Jurisprudence has as yet no settled foundation. This accounts for the discredit in which it lingers. So far it has had but a metaphysical substructure, called natural law or the philosophy of law. The influence which this conception has exercised upon the underlying principles and governing ideas of codification, upon the interpretation of law, and upon the legal mind in general, has already been made clear.
The progress due to the inductive method in the natural sciences brought with it a reaction against this metaphysical tendency in law. There was a desire to build up jurisprudence by the methods and in accord with the findings of natural science, especially of biology and anthropology; it was even thought that the science of law should be guided along evolutionary lines. These tendencies were developed by a school which enjoys a numerous following, especially in Italy.36 The results obtained by this school lacked definiteness, because its basis was not definite. Other opinions favored the history of institutions as the sole data upon which to construct the science. But such a basis is inadequate.
True jurisprudence can be founded only on a critical observation of institutions in their time and space relations, and of the influence of surrounding facts upon them. Only in this way shall we grasp the living principle of the law: that is, the interdependence of institutions, their successive changes, the relations of cause and effect binding them, their guiding principle. Jurisprudence will then be a social science; in place of serving as a foreword to the study of law, as it is to-day, it will be the conclusion, because it summarizes all the years of work.
36Among them, Cimbali, "La nouvelle phase du droit civil"; D'Aguanno, "La Reforme integrate de la legislation civile," especially chap, vi; Chironi, "Sociologie et droit civil"; Saint-Marc, "Droit et sociologie," in "Revue critique de legislation" (1888), p. 59.
Evolved from this basis, jurisprudence (or, for those who dislike the term, the history of law and comparative law), is destined to fill the place of natural law and to exercise the scientific and practical influence which natural law has had and still enjoys to-day. It will be a true philosophy, in the sense that its aim is the knowledge of things; it will shed a new light upon the philosophical foundation and the object of law, a problem which has been the preoccupation of philosophers for centuries. Foundation and object will no longer appear absolute and invariable, as they did to the metaphysical jurist; nor will they be derived, regardless of history, from doctrinal conceptions, as certain philosophers would have.37 On the contrary, they will appear essentially relative, as the resultant of the social and political conditions of the epoch. The object of law at the time of the Code was declared to be to guarantee liberty and equality; these two aims have been realized; social conditions have changed, and the function of law has now come to be to realize social solidarity and the brotherhood of man.
1: Jurisprudence as an Ideal. The new jurisprudence will furnish a true ideal for the guidance of law. The metaphysical and philosophical study of law has so discredited the conception of a juridical ideal that the very expression "philosophy of law" has become synonymous with what is impossible and absurd. The ideal of the new jurisprudence will be quite different. It will not adopt as a model some final and universal form of legislation, but one or more types of legal
37 Especially Fouillee, "L'Idee moderne du droit" (4thed., Paris, 1897), bk. i, p. 1 [translated in part in vol. vii of the present Series, "Modern French Legal Philosophy." - Transl.] institutions which represent, for the countries where they are as yet unknown, an ideal of justice easy to attain. This will stimulate in these countries a movement favoring opportune reforms, all the more intense as elsewhere similar phenomena have already appeared which have aroused new legislation. The norm furnished by the new science will not be abstract and absolute as formerly, but material and relative, depending on considerations of time and place, and ever susceptible of further refinement as it is attained.
So we propose to revive under its true aspect a science of social ideals, as certain sociologists call it who realize the need for such a science but know not how to create it.38
2: Jurisprudence and International Law. Another object of jurisprudence, closely allied to the preceding, will be to give prominence to the international side of legal relationships and the best manner of regulating them. We have noted that legal relationships are becoming international and thereby uniform. This fact gives rise to a new phase of civil law and of international private law, which thereby tend to become one. Jurisprudence will indicate the civil relationships that have an international character, and international private law will be instructed as to the method of regulation best suited to them.
Certainly there is-no reason to protest that judges and jurists, participating in the elaboration of this new phase of private international law, depart from their true function. In this they no more depart from their true r61e than in filling their new mission in the interpretation of legal texts. In the two cases they owe their function to the very nature of legal relationships. However great the court's respect for the letter of the law, does it not to-day, in certain conflicts of private international law, disregard territorial law and give effect to foreign law, even without the express mandate of a statute? Still more must this be true in the formation of the future rules of this branch of law.
38 Cf. Georges Renard, "La Methode d'etude de la question sociale," in "Revue Socialiste" (Jan. 15, 1897); "Le Regime socialiste" (4th ed. Paris, 1904), App.
Jurisprudence, then, will be the surest basis for the formation and the development of this new phase of private international law.
3:Jurisprudence, Legislation, and Judicial Decisions. Jurisprudence will also furnish a sure compass to legislator, judge, and lawyer.
The legislator is enlightened as to the type or types of legislation existing elsewhere, and its advantages and disadvantages. It is, so to say, an anticipation of experience, by which the legislature of any country may profit. It does not follow that the lawmaker should introduce without change the type of legislation which has been suggested to him. He must adapt it further, wherever he deems it necessary or wherever uniformity of legislation is still impossible under the political and social conditions obtaining in his country. As affording the legislator the means of realizing progressively his social ideal without violent disturbance, our modern jurisprudence is very different from the earlier science which took no thought of the means by which it might effect its ideal; and very different, too, from the Revolutionary notion, which was merely an appeal to violence.
The judge and the lawyer are also ably served by the new science, which guides them in their application of national law, whenever it is borrowed from, or in imitation of, the legislation of other States. Where there is as yet no national law on the subject, our science is valuable in laying the ground and directing the development of judge-made law, which, as we have seen, is the surest source from which we may determine the direction in which social change is directing the evolution of institutions. In jurisprudence the judge and lawyer will discover the true soul of legislation, which is, indeed, nothing more than the new general tendencies manifest in institutions. It is useful to understand this spirit if we would, so far as old statutes permit, shape the direction of juridical interpretation. In this way the courts may, in full possession of the facts, set out resolutely along the path traced by jurisprudence, schooling the legislator in the reforms which he is to effect.
These are not all the purposes of the new science. Others there are no less important. It will form a new juridical criterion essentially positive and quite free of that metaphysical quality which is typical of our present standard. Finally it will aid a true development of sociology, which has so far remained empirical and unable to get away from purely metaphysical speculation, principally because jurisprudence, its surest support, has not yet been placed upon its true footing.