirung erfordlichen Willen rechtliche Kraft
verleiht."
214 THEORY OF LAW
The "matter," the content, of the right over things,
we have said, is the employment of those things by the
bearer of the right. Such is the general definition of the
matter of a but the usage of the right may be ex-
right,
tremely various. It may be, first, a simple use with no
necessity of excluding others from the use of the same
object nor the possibility of varying the means of such
usage. This use consists in the right to employ a thing
in common with other persons and conformably to its

predetermined organization. Such a usage is a funda-

mental element of the matter of an obligation in this
sense, that absolutely indispensable to the exercise
it is

of any right; but, it is the most restricted form of a

right. The use which each of us makes of public roads is
an example of such a right.
There is for every right not only a fundamental ele-
ment like this usage, but a natural element which de-
pends upon the very nature of our needs and not upon
the complexity of social relations. Simple usage serves
for the immediate satisfaction of human needs, so only
physical persons can make use of things. Legal persons
cannot of themselves, and without an intermediary, make
use of objects.
A second fundamental element of the matter of a right
is possession. It consists in the possibility of exclud-

ing other persons from the usage of the object over

which we have rights. For example, the lessor of
an immovable thing cannot only use that thing to sat-
isfy his needs, but he has, besides, the right of exclud-
ing all other persons from its use, even when he is not
employing it.

From nature, then, possession is a condition which

its

facilitatesand guarantees the use of goods, but posses-

sion has at the same time a more independent scope. It
augments use, enlarges, so to speak, its natural limits.
Man has the use of goods which he employs to satisfy
 OBJECTIVE AND SUBJECTIVE 215

personal wants. Possession gives him the added possi-

bility of exploiting for his own profit the needs of others.
If a man has the right by possession to prevent others
from making use of the object, he has also the right to
authorize its usage under certain conditions, notably
under the form of compensation. We see appear thus
the advantage of acquiring in this way possession of
things of which we have no immediate need, but from
which we may draw in the meanwhile a profit by letting
them to others.
The third element in the content of a right is that of
disposing of the object, the jus disponendi. Ihering de-
changing or modifying the manner
fines it as the right of
of usingthe object. Neither usage nor possession
quite embraces this power of disposition of the ob-
ject. The possessor of an object ought to keep un-
changed its original organization and purpose. The
lessor of a house, for example, can neither remodel nor

destroy it.

Theright of disposing of an object is made up of three

different elements. It includes, first, the right of mod-

ifying the usage without destroying the object and

without turning it over to another person. This is the
jus dbutendi. It includes also the right to transmit the

object to another person, the jus alienandi, for this is one

way of using the object. Finally, the third element is
the right of destroying the object, of annihilating it.
This is the jus disponendi de substantia. This third ele-
ment exists only if the right of usage is applied to
things.
216 THEORY OF LAW

Section 30. The Objects of Rights

REGELSBERGER. Pandekten I. s. 357.

BEKKER. System. I. s. 81.
KIERULF. Throne, I. s. 129.
IHERING. Zweck im Recht, I. s. 70.
GOLMSTEIN. The Principle of Identity, p. 49.

Since the "matter" of a right is the use of something

and there can be no such use if there is no object to
which it applies, every right has, therefore, an object.
Every actual right is over some particular thing. Some,
as Bekker for example, admit, however, the existence of
rights without objects. This comes from their taking
into consideration only a particular element of right,
the legal claim or title, but the "matter" of the
right is always the use guaranteed by this legal title, a
use which necessarily supposes an object. The object
of a right may be anything which serves as a means for
the realization of interests delimited by law. All our in-
terests are realized by the aid of some force, and so it

may be said in a general way that forces are the objects

of right.
The employment of the forces which serve as means
for the realization of our interests exhibits itself most fre-

quently in the way of acts. For this reason some jurists

have considered acts as the sole objects of right. It is,
however, a conception which we cannot admit, for, if we
examine it closely, it results in some consequences impos-
sible to sustain.
Take the case,where rights belong to persons
first,

who cannot legally perform any act, for example an

infant or a demented person. In such case it is an-
other person, a guardian, who does for them the acts

necessary for the preservation of their estates. Con-

 OBJECTIVE AND SUBJECTIVE 217

sequently in recognizing acts as the sole object of

right it would become necessary to admit that the object
of certain rights, rights of property for
example, may
vary according to their subject. If the holder of a

right of property carrying with it a certain obligation

is a person of full
capacity, the object of the right corre-
sponding to this obligation is certainly the personal
action of the owner, but if he is not a person of full ca-
pacity, the object of this same right is no longer his per-
sonal action, but only that of another, his guardian for
example.
We see that there are two altogether different objects
in the same right. If we do not consider the acts of the
guardian as the object of the right, then this right, as
long as it relates to one without legal capacity, is with-
out an object, for an infant at the breast can of himself
do nothing in the way of acts necessary for realizing the
use of the goods belonging to him.
The forces which are the objects of rights are exceed-
ingly various, both in their own nature and according to
the persons who are the subjects of such right. In the
legal point of view the distinction of the nature of the
forces has no importance, but the connection between the
forces and the bearer of the right has some effect over the
character even of the right. The objects of the right are
classified according to this connection.
Wedistinguish four categories of objects: first, the per-
sonal forces of the subject; second, the forces of nature;
third, the powers of some other person; fourth, the forces
of society.
Each of these objects has a different connection with
the subject of the right. Personal forces are the inalien-
able property of the bearer of the right. They are cre-
ated at the time of his birth, and their division among
men is the work of nature herself. The law does not give
to man the use of these forces, but limits and protects
218 THEORY OP LAW
them. The powers of other men are not created for
our use and bestowed upon us by nature herself, for
our profit, but to obtain their use we must employ
the means set at our disposal by the law. These forces,
being intimately connected with human personality, this
very connection makes necessary a limitation of each
one's rights over their object, for if the right was un-
limited by hypothesis, it might result in a right not
only over another man's power, but over his very
person.
Man can make use of nature's forces so far as they are
exhibited in things. These things are not equally dis-
tributed among men by nature; they possess no direct
connection with the human person. This is why legal
rules not only fix the usage of these things, but also fix
the principles of their distribution amongst men. These
rights over things are the most complete and absolute of
all rights.

The forces of society belong to no individual, but to

society as a whole and present this characteristic pecu-
liarity, that each individual as a member of society is

subject necessarily to the action of its forces.

The use of personal powers, physical and moral, is the
prime necessary condition for the realization of our inter-
ests,but this usage may at the very start have for conse-
quence the preventing of the realization of the interests
of another. It is necessary, then, to apply certain re-
strictions to the use of these personal powers, and, as
this usage is manifested always by some act of the man,
these restrictions cannot be other than restrictions upon
the liberty of human actions.
In the second place, the activity of other men may also
cause hindrances to the use of our own personal powers.
There is need, then, of guaranteeingby legal rules the
use of personal power, in imposing upon others a corre-
sponding obligation.
 OBJECTIVE AND SUBJECTIVE 219

According to a rule common to all juridical restric-

tions, it isonly those actions which bring about an ex-
ternal realization of our thoughts and our desires, which
produce changes in the external environment, that are
subjected to such restrictions, for only such actions can
bring about any hindrance to the realization of other
men's interests. An action amounting only to a mani-
festation of thought without tending towards its realiza-
tion would not be subjected to such a restriction. The
simple manifestation of the intention to commit a crime
is not punishable, excepting always the case where the

form of manifestation is itself an assault upon the inter-

ests of
others. Thus, it is forbidden to express an
opinion as to another having an offensive form. It is for-
bidden, also, to show under the form of menace a desire
to do that which the law forbids. The manifestation of
ideas by the press or the public tribune is subjected to
special regulation, since in these particular cases the mani-
festation takes a very general scope.
The reader cannot know in advance what is the ques-
tion treated in a pamphlet or a newspaper article, and
after reading it he cannot rid himself of the impression
which such reading has produced. It is the same with
what has taken place in the casual passer's hearing of a
public discourse.
The conception of liberty of thought is in a general
a
way relatively recent one. In the ancient law, on the

contrary, even the simple manifestation of the thought

was sought to be controlled. In former times it was be-
lieved therewas possibility of doing harm by the simple
thought, by the evil eye, as they said, or at least by
words to which were attributed some of the force of acts
designed to put them into execution.
The employment of our own personal forces is, then,
the pro-
guaranteed. This guarantee has for its purpose
as well as that
tecting of our life, our health, that of body
220 THEORY OF LAW
of mind. It happens often that individual powers do
not suffice for the realization of an interest and that
the collaboration of a number of individuals is neces-
sary, and thus arise rights over the forces of other men.
The modern idea of right does not, however, admit the
existence of rights over the very person of a man.
It admits only the existence of rights to his services,
and even these rights have very frequently no absolute
character.
If he who employed to do an act, to perform some
is

particular service, refuses to do it, he may not be con-

strained. These rights have a special character. The
employee is permitted either to perform the act or to in-
demnify by a sum of money his employer. Only the
right of the state over the services due from its citizens
has an absolute character, such as the obligation to mili-
tary service.
As to different parts of the human body, distinction
must be made between those which are separated from
it and those not so. Thus, the hair once cut, a tooth
once extracted, may be compared to any other object be-
cause this hair or this tooth have no force, no means of
action by themselves, once they are separated from the
man's body.
On the other hand, the parts which are not detached
cannot be subject to legal rights of others, can be sub-
jected to no power of another, for no rights can be held
over the human body or its members. We cannot ac-
quire a right of property in another's hair not yet cut
off, or in another's teeth still undetached. No right can
be acquired to the use of the body of another individual,
of a monster, a dwarf or a giant for example, with a
view of exhibition. Rights can be acquired only over
the action of the man, the promise to use his body or
some parts of it, but if he refuses this usage, he cannot
be constrained to it; he can only be required to
 OBJECTIVE AND SUBJECTIVE 221

find an indemnity for damages resulting from his

refusal.
Besides these individual powers, the general human
ones, the powers of nature serve also as means for the
realization of human interests. The action of natural
forces appears always in some form of physical phe-
nomena and man can utilize this action for the realiza-
tion of his interests only if he possesses the matter show-
ing these phenomena. The different parts of matter are
things; it is these things and not the natural forces which
are the direct objects of right.
All things cannot be objects of right, but those only
can fill this role which are subject to human influence.
For this reason the stars, the firmament, cannot be ob-
jects of right. There are some things which can be
objects of right only in connection with particular per-
sons. There are others whose use by all is authorized by
nature, like air, running water, the high sea. These are
res communes omnium.
Certain things which by their nature are capable of be-

coming objects of private possession are, however, not

left by positive legislation in the domain of private
things. These are public things, the res publics qua
extra commercium sunt, for example, roads and highways.

Physically, they are susceptible to private ownership,

but such a situation is regarded as incompatible with
their design. Among these public things we should
distinguish those which are outside of the private
domain only
accidentally. These are such as be-

long to nobody, res nullius qua extra patrimonium nos-

trum sunt.
In the same thing may appear the action of not merely
one, but of several forces. The law may permit to a
man the use of all the powers in a given thing, or only of
a part of its manifestations. In the first case, as is read-

seen, the power of the person over the thing is at

ily
222 THEORY OF LAW
its fullest extent. It is the complete right of property,
itsdominium.
The owner may employ all the powers of a thing which

belongs to him, at least so far as these powers have not

been excluded from the permitted use of the thing.
On the contrary, a person who has only the right of en-
joyment, who has not over the thing the right of
property, can use the thing only within the limits which
this right of usage confers upon him. The same thing,
therefore, may be at the same time susceptible of a
right of ownership and of other less complete rights
than right of usage, rights of enjoyment, jura in
this,
re aliena.
To the distinctions between the different physical
properties of things it is necessary to add the different
legal properties of those things. In legal language, for
example, a great differenceis established between mov-

able goods and immovable goods.

Immovable goods are the soil and everything which is
completely adherent to it, as trees and houses. All
others are movable goods. Here is a distinction which
has serious consequences in acts of division, for example,
and in the guarantees furnished by
in rules of inheritance
law.
The thing, being a portion of matter, is in its turn di-
vided into portions. This notion of portions of matter
has only a very relative force. The part can be consid-
ered at the same time as dependent upon the whole ob-
ject, or as itself forming a distinct whole. One readily
acquires an idea of things composed of parts and forming
a whole, universitas rerum, which, formed out of many
things, serves, however, only for the realization of a sin-
gle interest. Legally, this whole is considered as one
single thing, as in the case of shops and stores and their
merchandise, flocks, etc. The connection of these differ-
ent things with each other is sometimes a relation of
 OBJECTIVE AND SUBJECTIVE 223

subordination, and it results that one thing is an attri-

bute of another; the door, for example, may be consid-
ered as an attribute of the house. We
call attributes cer-
tain things without which the principal thing could not
answer its purpose, the design for which it was
organ-
ized; as for example, a carriage deprived of its wheels.
The attributes are always subject to the same disposition
as the principal object.
The final category of objects of right which we have
enumerated is that formed by the forces of society. We
must distinguish them from the powers of the indi-
vidual. In reality this force of society is not, as one
might suppose, the sum of the forces of each of the
members who compose it; it is a much greater force
than that. The explanation is found in the organiza-
tion of the society, which unites the individual forces
in the habit of each one's submitting himself to the

requirements of the social life and in the moral author-

ity which every society has with regard to its own

members.
The relations between men have multiple forms. The
smaller society is subject to the greater and the weaker
of two powers can be very often regarded as a force de-
pendent upon the greater.
Finally, all human associations are reducible to one, to
the greater society par excellence, to humanity. Human-
ity embraces all societies and absorbs them into it-
self. But all societies have not an evident external
influence. Only those which are organized possess this.
The force of those societies which act directly upon each
of their members can be the object of right. The most
important of these societies are the church, the state,
and the family.
224 THEORY OF LAW

Section 31. Juridical Facts

IHERING. Geist, III. 53.

ZITELMANN. Irrthum und Rechtsgeschaft. s. 200 ff.
THON. Rechtsnorm und subjektives Recht. ss. 71 S. ss.

325 ff.

Juridical relations are not unchangeable. They arise,

evolve, and disappear. On what do these different

changes depend?
Every legal relation supposes necessarily a right and
an obligation resulting from the application of legal rules.
We have already seen that this application depends upon
certain facts fixed generally by the hypothesis under con-
sideration.

Legal relations, then, depend upon these "juridical

facts." Generally, indeed, the application of a legal rule
gives birth to several of them and not to one. To ac-

quire, for example, a right to property by possession

there is necessary, first, the intention of holding the thing
by proprietary title; second, a given duration of such
possession; third, an uninterrupted possession; and fourth,
an uncontested possession. It is only when these four
conditions combine that possession gives birth to a right
of property.
A
combination of all the circumstances necessary for
the application of a legal rule may be called the "content
of the suppositions of fact," in German, Thatbestaiid.
The different conditions which form the suppositions of
fact may pertain either to external facts or to the mind
and will of an individual. In the last supposition they
can exist only so far as they are relations between human
actions, for it is only in such actions that the human will
is manifest.
It is necessary, then, to distinguish between the "ob-
 OBJECTIVE AND SUBJECTIVE 225

jective" and the ''subjective" content of suppositions of

fact. So, for a will to be valid there are necessary be-
sides certain conditions of outward form,
writing, pres-
ence of a certain number of witnesses, etc., certain sub-
jective conditions on the part of the testator, sound mind,
sufficient memory, freedom, etc. The combination of
conditions of form, external conditions, constitutes the
objective side of the testament. The moral conditions of
the validity of the testament form, on the other hand, its
subjective side.
The application of the legal rule may depend merely
upon objective conditions. This happens when the jurid-
ical facts are not human actions. An inheritance, for ex-
ample, is declared open by the simple fact of the death
of the former holder, and is opened for the
advantage of
all the heirs by the simple fact of their existence.

There is no subjective condition. The law does not in-

terfere with regard to facts which embrace only sub-

jective conditions. Indeed, the law has only to do with

ideas which have already received their application.
These alone have legal importance. We easily recog-
nize, then, in every application of law two elements,
the subjective one, which is the thought, and the ob-
jective one, which is the external manifestation of that
thought.
Here, then, a primary distinction to be made among
is

which are exclusively objective, and

juridical facts; facts
actions which are essentially at the same time objective
and subjective.
There is commonly a harmony between juridical facts
and the law. It may happen, however, that certain of
these facts are opposed to it, and we have, then, facts
which are legal and others which are illegal. Hence, a
new distinction between legal facts conformable to law,
and others opposed to it.

To look a little closer at the distinctions to be made

226 THEORY OF LAW
between facts and acts and between legal and illegal facts
we may class them in four categories: first, legal facts;
second, legal acts; third, illegal facts; and fourth, illegal
acts. Such a classification presents, however, some in-
conveniences.
It is the truth that certain of the legal acts are juridi-
cally considered as facts because their objective side is of
little importance. These acts, whether conscious or not,
have always an absolutely identical legal weight; for ex-
ample, the destruction of a thing does away with all right
over it; whether this destruction was voluntary or not,
the result always the same.
is

So, actions whose legal consequences are not affected

by their subjective side ought to be classed with facts
and are most commonly called so, juridical facts properly
so called. Illegal acts alone form a distinct group, whose
juridical importance depends specially upon the inten-
tion with which they are performed. It is necessary,

moreover, to observe that illegal acts have juridical im-

portance only so far as they give rise to a durable illegal
situation, a situation requiring the re-establishment of a
violated right. For the rest, usually instead of saying
illegal facts we say illegal condition, and more commonly
designate illegal acts under the name of violations of

right.
We distinguish, then, four categories among juridical
facts: first, juridical facts, properly so called; second,
juridical acts; third, illegal states or conditions; fourth,
violations of right. Juridical facts, properly so called,
comprise all those which embrace nothing contrary to
legal rules, nothing anti-legal, and whose accomplish-
ment does not bring with it any creation of new rights

or, rather, any change or extinction of rights or obliga-

tions already existing. Rights and obligations never
have importance except as they serve to delimit
the contending interests; it is only facts bringing for-
 OBJECTIVE AND SUBJECTIVE 227

ward new interests which will be determined by new

laws. So,on the birth within the state's territory of a
man whose father was a citizen of that state, it is pre-
sumed that the individual takes the nationality of the
country of his birth.
The fact of not using a right for a long while gener-
ally indicates that an interest formerly in existence exists
no longer, and that in disappearing it has taken with it
the right. All extinctive prescriptions are established
upon this idea.
In other cases, the juridical fact constitutes the cause
which puts an end to the existence of an interest or
modifies it. Thus, a person's death deprives him of
all interest and all All interests in the mean-
right.
while are not bound up thus closely with specific facts.
We can even say that more frequently interests do not
present through facts specific indications of the birth,
the modification, or the extinction of a right. In these
cases the hypothesis of the rule does not contain its
index, and the application of the rule is subordinated
to the presence of certain interests. The work of adap-
tation of the rule to the interest is performed by those
of whom duty or their own personal interest requires
it. The interests, which call most frequently for the
performance of a juridical act, usually exhibit them-
selves in the specific act, especially when it has for its

purpose the maintenance of the existence of the interest.

These interests are difficult to recognize in fortuitous
acts and in those compelled by overwhelming force.
Consequently, the application of rules delimiting inter-
ests depends either upon external signs, which reveal
themselves readily, or upon special acts having its pur-
pose; that is to say, upon acts performed with a view
to bring about their application.
These juridical acts are of two kinds. If their accom-

plishment is left to private persons with an object simply

228 THEORY OF LAW
personal, they are contracts; in the Roman law, negotia
juris; if, on the contrary, their accomplishment depends

upon functionaries charged with this care by their duty

or their functions, they are orders, decrees, Verfugungen.
Both may be unilateral or bilateral. The first are those
which contain the manifestation of the will of but one
of the parties to the agreement; the second, those which
contain the manifestation of the will of two or of several
parties.
A unilateral contract relates only to the rights of the
executing parties because it is those rights alone which
such a contract can regulate. We cite as examples of
this category of contracts the testament and the con-

tracting of ourself for service. The unilateral order of

administration acting as authority can affect the rights
of individuals, can restrain or even suppress them.
A bilateral contract is one having for its base an agree-
ment of independent persons one with the other and
not connected by any bond of subordination. The bi-
lateral order, on the contrary, has not the same character.
Of the two wills forming it the one is the master and
the other the subject. The two wills are brought into
connection, the one in order to demand, to solicit, the
other to authorize, agree and ratify.
The performance of every contract, just as of every
order, requires certain relative conditions; some as to
the subject who shall perform the contract or the order,
others as to the form which the contract or order should
assume. The capacity of forming a contract we call

capacity to contract. Minors, the insane, those who

have lost their civil rights, do not possess this contrac-
tual capacity.
It is necessary also to indicate certain acts for which
there exist special restrictions and which require a special
capacity, the act if performed by an incapable individual
being void.
 OBJECTIVE AND SUBJECTIVE 229

Capacity to give authority to orders or decrees con-

competency. General competency is impossible,
stitutes
and the order performed outside of its assigned limits,
determined by the rules of administration, has no more
validity than the contract of an incapable.
For some juridical actions special forms have been es-
tablished. Sometimes these forms are not closely oblig-
atory and serve only to give greater force to the con-
tract or to establish the proof for the future of its due
execution. These forms are established not only with
a view to proof, corroboration, but sometimes such forms
are necessary attributes of the act itself. Without them
the act has no juridical value. It is considered as void
and as never having existed. These are necessary forms
to the act corpus negotii.
itself,
The written form of a bill of exchange may serve as
an example for forms of the first category. loan of A
money may without written proof; if the debtor
exist

acknowledges his duty there is no need of any writing.

As example of form which makes an integral part of the
act itself, that required for a purchase or sale of real
property may be cited. This sale or purchase must be
evidenced by writing, without which it is not recognized
as valid even when nobody contests its existence. With
regard to the orders of government or administration
this distinction applies also. Some forms are imposed
only with a view to convenience and their omission may
bring disciplinary penalties, but the order be none the
less valid. Other formalities, on the contrary, are abso-
lutely necessary that the order may be valid and obliga-
tory upon the citizens.
By juridical representation certain acts can be per-
formed by one person instead of another. The
represen-
tative performs the act in the name of his principal and
under the condition that all the juridical consequences
of the act shall belong to the party represented. Juridical
230 THEORY OF LAW
representation may be forced or voluntary. The repre-
sentation is said to be forced when it is on behalf of
persons who cannot themselves do legal acts, who, as
we have already stated, have no contractual capacity.
It is said to be voluntary when a perfectly capable person
instead of doing an act himself charges some other per-
son with doing it in his place.
The and the violation of right have
illegal situation
this in common, that both are in opposition to the legal
rule. They present always an important difference as
follows: The requirements of legal rules address them-
selves to the deliberate will of man. Law cannot in
fact control the actions, the unconscious forces of nature,
so only man's will can violate a right. Nothing which
is the work of other forces can amount to a violation

of right.
The unconscious forces of nature may meanwhile
cause a condition of things in open opposition to the
requirements of a legal rule. The wind, for example,
may displace an object and carry it over into another's
domain. We can class with these cases, those where the
man acts unconsciously, in an attack of insanity, for

example. In all these cases there is no violation of right ;

there only an illegal condition. The illegal condition

is

requires always the re-establishment of a disturbed right,

the restoration of a condition which existed before and
which conforms to the requirements of the legal rule.
This right exists always for the advantage of the one
whose right has been disturbed.
The violation of right brings, besides, other conse-
quences. It is a great danger indeed for a legal rule
that by non-compliance its authority is seriously assailed
and with it that of law in general. Hence, the necessity
of the sanction to avoid the recurrence of wrongful acts.
A conscious violation of law supposes always fault on
the part of the author of the wrong and requires an in-
 OBJECTIVE AND SUBJECTIVE 231

demnity. Finally, the author of the wrong may exhibit a

condition of mind which requires to be corrected.
Punishment inflicted on the author of the wrong
serves to realize three ends, to prevent the wrong; to
furnish indemnity by the delinquent to the injured
party; to correct the delinquent. But all violations of
law are not punishable. Only those violations which
involve features of a general interest ought to be pun-
ished; the others, those which comprise only an assault
upon rights of individuals,
upon rights of private inter-
est, require only an indemnity to repair the damage
caused.
Violations of law which result in punishment are called
crimes. To constitute a crime there must be a con-
scious, intended act violating the law, and one ought
to distinguish between premeditated crime, which is one
having for its purpose the violation of a right, and the
infraction committed by imprudence, which ought, how-
ever, to be punished also because it results in consequences

contrary to law.
 CHAPTER III

PUBLIC AND PRIVATE LAW

Section 32. Classification of Rights According to their
Matter

SAVIGNY. System I. s. 23.

STAHL. Die Philosophic des Rechts, II. s. 300.
AHRENS. Encyclopadie. s. 117.

Juridical relations are extremely various. The detailed

study of their groups constitutes the very science of
law.
The general study of law cannot do without a pro-
found examination of the fundamental peculiarities of
each group of special rights, and for this purpose a gen-
eral classification of juridical relations is necessary.
A fundamental division universally recognized is that
1
into public and private law. There are numerous dis-
cussions, however, as to the exact point of distinction
between them. The Romans placed it in the character
of the interests protected by law; the ensemble, the
totality, of public interests protected, constituted public
law, and that of private interests formed private law.
"Publicum jus est [Inst. Ulpian. II. 2, De Justitia et
quod ad statum rei Romance special, privatum, quod
Jure,]
ad singulorum utilitatem pertinet, sunt enim qu&dam
publice utilia qucedam privatim"
Down to our times this definition has found partisans.
Bruns (Holzendorff's Encyclopadie 3 Auf. s. 340) and
Neuner (Privatrechtsverhaltnisse, s. 1) have adopted it.

1
By the side of public and private law are recognized ecclesiastical (Walter),
international (Warnkonig), and social (Mohl, Rosier) law.
 OBJECTIVE AND SUBJECTIVE 233
It has been resisted, however, for a long time by a good
many jurists. This Roman definition does not define
anything at all. It does not delimit or determine in
any way the different regions of law. Interests cannot
be opposed to one another as being public or private.
They can exist nowhere except in the man, and every
general interest is nothing but a combination of in-
dividual interests. We can say in a certain sense that
the whole law is created for the protection of the in-
terests of individuals, that is to say, private interests.

Moreover, legal protection is only extended to those

interests of individuals which have a more or less gen-
eral scope, which relate, for example, to a whole group
of individuals, as physicians, or to a person whose in-
terest, like that of a monarch, by reason of his impor-
tant position, is of a general order. In this sense we
might say that the law protects only general interests.
We can distinguish again between public interests,
and divide them in their turn; but, without insisting

upon the altogether relative character which such a

distinction presents, it may be said that it does not
correspond with any actually existing. It cannot be
established, as a rule, that public law is concerned with
more general interests and private law with those which
are less so.
Faults committed in the course of a campaign by a
furnisher of supplies, faults which may lead to a fam-
ine in a whole army corps and bring about its defeat,
have a much more general interest than the election
of a member of some municipal council; and, mean-
while, in the first case, the market for supplies is under
the control of the civil law, and in the second, the nom-
ination and under that of
election of the functionary

public law. So again, the organization of a ministry

presents an interest incomparably less important
and
less general than the regulation of the conveyance of
234 THEORY OF LAW
real estate or of hiring for service, and yet in the first
case we are in the domain of public law and in the sec-
ond that of private law. The insufficiency of Ulpian's
definition, its lack of precision, has induced many at-
tempts to reach a more precise one.
We will examine first the classification proposed by
Savigny. His system, accepted by Stahl, might be
called the teleological system. It is a definition bor-
rowed partly from that of Ulpian, but distinguished from
it radically, however, by certain points.

Ulpian defined the law according to the interests which

it regulated. Savigny and Stahl, on the other hand,
distinguish legal relations according to their purpose.
In public law, according to Savigny, the state is the
purpose, the individual holds only a secondary place.
The contrary is the fact in the civil law. The individual
isthe end, and the state only a means.
Stahl says almost the same: "Certain legal relations
have as their end the satisfaction of individual needs;
others seek to establish a combination of men under a
single authority and to cause them to live in that unity."
This distinction between legal relations according to
their purpose has been quite recently developed by
Ihering in his work Das Zweck im Recht (Bd. I, 1877? s.
452). He indicates its real meaning, and distinguishes
the relations by their purpose into three classes, accord-
ing as the beneficiary in view is the individual, society,
or the state.
But this distinction is not for Ihering a fundamental
one in law, and he shows that each juridical institution
may have as its beneficiary the individual, the society,
or the state. For example, property can be private,
social or public. This distinction, then, cannot be a fun-
damental one in a legal system. We seek, in fact, a clas-
sification of institutions, and not a classification of forms
which the same institution may take in succession.
 OBJECTIVE AND SUBJECTIVE 235

Savigny and Stahl have tried in their classification to

group together two schemes of classification, up to that
time distinct, the one established according to the in-
terest regulated by the law, and the other
according to
the position of the subject, regarded sometimes as an
independent individual, sometimes as a member of a
social organization. Ahrens has equally tried the same
combination of these different processes of classification,
and opposes the immediate purpose to the final one.
The final end of all law is the human personality, but
the human personality can be at the same time the im-
mediate end of a juridical relation, and this immediate
end is a relation of private law. If it is, on the other
hand, society or the state which is the immediate object
of the legal relation, we find ourselves then in the
pres-
ence of a relation of public law.
So, then, the purpose, the final function of pub-
lic and private legal relations, is the same. It is

only the means employed for the accomplishment

of this purpose, for its realization, which is varied.
In private law this purpose is realized by the in-
dividual determination; in public, by the collective act
of the entire society.
Ahrens' classification is insufficient. His theory, like
Stahl's as well as Savigny's, does not explain how it

happens that the state is so frequently the subject of

relations of a purely civil and private character.
When the state buys, sells, exchanges, or hires, it is
itselfthe object and not the means (Savigny) the fur- ;

nishing of boots for the army does not have for its end,
evidently, the satisfaction of an individual (Stahl) ;
and
the end sought is not attained by individual volition,
but by the activity of the entire state, which pays the
expense of furnishing them (Ahrens).
Finally, Ahrens seems to forget that juridical pro-
tection, whatever be the interest which it concerns,
236 THEORY OF LAW
supposes the collaboration of the whole society and not
the mere determination of an individual.
These unfortunate attempts to adapt the definition
left us by the Romans have urged several modern jur-
ists, especially Russians, to wholly abandon the Roman
conception. Some have sought the basis for the dis-
tinction between public and private law in the dis-
tinction of interests according as they have or do not
have a patrimonial character. Others have seen espe-
cially in private law a right of disposition. The parti-
sans of the opinion are Mayer, Oumov, and espe-
first

cially Kaveline; the second opinion has been maintained

by Zitovich.
1
Kaveline thinks that the distinction ordinarily made
between public law and private law rests upon no theo-
retical foundation. Private law comprehends some parts
totally different from each other, and this can be ex-
plained only because it is transmitted to us thus com-

bined by the Romans. The one of these different parts

presenting a certain degree of unity, having some rules
from pretty much the same source, has been combined
under the name of civil law, that is, the jus civile of
the Romans, a term which they gave to their whole
law.
In our day, in Russia particularly, there is no reason
to keep this group intact and apply to it the same name
as in the ancient classification, since today civil rela-
tions are no longer determined by the Roman law.
Instead of this classification, with its at present purely
historic importance, Kaveline proposes a classification
which he thinks more rational and at the same time
more simple. His classification has for its base the
distinction which he establishes between patrimonial
rights and all other rights. The modern civil law, says
i"What the Civil Law?" 1864. "What isPrivate Law's Place in the System
of Law in General?" (Journal of Civil and Penal Law, 1880.)
 OBJECTIVE AND SUBJECTIVE 237

he, is the mass of laws affecting our patrimony. It

is necessary to exclude from it all the legal relations

which have no patrimonial character, as for example,

the family relations.
The civil law thus understood according to Kaveline
ought to embrace the totality of relations affecting any
title to the patrimony. A good many legal relations
which are classed nowadays in the public law ought, he
thinks, to be put into the private law, as for example
the laws as to taxes, penalties, and the privileges and
compensations of functionaries.
Such a classification has in its favor an apparent sim-
plicity and clearness. A careful examination shows us,
however, that it is scarcely admissible. It is not pos-
sible to conclude with Kaveline that the modern con-

ception of law is due simply to chance, that it rests

upon no rational basis. Even if it were true, as Kave-
line affirms, that the civil law in its actual condition
offers only an agglomeration of parts of law more or
less distinct, combined together by the Roman law, this
agglomeration, we are convinced, is not the work of
chance.
It is because these different laws continued always
to answer to the requirements of social life that they
have been preserved, and it is only that which is in-
dispensable in all legislation which has been transmitted
to us by the Roman law.
The private civil law is precisely that part of it which
exhibits the greatest unity. It is in the civil law that
the least trace is left of the vanished years and the nu-
merous differences between races. This suffices to require
us to make of the rules which constitute it, and of the
relations governs, a group apart, a distinct
which it

category. Moreover, as Mouromtzev has already shown,

it is wrong to pretend that the actual civil law is iden-

tical with that which we have received from the Romans.

238 THEORY OF LAW
Moreover, it is only starting with the XVI century that
the bringing together of the jus privatum and the jus
gentium has been attempted.
There are institutions, the bill of exchange, for ex-
ample, which were quite unknown to the Roman law.
It is not, then, precisely correct to say that it is merely
because it is derived from a common source that the
civil and private law has been classified as it actually is.

We should observe, besides, that the simplicity and

clearness in Kaveline's classification are only apparent.
In reality to separate patrimonial rights from rights
which are not so, is no easy thing. All rights, per-
sonal ones as well as others, have an economic scope
and touch in some sort material interests affecting our
patrimony. Kaveline places in the private civil law
some considered till that time as relations
relations,
of public law; for example, the penalties inflicted by
law. But who does not see that other penalties, for
example that of deportation, might also have an eco-
nomic effect bearing upon our patrimony and some-
times do have this, as their chief scope?
Even if we classify in the private civil law some re-
lations like those existing between the state and its
functionaries 1 from the point of view of their powers,
2
or those between the state and the citizens from the
point of view of the military system, and of taxes, there
is no reason for not also placing in the private civil law

some relations which are incontestably relations of pub-

lic law; for example, the rights resulting from the organ-

ization of the government, and from the organization

of political representation as established in the country.
Do not these relations offer an economic side at the
point of view, for example, of indemnities to which
deputies and senators are entitled, or if the function of
1
Rights over Goods, p. 326.
Ibidem, p. 228.
 OBJECTIVE AND SUBJECTIVE 239

these representatives of the people is gratuitous, at the

point of view of the expenses which are caused neces-
sarily in the performance of their duty?
If we connect withprivate civil law the different re-
lations which control the sustenance of the poor, it is
necessary to place there also the combination of disposi-
tions with regard to gratuitous primary instructions, and
so on. We shall come by this method easily to place
in private civil law all the social relations.
The classification of Kaveline, besides, lacks preci-
sion in not defining the "material value" of patrimo-
nial right,which is the juridical relation which serves
as the basis of this whole classification. What does he
mean by it? He gives evidently to these words the
meaning which the economists attribute to them, but
these latter employ the words in two essentially differ-
ent meanings, value in use, and value in exchange.
To the idea of value in use one attaches the whole
idea of the importance of that which serves in one
fashion or another for the satisfaction of man's needs.
Wagner, for example, considers the political organiza-
tion as susceptible of being measured by its economic
value. Evidently a classification based upon value in
use cannot be applied to legal relations. Every right,
in so far as it serves as a means for the realization of
human interests, can be considered as having value in
this sense.
The conception of value in exchange is more limited.
To defineit, savants themselves appeal to the idea of

law. Everything which may be the object of a private

right has value in exchange. When slavery existed, man
himself had such value. When offices and employments
were subjects of commerce under the system of selling
offices, these charges and employments had also their
value in exchange. If land by any chance became in-
capable of private ownership, on that day it would no
240 THEORY OF LAW
longer have value in exchange. The distinction between
public and private law cannot, then, rest upon the con-
ception of value in exchange since this value depends
upon that very distinction.
Kaveline's system offers serious inconveniences for the
study of law. It leads necessarily to arbitrary distinc-
tions. It results in separations between those things
which constitute naturally part of the same branch of
law. It is in this way that he goes on to separate the

recovery of a ruler's taxes from the imposition of them;

to treat in two different parts of the law the privileges
assigned to functionaries, and the theory as to the legal
situation of such functionaries in the state.
It is impos-

sible,meanwhile, to give a clear explanation of this

theory without speaking of the privileges of function-
aries and their rights and duties.
Finally, let us observe that in his definition Kaveline
gives us no idea of what the public law is, out of what
materials he composes it, or what are its relations with
private law.
1
Zitovich thinks also to find the fundamental distinc-
tion between public and private law in the economic
nature of these rights, but he reaches this result by a
quite different route from that followed by Kaveline.
According to him private, or the ensemble
civil law, is

of institutions, of rules of positive right, which fix the

distribution of economic wealth at a given time or among
a given people, or, more briefly, the civil law is the law
of distribution (Verkehrsrecht) It must be observed that
.

his definition does not exclude from the civil law thus
understood the relations of family rights. These rela-
tions,he says, are in reality rights of distribution. They
indicate in a precise fashion the causes which lead to
the distribution of wealth, the principal of these causes
being inheritance. Finally, the individual who very often
Course in Russian Civil Law, I. 1878. pp. 4~7-
 OBJECTIVE AND SUBJECTIVE 241

is at the same time the author and the subject

of the
division regarded under different aspects. His situa-
is

tion as a member of a family may have a great im-

portance. Finally, the subdivision, here under considera-
tion, is not exactly an economic distribution; it is a
distribution which has at its base the moral unity, the
internal solidarity, of each family.
We may, once for all, observe that what Zitovich says
in speaking of the family applies equally to the state.
The relations of the state with the citizens give rise, also,
to distribution. The state allots privileges, distributes
gratifications, makes loans, pays debts. In all these
operations the individual appears as the author and the
subject of distribution, and it is of importance for the
law to consider him under this relation and observe
what his situation is, not now of a family,
as a member
but as a member of the state. The distinctions between
classes have had great importance in this point of view.
All the wealth which the state accumulates by means
of taxes which are imposed upon the nation, and also

by means of revenues derived from domainal goods,

all this wealth is not distributed according to the laws

of economic distribution, but rather according to politi-

cal reasons In a general way we can say that the
organization of the state has as extensive an influence
over the distribution of wealth as has that of the

family.
Reasoning in this fashion, Zitovich ought to come to
the conclusion that juridical relations, being rela-
all

tions of distribution, should be placed in the private

law. Public law, for him, also, results necessarily in the
deplacement of wealth in the economic order, and then
can we assert that there is in the civil law nothing but
relations of distribution? Evidently not. Family rights,
for example, comprehend quite a different thing and
contain dispositions which do not all affect the patri-
242 THEORY OF LAW
mony. On the contrary, in the public law certain
branches, like financial legislation, deal exclusively with
relations of economic distribution.
We see, then, that all the attempts to establish dis-
tinctions between private and public law have remained
unfruitful. The distinctions among interests which con-
stitute the matter of juridical relations do not suffice as
a basis for the classification of those juridical relations
Since juridical norms determine, not the interests
themselves, but only the different limits which exist be-
tween them, the forms which they affect, let us seek,
then, to distinguish the juridical relations, not in accor-
dance with those interests which are the same in all the
phenomena of social life, but in accordance with the
manner in which those interests are delimited, accord-
ing to their form.
This impossibility, which we have just recognized, of
finding in the matter of juridical relations the basis for
a distinction between public and private law is further
confirmed by the examples furnished by the history of
law, by the different forms in which relations absolutely
identical, so far as their matter is concerned, have been
clothed.
In the middle ages, for example, certain powers, cer-
tain prerogatives of public power, were only accessory
rights attached to the possession of the soil.
 OBJECTIVE AND SUBJECTIVE 243

Section 33. Formal Classifications

KANT. Metaphysische Anfangsgrunde der Rechtslehre, 1797. s.

161 ff.

PUCHTA. Vorlesungen liber das heutige rom. Recht. I. s.

75 ff.

JELLINEK. System der offentlichen subjektiven Rechten, 1892.

ss. 40-65.
THON. Rechtsnorm und subjektives Recht. ss. 108-146.
MOUROMTZEV. Definition and fundamental divisions of law, pp.
185-217.

The insufficiency of classifications founded upon the

matter and content of the juridical relations has led
savants to seek a classification of public rights and pri-
vate rights from external signs, from the forms of jurid-
ical relations. Several formal classifications have been
tried. We may group them under two categories. Some
think to find the basis of a distinction between public
rights and private rights in the different situations
in which the subjects of juridical relations find them-
selves; the objects, for example, which rights give to
a man are given him either as a member of society or
as a human individual. Others recognize a distinction in
the character of the protections which the law gives
to defend injured individuals and look to see if these
protections are granted on the initiative of the
individual injured or on the intervention of public
authority.
The first of these two conceptions owes its origin
to the influence asserted by the school of natural law,
the school of the state of nature, which is conceived as
having preceded the formation of society.
Law at its origin by the formation of society is exclu-
sively private law. This law continues to exist when
the society is formed, but it is then surrounded and
244 THEORY OF LAW
completed by institutions which have for their end the
organization of the state and of its organs and of its
functions. This additional law "s public law. The rela-
tions it has with private law are those of support and
protection.
All public law has been created to serve as a support
for the sanction of private law. This is an opinion
adopted by Kant, amongst others, to serve as a distinc-
tion between public and private rights.
This classification, due to the theory of the natural
state, has had meanwhile the same fate as the theory
from which it came. This theory lost its favor some
time ago, and nobody today defends it. The classi-
fication, however, to which it gave birth, is still ad-
mitted by a good many authors and has even been
somewhat expanded.
It is to the historical school, which was one of reac-
tion against the school of natural law, that we owe
the author who has best defended this classification.
Puchta in his works appears as its determined par-
tisan. Puchta distinguishes rights according to whether
the man holds them as an individual or as a member
of an organized society. In the first division are the
rights of property and rights of family; in the sec-
ond, public and ecclesiastical rights. The rights of
property and rights of family constitute private rights,
hence his division of rights into three great classes,

private rights, public rights, and ecclesiastical rights.

We observe at once an incoherence in this classifica-
tion. In
fact, if it has for its basis the distinction of

rights which belong to a man according as he appears

as an individual or as a member of a society, it is neces-
sary to oppose the right of property to all other rights.
But Puchta combines rights of property with rights of
family.
Other writers have brought modifications of Puchta's
 OBJECTIVE AND SUBJECTIVE 245

theory and have corrected his definition to this extent,

that they have divided all law into two categories only,
public and private. Public rights, they have said, in-
clude only rights which necessarily presuppose the exist-
ence of an organized society among men and which can-
not exist without such a society. Private rights are those
which suppose only a simple coherence of men. Rights
of family in this new theory will be considered as private

rights, since they can exist outside of society and inde-

pendently of the state.
While this theory seems more logical and more com-
plete, it presents, nevertheless, a grave defect. It has for
a basis this idea, that men can live without being organ-
ized in society and that one can admit among these men,
living outside of all society, 'the existence of rights. This
is an altogether false conception. We are more and more
convinced that right exists only in society; no society, no
right. There are, it is true, a good many degrees in the
organization of a society, but even a crowd assembled
by chance is not without some bonds of connection,
without some relations between the individuals who
make it up.
Let us look at some of the developments of this last

theory. The of private right, marriage, ex-

relations

change, gifts, say the partisans of this doctrine, are pos-

sible even where there is no state and no organized so-

ciety. They can exist even amongst a band of brigands,

amongst individuals gathered together by accident in a
desert.
But the relations of a public character, for example
election to parliament, are possible only in an organized
state. It is easy, however, to use these very examples to
refute this theory.
Without doubt we can elect a member of parliament
only where there is a parliament. That is very true, but
we can also form certain agreements, perform certain acts
246 THEORY OF LAW
of exchange only where there are notaries and by conse-
quence, an organized society.
Moreover, even a crowd assembled by chance can hold
discussions over their common affairs and give directions
in the general interest. Let us suppose a ship which suf-
fers wreck and over which the captain does not exercise,
as he might do, his right of commanding the passengers;
these latter may discuss together their present situation
and take necessary measures for the common safety.
Among them the more energetic will speedily become
dominant. Doubtless it might be said that there is here
nothing organized, that there can be no question of a
vote, of a right to vote, but nevertheless the vote exists
in the throng under such circumstances. The sexual
union itself will be only a fact, nothing else; the exchange
or the gift also will be only facts and not the result of
the exercise of a right. The thing may be transmitted,
but no right, for there is none.
Another defect resulting from a classification so ex-
tended is that it results logically in introducing into the
public law the relations between members of any asso-
ciation,any society, that of the stockholders in an incor-
porated company, for example, or even the relations of
the family group.
The partisans of the system go so far without recoiling
from the overthrow which they are giving to the current
conception which rules as to the matter.
Bahr, for example (Rechtstaat, 1865) would divide all
,

law into private law (Privatrechi) and the law of societies

(Genossenschaftsrecht) . The first includes the relations of
men considered as members of an organism, state, so-
ciety, church. Public law thus considered is only a sub-
division of the law of associations.
Gierke holds equally to this same opinion; but such a
classification does not answer at all to the historic group-
ing of the relations men hold to each other.
 OBJECTIVE AND SUBJECTIVE 247

Jellinek, under a form a little different, accepts this

distinction of rights into public and private rights. He
distinguishes rights into two categories, there are bear-
ers of rightswho can exercise choice and others who can
only hold (durfen und konnen). The law, said he, can
only recognize as permitted those relations which existed
before it, and independently of it, to which it brings no

new element, unless it be that individuals who previously

had power to act can now act legally (durfen). The con-
sequences of the recognition of this power to act appear
very clearly when attempted to study the effects of
it is

legal prohibitions. Every prohibition can be reduced

to this formula, you may not, you cannot legally (du
darfst nicht). In every case the prohibition does not
render an act impossible to do, merely declares
it

the doing of it
illegal. The
prohibition can always
be violated. But the action of the law is not limited
merely to permissions and prohibitions. The law
can add to the individual's capacity a new element. It
can give to acts and contracts a juridical force which
brings with it some new consequences quite different
from those attached by nature to the same act or con-
tract. It has, then, that which is called juridical force

Konnen)
(rechtliches .

These two elements, power and force, are so closely

connected that the never exists without the second.
first

What I may do legally is only the sum of my power over

actual facts, recognized and assented to by the law;
but juridical force may exist meanwhile without such
"power"; in the case, for example, where the law does
not merely protect the natural capacity of the person,
but gives to him a new capacity.
Jellinek's distinction between public and private law
has its foundation exactly in this correlation of juridical
power and juridical force. In private law the first
element, the power, exists always; in public law one
248 THEORY OF LAW
requires always the presence of the second, the state's
force, and public rights are all based on a force resulting
from the law. They are no part of the natural liberty
regulated by law, but constitute an enlargement of this
natural liberty.
This distinction is artificial, and if examined
purely
closely loses all its value. Durfen und konnen, pouvoir et
puissance, "power and force," are not essential elements
of the matter of subjective right. Such a distinction be-
tween these two elements depends not upon the matter
of the right, but upon consequences brought on by the
violation of a right. If the violation of a legal rule re-
sults only in a liability on the part of him who violates
the law (lex minus quam perfectd), it may result that one
cannot violate this law, but he finds that he has had the
force to do so. If such a violation brings about the legal

nullity of the act forbidden by the law (lex perfectd), the

power to perform such act does not exist. If, finally, the
violation of the rule brings at the same time a liability
upon the doer of the act and the legal nullity of the act
(lex plus quam perfectd} there is neither power nor force
to violate such a rule.
On the other side, it is necessary to observe that the
element of "Durfen," of permission, is not at all a
stranger to public law.
The individual who does not possess the needed legal
capacity not only has not "Konnen" ability, to accept a
given function, but neither has he "Durfen" permission,
since the usurpation of this function is a punishable
act.
A classification having for a base the distinction of
consequences which the violation of the law involves, has
been proposed by Thon. If the violation of law brings
to him who has suffered by its violation the right of
an indemnity, the right in this case is a private one;
if, on the contrary, this violation brings about the
 OBJECTIVE AND SUBJECTIVE 249

intervention of public authority, then it is a public

right.
More briefly, private rights are those which are spe-
cially by the initiative of the person who
protected
has suffered damage; public rights are those pro-
tected by society, the state, independently of the
intervention of the injured individual. This classifi-
cation of Thon has found a good many partisans
amongst Russian jurists, among others Mouromtzev,
Gambaroff and Duvernoi. It is, however, not very
accurate.
First, the distinction between public and private rights
would appear only when they are violated, but even
when they are not violated, we distinguish quite
clearly between public rights and private ones. Thus all
the world, for example, knows that one can transfer fam-
ily rights, while public rights are not subject to aliena-
tion.

Then, it is not precise to claim that private rights are

the only ones protected by private initiative. There are
also crimes or offenses pursued only upon the com-

plaint of the one who has been the victim. When there
is a system of administrative justice the right of pursuit
is left to private persons the more frequently even if the
public rights have suffered some injury as to their pro-
tection by the administration.
Finally, and this is the most important point, the right
of pursuit given to individuals who have suffered injury
and the action of authority are not two pursuits which
exclude each other. They can very readily take place
simultaneous y as the consequence of a single act violat-
ing some single right. Let us take as examples the case
of robbery and assassination. There is a criminal pro-
ceeding inst tuted, but there is also a civil pursuit
on the part of the victims or the successors. These
two prosecutions to be sure, are quite distinct, but
250 THEORY OF LAW
they cannot serve to establish a criterion, a mark
of between public and private rights.
distinction
Otherwise, we would be compelled to admit that the
same right can be at the same time a public and a pri-
vate one.
 OBJECTIVE AND SUBJECTIVE 251

Section 34. The Distinction Between Public Rights and

Private Rights

All the theories which we have just examined have fur-

nished no satisfactory explanation of the distinction be-
tween public and private law. They give, however, some
characteristic indications of this distinction. They have
shown us that necessary to avoid seeking the basis
it is

of this distinction in the different interests in view of

which public and private rights are created. The basis
of the whole distinction should be sought in the form
with which juridical relations clothe themselves. Such a
distinction ought by no means to have as its principal
foundation merely the subject of the right or the conse-
quences which the violation of the right brings. This dis-
tinction ought to be more general and ought to be appli-
cable even when there has been no violation of the
right.
All rights being appendant to human beings regarded
as members of society, it is necessary to seek the expla-
nation of the distinction between public and private right
in the diversity which the legal forms of all the relations
establishedamong men present.
The right, as we have seen, is in general the power to
make use of something. This faculty can be guaranteed
to an individual under a double form. The simplest
form is that of dividing the object into several parts,
and each of these parts being assigned an owner.
to
Thus, we establish the difference between tuum and
meum. The whole conception of private property is
founded on such a division. It is again this same prin-
ciple of division which serves as a basis of the institution
of the family, excluding the intervention of outside per-
sons, the law having assigned the family a proper sphere
of action.
252 THEORY OF LAW
This distribution is often taken for the fundamental
idea in law because all questions of law are connected
with property. Some consider the idea of communism as
the negation of all rights because it excludes this division,
together with the idea of property.
However, the simplest form of distribution is not the
only one, nor the oldest, nor the most perfect for assur-
ing the use of an object. By the side of this form which
depends entirely upon the distinction between tuum and
meum, there is another form, that of the adaptation of
the object to the joint realization of certain inter-
ests.
The insufficiency of the first form of which we have
just spoken, that of division, appears readily. There are
objects which it is impossible to divide; for example, the
different parts of a navigable river, of a public highway,
cannot be apportioned. If one should proceed with the at-
tempt, he would destroy at a stroke the public utility of
these objects. Other objects, although divisible, require
an adaptation, some sort of a change, for the realization
of the interests concerned. With money, for example, it
is not sufficient merely to divide up the gold and silver

among individuals; it is necessary to give it a form, to

coin it, to preserve the gold and silver from counterfeit-
ing and deceit.

Consequently alongside the distinction of tuum and

meum there must exist another form of delimitation of in-
terests, another mode of distribution and division. This
second form we will call "adaptation," and we will dis-
tinguish it thus from the first, from "distribution." The
portions of land, highways, for example, left for the use
of all, the money whose coinage guarantees the value of
the metal employed, are "adaptations." Each of these

forms, taken alone, is insufficient. Even

private prop-
if

erty is not recognized, private possession has need to be

protected. We
can imagine the state of things in which
 OBJECTIVE AND SUBJECTIVE 253

there would be no such protection. Suppose, for exam-

ple, the soil, the other objects which we use here, to be
for the use of the whole world and without individual
appropriation. It would be necessary, none the
less, to establish some security for that portion of
the soil, for that object, which we are employing at
the very moment when we are serving ourselves
with it.

If there were no right of property to be protected,

there would be at least a temporary possession which
would require to be guaranteed.
This right to the possession of an object, the same as
ownership of an object, supposes a preliminary distribu-
tion of objects, placing them at the disposition of indi-
viduals. This is the division, as we have seen, between
tuum and meum; meum is not only what I have acquired
by lawful means, but what I find really in my own pos-
session.
So these two forms of the guarantee of legal possibil-
ity are equally necessary. They cannot be replaced, the
one by the other. Always and everywhere their coexist-
ence is indispensable. So, and very advantageously, they
can be regarded as the basis of all classification of
legal phenomena. But the grouping which has its prin-
cipal foundation in the distribution of objects among
individuals, or in their adaptation to common needs, does
it correspond to public rights on the one side, and to
private rights on the other, as their historic development
has exhibited them? I think the answer should be in the
affirmative.
We can explain all the differences between public rights
and private rights by the distinction between distribu-
tion and adaptation as above explained.
The most remarkable differences existing between pub-
lic and private rights are those which connect them-

selves with the acquisition of rights and their loss,

254 THEORY OP LAW
with their content and with the relations between rights
and obligations.
Private rights are acquired as a result of special cir-
cumstances having a distinctly individual character and
connecting directly or indirectly with some particular in-
dividual. And this individual character of the acquisi-
tion is strengthened constantly by the special bond which
arises between the thing assigned and the person receiv-
ing it. Also, in private right we distinguish, always
vigorously, between capacity and possession, between
possibility of acquiring a right and actually getting
it. All those who have capacity may in general pos-
sess a thing, but it is only those who have received
the right of possessing a thing who have really a control
over it.

When an object adapted only to common usage is

under consideration, it cannot be in the same way. An
act of acquisition, of individual appropriation, even tem-
porary, cannot intervene, since it is a group of persons
whose interests are served by the object. It suffices to
be one of the group in order to have over this thing a
right of use. Here the capacity and right come to-
gether. This is what happens in the exercise of all pub-
lic rights. All those who satisfy the required conditions
for electoral capacity have the right to vote. For the
exercise of this right there is no need of any special indi-
vidual qualification.
It is quite otherwise with the private right. If, for ex-

ample, I am capable of participating in the issuance of a

bill of exchange, this does not by any means require that
I shall be the owner of the rights and obligations result-
ing from a of exchange.
bill

The a public right results from a loss of capa-

loss of

city, independently of the will of the bearer of the right.

Private rights, on the contrary, can be lost without any
change whatever in the juridical capacity of the person
 OBJECTIVE AND SUBJECTIVE 255
and by the mere fact of his will. He can renounce a
right, can alienate it, can grant it to another to be exer-
cised in his place. We
see here, further, an application
of our distinction between the distribution and the adap-
tation of the object.
The right possessed by the member of any society to
the collective use of an object is lost when this member
ceases to be a part of the society. He cannot grant the
usage of his right to another individual who does not be-
long to this society. Alienation is not applicable to pub-
lic rights. It could not have as a result any transfer of
the right, the other members of the group having already
a right to the use of the thing.
As to the object over which a if as a re-
right extends,
sult of distribution it is assigned to a particular person,
itsadaptation, if any, is made by the owner and accord-
ing to his will. He makes
the object conform to the pur-
pose which he proposes and in the way he wishes. A
sovereign power of disposition belongs to him, for his
own personal interest. Such is the matter of all private
rights. They are absolute rights, including at once use
and disposition.
In the public right, on the contrary, the power of dis-
position does not exist. This power takes the form of an
obligation. The administration of the railroads, for ex-
ample, has the right to control their iron roads, but this
is at the same time only an obligation. The administra-
tion cannot use this power for alienation. It will make
use of the iron roads, not in its own interest, but in the
interest of all.

It is the same with common roads and highways. It is

impossible to give to each of those who use them the
right of disposition, and those who have them in charge
have equally no right of disposing of them except in the
general interest.
Prom this distinction between distribut on and adap-
:
256 THEORY OF LAW
tation result, also, the differences which exist in the cor-
relation between right and obligation, differences which
we recognize in the public and private right. When the
object belongs to an individual, the personality of the
bearer of the right is always exactly determined. On the
contrary, when the object is adapted to a collective
usage, it is society considered as a whole which possesses
it. The determination is here general, and persons who
form the society are not specific individuals. On the
other hand, the subject of the obligation is exactly deter-
mined.
All the peculiarities of public and private law, we see

by the foregoing, are explained, then, in a satisfactory

manner by the distinctions between distribution and
adaptation.
We can by the same criterion furnish the explanation
for the existence of private rights in the state for its own
profit.
If the power given by the state is attributed to it with

a view to the adaptation of a thing to the general use, we

find ourselves in the presence of a public right. Such is
the right of the state over its means of communication.
If, on the contrary, the object which the state possesses

has been given that it may serve itself with it in order

to get therefrom the necessary means for the adaptation
of other objects, this is a private right. Such is the
right which the state possesses over its own goods. The
revenues from such property serve for the maintenance
of this or that grand division of administration.
It remains still to explain the numerous classifications
which we have examined above. We shall do so by fur-
ther use of the distinctions established between "distri-
bution" and "adaptation." The preceding classifications
derive their foundation from a secondary point, from one
of the accessory consequences of the leading idea which
we have just set forth.
 OBJECTIVE AND SUBJECTIVE 257

Let us observe first of all that if we divide an object

amongst several individuals, the will of each of these in-

dividuals plays a preponderant role in the application of
the thing to some given use. How or in what fashion
shall each one employ the object ? This will depend upon
the bearer of the right. The answer is altogether differ-
ent if the object is applied to the collective use of all.

In this case the manner in which each one shall use the
thing, and the adaptation to be made of it for the com-
mon interest of all, is according to a rule fixed by the leg-
islature. Here the liberty of disposing of the object no
longer exists. Each person, who has a right of use over
the object, finds himself bound by exact limits, can mod-
ify neither the object nor its value, because an identical
right exists for the advantage of every other member of
the society.
For this reason, the first form of these two actions of
law, the distribution, results in consequences presenting a
more individual character; the second, on the other hand,
in consequences of a more social character.
The predominance of patrimonial rights among private
rights, the facility with which these rights are trans-
formed into a value which is the price of the object, can
also very easily be explained upon our theory. When we
proceed to a distribution of certain objects among indi-
viduals happens frequently that the object assigned to
it

an individual does not correspond to any need he has.

Exchange is the only means to be employed in such a
case.
The with which a thing can be exchanged or
facility
alienated has, then, a great importance. It is a quality
of things of a general order which has even more value
than the other. This capacity which things possess of
being exchanged makes them applicable to all needs
without exception, and, if the capacity of exchange is ex-
pressed always by price, it is evident that all efforts tend
258 THEORY OF LAW
everywhere to transform the right over an object into a
right over its price.
In the individual distribution of objects, private law
leaves to each the necessity of determining what means
he shall employ for the satisfaction of his own wants and
for the production of other values. Public law, on the
other hand, adapts the object to a given public use and
regulates at the same time the use of the object and the
means of its production. Private law in economic mat-
ters does not attempt to regulate either the employment
or the production of wealth, but merely its distribution.
It is this which permits Zitovich to define civil law as a
law of distribution.
The assigning of an object does not take place without
an individualization of the thing as well as of him who
has a right over it. The application of an object to a
common use combines several individuals together and
brings about their association by this community of use.
Hence the notion that private rights belong to man, con-
sidered individually, and public rights to man, consid-
ered as a member of an organized society.
The right to dispose of the thing of which one is the
owner makes him the one upon whom depends the pro-
tection accorded to this object. If the object is applied
to a common
usage, on the contrary, this protection will
depend no longer upon the will of any individual.
In this secondary consequence of the distinction be-
tween rights over things accorded to a collectivity of in-
dividua's and those granted to an individual, Thon and
his disciples have sought to find the sole basis of the dis-
tinction between public and private law.
 BOOK III

SOCIAL CONDITIONS FOR THE DEVELOPMENT

OF LAW
CHAPTER I

SOCIETY

SPENCER. "Principles of Sociology," 1876-1877.

LILIENFELD. "Gedanken uber die Social wissenschaft der Zu-
kunft," 1879.
SCHAEFFLE. "Bau und Leben des socialen Korpers," 2d edition,
1881.
FOUILLEE. "La science sociale ccntemporaine," 1880.
KAREIEV. "Fundamental Questions in the History of Philos-
ophy," Vol. II, 1883.
GUMPLOWICZ. "Grundriss der Sociologie," 1884.

Section 35. The Mechanical Theory

So far we have considered law wholly aside from the

medium of its application. This medium is society. It
is only in the bosom of society that law is formed or acts,
because its task is precisely to fix and to limit human
interests in relations to each other. Wherever there is
no society, wherever man
shows himself merely as an iso-
lated individual there is no place for law.
Every phenomenon depends upon the medium in which
it is produced. Law does not escape this general rule.
It depends upon the social medium in which it is

applied.
Let us see what is the nature of society's influence over
law and over the state, which is the form of social life
most closely connected with law. The explanation of
society has been often attempted, and many theories still
259
260 THEORY OP LAW
divide the Most of these theories can be reduced
field.

to two groups one classifies them according to the con-

if

ception they hold of nature and of society.

For some, society is a wholly artificial creation, man's
work, produced by his will; this is the mechanical con-
ception. For others, society is a natural fact, arising and
developing outside of human will, in obedience to inex-
orable laws, like all other natural organisms; this is the
organic conception.
The first conception was especially that of the XVII
and XVIII centuries. The idea that society was a crea-
tion, the product of human activity, was at that time
generally admitted. It was the consequence of other
philosophicaland psychological ideas.
Philosophy, at that time, indeed, did not consider the
universe as a living whole. The universe was divided
into two quite distinct parts, spirit and matter, the two
combined by a mechanical juxtaposition. According to
this philosophic conception we must reduce everything to
a mechanism, to forces. Beings were, in the eyes of the
philosophers of that time, only organisms acting auto-
matically.
Social phenomena naturally could not, under such
theories, be explained otherwise than by a mechanical
conception.
Psychological theories, then, of course, resulted in the
same conclusions. Both the theories then held, that of
innate ideas and that of sensationalism, despite the op-
position between them, agreed in this, the denial of the
existence ofany transmission of psychological develop-
ment from one generation to another.
Some admitted that man at all epochs possessed from
his birth an intellectual outfit, a world of innate ideas,
but this outfit remained always the same; this world was
not augmented among his descendants. Others thought
that man at birth knew nothing, was an absolute void,
 SOCIAL CONDITIONS 261

ignorance complete, that man acquires ideas only by per-

sonal experience. For the believers in innate ideas, as
well as for the sensationalists, the development of the
man's intelligence was limited, then, to the life of an in-
dividual. Each carried his own intellectual baggage; the
point of departure was always the same. Some denied
the existence of any connection between two generations.
Each generation was subject to no influence except what
itcreated, was moved only by itself and usually for
itself.

Social life was regarded as the necessary consequence

of the ideas just set forth and not as the result of a suc-
cessive development of humanity; it was only an arbi-

trary, artificial institution of men.

Society supposes necessarily the combination of indi-
viduals. It cannot be the result of a single will. Several
wills are necessary for its formation. The mechanical
theory, therefore, explained the formation of society as
the result of an agreement amongst men, a social
contract. The cause of this contract was merely the
necessity of combining separate individual forces which
were too weak for the combat with external nature.
The power confided to society had no other end than
the guaranteeing of external security and internal
order.
The organization of social power and its relations with
the liberty guaranteed to each individual took the form
of a contract. The creators and organizers of society
freely consented. The conception to be formed of a
social life established thus was a wholly individualistic
one. personality of the individual was regarded as
The
the dominating principle and controller of social life.
Nobody imagined that the individual depended upon the
medium in which he lived; for the whole world, on the
other hand, the medium, the social order, was fixed and
guided only by the free will of individuals.
262 THEORY OF LAW
There was no difference, then, between the conception
of man living before the existence of all society and that
of man living in the midst of an organized society. One
part of a mechanical aggregate suffers no change from
being detached, nor does it alter its nature by being in-
corporated. A part of a living organism, on the other
hand, is radically changed by separation from that organ-
ism. Sometimes it dies; sometimes, if it continues to live
its own independent profoundly modified.
life, it is

In the mechanical conception of society man was in

this respect like a portion of a mechanical aggregate, and,
even out of the pale of society, was considered as en-
dowed with the same qualities, sentiments, and needs, as
if he were a member of society. Further, it was believed
that the development of man in his natural state was
more advanced than it was in society. Otherwise, it was
said, man could not form so complete and abstract an
idea as that of society, of social power, of individual
liberty, because in the state of nature man had only the
method of analogy for forming such a conception.
Meanwhile, all those who have written with regard to
man in a state of nature have asserted that society was
not created, that social power was not established other-
wise than with the conscious purpose of realizing
human interests; and, in the different proposed outlines
of the social contract, the relations between social power
and individual liberty have always been clearly indi-
cated.
This purely mechanical theory of the formation of so-
ciety is today wholly abandoned, as being in absolute
contradiction with received history and psychology.
Everywhere history shows even in the most remote
us,
times, man existing in There is no
a state of society.
reason to suppose that the famous pre-social, natural
state out of which men emerged by means of a social
contract, ever had any existence. In the mind of the
 SOCIAL CONDITIONS 263

people social order never appeared as an arbitrary insti-

tution, but as the act ofa will other than human, as an
objective order. History compels us to recognize the
social state as the true natural state of man. On the
other hand, psychology teaches us that the intellectual
development of man is specially due to the influence of
his social environment. Our intellectual development,
our sentiments, our moral principles, all depend upon
the social life, upon the environment into which we are
born and in which we live.
If we admit the existence of a pre-social state, we
must recognize necessarily that from it men would never
develop in any way; their minds would always have
remained so simple that it would have been impossible
for them ever
to rise to general and abstract conceptions
of society,to conceptions different from all the ideas
suggested by their surroundings, ideas such as those of
contract, society, public power, individual liberty, etc.
Even among men living in society such ideas remain,
with many of them, unrecognized. If society were not
"natural" how could such ideas have become familiar
to those who had never experienced even the fact of
the combination of a few men?
Sociological researches have shown and explained that
social development followed in its progress exact rules.
If the form of social organization is not an arbitrary and
artificialfact, then society itself cannot be a human

invention; if the development of society takes place

according to fixed and inviolable laws, then the exist-
ence of society does not depend upon our free will.
This whole doctrine of the natural state, and of the
formation of society by a voluntary and conscious com-
bination of men, is now given up by the entire world.
We
turn aside, now, from the whole notion of such a
pre-social state and of a social contract which followed
it. Historic observation shows us that such a state
264 THEORY OF LAW
never existed; even the utility of such a fiction for the
scientific explanation of social phenomena is contested.
The celebrated publicist, Karl Salomo Zacharia, 1 for
example, expressed himself in the following terms on
this subject: "In opposing the state of nature to the
social state it isnot meant to say that men really lived
at any given time in a state of nature. Granted, then,
that men have always lived together in society, it would
be still necessary to distinguish the political and organ-
ized from the so-called state of nature, which does
life

not present the same features. Man cannot form an

idea of anything except by comparing it with an object
having contrary, or at least distinct, qualities." The
man of our day is not only a member, but a product of
society. Outside of society we cannot imagine him, at
least such as he is in society. Outside of society all the
development of sentiment is impossible, at least so far
as relates to sympathetic sentiments, altruistic ones.

Speech is an impossibility; man outside of society could

not attain to that degree of intellectual development
which so profoundly separates him from the animals.
The conception of this famous state of nature is no
more necessary to psychology than for physiology is the
conception of a wholly separate existence, distinct and
unconnected, of the different organs of a living being.
The purely mechanical theory ought, then, to be abso-
lutely given up. It is necessary always to recognize that
it has played a great role in history. It is in a certain
way the first of the attempts to give a scientific explana-
tion of social phenomena. Prior to it the social life was
considered as the product of an outside force, indepen-
dent of society and its elements. It was not thought
social life could be determined by the nature of society
or the different elements of which it was composed, but
by some force remaining wholly foreign to the society.
i
Zacharia. Vierzig, Bucher von Staate. 2 Ausg. 1838, Bd. I. s. 49.
 SOCIAL CONDITIONS 265

The society was considered only as passive and inert

matter subjected to the action of this foreign and super-
natural force.
The mechanical theory, on the contrary, presented
society as a product of the action of its own elements.
Social life was not a result of phenomena produced and
directed by external and supernatural powers, but a
result of the actions of social elements; that is to say,
ofmen. The character of the society is not determined
by an extraneous will, but by the nature of its elements.
Such a conception was doubtless an advance over the
opinion held up to that time. The error of this new
conception was in the fact that it did not recognize
that the elements composing society are themselves
social products. They themselves have their history,
their evolution, do not come
fully formed from celes-
tial regions, take their birth from men, from those
men who have already lived the social life and have
acquired a certain body of social habits by trans-
mission, imitation and the establishment of usages and
customs.
The mechanical conception of society, in our day,
has a historic value in this sense that it is a concep-
tion in direct opposition to the organic conception now
held, which is a reaction against the mechanical one.
In these last times the extreme consequences to which
the organic conception has been drawn have led certain
choice spirits to turn back towards the old theory, the
previous mechanical explanation of society, only modi-
fying a little its form.
This modification recently applied to the old me-
'

chanical conception consists in the fact that it is ad-

mitted that society in its outlines is established inde-
pendently of the human will, but affirms at the same
time that its progressive development has resulted more
and more from the interposition of human wills. It
266 THEORY OP LAW
is only in the advanced state of its evolution that it

can be said that society is really a product of human

volition. The representatives of this last opinion are,
in France, M. Fouillee, and in Russia, Kareiev.
M. Fouillee considers society as an organism con-
tractual in this that its organic character, a
sense:
character predominant in society at its origin, gives
place more and more to relations freely established
among men. Kareiev admits, equally, this same opin-
ion, but under another form. According to him society
in its evolution is compelled to become a natural fact,
a combination of voluntary facts produced by the polit-
ical art of man. Consequently, here is the point which
distinguishes this new theory from the old mechanical
one, the authors whom we have just cited do not con-
sider the agreement, the formation of society by way
of contract, as the starting point of social life, but, on
the contrary, as the result of a long social evolution,
as the purpose of social progress. All civilization, looked
at in this relation, is only the gradual subordination of
social life to human ideals.
The M. Fouillee and Kareiev have their
opinions of
origin in an undoubted fact, that of the influence of
opinions and human tendencies over social life. Man,
as the member of a society which does not answer to
the ideal he has formed, is moved to get rid of this con-
tradiction and to modify social relations in accordance
with his ideals. The generations, one after the other,
continue unceasingly this same labor and elaborate
slowly a conscious reorganization of society. This work
cannot fail of a result. Little by little human ideas
take form and are realized in the social environment.
More and more society moves towards an end which
is sought for it, which is wished by all the men who

have labored at its reorganization. There is here a

product of their agreements and it is in this sense we
 SOCIAL CONDITIONS 267

may say that society has a contractual character. In other

terms, society becomes more and more the incarnation of
human ideas and the product of human art and effort.
We cannot accept meanwhile this opinion without
making some reservations. First of all, the notion of a
conventional organism carries in itself an invincible con-
tradiction. Organism and contract are two conceptions
which exclude each other. If we keep to the usual
meaning of words, that which is organized is always
in opposition to that which is artificial, arbitrary, pro-
duced by the conscious will of man.
All contract is impossible without the agreement of
conscious wills. One cannot
in a general way affirm
that in the course of time society will take on a con-
tractual character. Contract, as we find, supposes, nec-
essarily, the harmony of several wills, and the social
life, which is the result of desire and aspirations of a
long course of generations, is not the expression of any
single will common to all these generations. Social as-

pirations change, in fact, with each generation. The

order which we assert in social relations, that succes-
sion which history shows us, does not correspond to any
ideal traced in advance by the successive generations.
There can be no question of contract between genera-
tions. Even in a single one the ideal does not manifest
itself fairly by contract. There exist in each generation
parts which are not in agreement. The influence of these
on the social life is determined only with great
parts
difficulty, according to objective social conditions.
The form in which Kareiev expressed his opinion as
to the origin and development of society is more for-

tunate. not contain such an evident contradic-

It does
tion as that of M. Fouillee with his conception of a
contractual organism, but it raises, however, several
serious objections.
The product of art is solely the product of the con-
268 THEORY OF LAW
scious will of man. An
unexpected, an accidental, re-
sult of a human not a product of art.
act is Well, the
ideas which have marked most strongly the work of the
centuries, those which have left the deepest imprint, the
history is there to prove it, have resulted in consequences
which failed to answer the provisions of their producers.
Let us look, for example, at what took place under the
French revolution. The constitutions of 1791 and of
1793 are, it is true, reproductions more or less complete
of the theories of Rousseau and Montesquieu, but these
constitutions never reached their application. Most of
their dispositions have remained a dead
In fact,
letter.
the general progress of the revolution, and the social
state which has followed, are not consequences of those
constitutions. The revolution has not been that which
its producers themselves wished; it has disappointed its

organizers.
If is shown merely the facts which have de-
anyone
veloped themselves up to this time, the organization of
the state under Napoleon and under the restoration,
it be impossible by the recital alone of these facts
will
to form even a proximate conception of Rousseau's
social theories. But if we put the same person, on the
other hand, before a work of art he will recognize at
once the idea of the artist who did the work. There
will be no need of explanation. It will itself express
the idea which produced it better than can any other
demonstration.
Wemight compare humanity to a work of art if
humanity possessed only one idea or combination of
ideas common to all men, realizing itself under different
forms of social life and of which the ideas of different
generations and of separate men would be only partial
manifestations; but the existence of such an idea of
combination, -sole, common to all humanity, is quite
problematic.
 SOCIAL CONDITIONS 269

Independently of these conceptions, the opinion of

Kareiev raises still another objection. His conception
supposes that the influence of human aspirations is
always growing stronger and that the action of objective
factors upon the social development is always diminish-
ing. As a matter of fact, such objective factors like the
influence of nature, of famine, of new discoveries, con-
tinue to act in a most powerful fashion even in our times.
Some inventions of a purely technical character, without
any connection with the men's social ideal, as, for ex-

ample, the invention of gunpowder, or that of the steam

engine, have had a greater influence over social life than
any number of theories. It would be strange to believe
that modern social life is an incorporation of the ideas
of Schwartz and Watt, and there is no good reason to
assume that in the future such factors will have ceased
to have their influence over the social development.
We cannot, then, declare that society becomes more and
more exclusively the work of man, and of his will.
270 THEORY OP LAW

Section 36. The Organic Theory

The organic conception of society is a quite modern

idea, and hardly appeared before the end of the XVIII
century. To be sure, even in the most remote antiquity,
we meet with something like it, with comparisons be-
tween society and the man or the animal. Plato's dia-

logue, Politicus, rests entirely upon such a resemblance;

and Hobbes himself, the originator of the state of nature,
compares the state to a leviathan. But the conception
of an organism in the particular sense which we give
it today was then unknown. In Aristotle the word
1

organicus is by no means the term opposed to mechani-

cus, and the use of this word in the sense meant by

Aristotle lasted down to the end of the XVIII century.
Organicus and instrumental are synonymous expressions.
The leviathan state of Hobbes is only an immense ma-
chine. It is not a living organism but an automaton.

Hobbes, convinced materialist as he was, naturally did

not recognize some essential distinctions between ma-
chine and animal. Such is also the view of the Car-
tesians. For Descartes and his successors, as for the
materialists, animals were only machines moved in an
automatic fashion. It was the same with the human
body. The soul in connection with the body played the
part of an indifferent spectator. Spinoza and Leibnitz
had also the same opinion as regards the relation of the
soul and body, but evidently this was not the opinion
of the whole world. To this mechanical conception of
lifein man and the animal is opposed that of spiritism,
whose representatives in antiquity were Pythagoras,
Plato, Aristotle, Hippocrates, and in the middle ages

Claude Bernard, "La Science Experimentale," 1878, pp. 149-212. Defini-

tions de la vie Les Theories anciennes et la science moderne.
:
 SOCIAL CONDITIONS 271

Paracelsus, Van Helmont, and the scholastics. It is

above all in the doctrine of the celebrated physician
Stahl who lived in the XVIII century that this last
theory has been most completely set forth.
According to Stahl, the body is only an inert instru-
ment, the puppet of some immaterial force and having
no activity of its own. We find in Paracelsus and Van
Helmont such a doctrine as to the existence in our
organism of such immaterial forces which have all
power over the different bodily organs. In Stahl
all these forces are replaced by a single one, by
the soul, the invisible time marker, who controls
the movements of all the functions of the or-

ganism.
So in the partisans of the mechanical, as in those of
the spiritistic theory, while the explanation of life is
different, in the one as in the other the body is equally
understood as a mechanism. In both theories it is
only a machine. The difference consists in that the
machine is in one case considered as acting automat-
ically, in the other as the passive instrument of the
soul, as without independent activity.
Out of these theories there could scarcely arise any
clear opposition between the organic and the mechanical

conceptions. It was only after the appearance of the

vital theory, due to Bichat, 1 that such an explanation
was offered. Bichat, who lived at the end of the XVIII
century, affirmed that it was necessary to seek the cause
of vital phenomena, not in some immaterial principle,
but, on the contrary, in qualities possessed by the
matter producing these phenomena. According to
him the phenomena of life are explained by special
vital properties innate in the living matter which con-
stitutes the living organism. These vital properties
are not only distinct ones, but it may be said that they
i
Died 1802. His General Anatomy appeared the year before.
272 THEORY OF LAW
are opposed to the general physical and chemical proper-
ties ofmatter. Physical properties are eternal and in-
separable from matter; vital properties, on the contrary,
are transmissible.
The inert matter which enters into the formation
of every organism is thoroughly interpenetrated with
these vital properties, but for a time only, since by
their essential character these vital properties are in
time consumed and exhausted. At the beginning of
life they are in the phases of growth, stationary dur-
ing mature existence, they decrease in later life to dis-
appear with death. This is the whole development of
living beings. All life is only a long struggle between
physical and vital properties. Health and disease are
merely different phases of it. Recovery is a victory
of the vital properties and death of the physical
ones.
The doctrine of vitalism was destined, as we easily
see, to produce a complete revolution in the notions
as to the connection between mechanical and organic
phenomena which had till then prevailed. It created
at once a complete opposition between living and dead
matter, between a mechanism and an organism, between
physical and biological sciences. Moreover, vitalism
permitted the showing of the connection between the
different parts of the organism and of those parts with
the whole, and attributing to the organism an inde-
pendent activity of its own whose principle was in

the properties of the organism and of each of its

parts.
It was at the end of the XVIII century that there

appeared for the first time in philosophy a clear oppo-

sition between the ideas of organism and mechanism,
first in Kant and after him in Schelling. The philo-
sophic system of this last author is a profound organic
conception logically developed of the entire world. He
 SOCIAL CONDITIONS 273

explains all the phenomena of the universe by their

analogy to the organic life.

To the influence of these new theories must be added

the historical tendencies which had then already mani-
fested themselves. The mechanical conception of the
world was the negation of the idea of development. A
mechanism in its essence is an unchangeable thing. It
ignores development, for mechanisms, apart from each
other, are connected by no succession or evolution.
The mechanical theory, therefore, is from its nature
anti-historical. It explains social organization not as
the result of a long evolution, but as an artificial in-
stitution of man's, which may vary according to men's
tastes and without relation to the past. The will of
the present generation, behold in it the explanation
of social phenomena. It sees no connection between

past and present. For it the latter does not require

the explanation which the former furnishes.
The historical conception, however, emphasizes this
connection. In seeking to establish its analogy, the
historical doctrine naturally turns to the organic side.
It is in such a medium that the past and heredity play
an important part. For all these reasons the organic

conception of social phenomena rapidly became very

popular and the prevailing one of the XIX century.
It found partisans among thinkers of the most diverse
schools. The sociologists as well as the positivists
adopted it. The sociological doctrine of Comte harmo-
nizes well with the organic conception, and the connec-
tions between his theory and the vitalist one are many f
.

In his biological doctrine Comte takes as his point

of departure the vital properties of Bichat. He rejects,
it is true, the idea of an antagonism between physical
and vital properties and admits the harmony of the

organism with its surroundings as a necessary condition

of life. He emphasizes, too, the influence which meta-
274 THEORY OP LAW
physical doctrines had had over Bichat, and even
proposes in respect to this some rectifications
of detail. This influence, said he, is an extraneous
addition which Bichat himself has attenuated in his
later books. Comte 1 appropriated the fundamental
idea of vitalism and rejected the notion that the
phenomena of life can be drawn from those of
physics and chemistry.
Sharing in Bichat 's ideas and admitting with him
the opposition there is between vital phenomena and
all others, Comte naturally recognizes society as an
organism, being unable to deny the resemblance be-
tween vital and social phenomena.
The
organic sociologic doctrine took very different
forms. In Schelling and Krause's organic school the
vital point is this, in social as in organic life all the

phenomena are dependent upon one another, are recip-

2
rocally conditioned.
Others, like Bluntschli, for example, content them-
selves with establishing an analogy between social insti-
tutions and external forms of the human body. Thus
he assimilates government to the head, as it is the head
of the state, the ministry of the interior to the ears, and
that of foreign affairs to the nose. For him the dis-
tinction between state and church is that which separates
man and wife. 3

But of all the forms which the organic theory takes,

the most accepted was that which agreeing with posi-
tivism identifies the laws of life with those of society.
This form finds partisans in all modern literatures. It
is in Spencer, Schaffle and Lilienfeld that it has received

its completest development. I shall develop especially

Cours de Philosophic. 4th ed., vol. III. 14th Lecon, p. 187.
"
Bedingheit." Krause distinguishes it from " Bedingtheil," which means
a passive state. Bedingheit, on the other hand, means a mutual relation at the
same time passive and active. System der Rechtsphilosophie, s. 48-50.
8 Bluntschli. Psychologic Studien iiber Staat und Kirche, 1841.
 SOCIAL CONDITIONS 275

Spencer's conception, as he is the best authorized repre-

sentative of the doctrine.
If we observe first of all the general character of
the organic theory of society, we ought to recognize
that the identification of the laws of life with the
laws of society does not rest upon a sound foundation.
The observed resemblances between social phenomena
and those of organic life do not allow the combining
of them to oppose both to inorganic phenomena. To
establish such a classification we must show that the
resemblance between social phenomena and those of
organic life is much greater than that between those
of organic life and those of inorganic matter. It would
be necessary to show, moreover, and this is a very im-
portant point, that the differences between social phe-
nomena and vital phenomena are not so numerous or

important as those between the phenomena of the organic

and those of the inorganic world.
As long as such proof is not exhibited there is no
reason for opposing life and society to the inorganic
world. It would be necessary, on the contrary, to adopt
a triple classification, into inorganic, organic and social
phenomena.
But the partisans of the organic theory of society
do not admit this classification, and address all their
arguments to the incontestable points of resemblance
between the society and the organism, and to the
analogous processes to which both owe their birth.
Thus do both Lilienfeld and Spencer. They set forth
the correlation which there really is between the phe-
nomena of life and those of society. Like a living
organism, they society grows, differentiates its
say,
structure, develops special functions and separates from
its own substance parts capable of an independent life.

Hence, these authors conclude that society is only an

organism. Such a broad comparison already is of
276 THEORY OF LAW
a kind to throw doubt over the accuracy of their
theory.
Even when we admit the undoubted analogy at some
and society, the complete
points between the organism
analogy between them can be established only under
one condition whose absence reduces the importance of
the concessions which the organic school has attained.
The analogies are possible only *as we compare the
phenomena of a highly developed society; not to a
highly complete, but to a very primitive organism.
Without this it would be impossible to find analogies
between all the organic phenomena and all social ones.

So, if it is true that there is a correlation between the

details of an organic life and those of a social unit, it

is equally true to say that this correlation exists only
is under consideration.
so far as the whole
It cannot be said that the most advanced forms
of society correspond to the most advanced forms
of organic life or that the least perfect forms of the
latter correspond to the most rudimentary forms of the
former. Quite often, on the contrary, the most advanced
forms of social life resemble much more the rudimentary
than they do the advanced forms of organic life. If only
this general correlation exists,doubt rises immediately,
and we ask if it is quite certain that social life presents
us an organism, if it is not rather a combination of
phenomena in some respects like those of organic life.
Another defect in this theory of the equivalence of
society and organism is its vagueness and arbitrariness.
A comparison of Spencer's and Lilienfeld's doctrines
from this point of view is particularly interesting.
According to Spencer the individuals who form a society
may, according to their social position, be compared
to different cells of the organism, the working classes
corresponding to the digestive organs, the ruling classes,
to nerves, etc.
 SOCIAL CONDITIONS 277

Lilienfeld, on the contrary, believes that the men can

be compared only to the nerve cells. The nervous
system of the social organism would, according to him,
include not only the governing organs of society, as
Spencer thought, but quite all the persons composing the
society. The nervous system of a social group would be
its entire population. The other elements are not made
up of men. The distributive system is formed, for ex-
ample, by the network of the means of communication.
The difference between Spencer's theories and those
of Lilienfeld, I think, is a very important one. Both,
however, establish, though in different ways, with equal
success a parallel even in the lowest details between
society and the living organism.
The same uncertainty may be found in the conclu-
sions reached by the organic theories. Most of the
partisans of this theory conclude, indeed, that the state's
field of action ought necessarily to be extended and the
individual's restricted; that the individual ought to be
subjected to society. Thus Schaffle in his organic doc-
trines ends with the conclusions of academic socialism.

Spencer, resting, too, upon his doctrine that the state

is nothing else than an organism, reaches the precisely
opposite conclusion, the individualistic doctrines of free
competition, and an extreme limitation of the state's
social action.
The third defect of this organic conception of society
is that it does not answer to the general object sought

in scientific hypotheses. Every such hypothesis has for

its end the and advancing the application
facilitating
of the deductive method to some branch of science. But
if there is no exact correlation of the forms of organic
life with social ones, and if their comparison leaves the

field open to arbitrary and contradictory conclusions,

then the organic theory evidently cannot serve as a solid
basis for scientific deductions.
278 THEORY OF LAW
Up to the present time, in fact, the organic doctrine
has led to no distinct conclusion; has not to its credit a
single previously unknown principle. It has given to
matter which already existed only a novel form; has only
furnished a new system of exposition, a fresh rubric, a
changed terminology. It has brought nothing new into
the matter. It is, therefore, at least useless. We might
even affirm with proofs to support us, that it has been
harmful. All these comparisons of the social state and
organic life inflame the mind, open up a vast horizon
to the imagination and appear very attractive; but
they are of a nature to turn the student away from less
easy and agreeable but more fruitful labor, the gather-
ing up of new materials for the explanation of the dif-
ferent peculiarities presented by social phenomena.
Such are the defects of the organic theory as a theory.
Let us look at some of its details. Spencer at the begin-
ning of his argument tries to prove the impossibility of
seeing in society only a mechanical aggregate. This
seems for him to follow from society's being made up of
living parts; but that which is made up of separately
living parts cannot form a single living whole.
Then examining the question as to whether society
ought to be considered as a peculiar aggregate distinct
equally from mechanical and from organic ones, Spencer
answers in the negative and finds that in all their essen-
tial properties organic and social aggregates present
complete resemblances. The characteristic peculiarities
of a living organism are, according to Spencer, its growth,
differentiation of its structure, the specialization of func-
tions, its multiplication by birth and its mortality. He
affirms that social life presents also such peculiarities.
The development of society is always accompanied by
its extension which constitutes its growth. The phe-
nomena growth in the social order arise under forms
of
analogous to those of growth in the organic world; by
 SOCIAL CONDITIONS 279

the interior multiplication of cells within the human

society which already an aggregate, and by the an-
is

nexation of new cells from without, as in states by con-

quest and annexation of new provinces.
The development of society is expressed, moreover,
not merely by its extension, but also by the transition
from a condition in which its composition and structure
are uniform towards one where the same elements be-
come more varied,by the formation of castes, of differ-
ent social classes, by the creation of social establishments
and a constantly increasing specialization in each one's
functions.
Spencer shows that there is still at this point of view
a resemblance not only in the whole, but even in the
different forms of the differentiation and specialization.
So the gradual advance of differentiation of governing
bodies in a state corresponds in all points to the differ-
entiation of the nervous system.
Among the lower animals there is but one system, in
higher ones, two: the nervous system that governs ex-
ternal connections of the organism, and the sympathetic
which controls the internal functions. In the same
way in primitive states there is only one system. In
the beginning the military and civil administrations
are compoundedtogether; but little by little, by the in-
cessant development of society, they are separated into
two distinct systems.
The phenomena of multiplication among inferior beings,

segmentation and budding, are compared by Spencer to

phenomena which rise when a state is divided up into
independent ones or when colonies detach themselves
from it. According to Spencer the death of a society
might be difficult to establish in such a way. The nat-
ural death of societies, however, is only hard to exhibit
because the international order is so ill assured that the
dominant states crush the weaker ones before it happens.
280 THEORY OF LAW
But when durable and solid peace shall be established
in the international relations of states, their artificial
death will disappear and we shall have only the natural
death of societies. So, according to Spencer, it is with
the society absolutely as with the organism; it grows,
multiplies, is differentiated, specialized and dies.

But alongside these resemblances are there not also

distinguishing differences? Spencer says not. It is

objected most frequently that society is marked by the

characteristic that there is no material bond between
the human particles that make it up to consolidate its
different social elements into a single whole; it has not

continuity.
This is only an apparent difference, says Spencer.
Just as in the animal the parts which compose it are
each of a different degree of vitality, so in the composi-
tion of society men are not alone in forming it. Terri-

tory plays an important part, and by its intermediation

forms a material bond between individuals.
The only difference which Spencer recognizes between

society and the organism is that in the latter the whole

is the sole end in view, while each part is only a means,
whereas in society the contrary is true. The individuals
constitute the end in the case of society, and the latter
is only a means for realizing human purposes.
Such in outline is Spencer's theory. Does it advance
really the proof of the organic nature of society? As a
matter of fact if we do find the resemblances which he
shows, there are established alongside of them some
essential differences. The two growth observed
forms of
in living organisms ought to be compared, says Spencer,
to those revealed in the developments of social group-
ings. Society grows, also, either by annexing new social
groups come from without, or by the multiplication
of own numbers.
its But growth by annexing new
groups from without is something wholly impossible for
 SOCIAL CONDITIONS 281

the organism; or at least such growth is possible only

for organisms presenting the very lowest degree of dif-
ferentiation in their structure. Organisms having a com-
plex and developed structure cannot grow by this
process.
life, on the contrary, we meet with this form
In social
of growth in the most complex social organizations. The
history of human societies, also, shows us numerous ex-
amples of societies annexing some organ having a highly
special function which it kept after such annexation,
after entering into a new
social aggregate. The history
of modern states of examples of the annexation of
is full

agricultural districts, of industrial centres, of commercial

parts, fortresses, etc., according to Spencer distinct or-
gans and social differentiations of the social body. The
same phenomenon appears in the emigrations of indi-
viduals from one country to another where they con-
tinue to follow their profession. An analogous fact ap-
pears when a member of a foreign dynasty becomes
sovereign of a state; when artists, professors, capitalists
and others migrate into another country.
Spencer's view of the r61e played by emigrations of
peoples is that it is an insignificant fact without weight.

It is sufficient to recall the coming of the negroes into

America, and in our day the beginning of Chinese immi-

gration into the same country. The whole history of
America gives the lie direct to Spencer's theory.

Thespecialization of function though equally present

in social life presents some distinct differences from that
found in living organisms. Specialization in society is
necessarily a mark of a certain degree of development.
The army, for instance, once consisting of all the males
in the society, specializes with time into permanent mili-

tary organizations, mercenary or otherwise, forming a

distinct social element.
But, while in the organism the succession of such steps
282 THEORY OP LAW
of specialization follows in all its phases the same invari-
able advance, it is quite otherwise in social life. In
society the specialization is not without limits; when it

reaches a certain degree, an inverse development com-

mences. So in the universal military service which has
been introduced into almost all the modern states, the
barrier which separates the army from the rest of society
is reduced, and there is something of a return to the

ancient times when the whole people and not a fraction

of them make up the army.
This consideration leads us naturally to another essen-
tial difference. In the organism each cell participates in
a sole rigorously determined function. The same cell
cannot be by turns a bone and a nerve cell. In society,
on the other hand, we find this diversity in the functions
of a single individual. The same person may be succes-
sively a laborer on the soil, a corporation's secretary,
member of a jury, or of a city council, of a legislative
assembly or even president of the republic; and this ac-
cumulation of functions in themselves very different, does
not diminish but, on the contrary, augments with the
development of society. The same thing might be said
as to the phenomena of multiplication.
The separation of parts in a state presents in reality
only a superficial and wholly exterior resemblance to the
multiplication of organisms. In both cases there is an
element which separates out and continues an indepen-
dent existence. But in the organic life the multiplication
of organisms operates to maintain the existence of the

species. The individual is of the same type as his

progenitor, and with them he forms a single species.
Multiplication is above all the production of like

beings.
In social on the contrary, the separation of parts
life,

gives results
quite different. If a province separates
from the state, that separation is the consequence of a
 SOCIAL CONDITIONS 283

distinction, of some peculiarity which provokes the rup-

ture of the two political groups. Ordinarily in such
cases there is a national, religious, or political antago-
nism. The part which cleaves from the other presents
naturally in its new independent organization these es-
sential differences.
The examples North America and of the Balkan
of

Principalities confirm what has just been said, every

separate state has a very distinct individuality. For this
reason the notion of species is not applicable to
states.
With the subject of multiplication is closely bound up
that of the death of societies. Death, limiting the exist-
ence of the individual, is an indispensable condition for
the progress of the species. The law of death for the in-
dividual isthus counterbalanced by the absence of any
fixed limits for the duration of the species. The species,
it is true, may disappear from the earth, but it cannot

be said to be mortal in the same sense as is the indi-

vidual. The individual is foredoomed to die, not merely
when he finds himself in unfavorable conditions, but even
when he is best situated to live. Death comes naturally
with old age. This is why we meet with natural death
wherever we are dealing with individuals and not with
species. These observations indicate clearly enough why
society regarded as a unity does not really either multi-
ply or suffer natural death.
Spencer's theory, according to which the absence of
natural death among societies is only a passing phe-
nomenon, caused by the insufficient development of in-
ternational law, is a gross sophism. If the savage freely
attributes death or accidents to some breach of religious
duty, thisis naturally explained by the peculiar concep-

tion he forms through his superstitions of the world.

The conception is of a purely subjective order. Fero-
cious beasts have instincts still fiercer than those of
284 THEORY OF LAW
primitive man, but cases of natural death are not un-
known among them, as is well ascertained. Spencer's
explanation of the phenomena of natural death is insuffi-

cient, and it is impossible to conclude with him that its

absence in social life is unimportant. On the contrary,

if we take into consideration the connection just indi-

cated between the individual's death and the life of the

species, this trait as distinguishing society from the or-
ganism finds an altogether natural explanation.
We cannot fully assent, either, to Spencer's attempt to
minimize the other differences between the organism and
society, growing out of the absence which he admits of a
material union between the latter 's members, the dis-
continuity in every society of the whole and of its several
parts. Spencer seeks to show that this lack of continu-
ity, this absence of material union between the parts is
only apparent. In this effort he brings in the territory,
the goods, the domestic animals as benumbed members
of the social organism less alive than the other parts, like
an animal's bones, hair or skin. But these latter are in-

tegral parts of the organism resulting from its own nat-

ural activity and essentially different from foreign bodies
attached to it.
Such a theory does not at all explain the existence, for
instance, of the church,whose establishments are often
wholly separated into the remote parts of distant coun-
tries. Groupings having a territorial basis, moreover,
may see their territorial continuity broken by an inter-

vening foreign province or may consist of colonies wholly

separate from the parent country.
As regards the relations of the whole to its parts in the
society and the organism, Spencer asks only the ques-
tion, "Which is the end and which the means used to
reach it?" This question seems wholly idle. Every con-
scious being regards itself as the end, and all else as
only a means. The man regards as a means both cells
 SOCIAL CONDITIONS 285

of which he is made up and the society into which he

enters as an integral element. Such a conception of
purpose is and if the cells could com-
entirely subjective,
prehend and think, they would infallibly consider
themselves as the end, and the rest as only a means
to their existence. A scientific conclusion resting
upon such an entirely subjective premise cannot be
admitted.
If we set aside all teleological notions, we can adopt
a quite different method for proposing and determining
the question as to the relations of parts to the whole in
society. Whether we consider the man as the end and
society as the means, or inversely, we cannot fail to ob-
serve the essential difference between man's relation
to society and the cell's relation to its organism. Man
in society enjoys a far greater independence than does
the cell in the organism. The cell is always simply
and exclusively an attribute of a single organism. It
has no power to participate at the same time in the life
of several organisms. It cannot temporarily quit its or-

ganism for another. In social life, on the contrary,

participation foreigners in local social functions is a
by
very frequent occurrence. It is not only possible, but
becomes increasingly frequent and necessary with social
evolution.
Man can be simultaneously a member of several so-
cieties characteristics and functions differ.
whose Sub-
jects of the Russian state, for example, may be of Ger-
manic nationality and belong at the same time to the
Catholic Church. In such a situation it is not the weak,
isolated individual who is set before the political society's

influence, but, on the contrary, the individual supported

and strengthened by other societies.
A still more important point is that each individual is

not the product exclusively of one given grouping, but

of the united influence of several social combinations.
286 THEORY OP LAW
As the individuals belong at the same time to sev-
eral of these groupings, there arises a diversity, an
extreme multiplicity among the populations of mod-
ern states; there even sometimes results discord, and
the struggle of the individual against his social en-
vironment.
 SOCIAL CONDITIONS 287

Section 37. Of ike Nature of Society

Having thus followed step by step Spencer's parallel

between the organism and society, we have found at the
side of indubitable resemblances, some essential differ-
ences at the points indicated. Let us try to group these
differences and see the connection between them.
In studying sciences relating to the inorganic Vorld, "we
see that all conceptions are invariably based upon
existing facts; all phenomena are determined by present
conditions.
To study the chemical properties of any substance or
the laws of itsmotion there is no need of going back to
the origin of the substance or of its motion, and of know-
ing in what way the body was formed or by what shock
its motion imparted. We
can study the motion in ab-
In the inorganic world,
solute ignorance of its source.
then, everything can be determined by the study of
actual facts.
In mechanics, in physics, in chemistry, the doctrine of
development, the history, the embryology, if we may so
call it, of the science, does not exist. A mechanical ag-
gregate, a pile of stones, for example, can exist indefi-
nitely if its equilibrium is not disturbed. Whenever it is,
the aggregate will fall in pieces, for it cannot adapt itself
to varying external conditions.
The existence of a mechanical aggregate is conditioned
by the present situation. The past has given it no
energy to provide for a new one. For this reason it
can experience no natural death. A pile of stones may
last eternally, or fall quickly to pieces if external condi-
tions alter. The past, in a word, has no influence over
its fate.

If we look now at the phenomena of organic life, we

288 THEORY OF LAW
observe something entirely different; the study of iso-
lated phenomena without examining their successive de-
velopment is impossible. If we take out of the sciences
of organic the study of the genesis of phenomena,
life

there will remain only the nomenclature. To study liv-

ing beings it is necessary to learn the history of their
formation; it is necessary to indicate their place in the
scale of all living beings and to show even its intra-uter-

ine history. The study of the individual's origin is in

the natural sciences an indispensable thing. A zoologist
who should make no embryological investigations could
not explain in a truly scientific manner any phenomenon
of organic life.

So, too, the study of the conditions of the existence of

mechanical aggregates and that of organic bodies pre-
sents some important differences between the two groups
of phenomena. A mass of stones will fall apart at
any time, as has been said, if its conditions of equilib-
rium are disturbed; while every animal possesses vital-
ity from its birth and thereby can adapt itself to a
certain amount of variation in external conditions. The
being offers a certain amount of resistance to unfavor-
able conditions. Spencer defines life as the capacity to
adapt oneself to external conditions. This means that
every animal can adapt itself to conditions because its
existence is to that extent determined by its past, by
the vital force received at birth. The organism can
also in some degree change and adapt external condi-
tions. So, the inorganic world
is determined by present

conditions, the organic one by both the present and the

past.
The laws of heredity show that upon the past of all
mankind and perhaps upon that of the whole organic
world, depends to a certain degree the character and life
of each individual. Each foetus receives a certain degree
of energy which is employed afterwards for the adapta-
 SOCIAL CONDITIONS 289

tion of the individual to the external conditions of his

life. If those conditions are unfavorable, the expenditure
of energy is greater. If they are favorable, it is expended
more slowly; but, however favorable the conditions, there
will come a time when it will be all gone. Individuals do
not normally perish by chance, but because they have
used up their stock of energy in the struggle with the ex-
ternal conditions of life.

If now wepass from the study of organic and inor-

ganic phenomena to that of social ones, we should ask
first if these latter are determined by the present or the

past, or by both, or by some new element. Doubtless,

the general laws which govern the organic and the inor-
ganic world apply equally to the phenomena of social life.
The present plays a great role in all societies. Such, for
example, is the situation in which a state finds itself by
reason of international conditions. To take, for example,
Belgium and Switzerland, their existence is before all else
the result of the present conditions of international life
and of their geographic situation, which is such that no
neighboring state can afford to assent to the taking of
any part of their territory by any other state.

By the side always of the present, the past meanwhile

has always in social affairs an important part. Each gen-
eration has a certain influence upon the development of
future generations' social life; and, moreover, our inheri-
tance from our fathers is of overwhelming importance.
The life and organization of a society yield the more to
the influence of the past, the richer that past is in historic
events, and thus a society actually weak may neverthe-
less subsist a long while merely from the prestige of a
glorious past. Take, for example, the Roman empire.
It continued a long time after contemporary circum-
stances had wrought its decadence. Its past was so rich
that the barbarians, themselves, who had overthrown its
political power, bowed before its civilization.
290 THEORY OF LAW
By the side of the historic life which thus helps deter-
mine social
life, and with
present conditions favorable
its

or otherwise, there is, besides, a third very important

element, which constitutes the characteristic trait of so-
cial phenomena; it is that man endowed with memory
and consciousness passes easily in thought from the past
into the future. Memory and desire are two sides of the
same phenomenon. What man by his experience
has gathered and accumulated in the past, he trans-
fers under one form or another into the future. He
is capable, in a word, of forming a conception of the
future, an ideal.
The an ideal, or on the other hand, its ab-
existence of
sence, are the most important points in the social devel-
opment. We have seen that the animal after expending
all its energy dies; society, on the other hand, does not

perish, however unfavorable its conditions, provided its

ideal is strongly enough traced. There may come, it
is true, circumstances such that the creation and main-
tenance of any such ideal becomes impossible and the
death of the society results inevitably, but this is a very
rare case.
Society, therefore, is controlled by these three distinct
elements:
ist. The present conditions under which it acts.

2d. Its past.

3d. The ideal drawn from that past.

The effect upon social phenomena not merely of past
and present facts, but also of conceptions as to the future
on the part of the society's numbers, has produced neces-
sarily an extreme complexity and independence in social
phenomena. This complexity and independence has still
another explanation.
According to the true saying of Claude Bernard, the
complexity of organic life depends also upon the fact
that besides its external environment each organism has,
 SOCIAL CONDITIONS 291

so to say, an internal environment consisting in its own

liquid element. Thanks to this interior environment,
the organism can keep a high temperature and a
moist condition amid cold and dry surroundings. To
this is due the relative independence of the organism
from surroundings at any particular moment of its
its
life. By this means is established its relation to the
past; since this internal environment is a product of past
activity.
If weapply this comparison to what takes place in
the social order,we may say that society has a triple
environment: first, an external one, formed at any given
moment by its existing physical and geographic condi-
tions and those of the other societies then existing; sec-
ond, an interior environment, composed of the customs
and institutions bequeathed by the past; and, finally, a
special ideal intellectual environment made up of con-
ceptions born in the heads of the individual members of
the society which form a perspective of the future.
This triple connection of social phenomena with pres-
ent, past and future time or, in other words, with the
external, physical, and the interior and intellectual en-
vironment, causes all the differences we are compelled to
recognize between society and the organism.
In affirming that society is affected by a special
idealand intellectual environment, we recognize that
the bond connecting the different members of society
has a moral, psychical character, and explain thus the
absence of any physical connection in human so-
cieties. Psychical phenomena, in fact, are distinguished
before all from material ones in that they do not rest
upon any local base; the spiritual connection between
the members of the same society does not require phys-
ical contact.
In the same way, we explain the possibility of a man's
belonging to different societies at the same time, and
of his belonging to different organs of the same society
292 THEORY OF LAW
at the same time. Ideas, differing in that respect from
matter, are not impenetrable to each other. The possi-
bility of augmenting a society by annexation is explained
by the same means. Moreover, the dependence of social
phenomena upon ideas of the future explains why so-
cieties know no natural death.
In organic life vital energy necessarily exhausts itself
with time, and the more rapidly the more active the life.
In society, on the contrary, although there is an equal
expenditure of energy, there is no exhaustion because the
expenditure is replaced by new force drawn in by the
ideal which guides and inspires the whole society. An-
cient customs disappear, old institutions become useless,
but this does not bring about the death of the society.
If this society still keeps its capacity for psychical crea-
tion, if it continues able to fashion a new ideal, the old
and feeble customs be replaced by new legislation,
will
new beliefs will arise society draw from them a new
and
source of life. So there is no limit to the social life. So-
cieties doubtless can and have perished, but differing in
this respect from mechanical aggregates, they know no
natural death, and this same absence of death as we have
seen, explains the absence of reproduction and multipli-
cation, the one depending upon the other.
The organic notion of society, since it does not serve to
explain phenomena, must give place to the psy-
all social

chical conception of it, which recognizes the ideal that

guides all human society as a factor distinct from the

social aggregates, and which places the phenomena of
social life side by side with these of the organic and inor-

ganic world as an independent group, and one wholly

apart from the phenomena of the world.
1

1
In the second edition of his book, Schaffle reaches the same conclusion. Die
menschliche Gesellschaft ist eine rein geistliche (psychiche) bewirkte durch ideen-
zeichen und durch Kunsthandlungen vollzogene untheilbare Lebensgemeinschaft
organischer Individuen. "Bau und Leben," I, p. 1.
 SOCIAL CONDITIONS 293

In setting aside the organic theory, however, we can-

not fail to recognize the services which it has rendered

to sociology. If the mechanical conception of society has

had a great historical role, we must recognize the same
fact as to the organic conception.
The mechanical theory denied history and its influ-
ence over social phenomena. The organic theory, on
the contrary, has always recognized the existence of a
connection among social phenomena and affirmed the
influence of the past in producing the facts of the pres-
ent. The organic theory, too, has given a new impulse to
the scientific explanation of social phenomena. But that
theory stops half way. How
strange appears on Spen-
it

cer's part, the representative of evolutionism, that he

found it necessary to support himself upon the facts of

the past, but did not at all observe, or did not regard
the future, and never believed in the important part in
the development of society played by this conception of
the future.
The evolutionist theory ought not to stop with the
study of actual facts, unless man's present conception
of the future be included among them. It ought not to
draw its conditions of individual and social development
from the present; it ought to establish the existence of a

continuous progress. Therefore, Spencer ought not to

have limited himself to the study of the past. He ought
to have shown us how society is controlled in its develop-
ment by the conception of the future.
We ourselves insist upon numerous resemblances be-
tween the organism and society, but we believe that
society is an organism presenting important peculiarities
arising out of its power of forming an ideal of the future.
Our explanation answers completely the most varied

hypotheses.
A hypothesis, in truth, to be established, requires that
the causes to which one or another group of phenomena
294 THEORY OF LAW
is traced be true causes; that is to say, that they be truly

a force producing the phenomena of the group, that their

existence be demonstrated and verified.
The verification of a hypothesis consists in the fact
that the results drawn from it by way of deduction must
conform to actual phenomena. So, if the capacity to
form an ideal is a characteristic sign of all social phe-
nomena, we must conclude that this capacity is in direct
proportion with the development of social life. The real-
ity is there to prove for us how far such an assertion is
well founded.
If we compare in fact a civilized society, one in which
the association is for each of its members the highest of
needs, with an embryo people living still in the savage
state, we observe a very great difference, and convince
ourselves of the comparative ease with which the savage
gives up all such connection. The intelligence of the sav-
age peoples is, too, far inferior to that of the civilized.
The weaker social bonds are among people, the weaker
their intellectual development and the greater their care-
lessness of the future.
The savage man, as has been often enough shown, lives
wholly for the present moment without concern as to the
future; he accumulates neither goods nor knowledge by
way of providing for it.
A second conclusion to draw from the theory which
we indicate is that if the notion of the future, the ca-

pacity to create an ideal, is proportional to the de-

velopment of social life, the conditions necessary for the
development of the psychic faculty, creatress of the
ideal, ought at the same time to serve for the develop-
ment of social
life. This is what in fact happens. The
conditions for the development of the psychic life of the
individual, and those of the development of social life,
are identical.
If in the organism the independence of the distinct cells
 SOCIAL CONDITIONS 295

is in inverse proportion to the

development of the organ-
ism as an entirety, we cannot establish on the other
hand in the social life that the independence of the
members of the same society diminishes as the develop-
ment of the society augments. Quite the contrary, in-
dividual independence is one of the prime conditions of
social development. Where the development of indi-
vidual thought is stifled, the growth of the social ideal is

impossible; society retrogrades, finds its development para-

lyzed, its internal as well as external relations less active.
If such a state the very existence of society
persists, may
be put in peril.
Ifthe conditions of psychic and those of social devel-
opment are identical, we ought to understand why a
human group in which the conception of the future plays
an important role is very strongly united and capable of
maintaining itself against unfavorable external condi-
tions.
The whole national life of the Jews, for example, could
be controlled by a conception of the future, by the expec-
tation of the Messiah, despite all the unfavorable condi-
tions of their existence. Meanwhile, the national bond
which unites this scattered people is such as the other
nations may well envy.
If the social relations are determined by the degree of
the development of the ideal formed by individuals, it
must be admitted that in actual social life the conditions
of existence can be modified according to the ideal traced

by the members of the same society, and false notions

may have a great influence upon the social development.

For example, notwithstanding the unquestionable error
of its dogmas, the era when the Mahometan world was
most prosperous was precisely the time when its errone-
ous ideas were most widespread.
No possible limit can be assigned to the social ideal,
and therefore no possible limit can be assigned to social
296 THEORY OP LAW
growth and there is no model type which can be set up
beyond which it is impossible to go.
Such limits, such model types, on the contrary, exist in
the organic world. Living beings do not surpass them,
and having reached them exist for no further end except
multiplication and the maintenance of the species. In
society, too, we observe one entirely different phenom-
enon. A change of ideas can bring about a complete
change in social life.

The ideal of themselves which men may form is so im-

mense that it may embrace all the groupings formed by
similarity of occupation, by habitation, nationality, etc.
So we must reject for society that doctrine of the histor-
which admits for society as for the organism a
ical school

type determined a priori from which insignificant devia-

tions are scarcely possible.

According to this doctrine, there exists in each people

a quite settled natural genius and some peculiarities and
functions equally settled and not subject to alteration in
the course of historic evolution. This doctrine appeared
in the political field as a protest against the ten-
dencies towards revolution at the end of the XVIII
century, and against the attempts made to bring
into our country (Russia) the political institutions of
England.
According to the historical school the political organi-
zation of England is good for England alone, for it corre-
sponds to a national genius very peculiar. France,
Germany, and the other countries ought, on the con-
trary, to develop themselves by other means more con-
formed to their national genius. Just as a bird cannot
become a mammifer, and reciprocally, so no state can
change its institutions, its organization which is con-
formed to the national spirit. This doctrine of the
historical school is false, since we have already seen
that a change produced in the social ideal may
 SOCIAL CONDITIONS 297

bring about a change in the whole social develop-

ment.
The influence of one people
upon the life of another is
a proof of this. The a force supporting the social
ideal is
life and this ideal may be the result not
merely of our
own special experience, but also of the experience of
neighboring peoples.
By the study of another people's organization, of its
political development, the members of a political society
can form a political ideal like to that of such people. In
this way the relations between peoples may bring in a
new element which may determine social relations.
 298 THEORY OF LAW

Section 38. Man's Psychical Nature

TROITZKY. Contemporary German Psychology, 1867.

RIBOT. La psychologic anglaise contemporaine, 1875.
SPENCER, H. Principles of Psychology, 1876.

If we explain the peculiarities of social life by the

psy-
chical character of the bond which combines men into

society, the understanding of man's psychical nature and

of the conditions of his moral development becomes for
us of the highest importance.
Wecannot, of course, enter here into a detailed analy-
sis of psychological theories. Such a study would carry
us too far. It is necessary, in order to explain the nature
of society and the connection between the individual and

society, to outline some ideas derived from contempo-

rary psychology.
Psychology, up to very recent times, was divided be-
tween two extreme tendencies, both going wrong through
their exclusiveness, intuitionism and perceptualism. The
one admits the existence in us of ideas born with us.
For those holding to this side, the individual is born
with a lot of ready-made ideas antedating all personal
experience. These ideas were held to be the same in all
individuals.
The others, on the contrary, considered man as a being
at birth absolutely destitute of any semblance of an
idea, a mere tabula rasa which the experience of life was
to garnish by filling the void with a more or less rich
mass of contents.

According to this second theory each individual is a

being wholly different from all others. He owes every-
thing to his personal experience, and all that he is comes
to him from without. From this point of view the man,
consequently, depends upon external influences; incap-
 SOCIAL CONDITIONS 299

able of autonomous activity, he was a skillfully con-

structed automaton.
In spite of the radical differences and the different
starting point of the two theories they have common
defects. First of all, both are equally remote from the
whole idea of psychic evolution and so are both equally
incapable of furnishing an explanation of the relative
independence of the individual and of the principle of
his relatively autonomous activity.
The idea of psychical development in the individual
is not very old. For a long time there has been recog-
nized the transmission from generation to generation of
a certain amount of knowledge, fruit of the preceding
generation's experience. This was as far as it went.
Only science was regarded as transmissible. The senti-
ments and the will were not. In any case the mind
was deemed unchangeable, and as identical in all classes
of humanity. To the partisans of intuitionism the man
at all stages of his life was the same. There was no
way of modifying his fund of innate ideas.
Under the opposite theory, also, the man had in him
something unchangeable and identical in all individuals,
the tabula rasa. The psychic development was limited,
then, to that of the individual. One generation had no
influence upon another.
This negation of all psychic transmission from one
generation to another prevents either theory from fur-
nishing any explanation of the relative independence
of the milieu in which he lives on the part of each indi-
vidual. For the sensationist, the man was a machine
reacting in an automatic way against external influences.
If you should take away all these influences you would

deprive him of his principle of action. Of himself, he

has no active capacity.
The partisans of the intuitive theory recognize clearly
enough in man a certain activity of his own, but they
300 THEORY OF LAW
explain this activity only by isolating the man from the
ensemble of connected phenomena united together by a
natural bond, and by attributing to him a free will,
entirely independent of all determinate law.
Modern psychology, which has especially developed
itself in England, rejects alike both theories as we have
set them forth. It does not admit the existence of
innate ideas, at least not in the absolute sense in which
the intuitionists assert them. Neither does it believe
our whole psychic life results
like the sensationists that

only from our personal experience and is the product of

external facts.
Modern psychology holds to the mean between these
two conceptions. It recognizes that the whole psychic
life can be explained by the entire experience, external

and internal, by the individual's personal experience,

and by that of all humanity, the collective experience.
The moral life is no longer recognized as simply the
result of external influences, of the individual's environ-
ment. What the man gets from the external world, is
completed and modified in him by the concepts of the
inward experience. So, too, our ideas which are by
connection with the entire development of mankind
derived from universal experience, are as regards par-
ticular individuals innate ideas, bequeathed by the
preceding generation. Such a theory has not the faults
indicated in the preceding theories.
Under man is no longer an automaton
this theory

guided solely by external phenomena. The movements

of his soul may be due to conceptions furnished to him

by his own inner experience. Physiological or even

pathological facts,special dispositions of our own or-

ganisms, may produce in us, independently of any ex-

ternal experience, some special activity of the mind.
We must add to these those actions produced by sen-
timents, tendencies and tastes bequeathed to us by our
 SOCIAL CONDITIONS 301

ancestors, and we can easily explain the relative inde-

pendence of the individual as regards his external envi-
ronment. There will be no need to interpose the opposi-
tion between human actions and physical phenomena,
no need to appeal to any special freedom of the human
will.

Modern psychological theory rejects, also, the ancient

opinion which denied the psychic influence of one gen-
eration over another. If our ideas and sentiments are
a product of the entire secular experience of humanity,
individuals and generations ought to be connected not
only in space but also in time.
The psychic life of each generation is only a link con-
necting former generations with those to come. The
unbroken bond of psychic development through suc-
ceeding generations has its source in psychic heredity,

and this theory in fact gives to the laws of heredity an

important place. They have great importance in all

social sciences because they establish a connection be-
tween each individual and all mankind, past and
future, or at least connection with some particular
nation.
All aptitudes and tendencies, physical and psychical,
are, thanks to the laws of heredity, not a product of
individual life but of man's collective life. The mod-
ern psychological theory recognizes, then, a connected
transmissibility in the psychic development of genera-
tions and sees in the individual in a pre-eminent de-
gree a product of historic and social life. The psychical
character of this social bond which combines men into
communities does not prevent the hereditary social in-
fluence from having a regular and continuous advance.
Human ideas, although they are a distinct factor in
social life, are themselves the result of a regular suc-
cessive development; they develop along with the social
life itself.
302 THEORY OP LAW
An objection has been made to this last idea, that
our wills are not subject to any definite law, not even
that of causation. This opinion has its importance. It
has played so great a part in the history of philosophic
theories and has exercised so great an influence that an
attentive examination of the doctrine of free will is

necessary.
 SOCIAL CONDITIONS 303

Section 39. The Freedom of the Will

SCHOPENHAUER. Ueber die Freiheit des menschlichen Wil-

lens (in Die Beide Grund-Probleme der Ethik). 2d ed.,
1860.
FOUILLEE. La liberte et de determinisme.
BINDING. Die Normen und ihre TJebertretung. Vol. II, Sec.
32.
HERTZ. Das Unrecht, 1880. Sec. II.

It is necessary in order to get an accurate solution, to

state the problem clearly. The freedom of the will is
set in opposition to the idea of conformity to law. But
what do we mean by "law"? We have examined al-
ready what is meant in science by the word. Law,
there, is not some one's order which is the producing
cause of certain phenomena; it is merely that uniformity
of phenomena which men agree in observing.
In fixing this definition of law we avoid all
scientific
confusion. If we recognize in law a force causing phe-
nomena, and the will as a force acting by the side of
law, we shall involve ourselves in the question as to
whether or not the will can also be the cause of phe-
nomena.
The will can be the cause of phenomena only in a
case when the phenomena are not subject to any given
law, if we assume that the law is the cause of phenomena.
With such a notion of law, to say the will can be the
cause of phenomena is to say that it is free, because it
is to say that as vera causa it is not controlled by others.

But to accept such a definition of law would of course

be inconsistent with the definition of a scientific law
just given.
If law is not regarded as a cause of phenomena, but
merely as a formula for an observed uniformity in their
recurrence, to see in the will the determining cause of
304 THEORY OF LAW
an act, is not, necessarily, to admit a separation between
the spheres of application of law and those of the will.
If we admit that law, scientifically, is only a formula

expressing the uniform march of phenomena, the ques-

tion as to the freedom of the will assumes a very different
form.
Experience, drawn from external facts, does not show
us any which can be considered as absolute principles
of phenomena which are to follow. External facts show
us a continual succession of causes and effects and each
phenomenon, while the cause of following ones, is the
effect of those which precede. Absolute principles which
should make certain phenomena result from others
without themselves being the cause of still others in
the future can have, then, no existence. Every ob-
served phenomenon must be considered, then, as merely
a link in the uninterrupted chain of causes and effects.
All phenomena are uniform in this sense, that each is
a cause of future phenomena and a result of preceding
ones. This property of phenomena is the law or principle
of causality.
That this law is an actual one of all phenomena of
the external world admits of no doubt. The question of
the freedom of the will reduces to ascertaining if
itself
our internal experience, differing from external experi-
ence, does not give us a different principle from the
one just stated. Does our internal experience testify
of desires and acts within us which are themselves the
cause of phenomena without being at the same time
themselves the effect of preceding ones?
If the acts of our wills have no cause, are themselves
absolute principles, creators of a series of independent
phenomena, then we must say that our wills are not
subject to the law of causality, and while themselves the
cause of phenomena, they are themselves without cause;
that is, they are free. If, on the other hand, the acts
 SOCIAL CONDITIONS 305

of our wills are the result of preceding impressions, or

desires, or of character, then the will is not free. It is

subject, also, like external facts, to the principle of

causality.
There is here no question as to whether or not the
will serves as a cause of phenomena, but merely of know-
ing whether or not it has, itself, a cause. Most authors
have unluckily mixed these two questions which have
nothing in common. Nobody even among the warmest
defenders of the will's freedom would recognize any such
freedom in an idiot, but undoubtedly the will of an idiot
can also be the cause of phenomena.
In stating the question thus clearly we have wished
to avoid the two most frequent errors on this subject,
the recognizing, first, that fatalism is equivalent to a
negation of the freedom; and second, that a for-
will's
mula can be found which will serve to reconcile freedom
of the will and the principle of causality.
Fatalism answers only the question whether or not
the willis, itself, a cause of phenomena. It replies no,
without troubling itself to ascertain whether or not the
will has itself a cause. Fatalism admitted that every
phenomenon is determined by a supreme will; that fate
rests over all men; that every event must take place

logically, unavoidably and independently of men's wills

or acts. However great men's efforts to avoid the ac-
complishment of any result, fatal necessity none the less
brings it about because of predestination. Death super-
venes, if fate has so ordered, despite all man's efforts.
It even comes more late only if the hour has not yet
struck.
The whole fatalistic doctrine, consequently, comes
back to this, that neither external events nor human
actions depend upon the will, and generally that phe-
nomena take place not by reason of any interdependence
between them, but from some external force. Man does
306 THEORY OF LAW
not control external events and cannot modify them,
whatever he may do with that in view.
This theory reorganized, then, the existence of some
force outside of the uninterrupted chain of phenomena.
It denies the bond of causality between those phe-
nomena and introduces the idea of a perpetual miracle.
This fatalistic conception,however, denies not the will's
freedom, but merely the existence of any law of caus-
ality. Thefatalist's position is sometimes admitted,

strange as it may appear, by those partisans of the uni-

versal sway of the law of causality who rely in their
arguments upon statistics. These last show us that cer-
tain spontaneous human actions in given social condi-
tions are invariably renewed from year to year always
in the same identical way. The annual figures for assas-
sinations, marriages, suicides, etc., are repeated again
and again, often more uniformly than the facts of birth
and death. This proves, say the fatalists, that men's
spontaneous acts are subject to scientific law as clearly
as their involuntary ones.
A false notion of scientific law and an erroneous con-
ception of the question as to the freedom of the will
unite to produce this false affirmation that statistics
prove the existence of laws requiring annually a given
number of crimes, marriages, etc. Statistics do not in

any manner justify such deductions.

If the uniformity in human actions constitutes the
law, that law is not the cause of the phenomena. It
cannot be said that there is an annual fixed figure for
suicides because there isa statistical law which says so.
If there is such an observed uniformity, it is because
the conditions leading to suicide remain from year to
year almost the same. Change these conditions, and
at once a corresponding change occurs in the figures for
suicides. The figures do not prove that any statistical
law is the cause of suicides. They merely indicate
 SOCIAL CONDITIONS 307

uniformity in the causes on which suicides depend, and

that they remain uniform from year to year. If the
suicide depended upon an absolutely free will, no such

uniformity could appear. It is necessary to have always

in mind this idea that the uniformity is the product of
a combination, a series of forces, which engender these
social phenomena.
cannot be admitted, as true, that the laws of sta-
It
tistics express orders of a certain kind, not depending

upon men, which force to the contracting of marriages

and the perpetrating of crimes or suicides; that the mod-
ifications which control the facts of statistics are the con-
sequences of the resistance of the free will of the indi-
vidual to laws leading to these phenomena. The laws
of statistics cannot be so personified. They are not
forces engaged in a struggle with the human will.
The explanation above given of the essential distinc-
tion between fatalism and the free will subjected to
the general law of causation goes far to permit the easy
solution of the entire question as we have stated it.
If, in fact, in denying altogether the existence of any

freedom of the will from the law of causation we are

not thereby forced to accept the doctrine of fatalism,
we have no longer the principal motive for clinging to
the doctrine of the will's freedom. So that we do not
accept the fatalist doctrine, there follow no terrible
consequences, and the question can be put on a wholly
scientific plane.
Another widely spread error, based like the preceding
one upon false logic, consists in admitting the existence
of a half -free will. It is again because of confounding
the fatalist doctrine with the negation of the free will
that such a mixed solution results.
The theory is false.
manifestlyIt is clearly impos-
be by turns free and not free.
sible that the will should
But the partisans of the theory do not state it in such
308 THEORY OF LAW
a clear form. They present it under a much more com-
plex one and one requiring an attentive analysis. I will

examine here three very ingenious attempts to gain

admittance for such a theory.
The first is Fouillee's. He seeks to prove that even
if we do not accept as a starting point the existence of

the will's freedom, yet by a logical reasoning a certain

degree of freedom of the will can be shown to exist.
Let us admit, says he, that our wills are not free, that
all our actions are necessarily determined by our senti-

ments and ideas. If this is so, nevertheless we must

admit that the idea of liberty of the will, like every

other, may serve as a stimulant for our voluntary energy.

We can, in fact, see that the men who are convinced
of the freedom of their own wills act in just about the
same way as if they were really free. The stronger
this conviction is in a man and the more accustomed
he is to guiding himself in accordance with it in all his

acts, the more nearly his conduct approximates to that

of a man whose will should actually be free. There-
fore, though by no means free, the man can by con-
trolling his acts in accordance with this idea of liberty
act nevertheless as a free man and approximate more
and more to the ideal of liberty. He cannot completely
reach this ideal, but he can tend to come always nearer
and nearer to it.
It is not doubtful that the man in guiding himself in
accordance with this false notion of the freedom of his
will can in many cases act as if he were really free. Under
the necessary conditions the idea of liberty may become
the dominating motive of all his activity. In seeking
to show himself and prove to others that he has a free
will, the man may stifle the more natural appeals to
his nature, but he has constrained himself in vain.
Because he has been carried away by this idea of lib-
er tv, he has become no freer on that account. "He has
 SOCIAL CONDITIONS 309

only become a blind and miserable slave of an idea, a

passion. Such a man is like a maniac who imagines him-
self King of Spain. To affirm, as Fouillee has done,
that the belief in his own freedom makes the man free,
is as if one were to say that the maniac's delusion can
really create him King of Spain.
Reid's theory ismore profound. According to him,
impossible to explain all the phenomena of the will
it is

under the principle of causation. If the will did not

have at least some portion of freedom, it would be im-
possible for it to reach a conclusion when in the presence
of two equal motives. For example, if we found before
us when thirsty two glasses of water precisely alike in
all respects, and if there was no freedom of choice, we
would have precisely an equal desire for each and would
undergo the fate of the ass in the legend, which died
between two bundles of hay. We never reach such a
situation, however, but always find ourselves able to
make a choice even between two absolutely identical
objects.
In this possibility of choosing despite the perfect
equality of the things presented to our desires our free-
dom consists. When the motives support each other we
cannot resist them, but if they are equal we can choose
one or the other.
In this manner Reid outlines the frames within which
our freedom can act. The cases in which our opposing
inclinations are absolutely equal are rare enough so that
a liberty, so restrained, would have little practical value.
In most cases the man would not act freely. Reid's
doctrine, however, cannot be accepted. First of all, it
cannot be said that when the motives are equal the
man can make a choice. Cases of hesitation and utter
irresolution are not rare.
Quite frequently it happens
to a man
as to the bride in Gogal's "Marriage," that
he can make no choice. Moreover, when a man, in
310 THEORY OP LAW
spite of a precise equality of motives, does make a choice,
it is not difficult to explain it without resorting for that

purpose to the "freedom of the will." It is explained

simply and completely by the law of the association of

ideas. If the man has ever experienced the painful con-

sequences of indecision, this idea quickly comes back to

his mind, and he at once takes some resolution in order
to avoid such troublesome results.
In Russia, especially, there has spread in these latter
times, the idea that man is in his acts subject to the law
of causation; but not in the same manner as are the
phenomena of the outer world. Human actions are
distinguished from others by the fact that they are
determined not merely by preceding external phe-
nomena, but also in part by those which are to follow.
Man's conduct is not merely the result of impressions
received from without, but also of his moral state, of
his own character. It might be said with regard to the
fall of a stone, that its fall is not caused alone by the

movement of the arm which started it, but also by its

own properties. If instead of throwing a stone, a bit of
down had been thrown, it would have remained in the
air instead of falling to the earth. Consequently, the
resulting phenomena are not merely the result of the
preceding action of the arm, but also of the still earlier
interior movements in the stone which brought about
its own conformation.
The properties of the human
being are certainly more
complex, but there are presented merely considerations
of more and less.
Our Russian conception evidently mixes two essen-
tially distinct questions. Does freedom of the will
merely mean independence of external conditions? Evi-
dently not. Spinoza, for example, agreeing with Des-
cartes, declares that matter can have absolutely no
effect on spirit, but none the less denies the freedom of
 SOCIAL CONDITIONS 311

the will. Wherefore, even if our acts are the result

only of previous external conditions, it is impossible to
affirm the freedom of the will. If internal conditions
are the cause of actions, they are not produced
by any
free will.

So, all attempts to solve in this manner the problem

of freedom of the will are vain. We must put the ques-
tion categorically, "Is the will free or not free?" It
cannot be considered as halfway free. It comes under
the principle of causation or it does not. When the
question is thus put it is very simple, and the answer
by no means doubtful. To maintain that the will is
absolutely free, is in such formal contradiction to the
best known facts that it today hardly finds any longer
a serious defender. Let us resume briefly the rea-
sons which forbid the recognition of a free will's
existence.
all, the law of causation is an absolute prin-
First of
ciple applicable equally without exception to all phe-
nomena in the world. Therefore, there is need of posi-
tive scientifically verified reasons for supposing that the
will is the one force not subject to this law. We shall
see later that such reasons have not been found.
Then we know that phenomena universally have as
a basis the law of the conservation of force. Freedom
of the will is not compatible with this theory. A free
movement of the will is one which is undetermined by
preceding movements and so does not depend upon the
expenditure of energy to produce it.
Finally, let us add to this the further consideration
that freedom of the will is a logical absurdity. Every-
thing in order to exist must do so in a given manner
regulated in advance. This is an indispensable condi-
tion for the maintaining of its own identity. But the
something which does not exist in any deter-
free will is
minate manner, that is to say, it is a contradiction in
312 THEORY OP LAW
terms. If we take into view the conditions of human
life, we
observe that the dependence of the moral life
upon the organism is today an uncontested fact admitted
by all the world, even by the metaphysicians, as for
example, Hartmann. But if psychic phenomena depend
upon the organism and it is subject to the law of causa-
tion, how can they escape that principle. Still further,

the doctrine of the will's freedom is possible only if we

admit the existence of many independent forces in our
souls, and that is a psychological theory which the whole
modern world rejects.
Observation of the facts also shows that the essential
freedom of the will cannot be accepted. Quite fre-
quently it happens that we are not masters of ourselves.
The man accustomed to analyze his own actions can
say in advance for what reasons he will do or not do
some particular act under given circumstances. When
we are not satisfied with ourselves, when we wish to
bring about some change in our manner of acting, to
correct ourselves in some respect, we commence with the
proposition that the will is not free; we avoid malign
influences; we seek circumstances which incline us away
from old habits and tastes; we change the milieu; we
remove to new surroundings. By reading and con-
versation we compel ourselves to establish the new
way of life.

All this is entirely incompatible with freedom of the

will. If the will were free, what would matter the men
with whom we might consort, the books we might read,
our own thoughts or our surroundings, if all this could
not 'in the least affect our desires and our free will were

in no way determined by outer things? Observation of

ourselves leads to the conclusion that our wills are not
free.

Observation of others leads to the same conclusion,

and here the demonstration is still more decisive. All
 SOCIAL CONDITIONS 313

our relations with others are based upon the proposition

that their wills are not free. We mark their character,
study the influences to which they are more or less
subject and guide our own action by the results thus
obtained, relying upon them in dealings with such per-
sons. Supposing the will to be free, we should very
quickly find that durable relations are impossible among
men. We would not know what they are going to do,
and we could not in any way get any influence over
them which could be relied upon. It is, too, only be-
cause we assume that the will is not free that we attempt
to teach the child. If the will were not determined
in any way there would be no such thing as educating

youth.
Observation of oneself and even of oneself in relations
to others and of those others cannot be considered as

rigorously objective observation. The subjective rela-

tion holds too large a place.
But the results of statistics furnish very strong proofs
in support of the doctrine we are maintaining. They
show that human actions which seem the most spon-
taneous and independent are reproduced in precisely the
same number from year to year; whence this conse-
quence is to be drawn, that these acts, altogether spon-
taneous as they seem, are themselves, also determined,
even as all the others.
It has been thought that serious objection was raised
to this latter proof, in urging that the regularity of the
figures furnished by statistics is easily explained by the
law of averages. These are, it is said, average figures
obtained by very numerous observations and have no
value to determine what will take place in any given
instance, and therefore no relation to the problem as to
the free will of the individual.
This objection has no importance. There is in truth
no doubt that the regularity of the statistics is explained
314 THEORY OP LAW
by the law of averages, but the conformity of human
actions to the same law has already proven the regular-
The law of averages itself, of course,
ity of those actions.
presupposes a regularity in the phenomena subject
to it.

If the savant makes his experiments numerous enough

to set aside the peculiarities of the individual bodies he
employs, this necessarily supposes that these bodies
themselves have a certain regularity, and that this
depends upon the law of causation. Where some agency
may have supervened which is not subject to the effect
of law, a miracle for example, in such a case the law of

averages would be inapplicable. The influence of a

supernatural force cannot be set aside by any augumen-
tation of the number of observations, and it is precisely
because any such influence may be disregarded that the
law of averages may be used. It would be the same
with the will if it were free. Freedom, if genuine, would
make the law of averages inapplicable to human actions.
The partisans of free will cannot bring to the support
of their thesis a single argument which is truly sound.
They allege that we are sometimes conscious of freedom.
Does it not happen, in fact, that under certain circum-
stances, we are sometimes conscious of such freedom,
and sometimes, on the contrary, we are perfectly con-
scious that we are not free?
Quite often it happens that we are in doubt between
two conclusions, and determine one way or the other
without any reason. Can it not be said in such a case
that we have acted on our own initiative without being
controlled by anything?
We would answer
this objection by inquiring if such
a case cannot be explained in another way without
recurring to the doctrine of the free will. If we attempt,
as is usually done, to explain our acts by the motives,
alone, of which we are conscious, we shall certainly be
 SOCIAL CONDITIONS 315

compelled to admit that we cannot explain such a case.

But an attentive study of psychic phenomena shows
us that unconscious elements play also an important
part by the side of conscious ones in the mind, and that
these unconscious forces will furnish us the explanation
sought. If it is true that we are unconscious of the

motives which press us to act in such or such a way,

this is not to say that our wills act without any motive
at all. It means only that the determining motive was
an unconscious one.
Thus, the sole objection which the partisans of the
free will can raise, our alleged consciousness of it, would

disappear. It is no more serious than all the others

which have been examined previously and whose weak-
ness has been shown.
316 THEORY OF LAW

Section 40. Society and the Individual

The essential distinction which we have shown be-

tween society and organisms does not lead us to exclude
social phenomena from the principle of causation. The
characterizing quality of society consists in its psychic
nature, but if we recognize moral phenomena generally
and those of the will in particular as subject to the law
of causation, we must recognize social phenomena also
as subject to the same law.
All the factors by which social life is controlled are
determined in advance. They are all subject to the law
of causation. This is why the social phenomena which
they cause must also necessarily be determined. But
if this is so, if social and moral phenomena are them-

selves subject to thelaw of causation, can the individual 1

be opposed to society? Can there properly be any talk
of independence on the individual's part? The question
is double. From the point of view of modern psychol-
ogy can the existence of an individual consciousness be
explained in such a way as to set this consciousness
over against the rest of the universe? Again, can
a certain independence on the individual's part in his
relations with society be established?
The law of association of ideas which serves as a basis
for the whole doctrine of modern psychology explains
what this individual consciousness is. It shows us that

1
Since Cicero's time "individual" has indicated something such as Aris-
totle meant by the expression "aStaiperos," "indivisible." But already
in Boethius this is not the precise meaning. "Individuum" means with him
what is unique.
original, Commentar. ad Porphyr. ed. Basil. 1570.
p. "Individuum autem pluribus dicitur modis.
65. Dicitur individuum
quod animo secari non potest, ut unitas vel men*; dicitur individuum quod
ob soliditatem dividi nequit, ut adamas; dicitur individuum, cuius praedicatis
in reliqua similia non convenit, ut Socrates." This last is also Leibnitz's
meaning.
 SOCIAL CONDITIONS 317

all our impressions from without are accompanied by a

series of impressions which revive in the memory. This
second set of impressions is not as lively and clear as the
first. It does not depend upon the present external

milieu, for these internal impressions remain the same

whatever exterior changes may supervene. We can, as
we choose, strengthen or weaken, revive or remove them.
They are not outside of, but in us. They connect
every distinct particle of our experience into a single
whole, into an uninterrupted chain. Thus, we reach
the consciousness of and come
self to oppose it to
the external world. The negation of the will does
not interfere with the opposing of self to exterior things
nor does it prevent the explaining of individual con-
sciousness.
It may still be objected that the opposition of self to
the world outside, of me to not-me, does not by any
means embrace the whole notion of individuality. It
may be said that such an antithesis gives only a negative
idea of the individual and that his existence is something
positive. He is his own proper end. We represent the
individual to ourselves not only as a being opposed to all
the rest of the universe, but also as one which is its own
supreme end and not serving merely as a means for
the realization of the purpose of some other creature
than itself. If we deny the freedom of the will do we
not deny at the same time that the individual is his own
proper end? If we do not separate the individual

from that chain of phenomena which indissolubly con-

nectsthem together as causes and consequences, do we
not reduce the individual to a state of complete sub-
mission where he ceases to exist for himself and where
he is a mere single link amid all the links of that un-
broken chain?
Whether the will is free or not, it is an error to believe
that it is of decisive importance for the solution of the
318 THEORY OF LAW
question as to whether or not the individual is an end
unto himself.
The
solution of this question depends entirely upon the
significance which we give to the ideas of causation and
finality. If we admit, just once, the existence of an ob-
jective end for which the universe was created and which
has guided its progress through the ages since, every-
thing in the world, and by consequence the individual
also, is inevitably reduced to the condition of a means.
If the universe exists with view to some other end than
itself, all which it contains, of course, is but a means for

reaching that end. The existence in the universe of

a single phenomenon which was not brought about as
a means attaining that end, would render the
for

teleological explanation of the world impossible. The

question of the freedom of the will has no importance
here. Under the teleological conception every indi-
vidual, however endowed with a
free will, would, none
the less, merely as a means to bring about
serve
that end towards which the entire universe is work-
ing.
On the other hand, the explanation of the existence of
the universe by the principle of causation, in denying the
existence of an objective purpose for the whole world,
does away with this idea, that the universe and all which
it contains are but a means. If there is no general pur-
pose, there is, then, no question of means. All is ex-

plained, then, by the causal connection. Everything is

a product or a cause. The explanation furnished by the
principle of causation allows only subjective ends. These
subjective ends are but our ideas. They exist only in our
consciousness and nowhere outside of us. There is no
objective purpose, but, outside of ourselves, only causes
and consequences. With such a conception, evidently,
the individual cannot be recognized as only a means to-
wards an end to which he is a stranger, for the existence
 SOCIAL CONDITIONS 319

of such an end cannot be admitted under the doctrine of

causation.
Whatever are the ends towards which the individual
compels himself to strive, they exist only in him, in his
consciousness. They are ends which he conceives and
whose elements he finds in his own head. From this
point of view, the individual is objectively neither a
means nor an end. Subjectively, it may be said that he
is his own end, in the sense that every end which he con-

ceives is a product of his own consciousness, of his own

intelligence.
The consciousness of the individual in receiving phe-
nomena which present themselves to it from without
compels itself to group them into harmonious and satis-
factory combinations. The imagination, the fancy, fills
out pleasingly the rigorous facts of dry science; and hence
arises the variety in the powers of different indi-
viduals. Each of us has a more or less different concep-
tion of the universe, one more or less embellished. Each
individual, then, makes his own universe distinct from
that of others and which perishes with him. As long as
he lives, it is in this universe which he has made. All
which he receives from without has more or less of an
effect, a place which he assigns it in this world of his
own creation, and it is the individual that is his own
end.
The question of individuality, of the independence
which the individual has in the face of the universe, is
not altogether exhausted by these considerations. It may
be claimed that if we do not admit the freedom of the
will, the individual, even if he does not appear as a means
for the realization ofan end exterior to himself, neverthe-
less playsno part in the universe, his independence quite
disappears, and is lost in the infinite chain of causes and
effects.
If every act of the will is determined necessarily in
320 THEORY OP LAW
advance by some other antecedent act, as in the case of
allthe facts of the outer world, what is there to distin-
guish the individual man from external phenomena?
Naturally, I would not maintain the individual's inde-
pendence so far as to assert its completeness with refer-
ence to the conditions of the world which surrounds him.
The principle of causation cannot be reconciled with such
an independence as that. Nobody can say that the indi-
vidual brings into the world anything absolutely new.
This would contradict the principle of the conservation
of energy. Only relative independence can be asserted.
The difference is only in the more or less. Just as living
beings exhibit an example of quite complete independ-
ence, as compared with inert matter, so the individual
endowed with consciousness would appear very independ-
ent if his condition were compared with that of other
living beings.
The question as to the relations of the individual and
society shows that the mechanical and the organic doc-
trines result in two equally inadmissible conclusions.
The mechanical theory subjects society absolutely to the
individual. The organic theory, on the other hand, con-
siders the individual as merely a subordinate part of the
social organism, a part completely determined by that

organism, one which would seem to be at the same time

the product of that organism and designed to serve for
the realization of the latter's purpose.
The psychic theory is equally remote from each of
these two. It would recognize the influence of society

upon the individual. It admits, even, that he is essen-

tiallya product of society, but at the same time it does

not see in the individual a mere subordinate part of the
great whole which society is. It does not agree with this
idea to regard the individual as only a means for the ac-
complishment of social ends. According to the psychic
theory the individual keeps his independence, his inde-
 SOCIAL CONDITIONS 321

pendent existence and his special ends, differing from

those of society and not subordinate to these latter.
The conception which this last theory sets forth is that
society, being a psychic union of men, admits, thanks to
that fact, of the union of one man with several different
societies.
The individual is the product of society, this is not
disputed, but of several societies and not merely of one.
To the influence over him of one of these societies the
individual opposes that which several others are exercis-
ing upon him at the same time. In this dependence in
which he finds himself upon different societies, the indi-
vidual often finds in some other a counterpoise to the
influence of each particular one. Neither state, nor
church, nor race, nor social class, nor community, nor
family, can entirely subject the individual, precisely be-
cause they each tend to exercise such a subjection.
So, too, though the individual is a product of society,
he is never a simple product of it, never the simple reflec-
tion of the principles which set in motion a given col-
lectivity. Every individual is the product of the simul-
taneous influence of several societies and in each man
can be seen combinations of distinct traits from many
social influences.
Each
individual in society forms a distinct independent
principle which is not completely adapted to the envi-
ronment around it, which is never completely fused with
that society, so as to reach an entire identification with
it.

The individual with characteristics fixed is constantly

in movement, stirred by collisions and struggles. He
tends to transform society little by little and so becomes

himself a source of life and energy, and contributes to

the progress of the social life. The mechanical theory of
society regards the development of social forms only
as
a manifestation of the wills of individuals and that will
322 THEORY OP LAW
as not being determined or limited by any objective
principle. Social progress under this view depends upon
the free will of those who are in control.
Under the organic theory, on the contrary, social de-
velopment is a rigorously objective organic fact which
constrains individuals, even against their wills, to group
themselves according to immutable laws.
From our point of view social development is the re-
sultant of all the conscious tendencies and efforts of
individuals (the active element), which are reacted upon,
also, (and this is the passive element) by an order of

things which is the result of a long historic evolution. The

objective social order is therefore formed, not only under
the influence of the tendencies and efforts of individuals,
but also, under that of objective factors which do
not depend upon man's will and which act throughout
every moment of his existence. The conception which
we hold does not permit us to suppose that society
will become in time a mere product of human art
and will then clothe itself in a purely conventional
form.
 SOCIAL CONDITIONS 323

Section 41. Law and the Social Order

KORKUNOV. The Social Sphere of Law, 1892.

The existence and especially the development of every

organism supposes the preservation of its essential parts.
This is true, indeed, of every aggregate, organic or in-
organic. If the action of some part of the mechanism

destroyed the other parts, the mechanism could not act.

If in a living being some organ develops at the expense
of another, as by depriving the latter of necessary nour-
ishment, the development of the organism as a whole is

arrested.
This equally true of social phenomena. There, too,
is

the and development of the combination depends

life

upon the preservation and due development of the sep-

arate factors which make up society. An exclusive de-
velopment of one of the factors may easily take place in
a way to be injurious to the activity of other factors and
interfere with the regular functions of the society as a
whole.
So far as concerns a mechanical aggregate the bond
connecting its parts is a material one. It is a mechanical

arrangement which co-ordinates the functions of the sev-

eral parts. But as regards society, whose principle of
unity is psychic, the activity of its different elements
must be co-ordinated by some different process. The
factor which institutes and controls this co-ordination in
society is no other than law. Everybody recognizes that
law plays the regulator's part in society, but opinions
divide when it conies to determining what the order is
that law sets up.
If we regard society as a mechanical aggregate of a

given number of individuals, and do not consider the

individual as a product of social life, but, on the con-
324 THEORY OF LAW
trary, this society is looked upon as the result of a volun-
tary agreement of individuals, in a word, if we accept the
mechanical conception of society, the sole active factor in
social life must be the individual and his conscious will.
Under this theory, the social order can be nothing but a
delimitation of the manifestations of separate individual
wills.
The limits assigned to each individual for the exercise
of his freedom of will, limits within which that will rules

unchecked, must constitute his right, his law in the sub-

jective sense. The rules themselves, establishing the
limits for individual wills, make up the objective
law.
Law, in the mechanical theory of society, is some-
thing opposed by the individual to society; something
which the individual, entering into society, brings ready
made with him and with which he seeks to restrain the
pretensions of social authority. The development of the
organic notion, on the other hand, leads us to recog-
nize in law a social order to which the society subjects
the individuals who make it up. Subjective rights are
not from this point of view opposed to social authority,
but are bestowed by it. Law, consequently, is regarded
as made by society itself in its own interest and at the
same time in that of individuals. If we adopt the psy-
chic theory of society we can accept neither of these two
views.
If society has only a psychic bond we cannot regard
law as simply an order imposed by society upon indi-
viduals who are only passive beings. The final basis of
law is the individual consciousness. It is there that the
ideas as to the means to be employed for the delimita-
tion of conflicting interests take their origin; and, conse-
quently, from thence arise all ideas as to juridical norms.
It is only little by little that the notion of right, origi-
nally subjective and individual, has been taken up by
 SOCIAL CONDITIONS 325

others, has spread into constantly greater communities

and has taken the form of customs, juridical practice,
and finally, legislation. Reaching this point in its

development, the primitive conception of right has be-

come an objective factor in social life. In the same
way, too, it is in the individual's consciousness of his ob-
ligations that a solid foundation, a firm basis for the
action of law, is found. Law takes effect, subordinates
to itself the activity of individuals, not, however, in
such a way as to be by itself objectively the sole es-
sence of order in the social life. The actual course
of social life never coincides precisely with its existing
laws.
From a rigorously objective point of view, if we are
satisfied with generalizing actual phenomena, the real
social order would consist of law, and of violations of
law. The significance and power of law consist simply
in this, that it is recognized by all classes as the neces-

sary order of social relations. Wherefore, law is much

less an objectively established subjection of the person to

society than it is a subjective conception by the person

himself of a necessary order of social relations.
We must not conclude, however, that law is always an
exclusively one-sided product of the personal individual
will. The mental fashioning of the necessary order of
social relations is not a conscious and arbitrary matter.
It is only by
little littlethat the individual comes to a
consciousness of such an ideal, and the process is mostly
unconscious. So, he is disposed to consider it as not a
subjective creation, but as a reproduction of an order
of

vital relations already existing inan objective way inde-

pendently of himself. The more
primitive the individ-
ual's intellectual culture, the less he comprehends the
subjective nature of his social ideal, and the less
he dis-
tinguishes between his own subjective conceptions and
the reality which surrounds him.
326 THEORY OF LAW
To go still farther, the individual's conceptions not
only have no arbitrary character. They are not entirely
the act of the individual. The unconscious
processes of
their formation are determined not merely by the sub-
jective qualities of the individual, but also by his envi-
ronment. Moreover, even as regards his subjective qual-
ities, they commonly are formed under the double influ-
ence of heredity and environment.
The social ideal of one individual is usually that of his
neighbor in the same society, at most there are only dif-

ferences of detail.
In the beginning personal peculiarities were fewer, the
forms of human action and of social relations were not
nearly so numerous. State and social life embraced the
whole circle of human life, all the interests of mankind.
Religion itself was a state institution. Under such con-
ditions the whole of the development of the individuals
who composed the state was fixed solely by their mere
environment. There was then no
possibility of meeting,
as today, individuals belonging to different social groups.
The various societies and differing churches did not exist.
The individual ideal was naturally the same in all. So
before the acquiring of individual conceptions as to what
ought to be the regular legal relations between members
of the society, the general rules governing these relations
had become fixed and were known to all the world.

Shaping itself in the course of time the individual con-

showed already a partial devi-
ception of such legal rules
ation from the immemorial uniformity characteristic of
primitive law.
At the same time law does not simply render possible
the coexistence of individuals in some degree of liberty.
Law constitutes, also, an important condition of human
progress. The circle of social life constitutes a com-
bination of interests of the different individuals who
make up society. These interests are very variable and
 SOCIAL CONDITIONS 327

changeable, like those of individuals in that respect. Ac-

cording to the times, in fact according to the different
situations in which he finds himself, the same person is

controlled often by entirely contrary interests. So, in

the general advance of social life there may come the
same contradiction of interests. Under different politi-
cal religious or economical conditions societies are domi-
nated by turns by various interests which concern all
and put in action the whole social activity. If there
comes a change of conditions, a new orientation directs
the social mind, and with it come new interests which
overturn the old. In the absence of law to fix the bounds
for these striving interests the predominance in the society
of certain interests would quickly ruin the weaker ones
and by consequence deprive the society of conditions

indispensable to further development.

its The future
would be sacrificed to the exigencies of the present.
Regular social development would be seriously endan-
gered, indispensable future interests are sacrificed to
if

the controlling one of the moment, for example the one

which seeks to assure public order, when, in seeking to
prevent the dissemination of dangerous doctrines, it would
stifle all manifestation of ideas. Order would perhaps be
restored more quickly, but in the end society would
suffer a grievous calamity if all liberty of the tribune or
of the press were taken away.
Law in delimiting the interests which make up the
social life removes the possibility of such harm. Any in-
terest which has gained a legal standing will always find
some minority to defend it. If the rule of law is accepted

in the societyand the legal rights of minorities respected,

the contemned interest will be upheld by this minority
and the society's future vindicated.
328 THEORY OF LAW

Section 42. The Form of Human Groupings

MOHL. Geschichte und Literatur der Staatswissenschaften, 1855.

1. s. 67 ff.

The arrangement of men into social groups may take

place under very different forms. The chief distinction

among them consists, however, in their origins. Do they

arise voluntarily on the man's part, or independently of
his will? Of course, in the first case we have a voluntary,
and in the latter, an involuntary group. The state and
the family may serve as examples of the latter. Stock
companies, clubs, and learned societies are instances of
the' former.
This distinction based on the origin of the grouping is
very important in the organization of society. The modi-
fication of the man in respect to the society into which
he has come of his own free will cannot be very extensive
since he can always leave it. Vastly greater, however,
ishis subjection to the society of which he is an involun-

tary member.
Societies of the latter category, the so-called necessary

groupings, present three different types. They can be

based upon unity of origin (family, or tribe), upon unity
of territorial location (commune, state), or upon unity of
interests (associations, companies). A certain solidarity,
of course, there is among the members of every grouping,
but in some societies this results from the collective life,
instead of producing the collectivity, in the family and
in the state, for example, while in others it is the basis
and not the result of the grouping. It is easy to see that
this classification of necessary groupings corresponds to
different epochs of the social life.
In the groupings founded upon unity of origin it is the
influence of the past which holds the first place, in those
 SOCIAL CONDITIONS 329

based upon life in the commune it is the present, while

in the groupings which rest upon unity of interests it is

the future.
For a long time social science recognized the existence
only of the first two classes and especially among them
the family and the state. Only towards the end of the
XVIII century did the idea arise that at the side of the
state were other forms of groupings, that men while being
citizens of the same state could also be members of other
associations and could even enter into such relations with
citizens of another state.
Scheltzer first advanced this idea in his treatise on
political science. He indicated the need there was for a
distinct science for the study of those associations spring-

ing up outside of the state and which he called, by anal-

ogy to metaphysics, metapolitical, a science of social
phenomena outside of the state and of political life. He
limited himself to this observation. The practical con-
sequences which he drew from it were of little impor-
tance, and it was only after the appearance of the new
socialistic school that the learned were led to examine
more closely the questions arising as to the groupings.
The socialist school brought forward the conception that
a political reorganization is not sufficient, that there
must be a social reorganization.
The socialists by the side of the conception of a polit-

ical revolution have developed the idea of another, a

social revolution, concerning itself only with social phe-
nomena which they say independently of any par-
exist

ticular organization of government. They have thus

given a new impulse to the study of social groupings

among mankind, groupings which exist along with the

state, and must have a place at its side. This was the
1

practical resu t which they derived

from the doctrine of
the independent social existence of these groupings.
Almost at the same time as the appearance of these
330 THEORY OF LAW
socialistic teachings, Hegel, the renowned German phi-
losopher, tried to establish an intermediary link between
the individual and his family on one side and the state
and its government on the other side. He recognizes in
the development of social life not merely two phases,
but three. The family is not for Hegel what it was for
everybody else in his time, the immediate basis of the
state. The
family, according to him, is the thesis, whose
antithesis is not the state but civil society, which is the
result of the partial disruption of the family. Civil soci-

ety is in opposition to the unity of the family and is an

intermediate step between the family and the state. The
state personifies and combines the unity of the family,
together with the diversity of civil society.

Hegel, meanwhile, though recognizing clearly enough

that the study of society cannot be, as tradition had to
that time made it, limited to the family and the state,
did not define the form of this "civil" society and has
not left us a clear notion of what he thought it was.
Hegel's general dialectics, in fact, admit the existence of
only transitory forms. All phenomena are for him mo-

mentary transitions from thesis to synthesis. In con-

formity to this, civil society, also, assumes with him the
character of antithesis. All the processes of social devel-
opment consist merely in this, the opposing to the unity
of the family the variety of other social forms and in
this method leading to a higher social form, the state.
In this manner his doctrine as to civil society does not
have in Hegel's system an independent value. It appears
as merely an intermediate moment of the development of
social life and must be completed by the appearance of
the state.
Under Hegel's influence and especially under the doc-
trine of socialism, Lorenz Stein in his critical study of
socialism and communism, L'histoire des mouvements
socialistes en Prance, tried thus to set forth his theory
 SOCIAL CONDITIONS 331

of society.Following Hegel's example in his dialectical

method, he asserts distinct movements, one succeeding
to another, the series embracing the entire development
of social lie. At the same time he comes nearer to setting
forth the contents of social life. Examining the socialist

doctrine, he asks what is society? What is this social

reform the socialists are talking about? It should be
said in passing, that the life of the modern state at the
moment when the socialists raised these questions was
such as to call especial attention to economic questions.
The revolution, in breaking the absolute power of the
kings had given more freedom to the third class in soci-
ety, the bourgeoisie, the capitalists, but the fourth class
which constituted the greatest part of the nation were
totally ignored and left out of all these political reforms.
For the members of this last class the economic question
is of the most importance, for, aside from the guaranty

of his menial existence, the law has for him no value.

Stein puts himself at this point of view for his exami-
nation of society, almost solely the economic point of
view.
Therefore, following Hegel's general method and yield-
ing to the direct influence of socialism, Stein gives only
a one-sided view of society. With him, also, the family
appears as the representative of unity, civil society of the
diversity introduced by economic life between which two
the government stands as that which establishes the
unity and national well being of economic interests. No
such narrow conception of society can satisfy the mind.
It was quickly observed that harmonious and seductive
as Hegel's and Stein's systems appeared, they presented

grave defects. They leave, in fact, entirely at one side

certain social forms which cannot, however, be regarded
in modern times as incorporated into the state's govern-
ment. The question of the freedom of associations is
raised practically by the religious societies. Religious
332 THEORY OF LAW
dogmas furnish a basis for a social grouping which is at
the same time extensive and independent, an association
which does not have as a basis any definite frontiers,
nor for its mission any of the ends proposed by the
state.
In the middle ages, when the church herself exercised
politicalpower, there was no occasion to raise the ques-
tion as to the independence of the great society she built
up. The church at that time appeared everywhere as
a political body. The same must be said of the
Protestant churches. They were everywhere state in-
stitutions, and instruments
government were at the
of
same time organs of the church. But in the same degree
that principles of religious liberty developed, to the
extent that the church separated itself from the state,
the identification of church and state were condemned,
and the question of the independence of religious asso-
ciations was once more raised. It is easy to see that
the church plays no economic part. It remains by the
side of the state without forming an integral part of
it, since the same church embraces several states,
adopting different types of social organization, of which
the state cannot be considered either as a part or as the
whole.
German philosophers have sought to give to the theory
of society a wider development and with a double point
of view. On one side the representatives of the organic
school have applied their theory to that of society.
In examining the different manifestations of individual
activity, they have thought that the distinct forms of
grouping ought to correspond to special needs of human
nature. In this way the university satisfies the need of
education; economic associations and the church corre-
spond to some definite needs. The representatives of the
organic school thus have come to recognize a series of
collective groupings each of which is an independent
 SOCIAL CONDITIONS 333

organ satisfying certain needs. Such is the doctrine

of Ahrens.
This doctrine cannot be precisely maintained. R. Mohl
in his interesting article, The Social and Political Sci-
ences, whose main subject isthe nature of society, as
also in his Geschichte und Literatur der Staats "Wissen-
schaften, propounds a serious objection to Ahrens' doc-
trine. This doctrine, says he, shows us a mass of group-
ings, schools, churches, economic associations, etc., but
does not show us any general conception of society in
distinction from the state.
Meanwhile, if we take the church and those various
combinations born of a country's economic life, we dis-
cover an essential resemblance among them. The eccle-
siastical societies arise out of the common interests of the
members because a given group of men holding the same
religious dogmas have need of identical religious cere-
monies. So they form themselves into a society. The
same thing is true as to the associations having an eco-
nomic purpose. Laborers' merchants' land holders' farm-
, , ,

ers', and bankers' associations are created by a common

interest. Between these groups and the church the dif-
ference is said to be only in the basis, but that basis is
found to be identical, a common interest. In the eco-
nomic groupings the basis is an economic common interest,
in the church a religious one.
Mohl, continuing his observations and study of differ-
ent forms of groupings, observes that there are at the
same time numerous variations among the forms which
these associations take. In every state, besides the church
and the associations for economic purposes, there are
classes and ranks which are also groupings of men com-
bined for a common interest. The nobility, the towns-
men, the peasants, are three distinct orders, each asso-
ciated together by common interests. Castes arise later
out of classes, but these latter are already established on
334 THEORY OP LAW
the basis of a common interest, community, culture, in-
struction, etc. If we consider the internal organization

of the modern state we shall see that its different parts

provinces, communes, etc., have also their common
independent life, their common interests independent of
the state at large; with which latter they may even come
into conflict. These common interests have as their
basis the communal life realized upon a certain ter-

ritory. In modern states the distribution of popu-

lation by no means corresponds nationality, but
to
national unity appears as an important factor in inter-
national matters.
In this way Mohl comes by observation to the con-
ception of a category of social groups united by reason
of a community of permanent interests. Each such
group is distinguished from others essentially by the
point in which lies unity of interests. These interests
may or may not coincide with the state's interests.
Citieson the different sides of the borders of two states
may have common interests, as matters of hygiene for
example. So different states may have common inter-
ests in regulating the navigation of a stream flowing
through both. Society which took its birth from the fact
of joint residence on the same territory cannot have the
same limits as the state itself. The different lines of
collective grouping which have been mentioned per-
mit the ranging in the same category all the group-
ings other than those of the state and family. Society,
according to Mohl's definition, is a combination of
human groups whose basis is a common permanent in-
terest.
Mohl's ideas as to the independent existence of society
as distinguished from the state are now widely held.
In the article which we have noted he tried to study
society independently of the state and organize a
system of social sciences comparable to the political
 SOCIAL CONDITIONS 335

sciences. As a whole his theory may be accepted, but

requires some corrections in detail.
It is impossible, for example, to agreewith him that
the nation whose members are connected together by
community of origin and that the communes whose
inhabitants are united by the fact of neighborhood can
be classed together and both regarded as social groups
having for basis the unity of their interests. If the
same nation or the members of the same
citizens of the
commune have common interests it is none the less true
that the community of interests is not the basis, but a
result of this association. The nation or the commune
exists before the individuals who make it up recognize
the unity of their interests. The church, on the con-
trary, is created only by the unity of faith, and the eco-
nomic groups are formed only by and because of the
community of economic interests.
Among the different forms which society may take is
that of the state, which is of the highest importance for
us since the state is the chief factor in the development
of law, and
in the enforcement of its authority against

law-breaking. Wetherefore stop here in a special way

to study the nature of the state, the political society.
 CHAPTER II

THE STATE

Section 43. The Concept of the State

MOHL. Encyclopedia of Political Science, pp. 23, 49-64.

ZACHARIAE. Deutsches Staats und Bundesrecht. 3 Ausg. 1886,
BI. s. 40.
GUMPLOWICZ. Philosophisches Staatsrecht, 1877. s. 15-19.
HUGO PREUSS. Gemeinde, Staat, Reich. 1889.
KORKUNOV. Russian Public Law, I., pp. 1-48. 6th ed., 1908.

Among the different forms of human association, chief

importance must unquestionably be given to the state.
There was a time when it took up into itself all the ac-
tivities, without exception, of human life. Throughout
classical antiquity the man was completely swallowed

up in the citizen of a state. In our day, while at the

side of the state there are a good many other social
groupings, the state succeeds in making its influence felt
at all points of the social life. Under all circumstances
the history of humanity develops itself chiefly under the

form of political activity.

So in studying social phenomena of any sort one col-
lides constantly with questions of the organization, or
of the forms, or of the activity, of the state. For a
long time, as we have already said, the theory of the
state, politics, embraced all the science of social phe-
nomena.
Under such conditions it would seem that a definition
of the state ought to be easily agreed upon by all the
world. It has not been so. If, in truth, we meet with
a great diversity of definitions in literature, this is ex-
336
 SOCIAL CONDITIONS 337

plained by the fact that in most of them is included

matter not pertaining to its purpose.
Thus, first of all, a good many in defining the state
have in view to indicate how it must be in order to be
in harmony with their own views; that is, they trans-
form the definition into a criticism of the state. Mohl,
for example, defines the state as an unique and perma-
nent organism of institutions which, "guided by the
general will, sustainand put in operation the general
and have for their end the aiding of a given people
force,

upon a given territory in all its social activity, internal

as well as external." It is certainly impossible to affirm
that all states have existed have pursued
which exist or

only these permitted ends allowed by this definition,

and have thereby contributed to the development of
human life.

Welker's definition goes farther yet. He defines the

state as personified, sovereign, living and free human
"a
association. Within the limits of its constitutional pact
this combination under the direction of an independent
constitutional government, aspires to liberty under law
and within its limits to the realization of the destiny and
happiness of its numbers."
To the same category, it would seem, belong those

definitionswhich indicate the end which the state ought

to serve. No such definition can satisfy us if we are
seeking one which will apply to all states.
Other definitions are limited to indicating the place in
a given philosophic system which the conception of the
state should occupy. Hegel, for example, defines it as
"the reality of concrete liberty." 1 To comprehend this
definition it is necessary to know what Hegel means by
the terms reality (Wirklichkeit) and concrete liberty (Kon-
kreten Freiheit). This definition offers no meaning apart
i
Hegel's Philosophic des Rechts. Werke B. VIII. s. 314. "Der Staat ist

die Wirk lichkeit des konkreten Freiheits."

338 THEORY OF LAW
from Hegel's system of philosophy. By itself it is non-
sense.

Schelling's definition is of the same character. "The

state," said he, "is the harmony of liberty and necessity."
Such definitions are too subjective despite their wish
to indicate not what the state ought to be but what it
in fact is. They are subjective because they rest upon
a given philosophic conception, which, never having been
objectively proved, depends always upon subjective con-
viction. 1

Finally, very often writers feel compelled to give a

definition which shall settle in advance all the most im-

portant political questions, all the problems which po-

litical science raises, so that the whole doctrine of the

state can be constructed as a series of logical conse-

quences of the given definition. But since many of the

most important questions in political science are still in
our time matters of controversy, it results that we are
given in the definition contested matters for ascertained
facts. Such are the definitions of the state as an organ
of, or as personifying a will. There is hardly need to
say that the definitions, thus settling in advance all these
disputed matters, are far from getting any unanimous
assent.

Universally, in studying historic forms of human soci-

eties, the political character of certain groupings are

hardly ever in doubt. In a good many cases there is

complete unanimity as to the question of whether or

1
Here are some more definitions of the same kind:
Ahrens. Der Staat is in dem allgemeinen Gesellschaftsorganismus der jenige
besondere Organismus, welcher durch das Band des Rechts und vom Mittel-
punkt einer centralen Macht, aus alle gesellscharten Kreise zu einer rechtlichen
Einheit und Ordnung verknupft.
Bluntschli. Der Staat ist der politische organizirte Volksperson eines
bestimmten Landes.
Schulze. Der Staat ist die Vereinigung eines sesshaften Volkes zu einem
organischen Gemelnwesen unter einen bestimmten Verfassung, zur Verwirk-
lichung aller Gemeinswecke des Volksleben, vor allem sur Verstellung der Rechts-
ordnung.
 SOCIAL CONDITIONS 339
not they are or were states. If there is sometimes a
doubt, such as Finland now presents, nobody attaches
to its solution any question as to whether its nature is
organic or personal, or as to the end for which it is or-
ganized, but the one question is whether we can recog-
nize in it the existence of an independent force-using
authority.
But the power of the state is exhibited with special
clearness. Among the social groupings the state is
all

the dominating power par excellence. In antiquity the

state embraced man's whole social life and all the other
forms of groupings were only parts of the state, and
subject to it. The state at that time would be defined
as the typical society, as the grouping which had need
of no other and depended upon no one. It is thus that
Aristotle defines the state.
In the middle ages the state's authority was severely
pressed upon by the great landholders with their ten-
dency to make of the state a mere contractual union be-
tween the representatives of the feudal proprietaries, and
also, by the tendencies of the Roman crmrch which wished
to take power into its own hands. When at the time of
the renaissance authority began to recover its former
rdle, preoccupied, as it then was, with setting aside all
influences capable of upholding the feudal tradition,
there was recognized in the state a sovereign power, an
absolute and unlimited authority. The sovereignty and
supremacy of the state were then considered as its essen-
tial attributes.

This notion of sovereignty was set forth for the first

time by Bodin (De la republique, 1583), who defines
sovereignty as an absolute, unlimited and independent
authority. The same idea was stated in still more en-

ergetic terms by Hobbes, who styles the state "a mortal

divinity." The conception of sovereignty thus under-
stood was maintained until about 1870.
340 THEORY OF LAW
In our day a more careful examination of the condi-
tions attending the organization of federal states and of
the international relations of all states in general has
compelled the late writers to reject the conception of
sovereignty as a distinctive attribute of the state. For
the most part, like Laband and Jellinek, they confine
themselves to recognizing as possible the existence of both
sovereign and non-sovereign states, and the autonomous
existence of states which enter into the formation of a
greater federal state. Others go farther yet and, like
H. Preuss, reject entirely the notion of sovereignty, and
affirm that there is in reality no sovereign state, exer-
cising an absolute and unlimited authority. The author-
ity of each state, they say, is in fact limited and de-
pends externally upon international relations and inter-
nally upon the organization of the different groupings
which compose it.

It is impossible to confute the arguments which

Preuss brings forward. He shows in the course of them
that the state's power based upon the consciousness
is

which men have of their dependence upon the state.

But this consciousness cannot be unconditioned and
absolute, because men recognize their dependence not
only upon the state, but also upon a good many other
societies as necessary as the state. If any society would

pretend absolute dominion over men it would be the

church.
For the real believer, the church's authority is cer-

tainly the greatest of all, for the holy writings teach us

that it is necessary to obey God rather than men. The
church, sole and eternal, does not, like the state, depend
upon conditions of time and space. Finally, in it acts
divine grace, the highest of all powers. So, it cannot
be .affirmed that the state is distinguished from the
church by the possession of absolute and unlimited
authority.
 SOCIAL CONDITIONS 341

The distinctive attribute of the state is that "it alone

employs, in an independent manner, coercive power."

All other societies, however independent they may be
in certain relations, use coercive means only by authori-
zation and under the control of the state. If it some-
times happens that the church uses force, it is so used
only within the limits allowed by local political author-
ity. In the same way, too, the authority of parents over
children, ofhusbands over wives, is established by polit-
and is exercised under the control of gov-
ical legislation
ernmental agencies. There is always an appeal to the
authority of the state from the abuse of coercion in
the church or in the family. The authority of the
communes and of the provinces is equally subject to
this control.
The state, then, isto be regarded as the great dis-
penser of constraint. Political order is distinguished
most of all by this trait, that it is a peaceful order which
allows of no individual violence and only permits itself

to enforce justice. of governmental author-

Only organs
ity have the right of constraint. Private persons and
other associations are permitted to use it only within
the limits where the state authorizes and controls it.

Even in international relations, war is only authorized;

that is, the various acts of hostile violence are performed
only by agencies of the state.
Independent coercive authority, we would say again,
is the characteristic attribute of the state; but this in-
dependence is not such as to be entirely unlimited and
absolutely free. So, while the distinct states which
make up the federal state and are, consequently, sub-
ject to the federation's authority, are of limited com-
petency, they remain states in their own territory and
are independent within the limits of their competency.
Practically this independence is usually expressed by
the fact that they create, themselves, the instruments
342 THEORY OF LAW
designed to enforce their own authority without being
subject in doing so to the federal authority.
On communes and provinces in a uni-
the other hand,
even if they have a considerable degree of
fied state,

autonomy, never have such complete freedom in desig-

nating the personnel of their various organs. The cen-
tral authority keeps the right of controlling the per-
sonnel of the various administrative circles by means
of the direct nomination of some functionaries or, fre-

quently, by approving their election, or frequently again

by means of a right to annul an election and hold a
new if the result of the last one was not in har-
one,
mony with the wishes of the central administration. A
federal government is never armed with such rights over
the states or cantons which form the federal state. No
federal authority is charged with naming state governors,
with approving elections, or dissolving local assemblies
in the states or cantons. The difference is an essential
one.
So far as the central power has no control or direct
influence over themake-up of local administrative bodies,
the limitations imposed on these bodies have only an
exterior and formal character. Their internal character,
the precise orientation of their activity, cannot be de-
termined in advance by formal disposition of law. When,
on the contrary, the central authority takes in hand
the composition of the local administrations, it aug-
ments so far its own influence as to supply, itself, the
main activity of the local organs of power, inasmuch
as it is after depriving them of their local attachment
and independence that it makes them organs of the local
autonomy.
It must be added, a state
too, that the existence of
presupposes, necessarily, an independent control exer-
cised over free men. Otherwise it would be a constraint
employed over slaves and not governmental control.
 SOCIAL CONDITIONS 343

The state supposes always a fixed domination recog-

nized by all. A mere fact of control, an establishment
sustained by force alone, a military occupation, for
example, over an enemy's territory is no state.
So, considering as a whole all that has been observed
we may define the state as a social body asserting for
itself independent, recognized, coercive, governmental
control over a free people.
The attribution to the state of this exclusive right of
coercion is of extreme importance for the whole social
life. There results, first of all, a great reduction in the
number of cases of violence and with it a great economy
of force. The constraint exercised by the state accord-
ing to law does not provoke resistance, because, for one
thing, the preponderance of force is in most cases on
the side of the government and leaves no chance of suc-
cess in a struggle with it. This idea aside, the authority
of government is submitted to voluntarily, from habit
and duty. The change in the character of the constraint
is something still more important. If the state assumes
the sole right to constrain, it ought to exercise it in
all cases of real need. It should be exercised, not only
in cases where such use of it coincides with the state's
own interest, but also in others. If it does not, then
the citizen must necessarily enforce his own right. But
to act for the interest of another is not the same thing
as to act for one's own. The setting in motion of con-
straint exercised by the state with a view to prevent
violence and private wars
is not the consequence of an

unreflecting spontaneous sentiment of government. The

organs of the state to which the task of watching over
the interests of individuals and of other societies is con-
fided are moved
in fulfilling this function solely by the
sentiment of duty; that is to say, the action of power
under such circumstances is tranquil, impartial, and taken
aftermature reflection.
344 THEORY OF LAW
The certainty of success, the consciousness they have
of ability to compel obedience, adds to the calmness in
action of the government's organs. The constraint which
the state employs is not determined, therefore, by un-
reflecting violent natural feelings, but by more general
considerations, better conformed to law and morals.
The constraint is, so to say, disciplined by law. It is

penetrated with ethical principles. This quality in con-

straint is shown at the beginning, only when the gov-
ernment has to repress violences which do not assail its
own personnel. But little by little the state comes to
apply the same principles even when it has to intervene
to protect its own personnel. This movement comes
out clearly when it becomes necessary to rigorously re-
press common law crimes on the one part, and political
offenses on the other.
The which arise over obtaining the
controversies
extradition a political offender are explained pre-
of

cisely by the doubt which is entertained as to the rela-

tions which there ought to be between the injured state
and its neighbors. The manner of acting which is most
equitable, most in conformity with moral sentiment, and
which has been a long time followed, is generalized and
puts its imprint on the whole coercive activity of the
state, which subjects itself more and more to the require-
ments of justice.
 SOCIAL CONDITIONS 345

Section 44. Governmental Authority

KORKUNOV. Ukaz i zakon (Decretals and Law). 1894.

We have defined the state as a social government

invested with coercive and independent authority, but
we have not explained in what that authority consists.
From the days of scholasticism down to ours, the con-
ception of authority was that of a single will, supreme
mistress in the state. The authority of the state has
been sometimes confused with the will of those ruling
in it. Others have conceived the state's authority as
the supreme will and those who hold power as the organs
of that will, which must not be confused with the will
of those governing.
At the first view the identification of the state's au-

thority with the will of those governing seems to cor-

respond well with the reality. The existence of will in
government is an unquestionable fact, and the citizens
are struggling together constantly over its manifestation.
The existence, on the contrary, of some particular supreme
will only appears as a quite vague hypothesis. It is
manifested in practice in the orders and acts of those
governing.
It is in this way that the existence in the political
schools of a whole group of writers who identify the
state's will with the concrete will of those momentarily

governing it, is explained. The best representative of

this class of writers in our day isProf. Max Seydel of
Munich. Such a conception of the state's authority
may appeal to the realist because it rests upon no meta-
physical assumption. The existence of governments and
of their wills is something certain, real, but this alone
does not explain the phenomena of the state's domina-
tion. Submission to political authority cannot be ex-
346 THEORY OF LAW
plained on the basis of the personal power of those who
govern. Political history shows us by numerous exam-

ples that thousands of persons are obedient to the orders

of one, and that one often destitute of intelligence, simply
because that one person was recognized as representing
the state's authority; and celebrated statesmen, on the
other hand, have been compelled to shelter themselves
behind a ruler who was of no importance from the intel-
lectual point of view, but was the bearer of governmental

authority.
Moreover, the submission to rulers is never absolute.
They are obeyed only so far as they are recognized as
representing something higher than their own personal
will. If public opinion pronounces the activity of those
who are at the head of the state to be arbitrary, obedi-
ence falls off very quickly, and a revolution becomes

inevitable.
All this leads to the conclusion that submission to the
state's authority does not depend upon any quality of
the personal will of those who rule, and the dominating
opinion in political literature considers them only as
representatives of a higher will to which that of indi-
viduals ought to be subject. In the middle ages this
sovereign will, manifest in acts of government, was said
to be the divine will. XVIII century political ideas re-
placed this religious notion with that of the social com-
pact.
The authority of the state is considered as the general
will of the citizens who have decided to form a state and
to submit themselves under certain given conditions to
the government which they are establishing. Conform-
ably to this theory, the power which the government
has exists only so far as it is the expression of the general
will in accordance with the social compact.
From about the beginning of the XIX century the
contract theory began to be replaced by others. The
 SOCIAL CONDITIONS 347

state was no longer considered to be a thing of man's

arbitrary institution, but as an objectively necessary form
of human society and as the result of a preconceived
progress of history. In these latter theories of the state's
will, it is no longer the collective will of individuals nor
the divine will. It is the abstract will of the state itself,

regarded as a distinct and independent person which ex-

plains the state's authority. Most writers on constitu-
tional law see in the state's power the expression of the
will of the state itself, of which the government is only
an organ. This explanation, meanwhile, will not answer
the purposes of science. First of all, the state can be
recognized as a person endowed with a distinct will only
by means of a legal fiction. For being a person, the
state lacks the prime condition, unity of personal con-
sciousness. But fictions can only serve to simplify in our
thought the complexity of real phenomena into a con-
ceived and pretended unity, that is, into something we
can grasp better. Fiction is powerless to furnish any
genuine explanation of phenomena.
Power in a state serves precisely as the bond and
recognition of its unity. Every state has its power, and
where there are several such powers, there are several
states. For this reason, if sovereign power is the expres-
sion of will, it must express only a single will. But it is
impossible to explain all the manifestations of the state's
domination as manifestations of one sole will. In his-
tory, the life of a state does not appear as the mani-
festation of one unique will, dominating all others, but,

quite the contrary, it appears as a struggle between op-

posing wills. The legal organization of the state is most
commonly the work of several independent wills, partly
of some and partly of others.
We see this especially in constitutional monarchies.

They are established precisely by a combination of the

will of the sovereign and of that which is expressed by
348 THEORY OF LAW
the national representation, and it is to be observed that
very often it is the constitution itself which, so to say,
divides the will of the state by charging different insti-
tutions with the performance of different functions which
together constitute the state's sovereignty.
Evidently, unity of will is not here anything regarded
as desirable. It would rather appear to be considered a

danger to be guarded against. For the same reason, for

example, the national representatives are divided into
two houses. If the authority of the state lay in a single
unique will, all the efforts of the state would tend towards
the organization of unity in the expression of that will.
It would, by consequence, be impossible to admit of the

separation of the powers of government, of that decen-

tralizationwhich is deemed so necessary in modern times,
and which supposes precisely that the main functions of
the state can be exercised separately and independently
of one another.
But there is another very important argument against
the conception of the state as the embodiment of supreme
will. Not only is it true that all the phenomena of state
control cannot be explained as a manifestation of a single
will; they cannot even be explained as manifestations
of any will whatever. It is in legislation that the will
of the sovereign most distinctly appears. It is, in fact,
the legislator who
gives orders, while the judge pro-
nounces sentences, and the executive acts. Therefore if
sovereignty and will were the same thing, legislation
would necessarily be its prime function. But in the prim-
itive states societies are governed by customary laws and
have no legislation. On the other hand, the state never
does without the administration of justice or without the
executive power. We observe farther that not only the
citizens, but foreigners too, if within the state's territory,
are subject to the organs of its power. The authority
of the state is shown over its own citizens not only in
 SOCIAL CONDITIONS 349

subjecting them passively to its control, but also

in requiring them to contribute actively to its

support.
The citizen differs from the foreigner in that he takes
an active part in the state's life, its preservation and

its development. He performs his duty of submission

to the state not only when he carries out the orders
of his government, but also when he forces himself to
investigate and understand the true needs of the state
and to strive to prevent faults and abuses on the part
of his rulers. If the subjection of citizens in a state
consisted merely in the obligation to carry out its orders,
the state would not last long. It would inevitably soon
fall to pieces. The authority of the rulers' orders does
not have, as one might suppose, its basis in physical
force and external constraint. The different organs of

power in the state are always a minority of the citizens.

Those bound to obey are always more numerous than
their rulers. The obligatory force of government orders
does not rest in the last analysis upon anything
but their
recognition, their tacit acceptance, by
society. Every citizen taken separately is bound to
yield to the orders of the state's officers, not
merely because they require it, but above all because
society, as a whole, has recognized these orders as
obligatory upon each member. To recognize the
authority of such orders, to be morally constrained
to submit to them is not to be reduced to the per-
forming the commands emanating from a stranger's
will.

It should be added that in general the conceptions

of authority and of will should not be confused. Will
is not by itself authority. There are wills without force,
and there is force without will. Authority is given to
a will from the outside. It is something else, quite apart,
and not to be confused with it. The will aspires to
350 THEORY OF LAW
authority, is or is not invested with it. It serves as the

object of will. does not pre-

Farther, authority itself

suppose necessarily a governing will. Take the simplest

case of the use of authority, that by one man over an-
other. This authority can exist without there being any
dominating will. The man who exercises an ascendancy
over another by holiness, genius, talent, or beauty, often
does so without dreaming of it, without wishing for it,
and is sometimes annoyed and troubled by it. The
genuine ascetic,
assuredly, from no
mortifies his flesh
aspiration for power. He crushes all his desires, and
precisely on this account finds himself exercising a very
great authority among men.
Thus, the conception of authority does not necessarily
coincide with that of a dominating will. It happens
that the will dominates, but this does not of necessity
imply that every act of will is with a view to such domi-
nation. Divinities, which are a work of the imagina-
tion, nevertheless dominate. They surely have no ac-
tual will. Man is often subject to ideas which call out
phenomena absolutely foreign to all will, as for example,
the idea of an impending misfortune, that of a malady,
or some superstition, etc. All these examples compel
us to recognize that power does not necessarily pre-
suppose the existence of a will directed towards the
object of domination. Domination does not presuppose
consciousness on the active side, on the part of the
dominator, but on the passive side, the side of the domi-
nated. All those things on which a man thinks he
depends have power over him, whether or not they
are capable of will. For the establishment of the dom-
ination it is not necessary that there be actual depend-
ence. It suffices if there is the consciousness of depend-
ence. In other words, authority depends not on the
will of the ruler, but upon the consciousness of the

subject.
 SOCIAL CONDITIONS 351

If this is so, there is no need of attributing will to

the state and of personifying it in order to explain

the state's authority. Since authority is a force whose
existence conditioned only upon consciousness of de-
is

pendence on the part of the subject, the state must

have authority whether there is in it any conscious
public will or not, so long as the people recognize their
dependence upon the state. Governmental authority
is not any one's will, but is a force arising out of the
citizen's consciousness of his dependence on the state.
352 THEORY OF LAW

Section 45. The Organs of Authority

Governmental authority, as a force conditioned upon

the recognition on the part of the citizens of their de-
pendence with regard to the state, produces in the social
life various phenomena, and, too, of a double kind.
First, it urges the citizen to perform whatever seems in-
dispensable to that state on which he recognizes his own
dependence. On this rest the sentiments of patriotism,
readiness to sacrifice for native land, fondness for polit-
ical activity, etc.; in a word, all that united a people
into one state and serves finally as supports for its
power.
But not exhaust the activity of governmental
this does
control. secondly to the citizens obeying the
It leads
orders of certain persons who are recognized as organs
of state authority. The different acts by which the
state's functions are performed may assist or interfere
with the realization of other human interests. Hence
man's desire to advance the realization of his own in-
terests by its means. He seeks to give to the state's
activity a direction favorable to his own needs. How
shall theman thus subordinate to himself this authority?
Just like any other force, for example one of the forces
of nature. He produces such forces where he needs
them, where they will be useful to him. He is com-
pelled, on the other hand, to paralyze or counteract
them when they are harming his interests.
A force develops freely only when conditions favor
the development. So, for the use of mechanical force a
motor and tools are requisite. Authority, as has been
shown, has its source in men's consciousness of depend-
ence on the state. To incite authority to action needs
only the ability to incite among the citizens this feeling
 SOCIAL CONDITIONS 353

of their dependence and give them a definite object.

The man will best understand how to incite such action
who interprets it best, sets forth most completely the
situation and explains the dependence, the need of a
higher power which is felt by all his fellow citizens.

If a man, for example, is filled with the idea of sick-

ness or death, a sorcerer or physician in whom he has
placed confidence will have almost unlimited power over
him. So, a pious man filled with repentance for an act
just committed will be in absolute dependence upon any-
one whom he really accepts as an interpreter of the
divine will, an intermediary between men and God,
In the same way our consciousness of dependence
upon the state can be utilized by him whom we consider
as the interpreter of the interests of society. Men ac-
quire such a position in several ways, by success in arms.
by the spirit of resolution which they have shown under
pressing circumstances, by wealth, etc. He is never a
sole interpreter. The complexity and diversity of rela-
tions in the of the state always produce naturally
life

a variety of interpreters for the different needs of the

social life.
The
authority of our fellow-citizens is not always a
proof that they are regarded as the best interpreters of
our needs. We often submit to a man simply because
others have done so and because we think those others
more competent judges of his fitness than ourselves.
This submission augments his power and assures him
that he can follow his designs. So, then, our depend-
ence with regard to the state leads us to submit, not
merely to the one we consider as the best interpreter of
our interests, but more often to the one already holding
authority over the majority of our fellow-citizens. Even
when the submission has no political character; when,
for instance, it is religious, it increases the political power
of him who holds it.
354 THEORY OF LAW
We should not forget that purely personal qualities
in the individual play a great part, too, in contributing
to his authority; intellect, force, vigor, birth, wealth,
are factors very important for all who adopt a political
career.
Such are some of the reasons for which we submit as
individuals of the same society to the judgment and the
will of other men. Personal influence, authority over a
greater or smaller mass of persons, these are for us deter-

mining motives which lead to the recognition of this or

that individual as the best interpreter of our needs in
our relations with the state.
But the wills of these individuals do not constitute
the power of the state. Their wills only acquire the
capacity of directing under certain circumstances the
action of the state and controlling its authority. That
authority is not simply the result of their wills, it is the
result of that force which takes its rise from our con-
sciousness of our relations towards the state, towards
that social grouping which has for a mission our protec-
tion against other states without, and against violence
of every kind within, by guaranteeing social peace.
The individuals whom we recognize as the represen-
tatives of the dominating idea are its representatives.
The recognized savants represent science, the artists rep-
resent art; but we certainly do not intend thereby to
personify science or art or to attribute to them a special
will different from that of the savants or of the artists.
In the same sense we should call representatives of the
state those who interpret our social needs without for
that reason, necessarily, attributing to the state any
special will. The state, like science, can have repre-
sentatives without being for that reason endowed with
any distinct will of its own.
Each of us by different processes, individuals as well
as whole social groups, must get some authority from
 SOCIAL CONDITIONS 355

the state as a force for the realization of our own private

interests. This situation produces some conflicts for the
possession and use of the state's power. There are, too,
conflicts and struggles which arise over the possession of
other things. Some conventions, some principles, some
rules for determining interests necessarily spring up.
They quickly become juridical rules which regulate the
employment of the state's authority.
This juridical regulation gives rise to some rights and
some duties in favor of and against each person. It
brings thus into our relations with the state an always
increasing complexity. So long as only de facto rela-
tions exist between the state and the citizen, the sub-
mission is not a duty but a fact. I submit, constantly,
to anyone who produces in me a strong enough idea of
submission. the idea were to disappear the subjec-
If
tion would go with it. But in our relations with him
who holds us under an obligation of duty imposed by
a lawful governmental provision, this submission is a
duty imposed by positive law and not resting simply upon
our consciousness of dependence. Orders from a police-
man are obeyed because important social groups are
subject to him in certain ways. The submission is not
to his personal prestige, but because the law has recog-
nized him by conferring certain authority. This obli-
gation and obedience arose first from consciousness of
dependence upon the state and then from fear of punish-
ment, or of some other disagreeable circumstances to
arisefrom disobedience.
Those persons who have a recognized right of using
within certain limits the state's authority are its organs;
and since what an organ does is generally called its func-
tion, those acts of authority which fall within its legal

competency are called its functions, and even, doing away

with the connection between the organ and its acts,
these last are regarded as functions of authority just as
356 THEORY OF LAW
we call in general the functions of living beings, taken
collectively, functions of organic life.
The realization of functions of authority, in view of
the great diversity among them, requires ordinarily the
activity of many persons and extensive material means.
For this reason state organs are largely not individuals,
but institutions, having a personnel and a more or less

complex organization.
If now we examine the organization of these diverse
institutions we discover that among the persons com-

posing them, some decide precisely the direction to be

given to the organ of authority, and others merely assist
in the work of administration and are under the orders
of the first. So, then, the different institutions in a state
are themselves composed of two categories of organs,
those which decide and whose which merely co-operate
in the execution of decisions.
The organs which decide are the immediate and direct
organs of power narrow sense of the word (Amt-
in the

Pouwir). The
co-operating organs are not immediate
ones, but merely assist those which have the power of
decision. Thus the judge or the tribunal renders jus-
tice,while the clerks, sheriffs, and policemen only co-
operate in the work by getting ready the proceedings,
making the arrest or executing judgments. The co-oper-
ation, too, may take three different forms. It consists
sometimes in preparing the case or affair by co-ordinat-
ing the different elements involved, preparation. Or
it may consist in counsels given to the really deciding

organ, advice. Or, finally, it may consist in carrying

out the conclusion reached, execution.
So these co-operating organs are divided into the
preparative, the consultive, and the executive ones. The
preparative one procures the facts and materials from
which the decision must be made; the consultive pro-
poses a plan for the decision; finally, the executive puts
 SOCIAL CONDITIONS 357
in actual realization the effect of the decision by mate-
rial force. These different functions are not all accom-
plished, however, by distinct organs. A single organ
often unites many functions. Thus in the tribunals ordi-

narily there is no one distinctly charged with the con-

sultive function. With the justice of the peace the pre-
paratory assistance is almost wholly lacking. In other
cases, on the other hand, these accessory organs may
have an excessive, even almost abnormal, development.
So among us (Russia) all the organs of the higher ad-
ministration are co-operative ones. Such are the counsel
of state and the ministry. This distinction between the
different categories of organs is found in a greater or
lessdegree among all the state's institutions. The ab-
sence of consultive organs in the administration of jus-
tice isby no means a necessary condition of those func-
tions. At Rome there was in the tribunals a body of
consultive officers, the assessors. But at Rome the judge
was not a lawyer and must have recourse to skilled assist-
ance, to the jurist, to get the rules of law covering the
particular litigation in hand. The giving of such advice
to the praetor was called assidere. The assessors gradu-
ally obtained official recognition.
In the organization of parliament we find also these
different organs. The two chambers decide by their
votes. The officers, clerks and secretaries prepare mat-
ters for submission. The committees are the consultive
organs and finally the guards, sergeants-at-arms, etc., are
the executives of the purely parliamentary functions.
In the ministries it is the minister himself who decides.
The department constitutes the organ of preparation,
while the consultive organ is the council of state and
the different special advisers appointed for technical quali-
fications. The ministries being central institutions need
no executive organs apart from the general executive of
the state.
358 THEORY OF LAW
Examining the organs which decide we find three
different groups. There are first those systems in which
the power to decide is confided to a special organ. That
organ may be a single person or a board. It is called
unipersonal when the power of deciding is lodged in a
single person even though that person is surrounded with
agencies which co-operate in the manner above indicated.
Thus, in an absolute monarchy the legislative power is
unipersonal even though the ruler has at his side vari-
ous councils whose advice he takes. The government is
collegial when it consists of a combination of persons
who decide by a majority of votes. The majority is

absolute if the decision is by half of the votes plus

all

one. It is called relative, on the other hand, when the

decision is reached by means of more votes than any
competing proposition has, though less than half of all.
It is called a qualified majority if at least a special pro-

portion of the votes, as two-thirds, or three-fourths, is

required.
The form of government involves necessarily
collegial
greater expenses and more delays, but offers a guarantee
of impartiality and is preferable from this point of view.
The unipersonal organization gives to the institution the
greatest speed in acting upon different affairs. The
most important point in selecting the form is to fix the
responsibility with which the functionaries are charged.
Such responsibility may depend upon the character of
the function legislative or judicial, for instance, or
upon the form of government absolute monarchy, for
example. In these cases it is necessary to obviate the
troublesome consequences of lack of responsibility and
to repress the abuses which might result. The collegial
form best answers these conditions. Finally, the power
of deciding may be given to one or several, the decision
of one being conditioned upon the assent of the others,
as at Rome it was conferred upon the two consuls. In
 SOCIAL CONDITIONS 359

our time, too, criminal jurisdiction is given to two boards

at the same
time, the judges and the jury. Between
these last, of course, there is a division of authority,
the jury passing on the question of guilt and the judges
upon the extent of the punishment. The legislature,
also, is commonly separated into two houses. Sometimes
organs which together exercise the power of decision have
a different organization so that they may each serve as a
check upon the other. In this way in some constitu-
tional states matters of legislation are entrusted to par-
liament and at the same time to the sole executive by
allowing him the veto.
Finally, there is the system of several appeals. The
decision which is entrusted to one organ is not neces-
sarily final, and on the demand of the persons or estab-
lishments interested the determination can be revised by
some other organ which in relation to the first occupies
a higher place in the governmental scale. The organ
of decision in the first instance is, as to this higher one,

merely a preparative organ. It renders an effective de-

cision, and if there is no appeal, that decision becomes

final and the higher organ does not act. The number
of tribunals in the series is commonly two or three and
it is especially in judicial institutions that this organiza-
tion is met with.
Consultive institutions are most frequently of the col-
legiate form, but when purely consultive have no power
of decision. According to their character they present
three different types, first, the councils of state, whose
members must have, above all, administrative experi-

ence; then, technical boards; and finally representative

bodies which include representatives of local interests and
of corporations of all kinds.
The function of the councils of state is generally to
assist the organ charged with the final power of decision
especially when this latter is a single person. The rep-
360 THEORY OP LAW
resentative councils aid only those organs which have no
representative quality themselves. The technical coun-
cils are found in connection with all state organs. The
consultive organs had their widest development in the
French Constitution of the year VIII, which applied the
rule: "To act is the function of one person; to delib-

erate, of several." Such a system presents great incon-

veniences. It does not reduce the danger of arbitrary
action. It does diminish the responsibility of the de-

ciding body.
This observation has no application to technical boards.
Their opinions have, or should have, a scientific value
which sets them entirely apart. The preparative bodies
are the bureaux or departments, but their organization is
of no legal importance.
Executive organs assume extremely varied forms. The
most important one is the army, which is under the im-
mediate orders of the chief executive. But the other in-
ternal organs of the inner life of the state are numerous.
Their organization is upon two different systems; either
to each deciding organ there corresponds an executive
one or the general executive power is confided to one
and the same body, as, for instance, the police. The
first isthe English system; the other prevails generally
on the continent and especially in Russia.
Such are the fundamental principles of the state's in-
stitutions. As
for their personnel, it is very different

according to the phase of development reached by the

nation. Three principal epochs are distinguishable, in a
general way, in the development of nations.
At the beginning there is no general system of regu-
lating political organs. The task of government at that
time very simple and the people themselves, without
is

much intermediary, perform it. The organ of legisla-

tive power, the consultive functions and the adminis-
tration of justice are all confused. The people meet for
 SOCIAL CONDITIONS 361

all these purposes in general assembly and the army

consists of the same people combined for war. The
prince and the military chiefs subject to him are the
only distinct organs at this time, and as yet are but
slightly distinguished from the mass of the people.
The second epoch is that of organization by classes.
The government of the state gets into the hands of a
separate class, the nobility for example. This class holds
some of which become hereditary.
all political positions,

Such an organization marks by contrast with the former

an important advance. The class specially charged with
the public service participating in all government action

acquires, naturally, an increasing influence and capacity

from generation to generation. The transmission of these
duties, imitation of ancestors, family tradition, educa-
tion directed from the earliest years towards political
life, all this was for the young noble so much of guar-

antee of his political capacity and energy. His energy,

zeal and devotion to public affairs would go on increas-
ing because, to the ordinary stimulants of interest, duty,
and patriotism, would be presently added that of class
and family distinction.
The organization into classes, however, could not long
stand in the face of general social development. It car-
ried in itself the germ of its own destruction. In the first
place functionaries drawn exclusively from among mem-
bers of one single class of society woulcl represent not
merely the interests of the state but those of their class,
and would surely provoke by their acts discontent among
those excluded from power. As these latter became
stronger they would grasp some part in the direction
of affairs.
Then the ruin of this type of government was caused
alsoby the very development of the specialization which
the administrative function requires. So far as division
of labor and variety of function grows up in the state,
362 THEORY OF LAW
the general preparation, on which the class spirit depends,
becomes insufficient and more and more the requirement
of a special technical preparation becomes imperative.

Presently there is formed a body of individuals to whom

the state service becomes a genuine profession.
With the new organization of government which takes
the place of the old two facts are of special importance.
First, the tendency of influential members of society
to enlarge their privileges as against the nobility and
subject the latter to their control. Second, the forma-
tion of a distinct class of professional functionaries
whose high position in respect to power is an unavoid-
able fact.
The task of government in all modern states requires
a technical preparation. The role of functionary in the
modern state requires so much of the individual's time
as to make the state's service now a real profession.
Moreover, that the government may not be exclusively
in the hands of one class, it is indispensable to give the
other members of society some influence and allow to
them some function in the state. It is for this last
also
reason that the personnel of the different departments
of government comprehends two elements, first, a set of
persons destined to the service of the state as to any
other profession; second, a class of persons who are
merely representatives of the interests of other classes
of society.
In other words, in making up the modern establish-
ments of states, there is a professional and a representa-
tive element both included. The first is to guarantee
competent knowledge and experience. The second is to
serve as a check upon routineand class spirit.
These two elements have to do with each of the dif-
ferent organs of the state. Legislation and the adminis-
tration of justice equally require them. Their combina-
tion varies. Sometimes they are so wholly distinct that
 SOCIAL CONDITIONS 363

the same function is confided to two separate organs

each composed of one of these elements. In most con-
stitutional countries legislation belongs both to the pop-
ular assemblies and the so-called "government." The
judges and the juries represent them respectively in the
administration of justice.
In other cases these two elements enter into organs,
but only one of them is charged with deciding, the other
merely co-operating with the first. This happens when
along with the deciding organ which is professional there
is a consultive part which is representative. It is neces-

sary to distinguish the system which organizes a separa-

tion of these two elements of the organ from that in
which there is a combination of the two. As regards
an organ in the form of a board, this is made up in part
of persons appointed for professional character and in

part of persons elected. In a unipersonal organization

this combination is realized if the one individual unites
in himself a professional and a representative character,
as takes place, for example, when a functionary, appointed
for an indefinite time, as a consequence is called upon to
take part in a local council (Prussian Landrath, or Rus-
sian Chief of Division).
364 THEORY OF LAW

Section 46. The Form of the State's Organization

ZWEIREV. The Main Classification of States.

KORKUNOV. Russian Public Law, I. 8th ed., 1908. pp. 100
131.

Theorganization of public institutions offers a great

diversity, which has its influence over the general struc-
ture, of states. One can always reduce this diversity to
some leading types. The study of these types is also
that of the forms of state organization, or, in other words,
of forms of government. This study early attracted
learned attention. The oldest classification of govern-
ments is that based on the number of those ruling. If
the supreme administration is in one person the govern-
ment is a monarchy; if in a considerable number, it is
an aristocracy; if in all, it is a democracy.

This extremely simple classification is in Herodotus.

It is still in our time the one with the most partisans
even among the most modern schools, as witness Roscher,
for example. Such a classification offers meanwhile some
serious defects, as Aristotle already pointed out. These
defects appear in all their force when the extremely com-
plex organizations of modern states come under consid-
eration.
First of all, who are to be designated as the rulers?
If we mean by this term all those into whose hands any

part of governing authority comes, so that all others are

merely to be regarded as co-operating in the government,
the term monarchy can only properly apply to an abso-
lute one. In a constitutional monarchy, parliament is
not restricted to co-operating towards a decision of the
sovereign, and it is not from him that it gets its power.
On the contrary, it constitutes an independent organ
 SOCIAL CONDITIONS 365

which limits the monarch's power and draws its own

from the people's mandate.
If, on the contrary, we include as rulers those in whose

hands is placed not the whole government in the large

sense of the term, but only the executive power, most
republics, since they have in our times usually a chief
at the head of the executive, would be included under
the name of monarchy. The name of democracy, too,
if defined as government by the whole people, is not
truthfully applicable to any existing state. Nowhere
does the whole populace share in the state's power.
Things presented themselves somewhat differently in an-
tiquity because then those who were deprived of .rights
were usually deprived of them altogether and made slaves.
In defining the government as that of all, all free men
was understood. But in the modern world while every-
body in this sense is free, everybody does not, anywhere,

partake in the functions of public power. Even where

universal suffrage, so called, really exists, it is only one-
fourth of the population which has the right to vote and
of these not more than two-thirds use the right. Con-
sequently only a sixth of the population take part in
elections and the choice is actually made by a majority
of these; that is, by something more than a twelfth of
the whole population.
The number of rulers is in general the result of chance
and circumstances. If this is to be taken as the sole
would be necessary to say that
test of classification it
Russia under Peter the Great ceased to be a monarchy
and became an aristocratic republic. This error of ac-
cepting the number of rulers as the sole ground of classi-
fying governments leads immediately to another one,
that of seeking to find a criterion for classifying states
which would serve to explain all the differences between
one state and another. Thus Plato reduced the differ-
ences in the forms of government to that between the
366 THEORY OF LAW
three virtues, sagacity, courage, and temperance, of
which sometimes one and sometimes another prevailed
in the state. Aristotle counted as the principal distinc-
tion among governments their regular or irregular forms,

counting as regular such as subjected the personal inter-

ests of their rulers, whoever they might be, to those of
the state, and those irregular which placed higher the
personal interests of the rulers.
Montesquieu specially undertook to exhibit the guid-
ing principle in each case and he distinguishes several
principles: virtue in democracy, moderation in aris-
tocracy, honor in monarchy, and fear in tyranny.
Heeren derives the distinction between forms of govern-
ment from distinctions established between individuals.
If the subjects are slaves despoiled of all rights it is a
despotism. If individuals have only civil rights it is

a monarchy, and a republic if the citizens have both

civil and political rights. Lorenz, Stein and Mohl have
sought chiefly to establish the distinctions between

governments upon their relations not to the citizens but

to society.
All these have value for explaining the
definitions
state's activity. To completely a state
characterize
there is need, certainly, to explain the connections which
exist between that state and the moral principles and

subjective rights of the citizens; but all this serves only

to fix the interior life, the social life of the state, without
furnishing a basis for the distinctions of its various
external forms.
it is today universally agreed, may be divided
All states,
into monarchies and republics, but the basis of this dis-
tinction is not the number but the legal situation of
rulers.
In the republic every one who holds any part or parcel
of authority has also some responsibility and this is true
of the humblest elector as well as of the president of
 SOCIAL CONDITIONS 367

the republic himself. In the monarchy, however, there

is an irresponsible organ of authority, the monarch.
This difference of responsibility in the first case, and
lack of it in the second, is the characteristic in their
functions. The difference is not in the number of per-
sons exercising those functions. The President of the
United States has more power than the King of Eng-
land, but the President is responsible to Congress and
so is not a monarch. The King of England on the other
hand is not responsible and therefore, despite the nar-
row limits of his power, remains none the less a mon-
arch.
The character of the state's organization cannot fail
to be modified by the fact that a holder of power which
he is exercising in his own right and not as a state man-
datary is irresponsible. If there is in the state an irre-

sponsible subject, some of the legal rules established

with a view to assuring order become to that extent des-
titute of sanctions. They maintain a certain force and
importance but they derive it, as against such privilege,
from morals or usage, not from legal effect. So in a
republic the legal organization of the state is more thor-
oughly wrought out than in a monarchy. But on the
other side, the personification of the state's authority in
the monarch is for the advantage, as Stein points out,

of the state's independence in the exercise of its authority

over powerful social classes.
These two conditions have compelled the recognition
of the difference between monarchy and republic as a
fundamental one among the forms of the state's organi-
zation. It is necessary to add further that the chief of
the state, called upon to represent it at home and abroad
participates more or less in all that is done in the state's
name, in legislation, justice, or administration. This is

why the independence of the monarch's power and his

irresponsibility have a certain influence upon all the
368 THEORY OF LAW
manifestations of the state's power. The monarchial
principlerequires that nothing be done contrary to
or even aside from the monarch's will. In his name
justice is rendered. He appoints all the high function-
aries of government. To him belongs the right of veto
and so of deciding upon the law and its promulgation.
All these powers the president, too, has, but the dif-
ference is enormous. In the first case the laws are
promulgated by an irresponsible sovereign, in the sec-
ond by a functionary responsible for his acts before the
people.
Fromthe monarch's irresponsibility results finally the
essential peculiarities of the monarchical government.
It is possible,and such examples could be cited, that the
government should be in the hands of several irrespon-
sible individuals, but this is exceptional. The exercise
of an irresponsible power is hard to reconcile with the
division of that power into several hands. In a mon-
archy, therefore, we see generally that all manifestations
of power tend towards the unipersonal form.
The republic, on the contrary, is better suited to a
collegiate organization of government. It is better suited
to the republican principle, which is always to subject
more and more the powers of government to the people;
and, so far as modern republics show a preference for
unipersonal forms, it is because of the influence of mon-
archical ideas. Where, as in Switzerland, a republican
organization has long existed, it is under the collegiate

form.
In the same way hereditary power is conformable to
monarchy and elective power to a republic. Only hered-
itary power is completely independent. Elective mon-
archies have always shown a transitory form, and today
have all disappeared. Even in these elective monarchies
the power of the monarch was always for life, and not
for a limited time as in republics, and this because such
 SOCIAL CONDITIONS 369

limited power leads to a fatal dependence on the citizens.

So, too, in republics the president is always elected for
a definite time and usually a short one. The most com-
mon term is ten years. This was the term under the
French constitution of the year eight for the consuls.
The French president now is elected for seven years.
So, then, irresponsibility of the monarch, who governs
without being subjected to another organ, and by his
own power, constitutes the essential distinctive mark of a
monarchical organization of government, and establishes
the fundamental distinction between it and the repub-
lican form. But both the monarchical and the re-
publican principle may receive a more or less complete
application.
Monarchies can assume different forms according as
the state's authority is centralized in the monarch's
hands and all the organs of government act only by his
orders, or, on the contrary, according as there are other
agencies outside of him, for example the popular repre-
sentatives, which retain some portion of public power.
In the first case when all the authority is in the mon-
arch's hands it is an absolute monarchy, and is a con-

stitutional monarchy when the authority is shared by

the national representatives.
The multiplicity of forms of republican government
cannot rest merely on different combinations of republi-
can and monarchical principles. If there is monarchical
power, however limited it may be, there is no place for
a republic. Republics, however, are distinguished ac-
cording to the degree, more or less advanced, of the
realization of the republican principle, according to the

greater or less subordination of all the organs of author-

ity to the will of the people. The greater the partici-
pation of the people in public power, the less independ-
ent are the institutions and mandataries of the people.
A distinction is made between true republics and repre-
370 THEORY OF LAW
sentative republics. The first is an organization where
the people participate directly in the legislative function.
A representative republic, on the contrary, is one in
which this right does not belong directly to the -people
but is confided to representatives, and the people have
only the right of naming these.
 SOCIAL CONDITIONS 371

Section 47. Power and Law

IHERING. Zweck im Recht. I, 1884. pp. 176 ff.

Whatever may be the state's organization, whatever

powers it have, the human conscience tends always

may
to subject this power to legal rules. To the interests of
power are necessarily opposed the principles of law. In
submitting to the authority of the state the citizen
requires of the organs of power a similar submission to
law, because to whatever height the interest of author-
ity of order may rise, it can never wholly annihilate and
engulf men's other interests. In centralizing force into
its hands the state thereby assures to all its citizens good

order in all their mutual relations. In defending its in-

ternational independence and external power the state
assures at the same time the preservation and develop-
ment of national culture and the social life of the
*

country.
But however important the state's function may be in
thus assuring the preservation and development of so-
ciety there is a throng of other human interests which
are liable to fall into conflict with those of the state.
The individualregards himself as his own supreme
who
end cannot consent to the sacrifice of all his interests
to sustain order and peace which are in his eyes only
a means for reaching that supreme end. For this reason
he opposes, altogether naturally, to the interests of power
his own interests, and guards and defends them against
the grasp of the state. This is the origin of those legal
rules which delimit the interests liable to fall into con-
flict, the state's on the one hand and the individual's
on the other. This limitation, applied to the rights of
the state, goes on developing increasingly, keeping pace
372 THEORY OF LAW
with social development itself, and has appeared at all
epochs of history. No government denies the existence
of these legal obligations and the greater the political

development of the society the greater also is the circle

of these obligations. But how explain this limitation
applied to power by law?
For the partisans of natural law this question received
one of the simplest of solutions. Certain rights, said
they, are inherent in the individual, in his quality as a
human being. They are independent of the state, exist-
ing outside of it, absolute and inalienable. By conse-
quence they escape all action of authority itself. It is
these rights which form the basis of the limitations upon
political power. The existence of these limits is so much
the more natural, as the authority of the state rests upon
the free agreement of individuals.
But the question cannot today, when the doctrines of
the school of natural law are no longer admitted, receive
the same solution. Today, only the existence of posi-
tive law created by the historic development of human
and in it the authority of the state
societies is accepted,
most important factors. How then
constitutes one of the
explain the birth and development of law in a society
united precisely by a common obedience to the state?
How could this law create the rules which limit the func-
tions and powers of the state itself?
In the theory which identifies the power of the state
with its will, dominating all, the restrictions which the
law applies to this power can be explained only by the
considerations of opportunity, or by the idea of the ends
of the state. If power is the will which dominates all

and there no natural law to limit this will, the restric-

is

tions imposed by law upon the state's activity can be

explained only as limitations to which that dominating

will consents with a view to some personal end. It is

the autolimitation of the state which is the source of

 SOCIAL CONDITIONS 373

constitutional restrictions. It is thus that Ihering ex-

1
plains the birth of this law.
For Ihering, all law in a general way is created exclu-
sively by the state's authority and is merely the product
of the state's power. He shows first of all that conform-
ity to law is the first condition of political force. Phys-
ical force can never take the place of one acting accord-
ing to reason. The best politics, Ihering concludes,
isconformity to law. This conception is very simple.
In fact the state's power in becoming less extended,
in limiting itself in order to act conformably to law,

only strengthens itself; because this restriction makes

the sentiment of law so much stronger in society. There
is no roomfor doubt that the chief support of the state's

power only a strongly developed sentiment in favor

is

of legality. Power in a state can never be supported

solely upon physical force, because the ruling portion
of a state is always a minority of the society. Conse-
quently this feeling in favor of legality is so important
a support. It leads the citizens to discharge the legis-
lature's demands and guarantees the enforcement of the
law by them, even in cases where such enforcement
conflicts with their special interests. We can under-
stand that this sentiment should be the principal force
in government, for it induces the voluntary submission
and restrains the power of the state within
of individuals
fixed limits; for despotic power is one of the leading
hindrances to the development of the sentiment of re-
spect for law. This sentiment makes necessary for all
a rigorous observation of the law, above all for those
charged with power, and particularly for the organs of
the government.
1
Die Gewalt gelangt zum Recht nicht als zu etwas ihr Fremden, das sie von
ausserhalff Rechtsgefuhl, entlehnen und nicht als zu etwas Hoheren dem
vom
sie im Gefiihl ihren Inferioritat sich unterordnen musste, sondern sie treibt
das Recht als Maas ihrer selbst aus sich heraus das Recht als Politik der
Gewalt.
374 THEORY OF LAW
At the side of this consideration which urges power
to act in conformity with the laws, which assign limits
to its freedom of action, another at the same time presses
it towards the same result; it is the idea that a regu-
lar organization is the condition for successful discharge
of the state's functions.
Regular organization effects in-
deed a great economy of force and would seem, also, to
be one of the bases of the state's power. But such a
condition can be maintained only if the most rigorous
equality is observed among the organs of power.

Thus, according to Ihering, there are two reasons

which explain the self-limitation of the state's power:
first, because in thus limiting itself it strengthens the
sentiment of legality which is the principal source from
which it draws its own strength; and then, because legal

rules being recognized as obligatory, not only by the

citizens but by the organs of power as well, the force
of the state thereby gains a regular organization and
effects an economy of strength.

Ihering's suggestions evidently contain a large part of

the truth. If the representatives of power are well ad-
vised and understand their situation they will assuredly
limit their activity with a view to their personal inter-
est and in order to consolidate their authority. But all

this doesnot yet explain how all the limitations imposed

upon power for the juridical organization of the state
are consequences of a conscious self-limitation of its
power established solely for its own interest. This would,
firstof all, contradict Ihering's own doctrine according
to which the law's development does but follow as a
result of the conflict of interests. If law is such a result

of conflicting interests there cannot be a simple self-

limitation set up by power. The history of the devel-
opment of constitutional government shows, in fact, that
it very rarely that the government consents volun-
is

tarily to submit to the restraint of law.

 SOCIAL CONDITIONS 375

In most cases the restraints upon political power, ap-

plied by law, are the result of an embittered conflict
between different elements of the society. These re-
strictions are not in all cases imposed solely because of
considerations of advantage and, consequently, they do
not present an optional but an obligatory character, as
a result of being established independently of the opin-
ions of the different organs of power. Our conception
of political power, looking at it, not as a force which
has its source in the will of the government, but rather
as one arising from the feeling of dependence on the part
of the subjects, furnishes a more satisfactory explanation
of the law's control over the state's power. It explains
this restriction as an objective fact quite independent of

any calculations of advantage on the part of the organs

of power themselves.
If political power rests upon the consciousness which
the subjects have of their dependence upon the state,
this is sufficient to determine the nature of the acts of
power and the conditions of their realization. These
acts cannot be determined merely by the will of the
rulers. For an organ of power to draw its strength from
the notion of dependence with regard to the state with
which the citizens are penetrated, the acts of that organ
must have a certain harmony with the ideas held by the
citizens as to their relations to law and to individual
and social freedom. The power
of the state exists only
to the extent that accepted by the consciousness of
it is

the citizens, and for this reason the notions which in-
dividuals have as to their own freedom and social liberty
a
produce corresponding restriction upon the state's power.
Thus, the limitation of power by law arises not only from
well-advised representatives of the state's power limiting
it by the rights of the citizens, but also and especially
from the fact that the idea which the citizens have of
their dependence upon the state is never unlimited, and
376 THEORY OP LAW
with the development of social life, with the creation
of a throng of other societies at the side of the state
and with the growth of international relations this feel-
ing of dependence on the state becomes more and more
restricted.
The power which the state has over us, and the limi-
tations applied to that power by law, have a common
basis, which is the notion which we have of our depend-
ence upon the state, and also the consciousness which we
have that there is a whole category of interests opposed to

the interests of power and that they require that an as-

certained limitation be applied to the state's activity.
 SOCIAL CONDITIONS 377

Section 48. Combinations of Governmental Powers

VOROSHILOV. The Division of Powers, 1874.

FUZIER-HERMAN. La Separation des Pouvoirs.
KORKUNOV. Decrees and Legislation, 1894, pp. 193, 227.

Men do not recognize themselves as subjected to the

state in any unlimited and absolute fashion, and this is
why in accepting the necessity of such subordination

they recognize at the same time that the organs of power

are also obliged to conform to legal rules which regulate
the relations between the interests of power and those of
individuals.
Such is the general and essential basis on which rests
the limitation applied by law to the state's power. But
even in a state of small extent there are so many and
such complex institutions that this notion alone of the
necessary existence of such limitations is not sufficient
to secure that all the acts of power shall conform to
legal requirements. In addition to this the organs of
power must be disposed in such a way as to make diffi-
cult, if not impossible, encroachments upon the law's
domain. It is only in our time, with our numerous
political theories as to the state and the individual, that
this questionhas been studied.
Montesquieu, in his famous theory of the separation
of the powers, indicates such a separation as the only
means for the guaranteeing of liberty. This theory is
found in Book XI of his L'esprit des Lois, 1748, which
has for a title, Of Laws with Regard to Political Liberty
Considered in Relation to the Constitution.
The different states,Montesquieu, pursue dif-
says
ferent ends. Rome pursued the augmentation of her
territory, Sparta, war; Judea was wholly devoted to
religion, Marseilles to commerce, China to peace, and
378 THEORY OF LAW
Rhodes to navigation. Savage peoples still seek natural
liberty. Despotic states are given up to the sovereign's
will. The monarchy seeks glory. Poland sought inde-
pendence for each citizen and ended in general servitude.
Finally there is one people all whose efforts turn towards
the single end of political liberty. That people is the
English. Their organization certainly comes the nearest
to liberty.
In the whole state there are three powers, first, the
legislative; second, the executive as to international re-
lations; law relations.
third, the executive as to private
The promulgated the laws whether transitory or
first

territorial; the second made war and peace, sent am-

bassadors and repelled invasions; and the third pun-
shed crimes and executed legal process, was the judi-
cialpower.
the same individual or institution united at the
If
same time legislative and executive powers, liberty
would no longer remain, for it was to be feared that the
same person would proclaim tyrannical laws and then
execute them tyranically. Liberty would no longer exist
if the judicial power were not separate from the legis-

lative and executive; for then, laws over life and liberty
would be arbitrary because the judge would be at the
same time the legislator. If the judicial were combined
with the executive the judge would readily become an
oppressor.
In fine, all liberty would disappear if the three powers
fell into the hands of the same individual so that the
same person should hold all three. Such a government
would have as complete a power of executing the laws
as of making them. It could ruin the state at pleasure

by its general dispositions and pursue and condemn each

citizen by its special judgments.
All those who have power seek to abuse it. They
seek always its increase so far as possible. To avoid
 SOCIAL CONDITIONS 379

arbitrariness it is necessary to confide the exercise of

public authority to several powers so that one shall serve
as a check upon the other. The judicial power ought
not to be given to a permanent body but to be left to
chosen individuals elected by the people to hold such a
position for a short time.
In this way this terrible power not being given to a
classnor to a given profession would become like some-
thing invisible, like zero. It would not be the judges
which would be before the mind; one would look to
the judgment and not to the judges. The other two
powers, on the other hand, can be given to permanent
bodies since they are not in direct relations with indi-
viduals.
In a free state every man ought to govern himself,
and, by consequence, the legislative power should belong
to the whole people; but in the great states this is an
impossibility. Even in small ones this causes too much
inconvenience. The people, therefore, must act by rep-
resentatives.
In every state some men are distinguished by birth,

by wealth or by glory. they are confused with the

If

mass of the people and have like the rest only the author-
ity of their vote, liberty would be slavery for them and
they would have no interest to defend it. Their partic-
ipation in the legislative power ought to be propor-
tional to the prerogatives which they have in the state;
but they will be so only if they form a distinct chamber

possessing the right to veto the conclusions reached by

the house of representatives, and this latter should have
the like power over the conclusions of the other house.
So the power should be confided to two
legislative
separate houses, the house of lords and the representa-
tives of the people. This organization presents another
advantage, also. Since the judicial having no perma-
nent representative can be considered as null there would
380 THEORY OF LAW
be left only the two, the executive and legislative powers ;

and these two have need of a third, a moderating power.

The house of lords can fill this place, and the executive

power be confided to the monarch for this power requires

;

prompt action and is better confided to one than to

several.

Montesquieu's theory very quickly became popular.

It received many applications and served as chief director
for the American and European constitutions of the end
of the of the XIX centuries.
XVIII and beginning But
presently the accuracy of the theory began to be doubted.
A more profound study of the English constitution showed
that this rigorous separation of the three powers which
Montesquieu thought he had found in it did not in
reality exist there.
The English parliament is not in reality limited to

legislative functions. It extends its influence over every

part of the government.

Different attempts have been made to correct Montes-
quieu's doctrine, and among these ought to be cited those
of Benjamin Constant and of Hegel. Constant thought
that only the ministers had executive power and that the
king had none, but only a moderating power.
1

The king occupies a peculiar place above all parties

and has no other interest than that of maintaining order
and liberty equally for all. The monarch's lofty situa-
tion ought to inspire him with an ardent desire for peace.
His place, one might say, is above human passions and
the chef-d'auwe of the political organization consists pre-'
cisely in this, that amid the discords and above them
there is created an inviolable sphere of peace, of gran-

deur and of impartiality which permits all quarrels to

end of themselves or else stops them in time by legal
means. If the danger is caused by the ministers the
king has the right to dismiss them. If the house of
1
Benj. Constant Principes de Politiqae, 1875. Chap. II.
 SOCIAL CONDITIONS 381

lords becomes a menace by an obstinate resistance, the

king may name new peers. If it is the house of com-
mons, he may dissolve it. Finally, against injustice per-
petrated by the judiciary he may interpose his power of
pardon.
Hegel, like Benjamin Constant, regards the king as a
distinctpower and believes that the judiciary and ex-
ecutive are only branches of one power. He distin-
guishes only two powers, aside from the king's, the
power of determining general principles or legislative
power of bringing particular cases under a general rule,
a power of government which is exercised at once in
judicial and executive administration. These different
attempts to modify Montesquieu's theory can hardly be
accepted.
First of all the joining into one power that of the
judiciary and the
legislature cannot be accepted. The
historic development of the social life furnishes us with
the proof that the judiciary cannot be considered as
merely a special branch of the executive power. It sep-
arates from the general executive before the legislative
power itself does, and one should rather consider, plac-
ing himself at the historical point of view, the executive
and legislative as two branches of a unique power of
government. The delimitation between the legislative
and the executive functions is much less rigorous than
that between the judiciary and the other two. The
legislative power constantly needs to resort to the execu-
tive to carry out its enactments. The judiciary scarcely
ever experiences such a necessity.
The very character of the functions offers more re-
semblance between executive and legislative than be-
tween the former and the judiciary. Legislation and
the carrying of it into effect both look to the future.
Both are seeking to set up something new and assume a
creative character. The judiciary, on the contrary, plays
382 THEORY OF LAW
a part that has to do with the past. It brings forth
nothing new. It merely protects existing rights. Its
activity is essentially conservative. The administration
of justice is guided in its activity solely by the prin-
ciples of law. Legislation and the executive power on
the other hand are guided principally by views of ad-
vantage, by opportunism. The law serves only as an
external limit and not as an internal principle to guide
their activity.
This distinction in functions exercises also a certain
influence over the organization of the institutions charged
with performing them. The organization of legislative
and of executive institutions present much more resem-
blance to each other than do those of the judiciary and
the executive compared as a whole. Judicial institutions
rest entirely on the principle of their independence as
regards both society and government. It is, in fact, on
this condition alone that justice can be freely admin-
istered and the principles of law applied. The organiza-
tion of the legislative and executive institutions rest on
different The national representation and
principles.
local autonomy subject them constantly to the action of
society. Ministerial responsibility subordinates execu-
tive power to the Finally, the whole organ-
legislature.
ization of executive institutions rests upon the principle
of monarchic control of different administrative organs.
The lower power acts always in accordance with indica-
tions from above. Judicial institutions on the contrary,
even in courts of first instance, act independently and
upon no one's orders.
Judicial power offers some characteristics so distinct
that a special science has been formed whose subject of
study is judicial procedure and organization. The study
and of the executive departments of gov-
of the legislative
ernment on the contrary have always gone together and
have constituted one science, that of constitutional law.
 SOCIAL CONDITIONS 383

To complete Montesquieu's theory by adding to it a

special moderating power is almost equivalent to deny-
ing his theory absolutely, so far as he proposes to accom-
plish this ''moderation" by distributing the state's
powers and functions among different institutions.

Montesquieu affirms that it is precisely this distribution

of powers which safeguards liberty without disturbing
the harmony of social relations. There is, then, accord-
ing to him no need of a special tempering function to
unite the others. Harmony among political powers
according to Montesquieu is the result of proper
distribution among the different and to
institutions,
ask if a special moderating function among them is

needful is equivalent to asking whether his theory is

good or bad.
Since Montesquieu's time it has been quite the habit
to teach that the separation of the powers, the distribu-
tion of the functions which make up the public power
among several different holders, really constitutes the
surest guarantee of the individual's freedom.
Montesquieu already gave to his theory a categorical
formula by declaring that only the distribution of these
powers in accordance with his principles could assure
liberty. His successors have gone farther. Placing this
separation upon a philosophic basis, while he only gave it
a concrete expression, they declare it absolutely necessary.
Such attempts to split up the powers are false. The
elements of public power cannot be reduced to a single
absolute unchangeable principle. The elements out of
which it is formed are developed little by little along
with the social life itself. They are not the result of
the dismemberment of an abstract notion of power,
but they constitute the differentiation in the manifes-
tations of that power as concrete phenomena. The
three powers as Montesquieu distinguishes them, are
not an indispensable attribute of every state.
384 THEORY OF LAW
At the time when the whole legal life was controlled
by custom, there was no legislative power. The state
did not fulfill that function. The legislative power only
appeared later with the state's development. But the
development of the state did not stop with the appear-
ance of the three functions of power. The greater the
state's activity, the more complicated its role, the more
varied, also, are the forms of its power, its elements,
and their functions. Once the power of the state did not
speak through general rules. Today it is no longer sat-
isfiedwith one form of generalization. Several are nec-
essary for its use and it employs constitutions, legis-
lation and general decrees and administrative rules.
with the development of the state the functions
If
of the state's power also develop, we cannot assuredly
make the guarantee of liberty depend upon his par-
ticular division of the functions of power. Liberty is
no longer guaranteed by a special distribution alone
of power among these functions, but by a general dis-
tribution
among different institutions. The distribution
may vary from moment to moment.
These are not rectifications of detail; but, on the con-
trary, this general observation prevents the theory of

Montesquieu from becoming one capable of truly ex-

plaining all the forms for the distribution of functions
of power among different organs.
Montesquieu presents his theory as if the reciprocal
limitation of organs of power were only possible if there
is a distribution among them of different functions of
power, and he takes no account of other functions than
executive, legislative, and judiciary. At the start it

cannot be admitted that this reciprocal check of the

different organs of power is truly the result of a wise
distribution of the functions of government among its

Why, indeed, should

organs for guaranteeing freedom.
the mutual dependence and moderation of each other
 SOCIAL CONDITIONS 385

on the part of these organs assure liberty? Because,

says Montesquieu, all holders of power are tempted

to abuse it. That it may not be abused one holder

must be able to check another. But the abuse of power
consists in an organ's performing its functions not in
the general interest of the whole state, but in some per-
sonal interest. With such a discharge of functions of
power, dependence upon the state turns into a per-
sonal dependence upon the organs of power, and the
citizens' liberty is no longer respected, since it depends
not upon objective conditions of the social life,but
upon subjective considerations in the mind of the per-
son controlling the organ of power which uses for his
benefit all the state's force.
It is, of course, impossible to assure the entire dis-

appearance of such abuses. Power can only be exer-

cised through organs composed of men who are subject
to their own passions, their own aspirations, their own
interests, real or imaginary. Collision between personal
interests, therefore, and the state's are always inevitable
and italways to be feared that personal interests,
is

being the warmer and the more directly effective upon

men, will overcome the more remote and abstract inter-
ests of the state.
It is impossible to change human nature and uproot
from the human soul its passions and interests. Some
guarantee, then, of the
general interests by
state's
means of such an organization that the different ambi-
tions of men shall themselves neutralize each other, is
needed. This object will be in a degree obtained if the
different functions of power are entrusted, not to a single

person, but to several, in such a way that each impor-

tant act of power shall not depend exclusively on a single
will.

Among several individuals personal interests ordinarily

differ and those individuals seek each on his own behalf
386 THEORY OF LAW
the realization of his own interest, so that contention
promptly arises. This weakens the influence of private
interests which may come to nothingness by mutual
opposition.
The general interests of the state have equal weight
with all individuals and are not paralyzed when en-
trusted to several persons because they tend in the
same direction, but they are thus, on the contrary, freed
from the effects of individual interests.
Such a result is reached not only by entrusting the
different functions of power to different organs, but by

giving the same function to different ones at the same

time. It is not simply the legislative, judicial and ad-
ministrative organs that modify each other's action, but,
also, the two Roman consuls, each possessing equally
the same powers, mutually checked and limited each
other in exercising them. Each of them, exactly be-
cause he had power equal to his colleague, could annul
the orders and acts of the other and though both exer-
cised the same functions, between them as individuals
there was an opposition of powers that produced a re-
ciprocal limitation.
It is at bottom the same principle which is found
under the modern organization of the legislature into
two houses, with this difference always, that a conclu-
sion by either one is in no case sufficient, and an agree-
ment between the two chambers is required for a valid
act.
In all these examples the same function is performed
by several organs at the same time, all of them having
equal authority. There is no subordination among
them. It may happen, however, that the various organs

charged with the same function may be subordinate

one to another. This happens in the case of appel-
late courts. The higher ones can arrest the action of
the lower ones. The converse is not true, and it is
 SOCIAL CONDITIONS 387

to be observed that the action of these courts is not

simultaneous but successive. Naturally different ones,
having more or less power, but possessing equally juris-
diction, moderate reciprocally each other's activity.
In this way the mutual moderation of each other's
action by the organs of power in a state is sought not
only by entrusting its different functions to different
organs, but, also, by giving the same one to different
organs. There are, however, other means for moderat-
ing the wills which direct the state's power.
The organs of power are ordinarily represented by
institutions composed of a number of persons. Even
in the unipersonal organization of institutions it is un-
usual that the power of decision, properly speaking,
belongs to a single person. He is commonly aided by
others charged with co-operating in these functions.
The organ of decision is thus surrounded with con-
sultive organs, advisory boards, executives, etc., always

composed of a good many persons. The special influ-

ence of each person depends as much upon the organ-
ization (collegiate or unipersonal) as upon the pro-
cedure adopted for dispatching of affairs.
This influence depends, too, upon the way in which
questions are voted upon, whether unanimity, or only
a majority is required, and if the latter, whether an
absolute or only a relative one must be had. Must
there be a public or only a secret inspection of the
vote? The same affairs may be voted on in different

ways same
in the council with different results accord-

ing as one or another method of procedure is followed.

So, too, the different ways in which all the organs par-
ticipate, organs of co-operation, consultive or advisory,
have also an influence upon the action of the deciding
organ. In Russia, for example, although all matters
belonging to the supreme administration are to be re-
solved by the monarch, in fact, however, it is of
388 THEORY OF LAW
much importance for an affair's determination to know
who has prepared it, the council of state, the council
of ministers or some particular minister.
Then, too, different procedures applied by the same
organs influence the decision of any given question.
The setting in motion of a special procedure of course
favors the action of the will of the agent who has
charge of that process. Well, it is precisely in the
influence of procedure upon the direction of governmental
activity that guarantees of impartiality must be sought.
The government, in setting in motion for its purposes
of administration the activity of its
agents, compels
them to conform to precise rules, makes their wills im-
personal and impartial.
There is, too, a certain separation of powers not
only between different institutions, but in the same
organ between different aspects of its activity. Such
a separation of powers in the same organ having for
its object the limiting of the action of power there
is, example, in the case where the same organ,
for

following the same procedure, is charged with estab-

lishing constitutional measures and with passing or-
dinary legislation. It cannot be said that the omnipo-
tence of parliament has in such a case suffered any
loss by the setting up of the new constitutional rule.
The revision is not entrusted to any special organ,
yet, always, the modification of constitutional pro-
visions is more difficult and by this fact the legis-
lative activity of parliament finds a certain limitation.
The same distinction exists, too, under an absolute
monarchy when there is adopted for the promulgation
of general legislation a special procedure, distinct from
that followed in the case of decrees of the emperor. The
absolute monarch is omnipotent like
parliament the
which is also the constituent assembly. But, if only
those acts of the emperor which are put out in a certain
 SOCIAL CONDITIONS 389

form, have the force of law, his power is none the less
limited in a certain degree. The consultive council, for
example, if there is one, ought to be advised before the
promulgation of the law.
The power of the state can then be limited in three
different ways, and not simply by the separation of the
powers; first, by distributing different functions among
different organs, then, by executing the same function
by different organs, and finally by giving several func-
tions to the same organ but requiring under differing
conditions different procedures.
All these forms can be brought under one conception,
that of the combination and collaboration of powers.
The mutual checking brought about by this adjustment
of acts of power, results, always, in the combination of
powers in some one of the three forms just indicated.
These do not apply the same checking
different forms
which make up the state's power.
effect to all the forces
This check appears most of all in the execution of the
same function by several organs. In this case each
organ has an absolutely equal power with its associate
organ, and every act which it performs can be set aside
by an act of the other. When the different functions are
discharged by different organs their mutual moderating
effect is less direct. Each organ in the discharge of its
own function entirely independent, and their action on
is

each other only indirect, and is caused by the fact

is

that they depend upon one another for the functions

with which they are charged. Thus, for example, when
the legislative power is separated from the executive the
latter would be limited only in the degree that it
would depend upon the legislature. In the performance
of its own discretionary powers there would be no limita-
tion.
This reciprocal limitation is still more reduced when
it is the same organ which is charged with different
390 THEORY OF LAW
functions, each following a special form of procedure.
In this case the limitation does notassume the form of
opposition between independent wills but that of mutual
influence, as the two cannot of course be at the same
time equal and one subordinate to the other; the one
being charged with deciding, the other only with co-oper-
ation.
These three forms of combinations of power can be
joined to one another, and form new combinations which
would create a greater variety in the functions of the
different organs of the state. The functions of power
can be subdivided in various ways among different or-
gans and also the same organ can perform various func-
tions. Such an adjustment is in contradiction to the
specialization of the organ's activity, but would not do
away with the reciprocal limitations to which they are
respectively subject. We have already shown that the
combination of powers is a principle altogether opposed
to that of the division of labor. This is why such a mode
of activity does not necessarily suppose specialization of
the organs of power, and each organ may not always per-
form the same identical function. The complex combi-
nation of powers only supposes the resolution of different
acts of power into their integral elements and the per-
formance of different elements of the same act by different
organs, so limiting one another.
It is quite possible that the same organ in different
cases performs different functions. If, for example, a

legislative organ has the right of sanctioning a budget,

and also that of calling a minister to account, these func-
tions quite naturally become very diverse, and the or-
gan's specialization is reduced; but the cases in which
the different organs limit each other become more and
more numerous because an agreement between the two
powers, legislative and executive, becomes more neces-
sary, needs to be more permanent. We would say the
 SOCIAL CONDITIONS 391

same so far as concerns the part of the chief executive in

preparing laws, when he possesses the right of veto. His
functions become more varied and less specialized, but
the reciprocal limitations of the legislature and the
executive go on enlarging.
So, when the principle of the separation of powers is
raised up to the more general one of the combination of
powers, the facts of political life which were found to
be incompatible with the principle of the separation
of powers, are found to be explained completely by the
more general principle of their combinations and collabo-
ration.
There no state in which the three powers, executive,
is

legislativeand judiciary, are wholly and rigorously sepa-

rated from each other. Even in states whose constitu-
tions proclaim an absolute separation of them, such sepa-
ration cannot in fact be accomplished. The executive
power does not stop with enforcing the law. It makes,
itself, some general rules of procedure which are legal
norms. The legislative bodies do not merely promulgate
laws, properly so called, but they put out, also, admin-
istrative orders under the form of legislative acts, and so
encroach upon the domain of the executive. All of these
facts contradict absolutely the principle of the separation
of the three powers. The principle of the combination of
the powers, on the contrary, explains these facts as
special cases of collaboration.
 BOOK IV
POSITIVE LAW
CHAPTER I

THE SOURCES OF POSITIVE LAW

Section 49. Positive Law
The permanent connection between men leads us to
make our conception of law objective. Legal rules primi-
tively elaborated by the subjective consciousness find
an objective expression under the conditions of social
life in customs, which are a result of juridical prac-

tice, andin legislation, the instrument of governmen-

tal power. All these external forms of law do not depend
for on the subjective consciousness.
existence merely
Customs, judicial practice, legislation, present them-
selves as something objective. The very changes which
occur in customs and in law and which go to make up
the phenomena of social life, are not caused according to
the laws of mental phenomena, but according to the
special laws of social life. However, the subjective con-
ception of rights is not destroyed by customs, by judicial
practice, norby legislation. This conception goes on de-
veloping as a necessary manifestation of the individ-
ual's psychic life and as it is more mobile and not
so subject to laws of its own, it can hardly fail to develop

differences from the law which is expressed in objective

forms.
Hence a division of law into two parts: the legal rules
on the one side expressed under the forms of customs and
of legislation constituting the positive law, and the law,
"right," on the other side, under its subjective form
393
394 THEORY OF LAW
which develops freely. This division exists not only in
law but throughout the whole domain of human activity
under the influence of the conditions of social life. Doubt-
less, in spite of the subjective conditions of human activ-

ity, despite all individual qualities, knowledge, and ex-

perience, the social and intellectual life go on developing

more and more. They have grown unceasingly by the
labor of former generationsand may be considered as the
capital of human activity. But all this culture thus ob-
tained cannot destroy the individual factor and is at the
same time a guarantee of the development of the race.
A fruitful activity is impossible for any one unless it is
conformed to this social culture which has been slowly
elaborated, but the creative factor remains always
the individual. This social culture is, like capital,
the fruit of labor, and powerless to produce new
values unless new labor comes to its aid. So, the
development of human life depends upon subjective con-
ditions.
Positive law is only one element of this social culture,
and, as each social stage is only a heritage from past gen-

can neither destroy nor replace

erations, it results that it
that subjective conception of law and right which springs
from the immediate needs of the present life and upon
which depends the further development of the positive
law itself.
To imagine a juridical life which should be absolutely
determined by positive law alone, without any partici-
pation of the subjective conception, is something as
impossible as to imagine a religion without any religious
sentiment, morals without conscience or feeling of moral
duty, or a nation without the individual's productive
activity.
Positive law depends necessarily upon the subjective
conception of right, but, at the same time, as it consists
in a heritage from the past it can never be in perfect
 POSITIVE LAW 395

correlation with the subjective conception of the present

generation. In positive law there is always an element,
already grown old, which does not answer to modern
needs or to modern conceptions of justice. This is why
positive law has sometimes been regarded as an heredi-
tary malady of human society.
1

In all cases the subjection of human relations to the

rules of positive law is something vexatious and troubles
somewhat the free development of social life. Some such
considerations as to positive law are mingled, however,
with others much more favorable.
First of all positive law offers thesame advantages as
are possessed by society. In using the positive law to
we are using something
regulate our mutual relations
which has been modified and elaborated by a whole
course of generations. The individual's subjective con-
ception cannot embrace the infinitely varied and multi-
plied relations of the law. I might elaborate, myself,

voluntarily, a number of cases in which my interests

would conflict with those of my fellows, but these cases,

relatively few, might easily fail to fit some circumstances

of which I had not dreamed. Positive law, being a prod-
uct of the experience of many centuries, is always much
more complete than any possible conception of subjec-
tive right.
The idea of doing without positive law, constructed by
successive generations, might be held at a time when it
was believed that there was a natural law, a system of
legal rules created by nature herself. This eternal and
absolute law must appear as more complete than the
gradually developed positive law. But if we no longer
recognize the existence of natural law, we can no 'onger
set up against positive law any but a subjective concep-
tion of right and law, a conception itself gradually devel-
1
"Es erben sich Gesetz und Rechte
Wie eine ewige Krankheit fort." Goethe
396 THEORY OF LAW
oped under the influence of multiplied conditions and
which cannot possibly replace positive law.
If positive law is more complete, it is also more gen-
eral. Juridical norms regulate our interests, all the inter-
ests of men. This is why they ought to be known by all.
To be sure, since the subjective conceptions of law also
spring up, as a result of social conditions, it, too, presents
a certain generality; but this generality is altogether
conventional and limited by numberless individual pe-
culiarities and a great diversity of human consciences.
So, the generality of the subjective conception of law
is limited to a very small circle of individuals. Society,
on the other hand, grows unceasingly, and a constantly
increasing number of men must be taken into the
circle of legal relations, and this is why legal rules
must be known of all men and be recognized as obliga-
tory by everybody. Only positive law can answer such
a requirement.
Positive law itself, also, is very diverse and much varied.
It, too, depends upon conditions of time and place,
but this dependence is expressed by external signs. For
this reason positive law is distinguished by great pre-
cision.
The changes which take place in the subjective con-
ception of law arise in an intangible way, which very
often shows no outward indication. On the contrary,
changes in custom, in judicial practice, or in legislation
are manifested by facts which are external and easily
recognizable.
It is, then, only the positive law which can fur-
nish these principles which are assumed to be known
to all within the sphere of its action. It is on this

principle that the doctrine rests, that no one may

claim not to know the law, and no man's ignorance of
it shall do away with his responsibility. Error juris
semper nocet.
 POSITIVE LAW 397

Section 50. Foundation of the Positive Law's Action

The foundation for the law's action rests in general

among the vital conditions of society. With this thought
one can say that law acts upon humanity as the sole
and indispensable agency for establishing some kind of
harmony among the constantly clashing individual inter-
ests, not permitting the overthrow of society, nor sacri-
ficing to social order the independence of individual
people and their freedom. Starting from another point
of view as to the very essence of law we would reach an

altogether different statement of it. Thus Stahl says:

"Gottes Ordnung ist der Grund des Ansehens des Rechts"
According to Kant the foundation for the obligation
of obedience to law is the latter's accordance with
reason; according to Bentham it is in the possibility
of betterment, the advantage of the greatest number of

people.
Just now we shall not enter upon this question. In
speaking of the foundation for the action of legal norms,
I have in view the question of why in a given govern-

ment, a given society, there acts inevitably some given

system of positive law, with all its peculiarities and dif-
ferences from other systems, acting with it in the rela-
tions of time and space.
The need of some juridical order is universal in human
societies which have attained a certain degree of devel-

opment. As a matter of fact, this immutable law shows

itself under very various forms because in each society it

is not merely law in general which has effect, but a sys-

tem of legal rules fashioned for that very society. Law,
in furnishing order to the social life, subjects the state to
the conditions of time and space.
It is for this reason, in order that it may always answer
398 THEORY OF LAW
its purpose and not become a dead letter that the law

must always assume a form adequate to its epoch and

environment. Subject to this reservation, laws act in
an independent fashion, whether or not they harmonize
with divine precepts or with the results of reason. The
rules of positive law act with the same independence.
All this leads to the question as to the foundation for
this relative independent action of each system of posi-
tive law.
Law is not something which, like natural and physical
forces, exists independently of human action and may be
opposed to this latter. on the contrary, an order
It is,

established by men and It does not mat-

for themselves.
ter, so far as concerns this, whether the man acts accord-

ing to the law of causation or acts freely. Whichever it

be, law established in accordance with the principle of
causation, or by uncaused voluntary action, it is always
the work of man. It is also a rule for the mutual rela-
tions of men to each other. It is a social order. This is
why the need of law and the possibility, even of its crea-
tion, is out of the question apart from society. Law can
exist only as there exists union among men. Law, there-
fore, is nothing foreign imposed upon men from without.
It is a product of human consciousness and for it to exist
there must be association, a social life, among men.
Law, born with the society, is created by that society as
the rule governing the relations of the associated. In
each sociecy it acts as if created to bring about the union
of all the members.
So the foundation for the action of positive law con-
sists inthe fact that it is made by the society itself, and*
in each society has no force except in so far as it is the
work of that society.
sometimes seems that there are exceptions to such
It
a rule.It sometimes happens that there is found in a

society a law which originated outside, in some neighbor-

 POSITIVE LAW 399

ing society. In this case it is important to distinguish

between the law of the country itself and that which
comos from the neighbor. We have in mind at this
moment, not any distinction in the material, but only a
distinction according to the form, according to the basis,
for the action of the law. Consequently, if the legislator
takes his material in part from foreign laws and in part
from native ones and local customs and makes of the
whole one common law, no distinction from our present
point of view will be left between the national and the
foreign law. But it may happen that a foreign law as a
whole has effect over a country. Ought such a case to
be considered as an exception to the principle that the
positive law is to be considered as always the product of
the society where it is applied? In the German Empire
of the XIII and XIV centuries Roman law, without
being fused with German law, has weight of its own and
a power independent of local law.
It might seem at first sight that such a fact would

completely destroy our thesis that law acts only in the

society in which it was made. To settle this question,
however, it is not enough to show the force of Roman
law in Germany in those centuries. The route by which
it got there must be examined.
The corpus juris civilis is a legislative compilation.
Three compilations, all three the work of legislative
power, have gone to make it up and give it all
the force
it has. But, carried into Germany, it became a custo-
mary law. By consequence of such custom, by connect-
itself com-
ing with such a basis of action, it renewed
pletely. In Germany the corpus juris civilis acted not
as the will of the emperor of Rome but as German cus-
tom. Consequently, in fact, while certainly derived from
a foreign source, this law so far as it was German positive
law, manifests itself as the work of the German nation.

This is why in Germany Roman law is recognized as

400 THEORY OF LAW
acting only within the limits of the usage which applies
it, absolutely as German customary law. Its appro-

priation was based on the work of the glossators, but

they did not interpret all parts of the corpus juris civilis,
and the parts they laid aside were never applied in Ger-
many.
This appropriation of Roman law offers for Russia a
practical interest since, thanks to it, Roman law acts
still as a subsidiary law in the Baltic provinces which

were once under Livonian rule, a fief of the Holy Roman

Empire. Roman law has left its mark on nearly every
state in Europe. In France it never ceased to act in
the southern part, and later thelawmakers brought it
Even in England and
into the northern provinces also.
Russia, which are among the states most distinguished
by a special legal development, Roman law has had
great influence, at least upon the practice of special
tribunals. ThusEngland, aside from the church,
in
which according to one jurist's expression, vivit lege
Romana, Roman law has found application in the ad-
miralty jurisdiction. It has, in fact, formed the basis
of international customs, known under the name of Rules
d'Oleron, which is mostly made up of rules from Roman
law.
In Russia, Roman and Byzantine law were frequently
placed under contribution by the church tribunals, and
it is truly to be said that the ecclesiastical jurisdiction

was formerly quite extended. Roman law received among

us the form of a canonical law and its influence has been
very great over the development of all law and especially
that of the family.
Greco-Roman modifications of the jus civile have pene-
trated even into the Caucasus and into Georgia. The
second part of the Georgian code, that of Bachtang
V, who lived at the end of the VII century, contains
some laws of Leon the Wise, of Constantine, and of other
 POSITIVE LAW 401

Byzantine emperors, relating to the administration of

justice.Georgian law is distinguished by large borrow-
ings. Besides those indicated there are many from
the Pentateuch and from Armenian legislation. Since
Georgia's subjection to Russia it is the code of the Coun-
cil of 1649 and the military code of Peter the Great
which is in force.

Foreign law may be

adopted by legislative act. Thus,
for example, the French code was adopted in Poland,
Belgium and Italy, etc. Such an example is found too
in the mediaeval history of the cities on the Baltic. Thus,
the city of Rega took from its founder, Bishop Albert I,
the law which was in force in Visbi, a town dis-
tinguished for its mixed population so that every nation
had a street in it. The city of Revel is of interest jurid-
ically. The Danish King Erik V in 1228 bestowed upon
it the legislation then in force in Lubeck. Accord-
ing to the ideas of that day the Lubeck magistrate was
the highest court for Revel. So the Revel magistrate
in cases of doubt betook himself with his question to
Lubeck and got there a determination. Lubeck law
prevailed in Revel not merely as it was when adopted,
but with later additions and changes. At the same
time similar relations prevailed between Revel and
Narva.
In southwest Russia prevailed in the same way the
law of Magdeburg which had been bestowed by the
kings of Poland and was continued in force by the Mos-
cow Czars.
In all the preceding examples foreign law prevailed

without change of form, controlling unchanged the for-

eign society by its adoption, but special action in that
society introduced it, the will of the local government.
Consequently this borrowed law, none the less on that

account, presents itself as taking its force from the act

of that same society in which it is in force.
402 THEORY OF LAW

Section 51. The Sources of Law

PUCHTA. Gewohnheitsrecht, I. ss. 143-148. Vorlesungen I.

SAVIGNY. System, I. ss. 6-57.

MUELLER. Die Elemente der Rechtsbildung. ss. 427-443.
AUSTIN. Lectures, II, pp. 526 ff.

ADICKES. Zur Lehre von Rechtsquellen, 1872.

REGELSBERGER. Pandekten, I. Sec. 82 ff.

We have already said that the correlation of the posi-

tivelaw with the subjective law, the sense of right, is not
complete, that this was to be regretted; but it must,
however, be recognized that the positive law offsets this
by its precision and the ease of knowing it.

In considering the origin of law we showed that it had

been first established as a determinate order of the mu-
tual relations which men have with each other. Each
individual expects his neighbor to observe the same
conduct under the same circumstances, and if it hap-
pens that this expectation is not realized, then he will
require of the one responsible for the injurious act com-
pensation for any wrong which he suffers. Under such
conditions each of us asks the same question, how to
distinguish the general rules of law, which are obligatory
upon all, from those rules which have only a subjective

force.
It is highly important for each of us to determine be-
forehand with all possible precision what are the rules
which govern us, and what are the rights they give us,
and the obligations they charge us with. An exact reply
can be made only as to rules which have become objec-
tive. To do this they must assume some specific form.
This is why the theory of the forms which make up the
objective character of a law has such importance for
the jurist.
 POSITIVE LAW 403

These objective forms of legal norms which serve to

indicate the obligatory character of the rule are called
"sources of law." To understand the doctrine of the
sources of law, it is very important not to confuse the
technical meaning of the phrase with that ordinarily given
to it. We must distinguish, in fact, the meaning here
given to the expression "sources of law" from that of
mere means of knowledge, fontes ex quibus notitia juris
hauritur. Sources means also historic monuments, and
the word is used in this sense in the historic sciences.
These notions can be applied in part to the very matter
now under consideration, but never by more than an al-
together superficial analogy, due to accident. If, for ex-
ample, we have the authentic text of an enactment, we
may say that we have the source of the law in the tech-
nical sense of the word and that we have at the same
time its source in the meaning that we have the means
of knowing it. But if such a text is not to be had, if
we have the law only in the same indirect way as we do,
for example, the twelve tables, or the law of Voconia, or
others, such original laws are still sources of law without
being any longer in any sense sources of knowledge of
the law. In the same way if we learn of some rural cus-
tom Ephimenko's or Pachmann's collections, these
in
collections are the source of our knowledge of it, but the
custom itself is the source of the law or of any effect
upon law thereby produced.
These different conceptions have been often confused,
especially in antiquity. So among the Romans it is,
thanks to a confusion of these two notions of source,
that there arose a distinction into written and un-
written law. (Jus scriptum and jus non scriptum.) This
distinction was rigorously applied and the written law in-
cluded, besides legislation, the praetor's edicts and the
responsa prudentium. It was required that the law be
at its origin written down (inscription quod ah initio litteris
404 THEORY OF LAW
mandatum est). From this it resulted that a custom
written down after its establishment, remained, notwith-
standing, unwritten law, and the jurists established a
new distinction between a law created by written enact-
ment or establishment, and one already existing which
is then set down in writing. Despite the slight impor-
tance of such a distinction it was sedulously preserved,
and was even developed by later jurists. Thibaut puts
this distinction at the head of his classification of sources
of law, and Gluck developed it very far. He accepts like
a good many others the distinction between the jus
scriptum sensu grammatico and the jus scriptum sensu
which latter includes only law consciously estab-
juridico,
lished by means of written language.
A which has arisen between the
later confusion is that
source of law considered as the mark which distinguishes
it as obligatory, and the source considered as the matter

from which the content of legal rules is drawn. Such a

confusion grew out of the fact that before the time of the
historical school it was thought that law was the legis-
lator's creation pure and simple.
The was then recognized as the
will of the legislator
sole cause of legal rules. laid down by
The command,
sovereign power, to observe a given rule was according
to the opinion of that time the sole authority for saying
that the rule was obligatory. We, on the other hand, are
able to recognize that legislation is one force for creating
rights,but that it is only one of the forms under which
right, the work of conscience, law, is expressed.
The legislator does not create the law arbitrarily. He
has no power to make rules which are not prepared
for by the march of social advance. Legislation passed
in any other way remains a dead letter and totally un-

applied. The question of the sources of law thus

put is totally different from that which we are seeking

now to examine. For this, it would not be important to
 POSITIVE LAW 405

know whether or not a rule is obligatory upon all,

but merely to know what factors participate in its estab-
lishment.
If we understand the question in this last fashion we
may admit with Adickes that the general source of law
is subjective reason, or, better said, the subjective con-
sciousness. All the other factors affect the formation of
law only through our consciousness. Divine orders, the
nature of things, reason, conformity to an end, moral duty,
all this can induce the formation of legal rules, only on one

condition, which is that all these motives are admitted

by the human consciousness. The general consciousness
isonly the sum of individual ones, and this is why it can
be said that the subjective consciousness is like a hearth
where concentrates the action of all the creating factors
of law. But this subjective consciousness cannot be ad-
mitted as the source of law in the technical sense, be-
cause the subjective consciousness of a norm is not the
index of its obligation over us and is not the form of its
objectivity.
In the practical meaning of the term only custom,
judicial practice,and legislation can be recognized as
sources of law. It cannot be admitted that the nature of
things is a source of law, for such nature is very differ-

ently understood among men. The conception recog-

nized by enacted and established law, customs, and judi-
cial practice, is the only one obligatory for all the world.
It is necessary to say this much as to the conception of
which is
justice held by all, but in such different fashions,
and which receives objectiveprecision only on condition
of being expressed through the sources of positive law
above indicated.
Finally, and for the same reasons, we must place in
this category of false sources, the science of law. The
numerous controversies, which the question as to what
are to be considered sources of law, has given birth, come
406 THEORY OF LAW
most of all from wrong notions as to the action and func-
tion of the sources of law.
Before the appearance of the historical school, when
positive law was still considered as a voluntary human
institution, it was believed that legislation, expression of
the creative will of law, was the sole force in setting up
positive law. Therefore legislation was then recognized
as the sole source of it because there was no other creat-
ing force to produce it.
The historical school taught a diametrically opposed
theory. The force creating law is for them the genius of
the people which embraced all positive law even before
it was external y expressed by the "sources," which

were then considered as only sources of our knowl-

edge of the law, living in the genius of the people. In
this way these authors considerably enlarged the notion
of the sources of law by adding to it the science of law,
which certainly serves as a source of our knowledge
of law, but which cannot furnish the quality that makes
these ru es ob igatory. The definition which we have
accepted of sources of law, the recognition of what they
are as necessary juridical forms for setting up ob-
jective law and serving at the same time as the mark of
the obligatory character of the rules, this definition
holds the mean between the two other definitions we have
discussed.
Therefore the source of law has importance only as a
test of the obligatory character for us of the given rule.
Legislation or custom are not forces which create law,
but merely forms by which we decide that a law is oblig-
atory Any rule may have its effect, but one which is
not expressed through legislation, custom or judic'al usage
isof slight effect and supposes for its complet on the en-
actment, custom, or judicial acceptance. Its action
has little precision because it lacks the external in-
dex of an obligatory character. It is impossible to
 POSITIVE LAW 407

show in advance what its action will be or to indicate

to what particular cases it will apply. Its application
to each case must be shown. On the contrary, a rule
expressed in the general sources of law can be precisely
limited in advance. In such precision there may be
a distinction of more or less, but this is nonessential.
Only the action of legislation can be exactly delimited.
It is only of it that we can say in a general way, accu-

rately in advance, to what cases in both space and time

it will apply. The same precision cannot be reached as
to customs and judicial usage. The precise moment
when the action of a rule of custom or judicial usage will
commence cannot be foretold. Custom is established
little by little, and it is hardly possible to fix the exact

boundary between the established custom and the one

only forming. Judicial usage presents a form a little bet-
ter ascertained, notably so as regards decisions of a given

time; but the existence of a rule in a decree or judg-

ment supposes that it was previously recognized as

obligatory, for the judgment always rests on anterior

facts.
To this peculiarity of precise action which legal rules
have, another should be added. They are presumed to
be known to all. No one may claim not to know the
law; it is presumed always that each individual can easily
take knowledge of rules contained in any of these sources.
If he does not know, his ignorance is his own fault.
There is no need to prove to the tribunal the rules of
positive law. It knows them. Jura novit curia. Only
facts are proved. Laws are not.
This doctrine that the laws are known is not justified
by facts as to all kinds of rules. It may easily happen
that the judge does not know the common law or local
legislation. The common law is precisely one in which
jurists have taken no part. It is established without

them and independently of their activity. It is not the

408 THEORY OF LAW
jurists who common law, but those
are familiar w'.th the
who create and follow law derived from custom.
this
This law presents the peculiarity of changing with local-
ity and with classes of individuals. So, the parties can
more easily than the judge, who is placed outside the
milieu of these customs, bring together the proofs of the
actual existence of this law. In the same way the judge
cannot know the law of all foreign states. The consci-
entious study of the law of only one country takes up a
good deal of time. It is to be added that the cases for
the application of the laws of foreign countries are rare.
So, for customary law and for foreign law the principle
of jura novit curia is not rigorously applied.
As for customary law its application was, according to
some jurists, a question of fact, always to be proved by
the party in order to warrant its application. Without
this the judge would not apply it even if he knew it. In
such procedure the judge knew only what was produced
during the hearing. Non refert quod notum sit judici, si
notum non sit in forma judicii. This was Hofacker's and
Wenning-Ingenheim's opinion. It was the logical result
of the conception then held of the natural law as the
mechanical theory held it. If the action of a rule of cus-
tomary law depended solely upon a simple definite ob-
servation of a given custom, certainly the existence of
such a custom is only a question of fact, as is admitted
today in cases of trade usages. These latter are distin-
guished from juridical customs in that they carry in
themselves no opinio necessitas. They are the result of
simple observation of a given fashion of acting, and are
only questions of fact and not of law.
The customary rule thus considered as a mere fact de-
pending upon circumstances, harmonizing badly with cer-
tain rules of procedure, several authors, Thibaut (1722-
1840) and Hornier (1746-1827), the celebrated opponents
of Savigny as to codification, introduced a modifica-
 POSITIVE LAW 409

tion of this idea and demanded that a thoroughly

notorious custom be regarded as a law. If accepted by
only a small number of persons it might be regarded as
a question of fact. Such a distinction is, nevertheless,
entirely abstract. How, indeed, can this transformation
of a question of law into a question of fact be ex-
plained according to the greater or less notoriety of the
custom?
Puchta and Savigny produced a more accurate concep-
tion. They recognized that the existence of norms of
customary law is always absolutely a question of law,
that customary law is, like all others, always supposed
to be known to the tribunal ex ojficio, and that it is only
in case of actual impossibility for the court to know the
custom that it is permitted to expect a party to set up
the custom and prove its existence. But if they claim
a custom known to the judge there is evidently no
need of requiring proofs as to the existence of such a
custom.
The same rules are applied to foreign law. The ques-
tion of its application is absolutely one of law. And
since it is impossible for the judge to know the law of the
whole universe when the question is one of applying a
foreign law the proofs of it ought to be brought by the
parties claiming under it.
410 THEORY OF LAW

Section 52. Customary (Common) Law

GLUECK. Ausfuhrliche Erlauterung der Pandektem nach Hellfeld,
ein Commentar, 2 Ausg.B. I., 1797. s. 442, n. ff.
KLOETZER. Versuch eines Beitrags zur Revision der Theorie vom
Gewohnheitsrecht, 1813.
PUCHTA. Das Gewohnheitsrecht, 2 B., 1828, 1837.
BOEHLAU. Mecklenburgisches Landrecht. B. I., 1871. s.

315.
ADICKES. Zur Lehre von Rechtsquellen, 1872.
SERGEIEVICH. Essay upon the Study of Customary Law. In the
Observer, St. Petersburg, 1882. Nos. 1 and 2.
SCHUPPE. Gewohnheitsrecht, 1890.

Customary law is the primitive form of positive law.

None the the recognition of custom as an independ-

less,
ent source of law was scarcely established before the
second quarter of the nineteenth century. Up to that
time legislation was thought to be the sole independent
source of law. However, few went so far as to wholly
deny the obligatory force of custom. Of those who did
so the most celebrated in the eighteenth century were
Thomasius and Grolman. They admitted custom only
as a reason for affirming the existence of a contract or of
legislationcompatible with it. Most writers recognized
the existence of customary law-making without attribut-
ing to it any independent force. In democratic states,
where the legislative power belonged to the people, cus-
tomary law was deemed merely a special form of such
popular legislation. The obligatory force of the law and
of such custom was thought to be the same. In both
cases it was the people's will, in one case directly ex-
pressed and in the other by facts leading to an a posteriori
conclusion of its existence (facia concludentia) . This ex-
ception gave birth to the notion of a silently established
law, lex tacita, and it was this idea that under republican
 POSITIVE LAW 411

regimes replaced customary law. Such an explanation

could not be admitted for monarchical states, espe-
cially for autocratic ones such as most European states
were in the XVIII century. In those states legis-
lative power did not in fact belong to the people.
So, to explain the obligatory force of customary law
recoursewas had to the idea that the legislator gave
to custom its obligatory character. It was held that
the custom became obligatory as a result of the leg-
islator's assent (consensus imperantis). There was dis-
pute as to whether this consent applied to all the
customs in general (consensus generalis) or only to all
those which were specially for some particular cases (con-
sensus specialis). Some required a special consent for
all customs without distinction. Others like Hufeland,
Thibaut, and Gluck required such a consent only for
those which derogated from legislation. Others like Heff-
ner, Baltzen and Kestner, admitted as sufficient in all
cases a general consent. Special consent was sup-
posed to be given silently by the very fact that the cus-
tom could be applied. It was thought, on the other
hand, that general consent came directly from the corpus
juris civilis.
The weakness of all these theories is evident. They
are all based upon absolutely arbitrary fictions, and all

turn in the same vicious circle. The doctrine of the

identity of the will of the people as expressed both in the
customs and the legislation of democratic states is wholly
fictitious. In the most favorable cases the national
assembly includes only one generation. Custom, on
the other hand, is
slowly formed, and is the work of
many generations. Only will expressed in determinate
forms can create legislation. Customary law is built
up outside of all forms. It furnishes form to the
formless.
The famous sanction of custom supposed to be given
412 THEORY OF LAW
by the a fiction, for it is not
legislator is also clearly
legislation which precedes customs in the historic se-
quence, but quite the contrary. Customs appeared long
before legislation. It is therefore impossible to main-
tain that legislation serves as the basis of customs. The
precise contrary is the truth. Sovereign power at the be-
ginning rested entirely upon custom. As to the general
consent which some authors think to find in the corpus
juris ciwlis, it is sufficient to recall that the corpus itself
cannot be considered in our time as having anywhere
legislative force. Accepted in practice, but having be-
hind it no executive force except some text of legislative
enactment, it must be considered itself as merely custo-
mary law for modern nations.
The historical school, and especially among the authors
of that school, Puchta, gave the finishing stroke to all
these theories. His Das Gewohnheitsrecht remains to
this day the best study of the subject. In it Puchta es-
tablished the new theory. He not only recognized for
customary law a wholly independent significance, inde-
pendent of any harmony with the legislative will, but
that it is an antecedent condition for legislation. The
foundation of customary law, said he, is the natural gen-
erality of the conviction of the nation's purpose. This
immediate national conviction finds expression in cus-
toms, and its realization in laws is therefore by the estab-
lishment at the beginning of customary law.
Manners and customs form the primitive law of peo-
ples, just as some kind of a system is the primitive law
of jurists, and verbal expression of the legislator. If cus-

tomary law stands in such strict and necessary connec-

tion with the natural conception of the nation, and is the
immediate result of the latter's activity in the legal
direction, can it be asked, then, whether custom has
independent force as law, or why it has? Customary
law, if this is the case, acts for the same reason as
 POSITIVE LAW 413

all law does, the reason which produces this conviction

of nationality and that there are such things as peo-
ples. If the existence of a unified people is in fact

recognized, some activity must be attributed to the

genius of that people, and consequently some concep-
tion of moral and legal freedom be formed, and since
customary law is nothing but this conviction in its im-
mediate and concrete form, the existence of custom-
ary law is inseparably bound up with the people's exist-
ence.
There need of direct proof that the force of
is still less

customary law does not come from connection with the

other sources of law; for the establishment of law imme-
diately through legislatures and the activity of jurists,
presupposes an immediately established law through cus-
tom giving them authority. For if there were no nation
and no immediate consciousness of nationality there
would be no state and no jurists, and by consequence
no juristic or enacted law; so, the very essence of these
forms of law affirms the force of previously estab-
lished customary law, and there can be no doubt as to
this point.
So Puchta attributed to customary law an absolutely
independent capacity, but only so far as related to the
customs of an entire people. Customs of this kind are
always relatively rare. Local customs, on the contrary,
are quite numerous. This observation was made by
Unterholzer in his critique of Puchta's theory, and by
Muhlenbruch. Savigny, also, thought to correct Puchta's
doctrine by recognizing the unity of the people as a neces-
sary common basis for the formation of the custom and
a ground for its force as law; but that just as legislative
power can promulgate laws at the same time for the
whole state and for special localities in it, in the same
way the people's immediate consciousness of law may
take the form of customs for distinct localities, as well as
414 THEORY OP LAW
for distinct classes, which are considered as organic parts
of the nation.

Savigny in formulating this theory started with this

idea, recognized by the historic school, that the unity of
a people is not a result of historic evolution but some-
thing innate and which existed from the beginning. This,
however, is not what history teaches us. As Ser-
geievich has shown, it is not general customs which are
found at the origin of nations, but rather special ones,
and only little by little do they become general. And
again, as is admitted elsewhere, Savigny's theory does
not explain the formation of certain customs, as in ec-
clesiastical law, and certain international customs
which cannot in any way be admitted as customs taking
their origin spontaneously from the general unity of the

people.
For all these reasons the doctrine of the historical
school ought to be regarded as insufficient. In very re-
cent times the birth of a new conception is to be
observed, one which considers that customs are obliga-
tory simply by the fact of their long standing. This is
notably Adickes' opinion. According to him, the very
long existence of a custom compels us to recognize its
obligatory character. This is explained first of all by
the fact that for a legal judgment the existence of some
most important point and
definite rules is generally the
it matters relatively just what the rules are. Be-
little

sides this, it is necessary to consider that in most

cases customs are conformed to some end, since they are
the work of individual interests. Finally, time has, in
general, the quality of giving a special stability in man's
eyes.
This opinion, however, cannot be accepted. In seeking
to escape the too exclusive result of the historic doctrine,
Adickes has fallen into the opposite extreme. The his-
toric school believed that the creation of obligatory cus-
 POSITIVE LAW 415

toms was only possible as a result of the unity of a

people. Adickes did not regard the fact that the custom,
considered altogether as law and not as habitude, is not
simply a manner of conduct long observed but it is only
such a particular manner as is observed in a given human
society as obligatory.
The existence of unvarying habits among the men with
whom we are in relation presents this advantage, their
fixedness compels us to accept them as they are, even if
this causes some trouble. But a mere individual habi-
tude not a custom, and its duration cannot be consid-
is

ered as the index of the obligatory character of a rule.

Custom, as we have already shown, is one of the forms
of consciousness of a law which has become objective. A
man in expressing himself uses the forms of grammar
and rules of style elaborated by a people's common life,
and at the same time his language becomes not merely
the expression of his own ideas but, also, a part of the
popular language and a vehicle for expressing the ideas
of that people. In the same way a man expressing his
ideas as to law uses forms elaborated by the common
life in society; these forms are taken up and become the

expression of the collective consciousness of law,

that is to say, they are transformed into juridical
customs. When conformably to custom, because it
I act
is custom, my consciousness of law
is thereby expressed

in a manner which conforms to the consciousness of

law on the part of others who, themselves also, observe
the same custom. If it were otherwise there would be
no custom. For this reason the custom exhibits a jurid-
ical norm which is accepted not by me alone, but by all
who are members of the same society with me. In other
words, not because the practice is ancient is it obligatory,
but because it is common in that character to all the
society.
Some analogous discussions have arisen, also, as to the
416 THEORY OF LAW
origin of customs. Customary law forms little by little

through the very lifeof society and outside of fixed

forms, and for this reason controversies about it are so
numerous. We cannot directly observe the formation of
custom. We can determine its origin only by more or
less complex considerations. Till Puchta's time the me-
chanical theory of the formation of customs prevailed.
This theory explained the origin simply by the observ-
ance of the same rule in several identical cases. At that
time any other explanation was difficult, as we recall
that the obligatory character of the custom was supposed
to be due to the legislator's recognition of it. The jurid-
ical character of the custom was considered in this the-

ory as coming from above, from the legislator's will; but

the legislator can give obligatory force to a set of uniform
rules drawn up at hazard and which have nothing to do
with customs.
This explanation fell of itself with the recognition in

customs of an independent capacity as laws. It was neces-

sary to find in the custom itself and in the conditions of
its formation the basis of its obligatory character. In-
stead of the mechanical theory, Puchta set up a spiritu-
alistic one of the origin of customary law, absolutely
opposed to the old conception. He affirms that the ob-
servance of a rule does not make of it a customary law.
Its observance is only the material expression which
shows us its existence. The rule existed before it was
followed, and was already regarded as an obligatory
norm. The juridical custom is distinguished from the
simple habit in that it is an external and conscious ex-
pression of the rule which existed already in the national
consciousness of legal rules. Simple habits are those
created by a chance uniformity unconsciously introduced
into the conduct of individuals in identical cases. Savigny
early showed that Puchta's theory could not be admitted
without some reserves. There are, said Savigny, some
 POSITIVE LAW 417

customs whose formation cannot be explained by the

conscious application of an already formed juridical con-
ception.
Such, for example, are the terms to be used in making
a formal contract, and the number of witnesses neces-
sary. The juridical idea can only indicate that it is
desirable to have the terms and the number of witnesses

appropriately fixed, but cannot itself precisely determine

either. It is evident that no legal principle can deter-
mine just how many witnesses should be present at a
given act. For this reason Savigny thought that, besides
customs born of the conscious application in private cases
of a rule existing already in the popular consciousness,
there were other juridical customs, established, notwith-
standing their obligatory character, by the fortuitous and
unconscious observance merely as habits of some particu-
lar fashions of acting.
It is easily understood that Savigny's correction of
Puchta's theory does not correct, while it shows clearly
the impossibility of explaining the origin of juridical cus-
toms by this theory. The theory in reality explains
nothing. norm as the
It considers the juridical external
expression of a norm already existing in the conscious-
ness of the people, but does not explain how any such
popular conscience is formed or exists. Has it more real-

ity than the legislator's assent?

If the general explanation of the origin of law before

given in this book, is accepted, that of customary law is

very simple. In setting forth our conception of the origin
of law, it was not possible to lay aside customary law
which primitive form.
is its Wewere compelled to rec-
ognize that the commencement and the continuance for
a time of the custom resulted unconsciously, and that it
became "juridical" only when to its observance was
added the consciousness of its obligatory character. The
consciousness of its obligatory character would appear
418 THEORY OF LAW
as a consequence of the tendency we have to believe
that identical conditions always produce identical acts.
As ndividuals, people so believe each time, in advance
of observation, of the order already established, and
whenever this order is violated, it produces reaction. If
this opinion is accepted, the explanation of the origin of
all customs easy. They are inevitable.
is

The history of the theories as to the marks of the ex-

custom is equally interesting. The
istence of a juridical
glossators required only two conditions, a long enough
time, and reasonableness. Then the number of con-
ditions became greater. Barthol counted three, longum
tempus, tacitus consensus populi, frequentia actuum. Their
successors indicate, besides, quod consuetude sit introducta
non erronea sed cum rations et quod sit jus non scriptum.
The number of required conditions went on always
increasing, and at the commencement of this cen-
tury they counted eight, rationabilitas, consuetudinis,
diuturnitas temporis, consuetudo contradicto judicio firmata,
pluritas actuum, uniformitas actuum, continuitas actuum,
actus publici, actus consuetudinis introductivi, opinio
necessitatis.
The modern jurisconsulti, like Bohlau for example, re-
quire, as formerly Placentin, only two conditions, first,
the .custom must express a juridical conviction; second, it
must be old enough. The controverted question is to
know what is the connection between custom and law.
Can or cannot the custom abrogate the law? Has it that
forcewhich is called derogatory?
No law, no rule, being able to claim eternal existence,
the possibility must be recognized of applying deroga-
tions by future rules, legislative or customary. But
there issometimes in legislation a prohibition against
applying customary law either general or outside of the
cases indicated. Can such a prohibition take away the
derogatory power of customary law? Such prohibitions
 POSITIVE LAW 419

make very difficult, to be sure, the development of cus-

toms derogatory to the law. Tribunals as well as inter-
ested parties can by supporting themselves with such a
prohibition very easily prevent the application of cus-
toms. But if the custom developed all the same de-
spite the prohibition, it could not be denied obligatory
force.
It goes without saying that the formation of such a
custom isadmissible only where the violated law is in
the general opinion unreasonable and unjust and with
the condition that such opinion is absolutely shared by
everybody, by the tribunals, as well as the persons in-
terested. On these conditions surely no one can doubt
the obligatory force of a custom which abrogates an unjust
law recognized as such by everybody.
420 THEORY OF LAW

Section 53. Judicial Usage

IHERING. Unsere Aufgabe. Gesammelte Aufsatze I, 1881. ss.

1-46.
MOUROMTZEV. The Courts and the Civil Law. Juridical Mes-
senger (Russian), 1880. pp. 337-393.
MAINE'S Ancient Law. pp. 25-34.
UNGER. System des Oesterreichischen allgemeinen Privatrechts.
3 Aufl., 1878. B. II. s. 151-257.
BUELOW. Gesetz Richteramt. 1895.
FRANKEN. Vom Juristenrecht. 1889.

Judicial usage offers a good many resemblances to

custom. Just as in customs, in judicial usage legal rules
are not expressed under any general form but only
under a form applicable to special and distinct cases.
It, too, supposes that the rule before being expressed
in judicial conclusions was obligatory. It, no more
than custom, fixes the period of the rule's action and it
is not surprising that for all these reasons a good many

authors, perhaps a majority in our time, have consid-

ered judicial usage as a special form of customary
law.1
There are serious objections, however, to such a con-
clusion. Judicial usage and precedent occupies an in-
termediate place between custom and legislation. It
presents points in common with each. Like legisla-
tion, judicial usage is consciously shaped. While, prim-
itively, custom would appear as simple habit, wholly
unconscious of legal relation and entirely outside of
all regulation, judicial usage and decision is, like legis-

lation, the result of a conscious effort towards the ap-

iWachter, "Pandekten," I. 1880. s. 112. Stobbe, "Handbuch des deutschen

Rechts," I. 1871. s. 146. Malichev, "Course in Russian Civil Law," I. 1878.
"
p. 85. Luders, "Das Gewohnheitsrecht." Bohlau, Mecklenburgisches Land-
recht," I. 1871. s. 320.
 POSITIVE LAW 421

plication of a legal rule. The custom, too, does not

become a "legal" one, a law, until to the observance of
the rules which it prescribes is added the consciousness
of its utility; but the matter of the custom is furnished

always by habit. It is formed unconsciously. The

legal consciousness which transforms a simple habit
into a juridical custom finds a material ready made.
On the contrary, the judgments of courts which make
up judicial usage are absolutely conscious acts. The
matter of each judgment is elaborated consciously and
precisely in order to regulate the relations of the parties
by law.
Another difference between judicial usage and cus-
tom is that, like legislation, judicial usage is not cre-
ated by society or by some distinct class, but by an
institution. This is why, differing in this respect from
custom, judicial usage has, like legislation, a recog-
nized authentic legal form. There are recorded au-
thentic orders and judgments. Let us observe, too,
that like legislation, judicial precedents ordinarily ap-
pear in a written form, while custom, in the beginning
at least knows nothing of writings.
There are, then, between customs and judicial usage
such differences that impossible to class them
it is

together and regard judicial usage as a special form

of custom. But in refusing to identify them are we
not compelled to deny the existence of judicial usage
as an independent source of law? Is not the sole mis-

sion of the tribunal to declare and apply existing law?

Charged with determining special cases, ought it not
to limit itself merely to applying the legislation in
force when the action was brought before it? To rec-
ognize judicial practice as an independent source of

law, is this not entirely the same thing as to recog-

nize a right in the tribunal to judge, not according
to law or custom, but according to its own will, and
422 .
THEORY OF LAW
to establish thus the uncontrolled arbitrament of the
judges instead of a general obligatory rule?
If there is no doubt that the tribunal ought not
to decide at its own pleasure but according to law
or custom, we cannot on that account deny all crea-
tive value to judicial usage and precedents. The gov-
ernment in constitutional states is itself limited to the
terms prescribed in the legislation put out by the two
legislative houses. However, its acts, decretals, orders,
rules of procedure, are an independent source of law.
In the same way in many states the two houses have
theirpower limited by constitutions which they have
no right to change, and meanwhile the ordinary laws
are recognized as a source of law. We see the same
phenomena develop connection with judicial prac-
in
tice.Just ordinary laws or administrative rules
as
have of necessity a creative capacity, the tribunals
themselves are not strangers to the creative genius.
The tribunal which decides practical cases, problems
which require very often extremely varied and diverse
legal conceptions, applies necessarily the legislation in
force. Otherwise it could never find the directing
thread in the casuistical labyrinth.
But, in fact, legislation is not formed en bloc. It
is formed gradually, and its parts have been shaped
under the influence of diverging, even of opposing ideas.
The same thing to a certain extent is true of the dif-
ferent parts of the same legislative act, since all laws
are results of compromise between the extremely diver-
gent tendencies which control government or parlia-
ment. A legislative act is very rarely the complete
expression of a single idea. If logical unity is to be
found in it, it is the tribunal's part to develop that
unity. This is certainly a creative activity. Legisla-
tive institutions have their field, a comprehension in
which propositions vary greatly. The same thing which
 POSITIVE LAW 423

under one conception might be a general rule, might

very well under another view be regarded as only a strin-
gently limited exception. Independently of this, in all
legislation we find contradictions. They can be dealt
with in various ways, and the choice made by judicial
usage among the methods has also a certain creative force.
To bring legislative institutions into a logical whole,
to avoid the contradictions which they present and com-
plete their lacuna, the tribunal uses general principles of
law and supports itself by scientific reasoning. This has
led agood many writers, particularly among the ancients,
to regard legal science as an independent source of law.
But in this branch of law contradictions were numerous,
and it became necessary to set up a more general rule
that the judge must base his decision upon the com-
bined voices of the most general opinion (commnnis
opinio doctorum).
But how find out this opinion? What is the com-
mon opinion of all the learned? Por this purpose there,
were several rules of an essential mechanical character.
The communis opinio doctorum was that which was held
by seven savants, or better yet, that which Barthol
and the Glosses, that is to say, the glossa ordinaria,
admitted. means gave no result, then the opin-
If this
ion of the oldest savants was to be admitted. A Jurist
then, had more authority the older he was. Such rules
adopted in the middle ages could not remain in force.
Most authors, perceiving how impossible itwas to re-
place them with other rules for getting an infallible
means for choosing between contradictory scientific opin-
ions, have very logically concluded that science was
not an independent source of law.
The historical school, however, found this to be an
extreme opinion. The naive rules of the middle ages,
based upon the assent of a greater or less number of
jurists, must assuredly be set aside. It was not nee-
424 THEORY OF LAW
essary, however to conclude from this that science in
general could not be regarded as a source of law.
The representatives of the historical school have not
found any rule for choosing between such contradic-
tory opinions. If there is no possibility of a correct
choice, the rules established by science alone have no
direct application. Consequently, science cannot be rec-
ognized as a source of law in the technical sense in which
customs, judicial usage and legislation are; that is to
say, as an absolute index to the obligatory character
of a rule. It is only judicial application which fur-
nishes themark of an obligatory norm. In other words,
it isnot theory, but the practice that embodies a given
theory, which is an independent source of law.
In recognizing judicial practice as an independent
source of law we must observe that it is not necessary
to conclude that a decision once rendered binds the
tribunal forever. every law can be replaced by a
If
new surely judicial usage on its side cannot be
one,
condemned to perpetual rigidity. But on the other
hand, the rigidity which judicial practice has and the
precision of its rules have certainly a great value.
One of the first conditions of justice is that the
laws be applied equally for all, but such a thing
would be impossible without a durable and steady,
uniform system of administering justice. For this rea-
son the tribunal always ready to apply again a prin-
is

ciple previously accepted. It requires very important

reasons to produce a change in the jurisprudence which
a given tribunal has recognized, and it ought to be
admitted on principle that a rule once established should
be followed in later judgments of the same tribunal.
 POSITIVE LAW 425

Section 54. Legislation

SAVIGNY. System I. ss. 16-20.

ZACHARIAE. Vicrzig Biicher vom Staate. B. IV. s. 1.

BOEHLAU. Mecklenburgisches Landrecht. B. V. s. 283.

JELLINEK. Gesetz und Verordnung. 1887.
SELIGMANN. Der Begriff des Gesetzes. 1886.
HAENEL. Gesetz im formallen und Materialen Sinne. 1888.
KORKUNOV. Executive Orders and Legislation. 1894. pp. 227-
228.

The expression of legal rules in customs and judicial

determinations has always a casuistical and indefinite
character. Legal customs as well as judicial precedents
are gradually formed to the extent that there is call
for the application of legal rules to special and definite
cases. Legal rules cannot therefore find in these forms
an expression which is at the same time precise and
general. These are defects that become more and more
strongly felt as the developments of social life become
more complex and varied. Governmental power, de-
signed to uphold and protect law, cannot accept such
forms as legal rules. To the degree that it becomes
strong enough and firmly enough established, it pro-
ceeds to replace these indefinite principles of customary
law and judicial precedents by more precise and fixed
rules of legislation.
At first this is done only as regard rules that especially
concern the government and its organs which are charged
with applying them. The relations of individuals with
each other, those having to do with property, those
of the family, such are the things which customary law
controls the longest. But gradually as legislation goes
on little by little increasing in scope, it comes to subject
to itself all the branches of the law, and thus becomes
the general form in which the law clothes itself, and
426 THEORY OF LAW
custom and judicial precedent become only subor-
dinate principles of law, secondary and almost excep-
tional.

Legislation, in the large sense of the word, is every

legal rule established by direct action of governmental
organs. It is defined often as the will of the organs of

governmental power, or of the state. Such a definition

is too broad. The organs of the state's power may ex-
press their will without any intention of giving to the
emitted rule the force of an obligatory norm for all the
citizens. Such, for example, are the words which termi-
nate the manifesto announcing the enfranchisement of
the peasant. "Make the sign of the cross, believing
people, and call down upon you the blessings of God
upon your free labor, with the prosperity of your house
and your happiness among your fellows."
On the other hand, the definition of legislation as a
direct expression of will cannot be accepted because it
istoo narrow. Even if the legislative act contains only
one general rule, it cannot be said that all its special
consequences are equally contained and expressed in
the law. Even if it interdicts such and such actions
in carefully determined cases, the same actions are au-
thorized in all other cases. The law acts, then, not only
within the directly prescribed limits, but also within the
limits of that which is the natural consequence of the
orders put forth, that is, in many cases, beyond any
human foresight or any human will.
Very many writers have thought it worth while to
put back into the definition of legislation, the idea that
it is promulgated only after a procedure instituted pre-
cisely for that purpose. This is entirely superfluous.
If the required procedure necessary to make what will
be recognized as an obligatory rule is not followed, there
will be no law, but only a personal command of the
person or persons emitting it as representatives of gov-
 POSITIVE LAW 427

ernmental power. If such representative has not ob-

served the required forms, he cannot be recognized as
acting in the name of the state. The definition we
have given of legislation as a rule established by gov-
ernmental organs, supposes as already established regular
forms for acts in the name of the state. In this definition
we have said nothing about publication, which has been
by many writers recognized as an essential attribute of
legislation. But, in truth, history shows us many exam-
ples of unpublished laws. Among ourselves today the
fundamental laws provide a category of legislation which
remains secret.
As to the question of what is the basis of the obliga-
tory character of legislation, there is no firmly settled
theory recognized by the whole world. The represen-
tatives of the natural law school have recognized as
such basis an implied agreement among men. Every
citizen, they say, ought to obey the law because he
holds a part in such a contract. Certain ones, like
Hobbes and Grotius, add, also, that such an agreement
might operate to confer upon some given person or in-

stitution the right to make laws.

This opinion in the second half of the eighteenth cen-
tury was replaced by another according to which each
distinct legislative act was regarded as the expression
of the general will. Rousseau and Kant and their suc-
cessors shared this opinion. This theory supposes that
every agreement is obligatory in itself and that there
is no need of proving this obligatory character, since
it is a priori evident.

In reality, we often see facts wholly the other way.

All agreements are not obligatory, but only those which
conform to the law's requirements. By consequence,
it is precisely the law which furnishes the basis of their

obligation. In all cases to attribute to the law's oblig-

atory character such a foundation as contract, is a pure

428 THEORY OF LAW
fiction, and quite often we see laws which do not at all

have the approbation of society.

The historical school considered as the basis of the
law's obligatory force the legal consciousness of the
people. But this, too, is a fiction, as much so as that
which made the obligation rest on contract. We can-
not deny the existence of a conception of law, common
to the nation, but it is impossible to affirm that all laws
express only this conception which the people have as
to law. Legislation may not agree with this conception,
and may even contradict it.
In states whose population comprises different races
not yet united by political life, such a contradiction be-
tween legislation and the notion of law, prevailing among
some of the populations in the state, are even necessary.
For all legislation independently of its matter has oblig-
atory force.
A
basis for the obligatory character of legislation re-
mains, then, to be sought. Legislation is set up by the
organs of power who can on the one side constrain in-
dividuals by force to submission, and who have on the
other hand an authority in the eyes of the public which
often suffices to make their rules observed.

Legislation is established for the most part by those

organs of governmental power which have under their
direction the organs charged with practically applying
it. The same state has usually several sets of organs,
and we can thus distinguish legislation into groups ac-
cording to the organ which produces it.
The most important juridical rules are confided to a
special legislative institution, which concerns itself only
with legislation and the care of the administration. The
less important rules are the work of the executive power
properly so called. We
shall divide, then, into two

groups the rules established by these two branches of

authority: legislation (zakon, lex, loi, Gesetz) and rules
 POSITIVE LAW 429

or orders (ukazi, decrets, Verordnungen). Since the direc-

tions of the executive power must be carried out in con-
formity with legislation, and such execution is subordi-
nated to the legislative body, executive rules and orders
are subject to enacted law. The order is only valid as
long as it does not contradict law.
This formal distinction of legislation and "orders"
according to the different powers which establish them,
is found at the bottom of the matter out of which they

are made. The most important legal rules, those which

relate to the most important interests of the citizens,
should have their assent, or at least that of their repre-
sentatives. The details may be arranged by the execu-
tive or its departments more competent for such tech-
nical questions.
This distinction, however, between laws and orders
cannot be formulated in a precise manner, since it is
impossible to find any external measure, any absolute
outside mark for distinguishing the more important from
the less so. So, everywhere in constitutional states, it
has been established in practice that an executive order
cannot nullify a legislative act. By consequence, all
matters already held by the legislative remain within
its exclusive competency, at least so far as it does not

authorize the executive to regulate such matter by

orders.
For all those questions, on the other hand, which have
not been regulated by legislation, it is the executive's
duty to provide as need arises, by orders. This general
rule establishing the relations between legislation and
executive orders, however, one exception. In
suffers,
case of extreme necessity, when the safety of the state
is endangered, it is impossible to employ the legislative

method. In such a case the executive can take meas-

ures and make orders contrary to law, but the ministers
are responsible to the houses of the legislature. Legis-
430 THEORY OP LAW
lation and executive orders can each in their turn be
divided according to the organs producing them. In a
good many states legislation, properly so called, the rules
made by organs other than those of the executive, are
subdivided into ordinary laws and constitutional pro-
visions which are elaborated either by special organs
or by a special procedure. Executive orders are also
distinguished according as they are made by the chief
executive or by inferior organs of administration, depart-
mental or municipal.
Since this distinction between laws and executive
orders a distinction resting purely upon form, in oppos-
is

ing them to each other, we are advancing a conception

resting purely on form. Legislation in the formal sense
is merely acts of a legislative body, and this definition

can, in a way, be opposed to the one already given of

by an organ of gov-
legislation as legal rules established
ernmental power whether under the form of a legisla-
tive act or an executive order. The conception with
which we are now dealing of legislation relates purely
to the form it takes on. The executive orders, so far as
they contain legal rules, can be considered as legislation
in the only important sense of the word.
The preparation of laws is divided in constitutional
states into several parts clearly distinct. For example,
in all states where legislation is the work of the executive
and legislature combined, there are distinguished: 1st,
the initiative; 2d, the discussion; 3d, the sanction; 4th,
the promulgation; 5th, the publication of the law. The
initiative is the power to propose a law for discussion
before the legislature.It can be organized in four ways:
1st, the government alone can have it, as in France
under the second empire; 2d, parliament alone, as in
the United States at the present time; 3d, the govern-
ment and the legislature, as in most constitutional states;
and 4th, the whole people, as in Switzerland today.
 POSITIVE LAW 431

The discussion of the law is the chief function of

the national representation. Wherever there is popular
representation in the legislature, it performs this func-
tion. But the may have two forms essentially
right
different. may
It be simply a right to accept or reject
the projected law without right to offer any amendment
or modification. Such a situation necessarily supposes
that the initiative belongs only to the government.
In modern states a broader right is established which
consists not only in accepting or rejecting the project,
but also in proposing amendments to it. If parliament
is composed of two chambers as happens in most modern

states, each of these two chambers has equally the right

of discussing projects of law and these projects of law
can be sanctioned by the chief executive only after they
are passed by the houses, or by one of them.
The sanction or confirmation of projects of law belongs
always to the chief executive. The right of sanctioning
supposes the right of rejecting, that is, of the veto, which
may be absolute or suspensive. An absolute veto is an
absolute right existing in some monarchical states of
stopping all projects of law after they have been adopted
in the legislature. The suspensive veto only checks the
project for the time being, but if the chambers insist,
the project may become
a law under certain conditions
in spite of the chief executive. This form of veto is
found in republics and in some monarchical states, Nor-
way for example.
The law accepted by the chambers and sanctioned by
the chief executive may then be executed by promul-
gating, and is finally published that everybody may have
knowledge of it.

In most constitutional states, as we have said, legis-

lation in the narrow sense of the word is divided into
ordinary laws and constitutional provisions. These last
are those which establish the fundamental principles of
 432 THEORY OF LAW
the organization of the government and by consequence
are more complete than the others. In some states the
right to make constitutional provisions belongs to the
same institutions as the right of passing ordinary legis-
lation. The provisions as to their discussion, however,
call for more complicated forms, designed to insure ma-
turity of consideration. Such is the case in Prussia and
in Prance. In other states the power of establishing
constitutional provisions, which may be called the con-
stituent power, is separated from the ordinary legisla-
tive power, and is regarded as the special privilege of
the whole people and not of their representatives. In
Switzerland, for example, this is the means in use for

making a constitutional provision.

Legislation is distinguished, essentially, from the other
sources of law, in that it is not an act of application of
a rule, like custom, or judicial usage, but an act which
lays down a rule.
Therefore the action of legislation is precisely deter-
minate not only as to relations of place, but also in re-
lations of time. Legislation acts only from the moment
when it promulgated and all projects of legislation
is

prior to that are not law. It can also be arranged to

have force only during a given time. In any case the
action of the law ceases when it is abrogated, or replaced
by a new law, or by custom.
The moment when legislation has the force of law is
ordinarily that of its publication. The publication of a
law is by means of its insertion in a paper specially
designed for such service, but the law may not be known
on the very day when its text is published in the journal ;

itrequires a certain time for the journal to reach all the

towns and villages of the state, and become generally
known. So it is reasonable to require, as is done in
Germany, that legislation be not enforced until a certain
number of days after the publication. If the term is
 POSITIVE LAW 433

long enough, ought to be the same for the whole state

it

and all its This gives the advantage of having

cities.

the law in force on the same date throughout the state.

In Germany the time fixed is fourteen days for the mother
country and four months for the colonies.
The action of legislation ceases, either by the expira-
tion of its term, if the law was made for a fixed term,

or because of anew law abrogating the preceding one.

The promulgation of a new enactment abrogates the old
one only as to those parts which were actually designed
to be replaced. The other rules, set up by the old law
and which are not replaced by the new, keep their full
force. They can no longer, however, be considered as
constitutional provisions. At least, this is so in France.
Legislation is made up of a succession of dispositions,
one after the other, at the requirement and according
to the degree of needs. Such a diversity presents very
grave inconveniences which make the study of legisla-
tion more and more difficult, but these inconveniences
are further aggravated by the fact that special disposi-
tions arising at quite different epochs are often the ex-
pression of totally opposite principles, according to the
epoch in which they arose and according to the interest
controlling the government's action. As a result there
are grave contradictions in the several parts.
A systematic re-enactment of legislation, a complete
revision of different laws in order toform a systematic
whole, an extremely practical and necessary thing.
is

Such unification can be obtained in two different ways,

either by incorporation or, better, by codification.1

Incorporation is a means of codifying law, but merely

for those in force, without change of form, so that at
bottom they are not modified. It is the unification of

the legislation in force. It produces, therefore, only an

Zhinuliak. "As to codification and its influence on legislation and the science
of law." Legal Messenger (Russian), 1876.
434 THEORY OF LAW
apparent unification. It does not remove the numerous
contradictions which the existing laws previously con-
tained.
t Codification does not limit itself to a mere change in
the forms of law. It permits the obtaining of a system-
atic unification from the very bottom of the law, and
for this reason the codifier is not limited to working upon
actually existing legislation. He can draw from custom-
ary law, from judicial decisions, from foreign law, or
from the science of law. The code is not simply ancient
legislation under a new form, it is new law in the most
complete sense of the word.
 CHAPTER II

THE SOURCES OF RUSSIAN LAW

Section 55. The Relations Between the Different Sources

GRADOVSKY. Principles of Russian Constitutional Law. I. p. 11.

ZITOVICH. Course in Civil Law. I.
TAGANTZEV. Course in Russian Criminal Law. Part I. p.
141.

The sources of Russian law, like those of all positive

'aw, are legislation, customs, and judicial usage. The
47th article of Fundamental Laws says also, it is true,
that the Russian Empire is governed by the positive
laws, the institutions and the regulations made by auto-
cratic power, as if this text would exclude all other rules
than those created by legislation. Article 65 of these
same Fundamental Laws provides in its terms that the
law should be applied according to its exact and literal
sense without any possibility of admitting "the falla-
cious uncertainty of a voluntary interpretation." It

seems, then, that legal rules can be created among us

neither by customs nor by judicial usage. In reality,
however, judicial usage and, above all, customs play
an exceedingly important part in Russia.
This absence of correspondence between the funda-
mental laws and the truth is explained in the first place
by the fact that the editors of the code were under the
influence of old conceptions, and they thought legisla-
tion was the sole source of law. Customs and judicial
usage had no importance in their eyes. Independently
of this first reason, at the time when the code was estab-
lished the people almost universally lived under customs.
Serfdom then prevailed and legislation up to that time
had hardly touched upon private relationships. As to
435
436 THEORY OF LAW
the judicial power, it was not then yet separated from

legislative power and the highest judicial tribunal, the

Council of State, was at the same time a legislative in-
stitution. For this reason judicial usage had not then
been recognized as an independent source of law. If
the tribunal found in legislation some obscure or incom-
plete places, it went for explanation to the court one
degree higher, and thus in hierarchical order before the
Council of State, was then disposed of according to the
opinion of this council, on the order of the Sovereign, that
is to say, legislatively. These opinions of the Council of
State as to special litigation have played a very impor-
tant role in the development of our legislation. A great
many dispositions, today in force, had no other
still

origin. There was in such state of things no reason

why the editors of the code should consider judicial
practice as an independent source of law. Judicial sen-
tences at that time constantly turned into legislative
decretals. There was no rigorous delimitation between
the two. There is none even up to this day, and our
code itself brings some attenuation to the principle for-
mulated in Article 47.
Our modern legislation recognizes an extensive enough
application of juridical customs by the tribunals. Legis-
lation permits, first of all, to the justices of the peace to
guide their decisions by local customs known to all, but
only in the precise cases in which this application is
authorized or in such cases as the law has no provision
for (C. pr. civ., Art. 130). Certain special tribunals
have equally the right of employing customs. These are
district tribunals, courts of commerce and certain indige-
nous tribunals.
The application of customs by the district tribunals
has special importance, since they are the ones which
control almost all the peasants' civil affairs; that is to
say, those of the largest part of the Russian population.
 POSITIVE LAW 437

Judicial reform in 1864 separated the judicial power

from the legislative and at the same stroke suppressed
the prohibition against interpreting the law. Today
the tribunals are required to decide the actions sub-
mitted to them according to existing legislation without
being able to assert that the law is obscure, incomplete,
defective or contradictory. The tribunals find them-
selves, then, given the right to interpret the laws. Judi-
cial matters can no longer be carried before the Council
of State to be there resolved by legislative methods.
The judicial power must itself resolve all the questions
submitted to it. In fact our judicial usage, especially
that of the Court of Cassation, as a result of the numer-
ous imperfections in the texts of the law, exhibits very
often a creative character.
Legislation, however, in Russia, as in all other states
at the present time, is the chief source of law. All the
legal rules established by the organs of power are so by
the sovereign power. The organs of administration have
also in an important degree the right of creating legal
rules by their own acts on the condition, well under-
stood, of not contradicting the law. It is thus that
such a right is given to governors, to municipal coun-

cils,and to the provincial assemblies of departments

as well as to different ministers through a special dele-
gation. Article 47 of Fundamental Laws must then be
interpreted in a restricted way. The laws made by
supreme power are not, in Russia, the only legal rules
having obligatory force. Legislation itself admits, to a
certain extent, that customary law, judicial practice,
and the lower organs of executive power are also makers
of rules having an obligatory force for the citizens. So
Article 47 must be interpreted with the meaning that
laws made by the supreme power are the higher form
of the rules of positive law in force in Russia. These
laws fix the conditions and the limits of the obligatory
438 THEORY OF LAW
force of legal rules. Customs, judicial usage, the direc-
tions of inferior functionaries, all these rules are sub-

ject in their action to the laws created by the supreme

power.
 POSITIVE LAW 439

Section 56. Russian Legislation

GRADOVSKY. Principles of Russian Constitutional Law. I.

KORKUNOV. Russian Public Law. II. pp. 28 to 88. Id. Ex-

ecutive Orders and Legislation, pp. 289 to 357.

The Russian Emperor like all autocratic monarchs

has unlimited power, and the legislative function which
he performs is not limited in any way by any other
organ. His sole will governs all legislative questions.
A good many writers have concluded that every order
emanating from the Emperor is a law. Prom the fact
that his power is unlimited, obligatory force has been
attributed to all his orders. All manifestations of the
supreme will, say they, have necessarily equal force and
there can be no distinction between laws and execu-
tive orders of the Emperor if the latter are not in con-
tradiction with some law. This is Speransky's opinion,
and from his time was the dominating one in Russian
literature.
The fundamental laws, however, show no such com-
plete confusion between laws and other acts put forth
by the supreme power. The preparation and abroga-
tion of laws, as well as their forms, are determined by
special rules which are not applicable to executive acts.
As regards the making of law, for example, Article 50

provides that all proposed laws shall be examined by the

Council of State. As to the form to be given to them,
Article 53 fixes their number and Articles 54 and 55
distinguish between new laws and those which are only
complementary to those already put forth. The new
laws must be completed by the Emperor's signature;
for the others, on the contrary, a verbal assent suffices.

Finally, Article 73 prescribes the rule that laws must be

abrogated with the same formalities.
440 THEORY OF LAW
After having in this way distinguished between laws
and other sovereign acts, the fundamental laws provide
in Article 77 for the possibility of contradictions between
laws and orders, and it is the senate first, the supreme
power afterwards, which to judge of them.
is

Do all these rules in the fundamental laws express,

then, only a tendency which cannot be carried out prac-
tically under the rule of an absolute monarchy? Such
a conclusion cannot be admitted. Whoever has un-
limited power, can, if he pleases, give to his different
acts different effects, and the difference in the general

principles controlling special acts in administering the

state make such difference in effects of acts necessary.
A monarch who has unlimited power, who controls at
the same time the general principles of the state's ac-
tivity and the special concrete customs relating to sepa-
rate individuals, even such a soveriegn cannot escape such
a necessity, and he must establish a difference between
which have a directing influence and those which
his acts
have only a momentary effect.
It is necessary to apply to all these acts, legislative
and administrative, rigorously determinate forms in order
to distinguish them readily. No man could, in dealing
with a multitude of individual cases, with the most
special and various questions, apply to all of these cases
the same general principles, if those principles were not
established under a special form, under the form of law.
If the distinction between legislative acts, strictly so
called, and administrative acts, properly so named, were
not drawn, there would be reason to fear that both
would be frequently neglected. It is by no means easy
to always apply to the cases of all men impartially the
same general principles once for all Strong
adopted.
interests of every kind struggle constantly together and
numerous difficulties rise up at every instant. In a
state, by reason of the extreme complexity of the facts,
 POSITIVE LAW 441

and the diversity of human activity, this difficulty of

applying always the same principles is still greater.
The absence of a preorganized system is then still more
dangerous in the state's administration than in indi-
vidual activity.
In an unlimited monarchy, as in every other govern-
ment, the need of distinguishing certain acts having a
certain form and possessing absolute force as legislative
acts none the less strong. The distinction is still
is

possible though the monarch's power is unlimited, be-

cause he can manifest that power under different forms.
He has less reason for departing from the rigorous ob-
servance of these forms than has the constitutional
monarch. If his power over legislation is limited by
that of the national representatives, there is a strong
temptation on the monarch's part to enlarge more, and
more the sphere of application of his orders to which no
parliamentary consent is necessary. The constitutional
monarch is not assured of the consent of parliament

for the projects which he submits to it. There are

measures which he thinks it absolutely necessary to
take which may raise a lively opposition in parliament.
It is quite otherwise with the action of the absolute
monarch. In legislation as in administration his power
is equally unlimited and complete. Then, too, he has
no interest in refusing to observe the forms of legisla-
tive acts which he has himself instituted. In observ-
ing them he remains always free, as they are his own
work. It is only among counselors of the monarch,
who seek to subject him wholly to their own influ-
ence, that there can arise an interest in setting aside
these more complex forms of discussion of legisla-
tive acts, which call for a great number of coun-
selors.
As to the monarch himself, a rigorous observation of
the established forms of legislation would not seem to
442 THEORY OF LAW
be troublesome. His power will be manifested so much
the more freelyas the preliminary discussion of his
projects is complete and fully reasoned. After having
heard the observations of many counsellors, he will the
more easily raise himself above the petty quarrels or
interests among the counsellors. The personal inter-
ests which surround the monarch certainly urge upon
him a certain confusion of matters of legislation with
those of administration; but unlimited power in the
monarch does not of itself require any such confu-
sion.
We must, then, recognize that all sovereign acts are
not laws; but among them, those only are laws which
have been promulgated in accordance with Article 50
of the Fundamental Laws, that is to say, after discus-
sion .before the Council of State. The Council of State,
however, performs a function wholly consultative. It
does not, itself, decide any question. It merely gives
itsopinion as to any matter submitted to the Sovereign.
The opinions are unanimous or by a majority of votes,
but whichever way it is, the result is not binding on
the Emperor. The Emperor after hearing, or as the
manifesto of says, "after having taken
Alexander I
into consideration the opinion of the Council of State,"
takes a resolution according to the majority or mi-
nority opinion, or one according to his own personal
ideas.

Notwithstanding Gradovsky's great authority, we may

not compare the distinction which has been taken be-
tween verbal and written acts to that between laws
and executive orders. On the one hand the laws, even
those made with the concurrence of the Council of State,
do not always have the Emperor's signature. Quite fre-
quently the sanction is in the Emperor's handwriting,
but with the signature only the words, "Let it be so";
and sometimes there is only an oral assent.
 POSITIVE LAW 443

Article 54 of the Fundamental Laws which prescribe

that every new law must receive the Emperor's signa-
ture, has its corollary in the following Article 55, which
provides that complementary laws need not have such
signature. With the development of modern legislation
there are few laws which cannot be considered as com-
plementary to some existing one.
The Emperor's signature under Article 66 may be
appended to acts of sovereign power which have no
legislative character; for example, to acts conferring
titles and appointments to higher offices. The Emperor's
signature proves in such cases not that the act has been
discussed in the most profound manner, but merely that
ithas the character of highest authenticity. This signa-
ture belongs, then, to quite different acts, some of which
are by no means legislative.
Gradovsky's opinion is based chiefly upon a wrong
printing of the text of Article 77 in the edition of 1857.
The true text of this article, that of the editions of 1832
and 1842, spoke of the law for removing contradictions
contained in sovereign orders, whatever form those or-
ders may have had; as a result of a mistake in the text
of 1857, there was no question of errors except those
in laws which had the Emperor's signature.
So far as concerns the elaboration of legislation in
Russia, as a result of the absence of all national repre-
sentation, the right of initiative belongs solely to the
government, and first to the Emperor, then to the senate
and to the synod, which can bring before the Council of
State the discussion of legislative questions; but the
privilege of legislative initiative does not belong to the
ministers. They haveto get the Emperor's authority
for the bringing before the Council of State of any pro-
jected legislation. The Council of State itself does not
have the right of initiative. It can discuss projects for
legislation only when laid before it.
444 THEORY OP LAW
The discussion of projects of legislation takes place at
first in one of the sections of the Council, a sort of com-
mission of preparation, then in a general gathering
which includes, besides those specially designated by
the Emperor, all the ministers. The conclusion reached
by the Council submitted to the Emperor under the
is

form of very brief reports, which are called Journal of

the Session, or Memoirs. The conclusion of the Em-
peror is then expressed, according to the importance of
the question, either in writing or merely orally in vari-
ous forms, according to whether it is the majority or
the minority opinion of the Council, which the Sovereign
adopts. If the Emperor confirms the majority opinion,
he indicates it merely by the words, "Let it be so,"
or by a statement of the decision reached by the Em-
peror, signed by the president of the Council. In the
opposite case the
sovereign will is expressed either
by an act signed by the Emperor or by an oral
order of the Emperor declared to the Council by its
president.
The external forms of law are very diverse. They
may be distinguished into complete and abridged forms
of legislative acts. The complete form has three parts:
first, the text of the law; second, the opinion of the
Council of State; third, the order for its publication and
putting in force. The text of the law carries different
names: regulation, decree, edict, ordinance. These dif-
ferent names do not correspond to any clear distinction
of fact. The order which the Emperor makes for the
publication of the law and the putting of it into effect
is contained in a decree which he signs and sends to the

senate. In the case of law which is specially important,

the Emperor, in addition to the formalities which we
have just stated, makes a proclamation to his subjects
in which he explains the motives which led him to take
such action.
 POSITIVE LAW 445

This complete form is rarely applied. The manifestoes

of the Sovereign directly to the people are few. Very
often, even, the decree sent to the senate is suppressed.
In this case the legislative act contains only two parts:
first, the opinion of the Council of State; second, the
text itself of the law. If the law is of little importance,
its text is included in the opinion of the Council of State.
It happens, too, that some laws consist only in orders,
signed by the Emperor, and addressed to the senate.
The order contains, then, the text itself of the law and
a direction to the senate to publish and put it in force.
The publication of law is brought about by means of
the senate, which sends the new laws, with notices, to
all the institutions required to apply them. It also
causes them to appear in the Collection of Laws and
Ordinances of Government, so that all may have knowl-
edge. Government institutions, functionaries, and the
general public, can thus learn of new laws.
The rules with regard to the putting in force of laws
are, with us, still very vague and unsatisfactory. Dating
from the XVIII century, they call for knowledge of
new laws only on the part of governmental institutions,
and not of the whole population. Articles 57 and 58
of the Fundamental Laws seem to prescribe a rule ac-

cording to which laws must be published twice. Article

57 provides that this duty be entrusted to the senate,
and Article 58 assigns to the provincial administra-
tion the task of publishing the law in each department,
but since the whole Empire is divided into depart-
ments it will be asked what is the senate's role in the
publication. Article 59 says that the different admin-
istrations can apply the law before it has become obliga-

tory upon Each tribunal, consequently,

individuals.

including the senate and the departmental administra-

tion, should apply new laws from the moment of their
reception. They can only be published after they have
446 THEORY OP LAW
been received, and the day of reception cannot be the
same as that of publication. Meanwhile, the law has
obligatory force both for individuals and the tribunals
which are charged with ascertaining rights and obliga-
tions.
The absurd consequences of a literal interpretation of
the text of the Fundamental Laws is explained only by
the fact that these texts are not designed to speak of
the application of laws except so far as such application
shall be made by the different administrations. But
how ought law to be promulgated in order to come to
the knowledge of all?
It is in a very general way that Article 59 tells us that
law has no executory force except so far as it is pub-
lished. But it does not say what is meant by the ex-
pression, "The day of publication." The general regu-
lations of the senate, it is true, in its Article 19, says
that this day is determined by the senate's order. The
publication of the law in the Collection of Laws is
equivalent to an official one, and it might properly
seem that this publication fixes the moment from which
the law should begin to be obligatory upon individuals.
This interpretation leads us, however, to some conse-
quences which cannot be admitted. If we should accept
it, it would be necessary also to recognize the law as

obligatory for individuals before it is for tribunals, since

it is through the Collection of Laws that the tribunals

learn of new ones. It must, then, be admitted as a

general fact in practice, and in legal literature, that the
law becomes obligatory at the same time both for indi-
viduals and for tribunals, and in becoming so, it becomes
obligatory before reaching the knowledge of the people
generally. This inconvenience also must be added,
that for each tribunal the starting point from which
the law becomes obligatory is different. With the great
distances which separate certain cities from the capitol
 POSITIVE LAW 447

this isan important point, and the difference between

the dates of application of the law in different places is
sometimes very wide.
We cannot, then, simply by recognizing the moment
of publication of the law in the Collection determine
the time at which it becomes obligatory. For this it is
necessary to know at what time each local tribunal
receives it.
 448 THEORY OF LAW

Section 57. The General Code of Laws

HISTORIC DEVELOPMENTS OF THE CODE OF 1837

Besides the Collection of Laws and Ordinances of

Government published every year since 1863, we have
in addition two other collections of laws, the Chrono-
logical Collection, complete with all legislative acts
since the code of Czar Alexis, and the Systematic Col-
lection of present legislation, more simply styled Code
of Laws. These are all collections of laws already
promulgated, of original laws, but they present very
important differences between each other. In the first
place they are not final collections, like, for example, the
Code of Justinian. They are, on the contrary, collec-
tions of legislation actually in force and always suscep-
tible of revisions and changes. The Complete Collec-
tion does not, like the Code, present a tableau of our
legislation at a given moment of its historic evolution.
On the contrary, it is designed to show us all the succes-
sive changes in that legislation. Then these collections
are not prepared legislative power, but by an
by the
institution having no such power. At the beginning,
this institution was the second section of the Emperor's

chancellery. It was transformed in 1882 into a section

charged with codification of laws, and since 1893 it

has become a special section of the chancellery of the
state, a section of the Code of Laws. Gotten up by
this institution, the new volumes of the Complete Col-

lection, the same as new editions or supplements of

the old Code, are not subjected to the action of the
Council of State, as is required in the promulgation of
fresh laws.
Under the reign of Nicholas I were put out for the
first time this Complete Collection and the Code.
 POSITIVE LAW 449

What is appearing today is merely the succession of

these different publications. Therefore, the last edition

of the Code, that of 1893, bears still the same title,
Code of Laws of the Russian Empire prepared by Order
of the Emperor, Nicholas I.
Several times it has been attempted to publish other
codes, that of Alexis in 1648, and under Peter I at the
beginning of the XVII century, as well as at the com-
mencement of the XIX. All these attempts failed, and
Nicholas I decided to compose, instead of a new code, a
collection made up of laws then in force. He entrusted
this work to Speransky.
Such an enterprise offered a good many difficulties.
The laws were, up to that time, published on separate
sheets; there was no collection at all complete, either
official or private. So, to determine upon and classify
the laws then in force it was necessary first to collect
all since 1649 and classify them simply in chronological

order. This was done in 1830, when appeared the first

complete collection of laws, a collection of forty-five
volumes, which includes all the legislative acts put
forth from 1649 to December 12, 1825, that is to say,
up to the day of the first manifesto of Nicholas I, a
total of 30,220 acts.
All these acts were inserted in the Collection just as
they had been promulgated, without any changes and in
the chronological order. The day of publication of
the law was sometimes indicated, but not always. This
Collection, in order to facilitate researches, includes
besides, two indexes, a chronological and an alpha-
betical one, and a systematic table of contents. At the
same time with the appearance of this first "Complete
Collection" there began the publication of a second col-
lection which was to include all legislative acts newly

promulgated and to begin with the first manifesto of

Nicholas I. This second collection is composed on the
450 THEORY OF LAW
same plan as the first, but numbered in a different
order.
With the coming to the throne of Alexander II there
arose a question whether this second collection should
not be terminated and a third commenced with the
first manifesto cf that Emperor; but Alexander II
refused to undertake the publication of a new collec-
tion. It was only on the twenty-fifth anniversary of his

reign that a third collection was commenced, February

19, 1880. After the accession of Alexander III, October
19, 1883, the second collection was continued up to that
date so as to embrace the acts of the preceding reign,
all

and it was from this date only that the third collection
commenced with the first manifesto of Alexander III.
The second collection at the present time terminated
includes, then, all the legislative acts of two reigns, that
of Nicholas I and of Alexander II, a total of fifty-five
volumes.
The publication of the Complete Collection was brought
about by the dispersion of the laws, which were all pub-
lished on separate sheets. Since 1863 the publication of
new laws has taken place through the Collection of Legis-
lative Acts, which is also a complete collection provided
with a chronological and alphabetical index. The in-
quiry is made if there is any necessity for continuing
the Complete Collection when there is another Chrono-
logical Collection which always appears long in advance
of the Complete Collection. This question has been sev-
eral times raised, notably in 1882, by the Council of
State. The publication of the Complete Collection has
nevertheless been maintained.
The reasons for keeping up the publication of these
two collectionsare interesting from several points of
view. It has been explained before that it is only in
the Complete Collection that the laws are placed in a
definite chronological order. In the Collection, on the
 POSITIVE LAW 451

contrary, the order is merely that of chance. The laws

in this collection are inserted, not according to the date
on which they are sanctioned, but according to the date
on which the senate has discussed them. But it is nec-
essary to say that the chronological order according to
the time of their publication which has been selected
by the Complete Collection is not very important.
For a jurist the important thing is to know at what
time a law became obligatory, not when it was sanc-
tioned. last date can interest only the historian.
This
Then observed that there are numerous defects in
it is

the Collection inevitable in such hasty publication. To

be sure, there are defects, also, in the Complete Collec-
tion, for such there are in all human works, but they
are not in great number. These defects should be cor-
rected as promptly as possible by the same institution
which has created the law. Itmust be added to these
considerations that the Complete Collection and the
Collection do not coincide in all their parts. The Com-
plete Collection contains a much greater number of
acts. Volume 41, for example, of the Complete Col-
lection has 1242 orders, while the corresponding volume
of the other collection comprises only 893. This is ex-
plained because the second section of the chancellery
charged with the publication of the second collection
followed the same rules as those which had served for
the They were not satisfied with reprinting the
first.

published orders to which the senate had refused publi-

cation because they had not been rendered according to
the forms required by general law. The section of codi-
fication recognized how badly ordered was such a pub-
lication, and since then, by order of the Emperor,
the

Complete Collection includes only acts published in

the Collection. We may therefore question the impor-
tance of continuing these two collections which have be-
come identical.
452 THEORY OP LAW
The existence of these two official collections may give
rise practice to serious inconveniences.
in Two inde-
pendent collections, prepared by different institutions,
can never be completely identical. There will be differ-
ences between them, and besides, the director of the
Complete Collection asserts the right of correcting faults
in the text of the other collection. It can happen, then,
in this that the same law will present a different
way
text in the one collection from that of the other. Which
of the two texts, then, would have obligatory force?
Since the insertion of the law in the Collection is an
essential element in its publication, it must be admitted

that the law is as it has been put forth in the Collec-

tion and this has obligatory force, and that in case of
conflict with the text of the Complete Collection it is
the text of the Collection that ought to prevail.
 POSITIVE LAW 453

Section 58. The First Editions of the Code

The publication of the Complete Collection was con-

sidered as a necessary preparation for the publication
of The Collection of Laws Actually in Force, that is,
the Code. This Code is distinguished from the Col-
lection first of all by its contents. It does not con-
tain all the laws, but only those which still have oblig-

atory force. Then, the laws in force are not inserted

in the Code in their entirety and under the form in
which they were promulgated at the beginning. The
Code includes only extracts under the form of distinct
articles with references to the orders which served for
their revision. Finally, the order of the legislative dis-
positions contained in the Code is not chronological but
systematic.
The Code was composed in seven years. Commenced
in January, 1826, it contained at the end of 1832 the
laws in force up to January 1st of that year and on
January 19, 1833, it was presented to the Council of
State at a memorable sitting over which Nicholas I
presided. The manifesto was signed January 31, 1833,
but this first edition was called from the year of its
publication, the edition of 1832. The date of its going
into effect was January 1, 1835, in order to permit the
tribunals to fully understand it.
At the publication of the Code it was first of all neces-

sary to exclude all laws which had been abrogated by

later ones. All repetitions were also set aside and in-
stead of several laws as to the same matter, the Code
never contains more than one. Finally, the very text
of the ancient laws is preserved as far as possible "be-
cause in law it is not elegance of style which must be
considered, but its force, and its force is so much the
454 THEORY OF LAW
greater the older it is." Finally, diffused laws, too
much extended, were abridged and for this purpose it
was decided to recall for what object the law had been
established without setting forth too extensively the
particular cases.
Made up in this way, the laws form different articles
of the Code,and for each of them dispositions have been
found which have served as a basis. The object of giv-
ing to these articles a greater certainty was not the only
one, but also to make the reading of the Code more
comprehensible. There are here some indications neces-
sary in order to determine precisely the field of the law
and to understand its true meaning in case of doubt.
They are the best means for gaining a good interpreta-
tion. They form a system based, not upon arbitrary
conclusion, but upon the comparison between the two
forms which are given to the same law.
Besides the references to the orders which have served
some articles of the Code include in addi-
as their basis,
tion notesand supplements. The first edition contained
under the form of notes, some explanations, which, con-
taining neither command nor prohibition, were not laws.
The supplements contain different forms and tables which
would have obscured the meaning of the leading articles
and would have broken their connection if placed in the
text itself. In later editions the same rule was, unfor-
tunately, not observed, and under the form of notes
and supplements, true laws have been inserted modifying
entirely the articles to which they are added. It is ob-

served, moreover, in these last times, there is a tendency

to give to notes and supplements the same effect which

they had formerly.

The articles of the Code are arranged in a systematic
order.1 This system rested upon the following princi-
ples' All laws are divided into constitutional and civil.

1 The edition of 1832 contained 36,000, with supplements, 42,198.

 POSITIVE LAW 455

The constitutional laws are those which determine the

rights and duties of the individual towards the state.

They The one kind fix the very

are of two kinds.
essence of the organization of the state; the others
merely protect the rights which result from it. The
laws of the first group are subdivided in their turn,

first, into fundamental laws which regulate the sovereign

power, its organization and its action as to both legis-
lation and administration; second,
into organic laws which
regulate the organs of power; third, into governmental
laws, which determine the means by the aid of which
power acts and which arrange the forces of which power
disposes (personal duties, military service, taxes); and,
finally, fourth,those laws of the classes, laws which fix
the rights and duties of subjects according to their
degree of participation in the state's power.
The public laws of the second group are divided into
preservative laws and criminal laws.
Civil laws fix the rights and duties arising from the

family and from the possession of property. Speransky,

however, has divided them into two categories by another
mark of distinction. He has combined together the
laws of the family and patrimonial ones under the name
of general civil law, and he distinguishes from them the
special civil laws, is to say, those which fix the
that
rights over goods in their relation to the state and to
commerce, industry, etc. These special civil laws are
called, according to their main purpose, the economic
laws of the state. The whole Code is thus divided into
eight leading sections comprised in fifteen volumes:
I. The Fundamental Laws of the State, Vol. 1,

Parti.
II. Institutions: a, central, Vol. 1, p. 2; 6, local,
Vol. 2; c, rules as to functionaries, Vol. 3.
III. The Laws Organizing the State's Forces: a,

regulation of requirements, Vol. 4; 6, regulation of

456 THEORY OF LAW
imposts and rights of the state, Vol. 5; c, regulations of
import duties, Vol. 6; d, regulation of money, mines and
salt, Vol. 7; e, regulation of forests and domainal re-
ceipts, Vol. 8.
IV. Laws with Reference to the Classes, Vol. 9.
V. Laws and Concerning Boundaries, Vol. 10.
Civil
VI. Laws as to Good Order in the State: a, credit,
commerce and industry, Vol. 11; b, ways for communi-
cation, constructions, fires, rural economy, police of
village and colonies, police of foreigners in the Empire,
Vol. 12.
VII. Laws of Police: a, public assistance and medical
laws, Vol. 13; b, passports, criminal arrests, Vol. 14.
VIII. Criminal Laws, Vol. 15.
Each of the fifteen volumes in the Code constituted a
separate whole, a distinct code, devoted to a special
institution, having its own numbered order and separate
pagination. This system includes all the law in force
with the exception, first, of local law; second, legislative
acts as to public instruction and the control of the state;
third, legislative acts as to the control of religious worship;
fourth,some laws concerning the administration of the
court and certain benevolent institutions placed under
the special auspices of the Emperor or of members of the
imperial family; fifth, some laws as to the army and navy.
It forms a code of laws in the material, not the formal
sense of the word. It includes all the legal rules created
by the sovereign power and also those which emanate
from inferior administrative organs, especially from the
ministers and from the In including in the
senate.
Code the orders of the senate or of the ministers it was
not intended, however, to give them for the future the
force of law. In the Review of Instructions as to the
Code, p. 176, it is said, on the contrary, that all these
orders have been carefully distinguished by a reference to
the order itself, in order not to confuse them with the law.
 POSITIVE LAW 457

According to the opinion of the Council of State of

December, 1834, an opinion confirmed by the Emperor,
it was understood that the Code would comprehend,

first,the circulars of the ministers bearing upon the

execution of the law, if these circulars were confirmed by
the senate; second, the explanations furnished by the ad-
ministration ratified and published by the senate, on condi-
tion that they conform to the laws in force and that
they do away with the doubts which might arise from
reading the text, without, however, giving to that text
any modification.
458 THEORY OP LAW

Section 59. Later Editions of the Code and Supplements

Since our Code is a collection of laws actually in force

and is intended to reflect all the changes brought forward
in legislation it was necessary to take measures that it
be always in conformity with the actual state of legis-
lation. To reach this end two different means are
employed, first, new editions of the Code are published;
second, supplements are added from time to time.
After the first edition of 1832 there were two others
in 1842 and in 1857 and then a great number of editions
of separate volumes and distinct parts in 1883, 1885,
1
1886, 1887, 1889, 1890, 1892 and 1893. All these edi-

tions, however, do not fully replace that of 1857, certain

parts of which are still in full force.
At the beginning it was hoped that new editions could
be made upon the precise plan of the old one, maintain-
ing its least details. With this object, the Council of
State put out on December 15, 1834, the opinion that
the preparation of a new statute ought always to con-
form as far as possible to the leading arrangements in
the corresponding article of the Code. It was thought
then that whatever changes were subsequently brought
into legislation, they could always find place in the Code.
In the meanwhile, however, when this question was
discussed in the Council of State, Count Kankrine

expressed some doubts as to the possibility of always

placing under the Code's rubrics the new laws, which
introduce notable changes, and to which, in consequence,
there would be no corresponding chapters already exist-
ing. This was what, in fact, happened at the editing of
the new Code of 1842.

1 No mention has been made of the

reprints of 1833 and of 1835, though both
these reprints were entitled in printing them, as new editions.
 POSITIVE LAW 459

After the first edition of the Code a good many impor-

tant institutions were created. There were some very
useful instructions on this subject addressed to the
governors. There were some laws as to the matter of a
regency in the government, as to police of districts, etc.
As it was impossible to place them in the midst of exist-

ing articles, they were put at the end as supplements to

the articles which they superseded. Their position has
no relation to the importance of the new laws. The
original plan put in the supplements only some articles
bearing upon modifications of detail; instead of this
there are now some orders fixing the entire local admin-
istrations which find place there.
In the second edition of the Code in 1842 it was
thought to set aside so troublesome a disposition, and
that it could be done without essentially modifying the
arrangement of the different volumes. It is in this way,
for example, as Count Bludov explained in his report
to the Emperor of December 10, 1842, that Vol. II was
made over and entirely composed anew in this second
edition. One might almost say that every part in this
volume has recived modifications as a result of new
laws. The same thing happened in other volumes, but
in less degree.
Besides this, there is an important innovation in all
the volumes, one which appeared at first to have no
purely external results, but which has, however, abso-
lutely changed the general character of the Code. In
the first edition each volume was one of a series with a

general numbering. The Code was then a

systematic
collection of articles forming fifteen volumes. For the
indication of an article two numbers were required, its
volume and the article. The place of an article was
determined solely by its place in the Code and not at
all by the chapter in which it first appeared. There
was thus obtained a complete unity between the differ-
 460 THEORY OF LAW
ent parts of the Code. In the edition of 1842, on the
contrary, the different institutionsand the different
have all received a separate numbering. Count
articles
Bludov gave a reason for it, basing it upon considera-
tions of an external, practical sort. It was necessary,
he said, to make the sale of different parts of each
volume possible. In fact, this change had consequences
which were important in another way. In rendering
easier the preparation of the new edition it permitted
^thenew laws also to find a place in it, while still keep-
ing its original system for the Code as a whole. This
happened, for example, in the articles regulating the
Council of State, and the one as to instructions addressed
to the governors.
The second edition is larger than the first, the number
of articles is greater by more than twice that of the edi-
tion of 1832; it is 59,396 articles. On the first of Novem-
ber, 1851, the Emperor directed the preparing of a third
edition. The Count Bludov, who had always charge
of these codification projects, hoped, according to his

report of November 1, 1851, to introduce some very

important changes into this new edition. He wished
to put in all the laws which had not appeared in the
first two editions excepting always the military and
naval codes, the laws as to the Emperor's domain lands,
as to the government of the Baltic, and as to the ortho-
dox religion.The number of volumes would be raised
in this way from fifteen to twenty. In his report of
December 16, 1854, he decided to keep the same number
of volumes and to do this he divided Vols. 2, 8, 11, 12,
and 15 into two parts each, and Vol. 10 into three, and
so the third edition has fifteen volumes in twenty-two

parts. The whole Code is divided into eight principal

parts and since certain volumes are divided into parts
that word has to be understood in two meanings. Count
Bludov's idea of putting into this new edition all the
 POSITIVE LAW 461

then in force was not fully carried out. There

were introduced only the statute as to finances, Vol. 8,
Part 2, those relating to foreign religions, Vol. 12, Part 1,
and those as to the post and telegraph, Vol. 2, Part 2.
The third edition comprises about ninety thousand
articles.
The edition of 1857 was the last of the whole Code.
Up to 1876 there was no new edition. A new edition
was then made up of the first parts of Vols. 2, 3 and 8,
the second parts of Vols. 10, 11 and 15, and since that
time there have been various editions of separate
volumes.
All these new editions compromise badly the original

unity. Beside volumes of the edition of 1857, still in

force today, must be put editions of 1892 and 1893,
which were composed after -the appearance of the very
important reforms of the XIX century. Our Code has
never had an internal unity. It has not lost its external
unity, and has ceased to be the work of a single hand,
or even that of a single epoch. It now no longer presents
a tableau of the legislation of any given historical period.
The different statutes become from day to day more
diverse and more independent. We have already seen
that in the edition of 1842 the different Codes contained
in the same volume had received a distinct numbering.
In the most recent editions, each volume formed a dis-
tinct collection of codes, regulations and institutions
without having any connection with a preconceived
general plan, and without being attached to any given
system. Each new legislative act, however unimpor-
tant, forms a new integral part of the volume coming
the nearest in matter to that of which it treats. The
numerous changes which have taken place in our legis-
lation in these last sixty years have completely altered
the original system of the Code. The number of
volumes, even, is no longer the same.
462 THEORY OF LAW
The Code gave no distinct place to the judiciary and
the administration of justice. The tribunals formed the
subject of a chapter among those treating of the other
state establishments. They were subdivided into Cen-
tral Tribunals, in Vol. 1, and Local Tribunals, in Vol. 2.

The laws for the administration of criminal justice and

of civil justice have been joined to criminal and civil
law. In the regulations of justice by Alexander II, the
judiciary and the administration of justice were com-
pletely modified, and became a separate whole. For
this reason after the attempt of Prince Urusov to place
the regulations as to the administration of justice in
distinct parts of different volumes of the edition of 1876,
it was decided in 1892 to make out of these a new

volume, Vol. 16. The number of parts in certain

volumes was changed. Vol. 10 had no longer three
parts, but only two, the civil laws and laws as to bound-
aries, and Vols. 2 and 15 were reduced to one part each.
With regard to what the Code should include, it was
decided in 1885 to put in only legislative acts, and ordi-
nances of the Emperor addressed to his subjects, which
were connected with texts of the Code, and as to which
there were no existing legislative texts. It was decided,

also, to put in explanatory orders which had been sanc-

tioned by the Emperor. Orders of the senate were to
have no place, unless presenting something specially
important for the explanation of a law, and on condi-
tion that each such order should be authorized by
the Emperor to be inserted in the Code. The ministers'
circulars were not to be inserted except those of the
Finance Minister in regard to import duties. In our
time the Code is made up, therefore, of sixteen volumes,
Vols. and 16 having two parts, and Vol. 9
1, 8, 10, 11, 12,

containing a distinct supplement with regulations as to

the peasants. These volumes include the following
matter:
 POSITIVE LAW 463
Vol. 1, Part 1: Fundamental laws of the state. Part 2:
Statutes of the Council of State, of the Council of Min-
isters, of the Council of Siberian Railroads, of the senate,
of ministers, orders as to petitions addressed to the
Emperor, as to recompenses decreed by the Emperor,
as to different titles of nobility (editions of 1892, 1893
and 1895).
Vol. 2: The general organization of the provinces,
laws as to provincial institutions and districts, cities,
Poland, the Caucasus, Trans-Caspian territories, Tur-
kestan, as to the province of Akmolinsk, of Semipala-
tinsk, of Semiretchinsk, of Uralsk, of Turgaisk, of
Siberia, and laws relating to foreigners (editions of 1892,
1893 and 1895).
Vol. 3: Provisions with regard to nomination of func-
tionaries, subventions and pensions (editions of 1876,
1890, 1891, 1893), regulations as to civil service in dis-
tant localities, in western governments and Poland (edi-
tions of 1890, 1891, 1893), as to funds of the civil depart-
ment (editions of 1886, 1890, 1891, 1894).
Vol. 4: Provisions as to military service (edition of
1886, 1890, 1891, 1893), those relating to land taxes
(editions of 1857, 1890, 1891 and 1893), and to provin-
cial institutions (editions of 1890, 1891, 1893).
Vol. 5 : Provisions as to direct taxes, as to the rights of
the state, receipts, lodgings, taxes (editions of 1893, 1895).
Vol. 6: Provisions as to imports, the general tariff on
imports in European commerce (editions of 1892, 1893,
1895).
Vol. 7: Provisions as to money and mines (editions of
1893 and 1895).
Vol. 8: Provisions as to forests, payments due the
state, administration of state domains in western and
Baltic governments (edition of 1893, part 2), provisions
as to accountability (editions of 1857, 1890, 1891, 1893,
and 1895)
464 THEORY OF LAW
Vol. 9: Provisions as to ranks, special supplement to
Vol. 9 (editions of 1876, 1890, 1891, and 1893).
Vol. 10, Part 1: Code of civil laws, regulations as to
markets and matters furnished for the account of the
state (editions of 1887, 1890, 1891, 1893, and 1895).
Part 2: Provisions as to boundaries (editions of 1893
and 1895).
Vol. 11, Provisions as to foreign religions
Part 1:

(editions of 1857, 1890, 1891, and 1893), as to educa-

tional establishments under control of Minister of Pub-
lic Instruction (editions of 1893 and 1895). Part 2:
Provisions as to credit, bills of exchange, commerce,
consuls, industry (editions of 1893 and 1895).
Vol. 12, Part 1 Provisions as to the administration of
:

roads (editions of 1857, and 1893), as to railroads (edi-

tions of 1886 and 1893), as to posts and telegraph
(editions of 1876 and 1893), constructions (editions of
1887 and 1893), regulation of fire insurance (editions
of 1886 and 1893). Part 2: Laws as to rural economy,
field labor, taverns and hotels (editions of 1893 and

1895), police of villages (editions of 1857, 1890, and 1891),

Cossack villages and foreign colonies in the Empire
(editions of 1857, 1863, 1864, and 1868).
Vol. 13: Provisions as to public food supply and public
assistance (editions of 1892, 1893, and 1895).
Vol. 14: Provisions regulating passports, the censor-

ship, the press, persons detained and deported (editions

of 1890, 1891, 1893, and 1895).
Vol. 15: Criminal and correctionary laws, the rules as
to punishments by justices of the peace (editions of
1885, 1890, 1891, 1893, and 1895).
Vol. 16, Part 1: Judiciary regulations. Part 2: Organi-
zation of local tribunals, laws as to the administration
of justice and civil penalties (editions of 1892, 1893, and
1895).
As the successive editions of the Code are separated
 POSITIVE LAW 465

from one another by a considerable interval, there have

been enacted every year supplements, which, without
citing the whole contents of the Code, contained only
the changes brought about. 1
These supplements are of two different kinds; one
includes only the laws adopted since the publications
of the preceding supplement, the others include all which
have appeared since the last edition of the Code. The
supplements actually in force are those of 1890, 1891,
1893, 1895, and it is only for laws in regard to the
Cossacks and colonies of foreigners (Vol. 12, Part 2)
that the supplements of the editions of 1863, 1864, and
1868 preserve their force.
The laws inserted in the Code, or in the supplements,
should be cited by notes indicating references to corre-
sponding parts of the Code. That is the way the senate
regulation has provided. These references should in-
clude, first, the date of the edition or of the supplement;
second, an indication of the volume, or the part of the
Code if the volume has more than one part; third, the
title of the law and the abbreviation commonly used to

designate it; fourth, the numbers of the article; as one

should say, Code of 1892, Vol. 11, Statute as to Cities,
Art. 1. As we have already indicated, certain branches
of our legislation are not included in the Code. They
may be found only in the supplements to later editions.
This is the case with the laws as to scientific establish-
ments and foreign religions. There are some laws which
have not gotten into the Code at all, but form distinct
codes. Such are those relative to the region of the
Baltic and the military and naval codes.
The military code appeared in 1838. It consists of
five parts, is divided into twelve volumes in fifteen

i The Code of 1832 included six supplements of this kind, those of 1834, 1835,

1836, 1837, 1838, and 1839. The first included

823 corrections. The Code of
1842 had nineteen supplements, and the Code of 1857 also nineteen.
466 THEORY OF LAW
books. The first part, Vols. 1 to 4, contained the organiza-
tion of military institutions; the second, Vols. 5 and 6, the
laws as to the service; the third, Vol. 7, as to instruction
of troops; the fourth, Vols. 8 to 11, the laws as to the

amendments; the fifth, Vol. 12, as to military crimes.

On the same plan was the second edition in 1859,
which had six supplements up to January 1, 1869. The
military reforms of the last reign, however, were so
important that his plan became impracticable. So in
1869 came a third edition on a new plan. It consists
of six parts, first, military administration; second,
regular troops; third, irregular troops; fourth, military
establishments; fifth, military economy; sixth, military
discipline and The new edition, however, is
justice.
not yet complete. Only parts one, four and six have
fully appeared, the second and fifth in parts only, and
the third not at all. There are three supplements,
issued in 1874, 1879, and 1881.
The code of marine laws of 1886 includes eighteen
books: 1st, administrative rules of the naval ministry;
2d, equipage and detachments; 3d, establishments of
instruction; 4th, medical establishments; 5th, technical
establishments; 6th, hydrographic establishments; 7th,
prisons; 8th, matters of service; 9th, pay and aids in
money; 10th, maritime laws; llth, police of ports; 12th,
instructions on economy; 13th, pay of functionaries;
14th, equipage of ships; 15th, regulations of finance;
16th, punishments on ships of war; 17th, discipline in
general; 18th, justice.
There are special laws for the governments of the
Baltic Region, first, organization of local institutions;

second, rights of classes; third, civil laws. The code of

laws of the government of the Baltic contains only these
three parts. The two first appeared in 1845, with a
supplement in 1853. The code of civil laws was pub-
lished only in 1864.
 POSITIVE LAW 467

In the government of the ex-kingdom of Poland, the

French civil code, introduced in 1808, prevails down to

the present time. There have been, however, important

changes, notably as to marriage. The official Russian
translation of this code appeared in 1870 under the
title, Collection of Civil Laws of the Governments of
the Kingdom of Poland.

Finally, in Finland, there is still a special legislation

in force, which has grown up through the activity of a

special legislative organ, the Finland Diet. The basis

Swedish Code of 1734, published
of this legislation is the
in Russia with changes and supplements in 1824, under
the title of Swedish Code Accepted by the Diet of 1734
and Sanctioned by the Emperor for the Grand Duchy of
Finland. The new laws were printed in the collection
of decretals of the Grand Duchy of Finland which

appeared in Swedish in 1808 and was printed in Russian

in 1860.
468 THEORY OF LAW

Section 60. The Importance and Force of the Code

From the appearance of the Code it was the intention

to condense into one systematic whole the body of laws
then in force, but there was no intention of replacing
the former legislation by new. It may be asked, then,
what the legal compass of the Code was designed to be.
Ought it to be regarded as a new law abrogating all
former ones, or only as a new form given to the old
laws and merely intended to make their comprehension
and application easier? If the Code is recognized as new
law the legislation in force before will keep its force only
in so far as it shall have found a place in the Code itself.
And if there is any contradiction between the Code and
former decisions, the articles of the Code will control it,
since the Code in its quality of new law will abrogate

previous contradictory laws. If it is considered merely

as a reproduction of the old laws which keep their
then it must be admitted that the articles
force, of the
Code are obligatory only so far as they correctly repro-
duce that law on which they are founded.
To recognize the Code as new law abrogating all
anterior on&s was, in practice, the most convenient way.
The question of the relations of the Code to anterior
laws would thus be solved in a very simple way. Only
the Code had the force of law. On the other hand, to
resolve it in this way was to depart from the very pur-

pose of making the Code, which was to combine all the

legislation in force without bringing in any change.
Like all human work, it had certainly made changes.
To count law, abrogating what went before, was
it new

to ratify and establish all the changes and omissions

unconsciously made by its redactors.
The determination of the legal effect of the Code is,
 POSITIVE LAW 469

then, a practical question of great difficulty. How has

it been determined in our
legislation?
The manifesto of January 31, 1833, which announced
the first edition of the Code, in its second and fourth
articles determines this question. The second article
indicates the legal force of the Code in requiring its
citation and application in governmental and judicial
matters. In all cases where laws are applied and cited,
at large orby extracts, a reference and citation to the
Code, where it treats of the matter, must be added.
The fourth article says that the Code is not designed
to change the law but merely to combine it under one
form and order, when the law reproduced by the Code
shall not be sufficiently clear it shall be explained as it
has been hitherto.
These directions are not very explicit. On the one
side, it is recommended to always refer to the Code only,
without looking at the laws themselves, and it seems
that the Code abrogates all previous decisions; but, on
the other hand, it is claimed that the anterior law is
unchanged and only uniformity is sought. What con-
clusion is to be drawn from this as to the weight of the
Code?
Zitovich, and after him Tagantzev, affirms that the
1

Code has the effect of new law and abrogates anterior

laws. He
even adds: "The fourth paragraph of the
manifesto not entirely exact," and he relies, to show
is

it, upon the report of Count Karl

and upon the opinion
of the Council of State as to the weight to be given to
the Code. The demonstration leads him to some con-
clusions precisely opposite to what takes place in judicial
practice. According to him each article of the Code
is a new law, which has been in force since January 1,
1835, and has such force, even if the article is not drawn

i Course of Russian Private Law, Vol. I. Sources of Law. Odessa. 1878. pp.
8 to 11.
470 THEORY OF LAW
from any previous law or decision, or even if it was put
in by error or misunderstanding as an extract from a
decision.
But it was decided to apply the articles of the Code
of 1832 not only for affairs which have arisen since Janu-

ary 1, 1835, but also to prior ones, when the only law
was the decisions and rules which are the basis of the
Code's So, now, the supplementary articles are
articles.

applied to matters which arose before their publication,

provided they sprang up after the laws which served as a
basis for the new articles of the Code. This practice is

directly supported by the fourth section of the manifesto

of January 31, 1833. So, too, our judicial usage never
recognizes as law evident errors in the redaction of the
Code. Law not correctly reported in the Code is not
regarded as changed, and omitted laws are not treated
as abrogated.
It is true that the manifesto of January 31, 1833,
does not expressly indicate that it is not necessary to
conclude that a law changed in the Code, or omitted
from it, is changed or abrogated, but the opinion of the

Council of State affirmed this and the Emperor sanc-

tioned it January 30, 1836. This opinion declares that
every time the minister of justice shall learn that during
the consideration of an affair some difficulty has been
raised because the law has not foreseen the case, or has
done so incompletely, the minister can take the matter
in hand and charge Section 11 with furnishing a resolu-
tion of it to be placed at the end of the Code. In case
of disagreement between the minister's opinion and the
section, the Council of State decides. This rule was not
published, for it was found to completely settle the rela-
tions of the minister and Section II.
The Code,therefore, cannot be considered as new
law, but only a new form given to pre-existing law, a
form that permits the ascertainment of the sense of the
 POSITIVE LAW 471

original text and which has been sanctioned by the

legislativepower.
Certainly the possibility of citing inexactly the laws
which have served as a basis to the articles of the Code,
and the necessity in consequence of always comparing the
articles of the Code with the original text of laws, pre-
sents serious practical inconveniences. But they can
be avoided by inserting in the Code the literal words of
the original law and merely reprinting them. This is
the means used, as we have seen, in recent years.
 CHAPTER III

THE APPLICATION OF POSITIVE LAW

Section 61. Criticism

UNGER. System. I. Sec. 12, s. 73.

SAVIGNY. System. I. Sec. 38, 39.
PUCHTA. Pandekten Vorlesungen. Aufl., 1863, I. Sec. 12, 13

(customs), 15 (legislation).
REGELSBERGER. Pandekten. I. ss. 134-140.

The study and application of the rules of positive law

supposes first of all the criticism of sources, 1 that is to
say, the determination in advance of what is to be
understood as the genuine rule of the positive law. Such
a rule cannot be set apart nor understood without
knowing in what it consists. The word criticism is

supplied by historical science, but presents, when applied

to jurisprudence, some peculiarities. Criticism, critique,
understood as the determination of the genuineness of
the rule or of its existence, is properly applied to all
the sources without distinction.
The existence of rules of customary law is ascertained
by direct observation of the customs, by legal maxims,
by the testimony of learned persons, by published collec-
tions of customs, and finally, by decisions based on
customary law.
2
The first two, direct observation and
maxims, give direct knowledge of customary law. The
whole matter is reduced to distinguishing between legal
customs and mere habitual usage. The last three, testi-
mony of the learned, collections, decisions, on the con-
1
Ordinarily in speaking of a criticism of laws, only law in the sense of legisla-
tion is spoken of, but there is no foundation for such a limitation.
J
Puchta, Gewohnheitsrecht, ss. 12-150, Salza, Gewohnheitsrecht, Weissek's
Rechtslexikon.
472
 POSITIVE LAW 473

trary, furnish only second-hand knowledge. When these

means of knowledge are employed, therefore, inde-
pendently of the distinction between habits and cus-
toms, it must be asked how reliable is their testimony,
and it must be ascertained to what extent the jurist,
the editor of the collection, or the judge, had the ability
or the will to formulate into an accurate rule the cus-
tomary law. Judicial decisions are a more sure source
of knowledge of the customary law, because they are

ordinarily the result of a minute verification of the

custom by the judge, usually a person well equipped for
the task. The same qualifications must be allowed in a
degree to those tribunals in which the judges are not
jurists, but representatives of the people's sagacity.
Such a popular tribunal is, to be sure, less apt to find
an exact and clear formula for a legal rule than is a
tribunal composed of jurists, but from the persons who
make it up, the popular tribunal has an immediate
knowledge of customs.
Less confidence isto be put in the conclusions of
tribunals whosepersonnel consists of men equally
strangers to the popular conception of law and to legal
instruction. Such are, for example, the clerks of local
courts, who can scarcely read and write, but have,
however, great influence over the judicial usage in the
communal tribunals.
The popularity of a collection of customs is the best
proof of its authority as to those customs. If the collec-
tion enjoys an authority recognized by every one, confi-
dence may be put in its assertions.

The testimony of competent persons may be given

under three different forms. It may consist in the first

place of testimony by individuals chosen by the tribunal

or by the parties. There can be, also, testimony from
the populace by means of general interrogatories. This
is a method of ascertaining the existence of customary
474 THEORY OF LAW
law which was in force in France up to 1667, when such
inquiries were stopped. Finally, the testimony can also
be that of some institution, as for example, commercial
deputations, or committees from the Board of Trade. 1
Formerly in France the notary's certificate, especially
as to commercial customs, had great favor.
In conformity to the edict of 1700 the opinion of
merchants confirmed by the Chamber of Commerce had
the effect of so-called acts of notoriety. 2 Like custom,
legislation and judicial usage can be known to us in
two ways, at first or second hand. Its immediate force
is derived from the authentic text of the law or from

judicial decisions. Both are considered as authentic

texts, that is to say, both the copy which carries the
signature of the chief executive or that of the judges,
and also the official editions of the laws and of judicial
opinions. To be sure, the original has a greater author-
ity than the because there
may creep into
official edition,

the latter some defect in the printing, but defects are

possible, too, in the original. They may result from
carelessness in copying or in printing, for nowadays the
original is usually printed. Defects in copying or print-
ing which are noticed in the original are sometimes
corrected in the official edition. So, the difference be-
tween the original and the official edition is trifling.
The opinion that there can be no criticism of official
3
editions widespread, but, as Puchta has shown,
is

entirely erroneous. If no criticism applies to official edi-

tions, it would result that each page of printed paper,

if it came from the government printing office, would
pass for a law. A critical examination even of the text
of the originals is necessary. It may happen, too, that

1
Zitovich, Commercial Law, p. 91.
*
Merlin, Repertoire, voce parere.
'See, for example, Unger, System. I, s. 73. Bohlau, Meklenburgisches-
Landdrecht. I, 1871. s. 320. Malichev, Course in Private Law. I. p. 291.
 POSITIVE LAW 475

the governmental order goes beyond the limits of the

governmental authority in that respect and has disposed
of some matter which ought to be regulated only by
legislation, that to say, in constitutional states, by
is

parliament. In this case the ruling is illegal and has

not the force of a law for any tribunal. It may happen,
too, that the law contradicts some provision of the
constitution, in which case it has no effect.
But criticism can be
employed upon the official edi-
tions not
merely in where constitutional
countries
powers are separated, but in all countries, because,
whatever be the government organization, there are
everywhere definite forms for the publication of laws.
Criticism is applied to determine whether these forms
have been properly observed. Just as it can be applied
to official editions of laws, so it can to reports of decisions.
A judgment that has already been enforced and would
regularly be placed in an official edition can be sup-

pressed if, anafter

examination, a personal object and
interest on the part of the judges has been shown.
Evidently such a judgment cannot be considered as an
expression of principles accepted in judicial usage.
When there is no official edition, the criticism of sources
uses the same general process as historical criticism does,
the jurist employing absolutely the same principles.
Where the jurist has to do with manuscripts, besides
this general criticism, he is led to use another sort of
inferior criticism which has been styled diplomatic
criticism. Its object is to ascertain the text, to correct
the defects left by the copyist or printer, to complete it,

add signs of punctuation, etc. These operations, as

relates to old manuscripts, require much labor and

ability. Such a manuscript presents ordinarily an unin-

terrupted series of letters with no separation between
them. To group these letters into words, and separate
them by signs of punctuation into propositions, is
476 THEORY OF LAW
criticism's first task. The texts which present numerous
differences with each other are successively corrected.
There are distinctions between the processes employed
in this task, and this criticism is divided into compara-

tive, resting upon the comparison of different texts and

editions, and into conjectural criticism, the following out
of suppositions independent of the text (emendationes ex

ingenio).
 POSITIVE LAW 477

Section 62. The Correlation of Laws of Different Places

and Times

SAVIGNY. System. B. VIII.

BAR. Lehrbuch des Intern. Privat und Strafrecht. 1892.
SCHMID. Die Herrschaft der Gesetze nach ihren raumlichen und
zeitlichen Grenzen. 1863.
GRADOVSKY. The Effectiveness of Law in Respect to Time
(Journal of Criminal and Civil Law). 1873, No. 4 (Russian).
KORKUNOV. Essay as to Construction of International Criminal
Law. Id. 1889, No. 1.

If the same rules of positive law were always and

everywhere in effect, criticism alone would suffice for
their practical application, but in fact positive law is
variable with time, and differs according to states. For
this reason it is necessary to have definite rules for its

application to avoid conflict between different laws.

Such conflicts are possible only between laws of different
epochs, places or states.
Law, of course, can be applied only to the facts which
bring about its action. There can be no talk of the
application of a foreign law with regard to a transaction
which took place in Russia, for example, and is brought
before Russian tribunals; or again, of the application
of the penal laws in force before the regulation of 1845
to a fact which arose and is passed upon under the new
penal code of that date. There would be no reason for
such an application. Whether a fact has arisen within
the sphere of a certain law's operation or not, has always
to be determined.
But it may happen that the same fact falls under the
action of two different laws, the one with regard to the
place and time of its happening, the other to the time
and place of the judgment. This would happen, for
example, if a criminal has committed his crime abroad
478 THEORY OF LAW
but is There are two possible prin-
tried in Russia.

ciples for settling such Supremacy can be

difficulties.

given to the law in the sphere of application where

trial is had, or, equally, to the law of the sphere of

application in which the facts arose, and we are liable

to get two absolutely different results according to
which is used.
There are arguments in favor of each of these two
methods. In favor of the application of the law of the
tribunal in which the given fact is heard, this general
consideration may be first of all advanced, that of know-
ing definitely that the tribunals are guided by laws
which are in force at a given place and during a given
time. An organ of local power, and performing its
functions as a result of such power, the tribunal cannot
support itself upon foreign laws, for foreign legislation
may sometimes present a complete denial of the prin-
ciples upon which local legislation rests. In replacing
old laws by new ones the governmental authority recog-
nized that the old ones were unjust and useless; other-
wise, it would not have changed them. So the tribunal,
organ of this power, cannot continue to apply the old
laws whose injustice is openly recognized. To this
fundamental argument considerations of practical con-
venience are added. If the courts of the Empire apply
always its own law to the facts brought before them, it
will have to do with only one law and that one well known.
It will ignore foreign laws, as well as those formerly in

force, and since abrogated. It is only on this condition

that the old laws lose their force, and there results an
incontestable clearness and simplicity of judicial usage.
Despite the force of these arguments, science as well
as practice has accepted the opposite theory, according
to which that law should be applied in whose sphere of
domination the facts arose. This opinion rests every-
where upon the fact that it is only by the guarantee of
 POSITIVE LAW 479

the law's authority that the acquisition of a right be-

comes fixed. A law cannot, in fact, be followed, if it is
believed that, when the facts are produced before a
court, some other law will be applied to them. Rights
can be settled only if, on each new discussion before a
tribunal, the same law is always applied to them. If
it were otherwise, the same right might
belong to me
and at the same time not do so. It is necessary to note,
also, that the time and place of the trial depend either upon
a combination of fortuitous circumstances or upon the
will of interested persons, but can have no connection
with the fact itself. That fact remains the same,
whether the tribunal be Russian or French, or the trial
take place this year or next. On the other hand, the
time and place of the origination of the facts have great
influence over them. The very character of the act
depends greatly on the environment in which it is done,
but this is determined by time and place. One may
say that the law within whose sphere the given fact arose
is like a part of the social atmosphere which surrounded

the fact and helped determine its performance. Being

a human action,would be very unjust to pass upon it
it

in accordance with a law which the man could not have

had in view when performing it.
The principle according to which the new law ought
not to be applied before it has been published, or, in
other terms, the principle according to which a law
ought not to have retroactive effects, rests upon still
other considerations. If the state should refuse to apply
to facts laws which it was prescribing at the moment
when those facts arose, such a use of power would
reduce the authority of the state and deprive its laws

of all obligatory character. The making of laws, and

giving them a retroactive effect, would deprive them
of any general objective, impartial character. When
laws are made applicable only to the future, it is quite
480 THEORY OF LAW
uncertain to what facts they will be applied, whose inter-
ests they will serve or harm, and so subjective considera-
tions of a personal kind yield to others of a more general
and objective character. If, on the contrary, the law
is made to apply to already accomplished facts known
to the world, subjective considerations would take
all

the first place, and the law might easily become a per-
sonal weapon for this or that individual.
As
to laws of different states, it is enough to say that
the simple application of the law of the state in which
the judgment is rendered would be an absolute contra-
diction to the interests of the international community.
A stranger in a country other than his own would be,
in fact, deprived of all his rights, since the rights which
he has in his own country he surely does not hold at
the will of foreign legislation.
Such are the arguments which compel us to accept,
for the determination of the correlation between the
laws of different epochs and different states, the prin-
ciple that the whole fact ought to be judged according
to the law under which it was produced. This principle
in itself is very simple, but to comprehend the whole
extent of its application, its whole use in special cases,
it is necessary to give it a very careful study. The
notions of law and of its sphere of action are already
known to us. Law, moreover, means here every general
legal rule, whether created by legislative act or not;
the product of customs and of judicial decision, for ex-
ample. We shall stop only to analyze some notions of
legal facts and of their origination.
The universe which surrounds us
presents an unbroken
connection of different changes, which we recognize by
grouping them in some way as distinct facts, each hav-
ing a scientific bearing or an historic, moral, economic
or legal one. This grouping is not determined in any
objective way and this notion of a distinct fact is not
 POSITIVE LAW 481

absolute but relative. We consider the same succession

of phenomena sometimes as a combination of several
facts, sometimes as one distinct fact. It all depends
on the purpose which guides us.
What is a distinct legal fact? It is a combination of
changes such as taken together have a legal effect, but
since the legal effect of a fact depends exclusively upon
the application of a legal rule which it sets in motion,
one can say in a more precise way that a distinct legal
fact is the combination of changes which taken together

bring about an application of law.

The legal fact may be quite complex; it may consist
of several acts or circumstances. A crime, as a legal
fact, may be composed of different elements whose
common presence is necessary to make it a crime.
Taken separately these elements will not constitute a
legal fact, because they will not bring about any appli-
cation of the criminal law. The intention, taken sepa-
rately, is not yet a legal fact, and it may be connected
with any other fact.
Legal facts are very different from each other and can
be differently grouped. It will be more convenient for
us to group them conformably to the questions which
form the subject of judicial decision. We shall thus
more easily reach our end, which is to know what laws,
indigenous or foreign, old or new, ought to control the
tribunal.
The question which a tribunal is charged with settling
can be reduced to four different categories, 1st, Is the
indicated law established? 2d, What are the conditions
for the application of that law? 3d, Is that law still in
force? 4th, What are the forms established by law for
passing upon the given affair, and have these forms been
observed?
The criminal tribunal charged, first of all, with set-
is

tling the following question: Is there a right to punish?

482 THEORY OF LAW
Then it the condition for applying the penal
settles
law and the penalty. If there is doubt as to the
fixes

question whether the law is not extinct by prescription

or by some other alteration, it is necessary to settle the
question anew.
The question of knowing if the forms instituted by
law have been properly observed is of little importance
in criminal jurisdiction, but before the civil tribunal is
often the principal question, since each contract is con-
nected with an obligatory form whose non-observance
produces the nullity of the contract.
Each questions must be resolved in
of these four
conformity with the corresponding group of actual cir-
cumstances which form, from this point of view, a distinct
legal fact. We shall regard as distinct legal facts the
circumstances which bring about the establishment, the
application, or the cessation of the law, and also the
observance in legal action of legally required forms.
Each of these facts ought to be treated in accordance
with the law under whose control it was brought about.
Quite frequently each of these distinct facts in the
course of a single affair requires to be discussed accord-
ing to different laws, because the establishment, the
realization, the cessation, of the same right can very
easily have taken place under different laws.
The notion of legal facts which we have thus isolated
is very important in explaining the question now under

examination. After having explained it, it will be easy

to understand that the realization of a right is the
work, not of the time and place of the acquisition of the
right, but of the time and place of the realization itself,
because the acquisition and the realization are distinct
facts and each is to be judged according to the law of
its accomplishment. Thus, all the owners in a given
time and place can realize their right of property quite
independently of the place or moment of its acquisition.
 POSITIVE LAW 483

It results that the criminal character of an action is

decided according to the law of the time and place of
the action itself, but the fixing of the penalty by the
tribunal, so far as it is a distinct legal fact, is the realiza-
tion by the state of its right acquired over that person
by reason of the action which he has done. It is to be
considered according to the time and place of the
tribunal.
Since the form of legal action has also a legal weight,
its observance or non-observance is to be regarded as a
distinct legal fact and ought, consequently, to be treated

according to the law of the time and place where the

act is performed. For this reason the form of judicial
action, in other words, the administration of justice, is
fixed by the law of the tribunal, and not by that of the
place and time in which the act was performed. This
is the more evident from the fact that in the same judi-
cial matter one is very often compelled to consider very
different facts, connecting them with times and places
also very different, while it is impossible to apply to the
same process different forms of the administration of
justice.
Since legal facts are very complex, it may be asked
at what precise moment a fact is to be considered as
accomplished. Considering that the fact receives a legal
effectonly after the performance of its final element,
the time and place of the accomplishment of the last
element must be regarded as that of the legal fact itself.
It may happen, still, that the performer of the act finds
himself in one jurisdiction while the result of his act
appears in another. Where, then, is the act considered
as performed? The criminalists, disposed to give to
the subjective element the leading rdle, determine this
question by saying that it is the place in which the doer
finds himself, which is to be considered as that of his
act. The civilists turn to the opposite opinion. The
484 THEORY OF LAW
realization by a person who
finds himself within a state
of his right over property, over immovables situated
in another state, ought to be discussed according to the
law of the place where the property is. Rights to
obligations are discussed according to the law of the
place of the debtor and not of the creditor. It would,

perhaps, be more equitable to hold to the same opinion

in criminal matters, since in such cases crime is not
committed except when it has produced some results
which manifest themselves outside of the jurisdiction in
which the criminal is fcnmd. When a man on one side
of a frontier shoots at another man on the other side,
the realization of a criminal intention, the deprivation
oflife, takes place where the man is slain.

The determination of the mutual relations between

the laws of different epochs and different places can be
reduced, it is seen, to a single common principle, but
these relations are none the less very complex. They
depend upon two circumstances of fact.
In the submission to action of laws of different epochs
the legal relationis effected by the action of the laws in a

single fixed order, first, that of the old law, and then
that of the new. The inverse order is impossible. In
case of conflict between laws of different states, the
difficulty is much greater. The same relation can, turn
and turn about, be transferred from one country to the
other, and vice versa. This permits interested persons
to move from one country to another in order to avoid
the requirements of the laws of one or the other country.
A more important complication results from the fol-
lowing fact: When old laws are replaced by new ones
these extend their action necessarily, at once, over all
the elements of legal relationship. It may happen, how-
ever, that the subject of a relationship falls under the
action of the new law while the object of it remains
under the old. Very often it happens that the subject
 POSITIVE LAW 485

of the relation is inone jurisdiction while its object is

in another. Conformably to the rule above indicated,
each realization of right in this case is considered as
taking place where the object of the right is.
We ought to observe, in conclusion, that in practice,
thanks to different political considerations, some infrac-
tions are admitted in the application of the general
principle which determines the correlation between the
laws of different epochs and of different places.
486 THEORY OP LAW

Section 63. The Interpretation of Laws

SAVIGNY. System. Band I, s. 206.

GRADOVSKY. Judicial Interpretation of Laws. Journal of Crim-
inal and Civil Law (Russian), 1874, No. 1.
TAGANTZEV. Lectures on Russian Criminal Law. Part I.
p. 346.

Criticism fixes the authenticity of the source of laws

as a whole and of their several parts. The principles of
the correlation of the laws of different times and places
settle precisely what laws are applicable to special cases.
But it is know what laws are to be applied.
not enough to
It -isnecessary besides to apply them. For this, it is
required first of all to explain the meaning and the field
of application of the legal rule, and this is the task of

interpretation.
Since positive law must come from some of the sources
of law the will of the legislator is law only so far as it is
found in the legislative act. If by accident or ignorance
the legislator has expressed his will in a law of a form
more restricted than such will would require, the law
nevertheless remains within the limits of the expression.
On the other hand, the law serves as a source of rights
only within the limits of the expression of the legis-
lator's will. If by chance the expressions employed

are more extensive in parts than he intended, that

cannot be considered as law which goes beyond his
real intention. A defect or irregularity of language
cannot be considered as a source of law. The task of
interpretation then, that of explaining the will of the
is,

legislator within the limits of its expression in the legis-

lative act.

Interpretation like criticism is not an exclusive attri-

bute of jurisprudence. It is found in all science which
 POSITIVE LAW 487

has to do with written sources, in history and theology,

for example. Rules might be given applying equally
to the interpretation and to the criticism of legal science
and of historical manuscripts or of religious books; but
criticism in jurisprudence presents some peculiarities,
as, for instance, the question whether or not
as to
a law is constitutional. There
are, then, two ele-
ments in juridical interpretation, the general and a
special one.
The general element consists in the ordinary logical
and grammatical processes of interpretation. Each
written source contains a human
expressed in idea
words, but the idea and the words are subject to certain
logical and grammatical rules. To understand what is

written or said necessary to know these rules. The

it is

interpreter should, as Savigny says, reproduce all the

means, the whole progress, of the composition of the law;
and he should use for this purpose the corresponding
logical and grammatical form. Grammatical rules vary
with epochs. The interpreter should apply to each
given law the rules of the time of its composition. More-
over, just as each writer has his own peculiarities of
language, every legislator has his also, and it is an
additional task of the interpreter to study the indi-
vidual peculiarities in the style of the law-giver.
Logical rules do not change, but the conceptions which
they express may be stated in various ways. So, in the
interpretation of legal rules, heed must be given to the
changes in the conceptions which they embrace. The
legislator, it is said, observed the rules of logic and
grammar in expressing his will. This is only a supposi-
tion (presumption). Therefore, if we are satisfied that
in a given case the legislator has committed some logical
or grammatical fault, as very often happens, this doc-
trine loses all its force and we cannot then accept the

interpretation it would give to the law. It is the same

 THEORY OF LAW
way when the logical and grammatical interpretation
leads to results evidently absurd.
To explain how it is necessary to understand the law
conformably to the spirit of the legislator, and perhaps
in spite of logical and grammatical rules, the history of
the law must be known. The first scheme of the law
must be reported, and then the different changes to
which was subjected, the debates before the legisla-
it

tive body. These are so many materials for explaining

how a given proposition of law came about and conse-
quently may be very useful in case of doubt as to its

meaning.
Comparison between the articles of our Code and the
sources from which they come is also very important.
In composing the Code the legislator wished to express
in his articles the same rules as those which are con-
tained in former laws, and not to make new. So legis-
lative dispositions according to which the Code has
been formed have all the value of legislative materials.
With us, it is true, it is a custom to consider the com-
parison between articles of the Code and the previous
enactments which gave birth to them an historical
interpretation. This opinion, as we shall see later, is
entirely erroneous.
The special element in juridical interpretation presents
much greater interest than the preceding. It rests upon
a special correlation of succeeding rules and of those

simultaneously existing. This correlation is not at all

which exists, for example, in historical
identical with that
or literary memoirs. The combination of historical
memoirs, connecting with a given epoch, do not form a
whole. Each of them can be separately interpreted,
and the appearance of some new ones makes no change
in the meaning of those in existence before. To be
sure, these new memoirs may assist in getting the mean-
ing of the old ones, but do not thereby change that meaning.
 POSITIVE LAW 489

The combination of legal rules existing in a given

society at a given date, exhibits, on the contrary, the
whole juridical order of that society, and the manner in
which each rule is to be applied. To the same subject
there cannot be applied at the same time, several con-
flicting rules. So the combination of legal rules forms
a whole, a system. The birth of new rules changes it,
either by limiting or enlarging the scope of the system.

Legal rules resemble in this respect religious dogmas,

which also form a systematic whole.
As to the correlation between the successive rules,
here, too, an essentially peculiar character is observed.
A new rule always abrogates as to the matter which it
determines, any rule which may have previously pre-
vailed.
This correlation of successive rules presents another
original peculiarity. It cannot be said that an earlier
historic memoir has not of itself the force of a later one,
and if it relates to the same historical event, the old is

preferred to the new. As to religious dogmas, they do

not present these exclusive relations. God in his wis-
dom does not contradict himself nor the New Testament
abrogate the Old. The
correlation just indicated between
legal rules gives to their interpretation a peculiar char-
acter, and because of this fact there must be a careful
distinction made between systematic interpretation and
historical interpretation.
Historical interpretation is the explaining of the mean-

ing of a rule by comparing it with the rule which was

acting as to the same matter at the moment when the
new rule was promulgated. If it is thus defined, the
explanation of the articles of our Code by means of
comparison with the rulings cited under these articles
is not historical interpretation. The article does not
replace the rules which are cited by it, because it is only
a new expression of the same rule. There is lacking
490 THEORY OF LAW
here the prime condition for all historical interpretation
the comparison between two successive rules. The com-
parison between the prior legislative acts and the
articles to which they serve as source, presents abso-

lutely the same character as that between the original

of the law and its official edition. In both cases we
compare the two official forms of the expression of a
single rule.
The necessity for historical intrepretation often arises
from the fact that very frequently the conception of the
new law is wholly fixed by the law which it abrogates.
Just as it is impossible sometimes to understand the
answer without knowing the preceding question, so
sometimes a law, which abrogates another, can be under-
stood only when the abrogated law is understood. If

sweeping legislation, embracing a whole branch of law,

is under consideration, only an attentive comparison

between the old law and the new can decide whether or
not the new completely abrogates the old, and this
especially because it may happen that the basis of the
two laws is quite different. The new law, by connec-
tion with the old, may have several results, it may
abrogate it completely and replace it by a new act
(abrogatio), or, may modify it in part only (derogatio),
1
or, again, may complete it By systematic
(subrogatio).
interpretation the explanation of a rule made
we mean
by comparing this rule to the whole system of law.
Thus, the explanation of the rule by comparing it with
the title of the section of the law which contains it, is

only a special form of logical interpretation. The system

of the legislative act, the arrangement of its different

articles, are a result of the logical development of the thing

determined upon, but we must not confuse the plan of
the legislator, subject, like all men, to the rules of logic,
and the system of legal rules acting in a given society,
1
Gluck, Commentar, I. s. 5-14.
 POSITIVE LAW 491
which has its basis in the law of
solidarity between
coexisting phenomena. This last system can serve as a
basis for systematic interpretation. If such a distinc-
tion is not recognized, the explanation of the law will
be in accordance with the plan of the whole article, con-
sidered separately, and this will be logical interpreta-
tion; but the explanation according to the arrangement
of the articles considered as an entire succession will be

systematic interpretation.
So far as the article formulates no principle peculiar
to itself it is permissible to the editor to combine several
into one, or, on the contrary, to make several out of
one. This is why the order of exposition of a distinct
article must be considered, and even the order of dis-
position of several articles, as the basis of logical and not
systematic interpretation.
This is not a mere question of words. Since with us
the interpretation according to titles of chapters is

ordinarily a systematic interpretation, we neglect to

search for another. Besides the distinction of interpre-
tation according to different processes, there was formerly
a distinction, according to subject, between doctrinal
and legal interpretation. The first is interpretation by
persons charged with applying the law, who derive their
influence from the science of it. The second is an
interpretation based on habit, or even on legislation
itself, and has the authority of custom or that of legis-
lative power; but, as Savigny has indicated, doctrinal
interpretation should be considered by itself. The pre-
tended interpretation by practice is only custom.
Authentic interpretation is itself only law. The force
of that strange expression, legislative interpretation of
the law, is sometimes under the cover of a legislative
interpretation to make the former legislator say the
contrary of his original thought. We must not confuse
with interpretation the application, which is sometimes
492 THEORY OF LAW
made, of a rule by analogy. Interpretation is the
explanation of a rule. Analogy is the application of this
rule to some case which was not foreseen in the law, but
which presents judicially an analogy to the cases for
which the law was made. As often as we apply a rule
drawn from some distinct enactment or from some
separate system of legislation we distinguish between
the analogy of this legislation and the law.
 POSITIVE LAW 493

Section 64. The Scientific Study of Law

IHERING. Geist des romischen Rechts. II. 2 Abth. 3 Auf.

1875. s. 309-389.
KORKUNOV. Scientific Study of Law. Journal of Civil and
Criminal Law, 1882, No. 4,pp. 1-29, and No. 5, pp. 194-195.

Interpretation explains the meaning of different legal

rules. If such meaning is not understood the rule can

get no application. So, interpretation is an indispen-

sable condition for the application of legal rules, but
interpretation alone does not answer. It cannot give
complete meaning to the law. Interpretation, in the
first place,being the explanation of a single meaning of
the indicated rule is connected too intimately with the
law of a given country and a given time. When we need
to apply a foreign law, or even a newly promulgated
law of our own country, the interpretation of the old
laws is useless. If the study of law were limited solely
to interpretation, the jurist of each state and each new
generation would be compelled to begin anew the com-
plete study of law, for laws change more than once in
the course of a single generation. Despite the variety
and number of changes in the law, there are permanent
elements, or at some so stable that they do
least
not change at the same time with any definite new legis-
lation. Legal rules as to relations change much more
quickly than the relations themselves and their funda-
mental elements. For this reason, if we accept as the
basis of legal studies not legal rules, as happens in

interpretation, but legal relations, we shall get more

stableand solid conclusions.
Another consideration, too, leads to the preference
for the study of relations over that of the interpretation
of rules. We
have seen that legal rules cannot be con-
494 THEORY OF LAW
sidered separately, even for the purpose of pure inter-
pretation. Since they act together in society, the rules
necessarily constitute a whole, and on this fact is based
systematic interpretation.
This system does not result from the external form of
legislative collections, but from the organic combination
of the relations to which legal rules are applied. For
this reason the study of legal relations is necessary to the
construction of such a system.
This study leads to something unified,something
systematic in law, that is, to something exclusively
scientific, and it is in this sense that Ihering could call

interpretation inferior jurisprudence, and could oppose

to as superior, analysis, the construction of systematic
it

relations. In what consist the processes of scientific

study of law? Science generalizes our perceptions and
replaces the immediate but superficial concrete observa-
tion by a more abstract and general knowledge. It
studies the separate perceptions only as necessary means
for generalization. It presses forward to conclusions

applicable to whole groups of like phenomena and thus

it replaces the knowledge of all special phenomena by

the general study of groups. But generalization cannot

operate upon the facts themselves. These, at least,
immediate observation furnishes. In comparing the
facts of immediate observation, before they are decom-
posed into their integral elements, we can observe only
faint resemblances, which may lead us into error and

bring about the combining of phenomena which have

almost nothing in common.
To make generalizations more certain, the materials,
the facts, which present themselves to our observation,
must be considered beforehand. For this purpose we
analyze our notions, decompose them, to find out their
general elements and the different combinations they
make. Then we combine together these general ele-
 POSITIVE LAW 495

ments and the notions which we have found by analysis

just as all true scientific research requires, and we thus
construct some juridical conceptions, original ideal con-
structions, such as all science tends toward. Finally,
these combinations, collected together, we
scientific

classify, guiding ourselves by their common resemblances

and differences in grouping them.
All these processes, observations, analysis, construc-
tion, classification, are the general processes of all scien-
tific research and do not belong exclusively to the science
of law. This, however, has not always been understood
by jurists, at least so far as regards analysis and con-
struction. Thus Ihering in his theories of analysis and
judicial construction refers for his explanations, not to

general principles of scientific method but to the alpha-

bet to explain analysis, and to organic bodies to explain
construction. Mouromtzev connects directly all the
processes of juridical construction "with peculiarities
of the juridical conception,"! which, says he, "has only
a practical, conventional sphere and cannot serve as a
means for scientific explanation."
We try to prove that neither in construction
shall
nor in analysis, can be seen merely peculiarities of
juridical conception, but that, on the contrary,
we are
here in the presence of a special application of the ordi-

nary scientific principles of all generalization. We will

take first juridical analysis.

The contrary to current ideas, does not regard

jurist,
each legal case as a complete whole. On the contrary,
he separates the whole question into several elements,
seeks to distinguish these from one another, and applies
a solution to each of the distinct elements of which the
question is composed.
Where every other savant sees
an indivisible question, admitting of only one answer,
affirmative or negative, the jurist finds, on the contrary,
Definition and Fundamental Divisions of Law, 93.
496 THEORY OF LAW
a which each requires a distinct
series of questions of
solution. Such a decomposition, such an analysis,
applied to isolated practical questions, might certainly
often appear as a useless complication of the question.
But if, not limiting ourselves to the study of one case, we

consider a succession of them, we shall then understand

that legal analysis confuses nothing and complicates
nothing. The analysis, in fact, leads to a small number
of identical fundamental elements, which go to make
up the whole infinite variety of juridical cases. Thus,
we replace by the study of some essential elements the
study of all possible cases, and get in this way, is it not
true? a great economy of time and labor.
Can this process of juridical analysis be regarded as an
original peculiarity of jurisprudence? To show the con-
trary a very little reasoning will suffice. The process of
analysis, which we make upon juridical conceptions,
can be considered as the general processes for the forma-
tion of those conceptions. Sigwart considers such an
analysis as the fundamental question in every theory of
methods. 1 In the old treatises on logic, it is true, the
process of the formation of our conceptions was
explained in a more exclusive fashion. It was explained
as if we formed all our general conceptions always in the
same way, by the successive omission of signs, and the
correlation of genus and species was recognized as the
general form of correlations between conceptions. This
is evidently what leads Ihering to search for an explana-

tion of juridical analysis, not in the general processes

which it presents
of logical analysis, but in the analogy
to the alphabet. on lo'gic, indeed,
In the old treatises
it would be hard, perhaps, to find a suitable formula

for explaining the distinction between concrete and

abstract elements, between dependent and independent
elements. Ihering explains this distinction by comparing
Sigwart. Logik. B. II. Methodenlehre, 1878, s. 5.
 POSITIVE LAW 497

it to that between vowels and consonants. The vowel of

the juridical alphabet is that which is found in life existing
in an independent way, that is, a transfer of property, a
will, etc. The consonant iswhat is incomprehensible
except as an attribute of some other thing, such as, for
example, the notion of holding over a term. Well, for
this distinction, I repeat, it will be difficult to find in
the old treatises on logic a suitable explanation, but the
recent German logicians, Sigwart, Lotze, Wundt, do
not recognize the omission of signs as a sole general
process for creating generalizations, as a sole general
form for their correlation. According to Wundt the
correlation of genus and
species is only one of the
possible forms for the correlation of notions, and gen-
erality is the essential attribute of notions, only in the
sense in which each of these notions includes elements
entering equally into the formation of other concep-
tions, from the combination of which depends solely
the distinction of different notions. 1 So, it cannot be
said that from the more or less abstract character of
the notion depends always its greater or less generality.
For example, the notion of obligation is less abstract
than that of injury, but one cannot say that it is at the
same time less general. It is not, then, the omission
of individual signs which is the process of generalizing,
but the analysis of these notions into their elements out
of which they are formed. There is no need of seeking
outside of logical rules for the explanation of analytical
processes in jurisprudence. Effort has been made in
German jurisprudence to profit by the results in logic
obtained by Sigwart and Lotze, so as to explain the
2
formation of juridical conceptions.
What Ihering calls logical concentration of notions is
also a process derived from general logic. It acts here

i
Wundt, Logic, I. 1880V pp. 8, 96.
*
Rumelin, Juiistische Begriffsbildung, 1878.
498 THEORY OF LAW
in determining the mutual relations between notions.
It should be observed that Ihering does not attend to
the variety of forms of this correlation. The correlation
of notions can be not only a relation of subordination,
but it can also take different forms; for example, recip-
rocal opposition (the fortuitous and intentional case),
correlation (right and duty), contiguity (dies incertus,
certus quando, conditio), alternation (right to things
and to services), etc.
But this logical concentration of Ihering gives unity

only in a restricted degree. In order that this unifica-

tion may include also general elements obtained by
analysis there must be a synthesis by means of juridical
construction. Like analysis, juridical construction is
no special peculiarity of legal science. It is a general

process of scientific unification. It is not required that

we regard scientific generalizations as simply copies of
reality. Such copies are necessarily obscure and indefi-
nite. are like the confused impression we receive
They
in looking at several diaphanous pictures placed one
upon the other and held towards the light. Their colors
1
and contours are mingled and no longer precise. Cer-
tainly generalizations like these confused impressions do
not answer the purposes of science. Perhaps they can
answer the purposes of ordinary life, for often, in fact,
it is by the assistance of confused and obscure notions
that we are guided in life. But science requires before
all things, exactness, clearness and precision. In truth,
scientific generalization is summarizing, rather than
making copies of reality. All scientific generalizations
are ideal constructions presenting original combinations
between general elements of conception obtained by
analysis. These combinations are not a servile copy of
reality. They are made up freely, conformably to the
scientific generalization, and for this reason they depart

i
Lewis, Problems of Life and Mind. Vol. I. 272-300.
 POSITIVE LAW 499

somewhat from all reality. Such is the character of

generalizations in all sciences without exception. They
are none of them a copy of reality. They constitute, on
the contrary, an ideal For example,
construction.
when it is said that the moon moves
a fixed orbit
in
around the earth, we do not intend that for a simple
description of the fact. It is merely an ideal construc-

tion, designed to make the moon's movement under-

stood. In fact the moon
does not describe any ellipse
around the earth, and were to leave behind it a
if it

visible track, that track would not appear as an ellipse

or any other form of a closed figure, but as a waving,
unclosed We speak in the same way in studying
line.

crystals. In order to study and explain their phe-

nomena the savants imagine that in each one there is a
certain axis, a certain line by which the nature of the
crystal is determined. In certain classes of crystals
four such axes are counted; in others, three only. They
may be of equal length or all perpendicular to each
other. According to the number of these axes, their
length and their inclination, crystals are divided into
seven categories which have as their basis their geometric
form or their physical properties. These axes, however,
are purely imaginary. All crystallographic science rests,
then, on a purely ideal construction.

Juridical have a similar value, not

constructions
merely from the practical, but also from the scientific
point of view. Between them and astronomical or
crystallographic constructions there is no essential differ-
ence. Of course the methods used are different, but
this is all which separates them. The fundamental pro-
cess of juridical construction consists in this, that the
juridical relations which exist between men are objective,
that to say, are considered as independent things, aris-
is

ing, subject to variations during their existence, and

disappearing, precisely like animated beings. They are
500 THEORY OP LAW
distinguished, besides, in their organization, their struc-
ture, their subjects, that is to say, the individuals,
between whom these relations exist, and their objects,
that is to say, the forces which serve for the formation

of relations. In every legal relation one recognizes finally

a right corresponding to an obligation.
Just as by the determination of the number of axes
of their length, and of their position, one reaches a
determination of the properties of different crystals, so
the determination of the properties of different legal
relations permits of determining their subject and object
and the conditions of their establishment. The con-
struction of legal relations resembles that of crystallo-
graphic systems. It is an ideal construction, employed
for the purpose of legal research, and for this reason
criticism of legal construction has not exhausted its
role when it has answered the questions as to whether
this legal construction corresponds well in all its parts
to reality. The axes of the crystal, the ellipse which
the moon We only
describes, exist only in our heads.
imagine them, but this does not prevent such construc-
tions from having great scientific value.
The estimation of every juridical construction ought
to depend exclusively on the following idea: Is it, or is
it not, a useful form for the reproduction of legal phe-
nomena and for the determination of their mutual rela-
tions? The utility of a process of juridical construction
is proved when one can put this process into practice.

Worked out by the civilians, properly so called, this

process becomes from day to day further applied. It is
absolutely useful for the reproduction of juridical phe-
nomena, however different they may be.
That this juridical construction may answer the pur-
pose for which it was devised it must fulfill certain
general conditions, which Ihering called laws of juridical
construction. The first is that it be complete. It must
 POSITIVE LAW 501

include all possible cases. They must all find a place

in its different pigeon-holes. The second condition is
that it be logical. The whole
construction must be
consistent with itself. must not be out of harmony
It
with juridical institutions of the more general kind.
It ought to conform to them. It ought, farther, to be
such that the solution of all questions, having regard
to the relation indicated, should be derivable from it
as a logical and necessary consequence. Finally, it
ought to be simple and natural. Anything otherwise
would not facilitate the conception but have
of the law,

quite the reverse effect.

When the construction of different institutions of law
is accomplished, it remains to classify them. Con-
formably to the distinction in the logical correlation of
notions, which subordinates, or sets them into opposition,
two forms of classification are possible, by system and
by rank. The first is the work of a comparison between
different notions which are subordinated, the one to the
other. It seeks not merely to divide into several groups
the classified phenomena, but also to 'make of each of these
groups a whole and bind them together so that they
shall be presented as all one branch of the fundamental

notion, and thus make it a systematic classification, which

can be represented under the form of a trunk with branches
and subdivisions, all co-ordinated with each other.
Jurists apply almost exclusively the classification by
system. It is, however, only a special kind of classifica-
tion. If we compare these notions of law according to
the degree of their mutual proximity we shall have a
system based upon position and such a comparison does
not create ramification. We shall have, then, a series
of several notions presenting themselves, as might be
said, like links in an indefinite chain. Such a classifica-
tion has special applicability to the phenomena of the
juridic life passing successively across
the ages.
 INDEX

ACTS,
not sole object of rights, 216.
only external ones restricted, 219.
latter include threats and published matter, Id.
specially restricted acts require special capacity, 228.

ACQUISITION and realization of rights to be distinguished, 482.

ADICKES,
his finding custom obligatory simply from length of use wrong,
414.
not mere practising it, but recognizing custom as obligatory
makes it law, 415.
AHRENS,
represents organic school in his encyclopedia, 17.
harmonious development leading idea of his legal system, 28.
his distinction of natural and formal goods accepted by posi-
tivists, 61.
his definition of law, 81.
aids overthrow of formal school, 107.
his distinction of public and private law insufficient, 235.
thinks intra state groups formed to satisfy economic needs, 333.

AMERICA, History of, contradicts Spencer's theory of state or-

ganism, 281.
ANALOGY, distinct from interpretation, 492.
ANALYSIS in jurisprudence is scientific generalizing, 495.

ANIMALS, secured in enjoyment of things only through human

persons, 202.
ARISTOCRACY and democracy, Aristotle's comment on, 364.
ARISTOTLE,
has no conception of law of science, 6.
has no modern conception of organic life, 270.
indicates defects of classification of governments into mon-
archies, aristocracies and democracies, 364.
classes them into regular and irregular, 366.

ARMY most important organ of state's executive, 360.

AUSTIN, exemplifies English theory of law as generalized facts, 32.
503
504 INDEX
AUTHORITY,
distinguished from will, 349.
states, conditioned upon subject's feeling of dependence, 351.
state's agents get their authority from this while feeling it, 352.
when due to personal it still comes from feeling of dependence,
354.
in most states exercised through a system of successive appeals,
359.

BAHR divides law into private and that of societies, 246.

BAIN'S explanation of conscious will, 158.

BEKKER, retracts opinion that animals sustain legal relations, 201.

BENTHAM makes improvement essence of law, 397.

BERGBOHM denies any existence to non-acting law, 91.
BERNARD, CLAUDE,
shows modern conception of organic life was not held in ancient
and mediaeval times, 270.
his idea of an organism's own liquid internal environment, 290.

BESELER, maintains actual existence of moral persons, 203.

BICHAT, develops vital theory and new conception of organic life,
271.

BLUNTSCHLI,
teaches all branches of law, 15.

society presents only an analogy to an organism, 274.

BODIN,
his notions of state and sovereignty, 339.
latter he thinks is unlimited authority, Id.
Hobbes accepts and extends this conception, 340.
held till our time it is now abandoned under leadership of
Laband, Jellinek, and especially Preuss, 340.

BOHEMIAN, greatly resembles the Russian language, III.

BRUNS, defends Ulpian's definition of public law, 23.

CAPACITY, special, required for specially conditioned acts, 228.

CHURCH,
a voluntary group within the state, 329.
political in character, 332.
no economic part, Id.
resembles, however, economic associations, 333.
CIVIL LAW, not realizable by forcible constraint alone, 100.

CODE OF RUSSIAN LAW,

first edition of, 453, ff.
Later ones, 458.
its unity badly maintained, 461.
its importance and force, 468, ff.
 INDEX 505
CODE OF RUSSIAN LAW '

continued.
not originally intended as new law, 468.
later sometimes held to abrogate prior enactments, Id.
Zitovich and Tagantzev wrong in saying this is unavoidable
469, ff.

COMMON OPINION of the learned not ascertainable nor a true

source of law, 423.
COMMUNES controllable central power appoints officers,
if 342.
COMMUNISM not a denial of law, 252.
COMTE, rejects metaphysics, 4, and applies Bichat's vital theory to
society, 273.
CONSTITUTIONAL MONARCHY, division of powers in, shows
absence of general will in a nation having it, 347.

CONSTRAINT,
admittedly characteristic of law, 94.
made by Thorn asius, Kant and Fichte the distinguishing one
of law as opposed to morals, Id.
inadmissible as sole support of law, 97.
refutation of arguments to show that it is, 98, ff.
situation of public law shows it is not such sole support, 99.
the state the great dispenser of, 341.

CONTRACT,
its form once criterion of its existence, now intention of parties
is so, 59.

theory that it is the basis of obligation to conform to law, 141.

this lattera question begging doctrine, 142.
though held by both Hobbes and Grotius, 427.
no more explains law than it does language, 142.
compared with judgments and decrees, 228.
largely supplemented in practice by legal rules, 180.
CORRELATION OF LAWS,
of different times and places often necessary, 477.
is difficultin practice though simple in principle, 479.

COURTS,
their action creative of law, 420, ff.
their duty to follow the law does not prevent this, 422.
must develop logical unity of their legal system and so add to
the law, 420, /.
CRIMINAL LAW indeterminate in leaving much to magistrate, 180.

CRITICISM,
in jurisprudence is determining what is and is not positive law,
472.
differs from mere historical criticism, Id.
must determine not only existence of practice, but whether or
not it is obligatory, 473.
uses direct observation, testimony of the learned and published
collections and former decisions, Id.
must test the accuracy of these last three, 474, ff.
506 INDEX
CRYSTALS, the axis by which they are classified a wholly ideal
conception as much so as are legal rights, 499, ff.
CUSTOM,
discussed, 410, ff.
is primitive form of positive law, 410.
first so recognized by legal science in XIX century, Id.
generally recognized as source of law and rejection of leads to
arbitrary fictions as to state authorization, 411.
historical school, especially Puchta, compels recognition of this,
412.
hisGewohnheitsrecht best account of it, 413.
not observance of practice but recognition of its obligatory
character makeslaw, 415.
it
mechanical theory therefore insufficient, 416.
Puchta's spiritualistic one of a public consciousness of a rule,
416, ff.
customary law is simply a practice plus a recognition of obliga-
tions, 417.
various tests for this obligatory character, 418.
decisions or legislation unable to wholly prevent derogatory
effect on themselves of custom, Id.

DAMAGES, oldest form of, protection of interests by law, 189.

DARWIN, a specialist who generalized, 15.
DEBTOR'S location not creditor's usually furnishes law of the
transaction, 484.
DEFINITION OF LAW,
none universally recognized, 78.
Korkunov's is "social norms for delimitation of interests," Id.
assumptions of this definition, Id.
not accepted by every one, 79.
formal school defines law as the delimitation of wills, utili-
tarians as the protection of interests, 80, ff.
Defined as result of state action, 86.
as social norms and opposed to morality, which is individual
norms, 92.
Cartesian dualism basis of Thomasian distinction between law
and morals, 94.

DEPENDENCE,
on others, physical, economical and moral, explains legal
authority, 193,^".
changed by law from merely social to legal dependence, 195.

DESCARTES and his dualism, 94, 270.

DEVELOPMENT OF LAW,
1st, old natural law theory that it is arbitrary, 162.
2d, historical school's theory of a natural development. Id.
3d, Ihering's conception that it results from struggle of interests,
164.

DEVELOPMENT OF NATIONS,
three legal epochs, 360, ff.
 INDEX 507
DUALISM OF LAW, 165.

DUTY,
is idea of prime importance in law, 195.
moral is absolute and may be self -regarding but
legal duty is
relative and to some other person, 200.
Dernburg's conception of legal duty to things and animals
wrong, 203.
of court to follow law does not prevent its adding to the law, 422.

EMPEROR,
Russian has sole legislative initiative, 443.
must distinguish from other acts, 440.
legislative
since all his acts are not laws, 442.
need not sign complementary laws and nearly all can be brought
under this class, 443.

ENCYCLOPEDIC,
method insufficient, 2, ff.
is one mainly used in Russia, with philosophy is used in Ger-
many, while latter is used alone in France and England, 7.
legal encyclopedia begins in 1543 with Lagus' treatise, 10.
Durantis' Speculum Judiciale of 1275 not really example of, 10.
first book of law so entitled, Hunnius' of 1638, Philippus' two
years later, 11.
Hegel's and Schelling's use of it, 13.
an attempt at independent science of science, 16.
Ahrens', Warnkonig's and De Walter's, best of more recent
German legal encyclopedias, 17.
mere alphabetic collections of articles by various writers not
really applications of this method, 18.
such collections show despair of a really scientific one, 19.
Russian works in this kind imitations of German ones, 21.
distinction of this method from general philosophy of law a
mistake, 34, /.
Muller's service in showing this, 36.

ENGLAND,
her political and legal system transplantable, 296.
the especial home of modern psychology, 300.
assigns corresponding executive to each deliberative organ,
differing in this from rest of Europe, 360.
like Russia rejects Roman law as a whole but largely influenced
by it, 400.

PACTS,
legal ones are conditions controlling appearance and disappear-
ance of rights, 224.
may be external or in the will or mind of a person, 224.
the combinations of facts necessary to the applying of legal
rules are "basis of fact" (Thatbestand), Id.
are subjective or objective, 225.
four categories of, 226.
508 INDEX
FAMILY, long regarded as being only real social group besides the
state, 228, ff.
regarded by Hegel as partly disrupted to form state, 330.
family relations later than government functions in coming
under legislation, 425.

FATALISM,
and freedom of the will, 303, ff.
basal assumption is that events are not interconditioned but
depend upon some external force, 305.
so denies causation in acts of will, 306.
involves false view of law of science as being a cause of phenom-
ena instead of an observed uniformity, 306.
position that acts of will are caused contradicts fatalism, 307.

FICHTE,
accents distinction of law and morals begun by Thomasius,
57, 94.
importance of this in struggle against state oppression, Id.
develops formal conception of law, 104.

FLEHERE, BROCHER DE LA, his definition of law, 92.

FORM,
once criterion for existence of contract, now intention is, 59.
may be required merely for proof or may be necessary to validity
Examples, Id.
of human grouping may be voluntary or involuntary, 328.
one based on expectation of future, other on origin and the past,
329.
of objective law of highest importance as furnishing test of its
obligatoriness, 402.
of law very diverse, 444, ff.
tribunal follows own through administering foreign law, 83.

FORMAL,
conception of law not present author's, 80, 104.
characterized by individualism and a mechanical conception of
society, 104.
highest development of it by Thomasius, Kant and Fichte, Id.
its vogue due to reaction against governmental authority, 105.
still a current theory, 106.
its foundation shown to be bad by organic school of Krause,
Ahrens and Roder, 107.

FOUILLEE, MENTIONED III.

his view that society, organic at first becomes voluntary, 266.
is open to objection that organism and contract are mutually ex-
clusive, 267.
his notion of a will partly free also unites incompatibles, 307.
 INDEX 509

GAMES, a good example of creative development like law, 146.

GENERALIZING,
in science, adequately treated only by recent logicians, 495, ff.
it is summarizing rather than copying and involves constructive
processes, 498.
instances, conception of moon's orbit and of axes of crystals,

GERMAN,
legal instruction based on Roman
law alone, 38.
political situation brings forth Thibaut's and Savigny's writings
on codification, 147.
Hatred of French domination largely inspired them, 148.

GIERKE,
insistson reality of moral persons, 203.
divides law into private and that of societies, 246.

GOTTINGEN, legislative attempt to rename streets of, fails, 145.

GOVERNMENT,
Montesquieu's three powers of, are only successive growths of
functions, a process still going on, 384, ff.
its authority not merely will of governing bodies, 345.
contract theory of its powers not generally held in XIX century,
but it is personality only by fiction, 347.
its authority conditioned upon force and the subjects' feeling
of dependence, 351, ff.
its organs, 355, ff.
classified asmonarchy, aristocracy or democracy by Herodotus t
365.
Aristotle already found fault with indefiniteness of this, Id.
Plato's classification according to leading virtues, 365.
most useful distinction is into monarchies and republics, 366.
former has an irresponsible monarch, in latter all are responsible,
367.
importance and results of this distinction, 368, ff.
practice of, first subject of legislation, 425.

GREEKS,
resorted to philosophic analysis and deduction to aid their ob-
servations, 4.
laid germ of natural law theory, 118.

GROTIUS,
develops natural law theory, 24, ff.
says God cannot change natural law, 131.
held that the law gets its obligation from contract, 427.

GROUPS,
voluntary or involuntary, 328.
social, are
men are of many different ones at same time, 329.
members
voluntary groups based on future expectations, involuntary
ones on origin, or other past considerations, 328.
510 INDEX
HARTMAN, laws of science not causes of phenomena, 67.

HEEREN, divides governments into despotisms and republics, 366.

HEPFTER, takes civil and criminal law both for his province, 15.

HEGEL,
and his followers derive law from liberty, 28.
his distinction between law and morals, 61.
brings back natural law as basis of historical development, 120.
his apparent consistency due to no recognition of progressive
creative development but only of organic one, 121.
makes natural law an imperishable ideal seeking to manifest
itself in positive law, 132.
opposes state to family as a result of latter's partial disruption,
330.
his definition of the state, 337.
seeks to correct Montesquieu's doctrine of separation of powers,
380.

HERB ART, derives law from justice (remuneration), 28.

HERDER, with Vico and Montesquieu brings historical theory

against natural law, 118.

HERODOTUS, classifies governments into monarchies, aristoc-

racies and republics, 364.

HISTORICAL school prevails over natural law theorists, 27, 118.

HOBBES,
definition of law, 81.
says natural law is learned by experience, 131.
held to automatic conception of animal life and mechanical
theory of society, 270.
held that obligation of law is derived from contract, 427.

HUGO, GUSTAV,
founds school of believers in historical origin of law, 27.
natural law theory gives way before, 118.
compares law to language and to rules of games, 145, ff.
HUME, follows Hobbes in his natural law theory, 131.

HYPOTHESIS, and disposition, both essential parts of completely

expressed law, 176.

IDEALS,
their influence and effect, 293, ff.
may be formed by study of other peoples and their history, 296.

IHERING, R. VON,
refuses to recognize law without forcible constraint behind it, 96.
attacks Kant's formal conception of law as mere rules for pre-
serving liberty, 107.
social results of his success, 108.
 INDEX 511

IHERING, R. VON continued.

objections to his conception of law as merely force limiting in-

dividual wills, 109, ff.
theory of his Kampf urn's Recht, 164, ff.
his views as to real existence of moral persons, 204.
incidental advantages from legal situations without right to
compel continuance he calls reflex action of law, 211.
says legal limitations on state's power are self-limitation, 374.
urges scientific study of law, 494.
and of legal relations rather than rules, Id.
fails to see that legal generalization is true scientific generalizing,
495.

ILLEGAL SITUATION distinguished from violation of right, 230.

INCAPACITY, legal, four categories of, and examples, 205.

INDIVIDUAL,
his relations to society, 316, ff.
recognition of, does not require assertion of will as free from
causation, 317.
under teleological conceptions of universe a mere means, 318.
under causal conception not so subordinated, Id.
each person makes his own universe, 319.
has only a relative independence and rightly placed only in
psychic conception of society, 320, ff.
his conceptions not entirely his own, but he is never wholly fused
with society, 321.

INDIVIDUALISM,
Kant's and Fichte's theories of, accentuate the distinction be-
tween law and morals, 57.
was useful in resisting state oppression, 58, ff.
successfully assailed by organic school, 61.

INSTITUTIONS,
legal ones are identical legal relations considered in a body apart
from concrete facts to which they apply, 198.
they moderate political action, 387.
they must be classified in a systematic order, 501.
INTENTION controls contract now as form once did, 59.

INTERESTS,
law is the social delimitation of, 52.
diversity of as dealt with by law, 183, ff.
nevertheless subject to many identical conditions, Id.
in conflicts of, modern law prefers solution in accordance with
liberty, 186.
seldom wholly individual, 59.

INTERPRETATION,
generally, 486, ff.
deals with written texts, 487.
deals with logic and grammar as in history and theology, Id.
changes of meaning and conception must be guarded against, Id.
512 INDEX
INTERPRETATION continued.

logicand grammar discarded if evidently misleading guides, 488.

comparison useful with other passages as they must form a
system, 489.
later documents supersede former ones in law if both have
authority, 489.
results of this, 490.
interpretation distinct from analogical extension, 492.

JELLINEK,
definition of law as minimum ethics, 61.
his distinction of public and private rights not valid, 247, ff.
he rejects Bodin's conception of sovereignty, 340.
JUDICIAL USAGE,
a source of law, 420.
how it differs in that respect from custom and legislation, is not
a special form of custom, 421.
JURISPRUDENCE, its processes the ordinary ones of science, 495.

JURIS VINCULUM, meaning, 195.

JUST AND UNJUST,
relativeand not absolute terms, 74.
natural law asserts absoluteness of the distinction, 76.
importance of notion of their relativity for scientific reasons,
77, ff.
Lasson's view of absoluteness of distinction, 88.

KANT,
follows Thomasius in sharp distinction of law from morals, 57,
94.
his definition of law as norms of liberty not true of any actual
system, 82.
differs from historical school's proposition that law consists of
rules limiting liberty but not sound in latter view, 83.
he develops formal theory, 104.
he adopts Rousseau's conclusion that true legislation is expres-
sion of public will, 427.
reason his ground for obedience to law, 397.

KAPOUSTINE, defines law, 81.

KAREIEV holds law to be largely voluntary and contractual in

labor development, 266, ff.

KASHINfZA, his definition of law, 92.

KAVELINE'S basis of distinction between public and private law

not admissible, 236.
KORKUNOV, remarks as to his personal career. Preface I-V.
KRAUSE,
and his followers derive law from idea of harmonious develop-
ment, 28, 81.
he helps overthrow of Kant's formal theory, 107.
accepts organic theory of society, 274.
 INDEX 513

LABAND, rejects Bodin's sovereignty conception, 340.

LANGUAGE, formed, like law, by creative development, 144.

LARNAUDE, Prof, of University of Paris, analyzes and praises

Korkunov's work, Pref. I-VI.

LASSON, thinks justice absolute equality and law product of state's

activity, 88.

LAW,
derived as a dialectic result from liberty by Hegel and his
followers, 28.
sharp distinction of, from morals based in Cartesian philosophy,
94.
this rejected by modern science, 95.
is the common criterion of interests and of their value which
society adopts, 49, ff.
is delimitation of interests, 52.
distinguished from morals by fact that its obligations may be
released and it uses forcible constraint, 53.
may extend realization of interests by forbidding interference
or requiring assistance, 209.
organic school combines law and morals, 58.
is a socially accepted and enforced part of morality, 62, ff.
scientific "law" not violable like legal or moral norm, 57.
"
Lewes' caution against regarding this "law as cause of phenom-
ena, 66.
juridical law is a rule consciously established, 67.
scientific law exists whether known or not, 69.
also unvarying, while juridical ones vary with time and place, 71.
law therefore relative, 72.
quite different if there is an absolute right and wrong as the old
literature would indicate, 73.
legal phenomena are as relative as physical ones, 74.
no universally accepted definition, 79.
law is too heterogeneous to admit a definition based on matter
of its rules, 80.
hence the various definitions given, Leibnitz's, Ahrens', Tren-
delenburg's, Kapoustine's, Soloviov's, Hobbes', Kant's,
Krause's, Friedlander's, Bauman's and Pachman's, 81.
definition as norms of liberty owes its success to ambiguity, 82.
law and legislation confused in practice and theory, 87.
most strongly by Schein, 90.
definition of law as social and of morality as individual norms
defective, 92.
source of law too much controverted to furnish definition, 93.
not arbitrary but largely inevitable despite its variations, 117.
natural law theory starting in Greece developed strongly by
the Romans, extended by modern theorists, yields to historical
conceptions, 24, 118.
Grotius' ideas brought to Russia in 1629 by Peter the Great, 28.
Locke with Hobbes and Hume as to Natural Law, 131.
514 INDEX
LAW continued.

positive law connected in common thought with the state's

authority or with contract, 139.
no more explainable by agreement or enactment alone than is
language, 142, ff.
grows up like language, 144.
development of, 3; categories of, 162, ff.
consists of rules and relations which are its objective and sub-
jective sides, 165.
the relations develop first and are rights and obligations, 166.
consists of commands but not necessarily emanating from any
individual will, 169.
categories of commands, 170.
object of, is to regulate struggle for control of natural forces, 183.
public and private law, 232, ff.
Roman division by matter a failure both in ancient and modern
times, 237, ff.
various divisions examined, 242, ff.
real basis is form of right, ownership (dominion) or mere right
to use with others, the one regulated by private, other by
public law, 251, ff.
ispublic so far as it establishes communal enjoyment, 253.
co-ordinating principle of society, 323.
under a mechanical theory of society, only a forcible delimita-
tion of individual wills, 324.
under psychic theory and conception of right is an active factor
of social development, 325.
a necessary social order, and fixes conditions of progress, 326.
positive, grows by juridical use of custom, 393.
derived from subjective conception of right but cannot wholly
replace latter, 394.
checks free development but preserves gains from generation
to generation, 395.
more general than any subjective idea of right, it is very varied,
396.
its obligatory quality necessary to society, 397.
this held by some to come from contract, 427.
each legal system relatively independent and established by men
for themselves, 398.
its sources, 402, ff.
in jurisprudence this means the test for determining the obliga-
tory character of a rule which makes it "legal," 403.
they consist of legislation, customs and judicial usage, 405.
LEGES,
plus quamperfects, 189.
minus quam perfects, 190.
imperfects, 191.

LEGISLATION,
does not always become law, 145.
one of the three sources of law, 393, 404.
supposed to be the only one till XIX century, 410.
not arbitrary, 404.
 INDEX 515
LEGISLATION continued.

presumed to be known but not always so even to the judges, 407.

not to be defined as well of state or of its organs, 426.
a legal rule established by government organs not necessarily
by special procedure, Id.
its obligatory quality that makes it law variously explained.
427, ff.
contract, Grotius, Hobbes, Locke, Id.
general will Rousseau and Kant, Id.
neither agree with facts, 428.
is set up by political organs with force to compel obedience and
recognized as legitimate by subjects, Id.
various machinery in use, 429, ff.
initiative in legislation variously placed, 430.
with Emperor in Russia, 443.

LILLIENFELD, with Spencer strongest champion of organic theory

of society, 274.

LOGIC,
did not formerly explain generalization so as to include the
legal processes of formulating rights and rules adjusting them,
497.
modern logic in Sigwart, Lotze, and Wundt does, Id.

MAN, not an isolated being but always in society, 49.

MECHANICAL AGGREGATE, has no history nor power of

adaptation, 287.

MECHANICAL CONCEPTIONS OP SOCIETY, 260, ff.

now abandoned, 263.
its great historic part, 264, ff.
latest modification of it that society as it advances becomes
controlled by will and intelligence, 265.
presented especially by Fouillee and Kareiev, 266.
the mechanical conception gives way to the organic, 273.
neither properly locates the individual, 320.

MERKEL, leads in Germany away from a priori construction

towards a theory of the actually observed facts, 32.

MILL, his explanation of realism, 135.

MODESTINUS,
his four categories of legal commands, 170.
shows Roman law not unchanged in modern life, 237.

MOHL,
objects to Ahrens' group theory, 333.
defines the state, 337.
classifies governments by their relations to society, 366.

MONARCHY, absolute, must, like limited one, distinguish legis-

lative acts, 441.
516 INDEX
MONTESQUIEU,
one of introducers of historical method in law, 118.
his doctrine of three separate powers in state, 377.
thought it essential to liberty, 378, 383.
thought wealth and rank should form separate house and it
and commons have mutual veto, 379.
his theory though not true of England accepted, 380.
some corrections suggested by Constant and Hegel, 381.
whole theory wrong, 383.
the separate powers are simply successive developments of gov-
ernment functions and the process still is going on, 384.

MOON, its orbit a construction totally unlike reality, as ideal as

rights, 499.

MORALITY,
not yet fairly separated from law in XVII century. Distinction
first emphasized by Thomasius, 25, ff.

every system of, proposes a criterion of competing interests of

the individual, 48.
this its main function and would suffice for isolated man, Id.
moral norms evolve interests, for the individual legal ones for
society, 49.
moral norms evolve interests, legal ones delimit their realization,
52.
moral norms not releasable and admit no constraint, 53.
fixed evaluation favors oppression, separation of it from law
favors liberty, 58.
moral evaluation and regard for motives necessary in law, 59.
realization of morality and of law, 60.
Hegel's distinction of morals and law, 61.
moral persons are like algebraic parentheses, 204.
rights of, 213.

MOUROMTZEV,
attempts correction of Ihering's utilitarian conception without
success, 113, jf.
wrong in recognizing legal relations to things, 200.
supports inaccurately division of public from private law by
means of consequences of violation, 249.

MULLER, develops general theory at expense of encyclopedia of

law, 36.

NATIONS,
do not correspond to modern states, 334.
three epochs in their development, 360, ff.

NATURAL LAW,
its theory an absolute one, 75.
failed because it had no criterion for natural and non-natural
and equally natural laws conflict, 76, ff.
 INDEX 517
NATURAL LAW continued.

only philosophic theory for centuries, 117.

yields to historic school, 119.
reappears because latter is too narrow, 120.
Romans thought it united to positive law to make up their
system, 124.
their natural law an illusion, 126, ff.
XVII century natural law a philosophic transcendental system,
24.
school making it ideal system not overthrown by appeal to
ordinary facts, 129.
as ideal hypothesis contradicts established facts, therefore false,
310.
Its important practical r61e, 134.
idea of it explained by indirect suggestion, 134, ff.

NECESSITY, as well as choice, creates law. Regularity of develop-

ment shows this, 119.

NEUNER supports Ulpian's definition of public law, 232.

NORMS,
technical, and ethical, their distinction, 41, 42.
former various, latter uniform, 43.
latter obligatory, former optional, 44.
violations of latter matter of public interest, 45.
technical constant, because rules for use of unchanging forces, 46.
ethical relate to a varying subjective life, Id.
legalnorms are ethical ones, 47.
are obligatory and imperative and in this differ from laws of
science, 65.
latter cannot be violated, Id.

OBJECTS of rights, four categories of, 217, /.

OBLIGATION,
basis of all law, 197.
when not present there may be permission of enjoyment but
can be no right, 211.
may exist without corresponding right, Id.

ORGANS OF GOVERNMENT,
deciding and merely co-operating ones, 356.
preparative, consultive and executive ones, Id.
same one may have many functions, 357.
unipersonal and collegial, 358.
army most important executive organ, 360.
ORIGIN OF LAW,
Hugo's conception, 143, ff.
Savigny's, 153, ff.
author's, 157, ff.

PACKMAN, his definition of law, 81.

518 INDEX
PERSONAL QUALITIES, help authority, 354.

PERSONS,
legal, Savigny holds them to be fictitious, 203.
Besler, Gierke, Dernburg and Regelsberger maintain their
reality, Id.

PHILOSOPHIC SYSTEMS,
all discredited by mutual contradictions, 4.
Plato's, 3.
All rejected by positivism, 4.

PHILOSOPHY,
defined as the highest generalization of known phenomena, 23.
modern philosophy not derived from, nor tested by sensible
facts, 24.
of law involves belief in separable a priori principles not ob-
tained by observation or induction, 29.
requires a known absolute and for these reasons supplanted by
general theory based on empirical knowledge, 30.

PLATO,
philosophic system of, 6.
holds no organic conception of society, 27.
classifies governments by their leading virtues, 365.

POSITIVE LAW,
a system of, elaborated by Schelling, 28.
held by Romans to unite with natural law to form their system,
124.
XVII century theorists separate it wholly from natural law, 128.
sources of 393, ff.
it,
custom is primitive form of, 410.

POSITIVISM, while rejecting metaphysics admits necessity of gen-

eralizing empirical knowledge, 4.

POWER OF STATE,
limited by feeling of other interests, 371.
limited in three other ways as well as by separation of powers,
389.

PRESCRIPTION rests on idea that unused right no longer exists,

227.

PREUSS rightly rejects Bodin's conception of sovereignty, 340, ff.

PRIVATE LAW,
exhibits most unity, 237.
relations of, come later under legislation than public ones, 425.
property private or communistic (public), 253.
distinguished from public law, how, 232, ff.
 INDEX 519

PSYCHICAL LIFE,
its peculiarity, 290.
its importance in social organization, 298, ff.

PSYCHOLOGY,
only just escaped from intuitionism and perceptualism, 298.
both incapable of furnishing idea of psychic evolution to social
philosophy, 299.
modern, asserts influence of past generations on psychic life of
present, 301.
PUBLIC LAW,
cannot be built up on basis of individual claims, 196.
Ulpian's definition of insufficient, 234.
non-success of Savigny, Stahl and Ahrens in correcting it,
Id.,ff.
Wagner, Kaveline and Zitovich do no better, 339, ff.
Ihering suggests true distinction but does not rest on it, 334.
Kant, Puchta, Jellinek, Thon, Mouromtzev miss the real dis-
tinction, 243, ff.
rights to exclusive individual use of things private and under
private law. Rights to general common use, under public
law, 351, ff.
PUNCHART, sought to convert legal relations into legal depend-
ence without practical result, 197.
PUNISHMENT has three ends, 231.
REGELSBERGER,
wrong in recognizing legal relations to things, 200.
and in maintaining actual existence of moral persons, 203.
REID'S conception of a will free under equal motives a delusion, 309.
RELATIONS,
juridical, consist of rights and obligations, 167, ff.
as compared with legal rules they form subjective side of law, Id.
Q,rerelations of fact as well as law, 198.
all of which come under same legal rule identical as to law
however diverse as to fact, Id.
those of public law not explainable as claims of individual nor
all of those of private law, 197.
considered apart from facts are institutions and form a whole
called the juridical order or state, 198.
and this though they change ceaselessly, 199.
harder to alter than legal rules, 493.
RIGHTS,
a term strictly applicable only between freemen, 112.
are "to" or "over" and not "with" a slave, 113.
those imposing general obligation called "real" or rights over
things, 211.
definition of, 212.
of moral persons, 213.
always corresponding obligations, 167.
together they both form the legal relation, 168.
precede rules, Id.
520 INDEX
RIGHTS continued.

result from turning ordinary social relations into legal ones,

social influence becoming right, 195.
must be some object whose use is body of right, 216.
acts not sole objects of rights, 216.
four categories of objects of, 217.
none over person of another, only over his services, or detached
parts, 220.
right to service limited to indemnity for loss of not to constrain,
221.
depend for appearance or destruction on juridical facts, 224.
violated only by human will, 230.
an ideal construction worked out by the civilians, 500.
RODER, helps overthrow Kant's formal conception of law, 107.
ROMAN EMPIRE preserved by its past after its vitality gone, 289.
ROMAN JURISTS,
regarded law as compounded of natural and positive provisions,
124.
this an illusion, 126, ff.
constructed the system of rights and obligations, 500.
ROMAN LAW,
preserved by social needs because indispensable, 237.
a local law adopted by custom in Germany, 399.
same true of Russian Baltic provinces, 400.
England and Russia exceptions to most European states in not
adopting it bodily though much influenced by it, 400.
ROUSSEAU'S
natural law theory involves denial of obligation of positive law,
131.
refers legislation to general public will, 427.

RULES in law easier changed than relations, 493.

RUSSIAN legal instruction combines law and politics, 39.

RUSSIAN LEGISLATION,
claims sole power to make law but in fact shares it with custom
and judicial decisions, 435.
this legislative claim comes from time before the separation of
the powers, 435.

SAVIGNY,
champions successfully historical view as against natural law
theory, 27.
corrects Modestinus' categories of legal commands, 170.
aids overthrow of natural law by historical view, 118.
recognized outside of Germany as greatest XIX century jurist,
146.
his views of custom as law, 409.
seeks to correct Puchta's on same, 413, ff.
views as to origin of law, 149, ff.
opposes codification, 147.
 INDEX 521

SCHAFFLE,
his definition of law, 92.
accepts organic view of social life, 274.

SCHEIN, strongest defender of identity of law and legislation, 89.

SCHELLING,
elaborates system of positive law, 28.
accepts organic view of society to extent of regarding its phe-
nomena as reciprocally conditioned, 294.
definition of state, 338.
SCHUTZE identifies general theory of law with encyclopedia, 38.
SCIENCE,
fragmentary as learned by observation, 1.
must be generalized, 2, ff.
isgeneralized knowledge, especially as to law, 4.
specialization of,must not lose sight of general principles, 15.
isonly a well-made language, 144.
laws of, not causes but only observed uniformities in phenomena,
66, ff, 303.
not a source of law, 405.
SEYDEL'S conception of governmental authority as will of govern-
ing persons wrong, 345, ff.

vSOCIAL CLASSES,
Mohl's theory of them as social groups, 334.
they lend toward effacement with social progress, 361.
SOCIAL RELATIONS, when made obligatory by law become legal
ones, 192.
SOCIETY,
largely involuntary and therefore not to be regulated by mere
prohibiting voluntary disturbance of, 59.
its forces distinguishable from and greater than merely the sum
of individual powers embraced in it, 223.
ismedium of application of law, 259.
many explanations of, 260.
especially the mechanical and the organic one, Id.
both now nearly abandoned, 262.
is not a work of conscious art, 268.
organic conception of, came first at end of XVIII century.
Plato's, Aristotle's and Hobbes' likening of state to an animal
had no such idea, 270.
Cartesian philosophy applied by Spinoza to society had only
automatic and mechanical conceptions, Id.
Stahl's spiritistic conception still regarded the social body as
a machine, 271.
is subject to laws both of organic and inorganic world, 289.
has triple environment, physical, ethical, psychical, 291.
its possibilities of immortality, 292.

SOCRATES, first promulgator of natural law theory, 118.

SOURCES OF LAW, are only custom, judicial decision and legisla-
ion, 405.
522 INDEX
SOVEREIGNTY,
Bodin's conception of, as unlimited state authority prevails
even to our day, 339.
rightly rejected by Laband, Jellinek and Preuss, 340, ff.

SPENCER, HERBERT,
best authorized representative of organic conceptions of society,
275.
discussion of it, 276, ff.

SPINOZA,
in his social concepts follows Descartes, 270.
accepts causation of acts of will, 310.

STAHL'S,
spiritistic theories still regard body social and physical as a
machine, 271.
says divine order is essence of law, 397.

STATE,
not sole nor earliest but at present chief source of law, 140.
thought by Hegel to result from partial disruption of family, 330.
its government not by general will nor always by any will,
348, ff.
submission to it often merely imitative, 353.
its agencies speedily come to act by a rule which thus becomes
a law, 355.
its authority limited by consciousness of other interests, 371.
how this creates limits by law, 372, ff.
Montesquieu's doctrine of separation of powers, 377.
thought by him essential to liberty, 378, /.
Hegel's and Constant's corrections of it still insufficient, 380.
distributions of the same function frequent, 386.
they are never completely separated in any state, 391.
STUDY OF LAW,
should be rather of relations than of rules, 493.
rules not comprehensible apart from the system of legal rela-
tions, their study therefore indispensable, 494.
processes of, common to that of all science, 495.

SUBJECTIVE RIGHT,
developed by western Europeans, not by Romans, 195.
subjectivism of modern mind and Christianity's development
of individual will accounts for this, 196.

SYSTEM,
more essential in state than in individual action, 441.
laws of a given country at any given time must form a, 489.

TAGANTZEV errs in asserting Russian code abrogates pre-existing

law, 469, ff.

TELEOLOGICAL theory of universe reduces individual to a means,

318.
 INDEX 523

THEORY,
general, distinguished, 1st from encyclopedia, 2d from phi-
losophy of law, 31.
is merely generalization of observed facts and specially English
as exemplified by Austin, 32.

THIBAUT,
advocates code for Germany, 152.
objects to fragmentary legislation and use of Roman law and
is opposed by Savigny, 153.

THON, classifies law by consequences of its violation, 248.

TIME,
of law's taking effect not of sanctioning it, important to jurist,
445, ff.
of facts and not of trial or judgment gives law as to those facts.
478.

USAGE, judicial as source of law discussed, 420, ff.

UTILITARIAN,
conception of law not the author's, 80, 104.
tends to excessive state interference, 115.

VI CO, with Montesquieu and Herder, develops historical conception

law which supplants natural law, 118.
of

VOLUNTARY parts are not the whole of law. Much of it results

from objective necessity, 116.

WALLASCHEK'S theory that law is a uniformly and socially

accepted part of morals, 62, ff.
WELKER'S definition of the state, 337.

WILL,
of free individual protected by law furnishes subjective side of
it, 196.
law does not simply protect this will. It is something more
than assistant to its claims, Id., ff.
only human will can violate right, 230.
importance of question whether it is subject to causation, 302.
the problem stated, 303.
is question whether the will's acts are caused, not whether
itself causes phenomenon, 305.
freedom subject to law of causation and no half free will true
solution, 307.
FouilleVs conception of half free will a mistake, 308.
so is Reid's idea of freedom under equal motives, 309.
complete freedom from causation seldom now asserted, 311.
state's authority viewed as well from earliest times, 345.
generally as that of the governing bodies. Seydel's statement
of this, Id.
authority not so explainable, 346.
no general will in state's action and often none at all, 347.
distinguished from authority, 349.
524 INDEX
WRITTEN and unwritten law a useless distinction, 404.
WUNDT'S definition of generalization would include legal concep-
tions, 497

ZACHARIA,
able to cover whole field of law in his day, 15.
renounces mechanical theory of society and with it social
contract theory, 264.

ZITELMANN, criticised for denying that legal rules are commands,

169.

ZITOVICH'S,
modification of Ulpian's distinction not admissible, 236.
defines private law as that of distribution of things, 258.
wrong in affirming that Russian code abrogates pre-existing
law, 470.
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