Thus we have at last come to inquire into the principal task of free decision on the basis of scientific research, which is the examination of the nature of things themselves. That is an idea which may lack precision but has been found very pregnant. It was introduced into the investigations of jurists by the German, Runde, about 1791, and has since that time been much employed by German legal science as a substitute for the formal sources of positive law. On the other hand its intrinsic merits have more than once been disputed, and Windscheid used to stigmatize it as a disreputable expression.
Perhaps the discredit with which this notion - in my opinion an indispensable one in any system of positive law - is threatened may be avoided if we define its nature a little more than has heretofore been done and show what good results it may produce.
The meaning which Runde attached to this expression and which has been generally accepted, according to which the nature of things may be considered as one of the sources ("lato sensu") of positive law, rests upon the following assumption: the relations of social life, or putting it more generally, the facts underlying every juridical organism, carry within themselves the conditions under which they may be in equilibrium and indicate themselves, if one may say so, the rules by which they ought to be governed. If that is so, nothing would appear to be easier than to examine all human relations in detail in order to distinguish those among them which require legal recognition, and then find what law should govern them in all cases where there are no formal sources. The only trouble with this proposition is that in trying to apply this method one will soon find that the assumption was accepted a little hastily. It fails in this respect at least, that even the most minute study of the relations of life, although the weighing of the interests involved may be facilitated thereby, is by itself powerless to indicate clearly and accurately its rule of law. In order to make the method practicable one needs more certain standards. The law that harmonizes the facts must be sought outside of the facts themselves.
Now let us return to the main point of our discussion. The question is, how can we create by a scientific effort a sort of common law, general in its nature and subsidiary in its function, which may supplement the formal sources when they fail, and give a general direction to the whole current of legal life? Will the law so found be an immutable type, or will it vary, at least in some of its parts, in accordance with the circumstances of the times? Will it be a law of universal application or will it not exhibit certain national differences? These, however, are rather secondary questions, on the whole, and they cannot be solved a priori, for the answers will depend on the nature of the elements of which this necessary common law is composed. The important thing above all, however, is to know how this positive common law may be constituted.
To solve this question, a seductive idea has been proposed, the idea of scope and purpose, or the law as means to an end.3 Starting from the truth suggested by experience and ordinary reasoning, that every act of will depends on a purpose to be achieved, and observing further that every system of law has for its subject-matter principally acts of human will, one can easily come to the conclusion that such a system ought to be entirely dominated by practical ends. Hence the maxim formulated by Jhering: the end to be sought creates the entire body of law. According to this all that would be necessary to find the rule that should regulate any given relation of society would be to find what end is to be accomplished. However, it is easy to see that such a conception presupposes in practice that the ends which are to be attained by each legal rule are already known. This proposition, again, could not possibly be put into practice without a very clear and definite consciousness of the ultimate ends toward which human life is tending. It appears, therefore, that this maxim may be a very valuable instrument of investigation but only puts the ultimate solution of the problem further off.
3 Jhering, "Der Zweck im Recht" [the first volume of which is translated in this series under the title of "Law as a Means to an End"].
How then shall we find the ultimate standard by which to measure the juridical value of social facts? Without entering upon the transcendental regions of our moral nature, I believe that we shall easily come to an agreement on the proposition that every body of laws should tend toward realizing, in the life of humanity, on the one hand an ideal of justice, on the other an ideal of utility, meaning by the latter expression that which by common opinion is considered as promoting the welfare of the greater number. The two great guide-posts of our investigation should be, therefore, justice and general utility. To be sure, that is still far from giving us complete light on the subject, because the two ideas so represented are of themselves nothing but empty forms which must be given a content before we can draw out of them all we need for our present purposes.
Precisely at this point is the place for the idea of the "nature of things" such as, according to my view, it should be understood. It is not enough merely to consider and analyze in detail all the facts of the life of our society, to observe their mutual relations, to discern how they reciprocally react upon each other. We must also boldly rely upon our moral consciousness and our reasoning powers, and by the use of these faculties trace the laws which govern these phenomena. Thus we shall employ all our resources for the construction of a truly scientific system of the kind of common law of which we are in search.
From this point of view the field of our investigations becomes definite and complete. On the one side, we address ourselves to reason and conscience in order to discover within our own breasts the foundations of justice; on the other side, we must study social phenomena in order to grasp the laws which harmonize them and the principles which will arrange them in order. Of these two tasks which we must perform, the last-named finds a firm basis in what may be called the nature of positive things, which in their totality form what one might call the atmosphere of social life. The other rests on a more recondite foundation, it cannot be attacked by observation and the experience of the senses, but nevertheless forms one of the necessary conditions of the practical working of the law. Attempts to resolve one of these factors into the other have all been in vain. Notwithstanding various prejudices that are still alive, both have continued to exert their influence on the life of the law. Well convinced as I am of their necessity I have no hesitancy in giving to each its proper place and function.