This section is from the book "Science Of Legal Method", by Ernest Bruncken. Also available from Amazon: Science of Legal Method.
A recent writer arrives at some remarkable conclusions based on natural law; e.g. that a foetus is owned by the mother and that the law has no control in the matter until it becomes a legal subject: Poche, "Die Stellung des Kindes gegenuber den Eltern vom Standpunkte des Naturrechts," Berlin, 1907.
A further illustration of the text is furnished by descent per stirpes. See Kohler's description of "Stammteilung" in his "Lehrbuch der Rechts-philosophie," 135. For a variety of other examples showing that natural law was regarded by Roman jurists as a part of positive law, see Kor-kunov, "General Theory of Law," 123 seq.
17 The confusion in early codes of regulations of what, in a later period, are called liberties, with duties, has often been pointed out. See, particularly, the Pentateuch, Code of Manu, and the Koran. Cf. Dig. 1, 2, 8, et seq. The present-day tendency seems again to be in the direction of narrowing the field of liberty. This tendency may be expected to increase to the extent that modern society inclines toward the solidarity of primitive ages. The psychologic basis of this movement will, of course, be entirely different from that which actuated primitive man. The primitive "law of participation" which had a mystical quality which ignored the logical rule of contradiction, will be replaced by a material law of participation founded on economic concepts. Cf. Levy-Bruhl, "Les fonctions mentales dans les societes inferieures," Paris 1910, pp. 68 seq., 425.
18 There is another abuse of logic which is as objectionable as the kind above pointed out. It consists in the over-refinement of distinctions to a point where the law in its system becomes too esoteric even for the mathematics, and mechanics. The maxim that every beginning or change must have a cause is comparable to the rule of no liability without fault. The rule that something cannot come from nothing has its counterpart in the doctrine that one cannot transfer more than he owns. The law of excluded middle, that everything either must be or not be, which presents sufficient opportunities even in the field of logic for misapplication, as every undergraduate knows, has been carried over into many rules of law. In fact, the entire field of common law is one of excluded middle.
The Euclidean mathematics and the Aristotelean logic now appear to be in discredit, but in an earlier generation they doubtless have exercised an important part, in the manner suggested, in the construction of juridical rules by way of analogy and description. The difficulty of their employment in the law lies first, in the narrowness of their operation, and second, in a difference of objects to be attained by these formal sciences, on one hand, and the law, on the other. This may be illustrated by the fact that where in logic there are two possible alternatives, three will be found in mathematics, and an indefinite number in jural relations.19
3. In the effort to explain legal institutions by reason a purely deductive position is taken. Thus as del Vecchio puts it, "the formal concept of law is implied in the knowledge of any juridical fact whatsoever" . . . , it "is not created by the fact in learned. The case system of law lends itself especially to this tendency, where distinctions urged by the necessities of counsel have in some fields reached the point that logical generalization is impossible, and each case, in effect, in that field, is a general rule of law. See, for an example of this, Calumet and Chicago Canal and Dock Company v. Conkling, 273 111. 318.
19 The necessity of the deductive method for making practical and comprehensible the data of legal science is, of course, admitted. The point under discussion will not be confused with that question. Cf. Cohen, "The Place of Logic in the Law," 19 Harvard Law Review 622 seq.
which it attains concrete existence."20 The attitude here represented is entirely unhistorical, and, in the main, unfruitful for legislative objects. It may well be that mathematical or logical form constitutes a prius, but it follows, by no means, that the content of these forms is determined by preexistence of form. It is conceivable that organic life may exist without the social phenomenon of law, and to assert under such conditions the logical priority of law, requires the assertion equally, for the sake of consistency, of all other possible relations and conditions.21
Law is not a supernatural product or an issue of pure reason; it is not even the mandate of a sovereign, or the will of the people. We shall not here add another effort to hundreds of attempts to define the law22; but we urge with considerable confidence that the standard of intellectualism unaided by experience, at one pole, or fortified (by rare possibility) by intuitional insight, at the other, can never become a profitable basis of action for the legislator; and that such a procedure can have no beneficial practical issue except on the basis of disguised motivation.23
20 "Formal Bases of Law," cap. x.
21 The objection of de Maistre quoted by del Vecchio (op. cit. p. 117) and said by him (del Vecchio) to rest on an old sophism, has all the appearance, although in left-handed style, of a complete answer to the attempt to make a universal of the concept law. De Maistre says: "I have seen in my life, Spaniards, Italians, and Russians, and I even know, thanks to Montesquieu, that there are Persians, but as to man, I declare that I have never come across one in my life. If he exists, I don't know it."
22 For collections of definitions, see Rumelin, "Eine Definition des Rechts"; Baumstarck, "Was ist das Recht?"; Holland, "Jurisprudence" 11th ed., pp. 20, 43; Korkunov, "General Theory of Law," (Hastings' tr.) pp. 79 seq.; Trendelenburg, "Die Definition des Rechts"; Pound, "Theories of Law," Yale Law Journal (Dec. 1912).
23 Berolzheimer has pointed out the great social and political importance of this principle, giving credit for priority of statement to Georg Adler, "Die Bedeutung der Illusionen fur Politik und soziales Leben," Jena, 1904 - "The World's Legal Philosophies" (Mrs. Jastrow's tr.), p. xliv. It may be suggested that the same idea is universal in nature,