Imágenes de páginas

and social situation here and now; but the same code would as certainly fail of understanding, use, or even authority if imposed on the Khonds or Bogos. We do not wish to underestimate the notion of value but it must be insisted that a future value is not the same as a present value; and that for human, practical purposes what is realizable and existent is of far larger importance than that which is only speculatively realizable and as yet unrealized. The true basis of the science of legislation is found in the history of the race. The aberrations and misdirection of legislative effort in the various organs of government are due to the variant interpretation of value by the lawmaker in disregard of the facts of legal history.

“There are some things which legislation is incapable of doing, and others which it ought not to attempt. The first kind of legislation results in the dead-letter law; and the second produces the fiction and spurious interpretation—the efforts of society to make an unit law harmonize with the capacity of society to receive it. The statute books are full of the dead-letter laws, and the volumes of reports are crowded with the evidence of fictions and spurious interpretation. Perhaps, notwithstanding all efforts, it will always be thus; for the human mind cannot be measured as with a tape-line, and the best that science can hope to do is to approximate the course of social development, and avoid the extreme discordances which hamper the flow of progress.

“While advocating the importance of historical studies as having any sort of practical bearing, it must be admitted that the interpretation of the facts of history in an evolutionary sense is hardly less difficult than the ascertainment of values. We have volumes upon volumes of ethnological and anthropological reports gathered from the ends of the earth. But what do these reports mean? Whảt underlying principles do they involve? This is the mission of interpretation and generalization. When the complexity of the problem is fully appraised, it can no longer be doubted that the great future of this study will be that of drawing out of this great mass of accumulated and accumulating facts the underlying threads invisible to the unpracticed eye, threads which bind together the institutions of men living in society, into definite figures, which again in turn require interpretation to discover their function in the fabric of life. The problem here is simply another aspect of what is the problem in every other science. At its foundation it touches the ultimate realities, and while we could not hope in this series of readings to go farther than the preliminary stage of pointing out the unity and art in the weaving of the tissues of legal ideas, we believe we can do no less than indicate our own impression of the far-reaching importance of these inquiries.

“One more qualification seems necessary in any claim of a practical mission for historical studies. This is the psychological qualification. Whether reason is only a mechanical expression of forces in a chain of causation, and whether consciousness is only an epiphenomenon, are questions which concern the philosopher rather than the lawyer; and yet questions of this sort inevitably project themselves into the realm of the law when an attempt is made to deal with legal ideas in fundamental terms. These readings do not seek to deal with problems of this kind.

“This qualification so far as it bears on the present point is exactly represented in the familiar controversy between Savigny on one side and Jhering on the other. If the method by which the law has grown is more akin to an unconscious process rather than a voluntary, reasoned, and consciously selected development, then it must be apparent that function of human reason in the midst of other phenomena has an autonomy which is at least highly limited, if not actually fictitious. As to all this, however, the cautious reader will judge for himself.

"III. After thus summing up the earlier issues of this series, we come now to an explanation of the present volume. It is divided into three parts, as follows: First, an introductory part deals with the criteria of legal evolution and the methods of its study. Treatment of these ideas is fundamental for the purpose of any discussion of either social or legal development. When a comparison is made between the institutions of different peoples, it is necessary that there should be some basis of appraisement of the ideas compared; otherwise we should be able only to note differences and similarities without being able to affirm of them any quality whatsoever. To what extent the idea of progress may be evaluated by other than purely material tests, or to what degree the worth of an institution may be affected by relation to surrounding circumstances, need not be pointed out.

"Legal ideas are not ends in themselves, but only means to ends. It is a peculiarity of the human mind to attach to ideas, and to customs long familiar, the attributes of permanence, rationality, and necessity, even at the moment when nothing remains of them but the outer shell, covering matter already decayed and worm-eaten. In such times of crisis there ensues a period of confusion and breakdown and then an upbuilding process, which goes on again to its maturity and decay. In our own day we may see as one of the numerous examples of this development the marked changes wrought in the relation of employer and employee. Another generation will probably find this department of the law, and perhaps others, entirely transformed in comparison with the law of the last generation. The meaning of the term 'progress' is a problem which lies at the base not only of the law, but of all of the social sciences.

* Reference may be made to The Modern Legal Philosophy Series for various attempts to treat these matters so far as they are of importance in legal theory.

Secondly, the instant volume attempts to deal with the factors of legal evolution.

“The term 'factor' or 'influence' is ambiguous and vague. Its leading implication is causation, but causes are infinite. Nature knows no classification of its phenomena, and we must artificially create them by setting up our own mental standards in which certain things are emphasized to the exclusion of all others. The favored thing is called the efficient cause; but an inspection of our efficient cause in relation to social facts will show it kaleidoscopically merging with other efficient causes. Thus a geophysic factor may in turn be an economic factor, or even a biologic factor.

“Of these factors or influences, the following find representation: geophysic, economic, biologic, religious, racial, political, pyschologic, and social.

“The first of these will justify a word of explanation. In spite of the importance of the claims made for the geophysic influence upon social institutions, and the great array of names' which are associated with these claims, it seems odd that so little is available to show in a concrete way the influence of climate or soil on specific legal ideas. This again may indicate how much remains to be done in the field of legal and social evolution in the collection of facts. It is easy to understand that with man's primary dependence on his environment the character of this environment must have had an important connection with the kind and number of human activities expressed eventually in legal customs and definite legal institutions.?

"It probably will be unsafe to venture far in this direction in claiming for physical conditions specific determinative influences on the origin

* Among others, Aristotle, Ritter, Buffon, Herder, Montesquieu, Guyot, Buckle, Ratzel, Peschel, Reclus, Metchnikoff, Le Play, Demolins, Ripley, Penck, Dexter, Semple (represented by a chapter in this volume), Huntington, Simkhovitsch.

• See, for example, for the influence of rainfall on the birth-rate, the death-rate, and marriage, “Response to Rainfall in India," by Leonard O. Packard, in Bull. Amer. Geographical Soc., XLVII, 2 (Feb. 1915), 81-99 (97, 98).

[ocr errors]

and development of legal ideas until more information is assembled. It is not improbable either that when such information is at hand, more careful consideration will develop the conclusion that too much has sometimes been claimed for purely external conditions. Such claims can easily have an apparently sound basis and yet be misleading, in this, that the coincidence of circumstances favoring an institution may be erroneously regarded as causative. For example, polyandry may be seen as the result of physical conditions marked by a low temperature unfavorable to the production of crops where agriculture is the sole or chief means of subsistence. It may be plausibly argued, as by McLennan, that where numerous separate households are economically impossible, infanticide and a plurality of husbands are the natural results. In the same way polygamy may be explained as a consequence of economic abundance. Here as in all other controversies the difficulty is in the point of emphasis of the factors involved. Undoubtedly much of interest and truth can be extracted from a man's geophysical relations, as influences of legal evolution, even if we do not go so far as to say that man and his mores are things of the earth and are governed by the same physical laws as determine the shape of a crystal or the successions of plant life.

“As illustrative of such connections we may point to the rise of commerce and commercial institutions contiguous to the Mediterranean Sea, and in warm climates where nature renders a surplus, and the absence at the same time of anything but the most rudimentary commerce elsewhere. Undoubtedly a physical explanation will answer here. The road to commerce existed and commerce followed the road; but farther back there were yet other physical and psychical conditions which were necessary to suggest the phenomenon which appeared.

“While it may be impossible to find an instance where climate or land has generated a legal idea or a legal institution, there can be no doubt that the geophysic factor has been at least effective in accelerating or multiplying legal phenomena. Without attempting to classify the groups of cases where land or climate has had such a secondary influence based on other primary factors, it cannot be doubted that it may modify national character, that it may affect the economic basis of legal relations, that it may change the current of legal history by cutting a people off from surrounding social influences, and, conversely, that geographical situation is all-important for specific legal histories, if not also for legal history in the abstract-legal evolution.

“The last division of the present volume attempts to cover in general the processes which have been instrumental in organizing human groups

into definite social, political, and legal structures, and the sustaining forces which have governed their development. We have produced some of the leading interpretations of the concept society, although, manifestly, it has been impracticable to give place to each variety of sociological theory variously represented in chief by such writers as Schaffle, or Worms, Small, Brentano, Coste, Fouillee, De Greef, Durkheim, Simmel, Tönnies, and others each of whom represents a type more or less distinct from any of those entered in this work. For full treatment of sociological theory the reader must be referred to its own literature, but the material from sociology included here is justified by the belief, contrary perhaps to legal tradition, that law itself is only a social phenomenon, and is not to be fully understood in detachment from the human bases, necessities, and forces from which it arises.

“These foundations of legal evolution are physical and psychical; but coincident with them is a universalizing element which transcends mere physical necessity and the complex interplay of psychic disposition, tending always in infinite detail and in changing fortune to a refinement of legal phenomena and higher stages of adaptation of legal institutions to the capacities and ends of human society. Spencer has already made thoroughly familiar the principle of differentiation in the biotic and social realm. Maine, also, has called attention to the same thought in legal evolution in his casual comment on the fewness of legal ideas in the ancient world. Thus, for example, the family (an institution which preponderates so largely in all studies on legal evolution), in primitive times, contained within itself the entire stock of legal ideas which emerged only after a long process of economic and social differentiation in the functions of the group.

“The economic and legal relation is one which is particularly intimate, and it is that relation which has given to us the category of what Austin calls pervasive legal ideas. It is, of course, absolutely clear that in a society which is not a closed economic unity, a Robinson Crusoe as it were, there must be ideas, however rudimentary, of possession, liability, and hostages for payment or securities, ideas which rest on the very simplest objective foundations.

An increase of economic function implies something more than a variation of physical motion. It involves likewise a mental exertion as the propulsive force of their existence. As these functions increase, legal ideas slowly and unsteadily sprout out of the soil of necessity and throw out twigs and branches which, while in part dependent on the support and sustenance of the earth, have their chief life and function in the sphere of air and light.

« AnteriorContinuar »