Everyone, it is true, may frame an hypothesis as he pleases, but yet it ought to be practicable.
Aristotle, "Politics," bk. ii, ch. vi, 1265a.
Problems of legislation touch the field of science in two ways: in matters of form, and in questions of content; or put in terms which are beginning to find acceptance and definite meaning, these problems are those of legislative technic and of legislative policy.
In this volume a number of chapters treat the difficulties, or some of them, of legislative technic; but little will be found, except by way of suggestion, as to legislative policy, i.e. the kind of legislation which the State should attempt, or the method which should be pursued in developing legislative ideas. This lack of specific cultivation, in this volume, of questions of legislative policy is not merely accidental, but appears to be due, primarily, to the silence of literature5 -
5 A number of volumes, in truth, may be found which bear the hopeful titles "Principles of Legislation," or names of similar import; but. unfortunately, none of these works treats legislative policy in a logically comprehensive manner, or even points out the methodological criteria of what legislation should or may accomplish. See Mably, "De la legislation ou principes des loix," Amsterdam, 1777: also in his "CEuv-res," 15 vols., Paris, 1794-5; Justi, "Grundsatze der Policeywissen-schaft," 3d ed., Gottingen, 1782; Filangieri, "Scienza della legislazione," Napoli, 1783: also in his "CEuvres," 5 vols., and commentary by Constant, Paris, 1832; Bentham, "Principles of Morals and Legislation"; Comte (Charles), "Traite de la legislation," 4 vols., Paris, 1835; W. Jethro Brown, "The Underlying Principles of Modern Legislation," London, 1912.
It is quite true, however, that from the vast literature dealing with expository, philosophical, and historical views of Law, Society, and State, a large number of ideas might be gathered which would represent, among the rest, such names as Plato, Aristotle, Vico, Aquinas, Montesa silence which may seem, in the great multiplication of books and essays, and the wide diffusion of ideas of every sort, a strange, if not unbelievable situation.6
I. The intellectual effort of the centuries devoted to the theoretical side of legal institutions has centered on such questions as the concept of justice, the nature and sources of law, the origin of government, the best form of the State, the idea of sovereignty.
The natural law view has had, and continues to have, a dominant position in these studies, and has, unfortunately, distracted attention from the what is to that, which, by supposition, in the order of nature or of reason ought to be. The facts of life have been taken for granted by this attitude. It has been assumed throughout not only that the phenomena of society are fully understood and within the grasp of that quality of mind which more than once has claimed all philosophy for its province - common sense - but, also, that these phenomena are at all points under the potential control of lawmaking. Nothing is more familiar than the naive thought that a social evil, real or apparent, being discovered, nothing further remains than to enact a law of some sort, whereupon the imperfection aimed at may be expected automatically to disappear.
On a basis of procedure in close connection with these misconceptions, the task of legal science was thought quieu, Savigny, Herder, Buckle, Bentham, and Tarde, or to call upon the volumes in this series for inspiration, the names of Ehrlich, Geny, Jhering, and Kohler. But to make a selection of coherent ideas from sources so diverse in starting-point and outlook would of itself involve a creative effort comparable to an original statement and elaboration of the essential problems.
6 One important exception must be noted in Kohler's "Lehrbuch der Rechtsphilosophie," translated in this Series (by Albrecht), which appears to be the most profound systematic contribution yet offered in the field of legislative policy. The value of this work deserves to be better recognized.
to be that of explanation or criticism of legal institutions in the light of nature or of reason.
It will be convenient to discuss the last proposition, before attempting to deal with the problems and the methods of legislative policy.
1. First, legal phenomena were thought to be explainable as purely natural phenomena, with laws analogous to, or even identical with those of the physical sciences.7 In a purely mechanical sense there were in the evolution of legal phenomena "corsi"8 and "ricorsi" and even spirals9; in a biological sense,10 heredity, selection, differentiation, and survival.11 Neither do we question that such explanations, in their larger bearing, are both interesting and important, nor, in the same amplified meaning, that these speculations are based on an element of truth indicating an intimate mutuality and relation among all the facts of life and nature. The subject is one which has been so often and so fully considered that it is sufficient here merely to suggest these theories with qualified adhesion to their scientific value, and to point out, what is important for our present purpose, that this immobilism of social phenomena, to the extent that such phenomena are held within its iron grasp, holds in check also the legislator, bending his will to the prevailing recoil of life, or breaking it when it stands in opposition to its superior force.12
7 Derivation of language by reference to a physical basis is an interesting illustration of the same idea. Jus, to take an example in legal terminology, is thought to be traceable to the Aryan root Yu, meaning to bind or join together. See Jhering, "Geist d. rom. Rechts," i, 218 (6th ed. 1907); and contra Breal in Nouv. Rev. Hist. vol. vii (1883), 625.
8 CF. Vico, "Scienza nuova"; cf. del Vecchio, "Formal Bases of Law," pp. 27 seq.