This section is from the book "Science Of Legal Method", by Ernest Bruncken. Also available from Amazon: Science of Legal Method.
44 Perhaps the writer should here reassert that the use of language borrowed from physiology or biology has no other than a metaphorical meaning. The phenomena of society are sui generis, but the lack of well understood scientific terminology invites analogies in other fields.
IV. The foregoing discussion brings us to a consideration of the method and materials available to the legislator, and necessary to be employed to escape the criticism above raised.
They are as follows:
1. The systematic or expository method must be carried out to a point of practical completion. That is to say, exact data must be gathered, (a) concerning the situation upon which legislation is to operate; (b) concerning the most effective measure to be applied; (c) and the effect upon the particular situation,45 and the reaction upon other social habits by the enforcement of the measure selected.46
In this direction, the legislator may find a working model in the methods of boards of directors of successful corporations. The existence now in a number of states of legislative reference bureaus is responsive to the thought. which is coming to be recognized that intelligent action and judgment, even in matters of legislation, demands a satisfactory foundation of statistical information. The possibilities of the systematic method are of the greatest importance, and it is not unlikely, when it is fully developed, and becomes a regular instrument of legislative action, that legislation will cease to be an inferior legal product, but will take rank equal, if not superior, to judicial precedent. That the present method is inefficient and unscientific will hardly be denied, and that the legislative function must be raised to a higher plane of dignity, a dignity comparable to that of the courts, in order that it may satisfy its theoretical object, is obvious. It would, however, be a mistake to assume that an improvement in the human factor upon which legislation depends would of itself suffice. If the method itself does not improve, the good character of the lawmaker will not succeed in raising legislation from its present unscientific level.47
45 Prof. Edward A. Ross ("The Principle of Anticipation," xxi Am. J. Soc. 577) has pointed out that the distinction taken in legislation has been between near and remote consequences by way of an analogy borrowed from physiology. He argues that any established policy which affects persons favorably or unfavorably will be anticipated and will modify behavior; and that the social scientist and legislator must anticipate the anticipations.
46 Failure to take account of this reaction is shown in the actual social operation of the marriage evasion act in Illinois. See Bulletin of Chicago Legal Society, 1916, no. 2, in xi Illinois Law Review, (October, 1916).
However, the statistical method while indispensable is not self-sufficient, in the narrow sense in which the term "statistics" is here used, to furnish a scientific basis for legislation.
2. The historical and comparative methods are necessary to round out and humanize the results of statistical inquiry. This implies a broader kind of statistics based on legal history, comparative law, and legal ethnology. The rigor or extent of this program does not in any wise detract from its scientific necessity; nor is the task involved in this demand so exacting as to be unworkable.
The facts of human life are not detached points in space, but are expressions of a unified process the spirit of which penetrates the realm of history, giving it that rationality frequently discernible only after long periods of time, and that configuration which makes it possible to apprehend it as a thing of substance and continuity.48 A mere accumulation of detached particulars does not constitute a history.
47 Cf. J. H. McFarland, "Why Congress is Slow," Outlook, vol. 113, no. 9, p. 456.
The special value of comparative law lies in its power of suggestion, and in its capacity to afford vicarious experience.
Legal ethnology has the function of making possible restorations of the missing pages of history especially in the earlier periods; and it is also a powerful auxiliary for understanding the ethnic soul, and for affording reliable criteria, under simpler conditions of life, of the efficacy of legislation in precisely those fields where there is not available the required statistical information.
It is conceded here that under scientific observation, experiment is a method better than any of those discussed. This has been the favorite resort of Anglo-America49; but experiment has not, it is believed, been adopted as a method under the condition of scientific-observation, and the results of legislative effort have been allowed to lapse into history. We have made experiments; but we have not profited by them. We have no means of knowing what we have experienced as a social fact. Experimentation of this kind is just as worthless in the field of legislation as it would be in chemistry or physics. Again, mankind does not possess such reserves of spiritual force that it can afford to squander its energies in attaining at a loss what can be acquired with profit.
48 Cf. Spencer, "The Sins of Legislators," Contemporary Review, May, 1884: reprint in "Man versus the State" Williams and Norgate, London, 1907; Am. ed. (Truxtun Beale, editor), N. Y., 1916: Comment by Prof. Harlan F. Stone, p. 237.
49 See General Introduction to this Series.
3. The last method necessary for scientific lawmaking is the philosophical.50 Demonstration of this claim to the utilitarian is a matter of some difficulty. The question is immediately raised in the language of one of Tchekov's characters, "What's philosophy-got to do with it?" It may at once be answered. Philosophy is necessary for any valuation of empirical data. We may have collected with great diligence a great abundance of facts, but until these facts are fundamentally evaluated, they are grains of sand having the quality of bulk, but lacking, nevertheless, the quality of cohesion.
This may be demonstrated.
A proposal for legislation is made. Let the question be raised, "What do you expect to accomplish by it?" Assume that an answer is given. Now, let the question be asked, "Why?" and let the same interrogation be repeated until the subject is exhausted; and it will be discovered that the proposal is based on a philosophy of some sort- it may be very superficial, and hardly in an accurate sense worthy to be dignified by the term - yet, it is a philosophy, or, at least, a tender of one. It will be the ultimate reason or explanation in terms which must involve, not the individual or individuals standing alone, the group, the class, or the State, but the whole of reality.
It may be objected that the interpretation may be erroneous. That possibility, nay, even the probability, is admitted. It may further be objected that there be at the same moment a variety of conflicting interpretations. That also is admitted. But, after all, there is a right interpretation, even though the human mind does not discover it, and even though we disagree in our efforts. And, in the meanwhile, though man doubts and hesitates, and holds tenaciously to the assertion of his primary wants, thinking and acting as his clan thinks and acts, the world is furnishing an interpretation of its own which is overlooked because we are a part of it.
50 Extreme statements such as that of Alvarez (p. 461 infra) "that philosophy of law has become synonymous with what is impossible and absurd," greatly overshoot the mark, and fail to be serviceable in marking the limits of caution and scope which should attend the use of metaphysical ideas. One even suspects that the learned author (Alvarez) has identified all philosophy of law with one kind of natural law.