This section is from the book "Science Of Legal Method", by Ernest Bruncken. Also available from Amazon: Science of Legal Method.
Jurisprudence was the first of the social sciences to be born. Of all men, judges and legislators were the first that found themselves compelled to seek a clear and conscious knowledge of the principles according to which human beings live together. Such knowledge of the foundations of society was first acquired by learning to distinguish right and wrong. This preceded by a long way any merely theoretical curiosity and was produced by the necessities of life. As soon as the unconscious and unorganized coercion of custom was no longer sufficient to regulate the acts of individuals because, having arrived at greater intellectual independence they began to have doubts about following their impulses as before,3 law arose in order to avoid, or mediate between, conflicts of will,4 and became the embodiment of the rules necessary for the regulation of human conduct so far as they entered into the consciousness of men.
2 Cf. Code Civil, art. iv; also, Menger, "System des osterreichischen Zivilprozesses," Sec. 11, note 2.
At first this conscious knowledge of social principles, taking the form of knowing the law, was limited to a few subject-matters, first of all to economic needs. Next the preservation of life and health was included,5 further, the protection of the State and its established order; last of all came ethical requirements. In a one-sided manner, the object aimed at was at first merely mediation between the conflicting wills of parties. Thus primitive law was crude, imperfect, and clinging to mere externals.6 The most obvious things only were taken hold of. As the comprehension of law advanced, however, it became necessary to go beyond considering merely the external form assumed by conflicts of human wills,
3 Vierkandt, "Natur und Kult.urvolker."
4 Roscher, "System der Volkswirtschaft," vol. 1, section 16. 5 Wundt, "Ethik."
6 Comp. Jhering, "Geist des romischen Rechts," on the discrepancy between the law as it really was and as it was formulated. - For example: the evolution of traffic by barter gradually reduces the custom of lengthy higgling, which in the Orient even to-day sometimes takes days. Now what an awkward way of formulating this social tendency is the old Athenian statute prohibiting hawkers in the marketplace from sitting down. Or another: incapable of comprehending the true socially obnoxious element in robbery or murder, old Germanic laws punish "lying in wait along the highway." else the legal rules would have failed to be even approximately in accord with the real world and the causal connection of occurrences, which are often so well concealed. Consequently the law began to pay attention to very different phenomena of psychological and social life, and recognized gradually that these had a close connection with those conflicts of human wills. Thus the law began to examine, long before any later and independent sciences, created by purely theoretical interests, took up the study of such matters, a large number of phenomena: logical and psychological ones, such as will, purpose, intention, declaration, error, coercion, passion; economic ones, like estate, value, price, utility; linguistic ones, like sentences, meanings; ethical phenomena, such as liberty, personality, honesty; political ones, like order, public authority, etc. During the early stages of the development of law popular notions were exclusively available for the necessary knowledge regarding these things, and all too often law had to work with mere substitutes for real knowledge, in the form of conceptions not thought out but obscurely felt. For centuries, if not for thousands of years, the law had to get along with these as best it could.
It was but late, after law had developed into a scientific form of jurisprudence, that a succession of other social sciences arose: such are politics, ethics, economics, logic, individual and social psychology, philology, the history of civilization, statistics, etc., and finally the most generalized of all these sciences, sociology. Some of these branches of knowledge did not arise until quite recently, while others were but lately made really fertile by a more elaborate division of labor or the invention of new methods of work.7 Each of them treats from a different point of view subject-matters which either are identical with those of jurisprudence8 or are closely connected with the latter and mutually interact with them. It is necessary for the science of law to keep in constant touch with these sciences, else it cannot supply the needs of life and will fall behind more and more. The rapid development of the other social sciences frequently proves false to-day what yesterday was universally held to be true. Is it possible, for instance, to retain in its entire extent a theory of criminal guilt built up on the belief in individual freedom of the will, if the hypotheses of Lombroso regarding born criminals should be substantiated, or in the face of the statistical results that throw light on the dependence of the frequency and nature of crimes upon certain conditions of environment?9 Must not these things affect both the courts and the legislature? It is the business of legal science constantly to assimilate the results of investigations in other scientific fields, to appropriate new truths regarding the interaction of social phenomena, and to make use of the clarified conceptions of other sciences. The preparatory work is in part done by these sciences themselves. Within the complex of facts with which they deal law takes up so much room that they cannot fail to look at it from their peculiar points of view and to try their methods and results upon it. Yet, all these sciences, even apart from the fact that they and the lawyer lack common points of departure and convergence, treat of law only in its most general aspects. In the formation of law they proceed at most as far as the creation of the various legal institutions and principles; the application of law and its technical formulation are, however, the peculiar domains of jurisprudence and are naturally never entered upon by those other sciences. Thus the latter remain at the gate of legal science proper. Jurisprudence itself must go to work and make their fruits available for the administration of justice.
7 I call to mind comparative etymology, the study of the forms of landholding, or statistics as a scientific method.
8 The law of private property deals with phenomena almost identical with the subject-matter of economics; similarly, public law has nearly the same subject-matter as political science.
9 How profoundly these new ideas have affected all schools of penology, became very evident from the discussions and proposals at the Congress of German Jurists in the year 1902.
This need has not hitherto been supplied with clear consciousness of purpose. It is true that in legal history it is customary to keep in touch with other historical sciences even when treating of the administration of law, in accordance with the actually existing connection between legal and other social phenomena.10 It is different, however, in practice, regarding the examination of the living law. Here one usually turns for comparison merely to other legal branches, dealing with matters separated in time or space, but hardly ever considers the points of view or the results of other social sciences. Yet this.is indispensable for jurisprudence, if one does not confine its task to merely knowing legal principles as they stand, but wishes to understand also the reasons for their development, their psychological character, and especially their functions, which can never be separated from the social reaction upon them.11 For it is impossible to understand one aspect of social life without knowing its connection with other aspects.12
10 Social conditions in which customary law prevails are generally of the greatest interest for historical research. At this stage legislation and administration of justice are not very strictly distinguished.
11 For instance, the reason why, in the Civil Law as formerly in force in parts of Germany, women were permitted to waive the provisions of the "Senatusconsultum Vellejanum," according to which they could not be sureties, becomes very much clearer when we remember that in consequence of the development of the credit system this compulsory disability, which originally was intended to benefit women, had become a troublesome obstacle to their capacity of doing business. It was similar with regard to the prohibition of taking interest.
12 Roscher, "Volkswirtschaft," section 18.
To be sure, the transference here contemplated is far more difficult than, for example, the science of comparative law, because here we have not a question of comparing similarities and dissimilarities, but rather of finding hidden connections between phenomena that are apparently quite heterogeneous.
However, the principal obstacle to the conscious introduction of new points of view in the application of law is found in certain common notions, certain traditional methods, which lawyers employ half unconsciously rather than with complete comprehension of their nature. These grew up at a time when the law still stood by itself and was simply the crystallization of popular notions; but they are clung to instinctively, and taken altogether they constitute the peculiar character of specifically legal ways of thinking. In part they are deeply founded upon the peculiar objects of legal thought, and are the products of a course of historical development. In part, however, they are nothing but the residue of ideas long abandoned, which are habitually handed on like current coin without being looked at or examined. Thereby they produce among legal thinkers a certain feeling of self-sufficiency that prevents the growth of a desire for further investigation, so that legal thinking is apt to be content when relatively brief progress has been made. The desire to question further stops when certain apparent explanations have been reached. These are characteristics which, according to Comte, are peculiar to the metaphysical stage in the development of a science.
It is the purpose of these inquiries to throw a little light upon these semi-obscure regions of thought peculiar to our special science.