This section is from the book "Science Of Legal Method", by Ernest Bruncken. Also available from Amazon: Science of Legal Method.
9 Grasserie, "Principes sociologiques du droit civil," Paris, 1906; "Prin-cipes sociologiques du droit public," Paris, 1911, p. 13.
10 Cf. Kuhlenbeck, "Natiirliche Grundlagen des Rechts und der Politik."
" 11 In this connection , see go an application of ideas of organic life to the social composition, Schaffle, "Bau und Leben des sozialen Korpers"; Spencer, "Principles of Sociology"; Espinas, "Les Societes animales," p. 128; Demoor, Massart, and Vandervelde, "Evolution by Atrophy," (Mrs. Mitchell's tr.), N. Y., 1899, pp. 7 seq.
2. Again, the attempt has been made, not simply to explain legal phenomena on the basis of unconscious nature, but to evaluate them by nature, predicating of legal ordinances and legal institutions, the quality of good or bad, as they conform, or fail to conform, to the natural order of things.13
It is clear that the law to be workable must recognize the order of nature in delimiting rights and duties, liberties and powers, and capacities and incapacities. To invest an infant with regal power, while an important ceremony for continuing hereditary succession, is of no significance otherwise at the moment. Legal relations to a very considerable extent are fashioned by the pattern of successfully asserted natural wants, capacities, and conditions of life. This appears plainly in all legal institutions and especially in a direct way in the field of the law of persons.14 The various forms of kinship relation, marriage restrictions, family, clan, and tribal duties-matriarchy, patriarchy, exogamy, endogamy, the levirate, patria potestas, agnation, perpetual
12 Incidentally, this point of view has the juristic mission of invalidating the imperative theory of law in its application even to civilized societies. Cf. Maine, "Early History of Institutions," Lects. 12, 13; Bryce, "Studies in History and Jurisprudence," ii, 44; Salmond, "Jurisprudence," 3d ed., pp. 48 seq.
13 Thus, from this standpoint, Aristotle recognized a class of slaves who were such by nature. "That being who by nature is nothing of himself, but wholly another's, and is a man is a slave by nature; and that man who is the property of another is his mere chattel, though he continues a man": "Politics," cap. iv, 1254a seq.
14 Cf. Dig. 1, 1; 1, 5, 14; 1, 5, 24; 1,7, 1; 1, 8, 2; et passim. Thus, it provided (Dig. 1, 7, 15, 3): "Moreover, a man ought not to arrogate someone else's freedman, nor a person who is older than himself; as (16 h.t.) the adoptive relation is only allowed between those persons between whom the natural relation might by possibility have existed." Therefore, Cicero says, adoption of an older person is not only "contra fas" but "contra naturam." tutelage, clan fraternity - together with their modern developments no doubt found their earliest suggestion in a rita discoverable, or thought to be discoverable, in external nature.
Process of time has materially altered the interpretation of nature, and on individual questions, such, for example, as that of human servitude, conflicting ideas of natural reason have sprung up; but the fundamental thought of the ancients (apart from religious commands and economic considerations which must have an explanation of their own), that restrictions upon liberty in the field of personal relations have an objective natural basis, remains valid into the present day.15 The varieties of matrimonial regime, disabilities of minors and married women, guardianship, support statutes, and the like, are patently based on natural incapacities, and natural duties, or powers.
In this direction, however, some fanciful explanations have appeared which attempt to explain or to criticize the rules and institutions of positive law by way of analogy with, or description of, the phenomena of the external world.16 The facts of nature cannot be ignored,
15 This objective basis of human relations represents the classical concept of natural law. SeeGeny, "Science et technique en droit prive positif," ii, 274.
16 Pythagoras furnishes one of the earliest examples. According to him justice is the equally equal number. Various interpretations have been given of this formula, and numerous attempts made to select the specific number intended. In passing, one more solution may be here recorded. The magic number symbolizing justice may well be the digit 9, which will be found, by the various manipulations to which it submits, always to result in itself. Thus 1 + 2 + 3 + 4+5 + 6 + 7 + 8 + 9 = 4(+)5 = 9. Again 9 + 9 = 1 (+) 8 = 9. And 9 X 9 = 8(+)l = 9. Lastly, progressive multiplication of the digits (1 X 2 X 3, etc.), and final multiplication or addition of the result, gives the same answer. Cf. Berolzheimer, "The World's Legal Philosophies" (Mrs. Jastrow's tr.), pp. 52 seq.
Illustrative of the proposition under consideration, it was said by Comstock, J. in Kimberley et al v. Patchin, 19 N. Y. 330: "No person can be said to own a horse or a picture unless he is able to identify the but it is always a token of an immature legal development when the juridical sphere is dominated by or confused with other fields of thought.17 Juridical law is autonomous, and as a human institution designed for regulation of human relations, it cannot be governed by nature or external facts any further than these facts are themselves manifested in legal relations.
The last stronghold of the influence of alien fields of thought upon the making and application of legal rules is the domain of the ancient formal sciences, logic,18 chattel or specify what horse or what picture belongs to him. It is not only legally but logically impossible to hold property in such things unless they are ascertained and distinguished from all other things." This rule, the court says, may be "fitly called a rule of reason and logic."
The concept of equivalence taken from nature has been a very important factor in the construction of legal rules. A complete investigation of this idea would be interesting and valuable. A single instance may be tendered. In the old common law an instrument under seal could only be discharged by a like instrument. Performance did not suffice (Leake, Dig. Con. 877).