Fundamental Principles of the

Sociology of Law
 Law & Society Series
Ancient Law
Henry Sumner Maine
with an introduction by Dante J. Scala

An Introduction to the Sociology of Law

Nicholas S. Timascheff
with an introduction by Trevino

Critique of the Legal Order

Richard Quinney
with an introduction by Randall G. Shelder

Fundamental Principles of the Sociology of Law

Eugen Ehrlich
with a new introduction by Klaus A. Ziegert

Penal Philosophy
Gabriel Tarde
with a new introduction by Piers Beirne

Sociology of Law
Georges Gurvitch
with a new introduction by Alan Hunt

The General Theory of Law and Marxism

Evgeny Bronislavovich Pashukanis
with a new introduction by Dragan Milovanovic

The Social Reality of Crime

 Richard Quinney
with a new introduction by A. Javier Trevino
 Eugen Ehrlich

Fundamental Principles of the

Sociology of Law

with an introduction by Roscoe Pound

with a new introduction by Klaus A. Ziegert
 Originally published in 1936 by Harvard University Press
Published 2002 by Transaction Publishers
Published 2017 by Routledge
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Library of Congress Catalog Number: 00-042600
Ehrlich, Eugen, 1862-1922.
[Grundlegung der Soziologie des Rechts. English]
Fundamental principles of the sociology of law / by Eugen Ehrlich ;
translated by Walter L. Moll ; with an introduction by Roscoe Pound ; with
a new introduction by Klaus A. Ziegert. p. cm.
Originally published: Cambridge, Mass. : Harvard University Press,
1936, in series: Harvard studies in jurisprudence ; vol. 5.
Includes index.
ISBN 0-7658-0701-7 (paper : alk. paper)
1. Sociological jurisprudence. I. Title.
K372. E38413 2000
370' .115—dc21 00-042600
ISBN 13: 978-0-7658-0701-4 (pbk)
Translated by Walter L. Moll.
Dedicated To
PAUL FREDERIC GIRARD
AS A TOKEN OF FRIENDSHIP AND ESTEEM
Contents

Translator's Preface
Part Fundamental Principles of the Sociology of Law
I The Practical Concept of Law
II The Inner Order of the Social Associations
III The Social Associations and the Social Norms
IV Social and State Sanction of the Norms
V The Facts of the Law1
VI The Norms for Decision
VII The State and the Law
VIII The Creation of the Legal Proposition
IX The Structure of the Legal Proposition
X The Varying Content of the Concept of Justice
XI Juristic Science in Rome
XII Juristic Science in England
XIII The Juristic Science of the Older Continental Common Law
XIV The Historical Trend in the Juristic Science
XV The Function of Juristic Science
XVI The Law Created by the State
XVII Changes in the Law in the State and in Society
XVIII The Codification of Juristic Law
XIX The Theory of Customary Law
XX The Methods of the Sociology of Law
I. LEGAL HISTORY AND JURISTIC SCIENCE
XXI The Methods of the Sociology of Law
II. THE STUDY OF THE LIVING LAW
Translator's Preface

THE present volume is a translation of Grundlegung der Soziologie des

Rechts by Eugen Ehrlich; this is one of the most important works of the
trend in jurisprudence that has been called the Sociological School. During
the course of the nineteenth century a succession of schools of
jurisprudence appeared in Europe, each of which arose by way of reaction
from the teachings of its predecessor, which it superseded for the time
being. Each school laid especial emphasis on some particular basic point of
doctrine or method. Perhaps it over-emphasized its particular point of view,
and thereby made a reaction from this over-emphasis inevitable. Thus a new
school would arise with a new doctrine or with a new method, which it in
turn over-emphasized, thus setting the stage for the appearance of another
school of juristic thought. Each school gave way to its successor. But the
new school by no means destroyed the work its predecessor had done. Each
school has made a contribution of more or less abiding value to the
scientific study of law, and so there has grown up a vast store of permanent
juristic material, of generally accepted principles and points of view. Let it
be remembered that a school of jurisprudence is not identical with the
method which it chiefly employs. Neither the Historical School of Savigny
and Puchta, for example, nor the Historical School of Sir Henry Maine is
identical with the historical method. The school of Savigny has passed
away, but the historical method has remained. All that has passed away is
the one-sided emphasis on certain self-imposed limitations and principles.
Modern writers have availed themselves of the abiding truths and principles
found by these various schools of juristic thinking, and while it is true that
each writer has selected his own particular method of approach and his own
particular point of departure under the influence of the particular school by
the teachings of which his own thinking is chiefly dominated, it is also true
that juristic writers have come much closer together in their forms and
modes of thinking than hereto- fore, and many have found a common
ground in the principle that the basic thing in the formulation of legal theory
is not the individual as such, with his individual will, purposes and aims,
but society as a whole; not the various legal precepts as such, but the social
order, i.e. the just {richtig) ordering of modern society through law; not the
old abstract individualist legal justice, but the new " social justice." One of
the chief among recent Continental exponents of this new trend in
jurisprudence is Eugen Ehrlich. Ehrlich was born at Czernowitz in
Bukowina 1 in 1862. After he had taken his doctor's degree in Vienna, he,
according to the established routine of German universities, became a
"Privatelo-zent" or docent, of law at Vienna. In 1897 he was called to the
university at Czernowitz as professor of Roman law. At this university he
did his life's work. And an extremely busy, useful, and fruitful life it has
been, as is attested by the long series of books and treatises which he
published, a list of which is appended below.2 He died shortly after the
close of the war.
In his Grundlegung der Soziologie des Rechts, Ehrlich has shown that the
phenomena of legal life arise in society, and in turn exercise a profound
influence upon society. In his Die juristische Logik, he has discussed and
rejected the idea that predominated among jurists of his day that every
judicial decision must be derived by a purely logical process from
established legal premises, the provisions of a code or of statutes or of
juristic or judge-made law. He has set forth the social interrelations from
which this idea has arisen, and has shown the social consequences of the
idea. To this extent this work supplements the Grundlegung der Soziologie
des Rechts.
These two books may be called a summary of Ehrliches views and
teachings; for in them he has discussed in a connected fashion the
fundamental ideas of all his works. In view of Ehrlich's article, "The
Sociology of Law/' in 36 Harvard Law Review 130, it would be carrying
coals to Newcastle to give a résumé of these two books here; for in this
article Ehrlich has given a concise statement of their contents in his own
inimitable manner. I shall quote two paragraphs from his article because
they contain a clear and succinct statement of what is, in his view, the
nature of law. He says on page 131:
 Those who proclaim a multiplicity of Laws understand by "Law "
nothing other than Legal Provisions, and these are, at least today,
different in every state. On the other hand, those who emphasize the
common element in the midst of this variety are centering their attention
not on Legal Provisions but on the Social Order, and this is among
civilized states and peoples similar in its main outlines. In fact many of
its features they possess in common even with the uncivilized and the
half-civilized.

The Social Order rests on the fundamental social institutions: marriage,

family, possession, contract, succession. A social institution is, however,
not a physical, tangible thing like a table or a wardrobe. It is,
nevertheless, perceptible to the senses in that persons who stand in social
relations to each other act in their dealings according to established
norms. We know how husband and wife, or members of a family,
conduct themselves toward each other; we know that possession must be
respected, contracts performed, that property after the death of its
possessor must pass to his relatives or those persons mentioned in the
last will, and we behave accordingly. If we travel in a strange country, of
course we encounter some deviations from the system we are
accustomed to and become involved in difficulties as a result, but soon
we become sufficiently instructed through what we see and hear around
us to manage to avoid collisions, even without acquiring a knowledge of
the provisions of the law. A Legal Provision is an instruction framed in
words addressed to courts as to how to decide legal cases
(Entscheidungsnorm) or a similar instruction addressed to administrative
officials as to how to deal with particular cases (Verwaltungsnorm), The
modern practical jurist understands by the word "Law" generally only
Legal Provisions because that is the part of Law which interests him
primarily in his everyday practice.

In the Proceedings of the Fourteenth Annual Meeting of the Association

of American Law Schools (1914), Professor William Herbert Page has
stated and discussed Ehrliches aims and methods, chiefly on the basis of the
last two chapters of the Grundlegung der Soziologie des Rechts, the article
in Schmoller's Jahrhuck entitled "Die Erforschung des lebenden Rechts"
and the pamphlet Das lebende Recht der Völker der Bukowina, together
with the questionnaire Fragebogen für lebendes Recht mit Einleitung.
A glance at the table of contents of the present volume will suffice to
give the reader an idea of the way in which Ehrlich has developed and
presented his ideas.
Under twenty heads, which are practically independent discussions, he
treats of a number of subjects. All of these discussions, however, are
intimately connected and related, and emphasize, iterate, and reiterate his
basic idea that law is not a series of legal propositions but the Social Order,
which is practically the same among all civilized peoples since the main
institutions and facts of human society are practically identical everywhere.
One of the most valuable chapters, perhaps the most important, is the
chapter on the theory of customary law, in which he chiefly sets forth the
rôle of non-litigious custom in the development of law. This chapter alone
may be called a significant contribution of abiding value for all study of the
development of law. In addition he devotes a chapter, the sixteenth, to the
law-making function of the state, which, in view of the popular over-
estimation among lawyers and laymen of state legislation, is of invaluable
importance inasmuch as it points out the limitations upon effective law-
making by the state. For the literature on the general question of making
legal precepts effective in action see Pound? Outlines of Lectures on
Jurisprudence, Fourth Edition, page 17, section 3.
In Chapters XX and XXI, he sets forth his methods of studying the living
law, as he calls it, i.e. the law that has actually become a rule of conduct,
which he distinguishes from the law that is applied by the courts. These two
chapters may be called the coping-stone of his whole work. They have been
a fruitful source of studies and surveys of many kinds, particularly in the
United States.
Like all sociological jurists on the Continent of Europe, Ehrlich is an
adherent of the free-finding-of-law school, and perhaps some of his best
work has been done in this field» In one of his earliest efforts, " Über
Lücken im Recht" (Gaps in the Law)^ published in the Juristische Blätter
(1888), he expressed his views briefly and haltingly. In his Freie
Rechtsfindung und freie Rechts-Wissenschaft, he stated his views more fully
and with a more elaborate argumentation. In the twelfth chapter of the
present volume, in which he discusses juristic science in England, he
expresses the view, which he had set forth on the first page of his Freie
Rechtsfindung und freie Rechtswissenschaft, that the English method of
applying law is practically a free finding of law.1
1 As to the free finding of law in America and England, see especially
Pound, Roscoe, The Enforcement of Law, 20 Green Bag 401 (1908), and
The Scope and Purpose of Sociological Jurisprudence, 25 Harvard Law
Review at page 515. See also Pound, Roscoe, Courts and Legislation, 7
American Political Science Review 361-383, Science of Legal Method
(Modern Legal Philosophy Series, vol. IX), 202-228; Science of Legal
Method, chaps. 1-5; Wigmore, Problems of Law, 65-101.

See also Brown, Jethro, Administration of Law in England, 1906-1923;

Drake, Joseph, The Sociological Interpretation of Law, 16 Michigan Law
Review 599,

For an analysis of the judicial function as a whole, see Pound, Roscoe,

The Theory of Judicial Decision, 36 Harvard Law Review 641, 802, 940.
For the literature on the whole question, see Pound, Roscoe, Outlines of
Lectures on Jurisprudence, chap. XIX.

See also Goodhart, Arthur L., Essays in Jurisprudence and the Common
Law, Essay I; Goodhart, Arthur L., Determining the Ratio Decidendi of a
Case, 40 Yale Law Journal 161; Pound, Roscoe, The Call for a Realist
Jurisprudence, 44 Harvard Law Review 697; Llewellyn, Karl N., Some
Realism about Realism, 44 Harvard Law Review 1222; Pound? Roscoe,
The Ideal Element in American Judicial Decision, 45 Harvard Law
Review 136; Oliphant, Herman, A Return to Stare Decisis, Proceedings
of the Twenty-fifth Annual Meeting of the Association of American Law
Schools (1927).

In practically every chapter of the book he emphasizes the truth, which

he has set forth quite convincingly in Die juristische Logik, that even today
when a new situation is to be decided upon, no less than in the very
beginnings of the administration of justice through appointed tribunals,
judicial decisions may be derived from the facts of the law independently of
received legal materials. It has been the aim of the translator to present a
faithful rendering of Ehrlich's thought in English. He has not attempted to
reproduce Ehrlich's incursions into familiar, homely, or archaic speech, nor
has he attempted to achieve literary elegance. Ehrlich's style is simple and
direct, and his sentences are somewhat loosely strung together. There are no
involved sentences, no turgid periods, no striving for rhetorical effect.
When he does rise into the higher ranges of language, it is because the
thought is fraught with emotion. All of this makes for clearness, directness,
and simplicity. And the translator has attempted to hew as closely to the line
as possible. At times faithful adherence to the form in which Ehrlich has
clothed his thoughts may seem somewhat pedantic, particularly the
reproduction of his persistent use of asyndetons, whether the series be one
of two or more words, phrases, or clauses. The translator, however, believes
that Ehrlich intentionally used this form of expression in conscious
imitation of the Roman sources, and for this reason has thought it proper to
reproduce it in the translation. By adhering as closely as possible to
Ehrlich's manner, the translator hopes that he has succeeded in avoiding that
gravest sin of translators, the sin of stating either more or less than the
original. Of course it may be said that all translation is an interpretation, and
in a measure this is true: the author's thought must pass through the alembic
of the translator's mind. But there are translations and translations. The
translator hopes that he has been able to present Ehrlich's thought without
any admixture of his own thoughts and in a way that makes the same
impression upon the American reader that Ehrliches words make upon the
reader of the original German.
As to terminology, the translator has always been on the alert to avoid
doing violence to the author's thought through the use of a convenient
common law term which in a general way conveys the same idea as the
civil law term that was used by the author, but which has a more or less
divergent connotation. He has attempted to use the terminology that has
been established by English and American writers on Roman law and civil
law subjects and by translators of Roman law and civil law codes and
juristic writings, as well as by English and American writers on the science
of law. In the translation of Chapters XX and XXI he has freely availed
himself of the work of Professor Page referred to above.
The translator would express his deep indebtedness to Dean Roscoe
Pound of the Harvard Law School for encouragement, advice, and
information. And he would thank his friend Dr. Anton Chroust for an
occasional bit of valuable information as to the meaning of terms of the
ancient Germanic law and of the older German law.
W. L. M.
HARVARD LAW SCHOOL September I, 1936,

1The duchy of Bukowina at that time was a part of the Austro-Hungariart

monarchy. In the division of the spoils of war in 1919 it was handed over to
Rou-mania.

1. Die stillschweigende Willenserklärung (1893).

2. Das zwingende und nichtzwingende Recht im bürgerlichen
Gesetzbuch. In Otto Fischer's Abhandlungen zum Privatrecht und
Civilprozess (1899).
3. Beiträge zur Theorie der Rechtsquellen (1902).
4. Freie Rechtsfindung und freie Rechtswissenschaft (1903). (Translated
in part in volume IX of the Modern Legal Philosophy Series.)
5. Die Anfänge des testamentum per aes et Uhr am. Reprint from the
Zeitschrift für vergleichende Rechtswissenschaft (1903).
6. Les tendences actuelles du droit international privé. Traduit par Robert
Caülemer (Deutsche Rundschau, 1906).
7. Soziologie und Jurisprudenz (1906).
8. Anton Menger, Reprint from Süddeutsche Monatshefte (September
1906).
9. Die Tatsachen des Gewohnheitsrechts. Inaugurationsrede (1907).
10. Zur Frage der juristischen Person (1907).
11. Die Rechtsfähigkeit, in Kobler's Das Recht (1909).
12. Gutachten über die Frage: Was kann geschehen, um bei der
Ausbildung (vor oder nach Abschluss des Universitätsstudiums) das
Verständnis des Juristen für psychologische, wirtschaftliche und
soziologische Fragen in erhöhtem Masse zu fördern?
In Verhandlungen des 31 ten Deutschen Juristentags (Zweiter Band)
(1912).
13. Die Erforschung des lebenden Rechts, in Schmoller's Jahrbuch für
Gesetzgebung XXXV, 129 (1911).
14. Das lebende Recht der Völker der Bukowina. Fragebogen für das
Seminar für lebendes Recht mit Einleitung (1913).
15. Grundlegung der Soziologie des Rechts (1913).
16. Montesquieu and Sociological Jurisprudence. 29 H. L. R. 582 (1916).
17. Die juristische Logik. Reprinted from volume 115, numbers 2 and 3 of
the Archiv für die Civilistische Praxis (1918).
18. The Sociology of Law. 36 H. L. R. 128 (1922). Translated by Nathan
Isaacs.
19. National Problems in Austria in the Central Organization for a Durable
Peace.
Foreword

IT ISoften said that a book must be written in a manner that permits of

summing up its content in a single sentence. If the present volume were to
be subjected to this test, the sentence might be the following: At the present
as well as at any other time, the center of gravity of legal development lies
not in legislation, nor in juristic science, nor in judicial decision, but in
society itself. This sentence, perhaps, contains the substance of every
attempt to state the fundamental principles of the sociology of law.
THE AUTHOR

Paris, on Christmas Day, 1912.

Part Fundamental Principles of the
Sociology of Law
I The Practical Concept of Law

THERE was a time, and indeed it does not lie very far behind us, when the
university trained the physician for his future profession by requiring him to
commit to memory the symptoms of the various diseases and the names of
such remedies for them as were known at the time. This time is past. The
modern physician is a natural scientist who has chosen the human body as
his field of investigation. Similarly, not much more than a century ago, the
mechanical engineer was little more than a mechanician to whom his master
had imparted the manual skill required for the building of machines. Here
too a change has taken place. The present-day mechanical engineer is a
physicist who studies the nature of the materials which he is to use and the
extent to which their reactions to various external influences take place in
conformity with observed and observable laws. Neither the physician nor
the mechanical engineer any longer, in a purely craftsmanlike manner,
acquires merely the skill required for his profession, but chiefly an
understanding of its scientific basis. The same development has taken place
long ago in countless other fields.
In jurisprudence, however, the distinction between the theoretical science
of law1 (Rechtswissenschaft) and the practical science of law (Rechtslehre),
i.e. practical juristic science, is being made only just now, and, for the time
being, the greater number of those that are working in this field are not
aware that it is being made. This distinction, however, is the basis of an
independent science of law, whose purpose is not to subserve practical ends
but to serve pure knowledge, which is concerned not with words but with
facts. This change, then, which has taken place long since in the natural
sciences is taking place in jurisprudence also, in the science which Anton
Menger has called the most backward of all sciences, “to be likened to an
out-of-the-way town in the provinces, where the discarded fashions of the
metropolis are being worn as novelties." And it will not be barren of good
results. The new science of law will bring about much enlightenment as to
the nature of law and of legal institutions that has hitherto been withheld
from us, and doubtless it will also yield results that are of practical
usefulness.
1 The formal, theoretical science of law, as distinguished from the
practical science. "The Germans classify Science of Law
(Rechtswissenschaft) into Jurisprudence, on one side, and
Philosophy of Law, on the other. In this scheme Jurisprudence
embraces the concrete elements of the law, while Philosophy of
Law deals with its abstract and fundamental side. It is accordingly
possible for German writers to consider Jurisprudence not strictly
as a science of universal principles, but as something limited by
time or place. They may therefore speak freely of a Jurisprudence
of modern times, or the Jurisprudence of a particular state. . . . This
is the usage of the European continent, and especially of France,
where jurisprudence is practically synonymous with case-law. It has
also found a wide reception in our language. ... In this connection it
is obvious, of course, as has often been remarked, that if
Jurisprudence is a science it can hardly be localized as such." —
Gareis, Introduction to the Science of Law, translated by Kocourek,
p. 22, n. 3.
The translator of the present volume has avoided the use of
Jurisprudence in any sense other than its proper sense of the science of
law. But where Ehrlich has used Jurisprudenz in the sense of the
"practical science of law" — a use in which the idea of juristic
technique bulks large —, the translator has used the term juristic
science. In this case the use of science can be justified on the ground
that he is using science in the sense of practical science, of technique,
as it were. He speaks therefore, for example, of a juristic science of the
Continental common law.
This and all succeeding notes, unless specifically credited to the
author, are by the translator.
 There is little that is more instructive to the jurist than the study of those
spheres of juristic knowledge in which the change hasalready taken place,
e.g. that of the general theory of the state1 or that of history of law. Let us
glance at the latter for a mo™ ment. The idea that the law is to be
interpreted in its historical relations was not unknown to the Romans. Both
Gains and the fragments of the Digest abound with historical references.
Even the glossators and the postglossators have made abundant use of the
data of legal history. Moreover the great French scholars and the fine Dutch
scholars of the sixteenth, seventeenth, and eighteenth centuries can properly
be referred to as historical and philological jurists. The German publicists
of the seventeenth century have also worked along historical lines. The
same is true of the English, possibly from the days of Fortescue. Blackstone
is a perfect master of the art of explaining historically such parts of the
existing law as appear to be inexplicable. But it was the Historical School
of jurisprudence that first made the history of law, which until then had
been studied exclusively for the sake of a better understanding of the
positive law, an independent science; made her the mistress of her own
household. To the modern legal historian it is a matter of indifference
whether the results of his investigations are of any practical usefulness or
not. They are to him not a means, but an end. Nevertheless, ever since legal
history ceased to be a handmaiden to dogmatic legal science, she has
rendered the most invaluable services to the latter. Present-day dogmatics
owes its greatest scientific achievements to fructification by legal history.
The importance of legal history for legal science, however, rests not so
much upon the fact that it is history as upon the fact that it is a pure science,
perhaps the only science of law that is in existence today. And what an
inexhaustible source of stimulation and instruction legal history has become
for theoretical and practical economics, as well as for legislation ! Would
this have been possible if it had not given up its original limited aims and
methods?
1 Allgemeine Staatslehre. This is a recently developed science, the
line of demarcation between which and political science is not
drawn with any degree of uniformity.

Human thinking is necessarily dominated by the concept of purpose,

which determines its direction, the selection of its materials, and its
methods. And with reference to these things the thinking of the jurist is
conditioned by the practical purposes pursued by juristic science. When a
structural-iron engineer is thinking of iron, he does not have the chemical
element in mind, but the article of commerce with which the foundries are
supplying him for his buildings. He will be interested only in those
properties of iron that are of moment for iron construction, and when he
studies these properties he will employ such methods as are suitable for the
workshop of the builder who erects iron structures. He will not take thought
to develop methods of scientific investigation, for the structural-iron
engineer is not interested in scientific results; for practical purposes
scientific exactness would be not only superfluous, but too expensive, time-
consuming, and difficult. It is sufficient if the structural-iron engineer does
those things which he can do best, and leaves to others the things which
they can do better. This, of course, is not, in itself, a detriment.
It is true that, because of this necessary limitation, the structural-iron
engineer fails to observe many a thing that might be of importance not only
for science but for the technic of iron construction. But as soon as men of
science and specialists in other branches of iron work find something that is
of value for iron construction, he will avail himself of it. Good work done
by him within his narrow sphere and with the limited means at his disposal
is of scientific as well as of practical value. The observations of the
practical man have at all times been providing nourishment for science; a
great deal of the scientific botany of our time has been derived from the old
herbalism of the apothecaries.
The situation would be quite different if there were no science dealing
with iron but structural-iron engineering; if there were no botany but the
herbalism of the apothecaries: not only research but practical work as well
would suffer tremendously. In addition to pharmacognosy and
pharmacology, which have replaced the herbalism of the apothecaries, the
nature of plants is being studied by the sciences of agriculture, forestry,
horticulture, and many others. Scientific botany studies it quite
independently, and the results of its investigations, of course, avail the
practical sciences referred to; and at the same time the results of the labor of
the practical men working in all of these fields offer to the botanist a
multitude of suggestions.
It is the tragic fate of juristic science that, though at the present time it is
an exclusively practical science of law, it is at the same time the only
science of law in existence. The result of this situation is that its teaching on
the subject of law and legal relations is, as to tendency, subject matter, and
method, only that which the practical science of law can give. Indeed it is as
if mineralogy and chemistry could teach us no more about iron than that
which has been discovered for the purposes of structural-iron engineering;
as if botany could teach us no more about plants than is contained in the
text-books on pharmacognosy and pharmacology. This state of the science
of law is an extremely sad one, particularly in view of the fact that the
present-day practical science of law is far from covering the whole field of
the practical activity of the jurist. Properly speaking there ought to be as
many practical sciences of law as there are juristic activities. The Romans
divided the activity of the jurist into respondere, agere, cavere; which,
being expressed in modern terminology, is: the activity of the judge, of the
draftsman of legal documents, and of the attorney; and it seems that in the
days of the Republic at least, research, literature, and instruction were
engaged in the service of each of these three activities. In England practical
juristic science (Rechtslehre) is concerned with the activity of the judge and
the attorney; whereas the art of drafting legal documents (conveyancing)
exists as a distinct, highly developed branch of legal science. But the judge,
the draftsman of legal documents, and the attorney are by no means the
only representatives of professional juristic activity. In addition to the
administration of the affairs of the state, the administration of private affairs
is a fruitful sphere of juristic activity, e.g. agriculture, commerce, and
industry. To these may be added participation in legislation, politics,
journalism.
The practical juristic science of the Continent is considerably poorer than
that of the Romans and of the English. Since the reception of Roman law, it
has made its abode exclusively at the universities, which, for the most part,
were founded, and are being maintained, by the state, and to which, after
the rise of a learned judiciary, the task of training the future judge for his
calling has chiefly been assigned. Had legal instruction been given in
private schools, undoubtedly there would have been schools for attorneys
and notaries in addition to schools for judges, and the various practical
sciences of law would have enjoyed a corresponding development. As it
was, a juristic science arose whose content can be defined exhaustively as
practical instruction in the performance of the duties of a judge. Slowly and
haltingly there was added the preparation for the diplomatic and
administrative services. Accordingly the practical and the theoretical
science of law began to comprise also international law and public law.
Paulsen therefore quite properly described the present-day juristic faculties
as technical training schools for judges and administrative officials. Since
the majority of students, however, were bent upon a career on the bench, the
law that the judge requires remained in the center of legal teaching. This
may perhaps account for the fact that the study of public law and
international law became a scientific study long before private law, penal
law, and procedure. Public law in the narrow sense (allgemeines
Staatsrecht,1 later called allgemeine Staatslehre) was the first branch of
juristic science, which, disregarding the practical utility of its results,
pursued purely scientific aims. But the juristic faculties could and would
not become anything but training schools for judges and government
officials; and this aim became the determining factor not only in legal
education but also in research and literature. For this reason it is not very
likely that the draftsman of legal documents or the attorney-at-law will find
a book from which he can learn how to perform the duties of his profession,
difficult, important, and involving grave responsibilities though they be.
Most of the information he needs he must obtain in a purely tradesmanlike
fashion in the practice, and the most valuable knowledge gained by
professional experience dies with him who has acquired it. But — and this
is the important consideration here — these things are also being ignored by
the science of law, which knows only the law required by the judge,
although even a hasty glance at legal life shows that a great deal of the
administration of justice and of the development of law takes place in the
offices of attorneys and notaries, and that legal science can gather valuable
material therefrom. Moreover the modern jurist can, if need be, get all the
information he requires as to the importance of the legal document as a
lever for the development of law from any handbook of legal history. The
fact that practical juristic science limits itself in its own sphere in
accordance with the same point of view is quite in keeping with this. It
excludes important matters from discussion if the judge does not generally
concern himself with them in his professional capacity. About a decade ago,
Lotmar first discovered for juristic science the existence of law concerning
contracts of labor — after the great industrial development in Germany had
begun to make it a matter of ever-increasing concern to the administration
of justice. The most significant juristic problems of our time, the problems
of trade unions, of trusts, and of cartels, do not exist for practical juristic
science; doubtless for the simple reason that, although they play an
important part in legal life, their rôle is not nearly so important in the
administration of justice.
1Public law in the narrow sense; so translated to distinguish
Staatsrecht from international law. See Gareis, Introduction to the
Science of Law (Kocourek's translation, p. 94 n.). Staatsrecht is
divided into Verfassungsrecht (constitutional law) and
Verwaltungsrecht (administrative law).

The most disastrous consequence of this state of affairs has been its effect
on the method of juristic science. The first and foremost function of all
research is to find a method adapted to its subject matter. The life of many a
great scholar has been spent in the endeavor to find a method. Once the
method was found, the work could be carried on by inferior minds.
Ultimately, even the analysis of the spectrum is nothing more than a
method. With the sole exception of the general theory of the state
(Staatslehre), which is already infused with a scientific spirit, the science of
law knows no other method than that which has been developed by
practical juristic science for the application of law by the judge. According
to the prevailing conception of the judicial office, which arose in the
sixteenth century, the judge must derive his decision of the individual case
from the existing general propositions. Practical juristic science, which had
been designed for the use of the judge, was to supply the judge with legal
propositions, formulated in the most general terms possible, in order that
the greatest possible number of decisions might be derived from them. It
was to teach the judge how to apply the general propositions to the specific
cases. Its method therefore had to be a method of abstraction and deduction.
With the exception of public law in the narrow sense, however, juristic
science as a whole proceeds by abstraction and deduction just as if the
human mind were incapable of any higher attainment than the creation of
bloodless shapes that lose contact with reality proportionately to the
measure of abstractness that they attain. In this respect it is altogether
different from true science, the prevailing method of which is inductive, and
which seeks to increase the depth of our insight into the nature of things
through observation and experience.
 Accordingly juristic science has no scientific concept of law.
Just as the technical expert in iron construction, when speaking of iron, is
not thinking of the chemically pure substance which the chemist or the
mineralogist refers to as iron, but rather of the chemically very impure
compound that is used in iron construction, so the jurist does not mean by
law that which lives and is operative in human society as law, but, apart
from a few branches of public law, exclusively that which is of importance
as law in the judicial administration of justice. An occasional flash of
deeper insight ought not to mislead anyone. A technical expert in iron
construction may perhaps, in making an attempt to be scientific, state the
chemical formula of the compound which is being used in iron construction
as iron, but in the course of his practical discussion he will deal only with
this compound; for iron in the scientific sense is of no interest to him. The
important thing is not the définitions that are found in the introductory
chapters of handbooks or monographs, but the concept of law with which
juristic science actually works; for concepts are not merely external
ornamentation, but implements for the erection of a structure of scientific
thought.
From the point of view of the judge, the law is a rule according to which
the judge must decide the legal disputes that are brought before him.
According to the définition which is current in juristic science, particularly
in Germany, the law is a rule of human conduct. The rule of human conduct
and the rule according to which the judges decide legal disputes may be two
quite distinct things; for men do not always act according to the rules that
will be applied in settling their disputes. No doubt the legal historian
conceives of law as a rule of human conduct; he states the rules according
to which, in antiquity or in the Middle Ages, marriages were entered into,
husband and wife, parents and children lived together in the family; he tells
whether property was held individually or in common, whether the soil was
tilled by the owner or by a lessee paying rent or by a serf rendering
services; how contracts were entered into, and how property descended.
One would hear the same thing if one should ask a traveler returning from
foreign lands to give an account of the law of the peoples he has become
acquainted with. He will tell of marriage customs, of family life, of the
manner of entering into contracts ; but he will have little to say about the
rules according to which law-suits are being decided.
 This concept of law, which the jurist adopts quite instinctively when he is
studying the law of a foreign nation or of remote times for a purely
scientific purpose, he will give up at once when he turns to the positive law
of his own country and of his own time. Without his becoming aware of it,
secretly as it were, the rule according to which men act becomes the rule
according to which their acts are being adjudged by courts and other
tribunals. The latter, indeed, is also a rule of conduct,but it is such for but a
small part of the people, i.e. for the authorities, entrusted with the
application of the law; but not like the former, for the generality of the
people. The scientific view has given way to the practical view, adapted to
the requirements of the judicial official, who, to be sure, is interested in
knowing the rule according to which he must proceed. It is true, jurists look
upon these rules as rules of conduct as well, but they arrive at this view by a
jump in their thinking. They mean to say that the rules according to which
courts decide are the rules according to which men ought to regulate their
conduct. To this is added a vague notion that in the course of time men will
actually regulate their conduct in accordance with the rules according to
which the courts render their decisions. Now it is true that a rule of conduct
is not only a rule according to which men customarily regulate their
conduct, but also a rule according to which they ought to do so, but it is an
altogether inadmissible assumption that this " ought " is determined either
exclusively or even preponderantly by the courts. Daily experience teaches
the contrary. Surely no one denies that judicial decisions influence the
conduct of men, but we must first of all inquire to what extent this is true
and upon what circumstances it depends.
Every page of a law book, every lecture on a legal subject, bears out the
statement just made. Each and every word shows that the jurist who is
discussing a legal relation invariably has in mind the problem how the legal
disputes arising from this relation are to be adjudged, and not the totally
different question how men conduct themselves, and how they ought to
conduct themselves in this relation. Even a man of the mental stature of a
Maitland said that to write the history of the English actions is to write the
history of English law. This juristic line of thought has been given a
positively naïve expression in the doctrine of error in law. A juristic science
which conceives of law as a rule of conduct could not consistently have laid
down a principle that men are bound by the law even though they do not
know it ; for one cannot act according to a rule that one does not know. On
the contrary, it ought to have discussed the question how much of a given
legal material is known as a rule of conduct and is followed as such^ and, at
most, what can be done to make it known. In fact, Binding understood the
whole problem in this way years ago, and posited the proposition that only
the norms of penal law, not the penal law itself, are generally known, and in
fact regulate human conduct. Only Max Ernst Mayer has followed him,
without however adding anything to the requisite experiential material. But
if we say, as is usually done, that the law binds him who does not know the
law as well as him who does, we are evidently giving up the concept of law
as a rule of human conduct altogether; we are laying down a rule for the
courts and other tribunals, which the latter are to apply whether the person
concerned knew it or not. We are not improving the situation by requiring
everyone to know the law or by setting up the fiction that the law, if
properly published, is known to everyone.
The prevailing notion as to the origin of law is a result of this very line of
thought. Whence comes the rule of law, and who breathes life and efficacy
into it? It is extremely interesting to note the answers that have been made
in reply to these questions; for they clearly and unambiguously reflect the
fact that even perfectly correct scientific knowledge is not sufficient to
guide the human mind when the necessity of serving a practical need
suggests another path. Today, a century after Savigny and Puchta, no
scientifically trained jurist doubts that a considerable part of the law of the
past was not created by the state, and that even today it is derived to a great
extent from other sources. That is the theory. Now comes the question:
Where is this non-state law1 to be studied? Where is an exposition of it to
be found? Where is it being taught? Perhaps we are not too daring if we
make the assertion that today research, literature, and legal education on the
Continent know of no other law than statute law.
To be sure one soothes one's conscience by saying that customary law —
a collective term, an expression which for centuries has been used to lump
together the whole heterogeneous mass of non-state law—is a negligible
quantity55 at the present time. This statement is found in the writings of
Savigny and Puchta themselves. Since that time it has been repeated time
and again in various forms, and even writers who do not make the statement
in so many words adhere to it. A jurist who holds this opinion has ceased to
look upon law as a rule of general human conduct ; he has clearly
demonstrated that law is to him, preponderantly at least, a rule for the
conduct of courts and other tribunals; for even the believers in the doctrine
of the omnipotence of the state have not very often seriously thought that
the state can make rules to regulate the whole field of human conduct.
Perhaps the only exception within the whole range of European civilization
was the Emperor Josef II, whose program split on the rock of this idea. For
this reason the relation of juristic science to non-state law, quite
independently of scientific conviction, has been undergoing changes in
accordance with the changing attitude of the state toward the courts. And if
juristic science today is devoted exclusively to state law, the reason for this
must be sought in the fact that the state, in the course of historical
development, has come to believe that it is able to add to the monopoly of
the administration of law, which it acquired long ago, a monopoly of the
creation of law. And I do not doubt, therefore, that the modern free-finding-
of-law movement marks not only an advance in scientific insight, but also
an actual shift in the relation of the state and society — a shift which has
taken place long ago in other spheres.
Where the judge renders his decisions chiefly according to custorn, as
was done almost everywhere down to a very late stage of development, e.g.
in Rome in the days of the Republic, or in Germany in the Middle Ages, the
idea, self-evidently, does not enter the head of anyone to derive the law as
such from the state. As late as the end of the Republic, the Romans
considered their national customary law, the ius civile, at least as valuable
as a source of law as the leges. And the law-books of the Middle Ages
mention provisions of statutes or regulations only in exceptional instances.
In the Middle Ages, the corpus iuris chilis, the corpus iuris canonici, even
the Golden Bull, are merely very high authorities to which one turns for aid
in the solution of difficult and important problems as one might turn to any
other authorities, e.g. the Bible or the ancient writers — for in the Middle
Ages scientific work was done chiefly on the basis of authority, in law no
less than in theology, philosophy, or medicine. It is only after the state has
grown extremely powerful, and has begun to tend toward an absolute form
of government, that the thought begins to germinate, and the impulse
awakens, to make the state the authoritative, and in the course of time the
sole, source of law. This was done in Rome in the days of the Empire and in
western Europe in the sixteenth century. Attempts were made to tie non-
state creation of law to authorization by the state, particularly in the very
earliest days of the Empire, by means of the ius respondent, which was
conferred by the Emperor upon jurists empowered to create law. The power
to create law was limited to questions not yet regulated by law. Very strict
precepts as to the validity of customary law were embodied in the statutes.
Attempts were made to render it superfluous by means of codifications,
which purported to comprise the whole law; occasionally, even to exclude it
in express terms. Even the scientific legal work of the jurists was looked
upon askance, and occasionally was expressly forbidden because the
powers that were realized that it gave rise to a new sort of non-state law, i.e.
to juristic law. The final word of this trend was spoken, perhaps, by
Justinian : Tarn conditor quam inter près le gum solus imperator ius te
existima-bitur, nihil hac lege derogante veteris iuris conditoribus, quia et
eis hoc maiestas imperialis permisit.
1 Ehrlich speaks of “ausserstaatliches Recht" and “staatliches
Recht." The translator has translated the former "non-state law," the
latter "state law/' i.e. law not created by the state and law created by
the state.

Juristic science steadfastly follows in the path of this development of

state law, paying very little attention to the progress of scientific
knowledge. Having made a curt obeisance to the teachings of science, she
returns at once to the task which she considers her true function, i.e. to
furnish that which the administration of law requires. The decisive step had
already been taken when the judge was no longer required to know both
non-state and state law; when only a knowledge of state law was
presupposed, while non-state law had to be proved by the parties.
Henceforth only state law is "law" in the full sense of the term; every other
kind of law is merely "fact." Juristic science arrived at this stage when the
judge became a learned official of the state, i.e., in Germany, as early as the
sixteenth century. The doctrine, which was becoming more and more firmly
established, was that customary law, which today comprises all non-state
law with the exception of juristic law, is law of an inferior kind, which, as
to its origin and as to its validity, is conditioned upon authorization,
recognition, or confirmation by the legislator, who could, if he chose, forbid
its use altogether. It was held in low esteem, even ridiculed occasionally,
proof of it was made more difficult, and the conditions upon which it was
recognized were insisted upon with increasing strictness. Studies
investigating and presenting non-state law became fewer and fewer in
number, until, finally, in the eighteenth century they ceased to appear
altogether. In the teaching of law, customary law became a mere name. This
was the state of affairs at the beginning of the nineteenth century. Juristic
science thought that it was its function not to determine what is law, but to
point out to the judge, who was appointed and commissioned by the state,
what he should apply as law according to the will of his employer. There
never was a time when the law promulgated by the state in statutory form
was the only law, even for the courts and other tribunals, and there has
always been an undercurrent, therefore, which strove to secure proper
recognition for law that was not promulgated by the state. This undercurrent
forced its way to the surface at two different periods: in the writings of the
teachers of the law of nature school in the seventeenth and eighteenth
centuries, and again in the writings of Savigny and Puchta, the founders of
the Historical School. To what extent the teachers of the law of nature were
the precursors of the historical conception of law, and to what extent the
pioneers of the Historical School were carrying out the ideas of the Natural
Law School, has, unfortunately, been realized only very rarely, and has
never been properly investigated by anyone. These two schools have this in
common: neither has blindly accepted as law what the state declared to be
law; both have sought to ascertain the nature of law in a scientific manner.
Both have found its origin outside of the state: one, in the nature of man;
the other, in the legal consciousness of the people.
Neither of these schools has fully followed out its ideas. Doubtless they
were hindered by the idea which has dominated all juristic thinking down to
our day, i.e. the idea that only that is law which the judge applies in the
administration of justice. In spite of their radicalism, the teachers of the law
of nature, particularly those outside of France, where the situation was
somewhat different from that in the other countries of Europe, never dared
to assert, with any show of firmness at least, that a judge can ever be under
a duty to apply a rule of law that has not, tacitly at least, been approved by
the state. Accordingly the law of nature is, in fact, suspended in mid-air.
Only that is law which is binding on the judge ; but the law of nature is not
binding on the judge. At this point the doctrine of the school of the law of
nature completely reverses itself. The protagonists of natural law as non-
state law based on the nature of man in the end demand legislation by the
state in order that the law of nature may be realized.
 Savigny and Puchta perhaps were the first to conceive, vaguely at least,
the idea of a science of law the exclusive object of which is to promote
knowledge. Their whole life-work bears witness to a disdain, unconscious
perhaps, never expressly admitted certainly, clearly marked however, for a
science of law which serves only practical purposes. Even in their studies in
the common law, i.e. the positive law of their day, they sought to arrive at a
scientific understanding of that element of the common law which
constitutes the nature of all law; they sought to comprehend not a system of
law, but law itself. Far in advance of their time, they turned away from the
insignificant figure of the personal legislator and directed their attention to
the great elemental forces that are at work in the creation of law. These
natural forces prevail in customary law, which, it is true, was to them a
symbol of all that is superhuman in law rather than a clearly discerned
concept, Nevertheless the task of creating a science of law proved too great
even for them. They made a beginning, but were unable to carry it out.
The founders of the Historical School never attempted actually to apply
in their dogmatic works the methodological principles which they professed
in theory. Their interest in non-state law led them to strive for a clear
understanding of the concept of customary law; but they never took the
trouble to investigate the customary law of Germany; they made no attempt
to perfect the methods, highly imperfect then as well as now, for the
ascertainment of customary law; they rejected Beseler's suggestions, which,
inadequate to be sure, were nevertheless worthy of serious consideration;
they did not discuss a single case taken from the living customary law that
was not already known in legal literature. They do indeed insist that the law
develops in the popular legal consciousness (Rechtsbewusstsein des Volkes),
but barring the much decried method of legislation, they cannot tell us how
new law is received into the body of already existing positive law; they
never express an opinion as to the method by which legal science
recognizes and receives new law, unless, indeed, it is supplied ready-made
by legislation. The legal material that they deal with is comprised in its
entirety in the common law juristic science of the eighteenth century. They
arrange it much more carefully, observe much more closely, occasionally
merely more subtly, the states of fact previously discussed by their
predecessors; they test it by the content of the sources which they have re-
examined historically and, occasionally, doctrinally ; they often correct the
traditional definitions with remarkable acumen; but they make no attempt to
enrich it or to introduce new methods.
They have had few continuators and no followers. Beseler, it is true, in
obedience to a splendid inspiration, made an attempt to begin afresh where
the thread had been cut. But though he saw many things in their true
relations, he thought few of them out to their logical conclusions; at any
rate, he did not express his thoughts clearly, and therefore the general
judgment as to the value of his work was easily misled by malevolent
critics. Only a few Germanist s and a few teachers of ecclesiastical law are
actually working in the field of legal dogmatic in the spirit of the Historical
School. The former confine themselves to searching out the vestiges of
ancient German legal institutions that have been received into the
codifications of German particular law,1 i.e. the so-called common German
private law. The latter limit themselves to a very narrow field.
Particularly as to the all-important matter of customary law, retrogression
rather than progress is observable. The epigoni of the Historical School who
are working in the field of historical dogmatic pass by Savigny and Puchta's
doctrine of customary law, which is one of the great achievements of the
human mind, with little or no appreciation of its importance. Ignoring
Savigny and Puchta, they start from the common law juristic science of the
eighteenth century. To them customary law no longer is a power which
governs the creation of law, the laws of which must be made the subject of
scientific inquiry. The only question in their minds is: What are the
conditions under which, according to the intention of the legislator, which is
to be ascertained by interpretation of the corpus iuris civilis and canonici or
of a modern statute, customary law is binding upon the judge? That is to
say, it still is nothing more than a practical juristic science which is
concerned only with the duties of the judge. At the same time, it manifests
no interest in non-state law. The doctrine of customary law is disposed of in
a few introductory paragraphs of the institutional books and of the
handbooks; a few smaller works discuss the controversial questions that are
sufficiently well known. There is no thought of systematic inquiry. They do
not even know of a method for it. The small number of scholars who did
examine individual cases of customary law (Bruns, Fitting) dealt only with
written sources, especially with juristic literature, i.e. they proceeded very
much as if they were dealing with a statute. Under the heading The
Interpretation of the Rules of Law, they actually discuss only the
interpretation of statutes. To introduce, as Windscheid and Baehr have done,
the course of judicial decisions into the presentation of the positive law is
considered a pioneering innovation.
1 Partikuläres Recht, i.e. the law arising from particular sources in
the individual states of Germany. See Posener, Rechtslexikon, s. v.,
and Gareis, Introduction to the Science of Law (Kocourek's
translation), p. 70.

Accordingly practical juristic science has, in spite of Savigny and Puchta,

remained what it has been ever since the rise of the state-controlled
judiciary, i.e. the science of the application of the law created by the state.
Practically all modern juristic writing and teaching, within the sphere of
private law at least, pretends to be nothing but a setting forth, as clear, as
faithful, as complete, as is possible, of the content of statute law in its finest
ramifications and its remotest applications. Such a literature and such
teaching cannot, however, be termed scientific; in fact, they are merely a
more emphatic form of publication of statutes. The ultimate inference
which is drawn by the exponents of this school is the doctrine of the
perfection and completeness of the legal system. When the Historical
School makes this assertion, it reverses itself just as the Law of Nature
School did when it demanded legislation by the state. This conception of
law, which was first stated in express terms by Brinz, but which had
actually been applied at an earlier date by the exponents of the Historical
School, so effectively brought down the fate of the Historical School upon
its head on lines parallel to the fate of the Law of Nature School that one is
tempted to see the sway of a higher justice therein. There is a veritable gulf
fixed between the Weltanschauung (world-view, or philosophy) of the two
great vanquishers of the Law of Nature School, who founded the Historical
School, and the proposition that there is within the positive law an answer
for every question that might arise, and that one need but find it. And this
theorem — for it is nothing more than a practically meaningless theorem —
makes it perfectly obvious that practical juristic science, in its entirety, does
not purport to be anything but a system of norms according to which the
judge must render his decisions; for surely no man has ever entertained the
preposterous thought that the law in its entirety
 Is a complete system of rules which regulate in advance all human
conduct in all possible relations. Jellinek has made the remark that the
dogma of the logical perfection of the legal system does not apply to public
law "but only to those parts of the legal order in which the final decision of
the individual case lies in the hands of the judge." By way of proof, Jellinek
adduces a great number of problems of public law for which the existing
public law offers no solution whatever. But the situation would be the same
if the final decision did lie in the hands of a judge — and this is possible in
each and every one of the cases adduced by Jellinek. Only, if that were the
case, it would be incumbent upon the judge to find a solution, but he would
not find it on the basis of the logically perfect system; for it is not contained
therein. What Jellinek con™ siders a peculiarity of public law, therefore,
holds true, in fact, for every department of law, and the principle of the
logically perfect system of law does not state a scientifically established
fact, but merely expresses the practical endeavor to supply the judge with a
store of norms for decision sufficient for all cases that might arise and to
make them binding upon him as effectively as possible.
In the light of these considerations, it is possible to understand the view,
which still prevails at the present time, that the law is a compulsory order,
that it is an essential element of the law to recognize enforceable claims and
to impose enforceable duties. First of all we must arrive at a clear
understanding of what is meant by compulsion.1 It cannot mean
psychological compulsion of any kind; for man always acts under some
kind of psychological compulsion, even quite outside of the legal sphere. It
can, therefore, mean only such compulsion as is considered characteristic of
law; i.e. only such psychological compulsion as is exercised by threat of
penalty or of compulsory execution. That these two kinds of compulsion
have been considered essential characteristics of law can be explained only
by the fact that law has always been believed to be the rule to be applied by
the judge. With rare exceptions, cases are brought before the judge solely in
order to have the judge impose a penalty or in order to secure compulsory
enforcement of the claim after the judge has recognized its validity, and,
with rare exceptions, a judgment of a court of law can actually be executed
in our day. Law applied by the court and law that can be enforced by
compulsion are practically synonymous today. To a person, however, whose
conception of law is that of a rule of conduct, compulsion by threat of
penalty as well as of compulsory execution becomes a secondary matter. To
him the scene of all human life is not the court room. It is quite obvious that
a man lives in innumerable legal relations, and that, with few exceptions, he
quite voluntarily performs the duties incumbent upon him because of these
relations. One performs one's duties as father or son, as husband or wife,
does not interfere with one's neighbor's enjoyment of his property, pays
one's debts, delivers that which one has sold, and renders to one's employer
the performance to render which one has obligated oneself. The jurist, of
course, is ready with the objection that all men perform their duties only
because they know that the courts could eventually compel them to perform
them. If he should take the pains, to which, indeed, he is not accustomed, to
observe what men do and leave undone, he would soon be convinced of the
fact that, as a rule, the thought of compulsion by the courts does not even
enter the minds of men. In so far as they do not simply act instinctively, as
indeed is usually the case, their conduct is determined by quite different
motives: they might otherwise have quarrels with their relatives, lose their
positions, lose custom, get the reputation of being quarrelsome, dishonest,
irresponsible persons. The jurist ought to be the last person of all to
overlook the fact that that which men do or leave undone as a legal duty in
this sense often is something quite different from, occasionally is much
more than, that which the authorities could ever compel them to do or leave
undone. The rule of conduct, not infrequently, is quite different from the
rule that is obeyed because of compulsion (Zwangsnorm).
1 I.e. sanction.

It was observed long ago that in a considerable part of public law in the
narrow sense (Staatsrecht) and administrative law there is no compulsion in
this sense whatever. If, in reply to this argu-ment? one would urge the
compulsion that lies in the responsibility of cabinet ministers or in the
parliamentary or the disciplinary responsibility of officials, one should
show whether or not this compulsion can, at this stage, be said to be
identical with the compulsion that lies in compulsory execution. These two
things seem to lie pretty far apart from each other. At this point we may
disregard altogether the psychological question whether or not a weapon so
dull as the impeachment of a minister practically always turns out to be, or
as the parliamentary and the disciplinary responsibility of an officiai turns
out to be in many cases can be said to amount to a means of compulsion.
But even this resource will fail in the case of international law,
ecclesiastical law, and public law in the narrow sense (Staatsrecht), as well
as in a considerable part of the administrative law of an absolute or of a
non-parliamentary constitutional state, and particularly in the case of almost
all precepts regulating the competence and the order of business of
parliamentary representative bodies. It has often been said that almost any
breach of the constitution may be perpetrated without the perpetrators being
held to account, provided the majority of the parliament or of any other
representative body and the presiding officer are in agreement.1 It is true, in
such case there remains the " restraint exercised by public opinion/'
"popular indignation or resentment/' and, lastly, the possibility of
revolution. But can a sanction of this kind, which is not prescribed by law
and is not regulated by law, be considered an essential characteristic of law?
There are no social norms, whether they be norms of morality, of ethical
custom, of honor, of tact, of etiquette, or of fashion, but have recourse to a
sanction of this kind whenever they are being transgressed. And in the case
of a few of these non-legal norms, this sanction is often more effective than
in the case of a legal norm; occasionally it is so powerful as to overcome
even the compulsion exercised by legal execution. Many a man pays his
gambling debts although he fails to pay his tailor, fights a duel with the
person who challenges him, contemptuous of the criminal law, but blindly
obedient to the social sanction.
1This statement, of course, does not hold true for a country like the
United States, where the legislative branch of the government is not
omnipotent.

All of this has been stated often enough, and it is perhaps superfluous to
revert to it here. Therefore I will emphasize but one point — a point which
has been neglected hitherto, i.e. the great number of situations in private
law for which no effective legal sanction has been provided. This is true
particularly in the case of all purely personal claims strictly limited to a
certain time which arise from permanent legal relations. Many precepts that
determine the mutual rights and duties of the members of a family or of a
partnership, the duties of the organs of a corporation, of the board of
directors, of the members, or of the meeting of the members, fail to create
an enforceable legal situation because, as the jurists say, they create no
subjective law:1 there is no legal remedy to enforce them. And in many
cases of this kind there is no possibility of availing oneself of an existing
legal remedy. Would a member of an association sue the board of directors
because the reading room has not been placed at his disposal? Would an
employer sue a servant girl for not tidying the house? What would a suit of
this kind avail him? The claim for damages would not afford relief, for no
matter how much importance he may have attached to his right at the
moment, in the end he will not be able to prove damage that is worth
mentioning. It is only where the obligor 2 has, by his conduct, made the
relation unendurable, that the obligee is given an effectual legal remedy, i.e.
the right to demand the dissolution of the relation and damages. But this
does not involve a legal sanction which effectively compels the other party
to perform his duties ; for the latter very often embarks upon his illegal
course of conduct in order to bring about the dissolution of the relation in
exchange for the payment of damages. The order of human society is based
upon the fact that, in general, legal duties are being performed, not upon the
fact that failure to perform gives rise to a cause of action.
Three elements therefore must, under all circumstances, be excluded
from the concept of law as a compulsory order maintained by the state—a
concept to which the traditional juristic science has clung tenaciously in
substance, though not always in form. It is not an essential element of the
concept of law that it be created by the state, nor that it constitute the basis
for the decisions of the courts or other tribunals, nor that it be the basis of a
legal compulsion consequent upon such a decision. A fourth element
remains, and that will have to be the point of departure, i.e. the law is an
ordering. It is the deathless merit of Gierke that he discovered this
characteristic of law in the bodies which he called associations
(Genossenschaften), and among which he numbered the state, and that he
gave an account of it in a detailed study. As a result of his labors, we may
consider it established that, within the scope of the concept of the
association, the law is an organization, that is to say, a rule which assigns to
each and every member of the association his position in the community,
whether it be of domination or of subjection (Uberordnung, Unterordnung),
and his duties ; and that it is now quite impossible to assume that law exists
within these associations chiefly for the purpose of deciding controversies
that arise out of the communal relation. The legal norm according to which
legal disputes are being decided, the norm for decision, is merely a species
of legal norm with limited functions and purposes.1
1 The German term Recht means law and right. Subjektives Rechte
Berechtigung? means right; objektives Recht means law.
2 Obligor or debtor in German law is used in a wider sense than in

our law. It means any person who is obligated to render a

performance.

Gierke's doctrine is open to the objection that it is taking a partial view of

things, but only inasmuch as it presents as applying only to the law of
associations that which holds true for the whole legal sphere. His own book
shows plainly that the law of associations does not organize human beings
only, but things as well. It is a question not only of what the members of the
association do or leave undone, but of the extent to which they should be
permitted to avail themselves of the property of the association. It was
observed long ago that Gierke has formulated his concept so broadly as to
include practically the entire German law within its scope. And herein lies
the germ of a true and great conception of the nature of law. Just as we find
the ordered community wherever we follow its traces, far beyond the limits
set by Gierke, so we also find law everywhere, ordering and upholding
every human association.
1 It has been said, by way of reproach (Battaglioni, Le norme del
diritto penale, Rome, undated), that the distinction between legal
norms that are forms of organization and the norms for decision
coincides with the distinction first made by Max Ernst Mayer
between norms of law and norms of civilization (Kultur). I would
say first of all that I first spoke of the distinction between forms of
organization and norms for decision in my address, " Freie
Rechtsfindung und freie Rechtswissenschaft," which I delivered on
March 4, 1903, before the Vienna Juristic Society, and which was
printed in the year 1903. The preface is dated June 1903. The
discussion referred to appears on p. 9 of this edition. The book of
Max Ernst Mayer was published in 1903, and the preface bears the
date of August 8, 1903. One cannot, therefore, speak of a
borrowing either by Max Ernst Mayer or by myself. Moreover an
 attentive reader ought not to have failed to observe that my
doctrine, although it reaches the same results that were reached by
Max Ernst Mayer, is based upon a conception quite different from
that of Mayer and has a totally different aim. — Author's note.

The term social sciences, at the present time, comprises every manner of
science of human society, theoretical as well as practical; and therefore it
includes not only the theoretical science of economics but the practical
science (Nationalökonomie, as it is called), statistics, and politics as well.
At the beginning of the last century, the French philosopher Auguste Comte
created the term sociology to designate the totality of the theoretical social
sciences. Attempts are making to give to sociology a specific content, to
make it an independent science, the function of which is to present a
synthesis of the content of all theoretical social sciences, which might
constitute a unitary “general part" of the social sciences. The existence of
such a science may be justified^ but it would not be advisable to call it
sociology, for in that case it would be necessary to find a new term for the
social sciences as a whole. The term Jurisprudenz hitherto has comprised
both the theoretical and the practical science of law; and it is likely that this
customary terminology will be retained, but it will be necessary to
distinguish between the theory of law in the proper sense of the term, the
science of law, on the one hand, and the practical juristic science
(Jurisprudenz) and, where there is no danger of misunderstanding, juristic
science (Jurisprudenz) simply, on the other. Since the law is a social
phenomenon, every kind of legal science (Jurisprudenz) is a social science;
but legal science in the proper sense of the term is a part of the theoretical
science of society, of sociology. The sociology of law is the theoretical
science of law (die wissenschaftliche Lehre vom Recht).
II The Inner Order of the Social
Associations

IT IS axiomatic that all study in the field of social science is based on the
concept of human society. Society is the sum total of the human
associations that have mutual relations with one another. And these
associations that constitute human society are very heterogeneous. The
state, the nation, the community of states which are bound together by the
ties of international law, i.e. the political, economic, intellectual, and social
association of the civilized nations of the earth extending far beyond the
bounds of the individual state and nation, the religious communions and the
individual churches, the various sects and religious groups, the
corporations, the classes, the professions, the political parties within the
state, the families in the narrowest and in the widest sense, the social groups
and cliques — this universe of interlacing rings and intersecting circles —
constitute a society to the extent that acting and reacting upon one another
is at all perceptible among them. There is then, first of all, a society
consisting of the civilized nations of the earth; within this society are
various narrower societies, e.g. a society of the Christian and of the
Mohammedan nations, and lastly societies that comprise only the individual
civilized nations. Nations that are altogether outside of this sphere of
mutual action and reaction are beyond the pale of human society, e.g. the
savage and the barbarous nations of the earth, and, until recent times, the
Japanese and the Chinese, who, however, in their seclusion, constituted a
society of their own.
From these various kinds of groups of human beings, we must select,
first of all, a certain kind of organized association, which we shall hereafter
designate as the primitive (genetic) association. We meet with it in primitive
times in various forms as clan (Geschlecht, gens, Sippe), family, house
community. The clan and the family are its original forms. It cannot as yet
be determined which of these two must be considered the true original form
(Urform)] whether the clan is nothing more than a full-grown, enlarged
family, or whether the family developed at a much later time than, and
within, the clan. It is self-evident that, from the moment in which men
begin to form associations, increased capacity for association with others
becomes a weapon in the struggle for existence. It effects the gradual
exclusion and extinction of those in whom self-seeking and predatory
instincts predominate, and the survival of those that have capacity for
socialization, who henceforth are the stronger because they can avail
themselves of the strength of the whole association. Accordingly natural
selection and heredity produce a race of human beings which is increasingly
capable of socialization. This feeling of solidarity which has its roots in the
dim consciousness of mutual interdependence begets the clan, and,
strengthened by the consciousness of common ancestry, the (cognatic,
based on blood relationship) family. Among breeders of cattle and tillers of
the soil, whose common toil leads them to dwell together, the family
develops into the house community, which is usually also called family. Out
of the union of genetic associations, clans, families, house communities,
grows the tribe, and, in course of time, the nation. In lower stages of
development, the social order of mankind rests exclusively upon the genetic
associations and their union into tribe and nation. These associations
therefore fulfil a number of functions. The clan, the house community, the
family, is an association economic, religious, military, and legal; it is a
community of language, ethical custom, and social life. But in more
advanced societies, these functions are gradually severing from the genetic
associations; groups of a different kind arise, which add to their new
functions by taking over the original functions of the genetic associations.
These are: the commune, the state, the religious communion, the society,
the political party, the social coterie, the social club, the economic
association in agriculture, shop, and factory, the cooperative society, the
association of the members of a calling, all the associations connected with
the transportation of persons or goods. Among the peoples of the highest
degree of civilization, a man becomes a member of an almost incalculable
number of associations of the most diverse kinds; his life becomes richer,
more varied, more complex. And in consequence, the once powerful genetic
associations languish and, in part, fall into decay. Only the house
community of the nearest blood relatives, who dwell under the same roof,
the family in the narrowest sense of the word, has been able to maintain
itself in full vigor down to our day; the wider family has largely faded out,
and of the clan only a few scarcely perceptible traces remain, and these are
to be found exclusively among the higher nobility and among the peasantry.
All later associations are in a relation of pronounced contrast to the
genetic associations. With few exceptions every man be™ longs to a
genetic association; there is no such necessity as to the other associations.
One is born into the genetic associations; but membership in the other
associations is a matter of voluntary joining and reception. The genetic
association owes its existence to unconscious impulses; the later
associations are the result of conscious human activity. And this contrast is
heightened with every advance in civilization. One hundred years ago, a
man's occupation or his profession, his religious fellowship, his political
affiliations, and his social connections, were determined to a much greater
extent than they are today, by his descent, i.e. by the genetic association to
which he belonged. All these things were determined by free choice to a
much lesser extent than they are today.
Though we know very little of the law of the early times of the peoples
from whom the civilized nations of Europe have sprung, there can be no
doubt that of what today is mostly, and sometimes even exclusively, called
law, i.e. of the fixed rule of law, formulated in words, which issues from a
power superior to the individual, and which is imposed upon the latter from
without, only a few negligible traces can be found among them. Their law is
chiefly the order of the clans, families, houses. It determines the
prerequisites and the consequences of a valid marriage, the mutual relation
of the spouses, of parents and children, and the mutual relations of the other
members of the clan, family, and household. Each association creates this
order for itself quite independently. It is not bound by the order which exists
in other associations for the same relations. And if the orders in associations
of the same kind differ very little from each other, this must be attributed to
the similarity of the conditions of life; often to borrowing; but by no means
to a uniform order in some manner prescribed for them from without. In the
language of German scholarship, there may possibly be a general law
(allgemeines Rechi) in these associations, but not a common law (gemeines
Recht).
As soon as ownership of land becomes established, law arises concerning
it, but without any general rules of law. Each settlement creates its own land
law; each landlord imposes it independently upon his villeins; each royal
grant, quite independently of all others, makes provision for the legal status
of the estate it grants. There are concrete legal relations in the various
com™ munes, settlements, and manors, but no law of ownership in land
such as is found in the corpus iuris or in modern statute-books.
The same holds true for the contract. The law of contracts is based solely
upon the content of the contracts that are being entered into. There are no
general legal propositions governing contracts. There is an utter absence of
all those rules of compulsion, of eking out, and of interpretation with which
the corpus iuris and modern statute books abound. Where the contract is
silent, there is no law; and the literal, narrow interpretation of contracts,
which is so characteristic of the older law, is not based upon formalism,
which is usually imputed to primitive times, but which in reality is quite
foreign to them, but upon the fact that, outside of the language of the
contract, there is nothing to stand on.
General rules of law are found first of all, perhaps, in the law of
inheritance. In the most ancient times, only the members of the household
of the deceased take by inheritance; and these general rules concern only
the rights of distant relatives. Even the Twelve Tables say nothing of the sui
heredes, but do speak of the agnates and the gentiles ; and we encounter the
same situation in the ancient Germanic folk laws and in the Slavic law
books. This shows that these rules belong to a later stratum. The disposition
by the members of a household of the goods of one of their own number
who had died was determined independently, even in historical times, by
each and every house and clan. It was only for the event that there were no
members of the household in existence that general precepts arose at a
comparatively early time.
The earliest state is based exclusively upon the agreement entered into by
the noble clans that found it ; and over and above this agreement there is
nothing that might determine the position, rights, and duties of the
individual organs of the state. After kingship for life, and, at a later time
hereditary kingship, has begun to replace temporary leadership, everything
is dependent upon the personality, the wealth, the influence of the king, and
upon the number, the bravery, and the loyalty of his retainers. If the king
can rely upon his retainers, his power may be very great; if not, he must, in
matters of important governmental action, secure the consent of the
influential men among the people, possibly of all the people. Accordingly
the council of the elders and the popular assembly are not constitutional
institutions, but merely means employed by the king to enforce his will.
The authority of the royal officials is based on the king's mandate and upon
the royal power. Therefore there are no legal propositions concerning it.
The present-day private law of princes is a part of the most ancient legal
order of the human race which has been preserved for our day like an
antediluvian gnat encased in amber. Von Düngern has conclusively shown
that the private law of princes has no material content of any kind. It merely
provides that the families of the high nobility may determine their legal
relations independently. What that determination shall be lies exclusively
within their discretion. This present-day condition of the private law of
princes was the condition of all law in time past. The self-determination of
the families of the high nobility, however, extends solely to a few questions
of the law of the family and of the law of inheritance ; whereas in primitive
times each and every association and, within the association, each and every
legal relation, contract, or parcel of ground had its own law; and, apart from
this law of the individual legal relation, there was no law in ancient human
society.
This legal order is reflected in the Homeric poems, the Scandi- navian
sagas, and the Germania of Tacitus. The legal traditions of the Twelve
Tables and of the most ancient Germanic legal records, indeed, to a certain
extent, present a later development. The latter contain general legal
propositions relating to the system of penalties, to penal procedure, and to a
few matters of public and private law. These are in part, it is true, merely
borrowings from Roman law; in part, they have originated under the
influence of Roman law; but for the most part, they bear witness to a more
advanced stage of legal development. The Slavic legal sources bear a
similar relation to Byzantine law.
But even the highly developed Roman law of historical times contains
untold survivals which point to an older condition such as has been
described. The whole of human life and all relations within the Roman
house and clan are based on the autonomy of each house and clan. In the
earlier stratum of Roman contracts, the words of the contracts determine all
rights and duties arising therefrom. This is an inevitable consequence of the
lack of general rules concerning the presuppositions and consequences of
contractual duties. From the earliest times, the right and law of inheritance
of the sui heredes was never governed by any regulations. This is shown by
the sovereign power of disposition of the testament as well as by the lack of
all regulations governing settlements made by the heirs of the body in the
actio familiae herciscundae. According to clear evidence, the right of
inheritance of the gentiles was regulated quite independently by each gens.
And what in actual fact is Roman Staatsrecht (public law in the narrow
sense)? Barring the content of the small number of leges that contain
Staatsrecht, everything that Mommsen sets forth under this head is merely a
presentation of the practice of the organs of the Roman state during the
existence of the Empire. Mommsen does, indeed, arrive at general legal
propositions at every point; but with very few exceptions these were the
product of his own intellectual labor; they were abstracted by him from the
facts; they never were the rules that regulated the facts. Indeed one may call
this Roman public law in the narrow sense? but it certainly is not a
constitution of the Roman state. Since Oriental aristocrats have begun to
travel in Europe and have been receiving a European education, there is no
lack of statutes in the Orient, occasionally even of written constitutions; but
these are mere toys, not without significance for the far distant future
perhaps, but utterly ineffectual at the present time. If one would become
acquainted with the actual public law in the narrow sense of an Oriental
state, one must try to understand the activity of the individual organs of the
state from actual observation, which is more than a substitute for the
Corpus Inscriptionum Latinarum. The methodological significance of Von
Düngern's work on the public law in the narrow sense of Egypt rests on his
appreciation of this fact.
In the primitive stage, the whole legal order consists in the inner order of
the human, associations, of which, indeed, the state is one. Each association
creates this order for itself, even though it is true that an association often
copies an order existing in other associations, or in case of a splitting up of
an association, takes over an order and continues it. Because of these facts,
to which must be added the similarities caused by the similarity of the
relations, common features will not be lacking. To an observer from the
outside these common features might appear to constitute a common law of
the nation. But this is only a generalization made by the observer himself on
the basis of what he has seen and heard. Tacitus makes a number of
statements about the legal relations of the ancient Germans, but a cursory
glance at his account suffices to show that it contains no legal propositions,
but only statements about what the Germans customarily did and left
undone. Society, if one may use the term with reference to those times,
maintained its balance not by means of rules of law, but by means of the
inner order of its associations.
Passing over a great number of generations of men, we reach the feudal
state. It has been extremely difficult for the modern man to understand the
feudal state, for the reason that, for a long time, he had been trying to find a
constitution of the feudal state; whereas the chief characteristic of the feudal
state is the fact that it has no constitution, but only agreements. The relation
between the king and the great lords to whom he has granted fiefs is a
contractual one. Likewise the relation between the great lords and those
whom they have enfeoffed; likewise the relation between the latter and
those whom they, in turn, have enfeoffed. On the lowest rung of the ladder
are the serfs. Of course, one or more rungs may be omitted, and the feudal
lords may have serfs at any level in this scale. In order to write an
exhaustive description of the feudal state, one must be able to state the
content of all the agreements entered into between the lords and their
liegemen and of the relation between the lords and the villeins, which often
is merely contractual. The agreements and the relation between the lord and
the villeins may be very much alike in a certain district and among a certain
people. But this similarity also is based upon the similarity of the attendant
circumstances, upon direct imitation or borrowing, not upon a general rule.
What is called "feudal law" is primarily a scientific elaboration of the
common element in the individual agreements, which at a later period is
transformed into a general rule of law which ekes out the content of the
agreements»
It is true, in the more developed feudal law, assemblies of the feudal
tenants of the individual feudal lords are not unknown. Occasionally these
are assemblies not only of the immediate tenants of the feudal lord, but also
of the tenants of the intermediate feudatories. Sometimes there are
assemblies of villeins. These assemblies adopt common resolutions. But
before the idea of law had made its way, these resolutions did not contain
legal propositions in the modern sense of the term. They are merely exprès-
sions of the common will, and their legal significance is based upon the fact
that they are being accepted by the feudal lord, and thereby become
collective agreements with the feudal lord. Collective agreements in this
sense of the term were: the most ancient resolutions of the German Imperial
Diet, the Magna Charta Libertatum, which to the present day has remained
the foundation of the English constitution, and on the whole, the law of the
German manorial rights and of the corresponding services.
But the feudal constitution was far from being the whole content of the
social order of the feudal state. Within the feudal state, the clan, the family,
the house continued; but the clan was weakened considerably. Side by side
with it, new local associa- tions arose, which took over a considerable
number of social functions. Among the local associations, the city soon
became very important, and achieved a considerable measure of
independence, which in effect placed it outside of the feudal constitution.
The feudal constitution, in fact, has always remained a constitution of the
open country. Within the walls of the city, a vast number of social
associations, which were unknown elsewhere, and an active legal life
developed. Here for the first time fully developed legal institutions were
expressed in a number of legal propositions : the law of real property, of
pledge, of contract, of inheritance.
But these legal propositions constitute an infinitesimal part of the legal
order. In the feudal state as well as elsewhere, the great bulk of the legal
order is not based upon the legal propositions, but upon the inner order of
the social associations, of the older ones (the clan, the family, the house
community), as well as of those of more recent origin — the feudal
association, the manor, the mark community, the urban community, the
guilds and trade unions, the corporations and foundations. If one would
obtain a knowledge of the law of mediaeval society, one must not confine
oneself to a study of the legal propositions, but must study it in the deeds of
grant, the charters, the land registers, the records of the guilds, the city
books, the regulations of the guilds. Even at this period, the center of
gravity of the law lies in the inner order of the human associations.
If one compares the law of the present with that of past centuries, one
cannot but be struck at the first glance by the great importance which in the
course of centuries has attached to the legal proposition, authoritatively
pronounced and formulated. With the sole exception of Great Britain, the
Staatsrecht (public law in the narrow sense) of all European states has been
put into this form, as well as the law of the state magistracies,
administrative law, procedural law, and, apparently, the whole body of
private law and of penal law. For this reason the idea that the law is nothing
but a body of legal propositions dominates legal thinking today.
This idea, however, contains so many contradictory elements that it
refutes itself. This inner inconsistency is least apparent in Staatsrecht
(public law in the narrow sense), in administrative law, and in the law of
procedure. But modern investigation of the normative significance of the
factual, of the Konventional· regel,1 and of the practice of administrative
boards has shown that this branch of the law too does not consist
exclusively of legal propositions. On the other hand, the legal rules barely
touch the surface of the modern order of the family. The law of corporations
and of foundations is based in the main upon the articles of association. In
spite of the detailed provisions of the law of contracts, the content of the
contract is of greater importance in the individual case than the rules of law
governing contracts. Testamentary declarations of will, nuptial agreements,
contracts of inheritance, agreements among heirs, are of much greater im™
portance in the law of inheritance than the rules of law concerning it. Every
judge, every administrative official, knows that, comparatively speaking, he
rarely renders a decision based solely on legal propositions. By far the
greatest number of decisions are based upon documents, testimony of
witnesses or experts, contracts, articles of association, last wills and
testaments, and other declarations. In other words, in the language of jurists,
in a much greater number of instances judgment is being rendered upon
questions of fact than upon questions of law. And the fact is a matter of the
inner order of the human associations, as to which the judge obtains
information from the testimony of witnesses and experts, from contracts,
agreements among heirs, declarations by last will and testament. Even
today, just as in primitive times, the fate of man is determined to a much
greater extent by the inner order of the associations than by legal
propositions.
This truth is hidden from the eye of the jurist by the fact that to him an
adjudication upon a question of fact merely amounts to a subsumption of
the ascertained facts under a legal proposition. But this is due solely to a
juristic habit of thought. The state existed before the constitution; the family
is older than the order of the family; possession antedates ownership; there
were contracts before there was a law of contracts; and even the testament,
where it is of native origin, is much older than the law of last wills and
testaments. If the jurists think that before a binding contract was entered
into, before a valid testament was made, there must have been in existence a
legal proposition according to which agreements or testaments are binding,
they are placing the abstract before the concrete. Perhaps it seems more
readily understandable to a jurist that a legal proposition concerning the law
of contracts or the law of wills might be binding than that a contract or a
will might be binding without a legal proposition. But the mental processes
of nations and of men, excepting the jurists among them, do not function in
this fashion. It can be shown that the idea that prevailed among men in the
past was that their right had arisen from a contract or from a grant; the idea
that it had arisen from a legal proposition was altogether foreign to them.
And at the present time, unless legal theory exerts its influence, men
generally assume that their rights arise not from legal propositions but from
the relations of man to man, from marriage, contract, last will and
testament. That anyone might owe his rights to a legal proposition, is a
notion that even today is current only among jurists. Social phenomena,
however, can be explained not by construing them juristically but by
inferring from facts the modes of thought that underlie them.
1 The Konventionalregel, i.e. conventional rule or law, is a rule or
law (to which a person is subject only so long as he chooses)
created by agreement between the parties. The agreement may
either be express or arise from the conduct of the parties.

Up to this point, I have been confining this presentation intentionally to

the nations of Europe; but its application is not limited to these. Among
primitive races, the law is generally identical with the inner order of their
associations. At this stage of development there are no legal propositions at
all. At a somewhat higher stage, they appear in the form of religious
commands. And it seems that until man has reached a very high stage of
development, he cannot fully conceive the idea that the abstract rules of law
can force their will upon life. It is true, the German folk laws of the early
Middle Ages contain very detailed legal propositions, but probably they
were applied only in those parts of the country in which there was a Roman
population sufficiently large to bring about the continuation of Roman
modes of thought even in a Germanic society. How small the influence of
legislation was, even in the Middle Ages, is sufficiently well known.
Travelers in backward countries, in the Orient, in parts of eastern and
southern Europe, are struck by the general disorder. This disorder is caused
by the fact that general legal propositions, even if there are such, are not
being followed. There is a strange contrast between this lack of order in
public life and the strictness with which the traditional order of the small
association, of the household, of the family, of the clan, is followed.
The great master of comparative legal science, Sir Henry Sumner Maine,
has pointed this out in another connection. He was the first to state that at
all times the oldest law has been the procedural law. Taken literally, this
statement, of course, is absurd. A society, be it never so simple and
primitive, whose whole order is based upon procedural law is unthinkable.
Even legal disputes are nowhere decided solely on the basis of procedural
norms. It is true, often a complaint is dismissed because of a mistake of
form on the part of the plaintiff, or a complaint is permitted to succeed
because of a mistake of form on the part of the defendant; but in every case
where defects of form did not enter into consideration, the decision had to
be rendered on the basis of the material law.1 This would have been
impossible if there had been no material law. But although the procedural
law was not, indeed, the oldest law, Maine's doctrine is correct in so far as
the oldest legal propositions were those of procedural law; perhaps the
propositions connected with provisions for penalties. Undoubtedly the
material law was already in existence, even though it had not yet been
formulated in legal propositions.
The inner order of the associations of human beings is not only the
original, but also, down to the present time, the basic form of law. The legal
proposition not only comes into being at a much later time, but is largely
derived from the inner order of the associations. In order to explain the
beginnings, the development, and the nature of law, one must first of all
inquire into the order of the associations. All attempts that have been made
until now to comprehend the nature of law have failed because the
investigation was not based on the order of the associations but on the legal
propositions.
1 Material law, as distinguished horn, formal law^ corresponds in
the main to substantive law, as distinguished from procedural law.
 The inner order of the associations is determined by legal norms. Legal
norms must not be confused with legal propositions. The legal proposition
is the precise, universally binding formulation of the legal precept in a book
of statutes or in a law book. The legal norm is the legal command, reduced
to practice, as it obtains in a definite association, perhaps of very small size,
even without any formulation in words. As soon as there are legal
propositions within an association that have actually become effective, they
give rise to legal norms. But in every society there is a much greater
number of legal norms than of legal propositions ; for there always is much
more law that is applicable to individual cases than is applicable to all
relations of a similar kind; much more law than the contemporary jurists
who have attempted to formulate it in words have realized. Every modern
legal historian knows how small a portion of the law that was valid at the
time is contained in the Twelve Tables or in the Lex Salica. Modern codes
are in the same case. In the past centuries, all legal norms that were
determinative of the inner order of the associations were based upon
custom, upon contracts, and upon articles of association of corporations. In
the main, this is the situation today.
III The Social Associations and the
Social Norms

A SOCIAL association is a plurality of human beings who, in their relations

with one another, recognize certain rules of conduct as binding, and,
generally at least, actually regulate their conduct according to them. These
rules are of various kinds, and have various names: rules of law, of morals,
of religion, of ethical custom, of honor, of decorum, of tact, of etiquette, of
fashion. To these may be added some of lesser importance, e.g. rules of
games, the rule that one must wait one's turn, for instance at the ticket
window or in the waiting room of a busy physician. These rules are social
facts, the resultants of the forces that are operative in society, and can no
more be considered separate and apart from society, in which they are
operative, than the motion of the waves can be computed without
considering the element in which they move. As to form and content, they
are norms, abstract commands and prohibitions, concerning the social life
within the association and directed to the members of the association. In
addition to rules of conduct of this kind, there are rules that are not norms
because they do not refer to the social life of human beings: e.g. the rules of
language, of taste, or of hygiene.
The legal norm, therefore, is merely one of the rules of conduct, of the
same nature as all other rules of conduct. For reasons readily understood,
the prevailing school of juristic science does not stress this fact, but, for
practical reasons, emphasizes the antithesis between law and the other
norms, especially the ethical norms, in order to urge upon the judge at every
turn as impressively as possible that he must render his decisions solely
according to law and never according to other rules. Where the state has not
obtained a complete monopoly of lawmaking, this antithesis is not
emphasized very much. In Rome, where the law has been defined as the ars
aequi et boni, it was hardly ever heard of; and among the present-day
English, it is not stressed nearly so forcibly. In those fields of law in which
juristic science does not subserve the practical purposes of judicial decision,
in international law, in Staatsrecht (public law in the narrow sense), in
administrative law, law is by no means so carefully distinguished from
morals, ethical custom, decorum, and tact, from the so-called
Konventionairegeln (conventional rules), and even from considerations of
expediency, as is the case, in theory at least, in private and penal law.
Every human relation within the association, whether transient or
permanent, is sustained exclusively by the rules of conduct. If the rules
cease to be operative, the community disintegrates; the weaker they
become, the less firmly knit the organization becomes. The religious
communion dissolves if the precepts of religion lose their validity. The
family breaks up if the members of the family no longer consider
themselves bound by the order of the family. Among the northern Slavs of
Austria, the last vestiges of the greater family have completely disappeared
in the last fifty years because the more distant members of the family no
longer recognize the rules of the communal family life as binding.
Not all human associations are being regulated by legal norms, but
manifestly only those associations are parts of the legal order whose order
is based upon legal norms. The sociology of law deals exclusively with
these; the others are the subject matter of other branches of sociology.
Among the legal associations there are some that are readily recognizable
by external criteria, i.e. those that jurists style juristic persons, corporations,
institutions, foundations, and, first and foremost, the state. But even in
public law, there are numerous legal associations that have no legal
personality; such as administrative boards, public institutions, the people,
the army, the various classes, ranks, and professions. Much more of this is
to be found in private law.
In all legal associations the legal norm constitutes the backbone of the
inner order; it is the strongest support of their organization. By organization
we mean that rule in the association which assigns to each member his
relative position in the association (whether of domination or of subjection)
and his function. This rule may deal not only with the relation of man to
man, but also with the relation of man to things. Indirectly it deals with the
relation of man to man even in the latter case. For the owner of articles of
consumption determines what performance is to be rendered in return by
those at whose disposal he places the goods ; the owner of the factory
determines the order in the factory and its management; the creditor
determines the fate of the subject-matter of the obligation, and often of the
debtor; just as often, however, it is the debtor that determines the fate of the
subject matter of the obligation and of the creditor, for, being the possessor
of the thing, he has a great deal of legal power over it. But only those rules
of law have a share in the creation of the legal order of the association that
have actually become rules of conduct in the association, i.e. that are being
recognized and followed by men, in a general way at least. Rules of law
that have remained mere norms for decision, that become effective only in
the very rare cases of legal controversy, do not take part in the ordering of
the associations. This may be said, a fortiori, of those legal propositions, in
reality quite numerous, that do not affect life at all. The same holds true for
the norms of morality, ethical custom, and religion. It is always necessary
therefore to ask not only how much of what has been promulgated by the
lawgiver, proclaimed by the founder of a religion, or taught by the
philoso™ pher has been applied by the courts, preached from the pulpits, or
taught in books or schools, but how much has actually been practiced and
lived. Only that which becomes part and parcel of life becomes a living
norm; everything else is mere doctrine, norm for decision, dogma, or
theory. Norms of ethical custom, of honor, of decorum, of tact, of etiquette,
of fashion are only rules of human conduct; and though a new code of
honor (rules for the duel) should appear at every moment, it would remain
absolutely without any significance whatever if it did not actually become
part and parcel of life.
The first and most important function of the sociological sci™ enee of
law, therefore, is to separate those portions of the law that regulate, order,
and determine society from the mere norms for decision, and to
demonstrate their organizing power. This was recognized first of all in
Staatsrecht (public law in the narrow sense) and in administrative law.
Indeed hardly anyone doubts today that Staatsrecht is an ordering of the
state, whose purpose is not to decide legal disputes, but to determine the
positions and the functions of the organs of the state, as well as the duties
and functions of the authorities of the state. But the state is above all a
social association; the forces that are operative in the state are social forces;
everything that proceeds from the state, the activity of the authorities of the
state and particularly legislation by the state, is something that is done by
society through the association created for that purpose, i.e. the state. The
same classes, orders, and interests that control society prevail in the state;
and if the state makes war on any one of these, we know that the state has
passed under the control of one of the others. Staatsrecht (public law in the
narrow sense) therefore comprises both a state and a social ordering.
The rich life of a great scholar has been consumed to a great extent by the
labor of demonstrating the organizing power of the law of corporations and
the contributions which the corporations and their law have been making
and are still making today to civilization, particularly to the civilization of
Germany. Every page of history teaches the significance of the corporations
as associations for the organization of political, intellectual, religious,
economic, and social life; and any English or American work on
corporations and trusts can complete this picture. It would be needless for
the purposes of this book to add anything to these statements.
Gierke contrasts the law of the state and of the corporations of public and
private law, which he styles social law, with the entire remaining private
law, which he styles individual law. But this antithesis is unwarranted.
There is no individual law. All law is social law. Life knows not man as an
utterly detached, individual, and isolated being, nor does the law know such
a being. The law always sees in man solely a member of one of the
countless associations in which life has placed him. These associations,,
inasmuch as they bear a legal stamp, are being ordered and regulated by law
and the other social norms; it is the norms that assign to each individual his
position of domination or of subjec- tion and his function. It is true,
membership in the association occasionally, but by no means always, gives
rise to individual rights and duties of the individual, but this is not its
purpose, is not its essential content.
In the prevailing system of private law, however, the association is given
very inadequate expression. Thanks to the analytical method of the juristic
science of private law, the great majority of associations have been taken to
pieces for the purpose of placing their component parts under the
magnifying glass and studying them separately as subjects or objects of
rights, as real or personal rights. This may be necessary for practical
purposes, but it is unscientific at all events, just as the alphabetical order of
the dictionary is unscientific though necessary for practical purposes. The
sociological science of law, not being bound by any practical
considerations, must reunite the severed parts into a whole. Even when
viewed solely from without, the juristic persons of private law, the societies
that are not juristic persons, the partnerships, and other communities, and
the family self-evidently are clearly seen to be associations. But in actual
fact the entire private law is a law of associations. For the private law is
preponderantly, and, apart from family law, exclusively, the law of
economic life, and economic life goes on exclusively in associations.
Economic life comprises production of goods, exchange of goods, and
consumption of goods. Accordingly the economic associations subserve
these three functions. Just at this point, however, there is an enormous
contrast between the economic undertakings of today and those of a not far
distant past. In antiquity and in the Middle Ages, the economically self-
sufficing household of the free farmer and the Oikenwirtschaft (self-
sufficing economic establishment) of the royal court and of the seigniorial
manor were the prevailing forms. These manifestly were economic
associations, and their legal order was apparent. Today economically self-
sufficing households are to be found in Europe perhaps only in some
secluded region. Until the present day, among the peasantry at least, and,
where work is done at home, in rare cases also among handicraftsmen, the
family has remained a laboring asso- dation which produces goods ; but it is
no longer self-sufficing, and even among the peasantry it performs its labors
only in part for its own needs. And even among handicraftsmen and among
the peasantry, these cases are merely instances of survival of forms of
economic management which are disappearing. The family generally no
longer is a place where goods are produced, but where they are being
consumed; and only the very last part of the preparation of goods that are
being consumed takes place in the family. Apart from this, the home and the
workshop are definitely separated from each other. The workshop sends the
goods that it has produced to the market, from which the home obtains the
goods it requires. The manufactured products become merchandise. The
course that merchandise must travel from the producing to the consuming
economic unit is steadily lengthening, and every lengthening enlarges the
sphere of trade, of commerce. It is generally true therefore at the present
time that the production of goods takes place in the workshop; the
exchange, in commerce; the consumption, in the home. And to this three-
fold division the legal order of the economic associations of our day must
conform.
In every economic association, three things must be distinguished: the
working or consuming group of human beings; the material basis of
economic life, i.e. the instruments of production and raw materials; and
finally the juristic form in which this group of human beings receives the
protection of the courts and of the other tribunals of the state for their entire
associational life. This, we might say, is a statement of the basic features of
the relation between the economic structure of society and its juristic forms.
On the farm, which the farmer manages with the assistance of his wife
and children, his men-servants and women-servants, he raises grain and
tubers, cattle and sheep. This is the economic content of this association. Its
juristic form is ownership, the real right of usufruct or of usufructuary lease
in the farm, the family law which unites the members of the family, the
contract of Service which binds the men-servants and women-servants to
the farm. In part, the great landed proprietor cultivates his lands himself; in
part, he has put them out on lease to lessees or to usufructuaries. This
economic organization of the great landed estate determines its juristic
forms: ownership, lease, real rights of usufruct. The tradesman, together
with his journeymen and apprentices, works in a rented workshop with his
own materials and his own tools; the right of tenancy in the shop, the
ownership of tools and materials, the contract for wages with the
journeyman, and the contract of apprenticeship constitute both the juristic
form and the economic content of the trade. The factories of a share
company can throw goods on the market whose value amounts to millions
of dollars. The share company with its board of directors and board of
supervisors, its members and the meeting of the members, with an army of
officers and employees, with its right of ownership, its relations of usufruct
and ordinary lease in factories, machinery, sources of power, raw materials,
and merchandise — all of these constitute the economic order of the
manufacturing establishment, which is reflected in the contract of
association, in a multitude of legal relations involving real rights, in
countless contractual relations with employers and workmen, with ordinary
and usufructuary lessors.
A discussion of the other economic associations, of the commercial
establishment, of the bank, of the household as a community of consumers,
leads to similar results. The association in the commercial establishment
and in the bank, very much like that in the factory, consists of the owner
and the employees and servants, who are in a contractual relation with each
other. In addition to the contracts for wages, there are many contracts
concerning the execution of commissions and the performance of duties of
other kinds. The order of the commercial establishment and of the bank, to
a much greater extent than that of the factory, is arranged with a view to
dealings with the outside world. For this reason the contracts for services
entered into with the individual employees are connected with various
powers of agency such as do not exist in the case of the factory. The
material basis here appears in the juristic form of ownership or of right of
tenancy in the shop and the warehouses, the ownership of merchandise and
of sums of money. In addition to the members, the family and the
household, as associations for consumption, include the servants. The
material basis is the right of tenancy in the dwelling, and the right of
ownership in the articles of consumption that are to be found in kitchen,
cellar, and storeroom.
The family law within the family, the contract of service, of wages, and
of employment in the factory, in the workshop, in the commercial
establishment and in the bank, accomplish the same results everywhere that
are accomplished in the corporation by the articles of association; in the
state, in the commune, in the church, by the public law relation of service;
i.e. they bring about the inner order of the group of human beings that has
its being within these economic associations. This applies, however, not
only to the contract of service, of wages, and of employment, but also to all
other kinds of agreements, especially to the contract of barter, to contracts
for supplying things for use (contracts of lease, of usufruct, and of loan for
use), and to the contract for the extension of credit (Kreditvertrag). The
organizing power of all these contracts appears at once if one considers not
merely, as is usually done for purely practical juristic purposes, the two
parties that enter into the contract, but the whole group of persons who are
brought into relation with one another by means of the regular exchange of
goods arranged for by contract. All persons that are in this group constitute
an economic association, which produces the goods and offers the services
that are needed, and which thereby supplies its members with the goods and
services they require. In this association the sum total of contracts entered
into, or to be entered into, assigns to each individual his station, his position
of domination or of subjection — the latter, it is true, only in a very
rudimentary manner — and his functions. In commercial intercourse,
contracts, at least those concerning performances that can be delegated to
an assignee, are not being entered into as with definite persons, but as with
the whole group of persons who are in a mutual relation of exchange of
goods with each other. That is the significance of negotiability, of
endorsement, of clearance of accounts, and, in part, of negotiable paper
payable to bearer.
The social nature of the contract appears most clearly in credit
transactions. Every credit transaction is conditioned upon the existence of
stores of material goods in society. As long as mankind produces only so
much as it needs for the moment, as long as it lives from hand to mouth, as
it always does in primitive stages of development, there are no credit
transactions. Even in the stage of economic development in which only
natural produce is exchanged, the farmer cannot help his neighbor out with
seed corn unless he has harvested more than he requires for his immediate
needs; he must have a supply. In present-day society, supplies appear in the
form of money. A person who produces more economic goods than he
requires for his own needs disposes of them and receives money in
exchange. If he spends the money, he buys other goods in order to use
them; if he keeps the money, the value of the goods corresponding to the
sum of money must exist unconsumed somewhere in the economic system.
Extension of credit by the seller for the sale price implies that for the
present he will not secure other goods in the place of those sold, that this
value, for the time being, will remain unconsumed in society. Every
instance of extension of credit for a sum of money therefore is the exercise
of a right and power to determine what disposition is to be made of stores of
material goods that are in existence in one economic unit in favor of another
economic unit ; and every credit transaction imports a decision of the
question whether or not there is in existence in society a store of goods
corresponding to the presumable intention of the person who asks for credit;
the credit transaction, therefore, is always conditioned socially. In the most
highly developed national economic systems, everyone carries the money
that he does not use immediately to the bank. The greater part of the stores,
therefore, which the several economic units are laying by for the purposes
of the other economic units is accumulating in the banks in the form of
money. And since the banks have the right and power to determine what
disposition is to be made of these funds in favor of the individual economic
units, they actually obtain control over the production, the exchange, and
the consumption of goods in society. Their calculations more and more
become the basis for the genesis, the development, and the continued
existence of economic operations.
The contract, then, is the juristic form for the distribution and utilization
of the goods and personal abilities (services) that are in existence in society.
Not only the making of the contract, but also its content, is a result of social
interrelations. In connection with any one of the ordinary contracts of daily
life, it may suffice to raise the question which part of it is peculiar to this
specific contract and which part is determined by the social order and by the
organization of economic life and of commercial intercourse, in order to
satisfy ourselves of the extent to which the latter elements preponderate.
The fact that we are in a position today to satisfy our needs as to food,
clothing, and housing by means of the everyday contracts of sale and lease
and the contracts for work and labor, we owe to the other fact that in the
community in which we live commerce and production of goods have been
regulated sufficiently to make this manner of satisfying one's needs
possible. Assuredly five hundred years ago this was not possible anywhere,
and there is many a part of the world in which it is not possible today. One
cannot rent a dwelling in a mountain village where there are none to let; one
cannot provide oneself daily with food and clothing unless they are offered
for sale in the vicinity; and one cannot hire a man to perform services which
are not being rendered in exchange for wages in the form of money. This
applies, self-evidently, not only to the subject matter of the contract but to
every individual provision of the contract. If one examines a contract point
by point, one can easily find the social reason why it is worded exactly as it
is. It may be the fact that one of the parties occupies a position of social or
economic advantage over the other, or the condition of the market, or the
custom of the particular line of business. A person who has changed his
residence will notice at once that he is making contracts of an entirely
different nature from those that he made before. And though he be ever so
firmly resolved not to change his mode of living in any way, the world
round about him has changed, and he must conform to it even in his
contractual intent. In England, as a rule, one does not rent an apartment but
a whole house; one does not purchase one's daily supply of meat at the
butcher's, but has it delivered weekly at one's residence. Accordingly rental
contracts and contracts for the purchase of meat in England have a quite
different content from those on the Continent. The writer has intentionally
chosen contracts of the retail trade as illustrations, for in these the peculiar
features of each individual case appear most clearly It has often been shown
to what extent the contracts of the wholesale trade and of industry are
merely expressions of the general conditions of the market or of the special
needs of the particular economic sphere. Most written contracts are drawn
up according to printed forms, the content of which often is not made
known to the parties, for it is determined by society quite independently of
their individual wills. Nevertheless, it is true that the individualizing data
that are written into the form are also a result of social interrelations.
The individual contract is so far from being the resultant of the individual
wills of the parties that it was possible for the Austrian school of
economists to undertake to compute the most important part of the leading
contract involving exchange of goods, i.e. the purchase price, exclusively
on the basis of its social and economic presuppositions; and an eminent
economist, Walras, has made a successful attempt to reduce it to a
mathematical formula. Perhaps the results of all these investigations are
directly applicable to those contracts of exchange in which the counter-
performance is to be rendered in money: contracts of labor
(Arbeitsverträge1) and of lease (Mietverträge), and contracts for work
(Werkverträge) ; and though it will never be possible perhaps to reduce the
remainder of the content of the contract to a mathematical formula, this
must be attributed to the fact that the elements that enter into the
computation cannot be evaluated readily rather than to the irresolvability of
the problem in principle.
But to speak of the social nature of the contract is merely another way of
saying that it must serve the purposes of society. It exists in its innumerable
forms for the purpose of regulating the production, the exchange, and the
consumption of goods in human society, which is based on private
ownership of the soil, of the means of production, and of the goods for
consumption. On the material basis created by ownership, real rights, and,
perhaps, agreements to supply things for use (lease, usufruct, loan), the
contract creating a partnership or the contract which creates a mercantile
association and which is closely related to the former unites several
adventurers in a partnership or in a mercantile association; the contracts of
labor and of service keep the army of officials and laborers of a manor and
of workmen in a factory together; the various contracts of exchange, as
instrumentalities of commerce, direct the products of agriculture and of the
various handicrafts to the places where they are needed; the contract for the
extension of credit makes it possible for the various economic units to
obtain the capital that happens to be available for their purposes. In these
vast economic machines, ranged one above the other, i.e. in individual,
national, and world-wide economic undertakings, each human being that
lives and moves creatively within them amounts to a small spring, a wheel,
or a screw; and his position as well as his function within them is being
assigned to him, in the main, by the sum total of contracts he enters into.
1The Arbeitsvertrag, or Dienstvertrag, is the contract of labor in
general. The Dienstvertrag corresponds to the locaiio conductio
operarum of Roman law, and the Werkvertrag to the locatio
conductio operis.

There is not another branch of the law whose organizing significance

legal science has so thoroughly failed to recognize, which it has disfigured
so mercilessly, and abused so pitilessly, as the modern Continental law of
inheritance. If one reads a juristic exposition, searches a code, or studies a
collection of decisions, one is occasionally tempted to believe that the law
of inheritance is like a lottery; the part of the orphan boy is played by the
sections of the code through whose tortuous sentences a mysterious goddess
of fate distributes her gifts to the fortunate ones according to a decree that is
past finding out. Indeed the mischief began everywhere at a very early date.
The clear lines of the law of inheritance of the Twelve Tables and of the
German law-books, from which one can, even today, gather, almost without
any effort whatever, the social organization of the time, have lost all sense
and meaning, since the societies in which they were valid have vanished. A
new order has arisen meanwhile, but, strange to say, has been unable, either
in Rome or elsewhere, to find clear-cut and universally valid propositions
for a law of inheritance adapted to its needs. At the many points of
invasion, it has indeed, on several occasions, wrought grave destruction, but
has scarcely anywhere built up anything worth preserving. Accordingly
almost everything is left to the foresight of the individual. Declaration by
last will and testament, family ordinance, pactum et providentìa mai-orum,
marriage contract, parental division of inheritance, transfer of goods during
one's lifetime, agreement among the heirs out of court, must step into the
breach. Such is the chaos of the present-day law of inheritance ; a few
decaying fragments remaining from times long since past, on which some
incoherent patchwork has been placed quite thoughtlessly. The greater part
of the burden must be borne by the art of drafting legal documents, a branch
of legal science which has been taken notice of by but few, and appreciated
by none, and which has undertaken the difficult but fruitful task of making a
pathway through this confusion for the needs of life.
Our task here can only be to sketch with a few strokes of the pen the
great ever-present organizing basic problem of the law of inheritance of
every legal system. The head of the family, the soul of all its undertakings,
who had been furnishing bread and, in part, a sphere of activity to the
members of the family, has departed this life. How should his work be
continued? What disposition is to be made of all those things to which his
spirit gave life and which his strong arm maintained? Every economic
undertaking, the farm, the factory, the mercantile house, and the mine, is an
association within which not only the human beings but also the material
things are ordered and regulated. In it, all persons and all things are
combined into a unified whole in the manner in which they can best serve
the purposes of the economic undertaking. Rent asunder or divided into
their "conceptual" parts, they at most retain the value of the material that the
fragments consist of, and uncounted wealth is lost for all time not only to
the surviving members of the family, but to the whole national economic
system. Apart from the jurists, perhaps no one who has given thought to
these things has failed to observe that this is a matter of solicitude to every
strong and able man who, after a life of achievement, is thinking of death.
What is to be done in order to prevent disintegration, to put the right man in
the right place in every economic organization which the deceased has
created, and to assign the right tasks to him? Unless one has had actual
experience in such matters, one can form no conception of what goes on
after the death of such a man when his affairs fall into the hands of the
lawyers; of the way everything works at cross purposes with him, the whole
juristic πολυττραγματβία1 of the codes, the attorneys, the notaries, and the
courts; of the sedulous determination with which his intentions are being
defeated and weapons are being supplied to folly and malice for a work of
destruction. But all this is infinitesimal when compared with the infinitely
more thorough work that must be done when there is no last will, or,
indeed, when the custody of wards committed to the charge of the
authorities gives the latter greater powers. Of course, where the past has
exercised forethought, as shown in the law of inheritance of the ruling
families, of the nobility, of the peasantry, it is true that occasionally, in spite
of the violent resistance of the lawyers, in many an instance economic
undertakings have been preserved from destruction, or, where destruction
has already taken place, have been rebuilt. But these usually are like
saplings that have no vitality whatsoever; much more frequently they are
surviving fragments that are past hope. Jurists have become conscious, only
vaguely however, of the duty to create a law of inheritance that takes into
account the multiform and peculiar requirements of modern life. But at the
present time the necessary foundation has not yet been laid by anyone. The
beginning would have to be made by juristic science. First of all it would be
necessary to investigate all the living law that is contained in testamentary
provisions, in parental divisions of inheritance, in transfers of property
during the lifetime of the donors, in settlements out of court by the heirs,
and to discover its guiding principles. One is most likely to find something
of this nature in the Swiss Civil Code.
Inasmuch as the law is an inner order of the social associations, its
content is determined with absolute necessity by the structure of these
associations and by their method of conducting their economic enterprises.
Every social and economic change causes a change in the law, and it is
impossible to change the legal bases of society and of economic life without
bringing about a corresponding change in the law. If the changes in the law
are arbitrary and of such a nature that the economic institutions cannot
adapt themselves to them, the order of the latter is destro)^ed without
compensation. The farmer is able to produce on his farm the goods that he
requires in order to supply not only himself but also the other classes of
society with raw materials only so long as the legal order guarantees to him,
in a great measure at least, the returns of his labor. If therefore a class which
is all-powerful in the state should force upon the farmer a legal order which
compels him to give up all that he has harvested, the farm would be
deserted, and the powerful in the state would soon be without the means of
preserving the state and of maintaining their own economic position. Even
foreign conquerors, therefore, have been content with reducing the free
farmers to a state of serfdom or of making them their tenants, but have
always left them so much of the returns of their labor as they absolutely
needed for the maintenance of their economic activity.
 1 I.e. bustling activity.

The entire private law therefore, inasmuch as it has an organizing

content, is social law in precisely the same sense as the law of the state and
the law of corporations. It is always concerned with the human associations
: it determines the position of the individual in the group of working human
beings and the relation of the group to its tools. Like Staatsrecht (public law
in the narrow sense) and the law of corporations, private law primarily
creates associations, not individual rights and duties; and though individual
spheres (Individualb er eiche) arise for the individual in the organized
community, this is a reflex effect of organization, in public law no less than
in private law. The fact that in this case the association is not based on a
constitution or on articles of association, but on the law of things and of
contract and on the order of the family, must not hide this great truth from
us, for in this case the law of things and of contract and the order of the
family serve the same purpose that is accomplished elsewhere by a
constitution or by articles of association. A hermit may have a truly
"individual sphere" not only in the juristic but also in the sociological and
economic sense, but a man living among men cannot. One may have
individual rights in economically insignificant articles of use and
consumption, e.g. in clothing, in jewelry, in a portfolio, or in stationery, but
even in the matter of the furnishings of a dwelling, except in the case of
single men or women, there is the common use by the family. And even the
true individual rights are social rights, to the same extent at least as is the
legal claim of the member of the commune to participation in the use of the
pasture belonging to the commune or of the member of a reading club to
participation in the use of the books and periodicals. In conceding to the
individual the possession of these things and permitting him to dispose of
them according to his pleasure, society regulates their use and consumption;
ownership of the goods which it concedes to the individual is merely a
result of this social order. The individual enjoys this ownership as a member
of an ordered community which respects private ownership and protects it
without, in the case of certain things, concerning itself about the way in
which they are being utilized. Society could regulate individual use and
consumption in a manner quite different from, and much more detailed
than, the manner in which it does this today, and we shall be convinced of
this at a much earlier date perhaps than we should like as soon as the
exhaustion of the resources of nature, which is even now threatening, shall
have drawn much nearer. Whenever society actually accords to the
individual an individual sphere, it refrains, on principle, from any and all
interference. The inner life of the adult man, for instance, is his individual
sphere; it lies within the domain of art, of religion, of philosophy, but not of
law or of the extra-legal social norms.
The jurai associations of human society therefore are, in the main, the
following: the state with its courts and magistracies; the family, and the
other bodies, associations, and communities with or without juristic
personality; associations created by means of contract and inheritance, and,
in particular, national and world-wide economic systems. Possession and
ownership, which for the purposes of sociological discussions might be
treated as, to a certain extent, convertible terms, real rights and claims based
on obligation, create the inner order of these associations. This is the part
that law plays in the ordering of the political, intellectual, economic, and
social life of present-day society. This by no means exhausts the entire
material of the law, but it is the part of the law which has power to regulate
and order. Apart from this, there is another part of the law, which does not
directly regulate and order the associations, but only protects them against
attacks. It is connected with the social associations as a sort of secondary
order; it maintains and strengthens them, but does not give them shape or
form. This applies to the law of procedure before the courts and other
tribunals; for it is merely a part of the order of the tribunals which have
been created for the protection of social institutions; it is without direct
influence upon society. It applies also to penal law, for the latter creates no
social institutions; it merely protects goods that are already in existence in
society and institutions that have already been established. And, lastly, it
applies also to all those provisions of the material private law that concern
only the protection afforded by law; like penal law, they create neither
goods nor social institutions; they but regulate the already existing
protection afforded by the courts and other tribunals. These norms did not
come into being within the social associations themselves as the inner order
of the latter, but arose in juristic law or in the law created by the state. All
rights of monopoly, especially patent rights and copyrights, are created by
the state. They consist in a command, addressed to all who are subjected to
the will of the state, except the person who holds the right, to refrain from
engaging in any activity in a certain sphere. Norms of similar nature have
occasionally arisen in juristic law also.
And now we must point out the significance, but slightly considered
hitherto, of the extra-legal norms for the inner ordering of the associations.
The statement that legal institutions are based exclusively on legal norms is
not true. Morality, religion, ethical custom, decorum, tact, even etiquette
and fashion, do not order the extra-legal relations only; they also affect the
legal sphere at every turn. Not a single one of the jurai associations could
maintain its existence solely by means of legal norms; all of them, at all
times, require the aid of extra-legal norms which increase or eke out their
force. Nothing short of the cooperation of the social norms of every
description can offer a complete picture of the social mechanism.
A glance at what is going on round about us every day will serve to
convince us of the truth of these statements. There is no state in which a
government would be possible for any length of time which relies solely on
the law. Even Macchiavelli urges his Principe to observe, outwardly at
least, certain precepts of morality, religion, ethical custom and honor,
decorum and tact. No administrative tribunal would be able to function if it
were guided solely by rules of law; and for a government official it is
positively a matter of official duty in his dealings with the public as well as
with his colleagues to observe not only the precepts of law but also those of
morality, ethical custom, honor, decorum, and tact. Certainly there is no
institution of public life in which so many things are regulated by
organizing legal norms as the army; and even this highly developed law
does not suffice. It is well known how highly the army esteems the
organizing value of morality, ethical custom, religion, honor, decorum, tact;
nay, even of etiquette and of fashion. Indeed examples taken from the past
show that an army which knows only legal norms can become a mob which
is beyond the pale of society, and which is controlled solely by means of
barbaric discipline. The term parliamentary courtesy, which undoubtedly is
known to all civilized nations, sufficiently demonstrates the rôle which the
extra-legal norms play in public representative bodies. And it is in this
connection that they first became the object of scientific investigation as
Konventionalregeln (rules arising from convention or agreement).
Is it otherwise in family and property law? A family the members of
which reciprocally insist upon their legal rights has already disintegrated in
most cases as a social and economic association. If they appeal to the judge,
they have arrived at the point where they part company. The prohibition of
the abusive exercise of legal rights (Chicane) shows that even real rights
may not be exercised without giving heed to certain extra-legal norms; and
where land or dwellings adjoin, there is the further requirement of
customary observance of the dictates of morality, ethical custom, decorum,
tact, and etiquette. Contracts must be interpreted and performed according
to the requirements of good faith and commercial custom. That is to say
that many other things must be considered besides the rule of law and the
meaning and language of the contract. Nevertheless life demands a great
deal more than even the most liberal-minded jurist would concede on the
basis of good faith and business custom. There is perhaps no other
contractual relation which is so thoroughly stripped of extra-legal content as
is the contract of ordinary lease in a large city; nevertheless even in this
relation the "good landlord" and "the desirable tenant" are valued highly.
These two expressions are in common use in Vienna; the "thing itself/5
doubtless, is in existence everywhere. In the case of a usufructuary lease,
however, the personal characteristics of the parties to the contract often are
of even greater importance than the content of the agreement. No man of
experience in business affairs will enter into a usufructuary lease without
having made the most searching inquiry concerning the personal
characteristics of the other party. He does this in order to make sure that he
is justified in assuming that the other party will observe the non-legal norms
that are customary in the relation of lessor and lessee. The organizing
significance of the extra-legal norms appears with particular clearness in the
contract for services and wages. On the part of the entrepreneur or of his
authorized representative, a certain firm insistence upon his legal right,
together with an instinct for morality, ethical custom, decorum, and tact
constitutes the principal part of the aptitude which is usually called a talent
for organization; if this is lacking, a contract is without value not only for
him but also for the workmen and employees. On the other hand an
entrepreneur could not work with people who recognize only the legal point
of view. Moreover such people could not get on with one another; the
undertaking would be disorganized. The influence of extra-legal norms was
recognized first and most clearly in the case of contracts for the extension
of credit. They mark the dividing line between morally unexceptionable
investment of capital and usury, which is always proscribed morally, and
usually also legally. Although it is said that mercantile strictness should
always obtain in mercantile intercourse, a merchant who is ever ready to
insist on the letter of the law will quickly alienate his customers and those
with whom he has business connections. Business custom, business honor,
and business decorum constitute elements of commercial legal life. The
content of these terms may be described as fair dealing (Kulanz). At a time
in which the prevailing sexual morality is being violently attacked even by
some choice spirits, it may not be altogether superfluous to call to mind that
the existing order of the family is based upon it. If there is any ulterior
motive behind these often well directed attacks, it can only be the thought
that they are preparing the way for an entirely new order of the family. It
would be absurd to believe that the family in its present form can be
maintained if the present conception of sexual morality, without which it
cannot exist, is given up.
We may say therefore that the law is the order of state or political, social,
intellectual, and economic life, but it is not the only order. There are many
others which are of equal value, and which, taken together, perhaps, are of
much greater effectiveness. Indeed life would become a hell if it were
regulated by law alone. It is true, the extra-legal norms are not being
observed inviolably, but this is equally true of the legal norms. The order of
the social machine is continually being interfered with. And though it does
its work with much creaking and groaning, the important thing is that it
shall continue to function. To this extent, at least, its norms must be
observed; and to this extent they are being observed in every country in
which there is a tolerably well ordered life. And lastly, a breach of the
existing order often is more than a merely local or temporary disorder; not
infrequently it indicates the beginning of a new stage of development.
Let us for a moment compare our present-day society and its legal order
with a socialistic society as various socialists have so often pictured it.
Both, as it were, may be compared to enormous hoisting machines, by
means of which humanity is to be supplied with the goods it requires in
order to maintain its life and to develop its powers. In a socialistic society,
as well as in our present-day society, there will be farms, mines, and
factories, in which goods are being produced; there will be means of
transportation like our railroads, steamboats, and vehicles, which deliver
these goods at large magazines and storehouses where they will have to be
stored, as is done in our warehouses and shops, until there is a demand for
them; finally there will have to be smaller undertakings in which goods are
being prepared for immediate consumption, as is being done today in the
workshop of the mechanic and also in the kitchen and in housekeeping
generally. In a socialistic society, as well as in our present-day society,
untold millions of busy hands will be stirring on the farms, in the mines, the
factories, the agencies of transportation, the warehouses and storehouses, in
order to supply the goods which humanity requires, to transport them to the
places where they are needed, and to distribute them. But above them all
will hover an all-knowing and all-overseeing official body which makes an
advance estimate of the total requirement, orders its production, directs the
workman to the places where the work is to be done, and orders the
products to be sent where they are needed. Our present-day society indeed
has no official body of this kind. But the task which, in a socialistic society,
is to be performed by this omnipotent board of superhuman stature is
performed in our present-day society by the law acting automatically and
with such simple instrumentalities as the family order, possession, contract,
and the law and right of inheritance. The owners, as entrepreneurs, provide
the establishments at which goods are being produced, the means of
transportation, the warehouses, and the salerooms; they assemble the
workers by means of contracts of service and wages, and secure the
necessary capital by means of contracts for the extension of credit. The
merchants estimate in advance how much merchandise the human race will
require, and, by means of agreements of exchange, direct it to the places
where it is needed. And they accomplish all of this, it is true, not without a
considerable amount of error, friction, and opposition, but certainly with
much less friction and expenditure of energy than the most efficient purely
bureaucratic board could accomplish it. Possession, ownership, real rights,
contract, inheritance, and, for purpose of consumption, the family
accomplish almost automatically in our society those things for which a
socialistic society would require a complicated network of bureaucratic
boards.
IV Social and State Sanction of the
Norms

A DOCTRINE which has a great vogue at the present time, and which derives
from various sources, seeks to explain the origin of the legal norms and,
occasionally, also of the other social norms, especially those of morality, by
the power of the dominant groups in society, which have established them,
and are enforcing them in their own interest. But power over men can be
maintained and exercised permanently only by uniting them in associations
and prescribing rules of conduct for them within the association, i.e. by
organizing them. In this sense the doctrine referred to would be in harmony
with that taught here, according to which the social norms are but the order
of the human associations. But the statement that the dominant groups of
the associations set up the norms of conduct for the other members of their
association solely in their own interest is meaningless or incorrect. Man
always acts in his own interest, and he who is able to state exhaustively the
interests which motivate human conduct is able to solve not only the
question of the sanction of the norms but practically all questions of social
science. On the other hand, it is quite incorrect to say that the interests of
the dominant groups in the associations conflict with those of the whole
association or with those of the other members. To a certain extent the
interests of the dominant groups must coincide with the interests of the
whole association, or at least with those of the majority of the members of
the association; for if this were not so, the other members would not obey
the norms established by the dominant group. It is unlikely that one could
ever gain the support of a great number of men for any project unless every
individual had at least a vague idea that the project, if realized, would
redound to the advantage of all. And this idea is never altogether without
foundation. The order of an association, abstractly considered, may be a
poor one, may perhaps afford undue advantages to its leaders, may impose
heavy burdens upon the others, but it is always better than no order at all.
And the fact that there is no better order in existence is always a cogent
proof that the association, in its given spiritual and moral condition, and in
view of the economic supplies it has had at its disposal, has been unable to
create a better order.
The question then is by what means do the social associations induce
their individual members to obey the norms of the association. There is,
certainly, nothing more untenable psychologically than the idea, which has
such a vogue, that men refrain from laying violent hands upon other men's
property only because they fear the criminal law; that they pay their debts
only because they fear that their goods will be levied on. Even at times
when penal laws lose their force — as is often the case temporarily in time
of war or of domestic disorder — it is always only a very small portion of
the population that participates in murder, robbery, theft, and plundering;
and in times of tranquillity most men perform the obligations they have
assumed without thinking of levy of execution. From this it does not indeed
follow that the great majority of men conform to the norms because they are
prompted by an inner impulse; but it does follow that fear of punishment or
of levy of execution is not the only consideration that prompts them to do
so, quite apart from the fact that there is a sufficiently large number of
social norms which threaten the transgressor neither with punishment nor
with levy of execution, but which nevertheless are not ineffectual.
Sanction is not a peculiarity of the legal norms. The norms of ethical
custom, morality, religion, tact, decorum, etiquette, and fashion would be
quite meaningless if they did not exercise a certain amount of coercion.
They too constitute the order of the human associations, and it is their
specific function to coerce the individual members of the association to
submit to the order. All compulsion exercised by the norms is based upon
the fact that the individual is never actually an isolated individual; he is
enrolled, placed, embedded, wedged, into so many associations that
existence outside of these would be unendurable, often even impossible, to
him. We are speaking now of basic facts of the inner, the emotional, life of
man. The psychic needs of ordinary common- place creatures, who
everywhere constitute the compact majority, must indeed be appraised none
too highly; nevertheless there is no one to whom country, native land,
religious communion, family, friends, social relations, political party, are
mere words. Most people perhaps will set little store by one or the other of
these, but doubtless there would be very few who do not cling with all their
hearts and minds to one group at least. It is within his circle that each man
seeks aid in distress, comfort in misfortune, moral support, social life,
recognition, respect, honor. In the last analysis it is his group that supplies
him with everything that he sets store by in life. But the importance of these
associations is not limited to these moral, intangible considerations, for on
them depends success in one’s profession and business. On the other hand,
one's profession and business draw one into a number of professional and
business associations.
All of us then are living within numberless, more or less compactly,
occasionally quite loosely, organized associations, and our fate in life will,
in the main, be conditioned by the kind of posi™ tion we are able to
achieve within them. It is clear that in this matter there must be a reciprocity
of services rendered. It is impossible for the associations to offer something
to each one of its members unless each individual is at the same time a
giver» And in fact all these associations — whether they are organized or
unorganized, and whether they are called country, home, residence,
religious communion, family, circle of friends, social life, political party,
industrial association, or good will of a business — make certain demands
in exchange for that which they give; and the social norms which prevail in
these communities are nothing more than the universally valid precipitate of
the claims which the latter make upon the individual. He therefore who is in
need of the support of the circle to which he belongs — as who is not?—
does wisely if he conforms, at least in a general way, to its norms. He who
refuses to conform to them must face the fact that his conduct will loosen
the bonds of solidarity with his own circle. He who persistently refuses
obedience has himself loosened the bonds which until now have united him
with his associates. He will gradually be deserted, avoided, excluded. Here
then, in the social association, is the source of the coercive power, the
sanction, of all social norms, of law no more than of morality, ethical
custom, religion, honor, decorum, etiquette, fashion, at least as far as the
outward observance of the precepts is concerned. Especially as to etiquette
and fashion, Jhering, many years ago, in two articles published in the Berlin
Gegenwart and entitled, "Das soziale Motiv der Mode" (The Social Motive
of Fashion) and " Das soziale Motiv der Tracht” (The Social Motive of
Dress), showed that this is their very nature. These articles, with some
omissions and changes, were subsequently incorporated in the author's
Zweck im Rechi. Etiquette and fashion are the norms of a privileged social
circle; they are the external indicia of belonging. In order to be received and
enjoy the advantages of being a member, one must know and observe them,
A man therefore conducts himself according to law, chiefly because this
is made imperative by his social relations. In this respect the legal norm
does not differ from the other norms. The state is not the only association
that exercises coercion ; there is an untold number of associations in society
that exercise it much more forcibly than the state. One of the most vigorous
of these associations is the family. Modern legislation more and more does
away with the possibility of execution of a decree for the restitution of
conjugal relations. But even if the family law were abolished in its entirety,
families would not bear an aspect much different from that which they bear
today; for fortunately the family law requires state sanction only in rare
instances. If the workman, the employee, the office-holder, the military
officer, do not perform their contractual and official duties from a sense of
duty, they do so because they wish to keep their positions, perhaps because
they wish to rise to better ones. The physician, the attorney, the mechanic,
the merchant, are interested in exact performance of their contracts because
they wish to satisfy their patients, clients, and customers and to increase the
number of the latter; at any rate, because they wish to establish or
strengthen their credit. Penalty and levy of execution is the last thing that
enters their minds. There are large mercantile houses which, as a matter of
principle, do not bring suit on a matter arising in their commercial relations,
and as a rule do not permit themselves to be sued, but satisfy even an
unfounded claim in full. They meet refusal of payment and frivolous
demands by severing commercial relations. To this extent their own power
is sufficient unto them; to this extent they can dispense with the aid of the
courts and with legal protection. Likewise persons of superior social
position avoid litigation of controversies, e.g. with servants, employees,
workmen, mechanics. Their social and economic influence affords
sufficient protection from imposition. For decades the English trade unions
have declined all recognition by the state, thereby consciously and
intentionally foregoing legal protection. Manifestly they did not fare badly
by doing so. Modern trusts and cartels have at their disposal a complete
system of means of coercion, by which they are enabled, without ever
calling upon the power of the state or upon the courts, to enforce their just,
as well as their often altogether unjustifiable, demands against everyone
who happens to come within their sphere of power. In the course of the
investigation of the iron cartel instituted by the Austrian government one of
the chiefs of the cartel, Director Kestranek, made the statement that it was a
matter of minor importance to him whether the iron cartel was legally
efficacious or not, since the agreements, whether legally valid or not, were
being kept as if they were legally valid. He said: "The iron-masters are men
who keep agreements, even if they have no legal validity.” He might have
added that the individual ironmaster can be coerced by means as efficacious
as any that are at the disposal of the courts of the state. Likewise legally
binding force of trade-union agreements would be without great
significance to the working-men since they are being kept for all that as if
they were legally binding, chiefly for the same reasons for which the
agreements of the iron magnates are being kept. Both friend and foe admire
the compact structure which is seen everywhere in the Catholic Church, in
its legal order no less than in other respects. Nevertheless the ecclesiastical
law is enforced only to a very small extent by the state ; and where
separation of church and state is in effect, not at all. It rests, as a whole,
chiefly on a social basis. In France, since the enactment of the law of
separation, church taxes are being paid conscientiously even by non-
believing Catholics. Mothnagel, of whose services science was deprived by
his untimely death, devoted the highly interesting first-fruits of his juristic
labor to the question of enforcement by social Interessengruppen (groups
having common interests).
There is nothing that is better adapted to throw light upon what has just
been said than a brief consideration of modern strikes. For years the factory
worker has most conscientiously been performing all obligations arising
from the contract for work and wages. What has impelled him to do this? If
it is not his sense of duty, it is fear of dismissal and unemployment, the
prospect of getting on better in the factory in which he is working, or of the
respect of his associates and of his superiors. Compared with this, law-suit
and compulsory execution are to him little more than mere words ; for he
has nothing that he can call his own but the strength of his hands. Now he
joins the newly organized union, which passes a resolution that its members
must not work with non-union workmen. It is true, the law which is being
applied in the courts of the state and in the other tribunals denies to this
norm all legal efficacy; but the workman will accept it without objection,
for it was created by an association with which he is most intimately
connected. And when his associates lay down their tools in obedience to
this resolution, he does not hesitate for one moment to join them, to break
the contract which he has faithfully kept for years, and to expose himself
and his family to the perils of unemployment. Adversity and destitution,
which follow dismissal, have lost all their terrors for him; the force of the
contractual norm, which is an enforceable legal norm, has been completely
shattered by another norm. The strike has divided the entrepreneurs and the
workmen in this branch of industry into two belligerent armies; and in each
camp the commands of the leaders are being blindly obeyed although
doubtless they are legally unenforceable. Ultimately peace is brought about,
i.e. a wage agreement. Whether this can be sued upon is a question that has,
as is well known, generally been answered in the negative, and it is unlikely
that, according to existing law, a suit on it can be maintained in court. But
that is not the important consideration. It will nevertheless be kept in-
violate by both parties, even by entrepreneurs who are not parties to it as
well as by workmen who may enter the employment long after the
agreement has been made. For now the wage-scale agreement is the basis
for the order of the work in this branch of business. And though the parties
may not be satisfied with the agreement, they know that even a bad order is
better than continued warfare.
There are two forms of sanction which are preponderantly, though not
exclusively, peculiar to the legal norms; to wit penalty and compulsory
execution.1 What is the significance of these two forms? Do they, as is
usually assumed, impart to the legal norm such efficacy as it has? If the law
were without sanction, or to put it accurately, without the coercion effected
by penalty and compulsory execution, would it really be merely a fire that
does not burn as Jhering thinks? (There are, incidentally, many kinds of fire
that do not burn.) To answer these questions exhaustively would probably
require a detailed study of the coercive effect of penalty and of compulsory
execution; but a fleeting glance at life will suffice to convince us that both
are of importance in a very limited measure and in certain situations only. If
we exclude the cases in which appeal is made to the courts because the
question of fact or of law is in dispute, in which it is not a matter of
enforcing law and right by coercion but of showing what is law and right in
the given case, it will appear that the coercive force of penalty and of
compulsory execution, as mass phenomena at least — and only these are of
moment here — is effective only in a very limited measure and in so far as,
for some reason or other, the other sanctions of the social organizations fail
to function.
As to penalty, its true significance is shown by penal statistics. It is true,
penal offenses occur in all social circles. But if we disregard persons of
inferior social value who are not amenable to social restraints; if we leave
out of consideration a few misdeeds as to which social influences are less
effective because these misdeeds as such do not affect social position
(insult, duel, political crime, and, among a large part of the German
peasantry, bodily injury) ; if we consider not individual cases, but the great
bulk of the daily work done by the criminal courts, we shall see that
criminal law is directed almost exclusively against those whom descent,
economic distress, neglected education or moral degradation has excluded
from the human associations. It is only in the case of these outcasts that the
widest association, which includes even them, i.e. the state, steps in with its
power to punish. The state as an organ of society protects society against
those that are outside the pale of society. The measure of its success is
shown by its experience extending over thousands of years. The conviction
is steadily gaining ground that the only serious weapon against crime is the
possibility of regaining the criminal for human society and thus again
subjecting him to social restraint.
1 The civil law equivalent of levy of execution.

Is the situation otherwise in case of compulsory execution? The writer

has already pointed out that in the case of claims arising from contracts of
service, wages, and labor it plays a very insignificant part. It is of social
significance only in the case of obligations to pay money, i.e. in but a small
fraction of legal life. At this point it may suffice to raise the question
whether the agreements from which obligations to pay money arise are
being entered into with an eye to compulsory execution. For when the
creditor extends credit he doubtless takes into consideration everything that
might prompt the debtor to make repayment. A single glance, however, at
the organization of credit shows of what small significance compulsory
execution is in business which is done on credit. We are fully justified in
saying that in a developed economic system a person may not safely be
granted credit if the creditor has to take into consideration the possibility of
the necessity of compulsory execution. Whether or not credit can safely be
extended is determined in general by means of a thorough social and
psychological investigation of the person who is asking for credit. In a case
of ordinary extension of credit the actual basis for the investigation is
furnished by experience in the affairs of everyday life ; in case of
mercantile credit, by a widely ramified organization. If this investigation
shows that litigation or compulsory execution might result, the question
whether credit can safely be extended is answered in the negative.
The security of credit depends upon the wealth, the social position , the
personal relations, and the honesty of the person asking for credit. All of
these things must warrant the assumption that he will always bear in mind
and fulfil his obligations. The most imperfectly organized form of extension
of credit, i.e. the usurious credit, which seeks to guard against loss by
exacting excessive interest, is the very one that relies most strongly on the
debtor's being prompted to pay by his sense of duty or by his position in
life. All these things indicate the importance of the social associations
which credit presupposes. And if, as may happen at any time, credit is
extended to a stranger, this can be accounted for only by the fact that
somehow the bearing of the borrower has created the impression that his
position, his situation, his wealth, warrant the assumption that he is solvent.
In Rome, where every sale, because of the liabilities arising from the
transaction, was in fact a credit transaction, one did not, as the sources
show, readily buy from a person one did not know.
To say then that credit can safely be extended is not to make a prediction
as to the result of compulsory execution, It is rather to make a statement as
to the social relations upon which the creditor relies when he extends credit.
One does not extend credit to a person whose position does not warrant the
assumption that the obligation will be performed ; one deals with him for
cash or in reliance upon security given, e.g. a pledge. Transactions for cash
or transactions secured by a pledge however are transfers of possession, and
therefore not only do not presuppose compulsory execution but do not
presuppose so much as a legal order. One would enter into a cash or a
pledge transaction even with savages who have never before seen a white
man, provided one were protected, by an escort for instance, against
violence on the part of the savages. In civilized society, possession is
rendered sufficiently secure by the inner order of the associations; and,
ultimately, it is protected also by the state, the most inclusive association
known to society, as an organ of society. Transactions for cash or secured
by a pledge can be entered into with anyone because they are transactions
that involve only a transfer of possession, and therefore do not presuppose
compulsory execution, but are designed to render the latter superfluous. The
right of pledge of the lessor therefore has the beneficial effect that anyone
can lease a dwelling without reference to his credit rating. If the lessor does
not get his rent, he can take possession of the chattels which the lessee has
brought into the house, and is protected by the community in doing so. In
England, where the right of pledge of the lessor does not exist, references
are required in case of lease which show that credit can safely be extended
to the lessee. Only the innkeeper, who has no option as to the customer with
whom he will deal, has a legal right of pledge (lien) on all of the goods
which the guest has brought into the inn. Here again security based on
possession takes the place of the organization of credit in civilized society.
To consider the right of compulsory execution, as jurists often do, as the
basis of the legal order involves a tremendous over-estimation of its scope.
Limited in its effectiveness to a small fraction of legal life, i.e. the
obligation to pay money, it is secondary even within this sphere to the force
of the social interrelations which urge us to perform our obligations. There
can be no doubt that the creditor usually makes a correct calculation as to
whether credit may safely be granted to the debtor, i.e. that the
considerations which prompt him to extend credit coincide with those that
prompt the debtor to meet his obligations. In fact, a person to whom his
personal reputation, his social standing, his business relations, in short his
credit, mean anything surely will never even think of hazarding a
compulsory execution. All these things mean too much to him to endanger
them for the sake of a momentary advantage. The gambler pays his
unenforceable gambling debts under a merely social compulsion, and the
average man is at least as sensitive to social sanction as the average
gambler. Even unenforceable debts arising from stock-exchange differences
are usually being paid, although in these cases the social and economic
consequences of failure to do so are much less than in case of true business
debts. The generally known ineffectiveness of the usury laws demonstrates
that the persons from whom usury is being exacted can be compelled to pay
even without compulsory execution. The reports of mercantile credit asso-
dations show that the well known purely economic means of coercion, to
wit boycott and black list, are effective even where compulsory execution
has remained altogether fruitless. Noth-nagel, in the book referred to above,
mentions older material, which however is still valuable. Compulsory
execution, like penalty, we may therefore say, exists only for those that have
come down in the world and for those whom society has cast out. It is
effective against the reckless borrower, the cheat, the bankrupt, and against
him who has become insolvent through misfortune. However much of a
burden these classes of borrowers may be on business life, they are too
insignificant to warrant the statement that the value of the legal order
depends upon the protection it affords against such elements.
On the w^hole the effect of the coercive order of the state is limited to
protection of one’s person, of one's possession, and of claims against those
who are outside of the pale of society. Whatsoever else the state may do in
order to maintain the law is of much less significance, and one might
reasonably maintain that society would not go to pieces even if the state
should exercise no coercion whatever. After all, commerce was able to eke
out a precarious existence even in the ancient Polish republic; and it pursues
its way even in the Orient today, although the corrupt and extermely
incompetent administration of justice there scarcely deserves the name.
Before the judicial reform of the thirties of the last century, the benefits of
the expensive and cumbersome English civil procedure did not extend far
beyond the well-to-do upper crust of English society. This however did not
prevent the English from becoming a rich and highly civilized nation.
More™ over legal protection in Germany and Austria under the older
procedure was not much more effective. Under such circumstances one
extends credit more sparingly, or protects oneself by carefully thought-out
safeguards; the rest must be done by the social associations. Goethe, who
did not fail to observe that the Imperial Supreme Court had extremely little
influence upon the administration of justice, quite correctly pointed out the
things that are really important. It is a more serious matter if the
administration of criminal justice breaks down also. But Hungary, southern
Italy, and Spain prove that a nation can survive centuries of brigandage.
Not only in primitive times, when society as a whole consisted chiefly of
small associations, but much later, even at the present time, there is no lack
of instances of societies maintained exclusively by the inner order of its
associations. Wherever the power of the state is extremely feeble, there is
no order but this. And indeed on this order, societies have been built up in
Europe even in modern times, e.g. that of the former Polish Republic, of
Hungary in the seventeenth and eighteenth centuries, of the kingdom of
Naples, of Sicily. This is true, in part, of the Orient also. In the Middle
Ages, the weakness of the state brought about special associations for legal
protection and caused men to resort to commendation.1 In modern times
similar formations can be found, e.g. the confederations of the former
Polish Republic, the Camorra and the Maffia in Naples and Sicily. In
conclusion, the studies of Noeldeke on the Arabs of the sixth century may
be referred to in order to prove that the existence of a great nation, nay,
what is more, of a large and opulent commercial city, may be maintained
solely by the inner strength of its associations. "Here it is important to note
that among the Arabs there are no traces of the formation of states. The
clan, the tribe, are moral units of great authority, but without any power of
coercion. He who refuses to take part in an undertaking of the tribe or of the
family may incur derision, even contempt, but there is no means of coercing
him. Only the vengeance of blood guarantees a certain measure of security.
If any other crime can be punished by any means other than private
vengeance, I have no knowledge of that fact. To rob a member of one's tribe
or a guest was disgraceful, but the robbed had no other means of redress
than to try to get back that of which he had been robbed. This was the
prevailing state of affairs not only among the Bedouins, but also in the
cities; even in Mecca. It is almost incredible that a city whose inhabitants
were engaged extensively in commerce, who were very much superior
mentally to the Bedouins, and who soon after successfully undertook to
conquer and rule one half of the world, had no actual government. But we
must always emphasize the fact that the authority of the most prominent
citizens offsets this defect fairly well. After the heads of the clan — who
exercised only a moral authority over the latter — had agreed upon an
undertaking, an individual or an individual family would not be likely to
dare to refuse to cooperate; this has happened however." From the last
remark of Noeldeke's, it follows that only the extraordinarily close cohesion
of the Arabic clans, which continues down to the present time, and the
support which each individual found among his own people have made the
existence of such a society possible.
 1The cession by a freeman of himself and of his lands to the
personal protection of a feudal lord.

A study of the beginnings of human society discloses the fact. that the
force of the legal norm, which at the time is as yet un-differentiated from
the norm of religion, of morals, and of ethical custom, is based exclusively
or almost exclusively on the influence exerted upon every individual by the
members of the narrower association of which he is a member. Generally
everyone conforms without making objection to the order of the family or
of the clan. True legal or penal coercion is scarcely ever employed against a
fellow-member of a narrower association. Obstinate resistance is met with
exclusion from the association, which is considered the greatest misfortune
that can befall a man. Note the Homeric words αφρήτωρ, άνΐστωΐ^
άθέμίστος.1 Enforcement of one's rights by violence as well as defense by
violence are resorted to only against outsiders, as to whom the norms of the
association are ineffectual. It is an error to believe that we have advanced
far beyond such a state of affairs. Even today, just as in the beginnings of
legal development, the force of law is based on the silent, uninterrupted
sway of the associations which embrace the individual. From this point of
view, the law appears even today to be related, in its essential nature, to the
other social norms, i.e. to the norms of religion, morals, ethical custom,
decorum, tact, etiquette, fashion. Even today exclusion from the community
(the church, the association, society (aus der Gesellschaft) in the social as
well as in the juristic sense), withdrawal of credit, loss of position or of
custom, is the most efficacious means of combating insubordination. Even
today punishment and compulsory execution, which the jurist is
accustomed to look upon as the basis of all legal order, are merely the
extreme means of combat against those that have been excluded from the
associations, just as the feud was the extreme means of combat against a
member of a strange community.
1 I.e. without brotherhood, without hearth and home, without law.

Nevertheless the fact that the force of the social norms is so universally
traced to the coercive power of the state requires explanation. Every false
doctrine must, in the nature of things, be based on a correct observation of
some sort or other. All our perceptions and sensations are always true ; only
the conclusions we draw from them can be false. In the first place, the
validity of only a part of the law is maintained by the coercive power of the
state. This part is neither very great nor very important, but it is the part
which is of greatest interest to the jurist; because the latter is not concerned
until coercion becomes necessary. In the second place there are doubtless
many norms which most people would not observe if there were no
sanction in the form of penalty or compulsory execution. In this connection
the norms of police law (Max Ernst Mayer), which incidentally are applied
not only by the judges of the police courts and of the criminal courts, but
also by the judges of the civil courts, are of minor importance. Being norms
for decision and having been created by the sovereign power of the state,
they are foreign to the life of society, and often do not become known
except through the decisions rendered in accordance with them, and they
become rules of conduct only through these decisions. These decisions then
appear to be the real promulgation of the law, and the rule ignorantia legis
nocet appears in its true significance. It is a fact of greater importance that
the entire military system and the entire tax system of the modern state, that
is to say, the very thing which customarily is considered the basis of the life
of the state, could not exist for a single moment without coercion exercised
by the state. All this however merely amounts to saying that the state and a
considerable portion of society have consciously become antagonistic to
each other. In consequence of this antagonism, the military and the tax
system of the state have remained so unrelated to society that they have
become state institutions exclusively. History will probably show that this is
merely a transition stage. It was not the case in antiquity. The whole
military system and that part of the services required by the state which had
to be rendered by the commonalty were socially organized. This is true
even today in small states,
The conception, of law as a coercive order therefore is based upon the
fact that its exponents have one-sidedly taken into consideration only those
portions of the law that derive their force solely from the state. But that is
not the whole story. To a con™ siderable extent, this conception has been
derived from a consideration not merely of law, but of social life as a
whole« It is being observed that there is an enormous contrast in society
between the rich and the poor ; that the entire burden of the work of society
rests upon the poor; that in exchange they receive little more than the bare
necessaries of life ; that the legal order compels them to render valuable
services to society in exchange for services of much less value. That this
state of affairs is endured by those to whom it causes such losses can be
understood only if one assumes that it is being forcibly maintained by the
sovereign power of the state. This thought has been followed through to its
logical conclusion in the socialist philosophy of history. The latter begins
with a discussion of the older economic organization of mankind, of the
ordering of the clan and of the family, of the household as a self-sufficing
economic unit, of industry carried on by organized crafts, whereby an equal
division of the fruits of labor among all who participated therein was
secured (Engels, Rodbertus); and shows that this state of affairs, under the
influence of capitalism, is continually shifting, to the disadvantage of an
ever increasing majority of those who have not and to the advantage of an
ever decreasing number of those who have (Marx). The older economic
order, it is contended, was sustained by the great majority, who found it to
be to their advantage to do so; the later capitalistic order is being
maintained exclusively by the state, which is a powerful, elaborate
organization of those who have for the protection of the legal order, which
is based on property, contract, and the law of inheritance. The socialists
therefore quite consistently urge those who have not to oppose to the
organization of those who have the organization of the masses in order to
bring about a legal order which is more favorable to the latter.
If it were true that the legal order of the present day cannot be maintained
without the help of the state and that the latter is nothing but an organization
of the small and ever decreasing minority of those who have against the
great mass of those who have not, the legal order and the state were
condemned already. But the present inquiry has shown that the resources of
the state for the protection of the legal order are, in actual fact, not being
employed against the great masses of the people but only against the small
minority of those who have been cast out, who are cut off from all social
relations. There is no need for any exertion on the part of the state to subdue
the great mass of the people; the latter submit to the legal order willingly
because they realize that the legal order is their order, the order of the
economic and social associations, of which each one of them is a member.
It cannot be true therefore that a small minority makes use of these associa»
tions for the purpose of exploiting the great majority. To say that this can be
done for a long period of time without eruptions of violence is to contradict
all historical experience and all mass psychology. Every great strike which
is accompanied by a breach of agreement demonstrates that the means at
the disposal of the state are insufficient to enforce legal claims against
hundreds or thousands of resisting human beings. If therefore the great
majority of human beings — and this includes, as can readily be seen, the
whole working class — render obedience to the legal order, they
undoubtedly must be actuated by a very strong conviction, though not
perhaps a clear understanding, that it is necessary to do this — necessary in
order to secure their own interests. This same conviction is clearly
manifested in every revolt the object of which is not political but economic
revolution. By far the greater number will be found on the side of the
sovereign power of the state, and a revolutionary movement of this sort has
never been successful even to the extent of being able to maintain itself
permanently in a state of any considerable magnitude.
In fact, since the present legal order is at the same time an organization of
production and exchange of goods it is not possible to abolish it without, at
the same time, depriving the great majority as well as the small minorities
of the means of subsistence. It is necessary, therefore, if civilization is to
continue, that the existing legal order should not be abolished, unless it can
at once be replaced by another, a socialistic order. That this can be
accomplished at any time without further ado is no longer contended by
anyone competent to judge, even a socialist. Intelligent socialists have long
since been speaking only of a gradual development of the capitalistic
economy into a socialistic one. Incidentally, I believe that I have shown
elsewhere (Sudd. Monatshefte, 3 Jahrg.) that even this cannot be
accomplished within a calculable period of time. If therefore the present-
day social order, in spite of the great sacrifices it exacts from the majority of
the people, exhibits a tolerably firm structure, this is due to the fact that, for
the moment, there is no other order available that could do more, or even as
much, not only for those who have, but also for those who have not. The
question of the ultimate goal (Endziel) may safely be passed over. As a
practical matter, even the socialistic working class of Europe is concerned
only about such an improvement of the present legal order as secures to it a
modest, but attainable, social advancement.
In view of the coercion by means of which the social associations enforce
observance of the norms, it may be said that the individual manifestly is at
all times both active and passive; every member of the association takes
part in bringing pressure to bear, and every individual, in turn, must submit
to pressure. The coercive power of the norms — a fact of mass psychology
—posits at the same time the observance of the latter — a fact of individual
psychology. It would be a mistake, nevertheless, to lay too much stress
upon this particular fact. With the great mass of men who throughout their
whole lives permit themselves, without objection, to be fitted into the vast
social mechanism, it is not a matter of conscious thinking, but of
unconsciously habit- uating themselves to the emotions and thoughts of
their surroundings, which are with them from the cradle to the grave. The
most important norms function only through suggestion. They come to man
in the form of commands or of prohibitions; they are addressed to him
without a statement of the reason on which they are based; and he obeys
them without a moment's reflection. They have not subdued man but have
educated him. They are being impressed upon his mind in his childhood; an
"It is not done/' "It is not proper," "Thus hath God commanded3' follows
him through his whole life. And he submits with a willingness which is the
greater the more emphatically experience brings home to him the
advantages of obedience and the disadvantages of disobedience. The
advantages and disadvantages are not only social but also individual ; for he
who obeys a command is spared the arduous labor of doing his own
thinking, and the still more arduous labor of making his own decision.
Liberty and independence are ideals of the poet, the artist, and the thinker
only. The average man is a Philistine, without much appreciation of these
things. He loves that to which he has become habituated, the instinctive,
and hates nothing more than intellectual exertion. That is the reason why
women become enthusiastic over men of strong will. The latter make their
decisions for them, and do not even give the thought of resistance
opportunity to arise. For all the trouble and pains that they are thereby freed
from they are sincerely grateful to their husbands.
In this way, obedience to norms ultimately impresses its stamp upon the
whole man. It makes not only the individual act, but the man himself, just,
moral, faithful, tenacious of ethical custom, dignified, tactful, honorable,
well-mannered, modern. He submits to the norms from conviction, and this
imparts stability to his conduct. After the social pressure which is brought
to bear upon the individual in each case by the habit of obedience to the
norms has fashioned the character of the individual, it can no longer be
effectively counteracted by other influences. The social norms give shape
and form to the individuality of man.
 It might not be amiss for everyone who is investigating the origin and the
effects of the legal norms to make an attempt to answer the much simpler
question why he does not meet a man in the street wearing conventional
civilian clothes without a cravat. It cannot be a matter of mere
fastidiousness; for undoubtedly there is a great number of men who are
quite indifferent to matters of dress, who nevertheless would never appear
in public without a cravat. In order to facilitate the inevitable historical
investigation, I will say that this in itself rather superfluous article of dress,
which, incidentally, is not of impeccable taste, is descended from the garb
of the Croatian regiments in Paris in the days of Louis XIV, from whom, by
the bye, it got its Austrian and French name (cravat). And for the very
reason that at the present time it is not readily seen that the social norm
requiring every civilized European man who has any self-respect to wear a
cravat fulfils any function in the creation or preservation of the social order,
a detailed study of it would yield a great amount of information to the jurist.
Accordingly social norms, whether they are legal norms or norms of
another kind, always have their origin in an association ; they impose an
obligation only on the members of this association; and this obligation is
binding upon them only in their dealings with members of the association.
They have no effect upon anyone outside of the association. If these
propositions had been enunciated in classical antiquity they would not have
required further proof, for they would have been accepted as self-evident
truths. At that time, no one doubted that law, religion, morality, ethical
custom, were in existence only for one's own people, and that one's own
people occasionally did not even include all those that dwelt within the
walls of the city; at any rate, that it never extended beyond the closest tribal
or lingual relationship. Beyond this, there was no bond that was not
established by treaty of guest-friendship, of friendship, or of commerce.
This is the situation even today among all peoples that are outside the pale
of European civilization. It is true, in most cases the person of the guest is
sacred, but the moment the guest crosses the threshold he becomes a
member of the household; and often enough the protection extended ceases
the moment he leaves the house.
At the present time, it is true, this is no longer the case to the same extent.
It is clear however that the norms of ethical custom, decorum, tact,
etiquette, fashion, have no validity beyond a certain circle. But the legal
norms, in part at least, impose an obligation on everyone; and this
obligation is binding upon everyone in his dealings with every other human
being. Three or four world-religions proclaim their truths to all mankind.
Modern morality likewise no longer recognizes the ancient limitation that
its norms order the relations of those only that belong to the same people.
The question is, what is the meaning of all this?
The religions, to begin with, both in their doctrines and in their ritual
norms, appeal only to those that profess the faith. The fact that they
proclaim themselves world-religions means simply that their doors are open
to everyone that accepts their truths. In this respect they differ from the
religions of antiquity, which were limited to their respective peoples, but
this difference lies in a different sphere.
As to modern ethics, however, the situation is quite different, irrespective
of whether its basis is religious or philosophical. Its object is to impose the
moral commandment upon all men and to make it binding upon them in
their dealings with every being that bears a human countenance. It must be
emphatically denied, however, that this has ever amounted to more than a
preachment or a teaching, that this morality has in fact become a rule of
conduct for the great masses of mankind. Even today commandments of
morality are actually being obeyed with any degree of exactness only in the
intimate circle of the family, at most among friends. Outside this circle the
effectiveness of the moral command decreases steadily ; and as to the
stranger, the average man recognizes no teaching of morality which
obligates him to do anything more than to extend courtesies which require
no effort ; and hatred of the enemy of one's country is considered as
praiseworthy today as it was in the most remote antiquity. A glance at the
atrocities occasionally perpetrated in the colonies of this or that great power
shows the depths to which the morality of modern man may sink where
there are no associational bonds; and these atrocities are only a small
fraction of the atrocities which the nationals of the most highly civilized
nations of the earth believe they have a right to perpetrate upon defenseless
natives. It is true there is a series of legal norms that are valid in favor of
everyone and bind everyone. But these are either a part of the law created
by the state or they are but norms for decision, not rules of conduct. Even
the so-called private international law and criminal law contain only norms
for decision, are addressed to the authorities and not to the people. The
living law, even where it is created by the state, is preponderantly, as to its
content, limited to an association. The rights and duties arising from
Staatsrecht (public law in the narrow sense) presuppose the right of
citizenship in the state; the law of the family presupposes membership in
the family; the law of corporations presupposes membership in the
corporation ; the law of contract presupposes a contract; the law of
inheritance presupposes mem™ bership in the family or the acceptance of a
testamentary gift (of which the mere non-repudiation, according to some
laws, is an equivalent). Other rights and duties arise from the position of an
official, of a servant of the state. It is only as to the claim to life, liberty, and
property that a different rule obtains at the present time; for this claim is
being recognized, at least within the territory in which European civilization
holds undisputed sway, as a valid claim of everyone, irrespective of
nationality. This is a relatively modern achievement. As late as the sixteenth
century, the life and the property of the alien were by no means secure in
Europe. Even today it is not an indispensable element of civilization, as is
shown by the history of colonies everywhere and by the fate of the Negroes
in America. The anti-slavery legislation of the nineteenth century shows
how difficult it was to instil into the most highly civilized nations of the
earth respect for the life and the liberty of the defenseless Negro. But with
these temporal and local limitations, respect for the life, the liberty, and the
property of every man is today not merely a norm for decision and a policy
of the state, but has actually become a principle of the living law. To this
modest extent, the whole human race has already become a vast legal
association. This cannot be said, however, of other legal relations,
especially of the law of contract.
The uncertainty of credit relations in far distant countries — a standing
phrase in trade reports ·— bears eloquent witness to this fact.
Nevertheless the fact remains that at the present time there is in existence
a religious and philosophical system of ethics which does not limit its
morality to an individual human association. This fact requires explanation.
Its import is that, at least among the select spirits of the world, there exists a
conception of a morality which embraces all men, a conception of law not
confined within any boundaries. Although it is at the present time nothing
more than a dream of the noblest and best which promises a better future, it
has been realized in the living law to the extent of securing, in the seats of
the highest civilization, life, liberty, and property to every man.
V The Facts of the Law1

THE modern jurist is accustomed to seeing a world ruled by law and legal
coercion. To this world, which is his world, he owes his Weltanschauung
(world-view, philosophy of life), which assumes that law and legal coercion
have been in existence from the beginning of time. He cannot conceive of
human communal life without them. A family that is not held together, or at
least supervised, by the constituted authorities, property that is not protected
by the courts, a contract that cannot be sued upon, or that may not, to say
the least, be set up as a defense, an inherit™ ance that cannot be obtained
by legal means, are to him things that are altogether outside of the legal
sphere, that are without legal significance. In this way, legal order, court,
and legal sanction become a unit in his mode of thinking, and he will
unhesitatingly speak of law or legal relation only where he finds a court and
legal coercion, or perhaps an administrative tribunal and administrative
coercion.
In this narrow world of ideas the purely juristic concept of the sources of
law had its origin. Manifestly it could only be a matter of explaining the
origin of the rules according to which legal coercion is being exercised by
courts and administrative tribunals. Following this path, the prevailing
juristic science arrived at the well known theory of the two sources — a
theory which derives all law from statute or custom. It is manifestly based
on the precepts of the corpus iuris civilis and of the corpus iuris canonici,
which recognize only the leges and, in addition thereto, con sue-tudo as
sources of law. Its epistemologica! basis might well be the logical theorem
of the excluded middle. Since all law which is not statute law must needs be
customary law, the question as to the concept of customary law resolves
itself into the question : What must be the nature of law that is not statute
law? We are not told why there can be no sources of law other than statute
and customary law» No suggestion is being made that a scientific in» quiry
into the nature of law should be instituted. Whatsoever is said about
customary law moves within a circle of commonplaces. In the last analysis
the Romans proceeded in a much more scientific manner inasmuch as they
were content with simply enumerating the six or eight methods according to
which, in their system of law, legal rules that were binding on the judge
arose. Nevertheless not one of the attempts to add as much as a third source
to the two that have been recognized until now has met with success, i.e. the
addition of science or judicial usage or the rule established by agreement or
customary dealings between the parties (Konven-tionalregel) or, as has been
attempted by writers on commercial law, commercial usage (usance).
1 Tatsache des Rechts. The translator has preferred the literal
rendering to the usual term "juristic facts." SeeDernburg? System
des Römischen Rechts, § 67.

The saddest part of the matter perhaps is the fact that those who are
struggling with the concepts of statute and customary law are not looking
for the difficulty in the quarter in which it may be found. In the matter of
the sources of law, it is not a question of how the rules of law which the
judge or the administrative official must apply assume the form in which
they are binding on him. The law does not consist of legal propositions, but
of legal institutions. In order to be able to state the sources of law one must
be able to tell how the state, the church, the commune, the family, the
contract, and inheritance came into being, how they change and develop.
The function of a theory of the sources of law is to discover the vital forces
that bring about the development of legal institutions. It is not sufficient to
state the forms in which legal propositions, or, to be more exact, legal
propositions of a certain kind, are to be found. Law and legal relation is a
matter of intellectual concept which does not exist in the sphere of tangible
reality, but in the minds of men. There would be no law if there were not
men who bear the concept of law in their consciousness. But here, as
everywhere else, our concepts are fashioned from the material which we
take from tangible reality» They are always based on facts which we have
observed. These facts must have been in existence before the concept of law
and legal relation began to dawn in the human brain. And at the present
time certain facts at least must be in existence before we can speak of law
and legal relation. It is here that we must look for the workshop of the law.
The first question of juristic science, the question as to the origin of law,
accordingly becomes the question: Which are the factual institutions that
become legal relations in the course of legal development, and which are
the social processes through which this comes about?
A group of human beings becomes an association through or» ganization.
Organization is the rule which assigns to each individual his position and
his functions. We are chiefly concerned therefore with determining the facts
with which the human mind associates such rules. These facts, though
apparently very heterogeneous, may be traced back to a very small number.
They are—if we may be permitted to state the results of our inquiry in
advance —the following: usage, domination, possession, declaration of
will.
Usage here does not mean "customary law." We are not speaking of the
customary application of legal propositions. Usage here means: The custom
of the past shall be the norm for the future. Usage determines the position of
the head as well as of the members of the association, the relation of
superiority and of inferiority, and the functions of each individual member.
Usage creates the order of all genetic associations : of the clan, the family,
the household. In the family and in the home this is true perhaps even up to
the present time. In a primitive stage, usage is still essentially normative in
all local associations and in the state. But even in a highly developed
commonwealth, like the Roman republic or present-day Great Britain, the
constitutional law position of the organs of the state rests on usage. As to
Rome, one need only page through Mommsen's “Römisches Staatsrecht”1
in order to convince oneself of the truth of this statement. The small number
of Roman statutes that have a public law (staatsrechtlich) content refer
exclusively to the comitia. Moreover down to the days of the Empire even
Mommsen knows of no other means whereby to determine the rights and
duties of a Roman magistrate than to state what his duties were according to
traditional usage, and what he actually did do. And in order to make a
presentation of British public law, one must proceed in the same way. The
King, the Parliament, the ministers, the highest officials, all the organs of
the state, regulate their course of conduct chiefly according to usage, or, in
English terminology, according to precedents. The dominant associations of
antiquity and of the Middle Ages likewise maintained their order through
usage.
1 Roman public law (in the narrow sense).

The majority of present-day associations have an order which is based on

agreement, articles of association, legal proposition, and constitution.
Nevertheless even in these, usage has by no means lost all significance.
Wherever agreement, articles of association, legal proposition, or
constitution has left a doubt or has failed to make provision as to the
position and duties of an individual, usage governs. Even in a constitutional
state, therefore, usage is of the utmost importance (Konventionairegei); and
in labor unions (in the factory) it is the indispensable basis of asso»
ciational life.
Usage, to use Jellinek's phrase, is effective through the normative power
of the factual.” Its ordering and regulative power in the association is based
on the fact that it reflects the equilibration of the forces existing within the
association. The interest which all members have in the associâtional life,
their interest in the proper utilization of every force which is operative in
the association, in placing every one of its members where he can render
most service, in assigning to him rights and duties according to the needs of
the whole, are counterbalanced by the aspirations of the individual to live
his own life, to assert his own personality, to pursue his own interests.
Usage always reflects the final equilibration of the forces. In general, a
usage which produces norms for the future arises when a person who has
been placed in a certain position claims a certain right without encountering
opposition; when a person to whom a task has been assigned undertakes its
performance without a protest; or when a protest that has arisen is
overcome. In genetic associations, the decisive factors are physical strength,
mental power, experience, personal prestige, age. In other associations they
are wealth, birth, personal relations. The rights and duties connected by
usage with a certain position usually pass from the holder to his successor;
but if the distribution of power is changed by the succession, usage at once
adapts itself to the changed situation.
The only association whose order, even today, depends chiefly upon
usage is the house community of the family, not only as a moral and social,
but also as an economic association. Among the peasantry it is an
association for the purpose of production and consumption; among the
urban middle classes, for consumption only; among a part of the working
classes, almost exclusively for dwelling together. There is a great
difference, economically, between the middle-class family and the working-
class family, even where the latter is also an association for consumption;
for the former is usually maintained exclusively by the earnings of the head
of the family, while the latter is maintained by the earnings of all the able-
bodied members of the family. A glance at these three kinds of families
shows that each one of them has its own law not merely as to personal
subordination but also as to property and earnings, and that the contents of
the documents that are drawn up concerning family affairs (nuptial
agreements, wills) differ to such an extent according to the station of the
maker that it is possible without more ado to determine the station of the
latter from the documents. The absolute supremacy of the peasant within
his household becomes a mere general guidance among the middle classes,
and among the working classes it is attenuated to what amounts, at most, to
a moral influence. Among the peasantry, property and consumption is in
common; among the middle classes there is individual ownership of
property, but consumption is in common; among the working classes
everything is separate ; each member of the family owns his share and
contributes his quota to defray the common expenses. Similarly in all other
associations the content of usage and the order which is created thereby is
determined by the economic bases of the associâtional life.
A careful distinction must be observed between the relation of superiority
and inferiority,1 which exists in every organized association, and which is
the expression of the inner order of the association, and the relation of
domination and subjection. A command issued by a person occupying a
position of superiority in an organized association is quite different from a
command issued by a person who has the power of domination, The former
is issued in behalf of the association, the latter in behalf of the person who
issues it. A person who is in a position of superiority as well as a person
who is in a position of inferiority acts in the consciousness of serving the
association, but a person who is in a relation of subjection to another is
conscious primarily of serving the person to whom he is subjected, and only
occasionally of serving the association at the same time. The association
remains unitary in spite of the relation of superiority and inferiority, which
is necessarily produced by its organization; but relations of domination and
subjection divide it into ruler and ruled. In an association thus organized,
the rulers, and often the ruled, too, form associations of their own, or
associations within the association.
1 Uberordnung und Unterordnung.

We must distinguish two kinds of relations of domination and subjection,

to wit those relations that flow from the family relationship — the
subjection of children to the power of the father, of the wife to that of the
husband — and relations of subjection of a purely social origin, slavery and
serfdom. The idea presents itself most naturally to refer to legal precepts all
the manifold and variously gradated relationships of domination and
subjection, which are found in all stages of social development, down to the
very latest, down to that which has been attained only by the most advanced
nations of Europe and America. In fact the prevailing idea is that it is the
legal proposition which subjects the wife to the husband, the children to the
father, the ward to the guardian, the slave and the serf to the master. But the
relations of domination and subjection were actually in existence
everywhere before there was a legal proposition which regulated them as
constituent parts of the legal order. Domination in every instance is merely
the counterpart of the defenselessness and helplessness of the person
subjected. The latter is subjected to domination because he enjoys no legal
protection (Rechtsschutz) ; and he receives no protection because he is not a
member of an asso- ciation which might protect him, or because the
association to which he belongs is too weak to protect him.
The situation of the slave and of the serf, and perhaps that of the guest
and of the ward, it is true, is seemingly quite different from that of the
women and the children. The former do not belong to the association of the
rulers, but are strangers who have come within their sphere of power.
Women and children however are members of the same association as the
rulers. Recent study of the relation of the sexes and of the various groups of
people of the same age in the most ancient society has shown that in
primitive society the two sexes and the several groups of people of the same
age everywhere form separate associations. To a certain extent this is true
even at the present time. Even today we see women and men combining in
groups for the protection of their separate interests, and even today there are
traces of opposition between the groups of people of the same age. The
latter is a common phenomenon in secondary schools, likewise between
journeymen and apprentices in a trade. Both surely are survivals of stages
of development which have long since had their day rather than the
beginning of a new development.
In the most ancient societies an association is formed at the outset by the
efficient (vollwertig) members, who in case of need would be able to repel
an attack single-handed and who could extend to others the same measure
of assistance that they ask of the latter. The woman, the child, the youth
who as yet is unable to bear arms, cannot do this, for they, by themselves,
cannot form an association capable of self-defense. The stranger living in
isolation cannot do this, for he has no association to take his part; the
member of a vanquished tribe or nation cannot do it, for the community of
which he is a member has just been crushed; the poor oppressed man cannot
do it in unsettled times, for the protection which the association to which he
belongs might possibly extend to him is ineffectual against the arbitrary
dealings of the powerful. All of these, the woman, the child, the stranger,
the vanquished, therefore are subjected to the domination of the man who is
inclined to protect them, i.e. the husband, the father, the guest-friend, the
victor. Every other person who lacks con- fidence in his own strength
voluntarily places himself under the protection of another. If the defenseless
one fails to find a protector, he becomes the prey of anyone who seizes him
and spares his life ; he becomes a slave of the latter. The weak person who
has a master is no longer defenseless, for every attack upon him is now an
attack on the master.1
But all of these protective relationships presuppose that the protected is
in position to offer some advantage to the protector. The relationship of
ruler and ruled exists for the benefit of the ruler and not of the ruled. A man
who with the utmost exertion can produce no more than he himself requires
for a bare existence, as for instance a very poor hunter or shepherd, has no
lord and master. The lord would derive no benefit from his lordship. A
captured enemy therefore is not reduced to slavery, but is slaughtered, or, in
exceptional cases, received into the conquering tribe. Only the woman is of
value even at this stage of development, for she is the object not only of
economic, but also of sexual exploitation. For this reason her life is spared,
and she is compelled to do work which the man disdains either because he
deems it beneath his dignity, or because it requires too much exertion.
 Defenselessness alone cannot serve as the basis of a legal relation. It
abandons the defenseless person like an ownerless chattel or beast to him
who reduces him to possession, but it does not give him an owner. It does
not give anyone a right in him. Domination however is more than mere
possession of a person and exploitation of his labor, for it is a legally
regulated relation between the person who has the power and the person
who is subjected to the latter. The fact of personal subjection is based on the
economic productivity of his labor, but it becomes a part of the legal order
only in a case where the labor of the subjugated person is of decisive
significance for the economic order of society. The unfree person may be a
laborer on a farm or a groom of the chamber at the court of a king ; he may,
together with thousands of fellow-sufferers, toil on plantations or in mines;
he may together with his wife and children live in a cottage on the land of
his lord as a tenant-farmer paying rent to the latter, or he may till the soil on
his own account as a serf for a moderate return on the plot of ground
allotted to him; he may become a teacher or a manager in the service of his
lord or he may render knight's1 service to the latter or he may engage
independently in a trade or a business in the city. Whether he is one or the
other of these is determined not by the arbitrary will of the master, but by
the economic constitution of the country as a whole and by the qualities of
the human beings that constitute the mass of the unfree population.
Doubtless it was impossible in the days of the early Roman Empire to
conduct an agricultural establishment on the basis of a system of villeinage;
likewise it was impossible in mediaeval Germany to raise cane sugar and
tobacco on plantations. The legal position of the unfree man depends upon
his position in the economic system. The farm-hand, the slave on the
plantation, the groom of the chamber, the tenant-farmer, the villein, the man
rendering knight's service, the civil official, the tradesman, are in totally
different situations as unfree persons, in fact as well as in law. In Roman
slavery this fact did not meet the eye except to a very limited extent. This
however is due to the fact that the Roman jurists, who concern themselves
only with the law that is applied by law courts, tell us nothing of the inner
order of the household. A presentation of the Roman law of slavery which
is not limited to the legal sources but which takes into account inscriptions
and documents would most emphatically set forth the differences in the
legal relations, of which the legal sources merely give slight intimations. A
legal system which is less enamored of abstractions than is the Roman will
give outward form and expression to the differences in the legal situations
of the unfree as determined by their economic functions. Accordingly from
the very beginning of the Middle Ages the several types of serfdom of the
Continental law have corresponded to differences in the economic
constitution. The two later types, Grundherr schaß1 and Gutsherrschaft,
correspond to differences in economic management as well as in legal
treatment of the unfree. In my book entitled Rechtsfähigkeit2 (in Franz
Kobler's collection entitled "Das Reckt9' 3), I have shown in detail that the
legal capacity of the individual and his position in the economic order are
always interrelated.
1 An Austrian naval officer who is familiar with conditions in
Africa told me one day that he ascribed Stanley's successes mostly
to the agreements which the latter made with his black carriers.
Other African explorers were in the habit of hiring carriers for short
stretches only, for the territory occupied by the tribe to which they
belonged, of dismissing them when they came to the border, and of
looking there for other carriers at the same terms. Stanley, however,
hired them at the coast for the entire journey. Now an African
negro, when outside of the confines of the territory of his tribe, is
usually in the position of an outlaw. As soon as Stanley, therefore,
had entered foreign territory, the caravan was the only protection
the carriers had. They were absolutely in his power and at his
discretion. He was their protector, and therefore their absolute lord
and master. — Author's note.
1 Ritterlicher Ministeriale, originally an unfree squire.

Perhaps originally all domination, viewed as a legal institution, was a

property interest in the person subjected to domination. Serfdom
undoubtedly began with man-stealing; marriage, possibly, with woman-
stealing; and the parental power is possibly based on the possession of the
children as long as they are quite small. But domination can be permanently
maintained as possession only in very rare instances, perhaps in the case of
slaves on a plantation, who are kept under uninterrupted surveillance and
are locked up at night. In general, domination presupposes something more,
something different, a certain state of mind, a certain placing and fitting
oneself into the relation of domination and subjection. Domination without
this state of mind could be maintained only by uninterrupted surveillance
and in most cases would be perfectly worthless to the lord and master.
For the process of economic utilization of a thing, the legal relations
respecting the thing doubtless are immaterial. The field will bear cabbage
even if the husbandman who has planted it has acquired the field by an
invalid will; the loom weaves the thread into cloth without inquiring how
the manufacturers acquired it; and a slice of bread appeases the hunger even
of a person who has stolen it. The important thing in the process of
economic utilization is possession. Goethe has expressed this thought very
clearly in the famous passage in Dichtung und Wahrheit, in which he sums
up his reflections on the Imperial Supreme Court sitting at Wetzlar. It is
perhaps the best thing that has ever been written on the reason for
protecting possession. We are not indeed concerned here with possession in
the sense of any doctrinal formulation, but, to speak in the words of the
famous master of the doctrine of possession, with possession "as the
possibility of actual control over the thing; and the extent of this control is
the extent to which our will to control is, as a matter of experience,
habitually deferred to. Whether this is the case, is a question of actual life,
which must be answered according to the diversity of the relations,
especially of those of the object, according to the means at the disposal of
the subject for carrying out his will, according to the state of public safety,
of public morals, and of economic development.7' (Randa.)
1 In the GutsHerrschaft, the unfree had been reduced to villeinage;
in the Grundherrschaft, they held their land in a form of tenancy
corresponding to free and common socage.
2 Legal capacity.
3 The Law.

Whether possession is recognized or not, then, is a "question of actual

life." The important thing is not the legal precept of positive law, but the
rule of conduct which governs life. The possession of the lessee, the
borrower, the depositary, “as a matter of experience, was habitually
respected” in the Continental common law by the other party to the contract
even after Savigny had shown that according to Roman law they were not
entitled to this. Again the Continental common law doubtless did not “as a
matter of experience habitually” respect the possession of the thief or of the
robber in spite of what the Roman law said on this point. When a third
person found property that had been taken by theft or robbery in the
possession of a thief or robber, he did not hesitate, because of these
precepts, to take it forcibly if possible, and to deliver it to the person injured
or to the authorities. Was the law otherwise in Rome? One would have to
imagine a strange case indeed in which a thief or a robber whose possession
had been interfered with would have applied for the interdictum unde vi or
utrubi.1 An actual case of this kind cannot, to my knowledge, be found in
the sources.
Possession is a fact of the law in the sense that it is the possessor who
employs and utilizes the thing according to its economic purpose. Every
system of law protects the possessor in the economic use of the thing. It is a
matter of indifference whether the protection is secured by means of
independent legal remedies, as in Roman law, by means of private delictual
actions (trespass), as in English law, or chiefly by means of the criminal
law, as in Scandinavian law. Even as it is, protection of possession is
everywhere, to a great extent, a matter for the criminal courts and the
police. In the case of movable things, the protection afforded by the
criminal law is sufficient at the present time to protect against theft and
embezzlement ; the independent remedies are used very little. The French
Civil Code therefore has abolished the independent protection of possession
of movables. True, the action of ownership may be used, just as under the
German Civil Code, by any possessor against anyone except the person
who has just been deprived of the thing by theft or loss. Accordingly it
serves the purpose of a possessory action as well. In the case of immovables
specific protection of possession is indispensable in Roman law and in the
Continental legal systems derived from the latter because the protection
afforded by the criminal law as well as that of the law of delicts is
altogether too ineffectual. Since in the Code de Procedure Civile the action
for interference with possession, la complainte, presupposes uninterrupted
proprietary possession for one year, and thus has become a petitory action,
and since there is no true possessory action, the French administration of
justice has invented a means of protecting possession which is purely a
police remedy, la reintegrando, which requires neither proprietary nor
uninterrupted possession : attendu que les voies de fait ne peuvent pas être
tolérées dans une société civilisée et que si celte action n'existait pas il
faudrait Vinventer.
1 The possessory interdicts. See Czyhlarz, Lehrbuch der
Institutionen des Römischen Rechts, § 46; Sohm? Institutes of
Roman Law? LedhVs translation, third edition, § 67.

Possession, as a purely economic relation to a thing, is distinguished

from ownership and the other real rights.1 Economically the owner as such
has no dealings with the thing; he remains the owner even though he does
not concern himself about the thing for years, even though he knows
nothing about it. This proves at all events that the concept of ownership was
formulated, in part at least, by influences other than economic. To carry out
the distinction between possession on the one hand and ownership as an
independent concept on the other to its logical conclusion is to say that the
law completely disregards the economic order, which takes form and shape
in possession, and recognizes only the order based on ownership and real
rights. The sharp distinction made in Roman law between ownership and
possession might indeed lead to this view. This is the view of the juristic
literature also inasmuch as it manifestly assumes that it is not the protection
of ownership but that of possession that requires justification. The primary
thing however is not ownership, but possession. A glance at mediaeval
German law presents a legal order which is predominantly based on
Gemere (i.e. the right of possession)1 and not on ownership. The vital
energy of this thought has been demonstrated by its subsequent history; it
has not only made its way against all opposition in the Continental common
law, but has attained full development in England, and there meets the
requirements of one of the greatest mercantile nations of the whole world; it
prevails in the modern codes, the French Civil Code, the German Civil
Code and the Swiss Civil Code. A comparison of the results of the entire
legal development with Roman law shows that in all questions that are of
significance for lifes the latter strives for the same goal as German law, i.e.
to make the order of ownership conform as closely as possible to the
economic order, which is embodied in possession.
1 Dingliche Rechte. See Cosack, Lehrbuch des bürgerlichen Rechts,
II, i. The German Code uses the term "Recht an der Sache," right in
 the thing or right in re..

The person who makes use of a thing according to its economic purpose
is entitled to Gemere. In the case of immovable things, at least, the latter
conforms perfectly to the economic order; for everyone who has a share in
the returns yielded by a thing, or derives any economic advantage from it
has Gemere in it, and yields only to him who has shown a better right. Until
this happens, his share in the economìe yield is a matter of right, he has the
power of disposition over the thing, and is entitled to the true Gemere as
soon as the person who has a better right has lost it through failure to assert
it. Gemere therefore actually presents a pretty complete picture of the
economic constitution for the time being, to the extent that it has its roots in
the law of things. If it were possible to describe the kind and extent of all
the Gemere (rights of possession) that exist in all the things within a certain
legal sphere, the result would be, barring the shifts conditioned upon purely
obligatory rights, a fairly faithful picture of the economic situation in that
sphere of law. English law has developed this basic idea of German law
inasmuch as it actually grants to the possessor all the rights of an owner
until he has been deprived of Gewere (possession) by a person who has a
better right. He receives the fruits of the thing (he that sows shall reap),1 he
controls the thing with full legal effect, but he is unable to give a better right
to the transferee than he himself has. The transferee, like the transferor,
yields to the person who has a better right, and must surrender all profits
received (mesne profits) to the latter, but is preferred to every third party
whose right is inferior to that of his transferor. Since English law does not
recognize any absolute right of ownership, but invariably lets the decision
hinge upon the question which of the two persons entitled has the better
right, English jurists can say now and then that every possessor is an owner
until he is deprived of the thing by litigation. And finally the right of the
possessor becomes the best right as soon as the period of prescription has
run against the claim of the person who had the better right. Where the law
is couched in these terms there can, of course, be no usucapion. In Roman
law, in consequence of the concept of absolute ownership, the economic
point of view apparently recedes into the background. In actual fact
however the Roman law merely denies to the possessor the use of a certain
action, the rei vindicatio, and in its stead grants him the actio Publiciana
and, to the fullest extent, the possessory actions. In Roman law also the
possessor may keep the thing and utilize it economically until he is
deprived of it by litigation; and in the litigation as to ownership he occupies
a favored position. He acquires the fruits of the thing provisionally at least,
and — here Roman law goes further than English law — after he has
consumed them in good faith, definitely and without making compensation.
If he has utilized it in his trade or business in good faith, he acquires
ownership. This is the meaning of the Roman provisions as to specification.
Since the validity of an agreement entered into with reference to the thing
does not depend on the ownership of the thing, and since the actio
Publiciana which follows the terms of the agreement is regularly available
to the good-faith transferee, the possessor also has the power of disposition
over the thing to this extent. Finally, according to Roman law, the economic
relationship becomes ownership through usucapion; through the running of
the period of prescription, it becomes the "best right." In all these things, the
modern Continental law follows the Roman law. Only, in case of movables
that were found or stolen, it has made provision to prevent the possessor
from utilizing the thing; and this chiefly in order to protect the owner
against injury.
1There Is a conflict among authorities as to whether Gewer e
means only possession or also includes the right of possession. See
Posener s. v.
1 Wer säet, der mähet.

Roman law goes beyond German and English law; possibly, too, beyond
practical necessity, inasmuch as it protects the possession of the thief and
the robber, which has been acquired in an uneconomic manner, although
doubtless in actual life such possession is not considered a legal relation. It
does not go so far as the above-named legal systems inasmuch as it does not
treat the economic relationship to the thing that is based solely upon
relations of the law of obligation, e.g. relationship of lease, both ordinary
and usufructuary, as possession. It does however, with a few insignificant
exceptions, place« the good-faith possessor in the position of an owner to
the same extent at least as do German and English law, and since good-faith
possession alone is of significance for the economic constitution, we can
say that manifestly, even in Roman law, the economic point of view prevails
over the legal concept of ownership. The modern Continental legal systems
have, in general, adopted these basic ideas of the Roman law of possession,
albeit with a few historically conditioned concessions to Germanic law.
It is only on one point that the right of the owner rather than that of the
possessor has become the rule of conduct, i.e. inasmuch as only the owner
can validly transfer ownership, or the "best right." This principle, which is
binding in Roman and
English law with reference to all things, is limited in the law of the
Continent to immovables. Where this principle governs, the transferee must
needs make inquiry as to the right of the transferor or protect himself
against loss by means of a contractual warranty. The security of the buyer is
based on the warranty of the seller, i.e., as in Roman law, on his credit; and
every sale becomes a credit transaction. In England, in case of immovables,
there is the liability of the attorney who draws up the contract and
undertakes to investigate the title of the seller (investigation of title). In the
case of movables, on the other hand, the possession of the seller is generally
sufficient on the Continent to transfer title to a good-faith purchaser. It is
extremely interesting to observe how the effect which has been given to
possession has made its way in the course of the last century even where no
effect had been given to it before that time; how, on the Continent, it
developed into the related principle of the "public assurance” of the land
register,1 into " the reliance on collateral states of fact " (Wellspacker) ; how
the French hypothec registers gradually became land registers ; how the
land registers are gaining in importance even in England; how in England
the maxim “Hand muss Hand wahren"2 which until quite recently had been
limited to purchases made in the open market (and in part also in a retailer's
shop),3 is, thanks to modern legislation, steadily gaining ground. The law of
possession, therefore, is the true law of the economic order and is most
closely related to the living law of economics. For this very reason it is one
of the most fluid fields of the law. Every economic change at once results in
a change in the law of possession. On questions of possession the
statements of the Roman jurist very often are conflicting. This must be
attributed, in part at least, to changes of opinion. On no other point has
German law offered such unyielding resistance to Roman law, and still it
has itself been changing continually. The English action of trespass, too,
bears a different aspect in every century. The law of possession as found in
the codes of the nineteenth century is out of date at the present time; both
Austrian and French judicial decision must resort to legal material not
contained in the codes.
1 Öf entlicher Glaube des Grundbuches.
2 A person who, acting in good faith, acquires a movable from a

person who is not the owner, but who nevertheless has possession
with the consent of the owner* acquires title. Cf. Posener,
Rechtslexikon, s. v. Hand wahre Hand; Sternberg, Allgemeine
Rechtslehre, vol. II, pp. 71 and 72. Pollock and Maitland, History
of English Law, II, 155 and 172 n.
3 The doctrine of market overt.

In this sense the legal relations of possession were at all times nothing
but the legal side of the economic system of landholding. What does one
mean when one speaks of nations of hunters and of shepherds? Clearly, that
in general these peoples do not know of ownership in land, that they merely
assert a claim to a tribal sovereignty over the territory they occupy — a
sovereignty which grants to each member of the tribe the right of hunt and
pasture. The earliest form of agriculture, however, the raising of field grass,
implies possession of the cultivated land — a possession which is protected
at least by legal self-help. Fixed relationships arise when the two and three-
field system comes into vogue : un» restricted ownership of the Hofstätte,1
partition of the Feldmark2 among the individual families that had settled in
the Höfe,3 ownership in the arable land in Gemenglage4 limited by
Flurzwang5 and Nachbarrechte,6 common ownership of the Allmende,7 of
woodland, and of meadowland.8 A more intensive system of agriculture,
especially the Fruchtwechsel,9 leads to freeing the soil from feudal burdens,
and, in part, to the arising — not until the most recent times, it is true — of
individual rights in the common mark. And lastly, the financial and credit
systems transform the parcel of ground into an object of commerce and
create the modern land law.
1 The individual establishment of the husbandman.
2 The open land surrounding the village.
3 Individual holdings.
 4 Intermixed strips. The shares of the free husbandmen were
distributed in intermixed strips throughout the Mark, i.e. the whole
territory of the mark community.
5 Manner of cultivation prescribed by the village community.
6 Rights of neighbors.
7 The undivided common.
8 For a discussion of the whole subject of the ancient Germanic

system of ownership of land, see Stubbs, Constitutional History of

England, p. 49; B runner, Deutsche Rechtsgeschichte, vol. I, § 11;
and the literature there cited. As to the controversy that has arisen
on this whole question, see Vinogradoff, Village Communities,
Encyclopedia Britannica (1911); Plucknett, Concise History of
English Law, p. 325.^
9 Production of grass for food and of kernel fruits alternately (see

Posenerj Rechtslexikon, s. v. Agrarwesen).

It is true, because of the free ownership of Roman law and of the modern
legal system, the immediate connection between the legal order of
possession and the economic order, between land law and the possessory
order, does not appear at once. Free ownership is apparently the same in
every tract of land, whether there be on it a forest, a mine, arable land, or a
house subject to ground rent. The explanation of this lies in the fact that the
Roman as well as the modern immovable is a result of the process of
freeing the soil from the burdens that had been resting upon it — a process
which created the free Italic soil in Rome at a time prior to the beginning of
historical tradition that cannot be definitely ascertained, and which began to
operate in England in the seventeenth century, and on the Continent in the
eighteenth and nineteenth centuries. Before the soil has been freed from
these burdens, landed property occupies a definite place in a clearly defined
economic and social relationship : The Hof in the village settlement, the
arable field in the Gemenglage, woodland and pasture in the A Urnen de —
all these are an integral part of the social order of the region. Likewise the
claims of the ultimate owner, as well as the burdens and duties of the
usufructuary, are conditioned by their position in society, in the state, in the
whole economic interrelationship. Thus the extent and the content of the
right of ownership in each immovable is determined, either positively or
negatively, by law, i.e. the nature of the right of ownership in a certain
immovable cannot be derived from the concept of ownership. As to the
arable field in the Gewann1 as to woodland and pasture in the Allmende, as
to the Hof of every husbandman in the village, and as to every knight's
estate, (Rittergut), the extent and manner of usage, everything that a
neighbor can demand or is under obligation to permit, everything that the
ultimate owner has a right to demand and that the usufructuary owner must
render, is fixed in each individual case. These restrictions and limitations,
which at a very early period had existed in ancient Rome as well as, though
perhaps not to the same extent as, in the Middle Ages, disappeared when
the soil was freed from its burdens.
1A quadrangular division of the whole Gemarkung^ i.e. of the land
belonging to a village community.

As soon as the soil is freed from its burdens, it is no longer necessary to

say anything about the content of ownership; the owner no longer has to
consider neighbor or inferior, He can do or leave undone what he pleases.
This of course does not mean that the content of ownership is no longer
conditioned by the whole economic order. It means primarily something
negative; i.e. that one kind of constraint which has prevailed until now has
been done away with by the change of the economic constitution.
Ownership must now create its new legal order for itself in accordance with
the economic order. It does this in the sphere of the law of the family and of
the law of slavery as well as by means of free agreement with owners of
adjacent land (Nachbarrecht, i.e. law and right of neighbors) and with hired
workmen. The legal order is busily at work fashioning, by means of a series
of economic precepts, a law of ownership that is adapted to the thing itself
as well as to its economic purpose. These precepts however are usually
being treated as parts of administrative law and therefore, from the juristic
point of view, ostensibly no longer affect the law of ownership. This results
in the conceptually absolute, unconditioned "Roman" right of ownership,
which permits not merely a certain, but any conceivable, use of the object
of ownership. "Roman " ownership is ownership which, by means of
juristic intellectual labor, has been wrested out of its social and eco™ nomic
connection.
 But after all, this ownership is merely a kind of juristic fiction. The
doctrine of the "absolute power of control over the thing" is usually
presented today as if it constituted the entire content of the concept of
ownership, as if there were no Forstrecht (law of forests), Wasserrecht (law
of water), Bergrecht (mining law), no A grarrechi (agrarian law), no
Bauordnungen (building-regulations), and no Gewerbeordnungen (trade-
regulations), as if there were no "conceptual" difference between ownership
of a tract of woodland and ownership of a pocketbook. This was not correct
even in the case of the fundus of the solum Italicum, which, to the full- est
extent possible, was kept free from all burdens and restrictions, and which
forms the only empirical basis for the modern concept of ownership; for
Roman law, too, knew of Forst-, Wasser-, Agrarrechi, as well as of
Bauordnungen and Gewerbeordnungen, even though the greater part of all
this has not been handed down to us, and though, in part, it must be gleaned
from inscriptions, scattered legal sources, and other records. Ownership
(including the real right of usufruct, the right of a usufructuary lessee, at
any rate of the ordinary lessee) of woodland, of water, of a mine, of arable
land, of a building, are from inner necessity quite different things, both
economically and legally. Likewise ownership of, and the real right of
usufruct or of usufructuary lease in, the objects that constitute the aggregate
of things employed in an industrial undertaking may have a totally
dissimilar content according to the kind of undertaking. This is not referable
to diversity in the precepts of the lawmaker. In this field, even more than
elsewhere, the legal precepts are nothing more than a precipitate of that
which has actually been practiced at all times. It is referable to the fact that
it is impossible to exercise the rights of ownership in things of totally
dissimilar natures according to identical principles. The economic nature of
a thing determines the relation between the owner and a neighbor; it
determines the inner organization of the undertaking which it subserves and
the position of the latter in commerce. Inasmuch as the agreements through
which ownership is utilized form part of the exercise of the right of
ownership,1 the content of these agreements determines the content of the
right of ownership. Accordingly ownership of a factory is a different thing
from ownership of a mine; for the contract of employment entered into with
a miner is quite different from a contract with a factory worker; and
ownership of a railroad, for the same reason, is different from ownership of
a tract of woodland, for the railroad freight contract is different from a
contract for removing stumps. For the precepts governing the agreements
upon which the order of property rights in things that serve a particular
economic purpose is based constitute the essential content of the particular
law that exists for these things, e.g. the law of mines, of forests, of
railroads.
1 The statutory limitation of the working day in factories is a most
incisive limitation of the ownership of the factory owner; not,
indeed, of the liberty of contract of the worker, as is often assumed.
— Author's note.

Possession everywhere becomes a legal relation in virtue of its being

fitted into the economic order. Man subjects the natural world surrounding
him to his will by means of his economic activity. In this sense possession
is merely the factual side of the economic order. The objects of possession
increase in number as soon as their usefulness is understood.
Wild animal taming is contemporaneous with the beginnings of cattle-
breeding; land-taking, with the beginnings of agriculture. But methodical
management presupposes not only possession, but also protection of
possession. For it is possible to provide for the future by gathering supplies
and producing goods only in case possession is protected to some extent ;
not until possession is protected can a possessor count on actually retaining
the proceeds of the labor he bestows upon preserving, augmenting, and
utilizing his possession; and therefore in an established economic order,
relations of possession must become legally protected relations of
possession. In every instance therefore the order of possession is a
reflection of the economic order. There can therefore be no doubt as to the
reason for the protection of possession. It lies in the fact that agriculture,
trade, industry, commerce, would be unthinkable without security. The
difficulty which the concept of possession caused to the jurists who had
been trained in Roman law lay in the fact that they were always striving to
define possession without reference to the economic order — an impossible
undertaking. It is much more difficult to explain the reason for the existence
of ownership, except in so far as it closely follows the order which is based
on possession. Here complicated social relations are contributing factors,
and the whole question belongs to the subject matter of another field of
inquiry.
 From this discussion it follows that the sociology of law must, to a
certain extent, treat possession and ownership as interchangeable terms. The
necessity of doing this is accentuated by the fact that both statutes and
juristic science as a rule do not differentiate between the two. Let anyone
attempt to make a clear-cut distinction between these two concepts in the
law of finance, mines, water, forest, or agriculture. Whatsoever is stated in
these departments of law as to ownership, with rare exceptions, applies also
to possession, and vice versa. This is the case also in everyday life, which at
every moment finds it necessary to treat possession as ownership. Only in
those parts of the law of possession that deal specifically with possession
and ownership is a clear-cut distinction made between the two. In these
exceptional cases the sociology of law will also observe the distinction. In
such case, ownership, as distinguished from possession, implies the sum
total of legal remedies that are available to a non-possessor in order to
acquire proprietary possession of a thing.
We have now arrived at the point where we must enter upon the
discussion of the legal declaration of will as a fact of the law. It is neither
necessary nor possible at this point to investigate the factual bases of the
legal declaration of will and of the legal disposition in all its ramifications.
There are only two classes that are of significance in the legal history of the
world, to wit agreement (Vertrag)1 and disposition by last will and
testament. The articles of association of the law of corporations were
originally a statement of the existing usage or a form of agreement, and
therefore are not of independent significance as a fact of the law.
At this point, our discussion will deal in the first place only with the
agreement. Just as a distinction was made between possession on the one
hand and ownership and real right on the other, so a distinction must be
made between the mere fact of understanding and the Vertrag (agreement).
Germanistic legal science, spinning out a thought first expressed by Brinz,
has worked out the distinction between Schuld (debt, obligation) and
Haftung (liability) with extraordinary precision, and by doing so has laid
the foundation not only for the historical but also for the sociological
discussion of the contract. Schuld2 is the Sollen^ of the debtor;4 it is that
which according to the experience of life is considered the content of the
obligation; liability (Haftung) is the right of the creditor to enforce his
claim, a right which secures satisfaction even against the will of the debtor.
And the understanding is converted from a bare fact into a fact of the law
and thereby into a Vertrag (agreement), even though no liabilities
(Haftungen) arise, but merely a debt, or obligation (Schuld). The Roman
contractas gives rise to obligation (Schuld) and liability (Haftung) ; the
pactum (pact) brings about no liability (Haftung), but as a rule brings about
an obligation (Schuld). The pactum (pact) therefore usually amounts to a
Vertrag; the contractus, always. The traditional juristic science, which,
following the Romans, devoted sufficient attention to the distinction
between possession and real right, does not know how to deal with a
parallel phenomenon in the sphere of the law of contracts, although the
Romans have done some preparatory work also in this sphere, by means of
their concept of naturalis obligatio, which Windscheid in his day estimated
at its true value as merely an obligation according to the Ver-
kehrsauffassung (the view of commercial custom).
1 Wherever it appeared necessary in order to avoid
misunderstanding, Vertrag has been rendered agreement, the exact
equivalent; elsewhere, contract.
2 Debt, obligation.
3 The "ought," i.e. the obligation, the duty.
4 "Debtor" is used by the civilians in a wider sense than by the
common-law lawyers. The debtor is the person obligated (der
Verpflichtete).

One root of the law of contracts is the present exchange of goods, or

barter. This did not arise from friendly intercourse between neighbors.
Within the clan, in his own village, man in the lower stages of development
was as little given to making contracts as he is given to doing so today in
his own family group. Interchange of goods was brought about by means of
taking booty or by means of gifts exchanged between a guest and his host.
The oldest merchant is the pirate at a more advanced stage of development,
who has become convinced that it is of greater advantage to himself to trade
with a stranger than to rob him. And the oldest known forms of trading are
closely related to robbery. Shortly before the harvest, the pygmies of Africa
make raids into the fields of the negroes, carry off the bananas, peanuts, and
maize which grow there, and by way of exchange leave behind dried meat,
the chief product of their economic activity. The silent trading that
Herodotus and Pliny tell of belongs to a more advanced stage. "The oldest
agreement is the agreement for the exchange of goods; it can be entered into
without any personal, verbal relations; the chronicles tell of silent trading
between Russians and strangers, neither party understanding the language
of the other." This is Budanow-Wladimirski's introduction to the history of
the contract in his history of Russian law.
The second root of the law of contracts is subjection to the domination of
another. An instance of this is the sale of one's own person. The man who is
in need of seed corn for his economic activity or who has lost more at
gambling than he can pay surrenders himself as a slave to the wealthy lord,
who takes the man into custody for the advance and lets the latter work for
him. Another instance is the enfeoffment with a knight's fee, which
obligated the feoffee to render military and knight's services; another, the
enfeoffment for rent and services, which imposed on the feoffee the
payment of rent and the performance of services; another, the agreement of
commendation, whereby a freeman places his person and his property under
the dominion of a more powerful man, who in exchange for services and
rent promises protection against attack.
In the contract of barter as well as in the contract of submission, there is a
granting of possession; in the former, possession of the thing; in the latter,
of the person. But there are certain subsidiary agreements which are
connected with the transfer of possession, e.g. in the case of a contract of
barter, the warranty that the thing has not been stolen; in the case of a
contract of submission, an understanding about mutual performances, the
promise of the creditor to release the debtor as soon as the debt has been
paid or worked out. In this case the obligation or debt incurred is greater
than the liability (Haftung); for there is no liability in case of subsidiary
agreements of this nature.
But a debt can be secured by means of the possession of a person other
than that of the debtor, or of a thing other than that which was the subject of
the contractual agreement. This happens when a debtor gives a third person
to the creditor as a hostage, or delivers a pledge to him. Until now the
liability (Haftung) consisted in the creditor's keeping the debtor or the thing
that was owed in his own possession until he had been paid. At this stage
however the contractual obligation is severed from the pos- session of the
person or of the thing which constitutes the subject or object of the contract.
The liability (Haftung) becomes self-existent, and the extent, content, and
duration of the liability (Haftung) is determined by the extent, content, and
duration of the obligation; in the last analysis, by the contract. The creditor
who refuses to release a hostage or to return a pledge although the debt has
been extinguished is guilty of man-stealing or of theft, and this at quite an
early time constituted the basis of a claim which could be prosecuted by
appeal to the courts. In the early stages, perhaps, the penalty for such
conduct was death. Limited to the duty to return the person or thing, the
widely entertained view may be correct that contractual obligation became
enforceable by legal action because of the fact that the person obligated
who had not performed was treated as liable to punishment. Apart from
that, the idea that a person who performs his obligations poorly or not at all
is liable for the result™ ing damage arose at a very late time, much later
than the immediate liability (Haftung) based on the contract.
All further development of contractual liability (Vertragshaftung) is a
progressive severance of liability (Haftung) from possession of the object of
the liability (Haftung) and a progressive reception of the content of the
obligation, or debt (Schuld), into the liability (Haftung). The immediate sale
by the debtor of his person and the giving of hostages is superseded by a
conditional sale and by the finding of a surety or sureties. The debtor sells
his person to the creditor only in case he fails to make payment (the
Treugelöbnis 1 of the Germans, the nexum of the Romans, numerous
examples in ancient Russian law), or he finds a surety against this event.
The pledge becomes a wager, i.e. a thing of no value or of lesser value is
given as a symbol. In this way the contracts of subjection and of pledge
gradually become real contracts. At a later time the contract of barter ceases
to be a contract of present exchange and becomes a real contract, i.e. the
very fact that one party has accepted the performance of the other obligates
the former to render a counter-performance. At a later period, the
acceptance of part performance is sufficient, and finally even the
acceptance of an apparent performance (Arrha, earnest-money). This brings
about the liability (Haftung) for the promised performance not only of the
giver but also of the taker. Whether, apart from this, the promise under oath,
whereby the debtor had called down upon himself the vengeance of the
gods if he should fail to keep his promise, was, at this early stage, of
decisive importance for the development of law as a formal contract cannot
be ascertained at the present state of our knowledge. Originally the formal
promise served merely to confirm the compromise providing for payment
of wer gild or penalty.
 1 The pledge of faith.

This imports chiefly that the liability (Haftung) no longer results from
possession but from the contract. The creditor obtains a right of
enforcement against the person or property of the debtor which is
independent of possession, and whose nature and extent are determined by
the content of the contractual debt, or obligation (Vertragsschuld). This
whole development has been placed beyond all doubt as to Germanic law
by modern research ; and Roman law, although it has become known to us
in a much later stage of development, has preserved numerous traces of it. I
think that most probably the few words that Festus has handed down to us
from the foedus Latinum under the key-word nancitor refer to the right of
the creditor to take possession of the property of the debtor. The oldest
Roman action, the legis actio per manus iniectionem, even in historical
times, is a living vestige of the creditor's right against the person of the
debtor. The creditor seizes the debtor wheresoever he finds him, and leads
him away into custody. This is not man-stealing but legal self-help, and
therefore does not give rise to a feud. Anyone who would defend the debtor
must go to the praetor with the creditor. The prevailing view that the
creditor did not perform the rnanus iniectio until he got into court is
manifestly erroneous. We find the legis actio per manus iniectionem among
the southern Slavs as late as the end of the Middle Ages under the name
Udawa. It has been described very vividly by Novakovic, together with the
mitigation which it underwent in the course of time, in a treatise published
by the Serbian Academy of Sciences, chiefly on the basis of Ragusan
sources.
It was not until liability (Haftung) was completely severed from
possession and the extent of the liability (Haftung) coincided with the
content of the obligation (Schuld), at least in principle, that the road was
cleared for the credit contract (Kreditvertrag). The credit contract however
brings about a complete change in the nature of the contract. The contracts
of barter and of subjection thereby lose their original peculiar nature, so that
it becomes possible to extend credit to the debtor, or obligor, for the
counter-performance for which he is liable. The sale of his person by the
debtor becomes a loan of money or of things, the enfeoffment for services
and rent becomes a contract of ordinary and usufructuary lease, to which all
personal subjection and the obligation to labor are foreign (although this
was not fully carried out in Roman law); so that in more advanced stages of
development only the contract for services and wages and the mandate
(Auftrag) remind one of the fact that, at some time in the past, the contract
could bring about personal subjection. The extension of credit converts the
contract of barter into a consensual contract.
Tracing the development of the understanding into a fact of the law, one
must distinguish the following stages: the Barvertrag (contract for present
exchange), the Schuldvertrag (contract creating a debt or obligation), the
Haftungsvertrag (contract creating a. liability), and the Kreditvertrag (credit
contract). The Barvertrag (contract for present exchange) merely effects the
acquisition of possession of the subject matter of the contract. The fact of
the law here is not the contract, but the possession; all the legal
consequences that ensue are consequences of the transfer of possession, not
of the contract. As soon as promises are connected with the transfer of
possession, and obligation (Schuld) is attached to these, the contract, in
addition to the exchange of possession, effectuates an obligation (Schuld),
and thereby becomes a self-existent fact of the law. It is through the
Haftungsvertrag (contract creating liability), which gives to the creditor 1
the right to proceed against the person or property of the debtor which he
has in his possession, that the contract, as a fact of the law which creates
liability (Haftung), is gradually being emancipated from all connection with
possession.
1 I.e. the obligee.

The principle of the Continental common law that informal contracts are
actionable implies that every contract, on principle, brings about debt or
obligation (Schuld) as well as liability (Haftung), and that the extent of the
liability is determined by the extent of the debt, or obligation. This fact has
made it difficult for the common-law 1 jurist to perceive that today, as well
as in the hoary past, in addition to contractas there are pacta (pacts) ; that in
addition to contracts creating liability there are contracts creating merely an
obligation.
We must therefore emphasize so much the more vigorously that the
important thing for the economic life is not the liability (Haftung) but the
debt, or obligation (Schuld) ; that in the great majority of cases it is
immaterial whether a contract is actionable or not, provided only that
according to the rule of conduct which governs life one can count upon its
being performed. In view of the fact that contracts are actionable on
principle, it seems very natural to suppose that in actual life contracts are
being performed only because they are actionable; not only legal history,
however, but also a glance at modern life shows that, on the contrary,
contracts have become actionable because, as a rule, they are being
performed in life. Even today, the contract which cannot be sued upon, and
which effects merely an obligation (Schuld), plays an important rôle in
economic and social life. A very important part of industry is based on child
labor, and most of the contracts for work and labor that were made with
children undoubtedly were absolutely invalid down to the time of the
legislation for the protection of working-men, and many are invalid today.
But that has not prevented exploitation of children from being at all times a
most profitable business. For a century at least, a large part of the business
transacted at the Exchange has been beyond the bounds of the legally
enforcible, and, in part, beyond the bounds of the legally permissible.
Particularly, the social struggles and the economic movements have brought
about a whole series of contracts that are not enforcible; numerous cartel
agreements of entrepreneurs, many wage agreements among working-men,
and most agreements between representatives of labor and of employers
(Tarifverträge) probably are not legally enf or cible.
1 I.e. the Continental common law.

It is necessary therefore to bear in mind that, not only in history but also
in the law that is valid today, in addition to understandings that are
altogether outside of the legal sphere, there are agreements that import an
obligation (Schuld) but no liability (Haftung) ; that import a rule according
to which men regulate their conduct in life, but not a rule according to
which the authorities proceed; and that these contracts are as significant for
the economic life as legally enforceable contracts. Juristic science must not
overlook this. And it must go further. It must bear in mind that the
enforcible contract does not rule the world to the extent that it is being
enforced by the authorities, but to the extent that it has become a rule of
conduct.
Legal history shows us that whenever the contract becomes a fact of the
law, this does not amount to a recognition of the sovereignty of the human
will, but of the rôle actually played by the contract in social and in
economic life. To the law the contract is nothing more than an instrument of
the social and economic order. But the contract becomes a fact of the law,
though only to the extent to which there is a social and economic need
therefor ; and it disappears from life as soon as the need which brought it
about has disappeared. Entering into a relation of protection or into a
contract of enfeoffment would be as impossible today as it would have been
to secure a loan by a hypothec in the Germany of Tacitus. The law of
contracts, too, is nothing more than the legal form of the social and
economic order.
Up to this point it has been possible to base our discussion upon
generally recognized results of comparative legal science and upon the
history of law. The same cannot be said of the law of inheritance, The
prevailing doctrine derives the law of inheritance from the common
ownership of the family; even where the latter no longer exists, it still
produces after-effects according to the prevailing view inasmuch as it gives
to certain kinsmen who in time past had been members of the family
community an inchoate right of inheritance. If this were true, the law of
inheritance would be a development from another legal relation and we
should find it necessary to investigate, not the facts that have led to the law
of inheritance, but those that have led to the inchoate rights of kinsmen.
Sir Henry Sumner Maine, however, in his day, expressed doubts as to the
correctness of this doctrine. It has been refuted, it seems to me, by Ficker, at
least as to the Germanic peoples, to whom it was originally attributed.
Ficker has, as I believe, conclusively shown that the law of inheritance is
older, even among the Germans, than the inchoate right of the members of
the house community, that the owner may, at a time at which there exists a
fully developed right of inheritance of the kinsmen, dispose of his property
freely without concerning himself about the claims of his children, to say
nothing of the claims of more distant kinsmen.
The early history of the law of inheritance must begin with the house
community. The law of inheritance has its roots in the house. We are
concerned here with two questions. First of all, to whom did the estate
belong if the deceased lived in a house community; and, secondly, to whom
did it belong if he lived alone, perhaps surrounded only by uni ree persons
or servants? The latter case manifestly occurs very rarely in primitive
society, perhaps never; but it does occur with increasing frequency at a later
period in a well ordered state, which makes it possible for a person to live
alone. It is easily understood that the property of the deceased that was not
put into the grave with him became the property of the members of his
house community who had dwelt and worked together with him in the
household. This indeed applies only to his movable possessions, for this
order obtains even among hunters and cattle-breeders, and is therefore older
than ownership of land. The members of the house community of the
deceased need not take possession of the goods of the latter, for they are in
possession at the moment of his death, and they are in position to resist
interference by a third person with the same means as during the lifetime of
the deceased. The members of the household remain in possession of the
goods the latter left behind, and carry on as they always did ; the situation
has changed very little ; the number of persons in the house has merely
been decreased by one. The fact of the law, then, at this stage, is possession.
But the primitive law of inheritance has not progressed much beyond this
remaining in possession on the part of the members of the house
community. Accordingly if the deceased has not lived in a house
community, his estate becomes ownerless. Among the Romans and the
Germanic peoples clear traces of this state of affairs remain even in
historical times. The most important traces however are to be found among
the Slavic people, whose oldest legal monuments present a most interesting,
very early stage of development, which the other people of Europe had
passed through long before their legal tradition was recorded in writing. To
the Russians, the Poles, the Masovians, the Czechs, the Moravians, and
perhaps the Serbs, of the eighteenth century, the right of inheritance of the
collateral kindred is still an unknown thing; in the case of a death without
an heir, the estate is “leer"1 and escheats to the ruler, or, in case of an unfree
person, to the lord.
As to the limited recognition by the Slavic codes of the fourteenth
century (the statute of Wislica, and the code of Tsar Duschan)2 of the right
of inheritance of the collateral kindred, the very wording shows that it is an
innovation. Among the Slavic peoples, the princes, whose power had
developed very rapidly, manifestly acting in their own interest, retarded the
right of inheritance of the collateral relatives for a long time because it
curtailed the right of escheat. Among the Bohemians and the Poles, the
right of escheat of the princes may be traceable to German influences;
among the Russians and the Serbs, to Byzantine influences.
 It has been shown that the declaration by last will and testament did not
become an effective post mortem disposition until a very late date. Before
that time all that could be done was to receive a stranger into the house, and
this had the effect that the goods of the head of the house would pass to the
person so received equally with the other member of the house community.
1 Vacant, i.e. ownerless.
2 Arts. 41 and 48.

A little later the gift mortis causa with present delivery, but with legal
effect postponed until the death of the donor, made its appearance; then the
Treuhand transaction, whose importance for universal legal history was
shown in the truly pioneering work of Robert Caillemer. In the Roman law
of inheritance the Treuhänder 1 appears twice: &sfamiliae emptor and as a
fiduciary. The English uses and trusts also have their roots in the
Treuhänder transaction. Here too, therefore, the law of inheritance shows
no independent characteristic features; it follows the order of possession
and makes use of the contract. The effect of receiving a person into the
house (arrogatio, adoptio, adfatomie) 2 is that the person received has
immediate possession of the goods of the deceased; the gift mortis causa
and the Treuhand transaction are effective in conjunction with transfer of
possession. The disposition did not become a self-existent fact of the law of
inheritance until the testament came into use.
The economic significance of the law of inheritance does not appear so
clearly as that of the other legal institutions, for in this department several
currents frequently cross and interfere with each other. The chief concern is
the continuation of the economic undertaking. This appears quite clearly in
the case of the peasant family household. In this case the economic
undertaking is continued without much ado by the survivors; but this is not,
properly speaking, a law of inheritance, for the family household is
immortal. If there are no survivors, the economic association collapses, for
there is no one to continue the undertaking. This is simply another way of
saying that the estate is ownerless, or that the ruler, supported by the
military power of the state, takes possession of it. Before long however
endeavor is being made to preserve the inheritance for the former members
of the household or for the kinsmen. The purpose of the law of inheritance
thereafter is to serve not an economic but a purely social association, the
family. Undoubtedly there is the secondary thought that the kinsmen will
continue the economic undertaking of the deceased, but a glance at the
actual state of the law of inheritance shows to what extent in this very
matter of the succession of the kindred the economic point of view has been
thrust into the background by the social. It is self-evident that only where,
as in English law, the right of inheritance of the firstborn prevails, has
precaution been taken against the destruction of the economic undertaking
through the collapse occasioned by the succession; but the motive in this
case, too, was consideration for the family, and the whole institution was
not thought out on economic lines. Hence the strong and significant
endeavor to preserve the economic undertaking by means of adoption or of
dispositions mortis causa. Where the law of inheritance is non-economic in
an especially high degree like the later Roman or the modern Continental
law, making a last will and testament is considered a duty; and dying
intestate is a great misfortune. Even where there is a declaration of will by
last will and testament, non-economic influences are brought into play; such
as consideration for the family, which is often protected against loss of the
inheritance by means of a testamentary disposition; consideration for the
church; consideration for institutions for the public welfare; and finally
reverence for the dead. These were purely social forces, but they gave effect
to declarations by last will and testament long before the latter were
recognized by the authorities.
1 The Salmann of the ancient Germanic law.
2 Adfatomie or anatomie is one of the two forms of adoption in the

ancient Germanic law.

Without doubt it would be a great mistake to consider the economic

phenomena and fail to take the other social phenomena into consideration.
The state, the church, education, art, science, social life, entertainment, play
a rôle in the life of society no less than economic labor. We have therefore
pointed out the significance of non-economic influences, particularly in the
discussion of the human associations and of the law of inheritance. It is
self-evident that they assert themselves at every moment in the relations of
domination and subjection and in the law of possession and of contract. We
must not forget in this connection that the economic situation is the
presupposition for every form of non-economic activity. The state can be
maintained, the church can be served, education can be provided, art and
science can be fostered, time and means for social life and entertainment
can exist, only to the extent that the national economy produces returns that
are greater than the amount required to satisfy the needs of the workers. For
this reason an understanding of the economic order is the basis for an
understanding of the other parts of the social order, especially of the legal
order of society.
If we fix our attention on the facts of the law in the very be« ginnings of
social life, we shall see that all of them can be traced back to two, to wit the
human association, which is kept together and regulated by usage, as the
subject, and possession, the social relation which becomes a legal relation
within the association, as the object. In the beginning all domination seems
to have been based on possession of the subjected person in an association.
The contract consists in unilateral or reciprocal transfer of possession or in
self-surrender into the possession of another ; the law of inheritance
consists in this, that the kindred of a deceased keep for themselves that
which hitherto they have possessed in common with the latter, and that they
divide among themselves that which the latter possessed for himself in the
common household. All law then arises from the fact that within the
association there is added to respect for the person of the members respect
for his possessions, and that this becomes the basis of the general order and
the general rule of conduct. At a later stage, the possession of a human
being becomes the right in the human being (relations of domination and
family relations), and finally the right to demand a performance from a
human being (personal liability);1 possession of a thing becomes a right in
the thing or the right to various emoluments of the thing (ownership and
real rights) ; and finally possession of the thing on the basis of a contract
becomes a right in the thing based on a declaration of the previous
possessor. From this time forth all development of law consists in the slow
development of the norms which command respect for the person of the
member of the association and for his possessions and in the development
of the latter into norms for the peaceful exchange and transportation of
goods, in the extension and the differentiation of the human associations
into an increasingly comprehensive, intricate, and diversified organization
of the human family.
1 Persönliche Haftung.
 We may perhaps be permitted to spin this thought out a little further. In
the simple associations of the peoples on the lowest level of development
known to us, there is neither possession of things nor contracts. The order
of the association is based chiefly on. usage, and perhaps on domination
over women and minors. The fact of this domination is sufficiently
explained by the fact that the peoples who are found on the lowest level of
development known to us have, after all, reached a certain stage of
development at which differences of sex and of age give rise to associations
within the associations. In the oldest associations, which have long since
disappeared, usage, most probably, was the sole ordering element. And also
in the original association of our present-day society, in the community of
the family household, possession and contract are very far from being
looked upon as facts of the law. Here too the whole order is based on usage
; the more so, the better and more intimately the family life is organized.
Contracts that are made with reference to family relationships (especially
contracts concerning matrimonial property) are made solely for the purpose
of regulating the situation in case of dissolution of the community of the
household. So long as the family is not disrupted, and its members get along
well with one another, usually no one gives thought to contracts, much less
to possession. Among all the facts of the law, therefore, usage is the sole
primitive one. Possession and contract become facts of the law only in the
higher associations, which are composed of several simple associations, and
they are not found at all where there are no composite associations of this
kind. As to these two facts of the law, possession is evidently older and
more primitive than the contract. Where possession does not govern the
relations within the associations, the latter either have not yet been
combined into an association of a higher order or they have already
dissolved the latter; in either case they are at war with each other. Even
today possession determines the reciprocal relations of people who, being
associated in a but loosely knit association, wish to get along peaceably
with one another. One may instance the occupying of seats and chairs in a
railway coach and on a ship, and the monopolizing of newspapers in a café ;
the rules as to standing in line at a ticket-window or waiting one's turn in a
waiting room are also related to the rules of possession. The contract
presupposes a much closer relationship; the closer, the more completely it is
severed from the bare transfer of possession. A contract that involves more
than a present exchange, even an understanding that has absolutely no
binding force, is usually made only with acquaintances, persons of the same
social class, business friends, or business men, in foreign countries perhaps
with fellow-countrymen.
The whole economic and social order of the human race is based upon
the following small number of facts: usage, domination, possession,
disposition (usually by contract or by testamentary disposition) . These facts
by their very existence determine the rules of conduct for the human
associations that are comprised in human society. These rules, self-
evidently, are not exclusively legal norms. They are the elements into which
the infinite diversity of the phenomena of our legal world, and in part of the
world of the other norms, resolves itself. Every small human society creates
its own order self-actively and where the smaller associations combine, or
are combined, into larger associations the combined association must
indeed, in its relations with its component parts, create a new order, but
must needs also, substantially, take over the order which has already been in
existence in the original cells, and in general leave it in the form into which
it had developed there. Indeed it is very simple, but extremely superficial, to
believe that, at the present time, the state creates the order everywhere. In
spite of the state 1 law of the family, which allegedly is the same
everywhere, there are no two families exactly alike; in spite of the state law
of communes, there are no two communes exactly alike; in spite of the law
of societies, there are no two societies exactly alike; in spite of identical
laws of property, of contract, and of trades, there are no two agricultural
establishments, workshops, factories, and, self-evidently, contracts, that are
exactly alike. The differences appear much more distinctly if one considers
not only the wording of the regulation and of the contract (a superficial
proceeding), but also the way in which these are being applied and
habitually entered into in the individual associations. The center of gravity
everywhere lies in the order which the associations create for themselves,
and life in the state and in society depends more upon the order of the
associations than upon the order which proceeds from the state and from
society.
1 I.e. the law created by the state.

But this great diversity must not cause us to overlook the uniformities.
The latter are based on the fact that the conditions of the economic and of
the social life of the various associations are to a great extent, both as to
time and place, and in part too, independently of time and place, so uniform
that a great number of identical rules necessarily result from this uniformity.
In addition, there are direct borrowings. For as to content norms do not arise
anew with every new association. In every society there is in existence a
great store of legal and extra-legal norms which live in the consciousness of
men. In the course of millennia it has been accumulating within the
associations which came into being in the far distant past. And men who
unite to form a new association bring this store of norms with them, having
inherited it, or having acquired it by study. Each new generation has begun
with that which the primitive ages, lying far behind us, have created in their
as yet very simple associations. It has taken over the greater part of it
unaltered; that which has become unsuitable it has discarded; other parts it
has moulded over into special forms for special purposes; some parts,
especially in case of organizations of a legal nature, it has posited expressly
by means of statute or contract. Each new family, in essentials, reflects the
existing family order; each new economic undertaking, in its characteristic
features, follows the legal as well as the extra-legal constitution of
undertakings of a similar nature; every newly made contract derives the
greater part of its content from the traditional content of contracts of the
same kind. And every new development which arises for new purposes, and
which stands the test of time, is added to the treasure of social norms, and
serves to guide later associations. There is an endless and uninterrupted
process of adaptation to new needs and situations, in which is embodied, at
the same time? the development of the human race and of its norms. It may
suffice to instance the great number of new norms, not only of law, but also
of morals, ethical custom, honor, good manners, tact, and perhaps, at least
in a certain sense, etiquette and fashion, which have come into existence in
the course of the last decades in consequence of the social movement in the
various associations which it has occasioned or for which it has created a
new order.
A fact which is an isolated occurrence in society is not a social fact; it
cannot bring about social norms, and it will remain unnoticed by society. It
cannot be considered a component part of the social order until it has
become a common phenomenon. When a group of human beings of a
certain kind, let us say a particular form of family life, a new church, a new
political tendency, a relation of subjection, a form of possession, a content
of a contract, becomes an important and permanent phenomenon because of
common occurrence, then, and not until then, society must take cognizance
of it. It must either reject it, if need be, combat it, or it must receive it into
the general social and economic order as a suitable means for the
satisfaction of social and economic needs. After this has been done, it
becomes a new form for the organization of society, and thereby a social
relation; under certain circumstances, a legal relation.
VI The Norms for Decision

COURTS do not come into being as organs of the state, but of society. Their
function originally was merely to determine, upon authority given by clans
or families which had entered into a close relationship with one another,
whether a quarrel between the members of different associations could be
composed by payment of a penalty or whether it could be expiated only in
blood, and eventually to determine the amount of the penalty. It is not until
a much later date that courts are being erected by the state for matters that
directly concern the state, e.g. attempts on the life of the king, trading with
the enemy, violation of the military order. At a later time, the state gains
control also over the courts of the former class; but the distinction between
administration of justice by the state and by society continues today in the
distinction between the jurisdiction of criminal and of civil causes, in spite
of the extensive encroachments of the criminal courts upon the one-time
purely social sphere. But the courts were never completely converted into
state institutions. Society has always had, and has kept to the present day,
courts of its own that are independent of the state; and courts of this kind
come into existence from time to time even today. Though the prevailing
juristic science applies the term courts only to the state organs for the
administration of justice, with which it must concern itself professionally,
the sociology of law, when it defines the term court, is concerned only with
the question whether or not the institution involved performs the general
functions of a court. Considered functionally, the court is a person or a
group of persons who are not parties to the controversy and whose function
is to establish peace by the opinion which they express about the subject
matter of the controversy. This opinion has no binding force even when
pronounced by a state court of primitive times; it is a mere opinion. He who
refuses to submit may resort to self- help, to a feud, but he puts himself in
the wrong, and loses the purely social advantage of having a just quarrel. At
the beginning the court, even the state court, has no means whereby to
coerce a contumacious person who refuses to appear though he has been
summoned, or who flouts its decision, other than exclusion from the
community (exile), whereby the person excluded becomes an outlaw, and
must wander about, seeking rest and finding none, until he is either killed,
or reduced to slavery, or received into another community. At this stage the
death penalty, which is found at a very early time, is merely a sacrifice to
the gods, among the classical peoples, to the gods of the nether world, the
victim for which is the outlawed person.
If we consider only the functions of the court, we must include among
the courts quite a number of variously named institutions for the social
administration of justice, whose relation to the state is a more or less distant
one: courts of honor, courts of discipline, courts of arbitration, courts of
societies, courts of conciliation. For the social jurisdiction of English clubs
a special body of law and a special technique have been developed. The
decisions of these tribunals are subject to attack in the courts of the state
and to review by the latter. Nothnagel discusses all these phenomena in the
work already referred to, entitled Exekution durch soziale
Interessengruppen.1 The judgments of all of these courts, like those of the
courts in primitive times, are limited to exclusion from the group. On the
other hand administrative tribunals created by the state, especially the
police and in part the presiding ofiicers of bodies of representatives of the
public, doubtless exercise a judicial function. Courts, of whatsoever
description they may be, must not render their judgments arbitrarily or
without giving reasons, but must base them on general principles. The
norms for decision upon which the latter are based invariably appear as the
result of an inspiration of higher power and wisdom ; nay, indeed, at a
lower stage, as the result of an illumination by the godhead. The norm for
decision, like all social norms, is primarily a rule of conduct, but only for
the courts. It is not, primarily at least, a rule for the men who are the doers
in life, but for the men who sit in judgment upon the doers. In so far as the
norm for decision is a legal norm, it appears to be a legal norm of a special
kind, different from the legal norms that contain general rules of conduct.
 1 Enforcement of judgments by social groups having common
interests.

Whence do the courts draw their norms for decision? To render a

decision in case of a quarrel means to delimit the spheres that are in dispute,
above all things to delimit them just as they had been delimited before the
quarrel arose. This delimitation is indicated, in the first instance, by the
inner order of the associations as it existed at the beginning of the quarrel.
Every norm for decision therefore is based primarily upon this inner order,
i.e. the facts of the law, which create the order, upon the usages, which
assign to each individual his position and his function in the association,
upon relations of domination and possession, contracts, articles of
association, testamentary dispositions. In every quarrel the point involved is
that a norm which is based on these facts has been violated, and in all
litigation, in order to be able to render a decision, the judge must ascertain
these facts either from his own knowledge or from the evidence. All these
facts constitute the basis of the decision just as they have developed and
taken shape in the concrete association before the quarrel arose.
In the past there has frequently been a toying, especially among
exponents of the natural law theory, with the thought that the whole law
must be susceptible of being summed up in a few clear propositions that are
obvious to unaided human reason. They evidently had an idea, quite vague
indeed, that the existing usages, relations of possession, contracts, articles
of association, testamentary dispositions, were sufficient for the rendering
of judicial decisions, and required only a few additional rules to
complement them. But he who adopts this view fails to see that the norm
for decision is always something more than and distinct from the inner
order of the association. Even where the norm for decision is based directly
upon an order of an association that is formulated in express words, even
where it goes back to a bylaw of a society, to a contract, or to a last will and
testament, it is always a thing quite distinct from the inner order of the
association; for a relation as to which there is a dispute is something
different from the same relation at peace. That which before had been
adaptable and flexible has become rigid, immovable ; vague outlines have
become clear and sharply drawn, and often a meaning must be read into the
words that the parties had never been clearly conscious of. But the judge in
a law-suit has duties to perform with reference to the relation submitted to
him for decision which involve more than this relation, which have
remained altogether foreign to the experience of the associations so long as
they were left to themselves; and as to these duties he can learn nothing
from the inner order of the associations. For such cases, he must have at his
disposal norms for decision which are independent of this latter order.
We must consider chiefly the requirements of the administration of
justice as such. Every social association is, to be accurate, a special case
that cannot be duplicated anywhere in the world. There are no two families
in which the position of the father, the mother, the children, the servants, is
exactly the same; no two parts of the world in which the identical relations
as to land-holding obtain; no two contracts, by-laws of corporations,
testamentary declarations, that do not differ from each other; in addition to
the differences in words and phrasing, there are differences in the relations
of persons and things. It is self-evident that one sees these differences
becoming greater and greater as one considers wider spheres; in different
communes, provinces, nations, the associations present different pictures.
The administration of justice cannot function where there is such a medley;
for technical reasons, if for no others, it must reduce the same to simple
formulae. This is done by means of universalization and reduction to unity.
Social relations are judged according to the form of relations of this kind
that prevails in a given locality, or the social relations of a whole country
are judged indiscriminately by the form of these relations that prevails in a
certain part of the country or in a certain social class. If it is customary in a
given locality for the husband to have absolute power of disposition over
the property of his wife, a disposition actually made by a husband is held
binding on the wife with utter disregard of the question whether or not this
was the custom in the given family«
If it is a general custom of the country that everything that the lessee has
inseparably attached to the soil becomes the property of the owner of the
land, this custom is treated as the common law of the country, and an action
by the lessee for such expenditures is dismissed everywhere even though
this custom cannot be shown to exist in this or that part of the country. This
is the process called universalization. But courts go further than this. An
order which is in conflict with the general norm is held invalid even though
its existence is clearly proved. By this means the law is made unitary. This
results in general and unitary norms for decision, but not in a general and
unitary living law; and individual as well as local differences may well
continue to exist beneath the crust of external uniformity.
But the associations themselves require norms for decision for their own
completion and perfection. In their normal state, they are supplied with
norms for those situations only which the parties involved have anticipated;
every new situation, which has not been anticipated, confronts them with
the necessity of finding new rules of conduct. This indispensable task of
completing the structure of the associations is usually performed from
within. If a father contracts a second marriage, the relations of the members
of the family to each other are dislocated at once ; the family must try to
create a new order for itself ; a few norms that have prevailed hitherto are
given up, and new ones are received. If leased property is employed in a
new form of economic enterprise as to which nothing is said in the contract
of lease, the parties must arrange their relations accordingly. In many cases
an unconscious adaptation takes place; in others a new contract is entered
into. But it is the difficulties created by such an unanticipated event that
most frequently cause the parties to appeal to the judge. The judge cannot
find the solution in the inner order of the association; for the latter has at
this very juncture proved unable to create an order. He must have special
norms for the decision of the case at hand.
In addition it must be remembered that in every case when a quarrel or
controversy arises, the associations have usually got out of their established
order into a state of disorder. It would be foolish thereafter to try to make
the norms of the association the basis of a decision, for the latter have lost
their ordering power in the association. Special norms are required, not for
the peaceful relation but for the legal dispute. And these will often differ
from the former even as to content.
The compilers of the Civil Code for the German Empire were ill-advised
when they made the V erwaltungsgemeinschaft1 the normal statutory
matrimonial régime. As long as the spouses get on well with each other, the
marriage will automatically establish the Verwaltungsgemeinschaft of the
Civil Code as its order; the wife will entrust her husband with the
management of her property even though there be no statutory provision,
will not exercise a special supervision or demand a detailed accounting. The
spouses who get on well with each other have no need of a judge, and it was
a superfluous thing to establish Verwaltungsgemeinschaft by statutory
enactment where it was already in existence. But if the marriage relation
has become inharmonious, the love and confidence which hitherto has
induced the wife to live with her husband in Verwaltungsgemeinschaft has
disappeared. The statute ought to have selected the régime of separation of
goods; for this régime alone can protect the wife, in the case of an ill-starred
marriage, against abuse of the husband's power. No one has failed to see
this in the case of ordinary community of property. It is just barely
conceivable that an able and honest business man might enter into a
partnership with an utterly incapable and indiscreet man, and in such case it
would be a good arrangement if the former should by contractual agreement
take away from the latter the right to inspect books, letters, and accounts.
But such a prohibition is effective only as long as the partnership relation is
peaceful, as long as the other party submits to it, in order to maintain the
partnership perhaps, but it is not effective as a norm for decision. If the
partnership relation should give rise to litigation, the courts must not be
bound by this prohibition.
1 Verwaltungsgemeinschaft, community of administration, joint
administration. This term describes the statutory matrimonial
régime, as Schuster says (Principles of German Civil Law, p. 499,
n. 1), on the lucus a non lucendo principle. The husband is the
exclusive manager.

The legal dispute also has its peculiar needs. Certain questions do not
arise until the quarrel has begun. How they are to be solved cannot be
determined by the inner order of the association ; for the latter is not an
order of war, but of peace. In the very earliest beginnings of administration
of justice, in the most common case that came before him, the judge had to
find norms for decision that went beyond the inner order of the associations
themselves. If it was a question of homicide, it was incumbent upon him to
decide not only whether the complainant was entitled, on the basis of the
inner order of his clan, to demand a penalty, and whether the defendants,
were liable according to the order of the clan, perhaps as members of the
clan, but over and above that, what the amount of the penalty was to be. On
these points, he cannot find anything in the inner order. This is true to a still
greater degree in the more difficult and more complicated relations of later
times. It will not suffice to award the parcel of land to its owner with all the
powers and privileges which ownership gives in the experience of life.
What is to be done about the crops which the previous owner has planted,
about the work and labor he has done and the expenditures he has made? It
will not suffice to enforce the contract as it was made; the judge must
render judgment on things that the parties never thought of. What happens
if the thing the debtor was obligated to deliver has perished before
performance could be rendered? What if it is of a nature quite different
from that which has been presupposed? The person who renders the
decision can answer questions of this kind creatively only if he is guided by
the form which the relations of life have assumed, not in peaceful
development, but during the course of the litigation. To this group belongs
the whole law of damages, of compensation for unjust enrichment, the right
of avoidance (actio Pauliana), the provision of the material1 law
concerning the protection of legal rights, the principles concerning the duty
of allegation and proof, and the legal effect of a judgment. We are here
presupposing throughout, not a living order, but litigation about an order
that is dead.
1As to the distinction between material and formal law
(Materielles und formales Recht), see Posener, Rechtslexicon, s. v.
Materielles und formales Recht.

The last group consists of those norms for decision that have arisen from
the clash of the spheres of influence of several associations. In our present-
day society, every human being primarily is a member of the state; the
spheres of the various other associations to which he belongs are largely
intertwined, and all are within the sphere of power of the state. The forces
inherent in the associations which cross and embrace one another are
variously distributed, and the struggle among them is usually carried on
within several spheres at the same time. This struggle, to a very great
extent, is about the norms according to which the courts render their
decisions. An extreme measure of parental or marital authority may be
proportionate to the distribution of power within a certain family or within
the family in a certain class or locality; but it is in conflict with the general
order of the family in the state and in society, which have impressed their
stamp upon the prevailing norms of law of morality, of ethical custom, of
etiquette. The state and society therefore will not tolerate it, and will
attempt to bring about an order which is more in harmony with the views
that prevail generally, at least when appeal is made to its courts for the
settling of disputes. Every wage contract, however disadvantageous to the
working-man, will reflect quite accurately the relation of power that
obtained between the employer and the employe at the time the contract
was made. But if the working class obtains a greater measure of influence
in society, it will attempt to shape the wage contract according to its ideas; a
movement will arise within society which will stigmatize one or the other
provision of the contracts of wages as contrary to morality and decency, and
which, perhaps, will attain power enough to influence even the norms for
decision applicable to wage contracts.
The courts decide on the basis of their norms for decision whether a
social norm has been transgressed or not. The prevailing juristic science
takes for granted that it must be a legal norm that has been transgressed,
that the object for which courts have been erected is not the protection of
non-legal norms. But it is evident that this can apply only to the organs of
the state for the administration of justice. And even as to these it is true only
if we call every norm according to which a court renders a decision a legal
norm. But if we do that, the question becomes a mere question of
terminology. If we consider the inner content of the norms according to
which the courts must render their decisions — and that is the only fair way
to proceed ■ — we shall be convinced that the non-legal norms play an
important rôle even in the courts of the state.
In a primitive stage of development, there is so little differentiation
between law on the one hand and morality, religion, ethical custom,
decorum, on the other, that the administration of justice utilizes them all
indiscriminately. The Roman prudentes and the German Schöffen1 appeal
without hesitation to morality, ethical custom and decorum; the English
judge, who at the present time is perhaps the only heir of the traditions of
the ancient judicial office, does the same thing. But all of these are bound
by the ever recurring limitation that non-legal norms may be used only to
eke out the positive law, to act as stop-gaps; the judge therefore is not
authorized to disregard the legal norms in favor of the non-legal ones. The
principle is extremely elastic, and occasionally the limitation which it
imposes upon the discretion of the judges can scarcely be felt; nevertheless
it is of very great importance. It imports that the bases of our social order
that have been expressed in legal norms may not be disturbed by other
social orderings and rules. It does not apply therefore when the state itself
intervenes in the administration of justice. The Roman praetor, the king in
the Frankish and in the German kingdom, the English chancellor, render
decisions according to fairness or according to morals, i.e. according to
non-legal norms, and occasionally even contrary to the established law.
From these decisions, it is true, legal propositions subsequently evolve.
Although the praetorian law and English equity grew chiefly out of norms
of morality, ethical custom, and decorum, they became separate and distinct
legal systems in the course of time. This however merely shows that the
chief difference between law and non-legal norms of this kind is a matter of
stability, certainty, and the general conviction as to their social importance,
not of content.
1 A layman who sits on the bench as an assistant to the legally
trained judge.

Even in the courts of the Continent, however, which had been completely
transformed into state courts, which had become exclusively organs of the
administration of justice, the principle that the courts must base their
decisions exclusively upon the law was never more than a matter of
seeming. The rule of law itself continually refers them to other social
norms; it will tolerate no abuse of the law which violates morality, ethical
custom, or decorum; it forbids immoral contracts; commands performance
of contracts according to good faith and the custom of everyday life;
provides penalties for insults, for violation of the proprieties and for gross
mischief» It entrusts the decision to the free discretion of the judge; and that
often means to a discretion based on other than purely legal considerations.
But the administration of justice actually goes much further than the law.
The fact that the judge was rigidly confined to the law in every respect has
hitherto merely prevented the judges from openly making non-legal norms
the bases of their decisions, but not from doing so in various, sometimes
very transparent, disguises. The holding of the French courts that the owner
of a building may not let a shop to a competitor of his tenant in the same
building, on the ground that according to the statute he has impliedly given
to the latter a warranty de tout trouble, amounts to a recognition of a
principle of propriety which the wording of the statute does not express
even approximately. Generally speaking, the non-legal norms of morality,
ethical custom, and decorum become legal norms so readily that in most
cases a differentiation is altogether impossible. In Lotmar's book Der
unmoralische Vertrag, (The Immoral Contract), the basic features of this
process are presented with reference to a single instance in an
incontrovertible manner, although in other respects the ideas we have
presented here are quite foreign to this book.
All of this, of course, does not mean that the courts should, without more
ado, render their decisions according to non-legal norms. All legal
propositions are not suitable for norms for decisions; a fortiori all non-legal
norms, taken indiscriminately, are still less so. To make a proper selection is
a task of enormous difficulty — a task which makes much higher demands
upon the powers of the judge than the mere application of law. The strong
tendency on the Continent to make the judge merely a ministerial servant of
the statute who has no right to exercise any discretion whatever arises, I am
convinced, from a suspicion that he is not equal to so difficult a task. The
Roman prudentes, the English, and, in part, the French judges, have proved
their ability in this matter; and the Oberappellationsgericht1 at Lübeck as
well as the Oberhandelsgericht2 at Leipzig have demonstrated that the
German judge, too, possesses the necessary ability. And, lastly, the work
must be done at all events, and it is being done today. And if it must be
admitted that, as a result of the imperfect regulation of the administration of
justice, it is being done in a most exceptionable manner, we may
nevertheless say that one cannot solve a difficulty of this nature by closing
one's eyes to it.
As to courts other than those that are organs of the state for the
administration of justice, the contention is no longer made that they arrive
at their decisions on the basis of legal propositions. The administrative
tribunals of the state, the police, the courts of discipline, the presiding
officers of bodies of representatives of the people, must very often render
judgments based on the norms of morality, ethical custom, honor, decorum,
tact, etiquette. This applies to an even higher degree to the non-state courts,
the various courts of arbitration, courts of societies, courts of honor, courts
of cartels, courts of trusts, courts of trade-unions, courts of clubs. In
ecclesiastical courts, religious norms also play an important rôle. The police
imposing a penalty for a violation of decency; the presiding officer of the
Abgeordnetenhaus 3 reprimanding a member for violation of parliamentary
custom; the court of honor compelling an officer to resign because of a
breach of the code of honor; the disciplinary court condemning an official
for injuring the reputation of the class (by failure to exercise sufficient tact)
; the court of a club excluding a member for non-payment of a gaming debt;
the court of a cartel ordering a boycott against an entrepreneur for
furnishing goods to an entrepreneur against whom a boycott had been
declared; the court of a union declaring that a member is not in good
standing for having worked during a strike — all of these are courts which
are erected and maintained by society itself, and which, on the basis of
norms which are preponderantly extra-legal, display a fruitful and ever
increasing activity, and, in part, have means of compulsion at their disposal
which are of greater effectiveness than those of the state tribunals. In the
book of Nothnagel, to which I have referred repeatedly, much material has
been gathered on this point, which, though somewhat out of date, is
nevertheless useful at all times.
1 High court of appeals.
2 High court of commercial appeals. 3 The chamber of deputies.

The norm for decision contains the general proposition on which the
decision is based, and thereby sets up the pretension that it is a truth which
is valid, not only for the specific case under discussion but for every like or
similar case. A judgment decreeing that the wergild is to be paid to the
brother of the slain man by the brother of the slayer establishes a rule that,
in the clan of the slain man at least, a brother always has the right to assert
the claim; that, in the clan of the slayer, a brother is always liable. A
judgment allowing recovery against the defendant on the basis of a contract
implies that under the circumstances of the case an enforceable claim arises
from a contract of the kind in question. Even a decision of the question by
casting lots, as is often done on a lower level of development, amounts to a
general acknowledgment that in cases like the one in dispute the party in
whose favor the lot is cast wins.
This is the law of the stability of legal norms, which is of such vast
importance for the creation of law. It is based, in the first place, on social
psychology. Rendering contrary decisions in like or in similar cases would
not be law and right, but arbitrariness or caprice. It is based also on a certain
sound economic quality of thinking. The expenditure of intellectual labor
which undoubtedly is always involved in seeking norms for decision can
often be avoided by rendering a decision according to a norm which has
already been found. Moreover there is a great social need of stable norms
for decision, which make it possible in a limited measure to foresee and
predict the decisions and thereby to put a man in position to make his
arrangements accordingly.
The law of the stability of the norms for decision functions chiefly in
time. The court will not, without good cause, depart from a norm which it
has applied in the decision of a case as long as the norm is remembered, and
often special measures are being taken to prevent its being forgotten. But it
functions in space also; for the norms for decision which have been found
by one court will readily be applied by other courts which exist in the same
sphere of influence, if for no other reason, in order to avoid the labor
incident to finding norms. Since the courts, in a more advanced stage of
development, at least inasmuch as they are the organs of the state for the
administration of justice, are given a local competence, their norms for
decision also become competent and fixed for this territory, and where
several courts enter into reciprocal relationSj for the territory of all of these
courts.
The sovereignty of the state in the field of law,1 which is so significant
for modern law, is based on the stability of the legal norms. The prevailing
modern belief that Rechtsgebiet2 and Staatsgebiet3 are identical arises from
the fact that the courts within the territory of a certain state consistently
follow certain norms of decision. The stability of the norms for decision
receives a special significance because of the fact that it extends not merely
to like or similar cases but also to cases that are only approximately similar.
This makes it possible to apply a norm to cases as to which it is not a
decision at all, on the sole ground that the latter are similar to the decided
cases. Every such decision, indeed, is based on a new norm for decision, but
the content of this new norm is merely this: that the existing norm is
applicable to the case. The new norm has extended the sphere of application
of the original norm and enriched its content; and every such extension and
enrichment in turn functions according to the law of the stability of the
norms for decision. Juristic law-making is based chiefly on this continued
projection, as Wurzel has called it, of the norm to new cases. Thanks to this
law of stability, the norms acquire an extremely tenacious life and an
enormous extensibility. Every reception of foreign law is an instance of the
operation of the law of the stability of the norms. Many a norm which,
possibly, the Roman pontifices have thought out, continues to function
today. One might raise the question here: If it is true that the norms grow
out of the situations themselves for the decision concerning which they are
to constitute the basis, how does it come about that a norm can still be
applicable so long after it was created and under a totally different social
and economic order; that the present-day German law contains norms
which as to content are identical with those of the corpus iuris, nay, with
those of the Twelve Tables and the Decalogue; that the French Civil Code
can be valid for two so dissimilar societies as the French and the
Roumanian?
1 Rechtshoheit.
2 The territory in which a certain system of law obtains.
3 The territory of a certain state.

The answer is this : The norms, especially those that have been derived
from Roman law, have become so general and so abstract, by the
uninterrupted process of extension and of enrichment of their content in the
course of the millennia, that they are adaptable to the most diverse
situations. This shows however that after all the law of the stability of the
norms is based on a superficial view of things. In actual fact it is not the
same norm at all; it has remained unchanged in appearance only; it has
received an entirely new inner content.
The great contrasts between the law of the past and the law of the
present, the differences between the laws of the various countries and
nations, are based on the facts of the law, in every instance, rather than on
the legal norms. The usages, relations of domination and subjection,
relations of possession, contracts, testamentary dispositions, change to a
much greater extent than the norms, and react upon the latter even though
the wording of the latter has remained unchanged. In the Eigentumsklage,1
the principles of compensation for fruits or expenditures may be worded, in
the main, just as they were among the Romans, but it is by no means
immaterial whether they are applied to a Roman fundus or to a modern
knight's estate2 or to securities amounting to millions. One need only bear
in mind what is meant by the terms fruits and
 1 Action claiming ownership. 2 Rittergut.

expenditures in each of these three cases to see at once what changes the
norms have undergone meanwhile. The Roman law of obligations has, in a
certain sense, manifested an astonishing power of resistance. But in Rome
both the creditor and the debtor were patres familias, heads of families the
membership of each of which often comprised more than half of a hundred
persons. Today the creditor and the debtor are, formally at least, individuals.
In view of this vast difference, what is the significance of the fact that today
the liability of the individual for fault* and accident2 is similar to that of the
liability of the pater familias in time past in Rome? If one strikes glass or
iron with the same hammer, there will be a different sound in each case.
Nevertheless one must not assume that this pouring of a new content into
the norms obviates all difficulties involved in the law of the stability of the
norms. The bulk of the complaints about unsatisfactory laws amounts to
this: that the norms, because of their stability, function in situations for
which they were not created, and to which therefore they are not adapted.
But the evil effects are limited considerably by the fact that these norms are
not norms of conduct but of decision. If the stability of the Roman norms
should actually compel us to live according to Roman law, e.g. in the
enlarged family of the Romans with its manus marriage or its free marriage
arbitrarily dissoluble, if it should actually compel us to adapt our system of
landholding to the Roman fundus, the resulting situation would be
unendurable. In actual fact, all that it comes to is that occasionally a law-
suit is decided according to Roman law. The part of our daily life that
appears in the courts is by far too insignificant to make it impossible for us
to endure the most unjust decisions. Much though we may suffer under this
state of affairs, we submit to the inevitable; for stability of the norms, as a
basis for judicial decision and for juristic science, is inevitable.
The stability of the norms for decision causes them to lose their original
form and to become legal propositions. One of the most important results
achieved by Jung in his book, The Problem of
1 Verschulden. This includes both dolus and culpa.
2 Zufall. Casus.
 Natural Law, is that “the power of the Praejudiz 1 (which rests on the
stability of the norms for decision) is part of the conceptual presuppositions
for the formation of legal propositions." Before we can discuss the norm for
decision in the form of the legal propo-sition, however, we must consider
another form of law in general, the law created by the state«
1 Previous decision; i.e. precedent.
VII The State and the Law

A CLEAR-CUT distinction must be made between state law and statute. State
law is created by the state, not indeed as to its form, but as to its content; it
is law that came into being solely through the state, and that could not exist
without the state. The form in which it arises is immaterial. Not every
statutory precept contains state law. There are statutes whose sole function
is to create the inner order for a legal relation, e.g. articles of association,
regulations for the conduct of a commercial enterprise; moreover the state
can enter into a contract by enacting a statute. Articles of association,
regulation of commercial enterprises, contract do not become state law
because they have been put into statutory form; they remain what they
were, the inner order of a legal relation. In the same way, jurist-made law
can be put into statutory form, i.e. the legislator may confine himself, in the
manner of the jurist, to universalizing, reducing to unity, to finding norms
according to what seems to him to be justice. The resolutions of many
mediaeval corporate bodies of the state, especially of the German Diet and
of the English Parliament, normally were Weistilmer,1 i.e. they were juristic
law not only in content but also in form. On the other hand state law can
come into existence not only in the form of statutes, but also in the form of
administrative or police regulation, of magisterial law, of judge-made law.
The Roman praetor was essentially a Gerichtsherr2; his praetorian edict
therefore contains mostly magisterial law (Amtsrecht), occasionally when
his object was merely to resolve doubts and difficulties, judge-made law;
but the edictum de posilo et sus penso or de calumniatoribus is state law,
police regulation, and criminal law. The English judges, acting as organs of
the state, have created the most important parts of the English criminal law
of the state in their legal decisions. English equity also contains much state
law.
1 Weîstum, a declaration of law.
2 Gerichtsherr, a supreme judicial authority. " In the administration
of justice the praetor exercised a sovereign judicial discretion
(imperium) which was only limited by the letter of the leges, or
popular enactments, and by such customs as ancient traditions had
endowed with the force of law. In modern times the judge is
subordinate to the law. His sole business, in dispensing justice, is to
apply the law. But the praetor, officiating in court, was his own
master; he was the supreme judicial authority." — Sohm, Institutes
of Roman Law, tr. by Ledlie, 1907, p. 74.

Most jurists would be slightly astonished if they were asked how it

happens that the state, which they are accustomed to look upon as the
source of all law, concerns itself about law at all. But the question is not
altogether unjustified. In its origin the state is a military association, whose
relation to the affairs of the legal order is very loose; and, with the
exception of a few modern states, established in the former and the present
English colonies in North America and in other parts of the world, it has
remained an essentially military association to the present day. It is possible
to place the origin of the state in the far distant past, but one must not look
for it in the clan or in the community of the household. The earliest
formation which is at all historically connected with the present state is the
confederation of the warlike nobility of several tribes related by language,
who, followed by the remaining freemen, choose a military leader, not only
for the special emergency, but as a permanent leader. The state has never
denied its military origin; at every stage of its development military
interests were in the foreground; and with the exception of the English
colonies referred to above and a few minor European states, this is true
everywhere today.
To the purely military functions of the young state two others were added
at an early date, which however are closely connected with the former. First
of all, it is the function of the state to supply the king, the permanent
military leader, and his followers with the necessary material means. This is
done in the earliest times by means of urgent demands for gifts — a method
which later, especially in the Orient, becomes out and out extortion. The
Romans, in their provinces, appear to have been the first to develop an
orderly system of taxation. In addition, the state at an early period
developed a crude police activity, especially in cases of insurrection and
rebellion. The great territorial states of the Orient did not develop beyond
this stage until the middle of the nineteenth century. This stage is followed,
after a long interval, in small territorial and in city states at first, later also in
large territorial states, in the Roman Empire, in the Carolin-gian Empire, in
England, by a well ordered system of administration of justice by the state;
and much later, in the same states, by legislation. A true administration by
the state, even approximately comparable in the diversity of its purposes
with that of the present day, did not arise until the seventeenth century in
France. Prior to this time, there is nothing like it except in city states. In the
Orient scarcely anything like it is to be found down to the most recent
period, or in the old Republic of Poland, or in England down to the
nineteenth century. We might therefore speak with Adolf Wagner of a law
of an ever increasing, and more than that, of an ever more rapidly
increasing, activity of the state, if it were not for the fact that the
culminating point either has already been passed or will have been passed
in the near future»
There are, manifestly, four things that cause the state to ap™ pear, in
such an eminent degree, to be the source of law. These are the following.
First its participation in lawmaking through legislation; secondly, its
participation in the administration of law through the state courts and in part
through other tribunals; thirdly, its power and control over the state
tribunals, by which it is enabled to give effect to its statutes; lastly, the idea
that the preservation of a factual situation corresponding to the law can be
effected primarily, or at least ultimately, through the state's power of
compulsion. This last point however is of no importance here since it is
without influence upon the creation and development of state law.
The history of law has shown that originally both legislation and
administration of law were beyond the sphere and province of the state. The
administration of justice does not derive from the state; it has its roots in the
time before the existence of the state. Its oldest form appears quite clearly
in the judgment scene on the shield of Achilleus, for the only possible
interpretation of which we are indebted to Hoffmeister. Two men are
quarreling over the wergild for a man who was slain. One boasted that he
would pay all; the other disputed this, saying he would not accept anything.
In other words, the kinsman of the slain man insists on the vengeance of
blood, and the wise judges are called upon to decide whether he shall
prevail, or whether he is obligated to accept the penalty. The court has not
been commissioned by the state, and the judgment is not made effective by
compulsion exercised by the state. If the other party refuses to submit, he
may have his vengeance in spite of the judgment. The only consequence of
doing so is the loss of the purely social advantages of a just feud. Traces of
this stage in the development of the administration of justice can readily be
found in the criminal law of the sagas of Iceland, as it has recently been set
forth with such vividness by Andreas Heusler, the younger. It is easily
recognizable not only in the legal procedure in the pre-Carolingian period
but also in the much more highly developed procedure of the Roman
Twelve Tables. At this stage, penalties in fixed amounts have already been
prescribed, but the injured party is not yet obligated to accept them; the
judgment delivers up the party who has done the injury to the injured party
unless an agreement is reached (ni cum eo pacit). The procedure is rigid and
formal, as indeed it must be between deadly enemies; the competence of the
court is limited, in the main, to cases demanding the death penalty
(homicide, man-stealing, bodily injury ^ theft).
Zallinger has pointed out that this procedure could not possibly have
been the only procedure in the primitive period of the history of the
Germanic peoples. Surely even in primitive times quarrels arose not only
between deadly enemies but also between members of a close association;
and some of these most likely because of minor wrong-doings. In actual
fact it can easily be shown that provision had been made everywhere for the
composition of quarrels of this nature, but the reports that we have
concerning them are meagre since the jurists, for obvious reasons, are not
interested in them. We find the jurisdiction of the head of the clan, of the
head of the house, of the elder of the village. We find family courts and
village courts. The procedure is quite informal. The legal principles
according to which the decisions are arrived at are unsettled and uncertain;
the judgment is a sort of amicable settlement unless it pronounces exclusion
from the community. The head of the household in Rome did indeed have
the ius vitae ac necis. But things of this kind are rare in antiquity as the
Romans themselves point out and cannot readily be found in other courts of
a close association. (Can it be shown to have existed among the ancient
Russians?) It probably arose after politically organized states had come into
existence»
The work of Pachman, Russian Customary Private Law (Oby~ tschnoje
graschdanskoje prawo w Rosii), contains a full discussion of this kind of
administration of justice. In Russia communal courts, which perhaps are
rooted in a very early period, and which are devoted to the administration of
the affairs of the peasantry, have maintained their existence down to the
present day. Legislation has merely circumscribed their jurisdiction, but has
left their freedom unrestricted down to the most recent times. In the sixties
and seventies their activity was investigated by a government commission,
which published a six-volume report of its findings. The work of Pachman
is based on this report (with the exception of the article on Artete)« The
results are, as Naly-schew and Kowalewsky point out, extremely open to
attack, for the courts at the present time are in a state of the utmost
disintegration. Nevertheless the work of Pachman is not without value. The
sole legal proposition which is met with in all parts of Russia in communal
administration of justice is extremely significant. It is Grec h po polu (the
damage is equally divided between the parties). If the court cannot make up
its mind what decision it is to render, it divides the damage equally between
the parties.
But there is a third class of courts. These are exclusively of state origin;
they arise from the military leader's power and control over his followers.
The military leader self-evidently acts as soon as the commonwealth is
endangered, especially in case of treason, or of trading with the enemy. But
he does not confine himself to these cases. The military leader must
maintain discipline among his troops and, particularly, prevent feuds: he
cannot permit vengeance of blood to become prevalent while he is face to
face with the enemy. For this reason a certain jurisdiction over private
affairs is inevitable at an early time. At a more advanced stage, the king has
it as a matter of course. The sovereign power which the king attains in time
of peace enables him to administer justice in times of peace also. This
however is done according to principles, and according to a procedure,
quite different from those of other courts and, at all events, not according to
the sole discretion of the king, but according to that of the counsel of his
advisers.
The next step in the development is that, in consequence of the loosening
of the bonds of the old associations, the composition of quarrels among
people in a close relationship loses most of its importance, and that,
consequently, the disputes between persons within close relationships are
also brought into the regularly established courts. Since the latter henceforth
are no longer limited to sitting in judgment in cases involving the death
penalty, it becomes their task not only to compose quarrels, but to render
decisions. The second step is the organization of these courts by the state.
This has been done in various ways. Either the power to institute
proceedings is put into the hands of a state official, as was done in Rome, or
the state supplies the courts with a presiding officer, as was done in the
kingdom of the Franks by Charles the Great, and in England after the
conquest. At the same time the royal administration of justice as a function
of the state continues. This is followed by the third step, the development of
the king’s jurisdiction. The king's advisers become self-dependent judges
and actually displace all the old established courts in virtue of their special
privileges, or perhaps because of the superior quality of their administration
of justice (as in England), or they are converted into courts of appeal (the
Parliaments in France, the Hof-gerichi1 of the German kingdom). The
personal jurisdiction of the king however is not yet abolished by any means.
Finally the lay assessors (Beisitzer), who are chosen from among the
populace, are eliminated from the regularly constituted courts, and the latter
become purely state courts manned by state officials. Perhaps there is a later
stage of development, at which popular elements are again employed in the
administration of justice. This was done in England as early as the days of
Henry II in the assizes, and at a somewhat later date in the trial by jury. On
the Continent this tendency, which did not appear until after the French
Revolution and which was at first limited to criminal causes, has been
extended more and more to certain kinds of private-law causes.
1 Literally, court of trie (ruler's) court, i. e. The king's court,

This conversion of the administration of justice into a function of the

state is limited to Europe however. The Orient, where it has remained
untouched by European influences, to the present day knows nothing of
state administration of justice. The Kadi is appointed by a spiritual
authority, and is independent of the state. Likewise, in Mohammedan
countries justice is administered either by temporal or by spiritual local
authorities which are neither appointed nor commissioned by the state.
Turkey alone established state courts, when it began to adopt European
ways after the Crimean war, but it has preserved the jurisdiction of spiritual
courts for a great number of causes.
State law appears in history at a much later date than state administration
of justice. The state, in the first place, creates its own order, Staatsrecht,1
and when it creates tribunals of any kind whatsoever, it prescribes their
competence, their order of conducting business, and occasionally also their
procedure. At an early date, statements of law are being drawn up by
private individuals at the behest of the state, or are being recognized by the
state, which are collections of the norms according to which the courts
conduct their business or render their decisions. These collections, however,
are not state law even though additions and modifications have been added
to the traditional element. Such additions are found in collections of this
kind that are of an altogether private nature, and this fact merely
demonstrates that man has ever been unable and unwilling, both then and at
a later period, to observe the distinction between stating law and positing
law, just as the medicine man who was closely related to the jurist found it
necessary not only to know but also to discover his remedies.
The presuppositions under which state law can arise are conditioned
upon the nature of the latter as a command addressed to the courts and other
tribunals and directing them how to proceed. It can proceed only from a
person who has control over the courts and the other tribunals. Before the
state can create law in this manner, the administration of the affairs of the
state and the order of the administration of justice must be unitary, to a
certain extent. The powers of the state must have reached a degree of
development sufficient to compel the performance of the commands of the
central power throughout the whole territory of the state. This includes a
certain military development and a police department of some sort. Lastly,
the law of the state is conditioned upon certain factors of popular
psychology. The state must find material from which it can select pliant
judges and officials. In this matter, the ability to read and write is of great
importance. It must be reserved for the as yet unwritten history of
legislation by the state to show how legislation everywhere followed the
development of the administration of the affairs of the state. We can
imagine of what value a study of the laws of Hammurabi and of other
Assyrian law would be as long as we know nothing of the nature of the
Assyrian state. The mere thought that the state can create law which is as
effective as the law that arises from long continued custom, i.e. in the words
of the gloss to the Sachsenspiegel that “the will of the country is to be
treated like law," presupposes an enormous power of abstraction which man
possesses only in an advanced stage of development. Since the German lay
judges (Schößen) of the early Middle Ages were not endowed with the
latter, there could be no true legislation in the Empire. It is well known that
the small number of German imperial statutes that had been enacted by the
time of the thirteenth century, imitations of Roman models, have received
scant attention. For this reason statutes are, in general, unknown in the
Orient down to the present time. When Turkey began to promulgate
statutes, it had to create entirely new courts. If the Sultan had sent a copy of
the commercial code to a Kadi, the latter, most likely, would not have
known what to do with it. Furthermore there can be no legislation by the
state without an administration of law that is subservient to the state. This
too was lacking in the Middle Ages. After the French Parliaments had, to a
limited extent, emancipated themselves from state control, they offered
resistance even to the statutes of an absolute king. The German territories
undoubtedly would not have attained a system of state law as early as the
sixteenth and seventeenth centuries if the universities had not supplied them
with excellent material for judges and officials who were in a situation of
complete dependence upon the state. Finally there must be effective means
of publishing state regulations, and the populace must have some
understanding and appreciation of the content and purpose of a statute. If,
nevertheless, statutes are frequently met with in a country where all of these
presuppositions are nonexistent, we are likely to find that they are utterly
ineffectual imitations of foreign models. The Frankish kings imitated the
Roman Caesars; Tsar Duschan of Serbia, the Byzantine emperors; and in
modern times many an Oriental state strives to imitate the Europeans, e.g.
Siam, which had a Frenchman draw up a civil code.
1 Public law in the narrow sense.

State law is found only where the administration of justice and of the
affairs of the state is* directed from a central point and is based on a strong
military and police power. At first these conditions exist only in states of
small territorial extent; in antiquity, in Egypt with its unusually powerful
state, and especially in the city states, Athens and Rome; in the Middle
Ages, in the city states of Italy and Germany. The Roman citizen and the
Roman official did indeed carry the concept of state law into every part of
the enormous Empire ; but it did not begin to prevail until the later days of
the Empire, after the constitutio Antonina. Modern investigation has shown
that there was much of seeming and little of actuality in this. The Germanic
states that arose on the wreckage of the Roman Empire did have state law,
as the Capitulary legislation shows, but this can be explained by the fact
that they had taken over a great deal of Roman civilization and of the
Roman bureaucratic institutions. It is very difficult to determine whether
and to what extent these statutes really were valid, whether they were
actually applied. On this very point doubts have been raised in recent days,
especially by Dopsch, whose work, I regret to state, I have not been in
position to avail myself of. The greater the distance between the Germanic
states and the Roman Empire, both in time and in space, the more their
legislation fades out. Jenks, the English legal historian, has appended to his
book, Law and Politics in the Middle Ages, a table of the sources of the
mediaeval law in Italy, Germany, France, England, Scotland, Spain, and
Scandinavia. It is very instructive. The columns devoted to Italy and to the
kingdom of the Franks are filled for the period from the sixth to the ninth
century; there is an occasional entry concerning Spain. True, these entries
are chiefly declarations of the existing law, but these statements, as is well
known, contain legislative innovations; moreover, they also contain true
state law. In the column devoted to England a few statements of law appear
and these as of the sixth century only. In the tenth and eleventh centuries,
legislation in all these states is at a standstill. Statements of law are found in
England and Scotland. In the eleventh century, the systems of law in the
cities of Italy are beginning to attract attention. True statutes, Schupf er
informs us, are found first in Milan (as of the dates 1026, 1061, 1065). As
to this point nothing appears in Jenks' table. At a somewhat later date the
Landfrieden * appear in Germany, which however, it seems, first developed
from ecclesiastical commands and voluntary agreements into statutes in the
eleventh century. To these the laws of the cities are added in the twelfth
century.
This discussion of externals does not teach us very much. There are two
questions that are of much greater importance than the question whether the
will of the state has been proclaimed as law anywhere — perhaps under
foreign influence or by some accident. These questions are: first, when the
idea that the state has a call, and is able, to create law independently was
first seriously entertained, and how it took root; and secondly, when the
idea that only the state can create law begins to gain ground. Neither of
these questions has been investigated. In Greece, outside of Athens, there
are few traces of state law. In
1 The peace of the land, public peace; analogous to the king's peace
in England. Here: laws regulating the Landfrieden.

Sparta, the utter absence, in earlier times, of the concept of state law later
developed into a prohibition forbidding any change in the old customary
law, the so-called legislation of Lycurgus. The idea of a state monopoly of
law remained foreign even to the Romans until the last days of the Empire.
It is clearly expressed for the first time by Constantinus. Until that time
only the ius publicum is considered a creation of the state. And, as I have
shown in my Beiträge zur Theorie der Rechtsquellen, in addition to
Staatsrecht (public law), the Romans consider the positive law, i.e. the
leges, senatus consulta, edicta magistratuum, constitutiones, a part of the
ius publicum; but not the law which has not been posited, the ius quod sine
scriplo venit compositum a prudeniihus, the ius civile in the technical sense,
which together with the ius gentium and the ius naturale they subsume
under the head of ius privatum. It is impossible to determine when the
Romans began to create law by means of statutes. But even in historical
times, they hesitated to modify the ius civile, the traditional customary law,
by means of statutes. This is shown by the fact that their older leges, which
are directed against abuses, do not abolish these abuses by directly doing
away with the legal propositions upon which the abuse is based, but by
giving the injured party a right to demand restitution. They are all leges
imperfectae (lex Plaetoria, lex Furia testamentaria, lex Marcia, lex Cincia)
; and Gaius, in his day, still speaks of the matter as if the old ius civile were
still in existence side by side with the leges which had abolished it. In the
Middle Ages, from about the time of the collapse of the Carolingian
Empire, the idea that the state can create law or modify it is altogether non-
existent. At the diet of Stela, in the reign of Otto I, in the year 942, the right
of grandsons to inherit from their grandfather is not determined by a statute
but is established by the Gottesurteil (judgment of God) of the legal
combat. No trace of this idea is found in the Sachsenspiegel. And surely the
two-sword theory does not refer to it. It expressly denies to the pope, the
bearer of the spiritual sword, the right to modify the law of the land and of
feudal tenancy. The gloss to the Sachsenspiegel concedes that Willkür 1 is to
be treated as law, but only within very narrow limits. The Weistum1 of the
Parliament of Merton (1235-1236) is famous: Ac rogaverunt omnes
episcopi Magnates, ut consentirent, quod nati ante matrimonium esseni
legitimi, sicut Uli qui nati sunt post matrimonium quantum ad succès
sionem hereditariam, quia ecclesia tales habet pro légitimais, et omnes
Comités et Barone s una voce re-sponder'unt, quod nolunt leges Angliae
mutare, quae %isitatae sunt et approbatae. This attitude of the Comités and
Barones is by no means to be explained as caused by a disinclination to
accept the principle of legitimation — for there were illegitimate children at
that time in England as well as elsewhere — but by the absence of the idea
that law can be created or modified by resolution of Parliament.
1 Will, free choice, arbitrary will.

And when a statute is enacted, it is by no means "the will of the State."

Its oldest form seems to have been that of contract. This may have been the
case among the Romans. The Roman leges sacratae may originally have
been an agreement sworn to by all citizens whom they concerned. Similar
situations are found in ancient Greece. There is no doubt that this applies to
the oldest statutes of the German kingdom, the Landfrieden. They had to be
sworn to and had validity only for those who had sworn to them. They
derived their power not from the will of the state, but from the oath,
although the individual often took the oath under compulsion. Even in
England, a statute was agreed upon between King and Parliament like a
contract. Another form is the "Privileg."2 Privilegia, granted to cities by the
lords of cities, are in the first place the city charters in Germany and Italy as
well as the confirmation of city statutes. Very often the statute is disguised
as a Weistum (declaration of law). Jenks says of the English Parliament that
it is a law-declaring rather than a law-making body. It has been said of the
Magna Charta, one of the most famous sources of state law in the history of
mankind, that "the form of this solemn instrument is that of a deed of grant"
(Mait-land). With such difficulty, and so gradually, the idea of state law,
which indeed is anything but easily comprehensible, has made its way even
among the most advanced nations of the human race. The fact that the
concept of law as created by the state is found among the glossators and
later also among the postglossators and the canonists in the early Middle
Ages with reference to the church is not in conflict with this view. For the
latter reflect not their own ideas, but the doctrines of the corpus iuris of the
Byzantine age. We may disregard the question how much of this can be
traced to political, especially Ghibelline, ambitions.
1 Declaration of law.
2 A Privileg is a declaration by the sovereign power of the state

upon which subjective rights are directly based. Posener,

Rechtslexikon s. v.

In the Orient, traces of state law are as few and far between as traces of
state administration of justice. Whatsoever is called statute in extra-
European states is either a declaration of law like the law of Moses or of
Zarathustra or of Manu, or it is a regulation issued by the sovereign power
of the state, without any general significance beyond the special case for
which it was issued. We may disregard imitations of European models made
without serious intent.
As to content, state law originally contained only norms for decision. It is
merely a direction to the courts, which by this time have become state
courts, directing them how to adjudge legal disputes. The government of the
state, as developed first of all in France after the collapse of Rome, was
concerned only with collecting taxes and with military affairs (the
intendants).1 It knows of state law, therefore, only as to these things. The
financial and military authorities receive special directions for individual
cases; later, directions couched in quite general terms to act in certain
clearly defined cases; and finally detailed directions issued by the central
power instructing them how to proceed. This constitutes the basis of a new
kind of state law, the law governing state action, i.e. state administrative
law. From France, this law spreads over the whole continent of Europe.
Where there are no state administrative authorities, as in the ancient
German kingdom, in England, in Poland, in Hungary, there is no effective
administrative legislation. Occasionally the state resorts to charging the
autonomous administrative bodies of the lesser associations, especially of
the communes (Gemeinde), the districts (Bezirk), the counties (Komitat),
with the execution of the statutes; in England it also commissions the
justices of the peace. But these means are as a rule poorly adapted to this
purpose. If the will of the state is to be carried out effectively, special
agencies must be constituted for this purpose. When the English, therefore,
enacted legislation for relief of the poor, they created a board for this
purpose, and when they enacted legislation for the protection of factory
workers, they created a board of factory inspectors. These institutions have
frequently served as models for similar purposes elsewhere.
1 Heads of provinces in France under the ancient regime.

Now, what is the propulsive force in this whole development? What

prompts the state to take over, to an ever increasing extent, the
administration of justice and the creation of law, which originally belong to
the lesser associations of which society is composed, and finally to assert,
in theory at least, supreme power over all these things? If we consider the
state by itself, quite apart from society, this conduct is incomprehensible;
we cannot understand it as long as we think of the estate as an institution
suspended in mid-air. We must think of it as an organ of society. The cause
of it is the steadily progressing unification of society; the quickened
consciousness that the lesser associations in society, which in part include
one another, in part intersect one another, in part are interlaced with one
another, are merely the building-stones of a greater association, of which
they become parts. The structure of every association is conditioned by the
constitution of the individual associations of which it is composed. The
interdependence of all social associations upon one another and the
dependence of the whole upon its component parts constitute the consensus
universel of Comte and the social consensus of Herbert Spencer, without
which the concept of society is incomprehensible ? and a science of society
is unthinkable.
An association which is absolutely unconditioned by anything other than
itself, e.g. a clan on a distant island or in the desert, could, of course, create
an order for itself quite independently. What it considers marriage, is
marriage; and what it considers ownership, is ownership. This applies also
to the smaller associa- tions that constitute society to the extent that they
live independently of one another. But as the associations coalesce and
become members of society, the situation changes accordingly. Each
association in society, and society itself, becomes more and more sensitive
to everything that goes on within the associations that compose the whole.
And they thereby sense something that really exists, i.e. that their existence
as a whole is conditioned by the state of the parts. Doubtless a society is
possible in which marriage is replaced by a much looser union of the sexes;
but it would be something quite different from our present-day society. Not
only the marriage relation but numberless other things will also have to
undergo a radical transformation if society is to regain its equilibrium on
this changed basis. The production of goods, especially in agriculture, is
based to a considerable extent, and the consumption of goods is based
practically altogether, upon the marriage relation and on the family, the
latter of which is also based on the marriage relation ; for the greater part of
mankind, as is well known, still dwells, and makes provision for its
sustenance, in the home. The rearing of children, the educational system,
morality — all of these things would have to be provided for according to
quite new principles if the demands of the various innovators in the sphere
of marriage were to be acceded to. The difficulties which would be created
for society by these changes cannot be estimated today. The Cyclopean wall
which has outlasted thousands of years is shaken if but one stone is moved
out of its place. Society has rigid forms for matrimony and the family, as to
which not even non-essentials may be changed lightly. At each and every
innovation society trembles for the whole, and carefully eliminates
everything that is found to be out of harmony with the existing situation.
This explains the endeavor of society to effect a unitary inner order of the
associations according to its needs, and upon this endeavor the various
kinds of general social norms are based. One may contend that each and
every, even the smallest, social association, every family, every house,
every village, every commune, every country, every nation, has its own law,
its own religion, its morality, its ethical custom, its code of decorum, of tact,
of fash- ion. Accordingly a person who has an accurate knowledge of the
circumstances often is able to tell at the first glance where a certain
individual belongs. Side by side with these, however, there is a law, a
religion, a code of morality, of ethical custom, of tact, of decorum, of
fashion, which have their origin in the larger association, and which the
latter imposes upon the smaller ones that it is composed of; and in the end
norms of this kind proceed from society as a whole. Accordingly each
society has legal norms of general validity through which it acts upon the
inner order of the associations of which it is composed. We find everywhere
not only individuals who are placed under a disadvantage by society, but
also associations which are being slighted, outlawed, persecuted, e.g.
marital relations; certain kinds of families; peoples; religious communities;
political parties, to whom society makes life a burden; contracts which are
not considered binding even by society. These norms are made effective
through the same kinds of social pressure that are employed by the smaller
associations in enforcing their norms against the individual. These norms,
however, and especially the legal norms, do not constitute the inner order of
the associations, but the inner order of society, which imposes them upon
the smaller associations as an external order. This order, to a much greater
extent than the inner order of the associations, bears the stamp of an order
of domination, of conflict. To a great extent, it is the expression of the
relation of the associations that rule in society to those that are being ruled
and of the struggle of the associations that constitute organized society with
those that refuse to be fitted into the organization. And a whole series of
social norms by no means serves the purpose of directly creating an order in
the associations, but merely of carrying the order which is created by
society into the associations. They are secondary norms therefore. As long
as the administration of justice has not yet been taken over by the state, the
administration of justice as a whole, the procedure of the courts, which as
yet are purely social, is based on such purely social secondary norms. But
we meet this phenomenon even today in so far as there are social courts
which are independent of the state, to wit courts of honor, courts of
societies, courts of clubs, courts of arbitration. Their jurisdiction and
procedure are regulated solely by social norms of the second rank. The
enormous importance of the state for the law is based upon the fact that
society avails itself of the state as its organ in order to give effectual support
to the law that arises in society. It is not impossible to conceive a state
which is independent of society. This concept has long since been expressed
theoretically in the doctrine of the " social kingdom." It would be a state
which is composed exclusively of the sovereign, an army, and a class of
civil officials — a state in which the sovereign is an absolute ruler, in which
the army is blindly devoted to the latter, in which all of these are altogether
out of touch with the remainder of the population, withdrawn from the
influence of each and every social tendency. This is conceivable, of course,
only in the case of an army of mercenaries, commanded by foreign officersl
and a class of officials which is self-perpetuating and the members of which
will marry only within their class. The not infrequent marriage regulations
for officials and for officers of the army or of the navy are evidently
prompted by the desire to make the latter independent of society, at least of
certain strata of society. It would be difficult to adduce historical examples
of states altogether dissevered from society. An approximation perhaps is a
state which consciously places itself into opposition to society even though
it be only as to one point, e.g. the government of the Emperor Joseph II in
Austria, Frederick the Great in Prussia, Peter the Great in Russia, Napoleon
III in France, and perhaps the activity of Stein and Hardenberg in Prussia,
of Struensee in Denmark. But even under the most favorable circumstances
governmental systems of this kind have been unable to maintain themselves
anywhere for any length of time; they collapsed, at the very latest, at the
death of the ruler. If the ideas which they tried to realize were taken up
again at a later time, this was brought about by the fact that meanwhile
society had undergone such changes that at that time society itself
demanded those things which formerly it would have been necessary to do
against its will.
Apart from these exceptions, the state is, from almost every point of
view, and particularly in matters of law, merely an organ of society. But
even in an absolutist state, the sovereign, the army, the civil officials, are
connected in so many ways with the influential classes and strata of society
that they generally do only those things which the latter demand. If
resistance to society or even an attempt to act in opposition to society
should appear in the state at any point, society would find innumerable
means to make its will effective. Social forces are elemental forces, against
which the will of man cannot prevail, not for any length of time at least.
The whole question of the constitution of the state, as Montesquieu
understood it in his day, and as it has been mooted again and again since
then, concerns the technical task of fashioning the state so that it may carry
out the will of society with as little resistance and friction as possible. In a
free state, the head of the state and the judiciary are still, in theory,
independent of society; in actual fact, however, they are so restricted by the
constitution and the legislature, so exposed to the influences of power, that
they cannot possibly resist the trends that prevail in society.
Society utilizes the state as its organ to impose its order upon the
associations belonging to it. A considerable part of the law created by the
state does indeed contain norms of the first rank, which are being posited by
the state as an organ of society. Norms of this kind are: the constitution of
the state, the purely state norms for decision, the precepts established by the
state for various departments of social and economic life (e.g. education,
trades, finance). But another very important part of state law is designed
exclusively for the protection of social or state law by means of norms of
the second rank; this is the law of crimes and the law of procedure, since
these have become state law; furthermore the Gefährdungsverbote,1 police
precepts. Law of crimes, law of procedure and police law, therefore, contain
norms of the second rank exclusively; they do not order life directly, but are
designed merely to maintain the order established by other means.
It is readily understood, therefore, that state law, in all essentials, merely
follows the social development. If society wishes to get rid of, exploit, or
suppress a certain association, e.g. a people, a religious communion, a
social rank, a class, a political party, the state with its agencies, its courts, in
so far as they are dependent upon the state, and especially with its legal
propositions of the second rank, the law of crimes, the law of procedure, the
police law, espouses the cause of the persecutors. It dissolves societies,
forbids assemblies, attacks religions, political parties, scientific doctrines,
and provides a legal basis for these things through legislation. The rare
exceptions, a few of which have just been mentioned, merely confirm the
rule. But society will shift its position if it appears that the persons attacked
cannot be overcome. It is then faced with the necessity of receiving the new
cell into the old structure as well as possible. This involves an adaptation to
society on the part of the association which hitherto has been the subject of
attack by society; and at the same time, an adaptation on the part of society
to the association. Society must recover its equilibrium. The greater part of
the process therefore takes place within society itself. Another part of the
task must be performed by juristic science. New legal propositions must be
created for the new relation. Roman juristic science has often enough
performed this duty in a splendid manner. The juristic science of the
Continental common law as well as juristic science in England and France
have likewise rendered outstanding services in this sphere. Lastly, the
constitution of the state, the method of administrative procedure, and the
state law in its entirety must be adapted to the new order. But if the
distribution of power in society is changed to such an extent that they who
hitherto have been the oppressed party obtain control of the state — a thing
that does not happen, of course, where there is a mere military, or palace,
revolution in which case the social structure remains untouched, but only
where there is a social revolution — the law of the state and the agencies of
the state espouse the cause of the victors; and often enough the persecutors
have become the persecuted.
1Ordinances forbidding acts that might endanger life, health, or
property.

In reality, therefore, the historical fact that state law is manifestly gaining
ground is merely the expression of the intensified solidarity of society. As
the conviction grows stronger that everything that is in society concerns
society, the idea appears that it would be a great advantage if the state
should prescribe a unitary legal basis for each and every independent
association in society. I may be permitted to elucidate this idea by means of
a few illustrations.
Let us consider the legal situation of the Roman household. Where, as
here, about thirty or forty adult free persons were living together, subjected
to the power of a superior, there could, self-evidently, be neither complete
anarchy nor purely arbitrary rule by the head of the household. The Romans
possessed too much administrative efficiency to permit either one or the
other. Indeed what we do know about the Roman household shows that a
firm legal order obtained therein. There were family laws which could be
asserted even against the pater familias. We know, at any rate, that the
marital rights of a married son of the house 1 and of a married daughter of
the house 2 were always respected by the parents and that the manus
belonged to the son of the house, not to the pater familias. The persons who
were subjected to the potestas had their own property, which had been
bestowed upon them by the holder of the potestas or which they had
acquired by their own efforts, e.g. land, cattle, business undertakings;
obligatory rights existed among them; and we are told of a family court.
From the point of view of Roman society, these relations, in the beginning
at any rate, were not legal relations; for society, on principle, did not
concern itself about what went on within the household. Roman society
knew only one kind of law -— the law which regulated the relation of
household to household, and which was administered by the magistrate and
by the court. In the course of time this situation underwent a change; for the
son of the house became a business man and the goods in the house that
belonged to him, his peculiumJ became the foundation of his credit. In this
way, the son of the house began to assume a position in the world that lay
outside of the household, and his legal position within the household
became a matter of importance for trade and commerce. To this extent the
inner order of the household became a part of the social law: the praetor
publishes regulations concerning it in his edict, and the jurists discuss it in
their writings. Finally the legislation of Imperial times directly intervenes in
the relation between the bearer of the potesias and those in palesiate,
protects the son of the house against abuse of the parental power; grants to
him the right to own property, which the pater familias cannot take away
from him. The Roman law of slavery developed in a manner somewhat
different but very similar in principle.
1 Filius familias. 2 Filia familias.

In the mediaeval system of landholding, a similar process goes on, albeit

on a much grander scale. The unfree tenants by custom of the Middle Ages
surely had definite rules regulating their relations to each other and to the
lord. These rules were recorded at an early day and in this way the
Continental Hof und Dienstrechte1 the byrlowes, by-laws, customs of the
English manor arose» These regulations doubtless were law and they are
treated as such by modern legal history. But they were law only within the
association; for at the outset, seigniory in mediaeval times, like the Roman
house, constituted a world of its own, whose inner order was of no concern
to the outside world; and as late as the seventeenth century, Coke, the
English jurist, refers to the relation between the lord and the copyholder as "
a little commonwealth," although in Coke's day only vestiges of this
situation had remained. In the later Middle Ages, seigniory gradually
merges into society generally, and, in consequence, that which originally
has been law solely within the inner association of the manor, henceforth
becomes a law recognized outside of the manor, and is recognized as such
by mediaeval society as a whole. In this way, that which had belonged to
the copyholder solely by the custom of the manor became property that was
protected by the common law both in Germany and in England. A very
famous passage by Littleton, who about the middle of the fifteenth century
wrote a work on landholding (Upon Tenures) indicates the transition by the
fact that his first sentence on tenants by custom flatly contradicts what he
says in the second. The passage reads as follows: "It is said that if the lord
do oust them, they have no other remedy but to sue to their lords by
petition, for if they should have any other remedy they should not be said to
be tenants at the will of the lord, according to the custom of the manor. Ten-
ant by the custom is as well inheritor to have his land according to the
custom as he which hath a freehold at the common law.” The second
sentence, moreover, is said to be not by Littleton, but to be a later
interpolation. The further development is this: ultimately the relations
governed by the custom of the manor are completely merged into the law of
society, the associa» tion of the manor disintegrates, and the several tenants
by the custom enter into a direct relation to society»
1 Customs of the manor and customs of service.

A third example is the development of the state itself. Every great

territorial state, at the beginning, consists of commonwealths which have
created their own order. Up to the time of the social war, Roman Italy was
merely an international law alliance of Italic city states with the city state of
Rome; the modern centralized states of Europe, at first, were associations of
cities and provinces, which in turn were composed of communes; and each
of these city states, each province, each commune, had its traditional or its
posited order which, with the exception of possible privilegia and city
charters, had arisen and developed quite independently of the state. In
Roman Italy, the change was first brought about by the creation of the
municipio,. From that time on, the order of the city was based on a Roman
statute. And since the rise of the modern centralized state, the provinces are
being put on a legal basis by the state, or are being completely fused with
the latter, as e.g. in France and Italy; and the law of the communes is being
regulated by state ordinances for the government of cities and communes. It
has often been said that this did not, as a matter of fact, necessarily bring
about a thoroughgoing change of law, for the Roman municipal constitution
did not differ much from the constitution which had obtained until then in
the Italic city states, and the modern ordinances for the government of
provinces and communes, too, have often been following tradition. But it
did bring about an enormous revolution in principle inasmuch as the
original order of all these commonwealths, which had been independent of
the state, was replaced by an order derived from the state. Every province,
every city, every commune was thereby converted from an independent
living organism into a mere administrative unit of the state. The federal
states of the German Empire however, down to the present day, have
constitutions which have not been derived from that of the German
Empire.1
Now these facts are the standard according to which the prevailing
concept of the nature of law is to be judged. This concept is, in the main,
that a norm is a legal norm only if it has been posited by the state as a legal
norm. This view has, I think, been refuted by our present discussion, for we
have seen that only a small part of the law, i.e. state law, is, in actual fact,
created by the state. As a rule, however, when writers attribute the crea-tion
of all law to the state, they mean only that a norm, whatsoever may have
been its origin, becomes a legal norm only when the state recognizes it as a
legal norm, and surrounds it with norms of the second rank, penal
provisions, procedure, administrative regulations. If this is really a
constituent element of the concept "legal norm/' the formations which we
have discussed hitherto, i.e. the order of the Roman household, of the
mediaeval manor, of the primitive community (unless one looks upon the
latter as states) are not parts of the law. One might indeed contend that the
Roman son of the house (filius familias) ^ except in those cases in which he
could, at a later time, assert his claims in court, had no Recht (law and
right). It is well known that that was not the view of the Romans, for the
sources clearly show that the manus is in the filius familias and not in the
bearer of the potestas, that the peculium was the property of the filius
familias (eventually of the slaves), that ohligationes naturales could subsist
between the bearer of the potestas and the person subject to the potestas,
even though all of these relations were not protected by the courts — the
possible protection given by the censor, which was not a legal protection,
cannot of course, be considered here — and though legal remedies against
third persons were given only to the pater familias. As well deny the
validity of the German H of rechte, the English manorial customs, for the
tenant could not appeal to them in any court of the state. But the most
accurate students of the law of the Middle Ages have expressed a different
opinion, to wit: “Then as to the case between lord and tenant, the tenant
cannot sue the lord in the lord's court; the tenant in villeinage ejected by the
lord has no remedy anywhere. But is this, we may ask, a denial of legal
right? The king disseises the Earl of Gloucester; the earl has no remedy
anywhere; yet we do not deny that the honor of Gloucester is the earPs by
law or that in disseising him the king will break the law." (Maitland.) And
another, whose knowledge certainly is not inferior to that of Maitland, says:
"The concept that that which the lord is under obligation to give to the man
is owed to the latter in the legal sense is immanent in all Germanic law of
associations. Enforcible duties however arose from this situation only in
case a higher power in the association was authorized to intervene for the
protection of the rights of the members of the association. Nevertheless in
all cases the conduct of the bearer of the power who refuses to grant to the
person subjected to the power that which the latter is entitled to or demands
something that he is not authorized to demand is considered a violation of
law (Unrecht)." (Gierke.)
1This is no longer true. Under the new constitution Germany has
been completely unified.

The view that law is created by the state therefore will not bear the test of
historical analysis. And we may therefore say that it has been refuted; for if
it be essential to the concept of law that it be created by the state, how could
it have been in existence without the state throughout long epochs of
history? The only remaining question is whether the concept which we
associate with the term law is of such a nature that the view that the law is
created by the state can be justified. It seems necessary therefore to form a
clear idea of its significance in every detail.
In all spheres of life we find relations which in every respect are like
those which the state recognizes, regulates, protects, and to which the state
is by no means opposed, but for whose protection it has provided no legal
remedy. Among these are numerous economic, social, and religious
associations, political bodies, and many a contract. In addition there are
similar phenomena in the law of things and in the law of inheritance. In a
limited measure, this is true, in the German civil law, of an association that
does not pos- sess legal capacity. The so-called "freedom of coalition" 1 of
the working classes in the second half of the nineteenth century was based
on the same idea. The state by no means disapproves, nay, perhaps it
actually approves, of the idea that men as a matter of justice and law
proceed according to a certain order, but its will is that they should do this
voluntarily or solely under social pressure. Very often it is merely a matter
of the technical difficulty of finding an adequate juristic rule and an
adequate form for the legal protection; the relation is not "juristically"
construable. This is frequently true in the case of rights, particularly of
special rights 2 of the members of juristic persons, of the rights of the
beneficiaries of a given foundation or institution. The German jurists, for
example, were unable to fit the duty to supply beets, which is incumbent
upon the shareholders in a beetsugar factory, into their legal system; and the
Austrian jurists are unable, even today, to fit the South Slavic Sadruga into
their legal system. Similar technical difficulties are standing in the way of
recognition of the Tarifvertrag.3 Moreover it happens occasionally that
people intentionally decline the legal protection of institutions which they
have created although they might enjoy it. This was done for a long time in
the case of the English trade unions, and is being done in the case of the
Roman Catholic church in France today. Writers who have expert
knowledge of the situation in France say that this attitude strengthens the
church considerably, e.g. Bureau, in his book La separation de VEglise et
de VEtat. In the case of cartels and trusts it seems that both sides object to
legal protection by the state. And contracts are occasionally entered into,
and testamentary provisions made, in such a way that, according to the
declared will of the person making the disposition, no legally enforceable
claim can arise therefrom.
Still more important is the fact that the greater part of legal life goes on in
a sphere far removed from the state, the state tribunals, and state law. What
is the important consideration here? It is clear, to begin with, that the
confused mass of statutes cannot possibly cover the variegated diversity of
legal life. New communities, new relations of possession, new contracts,
new regulations as to inheritance, all as yet unknown to the statutes, are
continually coming into existence even today, just as they did in the hoary
past. Must these relations wait until they receive mention in a statute before
they can become legal relations, in spite of the fact that the basic
institutions of our society furnished the order for the affairs of mankind for
thousands of years without this aid? And what of the enforceability of these
claims by courts or by other tribunals? In the long run it is only a very few
of the incalculable number of the relations of human life that attract the
attention of the courts and of other tribunals. There are millions of human
beings who enter into untold legal relations, and who are fortunate enough
never to find it necessary to appeal for aid to a tribunal of any sort. Since
the relation which has never come into contact with legislation and judicial
adjudication, after all, is the normal relation, it follows that in the very cases
that constitute the rule, everything would be lacking that is necessary to
determine whether we are dealing with a legal relation or not. Moreover the
line of demarcation between that which the courts and the other tribunals
are able to do and that which they think they must leave undone is
continually shifting; and this shifting is brought about not only by
legislation, but also by actual usage. Should every change of this nature,
should every variation, imperceptible though it be, react upon all the
relations which have never been and never should be brought to the
attention of the courts?
1 I.e. the right of the workmen to form unions, to agree to strike,
and to declare strikes.
2 Sonderrechte.
3 Tarifvertrags contract between an employer or a number of

employers and an organized or unorganized group of employes

which establishes the conditions under which the labor is to be
performed, e.g. wages, working hours, notice of discharge, etc.

After all, even today there are two legal systems which are absolutely
independent of the state, or, to be more accurate, independent of state
legislation, state adjudication, and state administration. These are
ecclesiastical law and international law. A person to whom law always
means state law could not regard ecclesiastical law as law unless it is state
ecclesiastical law. But this is in conflict with the general view which, as we
know, is the strongest support of the prevailing doctrine. Ecclesiastical law
is law, irrespective of what the attitude of the state may be, for the reason
that it is the legal order of the church. And ecclesiastical law has lost
nothing of its legal quality through a complete separation of the church
from the state, such as obtains in France. Likewise the opposition to the
recognition of the legal nature of international law has been silenced
altogether. It was based, from the very beginning, not upon a scientific
investigation of the nature of law in general and of international law in
particular but exclusively upon the fact that the latter did not fit into a
ready-made pattern.
 If the ideal of the most advanced state socialist should be realized; if all
goods were produced by the state in state-owned workshops through its
employes, and furthermore if these goods were distributed by the state
through its employes among those entitled to consume them, then indeed
we should have a system of law which is state law in the fullest sense of the
term, not merely a few legal propositions which have been created by the
state. In that case, state legal institutions will have taken the place of
ownership and contract as well as of private production and private
exchange of goods. A picture of a commonwealth whose law is exclusively
state law is presented by Bellamy, the American writer, in his Utopian
Looking Backward. Whether we should be happier in such a state, we shall
not discuss here. At any rate the present discussion has shown that as yet we
are far from a state of that description.
The view, therefore, that all law is state law is scientifically untenable. It
is based, in part, upon the fact that, by means of certain utterly
impermissible artifices, its proponents refer every legal norm, whatsoever
may be its nature, and from whatsoever source it may be derived, and by
whatsoever means it may preserve its existence, to the state, and upon the
fact that, in part, they forcibly close their eyes to the great mass of law that
has come into being independently of the state and exists independently of
the state. But the highly one-sided concept of law which has come into
existence thereby has exerted a fateful influence upon true scientific study
as well as upon practical juristic science and upon the teaching of law, not
only inasmuch as it is false in itself, but inasmuch as it has deprived the
investigator of the law of a field of investigation which is highly stimulating
and extremely fruitful By confining the attention of the investigator to the
state, to tribunals, to statutes, and to procedure, this concept of law has
condemned the science of law to the poverty under which it has been
suffering most terribly down to the present day. Its further development
presupposes liberation from these shackles and a study of the legal norm
not only in its connection with the state but also in its social connection.
Wherever the legal norm attracted the attention of the sociologist,
irrespective of whether it was a matter of tracing its origin, of determining
the concept, of examining its social function, it has always been found in
the company of other social norms. Nevertheless there can be no doubt that
there is an unmistakable difference between it and the non-legal norms. It is
as impossible to deny the existence of this difference as it is difficult, in
view of the present state of the science of law, to indicate precisely wherein
it consists; and the object of the discussion that follows is rather to define
the problem than to offer a solution. This problem is not peculiar to the law;
for indeed one is also under the necessity of instituting inquiry as to how
ethics differs from religion and ethical custom, how the latter differs from
decorum and tact, how decorum and tact differ from honor or etiquette, how
etiquette differs from fashion. On the other hand the lines of demarcation
between the various kinds of norms are undoubtedly somewhat arbitrary.
Here as everywhere else the concepts do not lie in the nature of things, and
every sharp line of distinction is imported into things by man. Within the
various species of norms there are sub-species which constitute the
transition from one group to the other, and in the case of many a
phenomenon it is scarcely possible to determine accurately to which group
it belongs.
Difficult though it may be to draw the line with scientific exactitude
between the legal norm and other kinds of norms, practically this difficulty
exists but rarely. In general anyone will be in position to tell without
hesitation whether a given norm is a legal norm or whether it belongs to the
sphere of religion, ethical custom, morality, decorum, tact, fashion, or
etiquette. This fact must be made the basis of the discussion. The question
as to the difference between the legal and the non-legal norm is a question
not of social science but of social psychology. The various classes of norms
release various overtones of feeling, and we react to the transgression of
different norms with different feelings. Compare the feeling of revolt that
follows a violation of law with the indignation at a violation of a law of
morality, with the feeling of disgust occasioned by an indecency, with the
disapproval of tactlessness, the ridiculousness of an offense against
etiquette, and lastly with the critical feeling of superiority with which a
votary of fashion looks down upon those who have not attained the heights
which he has scaled. Peculiar to the legal norm is the reaction for which the
jurists of the Continental common law have coined the term opinio
necessiiatis. This is the characteristic feature which enables one to identify
the legal norm.
But the question arises at once what has caused the variety of overtones
of feeling as reactions to violations of the various species of norms? We
find that norms with apparently identical content, at different times, in
different countries, in different classes and ranks of society, manifestly
belong to different groups, and that they readily pass from one group to
another. In the course of the millennia the prohibition of marriage outside of
one's own rank has been a norm of law, of religion, of morality, of ethical
custom, of decorum, and today, perhaps, it is merely a norm of tact, of
etiquette, or even of fashion. At the present time, judging from the
overtones of feeling that are released, it is based among the Polish nobility
upon the code of morals prevailing there; among the Austrian nobility upon
the conceptions of decorum; among the French nobility upon their ideas of
etiquette. It prevails, perhaps, in the same locality at the same time with
widely divergent effects. A marriage of the young farmer to his maidservant
may be looked upon as an offense against morality; that of the merchant
prince to his servant-girl, as a violation of the rules of etiquette. How can
we account for these different re- actions? In the first place by the different
structure of the various social classes in question, and the different structure
of the same social classes at different times and in different countries. But
the assumption is obvious that where there is a difference in the structure of
the community in which the norm is valid, the norm, though it retains its
wording unchanged, nevertheless serves a different purpose and
accordingly has a changed content.
On the other hand, it is easy to convince oneself that, though a norm of
the same wording can indeed belong to two different groups, it has a
different content in each case. The agreement in wording therefore is a
purely external thing. The proposition, "Honor thy father and thy mother,"
can be considered a command of law, of morality, of religion, of ethical
custom, of decorum, of tact, of etiquette, and of fashion. As a legal norm it
commands a child to honor his parents by means of certain outward
demonstrations; as a norm of morality, in general, by means of conduct
evincing honor and respect. Religion, unless it simply repeats the command
of morality, prescribes religious duties in addition, especially prayers for
one's father and one's mother. Ethical custom demands that one show such
respect for one's parents as is customary in good families. As a norm of
decorum it forbids such omission of manifestations of respect as would be
offensive to others; as a norm of tact it disapproves of much less serious
offenses which might release a feeling of displeasure among those that
happen to be present. Etiquette refers solely to deportment toward one's
father and mother in society. If respectful demeanor toward one's parents
were fashionable at a given time in fashionable circles, a person moving in
these circles who should omit it would be guilty of an offense against
fashion.
At any rate one must not state the difference between law and morals, as
is frequently done today, as consisting in this, that law is heteronomous;
morals, autonomous; that law is imposed from without; morals comes from
within. All norms as rules of con» duct — and they are to be considered
here only as such — are autonomous and heteronomous at the same time.
They are heteronomous, for they originate in the associations; they are
autonomous, for their basis is the attitude of the individuals of whom the
association is composed. The norms are autonomous also in the sense that
obedience to the norms is considered of full value only when its proceeds
from a conviction which has been given shape by the norms. This is the true
kernel of Bierling1 s Anerkennungslehre (doctrine of recognition) ,1 A
norm, whether it be a legal norm or a norm of some other kind, must be
recognized in the sense that men actually regulate their conduct according
to it. A system of law or of ethics that no one gives heed to is like a fashion
that no one follows. Only we must bear in mind that what has been said
about the rule of conduct must not be applied to the norm for decision ; for
courts may at any time draw forth a legal proposition which has been
slumbering for centuries and make it the basis of their decisions. And we
must not conceive of this doctrine as Bierling did, as implying that the norm
must be recognized by each individual. The norms operate through the
social force which recognition by a social association imparts to them, not
through recognition by the individual members of the association. Even the
moral anarchist, if he is well advised, will conform to the norms which
prevail in the community; perhaps, as indeed happens occasionally, with
gnashing of teeth and vociferous imprecations upon the hypocrisy of
society, prompted, nevertheless, by consideration of his own interest; if for
no other reason, because he does not wish to lose the advantages which he
gains by doing so, because he wishes to avoid the disadvantages incident to
rebellion.
The sociological science of law, therefore, will not be able to state the
difference between law and morals in a brief simple formula in the manner
of the juristic science that has hitherto been current. Only a thorough
examination of the psychic and social facts, which at the present time have
not even been gathered, can shed light upon this difficult question. Though
we are well aware of the great degree of caution made imperative by the
present state of juristic science, we may perhaps be permitted to assume, at
this time, the following essential characteristics of law. The legal norm
regulates a matter which, at least in the opinion of the group within which it
has its origin, is of great importance, of basic significance. The individual
act which is commanded by the legal proposition may not be of great
weight, as for instance in the case of statutes regulating foods, or
concerning prevention. of fires or infectious diseases of cattle, but we must
always consider the consequences if violations of these statutes should
assume the dimension of a mass phenomenon. Only matters of lesser
significance are left to other social norms. Therefore the proposition, "Thou
shalt honor thy father and thy mother" is considered a legal proposition only
where the organization of the state and of society is based chiefly on the
order of the family» A community which conceives of God as being in an
immediate relation to its affairs will be inclined to elevate religious norms
to the rank of legal norms. On the other hand, the legal norm, as contrasted
with the other norms, can always be stated in clear definite terms. It thereby
gives a certain stability to the associations that are based on legal norms,
whereas associations not based on legal norms, e. g. political parties,
religious communions, groups of relatives, social relations, are
characterized by a looseness, a lack of stability, until they assume a legal
form. Norms of morality, too, of ethical custom, of decorum, often become
legal norms as soon as they lose their universal character, and, couched in
clear precise terms, assume basic significance for the legal order of society.
In this way, the Roman prudentes and the praetor often succeeded in
introducing them into the legal system; in this way, equity arose in England,
which is today a system of law as fully developed as the common law. It
may well be possible therefore that the normal precept of good faith in
contractual relations may, in the course of time, be compressed into a series
of definite and clear legal propositions.
1 Bierling. Juristische Grundbegriffe, IV, pp. 39-53, 68-105.

Correct observation therefore underlies the habit of speaking of the

heteronomy of law and of the autonomy of morals. This is not a matter of
essential characteristics but of differences of degree. In the case of legal
norms, society devotes much more thought to the matter of formulating
than in the case of norms of morals and of the other non-legal norms; in
view of the importance it attaches to law it is anxious to have not merely a
general direction, but a detailed precept. Everyone ought to be able to know
from the mere wording of the legal norm how he is to regulate his conduct
in a given case; whereas the non-legal norms, couched as they are, in
general terms, are little more than general guides; and on this basis,
everyone must make his own rules of conduct in the individual case. It is
true therefore that, in case of norms of morality, it is to a much greater
extent a matter of the inner attitude of mind than in the case of law. A man
without any inner sense of law knows how to perform his duties as a citizen
of the state, knows that he must perform his contracts, respect the property
right of others; but in order to be able to conduct himself correctly from the
point of view of morals, religion, ethical custom, decorum, etiquette, and
fashion, he requires a sense of morality, religion, ethical custom, decorum,
tact, etiquette, and fashion. Without this sense, he cannot hit upon the
correct thing. For this reason, when non-legal norms are involved, the
center of gravity is inwardly within a man's self to a much greater extent
than when legal norms are involved.
If we bear these characteristics in mind, it may be possible to give a more
exact definition of the legal norm. Legal norms are those norms that flow
from the facts of the law, to wit from usages, which assign to each member
of the social association his position and function, from the relations of
domination and subjection, from the relations arising from possession, from
articles of association, from contracts, from testamentary and other
dispositions; furthermore, those norms are legal norms that arise from the
legal propositions of state and of juristic law. The opinio neces-sitatis is
found only in connection with these, and therefore we may say there are no
legal norms other than these. But this proposition is not convertible. Not all
norms that arise in this way are legal norms. In the first place legal
propositions contain much that is not norm but "unverbindlicher
Gesetzesinhalt." 1 Again there are norms that flow from legal propositions
and from facts of the law, which however do not belong to the sphere of
law, but of ethics, of ethical custom (regulations as to clothing), of honor
(compulsory dueling among officers). Even religious dogmas have been
posited by statute. These characteristics therefore do not furnish a positive
delimitation of legal norms from other norms. Such delimitation would
require first of all a thorough study of the nature of the non-legal norms.
 1 Non-obligatory legal content.

Whether we can consider a norm which is socially valid but which

violates a prohibition issued by the state a legal norm in the sociological
sense, is a question of social power. The decisive question in this
connection is whether or not it releases the overtones of feeling which are
peculiar to the legal norm, the opinio necessitatis of the common law
jurists. It is precisely in this matter that the juristic science of the
Continental common law, in a manner deserving our deepest gratitude, has
prepared the ground for the work of the sociology of law through its
doctrine of the so-called abrogative power of customary law; it has assumed
and demonstrated that legal propositions that are in conflict with the legal
consciousness may languish and die. Let me cite as illustrations the fate of
many a penal provision of the Carolina, the Prussian order in cabinet cited
by Adickes, which provided the death penalty for handing a petition to the
king in person; the order of the Austrian council of ministers, which
declared that the possession and the acquisition of money tokens of the
revolutionary propaganda, e.g. of Mazzini ducats, Kossuth dollar notes,
which one can now purchase as curiosities in the shops of Vienna, was high
treason. In general, a legal relation entered into in spite of a legal
prohibition, a forbidden society, a forbidden contract, a forbidden marriage,
a forbidden testamentary gift, a forbidden club, will not be considered legal
institutions. Compulsory dueling also is not considered such even among
officers of the army or navy. It is otherwise when a transaction which the
state has not prohibited but merely treats as ineffective becomes common in
society generally, e.g. marriage entered into by church ceremony only, the
unrecorded transfer of land, the Treuhandgeschäft,,1 as a form of
testamentary disposition. These, as experience has shown, can readily
compel recognition by society as legal institutions; and, in the course of
time, by the courts and the state.
1 The trust.
VIII The Creation of the Legal
Proposition

THE most diversified content may be clothed in the form of a legal

proposition, in particular, in the form of a statute. There are therefore legal
propositions without any normative content whatsoever, with a non-
obligatory legal content, statutes in a purely formal sense. And there are
legal propositions from which no legal norms can be derived, but only
social norms of some other kind. We shall not discuss either of these
species, but only legal propositions which contain legal norms. Their
purpose is to serve as the basis for judicial decisions or for direct
administrative action.
Every legal proposition which is to serve as the basis for judicial
decisions is itself a norm for decision, formulated in words, and published
in an authoritative manner, asserting claim to universal validity, but without
reference to the case that may have occasioned it. The prevailing school of
juristic science treats the judicial decision as a logical syllogism in which a
legal proposition is the major premise; the matter litigated, the minor; and
the judgment of the court, the conclusion. This idea presupposes that every
judgment is preceded in time by a legal proposition. Historically this is
quite incorrect. The judge who, in the beginnings of the administration of
justice, awards a penalty to the plaintiff has found the existence of a
concrete relation of domination and subjection, a relation of possession, a
usage, or a contract, and a violation thereof, and thereupon has
independently found the norm fixing the penalty. Perhaps in each of these
decisions the thought is germinating that in a similar situation, a like or a
similar decision ought to be arrived at; but this germ at this time is buried
deep in the subliminal consciousness of the judge. If we assume that the
judge in primitive times protected possession or contract only because he
had assumed the existence of a legal proposition according to which
possession or contract ought to be protected by law, we are attributing our
own conception to him. He thinks only of the concrete, not of the abstract.
The legal historian, who is trying to gather the law of the past from such
judgments, may at most read out of them that which was universal, the
universal usage, but not that which was universally valid. Nevertheless, in
spite of the lack of legal propositions, the norm for decision was not a
matter of pure caprice. The judge always drew it from the facts of the law?
which had been established either on the basis of his own knowledge or of
evidence, i.e. from usages, from relations of domination and of possession,
from declarations of will, and, chiefly, from contracts. Given these facts, the
norm was given ; it was impossible to separate the question of fact from the
question of law.
Today we have the identical situation when there is no legal proposition
in existence for the case that is to be decided. The judge can only ascertain
the existence of the usages, of the relations of domination, of the legal
relations, of the contract, of the articles of association, of the testamentary
disposition involved in the litigation, and on this basis find a legal norm
independently. Neither the ascertainment of the facts nor the free finding of
the norm for decision appears as a subsumption of the case in litigation
under a proposition relating to possession. All attempts to construe, all
artificial heaping up of paragraph upon paragraph of a code, can deceive
only a biassed mind as to the truth that a decision according to a legal
proposition is possible only where there is a legal proposition already in
existence.
It is true, according to juristic terminology the question to be determined
in a case of this kind is one of fact and not of law. But the judicial decision
was rendered not only on the basis of the facts ascertained but also on the
basis of a norm for decision which the judge had drawn from the facts. This
norm for decision, indeed, is not as yet a legal proposition. It lacks the
formulation in words, the claim to universal validity, the authoritative
publication, but it is a part of the valid law, for if this were not true the
judge would have no authority to decide the litigation according to it. Even
in this case therefore the question of fact cannot be separated from the
question of law.
 But even where a legal proposition has been found which covers the
instant case, the legal proposition does not yield the decision without more
ado. The legal proposition is always couched in general terms; it can never
be as concrete as the case itself. It may define the term " accessories "
(Zubehör) 1 never so minutely, the question still remains whether the
subject of the litigation falls within this definition or not. Here too the judge
must ascertain the facts; here too he must decide independently whether the
ascertained facts correspond to the definition of "accessories" contained in
the legal proposition. Whether the judge answers this question in the
affirmative or in the negative, the judgment is always rendered on the basis
of a norm for decision which he has found independently, and which
decides the question whether or not the subject matter of the litigation is
part of the " accessories." Even where this norm for decision merely
individualizes the content of the legal proposition in concrete form, it is
nevertheless not identical with the norm found in the legal proposition; for
the question what constitutes "accessories" is something different from the
question whether a certain object is a part of the "accessories." In such a
case, the prevailing tendency in juristic science invariably assumes that we
have a decision as to a question of law; one speaks of a question of fact
only where the subsump-tion under the legal proposition is not controverted
or is incontrovertible. But it is clear that in this case, as in the earlier cases,
the question of fact, the ascertained facts, cannot be dissociated from the
question of law, the norm for decision which the judge has found at this
very moment. This concrete norm for decision, which the judge has
deduced from the facts, is introduced between the legal proposition which
contains the general norm for decision and the ascertainment of the facts by
the judge.
Whether the judge, therefore arrives at his decision independently of a
legal proposition or on the basis of a legal proposition, he must find a norm
for decision; only, in the latter case, the judicial norm for decision is
determined by the norm contained in the legal proposition, whereas in the
former case it will be found quite independently. The more concrete the
legal proposition, the more precisely the judicial norm of decision will be
determined by the norm of the legal proposition ; the more general the legal
proposition, the more independently and the more freely the judicial norm
will be found. But there are legal propositions which grant an unlimited
discretion to the judge. Examples of this kind in private law are the legal
propositions on abuse of a legal right, on grobes und leichtes Verschulden,1
on good faith, on unjust enrichment. In criminal law and in administrative
law they also play an important part. In these cases, the legal proposition
does indeed appear to contain a norm for decision; actually, however, it is
merely a direction to the judge to find a norm for decision independently. It
is as if the legal norm left the decision to the free discretion of the judge.
These cases seem to belong to the second group. This however is a matter
of appearance only; in reality they belong to the former, where the judge
finds the decision freely. The upshot of all of this is that the difference
between a decision according to a legal proposition and one not according
to a legal proposition is a difference of degree merely. The judge is never
delivered up to the legal proposition, bound hand and foot, without any will
of his own, and the more general the legal proposition, the greater the
freedom of the judge.
1 See the German Civil Code? par. 97 fif. (Wang's translation).

Every norm for decision contains the germ of a legal proposition.

Reduced to that part of its content that is basic principle, couched in words,
proclaimed authoritatively with a claim to universal validity, the norm for
decision becomes a legal proposition. This is true even where it is merely a
concrete individualization of the concept contained in the legal proposition.
Let us say, for example, that the norm has declared that a certain object is
subsumed under the legal concept of "accessories"; there lies in this
declaration the germ of the legal proposition that objects of this kind are
always " accessories." Considering the matter historically, we may say that
most legal propositions arose out of norms for decision. As to the greater
part of our codes we can show positively how the legal propositions were
extracted from the decisions contained in the corpus iuris ) and where the
corpus iuris does not state decisions, but legal propositions, these, with rare
exceptions, undoubtedly have had their origin in norms for decision which
were first enunciated by a jurist when a dispute was submitted to him for
decision.
1Wrongful conduct amounting to culpa lata or to culpa levis (gross
and slight negligence).
 It is possible that now and then legal propositions were thought out by
jurists without reference to a definite decision. The rule of the Prussian law
about the "Erbschätz"1 perhaps arose in this way; for, according to credible
reports, an "Erbschatz" has never been met with, either before or after; the
same may be said of the so-called Schulfälle (moot cases). Of course these
can be only very insignificant legal propositions. We can also say that a
legal proposition is prior in time to the norms for decision where a statute
regulates an institution in order to introduce it, particularly where the latter
is imported from a foreign country, as, for instance, the statute concerning
companies with limited liability or the statute containing the Höferecht2 of
the Austrian peasants. But apart from these exceptions the concrete, as is
usual, is prior to the abstract; the norm for decision, to the legal proposition.
The creation of a legal proposition out of the norms for decision requires
that further intellectual effort be applied to the latter; for we must extract
from them that which is universally valid and state it in a proper manner.
This intellectual labor, whosoever it may be that is able to do it, is called
juristic science. The Historical School of jurisprudence has taken infinite
pains to show how " customary law," or, to put it more accurately, legal
propositions of " customary law," arise immediately in the popular
consciousness. It is a vain endeavor. Lambert has shown conclusively that
with the exception perhaps of legal maxims, legal propositions do not arise
in the popular consciousness itself. Legal propositions are created by jurists,
preponderantly on the basis of norms for decision found in the judgments of
courts. The judge therefore who, when he gives the reasons for his decision,
states the norm for decision in the form in which it is to be binding in future
cases, may be said to be engaged in juristic labor. Judge-made law is always
merely a subdivision of juristic law. Juristic science is created by the writer
or teacher, an Eyke von Repgow or a Bratton, who endeavors to extract the
law of his day from the judicial decisions; and he does this even where, as
editor of a collection of decisions, he states the legal propositions that are
derived from the decision in the form of a head note, or where, as editor of
a statute, he adds them to the various sections in the form of annotations.
And a fortiori we may speak of juristic science when a juristic writer or
teacher, in his writings or in his teaching, states the legal propositions which
in his opinion are applicable to the cases he is discussing. And lastly the
legislator who puts the norms for decision into statutory form is also
engaged in scientific juristic labor, provided they contain more than mere
state law. And every such legal proposition, wheresoever it may have had
its origin, lays claim to universal validity. This is self-evident; for it would
be a senseless procedure to write down, teach, or publish as a statute a legal
proposition without the intent that it should be valid in all cases to which it
is applicable. To be sure, as a rule, only the legislator has the power to make
his will prevail. In the case of a judge or a writer the value of the
performance is decisive of the success of his intellectual labor. If the legal
proposition is good and practical, its chances of gaining recognition are as
fair as the chances of a good and practical idea in any other sphere, perhaps
as fair as the chances of a good and practical invention. The few words of
Pomponius on the disputatio fori illustrate a process which may be
considered fairly typical. The legal proposition is accepted not ratione
imperii but imperio rationis.
1 Erbschatz, according to the Prussian Code, Part II, Title I, § 277,
is that part of the property of husband and wife that was given for
the use of husband and wife during their joint lives; then of the
survivor; thereafter to become the unencumbered property of the
children of the marriage.
2 Law of succession as to farms. See the Austrian Civil Code, par.

761 et seqq.

After all, as daily experience shows, the success of a thought in every

field of human activity does not depend exclusively upon its inner value but
also upon certain outward circumstances, particularly upon the weight
generally attached to the words of the person who has given utterance to the
thought. This weight very often increases with the power of the author of
the legal proposition in the state, his position, and his personal reputation.
In several countries a definite usage has developed as to this matter.
Occasionally this usage is well settled; usually it is rather uncertain. This
side of the question was discussed exhaustively by Lambert with an
admirable knowledge of the literature on the question in his work La
fonction du droit civil compare] I have done this as to the Romans in my
Beiträge zur Theorie der Rechtsquellen. Under different names and under
very different attendant circumstances, four kinds of persons have attained
to prominent positions in history. They are: the judge, the juristic writer and
teacher, the legislator, and the official who has been entrusted with this
matter by the state. In order that the norm may become a legal proposition,
it must pass through the alembic of juristic science, judicial, literary,
legislative, or magisterial.
The prevailing Continental doctrine, at the present time at least, denies, it
is true, that the judge has the right to call new legal propositions into being.
It contends that new law can originate only in the popular consciousness in
the form of customary law and in legislation; that the function of the judge
is merely to apply the statute; that judicial decisions are merely juristic
literature, interpretations of existing law, to be rejected wherever they
purport to do more than this. Indeed the Continental common-law juristic
science of the Historical School has quite consistently dealt with judicial
decision in this way. Its older representatives, Savigny, Puchta, Vangerow,
and Brinz, paid no attention to it at all; the later ones, particularly
Windscheid, as a rule merely inquired whether the decisions are in accord
with the corpus iuris1 and which of the points of view represented in juristic
literature they follow. Over and above this, they regarded them merely as
evidence of the customary law. Even Seuffert’s Archiv in its first volumes
reprints chiefly the literary discussions contained in the decisions. But all of
this was mere theory; in actual fact one always felt that judicial decisions
are something more than, and different from, juristic literature. Demand
was always being made that the administration of law should be stable, a
demand which is quite incomprehensible from the point of view of the
prevailing trend in jurisprudence. If the judge is to follow the statutes and
the customary law exclusively, he cannot, at the same time, follow
principles which have not been laid down by statute or by customary law,
but by another judge. If we demand that the judge should not depart from
previous decisions, in order that the administration of justice may be stable,
the decisions are more than literature, more than non-obligatory literary
views on the interpretation of a statute or the construction of a case at law;
they are judge-made law.
The case of scientific law is different. It is a matter of elementary truth
that science can only know that which is, and cannot command what should
be, that science therefore creates no norms, but merely investigates,
presents, and teaches. The question as to creative juristic science must
therefore be formulated in a way quite different from that in which this is
usually done. The question is not whether new law arises from the
knowledge of law, but whether the jurist, as a person versed in the law,
claims the right to create new law. It is self-evident that this question can be
answered historically only, and the answer will be in the affirm™ ative
wherever juristic science is not content to be limited to making a most
faithful and unprejudiced presentation of that which is law, but strives, over
and above this, to create norms independently which shall be binding upon
the judges for all cases for which none can be found in the other sources of
law. Among the Romans, juristic science was a science of this kind, i.e. a
science which is always creative, even when it is not conscious of it. It
came into vogue in all common law countries when the Roman law was
received. As late as its last classical period, which indeed was limited to
Germany, the juristic science of the common law produced an abundance of
new legal material, of which the German Civil Code affords an approximate
idea. It is strange that hitherto no one has undertaken the grateful task of
sifting the content of the Code historically and of showing the contribution
that was made by the juristic science of the Continental common law. The
juristic science of the Orientals (Islamic, Hindu) and at least the older
science of the Scandinavians (the Rechtsprecher)1 may perhaps be of this
kind, as Lambert has shown. On the whole it is very rarely limited alto™
gether to receiving and stating law. In the main it is such only among the
present-day English; less so, it seems, among the Americans.
1 Rechtsprecher, the declarer of the law.

Great differences, indeed, appear in details. It is self-evident that the

importance of science is in an inverse ratio to that of the statute and that of
the judge; the higher the position of the judge the greater the jealousy with
which he guards his independence; the more omnipotent and
comprehensive legislation, the more limited the sphere it is willing to
concede to the jurist. For this reason juristic science declines whenever a
codification has been made and does not awaken to a new life until the
people become aware of defects and gaps in the latter. The jurist tries to
influence the judge through his opinions, his teaching, and his writings, and
through his criticism of judicial decisions; he either finds norms for the
decision of the individual case or seeks to set up general principles, in the
manner of the traditional juristic technique, which may serve as guides for
the judge in the decision of individual cases. All these forms occur in the
course of history. In Rome the influence of the jurists WSLS based at first
solely perhaps on their activity as prudentes, giving response as to
individual cases; thereafter also on their activity as teachers of law; in later
Imperial times, preponderantly on their literary works. The importance of
the Continental common law juristic science consisted chiefly in the literary
process of extracting general principles which were to guide the judge in
the decision of individual cases. In most recent times, jurists have regained
an established position as critics through the annotations which they have
appended to the judicial decisions in the great collections of reported cases.
These critics, the arrêtistes, have made the study of French judicial decision
their life's work; in their annotations they are attempting to give, in addition
to a detailed scientific critique, a history of the course of decision on the
question as to which the judicial decision has been rendered. The originator
of this tendency is Labbê, one-time professor of Roman Law at the
University of Paris. A most attractive history of the arrêtistes is given by
Meynial in the Livre de Centenaire du Code Civil.
It is self-evident that where scientific or judge-made law pre- vails there
must be valid traditional or established criteria governing the evaluation of
judicial or juristic decisions. Of course it could never have been the
understanding that in general every judicial decision and every opinion of a
jurist should be binding as such. In the case of judge-made law perhaps the
official position of the judge is decisive, as a rule; in the case of juristic law
there is very often no external criterion; the question is decided by the value
of the work, or — a circumstance that often has no bearing on the value —
the reputation of the author. The statements of Pomponius in the
Enchiridion afford an insight into the manner in which a jurist of the
Republican era achieved the reputation which a conditor iuris was required
to have until the matter was finally settled in the days of the emperors. In
England there is a definitely fixed regulation as to the binding quality of
judicial decisions. In general the decision of a higher court prevails over
that of a lower court, but the "great judges'5 whose names have become
historical are being cited with an incomparably greater measure of
reverence than the great multitude of the others,
A limitation exists, however, beyond which the judge and the legal writer
must not go. Their decisions must be in harmony with the principles of the
existing valid law and of juristic science. Its function is therefore often,
though not always, conceived to be this : It is not to create new law, but to
discover the principles and rules of justice already existing in the law.
Flexible and elastic though this limitation may appear, it must not be
overlooked; for it, as well as the limitation of the statute, is an expression of
the strong conviction that the judge and the jurist are qualified to build on
the foundation of the existing legal order, but not to shake it or substitute
another for it. The remark is often found in French juristic literature that the
famous article 1382 of the French Civil Code would suffice for the solution
of the social question. Now the enormous power which this article entrusted
to the French judge was used by him to create a judge-made law of
damages which, in its basic outlines, is perfectly clear and consistent, and
which is essentially new, although formally at least it is based on the
existing law. But no attempt was ever made to utilize it for the solution of
the social problem or for the introduction of any revolutionary innovation
into the legal system. And one may safely set one's mind at rest, for such an
attempt will never be made. It will not be made for the same reason that an
attempt of this kind has never been made under normal circumstances. The
introduction of the English common law into Ireland through a judicial
decision (case Gavelkind) is even today regarded as a daring Cossack coup
de main] and in that case a people which had been crushed by defeat was
involved; furthermore it was done at the command of the victor, who has
often enough had occasion to regret it. A similar attempt in Bengal failed;
the judge and the sovereign power of the state had to yield in the face of a
general uprising. The power of the judge is not sufficient to overcome the
enormous powers of resistance inherent in society which would rise up in
opposition to an attempt to place society on a new foundation by means of a
judicial pronouncement; and a judge requires knowledge of the world
sufficient to be able correctly to estimate these powers of resistance as well
as his own power. The judge has often, it is true, disregarded the law in the
service of an unscrupulous sovereign power; occasionally, supported by the
law, he has been able to offer successful resistance to a strong sovereign
power; but he has never risked a con-bat with the state, society, and
traditional law. Much less has juristic science, with its limited powers? ever
done this.
Both judicial and scientific law are always subject to the critical inquiry
whether they have remained within the limitations with which they are
hedged about — a criticism which has given the quietus to many an
attempted innovation. Great though the power of the Roman jurists may
have been, it would never have sufficed to abolish the Praetorian law of
succession or the fidei-commis sa f perhaps not even the actio de eßusis et
deiectis] and Pollock says of the English judge: "Failing a specific rule
already ascertained and fitting the case in hand, the king's judges must find
and apply the most reasonable rule they can, so that it be not inconsistent
with any established principle." The freedom of the Continental
administration and science of law, at this moment, is still more narrowly
limited. So juristic and judge-made law are always exposed to the danger of
being crushed by the mass of the traditional element. The thought of a
remedy through legislation does not suggest itself nearly so readily to man
on a lower stage of development as it does today. The legislative machinery
operates slowly and haltingly as yet, and the thought that it might alter the
customary law has not yet occurred to anyone. One need but read Gaius and
note how circumspectly he discusses the senatusconsulta and the leges of
the Empire which were in conflict with the ancient ius civile.
These might be the historical presuppositions for magisterial law. Like
judge-made law, the latter is posited by persons to whom certain functions
have been assigned in the administration of justice in the course of the
performance of these functions. It is not being posited however on the basis
of the usual judicial authority and powers, but on the basis of authority and
powers granted by the state that far transcend these. It has happened twice
in the history of law that a state official acted when it became necessary to
end the sway of norms for decision that had become rigid and antiquated.
The Roman praetor and the English chancellor fulfilled their historic
mission by opposing an altogether new legal system to the traditional
system. Since the Middle Ages, magisterial law has no longer been able to
gain a footing on the Continent. The royal courts of the Frankish and of the
German kingdom failed to achieve a stable administration of justice; the
capitularies of the Frankish kings were not magisterial law, but an echo of
the legislative power of the Roman Caesars. In Rome as well as in England,
the magisterial law became a fixed, fully developed system of legal rules,
which confers upon the person entrusted with its application no greater
freedom than do the other parts of the law.
Norms for decision found in statutes are juristic law if they are the
product of the same kind of intellectual labor as the norms for decision of
the judge-made and of the literary juristic law. As to the nature of a legal
proposition, it is manifestly quite immaterial whether it is found in the
reasons given for a judgment, in the discussions of a writer, or in the
paragraphs of a code, though this may be quite important where its
effectiveness is in question. As it is, a large part of the juristic law contained
in statutes has been taken from the juristic law existing at the time. But if
the legislator has not prescribed a new norm for decision but has merely
stated it, it is none the less juristic law, in spite of the fact that that which
might have been said in a judicial opinion or in a treatise has been said in a
statute. This statutory juristic law is just as susceptible of expansion and
development as law that has been created in any other way. On this
principle, the adoption of foreign statutes is based. State law, too, can surely
be adopted from foreign countries, but only by the will of the state, i.e. by a
statute, an ordinance, or any other enactment of the sovereign power of the
state. It is manifest that universal compulsory military service, income tax,
or regulation of self-defense could not by any manner of means be adopted
from foreign law in any other way than by an act of the sovereign power of
the state. But juristic law, even in the form of a statute, may migrate from
one country into another like a scientific doctrine or like a practical
invention. It makes its way into the literature, and thereby, or perhaps
independently, into the judicial decisions. Even apart from the reception of
Roman law, there are numerous examples of this phenomenon. The
Austrian Civil Code at the present time actually is valid law in Hungary;
indeed it is being taught by the law faculties, although it may not be cited in
judicial de» cisions. The French Civil Code has gained recognition in
Russia, the German Commercial Code in Switzerland and in the
Scandinavian countries; and at the present time the German Civil Code is
gaining a footing in the Scandinavian countries.
Norms for decision in statutory form, whether taken from juristic law or
created by the legislator, are a precarious matter. It is much more difficult
for the legislator to formulate a correct general rule than for the judge to
decide an individual case; and it is a much more hazardous thing for him to
posit an absolutely binding dogma for all time to come than it is for a jurist,
who is proceeding scientifically, to enunciate propositions which are
continually being examined and re-examined. The norm for decision
becomes an entirely different thing when published in a statute from what it
was before. Hitherto merely a presentation of what appears to be the proper
rule, it now becomes a precept as to what ought to be the rule. It loses the
pliability which had enabled it to adapt itself to every better insight and to
every development. How often has a juristic doctrine been thrown
overboard, and another substituted for it, although behind the pretense of a
better insight there lay hidden the need of taking a new development into
account. A method of procedure that is permissible where a legal doctrine is
involved might not be permissible at all, or at least only with greater
difficulty, when one is dealing with a statute. The legislator therefore ought
to attempt to mould life according to his own ideas only where this is
absolutely necessary; and where he can let life take care of itself, let him
refrain from unnecessary interference. This doubtless was the leading,
though unexpressed, thought in the fight which Savigny, for a time, waged
against legislation, not merely against codification as is often mistakenly
asserted today. Every superfluous statute is a bad statute.
Nevertheless it would be childish to give up altogether the thought of
expressing juristic law in statutory form. Scientific and judge-made law
everywhere surpasses statute law in wealth of material, adaptability, and
mobility; but in more advanced stages of development mankind is brought
face to face with a number of problems of legal life that can be
satisfactorily dealt with only by the state.
The experience of thousands of years has shown that only moderate local
needs can be satisfied when the creation of law is split up locally; legal
development can take place on a grand scale only when it takes place in a
vast area and originates in a single central point. In order to attain a rich
development it requires an abundance of stimuli, which are given only by
the variegated manifoldness of legal relations that may be found in a
country of considerable size, and a central point where all these stimuli
converge. Such a central point however can be created only by the state.
This of course presupposes a thoroughgoing legislative activity. Legislation
has not served this purpose in the two grandest legal systems of the world.
The Roman and the English law did not arrive at the perfection which they
have attained through legislation. In Rome the jurists were working at it
with the immense intellectual resources of a vast empire; in England the
judges, sitting in London, who for centuries had had to find the law for a
great, economically developed, and politically advanced country. The
common law is chiefly the product of the labors of the courts in London.
Only the third world system of law, the French, owes its success to
legislation. A highly developed legal system then may arise without
legislation by the state, but surely not independently of the state. As a rule,
however, statutes are indispensable for the purpose of getting rid of
antiquated law and of quickly bringing about necessary innovations; for the
rule that juristic science and administration of justice must not get into
conflict with the law that has already been posited is an insuperable
limitation upon their creative activity. With the exception of magisterial
law, which down to the present day has had only two opportunities for free
development, and which itself soon hardened into an inflexible rigidity, it
may be said that it has always been the statutory law that was able to come
to the assistance of the process of legal development when the latter had
arrived at a dead center. This is the reason why one can say that the state,
which in times of economic or political disturbance always is both an effect
and a cause, may be called the most important lever of social progress. This
is the reason why revolutionary parties which are violently attacking the
state, from which legislative action proceeds, have often demanded
legislative intervention, while conservative groups, which support the state,
are filled with silent mistrust of its labors. But also in times when the course
of events was undisturbed, legislation has proved an indispensable
instrument for the removal of antiquated institutions and the advancement
of legitimate interests which are struggling for recognition.
In addition to the norms for decision of the juristic law, modern codes
contain Kautelarjurisprudenz 1 in the form of the so-called
Reglementierungsbedingungen; occasionally, at least according to the intent
of the legislator, in the form of nachgiebiges (non-compulsive) ,1 contract
law or of precepts concerning testamentary dispositions. The legislator by
means of subsidiary law requires the inclusion of those provisions that, in
his opinion, the prudent draftsman ought to include in the document. These
statutes likewise are, essentially, juristic law. Moreover, they also contain
state law, e.g. the provisions concerning entry in a book of record and
concerning the supervision to be exercised in the matter.
1 Kautelarjurisprudenz. This obsolescent term is applied by some
writers to the juristic activity concerned with the precautionary
regulations (Reglementierungsbe-dingungen) which must be
observed when legal transactions are being entered into, or when
legal documents are being drawn up. It properly includes the whole
art and science of drawing up legal documents.
 At the present time the magisterial law has become silent in England
also. Since equity has been elaborated into a fixed system of law, its
decisions contain judge-made law, not magisterial law. When the
Continental common law withdrew into the background in Germany, the
literary juristic law went with it; the teacher of law confines himself to the
teaching of existing law, and the discussions in the works of juristic
literature are no longer treated as legal propositions but merely as
suggestions for judicial decision and legislation. At the present time juristic
law flourishes only in the form of judge-made and statute law.
A glance at a modern edition of a code " with annotations taken from the
judicial decisions" shows the relation between judge-made law and the law
contained in statutes. To the various provisions the editor has appended
legal propositions drawn from judicial decisions. These purport merely to
individualize concretely that which is laid down in the statute; actually
however they are of equal value with the juristic law of the statute, both as
to content and as to purpose. And as a matter of fact the element of
concreteness lies in the cases on which they are based. When the statute is
restated, as was done, for example, in the case of the German Commercial
Code, these annotations are received into the statute. Occasionally the
decisions are in conflict with one another. This however proves only that
the juristic law is still uncertain. If they are in agreement it is as difficult to
prevail against them as against the actual words of the statute.
It would seem to follow from this discussion that there is no occasion for
decisions that are found freely. But a more careful examination of the
annotations shows that their connection with the provisions of the statute is
quite external; that actually they are quite independent of them. The French
editions of the Civil Code append the decisions on unjust enrichment to the
provisions as to management of another's affairs without authority.1 The
French jurists do not doubt that they have nothing to do with this subject-
matter. In this case, therefore, we may say that the decisions have created
the juristic law as to unjust enrichment quite independently.
1Law which governs a legal situation unless the parties provide
otherwise by agreement.

The situation is the same where the statutory provision is so general as to

amount to no more than a direction to the judge to find the norm for
decision himself. In such case, the legal propositions extracted from these
norms for decision do not elaborate the statute, they add new law to it.
What is meant in German law by abusive exercise of a legal right, when the
performance of an obligation is a violation of good faith, when a contract is
immoral (den guten Sitten widerspricht), we do not know as yet, for the
German Civil Code contains no provisions on these subjects, and we
probably shall not know from judicial decisions until a century has elapsed.
And these decisions will be so far from being based on the Civil Code that a
judge in any other jurisdiction may adopt the norms contained therein,
without any hesitation, e.g. for the concept of an immoral contract, or of
abusive exercise of a right, unless the statutes of his jurisdiction contain
divergent provisions.
In my book on the declaration of the will by silence, I have shown that
among the Romans this term meant only a declaration made in a manner
other than by means of words and the meaning of the declaration as
discovered by means of an interpretation based on the experience of the
ordinary intercourse of life. The decisions of the German, Austrian, and
French courts take it to include, in addition, the following: the acceptance
of an offer by performance or by acts of appropriation ; the binding force of
a declaration which imposes an obligation on one of the parties only, e.g. of
Verbiirgung (becoming surety) or of Verpfändung (giving a pledge), or of
Verzicht (disclaimer) without any acceptance by the other party
("stillschweigende Annahme") (acceptance by silence) ; the extinguishment
of an obligation by long continued failure to exercise one's rights ("
stillschweigender Verzicht," properly speaking, a hidden prescription)
(disclaimer by silence) ; expiration of the right to make a transaction
effectual after a lapse of time by approval or confirmation
("stillschweigender Verzicht," properly, a hidden limitation as to time)
(relin-quishment by silence); the power of the contents of an invoice to bind
the person receiving the same where the latter had not provided against this
("stillschweigende Annahme") (acceptance by silence). Delivery by silence
(“ stillschweigende Übergabe") in the case of the societas omnium
bonorum and of the fruits to the usufructuary lessee means that, by way of
exception, ownership is transferred without transfer of possession, i.e.
solely on the basis of the agreement. It is impossible to regard all of these
merely as concrete individualizations; all of these, undoubtedly, are special,
independent legal propositions of juristic law, connected in a purely
external way with the Roman norm for decision concerning declaration of
the will by silence.
1 Geschäßsführing ohne Auftrag; the Roman negotiorum gestio.

The borderline between state law and juristic law is not easily de
terminable. In the first place juristic law consists of the norms for decision
which the jurist has created by universalization. State law consists of
commands directed by the state to its tribunals. The jurists cannot issue
commands, they can only find law. The state does not find law, it can only
command. Norms directing administrative action therefore are always state
law. But as to many a statutory norm for decision one may well be in doubt
as to whether it contains a statement of grounds for decision based on
juristic law or a command by the state directing the judge how to decide the
litigation. The principles governing the passing of the risk in case of a sale
doubtless are juristic law. The norms for decision found in the German Civil
Code on the prerequisites to the acquisition of legal capacity by
organizations undoubtedly are state law. But between these there are a
number of borderline cases, as to which it is not clear where they are to be
counted.
External criteria however are not lacking. The jurist draws his law from
the social relations; juristic law therefore does not extend beyond the
relations from which it was taken. All true juristic law therefore is limited
to the persons and the things that are connected with the relations for which
the jurist has made his law. Juristic law is dominated by the personal
principle as was the whole law at the time when there was no law but
juristic law« The Roman ins civile and the Germanic popular laws were
personal and real, as is the Mohammedan law today. The state, on the
contrary, enacts its statutes for a given territory, and all true state law
therefore is territorial law. The Roman leges, therefore, with the exception
of the leges de iure civili and the Frankish capitularies, were territorial law.
In the modern law this criterion has disappeared outwardly; but if one
examines the principles of private international law, which somehow or
other have come into vogue between the time of the theory of the
"statutaries" and Zitelmann, one will find that, nevertheless, it makes its
way everywhere. That part of modern law which is juristic law is effective
as personal or as real law beyond the territory of the state ; but state law is
effective only within the territory of the state. The most precise formulation
of this principle is found in the national theory of private international law
which has been received into the Italian Civil Code, and according to which
the law of a citizen of a state follows him everywhere, with the exception of
the lois d1 ordre public, whose validity is always territorial.
The two kinds of legal propositions also differ in force and effectiveness.
This is not a question of the distinction between compulsive (zwingendes
Recht) and non-compulsive law, which, as I have shown in my book on the
compulsive law, is of significance only in so far as it refers to the legal
consequences of transactions which in part can be excluded by the will of
the parties, and in part take effect unconditionally. In this sense, there is also
a compulsive juristic law; and state law occasionally, though not often, is
non-compulsive. But certain kinds of legal propositions are always juristic
law— rules of interpretation, subsidiary law—-whereas only state law can
confer advantages, which the person advantaged cannot relinquish, and can
impose disadvantages as to which there is no dispensation. On the other
hand, state law, as the corpus iuris shows, has much less power of
resistance to the changes of time than juristic law; almost all of the juristic
law, but very little of the state law, contained in the corpus iuris has been
received into the Continental common law.
The legal propositions which are contained in the legal commands of the
state directed to courts and administrative tribunals are based on the will of
the person who has power and control over the courts and the
administrative tribunals; but their content does not always proceed from the
state. The distinction between Gesetzesbefehl (command contained in a
statute) and Gesetzesinhalt (content of a statute) which prevails today is
based on sound sociological discernment. But the answer to the question by
whom the command must be issued is a matter which in no wise depends
upon the constitution of the state but upon the questions: in whose hands do
the military and the police powers of the state lie, is the person in whose
hands these powers lie thereby enabled to exercise control over courts and
administrative tribunals, will he be able to induce judges and administrative
officials to do his bidding? If he has the seat of the administration of justice
and of the civil administration in his power, even the content of a statute
that has been enacted in a constitutional manner is powerless against him,
and he can give effect to state law even though it be unconstitutional. It is
well known that the legislation of the Roman emperors down to the days of
Diocletian was based on the possession of power of the kind described, and
each of a number of rival Caesars had the power to legislate within his
particular sphere of power* Accordingly the Prussian government was in
position to impose the constitution which it granted; the Russian, to change
the election laws; the Danish, to carry out a reform of the military system
by royal decree. The constitutionality of the Austrian so-called paragraph
14 decrees, as is well known, is being disputed by many; but their validity,
in view of the character of the Austrian officials and judges, is being denied
by no one. The force of these facts is so overwhelming that even a govern-
ment which denies the legality of a preceding one will, as a rule,
acknowledge the validity of legislation that was enacted meanwhile.
Accordingly the Stuarts recognized the legislation enacted during the
Usurpation; the Bourbons, the legislation of the French Revolution and of
the Empire.
IX The Structure of the Legal
Proposition

THE immediate basis of the legal order of human society is the facts of the
law: usage, relations of domination, relations of possession, declarations of
will, particularly in their most important forms, to wit: articles of
association, contract, and testamentary disposition. From these facts the
rules of conduct which determine the conduct of man in society derive.
These facts alone, therefore, and not the legal propositions, according to
which, the courts render decisions, and according to which the
administrative tribunals of the state proceed, are of authoritative
significance for the legal order in human society. Nevertheless the legal
propositions gain significance for the latter inasmuch as the decisions of the
courts and the measures taken by the administrative agencies affect the facts
of the law and thus bring about changes in the existing usages, relations of
domination, relations of possession, articles of association, contracts, and
testamentary dispositions, i.e. on this presupposition the decisions of the
courts and the measures taken by the administrative agencies, which are
based on the legal propositions, in turn produce norms which regulate the
social conduct of human beings. New facts of the law therefore can be
established not only, as in past centuries, by the application of force, or, as
is usual in our days, by the silent, unobserved sway of social forces, i.e.
particularly by new kinds of associations, new kinds of agreements, and
testamentary dispositions, but also, at least indirectly, by means of legal
propositions. For this purpose however it is not sufficient that the legal
proposition should have formal validity, or that it should be applied in
isolated cases; for an isolated fact is not a social fact. It is necessary for this
purpose that men regulate their conduct according to the legal proposition.
A legal proposition which dictates to the courts and administrative tribunals
the course of action which they are to follow contains what amounts to a
legal norm for the courts and administrative tribunals as soon as these
bodies actually carry it out; it becomes a rule of conduct only when the
social relations are actually being ordered thereby.
The legal norms which are deriving from the legal propositions,
therefore, always have reference to social relations, but the nature of this
reference varies. The sum total of the legal norms which have validity for
courts and other tribunals has never been identical with the sum total of
social law; there have always been a number of social legal relations which
have been free from all intrusion from this quarter. This appears more
clearly in Roman law than in any other legal system, for no jurists ever had
a clearer conception of the extent of their legal propositions than did the
Roman jurists as to their ins civile and ius honorarium. There is a kind of
official Roman family law; but side by side with it there were family
relationships which were recognized socially only and which were
regulated by no norms for decision, or almost none. These are concubinage
and the matrimonial relation of a Roman with a person who did not have
connuhium — a relation which has been called by modern writers
matrimonium iuris gentium — and the issue of these relationships which in
their nature are very like marriage. The Romans have, at all times, exercised
a peculiar kind of control over their freedmen concerning which a few
precepts arose at a very late date in the Praetorian law. Up to that time it
was enforced preponderantly by social means. The precarium is a typical
instance of a possessory relation which was protected only by social law.
The praetor began to extend a certain measure of protection to it, at least
against third parties, by means of the inier dictum ole precario, but this was
not done until the last days of the republic. For the longest time, the
relations of possession of the ager publiais were of the same nature. The
contradistinction between the pacta, which have only social validity, and
the contractas, which are enforceable in the courts, is found throughout the
whole course of Roman legal history. Express statements have been handed
down to the effect that all testamentary declarations of the will, the donatio
mortis causa, the testamentum per aes et libram, the fideicommissum,
originally were transactions about which the state and the courts did not
concern themselves. It is self-evident that this enumeration by no means
purports to be exhaustive. A reference may suffice to the statu liberi, to the
position occupied by those freedmen who had not been formally
manumitted before the praetor began to protect them in the enjoyment of
their freedom, to the fiducia, to the oldest form of locatio conductio, to the
clientela, which, even at the latest times, existed solely as a social
institution.
We meet this relation between the norm for decision and the social law
elsewhere. In the thirteenth century, Bracton, employing the phrases of
Institutes i, 3, 18, says concerning the English law of contracts :
Conventionalis (stipulatio) quae ex con-ventione utriusque partis
concipitur, nee iussu iudicis vel praetoris; et quarum totidem sunt genera
quoi paene rerum conlrahendarum, de quibus omnibus omnino se curia
regis non immiscet, nisi aliquando de gratia.
By way of illustration from modern law we may be permitted to mention
the important rôle played by the religious marriage in many parts of Italy
where a civil marriage is required by law; the various free associations
which are not covered by the law of associations and on which, until a very
recent date, the system of associations in France was based; the family
community (Sad-ruga), which is still in existence among the southern Slavs
of Austria but unknown to the positive law of Austria; the agreements
found everywhere which are unenforceable legally and enjoy social
recognition only; the testamentary gifts given in trust, by means of which
religious associations which, until the most recent legislation on the subject,
had not been recognized in France had accumulated property worth untold
millions.
In my book, Das zwingende und nichtzwingende Recht im bürgerlichen
Gesetzbuch für das Deutsche Reich 1 I have discussed the nature of the
legal proposition and its relation to the situations of fact which it regulates.
Referring the reader to this book, I shall introduce here only so much as is
indispensable for the present discussion. Every legal proposition that
contains a norm attaches a command or a prohibition to a given state of
facts as the legal consequence of the latter. The state of facts which
conditions the norm, the command, or the prohibition, is a fact of the law,
i.e. a usage, a relation of domination or of possession, or a declaration of
the will. In the case of a legal proposition which functions as a norm, we are
always concerned, therefore, with the relation of the command or the
prohibition which has been converted into a norm to one of the above
named facts of the law. We must accordingly distinguish three classes of
legal propositions.
1Compulsive and Non-compulsive Law in the Civil Code for the
German Empire.

In the first place there are legal propositions that accord the protection of
the courts and other tribunals to the facts of the law as they exist in society.
They do this either unconditionally or under certain conditions by
recognizing the usages of the associations as being legally effective,
protecting relations of domination and of possession, enforcing contracts
and testamentary directions. In all these instances the norms of the legal
proposition conform as a matter of logical necessity to the norms which
derive directly from the facts of the law, i.e. from usage, domination,
possession, declaration of the will. These are the norms that result "from the
concept," “from the nature of the thing." This is the proper place in law for
the logical element, and logical necessity is raised to a sort of mathematical
precision in so far as the concept of value enters in; for value, in fact,
partakes of the nature of the mathematical: it is an equation. This juristic
mathematics, “an arithmetic of concepts," therefore is found in the law of
claims for damages and unjust enrichment; in the law of claims arising from
contracts in which value is given for value, from contracts of barter, and
from contracts for furnishing things for use
(Gebrauchsbesckaffungsverträge). Distinguished from legal propositions of
this kind are those that negate existing facts of the law or that self-actively
create facts of the law. On the basis of legal propositions courts and other
state tribunals artificially create or dissolve associations, establish or
abolish relations of domination, give, take away, or transfer possession,
rescind articles of association, contracts, testamentary declarations of the
will, or occasionally create them by compulsion. Under this head are found
chiefly the legal propositions that decree expropriation or forfeiture of
things; that declare certain relations invalid, null, voidable, or punishable.
Modern statutes undertake to coerce parties into performance of legal acts
employing chiefly for this purpose a device called " Reglementieren," i.e.
they prescribe a definite content for articles of associations and contracts,
and supervise the observance of these regulations through state officials
(registers).
It is self-evident that a social relation that is void, invalid, or punishable
is something quite different from a relation that the courts and other state
tribunals regard as lying outside of the legal sphere ; a void marriage is
something different from a relation that is no marriage at all; a society,
membership in which subjects a man to punishment, is something different
from a free association which lies outside of the scope of the law of
societies; a prohibited contract is something different from a contract on
which neither a complaint nor a defense can be based. They are denied the
protection of the courts and other state tribunals, not on the ground that the
law does not make provision for them but on the ground that they are to be
banished from society. Of course, if courts and other tribunals tolerate them,
or permit them to continue, in spite of the prohibition, then, from the point
of view of the sociology of law, they do not constitute relations which are
excluded from society by the legal propositions, but merely relations to
which legal protection is denied ; for the sociology of law is con» cerned,
not with interpretations of legal precepts, but with the attitude of society
toward them. We can see every day that void, forbidden, punishable
marriages, societies, relations of domination and possession, contracts, gifts
mortis causa, are actually being sustained; that even slavery, thinly
disguised, flourishes, in spite of abolition and amenability to punishment, in
South America, in the Congo Free State, in Russia.
A third species of legal propositions attaches legal consequences to facts
of the law, quite independently of the norms that result from the usages, the
relations of domination and of possession, and the dispositions created by
these facts. Let us bear in mind certain rights and duties connected with
ownership, i.e. Bannrechte1 and trade rights, the obligation to pay taxes, the
duty to insure in connection with certain contracts, the duty of the owner of
poisons and explosives to give notice.
1 These are proscriptive rights, i.e. special laws which required
inhabitants of a certain locality or certain classes to provide certain
necessities and certain labors exclusively through privileged
persons. See Gareis, Introduction to the Science of Law, translated
by Kocourek, sec. 18, III, 3. See also Kraut-Frensdorff, Grundriss,
§118.
 The norms prescribed by the legal proposition therefore can either secure
absolute enforcement for the norms that flow from the facts of the law or
they can hinder them or invalidate them; and, lastly, they can attach legal
consequences to them that bear no relation whatsoever to the legal
consequences that flow from the facts. Accordingly the legal order which
society self-actively creates for itself in the facts of the law, in the existing
usages, rela» tions of domination, and of possession, articles of association,
contracts, testamentary dispositions, is brought face to face with a legal
order which is created by means of legal propositions, and enforced solely
by means of the activity of the courts and the other tribunals of the state.
And norms, rules of conduct, flow from this second legal order no less than
from the former, to the extent that it protects, gives form and shape to,
modifies, or perhaps abolishes the facts of the law. And only those norms
that are contained in these two legal orders constitute the whole law of
society« The important thing for the norms of the second legal order is not
the distribution of interests in the individual social associations, but the
distribution in society as a whole, which comprises all the associations
within a certain territory. The second legal order then is an order which has
been imposed by society upon the associations.
The juristic writer, the teacher of law, and the legislator, who formulate
the legal proposition, always act as persons commissioned by society,
whether it be in virtue of the confidence which society places in them, as in
the case of the Roman and of the common law jurists up to the time of the
recent codifications, or in virtue of social or official position, or, as in the
case of the legislator, upon the authority of the constitution of the state. The
form and the content of a legal proposition are the result of the joint labors
of society and of the individual jurist, and the soci- ology of law will have
to distinguish the contribution of the former clearly from that of the latter.
The impulses to create law which result from the distribution of power in
society have their source in society. The frequently used word
Machtverhältnisse (distribution of power) indeed is not available as a
scientific term because of its indefiniteness; we are using it here as referring
to the distribution of power which is based on position in the state, on
economic or on social position. Furthermore the legal proposition does not
owe its existence to any consideration of the interests of individual classes
or ranks, but of those of all social strata; and it is immaterial whether actual
general interests are involved or merely imagined ones, as in the case of the
superstitious belief in the existence of witches. Under this head comes the
defense against external enemies and elemental forces. In the last analysis,
at least in the judgment of those that act, the interests of individual strata of
the population are general interests when popular opinion does not regard
the interests of the other strata as worth taking into account, e.g. the
interests of the slaves in Rome; up to the nineteenth century, quite generally,
the interests of the unfree peasantry; in the Polish republic, and in ancient
Hungary, usually, the interests of those who were not members of the
nobility; and until late in the nineteenth century, the interests of the non-
propertied classes. And for most modern men and women the interest of the
utterly neglected (Verwahrlosten) and submerged (Verlorenen) perhaps is
but little more than something to be protected against. In their opinion, the
general interest includes protection of the social order against individuals
who are beyond the pale of society. This protection may be effected by
means of a part of the criminal law, police law, and procedural law. In
reality all of this is a matter of the distribution of power. A decision
rendered for the protection of the general interest may be said to be a
decision based solely upon considerations of expedience. Wherever there is
no doubt as to where the power lies in a state, or where the voice of popular
consciousness speaks in no uncertain tones, the task of the jurist is a merely
technical one. The content of the legal proposition is given by society. His
function is merely to provide the wording of it and to find the means
whereby the interests which are to be secured can be secured most
effectively. This technical function however must not be underrated. The
clumsiness of procedure and the limited capacity for expression of the
material law often cause enormous difficulty in this matter. They are the
cause of all formalism in law. Formalism is not an admirable quality of law,
but a technical defect which must be overcome. A glance at Roman and
English legal history reveals the difficulty which in time past was caused by
the clumsiness of procedure. The state of our doctrine as to statement of the
cause of complaint, as to proof, and as to content of the judgment shows
that it is still troubling us. The invention of the honaefidei indicia by the
Romans may be counted among the greatest achievements of the human
mind in the field of law. Their work was continued in a splendid manner by
the French courts; and, in Germany, by the Hanseatic courts, by the
Nürnberg Court of Commercial Appeals, and by the Imperial Supreme
Court of Commerce. Unfortunately the achievements of the German
Commercial Courts have already been forgotten in part. The investigations
that have been instituted in the field of the history of legal doctrine can give
us an idea, as to Roman law at least, of the labor that had to be expended
before the action of theft became an action in rem, before the liability of the
possessor for pretended possession or for possession surrendered, for the
destruction of the thing (Sache), for fruits and for damage done, was
established and defined. The present most unsatisfactory state of many legal
institutions is attributable, in a measure, to the fact that we have not as yet
been able to establish technically perfect legal propositions concerning
them.
The decision as to the interests involved in a dispute is entrusted by the
state to the jurist when it is clearly indicated neither by the general interest
nor by the distribution of power in society as a whole. This situation may be
brought about by various causes. In the first place very often the parties to
the dispute are quite unaware of the great social interests involved in the
decision; very often the latter are distributed among the various classes and
ranks in such a manner as to place them above the struggles of class and
rank; in many cases these social interests are too inconsiderable and
insignificant to become involved in the dispute. Very often, too, the
possessors of power, who are called upon to render the decision, are not at
all involved in the conflict of interests. The most important cause however
is the fact that the powers that are engaged in the struggle in behalf of the
different interests counterbalance one another or that the influences that
proceed from the groups that are most powerful politically, economically, or
socially, are checked or thwarted by other social tendencies, which are
based on religious, ethical, scientific, or other ideological convictions.
When the jurist is asked to draw the line between the conflicting interests
independently, he is asked, by implication, to do it according to justice. This
implies, in the first place, something negative. He is asked to arrive at a
decision without any consideration of expediency and uninfluenced by the
distribution of power. In recent times, it is true, it has often been said that
justice, too, is a matter involving questions of power. If the writer means to
say that the idea of justice, on which the decision is based, must have
attained a certain power in the body social at the time when it influences the
judicial finding of norms or the activity of the state, he is indeed stating a
truth, but it is a self-evident truth; and a self-evident truth does not require
statement. But if he means to say that, under the cloak of justice, effect is
always being given to the influence of political, social, or economic
position, the statement is manifestly incorrect. A legal norm whose origin
can be traced to such influences is usually stigmatized by that very fact as
something unjust. Justice has always weighted the scales solely in favor of
the weak and the persecuted. A just decision is a decision based on grounds
which appeal to a disinterested person ; it is a decision which is rendered by
a person who is not involved in the conflict of interests, or which, even
though it be rendered by a person involved in this conflict, nevertheless is
such as a disinterested person would render or approve of. It is never based
on taking advantage of a position of power. When a person who is in a
position of power acts justly, he acts against his own interest, at any rate
against his immediate interest, prompted by religious, ethical, scientific, or
other ideological considerations; perhaps merely by considerations of
prudent policy. The parties of political and social justice, e.g. the doctrinaire
liberals, the English Fabians, the German Social-political or National-
Socialist parties, the French Solidarists, find their adherents chiefly among
ideologists who are not personally interested in the political and social
conflicts of interests. In this fact lies their strength and also their weakness.
But all of these are negative characteristics. Which are the positive
characteristics of justice? The catch phrase about balancing of interests
which is so successful at the present time is not an answer to this question ;
for the very question is : What is it that gives weight to the interests that are
to be balanced? Manifestly it is not the balancing jurist, writer or teacher,
judge or legislator, but society itself. The function of the jurist is merely to
balance them. There are trends caused by the interests that flourish in
society which ultimately influence even persons that are not involved in
these conflicting interests. The judge who decides according to justice
follows the tendency that he himself is dominated by. Justice therefore does
not proceed from the individual, but arises in society.
The rôle of the person rendering the decision is of importance only
inasmuch as, within certain limitations, he can select the solution which
corresponds most nearly to his personal feelings. But in doing this, he
cannot disregard the social basis of the decision. If a Spartacus, favored by
fortune, had abolished slavery in antiquity, or if the socialists should abolish
private property, let us say in a beleaguered city, as was done in Paris during
the days of the Commune, these facts would have nothing to do with
justice. And a judge who, in a decision which he renders, recognizes private
property in means of production in spite of the fact that he is a socialist, or
who admits the defense that the debt sued upon in a stock-exchange
transaction is a gaming debt although in his opinion the setting-up of this
plea is a breach of good faith, does not thereby contradict himself. In doing
these things he is merely being guided by social tendencies against his own
individual feeling in the matter. A rebellious slave, the government of a
beleaguered city, like that of Paris during the Commune, can indeed
proceed according to their individual feelings, but they can do so only
because they have been removed from social influences by the force of
circumstances. Justice is a power wielded over the minds of men by society.
It is the function of juristic science, in the first place, to record the trends
of justice that are found in society, and to ascertain what they are, whence
they come, and whither they lead; but it cannot possibly determine which of
these is the only just one. In the forum of science, they are all equally valid.
What men consider just depends upon the ideas they have concerning the
end of human endeavor in this world of ours, but it is not the function of
science to dictate the final ends of human endeavor on earth. That is the
function of the founder of a religion, of the preacher, of the prophet, of the
preacher of ethics, of the practical jurist, of the judge, of the politician.
Science can be concerned only with those things that are susceptible of
scientific demonstration. That a certain thing is just is no more scientifically
demonstrable than is the beauty of a Gothic cathedral or of a Beethoven
symphony to a person who is insensible to it. All of these are questions of
the emotional life. Science can ascertain the effects of a legal proposition,
but it cannot make these effects appear either desirable or loathsome to
man. Justice is a social force, and it is always a question whether it is potent
enough to influence the disinterested persons whose function it is to create
juristic and statute law.
But although science can teach us nothing concerning the ends, once the
end is determined, it can enlighten us as to the means to that end. The
practical technical rules that perform this function are based on the results
of pure science. There is no science that teaches men that they ought to be
healthy, but practical medical science teaches men who desire to be healthy
what they can do, according to the present state of the natural sciences, to
bring about that result. Practical juristic science is concerned with the
manner in which the ends may be attained that men are en-deavoring to
attain through law, but it must utilize the results of the sociology of law for
this purpose. The legal proposition is not only the result, it is also a lever, of
social development ; it is an instrumentality in the hands of society whereby
society shapes things within its sphere of influence according to its will.
Through the legal proposition man acquires a power, limited though it be,
over the facts of the law; in the legal proposition a willed legal order is
brought face to face with the legal order which has arisen self-actively in
society.
The idea that society must be governed by laws (legal propositions) is
found among the ancient Greeks. It plays an important rôle among the
Romans, appears again in the sixteenth century, and since that time has
been the basic idea in all the great political and social trends in Europe
down to the beginning of the twentieth century, especially in the absolute
Wohlfahrtsstaat (state promoting the public welfare), in the mercantilistic,
natural-law, and social-political movements. For the modern development
of law it has attained an enormous, a fateful significance.
What can the sociology of law offer to juristic science in this sphere? The
ultimate ends of our pilgrimage on this earth doubtless shall ever remain
hidden from our eyes, but we can, at any rate, overlook a small part of the
way. The highest aim of all science is to vouchsafe to us a glimpse of the
future; the investigator gradually becomes a seer. As the physicist
endeavors to determine the course of a cannon-ball in advance, so the
disciples of the social sciences endeavor to calculate in advance the
unifying regularities in the course of the future development of social
happenings. They can point to many great successes, particularly in the
general sphere of economics, and every advance in sociological study will
bring new successes.
Sociology teaches us the laws governing the development of human
society and the effects of the legal propositions. It teaches juristic science
how the legal propositions may be adapted to the laws of social
development in accordance with their effects. Sociology indeed is just as far
from teaching us that we must regulate our lives according to these
scientific laws in the matter of our legal propositions and our conduct
generally as the natural sciences are from telling us that we must be healthy.
But men usually wish to do that which is expedient, just as, with very rare
exceptions, they desire to be well. Accordingly on the basis of the results of
the steady progress of the science of sociology, juristic science will be in a
correspondingly better position to tell the judge and the legislator when they
are performing useful labors, and when, inasmuch as they are resisting the
laws of development and failing to understand the effects of the legal
propositions, they are bootlessly frittering social forces away. If there is
such a thing as richtiges Recht1 or to be more exact richtige Redits s ätze?
they are those that advance the human race in the direction of its future
development. It is true that inexpedient conduct can never be prevented
altogether, for doubtless it has its function somewhere in the universal
scheme of things, but solely in the nature of a hindrance, of a resistance of
the means employed.
The sociologist, therefore, who on the basis of his scientific knowledge is
endeavoring to draw a picture of the social order as it will exist in the
future, and of a legal system that, even in the present, shall be adapted to
the future, is by no means engaged in an unscientific undertaking. Marx's
attempt to show the necessity of socialism by showing that social
development must needs lead to socialism is not unscientific, at least no
more so than the weather predictions of the meteorologist for the guidance
of tillers of the soil, or the writings of geologists on the future of gold for
the benefit of those engaged in directing monetary policy. It is true,
unfortunately, that in investigations of this kind very much that is untenable
sails under the flag of science, but the blame for this must not be attributed
to the subject but to the newness and incompleteness of this whole field of
knowledge. And the query why every sociologist presents that which seems
to him to be the end of the development as the end of all development
beyond which mankind will never be able to go is, possibly, based on a
misapprehension. The astronomer who is examining the uttermost nebulae
that his telescope can reach, the micro» scopist who shows us the smallest
particles that his instrument can lay hold on, do not deny that behind these
worlds there are other worlds; behind these minute particles there lie things
that are still more minute. So every sociologist knows that behind the
horizon which limits his vision at the time there lie other horizons, which
are withdrawn from his view, but he is content with that which is attainable.
All these matters that have been presented up to this point, the relation of
the legal proposition to society and its being conditioned by the social
development, were clearly discerned by the founders of the Historical
School; for what they call the legal consciousness of the people is but the
trends of justice in society. It is true they were in error as to the scope of
their doctrine, for the latter did not give an explanation of the law but only
of the legal proposition ; and not of every legal proposition, but only of the
proposition that is based on justice; but even admitting this limitation we
must say that their work of more than a century ago was a mighty deed. To
what heights they towered above their successors appears from the fact that
there has not been found among the latter a man able to continue building
on the foundation which they had laid.
1 Correct law, i.e. just law.
2 Correct, i.e. just legal propositions.

Perhaps the task which science must perform with reference to justice
can best be shown by discussing a question which at the present time is
violently agitating the colonial politicians of France. The nomadic tribe of
Arabs on the rim of the desert in Algiers and in Tunis, who are owners of
immense herds of sheep, camels, and horses, require not only extensive
pastures for their herds but also long stretches of roadway in order to be
able to drive their cattle from one place of pasture to another at the time of
the changes of the seasons. Doing this, they cannot avoid entering upon
land that is being tilled. Thereby agriculture on a large scale becomes
impossible. Now is agriculture to continue in this wretched state in order
that a few hundred Arabs may be able to find food for their herds? By way
of reply one may put the counter question : Should several hundred
thousand sheep as well as a great number of horses and camels be sacrificed
for the benefit of agriculture on the rim of the desert, extremely precarious
as it is in view of the "desperate uncertainty of rain," and incapable of
development, since only ten thousand hectares are involved at most? A
similar battle was raging in Switzerland about the middle of the nineteenth
century between the tillers of the soil and the breeders of cattle (Grossvieh)
on one side and the breeders of small cattle (Kleinvieh) on the other. The
agriculturalists were on the side of the breeders of cattle because agriculture
could expand only at the expense of the pasture for small cattle not of that
for large cattle. It is said that there is a similar conflict of interests awaiting
adjustment at the present time in Norway and Sweden between the Lapps,
who are breeding reindeer, and the farmers, who are crowding them out of
their pastures. Everyone who has concerned himself with Spanish national
economics knows of the vast importance of the rôle played in Spain today
by the pastures for Merino sheep, which make agriculture impossible in
many parts of the country.
Questions of this nature and scope confront the jurist every day. Whether
it be a question of defining the limit up to which a person engaged in an
industrial enterprise may inconvenience a neighbor by noises and odors; of
determining the extent to which the life, the health, the mental and the
physical development of the workman must be considered in the case of a
labor contract; of determining the standard according to which the
usufructuary, after the usufruct has terminated, must make compensation for
deterioration or may demand reimbursement for expenses incurred; of
laying down a rule fixing the extent to which the clause concerning
competition may limit an employee in the free exercise of his power to
work; or of drawing up in statutory form the regulations according to which
society should guarantee to the non-propertied classes a certain standard of
living by means of a minimum wage, provision for illness, old age,
unemployment, for widows and orphans: the just decision should always
protect the higher interest where the interests are in conflict. But which is
the higher interest?
If a decision were rendered, or a statute enacted, according to the wishes
of the breeders of cattle or of the agriculturalists, of the persons engaged in
industrial undertakings or of their neighbors, of the owners of land or of the
usufructuaries, of the employers or of the employees, of the propertied or of
the non™ propertied classes, the decision would not be according to justice
but according to power. If justice is to govern, the decisive factor must not
be the wishes of one party or the other, but the question which of the
conflicting interests are of greater importance to society, i.e. the interests of
cattle-raising or of agriculture; of industry or of the sanitary condition of the
neighborhood; of the owner of land or of the usufructuary; of the employer
or of the employee; of commerce or of free exercise of one's powers; of
increase of wealth in the hands of the propertied classes or of the welfare of
the non-propertied classes. And he who is called upon to render a decision
must take into account not only the present moment, but also the coming
generations; not only the economic needs, but also the political, ethical, and
cultural significance of cattle-raising and of agriculture, of industry and of
public hygiene, of great landed estates and of rights of usufruct, of
employer and of employee, of commerce and of free activity, of property
and of the welfare of the non-propertied classes.
 To render a decision of this kind is one of the greatest and most difficult
tasks, and one most heavily freighted with responsibility. To answer
questions of this kind means to be able to read the signs of the development
of the future in the society of today, to sense its needs in advance, and to
determine its order in advance. If we shall ever be able to attempt this on
the basis of scientific knowledge — and in a most modest measure it is
being done today — it will be found that only an intellect equipped with the
full armament of science can be called upon to perform this task.
Meanwhile our sense of justice is merely one of those great indefinite
divinings of hidden interrelations in the vast scheme of things, which, like
religion, ethics, and perhaps art, lead mankind to distant unknown goals. In
these paths the genius is the born leader of mankind. Even in the most
primitive days, the legislator and the judge stand in the thoughts of men by
the side of the founder of a religion, the prophet, the poet. The genius is the
more highly developed man in the midst of a human race that has remained
far behind him; the man of the future, bora, by a mysterious coincidence,
into the present, who today thinks and feels as some day the whole race will
think and feel. Therein lies his tragic fate, for he is lonely; and his sole
compensation lies in this, that he shows the way to others. The divinings
which conjure up the picture before the mental eye of the genius bestow
upon him such a masterful insight into hidden interrelations as ordinarily
might be expected only as a result of the most perfect knowledge. In his
speech in the English House of Lords for the protection of laborers who
were working at machines, Byron developed ideas of justice which did not
penetrate into the consciousness of men who were trying to bring about
social justice for at least fifty years; in his speech on the Irish question, he
gave expression to a concept of justice that was first embodied in a bill by
Gladstone ; at the beginning of the nineteenth century he assisted in the
renascence of Greece, which we all are marveling at today. For though
justice is based on social trends, it requires the personal activity of an
individual to make it effective. In this it is most like art. The artist, too, as
we know today, does not produce his work of art from his inner self; he can
but give shape to that which society furnishes him with. But just as the
work of art, although it is a result of social forces, requires an artist to
clothe it in a visible form, so justice requires a prophet to proclaim it. And
again like a work of art, which, though shaped out of social materials,
nevertheless receives from the artist the stamp of his whole individual
personality, justice owes to society only its rough content, but owes its
individual form to the artist in justice who has created it. There is no such
thing as one justice only, as there is no such thing as one beauty only, but in
every work of justice there is justice, just as beauty speaks to mankind in
every true work of art. Justice, as it has been given individual form in
statutes, judicial decisions, works of literature, is, in its highest
manifestations, the resultant of an inspired synthesis of opposi tes like every
other grand creation of the human mind.
The mind of man is so manifold, the stratification of society is so
variegated, that it is impossible to state the concept of justice in a single
formula. Perhaps none has met with so much success as the formula which
Bentham borrowed from Beccaria, to wit the greatest happiness of the
greatest number. But it has never been "demonstrated/' and it cannot be
numbered among those truths that are evident without demonstration.
In the first place Bentham's formula will by no meaDS convince
everyone. Not the religious ascetic to whom earthly happiness in general
appears as of no value whatever; not the member of the aristocracy
according to whose ideas the "greatest number" has not been created for
happiness but for labor and obedience; not the aesthete, to whom a
Michelangelo or a Napoleon outweighs millions of the all-too-many; not
the patriot, who is much more concerned with the power and greatness of
his country than with the happiness of the individuals that constitute its
citizens; not the energist, to whom striving and making his efforts effective
is of much greater importance than happiness. This formula will gain
adherents only among those who are convinced of it from the outset —
those who consciously are democrats. It is a democratic catchword, and
saying this we have said by implication that it expresses the thoughts and
feelings of a small minority only. For democracy is an aristocratic thought.
There are no true democrats other than those who are aristocrats in their
intellectual natures; among those who are aristocrats by birth only those are
democrats who have inherited this distinctive feature with their rank. The
plebeian is never a democrat. He demands equality only with those who are
above him, never with those that are below him. There is something of the
highest quality of nobility, a consciousness of enormous power, an
unconquered defiance, in not only refraining from demanding privileges but
also rejecting them when they are offered.
 And what did all these democrats among aristocrats and aristocrats
among democrats take the words "greatest number” to mean? To the
Gracchi they were several hundred thousand proletarians among the Roman
commonalty; to Ulrich von Hütten, the German order of knights, which
certainly was not more numerous; to Bentham himself, the middle classes
of the urban bourgeoisie; to Marx, the millions of the laboring classes. If
one had demanded of the Gracchi that they should grant to the non-Italic
peregrine equal rights with the citizens, or of Hütten that he should grant to
the peasants equal rights with the knights of the Empire, they would have
considered such a proposal most unjust. Bentham contented himself with
the cold comfort that it is possible even for the lowest working-man to rise
into the middle classes — perhaps for one among ten thousand. Is that the
"greatest num- ber"? The idea of offering some sort of assistance to factory
workers by means of a very moderate social policy first occurred to
Bentham's greatest disciple, John Stuart Mill. From the standpoint of pure
arithmetic, Marx surely was right. But in his whole book there is not a
single line on the question how the socialization of the means of production
can be made to benefit those who are beyond the pale of society. And if one
considers the population of the whole world, the latter surely are the "
greatest number." And in a socialistic Utopia published, prefaced, and
recommended by Kaut sky, one of his most faithful disciples, we find the
doctrine that the socialistic society will secure tropical fruits and other
products through enforced negro labor, for "the negro will not work
voluntarily."
And finally, what is the meaning of the "greatest happiness"? To
Bentham and his disciples these words meant, in a general way, the
economic well-being of the middle classes and the greatest possible scope
for the free exercise of the powers of the individual. But is it not true that
they who have the deepest insight into human nature have pointed out that
the "greatest number" are happiest when they are led by strong men who
forge their fates for them? When their individuality is merged in a
community, or even when they serve a master who provides for the day, and
in the evening protects them from privation and misery? Is it not true that a
perhaps equally "great number" experience the greatest happiness when
they live in contemplative laziness, at the expense of someone else, albeit
suffering great privations withal? Bentham's conception of the greatest
happiness is that of a certain class, in a certain country, at a certain time, to
wit the middle classes in England at the beginning of the last century.
Carlyle submitted a concept which was diametrically opposed to this, and
which was equally good for a different social stratum of the same country at
the same time. Happiness is a meaningless word in general, which does not
correspond to any actuality. It would be hard to find a man to whom it
means anything definite; perhaps no two men to whom it means the same
thing. And in general happiness has nothing to do with legislation and the
administration of justice. Nevertheless Bentham was right and carried his
point; for he put into the form of a clear juristic demand that which in his
day had been the vague ideal of a powerful trend of justice. But his doctrine
is of no significance beyond the class, the time, and the place.
There is no formula in which the idea of justice is summed up and fully
expressed ; it is a term that expresses a way and a goal — a goal which lies
in the sunlit distance, which the human mind can divine, but not know, and
a way which man must tread with faltering and uncertain steps. He who
shall be able to speak the last word on the subject of justice will thereby
have found the law of the development of the human race, perhaps of the
uni» verse. Meanwhile science must rest content to contemplate the line of
development which has been graven into the past and to divine that which
the near future will trace out for it.
It is a long way that leads from the inner order of the associations to the
legal propositions of our codes and juristic handbooks. In primitive times
only the legal propositions governing procedure and the regulations
concerning penalties are being created; and they are being created solely
according to considerations of expediency. The norms that are contained in
these propositions belong to those that constitute the second order of
society, for they do not order and regulate the associations directly but are
designed merely to ward off dangers. The norms of the first order, which
are required by the exigencies of litigation, do not as yet exist in the form of
legal propositions; they derive from the inner order of the associations
through univer-salization and reduction to unity, or they are being obtained
by a process of free finding, and are not being developed into universally
valid legal propositions until a later time. At the same time the legal
propositions of the second order grow in number and power, an ever richer
procedural law develops, the regulations as to penalties are being converted,
in part, into a law of damages, and, in part, into a law of crimes. Finally
state law arises as the norm for the decisions of the courts, and as the basis
for action by the state.
At each of these stages, society is as active as the jurist. Every legal
proposition is shaped out of materials furnished by society, but the shaping
is done by the jurist. It is indeed the norms that are already prevailing in
society that, universalized and reduced to unity, become legal propositions;
but in the last analysis the jurist decides what is to be universalized and
reduced to unity, which of the various orders of the family that come within
his sphere he is to treat as the model order according to which he decides
the controversies that arise in the others, which of the various contents of
contracts that occur furnishes the standard for the decision of controversies
arising from all like contracts. The purpose of the free finding of norms is
merely to eke out and to take the place of the inner order of the associations
where the latter fails in the adjudication of litigation; and the whole "second
order" is destined, from the very beginning, to surround the inner order of
the associations, as it is being created anew every moment by usage,
relations of domination and of possession, with a wall of defense against
attack and danger. The law governing interference by society and the state
with the inner order of the associations also proceeds at all times from a
larger social or state association, which is endeavoring to exert influence
over the smaller associations of which it is composed. However great the
extent to which these norms arise from the relations already existing in
society, the jurist who transforms them into legal propositions must supply
not only the wording but also a great deal of the content. But the jurist who
in this manner places the stamp of his personality upon the legal proposition
in turn is subjected to the influence of society. Its distribution of power, its
ideas of the general interest, its trends of justice dictate to him what he is to
universalize and reduce to unity, what norms he is to find for the relation
that is in dispute, what is to be protected against attack and danger, what is
to be surrendered to the latter, where the self-created order of the
associations is to be modified or abolished. Only a small part of the legal
proposition therefore is the expression of the personality of its author to
such an extent that one might assume that it would not have been worded as
it is had it been created by a different person. And even at this point we
must not fail to observe to what extent every man, even the most individual
genius, is a resultant of the influences of his environ- ment, that every man
can be born and work only in a given society, that everywhere else he
would be impossible and would make shipwreck.
The prevailing school of jurisprudence, which sees in every legal
proposition only the expression of the "will of the lawgiver/' altogether fails
to recognize the important part of society in its creation. The teachers of the
Natural Law School, in their day, had a much deeper insight into the matter
inasmuch as they endeavored to base the law upon the sense of justice, i.e.
upon the social trends of justice; Savigny and Puchta with their doctrine of
the popular consciousness of right and law as the basis of legal
development merely restated thoughts of the natural law in terms of a social
point of view. Bentham, by his principle of utility, with which Jhering's
Zweck im Rechte coincides in the main, for the first time, in a
comprehensive manner, directed attention to the general interest, which, it is
true, he often enough confused with the interest of a single class, the
bourgeois middle class. The materialistic interpretation of history went
much further than the natural law doctrine, than the Historical School, than
Bentham and Jhering. It pointed out to what extent the law, and therefore
also the legal propositions, are a superstructure erected on the foundation of
the economic order, and also to what extent the legal propositions are being
fashioned and created under the pressure of the distribution of power in
society. But in doing this it became biassed, for it intentionally excluded
from its consideration the element of human personality, the trends of
justice as well as all non-economic influences which it always, and
occasionally in an extremely arbitrary manner, traced back to economic
ones, and usually, though quite unintentionally, all consideration of the
general interest. The sociology of law must not overlook any of these
things; it must consider everything that takes part in the creation of the legal
proposition.
X The Varying Content of the
Concept of Justice

THE creation of the legal proposition takes place everywhere under the
influence of the concept of justice. On the basis of this concept, the judge
finds the norms for his decision when there is no legal proposition to guide
him. A statute, a judicial decision, an administrative action by the state, is
judged according to its inherent justice. Every political party has chosen
justice, at least according to its alleged conviction, as its goal. In all these
cases, what is the concrete content of the concept of justice? And since, in
the case of the norm for decision, of the legal proposition, of criticism, of
political parties, in general in the case of all law, we are dealing with
interests which are to be protected, or to be given effect to by law, we must
put the question thus: Which are the interests that are considered just?
Hedemann has investigated this question in a wider connection, limiting his
investigation however to the private law legislation of Germany, Austria,
and Switzerland in the nineteenth century, and has solved it in a manner that
meets the most rigorous demands of science. Here however we must
disregard the usual classification of law. We are not concerned with the
influence of justice upon private law, criminal law, administrative law,
procedural law, but with interests which are to be protected by private law,
criminal law, administrative law, and procedural law, according to justice.
The legal history of the primitive period of the nations of Europe presents
a picture of an administration of justice by the state which is limited
altogether to things that immediately concern the state: attempts on the life
of the king, trading with the enemy, violation of military discipline. Apart
from these things, legal protection is a matter for the primitive or genetic
associations, the clan, the family, the household, which are being held
together by the strong conviction of each individual member that he can
maintain his existence in this world, filled with violence and out- rage as it
is, only by the closest possible union with his own. These genetic
associations create the courts, regulate procedure, create the first legal
propositions. We are fairly well informed on these matters through a series
of statements of law which date from the earliest times. As to the law of
Europe, it is chiefly the Twelve Tables of the Romans, the Germanic
popular laws, which came into existence at about the same stage of
development, the Scandinavian sagas, and a few Slavic sources of law that
are to be considered. From these we gather that in the society in which this
law was in force the most vital concern was to repel violence directed
against the state, the person, life, and possession. These ancient regulations
refer almost exclusively to murder, homicide, wounding, robbery, theft, and
despoiling of inheritances. The legal precepts contained therein are
engrossed with concern for the state, for the life of the people, for the peace
of the domestic hearth, of possession, and of the workshop. These are the
only interests that are considered worth protecting, and legal protection is
extended by means of self-help, vengeance of blood, outlawry, and finally
by means of a money penalty. These legal propositions, which according to
the modern conception should be included in criminal law, are the prototype
of all those upon which, down to the present day, the legal security of the
state, of the person, and of possession are based.
It is a remarkable fact that everywhere, after the first codifications,
tradition is silent for a long time. Among the Romans as well as among the
Germans the dark centuries begin. Very little information has been handed
down to us concerning the creation of law during this time. As soon as the
sources begin to flow more plentifully, we see a picture that is quite
different. This took place in Rome about the end of the Republic; among the
Germanic peoples about the thirteenth century; in England the darkness was
dissolved at a somewhat earlier date; among the Scandinavians, in the
fifteenth century.
The interests that are considered worth protecting are the same as in
earlier days, i.e. the state, the human body and human life, possession ; but
the means are considerably more ample and diversified. First of all the state
acts much more frequently, exercising its power to punish not only when
the state itself is concerned but also, and with increasing frequency, when
the security of the bodies, of the lives, and of the possessions of the people
is concerned. Furthermore the state has secured control of the social courts
to a great extent, and through these affords a much more effective
protection than society was able to afford at an earlier time. At the same
time that the state administration of justice undertook the protection, by
means of deterrence, against violence, crafty and thievish interference, the
conversion of the penalty into payment of damages for damage done made
it possible to grant satisfaction for the wrong done not only in case of
violent, crafty, thievish interference, but also in case of interference of other
kinds. And lastly we find the action for the vindication of a right in the
narrowest sense of the term, the object of which is to secure for the person
entitled the very subject matter of his right, i.e. the thing of which he claims
ownership or possession, or which the defendant owes.
The prevailing school of jurisprudence has precluded itself from an
understanding of this development by assuming a basic difference between
a claim for damages and a claim which asserts a right. It deals with the
claim for damages in the law of obligations; the claims in the nature of a
vindication of a right it deals with in connection with the various rights to
which they refer, e.g. in the case of a property claim, in connection with the
doctrine of ownership. But Mauczka has correctly pointed out that the
rights of personality, the rights in one's life, body, honor, good name, cannot
be protected, even against violation without culpability, except through a
claim for damages. These claims therefore are not a part, analytically, of the
law of obligations, but of the law of persons. The same is true of the other
claims that assert rights. The action in rem based on loss of possession —
incidentally the action brought for protection against interference with a
relation of domination has the same origin — arose from the action for
deprivation of possession either by thieves or robbers. It is therefore
intimately related to the action for damages because of robbery and theft.
The claim for damages therefore, even today, takes the place of an action in
rem,, whenever the recovery of possession is impossible, occasionally even
when it is not desirable. In modern English law and to a certain extent in
classical Roman law the claim to a thing (dinglicher Anspruch) can be
effectively asserted only in the form of a claim for damages. The claim for
damages in these cases therefore is, in part, the necessary, and in part the
historically given, form of the action for deprivation of ownership and
possession, a certain form of the action based on ownership and possession.
Likewise the action for damages because of damage done to a thing of
which the plaintiff was owner or which he had in his possession always
remains an action based on ownership and possession. As in the case of the
action brought because of deprivation, so in the case of this action for
damages, ownership or possession is the basis of the action. In fact, since
the actio negatoria is today no longer conceived of, as was the case among
the Romans, as an action involving a question of servitude but as an action
based on ownership inasmuch as, though the object of the action is the
protection of one's property against an asserted servitude, its basis is
ownership, we shall have to consider the actio legis Aquiliae, not according
to its object but according to its basis, as an action based on ownership.
The actions which are based on unjust enrichment are also actions based
on ownership or on possession. They are actions by the owner or by the
possessor for compensation, up to the amount of enrichment of the other
party, for the loss which he has suffered by being deprived of his ownership
or his possession for the benefit of another. When a creditor sues to have a
transfer of the debtor's property set aside, the basis of the action is the loss
of his security, It is therefore in reality an action based on the law of
obligations. In the Roman law the claim for the return of unjust enrichment
has attained a rich development: condictiones sine causa, actio negotiorum
gestorum, actio de in rem verso, actio Pauliana as the action of the creditor
to set aside the transaction. It was elaborated to a much greater degree of
refinement by the Continental common law, especially under the influence
of Windscheid. Since the French Civil Code contains provisions only for
the repayment of money paid that was not owed, the development of the
claim based on unjust enrichment in French law took place almost
exclusively through legal decisions which, in point of form, as a rule were
based on the actio in rem verso, Planiol contented himself with basing it on
the principle neminem cum alterius detrimento et iniuria fieri
locupletiorem: " C'est une des rares règles de droit naturel, qui dominent
toutes les lois, alors même que le législateur n'a pas pris spécialement le
soin de les formuler." At the present time in the view of the German as well
as of the French law, all gain which is not based on the will of the parties,
and for which compensation is not given to him at whose expense it was
made, will serve as the basis for an action based on this unjust enrichment.
In English law the relation between the claim for unjust enrichment and the
claim of ownership or possession, is marked much more clearly because the
usual actions for the enforcement of both claims (trover and indebitatus
assumpsit) originally were actions for interference with possession
(trespass). Trover, which originally was an action for things found, now
covers all cases in which the defendant has converted to his own use things
that belonged to the plaintiff or of which the plaintiff had possession, or has
unjustly deprived the latter of their possession and use. Indebitatus
assumpsit usually covers cases of the same kind as trover where money is
involved.
The actions that assert rights, or demand damages, or ask for restitution
of unjust enrichment, together with the criminal law that is applicable, are
merely various forms of protection of the person, of the relation of
domination, of possession. Justice demands that the person, the relations of
domination, and possession be protected. Justice also demands that the
protection be extended and improved; but in every case the technical
question remains to be solved: In what manner shall the requirements of
justice be met? Justice must be patient so long as norms for decision and
legal remedies sufficient to carry out its demands have not yet been found.
The development of the law of damages offers a good illustration of this.
The owner of a thing that was stolen or lost can demand its surrender even
from an innocent purchaser, but he can demand damages from a person who
injures the thing only in case he is able to show that the latter is culpable.
This more lenient manner of dealing with the person who injures the
thing is not a requirement of justice. The reason for it is historical to begin
with. The action for the vindication of a right against a third person in
possession of the article that had been stolen or acquired in some other
wrongful manner had grown out of the action of theft at quite an early date.
But the original action for damage done, which was looking toward the
payment of a penalty, which is in the nature of a punishment, has, in every
system of law that has reached a more advanced stage of development,
presupposed culpability in the person doing the damage. Because of this
historical connection with the ancient action for a penalty, the action for
damage done had to be based on culpability even at a time when the penalty
had become compensation for damage done. In order to subject it to a
development parallel to that which led from the action of theft to an action
based on ownership, one would have to find a legal proposition that can
make a clear-cut distinction between damage caused without fault and
damage that is the result of pure accident. Neither the Romans nor the
modern jurists down to the present day have been able to do this, and
because of this technical difficulty we still cling, as a matter of principle, to
the legal propositions, which, in very many cases, are felt to be unjust, to
wit casum sentii dominus, loss from accident must lie where it falls. Roman
law and our older law knew a few exceptions to this» In the nineteenth
century at least a few undertakings that can be prosecuted only with great
danger to others have, by statute, been made liable for the damage caused
by them, but hitherto only the French judicial decisions have given wider
application to the principle of liability for damage caused without fault. But
it has been possible only in part to deduce clear legal propositions from
their norms for decision.
The oldest contract involves transfer of possession. In the contract of
barter possession of goods is being transferred; when a person voluntarily
surrenders himself into bondage for a debt, i.e. in the case of all contracts
that obligate a person to render services and performances (in the contracts
of subjection), possession of one's own person is being transferred. In the
beginning the con- tract is ineffectual without such transfer of possession;
and we may say accordingly that the courts do not protect the contract itself
but merely protect the possession which has been transferred to the
recipient against deprivation through robbery, theft, or deceit. The situation
is not changed when a pledge is substituted for the subject matter of the
contract, or when a third person is substituted, as a hostage, for self-deli
very into bondage. The creditor can now rely on the possession of the
pledge or the hostage, and is protected in this possession in the same way in
which he is ordinarily protected in the possession of a thing; he has no other
rights as yet that he can enforce at law against the other party.
A true law of contracts does not come into existence until the Haftung
(liability) arising from the debtor's word is greater than the liability arising
from that which he has transferred to his creditor. For a long time stress was
laid.upon the relation in thought between the symbols which were delivered
to the creditor, i.e. the arrha, or earnest-money, the part performance, and
the giving of security by means of delivery of the subject matter of the
contract or of the debtor into the possession of the creditor; but this relation
evaporates more and more, until finally the promise as such, in an ever
increasing measure, creates the Haftung (liability).
Originally legal protection of the contract always meant only the legal
protection of the disposition that was made in connection with the contract
either of a thing or a person, either one's own or another's, at any rate the
legal protection of the disposition of one's own person for the purpose of
rendering services or of furnishing goods. If the disposition is not carried
out at once, it creates at first merely an obligation (Schuld) owed by the
person making the disposition; to this obligation is added the Haftung
(liability) arising from the word of the party making the disposition as soon
as the courts compel him actually to carry out the disposition. The law has
taken these steps hesitatingly and in a certain sense reluctantly — always as
a concession to the most urgent and imperative demands of life. Haftung
(liability) makes its earliest appearance in the case of the compromise as to
the payment of a penalty and in the case of the contract to extend credit in
connection with the symbolic self-sale of the debtor; the Haftung (liability),
which, in the case of a sale, is based on the warranty (that the thing has not
been stolen), arises at a later time. True Erfüllungshaftung (liability for the
performance) of the promise connected with the contract of barter
presupposes a great amount of commercial intercourse and of division of
labor in society. Roman law has not yet reached the stage at which the seller
is compelled to perform his promise. It merely compels him to transfer
possession and to assume the Haftung (liability) for the promise that the
buyer shall be permitted to keep the thing. The locatio conducilo and the
other contracts of exchange, the so-called innominate contracts, have not
reached even this stage. They give rise, essentially, to an obligation, not to
& Haftung (liability). The modern Übereignungsvertrag (contract to convey
title) was the first to create the duty to transfer the property. But it is only
the French consensual contract and the English deed that produce the effect
of the disposition, i.e. the complete transfer of ownership at the very
moment the contract is entered into. It may be said therefore that the
development of the idea of justice everywhere strives to make the word
(promise of the parties) the all-efficient source, in the contract, of legal
effects enforceable at law. But primarily the contract appears as nothing
more than the exercise of the right of disposition over one's person or one's
possessions. Manifestly the basic thought is merely this: Just as the owner
may burn the thing he owns, or cast it into the sea, so he can also transfer it
to someone else. Just as the will of the owner is authoritative in general as
to anything that is subject to it, so it is also in case the will is declared in a
contractual disposition. The contract, from this angle, is a means of utilizing
one's property.
 Herein lies the germ of another thought sequence. Since the power of
disposition over one's property by means of a contract is a means of
utilizing the property, that which is to be effected by utilizing the property is
part of the content of the contract. In the contracts which are of the greatest
importance for commerce the object is to acquire, in exchange for the
disposition of one's prop- erty, a counter-performance from the other party,
which in turn consists in a disposition of property. At a very early date
therefore, at first in contracts of exchange, later, to an ever increasing
extent, in other bi-lateral contracts also, performance by one side became
the basis of a judicially recognized claim to counter-performance by the
other side. But the contract comprises two dispositions which not only
condition each other, but which are in an intimate relation with each other
and which are intertwined with each other, and a legal system which
concerns itself exclusively with the two dispositions contained in the
contract without considering their mutual relations, gives expression only to
a part of the content of the contract, not to the whole content. The book of
Zitelmann, Rechtsgeschäft und Irrtum (Legal Transaction and Error),
contains a model analysis of the psychological processes that go on when a
disposition is made. Since every contract contains dispositions, both the
point of departure and the result of Zitelmann's book are absolutely correct.
But Zitelmann stops with the disposition. He divides the contract into two
independent dispositions. To him a contract still is two dispositions, not the
intertwining of two dispositions. Inasmuch as this intertwining is a part of
the psychological process in the making of the contract, it is not appreciated
at its full value by him. The abundant modern literature of the Continental
common law and of the law of the German Civil Code first paid attention to
this point. Incomparably more profound studies of it are contained in the
doctrine of value in economics. As is well known, the adherents of the
English classical school have written on this subject, as well as the
economists of the school which is usually called the Austrian school
because its chief exponents were Austrians, although among its founders
must be numbered, in addition to the Austrian Karl Menger, the Englishman
Jevons, and the Frenchman Walras, and although it has many adherents and
outstanding exponents not only in Austria but also in France and England,
and especially in Italy and America. Apparently the classical school and the
Austrian school have reached highly divergent results; actually, however, it
seems, they have thrown light upon the identical problem, albeit from
different angles.
The concept of value of the classical is as truly justified as is that of the
Austrian school. But for the question we are now discussing, the concept of
value of the Austrian school alone is important.
We are concerned with the contract that has been entered into according
to economic principles. “In every concrete economic unit, innumerable
tendencies are conceivable in the conduct of the economically active
subjects; it is true however that, disregarding economically irrelevant
divergencies, but one way of conducting economic undertakings can be the
expedient, the economic one; or, in other words, there are innumerable
uneconomical ways of conducting every economic undertaking, but,
disregarding economically irrelevant divergencies, in every case only one, a
strictly determined, strictly circumscribed, way of conducting it along
economic lines is conceivable” (Karl Menger.) The economic contract is a
contract in which equal values are exchanged.
The investigations of the Austrian school were confined chiefly to sale
and barter; and in these spheres, to the subject matter of the mutual
performances, especially to the price. In most recent times, Kleinwächter
has included the urban contract of lease (Bodenrente). It is self-evident that
investigations of this kind might be instituted with reference to contracts of
all kinds, even those that are altogether unilateral, and that do not involve
any exchange at all, also to contracts that have no economic con» tent,
especially contracts of family or of public law. In every case the contract is
based on a psychological process which can be analyzed just like the
process which underlies the contract of exchange. In this respect the
English doctrine of consideration yields valuable results, as Pollock has
shown in his work on contracts. An investigation cannot be said to be
complete or exhaustive which does not take into account every single
understanding arrived at in the contract as well as all Haftungen (liabilities),
conditions, periods of time, limitations of time; for the economic situation is
determined not only by the subject matter and the price, but by the whole
content. Until now however Böhm-Bawerk has considered only the
influence of time, i.e. the periods of time,1 in his work on Kapitalzins
(simple interest).
1 Cosack, Lehrb. d. bürgl. Rechts, 7th edition, vol. 1, § 113.
 The ideal of a perfectly just contract is one that is based throughout on
the principles of sound economics. If the norms for decision were to follow
this ideal, they would necessarily be altogether inapplicable to an
uneconomic contract or they could give effect to it only as it ought to have
been made according to the principles of economics. This ideal however
cannot be attained by practical juristic science. In the first place the
principle that a contract must be based on the principles of economics
perhaps cannot be expressed in a general juristic formula, much less in a
legal proposition; furthermore the jurist lacks the requisite procedural
devices, especially in the matter of proof. Juristic science therefore must set
itself a much more modest task. On the one hand it must reject the most
glaring instances of uneconomic action; on the other hand it must, in proper
cases, correct details of the content of the contract according to sound
economic principle. Legal history shows that the norms for decision in the
law of contracts are in fact developing in this direction under the influence
of the idea of justice.
The causes that bring about uneconomic contracts are carelessness, error,
necessitous situation, duress. The legal propositions that make against
taking advantage of these things in entering into contracts are among the
oldest everywhere on the whole earth ; in particular, the oldest statutes are
directed against it. These are the statutes against usury and fraud. Statutes
against usury and fraud are found in Greece, in Rome, in the Middle Ages
in Europe; they are the expression of the earliest development of penal law
beyond its primitive stage, and they are gaining ground more and more even
today.
Beyond this point the law of contracts moves very slowly. In the view of
all the older legal systems, of the Roman, of the mediaeval, and even in the
more recent Roman law in the view of the legal propositions as to stipulatio
and the other contracts which give rise to actiones stridi juris, in the view of
the older Continental common law, and in many respects even of the
modern English law, the contract, is, essentially, nothing but a disposition.
This point of view appears to have been overcome, to a limited extent, only
in the later Roman law, in the later Continental common law, and in the
latest Continental law.
But neither the Roman nor the modern lav/ has arrived at a final
conclusion. The root of the difficulty is the law of error in the making of the
contract, and the law governing the interpretation of contracts. To direct the
judge to decide according to business usage and bona fides,1 according to
good faith and boni mores,2 as was done by the Romans and much more
frequently by moderns, is by no means a solution of the difficulty. This is
not a legal proposition that contains norms for decision but a direction to
the judge to find norms for decision according to justice, i.e. according to
the principles of sound economics — norms which will give the fullest
possible effect to all those considerations on which each party based its
calculation of value, and, on the other hand, will deny legal protection to
the incurably uneconomic, especially to the incurably immoral, contract.
These judge-made norms for decision however are susceptible of
universalization, and can, therefore, at a subsequent time, be converted into
legal propositions. A large part of the Roman law of contracts is based on
universalization of decisions rendered on the basis of bona fides, and the
moderns have developed additional legal propositions from the decisions
reported in the Roman sources. In my book Die stillschweigende
Willenserklärung 3 I believe I have given an intimation of the wealth of
legal propositions on the law of contracts that is found in modern judicial
decisions. It is self-evident that legal propositions of this kind should not be
included in a code; they are juristic science in the narrowest sense of the
term.
Among the legal propositions that have been derived from the principle
of good faith (Treu und Glauben) in this manner, there is one that merits a
more careful consideration. It is the proposition that each party is held
responsible for the truth of the statements he makes when the contract is
entered into. If the other party has made his calculations of value in reliance
upon these statements, the norms for decision give effect to the contract in
accordance with this calculation. The so-called declaration theory has
understood this correctly. This legal proposition can be applied to a third
party. Whenever a third party by his conduct has induced this calculation of
value, he is bound by the contract as it was made in consequence of his
conduct. This is the prin» ciple of " reliance on collateral facts" {Vertrauen
auf äussere Tatbestände), as Welspacher has named it. An application of it
is the legal proposition "Hand muss Hand wahren" It means that a contract
which was made in good faith with a possessor is valid against the owner
who had entrusted the thing to the possessor and in this way had created the
collateral state of facts, in re-Mance upon which the good-faith purchaser
made his calculation. Another application of the principle is found in the
case of public records. The records supply the parties with official
information on which the latter can base their calculations. A person who
by his conduct has caused the register to be false or incomplete cannot
prosecute his right against a person who made this false or incomplete
record the basis of his calculation ; at best he can proceed against the person
who has profited thereby. A few legal propositions carry the principle of
reliance upon collateral states of fact considerably further than this limit;
these however are not based on good faith but on practical considerations,
security of business transactions and of credit, the social importance of the
public record.
1 As to the distinction between bona fides, guter Glaube, and Nach
Treu und Glauben^ see the German Civil Code, no. 932 and nos.
157, 162, 242, 320, 815.
2 Morals.
3 Declaration of the will by silence.

It is interesting to note that the English law of contracts in its norms for
decision adheres to the older conception of the contract as a disposition to a
much greater extent than the Continental law. Until recently it knew of no
public land records. They were introduced tentatively only a few years ago.
Until recently, with the exception of a few instances, e.g. the doctrine of
market overt, it did not know the principle “Hand muss Hand wahren"
which was first laid down in a series of statutes of the years 1823 to 1877,
in the so-called Factors' Acts, and then only for commercial purposes, and it
holds the parties bound by their declarations to a much greater extent
irrespective of whether they correspond to the presuppositions of upright
business dealings.
It is impossible 1 to extend these investigations to contracts other than
those of the law of property, especially to the contracts of family law and
public law. Although the canon law as to the grounds of invalidity of
marriage, which is a result of the experience of a thousand years and of
deep insight into human nature, is out of date, self-evidently, in a few
particulars today, it may serve as a sample of what the human mind can
accomplish in a field of such difficulty. This achievement has not been
equaled in any other legal system, not even in the modern law of marriage,
nor in the modern law of the contract concerning property.
 We have shown what rôle justice plays in the law of contracts. It
progresses, one may say, along the path of penal law protection of faithful
performance of contractual duty by means of penalties for usury and fraud
from Zitelmann's conception of the contract to the conception of the
Austrian school of economists, from the contract conceived of as a mere
disposition to the contract which serves the purpose of acquiring a counter-
performance by means of this disposition. In the early law, the contract is
merely a means of utilizing one's possessions. The more the law develops,
the more it sees in the contract an instrumentality of honest commercial
intercourse. It is self-evident that, at every stage, the contract was not only
the former but also the latter, i.e. both a means of utilizing one^s
possessions and, at the same time, an instrumentality of honest commercial
intercourse. But the question is not what the nature of the contract is, but
how the norms for decision give effect to it. For the purpose of giving effect
to the contract as an instrumentality of upright commercial intercourse,
even irrespective of questions of the material law, a refinement of procedure
was required such as the Romans did not have before the praetorian
procedure with its exceptiones and bonae fidei indicia came into use. The
mere denegaiio aciionis, even though it did actually serve this purpose,
surely was not sufficient to accomplish it. And even today the goal has
scarcely been approximated.
Because of the great influence of purely military considerations upon the
development of the law of inheritance, it is not easy to recognize the part
played by the idea of social justice in the development of the latter. The law
and right of inheritance began everywhere contemporaneously with the
house community. The part of the property of the deceased that was not
given to him to take with him on his last journey remained to the members
of the household. The further development is based in the first place upon a
fiction of membership in the household, except in so far as military
considerations were given weight. If there are no members of the
household, the inheritance, which would have been without an heir, is
offered to those who had been members of the household of the deceased,
or would have been had there not been a division of goods. This is the basic
idea of the agnatic law of inheritance. An agnate is an actual or a fictitious
member of the household, a person who would be a member if he or his
ancestor had not withdrawn from it. When the Romans say that an agnate is
anyone who is under the same patria potestas as the deceased, or would be
if the ancestor were still alive, this is merely another mode of expressing the
same thought, for the patria potestas is the power of the head of the
household over the members.
1 Possibly a misprint in the original for "not impossible."

The agnatic law and right of inheritance, therefore, is not a law and right
of inheritance by relatives. It must be immediately apparent to everyone
that its basis is the house community as long as the greater part of the
people live in house communities, and inheritances actually go to present or
former members of the household. But it becomes increasingly less
apparent the more the rule becomes the exception, the rarer house
communities, excepting those of parents and offspring, become. Finally, the
whole relation between agnatic law and right of inheritance and house
community is forgotten, so that the agnatic law and right of inheritance
appears as a species of capricious and irrational law and right of inheritance
in the relatives limited to the male line. This was the conception of the
Romans as early as the days of the Republic, and it is the conception of the
modern English. Now justice demands that these utterly incomprehensible
caprices and accidental features of the law of inheritance should be
abolished, and that simply the nearest relatives, i.e. those that are not ex-
eluded for some particular reason, should be entitled to the inheritance. In
this way the agnatic law and right of inheritance becomes a law and right of
inheritance in the family. The justice of the family right of inheritance is
obvious especially at a time when the deceased himself has, in most cases,
inherited the property which he leaves, i.e. has acquired it from the family.
A special development of this right has found expression in the maxim
paterna patemis, materna maternis, All inherited property, according to this
maxim, should revert to the side from which it came.
Ficker's investigations have shown that the fictitious house community
and the family community are of no significance for the original law of
inheritance of the Germanic peoples. In so far as the free man was not
prevented by actual members of the household, he could dispose of his
property inter vivos as he saw fit; after his death it was without an heir
unless it escheated to the state or to the commune. The same situation
obtains among the Romans and the Slavs. The right of the agnates or of the
relatives (Beispruchsrecht), that their consent must be obtained before land
can be sold, belongs to a later order everywhere. And the fact that there are
no legally effective testamentary dispositions in primitive times is
attributable to the lack of legal remedies to enforce them; but the
Treuhandgeschäft (trust transaction), the contractual gift inter vivos coupled
with a postponement of legal effect until after death, is not made impossible
thereby. The great importance of the trust transaction was set forth in the
excellent book of Robert Caillemer on the basis of a great wealth of
material. The Treuhandgeschäft (trust transaction) is a contract, and the
element of justice in this transaction is identical with the element of justice
in the contract: the power of disposition of the owner over his property. And
this remains the basic idea of the law and right of inheritance by
testamentary disposition even after the Treuhandgeschäft has become a
unilateral testamentary declaration. The will of the owner, as in the case of
contract, controls the disposition of his property, in this case, even beyond
the grave. The more the agnatically fashioned rechte Erbrecht (true law of
inheritance) — to rehabilitate this fine term which Puchta had suggested as
a substitute for gesetzliches Erbrecht (statutory law of inheritance), which is
very likely to be misunderstood — appears to be out of harmony with the
family order which prevails in society today, the more the disposition by
last will and testament grows in importance. Before long it has come to be
considered a misfortune to die intestate. This was the case in Rome and in
the early Middle Ages. Since the middle of the twelfth century, actuated by
self-interest, the church has prepared the way for the last will and testament.
Thereafter the endeavor to provide for one's family, for pious and public
uses, for the economic undertaking that one has been engaged in, looms
large in the minds of men.
These clear trends of justice in the law of inheritance are being crossed
by a series of thoughts that belong to entirely different orders. In the ancient
city states, the parcels of ground owned by countrymen and by city dwellers
are at the same time warriors' portions. These were not to be diminished in
number by the death of the possessors, and, on the other hand, they were
not to be weakened by the division of inheritances to such an extent as to
make it impossible for the possessor to gain his livelihood from them. The
right of inheritance of the freeman among the Germanic peoples seems to
have been influenced by the same considerations. This accounts for the
limitations on the right of women to take by inheritance. These military
points of view are most strongly expressed in the law relating to the right of
the Erbtochter 1 to take. The purpose of the whole feudal law was to
provide an expensively equipped horseman for the army of the feudal lord,
and the feudal law of inheritance is designed to effectuate this purpose. As
to the right of inheritance of the villeins the constitution of the manor and
the will of the lord are decisive. The latter's concern is undimiDished
revenues and services; his endeavor is to establish a law and right of
inheritance according to which every parcel of ground will have an owner
able to render the required services. Again there is the desire to assign the
various parts of the inheritance to those to whom they would be of benefit:
the arms to the men; the Gerade (i.e. the paraphernalia), to the women.
Again in the higher ranks of the nobility there is the rooted idea to establish
the law and right of inheritance in the interest of the glory of the family.
Among the free peasants the principle of the house community survives
here and there; to wit one of the sons takes possession of the farm, the other
heirs are provided for as servants. Elsewhere the elder sons are portioned
off, and the youngest son, who has remained with the father, gets the farm
(ultimogeniture, borough-English).
1The female line which, being most closely related to the last
owner of a Stammgut, is entitled to take. Stammgut is an estate the
devolution of which is subject to particular laws of inheritance. See
Posener, Rechtslexikon, s. v.

The English law of inheritance has, preponderantly, been under the sway
of such trends ever since the influence of the London courts in the fifteenth
century caused the feudal law of succession, which had been confined to the
holders of knight's fees, to be extended to all classes. The immovable
property descends to the first-born son according to feudal law; in default of
a first-born son, to the first-born male child among the children of the
nearest relative (with a rather complicated computation of the degrees of
relationship); while as to movables, the right of succession of relatives
together with the right of the surviving spouse has been making its way for
two centuries. In the seventeenth century an unlimited freedom of
testamentary disposition prevails, which is not even limited by a law
providing for a Pflichtteil (duty part, or compulsory portion). The
attachment of the English to their law of inheritance is not easily
understood by a Continental. They have made only minor changes during
the course of the nineteenth century.
In the most recent development of the law of inheritance, only a few
leading thoughts are discernible. In the law of testamentary disposition, the
tendency is toward untrammeled power of disposition, limited only by the
law creating a duty part, or compulsory portion, in favor of the descendants
and the ancestors of the testator, occasionally also in favor of the surviving
spouse. The duty part, or compulsory portion, is thought of as making
provision for those persons for whom the testator is under a duty to provide.
The rechte Erbrecht (supra) is characterized by a state of extreme
perplexity. It almost seems as if the idea were this:
Someone must take the property after the death of the owner; who takes,
and what the taker does with it after he has it, is a matter of indifference to
the law provided only that it remain in the family. In Germany and Austria a
contrary tendency has set in, but only in the peasants5 law of inheritance,
i.e. the tendency to preserve the farm in such condition and extent as will
insure adequate husbandry. The Swiss Civil Code contains an interesting
attempt to arrive at a profounder understanding of the problems of the law
of inheritance.
In spite of all this, the leading ideas of justice in the historical
development of the law of inheritance can easily be traced. Remaining in
possession of the goods that were left, by a process of extension, became a
right of inheritance in the fictitious members of the household, the agnates,
and this is transformed into a right of inheritance in the members of the
family. To this is added the trust (Treuhandgeschäff) in the form of a
contract mortis causa^ and out of this grows the testamentary disposition as
soon as the necessary juristic technique has been developed. The law and
right of inheritance by last will and testament is limited — in part — only
by the right of the members of the household and of the nearest relatives to
take by inheritance, and in England not even by that. Secondary trends lead
to a law and right of inheritance in the interest of the preservation of the
glory of the family, of husbandry, of economic undertakings, to gifts to the
church and other public institutions, especially in testamentary dispositions.
In the beginning the criminal law affords no protection, even against theft
and robbery; for the inheritance is considered ownerless in case there are no
members of the household. Later however state regulations appear for the
safeguarding of the rights of the heirs (sealing of the inheritance,
permission to take possession of the goods of a deceased person granted
only after a court proceeding).
An idea of justice that has become widespread is that labor should be
placed on a par with property as wealth that is entitled to protection. It has
been recognized in the word of Scripture, "The laborer is worthy of his
hire"; and in the socialist assertion of a claim to the fruits of one's labor it
has been given a clearly defined expression, which, of course, as long as the
present social order continues, does not demand that it be realized by means
of legal propositions. But the norms for decision do not even make
provision for it to the extent to which it could easily be received into the
framework of the present-day social order; and, to a great extent at least, the
cause of this is the difficulty of adequately formulating the legal
proposition. Accordingly a cause of action which is similar to the cause of
action for unjust enrichment through the property of another lies only in the
rarest of cases against the person who has unjustly enriched himself through
the labor of others. It is only in one field, the field of creative intellectual
labor? that the difficulties, which in this sphere were enormous, have been
overcome by the combined labors of the jurists of almost all civilized
peoples, and a considerable part of the problem has been adequately solved.
To it we owe our law protecting literary and artistic creation and the
criminal law protection of intellectual property. It is true, much remains yet
to be done. So in France the idea is being agitated to secure for the artist
whose works have been sold at a ridiculously low figure a share of the
increase in value of these works after he has become famous. The justice of
this idea is not being disputed, but it is impossible to find the technical
solution of the problem. The means proposed, to wit to assure to the artist
and to the members of his family after him as a matter of law two per cent
of the price obtained at a public auction as an inalienable right, clearly is
utterly ineffectual. The correct thing would be to grant him a right of
preemption in respect of his work, but even here the closer one approaches
the problem, the more the difficulties accumulate.
The ideas of justice therefore give rise to legal propositions that supply
society with increasingly rich and varied means of defense against attacks
upon its order. In all these cases, it is always a question of developing
materials rather than of transforming those already existing. Personality,
domination, possession are protected by the inner order of society. They are
protected in the first place by means of a threat of punishment, by giving
causes of action for damages, and lastly, especially in the case of
possession, by giving causes of action for the assertion of rights and for
unjust enrichment. The causes of action arising from contract are realizing,
more and more perfectly, the original peculiar purpose of the contract, i.e. to
utilize the power of disposition over one's possessions in order to acquire a
counter-performance, and, in the case of the Kreditaustausch (exchange of
credit) and of the contract for furnishing things for use, to obtain equal
value. Judicial and state protection of the right of inheritance likewise, in so
far as it is based on justice, carries out a series of thoughts which are
already in existence in life. They are the following. The inheritance, to
begin with, is the store from which the members of the household and the
nearest relatives of the deceased derive the means of sustenance. Over and
above this, it belongs to the family of the deceased; the dispositions made
by the deceased are effective beyond the grave. The fact that the protection
of intellectual labor by means of legal propositions and legal remedies was
effected only in the last centuries must be attributed to the fact that
intellectual labor did not come into its own before that time. Thus far then
the whole law, which is based on justice, is nothing more than an expression
of the existing facts of the law, an expression of social statics. In contrast to,
and distinct from, this justice there is another justice, which is an expression
of social dynamics. In the latter the idea prevails not only that the legal
proposition is able to preserve the status quo, but that it is a means whereby
society can order the relations within the various associations in its interest.
The powerful impelling forces of this dynamics are individualism and
collectivism.1 It is believed that, through judicial decisions and
administrative action, the existing facts of the law can be modified or
abolished and that by this means the progress of society can be guided into
certain channels.
The significance of individualism and of collectivism for the
development of the law I have discussed with so much detail in my book on
legal capacity (Rechtsfähigkeit) that I may be permitted to limit my present
discussion of this point to a reference to this book. In the present
connection, the important thing is their effect upon the norms for decision.
The culmination of individualism is the principle that every man is an end
unto himself and is not subject to any power that would use him for its own
ends : neither to a domination that would subject him to the individual will
of another nor to a domination that would subject him to the will of an
association in which he does not serve himself but only the whole. The
ideal of justice of individualism is the individual and his property, the
individual who has an untram-meled power of disposition over his property,
who recognizes no superior but the state, and is not bound by anything but
the contracts he has freely entered into. Individualism therefore dissolves all
relations of dependence established by custom, i.e. slavery, domination, and
subjection, and abolishes, or at least weakens, the family law powers. The
power of the husband falls into disuse under its influence ; marriage itself is
loosened to a considerable extent by more easily obtainable divorce; the
paternal power, guardianship, and curatorship gradually cease to be self-
serving rights of a master, and become an office, the duties of which are
being performed for the benefit of the person subjected to it. This
development, which reached its culmination in the Austrian Code at the
beginning, in the Swiss Code at the end, of the nineteenth century, is
destined to reach its culmination in France in the revision of the Civil Code.
Only a modest beginning is to be found in the German Civil Code. After the
associations, into which the individuals appear to have been placed as
members by society, have been dissolved and destroyed, the only
connecting links that remain between the individual and society are
ownership, contract, and the state, to which even individualism concedes
the unlimited right to use the individual as a means to an end. Between the
state and the individual are only those associations which the state creates
as its institutions or endeavors to treat as such (commune, country, church),
and those that the individual enters voluntarily either by joining or through
contract (clubs, societies). All the rights that the individual is entitled to are
transmuted by norms for decision into individual rights, real rights or
obligatory rights. This may be said even of the time-honored community of
ownership in the family: the right to maintenance becomes a claim for
maintenance. The German Civil Code puts the matter in a form that
indicates the true situation: maintenance shall regularly be paid in the form
of a money annuity. This precept, as such, which has been derided a great
deal, is quite proper in the system of the Code; for whenever maintenance is
to be awarded in a judicial proceeding — and this is preponderantly the
case in the individualistic private law — it will regularly be done in the
form of a money annuity. In general duties are imposed upon an individual
by norms for decision only in a case where the individual has undertaken a
duty contractually or has brought it upon himself through fault (Schuld).
1 The translator is using the term in the sense in which it is used by
Dicey (Law and Opinion in England, pp. 259 et seqq.), i.e. the
"denial that laissez faire is in most cases a principle of sound
legislation . . . and a belief in the benefit of governmental guidance
or interference, even when it greatly limits the sphere of individual
choice or liberty."

The individualistic law of things is striving for a liberty of property

which shall set the latter free from all relations with, and considerations for,
the community. The individualistic law of contracts demands liberty of
contract, with the limitation indeed that the individual shall not have power
of disposition over his own person inasmuch as the individualist has always
considered the person inviolable. The individualistic law of inheritance
culminates in the endeavor to accord the fullest practicable equality of
treatment to the heirs that are entitled to take, and to provide society with
the greatest possible number of individuals that are endowed with property
and freedom of contract. The individualistic law of the state places the
individual in a direct relation to the state: its ultimate mode of expression is
the right of suffrage. Every form of limited suffrage hitherto has always
been found to be a veiled right of suffrage in the householder or in the head
of the family. This disappears where the right of suffrage is universal; the
state appears as consisting of individual human beings. Woman's suffrage, it
would seem, presents the public law dissolution of the household and of the
family into individuals as its component parts as well-nigh completed.
Thus, severed from all relations, judged, essentially, according to identical
norms for decision, human beings are equal before the law.
The world-historical significance of individualism lies in this,. that it has
done more than merely to create legal propositions, that it has, through the
legal propositions, directly affected the facts of the law. It has done away
with the usages in the associations by abolishing the associations; it has
changed them by changing the structure of the associations, especially by
loosening the structure of the family and by bringing the state into an
entirely new relation to the individual; and, in particular, it has given a
deathblow to the power of domination in the family and in the ruling
associations among civilized peoples. Through the establishment of liberty
of property and the liberation of land from all burdens and charges, which
followed in the train of liberty of property, it has utterly changed the
relations of possession; through liberty of contract it has freed trade and
commerce from untold fetters; and through liberty of industrial activity it
has shifted the center of gravity in the acquisition of wealth to movable
property. But the very greatness of the revolution most effectively bears
witness to the fact that the legal propositions have brought about these
effects solely through the elemental social forces, to which they in turn
owed their very existence.
In the nineteenth century collectivism appeared as a reaction from
individualism. Inasmuch as it found expression in socialism or communism
it has no place in this discussion; for in this form it has had no influence
upon the present-day development of law. Other, more moderate, forms of
the idea, however, particularly in the last decades, have come to be of great
significance in all departments of the law.
Collectivism expresses the opposite of the idea of isolation
(Einzelgedanke) of which individualism is the protagonist. According to the
individualistic idea of isolation, it is the duty of each individual to look out
for himself, utilizing his property and his work as advantageously as he can.
But individualism, even in the days of its greatest power and influence, was
not able to prevent communities from coming into existence, and
continuing to exist, in which at least certain claims of the members were
satisfied by the whole body according to quite different principles. In the
house community of the family, in the corporations, in the societies for the
promotion of the public welfare, in the state in so far as it is a military
community or a community of officials, or a welfare community, there are
no performances and counter-performances nicely calculated according to
property and contract. The individuals render services according to their
powers and abilities, and receive according to their needs. Although
collectivism, unlike socialism and communism in this, does not endeavor to
erect the whole social structure on the basis of principles of this nature, it
does attempt to introduce into society some of the principles which appear
fully realized in the existing communities. For the free utilization of
property through contract there is to be substituted an order under which the
individual, at least in emergencies, would render services to the whole
according to his powers and abilities, and the whole would provide for the
needs of the individual — at least in emergencies.
The point of departure is the great inner contradiction with which
individualism is afflicted. In spite of the endeavor to treat all men alike, it
permits some of the greatest inequalities to remain, especially the inequality
in wealth, which the equality before the law merely serves to accentuate.
The more the rich and the poor are dealt with according to the same legal
propositions, the more the advantage of the rich is increased. In contrast to
socialism, the social movement that is based upon collectivism does not
attempt to abolish the inequalities, but merely to mitigate them. Its aim is to
counterbalance the advantage in fact which the rich enjoy by means of
social institutions and legal propositions which impose limitations upon the
rich and prevent them from availing themselves of these advantages in too
great a measure.
In spite of the apparent conflict between them, both individualism and
collectivism are after all nothing but the expression of a tendency running
counter to the legal order which is founded on ownership of property. The
latter gives to the possessor the exclusive power of control over the
economically profitable forces of nature, and this is the sense not only of
the law and right of ownership but also of almost all the other legal
institutions. According to its inner nature, every contract, even the contract
of labor, is a utilization of one's property by the exercise of the power of
disposition over it ; and although the workman is not exercising this power
of disposition over his property in the narrower sense of the term, but over
his physical and mental powers, he does it for the sole purpose of enabling
the owner of the means of production to acquire the working power of the
workman, and thereby make his property productive. Whether the family
serves the purpose both of production and of consumption of goods, as it
did in the past, and as the family of the peasant still does even today, or
whether it serves only the purpose of consumption as is the case
preponderantly today, it is being kept together by the owner of property and
receives its content from the ownership of property. The state and the public
corporations are the organs of a society which is based on property; other
associations exist for the administration and utilization of property which is
held in common for common purposes. These purposes, of course, may
possibly be ideal purposes. In the days when society consisted of
slaveholders, in the feudal society in Europe down to the days of its last
offshoots in the nineteenth century, and in the family down to the nineteenth
century, property was invested with certain rights of domination which were
exercised by the owner either directly or through the state and through the
public corporations, and by the owner of means of production through the
guilds. It was at this point that individualism made its attack. When it
demanded liberty of property and contract, it meant merely that no rights of
domination should be connected with property. Since vestiges of these can
be found today only in the state and in the family, the historic mission of
individualism has well-nigh been fulfilled. Collectivism goes deeper than
this. It is not directed against the direct right of domination but against the
indirect right and power of domination in the owner, particularly against the
personal subjection which appears as the consequence of exclusive right
and power of disposition over the resources of nature. Collectivism seeks to
counteract this right and power of domination by endeavoring to bring
about the creation by the state or by society of new communities or the
development by the state or by society of those that are already in existence.
This, it is hoped, will aid and support the individual in his struggle for
existence (right of combination, trade-unionism, organizations for the
common welfare). On the other hand, it is urged that this be done by direct
action of the state, this greatest, this all-inclusive association, which, it is
urged, should interfere more vigorously than it has done hitherto through
legislation and through its agencies in the interest of those who are laboring
under a handicap because of the property system. The state limits the rights
of the owner in so far as they might become dangerous to the person or the
property of another (extension of liability for damage done, usually up to
but not including damage done by vis maior), and imposes special duties
toward the workmen and other employees (legislation for the protection of
workmen in the narrower sense). Just as the old usury legislation tried to
prevent the owner of money and consumable goods from availing himself
of his ownership for the purpose of exploitation in the contract for the
extension of credit, so the state today forbids the owner of the means of
production (Arbeitsmittel) to resort to certain kinds of exploitation in the
contract of labor (limitation of the labor of women and children, of the
working day, Sunday rest, prohibition of payment in kind (Trucksystem)). It
compels the owner of the means of production (Arbeitsmittel) to permit the
workman to receive a greater share of the fruits of his labor (wage policy,
minimum wage in England, Australia, and New Zealand1). It expends a part
of the produce of the national economy for the benefit of the non-propertied
classes (old age pensions, social insurance, state institutions for the public
welfare, the public welfare law of inheritance of the project for the Swiss
code, state housing policy). The state takes over a part of the production of
goods in order that the fruits and profits arising from it may accrue to all
strata of the population (movement toward state ownership and control).
Similar action by the communes is of similar significance (municipal
socialism). In the case of collectivism, too, it appears that the world is not
ruled by legal propositions. It produces its effects only by creating
associations, imposing charges on property, limiting the liberty of contract,
i.e. by creating facts of the law.
1 And in certain states of the United States.

The social idea of justice therefore has not destroyed the individualistic
idea of justice; it has fulfilled it. However much the idea of individualism
and that of collectivism may clash, in the course of history the spheres
within which each of them is justified are gradually being delimited.
Individualism, too, must concede to the state whatsoever it requires for the
purpose of doing justice to each individual, and collectivism, too, must be
in position to justify its existence by promising to the individual a better
present, or at least a better future, than he could obtain as an individual.
Individualism and collectivism are not confined to the legal sphere. They
have made their influence felt in art and literature; in philosophy and ethics;
perhaps in every sphere of human activity. And in the legal sphere, they
undoubtedly have been active at all times. The "individualism" of the
Roman law and the "social trends" of the mediaeval German law but
recently were fashionable terms, although surely there was no dearth of
social trends in Roman law and none of individualistic trends in German
law, and although the outward impression that one receives is determined
by the stage of development that the person who is forming a judgment on
these two systems of law has in mind. Every article on the anele bears
witness to the influence of collectivism in Russian law. Whenever several
Russians em™ bark on a common undertaking, even though it be merely a
hunting expedition, they form an artel, an association. But for two
centuries, at first individualism, then collectivism, have consciously been
the motive power in the creation of law. They have not only brought about
legal propositions, but have powerfully influenced human conduct, and
have given rise to much new law. There is much in the work of
individualism that has called forth just criticism, nor have all the results of
collectivism stood the test. It seems that we are again facing an
individualistic tendency, which undoubtedly will be followed by a tendency
of the opposite kind. Like the thread of a screw, these two ideas of justice
alternately have been drawing the human race upward.
Among all of the ideas of justice that have been described until now there
is not one that has failed to encounter an an- tagonist in the course of
historical development who, in the deepest chest-tones of genuine
conviction, would proclaim the opposite as that which alone is just. This
affords a deep insight into the nature of justice. It would be difficult to find
a principle that is so widely recognized as being just as the "sacredness" of
property. One need not point to the jibe of the socialists at the sacredness of
property, “of which they prate most to whom nothing else is sacred." It may
suffice to call attention to the fact that expropriation for the benefit of the
public is held to be fully as just as property itself. This of course, by itself,
would not be convincing. But a more searching investigation of the modern
development of law reveals the fact that the expropriations by the state
which are generally being demanded and which are actually taking place
either quite openly or most thinly veiled, have become so numerous and so
extensive that the principle seems to have been converted into its opposite,
and that every instance of interference with property by the state is felt to be
just, provided only that it seem somehow covered by a reference to the
public interest. This is by no means a new phenomenon; for even a man
with the highly developed sense of justice of an Adam Smith has justified
the incredible confiscations perpetrated under the Navigation Acts on the
ground that they were being perpetrated in the interest of British naval
power. This applies also to the contract. It is just that every man should be
bound by the contract as he has made it, but demands are continually being
made in the name of justice for new limitations of the liberty of contract in
the interest of public morals, of personal liberty, of social policy, of honesty
in daily life. Anton Menger says of the reliance upon collateral states of fact
in matters covered by the maxim "Hand muss Hand wahren" that, in the
interest of the security of commercial transactions, the whole national
wealth is thereby subjected to an expropriation, which indeed is limited, but
which is operating without interruption. Anton Menger also combats
individualism in the law of the family. He says that in modern society the
family is practically the only place where love and devotion are being
cultivated, and that it is to the interest of the non-propertied classes that it
be maintained and strengthened. Nothing seems to most people to be more
just than that all the children of the deceased should inherit equally, and the
legislation of the French Revolution seems to have been altogether unable
to persuade itself that it had sufficiently given effect to this idea.
Nevertheless I am convinced that the German peasantry of Austria regard
the law and right of the single heir (Anerbe) which prevails among them as
just. According to this law all the children, with the exception of the single
heir (Anerbe), are limited to a very niggardly duty part, or compulsory
portion (Pflichtteil). Not even those children that are being disadvantaged
make any complaint about it. In this whole matter it is by no means a
question of subjecting a universally valid principle to salutary limitations in
one detail or another. The point is that often enough, at the same time,
opposing principles are conceived to be just, sometimes in different strata of
society, in circles that are remote from each other, but just as frequently by
people who are in a very close relationship to each other. Both the two
parties to a law-suit are usually convinced of the justice of their cause, and
perhaps they may well be; for each is appealing to a different idea of
justice.
But a searching consideration of the facts of legal history permits us to
pick out a clear line of development everywhere in the variegated diversity
of the phenomena. Among the conflicting ideas of justice there always has
been one that gained the victory at the time, and the victories were gained
not because of historical accident but in accordance with an inner unifying
regularity. As everywhere else in the universe, so also in society, the
yesterday is contained in the today, and the today in the tomorrow. In the
sphere of law, justice is the idea of today which has grown out of the idea of
yesterday and the idea of tomorrow which is growing out of the idea of
today. In order to become a legal proposition, the legal today and the legal
tomorrow, born in society, must be given form and shape by a personality
who thinks and senses what the future will bring. This is the basis of all
practical juristic science, of all legislative policy, of all the systems of legal
philosophy that have hitherto come into existence. It is true, we are in no
better case than the herbalists of past cen- turies, to whom thousands of
years of experience of the human race had given a vague idea of the virtues
that are inherent in the various plants. The jurist and the legislator will
gradually become more and more like the modern scientifically trained
physician in proportion as sociology is able to trace and present the laws of
the development of human society. At the present time there are a few
modest beginnings in, and only inf the science of economics.
XI Juristic Science in Rome

EVERYONE who has compared a statute with a book that has been written
about it has observed that the bulk of the book is many times greater than
that of the statute, occasionally as much as several hundred times greater.
The idea suggests itself to inquire into the cause of this phenomenon. How
did it come about that so large a volume was written about so brief a
statute? To this question the jurists have a very plausible answer at hand.
Every statute, be it never so clear and detailed, leaves room for all manner
of doubt. To resolve these doubts is the function of juristic literature. Now
the doubts must be rather great if they can be resolved only in books that
are of so much greater size than the statutes themselves. Under these
circumstances, I take it, the further question is justified: Why are the
statutes not couched in terms that leave no room for doubt? For nothing is
gained under our present-day method if, in order to arrive at a clear
understanding of what the statute ordains, one must refer to a book that has
been written about it. The statutes therefore ought to be more detailed or
juristic literature is superfluous.
Time was when the jurists themselves entertained this idea. They
endeavored to draft the statutes in such minute detail as to make doubt as to
their meaning altogether impossible. The immediate result was that the
statutes became bulkier, but the bulk of the juristic volumes was not
decreased thereby. In the course of time jurists began to awaken to the fact
that each word that is added to a statute gives rise to further doubt. Today
almost all jurists of true insight incline toward the opinion that the briefer,
the more chary of words, the statute is, the better it is. The current answer,
therefore, to the question why that which is written in the books is not
contained in the statute cannot possibly be satisfactory.
 Further inquiry will convince one that the difference between a statute
and a book that discusses the statute is not quantità- tive but qualitative. The
juristic books do not offer something additional but something different.
For they contain the juristic technique, practical juristic science. Technique
is out of place in a statute. If it is put into the statute, as has been attempted
by those that demand that everything be found in the statute, it at once loses
its characteristic nature and becomes a hybrid, which not only does not aid
the development of the technique, but disfigures the statute, and not
infrequently interferes with its operation.
Practical juristic science, which is to be the sole subject matter of our
discussion at this point, is the art of making law subserve the legal needs of
daily life. It is therefore something quite different from the science of law.
Although there might be as many kinds of practical juristic science as there
are kinds of legal needs in daily life, only two branches of this technique
have become important. These are, first, judicial technique, which arises
from the need of adjudication of legal controversies, secondly Kautelar-
jurisprudenz, the art of drawing up legal documents. A clean-cut line of
demarcation between the two cannot be drawn; for in drawing up legal
documents one must consider the question how a legal dispute arising from
the document would have to be adjudicated, and on the other hand judicial
juristic technique must continually consider the question how legal disputes
which involve documents must be dealt with. Judicial juristic technique
always was the leading one and is often considered the only one. It is
indeed the older of the two ; for the art of drawing up legal documents does
not come into being until a relatively more advanced stage of development
has been reached. Judicial juristic tech-nique therefore must needs be the
point of departure for a scientific presentation of practical juristic science.
Practical juristic science did not arise from the need of applying existing
law according to rules of art, but from the need of fashioning a legal system
so that it might be practically applicable. The law as a rule of conduct, the
law in the sense of a social order, is as old, indeed, as society itself; but the
law never arises spontaneously in such a form as to be immediately
available for use as a norm for decision, and does not suffice for the
decision of all causes that may arise. The earliest function of the jurist, then,
is to fashion the social law into norms for decision, and, furthermore, to
find the norms required for the adjudication of the legal controversy.
Legislation, or creation of law by the state, is not found at this stage, and for
a long time to come will not be found to an extent worth considering. The
jurist is not yet an organ of the state, but of society. He fulfils his task as
law-finder not in virtue of a commission from the state but in virtue of the
reputation and the confidence he enjoys in society, just like the soothsayer
and the medicine man. The fact that as a rule (it seems, not always) he is a
priest does not argue a close relation between law and religion; for the other
arts and sciences, too, were fostered chiefly by the priesthood, e.g. the arts
of healing, music, and poetry. In a stage of development in which society is
as yet altogether unorganized, the priesthood is the bearer of all intellectual
life.
A practical juristic science of this kind must needs exist in every society
that has attained even the lowest degree of civilization. On a soil that is
especially adapted — such as never existed in Greece, but did exist in
Rome and in Iceland in the greatest conceivable measure — it can develop
most luxuriantly. In the more advanced stages of legal and social
development, a few additional functions are being added to the earlier ones
of juristic science: a knowledge of the existing law; a deeper insight into
human nature, which is developing more and more, and into human
relations, which are continually becoming more and more complicated; the
ability to formulate the existing law in a legal proposition that will meet the
present need; the ability to find the proper solution in case a practical need
arises, and to make use of legal knowledge for the solution of practical
problems. In the course of historical development, one or the other of these
qualities comes to the fore. But let it be said most emphatically that it is the
Continental idea of the last two or three centuries only that would limit
practical juristic science to a knowledge of the existing law, and to the
solution of practical problems. The wise men in the court scene on the
shield of Achilles are not expected to proceed according to established
rules, but, on the basis of their deeper insight into human nature, to find a
judgment which will compose the quarrel about the penalty which is to be
paid for the man that was slain. The ten men who composed the Twelve
Tables, or those other four men who proclaimed the lex Salica per très
malleoSy had been asked to make a comprehensive statement of that part of
the law which had already penetrated into the consciousness of men in the
form of clear legal propositions, and where such propositions were lacking,
to eke out the law suitably and in conformity with the rules of juristic
technique. This was also the function of the Scandinavian Rechtsprecher
(declarer of the law) and of every other codifier of the law in time past. In
those days the scientific training was lacking which is necessary in order to
enable one sharply and clearly to draw the line of demarcation between
codification of laws and the creation of law, and which is presupposed
today in, and only in, the juristic faculties of universities. Accordingly,
juristic science, historically speaking, comprises all of the following:
knowledge of the law, application of the law, and creation of law; and,
essentially, this has remained true to the present day.
The position of practical juristic science in the development of law in its
great historical continuity has never been made the subject of investigation.
Only the work of Lambert, which has repeatedly been mentioned, La
fonction de droit civil comparé, contains an attempt of this sort. The object
of this book however is the clarification of a different problem. Hitherto
practical juristic science has always developed only in connection with a
certain legal system; and, as a matter of fact, there are as many practical
juristic techniques as there are legal systems. An understanding of the
significance of practical juristic science for mankind could be gained only
from a comparative history of the juristic science of the civilized peoples at
least. Self-evidently however the solution of a problem of this kind is not to
be thought of at this point. Nevertheless there is a practical juristic science
which has become of world-historical significance, i.e. the legal science of
the Romans, and that of the Continental common law, which has grown out
of it. We shall deal chiefly with these hereafter. Anglo-American juristic
science will be presented but very briefly, and that of the Scandinavian legal
system will be merely touched upon. Since that of the Continental common
law has in many ways served as a model for the other important juristic
sciences, except the Mohammedan, a more detailed presentation of its
nature will be conducive to an understanding of the others.
Before we shall enter upon a discussion of the practical juristic science of
the Roman law and that of the Continental common law, let us but glance at
the statements of German law and at the German law-books; for they
belong to a much more primitive stage of legal development than our
tradition of the Roman law. It is true, the German popular laws are not an
original source of law. Drawn up in territory that at one time had been
Roman and had enjoyed a high degree of legal development, influenced by
the latter, and also by the church, they contain much that is not native to the
soil, particularly much state law, and much that surely never had been law,
and that never did become law at a later time. If we eliminate these
borrowings, which belong, in the main, to the field of public law, there are
left, as the content of these laws, chiefly precepts as to legal procedure,
criminal law, law of damages, and as to the law and right of inheritance of
collateral relations, and a few private law regulations, the majority of which
had manifestly got in quite accidentally and had been received merely
because they had been applied shortly before in the adjudication of
litigation. But it is not only the narrowness of the legal material that is
striking, but also the dearth of legal propositions. A few centuries later, in
the Middle Ages, the number of legal propositions has indeed increased
considerably, in several regions at least; particularly the laws of the cities
contain an incomparably greater number of them than the leges barba-
rorum. But the number of divisions of the law to which they refer is not
greater than it was in Frankish times, to wit procedure, criminal law,
criminal procedure, law of damages, and law of inheritance; we might add a
part of the law of suretyship, pledge, warranty in sales. Perhaps in addition
to the rules that may be found in the collections a few other rules were in
use here and there about the form of certain classes of contracts. At any rate
there were not many of them.
We can positively assume, then, that practically the whole store of rules
of law that the contemporaries knew of at the time the popular laws or the
city laws were collected has been handed down to us. But they could not
possibly have contained a sufficient legal order; not even from the point of
view of the requirements of the administration of justice. Where then did
the judges and the Scìioeffen1 get the norms for decision which they
required? To answer this question by referring to their sense of fairness and
justice would be inexact. For tradition shows that, in the majority of the
cases, the inner order of the individual legal relation which was the subject
matter of the particular controversy served as the source of the norms for
decision. Long before norms for decision couched in general terms were in
existence in sufficient numbers, such norms were taken from the content of
the subjective rights as they severally appeared. In mediaeval German law
every tract of land may properly be said to be an individual. It has its own
law which arises from custom or from the document of grant or from the
contracts that were entered into concerning it or from its location in the
mark. All this, and nothing but this, is conclusive as to the extent of the
rights of the landowner, the rights of property and the rights to emoluments,
the relations between neighbors, ground rents and other returns, and the
permanent charges on land. Likewise there is no general law of
corporations. The corporations make their own law or they receive it from
the king or from some landowner. Every man belongs to some one or more
legal group or groups; and the legal group, in the main, determines the legal
status of its members independently. Moreover most of the free families,
especially the noble families, have created their own law through ordinance,
agreement, or tradition. This law governs the rights of personality, family,
and inheritance of its members. The most subjective law however is the
material law of contract, which is based almost exclusively upon the
content of the various contracts. The declarations of law and the judgments
that have been handed down to us show that the basis for the adjudication
of a legal controversy was the law, as ascertained in each case, of the parcel
of ground, of the corporation, of the family, of the noble house, or the
content of a contract, i.e. the inner order of the relations, which clearly
appeared from tradition, the documents submitted, or commercial custom.
1 Lay judges.

All of this, as is well known, did not prevent the mediaeval writer from
writing the Sachsenspiegel, in which, no doubt, he stated a much greater
number of legal propositions than he found in existence at the time. It is
known today, to a certain extent, how he came to do this. In the public law
parts he worked with an ideal conception of the ancient glory of the Empire.
This we shall not discuss here. But if we examine the private law, the part
we are most concerned with here, we shall see that he is vigorously and
consciously universalizing1 the form of the subjective legal relations within
the borders of his narrower homeland, with which he had had opportunity to
familiarize himself while acting as Schoeffe (lay member of a court), and
that, most likely, he has invented more or less of it. In spite of the great
diversity in the orderings of the family, the relations of possession, the
contents of contracts, and the relations of the various ranks and classes,
there have developed in certain districts under the influence of economic
uniformity, of the system of legal documents, and also through direct
imitation and borrowing, certain common features in the law of real
property, of rank, of the family, and of contract. They attracted the attention
of Eike von Repgow, doubtless a man of wide experience and keen powers
of observation, who made a systematic presentation of these features in his
book. Since he was not writing a code but a book of law, he was chiefly
concerned with preserving that which was common to legal relations of the
same kind, without expressing disapproval of that which was divergent or
peculiar. The latter was not to be done away with; for it was just as much
entitled to continue as that which is general. But the effect was a different
one; for posterity did not treat the Sachsenspiegel as a book of law, but as a
code. The divergent and peculiar was greatly disadvantaged by these
universalizations, which he had laid down and, in part, had laid down quite
arbitrarily; for in every instance it had the burden of proving that it was
permissible. Success in this matter was a matter of comparatively rare
occurrence, much rarer than it had been before the general had been laid
down. We must assume that it was successful only when the parties
concerned had already become aware of it, especially when it had been
recorded in writing either in a collection of laws or in a document
containing a grant. Accordingly the mere fact of universalization in the
Sachsenspiegel became a self-active, law-creating force; the general
became a rule; the divergent and peculiar, an exception. In this way, the
Sachsenspiegel has become a universal norm for decision even beyond the
boundaries of the German Empire ; of course not in the form of a
universalization but as a precept, as a norm in the sense that now the
decision based on the universalization of the Sachsenspiegel has been
substituted for the decision based on the subjective nature of the individual
legal relation, at least in all cases where the divergence and peculiarity was
not clearly and unmistakably manifest. It is well known that this
development has often gained legal force for the doctrines of the Spiegler,1
even when the latter did not contain universalizations but free inventions.
This highly remarkable peculiarity of juristic science, the conversion of its
forms of thought, of its legal theorems, into norms, this great antinomy of
juristic science, is the basis upon which its world-historical position rests.
1 The translator is using the term universalize here in preference to
generalize to describe the method employed by the author of the
Sachsenspiegel, to wit (1) observation of the concrete phenomena
of life; (2) selection of those phenomena that are of basic
significance for life; (3) formulation of these phenomena in abstract
terms.
 The Schwabenspiegel and the smaller Kaiserrecht2 arose in the same way
and have attained a similar importance. In France the same thing occurred
in the case of several books of law, especially the Grand Coutumier de
Normandie, the Etablissements de Saint Louis, the Somme rural, and,
although not until long after the death of the author, the Beaumanoir; in
England, in the case of
1 I.e. the author of the Sachsenspiegel.
2 Kaiserrecht means Imperial Law. In the Middle Ages it was used

to include the statutes of the Empire as well as the Roman law

inasmuch as the German Emperors regarded themselves as the
successors of the Roman Imperator es. The Schwabenspiegel, toOj
was designated as Kaiserrecht; also a smaller book by an unknown
author which was known as Kleines Kaiserrecht.

Bracton, much more so, in the case of Littleton and Coke. We may pass
by the Swedish, Norwegian, and Icelandic books of law, since they are
closely connected with the peculiar Gesetzsprech-erami (office of declarer
of law) ; the Danish law-books however do not differ much from the works
named above. The same may be said of the records of the feudal law, the
Assizes of Jerusalem, the Libri fetidorum, the feudal law of the
Sachsenspiegel. In this way the great work of Hugo Grotius has created the
modern law of nations.
The significance of the books of law lies not only in the fact that they
universalize but in the fact that this process of univer-salization leads to
reduction to unity. He who universalizes merely states that which is
universally valid; but reduction to unity always imports a precept to the
effect that the particular should conform to the universal. Universalization
in itself is merely a logical process without which scientific and practical
thinking is impossible. But in juristic science it is norms that are being
subjected to this process, not the unifying regularity of phenomena, as in
the other practical sciences and in the true sciences. And in consequence it
is not more nearly universal unifying regularities that result from the logical
process, as is usual in cases of universalization, but universal norms. The
great antinomy of juristic science which, I presume, the latter has in
common with all other practical sciences that deal with norms, but not with
the other practical sciences and with the true sciences, lies in this, that its
modes of thought and its doctrines are being converted into norms.
To begin with, it would be most amateurish forthwith to draw inferences
as to Roman legal development from mediaeval, especially Germanic, legal
development. In the days of the Republic, the Roman law was valid, in the
main, only in a very small area, and a legal system of this kind is something
quite different from a legal system that is valid in a vast area like the
German. On the other hand one cannot compare it with the Italian or the
German city laws; for in the latter the city population, which is engaged in
commercial and industrial pursuits, was the important consideration, while
the Roman law of the more ancient times dealt preponderantly with the
nobility and the peasantry of the adjacent open country. In the days of the
Empire it was being transformed, rapidly and positively, into a system of
law adapted to the needs of an empire. The development was supervised
and in part directed from a single center, and in this respect can be
compared only with the English law, as to which the London courts have
been fulfilling a similar function from the days of Henry II. But the Roman
Empire was much larger than England, so far as the London courts are
concerned, ever has been, and the provinces enjoyed a much greater
measure of independence in the matter of law than the various parts of
England; perhaps more than is generally believed today. A comparison with
France, at least up to the time of the Revolution, would be much more
fitting were it not for the fact that the French provinces, in spite of their
subjection to the Parliaments, were so much more independent in their
creation of law than the Roman, at least so far as the law pertaining to
Roman citizens is concerned. Moreover, we must take into account the
condition of the Roman tradition. As to the time of the Republic it is
extremely fragmentary, and as to the days of the Empire it presents only
that in which the jurists of the capital were interested, and it presents this
with a marked metropolitan coloring that dominates the whole presentation.
In addition to the discussion of the law concerning the peasantry and the
rural nobility, which undoubtedly constitutes a heritage from the days of the
Republic, there is a presentation only of the law concerning the magistrates
of the capital and the official class ; commerce and industry receive scant
attention.
If one bears in mind these extraordinarily important differences, one has
eliminated the most important sources of error in the comparison of the
development of the mediaeval law with that of the Roman law. In the first
place this comparison shows the historical position of the law of the Twelve
Tables. We must concede to Pais and Lambert that throughout historical
times there has been no authentic tradition of its text. This is proved by the
comparatively modern language, by the fact that its text varies in different
quotations, by the many interpolations that date from a later time, e.g. the
statement as to the division of the nomina and the aes alienum among the
heirs, or the proposition that the title to the thing sold does not pass to the
buyer until the price has been paid. But I think that there is abundant
testimony that the Romans had a codification, perhaps an official one, albeit
one poorly transmitted, of the old customary law, which goes back in
substance to the fifth or fourth century before our era. So far as one can
judge from the content that has been handed down, it parallels the Germanic
folk laws throughout. In the main, it contained precepts as to procedure,
penal law, law of damages, right of collateral relations to inherit, rights of
neighbors, ius sacrum. Over and above this there are a few propositions
about forms of contracts and testaments. The former perhaps are
interpolations; the latter, perhaps, originally had a meaning quite different
from that which was attributed to them at a later time.
If this is correct, it follows that, at the time the Twelve Tables originated,
the store of legal propositions was in a general way comparable to that
which existed among the Germanic peoples in the sixth or in the eighth
century. The chief significance of this fact is that by that time the Roman of
those days had become aware of only a very small part of the law of society.
As in mediaeval German law, the majority of the norms for decision had to
be derived, in each individual case, from the subjective nature of the
various legal relations. The fact that we find no trace of the great diversity
which we meet with in the history of the German Empire and of German
law can be explained by the fact that the territory in which the Roman law
of the Twelve Tables, as well as that of the period immediately following,
was valid was a very minute one in comparison with that in which the
German law prevailed; but, in proportion to the extent of territory, the
Roman legal institutions of the time of the Twelve Tables surely were not
more unitary than those of the kingdom of the Franks or of mediaeval
Germany. The idea that there ever was a unitary law of the Roman génies is
out of the question. Each gens had its own law, which was based on
tradition, perhaps upon precept, surely not upon legislation. An abundance
of ves- tiges of this law of the individual gentes may be found in historical
times. Surely there were common features which permitted of a
comprehensive presentation such as was perhaps contained in the lost pages
of Gaius. Nor must it be thought that the law of the Roman household, as
we know it, was quite generally the inner order of the Roman house. In my
book on Legal Capacity, I have shown that the family law that has been
handed down by tradition referred only to the relations of the family to the
outer world. The inner order of the family must have been subject to very
great variations according to rank, calling, wealth, place, descent, gens, and
also as to time, from century to century. It is quite unthinkable that the
Roman artisan or the small merchant or even the proletarian ever was a
member of the larger family as we know it, or that the foreigner who had
acquired Roman citizenship at once began to regulate his life and that of his
family according to the precepts of the Roman jurists. The sources are silent
on this subject because that which goes on in the bosom of the family is no
concern of theirs. What does concern them is the fact that the paterfamilias,
and he only, represents the household in court, and that he alone has the
power of disposition over its wealth. But before this outer order had been
established, the Roman family, just like the Roman gens down to Imperial
times, had no law other than its inner order, which, just like the gens, it had,
in the main, established itself. That the divergencies in the order of clans
and families influenced the law of inheritance in the far distant past is, to
say the least, very probable, in spite of the fact that the law of inheritance
was the first to be regulated by general propositions. Even in Cicero^s day
inheritance among the patrician Claudii was regulated differently from
inheritance among the plebeian Claudii, As to Roman land law, there is
today a growing recognition of the fact that we know it only in the form
into which it was put when the original constitution was abolished. That this
was brought about by the Twelve Tables is the more improbable the earlier
the time into which one places them. In the fifth century, the fundus was not
yet res mancipi. Accordingly the mancipatio of the law of the Twelve
Tables, if it dates from that time, could not possibly have been applicable to
the fundus. Moreover, before the village organization and the district
organization were abolished every parcel of Roman land was an individual
in the same sense as the German parcel of the Middle Ages. The law that
governed it was not determined by legal propositions; the latter had to be
ascertained in each individual case on the basis of tradition, contracts,
document of grant, location in the village mark, relations between
neighbors. The Roman law of agreements, even in historical times, was by
no means laced so tightly within formulae as modern presentations would
lead us to believe. Of course one would have to give up at the outset the
preconceived notion that the classes and the contents of agreements that the
Romans were familiar with can, in some way or other, be gathered from the
classes and contents of their contractus. So far as we can decipher the
Roman law of agreements, we conclude that an agreement had to be of
consider» able importance in daily life before a contract action could be
brought on it. The prior in time was the agreement, not the action. This was
the situation in primitive times, and it was the situation in Imperial times
also; there always were more agreements than contractus. And if one had
to, or wanted to, enter into an agreement on which an action could not be
brought, one would rely on iuramentum, satisdatio, pignus» The Catonian
formulae, even though one should refer them exclusively to legally
enforceable agreements (and this can hardly be correct), constitute the best
evidence that assurance that the agreement would be performed was not
sought for in the right to sue but in the security that was given. The sources
show that in other relations, too, the Romans did not set great store by the
right to sue. The great significance of fides appears from the rôle that was
played as late as the days of the Empire by the fiducia, on which an action
could not be based until a very late period. The same phenomena may be
observed in the case of the fideicommissa. The iuramenium liberti, too, was
in vogue for a long time before an action could be brought on it. For a few
contractual claims for certa pecunia or certa res, it is true, an action lay, the
condictio, which did not go out of use until a later period; it is possible, as
many believe today, that after the adoption of the formulary procedure an
actio in factum was given in these cases. The further we penetrate into
the past, the more of contract law is found to be outside of the ius civile,
and there were relatively fewer universally valid rules governing them.
This, it is true, is flatly contradictory to the prevailing view that the
rigidity and the strict adherence to forms which characterized the older law
was not relaxed until a comparatively late date, and then only gradually.
The latter view, however, is based, perhaps, on several misunderstandings.
It is not true that life and intercourse among men were bound by rigid forms
; but appeal to the courts was permitted only under very strict conditions. In
general, one must get rid of the idea that the courts were open to everyone
in primitive times, as they are today, just because one's right had been
violated. In order to appeal to the courts, one had to be a man of power, and
such a person engaged in litigation only with his equals. The appeal to law
took the place of the feud. Even in historical times, instances can be found
on every page of legal history that show the importance of having a
powerful patron in litigation. In the typical action against a poor man, the
legis actio per manus iniectionem, the decisive question was whether the
defendant could find a man of rank and wealth, an assiduus, to take his part.
The rigid, staccato forms of the court procedure correspond to the relation
between two mortal enemies as they stand before the judge; they are of the
same coinage as the rules of single combat.
But the prerequisites to resort to law have nothing to do with the forms
and formalities of legal life. Originally the basis for a cause of action could
consist only in an accusation that the accused had perpetrated a misdeed.
The malo ordine tenes of Frank-ish times was, as is now admitted, the basis
of the rei vindicatio also. As to this basis of a cause of action the formalities
of com™ mereiai intercourse are altogether immaterial. The claim arising
from contract, the only one as to which rigid forms could be decisive, is one
of those that did not become justiciable until a very late period of time.
Since the oldest form of legal protection provided for the contract consists
merely in the protection of the possession which was transferred by means
of the contract, it is self-evident that the contract is enjoying legal
protection only inasmuch as it is accompanied by transfer of possession.
But the fact that the contract was protected only where it was accompanied
by transfer of possession does not make transfer of possession a formality
of the contract. In the gradual severance of the obligation of the contract
from the transaction of transfer of possession, the gradual strengthening of
the idea of the independent contract may be seen. Not until then did
symbols of possession become a matter of form. The calling of witnesses to
assure the buyer that the thing sold had not been stolen, or of relatives
whose consent was necessary to make the alienation binding — these things
are not formalities. And it is just as improper to conceive of the crudeness
and the clumsiness of the oldest form of pro» cedure, which made a
straightforward presentation of the state of facts, a more careful elaboration
of the claim, and the effective assertion of defenses, impossible, as
strictness of form. These things were merely defects of technique, not
formalism. Primitive times know of awkward and naïve, but not of rigid,
forms. Wherever the latter arise, in religion, in art, and in law, the order of
development, as history teaches us wherever we can trace it far enough, is a
hardening of forms that originally had been soft and flexible, not the
reverse. It is true, a time comes when they become an unendurable fetter,
which occasionally is thrown off all of a sudden, but we must not on that
account believe that the fetter lies at the beginning of all development.
Wherever we are enabled to survey a longer period of time, as in Germany,
France, and England, we become convinced that the law has always
developed from freedom to rigidity. At any rate we may be permitted to
quote the words of Maitland concerning English law, which ever since the
fifteenth century had been stifling more and more in a veritable bog of
formalism until it regained a fair measure of freedom through the influence
of Bentham in the nineteenth century. Says Maitland: "It is a mistake to
suppose that our common law starts with rigid, narrow rules — knows only
a few precisely defined forms of gift, and rejects everything that deviates by
a hairs-breadth from the established models. On the contrary, in the
thirteenth century it is elastic and liberal, loose and vague." Accordingly
Roman juristic science found itself, at the beginning of its career, probably
in the fourth century B.C., face to face with the same task that confronted the
writer of the Sachsenspiegel when he began writing his book. There were
only a few universal legal propositions in a comparatively small number of
branches of private law. In other cases, the norms had to be found by
observing life ; one had to ascertain what custom was in vogue in the gens
or in the family on the point in question, what agreement the parties had
reached and entered into, what was commercial or trade usage in a given
region or class. If we take a look at the fragments of the juristic science of
the Republic, or at Labeo, or at Sabinus, we shall discover that the Roman
law has traveled a long way in the course of fewer centuries by far than
separate the lex Salica from the Sachsenspiegel. In this extremely
fragmentary tradition we find a wealth of legal propositions, which, in part,
have been elaborated to a marvelous degree of refinement. In spite of the
great amount of labor that has been bestowed upon the study of the history
of Roman law, no satisfactory answer has been found to the question
whence the Romans got their legal material. In time past the belief was
universal that they had obtained it by a process of interpretation from the
statutes and from the edict.1 But this answer would merely shift the
question somewhat, for we should then be constrained to ask whence the
statutes and the edict got their legal materials. But we may now regard this
doctrine as generally abandoned. At the present time, we have sufficient
knowledge of the Twelve Tables, of the later private law statutes, and of the
edict to know that this great wealth could not possibly have been obtained
there. At most, they have made contributions of consequence only to the
law of unlawful acts and of intestate succession. Perhaps I may claim for
myself the credit of having shown in my Beiträge zur Theorie der
Rechtsquellen that Roman juristic science has created its material
independently of any other source of law. The main root of the Roman law
is the proprium ius civile, i.e. the juristic law which the jurists themselves
have created. According to the words of Pomponius, it is the ius quod sine
scripto venit compositum a prudentihus, ius quod sola prudentium
interpretatione consista, or according to Boethius, probatae civium iudiciis
creditaeque sentenciae. Although in form an interpretation of the Twelve
Tables, this ius civile was an absolutely independent creation of the Roman
jurists. For a further discussion I must refer the reader to the book
mentioned above, the conclusions of which have quite generally been
accepted.
1 This clearly is the view of Mommsen, Staatsrecht^ III, p. 604, n.
2. ■— Author's note.

Even though it has been established that juristic science in Rome has
itself furnished its material, the question where the jurists got it remains
unanswered. On this point, the writings of the Roman jurists contain a great
amount of information which has not yet been made accessible, and which I
may possibly turn to account at some future time in a second volume of
Beiträge zur Theorie der Rechtsquellen. Moreover there are some scattered
references on this point in the literature of recent date. The veteres,
including Labeo and Sabinus, employed the same methods that were
employed by the author of the Sachsenspiegel (the later writers, to a great
extent, merely continue working on the basis of the tradition), i.e. they have
consciously, forcefully, and intelligently universalized that which they had
observed within a narrow sphere, the inner order of the relations, of which
they had a lively understanding from actual observation. They did not,
however, select a certain place or a single class, rank, or profession as their
point of departure — a proceeding which would be most unlikely at all
events. Their point of view was changing continually according to the legal
institution they were dealing with, partly because, at the time when juristic
science began to consider the question, the views of a certain class,
profession, rank, or perhaps of a certain locality were dominant; partly
because certain legal institutions appeared chiefly in certain social strata.
But a point of view once adopted is usually maintained quite consistently
throughout. The basis of the Roman family law is the constitution of the
family of the Roman peasant-proprietor; and this state of affairs continued
after the latter had disappeared from Roman society. The enormous
revaluation of all human life at the end of the Republic and in Imperial
times had surely revolutionized the inner order of the family, but this fact
found incredibly little of corresponding expression in the norms concerning
the capacity to appear in court, the inheritance and the contract of the filii
familias — the senatus consultant Macedonianum, a little mitigation of the
old precepts as to the incapacity of the filii familias to appear in court and to
acquire property or rights, a few slight changes in the law of inheritance,
and nothing more. Only the law and right of dos in the free marriage and
perhaps the free marriage itself as we find it at a later time arose among the
nobility and the well-to-do middle classes. The Roman testament, too,
seems to have arisen among, and to have been concerned primarily with the
interests of, the peasantry. The Roman law of sales is concerned chiefly
with parcels of ground, slaves, cattle — in brief, with the individual
transactions of the dealings of peasants and small men; a few principles of
the law of the market were universalized at a later time so as to cover other
sales also. Scarcely a trace can be found of consideration of wholesale trade
and industry. The mandatum manifestly is of aristocratic origin; it arose
from the relations between the great lord and his clientes and stewards. The
roots of the law of partnership have been traced; they lie in the household of
the peasant family, later in occasional associations for purposes of gain or
speculation, and lastly in permanent associations for the purpose of
conducting joint enterprises. Sachmiete (letting and hiring of a thing)
involves almost exclusively law pertaining to great landed estates and
tenement houses. Studies of this kind yield some information as to the time
at which the law governing these institutions arose.
What the mutual relations between the two parts of the Roman law, the
ius civile and the ius gentium, were while these developments were taking
place is of little importance for the question we are discussing here. It is
possible that the Romans in their universalizations also took the general
commercial law of the nations of the Mediterranean littoral into account,
but, according to what has just been stated, this does not seem probable; at
any rate, they did this only to a limited extent. Moreover, transactions that
manifestly were parts of the ius gentium, like sale, ordi- nary and
usufructuary lease, were a basis for juristic law only in the form in which
they were in use among Roman citizens. This self-evidently applies, even to
a greater extent, to the mandatimi and to the societas. This is the only way
one can account for the fact that the law of sales remained the law chiefly of
the traffic in land, slaves, and cattle and that so little is said of the subject
matter and the forms of wholesale trade and other commerce, in which
foreigners took part also. We must not forget that the ius gentium applied to
Roman citizens only so far as it had become juristic law, and that to this
extent, as I have shown in my book, the Romans, when they spoke of the
ius civile, included the ius gentium.
The juristic uni ver salizat ions, as I have said à propos of the
Sachsenspiegel, are one thing as to their purpose? another as to their effect.
They purport to be statements of that only which is universally valid, and
their effect is that everything that has been stated becomes a norm
according to which everything is judged that has not been able to maintain
itself as something of a distinct and particular nature. Here the great
antinomy appears again to which, in every instance, juristic science owes its
position in the history of the world. Universalization in its nature is a
logical process through which the human mind extracts the universal from
the diversity of things which would otherwise be beyond comprehension.
But in juristic science the universal becomes a norm? a precept; the
particular, an exception, which must justify its existence in each and every
case. What the relation was between the universalizations of the Roman
jurists and life cannot readily be shown in detail; but this much is certain :
the latter did not follow the former in everything. It has already been
pointed out that the inner order of the family of the later times did not
correspond to that which the jurists had borrowed from the family of the
peasant-proprietor. Another example of this is the sale, which became a
contract of transfer not because of the juristic law but in spite of it. But the
universalizations demonstrated their enormous power in their function as
norms for decision for the courts. They were unreservedly recognized as
such in Rome; and in the last analysis, even today, controversies that are
covered by the law of family, of the matrimonial régime, of things, of
obligations, of inheritance, and, occasionally, even of corporations are being
decided according to universalizations at which the Roman jurists arrived
through observation and study of indigenous relations, and which have
passed over into modern law.
It is with these universalizations that have become norms for decision
that is connected the boundless wealth of norms for decision which the
Romans found solely for the purpose of satisfying the requirements of
litigation because they believed them to be appropriate means to the ends
sought and to be meeting the demands of justice. They include first of all
the highly ramified subsidiary and non-compulsory 1 law of contracts, in
addition, the rules relating to liability for dolus, culpa, and mora, to bearing
the risk, to the legal consequences of mistake, to the point of time 2 at
which a legal right is acquired or lost, to claims for compensation for unjust
enrichment, to the extent and the content of the procedural claim, to
Rechtskraft (force of law),3 to conflict of claims. Of all of this nothing, or
very little, is to be found both in the Sachsenspiegel and in other law-books
so far as they are independent of Roman law. Even the modern English law,
which in many respects is more richly elaborated than any other legal
system in the world, has remained far behind the Roman law in the matter
of legal propositions of this kind. For various reasons, but especially
because they can most easily be transplanted to foreign soil, I am inclined
to believe that it was the great store of norms for decision, clear, well
thought out, and well adapted to the purpose intended, that qualified the
Roman law to become a world system of law.
In spite of their fragmentary condition, the sources make a deep insight
into the workshop of Roman law possible. The system of actions which
prevailed in Roman law at the time that is of the greatest importance for
legal development indicates that there is a distinct procedure for each claim.
The parties must express their desires and requests in clear and definite
terms, and at the same time perform certain acts, and all of this is definitely
prescribed in the forms for each actio. The system of actions grew out of
the procedure of primitive times. Originally an appeal to the court lay only
in case of certain misdeeds, and in making his appeal the plaintiff had to
state in advance not only the misdeed but also the sum which he demanded
by way of penalty. Out of the complaints, which varied according to the
misdeed, there arose, at a later time, actions which varied according as the
claims varied. In the Roman rei vindicatio the connection with the old
action for theft still appears quite clearly. Since it manifestly was a matter of
extreme difficulty to obtain a new actio for a claim, the existing forms had
to be worked over continually in order that the system of actions might
meet the needs of life. This required great legal knowledge and technical
ability. The forms had to be drawn up so that they might readily conform to
the claims, and also that the very greatest possible number of claims might
be asserted by means of each form. The draftsman required a keen eye for
the various relations of life out of which the claims arose, and for that
which was common to the great number of claims for which he was
drawing up a new actio. All of this was of decisive importance for the art of
drawing up legal documents. Because of the comparatively great rigidity
and inflexibility of the actiones it was important to draw up a document so
that an existing actio would fit it, or to protect the parties so fully by means
of securities that they could dispense with the actio.
1 Nachgiebiges Recht means law that is applicable unless the
parties provide otherwise.
2 Zeitpunkt.
3 Posener, Recht slexicon, s. v., defines Rechtskraft as the quality

inherent in judicial decisions in virtue of which their content is

treated as having the force of law.

Under this system the process of universalization in a certain sense took

place mechanically» Every lawyer would, as far as possible, squeeze the
legal relation for which he was about to draw up a document into one of the
existing documentary forms, and the claim which he was about to assert,
into one of the existing litigious forms; and for each claim the actio yielded
not only the procedure but also, in connection with the appropriate
document, a large part of the material law. The claims based on the same
documentary forms and drafted according to the same litigious forms,
therefore, had a series of rules of law in common. Once the document and
the actio for a contract of dos have been established, a universal law of dos
has been established, for everyone would draw up the contract according to
the existing document in order to be enabled to avail himself of the
recognized actio. The endeavor to economize in the use of forms led to
combining quite heterogeneous relations into a common actio, e.g. to
subsuming the contract of labor under the category of the contract of letting
and hiring; or the claim of the guardian or of the curator under the category
of negotiorum gestio. It often therefore led to very unnatural juristic
constructions and to a very unsatisfactory distortion of the material law. The
Romans called the art of drawing up documents cavere, the drawing up of
the forms for litigation, agere; in addition there is the respondere, the
giving of juristic opinions, which self-evidently also became a lever for
universalization. There is a good deal of Roman law that we shall never
understand until at least a small portion of the industry that has been
expended upon the reconstruction of the praetorian edict is devoted to the
practice of the lawyers who drew up legal documents. Difficult though it is
to find traces of the Roman forms for contracts in our tradition, in many
ways much more could be done than has been done until now. Further study
will make many things clear that until now have been incomprehensible to
us. By the time the freer procedure according to written formulae replaced
the older spoken formulae, the technique of the jurist had become fixed to
such a degree that this innovation remained without any influence whatever
on it.
In my book on the theory of the sources of the law (Theorie der
Rechtsquellen), I have dealt with the question how the opinions of the
jurists became a part of the law that was binding in the law courts, i.e. of the
ius civile. From the fragment of the Enchiridion of Pomponius, which
unfortunately is very incomplete, we can gather only that in the days of the
Republic the only requisite was that they should emerge victoriously from
the disputatio fori. According to a remark of Suetonius, Caesar was anxious
to regulate the matter (ius civile ad certum modum redigere); perhaps
Augustus merely carried out this intention when he regulated the
ius respondendi. But the jurists were not creating law solely by giving
opinions ; their influence as teachers and writers must have been much
more effective. A glance at the juristic literature that has come down to us
will show what method they pursued. The jurist usually introduces his
opinion with extreme modesty, e.g. et puto, magis arbitrar', sed magis
sentio, aequius est, magis est; but occasionally a more forcible expression
like existimo constituent dum is found. At this point the disputatio begins,
no longer in the forum but in the literature, employing phrases like the
following: et magis placuit, sed magis visum est, et magis putat Pom-
ponius, et ego puto, secundum Scaevolae sententiam quam puto veram, et
magis admittit (Marcellus) tenere eum, et est aequissimum, or a phrase of
rejection: quae sententia vera non est et a multis notata est, nec utimur
Servii sententia ; until finally the rule is established : maiores constituerunt,
Cassii sententiû utimur, Labeo scribit coque iure, et hoc et Julianus admittit
eoque iure utimur, haec Quintus Mucius refert er vera sunt, abolita est enim
quorundam velerum sententia. Until one could say of a rule which had been
stated by a jurist, eoque iure utimur, it had not finally won its way to
victory.
It seems that the praetorian law did not begin its powerful and
independent development until the formulary procedure had been
introduced. Doubtless the creative activity of the praetor has been
overestimated for a long time. LeneFs reconstruction of the edict shows
sufficiently how small the contribution of the praetor to the whole proud
structure of the Roman law was. The edict contains legal propositions of
very diverse kinds: procedural law, penal law, police regulation. So far as it
contains civil law, it is, for the greater part, juristic law, and, what is more,
judge-made juristic law. It was found by the praetor in the course of his
judicial activity. His norms closely follow the norms of juristic law, the
procedural forms of which the praetor availed himself, often with very
insignificant changes, for his purposes; and there can scarcely be any doubt
that the same jurists who were perfecting the ius civile inspired the thoughts
which the praetor embodied in his edict. And so his finding of norms, just
like that of juristic law, is based upon universalization of the concrete nature
of the various relations of life, and in part upon the same principles of
justice and fairness that the jurists follow. It is true, the praetor was limited
by the leges and the ius civile, and perhaps had to render obedience to the
commands of the senate; in any case, however, relying on his imperium he
could proceed much more boldly and with much more determination than
the jurists. It is difficult to determine at the present time where the line was
drawn for him; perhaps it varied with the time and the personality of the
praetor.
But the purely practical activity of the jurist does not explain everything.
A legal system that is the outcome of a purely practical legal activity leads
only to a series of legal propositions loosely strung together, like the
mediaeval German law and, in many respects, the modern English law. The
fact that the Roman law, as early as the days of the jurists of the later
Republic, seems to be a well ordered and perfect structure, containing a
great number of universal legal propositions, must be attributed to the fact
that the Roman jurists were not only practicing lawyers, but also writers and
teachers. Of course, had they been writers and teachers only, their word
would have had no greater weight than that which is given to it by their
reasoning; they must needs, like the English writers of text-books, have
been confining their activities to collecting the results of the judicial
decisions, occasionally embroidering them with a modest criticism, and
here and there timidly drawing an inference which no one as yet had dared
to draw. Before long, however, it became the customary practice to concede
the same importance to the literary utterances of the jurists that the
utterances indisputably had which they made in the exercise of their
practical calling. And so they dared to undertake, even in their capacity as
writers, not only to tell him who sought advice in their books what had been
customary in the past, but also, anticipating possibilities that had been
overlooked until that time, to make additional universalizations and to
create new norms for decision. Of still greater consequence is the fact that
they were teachers. It is a characteristic peculiar to the teacher to exhaust
the content of a legal proposition altogether,, to reveal everything that it
contains. A teacher, it is true, does not desire to create law, but he desires to
develop it. When a practicing lawyer is dealing with a breach of contract he
will confine himself to the points upon which the decision must hinge.
When a writer deals with it he will chiefly consider the contingencies that
might give rise to a legal controversy. But the teacher will be anxious to say
everything, that is: who has the right ; against whom it can be asserted ;
when and where the correlative duty must be fulfilled; what its content is
and what content it can possibly have; what are the consequences of delay,
and of non-fulfilment. The Roman law owes its great systematic
completeness and perfection of form to the teaching activity of the jurists.
If one would, to some extent, justly appreciate the work which juristic
science has done in Rome in this manner; if one would be convinced that
Roman law has become what it is through the labors of the jurists and not
because of any inexplicable innate juristic gift of the Romans, one should
compare the ius civile with any one of the departments of their law that
customarily was not influenced by their juristic science—among others, the
legal relations concerning the ager publicus, public law, and a large part of
administrative law, criminal law, which did not become the subject matter
of juristic activity until a late period, and then only in a limited measure and
only inasmuch as it was regulated by the leges iudiciorum. Here one finds
nothing of that which appears so admirable elsewhere in Roman law. As to
the ager publiais there were scarcely any universal principles; every single
usufructuary lease was a distinct legal relation, and the Roman magistrate,
like the German Schoeffe, had to derive his decision from the particular
form of the legal relation. In criminal law, a universal theory is sought for in
vain; on all questions of principle there is an embarrassed stammering;
norms for decision are found exclusively by means of interpretation of the
statutes. This surely is not inherent in the material, but is caused by the lack
of a great juristic tradition ; for iniuria is not treated in a less intelligent
manner than any other subject matter of private law. Whether the juristic
science of Roman public and administrative law ever amounted to more
than an orderly col- lection of statutes and ordinances and of the results of
the course of the judicial decisions cannot be determined from the tradition
with any degree of certainty.
Still the very history of juristic science in Rome discloses that essentially,
like juristic science everywhere, it was a preserving rather than a propelling
force. Hesitatingly, unwillingly, and dispiritedly, it yields to the imperative
exigencies of life, and never goes further than is absolutely necessary. And
even that which is absolutely necessary it prefers to do unobservedly,
disguising the new as something old, doing this by means of impossible
interpretations, fictions, and constructions. Innovations that are very useful
but somewhat daring are rejected even by the classical jurists. It is certain
that the jurists were bound by that which was existing valid law. Over and
above this, the limit of their power was a sense of that which might be
permissible rather than a clearly defined line. Had their power to find law
been quite unlimited, there would have been no need either of private law
legislation (leges de iure civili) or of a praetorian edict; juristic science
would have been able to satisfy every need of new law. The way in which
Roman juristic science in its endeavor (which moreover it has in common
with the juristic science of every other system of law) to make that which it
has at hand suffice, sought to go not one step beyond that which is
necessary — the economy of the law, as von Jhering has called it — has in
many ways served as a model for the juristic science of the Continental
common law.
XII Juristic Science in England

IN THE last analysis it is an extraordinary piece of good luck for the

sociology of law that from the early Middle Ages the English jurists (more
Roman than the Romanists, says Maitland) steadfastly closed their minds to
the Roman law. To this fact must be attributed the other fact that among the
nations of European civilization, in addition to the Roman or Continental
common law, another legal system, the Anglo-American, has attained a
high and altogether independent development. If it is the function of all
scientific study to demonstrate the unifying regularity of the phenomena,
sociology could never fulfil this task if no other legal system besides that of
the Roman law and that of its offspring, the Continental common law, had
attained to a more advanced stage of development. For the other legal
systems of the globe, which have remained uninfluenced by Roman law,
have continued in so undeveloped a condition that they cannot be adduced
for purposes of comparison except with earlier stages of our law. A
comparison of the whole course of development of Roman and English law
is outside of the scope of the present inquiry, which is limited to a study of
legal science in England with continual reference to that of Rome and of the
Continent. It is impossible to appraise legal science in England justly
without a fleeting glance at the development of English procedure.
The oldest English procedure does not differ from the original procedure
of the other Germanic peoples. We may assume therefore that it coincides
in its essential features with the prehistoric procedure of Roman law. This
view, which perhaps appears strange to many, is based on the fact that all
those things in Roman procedure in historical times that appear to be
striking peculiarities, the two stages, a preliminary proceeding followed by
the Beweisverfahren (the proceeding in which proof is made) and the
division effected by the litis contestation manifestly are survivals from, an
earlier stage of the development of procedure, and, unless indications are
deceiving, are found in essentials among all Germanic peoples. The formula
of the later Roman procedure is none other in form and content than the
conditional Beweisurteil ,1 which is followed among the Romans as well as
among the Germans by the Beweisverfahren.2 Since there is absolutely
reliable evidence that the two-fold division of the trial existed in the
procedure by legis actio also, inasmuch as the litis contes tatio in this form
of procedure effects a division just as it does in the formulary procedure,
there is no doubt that in the litis contes tatio of the legis actio procedure an
alternative Beweisurteil was rendered which, though perhaps it was not
drawn up in writing, was very similar to the formula both in form and in
content.
The actual development of English law and English procedure begins
with Henry II, in the twelfth century. This king was perhaps one of the
greatest juristic geniuses that ever sat on a throne, and although, as
Maitland puts it, he sold his labor, inasmuch as he demanded heavy
payments therefor from the parties, he has achieved better results than any
other vendor of justice ever has. First of all we wish to present, at this place,
a brief sketch of his legal reform. But we wish to preface this with the
statement that he converted his curia regis into a permanent court of justice,
over which he, a jurist in heart and soul, used to preside.
Perhaps the most important of his procedural innovations is the assisa
novae disseisinae, which seems to have been invented under the influence
of the canon law actio spolii, and which granted to everyone who had been
disseised the right to obtain a writ which directed the sheriff to form an
assisa consisting of twelve men of the neighborhood (duodecim liberos el
legales homines de visneto) who, as soon as the royal justices should arrive
in the vicinage, should make answer to the justice whether or not a disseisin
had taken place. This assisa novae disseisinae was followed at a later time
by other assizes, the basic features of which were: summons by royal writ
to appear before the justice and judgment based on a verdict of men of the
neighborhood. In addition the king had granted to everyone who desired to
assert a claim to land the privilege of taking the matter out of the local
communal court by means of a royal writ and of bringing it before the curia
regis. These innovations offered many advantages to the parties, especially
since the curia regis enjoyed a much greater measure of confidence than the
local courts, employed a procedure that was much more expeditious and
technically on a much higher plane than the clumsy ancient Germanic
procedure, and had substituted for traditional, highly imperfect means of
proof, such as trial by combat and oath with oath-helpers, the testi» mony of
the men of the neighborhood.
1 I.e. the judgment conditioned upon proof.
2 The proceeding in which proof is made.

We are dealing here with the first germs of the English jury. As Brunner
has shown — and the results of his investigations have been generally
accepted in England — this procedure originated in Normandy. Henry II,
who at the same time was the Duke of Normandy, most probably had
become familiar with it in his native country. But it was adapted to new
needs in a manner so magnificent that his innovation may be called one of
the greatest legislative acts of all time. The assize, it is true, is not yet the
English jury. The latter grew out of the assize at a much later time. In the
case of the assize the homines liberi et legales are called together by the
summons, but the jurata presupposes a submission to the verdict of the
neighborhood by mutual consent. The jurata arose later, when the parties,
in order to avoid the unwelcome methods of proof, the trial by combat, and
the oath with oath-helpers, agreed, without demanding an assize, to submit
their controversy to the verdict of the men of the neighborhood. But even
when there was an assize, the parties often agreed to ask men of the
neighborhood to render a verdict on matters not mentioned in the writ. The
mediaeval English jurists say: assisa ver ti tur in ìuratam.
Because of the technical superiority of the procedure of the king's courts,
because of the greater assurance of a just judgment, and because of their
impartiality, the ancient Germanic mode of trial gradually disappears
altogether, and is replaced by divers new modes of trial patterned after the
assisa novae disseisinae. The complainant applies to the king's chancellor,
and, upon payment of a fee, obtains a writ which summons his opponent to
appear in the king's court. Each kind of claim has an appropriate writ,
stating the claim and prescribing the procedure. Some of these writs are
writs of course, but for a claim not falling within one of these writs, a new
writ, more expensive and presupposing some influence with the king's
courts, must be drawn up. In the later actions the jury displaces the assize
altogether. The difference between the two is this : The jury is no longer
summoned by the writ but at the request of the parties, and the question as
to which the jury are to give their verdict is no longer stated in the writ but
is to appear from the proceeding.
Every Romanist who reads this description is at once reminded of the
Roman formulary procedure and of the praetorian album, on which all the
formulae that were in current use were recorded. From these the plaintiff
had to select the one that was appropriate, while if there was no appropriate
formula the plaintiff had to have one made especially for his purpose or
secure one from the praetor. In fact English legal historians very often
compare the procedure which prevailed in England down to the Judicature
Acts of the nineteenth century to the Roman formulary procedure. The
comparison however is based upon a very superficial study of the situation.
The common element is this, that the writ and the formula (the latter, at
least according to the prevailing view) were written documents, and that
each contained the plaintiff's claim. But the formula concludes the
proceeding before the court; the writs open it. The formula is a
Beweisurteil] the writ, a summons. Upon a closer investigation, one will not
compare the older English procedure with the formulary procedure but with
the Roman procedure by legis actio. The fact that the latter was begun by a
private summons, the in ius vocatio, the English proceeding, by an official
summons, may be considered an immaterial difference. But as in Rome, so
in England, both the plaintiff and the defendant were required to state their
proposals in definitely fixed terms, following the statements of the royal
writ and in accordance with the legal basis of the action. As in Rome, so in
England, the formal law and right was also the material law and right. Each
kind of claim had its appropriate procedure, and the law of procedure
determined the material legal bases of the claim. As in Rome, so in
England, the material law was chiefly the law of the several actions
(aciiones). Each action has its own precedents, and English jurists write
their text-books on the several actions. "To a considerable degree the
substantive law admin™ istered in a given form of action has grown up
independently of the law administered in other forms." (Maitland.) The
oldest English law, then, like the Roman law, was a law of actions. In
comparison with this great number of analogies, I presume, the differences
become insignificant, but we shall not pass over them altogether in silence.
The English judge directs the whole proceeding in the presence of the jury;
in the more developed procedure he no longer pronounces a conditional
judgment like the Roman judge, but permits the parties to formulate the
question of fact — frame the issue — upon the determination of which they
are willing to let the outcome depend, submits this question to the jury, and
pronounces his final judgment according to the verdict of the jury. The jury
has nothing to do with the question of law. The latter is a matter for the
judge.
The English system of legis aciiones was not replaced by a system
essentially similar to that of the Roman formulary procedure until the
Judicature Acts were passed, which abolished the old formulae, and
permitted the parties to submit their written pro™ posais to the court in a
manner that seemed good to themselves. This proceeding, too, is divided
into two parts just like that of the Roman formulary procedure (in chambers
and in court), with this difference: The proceeding before the judge, i.e. the
proceeding in iure, follows the preliminary procedure; furthermore the
proceeding before the judge includes the proof.
The personal interest which the judges had in the law-suits that came
before them, because of the large fees they received, constitutes an
extraordinarily important element in the development of English procedure.
It explains their persistent endeavor to enlarge their jurisdiction and to adapt
the forms of action most practically to the needs of the parties in order that
their activity might increase. Strangely enough they have shown no interest
in a more expeditious and more simple procedure. Perhaps they feared that
they might reduce their perquisites.
In order to justify these extensions of jurisdiction, the English jurists
resorted to the use of fictions. There were three king's courts of major
importance, all of them sitting in London : Common Pleas, King's Bench,
and Exchequer. The true civil court was the court of Common Pleas. The
jurisdiction of the court of King's Bench, which would ordinarily be of rare
occurrence in an action between private persons, was based on a fiction that
the defendant was in custodia Mareschalli, held in confinement for the
king, and therefore subject to the jurisdiction of the court of the King's
Bench. The court of Exchequer, which in fact was a fiscal board, based its
jurisdiction upon the fiction that the plaintiff was in arrears in the payment
of his taxes to the king, and was unable to pay them because he could not
collect his money from the defendant.
 The functioning of the court is conditioned upon the plaintiff's securing a
proper writ for the cause of action. If he does not secure the proper writ, he
loses the law-suit. In the early Middle Ages, it is true, writs were readily
issued for any claim that appeared justified, and so Bracton could write: Tot
erunt formulae hrevium quoi sunt genera actionum. But in the course of
time this matter becomes more difficult. Only writs of course (de cur su) are
being issued without more ado. The barons, assembled at Oxford (1258),
pass a resolution : K e il ne ens elera nul bref fors bref de curs sanz le
commendement le rei e de sun conseil ke serra present (ut praetor es ex
edictis suis per p etuis ius dicerent). But the statute of Westminster (1258)
permitted the clerici de cancellaria,1 when they were unanimous, to issue a
writ ne contingat de celerò quod curia diu deficiat querentibus in i'ustitia
perquirenda. If the clerici cannot agree, let them report to Parliament.
Nevertheless since the beginning of the fourteenth century it becomes
increasingly difficult to obtain a new writ, especially since the judges
became jealous of the chancellor and began to quash new writs. Bracton’s
proposition was converted into its converse; Tot erunt actiones quoi sunt
formulae brevium.
1 Clerks of the chancery.

Only one writ constitutes an exception: the writ of trespass. Originally a

criminal action for breach of the King's Peace vi et armis^ trespass became
a civil action about the sixteenth century,1 and all the actions that were in
use in the eighteenth and nineteenth centuries were derived from it. Its three
oldest forms are: assault and battery (bodily injury), de bonis asportatis
(depriving one of the possession of chattels), and quare clausum fregit
(interference with one's possession or depriving one of possession of
immovables).
Trespass became very popular, and exhibits a series of new forms, which
during the course of the seventeenth and eighteenth centuries practically
superseded all the older forms of action. As early as the beginning of the
sixteenth century, it came into close contact with ejectment, which
thereafter took the place of the real action for immovables. On the basis of
the provision of the Statute of the second Parliament of Westminster in
consimili casu, case branched off from trespass. From case, the chief
difference between which and trespass is that the plaintiff did not have to
allege vi et armi s, several important actions developed in turn. Chief of
these is assumpsit, which branched off at the beginning of the sixteenth
century. The defendant has undertaken by contract to deal with the
plaintiff's goods in a certain way, e.g. to perform some labor in relation to
them, and in doing so has caused damage to the plaintiff. This action of
assumpsit subsequently becomes an action on the promise, a contractual
action which takes the place of the old action of debt. In Slade's case (1602)
it was held that "Every contract executory imports in itself an assumpsit, for
when one agrees to pay money or to deliver anything, thereby he assumes
or promises to pay or deliver it." This is indebitatus assumpsit, which later
became in part an action for unjust enrichment, "in which the element of
contract is purely fictitious." About the middle of the sixteenth century
trover begins to germinate within the sphere of trespass on the case» The
accused has found a chattel which the plaintiff had lost, and though demand
has been made, refuses to return it; he has converted it to his own use
(conversion). Subsequently trover lies against a third person; loss and
finding is feigned; the only essential thing is the detention and the
conversion to the defendant's own use. Trover becomes a general action in
rem 1 for movables and, at the same time, a very convenient action for
unjust enrichment (conversion of another's goods to one's own use).
According as these actions are used to demand either the thing itself or
compensation, or both, they are real2 actions, per» sonai actions, or mixed.
Ejectment is a real action; assumpsit and trover are personal actions, for in
the case of movables and of contractual relations the plaintiff in an action at
law can recover only damages (it is otherwise in equity). For this reason the
English call movables and obligations personal property.
1 But see Maitland, Equity and the Forms of Action, pp. 348 fol.

Trespass owes its enormous success to various causes. In the first place it
was a proceeding that was more vigorous and more expeditious than the
older forms. Its origin as a penal action for breach of the King's Peace
accounts for the practice of beginning the action with provisional arrest of
the defendant. The matter of proof, too, was regulated much better. In the
case of the old actions in rem (writ of right, detinue) and of contractual
actions (debt), oath with oath-helpers (wager of law) was still available. In
the assizes the sworn triers had to be called at the time the original writ was
issued, and were permitted to make answer only to the question that was put
in the writ itself. In trespass there was a jury; it was summoned during the
course of the proceeding, and was required to answer the questions that
arose from the pleadings of the parties. The influence of the attorneys was
of importance also. Trespass was reserved to the King's Bench. In the court
of Common Pleas a certain class of attorneys, the sergeants-at-law, who
were appointed by royal writ, were enjoying a monopoly. All other
attorneys therefore had an interest in getting suits into the court of King's
Bench? in which they themselves could appear as attorneys, and therefore
also in increasing the number of causes over which this court had
jurisdiction.
1 Dingliche Klage.
2 Ehrlich uses the English words here. For a full discussion of the
classification see Maitland, Lectures on the Forms of Action, in
Equity and the Forms of Action, chaps. I, V, and VII. See especially
page 356 fol.

The extension of the various actions to new situations was brought about
in part by the judges holding that a certain action lay in a given case.
Thereafter there was no more difficulty. In this way Slade's case made
assumpsit a general contractual action. Still more important is the system of
fictions. The most famous is the fiction in the action of ejectment, the actio
in rem 1 for the determination of ownership in later English law. Ejectment
originally was an action of trespass by the lessee against any third party
who deprived him of possession. At the beginning the owner, John Rogers,
availed himself of this action in the following manner: Basing his claim on
title, which he asserted to be in himself, he made actual entry, and then
made a lease to Richard Smith, who was thereafter ejected by William
Stiles and brought suit against the latter. William Stiles, the casual ejector,
thereafter gave notice of the suit to the present tenant, George Saunders.
In the suit against the present tenant the lessee at first had to prove the
following: 1. That the demandant was entitled to lease the land to him, i.e.
that the demandant was the owner; 2. That the latter had actually leased it to
him; 3. That he, the lessee, had actually taken possession of the land; 4.
That he had been ejected by the casual ejector. This procedure however was
simplified considerably by means of a number of fictions which were
invented by Chief Justice Rolle during the Commonwealth. The lease, the
entry, and the ejection by William Stiles now are purely fictitious. The
latter, the fictitious casual ejector, simply gives notice of the pendency of
the action to the tenant, George Saunders. If the tenant George Saunders
remains silent, the land is awarded to the lessee (in behalf of the actual
plaintiff) ; for the casual ejector has no intention to defend his right. If the
tenant chooses to defend, he is permitted to do so only upon condition that
he admit the lease of the land by John Rogers to Richard Smith, the entry
by the latter and his ejection by Stiles. Thereafter the suit is confined to the
question of the right of
1 Dingliche Klage.

John Rogers to lease the land to Richard Smith, in other words, to the
question whether John Rogers has title.
The question obtrudes itself why this roundabout way was selected for
the purpose of giving to the owner the remedy of the lessee instead of
creating a direct remedy for him. Maitland thinks it was impossible to do
this inasmuch as the owner had the real action, the writ of right, and the
possessory action (the assizes); that it was impossible to leap over this
obstruction. And since trespass with its fictions, after all, served the purpose
best, there was no need of a change. Since there was no disadvantage
involved, the law contented itself with discussing the legal relation between
the actual plaintiff and the actual defendant in a suit in which the formal
issue was an interference with the possession of a fictitious lessee by a
fictitious ejector who gave notice to the defendant. By a series of Judicature
Acts in the nineteenth century this system of legis actiones was abolished
and replaced by a free formulary procedure, which will be discussed later.
In the twelfth and thirteenth centuries the English law as it was applied in
the royal courts was extraordinarily fluid and flexible. But in the fourteenth
and fifteenth centuries it became rigid and formal, chiefly because of the
great difficulty experienced in obtaining new writs. This state of affairs
prompted the chancellor to take a considerable part of the development of
the law into his own hands. From ancient times the parties had been
accustomed to apply to the king for relief from a wrong they had suffered.
This is a part of the ancient jurisdiction of the king, upon which, in the last
analysis, the whole jurisdiction of the king's courts, which are gradually
replacing the older courts, is based. Especially after the chancellor refuses
to issue new writs as a matter of course, the number of such appeals to the
king is increasing at an extraordinarily rapid rate. These appeals are
petitions praying for relief either in a case where relief cannot be had at the
hands of the courts because of the lack of a suitable writ or in a case where
relief is sought from an unjust judgment rendered by the courts. The king
refers the parties to the chancellor, who investigates the matter, and, if he
has satisfied him- self that an injustice has been done to one of the parties,
interferes, and sees to it that the latter obtains justice. This procedure is in a
general way modeled upon the procedure of the ecclesiastical courts. It is a
very natural thing for the chancellor to take his procedure from the
ecclesiastical courts; for, as a rule, he is a cleric. It is self-evident that this
does not make an end of the activity of the courts or render it superfluous.
The chancellor is not permitted to interfere directly with the administration
of justice. But, in his capacity as a royal official, he has at his disposal
remedies by means of which he exercises his power, which in turn he
derives from the fullness of the king's power« In virtue of this delegated
royal power he has the power, in the first place, to enjoin the parties in a
given case both from appealing to the courts and from availing themselves
of a judgment already obtained in a court; and finally he has the power to
enforce his decree through his own officials.
Accordingly, the chancellor actually has the power, on petition by one of
the parties, to withdraw any litigation, whether it has already been
adjudicated or not, from the jurisdiction of the courts and to take it into his
own hands. The commands and prohibitions directed to the parties are
called injunctions. They can be enforced by the chancellor by means either
of imprisonment or of fines. They are being issued sub poena. They can of
course refer not only to a matter submitted to the courts by one of the
parties to a controversy but also to the greatest possible variety of other
matters.
The courts did not submit to these interferences by the chancellor without
some show of resistance, especially since, although only in rare cases, the
injunctions applied even to the courts as such. Resistance to the chancellor
began in the reign of Edward IV, and, in the reign of James I, led to a
conflict between Justice Coke and the chancellor, Lord Ellesmere. The
chancellor contended that his decrees were not addressed to the courts but
to the parties; that "Injunctions did not interfere with the common law. The
judgment stood. All that the chancellor was concerned with, was the
conduct of the parties to the case in which the judgment had been given.”
On this basis James I, following an opinion of Bacon, at that time attorney-
general, decided the quarrel in favor of the chancellor. Thanks to the
recognition of the validity of the injunctions, the chancellor definitively
prevailed. During the seventeenth and eighteenth centuries the courts made
repeated attempts to put the matter to the test again, but without success.
Thereby the chancellor, entrusted with a jurisdiction of his own, was
enabled to create a legal system which, in many respects, is a perfect
analogy to the praetorian law of Rome.
It would of course be a very superficial procedure, if, relying upon a few
similarities in external matters, one should permit oneself to be misled into
placing the chancellor and the praetor side by side. Not external details, but
the whole inner structure of the legal systems created by them, justifies one
in seeing the same historical phenomenon in the two officials. This view, it
is true, does not appear to any appreciable extent in English books, for the
English take little interest in a conceptual understanding of their law. But a
reading of the presentation of the matter by Professor Langdell, an
American scholar, resolves all doubts. From LangdelFs book, entitled
"Survey of Equity Jurisdiction" (Cambridge in the United States 1905), I
quote the following:
"As legal rights have in them no element of equity, so equitable rights
have in them no element of law. ... As law is a creature of the State, so
equity was originally a creature of the supreme executive of the State, i.e.
the king. What then was the power of the king which enabled him to create
equity? It may be answered that he had in him the sole judicial authority as
well as the sole executive power, but none of the legislative power, i.e. he
could not alone exercise any portion of the latter. By virtue of his judicial
power he had entire control over procedure, so long as the legislature did
not interfere; and this it was that enabled him to create equity. As he had no
legislative power, he could not impart to his decisions in equity any legal
effect or operation, but when he had by the exercise of his judicial authority
rendered a decision in equity in favor of a plaintiff, he could enforce it by
exerting his executive power against the person of the defendant, i.e. he
could compel him to do or to refrain from doing what- ever he had by his
decision directed him to do or to refrain from doing. ..."
 A Romanist need not be told that only a slight change in the wording of
this statement will make it equally applicable to the praetor.
Moreover the inner similarity between the praetorian law and equity
appears also in a series of details, first of all in the fact that the latter is
directly connected with the ius civile, the common law. It is not an
independent system, but can be understood only as an appendix to the
common law. Without equity the latter would indeed be a hard, rigid system
of law, ill adapted to the requirements of life, but after all it would be a
system of law. Equity without the common law simply could not exist. Just
as the work of the praetor constituted an appendix to the ius civile in
content as well as in form, just as he created praetorian institutions on the
model of those of the civil law, created remedies by means of actiones
fictitiae and utiles, which were analogous to those of the civil law, and
created a praetorian law of inheritance to follow and supplement the civil
law of inheritance, so the chancellor imitates the common law. A principle
of equity is: aequitas sequitur legem. For almost every common law rule
which is not simply a procedural rule there is a corresponding rule of
equity. And the praetor's success in creating legal institutions quite
independently, e.g. the praetorian property law or the praetorian law of
inheritance, is paralleled, and perhaps surpassed, by the success of English
equity in the same sphere of endeavor.
Nevertheless the basic differences between the praetorian law and equity
must not be overlooked. The Roman iudex was subordinate to the praetor,
who could therefore issue directions which the former had to obey. The
English judge is quite independent of the chancellor. All the latter can do is
to enjoin the parties not to appeal to the courts or not to avail themselves of
a judgment rendered by the law court. He can summon the parties to appear
before him, and can issue a decree which he can enforce by means of his
own. In consequence, equity is much more independent of the common law
than is the praetorian law of the ius civile, Equity is not, like the praetorian
law, a component part of the whole legal system, but is a separate legal
system side by side with the other. And in the course of time equity
becomes just as fixed and inflexible as the common law. The chancellor no
longer creates new legal remedies, but develops those that are already in
existence, just as the judges develop the institutions of the common law.
The chancellor enunciates no new legal principles, but develops his
precedents in precisely the same manner as the judges develop theirs.
Equity has become the legal system according to which the chancellor
proceeds, just as law is the legal system according to which the courts
render their decisions. There are differences in procedure; chiefly this, that
there is no jury in the court of chancery. There is a difference too in the
legal consequences (Rechtsfolgen). But in the last analysis the chancellor is
a judge just like the others. Whether equity or the common law shall apply
ultimately depends upon whether the parties appeal to the chancellor or to
the courts, and whether the chancellor or the courts to which the party
applies is the tribunal competent to render judgment in the matter. If a
person asks for an intervention of a nature for which equity has made no
provision, the chancellor refers him to the courts.
Since the Judicature Acts, equity has become a division of the Supreme
Court of Judicature. It is a court in name also. In case of a conflict between
equity and law, the principles of equity pre« vail. Certain legal remedies, it
is true, can be applied only in chancery; others, in the other divisions of the
Supreme Court. But once the jurisdiction of the division has been
determined, chancery as well as the courts, wherever the case may be
pending, can apply either law or equity. Only the procedure still varies.
Although every English barrister may practice both in chancery and in the
courts, it is customary for those barristers that have their offices in Lincoln's
Inn to practice in chancery. Equity comprises, in the main, the law of trusts,
a considerable portion of the law of pledge, a few legal remedies of the law
of inheritance, specific performance (the right in case of contractual
obligation to demand performance of the promise, not merely damages),
finally the injunctions, i.e. the preliminary prohibitions directed to one party
where the party applying for the injunction antici- pates irreparable damage.
Equity therefore covers only a small number of legal institutions and
remedies. But among them is one which in itself constitutes a distinct legal
system — the trust. Trusts can be traced back to the fourteenth century. The
original term was use (from ad opus). The trust is a transaction, which was
well known on the Continent in the Middle Ages, and which was named the
Treuhändergeschäft (fiduciary transaction). The fiduciary is called the
trustee ; the person for whose benefit the transaction is entered into, the
cestui que trust. In Germany and France, as well as in England, in the later
Middle Ages, the fiduciary transaction was a substitute for the last will and
testament. Whenever anyone wished to leave a thing to the church or to
someone else, he delivered it to the trustee with directions how to deal with
it. The chancellor assumed jurisdiction over this matter and compelled the
trustee by the application of the means of power (Machtmittel) at his
disposal, just as the Roman emperor compelled the fiduciary, to perform the
last will of the deceased. Before long transactions of this kind were entered
into inter vivos, and a thing that had been delivered to the trustee was
treated as belonging in equity to the beneficiary from the moment of
delivery. The great extent of these transactions was brought about chiefly
by the feudal system with its numerous limitations on freedom of action and
the ever present danger of escheat to the feudal lord, which made
circumventions of this sort necessary. The great feudal lords were vitally
interested in the use. It is true the vassal was thereby enabled to prevent
many an estate from escheating to the lords, to the great detriment of the
latter, by enfeoffing a feoffee to uses who was to hold for the vassal
himself; for a person who enfeoffed a feoffee could impose a condition that
the trustee should hold for the feoffor. But the great feudal lords themselves
were feudatories, the greatest among them holding directly from the king,
and they in turn derived advantages from the trust over against their own
feudal lord, the king. Their influence for a long time was sufficiently great
to cause the chancellor to extend vigorous protection to trusts. But Henry
VIII, who had everything to lose and nothing to gain by the use, wrung
from an unwilling Parliament a law according to which every use gave to
the beneficiary a legal estate, i.e. the corresponding common law right. The
statute had scarcely been enacted, when it was interpreted away by an
interpretation which limited its application in a manner that took away all
its practical significance. It has not hindered the development of the trust.
The law of trusts is not an isolated trust relation but a whole legal system.
It comprises first of all the law of corporations. A considerable portion of
the ecclesiastical law of the numerous English religious denominations and
of the Catholic church, the whole English law of societies, is based upon
this proposition : The trustees hold the property in trust for the believers, for
the members of the societies. A special law of things has arisen within the
law of trusts. As soon as the subject matter has been transferred to the
trustee, the beneficiary at once acquires all rights of use, consumption, and
disposition which were intended for him and which he can transfer except
in so far as he is limited by the trust. The trustee indeed retains the legal
title, but solely as a nudum ius. Only a purchaser who has bought the legal
estate bona fide for value and without notice can deprive the beneficiary of
his interest. Since the courts, at least where land is involved, treat the least
negligence in the investigation of title as constructive notice, this case could
arise only where the documents had been forged very skillfully. The law of
the assignment of obligatory rights, as a whole, is a part of the law of
trusts.1 Not until a most recent date was it regulated, in part, by statute.
The English law of family property also developed within the law of
trusts. The family settlements provided that the family property was to be
held by the trustee for the benefit of the wife, the children born or not yet
born. In this way the wife, at a time when the matrimonial community of
goods prevailed at common law, was placed in a position of complete
independence of her husband in the matter of property law and right,
because that which had been given to her in equity was not touched by the
community of goods. At the present time this equitable right has been
established by statute as the general matrimonial regime. In part, the
English law of the declaration of the will by last will and testament is also
based on the law of trusts. Historically speaking it was here that the law of
trusts had its beginning.
1This sentence is probably based on a statement in an early edition
of Stephen's Commentaries on the Laws of England.

Of no less importance was the influence of the chancellor on the English

law of pledge. The pledge law of the common law, the mortgage,
corresponds to the oldest form of the Roman fiducia. The pledgee obtains
full legal ownership of the thing pledged as soon as the debt is due and
unpaid. But the chancellor compels him to return the thing pledged to the
debtor in case the debt is paid at a later time, and thus enables the pledgor
who, indeed, has already aliened the property, to create additional pledge
rights in the thing, which of course could only be equitable rights.
Here the Romanist self-evidently is reminded of the two-fold ownership
in Roman law. Indeed even the external similarity is extremely striking. Just
as the praetor had developed the transfer of possession into a real contract,
so the chancellor utilized a contract for the benefit of a third party — and
that is what the trust is in the last analysis — in the same way. And even
though Maitland in his work on equity most emphatically denies that the
trust is a right in rent, this applies only to the juristic construction of the
whole legal relation. The extent to which the whole inner structure of the
equitable right and the praetorian rights corre™ spond is pointed out by
LangdelPs presentation :
"As equity wields only physical power, it seems to be impossible that it
should actually create anything. It seems moreover to be impossible that
there should be any other actual rights than those that are created by the
State, i.e. legal rights. So, too, if equity could create actual rights, the
existence of rights so created would have to be recognised by every court of
justice within the State; and yet no other court than a court of equity will
admit the existence of any rights created by equity. It seems therefore that
equitable rights exist only in contemplation of equity, i.e. that they are a
fiction invented by equity for the promotion of justice. Still as in
contemplation of equity such rights do exist, equity must reason upon them
and deal with them as if they had an actual existence."
And at another place Langdell, again speaking of the chancellor, says:
" Through his physical power he could imprison men^s bodies and
control the possession of their property, but neither his orders and decrees
nor any acts as such done in pursuance of them had any legal effect or
operation; and hence he could not affect the title of property except through
the acts of its owners. Even when he made a decree for changing the
possession of property, it took the shape of a command to the defendant in
possession to convey to the plaintiff, and it was only as a last resort that the
chancellor issued a writ to his executive officer, commanding him to
dispossess the defendant and put the plaintiff in possession."
This presentation shows that the norms for decision in English as well as
in Roman law are preponderantly juristic law. The statutes, it is true, seem
to be of greater significance than in Rome ; but this may be attributed to the
fact that we have altogether too low an opinion of the productivity of the
Roman legislative machine in the days of the Republic. The original body
of English norms for decision however does not derive its origin from
statutes. We may consider the assizes of Henry II as a part of the law
created by the state, although they do contain much that is juristic law; but
the later formulae, to which, as all English jurists admit, a considerable part
of the English substantive law, the material law, owes its existence,
doubtless belong to the category of juristic law. We know the authors of a
few of these formulae. The writ quare ejecit infra terminum was an
invention of Bratton's teacher William Raleigh; Lord Chief Justice Rolle
refined and improved the writ of ejectment. The situation is not altered by
the existence of the fictions, which are in no wise different from the fictions
of the praetor and of the juristic science of the Continental common law. On
the whole it is admittedly an error, based on the mistaken idea that all
creation of law is within the sphere and province of the legislator, to believe
that fictions must not be originated by jurists. It is true, the Roman jurists
did not employ them, but the older juristic science of the Continental
common law and of the French law made extensive use of them. It would
be a difficult matter to state wherein the con- structions of the Roman and
of the Continental common law differ from fictions — as a rule only in the
mode of expression.
Now where did the English judges get the norms according to which they
decided the law-suits that were brought before them? How did the English
common law develop from them in the course of the centuries?
Undoubtedly it developed in the same way as the Roman ius civile. The
basis of the decisions here also is the inner nature of the legal relation,
agreement, articles of association, last will, custom, commercial usage,
which, universalized, yield a unitary norm for decision in other situations.
Since the history of the older English law is better known than the history
of Roman and of German law we are in a better position to trace the process
of reduction to unity and of universalization. We see how the courts evolve
the law of things by universalizing feudal law; how the husband's sole
ownership of the property which the wife brought into the marriage relation
is gradually being adopted by the courts; how they gradually substitute the
right of the first-born to inherit for the right of all children to take equally,
which had been the law until that time. Everywhere the endeavor appears to
be to make the law unitary by extending the legal principles that prevail
among the upper classes to the whole people. In a similar way the law of
commerce is created as late as the eighteenth century by a process of
universalization and reduction to unity. Furthermore, from the very
beginning the English judge thought himself empowered to find norms for
decision according to justice and fairness.
It is self-evident that the development of equity in a still greater measure
takes place in the light of history. Sir George Jessel, Master of the Rolls,
one of the greatest of equity judges, says on this point:
"It must not be forgotten that the rules of equity are not, like the rules of
the common law, supposed to have been established from time immemorial.
It is perfectly well known that they have been established from time to time,
altered, improved, and refined from time to time. In many cases we know
the name of the Chancellor who invented them. Take such things as these:
the separate use of the married woman, the restraint on alienation, the
modern rule against perpetuities, and the rules of equitable waste. We can
name the Chancellors who first invented them, and state the date when they
were first introduced into equity jurisprudence, and therefore in cases of
this kind the older precedents are of little value. The doctrines are
progressive, refined and improved, and if we want to know what the rules
of equity are, we must look, of course, rather to the more modern than the
more ancient cases." (Quoted by Holdsworth, History of English Law, from
an opinion.)
Equity has been created in the same way in which all other juristic law
has been created. The law of trusts and family settlements and of the
equitable mortgage is based chiefly upon universalization of the traditional
content of agreements. The remainder of the law of equity, as Sir George
Jessel has put it, consists essentially of norms for decision, freely found by
the chancellors, in finding which they consider themselves far less bound
by previous decisions than do the common law judges.
The thing that may seem most striking to the Continental jurist in English
judge-made law is the importance attached to the personality of the
individual judge. A lawyer citing a case refers to the judge by name. If the
decision is rendered by the whole bench, each judge states the reason for his
decision separately, and thereafter these norms are cited under his name. It
is true, each one of the high courts as such has weight and influence, but
what that weight and influence is depends not upon the court but upon the
judge. There are judges who were epoch-making in the history of English
law and whose names are spoken of with reverence centuries after their
death; the rank and file have long since passed into the great silence. Each
one of the great judges has a pronounced personality, which is described in
the history of law very much in the manner in which that of the great poets
and artists is described in the history of literature and of art. The following
are mentioned as the most famous: Coke, Hard wick, Mansfield, Stowall,
Grant, Willes, Jessel, Cairns, Bowen, Parke; and among American judges
perhaps: Marshal, Kent, Story, Shaw, O. W. Holmes, Jr. In a book of
Maitland's, I find the following significant words: "I have mentioned this
case, because we may say that when the court of Appeal overruled Jessel,
M. R., the case was very near the border line."
Juristic science in England also comprises the business of drawing up
documents, and in this respect, too, it has become a perfect art, chiefly in
the matter of documents concerning land and marriage contracts (family
settlements). Its basis is the established custom of the attorneys, which
however closely follows legislation and decided cases. The judicial
decisions that deal with documents are being carefully recorded and taken
into account. Frequently the judges say that they cannot depart from the
decided cases although they consider them wrongly decided, on the ground
that the conveyancers may possibly have been following them in the
preparation of legal documents.
The nature of English juristic law was stated by Sir James Parke, later
Lord Wensleydale, in a case that was argued before the House of Lords in
the following words :
"Our common law system consists in applying to new combinations of
circumstances those rules of law which we derive from legal principles and
judicial precedents; and for the sake of attaining uniformity, consistency
and certainty ? we must apply those rules, where they are not plainly
unreasonable and inconvenient, to all cases which arise; and we are not at
liberty to reject them, and to abandon all analogy to them, in those to which
they have not yet been judicially applied, because we think that the rules are
not as convenient and reasonable as we ourselves could have devised."
On this occasion I may be permitted to correct an erroneous opinion that
is very widespread on the Continent, i.e. the opinion that the free finding of
law in England in some way is in a causal connection with the fact that the
law of England has not been codified. For the free finding of law is a valid
method even when applied to statutes. Here too the judge, by a free finding
of law, determines the meaning where there is an ambiguity, and supplies
the omitted words where there is a gap; and these decisions are as binding
upon the court for the future as those that deal with the common law. Only
where the meaning is plain, the court is not bound by previous decisions.
On the other hand, where an erroneous interpretation is very old the courts
may not lightly disregard it (Hardcastle, The Construction and Effect of
Statute Law, Third Edition, p. 93 et seq.). Consequently the glorious
freedom of action which the English judge enjoys would be preserved even
if the English law were codified« In an article in the Law Quarterly Review
(Vol. 19, p. 15) on the Codification of Mercantile Law, Chalmers quotes the
following words from a report of the Royal Commissioners on the Criminal
Code Bill, which had been prepared by the judges Lord Blackburn, Lord
Justice Lush, Sir James Stephen, and Mr. Justice Barry:
"The great richness of the law of England in principles and rules
embodied in judicial decisions, no doubt, involves the consequence that a
code adequately representing it must be elaborate and detailed, but such a
code would not, except in a few cases in which the law at present is
obscure, limit any discretion now possessed by the judges. It would simply
change the form of the rules by which they are bound."
English and British juristic literature, on the other hand, has created law
only in a very limited measure. Holds wort h in his History of English Law
mentions only five juristic writers who have become figures of outstanding
importance in the history of English law. They are: Gian vili, Bracton,
Littleton, Coke, and Blackstone. But it is impossible to show that the
Tractatus de legibus, which is usually attributed to Gian vili, the chief
justiciar of Henry II (died about 1190), and the work of Henry de Bratton
(usually called Bracton) exerted any influence upon the development of
English law. Blackstone's book is a presentation of the existing law, not a
work of practical juristic science in the sense of a literary development of
law, and but few of his doctrines have gained general recognition. Only
Littleton (?-i48i) and Coke (1552-1628) remain. Pollock mentions Sir
Michael Forster's Treatise on Crown Law, the first edition of which was
published in 1762, as "the latest book to which authority in the exact sense
can be ascribed."
Moreover the juristic writers of England make no attempt to find norms
independently in the manner of the Continental writers. They content
themselves with collecting the decisions. Furthermore there is an utter
absence of commentaries on the statutes in the Continental sense, for a
statute can be interpreted only by judicial decisions. "English text-books are
almost entirely a collection of cases with comments interspersed.
Sometimes a general rule is stated which may go a trifle further than the
cases do; sometimes an opinion is thrown out on a point not covered by
authority. Still the cases are the gist of the book," says Bryce. It is only in
recent times that books that contain independent inquiries and attempt
deeper study, like the works of Sir Frederic Pollock or of the American
writers Langdell and O. W. Holmes, Jr., are beginning to appear.
The English common law is the law not only of England, Ireland, and
Wales, but to a great extent of Scotland, also of the United States, of almost
all the English colonies except perhaps where aborigines are concerned, and
even in dealings with them it is usually applied as subsidiary law. The
Indian codifications as a rule preserve the common law unchanged. One
may well say that it is valid law in states and nations that are counted
among the wealthiest and most advanced of the whole world. And since it
does not presuppose particular laws which it must supplement, its influence
is much more direct and effective than that of the Continental common law.
Moreover it comprises not only private law, but also criminal law,
mercantile law, and — purely historically— procedural law. It is true, it has
never attained the finish, the perfection, and the fine elaboration in detail
which is characteristic of the Continental common law, but it surpasses the
latter by far in wealth of legal propositions, in variety of legal institutions.
The juristic science of a legal system such as this must not be ignored in the
development of legal science. It can be traced back in its beginnings to the
time of Henry II, i.e. to the middle of the twelfth century. One of its first
achievements, the assize of novel disseisin, dates from the year 1166. In
point of venerable age indeed it is surpassed by the Continental common
law juristic science, but this is counterbalanced to a great degree not only
by the enormous extent of the territory in which it is valid and in
consequence by the great diversity of situations with which the English
jurists are called upon to deal, but also by the early and great development
of commerce and industry as well as of the social and political relations of
the peoples concerned. All of this has provided an invaluable amount of
stimulation.
Since the movement toward free finding of law has directed the attention
of Continental jurists to English juristic science and the English method of
finding law, the statement is often made on the Continent that the English
are satisfied neither with the results of their juristic science nor with their
method of finding the law. May I therefore in conclusion be permitted to
quote the words of two eminent English jurists, who moreover are
considered experts in Continental affairs. Both of them, it is true, are not
speaking directly of the free finding of law but of case law, the legal system
based upon it; but inasmuch as this presupposes free finding of law, their
opinion must be referable to both. One of these is the aged author of the
American Commonwealth, James Bryce, who in his youth sat at the feet of
Vangerow in Heidelberg and dedicated his first work to the Holy Roman
Empire of the German Nation. What he says about case law sounds almost
like a kymnus, which he prefaces with the following words : "It is an
abiding honor to our lawyers and judges, to have worked it out with a
completeness and success unknown to any other country." (Studies in
History and Jurisprudence, Vol. II, p. 289 et seq.)
Let him who would be informed as to what so distinguished an English
jurist thinks of the grandeur of the English legal system, as compared with
the Continental system, read the three pages following the words quoted
from the work cited above. They seem so much more persuasive since
Bryce, as is well known, is an unbiassed observer of foreign institutions and
is by no means blind to the disadvantages of the English method.
Perhaps the following remark of Pollock's, quoted from the book already
referred to, will be found more persuasive than all of this. Says Pollock :
"Where the two systems have come into competition as they have done in
the Province of Quebec, the Cape Colony, and other British possessions
originally settled under
Continental systems of law, the method ascribing exclusive authority to
judicial decisions has invariably, so far as I know, been accepted." In other
words, wherever the English case law system, which is founded upon the
free finding of law, comes into contact with the Continental methods of
applying law, the latter are inevitably thrust aside. Anyone who knows the
conservative turn of mind of the jurist can judge from this how obvious the
superiority of the English method of finding law must be. In this connection
one must not fail to note that both in Canada and in South Africa many a
feature of the English organization of the administration of justice which is
usually pointed out is absent, e.g. the extraordinary centralization of the
courts and the high position of the judge, although even as it is, the position
of the judge in these countries might be higher than it is in central Europe.
In conclusion I would quote the words of Holmes, an American jurist»
He says of the common law that it is " a far more developed, more rational
and mightier body of law than the Roman."
The complaints that are being heard in England about case law refer
exclusively to its terrible lack of systematic arrangement. In fact, scattered
throughout thousands of volumes, it is like a tropical primeval forest, where
the wanderer who has lost his way is threatened with new surprises and
dangers at every tree that he sees. But this fault does not lie at the door of
the free finding of law, but at that of the absolute binding force of all
judicial decisions, which continues at least until such time as they are
reversed by a higher tribunal. But even though the free finding of law gives
rise to the idea that the law that has been found should not readily be given
up, the evils that have arisen from it in England as consequences of the
historical development do not, by any means, have to be taken into the
bargain. They can easily be avoided.
Juristic science in England differs from juristic science in Rome chiefly
in this, that it is not preponderantly literary as was the latter, at least in the
days of the Empire, but almost exclusively judicial. In spite of this, as our
inquiries have shown, the two systems have developed on parallel lines
throughout. Procedure passes through the same stages as in ancient Rome,
the judges create the common law by employing the same methods of uni-
versalization and of finding norms that the prudentes employed in creating
the ius civile, and the English magisterial law presents the same essential
characteristics as the Roman, not in a few externals merely, but in its whole
inner structure. Is there need of further proof to show that we are face to
face with a natural unifying regularity of events?
XIII The Juristic Science of the
Older Continental Common Law

THE reception of Roman law in the Middle Ages and in modern times may
properly be considered here, for it undoubtedly created a new and unique
phase of juristic science. It is clear in the first place that the kind of juristic
activity which occupies the foreground in every indigenous legal
development, i.e. the creation of norms for decision through
universalization and free finding of law, thereafter necessarily had to be
thrust into the background by the wealth of norms for decision which the
Roman law books offered ready for use. This appeared so much more
clearly inasmuch as the Roman universalizations in part lost the
characteristic quality of universalizations when Roman law was received.
On the soil on which it had its origin, a universalization must be felt as what
it actually is, i.e. as a universalization. Transplanted to a soil on which the
phenomena that have been universalized do not occur, it ceases to be a
universalization, it becomes a rule, occasionally appearing to be quite
arbitrary, which knows neither universal nor particular, and according to
which legal disputes are being decided. The whole Roman law, which had
been given the force of law in this way, became a collection of juristic
norms for decision. Whereas in Rome it had grown directly out of life, it
now faced life as a fixed, immovable standard. Legal life no longer was the
subject matter of juristic science, as it is to a certain degree in an indigenous
legal development, but its object. And thereby juristic science became
something quite different from what it had been before that time. It now
faced life as something approaching from without. It undertook to force
rules upon society which it had not invented itself but which it had taken
over from elsewhere, without any thought of whether society desired them
or not, without any concern as to how society fared under them, simply
because they were in existence. And in a great measure it has been
successful. The great antinomy of juristic science, in the hands of which all
modes of thought become forces that have the power to create norms, has
again demonstrated its historic significance.
Although the reception of Roman law relieved the jurist of the burden of
dealing with life by continally creating the law which the latter requires, it
brought him face to face with another, perhaps a greater, difficulty, i.e. the
difficulty of adapting the new law to legal relations that were altogether
foreign to it. How could the jurists, in the years immediately following the
reception, get the idea into their heads that the Roman sources were dealing
with the same institutions that they themselves had to deal with? Was it so
obvious that the peculiar mediaeval rights in land or the contracts, which in
part were of a totally different nature, must be adjudged according to
Roman law? The mere fact of the reception is sufficient to establish the
basic presupposition of the sociological science of law that there are legal
institutions that exist independently of the positive law; at any rate it proves
that among all the peoples by whom the Roman law was received there
were legal institutions which they had in common with the Romans, at least
to such an extent that the application of the Roman law did not appear to be
altogether impossible.
This must be attributed in part to the state of the Roman law into which
Roman juristic science had put it. With inimitable mastery the latter had
selected those elements that are universally human, and that must exist in
every society. The concepts of corporation, family law powers, ownership
and real rights, the various agreements, inheritance, — all of these and
many other basic concepts of juristic science in general, not only of juristic
science as it exists among a certain people, it had developed and set forth,
and had found the proper norms for the decision of the most important
questions that might arise in a legal controversy. But mediaeval society was
so totally different from Roman society because it was in a stage of
development so far removed from that of Roman society that, at the time of
the reception, the number of legal institutions as to which one could be
certain at the outset that they were identical with those of
Roman law must have been exceedingly small. It was the case perhaps
only as to this or that family relation, a small number of agreements, let us
say, as to sales and loans. Apart from these, though there were many
external similarities, the differences must have preponderated.
The situation that the jurists of the time of the reception found
themselves in can perhaps be illustrated best by means of a comparison. Let
us suppose that by a miracle, the law of England should, at this very
moment, become the valid law of some part or other of the European
continent. Let us suppose further that the Continental jurist consults the
Stephen-Jenks commentaries on the Laws of England (incidentally the only
work on English law that can be compared with the comprehensive
presentations that are in vogue on the Continent). He would be surprised to
find that the basic concept of his whole legal thinking up to the present time
— the concept of ownership — is not being discussed at all. To begin with
there is no concept of ownership which com™ prises the law both as to
movables and immovables. A concept that corresponds to ownership of
immovables is there called a freehold, and is defined as “an estate, either of
inheritance or for life held by free tenure." Here almost every word is
unintelligible to a Continental jurist, and the concept itself is still more so.
For "freehold" refers, in the first place, to immovables only. It is a sort of
real right which includes usufruct, heritable lease, and heritable building
right, and which excludes the free ownership of land of the Continental law
inasmuch as it presupposes tenure. He would find it necessary in the first
place to resolve all doubts as to the question whether the free ownership of
the Continental law, since it is not a feudal fee, is covered by this concept.
This question the Continental jurist, whether he likes it or not, will find
himself constrained to answer in the affirmative, for the reason that tenure
in modern English law is a pure fiction, and for the further reason that, if
this were not so, there would be no legal regulation at all, not only of
ownership but also of usufruct, of heritable lease, and of heritable building
right, all of which are conditioned upon acquisition from an owner. And
apart from this, the difficulty of working with a concept of property which
comprises also usufruct, heritable lease, and heritable building right, and
among the sub-divisions of which are found the base fee (property to which
most strange resolutory 1 conditions are attached) and the fee tail
(inalienable property which passes to certain definite heirs, our Continental
fideicommissum, and, after all, not a fideicommissum at all). What does all
of this refer to?
 The famous decretal of Pope Alexander III, which regulated the passing
of the advowson to the firmarius, proves that this imagined and impossible
illustration quite faithfully reflects all the difficulties that necessarily had to
arise from the reception of Roman law in the Middle Ages. A vast literature
rich in disputes and teeming with false conclusions and misunderstandings
concerned itself for centuries with the question to whom, as persons having
a real right, the advowson passes, since it was impossible to decide which
kind of Continental real rights corresponds to the English firma. In a
thorough historical and doctrinal inquiry, Wach has indeed presented an
exhaustive discussion of the nature of the firma; but he has not solved the
practical question, i.e. which Continental institution must be regarded as a,
firma, for the simple reason that it cannot be solved. There is nothing on the
Continent that could be said to be a firma. The question cannot be
answered; it would have to be decided.
At the time of the reception, irresoluble questions of this kind cried out to
the Continental jurists from every line of the corpus iuris. Had they been
men of scientific training, let us say of the Historical School of Savigny or
of the modern sociological school, they surely would never have undertaken
this task, which cannot be performed scientifically. They would have said to
themselves at the outset : The kind of ownership that the sources speak of
does not exist among us (in the Middle Ages, not even the name; much less
the concept) ; the unf ree person that we are dealing with is not the Roman
slave. Institutions like the stipulation the cautio indiscreta, the mandatum,
or the locatio conducilo operis or operarum do not exist today, just as there
is no legatum per praeceptionem or peculium profectitium. Doubtless there
are phenomena of legal life which present a certain similarity to the above-
named Roman institutions, but the divergencies are so great at every point
that it would be a highly unscientific procedure to deal with them according
to identical principles. What prevented the juristic science of the Romanist
jurists from bleeding to death was the fact that it never undertook the
scientific task which Savigny in his day suggested to it. The jurists of the
time of the reception had law cases in hand and they searched the corpus
iuris for decisions that might fit them. And the decisions did fit whenever
there was a certain amount of similarity between them and the eases.
Scientific exactitude was not sought after. The function which their juristic
activity subserved was not a scientific one but the eternal, practical one of
all juristic science, to wit to make the law subserve the requirements of life.
 1 I.e. conditions subsequent.

This practical labor however was made considerably easier for all the
generations of jurists since the Middle Ages by the fact that it had already
been done, in part at least, by the glossators under most extraordinarily
favorable conditions. For in the tenth and eleventh centuries, when the
glossators began their work, the relations with Roman antiquity were
extremely close, at least in the parts of Italy where the glossators lived and
in southern France. Many Roman legal institutions, though distorted during
the course of the centuries, may still have been in existence at the time, at
least to an extent sufficient to establish the connection in a certain measure.
A still more important factor was the part played by the language alone. At
that time, Latin still was a spoken language, and in its own way interpreted
the Roman world to the person who used it, without however laying any
claim to historical accuracy. The Roman miles surely was something quite
different from the mediaeval knight; but since the knight was called a utiles,
the doctrine of the peculium castrense was applied without more ado to the
knightly filius familias.
In spite of all this there were many difficulties that stood in the way of
applying Roman law to the existing legal relations* And these difficulties
were the cradle of the jurisprudence of conceptions. Everywhere, even in an
indigenous legal system, there must be some sort of relation between the
legal norm and the legal relations, but in by far the greatest number of cases
actual observation of life is sufficient for this purpose. The great objection
that one could make to the definition of a railroad given by the Supreme
Court of the Empire is the fact that it is so altogether superfluous. Do we
not know without this definition what a railroad is? At any rate we shall
find that, after innumerable readings of the definition given by the Supreme
Court, we have not added to our knowledge. A few borderline cases may
indeed be doubtful, but what are they among the vast number of cases that
are being decided quite clearly and unmistakably by actual observation for
everyone that has ever seen a railroad — and who is there today that has not
seen a railroad? And actual observation taught the Roman, with the same
certainty, what a delegatio and a man-datum in rem suam was; and the Salic
Franks what a chrenechruda was. But in the Middle Ages often enough
there was no actual observation to aid the jurist in his attempts to gain an
understanding of the Roman law, and this lack the jurisprudence of
conceptions was designed to make up for.
For practical juristic science the important problem was how to apply
Roman law. It does not loom very large in the work of the glossators, for
with them the scientific interest outweighed the practical. They are
occupied more with ascertaining the content of the corpus iuris than with
the manner of its application. The corpus iuris was a new code to them, and
their attitude toward it was very much like that of jurists toward any new
code, even that of the present-day German jurists toward the German Civil
Code« Their first concern was to find out what it contained. Accordingly
the glossators were chiefly engaged in interpreting the corpus iuris, not in
developing a practical juristic science. But they could not escape the
questions of practical application altogether, for although they were not
practical jurists, they wanted to be» come teachers of practical jurists. And
therefore they found it necessary, in all cases in which actual observation or
the language failed to give them information, true or false, to study the
sources themselves for the purpose of getting a clear knowledge of what
their precepts actually referred to. Accordingly we find that even the
glossators engaged in investigations of concepts, for instance, of the
concept res publica, in order to determine whether in legal contemplation,
in addition to the Roman Empire, there was another community in the
nature of a state, of the concepts univer-siias, delegation possessio civilis,
and naturalis.
This purely practical side of the work in turn involved great practical
difficulties. The pure concepts of the sources of the Roman law, the
universahzations of the facts of Roman legal life as such, which the Roman
jurists had but rarely formulated in words, and even more rarely had
formulated correctly (omnis definitio periculosa), would be just as
unavailable to the jurists of the Middle Ages as the concepts of freehold or
of firma of the English law would be to the Continental jurist. In order that
the Roman concepts might be available, they had to be extended so as to
include the phenomena not only of the Roman law but also those of the
mediaeval law. For this purpose everything had to be eliminated from the
concept that did not fit into the present, that is, everything that was given by
the particular social and economic relation out of which the concept had
arisen in Rome. The more empirical content is taken out of a concept, the
more abstract it becomes; and so the Roman universahzations became
abstractions in the Middle Ages. The mediaeval and modern abstractions
are Roman universahzations which to a considerable extent have been
emptied of their content.
It would be unfair to take this to mean that in their abstractions the jurists
had given up all connection with economic and social life. A juristic
concept without any relation to life, and therefore without empirical
content, is simply unthinkable. But here the situation was the following.
The practical purpose which the legal relation subserved in Rome did not
exist in modern society. At the same time there was a different practical
purpose in modern society for which, at any rate, the Roman precepts could
be utilized. The thing to do therefore was to receive only so much empirical
content into the concept as was necessary in order not to interfere with the
utilization of it in mediaeval society. The correality of the sources of Roman
law, like every joint liability, has arisen out of relations of community
between the co-obligors, especially out of family communities, partnership
relations, and relations of suretyship. Undoubtedly the nature of these
community relations has had a bearing upon the nature of the joint
obligation. The correality of husband and wife, of brothers holding goods in
joint ownership, was something different, even in Rome, from the correality
of persons engaged in a joint adventure. The Roman jurists did not fail to
take account of these differences ; although this fact does not appear very
clearly since with them it was always a freely chosen correality. The
community relations however out of which joint obligation arose in the
Middle Ages and in modern times were so totally different from the Roman
relations that the Roman law of joint obligation would have been
unavailable for the modern relation s if in defining joint obligation the
Roman community relations which constituted its basis had been taken into
account, and the classes of joint obligation had been dealt with separately
according to the differences in the character of these community relations.
Therefore an abstract concept of joint obligation was formed. Its whole
economic content is limited to the fact that the creditor can demand the
whole performance from each joint debtor. The relation of the joint debtors
to the creditor and to each other, which would vary according to the kind of
community relation that subsisted between the joint debtors, is left out of
account in this abstract joint obligation. And so Roman law remains
applicable although it manifestly presupposes community relations of a
kind quite different from those that were in existence in the Middle Ages. It
was intended at the outset that this abstraction should be utilized only for
the purposes of litigation. In actual life there are no abstract joint debtors.
Each class of joint obligations has an economic basis of some sort, and
according to the various kinds of economic bases there are different classes
of joint obligations. The brothers who are holding their goods in common»
the joint adventurers, the sureties who assume this relation as principal
debtors, become abstract joint debtors, and so it became possible to utilize
the rules which had arisen in Rome for the regulation of these relations
indiscriminately for the modern abstract joint debtor whether he be a joint
debtor because of a matrimonial community of goods, a joint making of a
bill of exchange, suretyship, mercantile association, joint adventure, or civil
law partnership. The well known difficulties which have sicklied o’er the
Romanist doctrine of correality and solidarity have their origin in the
concept of abstract joint obligation.
The adaptation of Roman law to the needs of a society that was
altogether foreign to it was facilitated by the form which the basic concept
of every legal system, the concept of ownership, had received as early as
the days of the Republic. It certainly is not true that ownership in Roman
law was an abstract ownership. At Roman law, ownership was just as truly
an economic matter as ownership necessarily must be anywhere else. But
this Roman economic ownership of the Italic fundus, of which alone the
jurists are speaking, was of such a nature, because of the Italic system of
ownership of land, that at the time of the reception it inevitably led to an
abstract concept of ownership.
Had the Roman jurists been dealing with land in its original village
community, with all its relations to neighbors and the relations of subjection
to the lord of the manor, which inevitably result from situations of this kind,
it would scarcely have been possible to adapt such a law of real property to
the needs of mediaeval society; the reception of Roman law would have
been as impracticable perhaps as the reception of the English law of real
property would be on the Continent today. But since the Romans, as is well
known, had abolished their original village community at a time prior to
that of the historical tradition, Roman law knows nothing of the village, but
knows only the individual farm (Hof). Confronted with the task of creating
a new land law for the fundus, which had been severed from all its former
relations, the Roman jurists created it in the likeness of the ownership of
movables. They simply dealt with the owner of land according to the same
rules according to which they dealt with the owner of a movable thing. That
is to say : The fundus is a res mancipi like the slave, like the head of cattle.
Were it not for the fact that a few remnants of the older order had been
retained, such as the servitudes, especially the servitutes praediorum rusti-
corum, the actio damni infecti, the 0peris novi nuntiatio, the actio aquae
pluviae arcendae, there would be practically no peculiarities in the classical
Roman law, at least as to the ager privatus. In- deed it is very doubtful
whether this was the whole of Roman land law, whether there was not, in
addition to this, much local and economic law, which varied according to
the use to which the land was being put and of which we no longer have
any knowledge; at least some law regulating the right to build and some
mining law can be found even in the sources of the classical period. But all
of this seems to have been outside of the sphere of interest of the jurists. We
must point out most emphatically however that even this juristic law of
ownership and possession was the law of a certain economic order of
possession, the economic order of the possession of the ager privatus in
Italy, and that it did not extend beyond this order. It applied neither to the
ager publicus in Italy nor to the solum provinciale. But of all of these
divergent orders of possession only a few scanty provisions about the ager
vectigalis and the emphyteusis found their way into the sources. In the
Middle Ages only the church was able to utilize these.
If we treat land like a movable thing, the relation of the ownership of
land to society is eliminated from the concept of ownership, and there
remains only one question that has any bearing on the right of ownership
and the right of possession connected therewith, to wit the question of the
actions claiming ownership or possession. The Roman jurists who, in the
case of land, can disregard its economic relations and the economic
constitution of Italy are concerned chiefly with the actions claiming
ownership or possession. Practically everything therefore that the Roman
jurists have to say about ownership of land clusters around the various
forms of the actions claiming ownership or possession. The acquisition and
the loss of ownership and of possession, considered chiefly as the
presuppositions for the actions, the parties to an action for the protection of
ownership and to the interdicts, the problem of proof: this is practically all
that we can learn from the Roman jurists.
The law of ownership and of possession of the Roman jurists then was a
legal order based on the Italic system of landhol ding, and the fact that it
contained chiefly regulations concerning actions claiming ownership or
possession must be attributed to the fact that because of the peculiar nature
of the Italic system of landholding, it was only these actions that required
regulation. But even in the code of Justinian it had taken on an altogether
different significance. And this was due not only to the fact that the Italic
system of landholding meanwhile had undergone a complete change but
also to the fact that the Roman land law meanwhile had become the law of
the Empire, and was to be the law of the provinces also, the system of
landholding in which was altogether different from the Italic system. This
new land law was stated, albeit in a very incomplete and imperfect form, in
the Imperial constitutions, which are found in the Code and in the Novels.
Perhaps for the greater part there were no regulations at all, and the civil
service as well as the administration of justice had to make shift as well as it
could. At the same time the law of property and of possession of the
classical jurists was received into the Institutes and into the Digest, and was
thereby engrafted upon the new system of landholding. In this connection
however it no longer was the law for a certain system of landholding but a
law which contained a few precepts, chiefly concerning actions claiming
ownership or possession by way of supplement to a regulation of the system
of landholding which was laid down in the Code and in the Novels. In this
form it was admirably fitted for the reception. The jurists of the countries
which received it of course did not, and self-evidently could not, entertain
the idea of receiving the Roman system of landholding when they received
the Roman law. Neither the ancient Italic system of landholding, which the
classical jurists presupposed, nor the later system of the Imperial
constituiiones became valid law in the Middle Ages, which had developed a
possessory order based on the feudal system. They conceived of the Roman
law of property and possession as a legal order which, disregarding all
actual systems of landholding, regulated merely actions claiming ownership
or possession. As a law which regulated merely actions claiming ownership
or possession it was not incompatible with any system of landholding, not
even with the mediaeval system. The abstract Roman concept of ownership
is therefore, properly speaking, not an achievement of the Roman law but of
the reception. It is a law of ownership, whose whole economic content is
the action claiming ownership, which does not regulate the economic
possessory order but presupposes it.
 Accordingly the creation of abstract concepts was merely an altogether
indispensable juristic device for the adaptation of the Roman norms to the
requirements of a different society. The result on the whole was the same in
every case as in the case of joint obligation and ownership. The indigenous
social order remained in existence as one freely chosen, based on customary
law, on particular * law; to it, usually in a quite arbitrary manner and only
for the purposes of procedure, the Roman norms were added so far as it was
possible to comprehend them in a legal concept which had been emptied of
its peculiarly Roman content. But this process was permissible only to the
extent to which the concepts which had been created in this manner could
be applied to mediaeval and modern situations. A limitation therefore was
imposed upon the jurisprudence of conceptions at the point at which it
became impossible, even though the greatest possible measure of
abstraction be employed, to subsume legal relations which belonged
exclusively to mediaeval or modern law under the Roman legal concepts.
The jurists of the early days of the reception both in Italy and in Germany
avoid these difficulties with a marvelous lack of embarrassment. The
glossators pay very little attention to this matter. It is their business to
interpret the Roman law, not to apply it. To which of the relations of their
day that are foreign to the Romans the Roman law should not be applied is
discussed by them, on principle, only once as far as I know, i.e. in the gloss
to 1.32. D. leg. 1, 3 : de quibus scriptis legibus non utimur: in Jeudis.
Nowhere in the gloss is there a hint as to how, for example, the mediaeval
community relations, bearer papers, which are met with in Italy as early as
the eleventh century, and the commenda, which can be traced into antiquity,
are to be dealt with juristically, although the glossators must have been
familiar with all of these things. From their whole attitude one can infer that
they believed Roman law to be applicable only to those relations which
were regulated therein. Whatsoever had been ordained by other statutes,
ordinances, customs, was outside of the sphere of Roman law; they
therefore without more ado recognized the ordinances of the Italian cities as
valid side by side with the Roman law. Perhaps the gloss to I.7 C de agr. 11,
47 is a typical case; there decisions based on the passage from the Code
appear side by side with decisions based on communis consuetudo. There is
a close connection between this attitude of the gloss and the fact that it
reflects the state of affairs in the early years of the reception of the Roman
law. Roman law is being applied only where its application is, in a sense, a
matter of course. It is a significant fact that Zasius, who in point of time
occupies the same relative position to the reception in Germany as the later
glossa-tors to the reception in Italy, preserved the independence of the
institutions based on German law with the same lack of embarrassment.
1 The local law of a particular locality within a larger territory.

But when in the days of the postglossators as well as in Germany in the

seventeenth century, the Romanist jurists obtained control over the practical
application of law as well, the principle came into vogue that every case
must be adjudged according to Roman law unless a different norm has been
established for its decision. Thereafter the jurisprudence of conceptions
could no longer avail; for the Roman concepts, at least the concepts of the
sources that have been transmitted to us, were not adequate to the
requirements of the much richer and much more complex modern life.
Apart from this, it was inevitable that most unsatisfactory results should be
brought about when the institutions of two such loto caelo dissimilar
societies as the Roman on one hand and the mediaeval and modern on the
other were to be jumbled together and to be judged by the same norms for
decision, regardless of the gulf that was fixed between them in point of time
as well as of economic and of social development. There were several ways
of escaping from these difficulties. One could distort the Roman concept in
such a manner as to adapt it to the foreign institutions; one could combine
the heterogeneous institutions of Roman law in such a manner that the
norms for decision that resulted from this combination would meet the
requirements of the case in hand; one could falsify the Roman norms for
decision so thoroughly that they yielded the desired result. In fact, all of
these methods were employed at different times according to the
requirements of the individual case. We have now reached the jurisprudence
of constructions.
The exigencies of the system of actions caused the Romans themselves to
resort to a jurisprudence of constructions whenever it became necessary to
meet new requirements of life with such legal means as were at hand. It is
true, the praetor and the jurist could find new legal propositions for new
legal institutions; but this power doubtless was hedged in by traditional
limitations, of which we have no detailed knowledge. On the other hand,
proceeding by means of constructions offered the advantage that one could,
to a certain degree, work with the law that had already been established, and
could thus avoid the many dangers involved in a new finding of law. This
method does not include the use of fictions; for only the legislator and the
praetor could avail themselves of the latter as finders of law, and not, as in
England, the jurists. True juristic constructions are the following: the
construction of suretyship as mandaium pecuniae credendae, of assignment
as a mandatum in rem suant, of the payment of a debt by the surety as a
purchase of the obligation, of the dormant commercial partnership as a
depositum irreguläre. These Roman constructions however did not yield
binding rules of law; to the Romans they were merely technical remedies.
The Roman jurists did not hesitate to reject such inferences from their
constructions as did not suit their purposes; and so the surety who had paid
was not entitled, like the purchaser of an obligation, to demand a warranty
from the creditor, or to demand more from the debtor than he had paid to
the creditor.
The glossators likewise resort to construction and they by no means do
this in a very modest measure. The proposition of Roman law, alteri
stipulari nemo potest, they limit by holding that though a third party does
not, indeed, get the right to bring the actio directa, he may be permitted to
sue directly by means of the actio uiilis without obtaining an assignment,
which the sources presuppose. They construe the constitutum possessorium
as abstractly as possible in order to weaken the requirement of delivery in a
case of transfer of ownership. They distort the Roman
dominium, perhaps unconsciously, by making a distinction between
dominium directum and dominium utile, and thereby obtain appropriate
norms for decision applicable to the mediaeval rights to take fruits and
profits (Nutzungsrechte). In order to give to corporations1 the power to
adopt resolutions of the whole body, they misinterpret the Roman
proposition 1. 1, §2, D. 42, 2 muni-cipes per se nihil possidere possunt,
quia universi consentire non possunt, by adding an arbitrary gloss: Gloss V°
non possunt: subaudi hie facile vel commode. They distort the concept,
consciously I am sure, of the servus puhlicus by calling the notary of their
day, the tabellio, a servus puhlicus in order that he might be able to enter
into contracts in behalf of his mandants as their representative. Quia publiée
servit, non quia servus est, says Accursius.
 Bartolus and his pupils however gave an incomparably greater impetus to
juristic construction. They gave direction to the Continental common law
technique for many centuries. The most famous of these constructions are
the following: (1) The whole theory of the territorial validity of statutes,
almost without any basis in the corpus iuris, the only point of contact, and a
purely external one at that, being L 1. C. de summa Trin. 1, 1. (2). The
aequitas Bartolina, the obligation, established by Bartolus, of the ecclesia
as owner of a parcel of ground held under a perpetual lease (emphyteusis),
to let the land, after the direct line of descent of the emphyteuta has become
extinct, to the collateral relatives of the latter by heritable usufructury lease.
This is based on 1. 1, §43 D. de aqua quoL et aest. 43, 20. All that Ulpian
says in this passage is that the purchaser of a parcel of ground has a legal
right to have the right to draw water from a public aqueduct restored to him
if he can show that the right had been granted to the land and not only to the
person of his predecessor — a case that is in no wise connected with the
grant of an emphyteusis to the collateral relatives of the emphyteuta. (3) The
doctrine that a servitude can be established by the mere appointment of the
pater familias, which also owes its origin to Bartolus, who based it on a
very unsatisfactory interpretation of the sources. (4) The denial, by Cinnus
and Baldus on the basis of C 4, 28, 5, of the exceptio of the
senatusconsuUum Macedonianum against the filius familias in mercantile
matters. (5) The construction, by Baldus, of the bill of exchange as a
purchase in order to circumvent the law prohibiting usury. (6) The
construction, by later commentators, of the power of a general partner of an
unlimited mercantile partnership to enter into a contract with a third person
in behalf of the partnership as a mutual praepositio institoria ; of the assets
of the unlimited mercantile partnership as a corpus mysticum ex pluribus
nominibus cmflatum; of insurance against risk as emptio venditio periculi.
1 I.e. the municipia.

Outwardly the jurisprudence of conceptions and the juris» prudence of

constructions manifestly are the very antithesis of the method of the Roman
jurists. The latter sought to investigate the various legal relations, as they
occurred in daily life, by a searching study of life. They universalized the
results of these investigations, and thereby either found, through immediate
ob~ servation, the norms for decision which naturally flow from the
economic and social connections of the legal relation, or invented norms
that were adapted to the nature of the legal relation. Both the jurisprudence
of conceptions and the jurisprudence of constructions however do not seek
to get first-hand knowledge of the affairs and happenings of daily life. They
purport to establish the concept of the legal relation just as the Roman
jurists had it, for the sole purpose of subsuming all the legal relations of
their own time with which they had to deal under the Roman concepts and
of then applying the Roman norms for decision to them. For the greater
part, however, this is seeming only and not reality. The jurisprudence of
conceptions and of constructions would amount to pure logical operations,
to an arithmetic of conceptions if, and only if, it had brought about the
application of the Roman norms for decision to modern situations without
any consideration of the question whether the result is appropriate to them
or not. But it is easy to demonstrate that this was not the case. Without a
certain first-hand observation of the legal relations of life there can be no
juristic science. The Romanist jurists must understand the relations of the
life of their own time in order to be able to subsume them under the Roman
concepts. Like the jurists of all times they therefore sought to understand
the legal relation that was submitted to them for decision. Accordingly,
proceeding on the basis of the records, the documents, the testimony of
witnesses, on the basis of what they knew from other sources as to custom
and business usage, they ascertained in every single case the rights of the
parcel of land, of the family, of the human beings, of the content of the
agreement in question. This knowledge of life furnished the basis for the
formation of concepts and for the constructions which we find in the
writings of the glossators and of the postglossators. It was life, and life only,
that could teach the glossators what is the content of the real rights to take
fruits and profits which they construe as dominium utile; life only could tell
the commentators something about insurance against risk, which they tried
to reach by means of the concept empito veti-ditto periculi. The concepts of
the modern legal relations which the Italians developed in this manner they
do not naively subsume under the Roman concepts, but they take the results
of this operation into account in advance. They did not utilize the Roman
concepts for the purposes of juristic science in the form in which they found
them in the sources, but first of all refashioned them according to the rules
of the craft by means of abstraction and construction so as to produce a
result that was suitable for the new universalization, or at least not
altogether too objectionable. If the Roman norms for decision were
absolutely inapplicable, they made no use of them. Accordingly they never
attempted to apply the Roman law of slavery to the serfs of the Middle
Ages, except in a case where temporarily, as was the case for instance in
Prussia in the seventeenth and eighteenth centuries, the serf lived in a state
of oppression so great that the existing modern relations suggested the
application of the Roman norms. This characteristic of juristic science
appears much more clearly in the case of construction than in the case of
mere creation of concepts. In this case the jurist has not only acquired a
first-hand knowledge of the legal relation but has also found the norms
which he intends to apply by means of universalization and free finding of
law. All that he is now looking for is texts in the sources that will provide
him with the norms he desires. Since he proceeds with the greatest
conceivable measure of arbitrariness, rejects everything that stands in his
way, does not stick at falsifications and distortions, there can be no doubt
about his success. There can be nothing that more exactly describes the
nature of the juristic construction than the well known story that Bartolus
would first find the solution of a legal problem that was submitted to him,
and would then direct his pupils to gather texts from the sources to support
his solution. Bartolus surely was not the only one who had the solution
before he had the texts.
Lastly the jurisprudence of conceptions and the jurisprudence of
constructions caused the juristic concepts of the sources, which, ina great
measure, had lost their original content, to be filled with an entirely new
content. The gloss, in the discussion of the universitas personarum, could
not avoid, as Gierke’s presentation has shown, expressing an opinion about
the phenomena of the life of its time which, in its view, were universitäres,
i.e. about the empire, about cities, villages, guilds, about churches in charge
of a collegium of clerics and convents, about churches at which only one
cleric was employed; it began to distinguish between different kinds of
property of the universitas, between the res in patrimonio univer-sitatis and
the res universitatis, and, in the arrangement of the inner affairs of the latter,
to keep separate and distinct the various amounts of goods belonging to
each — each of which was governed by legal principles peculiar to itself.
The miles of the sources, who has capacity for the acquisition of a peculium
castrense, becomes the mediaeval knight in the writings of the glos-sators,
as Fitting shows; it was required that he should not be a trader; that he have
passed the squire's examination, that he have taken the oath of knighthood;
that he have been girt with a sword; that he have received the nota puhlica,
which the gloss does not refer to the accolade, but to the knot,1 which the
knight wore on his sleeve until some prince or some lady of high noble rank
took it off; and that his name have been entered in the list. On an equal
footing with this militia armata, with reference to the peculium quasi
castrense, was the militia inermis, which was sub-divided into a caelestis
for the clerics and a litterata for the jurists. In a similar fashion the
postglossators utilized the concepts of Roman law for the purpose of
construing the absolutely modern concepts of the bill of exchange, of the
mercantile partnership with unlimited liability, of the assets of a
corporation, and of insurance.
1 Bandschleife.

Accordingly the new juristic science is based, to precisely the same

extent as was juristic science among the Romans and in the Sachsenspiegel,
on the individual legal relation, out of which the norms for the decision of
the individual legal controversies arise. As at all times, so also in the days
of the glossators and the postglossators, the great mass of decisions was
rendered on the basis of the nature of the individual relations, knowledge of
which had been gained in the manner indicated, on the basis of actual
observation, on the basis of what is found in the records, on the basis of the
documents and of the testimony of witnesses. To state this in modern
parlance, in most legal controversies the question of fact, not the question
of law, was being adjudged. Whenever the question of fact was of general
significance, or admitted of, and actually occasioned, a universalization, it
became a legal proposition. These new legal propositions served the
purpose of pouring a new content, adapted to the needs of the time, into the
concepts of the corpus iuris. This was done in the guise of formation of
concepts and of constructions. The juristic science of this period therefore is
only to a limited extent that which it purports to be, i.e. a presentation and
explanation of the content of the sources. To a much greater extent, it is a
new juristic science, which, in the new period, is fulfilling the eternal task
of all juristic science, i.e. the task of making the law subserve the needs of
life.
 Creation of concepts and construction have remained the tried household
remedies of Romanistic juristic science wherever the latter has made its
way, especially of its, historically and scientifically, most important branch,
German juristic science, from the sixteenth century onward. The attempt of
Zasius to place the German villein on a level not with the Roman slave but
with the Roman freedman is first of all an attempt — abortive, it is true —
to create an abstract concept of freedman. If Zasius had been at all willing
to consider the economic and social relations of the two statuses, he would,
self-evidently, have realized that Germanic villeinage is much more like
Roman slavery than like the condition of the freedman ; for in both
villeinage and slavery, we are dealing with a status acquired at birth. The
villein becomes a freedman, as Zasius himself observes, through
manumission. But Zasius altogether disregards the economic and social
relation, considers only the provisions of the Roman law about freedmen
which seem to correspond, to a certain extent, to the condition of the
Germanic villein, and utilizes it for the creation of the concept, according to
which he judges Germanic villeinage. In order to be able to do this, it was
necessary to have a clear understanding of the concept of villeinage, and
this he owes to a searching and deep study of life.
There is nothing that can give us a better idea of the way the Continental
common law originated than this attempt of Zasius. Had Zasius been
successful, his attempt would have brought into existence a general concept
of " villein " on the basis of the Roman concept of freedman. The norms of
the Roman law concerning freedmen that are applicable to the ordinary
villein would have become a part of the Continental common law; the
others would have been rejected. Over and above this, self-evidently,
everything would have remained in force, as a matter of local law, that had
been established concerning them according to custom, customary law,
regulation, contracts, statutes. The Continental common law of ownership,
of pledge, of obligations and of inheritance have all been created and
elaborated in this fashion. But Zasius's attempt to create this concept failed.
It seemed altogether too much like a tour-de-force. And as a result of this
failure, the legal situation of the villein was determined exclusively by
contracts, local regulations, custom, customary law, and statute. One
hundred years after Zasius, Mevius admitted this unreservedly in his book
entitled Von dem Zustande der Abforderung und der verwiederten Abfolge
der Bauers-Leute, which contains the words, quoted by Stintzing: “Worinn
aber ihre Dienstbarkeit und Freiheit soviel sie bey der theilhaft sein,
bestehe, lasset sich in Universum nicht wol beschreiben. Angesehen ein
jedwedes
Land und Territorium seine eigne Weisen 7 Gewohnheiten und
Gebräuche hat . . . Darumb dieselbe wol erforschen und beleuchten muss
wer von der Bauern Zustand, Gebühr und Recht urtheilen wil."1
The first achievement of German juristic science, the creation of the
concept of Gattung (genus) and of fungible goods by Zasius, was also
brought about in this manner, i.e. by first-hand observation of the contract
for supplying goods2 (Lieferungsvertrag) , which became a thing of
practical importance in the sixteenth century, but was unknown to the
Roman jurists. In this way, the things that had been done by the glossatore
and the post-glossators were being repeated everywhere. The concepts that
were taken over from the Romans were being filled with a new content. The
individual legal relation as it is reflected in the documents, in the testimony
of witnesses, in records, in custom and business usage, provides the
material, which is being universalized, and then judged according to the
statements of the sources. But in many cases this has been preceded by a
working over of the matter by local law. It is well known to what extent the
famous German Romanists of the seventeenth and eighteenth centuries
were endeavoring to present, not Roman law, but the law of their native
country in Roman garb. Each one of them is being referred to as of the part
of the country to which his life's work belongs. So Carpzov and Struve are
being referred to as of Saxony; Mevius, as of North Germany; Lauterbach,
as of Württemberg; Stryck, as of the Mark. For the investigation of the legal
relations of their native country they made use of judgments, opinions of
faculties, records of trials, as well as of the positive law of the territory in
which they were working and for which they were writing. Here too then
the first-hand observation of the individual legal relation constitutes the
beginning.
By the reception of the Roman law therefore the jurists were not spared
the necessity of observing life, or of universalizing its facts. But the center
of gravity has been shifted somewhat. So far as the Roman norms were
simply taken over, the jurists could limit themselves to a mere presentation
and explanation of Roman law. Apart from this, the original free procedure,
as it was customary among the Romans and among the German Schoeffen,
was replaced by the highly artificial but essentially similar procedure by
creation of concepts and construction. The use of such unscientific means
as the distortion of concepts and falsification of norms — a thing that was
done consciously to a very great extent — would have been reprehensible
only if they had been under an obligation to work scientifically» But they
had no scientific aims; but only the eternal, constant aim of practical juristic
science to make the law subserve the needs of life.
1 " Wherein however their subjection and their freedom, in so far as
they have both, consist cannot well be described in universum. In
view of the fact that each country and territory has its own
manners, customs and usages. . . . Therefore he who would judge of
the condition, duty and right of the peasant must investigate and
study them well."
2 I.e. goods not owned by the seller at the time the contract is

entered into.
XIV The Historical Trend in the
Juristic Science

OF THE CONTINENTAL COMMON LAW

SINCE the middle of the sixteenth century Romanistic juristic science is
under the steadily growing influence of the historical trend» The aim of all
history of law is to discover the original meaning of the legal propositions
and the original significance of the legal relations.. These are purely
scientific endeavors, which, as such, have nothing to do with practical,
juristic science, and which we need not therefore discuss at this point. In so
far only as the historical jurists are working in the interest of the application
of law, they are concerned, not with pure science, but with practical juristic
science. I have not been able to ascertain as a fact that the French and Dutch
legal historians anywhere asserted in plain words that the results of their
investigations should be authoritative for the practical application of law,
but this may be attributable to the fact they do not recognize any science of
law other than the historical science. Such an assertion could have only one
meaning, to wit that the historical, theoretical science of law is also
practical juristic science. At any rate the Historical School of the nineteenth
century in Germany has been entertaining this thought, and has been acting
according to it. This can be inferred not so much from the faltering and
uncertain statements of their programs, several of which, by Savigny,
indeed can scarcely be interpreted in any other way, as from their other
writings. Especially Savigny's De possessione^ which has practically
become a model for the writing of monographs in the Historical School,
proclaims this thought to the world with all the force at its command. Six
hundred and ten of its six hundred and fifty-four pages are devoted
exclusively to Roman law, without deigning the modern development
worthy of as much as a single word. As soon as the meaning which a
statement of the sources bore in the mouth of a Roman has been
ascertained, the practical question is disposed of also. There is nothing in it
that might be of any further interest to Savigny. A meager section of thirty-
five pages hastily disposes of the "modifications of the Roman law." He
examines them to ascertain whether or not they can be harmonized in
principle with that which was law among the Romans. If it can be shown
that this is possible, one may accept them. If not, they are to be turned aside
with a contemptuous gesture. At a later time, in his System, Savigny
preached quite different principles of dogmatic treatment of the law, but
until that time the De possessione alone was authoritative as to method. It
would be a difficult matter to find a book of equal influence in the
monographic literature not only of Germany but of the whole Continental
common law. I have gained the conviction on my travels that in the
literature of the world there is not another monograph the name of which
and, in part, the content of which is so well known to the jurists of each and
every legal system as Savigny's De possessione. It is the true
Programmschrift (program book) of the Historical School for practical
juristic science.
It is not therefore the guiding principle of the historical jurists that a
scientific understanding of any legal system can be gained only from
history. That is a scientific axiom without any practical significance. The
guiding principle is, rather, that this seien™ tific understanding must suffice
for practical juristic science. And this thought received its specific coloring
from the fact that in the basic conception of law of all legal historians of the
Romanistic tendency since the days of Cuiaccius — a conception which
they never expressed, but according to which they always acted — law does
not consist of legal relations but of legal propositions, so that all that is
necessary for a scientific understanding of law is to ascertain the meaning
which the legal propositions bore in the mouth of those who first enunciated
them. As a practical matter, therefore, the historical conception amounted to
this, that the practical application of law must attribute only that meaning to
a legal proposition which was intended by its originator. Here again the
historically significant antinomy of juristic science which converts its
modes of thought, even against its own will, into norms becomes operative.
 Only this limitation of the "historical view of law," as Savigny has called
it, to the legal propositions can explain the attitude and the conduct of the
legal historians. Since the days of Jhering, the founders of the Historical
School have often been called romanticists in Germany. But this is unjust;
for neither the founders of the Historical School nor any of their adherents
among the Romanists actually were romanticists. The yearning, which is
characteristic of the romanticist, to turn life back into the past was utterly
foreign to them. They surely have never evinced any desire that the patria
potestas should be revived, or that contracts should be made in the form of
the stipulatio. And if Savigny has spoken bitter words in a book-review of
the modern system of land registration, he surely did not mean to urge the
adoption of the Roman law of pledge. Since the law, in the eyes of legal
historians everywhere, was not the legal relations but the legal propositions,
they have not been concerning themselves about the form which the legal
relations assume in actual life. They let life take its course; but they did
insist that the courts should adjudge the legal relations according to the
Roman legal propositions in the form in which they have been ascertained
by scientific investigation. But as to this, they could not but make
shipwreck. Had life, under the influence of the Historical School, again
become Roman, the application of Roman law would have followed as a
matter of course. But since life remained modern and necessarily had to
remain modern, it was impossible to apply Roman law to legal relations that
in part were unknown to the Romans and in part were totally different from
those that had existed among them.
Accordingly the legal historians again found themselves face to face with
the problem of applying Roman law. And they sinned most grievously as to
this difficulty by not seeing it. They did not even investigate it, although,
from their point of view, it would have been their first duty to do this rather
than to throw light upon a few dark points in the history of Roman law.
They never inquired how the glossators, the postglossators, and the
German Romanists of the sixteenth century performed the adaptation of
Roman law. Savigny's history of Roman law in the Middle Ages was a
history of juristic literature. Apart from this, in the hands of the legal
historians, the legal history of the time following the reception is almost
exclusively a history of legal doctrine. Wherever their glance touched upon
jurists of past centuries, they were interested in the way in which the latter
understood Roman law, not in their attitude toward the law of their own
day. To the present day, we have no presentation of the law of the gloss, of
the postglossators, or of the German usus modernus. Indeed, even the
number of treatises on the history of legal doctrine that treat of the way in
which the glossators, the commentators, and the usus modernus dealt with
individual legal institutions is extremely small.
But you cannot do away with a difficulty by ignoring it. The question of
the adaptation of Roman law must be solved daily by judicial decisions. A
juristic science that ignores the adaptation of law of the past to the legal
relations of the present does not offer practical law but historical law. This
judgment does not condemn the Historical School of the French and of the
Nether-landers very severely; for, it seems, their aim was to teach law and
to let the administration of law get along with it as best it could. But the
German legal historians did not profess to teach Roman law but law that
was applicable in Germany, and therefore it was incumbent upon them, will
he nill he, to consider both the Roman law and its adaptation. Their method
of procedure usually was simply to take over the results of the adaptation as
it had been performed by their predecessors. They applied the legal
propositions of Roman law to the same modern relations to which they had
already been applied by the glossators, the postglossators, and the teachers
of the usus modernus in Germany. The pandects of the Historical School
differ from the older works chiefly in this, that they no longer discuss the
adaptation but presuppose its results. In all essential respects they present
merely those results that the Continental common law jurists attained as
early as the eighteenth century. But they have persistently refused to quote
the writings of the latter; for in spite of the fact that they were deeply
indebted to them, they despised them unspeakably with all their hearts.
And, therefore, thanks to these legal historians, we have lost all knowledge
of the historical connection between the adaptation of the nineteenth and
that of the earlier centuries. But resort to this device failed when questions
were involved that had not arisen before the nineteenth century. Inasmuch
as the Historical School provided no new means of solving these problems,
the old ones that had stood the test of experience had to suffice. Jurists
proceeded, just as they had done before, by immediate observation and
universalization, concealing their methods according to approved models
under the guise of construction and creation of concepts.
As an illustration let us take the vast Continental common law literature
on the making of contracts where the parties are not in the presence of each
other. It discusses questions which have arisen thanks to the modern
development of the postal and telegraph systems, and about which of course
nothing is to be found in the Roman sources. The solution therefore had to
be found quite independently. The basis was observation and the
universalization of experience; subsequently however the solutions which
had been arrived at in this manner were read into the sources. This
happened also in the case of Jhering's doctrine of culpa in contrahendo and
of the negative interest in a contract.1 More important are Einert's and
Liebe's works on the bill of exchange. After the law of bills of exchange has
been developed, it is being pressed into the Romanist formulae of the "
literal contract " and of the stipulatio. Bähr's work was done solely on the
basis of observation ; the derivation from the sources is mere external
adornment.
All that we can say of the upshot of the endeavors of the legal historians
for practical juristic science is that construction by means of conscious
distortion and falsification has been limited to a considerable extent. They
insist that the legal propositions should everywhere be employed according
to their original meaning. Though this may appear to be a rather
insignificant result, the effect of the historical trend in practical juristic
science was an enormous one. By making the ascertainment of the meaning
of the legal propositions at the time of their origin the sole function of
juristic science, they intentionally shifted the center of gravity of the juristic
interest into the past. They excluded the present from juristic science, and
actually transmuted a creative art into a manner of science, but only into a
kind of philology, which did not concern itself with the knowledge of things
but with the knowledge of what has been said about things. They took no
further interest in the whole development from the time when the
proposition had been stated in the form in which it is binding today down to
the present; they refused to go beyond Sabinus or beyond Papinian, or if
Justinian had inserted an interpolation into the text, beyond that. The
practical effect of thrusting creative juristic science into the background has
been the doctrine that the solution of all problems must be reached by
interpretation of the sources. The doctrine of the legislator who foresees
everything that may arise and of the perfection of the legal system, which
existed, in the germ, in the writings of the postglossators, has received its
scientific consecration at the hands of the legal historians, especially of
those of the German school. But precisely for the reason that the legal
historians actually rejected the thought of any and all conscious creative
development of the law beyond the content of the sources, they were
compelled to continue the development of juristic methods. All the arbitrary
proceedings, the naïve misunderstandings and conscious falsifications, of
former schools of jurists had served the purpose of adapting the law to new
needs, and of enriching it by means of norms that the present time required.
But the zeal of the legal historians to go back to the original content of the
sources brushed aside, if not all of this most valuable legal material,
certainly a considerable portion of it, and by so doing impoverished the law.
The gulf that was fixed between the traditional law and the present time had
continually been becoming wider and wider, and had to be bridged
somehow. This was done chiefly by converting the creation of juristic
concepts and juristic construction into a mathematics of concepts and into a
construe™ tive systematism (Systematik).
1 See Cosack, Lehrbuch des bürgerlichen Rechts (7th edition), Vol.
1, p. 240, V. 1.

The nature of the juristic mathematics of concepts can be shown by

means of a comparison of juristic with mathematical concepts. Juristic
concepts are empirical. They are a synthesis of the norms that govern an
empirically given legal relation, and that are so essential to it that they
distinguish the given legal relation from other similar relations. By means
of formal logic therefore no other norms can be derived from a concept than
those that have been utilized in creating the concept, for formal logic
cannot, by any means, provide new thought material; it can only unfold
such material as is already in existence and analyze it.
Mathematical concepts on the other hand are arbitrary, or as the famous
French mathematician Poincaré has called them, conventional. Properties or
necessary characteristics are being attributed to the concept, quite without
any concern as to the question whether they are actually conceivable or not.
Take for instance the imaginary number, infinity, Riemann’s plane. And it is
not required that the deductions that may be made from the concept should
in any way harmonize with reality; all that is required is that they should
not be self-contradictory. This disregard of reality by mathematics is
absolutely justifiable; for the mathematician does not lay claim to any
ability to exercise control over the world of reality by means of his
concepts. Mathematical thinking is a source of purest delight to some
natures which are especially adapted to it; to others it is, in part,
inaccessible; upon others, among whom, unfortunately, I must be
numbered, its effect is positively repellant.
But it is not impossible to treat empirical concepts as if they were
mathematical concepts, to attribute properties to them arbitrarily, and to
make deductions from them that are foreign to reality. Natural philosophy
in past centuries has followed this path often enough. A procedure of this
kind suggests itself to juristic science with an exceptional degree of force
because of the fact that there actually is in its concepts something arbitrary,
conventional. The legal institutions, the norms for decision, the statutory
provisions, from wliich it draws the essential characteristics of its concepts,
the inner empirical necessity of which often is not apparent to us, are the
product of the labor of the human mind, and that which is being adduced on
the basis of this material often makes the impression that, at the pleasure of
the originator, it might just as well have been arranged otherwise. It surely
was purely a matter of convention that the Roman jurists of the Empire
made the order of the family of the peasant proprietor of the days of the
Punic war, which had long since disappeared, the basis for the concepts of
the law of the family; that the French Civil Code made community of
movables, and the German Civil Code community of administration, the
statutory régime. And how many other things connected with each of these
legal institutions might be regulated in a way quite different from the way it
was actually done ! The similarity between juristic and mathematical
concepts indeed is merely an outward one; for the concept it™ self was not
created arbitrarily, its empiric basis alone rests ■ —and this, too, is only
seemingly true — on human volition. Nevertheless this superficial
similarity has been sufficient to produce a juristic method which is closely
related to the mathematical method» But this alone does not suffice to
explain the enormous importance of the juristic mathematics of concepts.
We must add the remarkable fact that juristic science, although it is
basically different from mathematics, has at all times had a strange power to
charm mathematical minds. A juristic mathematician is not endeavoring by
means of juristic science to satisfy the needs for which the latter really
exists, but to secure the high intellectual enjoyment which analytical
mathematics or the theory of numbers could afford in a much less
questionable manner. Like the mathematician, he creates juristic concepts
which, in part at least, he creates arbitrarily; but unlike the mathematician,
since the great antinomy of juristic science at once asserts itself, he
demands that the conclusions, which he arrives at by unfolding the concept,
be at once realized; that they be recognized as norms; that the judge render
his decisions, and the legislator legislate, in accordance with them. In his
judgment the solemnity and dignity of the art to which he has dedicated his
life lies in this very thing, that it bestows entity upon the figments of his
imagination.
The juristic mathematician may be found in all latitudes, occasionally
even among the Romans, where he flourishes most luxuriantly perhaps in
the doctrine of the ius accr e scendi 1 in case of legacies, and among the
present-day French and English; but the Continental common law was an
extraordinarily favorable soil. For the universalizations, the historic basis of
which had long since been forgotten; the norms for decision, the social
justice of which belonged to a distant past, which, in the main, we cannot
understand; the statutes, the expediency of which, as in the case of the lex
Falcidia, is a mystery to us today: all of these things could very easily —
here more than elsewhere — give rise to the idea that a considerable
portion, or the greater portion, of the law is arbitrary and conventional. The
Historical School, which ought to have fostered an understanding of the
economic and social relations out of which the legal propositions, as is well
known, arose in Rome, has always been antiquarian rather than historical,
and was not equal to a task of this magnitude. Inasmuch as the Historical
School accentuated the practical necessity of going beyond Roman law, it is
easily understood that the mathematics of concepts had never flourished so
abundantly as under the domination of the historical school in Germany. Its
most outstanding representatives were preponderantly mathematicians, to
wit Puchta, Vangerow, Windscheid, Brinz, and, in his earlier days, Jhering.
It may suffice to point out the things that once upon a time were
"conceptually" impossible, to wit assignment of an obligatory right,
testamentary creation of a foundation which was to be established by the
testament itself (Staedelscher Erbfall) ; the maxim Kauf bricht nicht Miete,2
the servitude of a shareholder in a parcel of land belonging to the share
company. On the other hand it was "conceptually" necessary that a swindler
who sold a cargo of coal which was on the high sea to several people should
be permitted to recover the whole purchase price from each buyer in case it
sank at a later time, because of the maxim that the buyer bears the risk. I
wonder whether a Roman would ever have rested content with a formula of
this kind, and whether he would not have freely found a suitable norm.
1 Anwachsungsrecht.
2 Purchase does not terminate a lease.

A typical instance of the mathematics of concepts is the concept of

ownership of the Historical School. Its empirical basis comprises the
following: ownership of movable things, which as a consequence of its
economic purpose, as a rule, permits every possible use and consumption;
the Roman ownership of the fundus Italiens and the modern ownership of
land which have arisen out of the removal of all burdens and charges from
the land, both of which, because of the Roman and of the present-day
system of landholding, permit of extensive rights of taking fruits and
profits; the right of the lord in land which is held in feudal tenure. Now
these, I take it, are legal relations which economically are so unrelated that
it is scarcely possible to create an empirical concept common to all of them,
for this empirical concept must needs be expressed in economic terms. The
Romans were able to get along without a concept of ownership in the ager
publicus or in the solum provinciale, and the English of today can quite well
dispense with a universally valid concept of ownership; the older
Continental common law juristic science, too, did not have it, but made a
distinction between dominium directum and utile. The Historical School
was not willing to dispense with an omnipresent ownership. Searching for a
concept which should cover the most heterogeneous relations, they
inevitably had to arrive at a concept that was altogether uneconomic. The
most acceptable formulation, perhaps, is that of Windscheid. The latter
defines it as follows: Ownership is the right which in itself makes the will
of the person entitled decisive as to the thing in the totality of its relations.
Manifestly, this concept is absolutely arbitrary. If one compares it with an
economic juristic concept, e.g. the law and right of pledge, of usufruct, of
sale, one will perceive at once that, as contrasted with these, it does not
import any economic relation at all, but is merely a formula, designed to
give a common name to a man's manifold economic relations. Nevertheless
a number of inferences were drawn from it, to wit that there can be only one
ownership of a corporeal thing; that a real right in a thing that one owns is
impossible; that the extinction of a real right frees the thing from the
limitations imposed by the real right; that in the actio negatoria the owner
need prove no more than that he is the owner. Do these norms really flow
from the concept of ownership as Windscheid has formulated it? The
words, indeed, are so indefinite that they can mean not only this but many
other things besides. But could one not speak of ownership even if these
four elements were not present? It is certain that, in various legal systems,
the owner may have the right to hunt, the water right, the mining right in a
thing which he owns; that if another has the real right to hunt and to mine,
and this right is destroyed, the right of the owner is not by this very fact at
once extended so as to include these rights; that the owner remains owner
even if in the actio negatoria the burden of proof is regulated differently.
On the other hand one might say of the usufructuary that he can have no
right in the thing as to which he has the right of usufruct; that the
destruction of a real right frees his right from the limitation that had been
resting upon it, and that it is sufficient if, in an actio negatoria, he
establishes his right. After this, not much remains of the concept of
ownership. But the norms, which are said to flow from the concept, in
actual fact originated in Roman law; they are therefore empirical, and it is
undoubtedly quite arbitrary to say that since they arise from the concept,
they are valid even where their validity cannot be established empirically.
The allocation of the burden of proof in the actio negatoria is a part of the
latest development of juristic law, and is so far from being conceptually
necessary that it has failed to gain universal recognition.
A second typical example of Savigny's mathematics of conceptions is his
doctrine of essential error. According to Savigny the legal transaction is,
conceptually, a declaration of the will. Consequently, there is no legal
transaction where, because of essential error, the will and the declaration do
not coincide, whether or not there be fault (Verschulden) on the part of the
person in error. Since the contract is only a species of legal transaction, he
says, the above statement applies also to the contract, even though the other
party be not, and could not be, aware of the error. In so far as the legal
transaction, empirically, is nothing more than a declaration of the will, this
doctrine is correct, i.e. it is correct as to gifts, and other transactions
imposing a unilateral obligation (suretyship, acknowledgment,1
ratification), declarations by last will and testament, agreements of family
law, perhaps also most compromises. But as applied to mercantile contracts
it is manifestly incorrect. It is so far from being conceptually necessary that
the courts, as my investigations of the course of decisions of the last century
have shown, have only rarely, and then solely on doctrinal grounds,
rendered decisions according to Savigny's theory. Where an agent without
fraudulent intent meant to enter into a contract in the name of the principal,
and the other party had no means of knowing this, no attention has ever
been paid thereto, although this is perhaps the most common instance of
error in persona.
These two examples afford a deep insight into the nature of the
mathematics of concepts. The concept of ownership which the Historical
School has created and Savigny’s concept of the legal transaction have
arisen from observation of actual life and are therefore empirical. We know
the individual legal relations which constitute the basis of these concepts;
the norms which purport to result from the concept belong, in part, to the
existing law. But these concepts were not abstracted carefully from the facts
of experience like those of the natural sciences, nor were they created, like
the concepts of practical juristic science, with a view to the requirements of
the application of law. They are uni-versalizations of reality; they are not
scientific, however, but superficial, unprofessional, containing a series of
quite arbitrary admixtures, like those of the older natural philosophy or of
Shelling's philosophy, by which, as is well known, Savigny and Puchta
were influenced. Nor are they practical, for all consideration of expediency
is foreign to them to begin with. The fact that formal logic deduces norms
from them is due to the fact that these identical norms were utilized in the
creation of these concepts. Formal logic, at all times, can derive those
norms from a concept which it has first put into it. In so far as norms have
been created empirically, they are richtig (correct), but if they are not based
on reality, they are independent creations of juristic science. They differ
from the other parts of juristic law in this, that, seemingly at least, they were
created independently of social influences, dis» tribution of power,
considerations of expediency, or trends of justice. But to this very fact the
success of the mathematics of con™ cepts may, in a great measure, be
attributed. The latter attained its fullest development at a time when it was
believed that all creation of law should be reserved to the legislator.
Whenever the administration of law found that which was offered by the
Roman and also by the modern legislator insufficient for its purposes, that
which men were least unwilling to place at its disposal was a juristic
technique which was altogether divorced from society, and which purported
to be derived exclusively from concepts. It can be shown that when Savigny
and Puchta presented their doctrine of a scientific law they had this kind of
creation of law in mind. Others, it is true, would have none of it. To speak
of juristic science as a source of law, according to Windscheid, is to confuse
the woman in childbed with the midwife.
1A general term referring to a number of legal transactions, e.g.
acknowledgment of indebtedness, of liability, of legitimacy, of
validity of opponents' claims, etc.

A finding of norms which is absolutely divorced from social influences,

and which consists in logical inferences from given concepts, can scarcely
be called a creation of law, and a juristic science which is confined to it can
scarcely be considered a source of law. The mathematics of concepts,
however, as a matter of fact never attained its goal. Artificially created as
they were, these concepts were always susceptible of transformation
wherever the distribution of power, considerations of expediency, and
trends of justice demanded it. Whether the transaction which was entered
into by an agent is treated as having come into existence by the will of the
agent or of the principal depends upon which construction yields the more
satisfactory result. And admitting this, we have again recognized the social
influences. Moreover on countless occasions the mathematics of concepts
has been used as a means of warping justice.
The last building stone employed by the Continental common-law juristic
science is its Systematik (systematism). The origin of the latter does not lie
in the requirements of the practice of law. It is true, books that are merely
practical, that are designed exclusively for the practice of law, must needs
have a certain orderly arrangement; but this arrangement is designed merely
to facilitate quick orientation; like the alphabetical arrangement of
dictionaries, it has no effect whatever upon the content. The systematism of
juristic science grew out of the necessities of teaching. It is the function of
teaching to present the material to the learner in an orderly, lucidly
organized arrangement. A learner will remember a few comprehensive
truths more easily than a great number of unrelated details. While it is
important for practical purposes to state at each point everything that refers
to that point, a teacher will strive to formulate as many general principles as
possible, and derive particulars from them. Hence the endeavor to group the
legal phenomena as to which general statements can be made, and to
discuss the legal relations to which the same rules are applicable, in the
same chapter. It is true, these are external considerations, but probably the
legal relations which have been grouped because the same rules, let us say,
of procedure apply in case resort is had to law to enforce them are related
internally as well. The division of rights into real and obligatory rights,
which is connected with the important distinction between adiones in rem
and in personam, the orderly statement of the rules concerning real rights
and concerning the law of inheritance on one hand and concerning
contracts, damages, and other obligatory rights on the other, have originated
here. Accordingly Systematik begins at Rome in the text-books. The system
of Gaius, which surely was derived from an older source, dominates the
teaching of law down to the time of Justinian and is found in the Institutes
of the latter. In the Middle Ages and in modern times, the elucidation of
Justinian's Institutes serves the purpose of an introduction to the study of
law, and since the seventeenth century numerous books have been making
their appearance in Germany which contain the whole body of legal
material, arranged according to the system of the Institutes. It is followed
by the French Civil Code and the Austrian Civil Code, and, with a few
exceptions that touch the surface only, by the pandect system of the
nineteenth century, which begins with Hugo and Heise, and by the German
Civil Code.
At first jurists were not conscious, to any considerable extent^, of the
inner interrelationship of the legal institutions which was being expressed
quite undesignedly by these systematic presentations. But in the course of
time it became more conspicuous, and occupies the foreground in the
systematic endeavors of the Ramists and of Donellus. Later the legal
relations which were being dealt with together appeared as variations of the
same legal relation. The periods of life appear as species of status;
ownership and the other real rights, as classes of real rights. The more
comprehensive legal relation receives a distinct name and a universal
definition is being sought for it. The next step is, that all legal precepts
which contain identical provisions for several related legal relations are no
longer referred to these individual legal relations but to the legal concept
which embraces them all; and in the end, unless there are particular reasons
against doing so, everything that is predicated as to one of these relations is
considered valid as to all of them. The achievement of Systematik, then, is
the consistent continuation of the process of universalization. Accordingly
we find that even the Romans had universalized a number of norms solely
in the interest of systematic presentation, e.g. the norms about actiones in
rem and actiones in personam, about obligations naturaleSj about liability
for fault and for delay in contractual relations. An admirable modern
example of systematic universalization is Windscheid’s doctrine of claims
based on unjust enrichment. Systematic universalization is very closely
related to juristic construction. The Romans very often employ
universalization for purposes of pure construction. When they subsumed the
agreements for work, labor, and services under the locatio conducilo
(contract for letting and hiring), their object was to make them actionable
contractas. The attempt to make barter actionable in the same way has, it is
true, failed.
The German Historical School, however, went one step beyond this
universalization. Even the jurisprudence of constructions was able to utilize
for its purposes the fact that identical facts and identical legal effects occur
in distinct legal relations. When the Romans construed the payment of an
obligation by the surety as a purchase of the obligation, they did this on the
basis of the observation of the fact that both in the payment of an obligation
and in the purchase there is a counting out of money. They gave the same
effect to the counting out of money in a case of payment that it would have
in a case of purchase« In this case the counting out of money is lifted out of
its connection and is treated as an independent legal transaction, the effect
of which is the right to demand the transfer of the obligation. Likewise the
construction of the offene Handelsgesellschaft (unlimited mercantile
partnership) as a partnership contract with mutua praepositio of the partners
is based upon the separation of a legal effect of the praepositio, of the
power of agency, from the praepositio, and upon a combination of it with
the partnership contract, which in its nature is quite foreign to the
praepositio. The characteristic feature of this kind of construction is that a
certain fact or a certain legal effect which is found only within the sphere of
a legal relation as a whole is singled out and used as a building stone in the
construction of another legal relation.
According to this method the German legal historians have been building
the "general part" of the whole system of private law and of the law of
obligations. It is based upon the conscious endeavor to utilize constructively
certain facts and legal effects, which occur again and again in the most
diverse legal relations. On the same basis rest the doctrines of conditions, of
qualification as to time, of error, of duress, and of fraud, of representation,
alternative obligations, contracts for the benefit of third parties, of plurality
of creditors and debtors, of payment, and of many other things. In
connection with these, another universalization was introduced. A precept
as to one of these elements which was found in the sources in connection
with a certain legal relation was referred to this element as such in whatever
legal relation it might be found. A typical illustration is the way in which
the Continental common law juristic science dealt with the retro« active
force of the condition. A series of decisions recorded in the sources, which
referred exclusively to certain individual legal relations in which a
condition occurred, or perhaps only to one individual case of that kind, was
applied quite indiscriminately to every condition, whether it was contained
in a testament, a marriage contract, a gift, a purchase, or the giving and
taking of a pledge. The way the doctrine of mistake in a legal transaction
was dealt with is stranger still. Interesting specimens of this method are also
found in the doctrines of representation and of the protection of legal rights.
Systematik was of much greater importance for the notion of a perfect
legal system than was the mathematics of conceptions. A system indeed is
nothing more than an arrangement of that which is in existence, but in
addition it always gives rise to a conception of the whole. Before long the
legal system was treated as if it comprised not only the legal material in
hand but the whole law. The concepts, whose content no longer was
individual legal relations but whole classes of legal relations, became so
comprehensive that they took on the appearance of logical categories,
which comprised the whole world of legal phenomena. If there was
something that was not subsumed under the concept of contract of a certain
kind, it was a contract simpliciter; if it was not a contract, it was a legal
transaction; and if it was not a legal transaction, it was a juristic fact, to say
the least. A private right was either a right of family law, a real right, or an
obligatory right. Much skill was employed to determine whether
prescriptive rights and perpetual charges upon land belonged under the
former or the latter head, or whether possibly they were to be placed under
a third. Copyright and the right to one's name seemed to defy classification
under any of these heads. Accord™ ingly the right to one's name became a
right of personality, the real rights became absolute rights, which included
among other things the law of copyright. The important thing was that a
place was found for everything in the legal system, and that norms for
decision, too, were to be found at each of these places. As it was, the
Continental common law possessed a vast wealth of norms, but this
procedure of making every norm for decision which had been created for a
given legal relation or for a given case applicable to all kinds of legal
relations, related and unrelated, increased the number of norms a thousand-
fold. The life™ work of Schlossmann was directed chiefly against this kind
of finding of norms.
Manifestly this method of dealing with the law presented some- thing
labeled Systematik that no longer was Systematik at all. Its object was not a
presentation of the material of the sources in an appropriate arrangement
but instead an attempt to present an entirely new content. It surely is not one
and the same thing that a norm which decides a case of mistake in a
transaction of purchase be limited to a transaction of purchase and that its
scope be extended to every contract, nay, what is more, to every legal
transaction. Moreover these jurists were not drawing inferences from
analogy. Every analogy must be justified by a similarity of legal situation.
But the jurists were proceeding here as if all of these norms for decision had
been laid down as principles in the corpus iuriSj and as if the individual
decisions of the sources were merely applications of a principle applicable
to all of the legal situations that had been collected. This was indeed a gain
in the number of norms, but to a great degree it was a questionable gain, for
in the last analysis the important thing is the kind and nature of the norms.
A decision that might be quite satisfactory for an individual case will often
be ill adapted to the legal relation as a whole. In most cases it will be
absolutely impossible to find a norm that will be equally applicable
everywhere, e.g. in the law of the family, of things, of obligations, and of
inheritance. In fact the doctrines of conditions, of plurality of creditors and
debtors, of conflict of claims, contain more controversial questions than
legal propositions. Every jurist knows how to deal with a contract of
insurance or of assumption of an obligation ; but what if these two
contracts, which are in no wise related to each other, are submitted to him
as contracts for the benefit of third persons? In consequence of all this, the
Continental common law juristic science of the nineteenth century consists
of two quite distinct groups of material. The law of persons, things,
contracts, and the family deals with formations that are imbued with life ;
the general part of the system and the general part of the law of obligations
is a playground for bloodless abstractions that scarcely touch the earth with
their toes. In the Systematik of the historical school, the great antinomy of
juristic science, which is continually at work transmuting forms of thought
into norms, is celebrating its last, its most fateful triumph.
But we must not undervalue Systematik on this account. It can render
only those services for which it exists. Systematik is not juristic science, and
therefore its function is not to put the law into condition to meet the
requirements of the administration of justice. If it is misused for this
purpose, as was done by the Continental common law juristic science, it is
in fact a construction, but a construction undertaken according to points of
view quite other than those of juristic science, a construction in which the
economic and social relations in which the legal institutions appear are
being given expression to, at most, by sheer accident only. Undoubtedly a
great deal of juristic scholasticism must be attributed to the Continental
common law systematic constructions.
We must not however overlook an important difference between the most
important, who are also the most numerous, adherents of the Historical
School, on one hand and the jurists of other schools on the other. No other
jurists were as indifferent as they to the question whether or not the results
of their constructions or of their systematic rinding of norms were in
harmony with their sense of justice. This must be attributed in part to their
conception of the function of juristic science. Inasmuch as it was primarily
incumbent upon them to ascertain the intention of the originator of the legal
proposition, they were in a position to decline to assume personal
responsibility for the decision. Again, the fact that the jurists who have
attained a great reputation in the Historical School were scholars rather than
men of affairs, as one might expect in view of the preponderantly scientific
trend of this school, may have been of still greater importance. A professor
of anatomy used to ask a student, who, while dissecting a corpse was trying
to rectify a false cut by following it up with a right one, whether he would
also rectify his false cuts in the case of an operation on a patient. For there
is a difference between developing one's manual skill and one's acumen on
a corpus vile and on living human flesh.
This discussion has led us to a point where we can survey the work of the
Continental common law juristic science in its totality. Of course, for a long
time no thinking person has failed to realize the obvious truth that the
Continental common law is not the law of Rome nor even that of Justinian.
If one should eliminate from the Manuel of Girard everything that refers to
the ante-Justinianian law, one would by no means have a textbook of
pandect law. The text-books of Puchta or of Arndt, even though they utterly
ignore post-Roman creation of law, and confine their presentations to
Roman legal material, are something quite different from dogmatic
presentations of Justinianian law. A further question is wherein these
differences consist; as far as I can see, it is in creation of concepts, in
constructions, and in Systematik.
There can be no doubt that the pandectists of the Historical School were
honestly convinced that they were defining the legal concepts according to
the law of Justinian. But in actual fact they did not do this. Every one of
their concepts had to be formulated at the outset so as to include not only
the Roman but also the modern phenomena. The definition of ownership
indeed was suitable for the fundus optumus maxumus, which was being
discussed by the jurists of a time as late as the days of the Republic, but it
had to cover not only this but also the ownership of the feudal lord and of
the holder of shares of stock. Even if the same words had been used by
Labeo and Sabinus, they would have meant something different in the
mouths of the latter from what they would mean in the mouths of Vangerow
and Wind-scheid. In the case of more concrete concepts, especially those of
the law of pledge or of the law of obligations (for an example, let us say,
delegatio) this fact is apparent at once. No doubt the pandectists of the
Historical School endeavor to state every legal proposition in the form in
which it was to be valid according to the law of Justinian. But their very
statement was a construction of it. Every word they employed was not used
with reference to the Roman situations but was adapted to the modern
German relations. In all these respects they were children of their time, and
— a fact that is still more significant — they were the heirs of the
practitioners from the eleventh to the eighteenth century. The fact that their
Systematik was not that of the Roman jurists would have made no
difference. Every legal his- torian creates a system for his presentation
which in his opinion is most appropriate to the matter he is presenting. But
their system was not a system of an historical presentation of the law of
Justinian, but a picture, clumsy, schematic, and imperfect though it was, of
the legal organization of a modern society. At the same time, thanks to their
Systematik they arrived at a system of doctrine that was utterly foreign to
the doctrine of the Romans; and this fact is of so much greater importance
in view of the fact that many, e.g. Savigny, Puchta, Unger, consider the
dogmatic fruit-fulness of the system the chief element of value in the
science of law.
The day of the Continental common law juristic science is done. The
Civil Code for the German Empire has driven it out of its last place of
refuge, and no power in the world will be able to restore its glory that has
passed away. Whatsoever of value its labors of more than two thousand
years have produced must be preserved for the future by the sociological
science of law. But the latter will not be a juristic science. The deathless
function of all juristic science, however, i.e. to make the law subserve the
ever changing, ever new needs of life, will remain. No code will be able to
destroy it. For this task there will always have to be a juristic science,
though it may be of a nature different from that of the present, though it
may employ other instrumentalities, and have other aims. That it will be
different from that of the present is self-evident; for every age has not only
its own art, its own science, religion, and philosophy, but also its own
juristic science. The Roman jurists, too, presented something different in
each century. Justinian presented something different from that which the
classical jurists presented; and the Romanists of the Middle Ages and of
modern times do not present the Roman law of Justinian.
In the same way, the juristic science of the future, though organically
connected with the traditional materials, will find that it must refashion
these materials in order to satisfy the new requirements. It is true that the
sociological science of law must needs furnish the scientific basis; but it can
take root only in a soil which has been furrowed and plowed by the
Continental common law juristic science. There will be a repetition of the
process that has been going on wherever sciences have grown out of
practical activities. The natural sciences have repaid all their borrowings
from medicine with compound interest. The juristic science of the future, I
believe, will discard for good and always all the mummery of creation of
abstract concepts and of construction. But it must be admitted that these
things always only served the sole purpose of concealing a necessary social
process from the eyes of busy bodies. Free finding of law is not, as some
have thought, a finding of law that disregards the statute, but a finding of
law that is untrammeled by useless and superfluous confinement in
abstraction and construction.
 In the years last past many a bitter word has been spoken concerning
"pandectology," and although these words were not spoken by me, I will not
deny that they were spoken, for I know that I bear a great deal of
responsibility in the matter. In the heat of battle, this was justified, and
perhaps it was necessary. I there™ fore feel it incumbent upon myself to
point out the great achievements of "pandectology." I would remain true
especially to the memory of Bernhard Windscheid. In my youth I studied
his writings with great enthusiasm, and if I and those who are pressing
forward with me have gone beyond him, we are indebted to his teachings
for it. Time has done the rest. Before long the eyes of the last of the German
jurists that have seen a living Continental common law will have been
closed in death; the last voice that has taught a living Continental common
law will have been silenced. Let them see to it that the valuable creations of
the labors of two thousand years, separated like wheat from the chaff, are
handed down to the coming generation. What they do not save will be lost
forever. But the three volumes of Windscheid's Pandects will remain as a
link between a great past and an unknown future. And therefore we shall be
grateful to Kipp for keeping this treasure abreast of the times with a tireless
diligence that is worthy of its great creator.
XV The Function of Juristic
Science

THE rôle of juristic science in history is quite different from everything

that men have from time to time thought to be its function, just as our
notions of the meaning of our activities can give us no information about
their true significance. Juristic science has never been what, at the present
time, it is generally thought to be? i.e. a presentation of that which has been
delivered to us by tradition as law, nor has it ever been a set of rules
directing us how to proceed on the basis of the rules that have been
delivered to us as law. A juristic literature which has no other aims, such as
the English text-books and in part our own Lehrbücher, is not juristic
science, and no legal system could subsist on intellectual juristic labor that
does not do more than that. There must always be a creative juristic science.
But in order to appreciate its labors from every point of view, we must
consider separately the three elements that are comprised in it, i.e. the
element relating to the function of the attorney; the element relating to the
legal transaction; and the element relating to the judicial function.
Let us begin with the function of the attorney. The forms of the procedure
at law, in a sense, are the weapons which society, or the state in the name of
society, has placed at the disposal of conflicting interests. The means that
society has provided for this purpose are limited in number; for society
could not possibly provide aid for all interests that are being contested or
attacked. It must select those that are most important and most worthy of
assistance. But no society could at the outset state once for all which
interests it will protect; for in every developing, progressive society new
interests are continually gaining importance, and those that have already
been recognized are continually being subjected to new attacks. Whether
society will or will not protect an interest is determined by the courts. It is
the function of the attorney to persuade the court that society has provided a
remedy for the interest which he represents. This is the art of
Klagebegründung (establishing the basis for an action). Secondly, he must
show the court that the interest in question is worthy of protection. This is
the art of Beweisführung (making proof). If the attorney has persuaded the
court, he has secured protection for an interest to which it had been denied
until then, or he has secured protection against an attack to which the
interest had been exposed until then. This, doubtless, is a step forward in
legal development, which he has brought about by his individual activity,
The proceeding at law originally merely served the purpose of preventing
feuds or of mitigating and regulating them. By skillfully developing the art
of establishing the bases for actions, the inventive genius of the attorneys
has brought it about that the legal proceeding also grants satisfaction for
injury suffered, and that it finally becomes a universal remedy for the
establishment of justice without a feud. The book of Declaireil, entitled Les
preuves judiciaires en droit franc, which in general affords the most
profound insight into the nature of the most ancient form of legal
proceeding, has shown that the law of proof owes its origin, growth, and
development to the activity of the parties; that it was not created by the
judges prescribing the mode of proof to the parties, but by the parties
continually seeking and finding new ways of persuading the courts of the
justice of their respective causes. The forms established for the pursuit of
one's right, for the making of proof, for compulsory execution, are given at
all times by the traditional organization of the courts, by the content and the
nature of the means at the disposal of the courts for giving effect to their
powers, by the form of the proceeding at law. But it is the business of the
attorney to adapt these over and over again and again to the attainment of
new ends. The attorney who for the first time brought the action de
arboribus succisis when he brought suit for cutting down vines would have
obtained the same protection for the interest in vines that had already been
secured for the interest in trees if he had not made the mistake as to form
that Gaius speaks of.1 A similar service was rendered by the German
attorney who, according to Hede-mann's report, brought action in order to
have the defendant enjoined from defaming a woman, and by that other
attorney who brought about the well-known Freskenurteil of the Imperial
Court (Reichsgericht).
1 Gaiusj Book 4, § 11.

The branch of juristic science that deals with the legal transaction is
chiefly concerned with the legal document, although it is also concerned, of
course, with the oral transaction. The legal document, like the legal
transaction in general, does not exist exclusively for use in the proceeding
at law. Its chief function is to provide the order of the legal relation. It is the
task of the draftsman of the legal document to organize the relation that the
parties are about to establish, to find the legal means whereby their objects
can be realized, to state their duties and obligations in correct legal terms.
This order, which is based on the document, is in itself a product of creative
juristic science. That which the parties vaguely had in mind is given a fixed,
definite, tangible form by the jurist, without which it could not exist. As a
result each one of the parties concerned knows exactly what he is to do and
not to do. It is well established that the jurists who were drawing up legal
documents have created the Kommenda, and the economic community, i.e.
the right of the single heir (Anerbenrecht) among the German-Austrian
peasantry. But it is immaterial whether the legal relation is a new one in its
entirety; the insertion of a clause into a well-known contractual form may
be a creative act.
But the branch of juristic science that deals with legal transactions must
not content itself with merely organizing; it must make provision for the
protection of the products of its labor against attack and violation. We are
not concerned exclusively, nor even primarily, with the case in which
recourse is had to law. The forms handed down by Cato refer both to
actionable and, with a single exception, non-actionable agreements, but it is
certain that iuratnentum, satisdatio, pignus are of much greater importance
than actio and exceptio. The branch of juristic science that deals with legal
transactions has made extensive contributions particularly to the
development, if not to the invention, of security without resort to litigation,
from the Roman fiducia and the ordinance of German city law down to the
modern Vinkula-lionsgeschäft.1 The more imperfect the administration of
justice, the more seriously people will endeavor to put the transaction in a
form that makes resort to law unnecessary. Descriptions of commerce in the
Orient show to what lengths people will go in order to attain this end.
Nevertheless the chief function of the branch of juristic science that deals
with legal transactions is to put the relation into such form as will enable it
to prevail even if resort is had to litigation, and the parties are interested not
only in having a legally enforceable cause of action but chiefly in a
proceeding that is free from difficulties and delays and does not involve
much expense. Up to this point, then, the aims of the branch of juristic
science that deals with legal transactions are not essentially different from
those of the branch that deals with the function of the attorney. The object
of this branch like that of the other is to utilize the means that are at hand
for the best possible protection of the interests in question. Like the branch
that deals with the function of the attorney, it does creative work for
interests that without it would either be not protected at all or, at best, very
imperfectly, that are indebted to it either for all the protection they receive
or, at least, for the fact that the protection they receive is effective. And
often enough it is a protection that the existing law was inclined to deny to
them. The pledge in the form of a sale with right of repurchase, the
forbidden loan at interest as the Kommenda, unenforceable obligations
made effectual by means of contractual penalties or bills of exchange, are
so many triumphs of this branch of juristic science over backward or
undeveloped administration of law.
The work of the attorney-at-law and of the lawyer who draws up legal
documents, therefore, is a technical one. They must, in the first place, get a
clear understanding, through first-hand observation and study, of the
interests that are entrusted to them in order that they may be enabled to
make them comprehensible to the courts, and, by making proof, induce the
courts to take cognizance of them. The imperfection of human nature,
limited means and limited understanding, with which the courts are afflicted
like all other creations of the human mind, render a technique of this sort
indispensable. It would be superfluous if the courts were omnipotent and
omniscient, just as we could dispense with the telescope and the microscope
if our eyes were so much more efficient. Therefore every improvement of
the tools of the profession renders a considerable amount of juristic
technique superfluous. Such improvements are the transition from the
procedure by legis actio to the procedure by formula both in Rome and in
England, the substitution of the direct procedure for the indirect one on the
Continent, which was brought about by permitting a free evaluation of
proof in the place of a restricted one.
1This is the ordinary transaction whereby a seller of goods who
ships goods under a negotiable bill of lading and a draft obtains an
advance from his banker on the security of the paper.

The attorney and the lawyer who draws up legal documents attain their
purpose only if they succeed in persuading the judge to adopt their views.
Their labor is in vain unless the judge considers the remedy a suitable one,
the proof admissible and sufficient, and — most important of all —
recognizes the interest which is seeking protection as worthy of it. The
judicial decision therefore is a decision of two questions. In the first place,
it decides the technical question whether society is able and willing to grant
protection to the interest that is being asserted, and whether the existence of
the latter has been demonstrated to the satisfaction of the court; and in the
second place it renders an independent decision on the question whether the
interest merits protection. And if it is true that the attorney and the
draftsman cannot possibly limit their activity to representing interests that
have already been recognized by the courts, but that they must be ready at
all times to bring about the recognition of interests that are newly arising, it
follows that they must again and again raise the technical question as well
as the question whether the interest is worth protecting, and thereby again
and again confront the judge with a new task.
The norm according to which the judge renders his decision is the
outcome of a most complex proceeding. It was necessary for the attorney or
the draftsman to have knowledge based on actual observation of the relation
of life within which the conflict of interests had arisen, to put it into a form
suitable for protection by law, and to demonstrate its existence to the judge
from his own knowledge as far as possible, through the testimony of
witnesses and experts, and by means of documents (in ancient days perhaps
also by means of oracles, judgment of God, and the casting of lots). This is
followed by a balancing of interests on the part of the judge, the
determination of the question whether the interest merits protection. This in
turn leads to universaliza-tion, reduction to unity, and finding of norms. Of
course it is a matter of little importance whether the balancing of interests is
done independently or on the basis of norms that are already in existence.
 We have been considering the contributions made by the attorney, the
draftsman, and the judge separately for the sake of a better understanding of
the nature of the process as a whole. Ultimately, however, the contributions
which the attorney, the drafts» man, and the judge have made to the norm
for decision must be fused into a unit in the norm itself. In fact often
enough the judge, for lack of an attorney or of a draftsman, undertakes the
technical problem himself. And he often enough solves it in a way quite
different from the way the latter would have solved it. Just as all of these
elements enter into the norm for decision, so they must also enter into the
legal proposition, which contains a norm for decision; for the latter is
merely a more developed form of the norm for decision. And in the legal
propositions of judge-made law, which are to be found in the reasons given
for the decisions, we find all these elements side by side, to wit observation,
putting into proper form, proof, balancing of interests by means of
universalization, reduction to unity, and finding of norms. But in the legal
propositions presented in juristic literature or in legislation, these elements
have become intermingled and it is often difficult to separate them. The
composition of the legal proposition appears historically only when the
latter is traced back to its inception. I shall attempt to do this in the
following discussion.
When the four men promulgated the law to the Salic Franks (per très
malleos)J they most probably were sincerely convinced that they had not
overlooked anything that was essential. Today every young jurist who is
preparing himself for his examination finds out to his sorrow how greatly
they were in error, how much more he must know about the law of the Salic
Franks, merely in order to pass his examination, how small a portion of the
whole was embodied in the lex.
For each homicide the lex Salica provided a wergild, graduated according
to the rank of the person slain. These provisions are stated in a few, readily
understood propositions. But in the background there is the whole of
Frankish society, organized according to rank and other considerations.
Who may demand the wergild? Who other than the guilty person, is
obligated to pay it? What is the manner of payment? What happens if it is
not paid? The number of such questions concerning the provisions about the
wergild is infinite. On the basis of proof and of his own knowledge, the
judge must find additional norms; and, on the basis of these norms, the
judgment determines whether the plaintiffs are entitled to the wergild,
whether the defendants are liable, whether or not it has been paid according
to law. Of all of these questions, not a trace is to be found in the lex Salica;
manifestly, because they had not yet been brought to the attention of the
authors of the lex; because, unlike the very provisions about the wergild,
they had not yet been made the subject matter of the juristic science of the
Salic Franks.
A legal proposition about a penalty to be paid by a thief to the person
from whom the thing was stolen presupposes a rather definitely fixed right
of ownership in movables. It follows therefore that there must have been
rules about acquisition, loss, and forfeiture of the right of ownership, some
notion as to the difference between a person who acquires property lawfully
and a thief or a robber. The provisions as to a penalty to be paid by the
abductor, in the case of abduction of a woman, to her father or to her
relatives are manifestly based upon a certain order of the family in virtue of
which the woman is under the power (potestas) of her male relatives, who
also have the right to give her in mar- riage. The content of all of the norms
for decision, therefore, that have been developed into legal propositions
about wergild? theft, abduction of women is being eked out by norms for
decision that have reference to the inner order of the clan, of ownership, of
the family, and that have not yet been expressed in legal propositions.
This is the beginning of juristic science. It is concerned at the outset
solely with a series of norms for decision that can be made the bases of
judicial decisions. These norms indeed are connected with other norms for
decision which are given by the relations of human life. But these are as yet
unknown to juristic science; they lie beyond its horizon, and the judge
acquires them unconsciously from observation of the relations of life. But
the more the science of law develops, the greater is its sphere, the deeper it
penetrates, and the greater are its efforts to prepare for immediate use in the
administration of justice not only the ultimate norms for decision but also
those that these latter presuppose and those that the last named presuppose
in turn. As a result, the legal propositions are becoming more numerous and
detailed. All of this is done partly by means of universalization and
reduction to unity of the inner order of the relations of life, partly by means
of finding new norms, according to the distribution of power that obtains in
society and according to the ideals of justice that rule the hearts of men. In
this way Roman law and English law have developed, and in this way the
Continental common law has been rejuvenated time and again, and in this
way law is developing at the present time.
These norms for decision which have been transformed by the jurists into
legal propositions can be distinguished, even by their outward form, from
those that constitute the inner order of human relations and, in general, the
rules of human conduct, and that, self-evidently, also find their way into the
works of the jurists. One can know them by their fine dialectic formulation,
the formally correct delimitation of justice and injustice. There is no
possibility that men could ever regulate their lives according to such juristic
subtleties.
In the terminology of modern juristic usage one might say that all
development of juristic science consists in the conversion of a question of
fact into a question of law. The only difficulty is that today "question of
fact" has two distinct mean» ings. On one hand it refers to the inner order of
the relations of human life brought about by usage, regulation, contract,
inherit™ ance, last will. On the other hand it refers to a violation of this
inner order, which leads to a law-suit or to a criminal proceeding. But
"question of fact" in the first sense is a constituent part of "question of fact"
in the second sense of the term. In order to know to which one of the
Claudii the inheritance of a freedman belongs, a judge must know the order
of inheritance in the gens Claudia] in order to determine whether or not the
maternal uncle of the slain man is entitled to the wergild, he must have
information about the order of the family of the slain man ; in order to
ascertain whether a contract has been broken, the content of the contract
must be shown.
The question of fact becomes a question of law through univer-salization,
reduction to unity, and free finding of norms. Until this has been done, there
is no antithesis between "question of fact" and "question of law." The jurist
of the hoary past dealt exclusively with questions of fact, for there were no
juristically formulated norms for decision in existence. The law that he
required for the decision of the cases that came before him was supplied by
custom, witnesses, and documents. All of these were questions of fact. The
principles that resulted from the decisions as to questions of fact, after they
had been recognized and universalized, were the first legal propositions.
Ever since that time, every day has added new ones to those that were
already in existence. This is going on today. Although a paragraph of the
code is cited in every judicial decision, as a matter of fact, by far the greater
number of judicial decisions is rendered, not on questions of law, but on
questions of fact. But in all these decisions on questions of fact, general
legal principles are lying imbedded, which practical juristic science brings
forth into the light of day, as a rule in the headings of the collections of
decisions, and also in the annotations to the codes — unpretentious as they
are. Thereafter juristic literature and doctrine take pos- session of them ;
and finally they are added to the mass of existing legal material and appear
in the codes themselves.
A very graphic picture of this method of procedure employed by legal
science is presented by the development of the law of the contract of current
accounts (Kontokorrentvertrag). The first step was that the practical jurists
who dealt with mercantile affairs became aware of the fact that they were
dealing with a peculiar contract as to which there were no legal propositions
in existence. A few judicial decisions were rendered on this contract, and
the judges whose duty it was to render them found it incumbent upon
themselves to make a statement as to the nature and content of the contract,
which was based in part on their own knowledge and in part on opinions of
merchants, on the testimony of witnesses and of experts. At that time all of
this was a question of fact. The decisions were rendered on this question of
fact, i.e. the nature of the relation resulting from the current accounts
(KontkorrentverhäUnis) that had been submitted to them for decision.
Before very long, however, jurists began to realize that this form of contract
was in great vogue in mercantile circles, and that it was as well worth
considering as the contracts of sale and lease. They thereupon began to
universalize the contents of the contracts of current accounts, and by this
process obtained a general law of the contract of current accounts. This
work of uni-versalization was done chiefly in juristic literature, especially
in the book of Grünhut and in the book of Levy, translated by Riesser.
These were followed by a few treatises, text-books, and handbooks, and
finally the results were embodied in the new Commercial Code. Indeed
treating the contract of current accounts as a contract of mutual granting of
credit or as a novation of the individual obligations was a superfluous and
not very happy construction, for when applied to the contract of current
accounts the legal propositions concerning granting of credit and novation
underwent a radical change. The whole process however was typical, i.e.
observation of the legal relation in actual life, a few decisions on the basis
of this observation, universalization of the results in juristic literature,
superfluous construction, and finally codification. The law of the contract
for services has been created before our very eyes by the same process. A
century ago not a trace of it was in existence. The locatio conducilo of the
Roman law was absolutely inapplicable to our relations; the modern codes
were silent on the subject, the French Civil Code contained two articles, one
of which has been rescinded since that time. In Germany — not in France
— there was a small number of legal propositions concerning a few sub-
varieties, particularly concerning the contract for domestic service. Now on
what basis did the judge render his decisions as to suits arising from a
contract for domestic service? On the basis of the content of the given
contract, i.e. on the basis of proof by testimony of witnesses and by
documents, and of custom, as to which, if he did not know what it was, he
heard the testimony of witnesses who did know; and all of this he would
eke out according to justice and fairness. Out of these elements a fixed
judicial custom arose in France, which provided a detailed regulation of the
contract for services; and in Germany there grew up at least a general
consciousness of right and law, which however did give rise to a series of
legal propositions that are now embodied in the German Civil Code.
This appears very clearly wherever, because of procedural institutions,
the question of fact and the question of law are treated separately. As it is
usually understood, the separation is meaningless indeed, for there is no
question of fact that is not, at the same time, a question of law. The question
of proof itself is a question of law. In the matter of proof, we are concerned
not only with the question whether the facts are established but also, in
every case, with the question whether a legal relation arises from these facts
and whether this legal relation has been violated by the conduct of either
party. Accordingly there lies within the sphere of the question of fact the
proof, not only of the existence of a contract, of a section of the articles of
association, of a last will and testament, but of the whole inner order of the
relationSj of all rights and duties which are actually expressed in the words
of the articles of association, the contract, the last will and testament, and,
where a question of unlawful conduct is involved, the proof whether an
interference with a right of another has taken place. The question of law
thus becomes a matter of universalization, of reduction to unity, and of
finding of norms. We may disregard the doctrine, for which Wlassak has
gained general recognition, that the formula in ius concepta arose from the
formula in factum among the Romans, for the reason that, though it is not
improbable, it is too doubtful, and that it is probable that the Roman jurists
quite frequently created a formula in ius concepta without the intervention
of the formula in factum. But even if we disregard the question of the
development, the distinction is quite in harmony with what is being
presented here; for the factum comprises the whole inner order of the
relation, e.g. duties arising from contract and from the patronatus, i.e. the
relation between an owner and his manumitted slave, and the violation of
these duties; the ius comprises the universalization, the reduction to unity,
and the finding of norms. In the development of English law, of which we
have a more comprehensive knowledge, all these things are obvious with an
almost plastic clearness.
When the English discuss the advantages of the jury, they are in the habit
of saying among other things that a jury can decide a case "without making
bad law." This means: Had the judge decided the case, the decision would
have given rise to a new legal proposition of judge-made law, possibly a
bad one, but the verdict of the jury does not do this. This affords a deep
insight into the origin of all juristic law, not only of that of English law. The
jury purports to decide the question of fact; the judge, the question of law;
but if the judge had rendered the decision instead of the jury, a legal
proposition would have resulted. This, 1 take it, clearly indicates the nature
of the distinction between the question of fact and the question of law. All
law has arisen from the universalization of that which had originally been a
question of fact in the individual case, or from the finding of norms on the
basis of this universalization; and the reason why no law arises from the
decision of the jury is that universalizing of this nature, if it is to contain a
legal proposition which shall be binding for the future, must be done, not by
the jury, but by the judge. But unless the judgment rendered by the judge on
the basis of the verdict of the jury happens to be merely an application of an
already existing legal proposition to the case in hand, it always creates new
law according to the Anglo-American view; for, except in the case of a
mere application of law, the judge has always created a new norm by
universalizing the facts established by the verdict of the jury, or he has
found a new norm on the basis of this universalization.
The famous justice of the Supreme Court of the United States, O. W.
Holmes, Jr., has stated the application of this doctrine to liability for
culpability with great acumen. The jury passes on the question of fact; the
court, on the question whether the facts constitute culpability, which gives
rise to liability in damages. The second question involves a standard. Did
the defendant exercise the measure of care which is required of a man in the
conduct of the affairs of life? Who is to decide whether this measure of care
has been exercised or not? Holmes thinks that this second question is a
question of law» Says Holmes: "It is that the court derives the rule to be
applied from daily experience, as it has been agreed that the great body of
the law of tort has been derived/51 aand in this way the law is gradually
enriching itself from daily life as it should." 2 Whether therefore the facts
established by the jury constitute culpability on the part of the defendant is
a question to be decided by the judge. And out of these decisions the whole
law of damages has grown. Now doubtless there are cases in which it is
perfectly clear that they fall on this side of the line or on that. In such case,
the judge renders the decision as to liability in damages quite
independently, on the basis of the facts established by the jury. Why the
judge? In these clear cases, a fixed rule of law as to the standard to be
applied is already in existence. There are other cases however in which
there is doubt. In those cases the jury passes not only on the facts but also
on the question whether there is culpability; for in those cases the judge
does not have a rule of law at hand concerning the standard to be applied to
determine the question whether there is culpability. As soon as a rule has
arisen, the question as to the existence of culpability is a question for the
judge. In other words, it is a question of fact whether the defendant by his
conduct has violated the legal relation in a blameworthy manner; but the
question whether this conduct, judged according to an already established
standard, obligates him to pay damages is a question of law. The difficulty
in the law of damages, says Holmes, is this, that certain cases of negligence
occur too rarely “to enable any given judge to profit by long experience
with juries to lay down rules, and that the elements are so complex that
courts are glad to leave the whole matter in a lump for the jury's
determination."1
1 Holmes, Common Law, p. 123. 2 Holmes, op. cit., p. 121.

And in fact in one case it is actually possible to show historically how a

whole legal system has been developed from such adjudications of
individual cases by the jury, based solely upon the concrete nature of the
legal relation in question as a question of fact. It is the English commercial
law, the law merchant, the creator of which, in the opinion of the English, is
Lord Justice Mansfield of the middle of the eighteenth century. He became
the creator of this law inasmuch as he universalized the facts which were
the basis of the individual decisions into legal propositions. I am quoting
from the book of Carter, entitled A History of English Legal Institutions,
the words of Justice Buller, taken from his opinion in a case decided in the
year 1787, in which he describes the development graphically, almost as if
he had been an eyewitness :
"Before that period (i.e. about 1750) we find that in courts of law all the
evidence in mercantile cases was thrown together; they were left generally
to a jury (i.e. the rules were treated as a matter of usage to be proved by
evidence, without distinction of law and fact), and they produced no
established principle. From that time we all know the great study has been
to find some certain general principles which shall be known to all
mankind, not only to rule the particular case then under consideration, but
to serve as a guide for the future. Most of us have heard these principles
stated, reasoned upon, enlarged, and explained, till we have been lost in
admiration at the strength and stretch of the human understanding."
(Lickbarrow v. Mason, per Buller J., 2 T.R. 63.)
Without this constructive activity of the jurists, without their
universalizing and reducing to unity, general legal propositions cannot arise
from the inner order of human associations. The inner order as such remains
a legal norm; to be exact, a norm for decision. An example, which extends
down to our own time, is found in the private law of princes. Düngern has
rendered the great service of showing that, materially, the latter consists
exclusively of those rules which the individual princely houses have laid
down as their inner order with reference to the questions that fall within the
sphere of their autonomy. Not one of these regulations has attained the
significance of a legal proposition that is binding upon anyone outside of
the family that has set it up. Indeed, for centuries attempts to create a
universal private law of princes have not been lacking; but the jurists that
made these attempts evidently were not sufficiently influential among the
higher nobility, in whose power this matter lies, to prevail.
1 Holmes, op. cit., p. 129.
 In the numerous cases in which, the jurist must draw his norms for
decision from the inner order of the relations, actual experience of life must
supply him with the necessary materials. How did the Roman know that in
a marriage with manus all of the wife's property became the property of the
husband, and that in case of the freer marriage she retained it? He knew it
because he knew the inner order of the Roman family. How did Thöl know,
when he wrote the second edition of his Handelsrecht (mercantile law), that
each partner in a mercantile partnership with unlim-ited liability was
entitled to the “recMmässige Gebrauch der Firma" (rightful use of the firm
name), so that each partner in virtue thereof could bind the remaining
partners? He knew it because he knew the organization of commerce. In
primitive very simple and transparent relations, an unconscious mental
working over of the happenings of the day suffices to give to the jurist who
has some sense of reality the required knowledge of the affairs of life round
about him; in the manifold, highly complex, and, in part, confused
situations of our day, very often long, searching investigation is required. In
every case, however, it is mere knowledge, not authoritative regulation, that
we are concerned with.
This presentation alone is sufficient to show that the current teaching that
it is the function of juristic science to range states of fact under established
legal concepts is a fatal error. The inner order of human relations which
results from the traditional constitution of the family, the corporation
(Körperschaft), the association (Genossenschaft), from the relation between
serf and feudal lord, from the content of contracts, articles of association,
and last wills and testaments, from usage — this inner order, from which
the judicial decision derives the greater number of its norms for decision,
which juristic science universalizes, subsumes under the juristic concepts,
or construes with the help of the latter, is not a part of the world of fact, like
an eclipse of the sun, or the chemical composition of water, but is in itself a
part of the law. Not facts are being adjudged but legal relations. Juristic
science creates legal propositions only on the basis of legal relations,
Family, corporations, ownership, real rights, purchase, usufructuary lease,
ordinary lease, loan, were legal relations before the Roman jurist had made
his first universalization; likewise in the Middle Ages they were legal
relations before they were being adjudged according to Roman law. And
after the reception, in so far as the Romanistic art and science of drafting
legal documents did not interfere, they remained what they had been before,
even as to content. The only difference was that thereafter they were
adjudged according to Roman Law. Likewise, if English law should be
introduced anywhere on the continent of Europe, the family, the
corporations, ownership, the real rights, and the contracts would remain
what they had been until then; and even though they should be adjudged
according to English law, they would not become English legal relations.
Legal relations are created by society, not by legal propositions.
Now let us consider the work of juristic science since the reception of
Roman law. First of all we must put aside everything that served only the
purpose of setting forth most faithfully the content of the sources; for this
merely served to transmit that which had itself been transmitted, it did not
continue the develop» ment of the art and the doctrine. The new material
however that was added to that which had been transmitted was always
based on what had been gained from actual observation of the legal
relations and had been universalized. In this respect the method of the
modern jurists does not differ from that of the Romans.
There is a difference only in this, that they did not, like the Romans,
derive the norms for decision directly from the univer-salizations or find
them freely, but that they fitted the results of their labor into the Roman
system of concepts, and, in appearance at least, attempted to utilize the
Roman norms for decision for this purpose. But since they did not approach
their task without preconceived notions, but had arrived at their decisions in
advance, to which they subsequently adapted their concepts and
constructions, their method, in fact, was a rather free finding of law on the
basis of reasons that were adduced afterwards.
For the norms which are taken directly from the organizations, the term “
Natur der Sache" (nature of the thing) has become current in the German
juristic science of the Continental common law, particularly since the
beginning of the nineteenth century. The "nature of the thing" is derivable
from the forms of the associations of the state and of society and of
economic associations which life has created self-actively. This is the
naiuralis ratio of the Romans; this is hidden behind so many of their sed
aequius est, sed melius esty sed humanior est eorum senientia, and this, too,
is one of the active forces of the natural law movement, down to its last
offshoot, the "Lehre von dem richtigen Recht" (theory of the true or just
law).1 German common law juristic science as a rule summed up in
concepts that which itself or the legislator had learned from direct
observation of the associations which life had created, and then deduced the
norms from the nature of the thing, i.e. "from the concept." The latter was
merely another technical term for the "nature of the thing." No jurist, not
even a jurist of the last century, has ever been able, in spite of the positivist
tendency, to dispense altogether with considerations based on "the nature of
the thing," even when, like Windscheid, he apparently rejected them. They
have been recognized expressly — to name only a few of the greatest
names — by Savigny, Puchta, Wächter, Unger, Goldschmidt, Bahr. Adickes
devoted his first book to them.
The norms "derived from the nature of the thing" or "deduced from the
concept" are the rules of conduct that govern a legal relation in life; they are
a product of the labor of life, not of that of a legislator or of any other
power that has authority to posit norms, and they can be the subject matter
of scientific knowledge, but they cannot be ordained or prescribed.
Therefore, however they may have been formulated, even though it be in a
statute, their scientific content can be examined into. One can always ask
the question, not only whether the definition of Erbleihe (freehold) or of
usufructuary lease, as contained in the statute, but also whether the norms
which the statute merely derives from the concept, correspond to that which
is considered valid in everyday life as to these legal relations. Therefore it is
justly denied that definitions, and — this ought to be added — the norms
that derive from them, "from the nature of the thing/5 should ever be put
into a statute; for, if they are correct, they are superfluous when put into the
statute; they would be in existence even if there were no statute; if they are
incorrect, they constitute what has often been called the " unverbindlicher
Gesetzesinhalt^ (non-obligatory content of the statute), and must needs
cause mischief; for men are not readily given to ignore even the non-
obligatory content of a statute. The Roman maxim, omnis definitio in iure
periculosa, indeed appears to go beyond this; for ius civile does not mean
statute but juristic science — a fact which can be explained by the further
fact that Roman juristic science could posit binding juristic law. It does
however contain merely the monition that it is easier for a jurist to infer a
single norm from the order of the social associations than to combine all the
norms that constitute the framework of a living association in a definition.
 1Translation by Husik under the English title "The Theory of
Justice."

All of this self-evidently refers only to the juristic definitions of the

institutions that are created by actual life itself. The Tatbestand (constitutive
facts) to which, according to the precept contained in the statute, a statutory
norm for decision or any other statutory command is to be applied is also
frequently called a definition (Begriffsbestimmung). The empirical content
which has been included in this Tatbestand indeed indicates the relation of
life that is to be protected against interference. The existence and the
qualities of the latter are independent of the legal prop- osition; for example
bodily injury is as far from being the work of the legislator as extra-marital
paternity. But the legal proposition alone determines the circumstances
under which a relation of life should receive legal protection, and when the
established legal consequences should ensue, e.g. what kind of bodily injury
is to be punishable, when extra-marital paternity obligates a person to
provide support and maintenance. The author of a legal proposition then is,
if not absolutely free in determining the Tatbestand of social institutions, at
any rate freer than in defining them. The Tatbestand is a part of the content
of the statute and cannot be said to be either superfluous or incorrect. It may
be stated too narrowly or too broadly with reference to the intent of the
legislator or with reference to the purpose which the statute was designed to
accomplish, and the judicial decision may disregard the wording of the
statute. But in so doing it does not emend the statute; it interprets it or ekes
out its meaning. The constitutional rights and duties of a citizen of a state
and the rights, powers, and privileges of an owner are quite independent of
the statutory definition (Bestimmung) of state and of ownership; nothing is
to be punished as theft but what is included in the Tatbestand of theft; and
no legal transaction can be set aside by means of the actio Pauliana except
those which the statute governing avoidance has declared to be voidable
(anfechtbar). In the case of the state and of ownership the question is one of
the form of organization; in the case of theft and in the case of the actio
Pauliana it is a question of the Tatbestand contained in a norm for decision.
The present discussion establishes a palpably clear contradistinction
between these two situations.
With rare exceptions, practical juristic science creates the legal
proposition on the basis of observation of the facts of legal life, on the basis
of universalization of the results of such observation. Its method presents an
unmistakable similarity to the methods of the pure sciences, which also are
regularly based on observation and universalization of that which has been
observed. This similarity quite readily accounts for the fact that juristic
science is often being conceived of not as a practical science but as a pure
science, and that demand is frankly being made in its behalf for a method
like that of the natural sciences. Though the method of pure science and that
of juristic science appear to be very similar to each other, they are, as
Rumpf has convincingly demonstrated, very dissimilar. The object of the
former is knowledge; that of the latter, finding of norms« The observation
and universaliza-tion of the jurist does not proceed without bias, in the spirit
of pure science but, from the outset is dominated by consideration of the
distribution of power, of expediency, and of ideals of justice, which give
direction to the process of finding of norms. And therefore juristic
observation and universalization is directed to different objects from the
beginning, and attains results different from those of pure science. On the
basis of scientific proceeding, the Roman jurists would never have treated
the family order of the free peasant proprietor as the only order of the
Roman family, the English judges would never have universalized the law
of inheritance of the knights into a law for all classes, and the authors of the
German Civil Code could not possibly have made community of
administration the general régime. All of this becomes explicable only if we
bear in mind that they were not bent upon ascertaining facts in a scientific
manner but upon establishing practical precepts for the future.
The course of decisions as to rights of personality which is going on at
the present moment is an instructive illustration of this. Its points of
departure are two statutory provisions. One is the recognition in the
Austrian Civil Code of the " innate rights, whose existence is made
manifest by the light of reason"; the other is the action permitted by the
Swiss Civil Code for "an injunction against interference" in a case of
unauthorized violation of personal relations. The fact that the juristic
science of the Continent required such crutches for the development of the
rights of personality is an indication of the sad plight it is in today. It is not
likely that the Roman jurists would have resorted to this method in order to
find the honae fidei contractus. In France, too, the rights of personality
were protected to a great extent without the aid of statutes. Since the course
of judicial decisions, except in France, has not been playing a prominent
rôle, the development of the doctrine is chiefly literary. The leading works
are those of Specker in Switzerland and of Mauczka in Austria. It is
extremely instructive to observe the manner in which these writers
developed a detailed law of personality. The statute affords no help for this
purpose; for legal precepts which are so utterly lacking content as those of
the Austrian and Swiss codes mentioned above leave the development of
the law where they found it. What Specker and Mauczka say about the
rights of personality is so absolutely independent of the statute that it would
be applicable without more ado within the sphere of the German Civil
Code, which does not mention rights of personality at all other than the
right to a name, if only the Germans could make up their minds to
recognize the creative power of juristic literature.
It is true, Specker and Mauczka include many a thing in the law of
personality, which might more properly be included in a revised copyright
law, or a more advanced law of possession, or of neighbors5 rights
(prohibition of the publication of private letters or of a photograph of a
private dwelling, protection against noises or unpleasant odors). If these
things are excluded, the law of personality may be denned as the social and
judicial protection of the interests of the individual which arise from his
position in his social association (his family, his household, his social life)
or in society as a whole. The point in question, in the words of Jung, is " the
fact that since we are living together in this world, each of us demands a
certain amount of consideration from the other." The measure of
consideration is always determined by the position which the usage of the
association assigns to the individual. For this reason, the norms which
safeguard the rights of personality are based upon usage. And in an
association in which the position of an individual has been reduced to a
mere nothing by the usage of the association, as was the position of the
Roman slave or of the filius familias in the household, there is no right to
life. And what is the extent, even among the civilized nations of our times,
of the right to physical inviolability and liberty in women and children? But
the recognition, in a general way, of the right of every human being to life,
physical inviolability ? and liberty merely proves that the idea of the equal
value of all human beings has made its way to this extent in the usage of
society. In the same sense every person nowadays is entitled to the
protection of his honor, a right which formerly was conceded only to
members of the privileged classes. The other rights of personality that are
being recognized today, such as the right to one's picture, to privacy, to
protection of one's emotional and aesthetic life, are merely extensions,
granted because of the ree-ognition of the heightened inner life of our time,
of the protection which the associations in time past had granted to their
members from the protection of the sensibilities of their bodies to protection
of the sensibilities of their souls. No innovation in principle is involved. Of
course it is apparent without argument that the right to one's name, seal, and
coat-of-arms merely serves to protect the interest of the position which is
indicated thereby. The social norms, moreover, that protect the interests of
personality at the present time are a part of the law to a very limited extent
only; they are preponderantly norms of morality, ethical custom, decorum,
and tact. They are being converted into legal norms by an extremely gradual
process.
At the present time, legal protection of the interests of personality is
given chiefly by criminal law, and therefore only against the grossest
attacks. The movement for the recognition of the rights of personality is
striving to gain the much more effective protection of private law for these
interests. If its objects were of a purely scientific nature, it would
necessarily confine itself to the observation of the usage in the household,
in the family, in business life, in social life, and gather therefrom what
interests of personality are to be found there, and to what extent they are
being protected by social norms. But inasmuch as it is a Kunstlehre
(practical science) it poses its problem quite differently. It is concerned with
the creation of clearly formulated legal propositions, which are to determine
under what presuppositions, by means of what legal remedies and of what
kinds of compulsion, the rights of personality, which arise from social
usage, should be protected. But this investigation must be preceded by
observation and universalization of the interests of this nature that are in
existence in society, and their significance must be determined. But this
process of observation and universaliza-tion not only ceases when there is
nothing left of practical importance, but culminates in a most unscientific
procedure, to wit in the balancing of interests as the basis of the finding of
norms.
It is true, juristic science would be in a much better case if instead of
instituting observations and universalizations for its purposes it could draw
on an already existing store of scientific knowledge, as can be done today in
the case of medicine perhaps, and in the technical practical sciences. But for
the present, since there is no sociology of law which could do the
preliminary work for practical juristic science in this manner, the jurist must
rely on his own experience for the knowledge of the relations of actual life
which he requires in order to be enabled to create norms for decision on its
basis. Apart from this, the statutes and the various branches of the social
sciences will serve as sources of knowledge, But however great the amount
of information he may receive else™ where, in view of the inexhaustible
and enormous diversity of the affairs of life it cannot possibly suffice. It
must be supplemented at all times by the fullness of his own observation
and his own experience. From this discussion it is apparent that a young
man is not qualified for a seat on the bench who has merely demonstrated
that he is able to master the most important statutes and a number of text-
books. The best that a judge can give must be drawn from his inner self; the
sections of the statute book and the textbooks are like an imperfect sketch
for a picture ; and only the observations and experiences of a full and rich
life can give form and color to it.
The legally binding force of juristic law, it is true, is an enigma. The legal
norm is always a command, and we ask, "How can the discussion of a jurist
contain commands?" The question cannot be disposed of but can only be
touched upon here. First of all we must point out that this is not an isolated
occurrence. The writer on ethics formulates ethical norms, and the norms of
outward decorum, of honor, of etiquette, of fashion, of games, must
likewise be originated by someone. When one is in doubt, one refers to a
book, e.g. to a book on decorum, a code of honor, a book of etiquette, a
journal of fashions, a collection of rules for games. Whatever is printed in
the books is accepted as binding, and very often there is no other reason for
this than that it is assumed — and very often the assumption is not justified
— that the man who wrote the book somehow was authorized to lay down
such rules.
In general the psychological basis of juristic law is the same. It is true the
basic function of the jurist is to give information about the norms that are
already in existence; but how shall one teach what it is that has validity as a
norm unless the content of that which is taught in turn becomes a norm?
Whom should we ask for instruction on the question what norms are valid
but him who teaches the norms? The line of demarcation between
Normenlehre (the science of norms) and Lehrnormen (norms that are being
taught) manifestly is so tenuous that it must needs be overlooked in actual
life; and in this way the great antinomy of law arises, which continually
converts doctrine into norms, but veils the process itself from the eyes of
those who are taking part in the process.
But in the case of legal norms, unlike the case of a norm of decorum,
etiquette, fashion, or of a game, it is not sufficient that they are being taught
by someone. They must become established, they must prevail in the
struggle. This often happens in society, without anyone's taking notice of
the fact, when society automatically accepts that which is suitable and
rejects that which is unsuitable. Perhaps no one has ever stated this better
than the authority followed by Boethius. In his view juristic law (ius civile)
is prohatae civium creditaeque sententiae. Occasionally this struggle of the
norms for existence takes place according to an orderly process, e.g. the
disputatio fori of the Romans and the citation of the Continental common
law writers. And in this struggle the reputation of the originator is usually
decisive. Most norms draw their vitality from the reputation of the man who
has enunciated them. It is only very rarely however that the intellectual
greatness of the person is the sole decisive factor, as in the case of the elder
jurists of the Roman Republic, of the authors of the German and French
books of law in the Middle Ages, and perhaps of the Islamic jurists.
Practically in every case a high official position is an additional requisite.
The Roman jurists of the Empire became iuris conditores in virtue of the
ius respondendi; even the Nordic declarer of the law is a public official;
since the days of the glossatore, the university professorship is the decisive
thing among the Continental common law jurists. As late as the nineteenth
century the jurists who exercised any-great influence in the matter of
creating law in Germany, with few exceptions (Bahr, Liebe, Einert, perhaps
Salpius), were academic teachers. In England and in America high judicial
office is required. But even in these countries judges are not "fungible"
personalities in virtue of their office. Even though judge-made law is
binding as such, it is by no means a matter of indifference by whom the
proposition which one cites in court has been enunciated. Decisions of
courts are, it is true, cited by attorneys in great numbers, but only a few
have abiding value. The great jurists who have been actively engaged in the
development of the law are always numbered among the greatest men of the
human race. Their names are being mentioned and their works are being
read centuries after they have departed this life.
XVI The Law Created by the State

UNLIKE the legal norms that have arisen in society, norms that have been
created by the state are rarely being enforced by purely social compulsion.
The state has need of its own peculiar means of power (Machtmittel) for
this purpose, i.e. of its courts and other tribunals. And for this reason, the
most important question is whether the state has suitable agencies that can
give effect to these norms. The question then whether there is state law in
any given state is not only a constitutional question but also an
administrative one. The significance of the statutes of a state cannot be
understood until one knows the agencies whose fune» tion it is to put them
into effect. Everything depends upon their educational and cultural
endowment, honesty, skill, and industry. For this reason a legal proposition
will be given widely divergent interpretations in various sections of human
society. After large portions of English, French, and Belgian constitutional
and procedural law had been transplanted into foreign soil in the nineteenth
century, men became convinced that they had effects quite different from
those they would have at home. Transplantation has been most successful in
the sphere of commercial law; for commerce is regulated essentially alike
everywhere in Europe and the agencies of the state have little to do with it.
Permit me to adduce an example. Austrian jurists who, about twenty
years ago, had come to Brussels in order to take part, as invited guests, in
the dedication of the palace of justice heard with great astonishment that the
Emperor Josef II had introduced the oral trial procedure in Belgium. The
statute that achieved this miracle was the Allgemeine Gerichtsordnung
(General Code of Judicial Procedure), the much maligned Josephina, which
had been in effect in Austria for more than a century without being credited
by anyone with the power to bring about an oral procedure. It is true, the
Code of Procedure did provide that, in the country (i.e. everywhere outside
of the provincial capitals), the proceedings should be oral. In Austria the
oral procedure consisted in this, that the writings1 were not filed, but were
drawn up in the form of protocols and were handed to the judge.
Occasionally, it is true, it did happen that the statements of the parties were
reduced to writing on the day in court (Tag-fahrt). The law-suit however
was decided in every case solely on the basis of the protocols, and as a rule
by a judge who had not participated in the preliminary proceedings. In the
Netherlands, which at that time belonged to Austria, the oral procedure was
taken seriously. The proceedings in court were conducted orally; at the end,
the discussion was embodied in a protocol; and the judge who had
conducted the proceedings at the day in court decided the case, with the aid
of the protocol, it is true, but chiefly on the basis of the impression received
at the oral proceedings. So the identical statute brought about a written,
indirect procedure in Austria, and an oral, direct one in the Netherlands.
But even the best state agencies are neither omnipotent nor omnipresent.
If a statute is being obeyed only where the agencies of the state compel the
people to do so, not much more has been achieved than the noisy creaking
of the official mill. The art of regulating rivers does not consist in digging a
new bed for the river all the way down to its mouth, but in directing the
current so that it self-actively creates a new bed for itself. Likewise statutes
fulfil their functions only where the great majority of the people obey them
in obedience to the promptings of an inner impulse.
There are two ways in which a state can act through its law. One is
through the norms for decision. The state issues directions to its courts and
other tribunals as to the manner in which they should decide the cases that
are being submitted to them by the parties. The majority of norms for
decision, it is true, have been taken from juristic law; they are state law only
when they have arisen independently of juristic law and are designed to
subserve the purposes of the state. The other form of state law are
Eingriffsnormen (norms directing state agencies to proceed).
1 Corresponding to the pleadings of our procedure.

They direct the authorities to act irrespectively of whether they have been
appealed to or not. Although the state norms for decision and the norms
directing state agencies to act are not, indeed, in all instances, based upon
statutes, we are concerned chiefly with instances where this is the case.
Whether a legal proposition brings about direct action or whether it is but a
norm for decision does not depend exclusively upon the intent of the
legislator or the wording of the statute, but is determined by actual usage. In
civil affairs they are preponderantly norms for decision. Exceptions are:
matters relating to matrimony, to guardianship, to corporations, to records
(land register, commercial register, register for matters of the matrimonial
régime), and the state pro-ceeding in the matter of the estate of a deceased
person where such proceeding is required. In these cases, in part at least,
direct action actually takes place. Originally criminal law consisted
exclusively of norms for decision. The injured party himself had to bring
the matter before the court. And even today criminal law consists in part of
norms that are mere norms for decision even where the action is to be
brought by officials of the state, for it is the custom of the authorities to wait
for a notice or some other move by the parties. In case of an offense against
the state, however, of murder, arson, and other crimes that are considered
dangerous to the common welfare or to the state, the state calls upon its
agencies to hale the guilty person into court. The same relation between
direct action and decision is found in administrative law.
The effect of state norms for decision is usually very much over-
estimated. The whole matter hinges upon action by the parties, who very
often fail to act altogether. Often the statute remains unknown to a
considerable part of the population; again the parties for whose benefit it
was enacted often lack the material means to enforce their claim, or,
because of the actual distribution of power, they lack self-confidence or
confidence in the authorities. For this reason legislation for the protection of
working-men, so far as it contains only norms for decision, as a rule
remains ineffectual. A few years ago I instituted an inquiry which dealt with
the question to what extent the Austrian Civil
Code, which by this time has been in force for a century, had actually
become part and parcel of everyday life. It produced remarkable results. Of
the law of warranty, a part of the law which apparently is of extremely great
practical importance, only a few regulations concerning defects in cattle are
actually effective today — and these, perhaps because they had made their
way into the statute from daily life, In case of immovables, warranty is
usually excluded by contract; in case of movables, rules obtain which have
no connection whatsoever with the Civil Code. But even apart from this,
one would not believe to what extent the ineffectual law overbalances the
effectual law. A conjecture to the effect that the number of sections of the
Austrian Civil Code that have had no influence whatever upon life amounts
to about one-third is not too high an estimate. Among them there are some
that contain provisions of very wide scope, provisions that might become
applicable at any moment but that have not been cited once in the more than
20,000 decisions reported in the Glaser-Unger collection of the decisions of
the Supreme Court. It is self-evident that the situation is not altered by the
fact that a given legal proposition has been applied here and there. That is
far from proving that it has actually become part and parcel of, and
regulates, daily life.
Perhaps I may be permitted to illustrate this statement by an example
which I have adduced in another connection. The family law of the Austrian
Civil Code, as is well known, is extremely individualistic, perhaps the most
individualistic in present-day Europe. The relation of the wife to the
husband and of the children to the parents, in general, is one of complete
independence, almost as if they were strangers to one another. A child may
have property of his or her own, and his or her power of disposition over it
is as free and untrammeled as that of the parents over their property.
Whatsoever the child acquires, accrues to the benefit of the child not of the
parents. The child has full power of self-determination and can utilize his or
her earning power freely for his or her own purposes. Only so long as the
child is a minor is it under the power of his or her father; but the father, the
bearer of this power, is not much more than a guardian. His chief function is
to see to it that the child suffers no injury in consequence of inexpérience,
lack of discretion, or weakness. Only in this sense does the father have the
right of disposition over the property, the earning power, and the destiny of
the child. And even in this, he is under the supervision of the Supreme
Court of Guardians, which will adjudge a complaint of a child against a
father.
In Bukowina, however, although it is a part of Austria, and although the
Civil Code is in force there as well as in the other parts of Austria, the
power of the father is an extremely serious matter. The Roumanian peasant,
perhaps the only true Roman of our day, exercises a patria potestas, which
seems strikingly familiar to the student of Roman law. There the children
actually belong to the father, although not all their lives, nevertheless until
they attain their majority at the age of twenty-four; and though this
ownership is not as absolute as it was in Rome, it is an ownership of body,
property, and earning power, not only so long as they live in their father's
house, but even while they are among strangers. If such afilius or filia
familias is in service, the father or the mother appears punctually every
month at the employer's residence or place of business and, quite as a
matter of course, carries the wages home. And the parents dispose just as
freely of the property and the income from the property of the child. And if
one asks why the children submit so docilely, the answer is that resistance is
something unheard of.
Ever since I directed attention to this phenomenon in an article in
Harden's Zukunft, I have again and again received the reply that those things
that are in conflict with the Civil Code are ethical custom, not law. This
reply is based on the same old idea, to wit that we are here dealing with a
question of terminology, i.e. with the question just what is to be called law.
But we are here dealing with something quite different from this, i.e. with
the fact that the Austrian Civil Code has not been able to root out this
custom, which is in such decided conflict with the Code —■ irrespective of
whether we call it law or ethical custom. It is true that since I first
mentioned this custom about ten years ago I have noticed that it has
markedly been beginning to fall into disuse; but this must be attributed to
the breaking up of the old family order which is being brought about by
modern social relations and by modern modes of thought, and which is very
clearly perceptible in this country in other ways also, rather than to the
influence of the Civil Code, which, we must admit, did not become
effective until now, i.e. after the lapse of a whole century» If the jurists
were more in the habit of observing life at first hand, they would discover a
great number of instances of this kind. The famous investigation of the
South Slavic customary law, which Bogisic had instituted, revealed that
among all the southern Slavs within the territory in which the Austrian Civil
Code is in effect, the well known South Slavic family community, the
Sadruga, is in existence; this is altogether unknown to the Civil Code and
absolutely irreconcilable with its principles. Moreover on almost every page
of the book in which he summed up the results of his investigation we ûnd
the remark, with reference to the most diverse subjects, particularly with
reference to the law of inheritance and of the family, that the people know
that the precepts of the statute have a content quite different from their
customary usage, but that they do not follow the statute. In his book, Das
Gewohnheitsrecht und die sozialen Verbände1 Dniestrzanski tells of a sort
of primitive mercantile partnership which complies neither with the
provisions of the Austrian Commercial Code nor with those of the Civil
Code. I myself am continually meeting with phenomena of this nature and
hope to be able to discuss them in a detailed juristic exposition. All of this
shows to what extent the effectiveness of state law is being interfered with
by other social forces.
Direct action by the state is much more effective than a norm for
decision. This is convincingly demonstrated by the history of legislation for
the protection of working-men. These statutes were originally enacted in
order that they might serve as norms for the decision of disputes arising
from contracts for wages and from bodily injuries. This applies also to the
French statute relating to the twelve-hour day and to the German statute
relating to liability in case of accident. These statutes were altogether
ineffectual. The office of industrial inspector, as a state agency for the
enforcement of the legislation for the protection of working-men, first
breathed some life into them by means of direct official action.
1 Customary law and the social associations.

It is self-evident of course that a direct command of the statute directing

the authorities of the state to proceed in a certain manner is not always
sufficient to bring about such action. The French statute of the year 1806
relating to the cessation of labor on Sunday was never enforced. "Il ne se
trouvait presque jamais un commissaire de police ou un garde champêtre
qui osât dresser un procès-verbal contre les coupables/' de Rousiers says on
this subject.
So even state law often fails completely. Often the measures taken by the
state for supervision and enforcement are unequal to the task of converting
the rule laid down by the state into a rule of conduct. Often it fails because
of the unwillingness, the weakness, or the incapacity of the authorities; the
indictment which should be brought as a matter of official duty often waits
notice from the parties involved. The law of the state regulating
corporations and societies is evaded by means of free associations, e.g. in
France and, in part, in Austria; partnerships and agreements are withdrawn
from state supervision through failure to have them registered; contracts
which are prohibited by the state are being entered into and voluntarily
performed by the parties; invalid testaments are not being submitted to the
obligatory proceedings for the distribution of the estates of deceased
persons and the inheritances are being distributed by free partitioning. In
such cases the other social associations have proved more powerful than the
great social association, which has created the state as the instrument for
carrying out its will. But as soon as the measures taken by the state for the
purpose of supervision and enforcement fail in case of a statute that is to be
enforced by direct action of the agencies of the state, the statute is reduced
to the status of a norm for decision, which is able to manifest a trace of life
only in case the whole apparatus is set in motion by the parties concerned.
The effectiveness of the law of the state is in direct ratio to the force
which the state provides for its enforcement, and in inverse ratio to the
resistance which the state must overcome. The fact that a considerable part
of social activity has found its focus in legislation, administration of justice,
and civil administration has not done away with the forces which are
operative in society apart from these things. The church, economic life, art,
science, public opinion, the family and personal associations, after all, have
maintained their independence over against the state either altogether or to a
great degree. They are, indeed, foci of development of purely social forces
with which legislation, administration of justice, and civil administration by
the state must cope at every moment. It is an error to think, as often
happens, that all the modern state need do is simply to employ the means of
power at its disposal in order to overcome everything that comes in its way.
It is true that no one can offer legally justifiable resistance to the modern
state as one could to the feudal state, to which the great feudal lord was
bound solely by agreement. But the forces which the state has at its absolute
disposal, the army, the police, and, supported by these, the civil officials, in
the nature of things, are equipped for conflict with society only inasmuch as
they are called upon to overcome a forcible insurrection, to attain a success
which can be gained by a single effort. In the course of time they finally
grow weary and their energies flag, and they themselves are too much
exposed to social influences to follow the power of the state wherever it
would lead them. History shows that the military and semi-military
organization of the state, in spite of the great impetus which it can develop,
and which can, at a given moment, overcome all resistance, is not a match
for the uninterrupted sway of elemental forces which have their life and
being in the social associations. They operate with less force at the
beginning perhaps, but they operate steadily, decisively, and without
faltering. Sufficiently developed, the religious, economic, political, and
ethical trends created by them sooner or later gain influence, and, under
favorable circumstances, gain control over the legislative and magisterial
machinery of the state. The French express the thought that the state cannot
permanently base its right upon might in the very expressive words: On
peut tout faire avec les
baionettes, excepté s7y asseoir. Even state law must, therefore^
continually take the social forces into account,
And to begin with, the state cannot destroy the economic presuppositions
of its own existence. The state is conditioned upon the production of
economic goods within society in sufficient quantities to supply it with
nourishment. It can, of course, find the means for the erection of its own
structure by committing depredations upon the national economic system,
and it is doing this even today to a terrifie extent; for the ruin which will
come after the lapse of decades or centuries need not worry the persons that
are in power at the present time. But it cannot destroy the national
economic system, for it must derive its sustenance from the surpluses of the
latter.
Stammler says a fully developed despotism is a legal order which
consists of but one paragraph, to wit: The legal relations among those that
are subject to the law shall be adjudged and given effect solely according to
the concrete decision of the ruler in the individual case. If the ruler had a
band of foreign mercenaries at his beck and call, such a legal order would
not, in itself, be inconceivable. But how long could it endure? If no one
were secure in the possession of his property because a concrete decision of
the ruler could deprive him of it at any time, if no one could act in reliance
upon a contract because a similar decision might rescind the contract,
agriculture, trade, and commerce would be in such a state of disintegration
that before long the ruler would have no one left to rule. The many despots
of whom history tells, therefore, were very careful not to supply us with
warning examples of an essentially unsound legal order (unrichtiges Recht).
They did not hesitate in individual cases to plunder, rob, and pillage as
much as they thought feasible, and occasionally permitted their creatures to
do this, but in general they permitted people to attend to their affairs, and
unless they were particularly interested in warping justice they suffered
legal disputes to be decided according to law and custom. Their own
interest, clearly seen, quite readily taught them the value of a legal order.
This is the reason why it is frequently being said, albeit not by modern
jurists but by economists of the classical school, that the power of the state
is limited by the laws of economics. The state, which has the power to ruin
very many things, which can take very much away from one person and
give it to another, is nevertheless unable to make one more blade of grass
grow than the economic resources of the nation permit. The significance of
the knowledge of this fact as a means of preservation is enormous, for a
revolutionary if he should seize control of the state would no more be able
to do this than is the present state. It too could take away from one man and
give to another, could ruin many things, but could not cause one more seed-
corn to sprout than the economic resources of the nation permit. The best
that the state as well as its adversaries can do for the future economic
welfare of the nation is to treat the economic system of the present with
extreme tenderness.
We shall have to get used to the thought that certain things simply cannot
be done by means of a statute, that the intent of the author of a statute is a
matter of absolute indifference so far as its effects are concerned. Once in
force, it goes its own way. Whether the legal proposition is effective,
whether it has the effect that was desired, depends exclusively upon
whether it is a means adapted to this purpose. And lastly we must get used
to the thought that the effect of a legal proposition is determined not so
much by the interpretation which jurists place upon it as by other
circumstances, which are of much greater significance in the matter, e.g. the
individual peculiarity of the people, the prevailing ethical views, the means
of power used to enforce it, the kind of legal procedure employed. A statute
is effective not by dint of its mere existence, but by dint of its force.
The commands of the state are most effective when they are exclusively
negative, when it is not a matter of compelling people to act but of
constraining them to refrain from action, when they are given in order to
forbid, to attack, to destroy, to extirpate. In this manner the state has been
engaged in innumerable contests with religious trends, societies and other
communities, to which for some reason or other it had become opposed.
This is the content of the whole penal law of the state, and particularly of
the only part that in fact has a certain measure of social influence. This
sphere includes chiefly police legislation by the state, i.e. legislation for the
public safety and the public health, and for the supervision of trades and
occupations. In the economic sphere also action by the state is most
effective if carried out by means of prohibitions (tariff legislation). The
proscriptive rights and the monopolies of the state are mere prohibitions.
The state has hindered the free activity of economic forces, and by doing so
perhaps has destroyed incalculable economic values, but perhaps has made
possible and fostered a given economic venture at their expense. Copyright
laws have the same significance. The state issues a prohibition directed to
all men, excepting only the author, forbidding them to engage in any
activity of a certain kind. This is the whole content of the law in so far as it
is of state origin. The only difference between this right and the proscriptive
rights and the monopolies is this, that the object of the former is to stimulate
or to reward the inventive genius. And so far as the law of the family and of
property is not of social but of state origin, its content is almost exclusively
negative, e.g. marriages, societies, contracts, last wills and testaments, that
are being forbidden, dissolved, declared void, or voidable; property that is
be™ ing forfeited; heirs that are being excluded.
Wherever the state wishes to constrain men to perform an affirmative act,
it must proceed much more cautiously. To guide and direct great multitudes
of men is a matter of enormous difficulty under all circumstances. It
presupposes a great and rare gift. It is most difficult perhaps when it is to be
done on the basis of universal abstract rules. Whenever men consider a task
useful and profitable, they will combine on their own initiative in order to
perform it; often economic and social pressure will also induce them to do
so, and action by the authorities serves rather to disturb, to hinder, and
confuse than to promote. For this reason it will, most likely, be impossible
to impose the will of another upon a superior number of unwilling men.
This is shown by the many attempts made in former days to compel striking
workmen with the aid of gendarmes or policemen to return to work. The lex
Julia et Poppaea perhaps secured many a rich inheritance for the Roman
fisc; but whether even one single child owes its existence to it is a matter of
much less certainty. The Austrian tax on bachelors and childless persons is
striving for the same results in behalf of the fisc without the addition of
flourishes about increasing the population. In the rare cases in which the
state successfully compels affirmative action, especially in the
administration of the army and of taxation, a specially trained and skilled
technique has been developed on the basis of the experience of millennia, or
at least of centuries. Face to face however with a breakdown of discipline
which had been caused by special circumstances or with a well thought out
refusal to pay taxes, the state, on several occasions, had to admit that it was
powerless. Similar results are sometimes encountered in prisons and
boarding schools, because of the great helplessness and suggestibility of the
persons involved. All other cases in which the law of the state produces an
affirmative effect are cases of direct dealings between the authorities and
the population in which the latter realizes, at least to a certain extent, that
obedience to the law of the state will redound to its advantage. The law of
procedure perhaps rests chiefly on this idea. Perhaps the most successful
venture of this nature that the state has undertaken in recent years is the
matter of social insurance« It is a great misfortune for the state that all its
institutions tend to become governmental agencies, even foundations for the
advancement of education, of art, science, and the public welfare; even
schools, museums, expositions, railroads, state monopoly of tobacco, and
hospitals. This causes them to lose not only their adaptability to the
changing needs of life but also their adherents among the people, who could
make them instruments of social progress.
Now how did the law which had been created by the state succeed in
impressing its stamp upon society and what social formations has it brought
about in the course of historical development? When a state lays down for
itself or for its agencies its or their position and functions, it does not
thereby create state law in the proper sense of the term, but law of the state.
The state thereby creates its inner order for itself and its agencies, just as
every other social association must create an order for itself: the church, the
commune, the family, the society. The state does no more than this when it
engages in economic ventures of a private nature, railroads, banks, or
mines. Its law here is the same in principle as that upon which any other
economic venture of a private nature is based.
The state actually creates the people of the state (Staatsvolk), and it does
this, in part at least, through its law. This, it is true, is something quite
different from the people in the national sense, which is exclusively a
product of society. Most of the latest efforts to nationalize by action of the
state, and that means to unite the various peoples which are united in one
state not only into one Staatsvolk (people of the state) but also into one
people in the national sense, have failed. Hitherto it has not been the state
but only society that has been able to nationalize effectually. Nevertheless
the Staatsvolk is an entity of extremely great importance. The unity of a
common constitution, a common army, a common language throughout the
state ; of a unitary system of civil administration, though the unity of the
latter be outward and partial only; the unity of economic territory, which
functions chiefly in the collections of duties, taxes, and fees, and in the
establishment of means of communications; the unity of legislation and the
resultant unity of juristic science and technique and of judicial decision, and
finally the capital, the common center, toward which there is a constant
flow of the population, and from which a great number of suggestions
emanate — all of these things make the Staatsvolk a unique unified entity.
They exercise a profound influence upon creation of law by society. To
attempt to exclude the Staatsvolk, as has been done repeatedly in recent
times, from consideration in the study of legal development is to
misapprehend utterly the weight of these facts.
Furthermore the state creates the peace of the state. It constitutes
agencies whose function is to preserve it, the administrative tribunals, the
police; it assumes control of the criminal courts and by creating state law,
supplies them with a basis for their activity. The norms of state law that we
are concerned with here are parts of police law, of procedural law, and of
criminal law.
They are norms of secondary rank in every respect; they create neither
social nor state institutions; they merely provide state protection for those
that are already in existence.
In matters economic, the state wields a decisive influence through state
law by establishing economic rights that are not conditioned upon the
economic production or exchange of goods. At every stage the state, being
a predominantly military association, is, in a certain sense, in opposition to
the national economic system. It takes no active part in it; for we may
disregard its inconsiderable contributions in its capacity of landowner and
of industrial entrepreneur. The economic goods that it requires, it secures
indirectly from the returns of other economic undertakings. Therein lies the
whole economic content of the state law of finance. Through it the state,
relying on its means of power, determines how much of the returns of the
national economy it claims for itself. Even when the state, in a private
economic contract, obligates itself to render some performance, it must
draw upon other economic undertakings for this, for it is not engaged in
economic activity of its own, except when it acts in the capacity of a great
landed proprietor or of an industrial entrepreneur. It is self-evident that we
are not denying that what the state offers to the people is, or at least can be,
of the greatest possible economic significance; but it is not a result of
economic activity. For this reason the state can furnish the basis for
economic rights only by distributing economic values that are already in
existence in a way different from the distribution that would be effected by
the undisturbed operation of economic activity or by taking a value that has
already been created or that is about to be created from one economic
undertaking and placing it at the disposal of another. In doing these things,
the state relies upon the instrumentalities of power that are at its disposal.
The state law of ownership, the state law and right of inheritance of
collateral relatives, the state annuities and monopolies, the effect of
prohibitions by the state in the law of joint ownership, of things, of contract,
and of inheritance are based on such distribution and transfer of economic
values.
The order of possession is of social, not of state, origin, and therefore is a
creation of society and not of the state. The order of ownership, on the other
hand, derives its origin chiefly from juristic science. It comprises the norms
for decision which determine which one of the parties to the controversy
about possession should win, to which one the courts of the state should
grant protection. So far as this protection is granted according to the order
of possession, inasmuch as the state does nothing more than to give effect to
the order of possession as it has arisen in society, the legal propositions
according to which this is done are not state law but social law, and, indeed,
juristic law« On the other hand, the greater security which the state provides
for the order of possession through criminal law, the police, and the law of
procedure is an achievement of the state. Society, juristic science, and the
state therefore have cooperated in the creation of the law and right of
possession and of ownership. Possession is the social constitution;
ownership is the sum total of the norms for decision of juristic law,
according to which one’s possession is protected by the courts, is restored if
interfered with, and is regained if lost. This greater security is state law.
In Roman law and in the systems derived from it, this relation is
obscured by the dichotomy of the protection of possession into protection of
ownership and of possession in the narrower sense of the term. The idea
underlying this dichotomy is the following: Unconditional protection is
given only to a specifically qualified possession, to ownership; over and
above this, a preliminary protection, which is preponderantly in the nature
of police protection, is granted to all possession even to the altogether non-
economic possession of the thief and the robber. Moreover all protection is
denied to various forms of possession that rest on a sound economic basis,
especially the possession of the ordinary and of the usufructuary lessee,
both of whom are limited to an action on the contract. According to Roman
terminology, which is followed by that of the modern Continental law,
ownership is not in a general way? as it is in English and Scandinavian law,
all legally protected possession, but only such possession as is protected by
special remedies (actio and exceptio asserting ownership). But over and
above this almost all possession enjoys some measure of proteo- tion, and
bona fide possession can avail itself of remedies in the nature of the aciio
Publiciana in rent which are modeled upon the remedies of ownership. The
private law protection of the economic constitution therefore is
extraordinarily well provided with forms, and this fact makes it very
difficult to see it in its social interrelations.
We have no information as to the historical reasons for the dichotomy
and trichotomy of the Romans. But Jhering in his day has shown with
admirable acumen that, among the Romans, possession was merely an
outwork of ownership, and that protection of possession was merely an aid
to better protection of ownership. If we understand possession to mean the
economic constitution, and ownership to mean merely the sum total of the
norms for decision through which the economic constitution is preserved
and restored, the doctrine that protection of possession is merely an aid to
protection of ownership manifestly means only that protection is granted to
possession and to ownership for the sake of the economic constitution and
that the difference between the two is merely a matter of a few
presuppositions and of a few diversities in the effect of legal remedies.
Jhering, I think, has found the reason why the possession of the ordinary
and of the usufructuary lessee was not protected. It was the fact that these
possessors, in fact, were serfs among the Romans. The protection which the
non-economic possession of the thief and of the robber enjoyed even
against the victim of the theft and the robbery probably never was anything
more than a bit of scholastic wisdom. Definitive protection of possession in
the form of protection of ownership is granted, at least in the fully
developed Roman law, to all economically acquired possession, even
though it has been acquired by means of a slight disturbance of the
economic order (bonitary ownership) ; and after a short period of
usucapion, even against the person whose possession has been interfered
with.
Other legal systems, chiefly the Germanic system of the Middle Ages,
the modern English and Scandinavian systems, do not differentiate between
protection of possession and protection of ownership. Every economic
possessor is granted the identical remedies. And in a case of possession of
movables this is done also in modern
German and French law. This perhaps is the most convincing proof that
the Roman dichotomy is based solely on a dichotomy of legal remedies, not
upon a difference in the nature of the thing protected. The question has
often been raised whether, in view of the expeditiousness of the modern
Austrian procedure, the dichotomy is justifiable at the present time.
In addition to this social ownership, which consists solely in the
protection of the economic constitution by the state, there is an ownership
which is purely a matter of state law, and which arises and exists solely
through the will of the state independently of the economic constitution.
The state can grant the same protection that it grants to the possessor to a
person who has no possession, who has never acquired possession
economically, by commissioning its agencies independently of all economic
presuppositions, in the first place to secure possession for the person
favored in this manner, and thereafter to protect him in this possession and
repel attacks that may be made upon it. It will also, of course, instruct its
courts in case of litigation to decide in favor of the person whom it has thus
made the owner. The most important instance is that of the great landowner
and the disencumbrance of land of its burdens and charges.
The ownership of land by the peasants is purely economic, and arose
independently of the state and outside of the state, and to a great extent
prior to the state. Ownership of great proprietary estates, however, apart
from the rare cases of purchase of peasant lands, which hardly ever
occurred in the very distant past, owes its existence to the state. The great
proprietary estate, in contrast to the economic ownership of the peasant, is a
political ownership of the ruling classes, created by the power of the state.
In the last analysis therefore it is merely the expression of political
ascendancy. When the populus Romanus asserted a claim to the ownership
of the solum provinciale, when the king of England declared himself owner
of all the soil of England, they meant to say that in virtue of the right of
conquest they would dispose of the land according to their arbitrary will.
The principle, nulle terre sans seigneur* merely reflects the fact that the
powers that rule the state, the king, and the nobility, have succeeded in
overcoming the resistance of the peasant landowners. Likewise every grant
of ownerless or of occupied lands by the king to his grandees was merely an
exercise of the power of the state. And it is exactly the same thing when
counts and princes in the Middle Ages appropriate rights in forests, rivers,
and mines, when they compel their subjects to receive their own lands in
feudal tenure. Probably this device of subduing the peasants was never
successfully carried out to any appreciable extent without the aid of the
state. Occasionally the mere formal declaration of the sovereign power of
the state that it had determined to treat a person as the owner of land was
sufficient to make that person the owner. One of the most famous cases of
this kind is the creation of great proprietary estates in Scotland. When the
English, after the battle of Cullo-den, proceeded to destroy the ancient
Gaelic clan organization, they accomplished their purpose by declaring that
the chieftains of the clans were the proprietors of the whole clan territory,
which had, until then, been held in common. The ownership of great
proprietary estates in Bengal began with an error of the English, who in the
eighteenth century mistook the tax on land for rent, and thought that the
peasants who were obligated to pay a tax were tenants of the maharajahs.
1 No land without a feudal lord.

There is no doubt that the great proprietary estates owe their existence to
the power of the state. When the state created these estates it was acting as
the association of powerful warlike nobles. The individual noble to whom
enormous domains had been assured or given in fee found among his
fellow-nobles, who, united, constituted the state, a measure of support
which might, on occasion, become very useful. But he had to do the actual
taking possession himself. Without personal means of power, relying
merely on a document of grant, no one would have undertaken to take
possession of these estates or have been able to maintain possession. The
situation is the same as that which one finds in other spheres when a man
secures the aid of those who are associated with him in a smaller
association in order to attain his object.
 The state-created ownership of great proprietary estates as such has no
economic content. The state cannot breathe the breath of life into an
economic institution by decrees based merely on the possession of power.
What is the effect of a grant of land by the state? Is it anything other than
the promise of the state to support the grantee in his attempt to take
possession, to repel attacks upon this possession by others, and to aid him in
securing income from the land? In the case of a new and feeble state this
may not amount to very much; it furnishes a sufficient pretext, however, for
the powerful noble to exert his own strength to convert the peasant, who
until then has been an owner, into a usufructuary lessee or into a serf in
order thereby to secure for himself a share of the returns of the economic
activity of the latter, or, to state the matter technically, to get ground-rent
(Bodenrente). Giving uncultivated land amounts to a warrant for the returns
that may accrue to the donee from his own economic labor or from any
other form of economic activity, e.g. from colonization.
Disencumbrance of the soil is the opposite of the feudal grant. It is the
abolition of the right to ground-rent which had been created by the nobility
and the state through the exercise of their own power. Numerous
disencumbrances of this nature took place in antiquity; for example, among
the Romans perhaps in the fourth century of the city, at least in the
immediate vicinity of Rome. In England, an incomplete one took place in
the year 1660 (12 Car. II) ; in France, after several earlier attempts, a
complete disencumbrance in the year 1789; in the rest of Europe
everywhere during the course of the nineteenth century.
When the state proceeds to emancipate the peasants and to disencumber
the soil, the situation is quite different from that of the time when the land
was granted to the nobles. The driving force in modern instances of
disencumbrance is a powerful urban citizenry which enters into direct
relations with the state. The state is no longer exclusively an organization of
the landowning nobility. The urban citizenry takes a lively interest in the
emancipation of the peasantry, because this emancipation makes it possible
to draw them into the general commercial life, into the economic system of
finance and credit, and because the domination of the nobility is held in
check thereby. The king becomes independent of the nobility, inasmuch as
he has already created a standing army and is therefore no longer limited to
the military service of the nobility; he begins to administer the affairs of the
state himself through officials who are dependent upon him. The king is
desirous, in his own interest, of improving the economic condition of the
country, and the modern science of economics, which was originated and
developed by the urban citizenry, shows the way in which it may be done,
i.e. by advancing industry and commerce through the liberation of
economic forces from feudal fetters. The newly developed science of
agriculture teaches that progress in agriculture and feudal landholding are
incompatible. The nobility gradually loses interest in continuing the servile
state of the peasantry, having become convinced that the returns from
unfree labor are inadequate, and in view of the changed economic situation
welcomes the substitution of a money payment for the feudal burdens. So
the state, in emancipating the peasants, merely does that which the general
economic situation seems to demand. We may therefore say that both the
state-created ownership of the great landed proprietor and the
disencumbrance of the soil are achieved by social forces. Apart from such
disencumbrance, land-holding on a smaller scale very rarely owes its
existence to the state. Instances of this are the sale by the state of
confiscated estates during the French Revolution, and here and there
colonization by the state.
The right of collateral relations to take by succession probably owes its
existence everywhere to norms for decision which the state has received
into its law and developed. The whole process of development is little
understood, for the reason that historical investigations in the field of law
have consistently overlooked the relation between the law of inheritance
and the military constitution of the state. The fact that in primitive times the
estate of a deceased person who had been living alone without clan or
family connection became ownerless, and therefore became the property of
anyone who seized it, was a matter of little importance as long as there were
few persons who lived alone, and as long as, because of the simplicity of
the economic constitution, the destruction of economic values incident to
ownerlessness did not import great loss. But as soon as the situation
changed, it became necessary for the state to make provision for estates of
persons that died without heirs. In the ancient state the citizen was also a
warrior; and when a citizen died without heirs, his collateral relatives were
called to the inheritance in order that the number of warriors might not be
diminished. In the feudal state the vacant feud had to be given to someone,
for otherwise the feudal services would not have been rendered. If in
addition to this there exists in the feudal state a right of inheritance in the
collateral relatives, with a preference given to the male relatives, this is a
survival from the days of the universal duty of freemen to render military
service, which must now seek to hold its own against the will of the king.
Fixed principles determining the question to which collateral relatives the
feud should be given were arrived at very slowly. The broad lines of this
development in Germany, France, Eng-and, and Italy are well known»
Accordingly a right of inheritance in the collateral relatives, comparable
to that which probably had been in existence among the Romans and the
Germans in prehistoric times, arose everywhere among the Slavic peoples
in the fourteenth century. But it developed chiefly at the expense of the
right of escheat of the princes and the noble landowners, which had by that
time been fully developed. The transition can be seen quite clearly in the
code of Czar Duschan. Article 41 provides: " Whenever a noble landowner
dies who has had no child or who has had a child which has died, his
inherited lands shall be considered ownerless until someone is found of his
house to the third child of a brother. This child shall inherit from him." We
shall here merely point out the fact that the very wording of this paragraph
shows that it is an innovation. Take also paragraph 48: "When a noble
landowner dies, his best horse and his armor shall belong to the Czar, his
great festive garment and the golden girdle shall belong to the son, and the
Czar shall not take it away from him. If he has no son, it shall belong to his
daughter, who shall have the disposal of it."
The payments made by the state to its creditors, the salaries of officials,
the pensions of officials and of their families, are rentes derived from the
state. In the earlier days payments by the state to especially favored persons
were also of great importance« Payments out of the treasury of the state
were an appropriation to a private person of a share of the returns of the
national economy which the state had claimed for itself. In the days when
payment was made in kind, the state directed the person entitled to collect
directly from the person obligated to pay.
In time past the private monopolies granted by the state were chiefly the
proscriptive rights; today they are the rights granted for the protection of
literary and artistic creation, and in part the income from certain professions
that are favored by the state. The state forbids the practice of a certain trade
in general terms, and except s a certain favored person from this
prohibition. By doing this, it permits the privileged person to engage in an
economic activity, to engage in which he normally would not require the
permission of the state; but the prohibition of the state enables him to sell
the products of his economic activity or his services at a higher price than
their economic value warrants. This overplus is a profit, which accrues to
him because of the monopoly, and which he receives at the expense of other
economic undertakings. State monopolies therefore are creations of society
to the same degree as of the state. Economic undertakings, inventions, do
not owe their existence to the state. Only the norms of the second order, the
norms of penal law, of police law, of procedure, through which the state
excludes competition, proceed from the state.
And lastly the state acts through its courts and agencies by imposing
limitations upon free activity. It prohibits certain communities or it
dissolves them, especially certain family relations (void and punishable
marriages); it takes away, and limits, rights of ownership; it denies
recognition by courts and administrative tribunals to dispositions by last
will and testament and, if need be, destroys them by its own action; it has,
in the past at least, not only maintained existing conditions of serfdom by
refusing legal protection, but has also exercised an active influence upon
the content of this condition of serfdom by the extent to which it granted or
refused legal protection, and in the end has abolished them altogether. In
this very matter the state proceeds by means of norms of decision. And it
does this in essentially the same manner as does juristic science.
Summarizing the influence of state law upon the state of the law in the
course of its historical development down to the present day, we may say
the following: By creating constitutional and administrative law, the state
has created its own law for its own needs. It has fused the various groups
that are occupying its territory into a unified people of the state (Staatsvolk)
and by doing so has prepared the way for a unitary development of law.
Through its courts and administrative tribunals, with the aid of its
secondary norms, penal law, police law, procedural law, it has brought
about for the state and social institutions an increased measure of security. It
has established ownership as distinguished from possession, and made
possible the right of succession in the collateral relatives. It has created
rentes and monopolies. By its prohibitions and limitations it has exerted a
powerful influence upon social institutions, upon communal life, relations
of domination, ownership, possession, contract, succession.
Thereafter society keeps on building on the foundation laid by the state.
Communities, relations of domination and of possession, contracts, articles
of association, declarations by last will and testament establish their inner
order, in part at least, according to the directions of the authorities,
according to the kind and measure of protection which they can expect to
receive from the courts, or they make special arrangements to avoid the
hindrances and traps put in their way by the latter. So in the last analysis the
state of the law is a resultant of the cooperation, the interaction, and the
antagonism of state and society. And in this way state law, too, can become
juristic law.
As soon as state law has actually become part and parcel of everyday life,
and has exerted a moulding influence upon it, jurists will no longer confine
their attention to the words of the statute but will be concerned with the
forms of life that have come into being under its influence. The
universalizations which they arrive at in doing this, the norms which they
find, will, of course, be juristic law. This happened in Rome in the case of
the Lex Falcidia and of the senatusconsultimi Velleianum, and has happened
again and again since that time. English commerce is regulated by the
Statute of Frauds to such an extent that the English were unwill-ing to
change it although it is quite antiquated, but took it over in part almost
verbatim into the Sales of Goods Act of the year 1893. Inasmuch as the
German testament is derived from the Roman testament, the Lex Falcidia
was received into German law together with the latter, and has become a
part of the living German law no less than the testament. It is well known
and generally understood that the canon law prohibition against usury is in
exactly the same case. It has all the hall-marks of state-made law. The
church, which promulgated it, was an association partaking of the nature of
a state, and was, in this case, as the state is in other cases, an agency of
society for the purpose of creating law. Through its own courts and through
its influence upon the courts of the state, the church was enabled to give
effect to its law as readily as a state.
Accordingly we shall have to call the part played by the state in the
creation of law a very limited one. Nevertheless we are all under the
influence of the notion of the omnipotence of the state ; and this conception
has undoubtedly given rise to a series of social thought, sequences which,
though they are conditioned historically, and therefore destined to perish at
some time in the future which cannot be determined in advance,
nevertheless dominate the thinking of the whole civilized human race at this
time. Chief of these is the thought that the power to legislate is the highest
power in modern society, and that resistance to it is to be condemned under
all circumstances; that there cannot be any law within the territory of the
state that is in conflict with statute law; and that a judge who in the
administration of law disregards a statute is guilty of gross violation of duty.
Since it is the function of the sociological science of law, like that of every
other science, to record facts, not to evaluate them, it cannot possibly, as
some have believed, tend to establish, at the present stage of human
development, a doctrine which might lead the judge to violate his judicial
oath. And even though it cannot but state that the judge in the performance
of the duties of his office is frequently quite unconsciously, albeit
sometimes consciously, guided by non-legal considerations, in making this
statement it is merely recording facts, not evaluating them.
But the basic social institutions, the various legal associations, especially
marriage, the family, the clan, the commune, the guild, the relations of
domination and of possession, inheritance, and legal transactions, have
come into being either altogether or to a great extent independently of the
state. The center of gravity of legal development therefore from time
immemorial has not lain in the activity of the state but in society itself, and
must be sought there at the present time. This may be said not only of the
legal institutions but also of the norms for decision. From time immemorial
the great mass of norms for decision has been abstracted from the social
institutions by science and by the administration of justice, or has been
freely invented by them; and legislation by the state, too, can generally find
them only by following the social institutions and by imitating scientific or
judicial methods.
XVII Changes in the Law in the
State and in Society

AND now may we be permitted to enter upon the discussion of one of the
most popular questions of juristic metaphysics, to wit the question whether
at the present time the law grows through legislation only or through
legislation and "customary law"; whether there is such a thing as
"customary law" today; and if so, whether it can be rendered superfluous by
legislation. All of these questions, rightly understood, automatically become
superfluous when the origin and the growth of law are rightly understood,
i.e. when they are understood to mean the origin and the transformation of
social institutions. There can of course be no doubt that in this sphere as
well as elsewhere the state can bring about or prevent many things by direct
interference and by decisions of its tribunals. But it cannot be disputed that
it is unable either to set the whole course of development in motion or to
bring it to a standstill, that in a progressive society at least, new institutions
are continually coming into being, and existing ones are developing
irrespective of what the state may do about it. A glance at legal history will
show that even at a time when the state had already gained control over
legislation, great changes were always taking place in the law that were not
brought about by legislation. Slavery disappeared from Europe during the
course of the Middle Ages; from the beginning of the sixteenth century the
peasant in England was gradually acquiring an ever increasing measure of
liberty, while in Germany his freedom was being progressively curtailed;
and wherever modern large-scale industry has been introduced, it has given
rise to countless new kinds of contracts, real rights, rights of neighbors,
forms of succession, and has influenced even the family law. In the
beautifully developing cities of detached houses of our time a servitude
requiring the building of detached houses has arisen. Electrical works have
given rise to new kinds of real rights, among others the rights of
transmitting currents, and new kinds of obligatory contracts, among others
the contract to supply electrical current. These doubtless are changes in the
law, and, in part, such changes as history tells of in tones so loud that no
one can fail to hear. Perhaps recalling to memory a few pictures from the
days of our own youth will enable us to answer the much mooted question
whether new customary law can arise today. The family of today is not the
family in which we spent our youth; the marriage of today is not the
marriage that we grew enthusiastic about when we were young; commerce
and life have changed; contracts of purchase and sale, of ordinary or of
usufructuary lease, for services and for wages, of a nature quite different
from those of the past, are being made. The relations of master and servant,
of employer and employee, of producer and consumer, are quite different
from those of former days. Share companies, undertakings for the
transportation of persons or goods, associations, banks, stock exchanges,
and dealings in futures can scarcely be recognized. But a few decades ago,
where were the trusts, cartels, unions, strikes, and Tarifverträge (collective
labor agreements)? Surely no period of time has ever made such rapid
progress as has our time. Never have father and son stood so alarmingly far
apart in thought, sentiment, and conduct as today. These, to be sure, are new
forms of life; in part, basically changed forms of our whole social and
economic life, i.e. new law.
To all of these the state is not a party. The law changes because men and
things change. To use an illustration of Herbert Spencer's, one can heap up
cannon balls to form a pyramid or a tetrahedron, but one cannot pile them
vertically, one above the other, so that they form a wall; one can build a
wall with hard, sharp-edged bricks, but one cannot heap them up like
cannon balls to form a pyramid. In this sense the qualities of a composite
body are always determined by the qualities of its component parts, and the
qualities of a human association by the qualities of its members. No two
marriages and no two families will ever be found in which the same order
obtains, for the simple reason that in the whole wide world there are no two
married couples that are exactly alike, nor two sets of parents and children
that are exactly alike. The family law of the Romans or of the Ger- mans of
the Frankish period was the general order of the Roman or of the Frankish
family — an order which was not a creation of Roman or Frankish law but
which arose directly out of the qualities and needs of the human beings who
lived in these families. Were the eyes of the jurist trained to observe his
own time as those of the legal historian are trained to observe past centuries
and millennia, he could not possibly fail to see that our modern family law,
too, is primarily an order that is not created by the precepts of the statute-
book, but one that grows out of the needs of the human beings that live in
families, and that it changes and develops according to these needs. What
has been said of the family may self-evidently be said of every other
association, of the state, of the commune, of the associations of employers
and employees in the workshop and in the factory, of national and world
economics, i.e. the form of the whole is always conditioned by the nature of
its component parts. When men change in the course of time, their law
changes with them. The great error of the jurists, even of those of the
Historical School is that they are always inquiring into the development of
the legal proposition. Let them get used to observing the development of the
legal relations and of the legal institutions, and they will see that the legal
propositions have developed with them though not even a comma has been
changed. All historical development of law is based on the fact that men
and their relations to each other at any given time are of such marked
individuality that they can be what they are at a given time only at that
particular time, and that they therefore are subject to ceaseless change in the
course of time. Within the short span of human life, the change as a rule is
not sufficiently great to attract much attention, although there have always
been old people who can tell how different all things were in their youth.
But in the course of historical development minute changes grow into vast
accumulations. The gulf that is fixed between the legal order of the Middle
Ages and that of the modern period, vast though it may seem to us, owes its
existence to the accumulation of minute changes, the significance of which
probably not one of their contemporaries surmised. That which is primarily
subjected to ceaseless change is the distribution of power among the
associations themselves, among the individuals that are members of the
same association, and among the various associations that together
constitute an association of a higher order. And every change in the relation
of power necessarily effects a change in the social norms that obtain in the
association. For the associations unite their members for the pursuit of
common aims, and the norms that arise within them are, in the first place,
merely an expression of that which the community, according to the views
and moods that prevail within it, quite without justification perhaps, thinks
the interest of the whole justifies it in requiring at the hands of the
individuals and groups that it is composed of. But the individual in an
association lives his own life, having his own ends in view; and where
society has reached a more advanced stage of development, he is a member
of several associations which make diverse and perhaps conflicting
demands upon him. The norms of the community therefore are not only the
sum but also the extreme limit of that which the community may demand of
the individual, they constitute a compromise between the demands which
the whole makes upon the individual and those which the individual makes
upon the whole. And this compromise shifts continually according as the
content or the effect of the forces within the association varies.
In my book on legal capacity I have shown that the mere fact that the
family household as a self-sufficing economic establishment was gradually
disappearing necessarily put the whole family law upon an altogether new
basis. As long as the household as an economic unit produces almost
everything that the members of the household require, the members of the
family remain at home; each member has a sphere of activity corresponding
to his ability and his position, and is supplied with most of the things which
he requires to keep body and soul together. The dissolution of the household
as an economic establishment compels the members to leave the household,
to seek their livelihood in the world, and with the returns from their labor to
buy what they need to keep body and soul together outside of the home in
the open market. For goods are no longer produced in the home but in the
factory, in the workshop, in a different agricultural establishment. This
emancipation from economic dependence upon the household frees the
members of the household from the control of the head of the family ; the
economic struggle which every individual must now wage outside of the
house gives him the economic and the psychological self-dependence which
enables him to maintain his independence against the head of the
household. This appears with the greatest possible clearness in the rights of
the married woman, whose sphere of activity in the organized economy of
the household was one of equality with that of the husband, but which she
has lost, with the exception of a few insignificant remnants, thanks to the
modern division of labor, and the modern economic systems of finance and
credit. She therefore seeks a sphere of activity outside of the home, and the
limitations upon the legal capacity of women, which the German Civil
Code has carried over to our time from a time long past, will undoubtedly
be smashed by colliding with these simple facts. This was the fate of similar
provisions in the French Civil Code, which, it must be admitted, was right
in this, inasmuch as it came into existence at a time when the organized
family household still possessed a considerable amount of vitality. As is
well known, neither the French Civil Code nor the German Civil Code deny
legal capacity to the married woman, but in actual fact the statutory
matrimonial régime of each country practically reduces the married woman
to a state of nonage. Nevertheless the married woman of France is as free
and unrestrained in her movements as the married woman of any other
country in the world. In his book "La femme dans le ménage" Binet says on
the subject: "Les mœurs de notre pays nous offrent depuis longtemps le
spectacle de l'épouse vaquant en toute liberté aux diverses opérations du
ministère domestique, sans qu'il vienne a l'esprit de personne de lui
demander de justification du consentement marital. Et ce n'est pas là un des
moins remarquables exemples de l'antinomie apparente, si souvent signalée
chez nous, entre la loi et les mœurs, entre le droit et le fait." Binet adds the
words of Tissier, which he quotes from a report on the Société d'études
legislatives (Ire année) : "Celui qui, sur le rôle de la femme mariée dans la
famille en France, sur ses droits et ses pouvoirs concernant les intérêts
pécuniaires du ménage, ne connaît que les textes de notre loi en a une idée
certainement bien fausse, et on peut affirmer que ces textes ne sont plus en
harmonie avec notre manière de penser, ni avec notre manière de vivre."
Without doubt the family law of the French Civil Code has been abrogated,
in part, by new customary law.
From the law of property we shall adduce only the Liej"ermigs und
Gattungskauf.1 It was not known to the Romans. In the Middle Ages it is
not found in Germany, at least in ordinary business dealings. When it first
appeared in commercial life cannot be readily ascertained; but in view of
the peculiar nature of mediaeval commerce, at least in Germany, it is not to
be assumed that it happened before the reception of the Roman law. Until
that time the goods were regularly examined by the purchaser or his agent
before the sale was concluded. At the beginning of the modern age it gained
in importance, and Ulrich Zasius devotes one of his best known treatises to
it. Since that time it has gradually become the transaction that prevails in
business generally. One would look in vain for a precept that has introduced
it into the legal system and has established its manifold and extremely
complicated forms. This contract, which has impressed its stamp upon our
whole legal life, came into use without the aid of a single legal proposition.
It owes its existence almost exclusively to the rise of large-scale industry, to
the introduction of regular postal service, to improved roads, improved
facilities for the transportation of freight; and lastly, it owes its perfection of
form to the railroads, to navigation, to the telegraph. Is not that new
"customary law"?
All legal development therefore is based upon the development of
society, and the development of society consists in this, that men and their
relations change in the course of time. Other men will live and have their
being in other legal relations, and since legal relations are to a great extent
based on legal transactions, new legal transactions will emerge in the course
of time and the older ones will disappear. New associations will be formed,
new kinds of contracts will be entered into, new kinds of declarations by
last will and testament will be made. All of this must appear most palpably
in the content of the legal document. The truth, well understood among
legal historians, that the law of a given period must be found in the
documents of the period has very rarely penetrated the consciousness of the
jurist. The reason for this is the fact that he does not see the law, but only
the legal proposition. The legal proposition which says that articles of
association, contracts, declarations by last will and testament, are legally
binding under certain circumstances has remained unchanged while the
content of the contracts, testaments, articles of association, has changed.
And for this reason the jurist thinks that the law has not changed. If this
were true, only that could be called a change in the law which cannot be
explained on the basis of the principle of liberty of contract, of testamentary
disposition, and of association. But liberty of contract, of testamentary
disposition, and of association are mere blank forms or set patterns. And for
the very reason that they are merely blank forms or set patterns, the
development of the law goes on, within their compass indeed, but not
through them. When the Roman pontifices for the first time put the
testament into the form of a mancipation they thought perhaps that they had
merely been applying the principle of liberty of contract, did not think that
they had made a change in the existing law. As a matter of fact however
they introduced a most momentous innovation into the law. They put a new
picture into the old frame. It is true, a single arrangement or agreement in a
contract, in articles of association, or in a will is not new law; for the law
deals only with that which has a great vogue and which is a matter of
customary practice. But a juristic act is never an individual, an isolated,
thing; together with the greater part of its content, it is a part of the
prevailing social order. The needs that occasion certain legal transactions,
e.g. the creation of corporations, contracts, wills, are general social needs,
and the means to satisfy these needs are as general as the needs themselves.
Accordingly identical articles of association, contracts, testamentary
declarations of will, occur again and again at a given period of time and in a
given region — identical not only in content but also in wording. Nobody
knew better than the Romans that the traditional content of the declarations
of the parties are a part of the existing law. One glance will convince us that
practically the whole contract law of the Digest, including the matrimonial
régime and the law of pledge as well as the law of wills, is based upon the
agreements and declarations that the parties are in the habit of making.
1 Contract sale of goods designated only by genus.

The situation is the same today. To a person who has any conception of
the importance of the usufructuary lease in agriculture, a glance at the few
meagre provisions of the Austrian or of the German Civil Code will suffice
to convince him that they cannot possibly be sufficient to meet the needs of
agriculture in Austria or Germany. It is a very superficially modernized law
of the usufructuary lease of the Roman latifundia. Shortly after the German
Civil Code had become effective, Schumacher repeated Blomeyer's
statement, made long before, that the contract of usufructuary lease ought to
be drawn up in such form that no legislation would be required for the
regulation of the legal relations between the lessor and the lessee. Whether
there is any sense in enacting legislation of this kind, to avoid the
consequences of which the parties must call in the aid of the notary, I shall
not discuss here, but I would say that the course which German agriculture
was to take had been clearly marked out for it quite independently of
legislation. The question as to the form and the content of the contracts of
usufructuary lease has been discussed repeatedly, and a small, extremely
interesting and valuable literature has grown up on the subject, which, of
course, the jurists know nothing of.1 A study of this literature reveals that
the agricultural contract of usufructuary lease is an institution, which was
carefully elaborated according to technical rules during the course of a
century of development, and which possesses a degree of elasticity that
enables it to conform to the existing status of the agricultural production of
goods; that there are many forms, widely used in Germany, one of which,
the one employed in the administration of the royal Prussian domains,
possesses a great reputation, although it must be admitted that this
reputation has often been impugned.
1 Schumacher, Das landwirtschaftliche Pachtrecht, Berlin, 1901. Cf.
Preser, Pacht, Pachtrecht und Pachtvertrag über grössere Landgüter
in Österreich (1880); von Batocki und Bledau, Praktische
Ratschläge für den Abschluss von Privatverträgen 1909. -—
Author's note.

The law of agriculture offers another illustration. At the request of the

German Agricultural Association, Professor Dr. Otto Gerlach, with the
cooperation of Dr. Franz Mendelssohn and Regierungsbaumeister (architect
to the government) Alfred Blum, has studied the workers' settlements in
North Germany, and has published the results of his investigations in the
reports of the German Agricultural Association. From it the jurist can learn
first of all that there is a labor problem in agriculture, and that the future
economic and social structure not only of Germany but of all Europe is
conditioned upon its solution; that for more than a century, and to an ever
increasing extent, with ever increasing methodicalness and clarity of
purpose, attempts have been making to solve it, chiefly by inducing workers
to settle in the country; that these attempts have brought about various new
kinds of agreements, i.e. pure contracts of usufructuary lease, contracts of
usufructuary lease in connection with contracts for work and labor, and
contracts of purchase and sale with special provisions. Perhaps all of these
formations are still too heterogeneous and each kind too individual in its
nature; but if they are not yet fully developed law, they are law in the
process of becoming. Suppose that one of the many systems suggested and
tried should meet all the requirements, and come into general use in all
Germany or at least in a part of Germany, can there be any doubt that this,
even without any legislative interference, which, as can readily be foreseen,
would be quite superfluous, would bring about an enrichment not only of
economic life but also of the law?
 The reason why the law is in a perpetual state of flux is that men, whose
relations the law is designed to regulate, are continually posing new
problems for it to solve. The family and the marriage relation are not
changing at the rate of one change in a century, as the printed histories of
law seem to assume; it is a daily, an hourly change, and the great changes
that history re- cords are produced by the vast accumulation of these
smaller changes. The concept of ownership, too, has been developing
hitherto without ceasing, and continues to develop before our very eyes.
Doubtless it is not all one, either economically and socially or legally,
whether the owner of large tracts of land grants them to vassals or whether
he hires a manager with a staff of assistants; whether he carries on with
villeins or lets the estate to lessees well supplied with working capital;
whether he conducts his economic undertaking according to the three-field
system or establishes sugar factories. Each of these methods of operation is
subject to its own law, and whenever agriculture turns from one method to
another, the law regulating it changes with it. Whether a waterfall turns the
wheels of a modest little water mill or supplies an electric power plant with
hundreds of units of horsepower is not without a bearing upon the law and
right of ownership thereof. The formal principle of liberty of contract
cannot prevent the law and right of contract from changing when the
contracts that have been customary until that time are being entered into
with a new content which meets the new requirements. And the law of
inheritance? Surely it is not immaterial whether one leaves a great
proprietary estate or a factory, a mercantile establishment or millions in
stocks or other securities. The enormous economic progress of our day,
which has not yet run its course by any means, must exert the greatest
possible influence not only upon the content of last wills and testaments and
upon the division of estates in cases of intestate succession, but also upon
the whole process of transfer of property mortis causa. The matrimonial
régime of personal property under French law, the distinction made by
English law between succession in case of real and of personal property,
have been deprived altogether of their former significance by the fact that
the importance of personal property, especially of the ownership of
securities, has increased immeasurably during the course of the last century.
This, too, proves that the great revolutionary changes in law do not take
place in the legal propositions but in the social relations. Would anyone
doubt that customary law can arise even now without the expressed
permission of the legislator?
It is clear that as compared with the unceasing development of the social
law, the rigid, immobile state law lags behind only too often. The law,
whatever its form, is always a manner of rule of the dead over the living —
to use Herbert Spencer's translation of Goethe's famous words. It is this,
perhaps, that makes every collision with the state or its agencies an
experience so painful to every person of refined sensibilities — the more
painful, the more intimately the relation with which the state interferes is
connected with his emotional life. This unpleasant situation becomes
endurable only inasmuch as these collisions do not occur too frequently,
and can be avoided as a rule by the exercise of a certain measure of care.
Fortunately the great majority of men know the state, its courts, its
agencies, and its law only from avoiding them. But there are others who see
to it that the latter do not become superfluous altogether, and we must
therefore discuss the question how the problem of this conflict is being
solved in actual life.
To the extent that the law of society is being fitted into the frame of the
traditional, especially the frame of liberty of contract, of association, of
testamentary disposition, either directly or with the aid of the art and
science of drawing up legal documents, it creates the norms for decision
which it requires, and according to which it would be judged. The effect of
contracts, of articles of association, and of testamentary dispositions is
determined chiefly by their wording. In part this law goes beyond the literal
meaning of the words, for, in the course of time, the course of judicial
decision has learned to interpret them according to bona fides, Treu und
Glauben (good faith), and according to business usage. This does not mean,
as is usually believed, the unexpressed, surmised intent of the parties but
the social and economic relation to which these declarations of will belong.
Bona fides, Treu und Glauben, and business usage accordingly become not
only sources of the living social law, but also sources of norms for decision
and finally of legal propositions.
It is otherwise where the change has taken place outside of the forms of
the established state law. In that case the law is not touched by the change;
its norms of administrative action and for decision remain unaltered. The
great never-ending task of juristic science is to resolve the conflict between
the changing demands of life and the words of the established law. For this
purpose it has developed its own technique in its most important branches,
to wit the branch dealing with the art of drafting legal documents, that
dealing with the work of the attorney, and that dealing with the work of the
judge. It is by no means the same everywhere. It was one thing among the
Romans; it is another at the present time on the Continent on one hand, and
in the territory of the Anglo-American law on the other. It would be an error
to suppose that the means adapted to the accomplishment of this purpose
have been found once for all. On the Continent juristic science still operates
in part with certain very flexible concepts of traditional law and in part with
a still more arbitrary and whimsical construction of the whole content of the
code. And the chief cause of the movement toward free finding of law is the
susceptibility to attack and the insincerity of these methods, which are
always seeking, by stealth, to reach a predetermined, definite, desired result,
by interpreting the words of a statute the meaning of which is contrary to
the result sought. Wherever state law is applied to cases which the legislator
did not definitely have in mind, it must needs be subjected to a process of
revaluation, It would be superfluous to enter upon a discussion of this
whole problem since it has recently been made the subject of a brilliant
presentation in WurzePs book entitled "Das juristische Denken," * perhaps
the best book that has appeared on the Continental juristic method of the
present time. Wurzel calls this process "projection," i.e. application of a
juristic concept of the legal proposition as it has been formulated, without
any change, to phenomena which were not within the contemplation of the
proposition or, at any rate, were not demonstrably so. In public law, Jellinek
has treated these phenomena as changes of the constitution.
Juristic projection in its essence is merely the immediate effect of the
inner changes in the life of society upon the norms for decision. Without
this process of projection, to which resort must be had by the jurist every
day and every hour, administration of justice would be utterly unthinkable
under state law, particularly in view of the present absolute sway of the
latter. Without it, it would have been altogether impossible to retain the
traditional constitutional law, the state private and administrative law of the
stormy movement which is under way in society at the present time, and
with which legislation is altogether unable to keep pace. To a great extent, it
is true, this retention is apparent only. Large-scale industry, railroads,
telegraphs, and telephones have imposed new tasks upon the administration
of justice and upon civil administration. Unequal to the unaccustomed labor
of free finding of law, they made shift by projecting the traditional norms of
state law, as well as they could, upon the new relations. A similar thing is
going on before our very eyes today. About a quarter of a century ago large-
scale industry gained control over a new source of power, electricity. This?
without more, imports new social law, but new state law will not fail to
appear. The arreiisles in France who are writing the commentaries in the
great collections of judicial decisions by Dalloz and Sirey are concerned at
the present time with the development of the law contained in the judicial
decisions, which is essentially a projection of the law upon new facts of life.
1 Juristic thinking.

Projection is midway between application of law and finding of law.

Now it partakes to greater extent of the nature of the former, now of the
latter. Apart from the cases in which the judicial activity is something quite
different from application of law, even in the cases in which it actually is
application of law, it is a creative act on the part of the judge. But a creative
act presupposes a creative mind. When the administration of justice is
unequal to this task, it becomes a dead weight upon legal life. When the
Austrian court of cassation, without stating the legal grounds for its action,
as it usually does even in its best decisions, found a man guilty of abduction
who had bought a railroad ticket for a woman who was fleeing from the
brutalities of her husband, it rendered a decision which is felt by every jurist
like a blow in the face. Still all that is lacking in this case is a projection in
time and space. In a state of slaveholders a decision of this kind would be
quite in order; for everyone would be convinced that it is not permissible to
help a slave make good his escape. In fact as long as slavery existed in the
southern states of the United States of America, i.e. until the war of
abolition, such an act was properly punishable there. The Romans, it is true,
although they were a nation of slaveholders entertained milder views than
the southern states and our court of cassation. A person who misericordia
ductus freed a slave who had been chained could not be held liable in an
actio doli, which was penal in its nature, and condemnation in which
subjected the party to infamy, but only in an actio in factum for damages.
The sway of social forces brings about a continual shifting of the
boundaries between the law of society and the law of the state. Interests
which had been protected only by norms of social law obtain the protection
of state legal norms as soon as their importance is more perfectly
understood. A change of this sort can be brought about by judicial decision;
the judge, acting solely in the capacity of a functionary of the state, projects
a social norm as a state norm upon legal relations to which it did not
originally refer. An instructive case of this kind is the defense of gaming.
Originally based upon a social norm for decision, it began to take on the
character of state law during the last quarter of the last century; in part this
was brought about by state legislation and in part by judicial decision, since
the courts avail themselves of this defense in order to curb the activities of
persons not entitled to operate on the stock exchange. In my book, Das
zwingende und nicht zwingende Recht im Bürgerlichen Gesetzbuch, I have
endeavored to show how numerous regulations of the Civil Code which
were intended to be social regulations must become state regulations as
soon as the public becomes aware of the social interests involved.
This explains how it came about that many a rule of law was received
from the law of society into the law of the state without any external
change, purely as the result of moral or social changes. The family law
powers which in Rome originally were a matter of private law and right
similar to the law and right of ownership lose this characteristic quality, in
part, as early as the days of the Empire. This is true especially of
guardianship. And in modern law the patria poiestas is gradually being
converted into a public office. A large part of the law of contracts,
especially the law of the contract of labor, is being converted into state law
before our very eyes. The oldest Roman penal law was state law only
inasmuch as it was applicable to parricidium 1 and perduellio2 although the
private law proceeding could often lead to a punishment as severe as that of
public law. But this private penal law was displaced by public law to a great
extent in the days of the Republic and to a still greater extent during the
days of the Empire. The right of the husband to kill his adulterous spouse
and her paramour, which has been recognized indirectly at least by the Code
penal (Art. 374 Al. 2, and cf. Art. 375), is the last trace, perhaps, of private
penal law to be found in a modern penal code. It may possibly assert itself
much more strongly in judicial decisions, especially in jury trials. A French
prosecuting attorney stated only a very short time ago that a wife who had
killed her husband's paramour must be found guilty because she had not
selected the right victim, the husband.
 The assumption of control over civil procedure by the state is of great
interest inasmuch as the impulse that was causing this change was not
supplied by the legal proposition but by the changing ideas of men
concerning the function of the administration of justice by the state. This
change is a process that extends over thousands of years. Originally legal
procedure was " organized self-help/' and it remained self-help in essence as
long as its basic principle was the idea of a transaction between the parties.
The state assumed control over penal procedure at an early date. Roman
procedural law in the formulary procedure, and still more so in the
cognitiones, contained a few isolated elements that may be said to be state
law. These however disappear at a later time in the procedure of the
Continental common law. This seems to indicate that in some respects
human society in the last century had not advanced as far as that of the
Romans. Since the eighteenth century the thought is making its way more
and more, in legal science at least, that procedure is a part of state law. This
is the period of the Preussische Allgemeine Gerichtsordnung, the first
departure from the principle of a transaction between the parties, the first
great attempt, even though it was undertaken with insufficient means, to
convert not only the administration of law and penal procedure but also
civil procedure into a matter of state law. The Austrian revision was the first
attempt to establish a procedure which in most respects would be a true
state law procedure, not merely in respect of administration. It sought
definitively to subject the administration of law to the purposes of the state.
The resistance that was encountered by the departure from the old idea of a
transaction between the parties, an idea that had not a single consideration
of expedience to support it, is an echo of the primeval legal ideas of the
human race in the midst of the whirl of modern life.
1 Parricide, murder of father, mother, brother and other relatives.
2 Treason, hostile conduct against one's own country.

How this inner change takes place within the legal institutions and the
norms for decision is a question we can discuss only in a most general way.
Doubtless a great deal of it goes on in the subconscious mind. A large part
of the social norms has not been formulated in words once for all time, but
must continually be abstracted anew from the regular, universally approved,
actual course of human conduct. This is true without qualification in the
case of the norms of morality, ethical custom, good breeding, tact. It is
impossible to state any basis for them other than the fact that they have
been acted upon with universal approbation, And in the case of the legal
norm the situation often is the same. A number of rules of law are based
upon precedents. The im» portance of the Konventionalregel1 in public law
has been set forth by the Jellinek school, especially by Hatschek, in a very
thorough manner. It seems to me that this rule very frequently is a legal
norm, but a norm which has been abstracted from actually approved
conduct. Such norms, which are based on the general conception of actual
conduct, are not only being confirmed by every new course of actual
conduct, but are apparently being supplemented or are experiencing a
change of content. The insignificant divergencies involved at first remain
unnoticed and the parties concerned imagine that the old rule still obtains;
but in the course of time they accumulate to such an extent that the original
legal institution is converted into something quite different. So it has
happened more than once that, thanks to a slight shift in the norms, slavery
became villeinage and villeinage became slavery. So a self-serving
guardianship was converted into one requiring care and protection; the
trustee transaction, into pledge-right and testament; the bilateral real
contracts, into consensual contracts; Vorleistung (prior performance),1 into a
simulated performance (Arrha).
1 See ante.

Even the wording itself is affected by the lapse of time. It often happens
that norms that have been formulated in words receive not merely a new
interpretation but a new wording. This too can be done quite without the
knowledge of the person introducing the change; for the language of men
involuntarily follows their new lines of thought. Quite properly therefore
Girard has shown, by way of reply to Lambert, that from the fact that the
wording of the propositions of the Twelve Tables, as transmitted to us by
tradition, could not possibly have been in existence at the time of the
decemvirs, it does not follow that the Twelve Tables were not in existence
at all. In the course of the centuries they may have received not only a new
meaning but also a new wording suited to the new meaning. And he directs
attention to the fact that many of the brocards of Loisel have a wording
which is quite different from that of the time of the ancient jurist, and that
Lambert himself writes: “La caution n'est pas solvable," although the
original wording was “La caution n'est pas bourgeoise."
The conscious act of an individual, may participate in the development of
law, even though it is usually forgotten within a very short time. The idea of
Tarde's that all human progress is based upon an invention made by an
individual and upon the imitation of this invention by the great mass of the
people is one of those self-evident things that, once they have been
enunciated, constitute important scientific knowledge. If the question is
asked why the Romans did not permit representation in legal transactions,
the reply must be that it had to be invented at some time or other, just like
the locomotive. The Historical School which taught that the law was
created by the people doubtless was wrong as to this point. There was
always one person who did it first; the others followed. One must not,
however, even in this matter of invention, over-estimate that which is
individual, for it, too, is conditioned upon social presuppositions. The art of
pottery, the bow and arrow, the rowboat, and the sailing-vessel, with» out
doubt, were invented thousands of years ago quite independently in
different parts of the world. For just as long a time it has been the desire of
men to be able to soar in the air like birds, but this desire was not realized
before the present century, and then in several places at the same time. An
invention is not the deed of an individual, but a deed of society through an
individual. The individual performs it as soon as society has supplied the
conditions which make the deed possible. We do not owe the invention to a
man sent by Providence. The inventive thought will spring up in every mind
that has received suffi™ cient training as soon as the requisite conditions
exist. These conditions are, among others, a certain amount of knowledge
of the laws of nature, a certain mastery of technique, a certain degree of
economic development, which enables the inventor to provide himself with
the necessary aids and appliances. The extended use of an invention, too, is
conditioned upon certain presuppositions. The fifteenth century would have
been unable to build railroads because the necessary capital was not in
existence at the time, and, perhaps, also because they would have been
believed to be the work of the devil. Where the social presuppositions are
lacking, i.e. the economic development and the general appreciation, an
invention must fail, like the invention of the steam engine by Denis Papin.
The tragedy of the lot of the inventor lies in this fact, that the social
presuppositions for the invention and for the appreciation of it by society
very often do not coincide. For quite simple inventions like pottery, the bow
and arrow, the rowboat, and the sailing-vessel, all presuppositions were in
existence thousands of years ago. For the flying-machine, they were first
supplied by our century.
1A performance which must be rendered before a counter-
performance is due.

The greater number of juristic inventions probably are found among

those the presuppositions for which were in existence at an early time and
in many places. They are to be found therefore in all parts of the world, like
pottery, the rowboat, and the sailing-vessel. But there are some legal
transactions, norms for decision, and procedural forms that require a great
measure of independent conscious labor such as can be performed only by
specially trained minds. They are the creations of jurists of a scientific bent,
of judges, attorneys, and practitioners of the art of drafting legal documents.
Multis vigiliis excogitata et inventa, Bracton says of the Assisa novae
disseisinae, the pioneering feat of Henry II. From this point of view, we
may say, it is not an error when the various peoples attribute their laws to a
personal lawgiver. They are merely symbolizing the many long-forgotten
workmen who took part in their creation. And this fact makes the reception
of a foreign legal system possible. A reception actually transfers into
foreign countries only norms for decision, model forms for contracts and
for articles of association, procedural precepts, which have been invented
elsewhere. This is done by means of judicial decision, drafting of legal
documents, juristic literature, and, occasionally, legislation. It is a
characteristic feature of our time however that a great deal of that which, in
the past, was done by the jurist of a scientific bent, by the attorney, by the
draftsman of legal documents, is, at the present time, generally assigned to
the legislator. It is considered the function of the legislator to create norms
for decision, model forms for contracts, for articles of association, for
societies and corporations. Indeed all modern procedure is created by
legislation. It is difficult to determine what may be the causal relation ; at
any rate it is by no means a gratifying phenomenon. It brings about a
onesidedness and a retardation of legal development, and, to a quite
unnecessary degree, delivers the state into the hands of those who at a given
time are in power.
 It seems however that a change is imminent, that today much less is
expected of legislation by the state than a decade ago, that there is much
more insistence upon limiting its power and a much greater demand that the
state stop and reflect upon itself, its functions, and its duties. This must be
attributed to a growing understanding of what can be effected and promoted
by the means which the state has at its disposal. But the question as to the
present-day extent of the sphere of authority of the state and, incidentally, of
the statute, is a quite different one. The present-day conception of the state
is that of an omnipotence which is contemplated with a certain religious
awe, and against which resistance is as impossible as it is impermissible. It
is easily demonstrable that this omnipotence is historically conditioned
throughout and is based chiefly on the military powers which the state
possesses at the present time. Whenever there is a possibility of the state
being confronted by another military power within its own territory, as was
the case during the days of feudalism, the state is not conceived of as
omnipotent. But even today its irresistible power is limited to such things as
can be accomplished by means of military power. As a purely social
organization the state is but one of many, and, apart from the military
power, has only social powers at its disposal, which are by no means
superior at all times to those of the other social associations.
The classical school of economists, basing its teachings upon the
doctrines of the physiocrats, has subjected the question of the limitations
upon the power of the state and of the consequences of state activity,
especially of legislation, to a thorough and exhaustive examination. This
examination showed that the laws of economics, which, in the view of this
school, to a great extent comprise many social processes of a non-economic
nature, impose limitations upon the activity of the state beyond which the
state may not go, and, beyond which, to a certain extent, it cannot go. It
cannot go beyond them without obtaining results that are contrary to its
intention; it cannot go beyond them without beating the air. They have also
successfully demonstrated that he who can issue a command that a certain
measure be taken does not thereby have the power to control its effects.
These investigations laid a solid foundation for modern social science. For
the latter comes into being as soon as that which goes on in society is
referred not to the will of the human being who is acting but to the forces
which are acting independently of him in so- ciety, just as the beginning of
the natural sciences is the knowledge that the processes of nature must be
explained not as being caused by the will of the gods but by the forces of
nature. If these suggestions had been followed, they would have led to an
art of legislation resting on a scientific foundation. As it is, the results of
these investigations have long since been forgotten. As a result, legislation
is characterized by a most naïve dilettantism, which is satisfied in its own
mind that all that is necessary in order to abolish an existing evil is to forbid
it.
XVIII The Codification of Juristic
Law

THE Corpus iuris chilis contains a text-book (the Institutes), excerpts from
juristic writings (the Digests), and constitutions (the Code), i.e. it contains
in the first place juristic literature both in the form of a text-book and in the
form of excerpts from works on the existing law, and a collection of
statutes. But only a very small part of the excerpts from the writings of the
Roman jurists purports to limit itself to a presentation of the law contained
in the praetorian edict, the leges, and the constitutiones. The greater part
establishes legal norms independently. Their content therefore is juristic
law, which, in part, has been presented in literary form, and, in part, appears
in the form of responses and decisions. The older imperial constitutions are
chiefly decisions of law cases, and therefore they also are juristic law;
some, the mandata, are commands addressed to imperial officials, and
therefore are administrative regulations. The later ones however are statutes
in the narrower sense of the term, i.e. " state law," which provide what is to
be law in the future. In addition there are leges, senatus-consulta,
constitutiones, i.e. statutes, which contain state law. They are being cited in
all parts of the corpus iuris. The praetorian edict, which also constitutes a
large part, is either juristic law or state law, the latter containing chiefly
police regulations. The work of Justinian therefore comprises juristic
literature (text-book and literary presentation), juristic law (in the form of
literary presentation, responses of jurists, and judgments of the praetor and
of the Emperor), and state law (leges, senatus consulta, edict,
constitutiones).
 According to the prevailing view, all of this has been fused into a unit by
the will of Justinian, and has become a code. But the various parts of the
corpus iuris have met widely different fates in the course of time. The parts
which at the outset did not contain legal propositions but legal science, i.e.
discussions of the nature of law, sources, divisions, system, definitions,
content of rights, have remained what they were from the beginning, i.e. a
science of law. In so far as it has proved itself to be scientific doctrine, it
has gained recognition even in countries in which it has never been received
as the law of the land ; it dominates the general theory of law even among
the English, the Americans, and the Scandinavians. And the juristic law has
become, and has remained, the basis of the common law of most of the
civilized nations of the Continent of Europe to the present day. On the other
hand that part of it which is state law has, in the main, gradually been
eliminated. This applies to those parts of the edict that chiefly contained
police regulations and to those imperial constitutions that do not, like many
a novel of Justinian, simply modify and replace juristic law.
But though Justinian collected propositions of such diverse descent into a
code, he was not thereby enabled to fuse them into a unitary mass. Even
within the code they retained the stamp of their origin. Manifestly this fact
was of very great influence upon their history. Moreover, a more detailed
examination would show how widely they differ in structure and effect.
To form a correct estimate of a modern code, particularly of one of the
private law codes of the territory in which the Continental common law
used to be in force, the Prussian Code, the French Civil Code, the Austrian
Civil Code, and, lastly, the German Civil Code, one must subject it to the
kind of examination that the corpus iuris by its very outward form
challenges one to subject it to. One must separate its three parts from one
another, i.e. science of law, juristic law, and state law. In doing this one
must of course not fail to observe that juristic law does not cease to be
juristic law, does not become state law, simply because it was modified,
made milder, adapted to the existing situations, or even found anew, when it
was received into the code; for in doing this, the jurist is not working as a
legislator but as a jurist. There is a very palpable difference between the
provisions of the German Civil Code on the liability of innkeepers, which
have been made more rigorous, and the regulation of associations that do
not have legal capacity; between the provisions of the French Civil Code
that title shall pass at the time the con- tract is made (contra to the rule of
the Continental common law), and the precepts as to civil marriage or civil
death (la mort civile). Moreover juristic science in Germany has, to a
certain extent at least, prepared the way for a critical analysis of the content
of the codes such as is suggested here. The doctrine of the non-obligatory
content of a statute applies particularly to the purely scientific elements in a
statute, and it has succeeded in causing them to disappear almost altogether
from the German Civil Code. This cannot be said of juristic law and of state
law, although Savigny has brought out the distinction most clearly. In his
Beruf1 he most emphatically directs attention to the "two-fold element in
the law/' the "politicar' and the "technical." As an example of the former, he
cites the lex Julia et Papia Poppaea; the latter is the "whole legal store, or
capital," 2 that which is law without having been enacted.8 The further
elaboration of this distinction by Savigny shows that it coincides with the
distinction between state law and juristic law.
The sifting of state law from juristic law in the modern codes would be a
task not only of great scientific but also of great practical importance. It
would not be difficult today; for by this time we have pretty accurate
knowledge of the sources from which the codes have drawn their materials.
They are the content of the Continental common law as it existed at the
time and in the country in which the code originated, the indigenous law of
the time and country, and the law of nature.
The chief constituent part of the codes everywhere is the Continental
common law. For the most part, the common law, which had been received
on the Continent of Europe during the Middle Ages and in the modern
period, had remained a mere norm for decision for the courts. But one must
not limit the importance of the Continental common law to this. Modern
investigations have shown that the legal document, especially the notarial
document, which, self-evidently, was based on the Italian form-books, had
adapted itself very readily to the common law in every country. Thereby a
great deal of the Continental common law became part and parcel of
everyday life, became the living law in the territory in which it was valid.
The nations of the Continent of Europe are indebted to the Continental
common law for the last will and testament, and it can be shown that it was
the lawyers who drew up the legal documents that transmitted it to them in
the Roman form. It is true the last will and testament would have come into
vogue even if conveyancers had not introduced it, albeit in a somewhat
different form. But this cannot be said of the Roman law of contracts. In
virtue of the fact, and only in virtue of the fact, that the Roman law of
contracts as developed in the Continental common law has been made the
basis of the legal document, the Continental common law system of
contracts, the fundamental principles of which are Roman, has attained such
a preeminent position in the modern legal con™ sciousness that we are
inclined today to look upon the Roman contracts as understood by the
Continental common law as something that is, in a certain sense, self-
evident. Nevertheless a glance at the mediaeval German legal sources,
especially at the documents dating from the time before the reception,
shows that, in Germany and France at least, the law of contracts would have
developed along entirely different lines had there been no reception —
probably along lines similar to those of the development in England. And
lastly, as a consequence of the reception, the fixed and clear juristic
terminology and the whole juristic technique of the Continental common
law juristic science has become part and parcel of the Continental common
law everywhere. All of this has exerted a profound influence upon the
codes.
1 Savigny, Vom Beruf unserer Zeit für Gesetzgebung und
Rechtswissenschaft, Heidelberg, 1840.
2 "der gesamte Rechtsvorrat y
3 Ohnehin bestehende Recht] literally, the law which is valid
without that, i.e. without having been enacted.

The second constituent part of the codes are the legal propositions taken
from the codifications of the indigenous law. The various Landrechte (laws
of the various states) and the revisions in the sixteenth century in Germany
as well as the official statements of the coutumes in France at the end of the
fifteenth century have been of great importance for later legislation. They
are not merely official statements in writing of the indigenous law of France
and of Germany that had been in use until that time. The revisions, it is true,
were drawn up, in part at least, by jurists who had a knowledge of the
indigenous law; and the laws of the various states and the coutumes were
based on information given to the authors by experts in the indigenous law;
the official drafting of the French coutumes, in particular, was done with
extreme care. But only a very small part of this information stated legal
propositions that had previously been formulated, and that the persons who
gave the information knew in that form. For the most part they were
formulated by these persons on the basis of individual impressions at the
moment they gave the information. They are therefore universalizations of
actual observation of indigenous legal relations, made by the persons who
gave the information at the very moment of giving it. We know furthermore
that the persons who drew up the statements, in many instances, modified
the law intentionally, mitigated its rigors, supplemented it, and, in
particular, attempted to assimilate it to Roman law. Apart from this, many
rules were taken directly from Roman law and from other statements of law.
The Con-stitutiones Saxonicae professedly purported, not to codify existing
law, but to harmonize it with the common law of the Continent. One cannot
therefore unqualifiedly say that the codifications of the fifteenth, sixteenth,
and seventeenth centuries were codifications of the then valid German law.
If by law we do not mean the legal relations but the legal propositions, it
would be more nearly correct to say that practically all the law contained in
these works came into existence through the codification. Thereby it
became juristic law as to form and content. The revisions in the cities, the
laws of the states (Landrechte), and the coutumes owe their existence in
part to universalization, and in part to juristic finding of norms such as
undoubtedly can be found elsewhere both in the juristic writings of the
Romans and in those of mediaeval German writers.
The third kind of material that entered into the modern codes is the law
of nature. It is customary to consider the law of nature as a defense set up
by the German legal consciousness against the invading Roman law. This
view contains a great deal of truth, but it is not the whole truth. For the
teachers of natural law, beginning with Pufendorf at least, were practical
and theoretical economists,1 not jurists, and represented, at first
unconsciously perhaps, later consciously, the claims and demands of the
urban middle classes. The final expression of the natural law movement is
by no means to be found in the writings of the juristic ideologists of
Germany and France, but in the writings of the French physiocrats whose
demands and doctrines, were, in many instances, anticipated in Germany by
Pufendorf and Wolf. The urban middle class is the class which was engaged
in the trades and in commerce in the seventeenth and eighteenth centuries,
and which was just beginning to turn to industrialism. It was already
making political demands albeit they were rather modest in Germany. They
demanded a powerful state, participation in the power of the state, and a
weakening of the power of the feudal nobility.
These demands explain the absolutist trend of the older, especially of the
German, teachers of natural law; but the call for an absolute form of
government was merely an outward disguise for a developing tendency of
much wider scope. The monarch alone was able at this time to create a
powerful state; he alone was able to break the power of the nobility. The
middle classes of the population could enter into a direct relation with the
state, whose embodiment to them at the time was the monarch, only
through absolutism. The absolutist welfare state, of the German natural law
teachers in particular, is the state which aids commerce, trade, and industry,
increases the population, and by so doing provides workmen for commerce,
trade, and industry, forcibly curbs enemies of the latter at home, provides
legal security and protection against foreign enemies. As is well known, the
later teachers of natural law gave up these ideas and demanded
constitutionalism in the English sense, and finally, popular sovereignty. In
so far at least as all of this was the case, the teachers of natural law surely
were not combating the Roman law but feudalism. In doing this they were
not espousing the cause of German law but were striving for a political and
legal order different from that which was in effect at the time. But for
legislation the economic demands of the urban middle classes are much
more important than the political ones. It was these that were chiefly
making for a reorganization of the private law by means of the codes. The
endeavors of the teachers of natural law, along this line also, were directed
chiefly against feudalism, which interfered with and hindered trade and
commerce in the country, and, to a certain extent, in the city also, by means
of proscriptive rights and of restrictions of trade, withdrew the peasant from
the sphere of the interests of the middle classes, restricted his working
power in the interest of the landowner, and made it impossible to utilize it
for the purposes of industry. Over and above this, however, they were bent
upon the establishment of a legal order, based on liberty of contract and
freedom of commerce, which should overthrow the restrictions placed on
free activity, and abolish inequalities before the law between classes and
localities.
1 Volkswirte und Wirtschaftspolitiker.
 The efforts of the urban middle classes suggested a legislative policy to
the teachers of natural law, as their spokesmen, which indeed was in
conflict with the existing order inasmuch as the latter restricted the free
activity of the individual. Individualism became the ideal of the teachers of
natural law, i.e. a system under which the individual, unhampered by class
distinctions (equality before the law), can do with his own as he will, and is
bound only by contracts voluntarily entered into. That this ideal entailed
new and very great obligations, they did not see as yet, and in fact could not
see at that time. But they imagined that this very ideal had been realized in
Roman law. In so far as Roman law recognizes oppressive class distinctions
— binds and fetters the individual by means of public law, penal criminal
law, and family law—it usually was not received. All that remained of
Roman law was abstract ownership, a soil free from burdens and divisible,
liberty of contract, and an essentially equal right of inheritance. These were
also the principles of the natural law legislative policy, which from the very
beginning had put on the garb of an individualistic legal philosophy. Within
the framework of free ownership and liberty of contract, the urban middle
classes were able to create most of the legal institutions which they required
for their future develop-ment. Wherever therefore the teachers of natural
law — by way of exception — make a more detailed statement of their law,
they create it by means of abstraction from the existing institutions of the
urban middle classes in the manner in which Wolf created his law of bills of
exchange, or they formulate it according to the wishes of the urban middle
classes. They transform the wishes of the middle classes into legal
propositions, somewhat in the manner in which the lawyer who draws up a
legal document expresses the wishes of his client in the conditions of the
contract.
The law of nature went one step beyond this, for it was actually bent
upon creating its own particular legal system, in particular its own private
law, based upon an individualist idea of justice, The principles of
individualist liberty of ownership and liberty of contract, as expressed in the
abstract concept of ownership and in the system of contract of the
Continental common law in the service of the as yet very limited traffic in
goods of the seventeenth and eighteenth centuries; in addition thereto, the
tradì-tional morality of middle-class family life; the idea of the right of the
owner to dispose of his property beyond the grave carried out to its logical
conclusion by means of last will and testament; and the idea of a right of
inheritance, intended for the time being for the nearest relatives, and equal
among equally close relatives — these indeed are a basis sufficiently broad
for them to develop a system of private law upon, in broad outlines at least,
and often with an almost mathematical precision. The attempt of the law of
nature school to do this manifestly amounted to a rinding of norms, i.e.
juristic science. It is true, it was a juristic science which was based, in the
main, on the living law, and whose relation to the existing law was one of
comparative freedom, but, by no means, of absolute independence; for it
presupposed the existing social and economic order which, for the most
part, has arisen and taken shape under the influence of the existing law.
Accordingly Roman law was more in harmony with the teachings of the
Natural Law School than any other system of law, especially ancient
German law, could be. With few exceptions, therefore, among these perhaps
Thomasius, they did not by any means oppose Roman law; on the contrary,
they generally were adherents of it. They never tired of emphasizing that
Roman law, in its essence, is natural law, or that it differs from the latter
only in unimportant details. It must be admitted however that in spite of this
the content of Roman law did not fully satisfy the needs of society in the
seventeenth and eighteenth centuries and that a few changes would have
been very welcome indeed. But it is not so much the principles of German
law that bring the teachers of natural law into occasional conflict with
Roman law as the demands of a new era. Offense was not taken at the
content, but at the form, of Roman law. What the teachers of natural law
were impugning and desired to modify was this cumbersome, voluminous
code in a foreign language, utterly lacking clearness of arrangement,
weighted down by a mass of material long since antiquated, trailed by a
vast juristic literature and interminable controversial questions, among
which no jurist, much less a layman, could find his way. Hotomanus, the
actual originator of the idea of codification, in his day demanded a brief
code^ which meets the requirements of the administration of justice, is
drawn up in language that is within the grasp of an ordinary intellect, does
away, once for all, with the controversial questions, and offers a clear and
fair solution of every case that may arise.
Still the teachers of natural law have been successful in advancing juristic
technique by one important step. It was impossible indeed to derive legal
propositions of any appreciable utility from the principles of natural law,
which were merely the principles of an individualistic property and contract
law; but the tendency to derive law from principles made it easier for them
to discern what is basic, in the existing law at least. The teachers of natural
law perceived an important truth at the outset which the Continental
common law had failed to observe until then, to wit that a considerable part
of the sources of Roman law merely contains particular applications of legal
norms of a much more general tenor, and that a code could be made much
briefer, much more easily comprehensible, by including only the general
legal propositions and omitting the particular applications. They took it to
be their chief function therefore to find these general legal propositions,
which, they believed, the Romans had simply derived from the law of
nature; and their theory permitted them simply to exclude from the system
of natural law any decision which did not suit them, on the ground that it
was a deviation from the law of nature. Their method of proceeding was
based indeed on a considerable lack of understanding of the heterogeneous
tendencies that necessarily run counter to each other within a legal system
and of that which is positive and historically given therein, but it was also
based upon the valid, good, and new thought, as its true content, that there
are general principles in law upon which the individual decisions are based
and that exceptional features are not to be accepted without more ado, but
are to be examined as to their bases. This is a reliable criterion according to
which they were able to eliminate those elements from the positive law that
were merely arbitrary exceptions or survivals which can only be explained
historically.
The doctrine of the natural law school therefore is, primarily, a criticism
of the form and, secondarily, a criticism of the content of Roman law. The
latter is leveled generally and essentially at matters of secondary
importance. It became authoritative for the later form of the tiny code,
which is divided into brief chapters and lays down general principles only.
It did not contain very much positive material, and this was taken, in part,
from the German legal consciousness, in part from the institutions of
commerce, trade, and large-scale industry, which was coming into existence
at that time. In other words it arose from the institutions of the urban middle
classes in all these fields.
Lastly the teachers of the law of nature taught out-and-out individualistic
juristic law. Not being practical jurists, they did not enter upon a discussion
of details. They had a general picture in their minds of what they were
demanding, but they were unable to propose a practically applicable system
of juristic law as a substitute for the Continental common law. Law of this
kind does not spring from discussions of legislative policy, but only from
the administration of justice, from the decision of individual practical law
cases. Even Wolf, who more than any other teacher of the law of nature
concerned himself with detailed problems, does not state true legal
propositions, but sets up demands as to economic policy, legislative policy,
and social policy ? according to the idea of the Wohlfahrtsstaat (state
promoting the public welfare), which, together with those things that he
simply borrowed from the existing law and a critique of Roman law,
constitute the principal content of his prolix book.
The building stones, then, which were used in the construction of the
codes of the end of the eighteenth and the beginning of the nineteenth
century were: first, the Continental common law juristic science; secondly,
the legal propositions of indigenous law which were contained in the law of
each of the various states (Land-rechte), the revisions, and the coutumes,
and lastly, the demands of the teachers of the law of nature. The first two
are chiefly juristic law. The law of nature, being juristic law also and, in
addition, a critique, from the point of view of legislative policy of the
existing feudal law and of juristic law, contained no legal material of its
own. It did however exert a decisive influence upon the external form of the
codes.
In these three codes these constituent elements are mixed in varying
proportions. The Prussian Code, private law only being considered,
contains more Roman law than the others; the French Civil Code, the
greatest number of provisions taken from indigenous law (the coutumes) ;
the Austrian Civil Code is dominated chiefly by the law of nature. There is
very little of actual state law to be found in any of them. The codes, then, in
the main, contain juristic law put into statutory form; they are statutory
juristic law. This shows wherein lay their chief significance for the
development of law. The men who drew them up knew quite well, and
Savigny knew, that their function was not to create new law but to organize
the existing law and put it into suitable form, to eliminate that which had
become antiquated, and here and there to adapt the part that was valid to
new needs. In the words of Savigny "the existing law is to be recorded, with
such modifications and emendations as may be necessary for political
reasons."
 Although the German Civil Code was composed a century later? it bears
the same stamp as the eighteenth-century codes. The juristic science on
which it is based is indeed younger by a century than that of the other
codes, but after all it is merely the science of the Continental common law
— younger by a century. Apart from this, thanks chiefly to Gierke^s
influence, it contains much German private law; this, too, in the form of
juristic law, as it was fashioned by the Germanists of the last century in
their textbooks and handbooks of German private law. For this reason it is
much more important to emphasize its relation to the law of nature. In form
and content it realizes the demands of the teachers of the law of nature
much more completely than any previous code, and the reason why this fact
has been overlooked so often is that the demands of the teachers of natural
law, mean-while, have become self-evident commonplaces. Accordingly in
the sphere of intellectual endeavor the greatest success comes when the
truth becomes a commonplace.
A characteristic of the Roman juristic law which has been handed down
in the corpus iuris is the fact that it is judicial juristic law exclusively. The
Roman art and science of drawing up legal documents seems to have had no
influence whatever upon the sources of Justinian, which do indeed concern
themselves with the content of documents, not, however, with the question
how they are to be drawn up, but how the controversies that arise from them
are to be decided. The juristic science of the Conti» nental common law,
however, was, in a great measure, a science of legal documents. The latter
plays a particularly important rôle in the writings of the commentators, who
are continually putting the question how the document must be drawn up in
order to avoid this or that undesirable legal consequence« In the writings of
the German and the French jurists of the seventeenth and eighteenth
centuries, however, this point of view is being emphatically relegated into
the background; they concern themselves, just like the teachers of natural
law, chiefly with judicial law. Nevertheless even in the French Civil Code
and in the Austrian Civil Code, the idea of a model contract is faintly
discernible — in the French Civil Code, chiefly in the provisions regulating
the matrimonial régime; in the Austrian Civil Code, in the chapter on loans
and usufructuary leases. Such legal conse- quences are to be provided for as
the parties themselves would have provided for, had they drawn up a
detailed document. Since it is almost exclusively subsidiary law, it does not
require the parties to adopt a definitely prescribed content of the contract,
but it does compel them at least to bear in mind the contractual content for
which regulations have been provided by the statute if they are desirous of
bringing about other legal consequences than those provided for by the
statute. Nevertheless even here the consideration of a possible legal
controversy seems to have most weight. It was not before the nineteenth
century that statutes were enacted which, following French and English
example, purported, in part at least, to state the content of a legal document.
Their object was to introduce certain institutions which until then had been
unknown at home; which, perhaps according to the then state of the law had
been forbidden, or whose permissibility had been in doubt. The plan was to
permit the parties, according to foreign models, to establish these
institutions by agreement between themselves either by contract or by
articles of association. This implies a determination of the content of the
declaration of will — for the most part, by non-obligatory law, to a great
extent, however, by obligatory law. The object of these statutes manifestly
is to prepare the ground for the legal document which the parties
necessarily must draw up with reference to the transaction in such a way as
to protect them against being overreached (Reglementierung). Institutions
of this kind are the legal order of societies, of stock companies, of the
Schulze-Delitzsch associations, of partnerships with limited liability, of the
heritable building right. Very often the state supervises the making of these
contracts in order to ascertain whether they are drawn up in such a way as
to meet the statutory requirements. This supervision may be exercised, e.g.
by state action when the agreement is presented for recording or for
approval. All of this however must not obscure the fact that what we are
dealing with is essentially the art and science of drawing up legal
documents, i.e. with juristic law, which is being found by the legislator. In
antiquity, in the Middle Ages, even in modern times, it was the art and
science of drawing up legal documents that invented both the new
institutions and the necessary forms which economic life required. When it
became necessary to make provision for the protection of third parties, the
courts provided norms for decision which science and judicial decision
created out of their own materials. Even today our legal life for the most
part is based upon these achievements of the past. It may be admitted that
these statutes are more closely related to state law than any other part of
private law legislation. In this form the art and science of drafting legal
documents got into the German Civil Code (law of societies, matrimonial
régime, law of partnership), and, to a still greater extent, into the
Commercial Code.
All in all it was the task of the codes to sum up the development of
juristic law which had taken place until that time, and in so doing to make
the necessary changes which legal technique, being bound in a great
measure by tradition, lacked the power to make. For the second task,
legislative intervention was actually indispensable. On the other hand a
code is far from being the only means whereby the greatest of
inconveniences connected with juristic law can be remedied, i.e. its
enormous extent, its lack of systematic arrangement, its interminable
controversies. This has been accomplished more than once by other means.
It was accomplished in part by so mechanical a device as the law of
citations of Valentinianus III. At the present time, the English, who have to
deal with more than twenty thousand volumes of juristic law, contained in
their collections of decisions, make shift by considering it highly improper
for a barrister to cite opinions to the court that are more than one hundred to
one hundred and fifty years old. This surely is a drastic remedy for this, the
greatest of inconveniences connected with juristic law, but it is inescapable.
Very often the works of private individuals undertake this task. This is the
significance of the Decretum Grattant and of the gloss of Accursius. The
Continental common law at all times had some book or other which was
looked upon as the summing up of all juristic science. In the last period of
its validity it had Windscheid, and after him, Dernburg. The code therefore
is merely one of the many possible means of giving to juristic law a suitable
form for the administration of justice,
The immediate effect of the reduction of juristic law to statute law in the
codes is merely this, that the juristic law which has been in existence until
now reappears as statute law. This change of form is not without effect upon
the state of the law. For until that time juristic science drew its content from
society, it created legal propositions on the basis of the social facts under
the influence of social trends. Henceforth this is to be changed. Among the
various thought sequences that result from the introduction of the codes,
perhaps one of the most important and widespread is that juristic science
henceforth may work only on the basis of the code. The social material that
has passed from the earlier stage of juristic science into the code is to be
developed by juristic science in its present stage, which is based on the
code; but science is not permitted to fashion new materials independently.
Here as elsewhere the intentions and the effects of legislation are at
variance with each other.
Since the codes are primarily juristic law, they, like all juristic law,
contain a social morphology. They describe the social relations of a legal
nature to the extent to which the legislator has become conscious of them
and has thought it necessary to regulate them or at least to mention them.
This morphological content of the code, of course, cannot become state law;
for state law is not a morphology. The state gives form only to itself, to its
own institutions, its army, its tribunals. It does not give form to society. It
can only issue commands or prohibitions to the latter. But the question can
be raised whether or not, according to the intention of the legislator, the
morphology of the code is to be an exhaustive one, whether it is not
accompanied by a command issued by the state that no institutions should
be established except those that are permitted and regulated by the state;
whether therefore social associations, family relations, forms of
undertakings, contracts, dispositions by last will and testament of a kind not
described in the code are permitted.
The state can of course issue a command forbidding certain institutions
by omitting any mention of them in the code. This has the same effect as
any other prohibition by state legislation. By failing to mention juristic
persons, the French Civil Code undoubtedly meant to check, perhaps to
prevent, the development of corporations, and it has actually affected
French corporations very adversely thereby. Likewise the German Civil
Code intended to make the creation of real rights other than those regulated
by the code impossible, and when new contracts are being entered into the
question will often arise whether or not they should be recognized under the
code. The Austrian Civil Code has abolished ownership of a story of a
building by failing to mention it. The only question is whether the state is
able to enforce the prohibition. This is of course extremely doubtful where
the latter is enforceable only by resort to private law, and where the
prohibition of the new institution merely takes away the protection which
lies in the right to sue and defend. Prohibited contracts, societies,
testamentary gifts (for example, gifts in mortmain) have been able to hold
their own even against the codes.
It is true a jurist of the traditional school is inclined to believe that every
legal relation that is not mentioned in the code is forbidden. Even the
innocent fidei commissum ems quod supererit, according to a remark of
Pfaff and Hofmann's, is believed by many to be forbidden, although the
only reason why it is not mentioned in the Austrian Civil Code is that it was
thought unnecessary to state a legal precept for this case. As a rule,
however, the juristic morphology of social phenomena does not import such
a prohibition by the state. The four kinds of contracts of the Roman jurists
did not abolish agreements of other kinds, and the Roman testament did not
make gifts mortis causa, which were not testaments, impossible. Likewise
the reception of various legal relations into the code and the description of
them therein does not have the effect of excluding from the law everything
that does not fit into these relations.
So long as the legal relations as to which no provision has been made in
the code do not come into contact with the agencies of the state, the
practical jurist has no occasion to concern himself about them. From his
point of view they are outside of the legal sphere. The modern development
of trusts and cartels and of collective labor agreements, demonstrates to
what an enormous extent the social development of law can go on
independ- ently of and in conflict with positive law. But the situation
changes when a legally recognized basis is to be created for these new legal
relations by means of legal documents, when litigation arises, or when, for
some other reason, perhaps in the course of supervision by the state,
interference by an administrative body becomes unavoidable. Then, and not
until then, the question confronts the jurist whether he can find suitable
forms and norms for decision in the code, or, as the German common law
juristic science used to express it, whether he can construe the relation
juristically. This is a question of juristic technique, and must be variously
answered according to the stage of development which the technique has
attained. The answer must be a different one under the Roman system of
legal actions from what it would be in the juristic science of the Continental
common law or in that of Anglo-American law. And under a system of free
finding of law it would present an entirely different appearance from that
which it presents at the present time.
In every legal system there has been an abundance of cases in which
juristic construction seemed impossible. One of the most famous examples
of the most recent time is the obligation of the shareholders in a sugar
factory to furnish sugar beets. The consequence of this impossibility is that
the given relation, since it lacks protection by the courts and administrative
tribunals, must rely exclusively upon social forces for recognition,
protection, and enforcement, or perish. This is indeed a sad result,
especially where there is a great social and economic need for this relation,
where neither prohibition by the state nor public interest stands in the way.
And it must be stated emphatically that the trouble lies not with the relation
but with juristic science, whose technical resources are insufficient for the
satisfactory performance of its never-ending task, to wit to make the law
subserve the needs of life. The codes inevitably increase the difficulties
which new phenomena of legal life cause to legal science. For
contemporaneously with the codes the idea arises almost automatically that
an authoritative command of the legislator has made an end of the activity
of juristic science not only as to the past but also as to the future; that
thereafter a jurist must seek the solu- tion of every problem that confronts
him exclusively within the code. The precepts of the code as to filling up
the gaps are a matter of indifference in view of the fact that the code
confronts the legal profession as the embodiment of perfection of the legal
system. Henceforth juristic science, judicial as well as literal has only one
task to fulfil, i.e. to judge the phenomena of life according to the code. Its
starting point must be the code in every case. If the code were able to
prevent economic development from going beyond the code, it would also
be able to compel juristic science to stand still; for it would thereby deprive
the latter of all new subject matter that it might possibly find new norms for.
But it has been shown that the code neither produces nor strives to produce
this effect. For the new needs of society there must always be new juristic
law. The popular reference to remedy by legislation indicates a failure to
understand the nature of the function both of juristic science and of
legislation. Difficulties of construction like the difficulty involved in the
obligation to supply sugar beets to the sugar factories arise at every
moment. They constitute the daily bread of the practical jurist. The
legislator who would keep pace with all of them would indeed be a busy
man. Moreover, in that case, who would be able to find his way through the
labyrinth of statutes? And lastly it is by no means the intention of the
private law codes to bind the social and economic forces of the nation until
such time as the legislature acts again or perhaps to destroy them.
Human society, particularly human economic life, imperatively demands
new legal forms for new forms of life. In actual fact the three older
codifications, the Prussian Landrecht, the Austrian Civil Code, and the
French Civil Code, have not been able to prevent social and economic
development from outstripping them. New, and theretofore unknown,
associations, new kinds of contracts, new forms of undertakings, new kinds
of declarations of will in case of death have come into use, and juristic
science has found appropriate norms for decision and appropriate remedies
both within the framework of the code and without. The new situation
under the new [German Civil Code, as is clearly discernible even now, will
not be different»
The “Geschlossenheit des Rechtssystems"1 never was anything but
purely theoretical pedantry. Juristic science has never been able to offer
prolonged resistance to great and justifiable social or economic needs, and
jurists have always believed that its most important function is to find forms
for new social and economic developments that fit into the frame of the
code (the art and science of drawing up legal documents) and to establish
norms for decision adapted to these new developments without directly
doing violence to the code. Anyone who has observed the development of
juristic science must admit that the task which daily and hourly confronts
the jurist not only can be performed by the jurist but is actually being
performed daily and hourly. To cite an important and famous example,
permit me to mention the matter of life insurance. It is passed over in
silence both by the French Civil Code and by the Austrian Civil Code, not
by chance, but with the intent to forbid it. That this is true is shown as to the
former by a remark of Portalis, one of its authors, and by a remark of
Merlin, a contemporary, in his Repertoire; as to the latter, it was proved by
v. Herzfeld by quotations from the source material. Speculation as to the
length of human life was considered immoral, and fears were entertained
that it might stimulate crime. If a contract ought to be held bad in any case
on the ground of the silence of the statute in regard to it, this is such a case.
What would this world look like if in this case juristic science had not been
mindful of its unending task?
The new law which is imperatively demanded by new relations is drawn
by the jurists who are working under a code, as was done by the jurists of
all times, from the concrete structure of the legal relations themselves,
chiefly from declarations of the will, documents, and business custom; it is
enriched by means of uni-versalization and finding of norms, and gauged
by the content of the codes. This is the way in which the law of insurance
arose from the contracts of insurance during the course of the nineteenth
century. The codes facilitate the execution of the juristic tasks, both of the
judges and of the lawyers who draw up legal documents, in part
unconsciously perhaps, nevertheless very effectively, through the
extraordinary flexibility of their provisions. Liberty of association, liberty
of contract, liberty of testamentary disposition form an enormously wide
frame within which most of the things that life requires can be provided for.
Moreover the codes invariably contain a series of concepts which make it
possible, for judicial decision at least, to create legal norms that are adapted
to the new institutions. These are the concepts of declaration of will by
silence, business usage, the principle of gute Treue (good faith, bonne foi),
the principle of Treu und Glauben (good faith) ; in addition there are the old
tried and proved home remedies of practical juristic science which have
been in use since the days of the glossators, to wit the creation of con» cepts
and construction. Accordingly judicial decision in Austria, in France, and in
a modest measure also in the territory of the Prussian Code has in fact
succeeded in pouring a new content into the law of the codes just as the
juristic science of the Continental common law has ever been able to adapt
the law of the corpus iuris to the needs of life at the proper time and place.
At the present time the French Civil Code and the Austrian Civil Code, the
two of the older codes that are still in force, are covered with a crust of new
juristic law so thick that the original content can scarcely be discerned, and
this in a few places only. One can readily understand that in both countries
the call for a revision of the civil law has been heard, the task of which will
be identical with that which was performed one hundred years ago, i.e. to
receive into the code the substance of the law that has been created
meanwhile, and at the same time to take account of many new claims and
interests which the existing law has not recognized. The new law must
needs be a new morphology of society, must give occasion for the creation
of new norms, which self-evidently will be as far from being final as any
legislator has ever been from speaking the last word on social development.
1 The perfection of the legal system.

One must never overlook the fact that even in a code juristic law is not
state law. Even in this form, it cannot, because of its very nature, be a
command issued to persons subjected to its power, as is state law, but can
only be, as it is everywhere else, a direction and an instruction. Surely no
one would attribute the same force and power to the rule about the sale on
approval as to the provisions of the German Civil Code about Sachwucher
(a form of usury). Juristic law is not being imposed upon the relations; it
was abstracted from the content of these relations in the past, and it is to
conform to this content in the future. Compare the breadth and flexibility of
the precepts of the German Civil Code concerning the legal transaction
which violates good morals (contra honos mores) with the rule of state law
prohibiting usurious transactions, which is contained in the same section.
The presuppositions and the effects of the latter must be found exclusively
in the code. But as to the question when a legal transaction is contra honos
mores, and what its consequences are, information must be gathered from
the whole body of antecedent literature and the antecedent course of judicial
decision as well as from the whole body of subsequent literature.
The provisions of Roman law as to liability for culpa lata and culpa levis
are typical universalizations of juristic law. In these provisions the Romans
by no means intended to lay down in advance exactly what measure of
fault1 the jurist should assume in each individual legal relation. These
provisions of the Roman jurists were merely a description of the practice
actually followed in the administration of justice. It was not a "should be"
for the future, but merely an "is" as to the present. The principles according
to which the judges in Rome actually adjudged fault hardened into the
doctrine of the Roman jurists about the care required in everyday life.
Received into the modern codes, these Roman universalizations were, in
form, converted into legal propositions which were to bind the judge in the
future. There is no doubt however that they actually do not do this. The
Austrian Civil Code indeed does provide for liability in all contracts even
for slight fault; only the measure of damages depends upon the degree of
fault. And now let us compare the case of a man about to undertake a
journey who deposits his valuables with a friend, who, as a matter of
friendship, undertakes to keep them safe, with the case where he delivers
them to a professional depositary for hire. That which is considered fault in
the case of a professional depositary will of course not be considered fault
in the case of a friend who is merely doing a favor. The course of judicial
decision in Austria apparently makes the same distinction that the Romans
made, i.e. in the former case there is liability for slight fault, or negligence,
in the latter only for gross negligence. The only effect of the precepts of the
Civil Code was that the judges made no distinction between gross and slight
negligence but simply denied that there was fault in a case in which they
did not think it proper to hold the party liable. The attempts, therefore, of
the Austrian Civil Code to convert a doctrine of juristic law, an essential
characteristic of which is adaptability, into a rigid, inflexible norm has
failed. And I presume that the same result has been reached wherever the
codes have recognized the degrees of culpa levis and culpa lata,
1 Culpa, negligence.

The codes therefore have had the effect neither of bringing the course of
development of law to a complete standstill nor of limiting it exclusively to
legislation. The development of the living social law as well as of the art
and science of drawing up legal documents and of judicial decision
continues the even tenor of its way. The authors of the codes did indeed
believe that they would be able to exclude juristic science altogether. It was
not only Justinian that entertained this idea but also the Emperor Joseph II,
Frederick II, and Napoleon I. It is said that when the last named saw the
first commentary, he exclaimed: “Mon code est perdu" The reason for this
is that, like all men of action, they lived only for the moment, and were bent
upon doing away with a future that was independent of their wills.
During the time immediately following the appearance of a code, it is
true that, to a certain limited extent, there is no need of juristic labor. Since
the code has received all the juristic law that was in existence at the time,
questions of greater importance at least have been settled for the moment,
and when juristic science insists upon participating in the work, the authors
of the code are justified in rejecting its overtures as those of an officious
and superfluous intermeddler. But before very long, time will bring
questions for which no answer, or no satisfactory answer at least, can be
found in the code. And at this very moment, juris- tic science is again
brought face to face with its never-ending task of making the law subserve
the needs of life; and it fulfils this task by employing the same means that it
has used from time immemorial. As soon as life has caught up with the
code, juristic science begins to function with renewed vigor. The older a
code, the more clearly its work of modifying and eking out becomes
apparent. Practically not a single proposition of the Danske Lov of the year
1683 is valid today in its original sense. And time has had a powerful effect
also upon the French codes of the beginning of the nineteenth century. He
who knows only the French Civil Code has only a very imperfect
conception of the civil law that is in force in the French courts. One must
not seek the law that is actually valid in France in the codes, but in Dalloz
and Sirey.1 And recent though the German Civil Code is, German judicial
decision has resorted to legal material not embodied in the code in an untold
number of instances, as Hedemann, Jung, and other adherents of the free-
finding-of-law movement delight in pointing out.
This then is what has happened in the case of the three older codes. The
French Civil Code has produced a result in this con» nection that is
extraordinarily instructive. While juristic science in France was temporarily
at a standstill, there appeared in Germany, immediately after the
promulgation of the French Civil Code, the famous handbook by Zachariae,
which amounts to a professed juristic development of the law of the French
Civil Code, and which has been recognized as such by the French. Why did
this book appear in Germany and not in France? Because to the French the
code was but an orderly statement of the results of their juristic science up
to that time, to which, they thought, they had nothing to add, for the
moment at least. But to the German it was an altogether different thing from
the very outset. It was not the results of the juristic science of his own law
that had been expressed in the code, but the results of a juristic science that
was based on a totally different social morphology and that created different
norms. Zachariae's work was practically of the same nature as that done by
any other jurist in case life has outstripped and grown away from the code.
He worked into the juristic law of the code the law created by judicial
decisions that had been rendered in the society of which he was a part, and
which, in part, was very different from French society. In this way his
handbook became a model for the later French juristic science, which found
it incumbent upon itself to work into the code the law created by the
judicial decisions rendered in French society, which, however, had
undergone a considerable development meanwhile. The French consider his
work a classic, just as they do its French continuations by Aubry and Rau.
1See Pound, The Theory of Judicial Decision, 36 H. L. R. 641,
802, 940.
XIX The Theory of Customary
Law

MOMMSEN has pointed out quite emphatically that among the Romans "
usually and especially in the language of the law books/' i.e. one may say
technically, the phrase ius puhlicum did not mean law that concerns the
people, but law that is posited by the commune; that ius publicum in this
sense is that which the older legal language called lex puhlica ; that ius
publicum therefore is not Staatsrecht*1 but law posited by the state. This
remark of Mommsen's is borne out by the sources. In my Beiträge zur
Theorie der Rechtsquellen,2 I have shown that ius publicum is very seldom
used in the sense of Staatsrecht and never, as is usually believed, in the
sense of compulsory law, but regularly in the sense of law that is posited by
the state. In the writings of Cicero and of the jurists of the age of the
Republic, ius publicum is the leges and the plébiscita; in the writings of the
jurists of the Empire, it comprises in addition the senatusconsulta, the
praetorian edict, and the law of the imperial constitutions. Wherever a given
precept is referred to by the jurists as belonging to ius publicum, it is based,
as can be shown, upon a lex, a plebisciium, a senatusconsultum, on a
provision contained in the edict or in a constitution.
The concept of ius privatum is given by the contrast to this sense of ius
publicum, i.e. it is the law that is based on the other, the non-state, sources
of law; it is the Roman customary law, especially the Roman juristic law.
The words of Ulpian on this point must be taken literally: Tripertitum est:
coUectum etemm est ex naturalibus praeceptis aut gentium aut civilibus.
These three kinds of praecepta, the praecepta naturalia, as well as those
iuris gentium and the praecepta civiltà, are parts of non-state law.
 1 Le. public law in the narrow sense of the term, excluding
international law, and comprising constitutional and administrative
law.
2 Contributions to the Theory of the Sources of the Law.

lus privatum is a later, purely academic concept, occasioned chiefly by

the notion that logic somehow required the subsump-tion of all classes of
legal propositions that were not ius publicum under one head. The original
legal language did not employ the term ius privatum but ius civile. The
oldest meaning of the term ius civile, which is found wherever the term is
used absolutely without an opposite, like ius gentium, for example, from the
auctor ad Herennium down to the classical jurists, is the juristic law which
is applicable in a proceeding in a Roman law court. In Cicero’s day the
opposite to ius civile still was leges. Legibus et iure chili is one of his
standing phrases. The leges which govern court procedure also, chiefly the
leges testamentariae, he calls leges de iure civili. The praetorian edict
occupies a subordinate position in Cicero's day, and the later sources of the
law, senatusconsuUa and constitution's, are not yet in existence.
Accordingly the Romans in the days of the Republic distinguish but two
sources of law, ius civile, or, as it is still called by Pomponius, proprium ius
civile, and leges. The former is juristic law, which is traced back to juristic
interpretation of the Twelve Tables somewhat in the manner in which the
Mohammedan jurists trace their vast body of norms to a few hundred
passages of the Qoran, of which only a very small number contains as much
as a single legal proposition. It is self-evident that by this time no one takes
this derivation of ius civile from the Twelve Tables seriously, as is shown by
the presentation of Pomponius. At a later time the praetorian edict is added
to the leges and the ius civile. It cannot be shown that it was, in theory,
considered a source of law as early as the days of the Republic; but
practically it was a source, as appears from Cicero’s writings. The great
mass of private law, without doubt, derived from the ius civile. The edict
and the leges dealt with special subjects onlyf whenever the necessity for
new regulation appeared. The two sources that were added in the days of
the Empire, the senatusconsuUa and the imperial constitutions, were not
universally recognized until after the Byzantine Empire had been
established.
 Since I first published this view of the sources of Roman law? it has quite
generally been accepted by unbiassed scholars. I should like to add here that
since that time I have gathered some material which confirms my opinion.
The doubts which critics have expressed refer to the antithesis between ius
civile and ius honorarium. In the book referred to, I made the assertion that,
among the Romans, ius civile is contradistinguished from praetorian law
down to the days of the later Empire in precisely the same manner in which
it is contradistinguished from ius legiti-mum, the s enatus consulta, and the
law of the constitutions. And there is much evidence in favor of this view. It
is, I admit, in conflict with the well-known fragment of Papinian in the
Digest, which divides the whole law into ius civile and ius honorarium, and
which enumerates under the former head, in addition to aucioritas
prudeniium, leges, plébiscita, senatusconsulta, and decreta principum. We
do not know what the passage meant in its original context, but the doctrine
which it teaches has not been handed down elsewhere. There is not another
passage in which the law is divided into ius civile and ius honorarium in the
sense in which this is done in the passage referred to. In every other text of
the sources in which we find a similar division, the latter refers exclusively
to the actiones and to the law of inheritance. There are actiones that are part
of the ius civile and there are actiones that are part of the ius honorarium]
there is a ius civile law of inheritance and a ius honorarium law of
inheritance. Beyond this there is no mention of ius civile and ius
honorarium. But before the times of the Severi, even the division of the law
of the actiones and of inheritance into civil and honorary is never
mentioned. In particular, we find no trace of it in Gains. I have therefore
expressed the opinion that the text of Papinian in its original context
referred solely to the law of inheritance, and that the doctrine of civil and
honorary actions, of civil and honorary law of inheritance, which moreover
is based solely on practical considerations and not upon any considerations
of the theory of the sources, was invented by the jurists of the time of the
Severi. But the basic idea of my book would not be shaken in the least if it
could be shown, as is contended chiefly by Girard, that the doctrine of
Papinian and of the jurists of the time of the Severi arose at a somewhat
earlier period.
This basic idea is the following: the Roman law that was applied by the
courts is in it's essence and as to its original component parts ius civile,
juristic law, and remained such until the latest Imperial times. To this
original part were added at a later time the leges, the edictum, the
senatusconsulta, the con-siitutiones. It is self-evident that I do not mean to
say that the words ius civile never had any other meaning than juristic law.
There is not a single expression of human speech that for centuries had the
same meaning at all times. To what degree even the technical terms of the
Roman jurists were susceptible of many different interpretations and have
changed their meanings in the course of centuries is shown by a glance at
the Vocabularium iurisprudeniiae Romanae. As is well known to every
student of language, the meaning of words varies in accordance with the
meaning of the words as the opposites of which they are being used. If the
term ius civile is used as the opposite to ius gentium, or ius militare, or ius
criminale, it does not mean juristic law, but the opposite to ius gentium, or
ius militare, or ius criminale. This I have expounded in my book. And this
is the reason why Gaius Inst. I, 1, 1 does not refute my theory, as Mitteis
thinks. I have by no means overlooked this passage but have discussed it at
length. It is only in those passages in which ius civile is used absolutely,
without an opposite, that it invariably, from Cicero to the auctor of
Boëthius, means, as far as I can see, juristic science, juristic law. And I do
not believe that I have overlooked a single passage. When Paulus says
(Sent. IV, 8, 20) : "Idque iure civili Voco-niana ratione videtur eßectum"
iure civili can only mean “juristic law."
Unless one bears this in mind, one cannot understand the development of
Roman law. And this is doubly important since we are not discussing a
peculiarity of Roman law. The same phenomena appear in the development
of the only other system that has attained to an advanced stage of
development — has attained to it without a reception and without marked
foreign influences. In English law we find the distinction between common
law and statute law, which exactly corresponds to the distinction between
ius civile and ius legitimum. The common law is exclusively juristic law; it
is the custom of the realm, established by the judges. And the statute law is
merely ius legiti-mum, created by the state. Here also a third component
part is added at a later time, magisterial law, equity. One can justly say
therefore that we are not dealing with an accidental peculiarity of the
development of Roman law but with the law of all legal development,
which takes place independently of the power of the state, from within, and
independently of any outside influences.
 The Roman jurists at the same time speak also of mores and of
consuetudo. These however are not customary law such as courts would
have to consider. The norms that arise in Roman society become customary
law only by passing through the alembic of juristic law, by becoming ius
civile. This is seen most clearly in the case of the rule making gifts between
husband and wife in» valid — a rule which is referred to, in ten different
texts at least, as ius civile. The discussions of Pernice (Zeitschrift der
Savigny Stiftung R. A. XX Bd. S. 127) and of Brie (Die Lehre vom Ger-
whnheitsrecht)1 show that mores or consuetudo cannot become customary
law directly without the intervention of the labors of juristic science. These
discussions appear the more convincing to me because the point of view of
their authors is diametrically opposed to mine.
Customary law other than ius civile had not been heard of in Rome down
to the end of the classical period. Among the texts of the title of the Digest,
de legibus senatusque consultis et longa consuetudine, and of the title of the
Code, Quae sit longa consuetudo, which were taken from writers of the
classical period? there is but one that dealt with Roman customary law, i.e.
fr. 1, 3, 36. In this text gifts between husband and wife are being discussed.
But this text contains only an academic laudation of this precept. The whole
content of these two titles originally did not deal with questions of Roman
customary law. The famous passage from Julian (fr. 2 h. t.), in its original
context was a discussion of the lex Papia et Poppaea, probably of the
provisions of this statute concerning burdensome communal offices and
services. In this connection reference was not made to customary law but to
the usage that obtained in the municipio,. The fact that the two passages
from Ulpian, fr. 33 and 34 h.t., as well as the constitution of the Emperor
Alexander (C. 1. 8, 52), were taken from Ulpian's book De officio
proconsulis indicates that they were not discussing customary law but
provincial usage. The texts taken from the Quaestiones of Paulus and the
Quaestiones of Cal-listratus (fr. 36, 27 h.t.) refer exclusively to the
traditional interpretation of statutes. The passage from Paulus, fr. 37 h.t., is
taken from the disquisition Ad legem municipalem. That it deals only with
municipal custom is shown by its very wording: quo iure civitas retro in
eius modi casihus usa fuis set. To sum up : when the classical Roman jurists
speak of ius civile they mean Roman customary law; but when they quite
generally speak of mores or consuetudo, they do not.
 1 The Theory of the Customary Law.

I have taken the preceding paragraph verbatim from my Rektoratsrede ,1

entitled The Fact of Customary Law.2 When 1 had this address printed, I
did not know that Puchta had said exactly the same thing, perhaps in a
better way, at any rate in a more complete statement, in his book on
customary law. 1 have repeatedly studied this book very carefully, but have
always skipped the discussion of Roman customary law because we have
made such glorious progress since that time. Then I decided to read it after
all, and now I am far from certain that we have advanced very far beyond
Puchta. I believe that after all we could still learn something from his work.
Puchta^s view has met with Savigny's approval.
Consuetudo was first treated as a source of law by the post-classical jurist
Hermogenianus and the later imperial constitutions. At that time the
situation was quite different from that of the age of the classical jurists.
From the days of the Constitutio Antonina, the Roman law was law for
nations of the most varied character, civilization, and descent, whose
members had indeed become Roman citizens but had not adopted Roman
law and Roman custom even outwardly. They continued to live, as they had
done before, according to their ancient law and customs. It was not
advisable simply to ignore this fact. Though the emperors were strongly
inclined simply to abolish these consuetudines, they had to concern
themselves with them. Accordingly a post-classical text of the Digest,
which was taken from Hermogenianus, expressly states that quae longa
consuetudine comprohata sunt are binding. The Code contains three
imperial constitutions that deal with this question. Justinian, who realized
that he could not simply ignore these local laws and customs, took the
statements of classical jurists which I have referred to above out of their
context, greatly distorting their meaning in the process, construed them to
suit his purpose, and added such texts as he could find on the subject in
post-classical literature.
1 Inaugural address as rector of a university.
2 Die Tatsache des Gewohnheitsrechts,

The glossators, the postglossators, the canonists, and the common law
practitioners of the Continent had a task to perform that was similar to that
of the post-classical Roman jurists and legislators. They too were to apply
Roman law to peoples of varied character, descent, and civilization, to
whom Roman customs and Roman law were foreign, and who had their
own law and their own customs. The texts of the Justinianian sources were
designed, as it were, to meet this very situation, and could be applied
directly. The only question was how much of the customary particular law
was to be considered valid, and how to draw the line of demarcation
between it and the Continental common law. It is clear that a standard
derived from the Continental common law was very welcome; it is equally
clear that the jurists who were trained in the Continental common law
preferred a narrower policy to a more liberal one. At any rate these texts
were anything but a theory of the sources of law in the opinion of those who
from the beginning of Romanist juristic science down to the days of the
activity of the Historical School were relying upon them. To them they were
a statutory provision concerning the validity of particular law and local
customs. This situation remained unchanged until it was remedied by the
Historical School of jurisprudence, which created a doctrine of such
grandeur that it must stir us to unqualified admiration even today, for it has
never been surpassed.
In this connection, of course, we are referring exclusively to Savigny and
Puchta. Between the basic doctrine of these two pioneers of the historical
interpretation of law, especially in the sphere of customary law, and their
successors a gulf is fixed that cannot be bridged. Savigny and Puchta may
be treated as a unit. And if, occasionally, the doctrine of one differs from
that of the other in detail, it does not appear that they were desiring to give
expression to a difference of opinion thereby. It is analogous to a variation
between the statements of the same writer at an earlier and at a later date. It
is true, the views of both have undergone modifications. Savigny's view in
the Beruf is different from that in the System ; Puchta's view in the
Gewohnheitsrecht is different from that of the Institutionen; and in the
notices and reviews which both have written, one occasionally perceives a
modification of view. As to Puchta, we must treat the statement in the
second volume of his Gewohnheitsrecht1 and in the review of Georg
Beseler's Volksrecht und Juristenrecht2 as final; as to Savigny, the System.
We must not, of course, ignore the other works of Savigny and Puchta,
especially their critical works, when these supplement or explain those
mentioned above.
 In forming an estimate of the doctrines of Savigny and Puchta, one must
bear in mind that it was they who first introduced the idea of development
into the theory of the sources of law and clearly saw the relation between
the development of law and the history of a people as a whole. “This
organic relation between law and the nature and character of a people is
maintained throughout the passing of time, and as to this point also is to be
compared with language. For both there is no moment of standing
absolutely still; both are subject to the same progress and development as
every other activity of the people; and the development of both law and
language are subject to the same law of inner necessity. The law grows with
the people, develops with it, and finally dies when the people loses its
individuality." (Beruf.) This view gave rise to an absolutely new conception
of the sources of law: their function no longer is to determine arbitrarily and
casually what should be law; they are an expression of a process of
becoming and happening which takes place from an inner necessity within
the popular consciousness (Volksbewusstsein).
1 Customary law.
2 Popular law and juristic law.

And now we see the deeper root of the whole doctrine. Sa~ vigny and
Puchta's chief endeavor was to establish most emphatically that the
development of law goes on immediately within the legal consciousness.
Usage is merely the shoot which reaches the surface. "Custom does not
create law, it merely makes it possible to gain a knowledge of law," said
Puchta in a reply to Beseler. But that is by no means a peculiarity of
customary law; it must needs be true of every other source of law. If it is
really to create law, it must be an expression of the general legal conviction
of the people. For this reason a statute must be treated exactly like usage.
"The common power is the Geist des Volkes (spirit of the people), from
which legislation, too, derives the content of its pronouncements." It is well
known that there is a close harmony between this statement and the
doctrines of Savigny from the beginning of his career. In his Beruf, he says
that the sole function of a code is to state the whole existing law. In the
System, he makes the same statement, not only, however, as is generally
believed, with reference to the codes, but with reference to all statutes. He
says that the already existing popular law (Volksrecht) "is the content of the
statutes, or, to express the same thought in other words, the statute is the
instrumentality of the popular law." A statute, according to Savigny, merely
serves the purpose of making the popular law more definite, or perhaps^ in
the case of progressive development of law, "of shortening the interim of
uncertainty in the law." Similarly Puchta says that the activity of legislation
is a formal rather than a material one, inasmuch as the legislator is not the
possessor of a peculiar legal consciousness, but receives his material
directly from the Volksgeist (spirit of the people) and from the jurists.
Frequently it exercises an exclusively formal influence upon the law,
inasmuch as it states the already existing law, i.e. puts it into statutory form.
The third source of law is juristic science. Savigny in his Beruf has called
attention to juristic science as a source of law. Puchta devoted a brief
section to it in the first volume of his Gewöhn-
heitsrecht but made substantial changes in the second volume. Savigny,
in his System, follows Puchta, but there is some doubt about this, for the
doctrine of neither is quite clear. According to Puchta, juristic science
creates law only in case it is not a pure science but a popular 1 one. “In
addition to the usage" which is based on a legal proposition scientifically
deduced, there is a usage " which expresses the popular consciousness of
experts in the law and therefore contains customary law." How these words
are to be understood can best be seen from Puchta's statements in his review
of Beseler's book: "When we are discussing the common conviction as to
the law of bills of exchange, we shall not expect to find this conviction
among the peasants; again, when we are discussing the law as to marking
off boundaries and as to the servitude of pasture, we shall not consult a
banker. But among those in whom we take an actual conviction on the legal
proposition in question for granted, we shall assign a prominent place to
those whose affairs bring them into more frequent contact with legal
questions in general or with a certain kind of legal question. We shall not,
for instance, take for granted that all persons of equal mental powers who
have the legal capacity to draw bills of exchange have the same strength
and extent of this consciousness. When dealing with the question of a
common popular conviction, we shall select those whose experience in
affairs of this kind is most varied as the representatives of the whole class.
Imagine a court consisting of persons who have not made the judicial office
their profession; will not the opinion of these men, provided they have been
called upon repeatedly to serve in this capacity, e.g. of merchants, who have
acted as lay judges in commercial courts, ceteris paribus be given especial
weight among us on a legal question of this kind, even though we are
merely seeking to ascertain the popular conviction? Now let us, in our
imaginations, substitute for these judges men who do not combine any other
profession with their judicial office; let us imagine further that they have
received a legal training as a preparation for this office. Do they thereby
lose their capacity to represent the popular conviction?"
1 Nationelle.

In this sense therefore customary law and statute and juristic law are
shoots from the same slip, i.e. the popular consciousness. Puchta says that
ethical custom is the original body of customary law in the same sense in
which the organized system is the peculiar instrumentality of juristic law,
and in which the word is the peculiar instrumentality of statute law. The
reciprocal relation of these three kinds of law can be most graphically
presented by an extract from a notebook of Savigny ’s of the year 1819,
which a kind stroke of fate has permitted me to read. I am quoting this
passage verbatim, since it not only is of the greatest interest intrinsically but
also seems to show that Savigny is the true originator of the doctrine of
customary law formulated by Puchta. " Accordingly the law can be
formulated in a scientific manner, first by scientifically trained jurists,
secondly through legislation. To fix the essential, invisible, law of the spirit
of the people in this manner must therefore be the sole purpose of
legislation. Unfortunately, in many instances, legislation has not been
carried out in this spirit, and, as a result, the law has suffered grave injury.
Let us adopt the view which is the only correct one, and which has stood
the test of history, and let us ask how can the law, which, in accord with its
true inward nature, has arisen invariably within the consciousness of the
people, emerge into an outward visible existence? Our answer is: The
language of the law can be provided scientifically (e.g. through books,
instruction, etc.) ; it can also be provided by legislation. In the latter case,
the written sources are not originating causes * but merely marks and
necessary characteristics2 from which we can draw inferences as to the
existing law. Accordingly all statutes serve but this one purpose, i.e. to tell
us what the existing law is at the present time, and to preserve it. This is
borne out by experience, for most of the existing statutes are the expression
of a custom which has been in existence among the people for a long time."
In this way, Savigny and Puchta are endeavoring to place the center of
gravity of the development of all law — not only of customary law — into
the legal consciousness, "the natural harmony of the conviction of a people,
which is a popular universal conception" * and to treat its emergence in
usage as not essential to the origin of law. People generally, however, fail to
realize the profoundness and comprehensiveness of the conception upon
which this "spiritualistic" view of these two writers is based. It is presented
most clearly perhaps in the following words, quoted from Puchta's review
of Beseler's book: "The epoch of German juristic science which
subsequently has been called the Historical School found a theory of law in
existence, in which the state had been severed from its natural basis, the
nation, and had been converted into a purely arbitrary mechanical structure.
All law was said to owe its existence to the legislative power, and whatever
else insisted that it was a law-creating power — and it would have been
necessary forcibly to close one's eyes in order to fail to see that there were
legal propositions everywhere that were valid though they had never been
promulgated — was somehow brought into connection with legislation, was
conceived of as a direct product of the latter, and in this way the absolute
supremacy of statute law was maintained — at all events this was
accomplished with the aid of the division into written and unwritten law.
The Historical School has taken a different path. It based its doctrine on the
concept 'national,' having found in it the natural basis of law and of the
state."
1 Enstehungs gründe.
2 Merkmale.

It would be difficult to over-estimate the importance of these discussions,

particularly in view of the doctrine of evolution, which is their basis
throughout. The doctrine of evolution is not merely this or that scientific
truth; it is the basis of all modern thinking, one might say a
"'Weltanschauung" (philosophy). At a time when it was dimly discerned
only by a few of the most select minds in the natural sciences, Savigny and
Puchta successfully introduced it into the science of law, i.e. into the social
sciences. They were successful because they gave an altogether new content
to the theory of the sources. Their predecessors were not very much
interested in this theory. There was no doubt in their minds that the question
what is to be considered law is decided exclusively by the legislator, and
they stated the few rules laid down by the Roman legislator on the question
under what conditions customary law should be recognized. At this point
Savigny and Puchta are proclaiming their views as to the origin of law. The
view is here being proclaimed for the first time that the nation is an organic
whole, that it is in a continuous process of development, and that all
changes in the law are merely a result of the development of the whole
people.
1 This, the translator thinks, is the substance of the thought
expressed by Savigny in the following words: uDie natürliche
Übereinstimmung der Überzeugung eines volksmässigen
Inbegriffs."

The Historical School, therefore, unlike its predecessors, is no longer

interested in laying down rules for the judge as to the application of
customary law, but in discovering the law-creating forces in society. The
object of the jurists of the Historical School was not to teach how law
should be applied, but how it originates; not to give practical directions, but
to present a theory of the sources of law which discloses the nature of
customary law, explains it, and justifies it. An explanation and justification
of this sort they found in the concept "national," and Puchta says expressly:
"If customary law is so intimately and necessarily related to the natural
concept ' nation/ and if it is the result of the direct activity of the nation with
reference to law, the question whether customary law is valid and on what
ground it is valid cannot, in fact, arise; for the only answer that can be given
is the following: Customary law exists and is valid for the same reason that
a popular conviction exists ; in the last analysis for the same reason that
peoples exist."
Since customary law is based exclusively on the concept "national," there
are no other prerequisites to its origination than a common popular
conviction. Not even ethical custom can be considered a prerequisite ; for
the latter is the expression of something that has already come into being,
not a prerequisite to its coming into existence. But there are prerequisites to
the applicability of customary law by the judge. "But if we take prerequisite
to mean something else, e.g. if we take it in the sense of a prerequisite to the
application by the judge, to his acceptance of customary law, then that
whereof we are speaking no longer is a prerequisite to customary law itself.
In this case the question to be answered is: What must the judge take into
account when a party litigant appeals to customary law or when for any
other reason he is called upon to consult this source of law? What are the
presuppositions under which customary law can actually be assumed to
exist?" (Puchta). And at another place, " According to the results of the
investigations of the nature of customary law, the doctrine of the
prerequisites to customary law can mean only this, that it should be
ascertained under what presuppositions the fact that a proposition is
customarily followed can be a means of cognition of that law for the judge.
By no means must one think, in this case, of the prerequisites to the arising
of customary law."
This is the sharp distinction which Puchta makes between the question as
to the origin of customary law and as to its applicability by the court, which
latter of course depends upon the cognoscibility of customary law. It
follows therefore that there may be customary law which indeed exists in
the conviction of the people, but is not applied by the courts because the
prerequisites to its applicability by the court are lacking. Savigny and
Puchta make this inference, at least as to the case where the state prohibits
customary law. This prohibition, they say, can prevent its recognition by the
court but cannot prevent it from arising.
In this discussion, however, a basic difference between customary law
and the other sources of law, i.e. statute law and juristic law, has not been
sufficiently emphasized. In customary law, as Savigny and Puchta assume,
that which has arisen in the legal consciousness of the people is directly
converted into ethical custom; the people are not merely conscious of their
law, but they live their law, they act and conduct themselves according to it,
and this living according to law is not a mere form of manifestation but also
a means of cognition of customary law. Customary law therefore is both a
rule of conduct and a norm for decision; nay, rather, it always is a rule of
conduct in the first place and thereby becomes a norm for decision. This
cannot be said of the other sources, and especially of statute law. Both
Savigny and Puchta say that it is highly desirable that the statute should also
arise in the legal consciousness of the people, but they admit that it is not
always the case. Savigny, for instance, in the passage quoted above from his
notebook, emphasizes the fact that much legislation has not been enacted in
this spirit, and in many ways has done grave injury to the law; and in the
Berufe he speaks of the "new" statutes, which "can easily become a fruitless
corruption of the law"; and Puchta, too, must admit, after all, that it is not
necessary that the " content of a statute should at the time of its enactment
have been in existence as law, either in the form of customary law or of
usage, inasmuch as a view of the people or of the jurists can be sanctioned
that has not yet developed into a firm conviction, into law, or but for the aid
of the legislator would never have developed. And therefore legislation is,
potentially at least, a true source of law."
The situation is clearer still in the case of juristic law« Let Savigny insist
as much as he will that, at a more advanced stage of legal development, the
law-creating activity was exercised by the juristic profession as
"representatives of the whole"; and Puchta that, by a natural process, the
jurists "become the instrumentality through which the common conviction
of the people as to law is being expressed and through which the common
conviction of the juristic profession is substituted for the conviction of the
members of the nation generally." But in the case of customary law, the
common conviction of the members of the nation was manifested in this,
that the latter as members of the nation acted according to their legal
conviction; in the case of juristic law it is manifested, according to Puchta,
only by the fact that "it actually was able to assert itself, in part in the
conviction of the jurists, in part in the application by the courts." And this,
one must admit, is something quite different. Let the jurists have what legal
conviction they will, they do not live according to it, as jurists at least; as
jurists, they merely apply it. All juristic law therefore appears to be solely a
norm for decision, not a rule of conduct. For this reason, the idea expressed
by Puchta that in other cases also the legal consciousness usually arises
only in a few individual members of the nation is not a very good one; for
the bankers actually live the law of bills of exchange, the peasants live the
law of bills of exchange, but the jurists merely render decisions according
to these laws.
Savigny and Puchta therefore have one thing in mind as the efficient
force when they speak of customary law, and another when they speak of
statute and juristic law. Customary law arises directly in the legal
consciousness of the whole people or of various classes as a rule of
conduct; the whole people or the various individual classes regulate their
conduct according to it, and in this way customary law becomes ethical
custom; in this form it has become cognoscible to the jurist, especially to
the judge, and thereafter the jurist, especially the judge, derives the norm
for decision from it. Often statutes have come into being in the same way,
and this is the only form of legislation that the founders of the Historical
School unqualifiedly approve of, to wit declaration of what the law is. But
they do not close their eyes to the fact that statutes can arise in other ways.
This too Puchta was the first to state. He said it in plain words in his review
of Beseler's book. Said Puchta: “statute is valid because it has been
promulgated by the legislator; it is expected to correspond to the actual
national will, but its validity is not conditioned upon an investigation of this
presupposition; therefore legislation is a formally distinct source of law."
In the light of what has been said this can have only one meaning, to wit :
The content of a statute corresponds to the popular consciousness if and
only if, it has been drawn from the prevailing rules of conduct; if not, it is
foreign to the popular consciousness and does not meet Puchta's
requirements; it is binding on the courts, it is true, but only as a norm for
decision. It is strange that both Savigny and Puchta fail to observe that the
same argument must apply to juristic law, and in a much greater measure
than to statute law. For juristic law has never been drawn from the rules of
popular conduct; if it were, it would not be juristic law, but customary law.
It has not been drawn from the rules of juristic conduct, for the jurists do
not, as such, take part in the affairs of everyday life. As Puchta has correctly
perceived, it is, to begin with, only the " conviction of the jurists," and is
therefore utterly ineffectual as a rule of conduct; or it ap- pears "in the
application in the judicial decision" and is a mere norm for decision.
The theory of the sources of law which the founders of the Historical
School taught is explicable only on the basis of the strongly felt but not
clearly comprehended distinction between rules of conduct and norms for
decision in law. On this is based their well known doctrine of the antithesis
between the customary law of the beginnings of legal development and the
juristic law of a later time. When they assume that in the earlier times law
arises immediately in the popular consciousness, their meaning is that at
that time law still consists exclusively of the rules of conduct of the entire
nation, which therefore constitute the sole basis for the adjudication of legal
controversies. And if they contend that at a later time the law-creating
activity of the people is confined, for the most part, to the legal profession,
they merely mean to say that "for the most part" law no longer arises, as a
rule of conduct among the people, but as a norm for decision among the
jurists. This idea can be dimly perceived in the writings of Savigny, when
he says that " moreover the occasion for juristic activity may be either the
communication, by teaching or writing, of the result obtained, or the need
of adjudication of a legal controversy"; likewise in the writings of Puchta,
when he says: "Thus there appears by the side of customary law, which is
based on the common conviction of all the people, law of a different kind
which is based on the usage of the experts in the law, the jurists, as the
representatives of the people." By the usage of the jurists he can in this
connection mean only, as does Savigny, either the theory of decision of
legal controversies or the decision itself.
But in order to do some measure of justice to the doctrines of Savigny
and Puchta, we must determine what concrete cases of customary law they
had in mind when they developed their doctrines? For a single glance at
their work will suffice to convince one that it is not a matter of mere
abstract philosophizing or of mere deduction from preconceived opinions,
or of theories arbitrarily constructed, but of careful induction based upon
their own observation. Nevertheless it is not an easy thing to answer this
question. Though there can be no doubt that the classical writers on the
science of law always had concrete cases of customary law in mind, what
they write is so abstract, couched in such general terms, that not much can
be inferred from it. Their endeavor is to formulate their doctrines so as to
make them applicable to all customary law everywhere; we look in vain for
distinctions, for a discussion of details, for an investigation of specific
cases. Nevertheless they cannot altogether escape the necessity of giving an
indication at least of the actual presuppositions of their doctrines and of
illustrating them by a few examples. For this reason it is possible here and
there to examine the factual bases of their doctrines.
From the examples adduced by Savigny and Puchta we can gather at
least that they consistently conceived of customary law not as a mere norm
for decision but as a rule of conduct. Puchta mentions, as modern
customary law that was created by legal science, the doctrine that the
ancestor of an insane person has the right of substitution to an extent equal
to that of pupillary substitution; that the Roman signatio of a testament was
replaced by the seal of attestation, which was unknown to the Romans; and
finally the proposition : dies interpellât prohornine.1 As further examples
he mentions the bankers' law of bills of exchange, the peasants' law of
demarcation of boundaries and of the servitude of pasturage. In several
instances he mentions examples of customary law which he has invented
himself: "If a man adds his seal to his signature in . . . case of a lease of a
house, a certain fixed time for the notice to quit is a naturale negotii" 2 "The
question is whether there is a customary law in a city according to which
the lessee of a dwelling newly conditioned is under a duty to return it not in
the condition into which it would be put by ordin-ary use but in the
condition in which he has received it, or a customary law according to
which the power of the lessor to terminate the lease without the consent of
the lessee on the ground that he requires the house for his own purposes has
been defined by the recognition of the validity of certain reasons, e.g. the
marriage of a son, and has, perhaps, been extended beyond the intent of the
Continental common law."
1 Literally: The appointed time speaks for the man, i.e. makes
notice superfluous. See Cosack, Lehrbuch des bürgerlichen
Rechts·, I, § 63, 11 (7th ed.)
2 As to naturale negotii, see Cosack^ op. cit., I, § 90,11.

In general however there can be no doubt that they did not arrive at their
theory of the sources of law through observation of occurrences of this, at
all events unimportant, sort, but through historical study. To them, the
standard of primitive law was the law of the Roman regal period and of the
early republic, as they conceived of it. In his Institutionen, Puchta gives a
graphic description of it, and in his Gewohnheitsrecht he gives another
description—a description which is essentially in agreement with the
former. In addition, it can be shown, they had the German law of the Middle
Ages in mind. Both among the Romans and among the ancient Germans,
the law still consists chiefly of the prevailing rules of conduct; the people
participate in the administration of justice and their legal consciousness is
authoritative for the adjudication of the legal controversy. The jurists as yet
have no special legal consciousness of their own; they draw the rules of law
from the consciousness of their fellow citizens. Puchta refers expressly to
Eyke von Repgow. As to the later period, the founders of the Historical
School base their doctrine on the legal situation of the Roman Empire in
which the Roman jurists are creating law directly, and their own legal
consciousness supplies the basis for the creative activity. This is the
empirical basis of their doctrine of juristic law. But a law which arises in
this manner is not a rule of conduct but, in its very nature, a mere norm for
decision.
Above all things they must come to terms with "the greatest and most
remarkable act of universal customary law," i.e. the reception of Roman law
in the Middle Ages. Their whole theory is designed to justify the latter.
How can one harmonize their theory that the law arises in the legal
consciousness of the people with the fact that in the Middle Ages a system
of law which was foreign to the legal consciousness of the people became
the valid law of Germany? This purpose of theirs is subserved by the theory
that the people no longer participate in the creation of law after they have
reached a more advanced stage of legal development, that they are being
"represented" in this matter by the jurists. Roman law was received in the
Middle Ages solely and alone by the jurists, but they acted as the
representatives of the people.
This is, in its essence, Savigny and Puehta's theory of the sources of law,
stated, as far as possible, in their own words. I have availed myself of the
statements of Savigny and Puchta quite indiscriminately for, I am sure,
there is no doubt that, in spite of a few minute differences in details, the
doctrine as a whole is a unit, a product of their joint labors. And this
product of their joint labors is an achievement of the highest rank, which
was not understood by the great majority of their contemporaries, and
which has not been surpassed in our day. Moreover they have produced the
whole doctrine by their unaided, absolutely independent labors even though
certain traces of the influence of Schelling's philosophy or of Burke's
Reflections on the Revolution in France may perhaps be found.
Their gravest error has been pointed out repeatedly in this book. It lies in
this, that they manifestly conceive of the whole law as consisting
exclusively of legal propositions. Legal propositions however do not, at any
stage of legal development, arise, fully formed and developed, from the
legal consciousness. They are always a product of the labors of the jurists.
A few legal relations arise among the people, e.g. corporations and other
com-munities, family relations, ownership and other property rights,
contracts, and rights of heirs. This may be the "essential, invisible, spiritual
law of the people " that Savigny is speaking of. It is only on the basis of
these relations that juristic science and legislation create legal propositions.
In order to attain clarity, every theory of the sources of law must carefully
distinguish between the question as to the origin of legal institutions, and
the question as to the creation of legal propositions.
This first error is the cause of the second, which consists in this, that the
jurists of the Historical School make a distinction in principle between the
earlier and the later legal development. At a lower stage of development the
idea of the development of law immediately within the consciousness of the
people presented little difficulty to them, for they took for granted that the
whole people was called upon to take part in the administration of justice,
and that the legal propositions that it applied resulted directly from the legal
consciousness of the whole people. But the history upon which their
doctrine was built up was not true. Even when "all the people" judge in the
assemblies, it is always parts only of the people that are entitled to take part
in the assemblies, and the legal propositions are formulated and proposed
by a few, i.e. by those that are "experts in the law, such as a nation
possesses long before it has developed a science of law" (Puchta). It is not
these legal propositions that live and have their being within the
consciousness of the people, but the legal institutions and the norms of the
law of corporations and other communities, of property, and of contract,
upon which the institutions are based, and from which the legal
propositions are deduced. On the other hand at a higher stage, at which the
jurist has already appeared on the scene, legal institutions and norms
appertaining to them continue to arise among the people themselves, e.g.
(using Puchta's illustrations) the bill of exchange among the bankers, the
demarcation of boundaries, and the servitude of pasture among the
peasants; only the legal propositions are being formulated by the jurists in
their teachings and writings and in statutes. Had Savigny and Puchta
distinguished between legal institutions and legal propositions, they would
have realized at once that both are being created in an identical manner at a
higher as well as a lower stage of development.
Immediately linked with this second defect in principle appears a third
defect in the teachings of the jurists of the Historical School, an error more
remarkable indeed inasmuch as it prevented them from drawing the obvious
inference from their greatest achievement, which was opening up new
channels for the science of law, to grasp the full significance of which was
reserved for a future generation. I mean the introduction of the idea of
evolution into legal history. It is positively amusing to ask Savigny and
Puchta what their conception is of the way in which, at least at a more
advanced stage of civilization, the consciousness of the people arrives at the
legal proposition, and thereby makes its way into the law which is being
recognized and applied by the courts, and which according to their
conception is the valid law. In this case, they always insist, the immediate
influence of the popular consciousness is " negligible." But legislation, too,
as they both teach, is of minor significance. Only “in case the development
of law must take account of changed customs and views, in case quite new
legal institutions become necessary," they say, legislative action may
become salutary, aye, indispensable, in order to make an end of the interim
of uncertainty, in order to give effect to the equalizing influence of the new
law upon other, related legal propositions. Finally, the legislator must act,
perhaps, when "stages of development and situations" arise, like those
under Constantinus in Rome, which are no longer favorable to the creation
of law by the common conviction of the whole people (Savigny). And
beyond this legislative action becomes unprofitable.
Legislation therefore is just as negligible as the activity of the totality of
the people. All that remains is juristic law. But how do jurists bring about
harmony between the progress of their own legal consciousness and the
law? It is important to hear Savigny and Puchta themselves on this point. In
the first volume of his work on customary law, Puchta says: Scientific law
is not customary law; scientific activity is not popular activity; scientific
convictions are not those that a man arrives at as one of the people, but such
as he arrives at as an individual, therefore the Volksgeist (spirit of the
people) is not the factor which is directly creative. But the science of law
has a subject matter which is national in scope, and the science of law is a
true science only if it treats its subject matter as national in scope, i.e. treats
it according to its true nature. The jurists therefore must needs act as the
representatives of the people if they would exercise the influence on law
that has been referred to above. And the people is the original source of this
kind of law also, even though it is not created immediately by the people,
like customary law, but mediately, through these representatives. A juristic
view is law and right whenever there is a scientific basis for itj i.e.
whenever it is true. In order to be true, it must be based on the inner nature
of things, and it must be in accord with the Volksgeist. That it is in accord
with the Volksgeist will appear from the fact that it has made its influence
felt in part in the conviction of the jurists, and in part in the application by
the court. This is the significance of the authority of the jurists and of the
res iudicatae, which therefore are not sources of law but merely sources —
of course, not absolutely infallible ones — of the knowledge of such law as
has already come into existence.
In the second volume of his book on customary law, however, Puchta
says that under certain circumstances juristic law can be customary law. As
the law develops, the mass of legal material increases to such an extent, and
the science of law becomes so refined that a comprehensive knowledge and
a scientific mastery of the law can be found only among the jurists.
Therefore the conviction of all the members of the people is replaced by the
conviction of the jurists. “In this connection, it might be a good thing to
consider that the jurists do not possess this qualification of natural
representation in virtue of their scientific activity, which as such is not a
popular one, but in virtue of their preeminent legal knowledge which they
have in common with the men learned in the law, who are met with among
a people long before the latter has a science of law." Accordingly by the
side of customary law which is based upon the common conviction of the
people there is another kind of customary law, which is based upon the
usage of those learned in the law, of the jurists, as the representatives of the
people, provided no proposition is involved for which a scientific basis
must be sought, and which is valid only because it is inherently true; and in
addition to the customary practice " which is based upon a legal proposition
scientifically deduced" there is another customary practice which expresses
"the popular legal consciousness of those learned in the law/' and which
therefore contains "customary law."
Savigny, in his System, amplifies Puchta's remarks. Discussing the
general nature of the sources of law, he says that one must distinguish
between a material and a formal, purely scientific activity of the legal
profession. As to the former, he says that the law-creating activity of the
people is being withdrawn into the legal profession, and is being practiced
by the latter as representatives of the whole people. Later, in the section on
the sources of Roman law, he contrasts the theoretical and the practical
activity of the jurists. The theoretical activity, according to Savigny,
consists in purely scientific investigation, i.e. in establishing and
interpreting the text of the sources, working up the results into a legal
system, and perfecting the inner organization of the legal system. This
activity, he says, does not produce new law; it merely makes possible a
purer knowledge of the existing law. By practical activity he means all
investigation which has in view the relation between the content of the
sources and "the condition of the living law upon which they are to act, i.e.
the condition and the requirements of modern times.'' This activity may be
occasioned by the communication, through teaching or writing, of the
results obtained, or by the necessity of deciding a law-suit. In either case,
the investigation is an instrumentality of customary law and, at the same
time, a part of scientific law.
In the Romanistic practical legal science, Savigny would differentiate
between two totally dissimilar component parts. "One part is of a healthy
nature, and is based upon the modern requirements that have arisen as a
natural result from the completely changed conditions, inter alia, from the
great modifications in judicial procedure, and in part from the great
transformation of the whole ethical view of life that has been brought about
by the Christian religion. According to the views just stated, we must
attribute to this part the power and reality of customary law which has been
recognized in a scientific manner. In this connection, it is immaterial that
earlier teachers of law made a misguided attempt to derive these
propositions from Roman law. These jurists were sincere in their endeavors,
and we must, in such cases, consider the investigation of the true Roman
law an essential part of our task; not for the purpose of keeping it in force as
valid law, but in order to ascertain the true extent of the innovation. The
other part has arisen solely from the misguided confusion mentioned above,
i.e. from a defective scientific method. It is our task to expose and to
dislodge this error, without permitting long undisturbed possession of the
field to protect it; especially since, to a great degree, it will be possible to
prove that there is imbedded in it an inner contradiction, a basic error in
logic." As an illustration he adduces the Summarissimum of modern usage.
In concluding this discussion, Savigny adds these words: "The part of the
practical law which I have referred to as the sound part is of an importance
altogether different from that which I have attributed to the theoretical
labor. It is not only effective as an authority which commands respect, but
in fact comprises newly created law. Nevertheless we cannot concede even
to it a conclusively perfected, immutable existence. It is true, such a
proposition of the practical law cannot be deprived of its validity by a
purely theoretical examination, by demonstrating its divergence from the
law of the sources, for, being true customary law, it has acquired an
independent existence. But there can be no doubt that it can lose its validity
in the same way in which it got it."
To these words we must add the following remarks of Puchta in his
review of Beseler's book: "I find that even though those powers (the powers
to interpret the existing law) have been most fully developed, the judicial
office requires additional powers without which it would, in very many
cases, have no norm for decision at its disposal. In such cases the judge
derives the legal proposition which is to be applied from the principles of
the existing law. Inasmuch as the law is inherently reasonable, that which
follows as a matter of inner necessity from the existing law, must also be
valid law."
This can scarcely be called a scientific exposition; it is an embarrassed
stammering. The question is, whether the jurists who are working according
to a scientific method are authorized to introduce new principles into the
law. If they are, let it be stated clearly and unmistakably, and let the
methods be stated according to which they can and must do it. It cannot be
done by merely developing the principles of the existing law, for they are
comprised in the existing law. Puchta is right in insisting in his argument
against Beseler that this scientific labor, too, is productive; but its
productivity consists in discovering the content of existing law, not in
creating new law. And if Savigny alludes to the misguided attempt of earlier
teachers of law to derive such propositions from the Roman law, I would
say that this method becomes the more hopeless the more our understanding
of Roman law, and of existing valid law generally, increases. At all events it
would have been the most important task of these great defenders of the
creative power of the science of law carefully to develop the methods of
original creation of law. But no trace of this can be found in their writings.
All that they have to say of the science of law refers exclusively to the
means of deriving norms for decision from traditional law, not to a method
of finding or inventing new law. And the juristic method which they have in
fact developed most successfully, i.e. the historical and systematic method,
most flatly contradicts their teachings. A school of jurisprudence whose
chief concern is to establish the meaning of legal propositions at the time
when they were created is manifestly little qualified for the creation of new
law whenever the present time requires it.
 In his book, entitled Volksrecht und Juristenrecht1 (1843), Beseler
attacked the doctrine of Savigny and Puchta at two points. First of all he
denies that direct participation of the people ceases at the more advanced
stages of development. He adduces numerous examples from all
departments of law — he devotes a whole chapter to Genossenschaftsrecht2
and another to Standesrecht3 — in order to show that the popular law is still
alive in the great masses of the people. It is true, he says, the jurists know
little of it and the courts pay no attention to it, but the Historical School of
jurisprudence teaches that actual usage is not a necessary element of the
concept of customary law, but is merely an external characteristic, that all
that is of the essence of customary law is that it has arisen directly from the
consciousness of the people. Therefore, he insists, it is absolutely
immaterial whether this law, which is based directly upon the popular
consciousness, is, or is not, known to the jurists, whether it is, or is not,
applied by the courts.
1 Popular Law and Juristic Law.
2 Law of associations. 3 Law of rank.

Thereupon Beseler attacks the idea that, without more ado, the jurists are
to be looked upon as the representatives of the people in the matter of
creating law. He expresses the opinion that law might arise, "as to which it
is at least a merely accidental matter whether and to what extent it retains
its character as popular law." This is the case, above all, when bad laws are
enacted in the state, but also "when external influence becomes so powerful
from long continuance of its operation upon the state of the law that at last
true norms for decision develop therefrom which everyone considers, and
must consider, binding." The ultimate basis of the validity of law in this
case is custom, "which therefore is no longer a mere external characteristic
(Kennzeichen) of law but actually participates in its creation, and very often
in opposition to the Volksgeist (spirit of the people) and to the reason of
things (Vernunft der Dinge).." Customary law therefore, as such, is a thing
foreign to the popular consciousness. Its relation to Volksrecht,1 whose
origin lies immediately in the popular consciousness, is now one of
hostility, now of indifference. It is incorrect therefore, he insists, to say that
juristic law necessarily is a continuation of popular law; it may be merely
customary law.
 It is apparent that Beseler here carried Savigny and Puchta's very own
thoughts to their logical conclusion. When they made difficulties about
admitting that in their own day the development of law was being continued
by the whole people, and were bent upon looking upon the jurists as
representatives of the people, they did this solely in order to justify the
reception of Roman law, which had been carried out by the jurists and had
remained foreign to the popular consciousness. Beseler, who, being a
Germanist, was under no obligation to defend the reception, availed himself
of this freedom. But inwardly Savigny and Puchta were very close to
Beseler — much closer perhaps than they themselves believed.
Beseler devoted a whole section of his book to the question how popular
law must be ascertained and recognized. The people in its totality, or in
narrower circles, within whose consciousness popular law lives and has its
being, he says, has an immediate intuition of it, "which grasps the essential
elements of everyday life contained in the circumstances and relations of
everyday life, and, at the same time, knows the norms that regulate them
and applies them. This may also be said of every individual, within whose
consciousness, because of his position and his experience in business and
life, the common knowledge of the law is being reflected. . . . But if anyone
who is a stranger to the life of the people and the views of the people
wishes to obtain a knowledge of the law contained therein, he must proceed
like a natural scientist; he must acquire a knowledge of things as they are by
means of actual observation." In this case, the sources of knowledge are:
inquiry among people that are interested in the matter in hand, mercantile
Parères 1 (an institution that might be applied to other relations as well),
legal literature, autonomous relations, through which popular law in former
days so often expressed itself; in statutes, too, we often find a pure and clear
expression of the popular idea of right and law.
1 Popular law.

If we examine the presuppositions of this presentation, which, as usual,

are not expressed, we find that, unlike Savigny and Puchta, when this writer
speaks of law he does not mean legal propositions but legal institutions.
This is obscured by the fact that, apparently, the basis of the doctrine of
both Beseler and the founders of the Historical School is the legal
consciousness. But the latter, as to the present time at least, have in mind
the legal consciousness of the jurists, who have gained control over the
teaching and the administration of law; Beseler has in mind the legal
consciousness of the people among whom the legal institutions develop
today, just as they did many centuries ago. Savigny and Puchta themselves
have put the center of gravity in the legal consciousness, and have treated
customary practice as a mere "external characteristic (Kennzeichen)«" From
this Beseler draws the inference that popular law can dispense with the
requirement of customary practice altogether in the practical application of
law. When Puchta, quite inconsistently with his own point of view, objected
to this on the score of the uncertainty of law of this kind, i.e. law without
usage as an external characteristic (Kennzeichen), Beseler replied that in the
very fact that he had declared that direct observation of the relations of life
is of such paramount importance if one would know the popular law, there
lay "a direct reference to the habitual customary observance of the norm
(usage), which is revealed in the relations of life inasmuch as it controls
them." Here the opposing views clash. On one side there is the view that the
important thing is the law that is applied by the courts; on the other, the
knowledge of the fact that law regulates the relations of life even without
the intervention of the courts. The fact that Savigny and Puchta combated
the latter view, although they did not consider usage a prerequisite to the
arising of customary law, is further evidence of the lack of consistency that
characterizes their whole controversy with Beseler. But Beseler has gone
much further than Savigny and Puchta inasmuch as he is not content with
stating propositions about popular law and juristic law, but is seeking
methods for the direct acquisition of knowledge "in the manner of the
natural scientist ... by means of observation." The fact that this powerfully
stimulating suggestion by the great Germanist remained unheeded is merely
another proof that in science, too, it is the distribution of power
(Machstverhältnisse) rather than the spirit that turns the scale.
1 Professional opinions given by experts.

The idea of Beseler was realized far from the land of its origin by a pupil
of Savigny's, the Croat Bogisic, and by another student of the writings of
Savigny, the Spaniard Costa. Both are endeavoring to create a science of
popular law, not by establishing legal propositions but by studying legal
relations and legal institutions. Bogisic drew up an extensive questionnaire
containing more than eight hundred questions, and made the answers which
he received from the regions inhabited by southern Slavs the basis of his
work (Zbornik sadasnih pravnih ohicaja juznih Slovena), and Costa created
the foundation of his two-volume work Derecho consuetudinario y
economia popular en Espana by direct personal observation and study of
the legal relations and institutions he is describing. The second volume,
incidentally, also contains works of other writers. The work of Bobcev on
Bui- garian customary law, Sbornik na blgarski juriditski obitschai,
employs the method of Bogisic.
I hope to be able to make a report on all of these books at another place.
Several years ago, in an article which appeared in Schmoller's Jahrbuch, I
emphatically directed attention to the books of Bogisic which are written in
Croatian and which, for that reason, are little known, and I am therefore in
every way well armed against the charge that has been leveled at me in
Vienna that I have been trying to ignore them by not mentioning them. But I
cannot admit, on the other hand, that I owe the basic thoughts of my
sociological works to Bogisic. Since the works of Bogisic are for the most
part inaccessible to West European readers because of the language in
which they have been written, everyone cannot convince himself, by a
personal examination, of the recklessness with which I have been accused
of borrowing. Bogisic was a veritable genius of the concrete, and his
questionnaire is a masterpiece of insight into the legal conceptions of a
backward society and the order based upon them. But it would be a vain
endeavor to look for general thoughts in his works. The passage from his
Sbornik which I published in a German translation in the article referred to
above is practically all that I have been able to find in his works in the
nature of a discussion of principles. He has supplied us with invaluable
material but has utterly failed to work out a classification and an
organization of this material that I could have availed myself of. Moreover
his horizon is extremely narrow; he confines himself to the institutions
peculiar to a primitive society, and is not at all interested in the relations
existing in a more advanced form of civilization, in a richer life, or in
modern business. From this the reader may judge how far I have advanced
beyond Bogisic.
I do however feel constrained to refer to the small volume of
Dniestrzanski, entitled Das Gewohnheitsrecht und die sozialen Verbände1
(1905), in which may be found the germs perhaps of a number of thoughts
that are somewhat like those that I am presenting in the present volume. I
first became acquainted with his work while I was writing this book. There
can be no thought of a borrowing; for I have expressed these thoughts as
early as the year 1903, in an address entitled Freie Rechtsfindung und freie
Rechtswissenschaft.1 At the same time it is apparent that the article by
Dniestrzanski is absolutely independent of my address.
1 Customary Law and the Social Associations.

Moreover it is the extraordinary merit of Bogisic to have written a code

which fully meets Savigny's requirements. It is a codification of the
property law of Montenegro. It is based upon a very careful and methodical
investigation of South Slavic legal custom, not merely of the legal
propositions, which are very few in number, but chiefly of the concrete
legal relations and legal institutions. These books, the object of which was
not historical understanding, which the legislator can quite readily dispense
with, but the understanding of that which is in existence, today, have
enabled Bogisic to produce a recognized masterpiece.
The barrenness of all theories of customary law that have been advanced
hitherto is caused by the fact that their aims are not clearly defined. While
the oldest type of juristic science merely sought, under this head, to give
directions to the judge in which cases he should recognize local or
particular customs in preference to the Continental common law, the
Historical School attempts to present the doctrine of the origin of law. But
the Historical School never fully realized that the origin of legal institutions
and the origin of legal propositions are two quite distinct things; that the
former takes place in society, or, according to their terminology, in the
popular consciousness, and becomes manifest in the rules of conduct, or in
their terminology, in usage, whereas the legal propositions are being created
by the jurists« Instead of dealing with these two phenomena separately side
by side, they discuss one after the other; and being unaware of the fact that
they are dealing with two distinct things, they propound a doctrine which,
on the whole, applies only to juristic law, and then apply it to the
development of law in society as well. And when Beseler points out that
popular law exists even at the present time, that there are legal institutions
which arise immediately in society, they do not know what to say in reply to
these inferences from their own principles. In a general way, it may be
admitted that the doctrines of Savigny and Puchta are correct if limited to
juristic law; their continual vacillation and uncertainty is caused by the fact
that they have never become aware of the existence of this limitation.
1 Free Finding of Law and Free Legal Science.

But there is another ambiguity involved. Juristic law, too, has a double
function. In the first place its function is to formulate the norms for decision
required for the regulation of the legal institutions which have arisen in
society by universalizing the social rules of conduct and making them
unitary, but over and above this to find norms for decision independently
according to the trends of justice that prevail in society. At this point, too,
the founders of the Historical School failed to make the necessary
distinction. This error however is less palpably felt, for the reason that, to a
certain extent, the same rules apply to both kinds of juristic law.
Nevertheless let me emphasize the fact that their discussions are applicable
chiefly to the second kind of juristic law, albeit, as their doctrine of analogy
and of the "nature of the thing" shows, they occasionally have the former in
mind also.
At any rate Savigny and Puchta could not fail to realize that it was
necessary not only to advance a theory of the sources of law, a science of
the origin and development of law, but also to issue directions to the judge
concerning the method of testing the binding force of customary law. For
this reason they took over from the older juristic science in vogue among
the jurists of the Continental common law the doctrine of the prerequisites
of customary law, which, however, quite imperceptibly, become means of
gaining knowledge of customary law such as is already in existence in the
consciousness of the people or of the legal pro» fession. From this point of
view, they discuss the method, the uniformity, the long continued repetition
of the acts, the recognition implied in the judgment, the opinio necessitatisi
the reasonableness, the publicity, and the effect of error. It is apparent that
these wretched Kautelen (prerequisites) are not necessary for testing either
the legal validity of the institutions that have arisen in society or the binding
force of juristic law; but they can serve the purpose for which they were
found, for which the practical science of the older jurists of the Continental
common law utilized them, i.e. for the ascertainment of the binding force of
local and special legal customs in preference to the common law. This was
recognized by Savigny, especially when he taught that this narrow point of
view "that custom, as the source (Enstehungsgrund) of a rule of law must
always be resoluble into definite, individual, demonstrable acts" is
applicable at most to special (partikuläre) customs, of which alone one is in
the habit of thinking. "It is not applicable at all to the great and difficult
cases of modern customary law, in which the latter is identical with
scientific law, The conditions that are usually assumed as conditions
precedent to the genesis of customary law, refer throughout to the nature of
those acts from which, as we say, it uniformly arises. For this reason they
have a merely one-sided applicability to the special (partikuläre) customary
law, and even as to the latter the various acts must not be looked upon as the
sources but rather as the phenomena or characteristics of an existing
common legal conviction. As thus modified, the predicate 'truth' may be
applied to these conditions, and therefore they must be examined and
ascertained separately." He then discusses the conditions in the form in
which the Continental common law theory has handed them down. That
this is a matter solely of particular customs is confirmed by the English law.
The common law,1 which in its essence is juristic law, throughout follows
the rules that Savigny and Puchta have developed for their customary law,
which, they say, is chiefly juristic law. In addition, it is true, we find rules
like the following: "A custom, in order to be legal and binding must have
been used so long that the memory of man runneth not to the contrary ; it
must be reasonable, it must be continued, not interrupted and peaceably
enjoyed; must be reasonable; must be certain; must be compulsory; customs
must be consistent with each other; as to the allowance of special customs
no custom can, of course, prevail against the express provision of an act of
Parliament." The Continental common law jurist must be strongly reminded
of home when he reads these words. But all of these things do not refer to
customary law but to local and special customs.
1The conviction in the hearts of the people that a certain rule must
be obeyed.
1 I.e. the English common law.

The modern Continental common law and the modern German school of
legal science mark a step backward from Savigny and Puchta. They are
based exclusively on law that is created by the state, and therefore they can
have no theory of the non-state, the social, development of law, nor of
juristic law. For them the very question becomes all-important that
engrossed the attention of juristic science in the days of the Roman Empire
and in the days of the Continental common law, i.e. whether and how a
system of law can become valid so as to displace the common law of the
state. As a practical matter, this question resolves itself into a question as to
the validity of special and local customs. For this reason, the doctrine of
Savigny and Puchta was thrust aside and the old doctrine of the
prerequisites of customary law was taken up again. Inasmuch as law, in
principle, is taken to proceed from the state, permission, approval, or
recognition by the sovereign power of the state is demanded in some form
or other, either by express words or by silence, and thereby a thought of
Justinian's and of the older trend of juristic theory of the Continental
common law is being revived. But if, following Savigny and Puchta,
modern writers base customary law upon a universal legal conviction as to
its binding force, this, in view of the theory that all law proceeds from the
state, can mean only that a special prerequisite is being added. The meaning
of this doctrine is the following: All law proceeds from the state; under
certain conditions, the state permits non-state law; these conditions include
among others the universal conviction that the rule in question is law
(Rechtsüberzeugung). Zitelmann, however, has conclusively demonstrated
that these doctrines are untenable. He himself simply derives the validity of
customary law from its validity. It is valid because it is valid. But in this
tautology a deeper understanding of the non-state character of customary
law, at least, lies hidden. Law can come into existence independently of the
state whenever it secures validity in society. Zitelmann did not elaborate his
thought. Geny, a Frenchman, however, building on the foundation laid by
Savigny and Puchta, and elaborating some ideas of Jhering's, has restored
the libre recherche scientifique^ the juristic law of the founders of the
Historical School, to its former position of honor. This view is diametrically
opposed to the theory, which is also the prevailing theory in France, that the
state is the sole source of law.
It is self-evident that the Sociological School of jurisprudence cannot
make use of a concept which is composed of such heterogeneous elements
as is the traditional concept of customary law. It will analyze it and resolve
it into its component parts, and discuss these separately in their proper place
and order. These parts are : the origin of legal institutions in society
independently of the state, the creation of legal propositions by the jurists,
as writers, teachers, judges; and the question to what extent courts and other
agencies of the state are bound by non-state law. These are totally distinct
fields of knowledge, and fusing them into one can cause nothing but
confusion.
But confined to a limited sphere, the concept of customary law is
indispensable to the Sociological School of legal science. Where the
creation of juristic law is not regulated by fixed precepts, as it is in England,
it is necessarily unsettled and uncertain during the time immediately
following its creation. A considerable period of time must elapse before a
rule of juristic law gains such general recognition that a judge will no
longer consider himself authorized to disregard it even though it conflicts
with his own conviction. Thereafter it is something more than juristic law,
and it would be quite in keeping with modern theory to call it customary
law. Whenever there is a long-continued course of decisions contrary to a
statute under circumstances where there can be no error of law, it ought to
be made the subject of a special study. The occurrence of such courses of
decision is beyond doubt. It has been observed repeatedly in France; and it
occasionally blossoms forth even in Austria, a country which in other
respects is the paradise of the narrowest sort of worship of the letter. It is
often being denied that customary law can arise from such usage. But this
only means that the courts, in such cases, can always revert to the statute,
and that a judge cannot be accused of defeating the ends of the law who
decides against the existing judicial usage according to the statute, provided
that in doing so he follows his conviction. This phenomenon at all events
deserves a more detailed study. As compared with the theory that customary
law arises simply from juristic law, it presents numerous peculiarities.
XX The Methods of the Sociology
of Law

I. LEGAL HISTORY AND JURISTIC SCIENCE

THERE is no antithesis between science and art. Every true work of science is
a work of art, and the man who is not an artist is a poor man of science.
Production of a work of science requires the same qualifications as
production of a work of art; both require a certain receptivity of mind,
imagination, and power to give shape to one's material. For this reason
every independent investigator must create his own method, just as every
creative artist must create his own technique. He who employs another's
method, just like the person who employs another's technique, may possibly
be a great disciple, but never more than a disciple, who continues the work
of the master but does not undertake new work, It is possible therefore to
teach one's own or another's method or technique, but not to teach scientific
method or artistic technique. For the mind which thinks and works
independently will ever be seeking new methods and new techniques which
correspond to his individuality.
But whatever method or technique it may be, its starting point will
always be that which the external world presents to the human mind. For
the latter can work only on those impressions that it receives from without.
Every deduction is preceded by an induction; all idealizing, by a reception
of the outward impression of that which has been idealized. The induction
and the reception however very frequently take place with lightning-like
rapidity, unconsciously, without any conscious intention, and only the
subsequent process of deduction or of idealizing enters into the
consciousness of the scientist or of the artist. This creates the appearance of
an inductive 1 science or of an idealistic art.
1 Inductive here seems to be a misprint in the original for deductive.

The social sciences have hitherto been working, and are still doing their
work, by means of such unconscious inductions. But when Montesquieu
apparently derives a considerable part of his theory of the state by a purely
deductive method from his classification of the forms of government; when
he bases the despotic form of government upon fear, the monarchical upon
honor, the republican upon virtue, the inductions, most superficial and
unmethodical as they are, which have preceded the deductions can easily be
perceived by anyone. The theory as to despotism is based on the accounts
of the Greek city tyrants or the Roman emperors; as to the republic, on the
accounts of the small ancient free state and of the Swiss cantons. The
wealth of unconscious experience that has been compressed into the theory
of value of Ricardo or of Marx, a veritable model of deduction, must be
sensed by everyone who has read their presentations understand-in gly. And
in the preface to his work on Kapitalzins (interest) Boehm-Bawerk, one of
the chief exponents of the Austrian school of economists, which allegedly is
purely deductive, says that the facts on which the book is based have been
learned by means of simple, informal observation directly from common
everyday life as it presents itself to every one of us.
And sociology also, including the sociology of law, must be a science of
observation. The man who, a century and a half ago, wrote the three words
Esprit des Lois as the title of his book surely was seeking a sociology of law
within his own soul even at that early date. And Montesquieu even then was
busy for twenty years, indefatigably gathering facts on long journeys, and
as an untiring reader. Although his book is not the work of a scholar, but the
dilettantish, poorly arranged, desultory work of a grand seigneur, and is
planned on a scale altogether too magnificent, it is nevertheless an
inexhaustible source of stimulation and instruction, and it would be well
worth the effort to avail oneself of the resources of modern science for the
purpose of investigating the innumerable problems which he touched upon
and disposed of but practically never answered.
 We are dealing here not with history of literature nor with methodology
but with a method of the sociology of law. The most important question
which our time must solve is, what phenomena should the sociologist
concern himself with, and how should he gather the facts which he needs in
order to understand and explain them? The social phenomena in the legal
sphere, which are of importance for a scientific understanding of law, are
first of all the facts of the law themselves, i.e. usage, which assigns to each
member of the human associations his position and his tasks, the relations
of domination and of possession, agreements, articles of association,
dispositions by last will and by other means, and succession. To these must
be added the legal proposition, considered only as a fact, i.e. with reference
to its origin and effect, not with reference to its practical application and
interpretation, finally, all social forces, which lead to the creation of law.
These are the phenomena that the sociologist must keep in mind, and he
must collect the facts that give rise to these phenomena, and explain them.
In the past legal science has dealt with only one of these phenomena in
an exhaustive manner, i.e. with the legal proposition. The others it has
merely touched upon. And the facts which it adduced for the purpose of
getting an understanding of, and explaining, the legal propositions were
taken exclusively from history and ethnology. What we have of true,
theoretical science of law is either historical or ethnological. Basically
however even ethnological science is historical, for it is based on the
proposition that the law of all nations has passed through approximately the
same stages of development, and that therefore the law of peoples of a
lower stage of development, with which the ethnological study of law
concerns itself, corresponds, in its main outlines at least, to the past of the
law of all other peoples.
Undoubtedly the chief function of the history of law is to supply the
subject matter for the sociology of law. But this is not, primarily, a question
of the history of the legal proposition, of the history of the sources, or of the
history of legal doctrine, but of the history of legal institutions. No serious
legal historian believes today that he can present the whole law of a period
of time that is past on the basis of the legal propositions that have been
handed down, e.g. that he can present the state of the law of
Rome at the time of the Twelve Tables on the basis of these Twelve
Tables even if they had been preserved in their entirety, or the whole law of
the Salic Franks on the basis of the Lex Salica, or the law of the Saxon
countries on the basis of the Sachsenspiegel. He is bent upon gaining a first-
hand knowledge of the legal institutions on the basis of a study of the legal
document. Yet even the legal document will not enable one to get a perfect
picture of the law of the past. It speaks only of contracts, legal relations, and
decisions that have been embodied in legal documents; it is silent as to the
parol legal transaction and as to the great majority of legal relations, which
have been the occasion neither of a document nor of a law-suit. About the
legal form of the family, of the system of landholding, of the affairs of
everyday life, which would be of vast importance for the understanding of
the spirit and of the order of the whole life of the past, we shall not be able
to learn much from the legal document. Very often the ability to interpret a
picture on an ancient vase would be of much greater value to the legal
historian. It is true, in modern times the ability to read between the lines of
the traditional material, to spell out of a given word everything that it
presupposes, has increased in a most fearsome fashion, but it cannot
compensate for the absence of a tradition. The information which could
have been obtained only by direct observation is lost to posterity — perhaps
forever.
Great though these difficulties may be, the chief function of the history of
law, as the founders of the Historical School have pointed out in their day,
must be to show that the legal propositions and the legal institutions are
growing out of the life of the people, out of the social and economic
constitution as a whole. For the sociology of law it is of value only in so far
as it is successful in doing this. The various legal propositions as such, the
legal institutions divorced from their presuppositions, have no information
to convey. If there is a unifying regularity in the phenomena of legal life, to
discover and make a presentation of which is the function of sociology, it
can be found only in the fact that legal life is conditioned upon the social
and economic constitution; if there is a legal development which takes place
according to certain laws, it can be recognized and presented only in
connection with the whole social and economic development. The
sociology of law therefore will not draw its materials from legal antiquities
but from social and economic history.
The results of practical juristic science are equally important for the
sociology of law. Every technique is, at the same time, the beginning of a
true science; and this applies to practical juristic science also. In order to
acquire dominion over nature, man strives to understand the laws of nature;
and in order to gain mastery over life as a jurist, he must know life. The
practical jurist of course deals primarily with the norms for decision. But
since the latter arise directly from the social formations, or must be referred
to the social formations, they cannot enter into his consciousness in any
other way, and cannot be presented by him in any other way, than in
connection with these formations. It is impossible to teach the law of the
family without describing the family; to explain the law of things
(Sachenrecht) without stating what kinds of rights in things are found in
life; to state the law of contracts without stating the content of the contracts
that are being entered into. And together with the norms which it states
practical juristic science must present a picture of the society in which these
norms are to have validity, and this picture is being drawn by men who have
devoted their lives to the juristic study of society, and who ought to possess
that fine sense of the reality of things which we admire in the ancient
Roman jurists, in Bartolus, in many a jurist of the most recent years. In this
sense a famous Roman has called jurisprudence divinarum aique
humanarum rerum notitia. It is the function of law teaching to provide for
the cupida legum inventus, who do not yet know life, a substitute for the
study of life at first hand which one must engage in in order to become a
jurist, and also to provide them with the results of such observations as they
never would institute themselves — observations that will widen their
horizon and refine their sensibilities.
Direct actual observation of human relations of a legal nature,
universalization of the results of this observation and the appertaining
norms for decision — these are the scientific elements in juristic science. To
this extent, juristic science actually is a morphology of the legal formations
of social life. It presents the state in all the ramifications of its activity, the
forms of the family, ownership and real rights, the contracts and the other
forms of the economic distribution of goods, the organization of commerce,
of industry, of the trades, of agriculture, of the mining industry, the fate of
property after the death of the owner. The systema-tism (Systematik) of
juristic science organizes all of this material, classifies and arranges it,
separating the related from the unrelated. The content of the much maligned
"general part," too, is scientific in its nature ; for by analyzing the
composite complicated legal institutions into its constituent parts it reveals
their inner structure and creates an accurate and at the same time flexible
scientific terminology. The jurists, being under the limitation of practical
interests, are concerned with social morphology and with Systematik from a
point of view altogether different from that of the scientific investigator«
The latter however is nevertheless relieved of a great deal of hard work by
the fact that all he need do is to arrange the results of the observations of
others for his own purposes.
It is true, practical juristic science, in the first place, deals only with legal
propositions that belong to a certain system of positive law. And for this
very reason, after it has completed the discussion of the legal propositions
and has begun the discussion of the relations of life upon which the latter
are based, it contents itself with a presentation of the morphology of a
society which is governed by a certain system of positive law. But the
human relations, upon which a presentation of the law must be based, are
independent of the legal propositions. The state and its instrumentalities,
persons, ownership, real rights, contracts, succession, are found
everywhere; and among peoples of an approximately identical civilization
and of an approximately identical stage of economic development, they are
found in a form which, in addition to some diversities, exhibits a series of
common traits. It is quite in order therefore to describe all these legal
relations without reference to any system of positive law, as has been done
for some time in economics in the case of economic legal relations«
For this reason, I think, it is possible to evolve a general legal science,
which is based, just like economics, not on a society governed by a certain
positive legal system, but on human society as such. The first and foremost
function of the sociological science of law is to present an exposition of the
common elements in the legal relations without reference to the positive
law that governs them, and to study the elements peculiar to each relation
with reference to their causes and effects. In the field of public law, of
Staatsrecht (public law in the narrow sense), of criminal and of procedural
law, much work of this kind has already been done. In the field of private
law, little or nothing has been done.
Nevertheless it is particularly in the field of private law that the juristic
labors of the jurists of the Continental common law have prepared the way
for the sociological study of law. And they have done this in a way that can
be fittingly described only by the epithet "magnificent." The juristic science
of the Continental common law was itself the heir of a never interrupted,
international intellectual activity extending over a period of two thousand
years or more. Its basis was the corpus iuris chilis, which, in spite of all its
defects, was a great achievement. Its roots are to be found in the juristic
science of the Roman pon-tifices in prehistoric times. Since that time untold
generations of jurists have been bestowing creative labor upon it, the pupil
becoming the successor of his teacher both in developing the law and in
teaching \K each generation receiving the benefit of the work of its
predecessor and continuing to build on the foundation laid by the latter.
Accordingly an unbroken chain of oral tradition unites the professors of
Constantinople with those of Berytus, the compilers of Justinian's code with
each one of the prudentes of the days of primitive Rome. It is being
understood more and more clearly from day to day that this juristic science
of the Roman jurist was, at all times, connected by an unbroken continuity
with everything that had been accomplished in this sphere in antiquity, was
always ready to appropriate the institutions of other peoples, and in its
palmy days, which extend into the third century of our era, was able to weld
these elements into its system as an organic whole. Only that which was
received during the decline of the Empire could no longer be assimilated.
So in the corpus iuris civilis, all the results of a thousand years of ancient
legal development, gathered, as it were, in a focus, were transmitted to the
Middle Ages. This was followed by the work of the glossators and the
postglossators, who in turn were followed by the great French jurists of the
sixteenth and seventeenth centuries, by the learned and astute Dutch legal
scholars, by the juristic science of the German jurists from the days of
Ulrich Zasius. Thus almost all civilized peoples of Europe took part in its
creation, and a structure arose which is unique in the history of law and
without a peer in other spheres of intellectual life. International
participation did not cease until the nineteenth century, when the national
codifications brought about a practical juristic science whose sole concern
was national law. In Germany, however, the Historical School of
jurisprudence is still making the best possible use of the talent entrusted to
it, and so the international science of law is enjoying a new, late classical
period.
But if the teaching of Bartolus and Baldus was quite different from that
of the glossators, that of Stryck and Lauterbach quite different from that of
Ulrich Zasius, that of Windscheid and Dernburg quite different from that of
Vangerow, the reason for these differences lies in the fact that different
times made different demands. The differences are so great that one can
almost say that each period was dealing with an entirely different subject-
matter. But if one looks at the connecting links that connect the successive
schools, one marvels at the gradual, methodical transition, at the way in
which each generation based its teaching directly upon that of the preceding
one. It was not theories that suggested the trends and methods to the jurists;
the needs created the trend, the method, and the appertaining theory. The
necessity of adjusting itself again and again to the changing times gave to
the juristic science of the jurists of the Continental common law its
extraordinary wealth of ideas, and the fact that it was the law of a
considerable part of the civilized world, where its function was to serve the
most manifold needs, gave it a remarkable flexibility and expressiveness.
For this reason the juristic science of the Romanist jurists of western and
of central Europe never was merely the science of a system of national law,
much less of Roman law, but to a certain degree a science of law, a general
science of law. It has created the most important presuppositions for a
sociology of law which is not bound by the limitations of a given system of
law, or of a given people, or by the requirements of customary observance,
or usage. It has in the first place created a fixed juristic terminology and,
over and above that, a juristic language which is readily understood by
every jurist, for the jurists of all civilized peoples learn Roman law from
text-books written by the jurists of the Continental common law school. In
Germany the Germanist s, particularly those of Beseler's school, have
contributed much to the development of juristic science. At the same time
they have made German law a part of the juristic science of the Romanist
school. They have employed its systematism, its technique, its terminology,
and thereby they have actually demonstrated that it can subserve not only a
Romanist science of law but any science of law. And if one removes from
the German common law monographs or from the general works on the
pandect law everything that might look like an interpretation of a text of the
sources, there still would remain a scientific achievement which can be
made the basis of the study of any system of law, not only of the
Continental common law.
The sociology of law therefore must continue its work on the basis of the
juristic science of the Continental common law. It must by no means be
confused with “allgemeine Rechtslehre" 1 or with Rechtsenzyklopädie,2 as
it is called. It does not present formalistic abstractions from the juristic
science of systems of national law, but its living content. Nor does it include
true interpretation; the legal basis of juristic science, however, must be
shown as well as the form which the institutions have assumed in the course
of the administration of justice and of life.
May I be permitted to illustrate by an example the fitness of the juristic
science of the Continental common law to constitute the basis for a general
science of law? The English doctrine that informal contracts are binding
only when supported by consideration is one of the peculiarities of English
law that a Continental jurist does not readily understand. Only recently a
German work on legal history compared the Roman innominate contracts to
the English contracts for good consideration. This, of course, is altogether
beside the mark. Consideration and res in the sense of Roman law are
things of a totally different nature, and the informal contracts of English law
are not "real" contracts but "consensual" contracts. But an informal contract
creates a legal obligation according to English law only when each party
has purchased the obligation of the other party by incurring a detriment. If
the debtor who owes one hundred pounds pays ten shillings one day before
the debt is due at a place other than that provided for in the contract, an
informal agreement by the creditor to remit the remainder is binding; for
payment before the due day or at another place may be a detriment to him.
But if he pays ninety-nine pounds at the time and place provided for, a
formal release in writing and under seal is required, for in that case there is
no consideration. The situation is different in the case of a loan for use
(commodatum) or of a bailment (deposilum), and also in case of a
commission (mandatum), where the mandatary receives a res from the
mandator for the purpose of executing the commission (e.g. to carry it to
some other place). All of these are instances of gratuitous bailment and
there is no consideration. The recipient is liable for failure to return in an
action for damages (assumpsit). But is he liable also for a blameworthy
defective performance of his promise or for lack of the care provided for in
the contract? In this case the English say that the consideration lies in the
detriment which the person who delivers the thing suffers, inasmuch as, by
giving possession of the res to the recipient at the latter’s request, he
surrenders direct control over it. But this amounts merely to saying that the
res takes the place of consideration. The loan for use, the bailment, and the
commission (mandatum) connected with delivery of possession of a res are
"real" contracts in English law, for the obligation is based on delivering and
receiving a res. And Pollock in fact admits that where the request is not
made by the person receiving the res but by the person delivering it, i.e. in
the case of the deposüum and the mandatum, an element of the contract, the
request, is supplied by a fiction in order to enable the court to find
consideration. No greater difficulty than this is involved in stating this
refined and difficult doctrine in the language and concepts of the juristic
science of the Continental common law.
1 General Theory of Law. 2 Juristic Survey.

Where the scientific treatment of law is freed from national limitations,

the mere restoration of international activity in the field of law bids fair to
yield abundant returns. No science has ever grown great in national
seclusion; it requires not only the preparatory work of all preceding
generations, but also the cooperation of the whole contemporary generation.
One nation, even the greatest and most gifted, is too small to be able to
produce a science single-handed and relying solely on its own inner
resources, much less a science of law. Consider how the French, the
English, and the Italians were lost in the bog of a wretched system of
casuistry and exegesis when they limited themselves to their own national
law, and on principle rejected all suggestions from without, in spite of the
fact that they have thousands of times demonstrated their high and great
endowment for scientific activity, particularly in the field of law, and are
demonstrating it today by the great progress they have been making in the
science of law in recent years, ever since they gave over their national
provincialism. Does not the history of juristic science in the countries
whose law has been codified preach this doctrine most impressively?
Nowhere else is the connection between rise and decline on the one hand,
and opening and closing of the border to foreign suggestion on the other,
more strikingly apparent.
It is true, the codes brought about the displacement of the international
scientific activity of the Continental common law and the rise of a national
practical and a national theoretical science of law. This however is a
transient phase of development, which is largely being superseded today. In
spite of dissimilarities in legislation, the institutions of civilized nations are
so closely related as to permit of a common practical and scientific
morphology and creation of norms. And for these, too, the scientific work
of the Continental common law constitutes an excellent basis. For the law
of the Austrian and Prussian codes a new era began when it came into
contact with the scientific work of the Continental common law through the
work of Wächter on the private law of Württemberg. Wächter was the first
to demonstrate that a local or particular1 system of law does not necessarily
preclude general legal science; for legal science is not primarily concerned
with legal propositions but with the formations of life, of which one indeed
takes the measure by means of legal propositions, but which one does not
arrive at by interpretation of statutes. Unger and Koch have successfully
applied this principle to the law of their respective codes, while the work of
Zachariae has long ago done the preparatory work for its application to the
law of the French code. The scientific labor of jurists in connection with the
German Civil Code moves along the same lines. It would be absolutely
erroneous to attempt to justify this procedure by saying that these codes are
based on Roman law. Not Roman law, but the usus modemus, constitutes
the basis of the Prussian Landrecht, the French Civil Code, and the Austrian
Civil Code. The German Civil Code is based chiefly on the pandects of the
nineteenth century. The true reason is the fact that for the presentation of the
law of the codes a considerable part of the Continental common law
morphology and creation of norms could be utilized without more ado ; this
was not the morphology and creation of norms of a certain legal system but
the morphology and creation of norms of the society of the civilized nations
of Europe.
When Count Thun undertook to improve the pedantic and antiquated
teaching of law in Austria, he devoted one half of the time given to the
study of law, the first two years of the whole quatriennium to the study of
Roman law, of German law, and of ecclesiastical law. The result was an
immediate undreamt of advancement of legal science in Austria. It is true,
he did not, by his action, cause the historical basis of the Austrian law to be
taught, but he opened the door to an invasion by German science. The
results of the juristic thinking of the last three centuries in Germany were
given academic form and literary expression in the science of the history of
Roman and of German law, of the Con» tinental common law, and of
German private law; and this German science, which had been driven out of
Austria as a result of the codification of the Austrian private law at the
beginning of the nineteenth century, victoriously returned to Austria at the
time of the reform of legal studies. The lectures on legal historical subjects,
on the pandects, and on German private law made up for the lack of lectures
on legal science for the simple reason that they contained all the science of
law that existed in Germany. If Austria was anxious to give to its young
jurists something better than the paltry instruction in statute law and in
interpretation which before that time had flourished at Austrian universities,
if Austria actually desired to give him instruction in legal science, the best it
could do was to offer legal history, pandect law, and German private law.
1Particular, as distinguished from the Continental common law
which was universal on the Continent.

As early as the last century Austin conceived the idea of a general legal
science — I would say incidentally that the whole modern theory of norms
is contained in his works — and he carried it out, only in part however, in
his two works (The Province of Jurisprudence Determined and Lectures on
Jurisprudence). His followers, chiefly Thomas Erskine Holland, Amos, and
Salmond, attempted complete expositions of legal science which were to be
independent of any definite system of law—Holland, in his Elements of
Jurisprudence; Salmond, in the Science of Law. It is significant that both
Austin and Amos perceived that the juristic science of the Romanist jurist
affords a much more advantageous basis than that of the English jurists; for
both made the former their point of departure. John Stuart Mill presents
Austin's basic idea in an essay on the latter, and he does it much better than
Austin ever did. I quote from his essay:
“The details of different legal systems are different, but there is no reason
why the main classifications and heads of arrangement should not be the
same. The facts of which law takes cognizance, though far from identical in
all civilized societies^ are sufficiently analogous to enable them to be
arranged in the same cadres. The more general of the terms employed for
legal purposes might stand for the same ideas, and be expounded by the
same definitions, in systems otherwise different. The same terminology,
nomenclature, and principle of arrangement, which would render one
system of law definite and (in Bentham's Ian™ guage) cognoscible, would
serve, with additions and variations in minor details, to render the same
office for another."
This, it is true, is not the whole of sociological legal science. Austin and
his followers aie formalists. In all their writings they do not concern
themselves with living creations. They purpose to present only a general
part in the sense of the German pan-dectists. And they are interested only in
the forms of the legal relations, not in their content, not in the germinative
powers of the development of law, nor in its unifying regularity. But it
contains a part, at least, of the material which the practical science of law
will be able to pass on to the sociological science of law.
XXI The Methods of the Sociology
of Law

II. THE STUDY OF THE LIVING LAW

THE reason why the dominant school of legal science so greatly prefers the
legal proposition to all other legal phenomena as an object of investigation
is that it tacitly assumes that the whole law is to be found in the legal
propositions. It is assumed furthermore that since, at the present time, all
legal propositions are to be found in the statutes, where they are readily
accessible to anyone, all that is necessary in order to get a knowledge of the
law of the present time is to gather the material from the statutes, to
ascertain the content of this material by one^s own individual interpretation,
and to utilize this interpretation for the purposes of juristic literature and
judicial decision. Occasionally one meets with the further idea that legal
propositions may arise independently of statute. In Germany the usual
belief is that they can be found in juristic literature; in France, in judicial
decisions. "Customary law/' on the other hand, in the prevailing view, is so
unimportant that no effort is being put forth to ascertain its content by
scientific methods, much less to create methods for its investigation. Only
the teachers of, and writers on, commercial law still concern themselves
with usage, in this case, with business custom. This explains why the efforts
of those who are carrying on research in law at the present time are bent
upon ascertaining the legal propositions of the past, which are not so readily
accessible to us as those that are contained in modern statutes. It is believed
that the scientific result of the labor expended upon the study of the law of
the past consists not only in a knowledge of the development of law, which
of course means only the development of legal propositions, but also in an
historical understanding of the law of the present; for the law, i.e. according
to the tacit assumption the legal propositions of the present time, is rooted
in the past. These, I take it, are the lines of thought on which the method of
research in the field of law has hitherto been based.
But the statement that the whole law is not contained in the legal
propositions applies to a much greater degree to the law that is in force
today than to the law of the past. For the men who composed the Twelve
Tables, the Lex Salica, and the Sachsenspiegel actually had a direct personal
knowledge of the law of their own time, and their endeavor was to gather
up this law with which they dealt, and to formulate it in legal propositions.
This however does not apply, even approximately, to the most important
part of the legal material with which the jurists of the present day are
concerned, i.e. the codes. For in contrast to what once upon a time the
jurists had in mind under all circumstances, vaguely at least, the compilers
of the modern codes very often did not have the slightest intention whatever
of stating the law of their own time and of their own community. They draw
their legal material, first, from the compilation of Justinian, from which,
self-evidently, they are likely to obtain reliable information on almost any
other subject than the law of their own time, i.e. of the eighteenth or of the
nineteenth century; secondly, from older statements of law, which, even if
they met the requirements of their own time, do not meet those of the time
of the legislator; thirdly, from juristic literature, which was chiefly
concerned with the interpretation of older laws and of older codes, and, in
any case, did not belong to the time of the code in question. The truth of
this statement appears most clearly in the case of the German Civil Code,
the sources of which have been almost exclusively text-books of pandect
law, earlier German statutes and compilations of law, and foreign
codifications. Accordingly our codes are uniformly adapted to a time much
earlier than their own, and all the juristic technique in the world would be
unable to extract the actual law of the present from it, for the simple reason
that it is not contained therein. But the territory within which our codes are
valid is so vast, the legal relations with which they deal are so incomparably
richer, more varied, more subject to changes than they have ever been, that
the mere idea of making a complete presentation in a code would be
monstrous. To attempt to imprison the law of a time or of a people within
the sections of a code is about as reasonable as to attempt to confine a
stream within a pond. The water that is put in the pond is no longer a living
stream but a stagnant pool, and but little water can be put in the pond.
Moreover, if one considers that the living law had already overtaken and
grown away from each one of these codes at the very moment the latter
were enacted, and is growing away from them more and more every day,
one cannot but realize the enormous extent of this as yet unplowed and
unfurrowed field of activity which is being pointed out to the modern legal
investigator.
It could not be otherwise. The legal propositions are not intended to
present a complete picture of the state of the law. The jurist draws them up
with a view to existing practical needs, and with a view to what he is
interested in for practical reasons. He will not put forth the effort to
formulate legal propositions with reference to matters that lie outside of his
sphere of interest, perhaps for the sole reason that they are not within the
jurisdiction of the courts before which he practices, or because they do not
concern his clients. Since commercial law lay outside of the usual sphere of
interest of the Roman jurist, we find that the commercial law of the Roman
sources is utterly inadequate; and for the very same reason the Romans and,
until quite recently, the modern jurists have very little to say about labor
law. Even Eyke von Repgow did not deal with the law of cities and with the
customs of manors because it lay outside of his immediate sphere of
interest.
On the other hand, the attempt to arrive at an understanding of the
present through the study of history or of prehistoric times, i.e. of
ethnology, is an error in principle. To explain something, according to a
saying of Mach's, is to replace a mystery that one is not accustomed to by a
mystery that one is accustomed to. Now the present contains fewer
mysteries that we are not accustomed to than does the past. The
paleontologist will understand the nature and the functions of the organs of
a fossil animal only if he understands the nature and the functions of the
organs of living animals. But the zoologist cannot learn the physiology of
the animals which he is studying from the paleontologist ; he will have
recourse to paleontology only for the purpose of getting a picture of the
development of the present-day animal kingdom. We arrive at an
understanding of the past through the present, and not vice versa.
Accordingly the history of law and ethnological legal science will not be of
value for the understanding of the existing law but only for the study of the
development of law.
As a result of the methods employed by modern legal science, the present
state of our law is, in a great measure, actually unknown to us. We often
know nothing, not only of things that are remote but also of things that
happen before our very eyes. Almost every day brings some juristic surprise
which we owe to a lucky accident, to a peculiar law-suit, or to an article in
the daily papers. This surprise may concern the peasant tenants in Schwar-
zenberg, or puzzling heritable building rights in the heart of the city of
Vienna, in the Brigittenau, or peculiar relations involving heritable leases in
Berhomet, in Bukowina. But he who observes life with careful attentiveness
knows that these are not isolated occurrences. We are groping in the dark
everywhere. And we cannot plead the excuse that the legal historian can
avail himself of, i.e. that a bit of the past has been irrecoverably lost. We
need but open our eyes and ears in order to learn everything that is of
significance for the law of our time.
In the part of the Austrian code that deals with matrimonial agreements
there are four meagre sections, which, according to the marginal heading,
deal with the matrimonial régime of community of goods. Anyone who has
had opportunity of coming into contact with the German peasantry of
Austria knows that they live, almost exclusively, under a matrimonial
régime of community of goods. But this matrimonial community of goods,
which is the prevailing, freely chosen property régime of the German
peasantry in Austria, has nothing in common with the community of goods
provided for in the Austrian Civil Code, and the provisions of the Civil
Code are never being applied since they are always excluded by a marriage
contract formally entered into. What would be the value of a science of law
which failed to recognize that the community of goods that the Austrian
Civil Code speaks of exists only on paper? What would be the value of a
science of law which thinks it is fulfilling its whole task when it ascertains
the intent of the lawgiver, which has been expressed in the above four
sections, but does not concern itself with the community of goods, which is
based on readily accessible legal documents, and according to which
practically the entire German peasantry of Austria lives?1
Again there is the agricultural usufructuary lease. The few provisions
contained in the modern codes on the subject, especially in the Austrian and
German codes, were for the most part taken from Roman law, and had
arisen on the exhausted soil of Italy in the days of the Roman Empire with
its system of extensive latifundia and an oppressed peasant class. They
would be altogether insufficient today. A glance at life will convince us that
they are almost never being applied. Their operation is almost always being
excluded and they are being replaced by the provisions of contracts of
usufructuary lease such as are suitable to modern social and economic
conditions, and are being entered into between the lessor and the lessee in
almost every instance. Though they vary according to the region, the nature
of the estate which is being let, and the position of the parties, they have, in
spite of this limitation, an ever recurring, typical content. It is apparent, I
dare say, in view of this discussion, that a presentation of the law of
usufructuary lease of the civil codes, be it never so careful, cannot reflect
the actual state of the German or Austrian law of usufructuary lease. To do
this, it would be necessary to set forth the typical content of the leases, and
for this purpose it would be necessary to search the archives of the offices
of notaries and lawyers, and to make inquiries at the time and place.
Or what information can be gathered from juristic literature as to the
system of agriculture in Germany or in Austria? Not even the various
methods of cultivation of the soil have been formulated from a juristic point
of view, and that would be but a small part of the task that has to be
fulfilled. All economic culti™ vation of the soil is linked with other
relations which are of the greatest importance to the jurist. In the first place,
the neighborly relations between owners of farms operated for economic
purposes and of landed estates. They are being regulated in part by custom;
in part, by statute. Yet the entire juristic literature has not a single word to
say about any of these, except perhaps about the statute. Moreover
agriculture, in so far as it is carried on on a scale larger than the very
smallest and most insignificant, presupposes a certain organization of labor,
which, in the case of great landed estates, becomes a most artistically
interlocking and extraordinarily complicated mechanism. To everyone that
takes part in it, there is assigned, partly by custom, partly by contract or
statute (regulations for servants), the measure of his powers, rights of
supervision, privileges and duties, without a knowledge of which this
difficult piece of machinery could be understood neither from the
economic, or technical, nor from the juristic point of view. In case of
similar undertakings all these legal relations occur again and again in their
typical form throughout the whole region and often throughout the whole
realm; and for this reason it is not a difficult task to study them and set them
forth.
1 This presentation has been taken verbatim from my essay in
volume XXXV of Schmoller's Jahrbuch. Since the date of its
publication, an excellent essay by Reich, the notary, on the
matrimonial régime in the German parts of Steiermark, Kärnten,
and Krain has appeared in the Festschrift zur Jahrhundertfeier des
(österr.) A. B. G. B. (General civil code of Austria). — Author's
note.

Note also the law of the family. The first thing that attracts the attention
of the observer is the contrast between the actual order of the family and
that which the codes decree. I doubt whether there is a country in Europe in
which the relation between husband and wife, parents and children,
between the family and the outside world, as it actually takes form in life,
corresponds to the norms of the positive law; or in which the members of
the family, in which there is a semblance of proper family life, would as
much as think of attempting to enforce the rights against one another that
the letter of the law grants to them. It is evident therefore that in this case,
too, the positive law is far from giving a picture of that which actually takes
place in life. So much the less must legal science and doctrine confine itself
to giving an exposition of the content of the statutes; it must seek to
ascertain the actual forms that the family relations assume, which are
essentially uniform and typical although they differ in the various classes of
society and in the various parts of the country. We shall not discuss in this
connection whether the statute has lost its mastery over life or whether it
never had it; whether life, in the process of growth, has developed beyond
the statute and grown away from it or whether it never corresponded to it.
In this connection, too, science fulfils its function as the theory of law and
right very poorly if it merely presents that which is prescribed by the statute
and fails to tell what actually takes place.
The peasant law of inheritance of Germany (S ering) and of the German
parts of Austria has been investigated more thoroughly and has been
juristically evaluated more nearly at its true value than any of the subjects
mentioned above. For the other classes, as well as for the non-German
peoples and countries of the Austrian monarchy, the work has not yet been
done. Juristic literature is content with setting forth the well-nigh
unrestricted liberty of testamentary disposition provided for by the civil
codes. Ought it not also ask what use is being made of it in the various
countries and in the various classes?
The only branch of law the juristic science of which is based not merely
incidentally, but throughout, on actual usage is commercial law. The latter
has been officially received into juristic science in the form of business
custom and "usance." 1 The organization of the great landed estate and of
the factory, even of the bank, has, to the present day, remained to the jurist a
book sealed with seven seals, but the organization of the commercial house
he knows, in its main outlines at least, from the Commercial Code. He
knows the position of the principal and of the holder of a general power of
procuration ;2 of the holder of a mercantile power of agency 1 and of the
mercantile employee, of the mercantile agent,2 of the commercial traveler;
he knows the significance of the mercantile trade name (Handelsfirma), of
the books of account, and of business correspondence. He has a conception
of the significance of all of these things not only from the economic but
also from the legal point of view. And the contract law of modern
commercial law has not been taken over from the corpus iuris; nor is it a
product of the diligent reflection of its authors. What the commercial
statutes and the commercial codes have to say about buying and selling,
about commissions, about forwarding of goods, about the insurance, the
freight, and the banking business, is actually being practiced somewhere
even though, possibly, not always to the extent set forth therein. Likewise
many commercial institutions, particularly the Exchange, have been
properly furrowed and plowed by the jurists. The fact that much hard work
remains to be done in every nook and corner is caused less in this sphere
than in others by the lack of understanding and appreciation of the actual
realities and more by the difficulties inherent in the subject matter and by its
extremely rapid development. The gigantic organization of the production
of goods which is taking place before our very eyes in trusts and cartels, all
the modern achievements of commerce, the numerous new inventions, lead
to new formations at every moment, and open new fields of labor for the
jurist.
1 Usage.
 2 The Prokura^ or general power of procuration, has been defined
by Gareis (Handelsgesetzbuch, second edition) in a note to
paragraph 48 as a general power of agency which must be
registered, which is limited only by statute, which cannot be limited
by agreement as to its effect with reference to third persons, and
which is designated by a formal designation which is limited to this
particular instance.

This then is the living law in contradistinction to that which is being

enforced in the courts and other tribunals. The living law is the law which
dominates life itself even though it has not been posited in legal
propositions. The source of our knowledge of this law is, first, the modern
legal document; secondly, direct observation of life, of commerce, of
customs and usages, and of all associations, not only of those that the law
has recognized but also of those that it has overlooked and passed by,
indeed even of those that it has disapproved.
In our day, doubtless, the most important source of knowledge of the
living law is the modern legal document. Even today one of these
documents is being studied very extensively, to wit the judicial decision, but
not in the sense we have in mind here. It is not being treated as evidence of
the living law, but as a work of juristic literature which is to be examined
not as to the truth of the legal relations described therein and as to the living
law that is to be extracted therefrom, but as to the correctness of the
statutory interpretations and of the juristic constructions contained therein.
Even the conception of the French arrêtistes, of the jurists who have made
it their business to add the explanatory notes on the decisions published in
the great collections of Dalloz, Sirey, and in the Journal du Palais, is based
on a much deeper understanding than this. To them the judicial decision is
an expression of the law not as the legislator has pictured it to himself, but
as it has developed in the consciousness of the French judges in the course
of the century during which the French codes have been in force. In the
words of Meynial, who has discussed the work of the arrêtistes in a brilliant
fashion in the memorial volume published in commemoration of the one
hundredth anniversary of the introduction of the code civil, they see in it “la
notion du changement du droit, grâce aux inflexions que la jurisprudence
fait subir à la loi; celle du consentement gênerai tacite qui fait de la
jurisprudence non seulement la servante mais V émule et comme le
suppléante de la loiT
1 See Commercial Code, § 54. 2 See Commercial Code, 1, § 7.

I myself entertained this idea when about a quarter of a century ago I

began to work at my book on the declaration of the will by silence. My
intention was to study more than six hundred volumes of decisions of
German, Austrian, and French courts, and on the basis of these decisions to
present a picture of what judicial decisions had made of the declaration of
the will by silence. Before long however my attention was arrested by, and
occupied with, what actually took place rather than by the judicial decision.
As a result my book contains, to a great extent at least, a statement of the
facts on which the judicial decisions had been rendered, as they actually
happened in life, and a statement of the significance of the silent declaration
of the will in legal life. In this book, I actually, though unconsciously,
applied the sociological method of legal science, for which I subsequently
sought to establish a theoretical basis.
At a later time, however, I realized that this method is not quite
sufficient. Even the judicial decisions do not give a perfect picture of legal
life. Only a tiny bit of real life is brought before the courts and other
tribunals; and much is excluded from litigation either on principle or as a
matter of fact. Moreover the legal relation which is being litigated shows
distorted features which are quite different from, and foreign to, the same
relation when it is in repose. Who would judge our family life or the life of
our societies by the law-suits that arise in the families or in the societies?
The sociological method therefore demands absolutely that the results
which are obtained from the judicial decisions be supplemented by direct
observation of life.
And for this very purpose the modern business document offers a basis
which can become at least as fruitful as the method of past millennia and
centuries. A glance at modern legal life shows that it is predominantly
controlled not by statute law but by the business document. Non-
compulsory law is set aside by the content of the business document. The
living law must be sought in marriage contracts, in contracts of purchase, of
usufructuary lease, in contracts for building loans, for loans secured by
hypothecs, in testaments, and in contracts of inheritance, in articles of
association of societies and of business partnerships, and not in the sections
of the codes. In all of these contracts, there is, in addition to the individual
content which applies only to the particular transaction, a typical, ever
recurring content. This typical content is basically the most important thing
in the document. If our literary jurists were well advised, they would
concern themselves primarily with it, as did the Romans, who, in their
commentaries on the edict and in their libri tur is chilis, wrote long
disquisitions on the ever recurring duplae stipulatio and the institutio ex re
certa. In that case we probably should have more monographs on the beer-
seller of the breweries, or on the contracts for the process™ ing of sugar
beets by the sugar factories, or on the sale of a physician's practice, than on
the concept of the juristic person or the construction of a pledge right in
one's own res (Sache). Of course it is a new task for the jurist to make use
of a modern document for the purposes of theoretical and of practical legal
science. But the historian, particularly the legal historian, is quite familiar
with the study of documents, and the latter might, at the beginning at least,
render valuable services both to the theoretical and to the practical jurist.
The science of historical documents has developed a technique that is one
of the most delicate and difficult things in scientific work, and the industry
and labor of a lifetime will scarcely suffice for the mastery of all its
refinements. But in the case of the modern document tasks must be fulfilled
which in part are quite different from those involved in the case of the
historical document and which are by no means lighter.
Above all, we must endeavor to treat the document as a part of the living
law, and to derive the living law from it as the Romans did in their law of
contracts and of testaments. The titles of the Digest de contrahenda
empitone, de actionihus emti venditi, de evictionihus et duplae stipulations,
pro socio, de stipulation servorum, and those that deal with the law of
testaments and legacies, can still serve as models everywhere. It is a matter
of the utmost importance that present-day theoretical and practical science
should at last concern itself not with Roman, but with present-day contracts
and documents. It would be the first task of modern legal science to
examine the documents as to the part of their content that is of general
importance, typical, and ever recurring, to treat juristically and to evaluate
them from every angle according to their importance from the point of view
of society, economics, and legislative policy.
 In this way we could at last get a picture of what is taking place among
us in the sphere of the document. Although in general the documents are
alike, they differ very much in details according to localities, classes, ranks,
races, and creeds. It seems likely that we must perform the function of legal
statistics by means of the devices of the science of documents. It will not be
possible to do this without new methods, and it surely will not be an easy
task to devise such methods. But what splendid results are beckoning to the
jurist in this connection, especially if he succeeds in laying bare the
historical, economic, or social presuppositions of these diversities.
Still the value of the document would be greatly over-estimated if one
should think that one could, without more ado, read the living law from it. It
is not at all conclusively established that the document as a whole contains
and bears witness to the living law. The living law is not the part of the
content of the document that the courts recognize as binding when they
decide a legal controversy, but only that part which the parties actually
observe in life. The effects of the transactions that are evidenced by
documents cannot be learned without more ado from their enforceable legal
consequences. Could anyone infer from the articles of association of a
society or of a share company that the seemingly plenipotent meetings of
the shareholders usually turn out to be utterly insignificant gatherings of
yes-men? But the legally operative content of the document gives no
reliable information as to the effects not intended by the parties nor yet as to
those intended. There is much in the document that is simply traditional;
this part is copied from a form book by the person who drafts the document,
but it never reaches the consciousness of the parties. They will therefore
neither demand nor grant the things provided for therein, and will be very
much surprised to hear of them when, in the event of litigation, the
document gets into the hands of a lawyer who insists upon them in court.
There are other provisions which the parties will permit to be embodied in
the document only in order to be prepared for the worst. It is self-evident
that they are not to be mentioned as long as there is no controversy. The
other party understands this very well. He accepts the most extreme rigors
of a contract of this sort calmly, but haggles most obstinately over all
provisions that are intended to be taken seriously. If one reads a contract of
usufructuary lease prepared by the administrator of the Prussian crown-
lands or of the Greek-Oriental religious foundation of Bukowina, one
marvels how it is possible for the lessee to move at all within this barbed-
wire fence of paragraphs. Nevertheless the lessee gets on very well. No use
is ever being made of all of these contractual penalties, of the clauses
appointing stated times, of the short-term notices to quit, of the forfeitures
of security, of the right to compensation for damage done, as long as it is
possible to get on with the lessee at all. One who is engaged in the practi-
cai affairs of life is anxious to deal peaceably with people. He is not
interested in carrying on litigation even if he is bound to win«
The standard therefore according to which the Sociological School of
jurisprudence must test, not only the legal propositions, but also the legal
document, is actual life. Here too it must observe the distinction between
the law that is enforced by the courts and the living law. The entire valid
content of the document is law that is enforced by the courts (i.e. norm for
decision), for, in case the parties resort to litigation, the decision will hinge
upon it; but it is living law only in so far as the parties habitually insist upon
it even if they do not wish to risk litigation. Failure to observe this
heterogeneousness of the component parts of the document embodying the
contract results in an erroneous and distorted picture of life itself. But the
contrast is of the utmost importance for the administration of justice and for
legislation as well. It is questionable whether the latter should lend
themselves to permitting those things to be taken seriously which were
never intended to be taken seriously.
Of course we can learn only so much of the living law from the
document as has been embodied therein. How shall we quarry that part of
the living law that has not been embodied in a legal document but which
nevertheless is a large and important part thereof? There is no other means
but this, to open one's eyes, to inform oneself by observing life attentively,
to ask people, and note down their replies. To be sure, to ask a jurist to learn
from actual observation and not from sections of a code or from bundles of
legal papers is to make an exacting demand upon him; but it is unavoidable,
and marvelous results can be achieved in this manner.
From the great number of things that deserve being studied in this
manner, I would select only a few. First of all the old law that still survives.
The old law, which is popular law and not merely juristic law, lives on
under a thin surface of modern statute law, and dominates the conduct and
the legal consciousness of the people. The legal historian can not only find
many things here as to which his sources are silent, but he can actually
observe many things which are generally believed to belong to a time that is
long since past. In doing this he can disregard the legal document; for it is
well known how often it is but a poor compromise between that which is
traditional and the demands of modern law, e.g. in the law of inheritance
among the peasants, and in the matrimonial régime. But it is necessary to
focus attention to a much greater extent than has been done hitherto upon
those parts of the old law that still exist among the people though they are
not embodied in legal documents, expecially since it is doubtful whether it
can hold its own much longer against the impact of modern commercial
life. Bogisic has discovered the ancient Sadruga, one of the most primitive
of human organizations of mankind, within the very territory within which
the Austrian Civil Code is in force. In another remote corner of Austria, in
eastern Galicia, Dniestrzanski (Customary Law and the Social Associations,
Czernowitz, 1905) has found a mercantile partnership comprising the entire
Ruthenian tribe of the Bojken, and having a remarkable form of
organization, which of course is quite foreign to the Austrian statutes. I
myself have been able to establish the fact that only about one half of a
century ago there were isolated peasant family-communities in existence
among the Ruthenians of eastern Galicia and of Bukowina. Today, I
suppose, they have disappeared altogether. Mauczka (Altes Recht im
Volksbewusstsein — Ancient Law in the Popular Consciousness — Wien,
1907 — also in Gerichtszeitung Nos. 10 and 11, 1007) has recently shown
that there are some survivals of this institution among the German
population of Austria as welL And at my suggestion, a Viennese writer, Dr.
Kobler, has recorded some observations for my seminar for the study of the
living law.
The germs of new law that are viable are probably of greater importance
to the jurist than such dying survivals. And here we are confronted by a
peculiar fact. It is generally believed that the knowledge that law is in
never-ending process of development is an enduring achievement of the
historical school, and one would think that this is accepted as true not only
as to times long since past but also as to the last century. But science and
theory are making a peculiar use of this bit of academic wisdom.
So far as the ancient Romans or the Germans down to the fourteenth and
fifteenth centuries are concerned, jurists are wide awake to the development
of legal institutions, e.g. of the family, of the relations of personal
subjection, of ownership of land, of contracts. Statutes, which are of no
significance in those days, are scarcely being mentioned. But for the later
period, this kind of legal history breaks down altogether, and for the last
century, the science of the Historical School resolves itself altogether into a
history of legislation. Jurists seem to assume that in this period legal
institutions develop only through changes in the paragraphs of the codes.
What is the meaning of this? Has the non-statutory development of legal
institutions ceased altogether in the nineteenth century? But today, just as in
antiquity and in the Middle Ages, legal history is based not so much upon
the emergence and the disappearance of legal propositions that have been
formulated in words as upon the emergence of new legal institutions and the
gradual assumption of a new content by those that are already in existence.
No legal historian will admit that the basic legal relations in Germany, let us
say, of the sixteenth century, coincide with those of the fifteenth, or that the
changes, some of which were very sweeping ones, took place solely as a
result of legislation, which was enacted very rarely and was not very
sweeping. Does this not hold true for the nineteenth century as well, a
period which was so highly agitated socially, economically, and politically
that one may say that until that time mankind had never experienced its
like? It is a question of what one means by development. The family law
has undergone development. This means exactly what it meant in the
Middle Ages, i.e. that the relations of husband and wife, of parents and
children, now bear a different stamp. Ownership of land has undergone
development even apart from the fact that the soil was freed by statute and
by administrative action from the burdens and charges resting upon it; this
means that there is a different system of landholding in vogue because
different kinds of real and obligatory rights have been established with
reference to the soil, and also because the economy of the peasant and of
the great landowner has undergone a change. The law of contract has
undergone development; this development is based on the fact that new
kinds of contracts have come into use and that the contracts of the
traditional kind now have a different content. The law of inheritance has
undergone development; this means, chiefly, that division of inheritance,
testaments, and other dispositions mortis causa now have a content quite
different from that which they had a century ago. Compared with these
revolutionary changes, the changes brought about by legislation are
negligible.
The sociology of law then must begin with the ascertainment of the
living law. Its attention will be directed primarily to the concrete, not the
abstract. It is only the concrete that can be observed. What the anatomist
places under the microscope is not human tissue in the abstract but a
specific tissue of a specific human being; the physiologist likewise does not
study the functions of the liver of mammals in the abstract, but those of a
specific liver of a specific mammal. Only when he has completed the
observation of the concrete does he ask whether it is universally valid, and
this fact, too, he endeavors to establish by means of a series of concrete
observations, for which he has to find specific methods. The same may be
said of the investigator of law. He must first concern himself with concrete
usages, relations of domination, legal relations, contracts, articles of
association, dispositions by last will and testament. It is not true, therefore,
that the investigation of the living law is concerned only with "customary
law" or with "business usage." If one does any thinking at all when one uses
these words — which is not always the case — one will realize that they do
not refer to the concrete, but to that which has been universalized. But only
the concrete usages, the relations of domination, the legal relations, the
contracts, the articles of association, the dispositions by last will and
testament, yield the rules according to which men regulate their conduct.
And it is only on the basis of these rules that the norms for decision that the
courts apply and the statutory provisions that alone have hitherto occupied
the attention of jurists arise. The great majority of judicial decisions are
based on the concrete usages, relations of possession, contracts, articles of
association, and dispositions by last will and testament, that the courts have
found to exist. If we would comprehend the universalizations, the
reductions to unity, and the other methods of finding norms that the judge
and the lawgiver employ, we must first of all know the basis upon which
they were carried out. The more we know of the Roman banking system,
the better shall we understand receptum and liiteris contrahere. Does this
not hold true for the law of our day? To this extent Savigny was right when
he said that the law — and by law he means above all the legal proposition
— can be understood only from its historical connection; but the historical
connection does not lie in the hoary past, but in the present, out of which
the legal proposition grows. But the scientific significance of the living law
is not confined to its influence upon the norms for decision which the courts
apply or upon the content of statutes. The knowledge of the living law has
an independent value, and this consists in the fact that it constitutes the
foundation of the legal order of human society. In order to acquire a
knowledge of this order we must know the usages, relations of domination,
legal relations, contracts, articles of association, declarations by last will
and testament, quite independently of the question whether they have
already found expression in a judicial decision or in a statute or whether
they will ever find it. The provisions contained in the new German
Commercial Code regulating stock exchanges, banks, publishing houses,
and other supplementary provisions were full of gaps when they were
enacted and, for the most part, have become antiquated today. Modern
commerce, especially the export trade, has meanwhile created an enormous
number of new forms, which ought to be the subject matter of scientific
study as well as those that have been enumerated in the statute. Very much
that is of genuine value can be found on this point in the literature on the
science of commerce that is blossoming forth so abundantly. A part of the
order in the sphere of mining and navigation has been made accessible to
legal science through mining law, maritime law, and the law of inland
navigation, but for the most part this has long since become antiquated. The
factory, the bank, the railroad, the great landed estate, the labor union, the
association of employers, and a thousand other forms of life —-each of
these likewise has an order, and this order has a legal side as well as that of
the mercantile establishment, which is being reg™ ulated in detail only by
the Commercial Code. In addition there are countless forms in which the
activity of these associations manifests itself outwardly, above all the
contracts. In studying the manufacturing establishment, the legal
investigator must pursue the countless, highly intricate paths that lead from
the acceptance of the order to the delivery of the finished products to the
customer, to wit the position of the representative and of the commercial
traveler, the three departments that are to be found in every manufacturing
establishment (the sales department, the technical department, and the
manufacturing department), the arrival of the orders, the preparation and the
preservation of drawings, the computation of the cost of the undertaking,
the sale price, the calculation for the purpose of checking up, the execution
of the order on the basis of the drawings, the functions of the manufacturing
department, of the master workman, the management of the warehouse, the
computation of wages by the piece and by time, the distribution of wages
among the individual workmen, the importance of the certificate showing
that material has been handed over, the price list, the supervision at the
gates by porters. Of equal importance for the legal side of the order of the
undertaking is the keeping of books, the taking of inventories, the
supervision over the warehouse, the preservation of drawings and models,
the employment of workmen and of apprentices, the working regulations,
and the committees of the workmen.
Economists, it is true, have often been engaged in investigations of the
kind demanded here. But this has by no means rendered the work of the
jurist superfluous. The jurist and the economist are dealing everywhere with
the same social phenomena. Property, money, bills of exchange, share
companies, credit, law and right of inheritance — it would be difficult to
find a single object that the science of law is not concerned with as much as
economics. But the jurist and the economist are dealing with different
aspects of the same social phenomena. One concerns himself with their
economic significance and scope; the other, with their legal regulation and
their legal consequences. Though the jurist can be taught much by the
economist, and the economist by the jurist, the questions which the identical
objects of investigation pose to their respective sciences are absolutely
distinct ; and for this very reason no part of the labor which is necessary for
both may be thrust upon one of them alone.
The investigation of the living law will of course render neither the
historical nor the ethnological method superfluous; for we can learn the
laws governing the development of society only by studying the historic
and the prehistoric (ethnological) facts. But the historical and ethnological
methods are indispensable, too, for the understanding of the state of the law
of the present time. It is true we shall never understand the past but through
the present; but the path to the understanding of the innermost nature of the
present lies through the understanding of the past. Within every part of the
present lies its entire past, which can be clearly discerned by the eye that is
able to look into these depths. This truth was not hidden from the eyes of
the great founders of the Historical School, and for this reason their object
was by no means, as is generally believed today, to create a legal science
which in its essence is a history of law, but a historical science of law. It is
true, in the main they were occupied not even with legal history but with
legal antiquities, and substituted dialectic speculations for historical legal
science or — and this is not much better — Schelling's philosophy. They,
too, were children of their time. But they wrote a legend in large letters
above the gate of entrance to their school which stated what their goal was.
No one however was able to read and interpret the inscription. And this fact
is just as characteristic as is the other fact that at a later time the Zeitschrift
für geschichtliche Rechtswissenschaft1 became a Zeitschrift für Rechts
geschichtet
In order to understand the actual state of the law we must institute an
investigation as to the contribution that is being made by society itself as
well as by state law, and also as to the actual influence of the state upon
social law. We must know what kinds of marriages and families exist in a
country, what kinds of contracts are being entered into, what their content is
as a general rule, what kinds of declarations by last will and testament are
being drawn up, how all of these things ought to be adjudged according to
the law that is in force in the courts and other tribunals, how they are
actually being adjudged, and to what extent these judgments and other
decisions are actually effective. An investigation of this sort will reveal that
although the legislation of two different countries may be identical, e.g. of
France and Rou-mania, the law of one country may differ from that of the
other; that in spite of the fact that the courts and other tribunals of Bohemia,
Dalmatia, and Galicia apply the same code, the law of these countries is by
no means the same ; and that because of the differences in the actual state of
the law, there is no uniform law even in the various parts of Germany in
spite of the Civil Code, quite apart from the particular divergencies of
legislation.
1 Journal of Historical Legal Science. 2 Journal of Legal History.

Of course our knowledge in this sphere will always remain full of gaps,
and unsatisfactory, and doubtless it is much easier and much more pleasant
to study a few codes together with illustrative material and explanatory
notes than to ascertain the actual state of the law. But it certainly is not the
function of science to seek easy and pleasant tasks but great and productive
ones. We know in part, and the science of law is no exception to this; the
more truly scientific it will become, the more perfect it will be.
This exposition would altogether fail of its purpose if it were understood
to convey the idea that I mean to say that the methods which I have
indicated in any way exhaust the methodology of the sociology of law. New
scientific aims will always make new scientific methods necessary. For this
reason, in order to prove that the possibilities are unlimited, I wish to point
out a few things. Political geography as created by Ratzel and as it is
understood today by Brunhes in France is in fact sociology with a
geographic method. As early as the fifties of the last century Le Play, a
Frenchman, in his science social based his investigations at all points on the
local conditions of social life, and the school which he founded is zealously
continuing the work he began. In his book on irrigation in Spain, Egypt, and
Algiers, which is at least as interesting, even to the jurist, as any work on
the history of law or on ethnology, Brunhes points out that there is a great
number of legal formations which are associated everywhere with the kind
and nature of the irrigation plants and the amount of their output. The
reason why the Arabs of the desert do not recognize property rights in the
sandy plain of the desert but only in the trees of the oases cannot be given
by ethnology and legal history but only by the peculiar economic
institutions of the desert.
Many decades ago Ofner of Vienna pointed out the possibility of
instituting a direct investigation of the sense of law and right
(RechtsgefUhi) by means of juristic experiment. A year ago Kobler
discussed the idea in detail in the Vienna Juristische Blätter, and actually
instituted experiments in the Freie juristische Vereint-gütige which he
himself had founded. Actual or fictitious law cases, even entire court
proceedings, are being submitted to the persons who are being used for the
experiment, who must not be jurists, and who are requested to express an
opinion on them. They can do this only by relying on their sense of law and
right. Is not everyone reminded of the psychometry of the school of Fechner
and Wundt? These tests are open to the same objections that have been
urged against psychometry. The person who permits himself to be used for
the experiment is not in his usual frame of mind, and he knows, too, that his
judgment does not decide the case; the fictitious case arouses no passions,
does not agitate the emotions, but addresses itself to the intellect alone.
These are sources of error which a correct method must compute and take
into account. In spite of this however the attempt will produce valuable
results, provided one does not forget about the sources of error.
Method is as infinite as science itself.
Index

Abusive exercise of legal rights, 57, 187.

Accursius, the gloss of, 425
use of juristic constructions by, 311.
Achilleus, the shield of, 247.
Actio, de arboribus succisis, Gaius on, 342.
dein rem verso, 217.
fictitia, as a praetorian remedy, 283.
negatoria, 217, 328
as an action asserting ownership, 217.
Actio Pauliana, 120, 217, 359, 381.
spolii, model for the assisa novae disseisinae, 272.
strictiiuris, 224.
utilis, as a praetorian remedy, 283.
Actions claiming ownership or possession, in Roman law, 306.
Actions, classification of, 278.
Actions, Roman law system of, 265, 310.
Adickes, 357
on the abrogation of rules of law by customary law, 170.
Administration of justice, development of, 142, 214 fol.
Administrative law, 40, 42, 149
Roman, the juristic science of, 290
sanction, 21.
Administrative tribunals, decisions of, influence upon the creation and
modification of judicial decisions, 192.
Advowson, passing of to the firmarius, 300 fol.
Aesthetic life, protection of, 362.
Ager publicus, Roman law, as to, 268
ownership of, 306, 328
privatus, ownership of, 305 fol.
Agere, in Roman law, 266.
Agnatic law of inheritance, English conception of, 228
Roman conception of, 228.
Agreement, contracts, the nature of, in English law, 223.
Agreements for work, labor, and services construed as locano conducilo,
333.
Agricultural usufructuary lease, suggested scientific study of, 490
based on the law of the Roman latifundia, 490.
Agriculture, in Germany and Austria, suggested scientific study of, 490,
491.
Album, the praetorian, 274.
Alexander, Emperor, constitution of, 441.
Alexander III, Pope, Decretal of, on the passing of the advowson to the
firmarius, 300 fol.
Allgemeine Gerichtsordnung of Joseph II in Belgium, 366.
Rechtslehre and Sociology of law, 480.
Staatslehre and allgemeines Staatsrechte, 8.
Staatsrecht, 8.
Amos and Romanist Juristic science, 484.
Amtsrecht, 182.
Analytical method, 43.
Anerbenrecht, right of the single heir, 343.
Anerkennungslehre (doctrine of recognition), 167.
Anglo-American legal system, independent development of, 271.
Arabs, power of the state among, 72.
Arbeitsvertrag, 49.
Arithmetic of conceptions, 195, 312.
Arndt, 338.
Arrêtîstes, history of, Meynial on, 179, 494
study of the legal decision by, 494
the activity of, in projecting law upon new facts of life, 403.
Art and science, methods of, 472.
Artel, 141, 241.
Assiduus, 258.
Assisa novae disseisinae, 272, 273, 288, 409.
Assize of Novel disseisin, modeled on the actio spolii, 272
commenced by obtaining a royal writ, 273
as state law, 288
as a juristic invention, 409.
Assizes of Henry II, 143, 272, 273, 288, 409.
Assizes of Jerusalem, 253.
Associations, economic, 44
inner order of, as the law of the association, 23, 28, 36, 53 (see also
"Gierke")
interdependence of, in society, 151
genetic, legal order of, 27
original form of, 29
social, 26, 39
the creation of the inner order of, 26, 40
legal, distinguished, from non-legal, 40
liberty of, 161, 397, 401, 431
Schulze-Delitsch, 424
the legal, enumerated, 54, 55
without legal personality, 414.
Attorney, the function of, 341 fol.
Aubry, 435.
Auctor ad Herennium, 437.
Auctoritas prudentium, 438 fol.
Augustus, regulating the ius respondendi, 266.
Austin, formalism of, 485.
Austin, The Province of Jurisprudence Determined, 484
Lectures on Jurisprudence, 484.
Austin and Romanist juristic science, 484.
Austria, reform of legal studies, 483.
Austrian Civil Code, the family law of the, nature of, 369
the, on "innate rights", 360
the, recognition of, in Hungary, 183
study of matrimonial régime thereof suggested, 489.
Austrian court of cassation, faulty decision of, based on failure to project
law to a new situation, 403.
Austrian school of economics, 195, 222, 223, 473
theory of value, 195, 222, 223, 473
conception of the contract of, 223, 227.
Autonomy, as a characteristic of morals, 166.

Bachelors, tax on, 377.

Bähr, 19, 323, 365, 357.
Bailment, 481.
Baldus, 479.
Banks, control of, over credit, 47
organization of, 492.
Bannrechte (proscriptive rights), 196.
Barter, as a root of the law of contract, 105.
Bartolus, sense of the reality of things, 476, 479
use of juristic constructions, 311.
Batocki und Bledau, Praktische Ratschläge für den Abschluss von
Privatverträgen, 398.
Beaumanoir, 252.
Beccaria's formula of social justice, 208 fol.
Beispruchsrecht, 229.
Belgium, allgemeine Gerichtsordnung of Joseph II, 366.
Bellamy, Looking Backward, 163.
Bentham's formula of social justice, 208
influence-upon English law, 259
as to the basis of legal development, 213.
Berytus, school of jurists of, 478.
Beseler, Georg, 17, 447, 480
Volksrecht und Juristenrecht, 461
Genossenschaftsrecht, 461
on customary law, 443 fol.
criticism of Savigny and Puchta, 461 fol.
on the question how customary law may be ascertained and recognized,
462, 463
observes the distinction between legal proposition and legal institution,
463.
Beweisurteil, 272.
Beweisverfahren, 272.
Bierling, Anerkennungslehre (doctrine of recognition), 167.
Binding, 12.
Binet, on the rights of the married woman in France, 395.
Blacklist, 71.
Blackstone, 4
the influence of, upon English juristic law, 292.
Blomeyer, on the usufructuary lease, 398.
Bobcev, Sbornik na blgarski juriditski obitschai, 465.
Bö hm-Bawerk, Kapitalzins (interest), 223, 473.
Boè thius, on the binding force of juristic law, 364.
Bogisic, 371
on the Sadruga, 499
Zbornik sadasnih pravnih obicaja juznih Solvena, 464.
Bona fides, as a source of the living law, and of changes in state law, 401
decision according to, 225.
Bonae fidei contractus, creation of, 360.
Bonae fidei iudicia, 199
effect of, on the development of the law of contracts, 227
in the Roman law of contracts, 225, 227.
Boni mores, decision according to, 225.
Bowen, 290.
Boycott, 71.
Bracton (Bratton), 253
as a creator of juristic science, 176
on relation between the norm for decision and social law, 194
on enforcement of non-legal norms, 194
on the assisa novae disseisinae, 409
on writs, 277
writing on social norms not enforced by the courts, 194
influence of, upon English juristic law, 292.
Brie on mores and customary law, 440, 441
on longa consuetudo, 440.
Brinz, 19, 177, 327
on obligation and liability, 104.
Brocards, of Loisel, 407.
Brunhes, on irrigation in Spain, Egypt, Algiers, 505, 506.
Brunner, on the history of the English jury, 273.
Bruns, 18.
Bryce, Sir James, on English case law, 294
on the nature of the work of English juristic writers, 293.
Budanow-Wladimirski, on Russian law of contract, 106.
Bukowina, paternal power in, 370.
Buller, on the creation of the Law Merchant, 354.
Bureau on the separation of church and state in France, 161.
Burke, Reflections on the Revolution in France, influence of, on the
doctrines of the Historical School, 455.
Business custom, 492.
Business document, the modern, 495
the typical content of, method of study of, 495 fol.
the modern, as a source of knowledge of the living law, 493, 495-498.
Business house, organization of, 492.
Business usage, as a source of living law and of changes in state law, 401
decision according to, 225.
Byron on social justice, 208.
C

Caesar, ius respondendi, 266.

Caillemer, Robert, on the Treuhandgeschä ft, 214, 229.
Cairns, 290.
Callistratus, Quaestiones, 441.
Camorra, 72.
Canonists, on creation of law by the state, 149.
Capitalism, basis of, 76.
Capitularies, Frankish, 145 fol., 182, 190.
Carlyle's concept of social justice, 210.
Carolina, the, 170.
Carolingian Empire, statutes in the, 147.
Carpzov, 317.
Carter, A History of English Legal Institutions, 354.
Case law, advantages of, 293
disadvantages of, 295 fol.
Catholic Church, 65.
Cato, the formulae of, 257, 343.
Cavere, in Roman law, 266.
Certa pecunia, claim for, 257.
Certa res, claim for, 257.
Cestui que trust, right of, in rem or in personam, 287.
Chalmers, on the effect of the codification of the Law Merchant, 292.
Chancellor, the English, law-making power of, 182.
Chancery, rise of the jurisdiction of, 280 fol.
Chicane (see " Abusive exercise of legal rights" ), 57.
Childless persons, tax on, 377.
Christian religion, 459.
Church and state in France, 65.
Cicero, 436.
Citations, the law of, of Valentinianus 111, 425.
City ordinances, Italian, validity of, 309.
Civil code, German, analysis of content, 422, 423.
Civil death, provisions of the French Civil Code as to, state law or juristic
law, 414.
Civil procedure, assumption of control over by the state, 405.
Clan, 27 fol.
Coalition, freedom of, 161, 397, 401, 431.
Code Civil, Livre de Centenaire du, 179.
Code pé nal, 405.
Codes, analysis of the contents of modem, 422 fol
modem, constituent elements of, 414
morphology of society in the modem, 431
the modem, and juristic activity, 434
legal material contained in the modem, 487
difficulties caused by the modem, as to new phenomena of legal life, 428,
429, 430 fol.
effect of, on the development of law, 433
effect of, on practical and theoretical scientific activity, 482
as complete statements of the state of the law, 488
the modem, relation of to economic and social development, 429
and the Continental common law, 414, 415
and the native law of the several states (Landrechte, Coutumes), 415
and the law of nature, 416.
Codification, effect of, on juristic activity, 433
early, of law, 215
of the indigenous law of the several states as constituent elements of the
modem codes, 415, 416.
Codification and juristic and judicial creation of law, 179, 434.
Coercive order of the state, Goethe on, 71.
Cognitiones, 405.
Coke, 253, 290
on the relation between lord and copyholder, 157
quarrel with Lord Ellesmere, 281
the influence of, upon English juristic law, 292.
Collectivism, 234, 237, 238, 239, 240, 241
distinguished from socialism, 238
as combating the indirect rights of domination connected with property,
239
and trade unions, 240
 in the non-legal sphere, 241.
Combat, legal, 147.
Commendation, 72, 106.
Commerce, freedom of, 418.
Commercial law (see " Law, commercial" )
of Roman sources, 498
and business custom, 486
scientific study of, 492
Roman, 262.
Commercial usage as a source of law, 84.
Common Pleas, the Court of, 276.
Common popular conviction and customary law, 448.
Communal courts in Russia, 141.
Commune, in Paris, 202.
Communis consuetudo, 309.
Complainte, la, 95.
Compulsion, in Staatsrecht, in administrative law, 21
psychological, 20, 21, 22
two means of, 20.
Compulsory execution, as sanction, 20, 21, 62, 67, 68, 70
as the basis of the legal order, 70.
Comte, Auguste, 25, 150
consensus universel, 150.
Conceptions, jurisprudence of, 301, 303, 308
limitation upon, 308.
Concepts, arithmetic of, 195, 312
juristic and mathematical, 324, 325.
Condictio, 257.
sine causa, 217.
Conditions, the retroactive force of, 334.
Conduct, rules of, and norms for decision, and the doctrine of the Historical
School as to the sources of law, 452.
Connubium, 193.
Consideration, the doctrine of, in English law, presented in the terminology
of the juristic science of the Continental common law, 480 fol.
Consimili casu, writ in, 273.
Constantinople, school of jurists of, 478.
Constantinus, asserting the state monopoly of creation of law, 147.
Consti tutio Antonina, 145, 441.
Constitutional law, of Great Britain, 85
of Rome, 85.
Constitutiones, imperial, 307, 412, 436, 437
as a source of law, 436, 437
Saxonicae, 416
land law of, 307.
Constructions, use of, by the Roman jurists, 270
in Roman law and in the Continental common law, 288
jurisprudence of, 288 fol., 310 fol., 428.
Consuetudo, and customary law, 440
and the reception of Roman law, 309
as a source of law, 441, 442
treatment of, by glossators, postglossators, canonists, and Continental
common law practitioners, 442.
longa, 440, 441.
Continental common law, as a constituent element of the modem codes,
414.
Contract, law of, 8, 29, 46, 48, 49, 104, 105, 107, 108, 109, 110, 130, 187,
193, 220, 221, 222, 223, 224, 226, 227, 256, 258, 351, 360, 397, 400,
415, 480, 493, 497.
Contract, of labor, 8
in the primitive genetic associations, 29
of service, of wages, of barter, of lease, 46
social nature of, 46 fol.
organizing power of, 46 fol.
as the juristic form of economic operations, 48
importance of oath in, 104-108
two roots of, 105 fol.
creating obligation (Schuldvertrag), 109
credit contract (Kreditvertrag), 109
of present exchange (Barvertrag), 109
unenforceable, 110 fol.
andpactum, 110, 193
immoral, 130, 187
development of law of, realizing the demands of justice, 219 fol.
 contractual liability, based on promise, 220
oldest form of, 220, 221
steps in the development of, 220
original nature of, 221
as a means of utilizing one's property to acquire a counterperformance,
221 fol.
as the exercise of the right of disposition over one's property through
declaration of the will, 221, 222, 224
German civil code on, 222
concept of, as two distinct dispositions, 222
interdependence of the dispositions in, 222, 223
of lease, Kleinwä chter on (Bodenrente), 223
Karl Menger on the economic nature of, 223
the, as an instrumentality of upright commercial intercourse, 223-227
nature of, in English law, 223
economic nature of, 223, 224
nature of, in mediaeval law, 224
interpretation of, 224
just, 224
uneconomic, causes of, 224
English law of, present stage of development of, 226
rô le of justice in the law of, 227
liberty of, 236, 237, 239, 240, 242, 397, 400, 401, 418, 431
early Roman law of, 256
protection in early law of claims arising, from, 258
for work, labor, and services as locano conducilo, 333
for services, the creation of, illustrating the method of converting a
question of fact into a question of law, 351
Roman law of, in modern law, 415
doctrine of consideration in the English law of, 480 fol.
law, of modern commercial law, 493
of usufructuary lease of the Greek-Oriental religious foundation of
Bukowina, 497.
Contractus bonae fidei, 360.
Copyright, 233, 234, 376, 387.
Corpus Inscriptionum Latinarium, 32.
Corpus iuris canonici, 14, 18.
Corpus iuris civilis, 14, 18, 29, 174, 302
method of application by the glossators, 302 fol.
art and science of drafting legal documents in, 423
the juristic law of, as exclusively judge-made law, 423
analysis of contents of, 412 fol.
legal propositions in, 174
as a basis of the juristic science of the Continental common law, 478.
Correality, 303, 304.
Costa, Derecho consuetudinario y economia popular en Espana, 464.
Course of judicial decision contra to a statute, 470.
Courts, 121, 122, 130-131, 140, 152, 199
and administrative tribunals, 122
as social institutions, 122
as state institutions, 121
and the sociology of law, 121
enforcement of judgment of, in primitive times, 122
communal in Russia, 141
development of the, 140 fol.
Hanseatic, 199
social, 122, 152
not established for the administration of justice, 130, 131
decisions of, according to non-legal norms, 130, 131.
Coutumes, the, as a constituent part of the French Civil Code, 415.
Credit, 46, 47, 49, 50
control of banks over, 47
the extension of, 68
organization of, 68
transaction, social nature of, 47
usurious, 69.
Cuiaccius, 320.
Culloden, battle of, 383.
Culpa, lata and culpa levis in Roman law, 432
in the Austrian Civil Code, 432, 433.
Culpability as the basis of the action for recovery of damages for damage
done, 219.
Curia regis, 272.
Custom, as a source of law, 83.
Customary law, 13, 14, 15, 17, 18, 170, 175, 185, 289, 293, 294, 295, 391,
436, 440, 442, 443, 445, 448, 449, 450, 451, 452, 457, 458, 467, 468,
486, 501. (See " Law, customary. " )·
Customs, of the manor, 159, 160, 468
special, in English law, 468.

Dalloz, 403, 434.

Danish law, 253, 434.
De Possessione, by Savigny, 319.
Declaireil, Les preuves judiciaires en droit franc, 342.
Declaration of the will, as a fact of the law, 85, 104 fol.
as a. post mortem disposition, 113.
theory, 226.
Decreta principurn, 438.
Decretum Grati ani, 425.
Definition and constitutive facts, distinguished, 358.
Definitions, in law, in statutes, 358.
Democracy, 209.
Denegatio actionis, effect of, 227.
Dernburg, 425, 479.
Dichtung und Wahrheit, Goethe, 92.
Digest, 412.
Diocletian, legislation of, 190.
Disputatio fori, 266
and creation of juristic law, 364.
Distribution of power, 198
creation of law according to, 197 fol.
Dniestrzanski, Das Gewohnheitsrecht und die sozialen Verbä nde, 371, 465,
499. (Customary Law and the Social Associations.)
Document, historical, study of, and the modem business document, 496
legal, content of, 345
technique of drafting (KautelarJurisprudenz), 185, 215, 246, 266, 291
technique of drafting, influence upon the development of Roman law, 266
fol.
and organization and protection of legal institutions, 343
changes in, reflecting changes in legal transactions, 397
as transmitting the Roman law of last will and testament to the
Continental law, 415
and study of law, 475
influence upon the legislation of Justinian and upon the Continental
common law, 423
content of, regulated by statute, 424 fol, 451
and the living law, 493, 495-498.
Domination, distinguished from possession, 92
and subjection, distinguished from superiority and inferiority of position in
the association, 87, 88
and subjection as facts of the law, 85, 87, 88.
Dominium utile and dominium directum, 313, 328.
Donatio mortis causa, 193.
Dopsch, writing on effectiveness of early statutes, 145.
Dos, law of, in Roman law, 262, 266.
Dungern, von, on the private law of princely houses, 30, 355.
DuschanTsar, 145, 384.
Dutch legal historians, 319, 322, 479.

E
Economic and juristic study of social phenomena, 503.
Economic associations, 44.
Economic life, 43.
Economics, Austrian school of (see " Austrian school of economics" ).
Economics, classical school of, 410.
Ehrlich, Beiträ ge zur Theorie der Rechtsquellen, 147, 177, 260, 266
Die Tatsache des Gewohnheitsrechts, 441
Freie Rechtsfindung und freie Rechtswissenschaft, lv, 466
Grundelegung der Soziologie des Rechts, liii
Juristische Logik, liii
Rechtsfä higkeit, 92, 256
Stillschweigende Willenserklä rung, 187, 225, 494
The Sociology of Law, in 36 Harvard Law Review 130, liii
Ü ber Luken im Recht, lv
Das zwingende und nichtzwingende Recht, 194.
Einert, 365
on bills of exchange, 323.
Eingriffsnormen, in state law, 367.
Ejectment, fictions in the action of, 279 fol.
Ellesmere, Lord, quarrel with Chief Justice Coke, 281.
Emancipation of the peasantry, 384.
Emotional life, protection of, 362.
Emperor, the Roman, as the sole creator of law, 14.
Enchiridion, of Pomponius, on the way the opinions of jurists were received
into the law, 266 fol.
Engels, on socialist philosophy of history, 75.
English Parliament, as a law-making body, 148.
Entscheidungsnormen, in state law, 367.
Equality, of human beings, 362.
Equitable ownership, in English and in Roman law compared, 287.
Equity, development of, 289
like the praetorian law, not an independent system, 283
the rise of, 168
and the praetorian law, 283
Lord Ellesmere and Lord Coke, quarrel between, 281
since the Judicature Acts, 284
developed by free finding of law and by universalization, 291.
Erbrecht (law of inheritance), 50.
Erbschatz, 175
in Prussian law, 175.
Erbtochter, 230.
Erfü llungshaftung, 221.
Error (mistake), 225.
Esprit des Lois, by Montesquieu, method of, both deductive and inductive,
473.
Essential error, Savigny's doctrine of, 329.
Establissements de Saint Louis, 252.
Ethical custom and customary law, 446
custom as a prerequisite to the origination of customary law, 448.
Ethnological science of law, 474
value of, 489.
Evolution, theory of, introduced into the study of law by the founders of the
Historical School, 443, 447. fol.
Exceptiones, effect of, upon the law of contracts, 227.
Exchange, 493.
Exchequer, the Court of, 276.
Execution, compulsory, as sanction, 20, 62, 64, 67, 68
as the basis of the legal order, 70.
Existing law, principles of, recognized as a source of law by Puchta, 460.
Exploitation, legislation to prevent, 240.
Eyke von Repgow, 251, 454, 488
as a creator of juristic science, 176
juristic method of, 261.

F
Fabians, 201.
Fact and Law, question of, 173, 305, 315, 349, 352.
Fact, question of, distinguished from question of law, 315, 349, 352
question of, two meanings of the term, 349.
Factors' Acts, 226.
Facts of the law, 35, 83, 117, 172, 182, 192, 197, 305, 356, 474
as bases for judicial decisions, 171, 172
as the basis of the legal order, 192
as part of the law, 356
created by judicial and administrative decisions, 192
legal order arising from the, 197.
Factual, normative power of, 86
normative significance of, 35.
Family, 27 fol., 43 fol.
law of (see " Law, of the family" )
inner order of, in ancient Rome, 156
relation, Anton Menger on the need for preserving, 242.
Fechner, psychometry, 506.
Festus on " nancitor " in the foedus Latinum, 108.
Feudal state, 32, 34.
Ficker, on the Germanic law of inheritance, 229
on the origin of the law of inheritance, 112.
Fictions, in the action of ejectment, 279 fol.
use of, 310
use of, for the purpose of extending the jurisdiction of the courts, 276
use of, in English law, in Roman law, in the older Continental common
law, in French law, 288
use of, by the Roman jurists, 270.
Fideicommissum, 193, 257
under the Austrian Civil Code, 427.
Fides, in Roman law, 257.
Fiducia, 344
in imperial times, 257.
Finding the law, method of, in English case law, 293.
Firma, 300 fol.
Fitting, 18, 314.
Folk laws (Germanic), 29.
Formalism, in law, 199, 258
in English law, 259.
Forms and formality in legal life, 258, 259.
Forms of action, the, 274.
Formulary procedure, 257, 345, 405
Roman compared with the procedure under the Judicature Act, 274.
Forster, Sir Michael, Treatise on Crown Law, 292.
Frauds, statute of, 389.
Frederick II, 433.
Frederick the Great, as governing a state which is in part in opposition to
society, 153.
Free discretion of judge, decision based on, 129-131.
Free finding of law, lv, 13 fol., 129-131, 172, 173, 174, 181, 186, 211, 212,
214, 219, 291, 294, 295, 340, 357, 402, 403, 428.
Freie juristische Vereinigung of Vienna, 506.
French Civil Code, recognition of in Russia, 183
article 1382, 180
provisions as to unjust enrichment, 217
matrimonial rigime, 326
legal capacity of married women under, 395
Merlen on life insurance under, 430.
French jurists, 479.
French legal historians, 319.
Freskenurteil, 343.
Functions of the jurist, 247, 248.
Fundus Italicus, ownership of, 305, 328.
Fungible goods, concept of, 317.

G
Gaelic clan organization, destruction of, 383.
Gaius, 4, 147, 182, 256, 332, 342, 438, 439
on the actio de arboribus succisis, 342
on the creation of law by legislation, 182
as to distinction between ius honorarium and ius civile, 438
Inst. I, 1, 1, as interpreted by Mitteis, 439
writing on the ius civile, 147
system of the Institutes, 332.
Gareis, 3, 8.
Gattung (genus), concept of, 317.
Gebrauchsbeschaffungsvertrag, 195, 233.
Geist des Volkes (spirit of the people) as the source of law, 444.
Genius, 207.
Geny, on the libre ré cherche seien tifique, 467.
Gerechtigkeitsströ mungen, 202.
Gerichtsordnung, allgemeine, of Joseph II, in Belgium, 366.
German Civil Code, 302
Social law in the, 404
Gierke's influence on content of, 423
analysis of content of, 422, 423
matrimonial régime, 126, 326
recognition of, in Switzerland and in the Scandinavian countries, 183
on the contract, 222
the effect of, upon the Continental common law juristic science, 339
legal capacity of married women under, 395
precepts as to innkeepers, 413
as to the prohibition of real rights by failure to mention, 427
based on the pandect law of the nineteenth century, 483
materials contained in, 487.
German Commercial Code, and the living law, 502
recognition of, in Swit-zerland and in Scandinavian countries, 183.
German Diet, nature of the resolutions ofthe, 33, 137.
German juristic science, methods of, 315.
German jurists, 479.
German legal monographs, 480.
German popular laws, 215, 249.
Germania of Tacitus, 31.
Germanists, 480.
Germany, mediaeval, state law in, 142.
Geschlossenheit des Rechtssystems, 430.
Gesetzesinhalt, distinguished from Gestezesbefehl, 190.
Gesetzliches Erbrecht, 229, 231.
Gesetzsprecheramt, 253.
Gewere, 95 fol.
Gewohnheitsrecht, 13, 18.
Gierke, 24, 42
influence of, on the content of the German Civil Code, 423
on customs of the manor as law, 160
discussing the universitas person-arum, 314.
Girard, on the text of the Twelve Tables, 407
on the distinction between civil law of inheritance and honorary law of
inheritance, 438.
Gladstone, 208.
Glanvill, Tractatus de legibus, the influence of, upon English juristic law,
292.
Glaser-Unger, collections of decisions, 369.
Glossators, the, 497
on creation of law by the state, 149
method of application of the corpus iuris, 302 fol, 308
work of, 301, 302
methods employed by, in the reception of Roman law, 308.
Goethe, 401
on the coercive order of the state, 71
on possession, 92.
Golden Bull, 14.
Goldschmidt, 357.
Good faith, principle of, 225.
Gottesurteil, 147.
Gracchi, 209.
Grand Coutumier de Normandie, 252.
Grant, 290.
Grotius, Hugo, 253.
Grünhut, on the Kontokorrentvertrag, 350.
Grundherrschaft, 92.
Guardianship in ancient Roman law, 405.
Gutsherrschaft, 92.

Haftung (liability), first appearance of, 221

distinguished from Schuld, 104 fol.
Hammurabi, 144.
Hand muss Hand wahren, 98, 226, 233, 242.
Handelsfirma, 492.
Hanseatic courts, 199.
Hardcastle, Interpretation of Statutes, 292.
Hardenberg, 153.
Hardwick, 290.
Hatschek, on the importance of the Konventionalregel in public law, 406.
Hedemann, 214, 343, 434
on judicial decisions not based on the German Code, 434
on the content of the concept of justice, 234 fol.
Heise, systematism, in the work of, 333.
Henry II, assizes of, 288
and the beginnings of juristic science in England, 293
reforms of, 272.
Hermogenianus, on consuetudo as a source of law, 441 fol.
Herzfeld, von, on life insurance under the Austrian Civil Code, 430.
Heteronomy, as a characteristic of law, 166.
Heusler, Andreas, writing on early administration of justice, 140.
Historians, French legal, 319
Dutch legal, 319, 322.
Historical School, li, 16, 18, 19, 32, 175, 177, 205, 213, 300, 319, 320, 321,
322, 323 fol., 327, 328, 330, 333, 337, 357, 393, 442, 443 fol., 452, 453,
454, 455, 457, 458, 466, 467, 475, 479, 504
and historical method, li, 504
and history of law, 5, 475
and the Law of Nature School, 16
and customary law, 18, 442, 443 fol., 457, 458
and the doctrine of the complete and perfect legal system, 19
limitation of its activity to interpretation of the sources, 32 fol.
and the creation of law, 175, 177, 408, 455
on the relation of the legal proposition to society, 205
on the legal proposition as the will of the lawgiver, 213
the guiding principle of, 320
method of, 322
the founders of, as romanticists, 321
characteristics of the pandects of, 322
result of the teachings of, 323
systematism of, 323 fol., 332 fol.
and the mathematics of concepts, 327
concept of ownership of, 328
Schelling's influence upon, 330
juristic constructions of, 333
exclusively scientific interest of, 337
and the concept of "the nature of the thing", 357, 467
and changes in the law, 393
concrete cases on which the doctrine of the origin of law of the, is based,
452, 453
the doctrine of, as based on historical study, 454
and the reception of Roman law, 454 fol.
influence of Schelling on the doctrines of the Historical School, 455
errors of the, 455 fol.
conception of the law as consisting of legal propositions, 455, 466
cause of the barrenness of the doctrine of, 466, 467
and modern German legal science, 467
and the science of law, 479
and the sources of law, 467.
Historical science of law, chief function of, 474.
History, interpretation of, 213
socialist philosophy of, Marx on, 75.
History of law, 5, 319, 322, 474, 475, 489, 502 (see also "Law, history of")
and the Historical School, 5
as presented by Savigny and Puchta, 322
function of, 474, 475
the value of, 489.
Höferecht, 175.
Hof und Dienstrechte (see "Landholding"), 157.
Hoffmeister, interpreting the judgment scene on the shield of Achilleus,
139.
Hofmann, on the morphology of the modem codes, 427.
Hofrechte, 159.
Holdsworth, 292.
Holland, Thomas Erskine, Elements of Jurisprudence, 484.
Holmes, O. W., Jr., 290, 293
on the distinction between question of law and question of fact, 353.
Homeric poems, legal order as reflected in, 30.
Hotomanus, 420.
House community, of the genetic associations, 27 fol.
the basis of the agnatic law and right of inheritance, 228
survival of, 231
changes in, 394.
Household, 43-45, 395
emancipation of members of, 395.
Hugo, systematism in the work of, 333.
Hütten, Ulrich Von, 209.

I
Ignorantia legis non nocet, 74.
Imperial Supreme Court of Commerce (German), 199.
In ius vocatio, 274.
Indebitatus assumpsit, 277
action for assertion of claim of unjust enrichment, 218.
Individual, rôle of, in the judicial decision, 201.
Individualism, 234
basic principle of, 235
influence on the development and creation of law, 234 fol
as combating the direct rights of domination connected with property, 239
in the teachings of the Natural Law School, 418
giving rise to woman's suffrage, 236
giving rise to universal suffrage, 236
influence in the non-legal sphere, 241.
Induction and deduction, 472.
Inheritance, law of, 50
right of kinsmen to inherit, 111, 385
relation between right of relatives to take and the agnatic law of
inheritance, 228
development of the law of, based on the idea of social justice, 227, 228
law of, of the modern Continental law, 50 fol.
law of, secondary trends in, 232
law of, in the primitive genetic associations, 29
the distinction between the civil law and the honorary law of, 438
the peasant law of, in Germany, suggested scientific study of, 492
right of, in collateral relatives, origin of, 385.
Iniuria, treatment of in private law and in criminal law, 269.
Injunctions, 281.
Innate rights, 360
in the Austrian Civil Code, 360.
Innkeepers, precepts of the German Civil Code as to, state law or juristic
law, 413.
Institutes, of Gaius, system of, 412
of Justinian, system of, 332.
Intendants, 149.
Interdicts, possessory, 93.
Interdictum de precario, 193.
Interest (Kapitalzins), 473.
Interests, 197-199, 200-202, 214 fol.
International law, relation of, to the state, 162.
Interpolations, Justinianian, 324.
Interpretation of history, materialistic, as to forces creating the legal
proposition, 213.
Introduction to the Science of Law, Gareis, 3.
Investigation, methods of, 472.
Ireland, introduction of the English common law into, 181.
Islamic juristic science, 178, 364, 437.
Iudex, the Roman, and the English judge, 283.
ludiciabonaefidei, 199, 225, 227.
luramentum liberti, 257.
lus, 14, 147, 193, 260, 261, 262, 267, 358, 437, 438, 439.
lus accrescendi, doctrine of, 327.
Ius civile, 147, 193
as a source of law, 14, 260, 437
created by the Roman jurists, 261
defined, 358, 437 fol.
derived by interpretation from the Twelve Tables, 437
distinguished from ius publicum, 147
Gaius writing on, 147
and ius gentium, 262
and ius legitimum, 439
and ius privatum, 437
and ius honorarium, 438
the law applied in the Roman courts, Juristic law, 439
and leges contradistinguished, 438.
Ius gentium, 147, 437
as a part of the ius civile, 263
as a part of the ius privatum, 147.
Ius honorarium, 193
and ius civile contradistinguished, 438 fol. (see also "Praetorian law").
Ius legitimum, 438 fol.
lus naturale, 147
as part of the ius privatum, 147.
Ius privatum, 147
defined, 436 fol.
defined as customary law, 436, 437.
Ius publicum, defined, 436 fol.
defined as law created by the state, 147
Mommsen on the meaning of, 436.
Ius respondendi, 14, 266, 267, 365
hearing of, upon the binding form of norms, 365.
lus vitae et necis, in the head of the household, 141.

Jellinek, 20, 86, 402, 482

on juristic projection in public law, 402
on the logical perfection of the legal system, 20
on the "normative power of the factual", 86
on usage, 86.
Jenks, Law and Politics in the Middle Ages, 145, 146, 148
on the law making power of Parliament, 148.
Jessel, Sir George, on the development ofequity, 289, 200.
Jevons, on value, 222.
Jhering, 64, 67 fol, 321, 327, 470
in Der Zweck im Recht, as to the basis of legal development, materialistic
interpretation, 213
on culpa in contrahendo, 323
on the principle of utility, 213
on protection of possession in Roman Law, on the distinction between
ownership and possession, 381.
Josef II, 13 (see also "Joseph II").
Joseph II, 153
allgemeine Gerichtsordnung in Belgium, 366
as governing a state which is in part in opposition to society, 153.
Judge, law-creating power of, 176, 177, 179, 180, 181, 185
an official of the state, 15.
Judge-made law, 176, 183, 185, 186, 187 (see also "Law, judge-made")
in statutes, 183.
Judgment, conditioned upon proof, 272
enforcement of, by social groups, 66, 122.
Judicature Acts, abolishing the forms of action, 275.
Judicial decision, the, 171, 172, 173, 177, 180, 187, 192, 201, 360, 470, 494
based on norms not contained in the legal proposition, 173
course of, contra to a statute, 470
criteria of evaluation of, 180
evaluation of, in England, 180
influence upon the creation and modification of facts of the law, 192
the nature of, 171, 177, 178
rôle of, in the creation of law, 360
rôle of the individual and of society in the creation of, 201
as a source of knowledge of the living law, 494
and statutes containing only general directions, 187
as a syllogism, 171
based on the facts of the law, 171, 172.
Judicial technique, 246.
Julian, on customary law, 440.
Jung, 434
The Problem of Natural Law, 135, 136.
Jurata, distinguished from the assize, 273, 274.
Jurisprudence, defined, 1, 3, 25, 476 (see also "Science of law" and "Juristic
science").
Jurisprudence, and juristic science, 3, 25, 246
of conceptions, 301-303, 308 fol.
of constructions, of fictions, 310.
Juristic activity and the modern codes, 434.
Juristic concepts, compared with mathematical concepts, 325.
construction, of the German Historical School, 334
of a legal relation not mentioned in one of the modern codes, 428
 payment by surety construed as a purchase of the obligation, 310 fol.,
333, 428.
constructions, true, enumerated, 310
used by glossators and postglossators, 310.
decisions, criteria of evaluation of, 180.
law (see "Law, juristic").
law-making, 133.
literature, the English, creation of law by, 292
importance of, in the creation of law, 292.
mathematics of concepts, 324, 325, 327.
persons, under the French Civil Code, 427.
projection, 402 fol.
science, 3, 7, 8, 13, 19, 25, 155, 175, 176, 178, 179, 185, 202, 203, 208,
246-248, 251, 260, 270, 271, 295, 297, 315, 326, 339, 341, 343, 345, 356,
401, 444, 476, 477, 478, 480, 484, 489
aim of, 8, ^codification and, 179, 434
of the Continental common law, 7, 176, 339, 356, 478, 480, 484
of the Continental common law and a general science of law, 484
of the Continental common law and the German Civil Code, 339
and creation of law, 133, 175, 176, 178, 179, 180, 181, 185, 187, 197,
246, 247, 248, 266, 268, 292, 427 (see also "Law, creation of")
as aiding the state in imposing its order upon the associations, 155
creation of, by Bratton (Bracton), 176
creation of, by the writer or the teacher, 176
and the creation of legal propositions, 175
of English law, 7, 178, 271
of the English law and of the Roman law compared, 295
the function of, 175 fol., 202 fol, 205, 246, 339
of German law, methods of, 315
and the government of society by law according to justice, 203, 205
and the Historical School, 19
Islamic, and creation of law, 178
and knowledge of the law, 246-248
and mathemati compared, 326
the methods of, 175
methods of modern, and their effect upon the state of the law, 489
a morphology of the legal formations of social life, 477
 the position of, in the development of law, 185, 248
and pure science, 9, 359, 360
and the reception of Roman law, 297 fol., 356
and Rechtsenzyklopädie (juristic survey), 480
of Roman law, 7, 245, 260, 270
and science of law, 1, 3 fol., 6, 16, 25, 246 fol., 319, 474, 476
the scientific elements in (observation, universaliza-tion of observation
and of the norms for decision), 476
and sociology of law, 476
as a source of law, in the doctrine of the Historical School, 444
and state law, 13
the three elements of, 7, 266, 341 fol.
two kinds of technique, 246.
Juristic concepts, survey, 480.
Juristische Blätter, Kobler on the study of the sense of law and right by
means of experiments or tests, 506.
Jurists, French, 479
German, 479
Roman, systematism of, 332
theoretical and practical activity of, 459
reputation of, bearing upon the binding force of norms, 364 fol.
the several activities of, 179
manner in which the Roman jurists created law, 266 fol.
law-creating power of the opinions of the Roman jurists, 266, of the
writings and teachings of the Roman jurists, 268 fol.
Jury, origin of the English, 273, 274.
Justice, administration of, as a function of the state, 139, 143
administration of, in the Orient, 143
decision according to justice, 200
and the law of contracts, 227
development of the administration of, 214 fol.
popular elements in the administration of, 142
decision according to, 200
government of society by law according to justice and the sociology of
law, 203
individualistic idea of, 241
social idea of, 241
 social, 208, 227
sense of, 213
demands of, realized in the development of the action for damages, 217,
218
development of the idea of, 243
sense of, defined, 107
rôle of, in the law of inheritance, 227, 231
social and individual ideas of, 227, 241
trends of, in the English law of inheritance, 213 fol., 227
question of interests to be protected because they are just, 214 fol.
the concrete content of the concept of, 214
idea of, cannot be summed up in a formula, 211
characteristics of, 200, 201
trends or ideals of, 202
social nature of the idea of, 202
positive characteristics of, 201
rôle of, in the law of contracts, 227
decision according to, 200
as a social force, 202
as influenced by the distribution of power, 200
a creation of both society and the individual, 208
administration of, early, 139
essential nature of, 242
and the protection of interests, 214
demands of, realized in the development of the law of contracts, 219 fol
idea of, in the recognition of labor as wealth, 232, in the criminal law
Protection of intellectual property, 233, in the law of copyright, 233, in
the increase of means of defense against attacks on the soci al order,
233.
Justinian, 14, 433
interpolations, 324.
K

Kaiserrecht, 252
the smaller, 252.
Kapitalzins (interest), 473.
Kauf bricht nicht Miete, 327.
Kautelarjurisprudenz (art of drawing up documents), 185, 246.
Kautsky, 210.
Kent, 290.
King's Bench, Court of, 276.
King's courts, procedure of, 273.
King's Peace, 277.
Kipp, 340.
Kleinwächter, on contracts of lease (Bodenrente), 223.
Kohler, Franz, Das Recht, 92
on the old surviving law, 499.
Koch, 483.
Konmenda, 343, 344.
Kontokorrentvertrag (contract of current accounts), Grünhut on, 350
development of, illustrating the method of converting a question of fact into
a question of law, 350.
Konventionalregel, 35, 40, 56, 84, 86, 406.
Kowalewsky, 141.
Kreditgeschäft (see "Credit transaction"), 47.
Kreditvertrag, 46, 47, 49, 50, 51, 58, 59.

L
Labbé, critical activity of, 179.
Labeo, 338
juristic method of, 260.
Labor, contract of, 8
as wealth, 232.
Labor agreement, collective (Tarifvertrag), 427.
Labor law, juristic presentation of, 488.
Lambert, on the text of the Twelve Tables, 254, 407
on the genesis of legal propositions, 175
on the Scandinavian Rechtsprecher, 178
on the conditions under which creation of legal propositions by a juristic
writer is successful, 176
in La fonction de droit civil comparé, on the importance of the position
and the personal representation of the creator of a legal proposition,
177, on the position of juristic science in the development of law, 248.
Land, disencumbrance of, 237
ownership of, 29.
Land law, in early Roman law, 256
of the imperial constitutions, 307
in the code and in the novels of Justinian, 307.
Landfrieden, 146
as contracts, 148.
Landholding, system of, in ancient Rome, 100, 305 fol.
mediaeval system of, 156, 157
Germanic system of, 99
under the code and in the novels of Justinian, 307 fol.
Landrechte, as a constituent part of the modern codes, 415.
Langdell, on the similarity between the praetorian law of Rome and English
equity, 282
on the powers of the chancellor, 282, 288.
Large-scale industry, 396
introduction of, as making changes in law necessary, 403.
Latifundia, 398.
Lauterbach, 317, 479.
Law:
administration of law by the state, 139 fol. (see "Justice, administration
of").
administrative law, 40, 42, 149.
adoption of foreign law, 183.
application of law as a function of juristic science, 246, 247, 248.
changes in law, 391 fol.
not effected by legislation, 391 fol
of property, 396
in state law, how brought about, 391, 401 fol.
as juristic inventions, 409
and the legal propositions, necessitated by social and economic changes,
396 ff.
commercial law, 262, 486, 488, 492.
common law, the greatness of, 293
introduction into Ireland, 181
common law and state law in English law, 439.
compulsive and non-compulsive law, 186, 189, 263, 264, 404 (see also
"Zwingendes und nicht zwingendes Recht").
concept of law, l fol., 10-12, 16, 149, 321, 460, 486 fol.
creation of law by the state as a necessary element of the, 160.
Continental common law, 293, 414, 482
comparative age and development of, 293
as a constituent element of the modern codes, 414
the legal science of, as a basis for a general legal science, 482 fol.
contracts, law of, 8, 29, 46, 48, 49, 104, 105, 107, 108, 109, 110, 130, 187,
193, 220, 221, 222, 223, 224, 226, 227, 256, 258, 351, 360, 397, 400,
415, 480, 493, 497 (see also "Contract").
copyright, law of, 233, 234, 376, 387.
creation of law, 14, 24, 39, 40, 61, 133, 137, 138) 139, 146, 147, 149, 150,
160, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 197,
198, 246, 247, 248, 260, 261, 266, 268, 292, 332, 360, 470, 504 (see also
"Norms, creation of")
and the state, 14, 24, 137, 146, 147, 149, 150 fol, 160, 182, 184, 185, 197
(see "Legislation")
as a monopoly of the state, 39, 147
by the state, as a necessary element of the concept of law, 160
and the distribution of power, 198 fol
and the dominant social groups, 61, 198
 by juristic science, 133, 176, 178, 179, 180, 185, 197, 246, 247, 248, 266,
268, 427
by judges, 176, 179, 180, 181, 185, 186, 187
by the administration of law and by juristic science on the Continent as
compared with that in England, 181
by judges and jurists, limitations upon, 179, 180, 185
by magistrates, 182 (see also "Praetor", "Equity", "Magisterial law")
and the state, 14, 24, 39, 137, 138, 139, 146, 147, 149, 150, 153, 154,
160, 182, 184, 185, 197, 388 fol.
by the English chancellor, 182
methods of the Roman jurists, 178, 179, 261
law-making power of the Praetor, 182 (see "Roman law")
by juristic science and codification, 179
by legislation, 182, 184.
criminal law, 269.
customary law, 13, 14, 15, 17, 118, 170, 175, 185, 289, 293, 294, 295, 371,
391, 436 fol., 445, 448, 449, 450, 451, 452, 457, 458, 467, 468, 486, 501
(see "Customary law")
importance of, 13, 14
and state law, 14, 15
as a source of law, 14, 391
arising in the popular consciousness, 17, 175, 448
and the Historical School, 18, 442, 444 fol.
abrogative power of, 170
nature of, 436 fol.
English, 185, 289, 202, 293, 294, 295, 439, 468-470
Roman, 436 fol., 440
Julian on, 440
the doctrine of, in the writings of the founders of the Historical School,
18, 442, 443, 444
and usage of the jurists, 445, 452
and juristic law, 450 fol., 457 fol.
prerequisites, 448, 449, 467, 468
and ethical custom, 449
validity of, 448
present extent of the study of, 486
a continuous process of the development of, 501
 South Slavic, 371.
damages, law of, claim for damages and claim asserting a right, 216
claim for, taking the place of an action in rem in English law and in
classical Roman law, 217
law of, in Roman law, 217
law of, realizing the demands of justice, 217, 218.
Danish law, 253, 434.
declaration of law, laws of Manu as, 149
law of Zarathustra, 49
law of Moses, 149.
definition of law as ars aequi et boni, 39.
definition of law as the social order, liii, liv.
development of law, 185, 202, 213, 354, 388, 389, 391, 396, 407, 409, 499,
504
Natural Law School, as to the basis of, 213
and juristic science, 185
brought about by development of Society, 396 fol., 504
contribution to the, by legislation, 185
through the state and society, 185, 388, 389
continuous process of, 499 fol.
as arising from an act of an individual, 407
end of, as viewed by the sociology of law, 202
from the adjudication of individual cases illustrated by the creation of the
Law Merchant, 354
personality of the judge in, 290.
ecclesiastical law, relation of, to the state, 162.
end of law, 214 fol.
English law, juristic science of, 7
public law in Great Britain, 34
constitutional law, 85
English customs of the manor, 159 fol.
customs of the manor as law, Gierke on, 160
introduction of, into Ireland, 181
common, product of the labors of the courts, 185
magisterial law in England at the present time, 186
common law compared with the Continental law, 254, 294 fol.
formalism of, Maitland on, 259
 early procedure, 271, 272
and procedure, development of, 272 fol
ejectment, action of, 277, 279, 288
norms for decision in, 288
the development of the common law from the facts of the law, 289
fiction of the custodia Mareschalli, 276
personality of the judge, importance of, in the development of, 290
comparative wealth in principles and rules, 292
common, importance of juristic literature in the creation of, 292
common, effect of Glanvill, Tractatus de le gibus, upon, 292
as juristic law, 292, 468, 470
comparative age and development of, 293
the greatness of, compared with the Continental law, 293, 294
territorial extent of, 293
common law, lack of systematic arrangement, 295
of inheritance, 231, 360
common law and statute law, 439
real contracts, 481.
essential characteristics of law, 23 fol., 167 fol.
ethnological science of law, 474.
Fact and law, question of, 173, 305, 349, 352.
facts of the law, 83, 85, 171, 172, 182, 192, 197, 305, 356, 474.
family law, 198, 261, 360, 369, 393, 491
and the distribution of power, 198 fol.
Roman, 261
development of, in Rome, 360
under the German Civil Code, 360
under the Austrian code, 369
changes in, 369, 393
suggested scientific study of, 491.
feudal law, 32, 33.
free finding of law, 13, 129-131, 172, 173, 174, 181, 186, 211, 214, 219,
291, 294
295, 340, 357, 402, 403, 428.
general theory of law, and sociology of law, 480.
historical conception of law, 16, 321.
history of law, 4, 5, 319, 322, 474, 475, 489, 502 (see "History of law")
and the Historical School, 5
and sociology of law, 474.
inheritance, law of, 50, 51, 111 fol., 112, 227, 228, 231, 232, 233, 243, 256,
360, 400
the Continental law of, 50
the organizing problem of the law of, 51 fol.
origin and development of the law of, 111
origin of the law of, Sir Henry Sumner Maine on the law of, 112
effect of military considerations on the law of, 227
agnatic law of, 228
modern developments in the law of, in Germany, in Austria, and under the
Swiss Civil Code, 231, 232
trends of justice in the English law of, 231
early Roman law of, 256
leading ideas of justice in the development of the law of, 232
Pflichtteil, or duty part of the law of, 233, 243
English law of, 360
changes in the law of, 400.
international law, relation of, to the state law, 162.
judge-made law, 176, 183, 185, 186, 187
as a subdivision of juristic law, 176
in statutes, 183, 186, 187
part played by, in the development of law, 185.
juristic form of the economic associations, 44.
juristic law, 137, 176, 183, 186, 188, 189, 292, 363, 431, 467, 470
in statutes, 137, 183, 426, 431, 432
adoption from foreign law, 183
in Germany after the adoption of the Code, 186
and state law, 188, 189, 431
effect of Glanvill, Tractatus de legibus, upon English, 292
English, 292, 470
the binding force of, 363
function of, 467.
juristic science of law (see "Juristic science").
knowledge of law as a function of juristic science, 246, 247, 248.
law of citations of Valentinianus III, 425.
law as a coercive order, 20 fol, 75 fol.
law as a command, 28.
law, as inner order of the associations, 23, 28, 36, 53, 58.
law as inner order of the state, 58.
law and legal propositions, 34, 486, 487 (see "Legal proposition")
law as a body of legal propositions, 34 fol.
law as contained in the legal propositions, 487
law, the present study of, as limited largely to study of the legal
propositions contained in the statutes, 486.
law and legislation, 184, 185.
law and religion, 247 (see "Legal norms" and "Non-legal norms").
law and right, sense of, 506.
law merchant, the creation of, 354.
living law (see "Living law").
logical element in law, 195.
logical perfection of law, 19.
magisterial law, 182, 185, 186.
mines, law of, 502.
morals, law and, 40, 165 fol., 166, 167 (see "Legal norms").
nature of law, 159.
Nature School, Law of, 16, 19, 357, 416-422 (see "Natural Law School").
norms of law and non-legal norms, 40 fol. (see "Legal norms" and "Non-
legal norms").
old surviving law and the sociology of law, 498
Kobler on, 499
Mauczka on, 499.
oldest form of law, Sir Henry Sumner Maine on, 37.
personal and real law, 189.
personality, law of, 216, 360, 361, 362
protection of the rights of personality, 216, 362.
police law, norms of, 74.
popular law, 444.
popular Germanic laws, 215, 249.
private law of princes, 30.
proceeding at law, function of the forms of, 341, 342.
Public law, 40, 42, 53, 143.
rank, law of, 461.
Roman law, 31, 85, 93, 107, 108, 140, 156, 178, 179, 182, 183, 184, 193,
217
253, 254, 255, 256, 258, 261, 262, 264, 266, 269, 270, 287, 297, 302, 305,
306, 308, 315, 326, 332, 405, 407, 440, 454, 458 (see "Roman law",
"/ws").
rule for decision applied by the courts, law as a, 24
as a rule of conduct, 21 fol.
Russian law, 106, 107.
scientific study of law, 17, 482, 492
scientific study of the commercial law, 492.
scientific treatment of law, effect of national limitations upon, 482.
scientific view of law, in the writings of Savigny and Puchta, 17.
social law, 42, 404.
sociology of law (see "Sociology of law").
sources of law, 83, 437, 444, 452, 467
Geist des Volkes (spirit of the people), 444
source of law and the Historical School, 467.
state law, and non-state law, 13 (Staatliches Recht und ausserstaatliches
Recht)
creation of, by the state, 14, 23, 24, 39, 40, 61, 133, 137, 143, 146-150, 160,
176, 182, 184-197, 388, 389
the call of state to create law, 146 fol.
monopoly of the state in the creation of law, 39, 147
concept of, 137 fol., 366, 367
and statute, 137
power of the state to compel preservation of a factual situation analogous
to law, 139 fol.
time at which and conditions under which state law arises, 137 fol, 143
fol
in mediaeval Germany, 142, 145
first appearance of, in history, 143 fol
presuppositions for the creation of, 143
in mediaeval Italy, Athens, 145
in Rome, 145, 147
in Sparta, 147
in the Carolingian Empire, 147
concept of, in the Sachsenspiegel, 147
 oldest form of, 148
adoption of, from foreign law, 183
in the Orient, 149
basis of state administrative law, 149
growth of, 155
as creating a uniform order of the associations, 155 fol.
the content of, 149, 154, 376 fol
and juristic law distinguished, 188, 189, 432
content of, 367 fol.
norms directing administrative action as, 368
as part of the living law, 369, 388
effectiveness of, 372 fol.
method of operation of, and social formations created by, 377
influence upon law, 372 fol., 388
effect of, upon society and social institutions, 377
effect of, upon economic life, 378
changes in, how brought about, 401, fol.
immobility of, 401
Roman procedural law only in part a matter of, 405
as creating, in part, the people of the state, 377
Roman penal law as, 405
influence of, upon social law, 505.
study of law in its historical relations, 4.
subjective law, 23.
territorial law, 189.
wager of law, 278.
Laws, early collections of, 143
mediaeval city, 249.
Lawyer, functions of, 7, 266, 341.
Lease, contracts of, Klein Wächter on (Bodenrente), 223.
Legal capacity of married women under the German and French Civil
Codes, 395
Ehrlich, 394.
Legal combat, 147.
Legal development, end of, as viewed by the sociology of law, 202.
Legal historians, French, 419
Dutch, 319, 479.
Legal monographs, German, 480.
Legal norms, 38, 39, 40, 41, 62, 67, 73, 74, 79, 80, 312-134, 137, 152, 154,
164, 166, 168, 169, 171-193, 348, 406
and legal propositions, 38, 171-193, 348
stability of, 132-134
distinction between, and social norms, a question of social psychology,
165
in their social connection, 164
defined, 169
of first rank and of second rank, 137, 152, 154
police law, 74
free finding of (see "Law, free
finding of), 172
sanction of, 62, 67
universal sphere of, 80
and non-legal norms, 39, 40, 41, 73, 79, 80, 154, 164-166, 168, 69, 406.
Legal order, 30 fol, 34, 55, 197
the second legal order, 55, 197
created by society, 197
arising from the facts of the law, 197
arising from the legal proposition, 197
of the Homeric poems, 30, 31
of the Scandinavian sagas, 30, 215
of the Germania of Tacitus, 311.
Legal procedure and the state, 405.
Legal procedure, as organized self-help, 405 fol.
Legal proposition, defined, 38
creation of, 171 fol.
and law, 34, 486, 487
and legal institutions, history of, 456, 474
and the norm for decision, 171-175
examples of, not derived from norms of decision, 175
as containing a norm for decision, 171
and the legal order, 192
as creating rules of conduct, 192
distinguished from the legal norm, 38, 172, 193, 348
origin of, in the popular consciousness, 175
 characteristics of, 174
as basis for judicial decisions, 171-174
derived from the norm for decision, 171, 174
content of, 171
creation of, by society and by the individual, 197, 212
as the will of the lawgiver, 213
three classes of, 195 fol.
that negate existing facts of the law or create new ones, 195
that attach legal effects to the existing facts of the law, independently of
the norms for decision arising therefrom, 196
as governing society, 203
materialistic interpretation of history as to the forces creating the legal
proposition, 213
power of the judge to create, 177
that affords legal protection to the existing facts of the law, 195
as a lever of social development, 202
created on the basis of observation of life and of universalization of the
results of observation, 359 fol.
judicial creation of, 177
composition of, 346, 347 fol.
nature and origin of, 346, 347 fol.
method of creating, 348
developed from norms for decision, 348 fol.
nature and composition of, illustrated by material drawn from the law of
the Salic Franks, 348 fol
distinguished from the norm for decision, 346
created under the influence of the concept of justice, 214
derived from judge-made norms for decision by means of
universalization, 225
derived from norms for decision, 174, in the corpus iuris civilis, 174
extraction of, from the norms for decision as a function of juristic science,
175.
Legal protection, in England, 71
in Germany, 71, in Austria, 71.
Legal rights, abusive exercise of, 57, 187.
Legal studies, reform of, in Austria, 483.
Legal system, reception of a foreign, 409
completeness and perfection of the, 20, 324, 430.
Legal transaction, Savigny's concept of, 330.
Legal transactions, new, arising because of changes in legal relations, 396.
Leges, as a source of law, 437.
Leges, barbarorum, 249.
de iure civile, 189, 437.
iudiciorum, 269.
sacratae, 148.
Legis actio, 265, 310
procedure by, 345.
Legis actio per manus iniectionem, 108, 258.
Legis actio procedure, compared with the procedure of the king's courts,
274.
Legislation, 139, 182
creation of law by, Gaius on, 182
by the state, much less relied upon today than in very recent times, 409
as a source of law, 391
by the state, 389
in French law, 185
proper function of, in the doctrine of the Historical School, 446
real value of, 185
in Rome, 288
contribution of, to the development of law, 185
to prevent exploitation, 240
necessity for creation of law by, 184
source of law, in the doctrine of the Historical School, 444.
Legislator, the perfect, 324.
Lenel, reconstruction of the praetorian edict, 267.
Le Play, science social, 505.
Levy, on the Kontokorrentvertrag, 350.
Levy of execution, as sanction, 62, 64.
Lex Falcidia, 327, 389.
Lex Julia et Poppaea, 377, 414.
Lex Papia et Poppaea, 440.
Lex Salica, 248, 260, 475
on Wergild, penalty for theft, abduction of women, 347
and the law of the time, 487.
Liability and obligation, 104 fol
liability for failure to perform, 221
liability without fault, 219.
Liberty, of contract, 236, 237, 239, 240, 242, 397, 400, 401, 418, 431
of association, 161, 397, 401, 431
of commerce, 418
of property, 236, 237, 239, 401
of testamentary disposition, 397, 401, 431.
Libre récherche scientifique, 470.
Libri feudorum, 253.
Liebe, 323, 365.
Lieferungs und Gattungskauf, introduction of, 396.
Lieferungsvertrag, 317.
Life insurance, under the French and Austrian Civil Codes, 430
under the French Civil Code, Merlin on, 430.
Litis contestatio, 272.
Littleton, 253
Tenures, 157
influence of, upon English juristic law, 292.
Livinglaw, 81, 369, 388, 401, 419, 486, 489, 493, 495, 496 fol., 498, 501,
502, 504
the law of the associations, 81
Treu und Glauben as a source of, 401
and state law, 360, 388
and the Natural Law School, 419
suggested method and objects of the study of the, 487 fol., 489 fol.
and statutes, 486
defined and distinguished from the law of the courts and other tribunals,
493
sources of our knowledge of, 493
study of the legal document, 495
observation of actual life (especially the old surviving law), 498
and the sociology of law, 501
study of the concrete facts of the law, 501
the influence of, on the norms for decision, 501, 502
value of the knowledge of, 502
and German Commercial Code, 502
 the investigation of, and historical. and ethnological study of law, 504.
Livre de Centenaire du code civil, 179.
Loan for use, 481.
Locatio conductio, 221, 262
as a labor contract, 266.
Logical element in law, 195.
Loisel, 407.
Longa consuetudo, 440, 441
Pernice on, 440
Brie on, 440.
Looking Backward, by Bellamy, 163.
Lotmar, 8
on the Immoral Contract, 130
in Der unmoralische Vertrag, writing on judicial decisions based on ex
tra-leval considerations, 130.
Lycurgus, the laws of, 147
legislation of, 147.

Macchiavelli, 56.
Mach, 488.
Machtverhältnisse, 198.
Maffia, 72.
Magisterial law, 182, 186
in England, 186.
Magna Charta, as a deed of grant, 148.
Magna Charta, Libertatum, 33.
Maine, Sir Henry Sumner, and the English Historical School, li
on the oldest form of law, 37
on the origin of the law of inheritance, 112.
Maitland, on the English actions and the substantive law, 12, 275
on formalism in English law, 259
on legal reforms of Henry II, 272
on customs of the manor as law, 160
on the Magna Charta as a deed of grant, 148.
Malo ordine tenes, 258.
Mancipatio, in the Twelve Tables, 256.
Mandatum, 262, 263, 481.
Manor, customs of, as law, Maitland on, 160.
Mansfield, Lord Justice, 290, 354.
Manu, laws of
as a declaration of law, 149.
Manufacturing establishment, 503.
Manus of ihefilius or the jilia familias, 156, 159.
Mareschalli, custodia, fiction of, 276.
Market overt, 226.
Marriage with manus in Rome, 355
free marriage in Roman law, 262
religious and civil, 194.
Married women, rights of, 395
legal capacity of, under the German and French Civil Codes, 395.
Marshal, 290.
Marx, Karl, 209
attempt to show the necessity of socialism 204
on the socialist philosophy of history, 75
on the theory of value, 473.
Material law, 37.
Materialistic interpretation of history as to the form creating the legal
proposition, 213.
Mathematics, juristic, of concepts, 324, 325.
Matrimonial régime, of Austrian Civil Code, suggested scientific study of,
499
of the French Civil Code, 326
of the German Civil Code, 126, 326.
Matrimonium iuris gentium, 193.
Mauczka, on the law of personality, 216, 360, 361, 362.
Mayer, Max Ernst, 12
on police norms, 74.
Means of production, 201.
Mecca, weakness of the state in, 72.
Mediaeval city laws, 249.
Members of the household, emancipation of, 395.
Menger, Anton, 4
on the need for preserving the family relation, 242
on Vertrauen aufäussere Tatbestände, 242.
Menger, Karl, on the economic nature of the contract, 223
on value, 222.
Merlin, on life insurance under the French Civil Code, 430.
Merton, Parliament of, 148.
Method, deductive and inductive, 472.
Methods of modern juristic science, result of, 489.
Mevius, 316, 317.
Meynial, history of the arrêtistes, 179
on the work of the arrêtistes, 494.
Military considerations, effect of, on the law of inheritance, 227, 230.
Mill, John Stuart, 210
on the basis of a general legal suience, 484.
Minimum wage laws, 240.
Mining law, 502.
Mitteis, interpretation of Gains (Inst. I, 1, 1), 439.
Modern codes, analysis of the contents of, 422 fol.
morphology of society in, 431.
Modern German legal science and the Historical School, 467.
Modes of trial, older Germanic, replaced by new ones, 273.
Mommsen, 31, 85, 260, 436
on the meaning of iuspublicum, 436
Roman Staatsrecht, 31, 85, 260.
Monopolies, private, 389
state, 376, 387.
Montesquieu, on the constitution of the state, 154
Esprit des Lois, method of, both deductive and inductive, 473.
Mores and customary law, 440 fol.
Brie on, 440
Pernice on, 440.
Morphology of society, in the modern codes, 431.
Mortgage, compared to the fiducia of Roman law, 287.
Moses, laws of, as a declaration of law, 149.
Municipal socialism, 240.
Municipia, creation of, as the beginning of the unified Roman state, 158.

Nachgiebiges Recht, 186.

Nalyschew, 141.
Napoleoni, 433.
Napoleon III, as governing a state which is in part in opposition to society,
153.
National-Socialist party in Germany, 201.
Natur der Sache (nature of the thing), 357, 467.
Natural law, 16, 19, 159, 357, 416-425
as a constituent element of the modern codes, 416-422.
Natural Law School, 16, 19, 417 fol.
Naturalis obligatio, 105.
Naturalis ratio, 357.
Navigation Acts, the, 242.
Negotiorum gestio, 266.
Nexum, in the development of, 107.
Noeldeke, on the power of the state among the Arabs, 72.
Non-legal norms, 39, 40, 41, 55, 62, 73, 79, 80, 129-132, 154, 164-166,
168, 192-194, 370, 406
basis of, 406
 that are in conflict with state law, nature of, 370
converted into legal norms, 168
enforcement of, by the courts, 192, 194
ethics, universal sphere of, 80
and the inner order of the associations, 151, 156
judicial decisions based on, 129-132
organizing force of, 55
sanction of, 62 fol.
limited sphere of, 79.
Norms, and the inner order of association, 40, 55, 137, 152-154
of conduct, 61, 198
that constitute the inner order of society, 152
of the first rank and of the second rank, 137, 152, 154
arising from the nature of the thing (aus der Natur der Sache), 195, 357
method of creation of, 358
creation of norms of conduct, influence of dominant groups upon, 360
the
binding force of, 364
administrative action (Eingriffsnormen), 368
binding force of social, 363 fol.
changes in the meaning of, 406
changes in the wording of, 407
based on customary observance, 406.
Norms for decision, nature of, 121
and the inner order of the associations, 122, 123, 137, 154
as rules of conduct for the courts, 122
and norms that are rules of conduct, 61, 122, 198
created by mean of universal-ization and reduction to unity, 124
arising from the clash of the spheres of influence of several associations,
128
and judicial decision, 127, 173
projection of, to cases that are only approximately similar, 133
and the legal proposition, 171-175
and the facts of the law, 172, 348
adoption of, from foreign law, 183
effect of publishing in statutory form, 183, 184
and social law, 193, 194
 in English law, 288, 289
and state law, 149 fol., 368, 370.
Norms, legal (see "Legal norms").
Norms, non-legal (see "Non-legal norms").
Norwegian books of law, 253.
Nothnagel, 71
on enforcement of law by social groups, 66, 122
Exekution durch soziale Interessengruppen, 66, 122
on decisions according to non-legal norms, 132.
Novakovic, on the Udawa, among the southern Slavs, 108.
Novel disseisin, 293.
Nulle terre sans seigneur, 382.
Nürnberg Court of Commercial Appeals, 199.

Oath, with oath-helpers in the real actions and in the real actions and in
debt, 273, 278.
Obligation and liability, 104 fol.
Ofner, investigation of the sense of right and law (Rechts gefuhl), 506.
Opinio necessitatis, as the characteristic feature of the legal norms, 165,
169.
Otto I, at the diet of Stela, 147.
Ownership, actions claiming, 306
concept of the Historical School, 328
of the agerpublicus, 306
and possession, 93, 94, 96, 101, 103, 305 fol, 380, 381, 382
protection of, 94 fol.
Roman concept of, in the Middle Ages, 305 fol.
 state origin of, 380
Windscheid's definition of, 328 (see "Possession").
Ownership of land, 29, 99, 100, 156, 157, 256, 305 fol., 307
concept of, in English law compared with that of the Continental common
law, 299
concept of the Roman jurists, 100 fol., 305 fol., 328
under the later imperial constitutions, 307
ownership of the solum Italicum, 100 fol., 305, 328
ownership of the solum provinciale, 305 fol.

Pachman, writing on Russian customary private law, 141.

Pacta, distinguished from contratus, 193.
Page, William Herbert, liv.
Pais, on the text of the Twelve Tables, 254.
Pandectists, systematism of the, 338.
Pandectology, 340.
Pandects of the nineteenth century, method of adaptation of Roman law,
322
as the basis of the German Civil Code, 493.
Papin, Denis, 408.
Papinian, 324, 438 fol.
Parke, Sir James (Lord Wensleydale), on the nature of English juristic law,
291.
Parliament, English, nature of the resolutions of, 137
of Merton, on question whether law can be created or modified by
resolution of Parliament, 147
of Oxford, on issuing of
new writs, 276
of Westminster, on issuing writs, 276.
Partikuläres Recht, 18.
Paterna paternis, materna maternis, 229.
Paternal power, extent of, in Bukowina, 370.
Patria potestas, 228.
Paulsen, on juristic faculties, 7.
Paulus, 439, 441.
Peasants, emancipation of, 391.
Penal law, 376.
Penalty, effect of conversion of, into payment of damages, 20
as sanction, 20, 64, 67.
Perfect legal system, the doctrine of, 324, 335, 430.
Pernice, on mores, consueludo, and customary law, 440.
Personality, rights of, 360 fol.
Peter the Great, 153.
Pfaff, on the social morphology of the modern codes, 427.
Philosophy of history, socialist, 75.
Physiocrats, 410, 417.
Pignus, 257.
Planiol, on unjust enrichment, 217, 218.
Plébiscita, 436.
Pledge, as security in credit transactions, 69
right of, in England, 69.
Political geography and the sociology of law, 505
Ratzelon, 505.
Pollock, Sir Frederic, analysis of the psychological process involved in the
making of a contract, 223
on English case law, 294
on the common law as compared with the civil law, 202, 293
on consideration in real contracts, 481
writing on the limitations upon the lawmaking power of the common law
judge, 181.
Pomponius, on the disputano fon, 176
Enchiridion, 180
on the proprium ius civile, 437
on the source of the ius civile, 261.
Pontifices, the Roman, 397, 478.
Popular consciousness, 17, 205, 444, 448.
Popular conviction, common, and customary law, 448.
Portalis, on life insurance under the French Civil Code, 430.
Possession, actions claiming, 306
defined, 93
as a fact of the law, 85, 93 fol.
Goethe on, 92
law of, relation to economics, 92
and ownership, 94 fol., 101, 103, 306, 380, 381, 382
distinguished from ownership, 94
in Roman law, 95 fol.
in mediaeval German law, 95 foL
legal relations of, in the Germanic system of landholding, 99 fol
protection of, 93, 94, 95, 96, 97, 381
protection of, under the Swiss Civil Code, 95, in England, 95 fol, under
Roman law, 96 fol., under mediaeval German law, 95, 96 fol
recognition and protection of, under the German Civil Code, 94, 95,
under the French Code de Procédure Civile, 94, 95
recognition and protection of, under Roman law, 93, 95, under the
Continental common law, 93, under the French Civil Code, 94
Randa on, 93
in Roman law, 306
Savigny on, 319
social origin of, 380.
Possessione, De, by Savigny, 319.
Pound, Roscoe, lv, Ivi, lvii.
Praecarium, 193.
Praejudiz, the power of, 136.
Praetor, law-making power of, 182, 267, 310.
Praetorian Edict, 137, 267, 270, 412, 413.
Praetorian law, the effect of, upon the law of contracts, 227
and ius civile, 283
and English Equity, 440.
Privacy, right of, 362.
Privilegium, 148.
Procedure, legal, 139, 140, 258 fol, 266 fol., 271, 272, 273, 274, 341, 405
fol.
primitive, 139
in the Continental common law, not a matter of state law, 405
as state law in the Preussische Allegemeine Gerichtsordnung, 406
in the revision of the Austrian Civil Code, 406
proceeding in which proof is made (Beweisverfahren), 272
proceeding at law, the function of the forms of, 341
in early Rome, 258
in the Twelve Tables, 140
oral, in Roman law, 266
written, in Roman law (see "Formulary procedure"), 266
Roman law, only in part a matter of state law, 405
earliest English, 271
earliest two stages, 271
method of making proof, 271
of the king's courts, 273
of the king's courts compared with legis actio procedure, 274.
Production, means of, 201.
Prohibition, of legal institutions by failure to mention in the code, 426 fol.
Projection, juristic, as a method of juristic science for adapting the law to
changes in society, 402-406.
Prokura, 492.
Property, private, abolition of, 201
the sacredness of, 242
law of, changes in, 396
liberty of, 236, 237, 239, 401.
Proposition, legal (see "Legal proposition").
Proprietary estates, creation of, by the state, 382, 383.
Proscriptive rights, 376.
Prudentes, the Roman, 179, 478.
Prussian crown lands, the contract of usufructuary lease of the, 497.
Psychological compulsion, 22.
Psychometry, 506.
Public law, 31, 40, 42, 53, 143
Romanci
sanction in, 21, 40, 143.
Public records, reliance upon, 226.
Puchta, li, 16 fol., 19, 177, 213, 230, 300, 327, 331, 338, 339, 357, 441 fol,
443 fol., 446, 449 (see "Historical School" and "Savigny")
theory as to the basis of legal development, 213
and legislation, 444
on rechtes Erbrecht and gerezliches Erbrecht, 230
and the norms based on the "nature of the thing", 357
on Roman law, customary, 441
Institutionen, 444 fol., 454
on customary law, 443 fol.
Das Gewohnheitsrecht, 443 fol., 454.
Pufendorf, 417 fol.
Purchase price, 49.

Qoran, 437.
Quare ejecit infra terminum, writ of, 288.

Raleigh, William, inventor of the writ quare ejecit infra terminum, 289.
Randa, on possession, 93.
Rank, law of, 461.
Ratzel, on political geography, 505.
Ran, 435.
Real contracts in English law, 481.
Real rights, prohibition of, by failure to mention in German Civil Code, 427
(see "Prohibition").
Reception of a foreign legal system, ways of, 409.
Reception of Roman law, 183, 297 fol., 305, 308, 315, 454
juristic science of, 315.
Recht, 23.
Rechtes Erbrecht, 229, 231.
Rechtsbewusstsein des Volkes (popular legal consciousness), 17.
Rechtsenzyklopädie, and sociology of law, 480.
Rechtsfähigkeit, by Ehrlich, 92.
Rechtsgebiet and Staatsgebiet, 133.
Rechtsgefühl, 506.
Rechtsgeschäft und Irrtum by Zitelmann, 222.
Rechtshobeit, 133.
Rechtsprecher, 178
the Scandinavian, 248.
Rechtswissenschaft, theoretische, distinguished from praktische
Rechtslehre, 4.
Reduction to unity, 314 fol.
defined, 253.
Reform of legal studies in Austria, 483.
Reglementierung, 424.
Reglementierungsbedingungen, 185.
Rei vindicatio, basis of, 258.
Réintegrande, 94.
Representation in Roman law, 407.
Res iudicatae, 458.
Resistance to the state, 418.
Respondere, in Roman law, 266.
Ricardo, on the theory of value, 473.
Richtiges Recht, 204, 357.
Rights, innate, Austrian Civil Code on, 360
of married women, 395
of personality, creation of norms as to, 360
protection of rights of personality, 362.
Rodbertus, on the socialist philosophy of history, 75.
Römisches Staatsrecht, by Mommsen, 85.
Rolle, Lord Chief justice, developed the action of ejectment, 279, 288.
Roman household, the development of the inner order of, 156.
Roman juristic science, three functions of, 7, 266, 341.
Roman jurists, systematism of, 332.
Roman law, 31, 85, 93, 96, 107, 108, 140, 156, 178, 179, 182, 183, 184,
193, 217, 253, 254, 255, 256, 258, 261, 262, 264, 266, 269, 270, 287,
297, 302, 305, 306, 308, 315, 326, 332, 405, 407, 440, 454, 458 (see
"lus")
administrative law, juristic science of, 260
application of, to existing legal relations, 302
compulsive and non-compulsive law, 264
contractus and pacta distinguished, 193
early law of contract, 256
criminal law, 269 (see "Penal law")
customary law, according to the Digest and the Code, 440
damages, law of, 217
development of, 253
English law compared, 254
family law, 261, 262, 266, 326
fiducia and mortgage compared, 287
glossators, methods employed by, in the reception of, 308
guard-
ianship in ancient, 405
Historical School, importance of, in the view of the, 458
inheritance, early law of, 256
distinction between the civil law and the honorary law of inheritance, 438
jurists, creation of law by the, 178, 17, 91, 184, 260, 261, 332
perfection of, the work of jurists, 184, 269
juristic science of the reception of, 305
land law at time of the Twelve Tables, 256
legal document and development of law, 266 fol.
manus iniectio, enforcement of payment of debt by, 108
 mediaeval law compared, 254
nexum, 107
partnership, law of, 262
penal law, as state law, 405
perfection of, a product of the labors of the jurists, 184, 269
Praetor, creation of law by the, 182
Praetor, law-making power of the, 182
procedure, 140, 258, 266, 405
public law (Staatsrecht), 31, 85, 269, 270
public law, the juristic science of, 270
reception of, 183
reception of, and the Historical School, 454 fol.
reception of, effect of, upon juristic science, 297
representation in, 407
resort to law, prerequisites to, in early Roman law, 258
sales, law of, 262
source of the legal material of, 260
subject matter of, 254
state of, at time of Twelve Tables, 254, 255, 256
state of the tradition of, 254.
Romanist juristic science, as the point of departure of the work of Austin
and of Amos, 484.
Romanistic: juristic science, as a general science of law, 480.
Royal courts, 276.
Rumpf, on the methods of juristic science as compared with those of pure
science, 360.

S
Sabinus, 260, 324, 338.
Sachmiete, 262.
Sachsenspiegel, 144, 147, 251 fol, 260, 263, 315, 475, 487
and the law of the time, 487
on creation of law by the state, 147
the law stated in, 260
on the popular will as law, 144, 147.
Sachwucher, in the German Civil Code, 432.
Sadruga, 40, 161, 194, 371, 499.
Sale, as a credit transaction, 69, 98.
Sale on approval, in the German Civil Code, 432.
Sales, Roman law of, 262.
Sales of Goods Act, 389.
Salic Francs, law of, 347, 475.
Salmond, Science of Law, 484.
Salpius, 365.
Sanction, 20-23, 61-64, 67, 68.
Satisdatio, 257.
Savigny, li, 13, 16 fol., 19, 177, 213, 300, 301, 319, 320, 329, 330, 331,
339, 357, 414, 422, 443, 444, 446, 459, 502 (see "Historical School")
Beruf (Vom Beruf unserer Zeit für Gesetzgebung und Rechtswisschaft), 414,
443 fol.
De possessione, 319
Historical School and historical method, li
on the application of Roman law to modern life, 300
on codification, 422
on legislation, 422 fol., 444, 449 fol.
on the norms based on the "nature of the thing", 357
on the origin of law, 16 fol., 177, 213, 443 fol.
on the practical science of law, 19
on the pure science of law, 16, 319
on the reception of Roman law, 454 fol.
on the study of the law in its historical connection, 502
his concept of the legal transaction, 330
his distinction between the sound part of juristic science and the unsound
part, 459
his doctrine of essential error, 329
 his Kollegienheft, 446
his theory of juristic science as a source of law, 331
on state law and juristic law, 413
his systematism, 332, 339
on the twofold element in the law, 414
System des heutigen römischen Rechts, 320, 443 fol
Beseler's criticism of, 461 fol.
Scandinavian countries, recognition of German Civil Code, 183.
Scandinavian sagas, 30, 215.
Schelling, influence upon the Historical School, 330, 445, 504.
Schuld, distinguished from Haftung, 104 fol.
Schulze-Delitsch associations, 424.
Schumacher, on the law of agricultural usufructuary leases, 398.
Schupfer, writing on the first appearance of true statutes in the Middle
Ages, 146.
Schwabenspiegel, 252.
Science, aims and function of, 9, 203, 271, 359, 360
Rumpf on the methods of juristic science as compared with those of pure
science, 360.
Science, juristic (see "Juristic science").
Science of law, classification, 1, 3
chief function of, 474
theoretical, ethnological science, 474 fol.
general, and the codes, 483
general, and particular systems of law, 483
historical, 474 fol.
and the Historical School, 16
and juristic science, 3, 16, 25, 246, 274, 476
juristic science of the Continental common law as a basis for, 480, 484
John Stuart Mill on the basis of a general, 484
national, 482
theoretical and practical distinguished, 3, 4, 6, 16, 25, 246, 474, 476.
Senatus consulta as a source of law, 436, 347.
Senatus, consultum Macedonianum, 262.
Senatus consultum Velleianum, 389.
Sense of justice as the basis of law, 213.
Sense of law and right, 506.
Serfdom, 92, 388.
Sering, on the law of inheritance among the peasants of Germany, 492.
Sergeants-at-law, 278.
Seuffert, on judicial law-making, 177.
Shaw, 290.
Silence, acceptance by, 188
declaration of the will by, 187, 494
delivery by, 188
disclaimer by, 188
relinquish-mentby, 188.
Sirey, 403, 434.
Slade's case, 277, 279.
Slavery, 391, 404, 407.
Smith, Adam, on the Navigation Acts, 242.
Social consensus, 150.
Social courts, 152.
Social dynamics, 234.
Social insurance, 377.
Social justice, formulae of, 208, 210, 213, 259.
Social kingdom, 153.
Social law, 39, 42, 404
Gierke's distinction between social and individual law, 42
in the German Civil Code, 404
the living development of, and codification, 433.
Social morphology, contained in the codes, 426
state law or juristic law, 426-427.
Social norms, basis of, 406
general, the inner order of the associations, 151, 156
of the first rank, enumeration of, 154
of the second rank, enumeration of, 154
the various kinds distinguished from each other and from legal norms,
166 (see "Norms").
Social order, liii, 27 fol.
Social sciences, defined, 25.
Social statics, 234.
Social welfare, 240.
Socialism, Marx's attempt to show necessity of, 204
and collectivism distinguished, 238
state, 163.
Socialist philosophy of history (Marx and Rodbertus), 75.
Socialistic society, 58.
Society, defined, 26
as governed by law, 203
morphology of, in the modern codes, 431
norms of first order of, 211
rôle of, in the judicial decision, 201
norms of the second order of, 211, 212
socialistic, 58
and the creation of law, 388 (see "Law, creation of").
Sociology, 25, 202-204, 475.
Sociology of law, 25, 40, 41, 43, 103, 165, 167, 196 fol., 202, 203, 213,
218, 246, 300, 339, 340, 389, 470, 472, 473, 474, 475, 476, 478, 480,
481, 498, 501, 505
the chief object of the study of, 476
and history of law, 474
defined, 25
development of law as viewed by the, 202-203
and distinction between law and morals, 165 fol.
and English law, 218
and general theory of law, 480
and government of society by law according to justice, 203 fol.
and juristic science, 246, 276, 480
and juristic survey (Rechtsenzyklopädie), 490
and the living law, 501
methodology, 505
and the old surviving law, 498
treatment of possession and ownership, 103
as to void and voidable relations, 196.
Somme Rural, 252.
Sources of law, 83, 437, 444, 452.
Spartacus, 201.
Specker, on the law of personality, 360.
Spencer, Herbert, 150, 392, 400, 401.
Staatsgebiet and Rechtsgebiet, 133.
Staatslehre, Allgemeine, distinguished from political science, 4, 8.
Staatsrecht (public law in the narrow sense), 4, 8, 31, 40, 42, 53, 85, 143,
260
compulsion in, 21
Roman, 31, 85, 260
Roman, Mommsen on, 31, 85, 260.
Staatsvolk (people of the state), 378.
Staedelscher Erbfall, 321.
Stammgut, 230.
Stammler, definition of despotism, 374.
Standesrecht, 461 (see "Rank, law of ").
State, the action of the, through law, 367
administration of justice by the, 139 fol., 143
administration of law by the, 139 fol.
the, and the church, 65
the commands of the, effectiveness of, 375, 377
control over state tribunals, 139 fol.
state-created ownership, 383 fol.
the, and the disencumbrance of the soil, 382, 384
the, and creation of great proprietary estates, 383 fol.
creation of law by the, 14, 24, 39, 40, 61, 133, 137, 138, 139, 143, 146-
150, 160, 176, 177, 182, 184-196, 197, 388, 389 fol. (see "Legislation")
the, as the creator of economic rights, 376, 379, 387
development of the, 158
earliest form of the, 30
the, and emancipation of the peasantry, 384
the feudal, 32, 34
function of the, 138
Goethe on the coercive order of the, 71
housing policy, 240
inner order of the, 42
the, and law, 137
the, and the law of copyright, 387
law-making monopoly of the, 39, 147
the, and legal development, 185
limitations upon the power of the, 373, 375
409, 410, 418
 legislation by the, in primitive times, 139 fol
limitations upon the effect of the coercive order of the, 71
the, as a military organization, 138
monopolies, 376, 387
the state an organ of society, 150, 153, 154, 372
the creation of the municipio, as the beginning of the unified Roman state,
158
origins of the, 138
the, and the peace of the state, 378
the, and private monopolies, 387
the, and prescriptive rights, 387
socialism, 163
cooperation of state and society in the creation of law, 388
the, as the source of law, 138, 139
the state and Staatsvolk (people of the state), 378
weakness of the, among the Arabs, 72, in the Orient, 72, in the Polish
Republic, 72.
Statistics, legal, and the science of legal documents, 496.
Statutaries, school of, 189.
Statute, content of a proper, in the doctrine of the Historical School, 450
as a contract, 148
non-obligatory content of, 169, 358, 414
oldest form of, 148
as a source of law, 83
supremacy of statute law, 389
as will of the state, 148
what the law is, 451.
Statute of frauds, 389.
Statutes, in the Carolingian Empire, 147
containing only general directions, and judicial decisions, 187
relation of statutes in England to juristic law, 288
German imperial, 144
in mediaeval Germany, 147
ineffectual statutes of the Frankish kings, 145
and judge-made law, 183
juristic law in, 183
prescribing the content of legal documents, 424
 Hardcastle on the interpretation of, 291.
Stein, 153.
Stela, diet of, 147.
Stephen-Jenks, New Commentaries on the Laws of England, 299.
Stipulation, 224.
Story, 290.
Stowall, 290.
Strikes, 66.
Struensee, 153.
Struve, 317.
Stryck, 317, 479.
Subjection, as a root of the law of contract, 106.
Subjective law, 23.
Suetonius, on the ius respondendi, 266.
Suffrage, universal, 236
woman's, 236.
Summarissimum, of modern usage, 460.
Sunday, cessation of labor on, 371.
Swedish books of law, 253.
Systematism (Systematik), 324, 331-337, 412, 477, 80
achievement of, 333
effect of, 335
and the "general part" of the system of private law, 334 fol, 447
value of, 337.

Tacitus, 30, 31, 32, 111.

Tarde, on human progress as based on invention by an individual and
imitation by the mass of mankind, 407.
Tarifvertrag (collective labor agreement), 67, 161.
Tatbestand and Begriffsbestimmung (constitutive facts and definition)
distinguished, 358.
Technique, judicial, 246
of drawing up legal documents, 246.
Tenure, in English law, 299.
Testament, last will and, 230, 397, 400.
Testament, the Roman, 193, 262, 415
testamentum per aes et librarti, 193
Roman, in modern law, 415.
Testamentary disposition, 230
liberty of, 397, 401, 431.
Thol, on Handelsrecht (commercial law), 355.
Thomasius, attitude towards Roman law, 417.
Thun, Count, reform of legal studies in Austria, 483.
Tissier, on the rights of the married woman in France, 395.
Tractatus de legibus, of Glanvill, influence of, on English juristic law, 292.
Trade unions, 65, 161, 240.
Transactions contrabonos mores, 432.
Trespass, 151, 277 fol.
Treu und Glauben, as a source of the living law, and cause of changes
therein, 401.
Treugelöbnis, 107.
Treuhandgeschäft, 114, 170, 229, 232, 285 (see "Trusts").
Trial by combat, 273.
Trover, 218, 278.
Trucksystem, 240.
Trusts, 114, 161, 170, 229, 232, 285, 286, 427, 428.
Twelve Tables, 29, 50, 134, 140, 215, 248, 254, 255, 256, 407, 437, 475,
487
law of inheritance of, 29, 50
norms of, in modern law, 134
procedure of, 140
interests protected by the law of, 214, 215
and the law of the time, 248, 254, 255, 256, 475, 487
 state of the text of, 254, 407
interpretation of, as juristic law (i. e. as ius civile).
Two-sword theory, 147.

Udawa, 108.
Uberei gnungs vertrag, 221.
Übergabe, stillschweigende, 188.
Ulpian, 436, 441 fol
classification and definition of law, 436
De officio proconsulis, 441.
Unenforceable contracts, 110 fol.
Unger, 339, 357, 483.
Unity, reduction to, 251, 253, 312
reduction to, as a method of juristic science, 251.
Universal suffrage, 236.
Universalization, 312 fol.
as the basis of the creation of norms, 359
defined, 253, 263
effect of, upon the system of actions in Roman law, 265 fol.
in English Equity, 290
juristic, purpose and effect of, 263
as norms for decision, 263
as a method of juristic science, 251.
Universitas personarum, Gierke on, 314.
Unjust enrichment, 217.
Unmoralische Vertrag, Der, Lotmar, 130 (see "Contract, immoral").
Unverbindlicher Gesetzesinhalt, 169, 358 (see "Statute, non-obligatory
content of").
Urheberrecht, 234 (see "Copyright").
Usage, 83-88, 361, 444, 445, 447, 461, 474
as a fact of the law, 85
as a source of law, 83
of the association, as the basis of rights of personality, 361
the basis of the order of the association, 86
as the basis of the house community, 87
in the doctrine of the Historical School, 444, 445
Jellinek on, 86
not a necessary element, but an external characteristic of customary law,
447-461.
Usance, 492.
Usufructuary lease, 398.
Usury, 58, 69, 389
canon law prohibition of, 389.
Usus modernus, 322, 483
as the basis of the Prussian, the French, and the Austrian Civil Code, 483.

Value, 195, 222, 223, 473

and the English classical school of economists, 222
concept of, of the Austrian School, 223
Marx on the theory of, 473
Karl Menger on, 222.
Vangerow, 177, 327, 338, 479.
Vengeance of blood, 72.
Vertrauen auf äussere Tatbestande (reliance upon collateral facts), 98, 226,
233, 242.
Verwaltung s gemeinsch aft, in the German Civil Code, 360.
Villeinage, 316, 407.
Vindicatio rei, 265.
Vinkulationsgeschäft, 344.
Vocabularium iurisprudentiae Romanae, 439.
Void relations distinguished from voidable or punishable ones, 196.
Volksbewusstsein, identified with social trends of justice, 205
as the source of law, 444.
Volksgeist, 457.
Volksrecht, 444.

Wach, on the English firma, 300.

Wächter, 357, 483.
Wage laws, minimum, 240.
Wager of law, 278.
Waper, Adolf, on the activity of the state, 139.
Walras, 222, 473.
Warterecht, inchoate right of kinsmen to inherit, 112.
Weistum, 148.
Wellspacher, reliance on collateral states of fact, 98, 226.
Wergild, 108, 347.
Werkvertrag, 49.
Westminster, second Parliament of, on the writ in consimili casu, 277.
Will and testament, last 230, 397, 400.
Willes, 290.
Windscheid, 19, 105, 177, 217, 327, 328, 331, 333, 338, 340, 357, 425, 479
on the claim based on unjust enrichment, 217, 233
on creation of law by the judge, 177
on naturalis obligation 105
definition of ownership, 328
on juristic science as a source of law, 331
on the norms based on the Natur der Sache, 357
tribute to, 340.
Wlassak, on the formula in ius concepta, 352.
Wohlfahrtestaat, 203, 238, 417, 422.
Wohlfahrtsgemeinschaft, 238.
Wolf, 417, 421.
Woman's suffrage, 236.
Women, right of, to take by inheritance, 230.
Working-men, legislation for the protection of, in France and Germany,
110, 371.
Writ in consimili casu, 273.
Writs, issuing of new, 276
original, 273 fol., 276.
Wundt, psychometry, 506.
Wurzel, 133, 402
Denken, on juristic projection, 133.

Zachariae, 434, 483.

Zallinger, on early procedure, 140.
Zarathustra, laws of, as a declaration of law, 149.
Zasius, Ulrich, 309, 315, 396, 479
method of, 315
on villeinage and slavery, 315
on the Lieferungs und Gattungskauf, 396.
Zeitschrift für geschichtliche Rechtswissenschaft, 504.
Zeitschrift für Rechtsgeschidte, 504.
Zitelmann, 222, 227, 469.
Zitelinann, discussing, in Rechgeschäft und Irrtum, psychological processes
connected with dispositions by contract, 222
on the validity of customary law, 469.
Zitelmann's conception of the contract, 227.
Zwangsnorm, 21.
Zwingendes und nicht zwingendes, Recht, 189, 404.