So much, at least, is conceivable without enlarging the horizon of the factors of knowledge. From the standpoint of society as we now know it, this program it must be acknowledged has an Utopian quality; but yet it cannot be denied that the first steps have already been taken and that something of the kind indicated is the hope and wish of the average social philosopher. The fact also must be admitted that the process of realization must be one of centuries, of many centuries perhaps, if it is not even arrested by a social or natural cataclysm. Our interpretations of life will differ, and there will remain contests as to what is desirable, on one hand, or feasible on the other, which cannot be arbitrated; but there is still a large field of problems where substantial unanimity is attainable.
In attaining whatever may be thought to be the ideal form of society, it cannot be too often emphasized that there are certain rigid limitations existing in the nature of society itself upon the efficacy of law. We cannot legislate at will an ideal condition. The law is a dead letter unless "it works"; and it will not work unless and until it is adjusted to the material and psychic conditions of the society in which it is to operate.37 It is a truly remarkable situation that with the greatest development of legal learning there is the scantiest knowledge of the actual operation of legal rules. Lawyers, lawmakers, and law teachers are occupied with the conceptual problems produced in great abundance by the creation of legal rules, but, strangely enough, they do not know how these rules are being realized, if at all, in actual life.38
II. It may be useful to indicate briefly some of the legislative problems as to which it is essential for the lawmaker to take a definite position.
First, what of the equilibration of interests of which much is said in the first division of this book? Why should interests be balanced at all? Why should not the legislator (or the judge when creating a new rule of law) resolutely choose the better or the best among conflicting interests? Again, what is the better or the best, and what is the standard?
37 It is one of the most important constructive proposals made by Pound, to investigate "the means of making legal rules effective." -"Scope and Purpose of Sociological Jurisprudence." 25 Harvard L. Rev. 514.
38 Ehrlich has been one of the foremost Continental writers to insist upon the importance of this knowledge of the actual social operation of law. See his "Grundlegung der Soziologie des Rechts," Leipzig, 1913; Manigk, "Erforschung des lebenden Rechts," xxx Oest. Zen-tralblatt 709. A valuable reference list is entered in Cosentini, "La riforma della legislazione civile" (1911), p. 285.
On the first question, Berolzheimer, speaking for himself, if not for his school, advocates conscious choice, where choice is possible, and points out that the course of legal evolution has not been a process of tight-rope walking, and that interests in conflict have not balanced, but that one has annihilated the other. This point of view recalls again what in this period of turmoil, which has overtaken nearly every quarter of the globe, is a dominant thought. Are struggle and force and conquest with all that they imply of cruelty and bloodshed a necessary foundation of human progress, and a rule of life? And what shall be the attitude of the legislator on these questions in the various ways that they touch the legal establishment?39
What position is to be taken with reference to mediate and final ends? This question is usually of importance also in legislative technic where the prevailing practice tends to very restricted purposes. Undoubtedly this is as far as expediency can go, but this admission develops another fact of great importance - that the limited object sought, frequently is either missed or surpassed in a heterogeneity of ends. The question then arises, whether the legislator should not chart his course more remotely in practice. Such a solution, however, again involves other important consequences. The path of discretion becomes automatically broader. The result is agreeable to the tendencies of "freie Rechtsfindung," but is destructive of that fixation of concrete legal rules which is widely thought to be desirable in modern law.
39Cf. Jhering, "The Struggle for Law" (Lalor's tr.), 2d ed., Chicago, 1915; but see, Nasmyth, "Social Progress and the Darwinian Theory," N. Y., 1916.
A related question is the qualitative and quantitative relation which law should bear to social evolution. History has furnished its own solution. Law is the laggard behind custom. One of the chief purposes of the Sociological School of thought rests on this fact; and as we understand the proposal, it is contended that law should keep abreast of the march of social progress.40 It is clear that a quality of flexibility in legal rules which will permit their adjustment to changing conditions would raise difficulties especially with the certainty thought to be desirable in legal standards; and, also, there are spheres of law where uncertainty would be destructive of the chief purpose of any rule whatsoever. This appears most clearly in the field of commercial law, where the certainty of the rule is more important, in many respects, than the force of compulsion behind it. If the law is to be made adjustable to the facts of social and economic evolution, the principle of certainty must still be retained in those departments where it is more essential, for the larger purposes of the law, than justice in individual cases. At any rate, the distinction is one which the legislator must at least have in mind, however it may be disposed of.
What solution is to be attempted of the competing claims among individual, class, social, and State interests? Shall private interests when in conflict with social interests always give way, and if so why? It is true that an affirmative answer is dogmatically given especially by thinkers of the sociological group, but something more than a dogmatic answer is necessary to eliminate the problem. What limitations shall be drawn on the dominance of State interests, and why?