Because rules of law, up to a certain point, are akin to the natural laws of sociological development,72 their study must be carried on in connection with the study of the natural laws governing human thought and action. Yet whether there really are such laws is a problem that has, in one form or the other, troubled the minds of men for thousands of years. If the attempt to prove that human action is absolutely determined by the law of causality should ever be successful, there would be an end to the conception of liberty, i.e. the capacity of man, by spontaneous acts of will, to become first cause of a new series of causally connected phenomena. The struggle between these two conceptions of the world, liberty and causality, is ages old, and one of its phases is formed by the well-known contest of determinists and indetermin-ists in criminology. Up to this time it must be admitted that in this struggle the idea of liberty has constantly lost ground.73
72 Comp. supra, section 6.
Since the time when Hegel created the philosophy of history, a number of sciences, such as the history of civilization, statistics, folk-psychology, and especially sociology, have struggled hard to introduce the rule of law into our conceptions of social events. Their ultimate aim is to establish the laws to which the life of man is subject. As yet, this last goal is still at an incalculable distance. Whenever it is attempted to carry the laws of material nature without change into the realms of the spirit, one has to be satisfied with the palest generalizations and abstractions in order not to contradict the plainest evidence of real life.74 The results of the social sciences become valuable when they adopt special forms of causality in mental processes, by making use of notions such as purpose, motive, presumption, inference, habit, and the like. It seems that the study of sociological laws is made difficult not only by the infinite complexity of mental and social processes, but also the very specific nature of the laws governing such processes.75 In the early days of scientific law-study, there could be no help from the other social sciences, and yet jurisprudence could not rest satisfied with vague generalizations but had to have detailed rules which could be applied to the most specific human acts. Therefore legal science was unable to deduce the correct rules scientifically and immediately from the very facts themselves for which it was seeking the governing rules. Yet it is certain that the rules of law, to a great extent at least, flow naturally from the facts to which they apply, as the laws of motion are inherent in bodies,76 and are by no means a sort, of leading-string applied to the facts from the outside.
73 In an age when the mythological habit of thought prevailed, all natural events, over which now causality is held to reign supreme, were considered as resulting from the will of free living beings.
74 Comp., e.g., Spencer's doctrines regarding the phenomena of differentiation and integration, which he discovers equally in cosmic, organic, and social occurrences; or Schaffle's sterile metaphors applying terms of organic life to social phenomena ("Bau und Leben des Sozialen Korpers").
Now, whenever anybody has attempted to find rules of law directly by a consideration of the facts, as was done for instance by the law of nature school in its several forms, he has invariably lost his way in a sort of labyrinth. The theoretical and legal principles evolved in this manner would not stand the tests of real life. Wherever reality was inconsistent with the results of this sort of juridical thinking, the latter was of course proven at fault. In order to keep in touch with real life juridical thinking was compelled to limit itself, I might almost say to mutilate itself. It limited itself, nominally, to considering the application of certain legal propositions already formulated, i.e., expressed in words. The act itself of discovering and formulating the proper rule was rejected as not being part of the proper function of science, or at least of legal science. It was left to the attention of the people at large (customary law), or to the organized government.77 No lawyer is shocked by the fact that rules of law are often made or repealed by people without any legal training whatsoever, as for instance in representative bodies.78 It is admitted that the State, which itself draws a large portion of its power from the idea of law, does not formulate the law arbitrarily but derives it from the actual relations of power in society by means of observation and logical analysis. This field, however, is not invaded by jurisprudence but reserved in part for other branches of science, in part for the politician and the intuitions of the legislator. The formulated rule of law is furnished to the lawyer as the premise from which he starts in the exercise of his proper function. The evolution of this practice brought about important consequences for the law and the study of law. Law lost the character of a social phenomenon deeply rooted in real life. It became a mere command. The State began to treat as law a lot of things that were in no way founded on an inherent sense of law, but were of a mere fiscal or administrative nature.79 Then jurisprudence had to descend from its proud eminence on which it was shown to stand as lately as when Ulpianus defined it to be "divinarum atque humanarum rerum notitia, justi atque injusti scientia." It lost its independence, it fell apart into as many different species of jurisprudence as there are governments on earth. It is no longer supposed to be one of the social sciences but a science of obedience, of submission to commands. The lawyer has become a sort of expert in the art of obeying, one who knows how to understand the faintest shades of expression of the will of the legislator, and to obey them. Now it will be our business to inquire whether the lawyer is nothing but that. (We should add that as compensation for all these losses juridical thinking obtains thereby a convenient starting point and is carried on more easily and certainly in either of the two respects indicated in the section on the certainty of law.)80
75 Thus Wundl makes the striking observation that the principle of the quantitative constancy of matter and energy has no application to mental occurrences. Even a simple sentence is more than the sum of the words composing it. In such matters it is rather the principle of growth that governs.
76 I cannot pass by this sentence without citing some authorities. Comp. the remarks of Linger ("System," Sec. 10) on the so-called positive nature of the subject: " .... One must discover and impress upon scientific consciousness that the legal rule which is implied in the state of facts, has originated simultaneously with them, and governs them just as certainly as natural law governs any specific natural phenomenon." Similarly, Thol ("Handelsrecht," section 15; see also "Einleitung in das Privatrecht," section 57) says: "In like manner, legal science deduces legal rules from a basis of facts, the nature of the subject, the relations of things, the character of institutions, the circumstances of the case, in other words the actualities. These actualities include particularly volition, purpose, and the acts of the parties-not the specific volition (purpose or act) of individuals, but the general will of the community; for this it is which creates what constitutes the nature of the subject." Similarly Dernburg, "Pandekten," section 38.
77 I must ask that this statement be not considered an historical one-I wish to call attention, not to sequence in time, but to social explanation. Moreover I wish to touch on one feature of the process only, to wit the insufficiency of juridical means of comprehension. The State has other and even more important reasons for taking hold of the idea of justice in order to add its psychological power to its own commands.
78 Laymen are sometimes shocked by this fact, because the self-limitations of jurisprudence are not familiar to them. For this reason I emphasize in the text a good many points which to the lawyer are self-evident.
In one respect, however, we must at once correct the limitation of the scope of juridical thinking, as stated above. Not everything lying outside of the consideration of rules already formulated is foreign to juridical thought. The technical side of legislation, constituting a sort of auxiliary science for the legislator by casting the expression of his will into the proper mold and thus doing an important preliminary work for the application of the rule afterwards, - all this is properly counted as part of scientific jurisprudence. As a matter of fact, lawyers are constantly employed in drawing new statutes.
79 For instance, the requirement of paying a certain amount of duty, when passing a customs line, is law in precisely the same sense as the rule that a thing borrowed must be returned?
80 Sec. 5 supra.
Aside from this technical phase of legislation, however, juridical thinking has no part in the derivation of the law immediately from the facts to be regulated; in principle, it limits itself to the correct subsumption of facts under a law already formulated. As a consequence, the discovery of the facts also must, as a matter of principle at least, be distinguished from juridical thinking; it is not considered as a juridical function but a mere preliminary work not itself of juridical character.81
According to notions widely prevailing among lawyers, the juridical function in the strict sense consists of nothing but the obtaining of a network of concepts as perfect and consistent as possible, out of the body of formulated rules of law, by means of logical operations; and secondly, of the subsumption of the facts under this network of concepts. In this way, so it is said, one obtains a syllogism the major premise of which is the legal rule in question; the minor premise is whatever may be stated about the facts. The conclusion will constitute the decision.82 The principal difficulty to overcome lies in the multiplicity and multiformity of the legal rules, except in cases of analogy, where it is found in the insufficiency of the rule. The way to overcome these difficulties is to find the correct meaning of the legislative will which is at the bottom of the formulated rule.
81 That this is a common understanding of the matter appears from certain features of procedure, such as the attempt to separate questions of law and fact altogether and leave the finding of the fads to laymen.
82 Unger, "System," section 1, note 4. All decisions are composed of subsumptions of concrete legal relations under a definite legal rule. Dr. KarlGareis, "Enzyklopadie und Methodologie der Rechtswissen-schaft" [vol. i of this Series-"Introduction to the Science of Law"], section 2, page 4: "Even the thinking of a child is nothing but the arranging and subordinating of each specific phenomenon under one of the few concepts it knows, and the lawyer who defines a certain state of facts as 'murder' or 'lease' does exactly the same thing. Thus all thinking is subsuming, and the highest thought is the subsumption of all things conceivable under the absolute."