However, numerous sciences, all subsidiary to the science of sociology, are engaged in laying down the broad outlines of that future age when men will know better than at present the process of social evolution, the origins, connections, and importance of the various particular phenomena of social life. I am returning to the beginning (compare Introduction): legal science also will have to reap her harvest in harmony and union with the work and progress of the other social sciences.
There is an erroneous idea, often defended but nevertheless plainly mistaken, according to which legal science is to seek salvation in a more profound and refined knowledge of individual psychology. However, the true reasons for the uncertainty we meet with in the investigation of internal facts is caused by other things than our ignorance of psychological data. The contrary is true: the psychological tools with which jurisprudence operates even to-day are often too nicely differentiated. They are like razors made so keen that they no longer cut.
No matter how firmly one may be convinced that a rich harvest is to be gleaned, it would be a delicate undertaking at this early stage to forecast in detail what benefits legal science will derive from a closer alliance, practical and theoretical, with the social sciences. On account of the difference between the points of view of jurisprudence and those other branches of knowledge (the latter being explicative, the former normative), there can be but an indirect appropriation of results instead of direct comparison. Moreover, the present condition of the social sciences, which are to a great extent still in a state of fermentation and development, or occasionally in a merely embryonic condition, is the reason why but a small part of their doctrines have achieved that certainty and exactitude which lawyers require in order to utilize them as a conscious part of their intellectual processes.
Nevertheless we may safely venture to prophesy that even at the present stage of the social sciences the horizon of the lawyer will be widened by a more intimate acquaintance with them, so that his attitude towards social life may be raised above his mere personal experience, limited of necessity by narrow local and temporal bounds, into a greater universality and stability. Undoubtedly the administration of the law will gain thereby both as regards certainty and true scientific character, while at present the only guaranty of a certain measure of uniformity, as regards the subject-matters of projection, is to be found in the approximate uniformity of the course of study, career, social and economic condition of all lawyers. I shall not hesitate to illustrate this very general proposition by a little example.
A enters into a contract with B, by which he undertakes to act as guardian of the latter's children after their father's decease, on condition that he is to retain as his permanent commission thirty per cent of the net annual income of the estate of his wards. Is such a contract valid? Many people will feel that it is against good morals, for to be willing to act as guardian for orphans is one of the duties of a citizen. Others will have no such scruples. In the former we should recognize the attitude of mind characteristic of the agricultural and conservative element, in the latter that of commercial and politically liberal persons.
However, if we are to analyze the case scientifically, we should start from the fact, well known to ethical science, that a feeling of disapprobation similar to that which arises in view of this transaction has been noticeable, historically, whenever a function that had theretofore been exercised as a public duty or honorific office became degraded so as to be performed for pay. For originally it was only for labors of the most menial kind that pay was accepted.191 If, however, the course of economic
191 Comp. the history of compensation for advocates, in Rome, and even to-day in France. Comp. also the fact that compensation for the higher forms of services is called by different names from ordinary wages (honorarium, salary, etc.), and that these special names are suggesdevelopment tends in that direction, the original feeling of disapprobation will not be able to prevent the successive inclusion of higher and higher kinds of labor among those for which wages are paid and accepted. The question will naturally arise, therefore, whether at the present time generally the tendency towards extending the number of functions for which pecuniary compensation may be accepted is increasing or decreasing, and whether there are existing economic conditions that make it proper to add the duties of a guardian to those which may be exercised for hire. In this way one may gain a foundation from which to judge of the contract set forth above in its relation to general social development.
No doubt, if legal science is brought into closer contact with the rest of the social sciences, it will be able to utilize, for its technical purposes in drafting statutes as well as for those of legal theory, a number of concepts, which have already been scientifically elaborated.192 tive of different appreciations, and sometimes even carry with them different legal treatment. See on the whole matter Wundt's "Ethik."
192 At the present time the opposite tendency is rife among lawyers, the tendency of exclusiveness. One of the indications of this is the fact that legal science, and also as its various special branches, are in the habit of making up the concepts by which they master their subject-matterwithout reference to linguistic usage or the custom of other sciences. We need not deny that in by far the greater number of cases this cannot be otherwise. However, it has important drawbacks, which are often overlooked to such an extent that terms are frequently used in quite arbitrary fashion in order to bring about an apparent unity of thought. Distinctions between terms used in a narrower and in a wider sense are particularly characteristic of legal usage. Similarly, we distinguish between estate, credit, and the like in a legal and the same terms in an economic or popular sense, between a merchant in the meaning of the Commercial Code and within that of the tax laws or the Industrial Code. "Document" means different things in private law, in the act relating to fees, and in the sense in which the term is used in other sciences. Real life, however, knows but one kind of merchant, or estate, or document; by such distinctions, the connection between law and life and legal and other sciences is often quite needlessly severed. Yet the necessity of projection of these concepts is not obviated, although it is rendered more difficult. However, similar tendencies towards exclusiveness may be found in other sciences likewise. They are the obverse of the tendency towards harmonious completeness. Thus, for instance, economists might save themselves the writing of many ponderous tomes on the reason for interest on capital, if they did not obstinately refuse to consider the distribution of power over economic goods which is effected in the form of legal rules.
Thus it will be possible for those intrusted with the administration of the law to profit from all the results which these other sciences have already produced. For instance, while the Romans had no way of defining the various things subject to the right of property, except by enumerating those exceptional ones in which nobody could have property, like air, light, water in its natural state, and so forth, we may very well utilize for such a purpose the concept of "economic goods," as it has been elaborated by the science of economics.
The most important point of all, however, is that by the study of sociology lawyers will, even more than by that of legal history or comparative jurisprudence, rise above the stage where they are mere adepts in the art of rendering obedience. Instead, they will cease to conceive of the law as a mere naked command and learn to comprehend its nature as a social phenomenon.
And we have a right to ask that this should be so. A jurist in ancient classical times was expected to know not merely the letter of the statutes but also their meaning and real significance. Of a modern lawyer we should demand even more: knowledge of the soil from which every legal institution must draw its sustenance, and an acquaintance with the social functioning of each institution.
Such are the tasks of sociological jurisprudence.