This section is from the book "Science Of Legal Method", by Ernest Bruncken. Also available from Amazon: Science of Legal Method.
That illusory ideas and programs scientifically untenable are able very frequently to produce results in the world which are, or at least appear to be, valuable in the light of finite wisdom has often been manifested. It was the deductive method with its theory of personality sprung from the virgin fountain of pure reason which served to free the State from the Church, established a theoretical equality among States, and gave a philosophical tone to the eighteenth century declaration of "rights of man" embalmed in political documents of the age. The after-effects are clearly visible at the present moment. These ideas did not take and retain hold in the political and economic life of the German States as in the Latin countries and in Anglo-America, and the result has been translated into what appears to be a contest for commercial supremacy which is now in the process of arbitration by the most ancient of courts - the Supreme Court of War.24 The role which these concepts have played in the private law of Common Law countries, and the difficulties which have been encountered in a conceptual change of front from individualism to socialization of legal institutions, a movement which is only in the beginning stages, are chapters in a narrative which in recent years has been made quite familiar.25 as may be seen for example in the inversion of the image on the retina, the apparent motion of the sun around the earth, refraction of light, protective coloring of plants and animals, etc. Deportment, morals, and fashion are so completely saturated with this principle that it may be said that they have no other rationale. Cf. also, Dernburg, "Die Phantasie im Rechte," 2d ed., Berlin 1894.
24 "That ideas are more effective and important agencies in human affairs than events however massive-that the Justice of Plato, and the Law of Nature and of Reason of the Stoics, will continue to influence men's thoughts and actions long after all Pragmatic Sanctions and Golden Bulls are dusty and forgotten- this is a conclusion willingly embraced by most philosopheis, and by some historians." - Hollands, "Nature, Reason, and the Limits of State Activity," 25 Phil. Rev. 645.
25 In America, especially by Pound. See his "The Scope and Purpose of Sociological Jurisprudence," Harvard Law Review, 1911-12, among numerous other writings of the same author.
That the attempt to explain the edifice of law by reason is one of the numerous variants of natural law also hardly needs to be mentioned.26
It is assumed, furthermore, by the point of view under inspection, that history is the more or less perfect development of metaphysical purpose, of idea,27 of an innate quality of rationality in human nature, or of a mechanical expression of social logic,28 and it is thought that the chief function of historical investigation is to demonstrate and amplify the deductive or ideal process.
4. It remains to speak of the evaluation of legal institutions by reason. The processes of criticism and explanation are very similar. Because of the different and often conflicting philosophical attachments which have grown up as the problems of society are considered from one angle or the other, and because the method of explanation, as we have found it convenient to pursue this discussion, relates concrete reality with a large outline of life - with the oscillations of centuries from the point of view of external nature, or with a governing principle in the sphere of reason, - the method of criticism according to reason is given a separate place.
This method differs chiefly from the rationalistic method of explanation in that it descends to details. It passes from the domain of ideas and abstractions to a world of concrete things. It is not sufficient for the purpose that legal phenomena be encompassed under a bloodless concept, but they must be practically weighed and measured and rated according to their worth. But the process of transition is full of pain and perils. In passing from the sphere of idea to the world of actual things an abridged and unfathomable gulf must be entered. The journey may mean forget-fulness, and emergence new birth. Therefore, the attempt to evaluate legal notions and practices by the aid of reason alone, is likely to become a subjective method which may claim a far-removed philosophical ancestry, but which has lost its metaphysical documents of title.29
26 See, for the applications of natural law based on "common sense" in the creation of extra-constitutional limitations, protection of vested rights, liberty of contract, etc., Haines, "The Law of Nature in State and Federal Judicial Decisions," 25 Yale Law Jour. 617-657.
27 Hegel, "Grundlinien der Philosophic des Rechts," pp. 18 seq.; "Phanomenologie des Geistes." Cf. from another camp in legal philosophy, del Vecchio, "Formal Bases of Law," p. 326: "we should look upon history, in its organic character, as the unfolding of an implied purpose. In this sense, the series of particular positive laws appear to us as unified by the tendency toward the development of natural law. This tendency grasped by the mind a priori as an absolute and universal necessity, superior and anterior to any application in experience, develops in it through a long and laborious historical gestation."
28 Tarde, "Les Transformations du droit," cap. vii, 7th ed., Paris, 1912.
There are two leading logical varieties in modern times of the rationalistic method, reducible again to many subdivisions. The first is the eighteenth century type of natural law distinguished from other types by the effort to discover fixed concrete rule of law superior to positive law.30 The second variety is one which has an important and arguable philosophical basis that has been made familiar by the phrase "law with a variable content."31 However, the topic of economic movements of the world have invariably required, and been supported by programs, in which the event has always disclosed that the results attained have been miscalculated,34 the illusion of purpose35 when translated into fact became as tough a datum of experience as if fortified by an unassailable metaphysic.