29 As, for example, Boislel, "Cours de droit naturel," Paris, 1870, pp. 28 seq., who allies himself with Rosmini, and with general ideas which go back to Plato. Cf Geny, "Science et technique en droit prive positif," seconde partie, Paris, 1915, pp. 280 seq. See also, Bergbohm, "Juris-prudenz und Rechtsphilosophie," i, p. 35.
30 Based usually on a deductive principle gratuitously or fancifully derived, as is the case even with Boistel, who starts from "the inviolability of human personality." We must here record our failure to understand why the life principle extending even to crystals has not been recognized instead of drawing the limits about human beings, many of whom, in the lower stages at least, are hardly superior as social types to anthropoids.
31 M. R. Cohen, "Jus Naturale Redivivum," 25 Philosophical Review 761; Stammler, "Die Lehre von dem Richtigen Rechte," Berlin, 1902, pp. 137 seq. (Vol. viii in this series.)
According to del Vecchio the concept of law does not involve a material content, since that would destroy the apodictic validity of the principle natural law is one of such amplitude, and, also, one made so familiar in all literatures32 that our present purpose is satisfied in noting this intellectual phenomenon in its proper order in this discussion, without any effort further to indicate its influence.
Summing up, the attitude of the whole period antedating the rise of historical studies was, in general, to regard all phenomena of social life as governed in their existence or their worth by laws readily discoverable in the bosom of external nature, or in the depths of the human mind. Exact information was entirely lacking touching either the causes or effects upon social life of legal phenomena. The facts were assumed, and generalizations were freely erected on these insecure pedestals.33 Theories of law, of sovereignty, and of society contested with rival theories. States were overthrown, constitutions were born, and economic, legal, and political creeds blossomed, and bore their fruits in this cavernous soil.
So far as there is implied in these statements a misguided or disguised motivation, there was not, however, anything unreal in this process of social upheaval. The clash of armies, the rise and fall of oligarchies and tyrants, the flux and reflux of commerce, and the changing periods of economic dominance and dependence were very real facts. While the larger political and of law which involves only "the form of the idea of law, or that which necessarily appears in every juridical phenomenon." Law is, therefore, defined as "the objective coordination of possible acts among men according to an ethical principle * * * " -"Formal Bases of Law," pp. 217 seq.
32 See, especially, Bergbohm, "Jurisprudenz und Rechtsphilosophie," i, Leipzig, 1902, pp. 12 seq. 331 seq. (for England and America); Ritchie, "Natural Rights," 2d ed., London, 1903; Pulszky, "Theory of Law and Civil Society," London, 1888.
33 Cf. Comte (Charles), "Traite de la legislation," vol. i, p. 330. Buckle shows this in detail: "History of Civilization in England," vol. i, pt. ii, cap. xiii.
The rise of historical studies initiated a new method of thought. The purely deductive process which without experience was thought sufficient to account for the facts of social life, and which, likewise, assumed to be able to establish standards of value without investigating these facts, was replaced by the inductive procedure of history. This movement was all-embracing in scope; it affected not simply the social sciences but pervaded the whole domain of knowledge. Within the Historical School itself, the metaphysical element which inevitably enters every movement of large proportions to give it that rationalistic basis which seems to be demanded by the human mind, soon attempted to rise from the data of Roman law to a world-view of legal institutions, in a manner, as has often been pointed out,36 which resembled the deductive method of natural law.
The historical movement was quickly succeeded by positivism, on one hand, and evolutionary pantheism on the other. With the survival of an historically renovated form of Kantianism there was reached the stage represented at this moment in the field of legal philosophy, by two forms of realistic idealism - Neo-Hegelian and Neo-Kantian - and the various other types of idealism and realism.
34A sentence of Kohler's is in point: "the ambition of a half-barbarous Macedonian demolished the Persian empire, and a flood of Oriental culture poured out over the Occident." - "Die Entwicklung im Recht," xiv Grunhuts Z. 410 seq.
35 The inherent difficulty of forecasting, or even of explaining in social relations, the effect of conscious attempts to alter the course of human action is intensified if no effort is made to employ the various available sources of knowledge which deal with social facts; and "whatever social laws we may be able to discover will always be marked by a character of contingency much greater than in the case of other scientific laws." - Tanon, "L'Evolution du droit," p. 65.
36 Cf. Bergbohm, "Jurisprudenz und Rechtsphilosophie," i, pp. 480 seq.
So far as concerns legislative method there appears to be entire unanimity among all legal philosophers on the acceptance of experience. Differences will be encountered only in matters of detail on the procedure, and in the interpretation, of the results of experience. This fact is one of very great importance for the future of social institutions, and it may be expected when the profession of law arises to a "Weltanschauung," that the law itself, aided by the suggestion of new social ideas, will commence a development comparable to the progress seen on every hand in the domain of the natural sciences.
The possibilities of human endeavor if not boundless have not been bounded, and the future holds not only the hope, but the reasonable promise of the greatest expansion of man's material culture, development of human power over the forces of nature, unfoldment of new wants and activities, abolition of all metaphysical restraints on freedom of thought and action, progressive diminution of poverty and disease, and at last, attainment of a stage where material necessity has been effectually conquered and freedom actualized in its highest form.