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 Law Library 
 Cornell Law School 
 
 the gift of 
 
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Cornell University Library 
 K 230.B53S9 1912 
 
 The world's legal philosophies. 
 
 3 1924 017 559 547 
 
The original of tliis book is in 
 tlie Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924017559547 
 
THE MODERN LEGAL PHILOSOPHY 
 SERIES 
 
 II 
 The World's Legal Philosophies 
 
THE MODERN LEGAL PHILOSOPHY 
 SERIES 
 
 Edited by a Committee of the 
 ASSOCIA TION OF AMERICAN LA W SCHOOLS 
 
 I. THE SCIENCE OF LAW. By Karl Gareis of the Uni- 
 versity of Munich. Translated by Albert Kocourek of 
 Northwestern University. 
 II. THE WORLD'S LEGAL PHILOSOPHIES. By Fritz 
 BEROLZHErMER of Berlin. Translated by Mrs. Rachel 
 SzoLD Jastrow of Madison, Wis. 
 
 III. COMPARATIVE LEGAL PHILOSOPHY, applied to 
 
 Legal Institutions. By LuiGi Miraglia of the University 
 of Naples. Translated by John Lisle of the Philadelphia 
 Bar. 
 
 IV. GENERAL THEORY OF LAW. By N. M. KoRKUNOv 
 
 of the University of St. Petersburg. Translated by W. G. 
 Hastings of the University of Nebraska. 
 
 V. LAW AS A MEANS TO AN END. By Rudolf von 
 IHERING of the University of Berlin. Translated by Isaac 
 HusiK of the University of Pennsylvania. 
 
 VL THE POSITIVE PHILOSOPHY OF LAW. By I. Vanni 
 of the University of Bologna. Translated by John Lisle of 
 the Philadelphia Bar. 
 
 VIL MODERN FRENCH LEGAL PHILOSOPHY. By A. 
 FouillEe, J. Charmont, L. Duguit and R. Demogue of 
 the Universities of Paris, Montpellier, Bordeaux and Lille. 
 Translated by Joseph P. Chamberlain of the New York 
 Bar, and Mrs. Ethel F. Scott of Urbana, 111. 
 
 VIIL THE THEORY OF JUSTICE. By Rudolf Stammler of 
 the University of Halle. Translated by Frederic S. Spiegel, 
 Judge of the Superior Court, Cincinnati, O. 
 
 IX. SELECT ESSAYS IN MODERN LEGAL PHILOSO- 
 PHY. By Various Authors. 
 
 X. THE FORMAL BASIS OF LAW. By G. Del Vecchio of 
 the University of Bologna. Translated bv JoHN Lisle of 
 the Philadelphia Bar. 
 
 XL THE SCIENTIFIC BASIS OF LEGAL JUSTICE. 
 
 XIL THE PHILOSOPHY OF LAW. By Josef Kohler of the 
 University of Berlin. Translated by Adalbert Albrecht 
 of North Easton, Mass. 
 
 XIII. PHILOSOPHY IN THE DEVELOPMENT OF LAW. By 
 P. DE Tourtoui.on of the University of Lausanne. Trans- 
 lated by Robert L. Henry, Jr., of the University of 
 Illinois. 
 
Modern Legal Philosophy Series: Vol. II 
 
 THE WORLD'S 
 
 LEGAL PHILOSOPHIES 
 
 BY 
 
 FRITZ BEROLZHEIMER 
 
 President of the International Society of Legal and 
 Economic Philosophy at Berlin 
 
 TRANSLATED FROM THE GERMAN BY 
 
 RACHEL SZOLD JASTROW 
 
 of Madison, Wisconsin 
 WITH AN INTRODUCTION BY 
 
 SIR JOHN MACDONELL 
 Professor of Comparative Law in University College, London 
 
 AND BY 
 
 ALBERT KOCOUREK 
 Lecturer on Jurisprudence in Northwestern University 
 
 BOSTON 
 
 THE BOSTON BOOK COMPANY 
 
 1912 
 
/f^S/9J7 O-T-- 
 
 Copyright, 1912 
 By the boston book company 
 
 T/ii RivirdaU Press, brookline, Mass., U.S.A. 
 
GENERAL INTRODUCTION TO 
 THE SERIES 
 
 By the Editorial Committee 
 
 v^-? 
 
 "Until either philosophers become kings," said Soc- 
 rates, "or kings philosophers, States will never succeed 
 in remedying their shortcomings." And if he was 
 loath to give forth this view, because, as he admitted, 
 it might "sink him beneath the waters of laughter and 
 ridicule," so to-day among us it would doubtless resound 
 in folly if we sought to apply it again in our own field 
 of State life, and to assert that philosophers must be- 
 come lawyers or lawyers philosophers, if our law is 
 ever to be advanced into its perfect working. 
 
 And yet there is hope, as there is need, among us to-day, 
 of some such transformation. Of course, history shows 
 that there always have been cycles of legal progress, 
 and that they have often been heralded and guided by 
 philosophies. But particularly there is hope that our 
 own people may be the generation now about to exem- 
 plify this. 
 
 There are several reasons for thinking our people 
 apt thereto. But, without delaying over the grounds 
 for such speculations, let us recall that as shrewd and 
 good-natured an observer as DeTocqueville saw this 
 in us. He admits that "in most of the operations of 
 the mind, each American appeals to the individual exer- 
 cise of his own understanding alone; therefore in no 
 country in the civilized world is less attention paid to 
 philosophy than in the United States." But, he adds, 
 "the Americans are much more addicted to the use of 
 general ideas than the English, and entertain a much 
 
iv GENERAL INTRODUCTION 
 
 greater relish for them." And since philosophy is, 
 after all, only the science of general ideas — analyzing, 
 restating, and reconstructing concrete experience — 
 we may well trust that (if ever we do go at it with a will) 
 we shall discover in ourselves a taste and high capacity 
 for it, and shall direct our powers as fruitfully upon law 
 as we have done upon other fields. 
 
 Hitherto, to be sure, our own outlook on juristic 
 learning has been insular. Tlie value of the study of 
 comparative law has only in recent years come to be 
 recognized by us. Our juristic methods are still primi- 
 tive, in that we seek to know only by our own experi- 
 ence, and pay no heed to the experience of others. 
 Our historic bond with English law alone, and our con- 
 sequent lack of recognition of the universal character 
 of law as a generic institution, have prevented any wide 
 contact with foreign literatures. While heedless of 
 external help in the practical matter of legislation, we 
 have been oblivious to the abstract nature of law. 
 Philosophy of law has been to us almost a meaningless 
 and alien phrase. "All philosophers are reducible in 
 the end to two classes only: utilitarians and f utilitari- 
 ans," is the cynical epigram of a great wit of modern 
 fiction.^ And no doubt the philistines of our profession 
 would echo this sarcasm. 
 
 And yet no country and no age have ever been free 
 (whether conscious of the fact or not) from some drift 
 of philosophic thought. "In each epoch of time," says 
 M. Leroy, in a brilliant book of recent years, "there is 
 current a certain type of philosophic doctrine — a phil- 
 osophy deep-seated in each one of us, and observable 
 clearly and consciously in the utterances of the day — 
 alike in novels, newspapers, and speeches, and equally 
 
 ' M. Dumaresq, in Mr. Paterson's "The Old Dance Master." 
 
GENERAL INTRODUCTION v 
 
 in town and country, workshop and counting-house." 
 Without some fundamental basis of action, or theory 
 of ends, all legislation and judicial interpretation are 
 reduced to an anarchy of uncertainty. It is like mathe- 
 matics without fundamental definitions and axioms. 
 Amidst such conditions, no legal demonstration can be 
 fixed, even for a moment. Social institutions, instead 
 of being governed by the guidance of an intelligent free 
 will, are thrown back to the blind determinism of the 
 forces manifested in the natural sciences. Even the 
 phenomenon of experimental legislation, which is pecu- 
 liar to Anglo-American countries, cannot successfully 
 ignore the necessity of having social ends. 
 
 The time is ripe for action in this field. To quote the 
 statement of reasons given in the memorial presented at 
 the annual meeting of the Association of American Law 
 Schools in August, 1910: — 
 
 The need of the series now proposed is so obvious as hardly to 
 need advocacy. We are on the threshold of a long period of construc- 
 tive readjustment and restatement of our law in almost every depart- 
 ment. We come to the task, as a profession, almost wholly untrained 
 in the technic of legal analysis and legal science in general. Neither 
 we, nor any community, could expect anything but crude results 
 without thorough preparation. Many teachers, and scores of 
 students and practitioners, must first have become thoroughly 
 familiar with the world's methods of juristic thought. As a first 
 preparation for the coming years of that kind of activity, it is the 
 part of wisdom first to familiarize ourselves with what has been 
 done by the great modern thinkers abroad — to catch up with the 
 general state of learning on the subject. After a season of this, we 
 shall breed a family of well-equipped and original thinkers of our 
 own. Our own law must, of course, be worked out ultimately by 
 our own thinkers; but they must first be equipped with the state 
 of learning in the world to date. 
 
 How far from "unpractical" this field of thought and research 
 really is has been illustrated very recently in the Federal Supreme 
 Court, where the opposing opinions in a great case (Kuhn v. Fair- 
 
vi GENERAL INTRODUCTION 
 
 mont Coal Co.) turned upon the respective conceptions of "law'' 
 in the abstract, and where Professor Gray's recent work on "The 
 Nature and Sources of the Law" was quoted, and supplied direct 
 material for judicial decision. 
 
 Acting upon this memorial, the following resolution 
 was passed at that meeting : — 
 
 That a committee of five be appointed by the president, to arrange 
 for the translation and publication of a series of continental master- 
 works on jurisprudence and philosophy of law. 
 
 The committee spent a year in collecting the material. 
 Advice was sought from a score of masters in the leading 
 universities of France, Germany, Italy, Spain, and else- 
 where. The present series is the result of these labors. 
 
 In the selection of this series, the committee's pur- 
 pose has been, not so much to cover the whole field of 
 modern philosophy of law, as to exhibit faithfully and 
 fairly all the modern viewpoints of any present impor- 
 tance. The older foundation-works of two generations 
 ago are, with some exceptions, already accessible in 
 English translation. But they have been long sup- 
 planted by the products of newer schools of thought 
 which are offered in this series in their latest and most 
 representative form. It is believed that the complete 
 series will represent in compact form a collection of 
 materials whose equal cannot be found at this time in 
 any single foreign literature. 
 
 The committee has not sought to offer the final 
 solution of any philosophical or juristic problems; nor 
 to follow any preference for any particular theory or 
 school of thought. Its chief purpose has been to present 
 to English readers the most representative views of the 
 most modern writers in jurisprudence and philosophy 
 of law. The series shows a wide geographical represen- 
 tation; but the selection has not been centered on the 
 
GENERAL INTRODUCTION vii 
 
 notion of giving equal recognition to all countries. 
 Primarily, the desire has been to represent the various 
 schools of thought; and, consistently with this, then to 
 represent the different chief countries. This aim, how- 
 ever, has involved little difficulty; for Continental 
 thought has lines of cleavage which make it easy to rep- 
 resent the leading schools and the leading nations at 
 the same time. Germany, for example, is represented 
 in modern thought by a preponderant metaphysical 
 influence. Italy is primarily positivist, with subordinate 
 German and English influences. France in its modern 
 standpoint is largely sociological, while making an effort 
 to assimilate English ideas and customs in its theories 
 of legislation and the administration of justice. Spain, 
 Austria, Switzerland, Hungary, are represented in the 
 Introductions and the shorter essays; but no country 
 other than Germany, Italy, and France is typical of any 
 important theory requiring additions to the scope of 
 the series. 
 
 To offer here an historical introduction, surveying the 
 various schools of thought and the progress from past 
 to present, was regarded by the committee as unneces- 
 sary. The volumes of Dr. Berolzheimer and Professor 
 Miraglia amply serve this purpose; and the introductory 
 chapter of the latter volume provides a short summary 
 of the history of general philosophy, rapidly placing 
 the reader in touch with the various schools and their 
 standpoints. The series has been so arranged (in the 
 numbered list fronting the title page) as to indicate that 
 order of perusal which will be most suitable for those who 
 desire to master the field progressively and fruitfully. 
 
 The committee takes great pleasure in acknowledg- 
 ing the important part rendered in the consummation 
 of this project, by the publisher, the authors, and the 
 translators. Without them this series manifestly would 
 have been impossible. 
 
viii GENERAL INTRODUCTION 
 
 To the publisher we are grateful for the hearty spon- 
 sorship of a kind of literature which is so important to 
 the advancement of American legal science. And here 
 the Committee desires also to express its indebtedness 
 to Elbert H. Gary, Esq., of New York City, for his 
 ample provision of materials for legal science in the 
 Gary Library of Continental Law (in Northwestern 
 University). In the researches of preparation for this 
 Series, those materials were found indispensable. 
 
 The authors (or their representatives) have cordially 
 granted the right of English translation, and have shown 
 a friendly interest in promoting our aims. The com- 
 mittee would be assuming too much to thank these 
 learned writers on its own behalf, since the debt is one 
 that we all owe. 
 
 The severe labor of this undertaking fell upon the 
 translators. It required not only a none too common 
 linguistic skill, but also a wide range of varied learning 
 in fields little travelled. Whatever success may attend 
 and whatever good may follow will in a peculiar 
 way be attributable to the scholarly labors of the several 
 translators. 
 
 The committee finds special satisfaction in having 
 been able to assemble in a common purpose such an array 
 of talent and learning; and it will feel that its own small 
 contribution to this unified effort has been amply recom- 
 pensed if this series will measurably help to improve 
 and to refine our institutions for the administration of 
 justice. 
 
EDITORIAL COMMITTEE OF THE ASSOCIATION 
 OF AMERICAN LAW SCHOOLS 
 
 Albert Kocourek, Lecturer on Jurisprudence, Northwestern 
 
 University. 
 Ernest G. Lorenzen, Professor of Law, University of Wisconsin. 
 Floyd R. MecheM, Professor of Law, University of Chicago. 
 ROSCOE Pound, Professor of Law, Harvard University. 
 John H. Wigmore, Chairman, Professor of Law, Northwestern 
 
 University. 
 
 LIST OF TRANSLATORS 
 
 Adalbert Albrecht, North Easton, Mass. (Associate Editor of 
 the Journal of Criminal Law and Criminology). 
 
 Joseph P. Chamberlain, Columbia University, New York, 
 N. Y. 
 
 W. G. Hastings, Lincoln, Neb. (Dean of the Faculty of Law, 
 
 State University). 
 Robert L. Henry, Jr., Urbana, 111. (Professor of Law in the 
 
 State University). 
 Isaac Husik, Philadelphia, Pa. (Lecturer on Philosophy in the 
 
 University of Pennyslvania) . 
 Mrs. Rachel Szold Jastrow, Madison, Wis. 
 Albert Kocourek, Chicago, 111. (of the Editorial Committee). 
 John Lisle, Philadelphia, Pa. (of the Philadelphia Bar). 
 Mrs. Ethel Forbes Scott, State University, Urbana, 111. 
 Frederic S. Spiegel, Cincinnati, Ohio (Judge of the Superior 
 
 Court). 
 
INTRODUCTION TO THE TRANSLATED 
 VOLUME 
 
 By Albert Kocourek^ 
 
 At this moment legal philosophy is split up in three 
 important camps — the Neo-Kantians, the Neo-Hege- 
 lians, and the Positivists — and the contending parties 
 are ranged in battle formation on the field of an unyield- 
 ing triangular contest. 
 
 I. The Kantian system is essentially formal. The 
 metaphysical problem of the nature of reality is sub- 
 ordinated to the inquiry into the validity of knowledge. 
 Metaphysics, says Kant, is that science which takes 
 upon itself the task of solving ultimate problems dog- 
 matically and "without any previous investigation of the 
 ability or inability of reason for such an undertaking." * 
 Kant compared himself to Copernicus, and attempted a 
 "complete revolution in the procedure of metaphysics 
 after the example of the geometricians." ' His system 
 
 ^Lecturer on Jurisprudence in Northwestern University School 
 of Law. 
 
 2 "Critique of Pure Reason'' (Meiklejohn's translation), London, 
 1893, Preface vii et seq., p. 5. 
 
 ' "Critique," xxxi. "Time is the formal condition d, priori of 
 all phenomena whatsoever. Space as the pure form of external 
 intuition is limited as a condition d priori to external phenomena 
 alone" — "Critique," p. 30. "They are the two pure forms of all 
 intuition and thereby make synthetical propositions d priori possible. 
 But these sources of knowledge being merely conditions of our 
 sensibility, do therefore, and as such, strictly determine their own 
 range and purpose, in that they do not and cannot present objects 
 
xii INTRODUCTION 
 
 is an elaborate walled-in mechanism constructed of 
 chilled steel set apart from a world about which nothing 
 can be known. It has the rigorous motion of a mathe- 
 matical demonstration and the absolute symmetry of 
 an isosceles triangle. It is only natural that when Kant 
 turned his attention to the law he should base it 
 upon a formal principle, a categorical imperative. This 
 principle is the pure self-determination of the rational 
 will expressed in the formula "Act according to a maxim 
 which may at the same time be applied as a general 
 law." ^ It is at this point that Kant's dualism between 
 a sensuous and a supersensuous world appears in its 
 most prominent aspect. The theoretical reason breaks 
 down to give place to the practical reason, in which 
 freedom is a necessary postulate of faith for the activity 
 of the rational will.'' 
 
 The uniformity and the universality of the laws of 
 nature are apparent to everyone, and the stability and 
 necessity of mathematical propositions have appealed 
 to the human mind from the beginning of philosophic 
 thought. No illusion can be more spontaneous (and 
 our author shows us that illusions are important in the 
 progress of culture) than that there is a fixed external 
 basis of measurement for the valuation of human acts; 
 in other words, that there is a law higher, better, more 
 ideal, or more just than positive law. This thought has 
 paralleled the existence of law.' 
 
 as things in themselves, but are applicable to them solely in so far 
 as they are considered as sensuous phenomena" — "Critique," p. 33. 
 See Windelband, "A History of Philosophy" (Tuft's translation), 
 N. Y., 1910, pp. 532 et seq., and Paulsen, "Intrpduction to Philoso- 
 phy" (Thilly's translation), N. Y., 1907, pp. 389 et seq. 
 
 ' "Metaphysische Anfangsgriinde der Rechtslehre," p. 25. 
 
 * See Windelband, op. cit., p. 554. 
 
 ^SeeBergbohm, "Jurisprudenz und Rechtsphilosophie," i, Leipzig, 
 1892, p. 112. 
 
INTRODUCTION xiii 
 
 Kant's system was not only an intellectual bombshell 
 in the field of the mental sciences, but it also started 
 important and far-reaching developments in the social 
 sciences.! If persuasion is still necessary to show the 
 importance of philosophies in the practical affairs of the 
 world, that proof is readily found in the after-effects of 
 Kant's ideas.^ From the standpoint of the lawyer, per- 
 haps the most important position arrived at by Kant is 
 his atomistic conception of the State and law: the State 
 is the sum-total of the number of individuals in it.' 
 The purpose of the State is simply to afford legal protec- 
 tion to its members in an equal degree. Such a State is 
 limited solely to a protective function, and in political 
 economy gives the "laissez faire" principle.* 
 
 The Neo-Kantian school has attempted to humanize 
 Kant. It has "sought a method of determining not the 
 absolutely and eternally just but the just relatively and 
 
 '" Kant set everything into most animated motion in the camps 
 of all the divisions of the intellectual army, and they all put them- 
 selves under his banner. His rationalism contained not only the 
 germ of a new cultivation of the branches of jurisprudence for 
 which philosophy is an indispensable basis, but even in the purely 
 positive departments of the science, new creations were reared upon 
 the foundation already laid." Friedldnder (in "Outlines of the 
 Science of Jurisprudence," translated by W. Hastie, Edinburgh, 
 1887, p. 262). 
 
 ^Such persuasion as to legal philosophy is still desirable in this 
 country according to Professor Pound, who says: "The present 
 Anglo-American attitude toward the philosophy of law has its 
 counterpart in the phase of juristic thought from which we have 
 happily emerged in which it was fashionable for every dabbler in 
 jurisprudence to have his fling at Austin." "The Scope and Pur- 
 pose of Sociological Jurisprudence," Harvard Law Review, xxiv, 
 no. 8, p. 607. 
 
 ^Berolzheimer, "Fur den Neuhegelianismus." (Archiv fur Rechts- 
 und Wirtschaftsphilosophie, Bd. Ill, Heft 2, p. 194.) 
 
 * See Carets, "Introd. to the Science of Law," p. 223. 
 
xiv INTRODUCTION 
 
 for the time being." ^ It does not propose the ancient 
 doctrine of a system of fixed ideas which are intended 
 to take the place of experience, but it still adheres to a 
 formal principle, a fixed standard for human conduct — 
 a "natural law with a variable content."^ "The con- 
 tent of a rule of conduct is just when in its application it 
 conforms to the social ideal." ' This social ideal is a com- 
 munity of men having a (Kantian) free will. Stammler 
 has substituted for Kant's conception of the highest 
 good (which means a union of virtue and happiness) a 
 concession to the materialism of Feuerbach, Marx, and 
 Engels; but in so far as he gives primacy to the teleo- 
 logical rather than to the causal influence of the processes 
 of economic life, he safely maintains the dualistic posi- 
 tion of his great predecessor.* 
 
 The practical possibilities of this latest disguise of 
 natural law (as Bergbohm would call it) are beyond 
 question. It is adapted for a useful mission of present- 
 ing a tangible, readily understood, and attractive pro- 
 gram for the juridical progress of tomorrow in the same 
 manner that the Benthamic formula of happiness served 
 as the theoretical basis of the legal development of 
 yesterday.' In any event this new (if it can be so 
 denominated) theory of justice will do much to fortify 
 with respectability the rationalistic impulse which re- 
 sides in every human breast; and it will at least tem- 
 porarily rescue the doctrine of natural law from the bad 
 eminence which it had attained before the late revival 
 of juridical idealism. 
 
 ' Pound, "The Scope and Purpose of Sociological Jurisprudence,'' 
 II, Harvard Law Review, xxv, 2, 149-150. 
 
 2 Stammler, "Die Lehre von dera Richtigen Rechte," Berlin 1902, 
 pp. 137 et seq. 
 
 ^Stammler, op. cit., p. 198. 
 
 * Stammler, "Wirtschaft und Recht," 2d ed., Leipzig 1905. 
 
 ^ Cf. Maine, "Ancient Law," London 1909, pp. 83-84. 
 
INTRODUCTION xv 
 
 Yet, before a philosophical acceptance of a natural 
 law with a historically changing content can be assured, 
 this theory must justify itself on difficult ground. It 
 will not be easy to see that form and content have any 
 relation between themselves in a real world, and if they 
 bear no such relation, then we are dealing with mere 
 shadows. The alternative, of a relation as of genus 
 and species, will present difficulties to the man with a 
 logical turn of mind. If the concrete rules of law cannot 
 be permanently fixed, then the generic rule itself 
 must be subject to modification unless, of course, 
 there is a difference of essence between a principle 
 and a rule.^ 
 
 1 1 . The Neo-Hegelians — a name invented by Berolz- 
 heimer, who is one of the leaders of this school — adopt 
 Hegel's concept of evolution but reject his dialectic 
 process. According to Hegel, philosophy is "an inquisi- 
 tion into the rational and therefore the apprehension of 
 the real and present. Hence it cannot be the exposition 
 of a world beyond which is merely a castle in the air, 
 having no existence except in the terror of a one-sided 
 and empty formalism of thought."^ The comer stone 
 of the Hegelian system is the proposition, "What is 
 rational is real, and what is real is rational." "The 
 rational is synonymous with the Idea, because in realiz- 
 ing itself it passes into external existence. It thus 
 
 ^ In his latest book recently published ("Theorie der Rechts- 
 wissenschaft") Stammler makes clearer his philosophical position. 
 In effect, our author, reviewing the book, says that it tries to make 
 a compromise between the voluntarism of Schopenhauer and the 
 formalism of Kant through the social welfare theory of Ihering, 
 and the reviewer descriptively adds that Stammler's conception of 
 the will ("woUen") is a body without head or feet ("Archiv fur 
 Rechts- und Wirtschaftsphilosophie" v, 2, 320). 
 
 2 "Philosophy of Law" (Dyde's translation), London, 1896, xxvi. 
 
xvi INTRODUCTION 
 
 appears in an endless wealth of forms, figures, and 
 phenomena."' 
 
 It is a system of logical pantheism embracing all 
 nature and history as a unified whole which unfolds as the 
 self-development of Idea by logical necessity. The Idea 
 or Spirit is objectified in Law, Morals, and the State. 
 The subjective or absolute Spirit is found in art, religion, 
 and science. 
 
 Hegel's concept of freedom is perhaps the most 
 striking point of contact with the practical application 
 of the law. Kant emphasized the freedom of the indi- 
 vidual, and attempted to raise the principle of freedom 
 to an universal principle. Hegel finds in the Kantian 
 position antinomies and developments in which "the 
 moral standpoint wanders aimlessly around without 
 being able to find a way of escape from the mere abstract 
 imperative" — "it lacks all organic feeling. "^ Freedom, 
 says Hegel, is the substance of the Spirit ; — not the 
 will of individual men, but the general will of the Godly 
 substance is the principle of Law, Morals, and the State.' 
 The State is an ethical notion, but its full realization is 
 found only in universal history. 
 
 From these metaphysical foundations (thus touched' 
 in most general outline) of the most imposing world- 
 system in the history of philosophy — combining, as 
 Windelband says, "the intellectual labors of two thousand 
 years" — the school of legal philosophy of which Josef 
 Kohler is the acknowledged head takes its essential 
 groundwork.* According to Kohler, law is a cultural 
 
 ' Op. cit. xxvii. 
 
 ' Op. cit., p. 129. 
 
 ' Harms, "Begriff, Formen, und Grundlegung der Rechtsphiloso- 
 phie" (Leipzig 1889), pp. 67 et seql 
 
 * "They [the Neo-Hegelians] may claim, not without reason, to 
 be the heirs of what is best in the philosophical and historical schools 
 of nineteenth-century Germany" — Pound, op. cit., in Harvard Law 
 Review, xxv, 2, 155. 
 
INTRODUCTION xvii 
 
 phenomenon.! It is, therefore, historical and relative, 
 and not (as Hegel thought) the product of pure reason 
 and logical unfoldment. Berolzheimer departs from 
 Kohler, not in the foundations, but rather in the super- 
 structure. 
 
 The two cardinal elements and working-ideas of 
 Neo-Hegelianism are evolution and pantheism. There 
 is constant transformation, and unity in diversity. 
 Hegel's evolution differed from Darwin's in this, that 
 it is a rational process and not simply mechanical.^ 
 Kohler has substituted for Hegel's rationalism the 
 notion of Culture, unfolding, not with logical necessity, 
 but yet governed by a transcendental principle.' "God 
 does not make a reckoning every working-day." Prog- 
 ress therefore is not an unyielding dialectical process, 
 but an empirical development with a fulness of life.* 
 The logical principle is bound up in the world's history 
 with much that is illogical.* Justice contends with 
 injustice, and truth with error. Change is the relative 
 manifestation of reason; and the cultural principle at 
 the background of the multiplied activities of historical 
 development leads progressively to man's increased 
 dominion over the forces of nature. Man is not a mere 
 placental mammal, as Haeckel asserts, but has the 
 
 1 See Kohler, "Rechtsphilosophie und Universalrechtsgeschichte,'' 
 in Holtzendorff Enz., 6th ed., Bd. i, pp. 1-69. 
 
 ^ See Kohler, "Moderne Rechtsprobleme," Leipzig 1907, sec. 3, 
 p. 6. 
 
 ' Kohler, loc. cit., p. 9. Cf. the critical essay on Kohler by Prof. /. 
 Castillejo y Duarle in "Biblioteca de Derecho y de Ciencias Sociales," 
 Madrid 1910. 
 
 *See in this connection the work of the Italian Neo-Hegelian, 
 Croce, enlarged and translated into German under the title, "Leben- 
 diges und Totes in Kegels Philosophie," Heidelberg 1909. 
 
 " Kohler, "Lehrbuch der Rechtsphilosophie," Berlin 1909, p. 13. 
 
xviii INTRODUCTION 
 
 capacity of acquiring the attributes of godliness.* 
 Thought and things are not, as in the Kantian system, 
 poles apart, but are consubstantial ; they are related as 
 form and image.^ Kohler places a strong emphasis on 
 legal ethnology and universal history — Berolzheimer 
 thinks too much emphasis.' Berolzheimer therefore 
 also concludes that Kohler has perhaps made Culture 
 too prominent, and that what he has felt with the 
 intuition of the philosopher he has expressed rather 
 with the skill of the artist than with the analytical and 
 logical precision of the scientist. 
 
 In another important aspect, Berolzheimer again 
 departs from Kohler — in the function of the human 
 will. The Heraclitean notion that all things are in a 
 flux of becoming, and that change is the essential attri- 
 bute of being, Berolzheimer thinks excludes a practical 
 mission to Kohler's philosophy of law. He therefore 
 insists that legal philosophy is a branch of practical 
 philosophy, having to do with human standards and 
 requiring the interpenetration of the human will with 
 the totality of forces which create the restless evolu- 
 tionary chain. 
 
 The Hegelian doctrine therefore requires for its com- 
 pletion the idea that all culture, including legal culture, 
 is an artificial force. This seems to be the principal 
 point of separation between Kohler and Berolzheimer. 
 Kohler's position seems to be quietistic,* at least teleo- 
 logically, while Berolzheimer's point of view is active 
 
 ' Kohler, "The Mission and Objects of Philosophy of Law," 
 III. Law Rev., V, 7, 426. 
 
 2 "Lehrbuch," p. 9. 
 
 ' "Die Deutsche Rechtsphilosophie im Zwanzigsten Jahrhundert" 
 (1900-1906), in "Archiv f. R.-u. W. phil.," i, 1, 134. 
 
 * Kohler vigorously denies this: see "Moderne Rechtsprobleme,'' 
 p. 17. 
 
INTRODUCTION xix 
 
 and practical. For him, philosophy of law is not merely 
 an explanation of cultural phenomena, the possession 
 of enlightened minds, the ideological counterpart which 
 reflects but does not participate in the infinite multi- 
 plicity and variability of life, but is a tangible, objec- 
 tive and effective instrument which may be applied to 
 the problems of human society. It should, however, 
 be stated that the variance between these great leaders 
 of Neo-Hegelianism on this important philosophical 
 position may turn out to be apparent rather than 
 actual, since neither writer has entered on the dis- 
 cussion of the point sufficiently to allow an absolute 
 judgment. 
 
 III. The Positivist School displaces a metaphysics 
 of things with a metaphysics of knowledge. According 
 to Hume, one of the greatest of England's philosophers, 
 "There is no knowledge of what things are and 
 how they work: we can say only what we perceive 
 "by sensation, what arrangement in space and time 
 and what relations of resemblance we experience be- 
 tween them."' 
 
 Hume's position reached its best applied formulation 
 in Comte, for whom relativity is the only absolute 
 principle. On its theoretical or epistemological side. 
 Positivism changed into Kantian Criticism, while on the 
 practical side. Positivism parallels in part the line of 
 Neo-Hegelianism. For Comte, sociality is an original 
 fact and is not connected with individuals. This postu- 
 late is one much admired by the Neo-Hegelians;" but 
 the Positivists make society more important than the 
 State, and this proposition the Neo-Hegelian does not 
 admit. 
 
 * Windelband, op. cit., p. 478. 
 
 • Thus Kohler, "Vom Positivismus zum Neu-Hegelianismus," in 
 "Archiv fiir Rechts- und Wirtschaftsphilosophie," iii, 2, 167. 
 
XX INTRODUCTION 
 
 The most recent and best known development of 
 Positivism is expressed by the pragmatic philosophy,* 
 "The test of amount of existence in a given object 
 is, for pragmatism as for common sense, amount of 
 resistance."^ 
 
 If the Positivism of Comte was (as Kohler says) 
 diluted materialism, it has at this day thoroughly dried 
 out; it has become the philosophy which expresses the 
 popular conception of the world, realistic empiricism. 
 Thus Positivism rejects metaphysics, and looks with sus- 
 picion on ethics. Its methods are inductive and analyt- 
 ical; It proceeds upon the basis of the natural sciences 
 in all departments of knowledge. The world is subjected 
 to the test of scientific investigation by the aid of experi- 
 ence alone, and in the hands of such systematizers as 
 Spencer an attempt is made to unify the results of this 
 investigation in a single principle. It does not concern 
 itself with the ultimate nature of things, holding them 
 unknowable, and rests on mere description. It cut^ 
 into the dead body lying stark on the dissection table 
 but it knows nothing of life. 
 
 This safely external and unimaginative method lends 
 to Positivism both its weakness and its strength: its 
 weakness, in that it is incapable of touching any of the 
 ultimate problems of life; its strength, in that it never 
 wanders out of the domain of lived truths. This school 
 will find a place in this series in a work of the renowned 
 Italian teacher, Icilio Vanni, and is brilliantly represented 
 in this country in its sociological aspect by one of our 
 profoundest juristic scholars, Roscoe Pound. 
 
 1 Cf. Dauriac, "Positivisme et Pragmatisme," in "Revue Philoso- 
 phique," xxxvi, 12, 584. 
 
 "Dauriac, "Le Pragmatisme et le Realisme," Rev. Ph. xxxvi, 
 10, 337 (Katherine Everett's summary in The Philosophical Review, 
 xxi, 1, 119). 
 
INTRODUCTION xxi 
 
 Berolzneimer finds in the work of Stammler some 
 things to commend, but he repels the assertions of the 
 sociological school with the greatest vehemence, as 
 fatalistic, teleological, and philosophically inert. It 
 requires to be noticed, however, that the sociological 
 school, through its adherents in the various depart- 
 ments of social science, has had a greater influence than 
 the pure Hegelian philosophy in bringing about that 
 very emancipation of the classes which Berolzheimer 
 (annexing the group sociology of Gumplowicz) indicates 
 as the greatest practical vocation of philosophy of law; 
 and that it has been one of the strongest forces work- 
 ing with a practical program and a readily understood 
 theory in the latter-day movement of the socialization 
 of the law. 
 
 The Positivist claims a place in front of the stage of 
 life. He relies for his understanding of the play on what 
 comes to him in the way of representation. He deals 
 with phenomena and not noumena. He does not know 
 and assumes that he cannot know what goes on behind 
 tlje scenes. The Kantian has a position back of the 
 stage where in the midst of the mechanism of cate- 
 gories, analytic and synthetic judgments, and paralogisms 
 of pure reason, he hears and sees with a foreign under- 
 standing, and concludes that the reality cannot be 
 known. The Hegelian alone has the center of the stage 
 and participates in the action. He is not troubled with 
 the problem of reality. He knows that the play is gov- 
 erned both by the principles of unity and reason, but 
 he inclines to the fatalistic view that the movement 
 follows fixed laws of dramaturgy, that the unfoldment 
 of the play is beyond his control. The position of both 
 the Kantians and Hegelians has changed. The Kantian 
 now assumes that the mechanical trappings of the stage 
 rray. be used for various scenarios; and the Hegelian 
 
xxii INTRODUCTION 
 
 has come to believe that he may interpolate lines. The 
 Positivist has, however, not changed his position; he 
 is still a spectator, although a critical one. 
 
 In this enumeration of schools of philosophy of law the 
 omission will be noted, of course, of some familiar and 
 not unimportant theoretical viewpoints. This is be- 
 cause these standpoints are absorbed by one of the 
 leading schools (and usually the Positivist School), or 
 do not rise to the universality of a valid philosophy, or 
 are wholly apart from a philosophy of law. Thus, 
 ethnological and historical jurisprudence is only an 
 auxiliary of philosophy of law ; the psychological theory 
 in its various aspects never rises above a method, a 
 theory or a department of science ; the biological theory 
 seems to possess only an analogical and descriptive value; 
 the theological view overshoots the mark of philosophy; 
 the teleological notion is swallowed up by the Positivist 
 School; the Natural Law standpoint is taken into 
 account in the Neo-Kantian School in most of its recent 
 variations, and in its eighteenth century form is dis- 
 credited evsrywhere except in America; the purely ethi- 
 cal idea of law resolves itself into some other final or 
 mediate theory; the last observation holds also for the 
 types of the law of reason; the school of "free legal 
 interpretation" rests either on a method or combines 
 elsewhere — only once or twice has it risen to a 
 philosophic attachment; and finally the imperative or 
 political theory of law rests on nothing but the will of the 
 lawgiver. 
 
 Berolzheimer's painstaking work, of which this book is 
 the second volume, is the most important systematic 
 contribution to philosophy of law since Lasson's "System 
 der Rechtsphilosophie," published more than twenty 
 years earlier. In this volume is presented everything 
 of interest in the history of philosophy of law — so far at 
 
INTRODUCTION xxiii 
 
 least as Germany has been concerned. The Germans 
 are incUned to claim sufficiency unto themselves in any 
 department of philosophy, and perhaps justly so; but 
 the almost entire lack of consideration of modern philo- 
 sophic thought in other countries, and particularly in 
 Italy, will be quickly noted, and might be regarded as a 
 defect not to be lightly excused in an author who has 
 shown such immense reading, such sound legal and his- 
 torical scholarship, and so masterly an execution of a 
 most difficult labor. Taken even with its preponderant 
 localization of treatment, and deducting for the fact that 
 it carries a philosophy of its own which it seeks to impress 
 on the reader at every point — even with these allow- 
 ances, Berolzheimer's book is the most satisfactory 
 treatise on the history of philosophy of law in any litera- 
 ture. The extent of the author's industry may be appre- 
 ciated when it is seen that nearly seven hundred authors' 
 names are entered in the original work, of which number 
 about two hundred receive more or less extended 
 notice. The original text is securely fortified by an 
 impregnable defense of footnotes and arsenals of bibli- 
 ographies. It was thought desirable in this translation 
 to eliminate a large part of this reference apparatus. 
 
 "Since Kant," says the author, "the superstition has 
 grown that clear and simple writing is not philosophical." 
 This superstition is fairly demolished in the present 
 original text, and the learned translator has adequately 
 completed the work of destruction in this English render- 
 ing. If a comparison may be forgiven, we might say 
 that the translator's English is better than the author's 
 German. 
 
 No childbirth is so heavy with labor and pain as the 
 childbirth of an idea. "It can hardly be realized," says 
 Berolzheimer, "that a truth so near and so apparent 
 as the reciprocity of economics and law should so tardily 
 
xxiv INTRODUCTION 
 
 find a place in science, and that this truth is even yet 
 combatted." For Berolzheimer, philosophy of law with- 
 out an economic content is an empty vessel. A purely 
 speculative philosophy of law based on categorical impera- 
 tives, intellectual abstractions, or a dialectical process 
 leads to nothing in this world. Neo-Hegelianism cer- 
 tainly means idealism, but it is realistic idealism. It 
 employs the methods of the laboratory sciences, and 
 supplements their statistical and experimental results 
 by the aid of comparative law and legal ethnology. The 
 economic content of law of which Berolzheimer speaks 
 is not, as he is careful to explain, the material conception 
 of Marx, but includes all the factors bearing on social 
 life. Law is the form, economics is the material. The 
 economic associates are one with the citizens of the 
 state ; economic subjects are identical with legal subjects ; 
 and economic objects are the same as legal objects. 
 Accordingly, he says, the idea of the just on its formal 
 side is the object of philosophy of law, and the idea c^ 
 the just on the material side is the object of economics. 
 
 Ethics, like law, is an artificial force; but it acts on 
 social life by a different sanction. Politics is (as Berolz- 
 heimer has expressed it) the small change of philosophy 
 of law. Philosophy of law alone is fruitful as the original 
 source of political ideas. 
 
 In another place ^ Berolzheimer has made one of 
 those interesting and illuminating generalizations sug- 
 gestive of the genius of Maine to show the essential rela- 
 tivity of law. He outlines three evolutionary stages in 
 the cultural progress of law and economics. The first 
 is the period of the confusion of religion and law, in 
 which society is a religious association. The second is 
 the anethical stage, in which law breaks away entirely 
 
 ' "Deutschland von Heute," Berlin, 1910. 
 
INTRODUCTION xxv 
 
 from ethics. The classic example is the ancient Roman 
 "jus civile." In the third step of evolution there is a 
 synthesis of law and morals. Law is softened and 
 refined by the ethical notion, which is fundamentally, 
 as he tells us, nothing other than the humanitarian idea. 
 
 The present work exhibits the progressive steps in the 
 development of this humanitarian thought in the law, 
 based on economics; the whole modern period consist- 
 ing of a variety of emancipation processes beginning 
 with the separation of Church and State, following 
 with the emancipation of the common people, and end- 
 ing with the economic freedom of the Fourth Estate. 
 
 We are seriously concerned with the past because of our 
 more serious concern for the future. The world now 
 faces new economic problems of peculiar difficulty and 
 urgency. Can anything be more stupid than our legal 
 treatment of such questions as the tariff, the trusts, and 
 the labor problem? In the words of the author, "The 
 extent and variety of these problems point imperatively 
 to a profounder, scientific preparatory labor which can 
 only be furthered by a philosophy of law and economics." 
 
INTRODUCTION TO THE TRANSLATED 
 VOLUME 
 
 By Sir John Macdonell ' 
 
 In Germany there Is, and long has been, a vast litera- 
 ture treating, under the title "Philosophy of Law," of 
 subjects which American and English lawyers rarely 
 discuss. Our author propounds problems, debates, re- 
 jects or accepts solutions which for them have little 
 interest; as to some of them, I might even say, no 
 meaning. Only certain minds feel strongly the need 
 of a complete conception including all phenomena in a 
 particular region, a clear view of all the facts and their 
 fusion into a whole.* Those who have been bred in the 
 study of English law rarely experience this need, which 
 has called forth the literature reviewed in this book. 
 They do not inquire into the justification of coercion, 
 discussed by Stammler and many other writers ; enough 
 for them that it exists. They do not examine the rela- 
 tions of economics to law; that question is for others. 
 They do not deal with the proper province of the State; 
 that also is outside their inquiries. I am tempted to 
 say that English jurists begin at the point where many 
 Continental jurists stop. For the former, philosophy 
 
 ' Vice-chairman of The Society of Comparative Legislation, co- 
 editor of the Journal of the Society of Comparative Legislation, 
 Professor of Comparative Law in University College, University of 
 London. 
 
 2 "A systematic co-ordination of the several (social) phenomena 
 under a comprehensive principle." Stammler. 
 
xxviii INTRODUCTION 
 
 is an intruder. They look with some suspicion upon 
 Jurisprudence; they will not look beyond it, to the 
 fundamental problems, discussed in these pages with 
 great knowledge and wide outlook. That whole atti- 
 tude has become untenable. In times such as these, 
 of changes profoundly affecting all parts of law, it 
 is essential to go back to principles; and he who 
 would not be the mere "leguleius" must be the 
 philosophic jurist. 
 
 As understood by many of the writers whom Dr. 
 Berolzheimer reviews, the Philosophy of Law is not 
 jurisprudence even in the widest sense of that term; 
 it is not so in the view of Dr. Berolzheimer himself. 
 It is not sociology or a part thereof; our author and 
 others distinguish it therefrom ; they show that sociology 
 does not solve the chief problems with which they are 
 concerned. It is not historical or comparative or eth- 
 nological jurisprudence. "The peculiarly important 
 philosophic problem of the origin of law and Government, 
 comparative law cannot be expected to solve, if for no 
 other reason than that it ever finds the presence of law 
 and Government as a pre-requisite for its study." The 
 study of these subjects may be necessary preliminaries 
 to a philosophy of law, but they are not identical with 
 it. Nor is it Ethics, though according to some of the 
 authors noticed in these pages, many of the problems 
 of both are the same. It is not the psychological basis 
 or origin of law ; though that is discussed by Dr. Berolz- 
 heimer and many of the authors passed in review. Nor 
 is this diversity wonderful. There being no agreement 
 as to what is law, perhaps it is not surprising that 
 writers are not at one as to what is the philosophy of 
 law. 
 
 What then is the philosophy of law? The answers 
 of the many authors who are passed in review in these 
 
INTRODUCTION xxix 
 
 pages, though very diverse, agree as to the vastness of the 
 subject. "It is," says one answer, "an attempt to fur- 
 nish the key to all the problems presented by legal phe- 
 nomena" — which would embrace everything into which 
 law enters. According to Krause, it is the science of 
 law and the State in pure reason. According to Lasson 
 it is "the doctrine of the realization of the idea of the 
 good in human will." In the view of the latter, it is "a 
 division of ethics." It touches economics; it deals 
 with the province of the State. "Philosophy of law is 
 the search of first and supreme principles, while general 
 jurisprudence recognizes similarities of fact, of ho- 
 monyms, and does not consider the reasons" (Miraglia). 
 There are, no doubt, narrower definitions. Wundt in 
 his "Philosophische Studien" classifying the sciences 
 which deal with the products of human intelligence, places 
 the philosophy of law along with Ethics, Esthetics, and 
 the Philosophy of Religion. According to Dahn, a 
 writer of great acuteness, it is the rational and neces- 
 sary element of law, which but for the ambiguous word 
 "rational" closely corresponds to the ordinary defini- 
 tion of jurisprudence. The wider definitions, which 
 predominate, bring us back to something like Ulpian's 
 definition : ' ' Jurisprudentia est divinarum atque humana- 
 rum rerum notitia justi atque injusti scientia." These 
 fundamental questions are discussed by Dr. Berolz- 
 heimer in a work of remarkable learning, a striking 
 example of the thorough and encyclopedic manner in 
 which German investigators go to work; an impressive 
 rebuke to those who neglect the labors of their predeces- 
 sors and who are apt to confound with true discoveries 
 what is novel to them only. I have before me as I 
 write the works of Stahl, Krause, and Lasson, dealing 
 with the Philosophy of Law. They are not comparable 
 with this volume in point of research. 
 
XXX INTRODUCTION 
 
 I should not, however, be stating my opinion with 
 sincerity if I did not add a few qualifying words. Some 
 of our author's criticisms seem to me to be defective; 
 it could not be otherwise in so vast a review. Justice 
 is not done to Hobbes, or Bentham, or Austin. Juris- 
 prudence has been cleared by each of these writers, of 
 ambiguities and false analogies. It is too little to say 
 of Austin's contributions that "they consider the funda- 
 mental questions of legal science rather than those of 
 legal philosophy." It is not without interest that some 
 writers who have lately influenced jurisprudence in 
 Germany have done so by adopting substantially the 
 methods and conclusions of Austin; I have in view, in 
 particular, Binding. His "fundamental idea," remarks 
 Dr. Berolzheimer, "that the imperative norm forms the 
 essence of law is a permanent contribution to legal 
 philosophy," is a restatement of Austin's chief position. 
 Full justice is not done (to name a very different writer) 
 to Gans. I have found his history of inheritance full 
 instruction. He had in no small degree the fine historic 
 sense of his master, Hegel's power of discovering the 
 great streams and movements of events. I take leave 
 to question the statement: "It (Gans's book) had no 
 influence upon the development of legal philosophy." 
 Nor do I think that our author has accurately appre- 
 ciated the value of Bachofen's teaching, or Ihering's; 
 he has over-estimated the positive results of the inquiries 
 of the former, and under-rated the merits of the latter. 
 The evidence for the general existence of "Mutterrecht," 
 does not, to say the least, increase; the influence of the 
 "Geist des romischen Rechts" was never greater than 
 now. It will seem to some that, though Ihering's legal 
 philosophy is not the whole truth, it is an important 
 part of it. 
 
 A further criticism may be added. There is in these 
 
INTRODUCTION xxxi 
 
 pages a mixture of many diverse things. Whatever be 
 the definition of the Philosophy of Law, a fivefold task 
 awaits the investigator: first, to trace the origin of law 
 to its sources in human nature, whether the "appetitus 
 socialis" of Grotius, or "desire of the communal life of 
 man" of Wundt, or the pleasure in exercising power; 
 in other words, to solve certain psychological questions; 
 next, to connect law with the society and circumstances 
 of the time in which it originates or exists; an inquiry 
 of supreme importance if law be "the form into which 
 substantive relations crystallize under the influence of 
 economic conditions or of other elementary forces" 
 {Bosanquet, "The Philosophic Theory of the State," 
 p. 36) ; further to analyze the ultimate elements of law, 
 for example, whether coercion is an essential element; 
 further to state the laws (if there be such) of its growth ; 
 lastly to discriminate between ethics and law. Speak- 
 ing frankly, I do not think that answers are to be found 
 in these pages to all these questions, and the results, 
 valuable though they are, of the inquiries, might have 
 been more valuable if the various answers had been 
 kept distinct. 
 
 One omission may be noted : our author has virtually 
 nothing to say as to international law. And yet it 
 must be included in any rational account of law, or 
 reasons must be given for its omission. Nay, more, 
 being one of the latest developments of law and 
 outside most of the older definitions, it is of supreme 
 interest to one who would trace the essentials of law 
 and its growth. 
 
 I add one further observation suggested by the 
 author. Mere accumulation of facts will not enable the 
 investigator to solve these problems. But, if there is not 
 to be much cobweb-spinning, he must know and keep in 
 close contact with facts; he must at every step come 
 
xxxii INTRODUCTION 
 
 back to them. Otherwise he will give us the "caput 
 mortuum" of Scholasticism. Our author justly deplores 
 the fact that "after Kant philosophy became in the 
 main a specialty; and men wrote upon ethics without 
 knowing humankind and on the philosophy of law with- 
 out a thorough knowledge of law." The reader who has 
 breathed the highly rarifted air of the speculations in 
 these pages, will derive pleasure and profit by turning 
 from time to time to some highly concrete question of 
 the law of landlord and tenant or the rights of parties 
 to a negotiable instrument. 
 
 No two persons will extract the same results from this 
 vast survey, beginning with the speculations of the 
 Greek philosophers upon law and ending with the latest 
 works on jurisprudence, economics, and sociology. I 
 take leave to indicate these as in my view among the 
 most important: 
 
 There is a constant or often renewed attempt to 
 revive in a new form the conception of a natural law; 
 of a "richtiges Recht," of a law to which legislation may 
 or may not conform. Writer after writer discussed in 
 these pages makes this attempt. They may mean 
 thereby "natural laws favoring the interest of the race" 
 (Ratzenhofer). They may speak of such a law as a 
 theoretically just law under empirically conditioned cir- 
 cumstances — "a natural law with a variable content" 
 (Stammler). They may say, "What is conformable to 
 natural law represents the absolutely desirable" 
 (Ratzenhofer). They may have us view "the necessary 
 factors" in law as opposed to the accidental (Brentano). 
 They may say with Schopenhauer: "The conceptions, 
 wrong and right, as equivalent to injury and non- 
 injury, are obviously independent of positive legisla- 
 tion and antecedent to it. There thus exists a pure 
 ethical or natural law and a pure science of law inde- 
 
INTRODUCTION xxxiii 
 
 pendent from all statutes." Many agree in believing 
 in a "lex naturalis" of some sort. It might be better to 
 break with old associations and to annex this province 
 in part to ethics and in part to politics; but inveterate 
 usage, on the Continent at all events, terms it law. 
 No one now supposes that there is a "lex aeterna et uni- 
 versa" in the sense that certain laws are found every- 
 where and at all times ; history and ethnological inquiries 
 dispose of that assumption. Nor is it possible to evolve 
 a priori from a few principles, as jurists of the seven- 
 teenth and eighteenth centuries conceived, a system of 
 law. Criticising the shortcomings of Pufendorf 's system, 
 Leibnitz remarks that he should like to see a work in 
 which would be found luminous and fruitful definitions; 
 in which the conclusions would be deduced from some 
 principles, logically and consecutively; in which the 
 foundation of all actions and all proper exceptions should 
 be established in an orderly fashion; nothing being 
 forgotten, needed to enable those beginning the study of 
 natural law to supply for themselves what was omitted 
 and to decide by rules and principles all questions that 
 present themselves. Few, if any, hope that this can be 
 realized. In point of fact, the results obtained by the 
 writers on natural law who have attempted this work 
 fall far short of this; they have been meagre and dubi- 
 ous. But it is true — and this is brought out by sev- 
 eral of the writers who are noticed in these pages — that 
 at all times there exists a sense of justice which approves 
 some kinds of legislation and condemns others. That 
 sense of justice is in some societies and at certain times 
 clearer and more exigent than at other times. "Just" 
 and "unjust" are ambiguous words. They may mean 
 no more than giving what the law awards. They may 
 be used with a peculiar meaning in a theocratic state of 
 society. The secularizing of jurisprudence has an effect 
 
xxxiv INTRODUCTION 
 
 upon their meaning. They are not the same thing for 
 the Greek as for the Hebrew. But there is a sense in 
 which justice is understood by ail and at all times. 
 It insists upon certain conditions. A law which con- 
 demned accused persons without hearing them; which 
 took away property from one person and gave it to 
 another chosen by mere caprice; which said that laws 
 should be retrospective — such measures might be 
 passed in conformity to statutory requirements; they 
 would not be the less unjust. I borrow from Riimelin 
 a remark as to this: "It (justice) is a universal critic; 
 it makes increasing demands. Not content with 'Jus- 
 titia' as understood by Roman law, which only sought 
 to preserve to each his own, it strives that the rights 
 and benefits which each should have, accord to his 
 merits." That fact — -the sense of justice everywhere 
 present and always either growing or declining — • is the 
 second pillar of "natural law" as understood by modern 
 jurists. 
 
 It has been said that "natural law" is the ghost of 
 natural religion; it might be described as the embodi- 
 ment or evolution of justice. To find a natural relation 
 between certain conditions of society and certain moral 
 ideals; to study the growth of the conception of justice 
 and to ascertain the effects — that is the hope of many 
 and is not unattainable. It is notable that the equiv- 
 alent of "sequitas" and "naturalis ratio" reappears 
 in modern Codes ^ Bentham, the enemy of natural 
 law, as understood in the eighteenth century applied 
 to all law the utility test; which is natural law in 
 another form. 
 
 I note a fresh conclusion, which is, that society at any 
 given time is a whole and of a piece; that there does 
 exist a necessary relation between law at any time and 
 
 ' See, for example, Article I of "Code Civil Suisse." 
 
INTRODUCTION xxxv 
 
 the existing society; that all law is relative to some 
 existing society; that, though there is no absolute law 
 suitable for all times and places, given certain economic 
 conditions, certain forms of family, a certain ethical 
 creed, there will be laws corresponding thereto. There 
 is no escaping this necessity. A ruler may try to impose 
 his will in capricious fashion. But everyone, even the 
 ruler, is a child of his time and cannot overstep certain 
 limits. (Bruns-Lenel Encyclopadie, I, 76) The law is 
 not a robe or dress changeable at will; it is very part 
 of the body social. Even the composers of Utopias are 
 circumscribed and are the creatures of their circum- 
 stances. In the "Republic" and the "Laws" are im- 
 bedded much of the Athenian law of Plato's age. More 
 and Campanella are unconsciously in their political 
 romances thinking of their own time. All hangs to- 
 gether — law, ethics, religion, economics. 
 
 Again, I borrow from Riimelin a stateinent of this 
 view: "Das es iiberhaupt eine Rechtsordnung giebt, 
 dass die gesammte Staatsmaschine nicht still steht, 
 sondem geht, dass die Rader ineinander greifen, ist 
 nicht etwas Erzwingbares sondem etwas Thatsachliches" 
 ("Reden," Neue Folge, 337). There is a social "Ord- 
 nung" and a "Rechtsordnung" corresponding thereto. 
 One great advance has been to realize this necessary 
 connection ; while breaking with the idea of a universal 
 and immutable natural law, to grasp the idea of law as 
 constantly and necessarily changing in harmony with 
 the changing national life. And that natural life is not 
 a loose collection of fortuitous elements. "No con- 
 traction or 'Zusammenhang' of 'disjecta membra' will 
 ever make a living whole. This is the truth that the 
 whole eighteenth century fails to grasp and that the 
 nineteenth has taught us to appreciate fully." ' 
 
 1 Ward, "The Realm of Ends," p. 120. 
 
xxxvi INTRODUCTION 
 
 I state as a further result to be extracted from the 
 elaborate review : In the opinion of the great majority of 
 the authors considered, the functions of Government 
 cannot be confined to the maintenance of peace and 
 order. It is, and must be, an instrument of culture. 
 It would seem as if with the decline of the power of the 
 Church, the State were obliged to take over some of the 
 interests which the former ought to guard. And so 
 we have such expressions as that borrowed from Cohen 
 ("Ethik des reinen Willens"): "Justice must be main- 
 tained as a guide to virtue ; and its constant progress is 
 possible only through the instrument of law and 
 progress." (125.) Positive law is " a coercive effort 
 towards Justice" (Stammler). 
 
 If humanity is to get a great lift upwards all must 
 aid, including the representative of the will of all. The 
 constant progress of justice is "possible only through 
 the instrument of law and Government." "Laissez 
 faire" is arrested development. 
 
 I note another conclusion to be deduced from the 
 examination of the writings of the long list of authors, 
 and especially the moderns. There is a new conception 
 of liberty which it is the aim of law to carry out. Much 
 has been written about political freedom; freedom to 
 speak, write, meet, form associations, enter into con- 
 tracts — in other words, protection against external 
 pressure and freedom to do as one likes. It may mean 
 also the minimum amount of interference comparable 
 with each being free to do as he likes; regulations im- 
 posed upon all citizens in the interest of all. 
 
 But there is another conception of it as freedom for 
 the development of all human faculties; freedom not 
 merely from violence or tyranny and external pressure, 
 but freedom from the pressure which checks, stunts and 
 impoverishes the best in human nature; freedom which 
 
INTRODUCTION xxxvii 
 
 enables one to say, "We can do what we ought." There 
 is the conception of the larger liberty, the higher liberty ; 
 the removal of all that stands in the way of the full 
 development of man. Originating in philosophy, this 
 conception has come to be recognized as one of the 
 objects of law. "Law is," Kant said, "the aggregate 
 of the conditions under which the arbitrary will of one 
 individual may be combined with that of another under 
 a general inclusive law of freedom." In such sentences 
 as these is the starting point of a new conception of the 
 province of the State and the functions of law. Certain 
 writers — notably Hegel — • have familiarized jurists with 
 the conception of the State as realizing freedom. I 
 cannot better express this idea than in the words of 
 Durkheim: "II se trouve que la liberty elle mime est le 
 produit d'une r6glementation. Loin d'itre une sort 
 d'antagonisme de Taction sociale, elle en resulte. Elle 
 est si peu une propri6t6 de I'dtat de nature qu'elle 
 est au contraire une conquite de la soci6t6 sur la 
 nature."* 
 
 Yet another result: the secularization of law. Con- 
 nected with religion in all primitive communities, in 
 some most intimately connected therewith, it becomes 
 more and more separated therefrom. "La religion 
 embrasse une portion le plus en plus petite de la vie 
 sociale. A Torigine elle s'^tend ^ tout" (Durkheim). The 
 supernatural sanctions of law decrease. Its chief sup- 
 port is the prevailing public opinion. The oracles 
 become dumb, but conscience speaks, and where law is 
 respected and jurisprudence is studied, speaks more 
 and more clearly. Akin to this change is the separation 
 of law and ethics ; a process complete in certain branches 
 of the former, but still in certain others (for example, 
 in international law) not fully carried out. 
 
 1 "De la Division du Travail Social," (1893), p. 433. 
 
xxxviii INTRODUCTION 
 
 I note a further conclusion of importance in view of 
 the claims of sociology. No mere statement of facts, 
 however general in terms, is sufficient; the element 
 "ought" must be included; consequently sociology of 
 itself is insufficient as a full philosophy of law ; any theory 
 which does not account for the ought, must be insuffi- 
 cient. The attempts of Ratzenhofer and others to 
 found thereon a legal philosophy have failed. Ethics are 
 not merely higher physics. Upon this subject our author 
 justly remarks: "The definiteness of legal concepts 
 gives way to the foggy confusion of social-political, 
 social reformatory, and social ethical discussions, fer- 
 tile in proposals that prove to be valueless and ineffec- 
 tive when philosophically tested. A return to legal 
 and economic philosophy remains the sole scientific 
 procedure." * 
 
 My last observation is this: There is a philosophy or 
 spirit of law deeper than that of Montesquieu. He did 
 much to get beneath the surface of law; to trace its 
 roots and relationship ; to show that mere legal analysis 
 was imperfect ; that the parts of national life were united 
 to each other. His work has been continued and ex- 
 tended. "The generalities of Jurisprudence," it has 
 been said, "are vitalized and completed by the work of 
 the science of culture" (Bosanquet, "Philosophical Theory 
 of the State," 41). Dr. Berolzheimer's work enables us 
 to ascend to a height from which we can see law as an 
 ever present part of an ever flowing stream. 
 
 ' One of the latest attempts to reduce jurisprudence to a branch 
 of sociology is made by M. Rolin ["Prolegomenes k la science du 
 Droit" (1911)]: "La sociologie est I'etude des adaptations de I'homme 
 k la vie en society. Le droit est une de ces adaptations, celle qui k 
 pour but de combattre, par la contrainte, les effets ou les causes de 
 certains defauts d' adaptation, juges intolSrables" (p. 4.) Expressed 
 in words, the ethical element returns in the phrase italicized. 
 
NOTICE OF TH^ AUTHOR'S LIFE 
 AND WORKS 
 
 Fritz Berolzheimer, Jur. D., was born January 3, 1869. 
 He is managing editor of the "Archiv fur Rechts- und 
 Wirtschaftsphilosophie" (now in the fifth volume), the 
 world's leading journal of philosophy of law; president 
 of the International Society of Legal and Economic 
 Philosophy (Berlin); and joint-editor, with Dr. Paul 
 Laband and six other eminent jurists, of the "Handbuch 
 der Politik," now being issued (Rothschild, Berlin). 
 
 The present volume is the second of his five-volume 
 work published by Beck at Munich (1904-1907) under 
 the title "System der Rechts- und Wirtschaftsphiloso- 
 phie." Volume I of this work (pp. xii, 327) is a 
 philosophical introduction which treats the theory of 
 knowledge; volume III (pp. xi, 370) deals with the phil- 
 osophy of the State including the fundamental principles 
 of politics; volume IV (pp. x, 335) deals with the 
 philosophy of property and commercial transactions; 
 and volume V (pp. ix, 280) treats the philosophy of 
 crime and punishment. He is also author of "Rechts- 
 philosophische Studien (Munich, 1903); "Die Entgel- 
 tung im Strafrecht" (Munich, 1903) ; "Deutschland von 
 Heute" (Berlin, 1909); "Die Gefahren einer Gefuhls- 
 jurisprudenz in der Gegenwart" (Berlin, 1911); and 
 numerous smaller writings which have appeared in vari- 
 ous German publications. He is one of the most active 
 and best known of the Neo-Hegelians among legal philoso- 
 phers, and has been one of the most efficient agents in 
 the new German awakening of Philosophy of Law. 
 
AUTHOR'S PREFACE 
 
 The present volume treats of the historical evolution 
 of the philosophy of law and economics in their bearing 
 upon contemporary interests and movements. The 
 political and legal institutions of former periods are 
 included only in so far as they show influence upon later 
 developments. Avoiding the usual text-book account 
 of the successive contributions to the philosophy of law, 
 I have confined the presentation to that of the successive 
 cultural stages in terms of their distinctive ideas, prin- 
 ciples, conceptions, and doctrines, and of their practical 
 issues and demands. ^ For this purpose the historical 
 survey must go back further than the customary point 
 of departure in ancient Greece, and include the legal and 
 economic institutions of Egypt, Assyria, India, Judea, 
 and Phcenicia, from which the theory and practice of 
 the Grseco-Roman legal philosophy were derived. The 
 emphasis is to be placed not upon the doctrines, but 
 upon the form and development of the legal principles 
 which they illustrate. I have considered the philosophy 
 of law not from without, as summarized in the presenta- 
 tions of writers on legal philosophy, but from within, 
 as a natural and cultural product. While philosophers 
 stimulate and lead their contemporaries, they are them- 
 selves products of the culture of their day; for they 
 reflect the limitations of the available data and scientific 
 
 1 Theoretical philosophy emphasizes in the historical survey 
 the question: How shall the philosopher proceed? What shall be 
 his method? But for the purposes of practical philosophy the 
 chief question becomes: What results does he find? What is the 
 outcome and the bearing of his conclusion? 
 
xlii AUTHOR'S PREFACE 
 
 knowledge, and follow current intellectual trends. 
 Knowledge conditions the methods and range of facts 
 and systems by means of which truth is extended; the 
 stage of culture influences the general position, and the 
 direction and mode of advance of practical philosophy. 
 It is the intellectual attitudes, as they find expression 
 from time to time, that have a larger importance for the 
 philosophy of law and economics than have the doctrines 
 and arguments of individual philosophers, whose chief 
 value, indeed, lies in their service in presenting formu- 
 lations of such general views. Moreover, theoretical 
 principles are of secondary importance in comparison to 
 the political embodiment, to which, in periods of agita- 
 tion and progress, such philosophies aspire. 
 
 Such then is my task; and if, despite the valuable aid 
 afforded by the efforts of my predecessors ^ in this field, 
 it has proven to be a difficult one, the difficulties must 
 serve to excuse the imperfections of my work. The 
 emphasis, in the historical portions, of interpretations 
 that bear out my general philosophical position, hardly 
 needs justification. Law, government, morality, cus- 
 tom, and social regulation, are artificial forces register- 
 ing accomplished advances in intellectual development; 
 and the historical illustrations serve to support my 
 views of the forces directing the philosophy of law and 
 
 'A commendable essay of this type is that of Ahrens, "Natur- 
 recht," Vol. 1, sixth edition, Vienna 1870, pp. 13 seq. In this he 
 gives a brief survey of Oriental civilization. But since his day new 
 discoveries have brought forward notable information which must 
 be utilized for its bearing upon legal philosophy. He contributes 
 careful interpretations of Greek and Roman law; yet here likewise 
 his expositions must be supplemented with reference to recent 
 interests. Since Lasson's work in 1882 there has been no compre- 
 hensive survey of legal philosophy. 
 
 [A work bearing upon this field, but with closer reference to 
 economics, is that of Haney. — Editor's Note.] 
 
AUTHOR'S PREFACE xliii 
 
 economics, as well as to survey the philosophical stages 
 of development. If such development proves that the 
 trend of civilization is towards the increase of human 
 efficiency by establishing the artificial institutions of law, 
 government, religion, ethics, and social organization, 
 then the same inductive evidence applies to the inter- 
 pretation of law and morality as equally artificial 
 achievements; and the later volumes of this work may 
 proceed deductively to apply this position to the insti- 
 tutions of law, the functions of economics, and the 
 foundations of ethics. 
 
 The utilitarian attitude, as presented by Ihering, holds 
 that progress is the issue of conscious rational and 
 deliberate striving. The contrary is more nearly true. 
 When we consider the larger cultural movements of 
 ancient and modern times, we appreciate that the 
 actual beliefs by means of which the masses are forced 
 from their political conservatism, and won over to a 
 new form of government, cannot be considered object- 
 ively valid. We observe that the reasons advanced in 
 defense of the new movements and in opposition to 
 tradition, whether in religion, in law, or in economics, 
 are found in the light of later development to lack an 
 objective basis. Yet such intellectual movements can- 
 not accomplish their mission without the support of the 
 real, though misinterpreted motives, which, in turn, 
 often seek a false goal. History shows that the ends 
 striven for and attained are not correctly formulated in 
 consciousness; the alleged purpose and the achieved 
 accomplishment are rarely the same. Indeed, one may 
 even dignify this observation by making of it a principle 
 of unconscious or disguised motivation.* 
 
 In the progressive development of law there may be 
 
 » Kohler, "Recht, Glaube, Sitte" (Grunh. Z., Vol. 19, 1892, pp. 
 561-612). 
 
div AUTHOR'S PREFACE 
 
 distinguished a foreground occupied by rhetorical 
 accounts of the steps accomplished and the reforms 
 proposed, and a more solid background of working forces 
 that determine the real strength of the movement. 
 Writers on the philosophy of law generally emphasize 
 the former by giving an account of the contributions of 
 the greater and lesser leaders; historians emphasize the 
 latter in their descriptions of related cultural conditions. 
 It is the second and more difficult task that must be 
 undertaken by the student of the philosophy of law. 
 Illusion and error may even serve a purpose in intel- 
 lectual progress; and truth often comes to its own 
 through the medium of fallacy. Yet such fallacies, 
 common in periods of spiritual unrest, differ in trend and 
 temper from consciously entertained deceptions. The 
 latter are antagonistic to the interests of culture, while 
 illusions ^ are conservative of cultural ends. This 
 applies as well to government and to law; for it will be 
 recalled that historically, political power, legal regula- 
 tion, and customs were popularly conceived as expres- 
 sions of the divine ^ will. The philosophy of law is 
 ready to accept this as an historical fact, but finds the 
 true meaning in the interpretation thereof.* 
 
 * For errors that have proven conducive to intellectual progress 
 I shall use the technical term, illusions. 
 
 Although I discovered and developed this conception independ- 
 ently, it is by no means novel. In the preparation of this work I 
 accidentally came upon the work of Georg Adler, "Die Bedeutung 
 der lUusionen fiir Politik und soziales Leben," Jena 1904. Adler's 
 priority of statement I gladly acknowledge. 
 
 ^ One is reminded of Nietzsche's phrase: "Philosophy does not 
 suffice for the masses. They demand sanctity." "Der Fall Wagner," 
 Part I, Vol. 8, Leipzig 1896, p. 14. 
 
 ^ Dahn, "Die Vernunft im Recht," p. 27: "In the consciousness 
 of the people the legal norms appear in all manners of disguise." 
 Kohler repeatedly refers to the same idea. 
 
AUTHOR'S PREFACE xlv 
 
 The latter portions of this volume present a survey 
 of economic movements of modern, highly differentiated 
 society. While approaching the problems objectively 
 and without prejudice and partisanship, I assume a 
 definite position in regard to current political questions 
 and policies. The duty of an investigator, as I interpret 
 it, is to set forth plainly what he considers sound and 
 scientifically defensible, whether or not his subject bears 
 upon the political contentions of the day. The stages of 
 evolution of the law form the primary consideration, 
 but the economic factors have not been overlooked; 
 for legal progress is not limited to the formulation of 
 laws, but embraces the economics and social institutions 
 and movements which vitalize them. The reference to 
 my political views may be justified by the fact that the 
 great political questions and platforms are essentials 
 of the philosophy of law. Philosophies become effective 
 through their practical issues; * they form theoretical 
 skirmishes in a political evolution or revolution ; ^ they 
 
 ^ The work that gave Grotius his reputation was conceived and 
 carried out primarily as a political treatise. The power of political 
 documents to command attention appears in the reputation which 
 Montesquieu achieved, while his contemporary, Ferguson, a man of 
 no less distinction, received slight consideration. The former 
 proposed fundamental political positions and the latter did not. 
 Similarly Marx and Lassalle held the eager attention of the public, 
 while those who were merely legal philosophers have been ignored 
 and forgotten. 
 
 ^ There is an essential difference in the spirit of the ancient and 
 of the modern legal philosophy. The Greek citizen-class, from which 
 the most of the philosophers arose, was conscious of itself as an 
 integral part of the civic city-state. It was therefore only through 
 its opposition to every form of tyranny that the Greek economic 
 philosophy had political importance. Apart from this, ancient 
 legal philosophy, especially among the Greeks, was merely a legal 
 appendix to ethics, as appears particularly in Plato's extreme 
 emphasis of the communal spirit as opposed to an over-individualism. 
 
xlvi AUTHOR'S PREFACE 
 
 accomplish their purpose as a political influence. The 
 appearance of a new political view affects legal phil- 
 osophy. The difference in attitude between law and 
 politics is one of interest and, in turn, of scope; the 
 broader view requires the larger field of vision. The 
 subject-matter of the philosophy of law is government, 
 and the law as organized; these are not finished con- 
 structions, but are in the process of growth. Accord- 
 ingly philosophy, equally with politics, must be directed 
 to the future. 
 
 Legal philosophy, though in part undesignedly, in 
 the past has exerted a reforming influence upon 
 politics, 1 and will maintain its position only in so 
 far as it continues to exert it. The scientific stand- 
 ing of the philosophy of law was lost when vain 
 dialectics' were substituted for tangible results. The 
 philosophy of law supplies practical jurisprudence with 
 a special method whose power of analysis makes possible 
 the solution of problems too complex for any less ade- 
 quate instrument ; to regain its proper status and esteem 
 it must again assume this serviceable function, and not 
 follow servilely the lead of practice. It may well begin 
 with the inductive study of law and economics, but must 
 proceed resolutely to its rightful philosophical function 
 
 It had no independent status and was more a theoretical philosophy 
 of justice than a practical philosophy of law and government. It 
 was only in the Middle Ages and under the pressure of the Church 
 that there arose a longing for political freedom ; under the influence 
 of the intellectual emancipation following upon the Reformation 
 there was inaugurated the great process of enfranchisement that 
 found its consummation in our own day. 
 
 ' The history of legal philosophy is essentially the history of the 
 great political movements of liberation, of the emancipation of 
 humanity. Ancient history closes with the advent and the Chris- 
 tian establishment of the humanitarian conception; modem times 
 present the completion of the emancipation. 
 
AUTHOR'S PREFACE xlvii 
 
 of providing the rational support, the directive guidance 
 of theoretical insight.^ 
 
 Legal philosophies and political doctrines are closely 
 related. My own position reflects and supports the 
 emphasis of "class interests," and accords to social and 
 ethical principles the position of a corrective influence 
 to counteract the unrestrained self-seeking, incident to 
 a "laisser faire" policy. 
 
 Owing to the position of this volume as part of a pro- 
 jected series, I have supplied an Introduction in which, 
 along with bibliographical references, I have presented 
 the conception of legal philosophy, the method which it 
 pursues, and its demarcation from allied disciplines. 
 Literature, so far as it bears upon the philosophy of law, 
 has Deen fully utilized; specific contributions to the 
 philosophical aspects of law, sociology, and economics, 
 are noted, but only the more important general works 
 on philosophy and ethics are mentioned. 
 
 Munich, Easter, 1905. 
 
 • In the most notable philosophies of Plato and his disciples, as 
 likewise of Kant and his school, reason plays a predominant part. 
 But the ancient rational philosophy correctly interprets the nature 
 of reason, while the modern does not. For Plato, as for Aristotle, 
 reason is the capacity to interpret the nature of things. For Kant 
 reason is pure experienceless thought. My own philosophy is neo- 
 Platonic in that it regards reason as the capacity for knowledge 
 based upon conceptions and ideas. This view involves a direct 
 relation with the philosophy of knowledge as laid down in the 
 Jewish-Christian religion. Man is a being endowed with the 
 divine spirit, a being whose knowing and thinking, though dependent 
 upon his material organization, is not restricted by it, but is capable 
 of abstracting from the material embodiment, and has direct access 
 to the infinite and to the possession of true ideas. 
 
TABLE OF CONTENTS 
 
 INTRODUCTION 
 
 Page 
 
 § 1. Conception of the Philosophy of Law 1 
 
 § 2. Literature of the Philosophy of Law 4 
 
 § 3. Conception of the Philosophy of Economics 5 
 
 § 4. Demarcation of the Philosophy of Law from Nat- 
 ural Law, General Jurisprudence, Comparative 
 
 Law, and Legal Sociology 6 
 
 1: Philosophy of Law and "Natural Law" 6 
 
 2: Philosophy of Law and General Jurisprudence 9 
 
 3: Philosophy of Law and Comparative Law .... 12 
 
 4: Philosophy of Law and Legal Sociology 14 
 
 § 5. Demarcation of the Philosophy of Economics from 
 Political Economy, Social Economy, and Social 
 
 Ethics 16 
 
 1 6. The Method of the Philosophy of Law 17 
 
 § 7. Law and Economics 20 
 
 CHAPTER I 
 
 Origins of Oriental Civilization 
 
 § 8. Ancient Egypt 25 
 
 § 9. Babylonia and Assyria 32 
 
 1 : Babylonian and Assyrian Civilization 32 
 
 2: The Code of Hammurabi 34 
 
 § 10. The Vedic Aryans 37 
 
 §11. The Jewish State 40 
 
 § 12. The Phoenicians 45 
 
1 CONTENTS 
 
 CHAPTER II 
 The Ancient Commonwealth: Greek Civilization 
 
 § 13. The Greeks before Plato 46 
 
 1 : Fundamental Greek Conceptions 46 
 
 2: Subjectivism and Objectivism 49 
 
 3: The Pythagorean Philosophy 51 
 
 4: The Philosophy of Heraclitus 55 
 
 5: The Sophists 56 
 
 6: The Socratic Philosophy 57 
 
 § 14. Plato 60 
 
 1: The Platonic Conception of Virtue and Justice 60 
 
 2: Plato's General Philosophy 63 
 
 3: Practical Justice and Social Virtue 64 
 
 4: The Idealand the Real State 65 
 
 5: The Influence of Plato 66 
 
 § 15. Aristotle 67 
 
 1 : The Basis of Ethical Conduct 67 
 
 2: The Greek Ari tocrat 68 
 
 3: Society and the State 70 
 
 4: Justice and Equity 72 
 
 5: The Origin of Civic Life 73 
 
 § 16. The Post-Aristotelean Period 74 
 
 1 : The Cynics 74 
 
 2 : The Cyrenaics 75 
 
 3 : The Stoics 75 
 
 4 : The Epicureans 76 
 
 5 : The Sceptics 77 
 
 6: The Neo-Platonists 77 
 
 CHAPTER III 
 
 The Civic Empire of Ancient Rome and the 
 moralization of roman law 
 
 § 17. The Roman Peasant State: the "Jus Civile" 78 
 
 1 : Rights : Absence of Ethical Factors 78 
 
 2: The "Paterfamilias"asthe Center of RomanLaw 80 
 
 § 18. The Roman-Italian State: The Rejuvenation of Law 
 
 through "^quitas" 82 
 
 §19. The Roman Empire: Introduction of the Philosophy 
 
 of Law through Cicero 87 
 
 §20. TheDeclineof the Ancient Empire: Christian Ethics 83 
 
CONTENTS li 
 
 CHAPTER IV 
 The Bondage of Medievalism 
 § 21. The Spiritual Dominance of Rome (St. Augustine; 
 Thomas Aquinas; The Doctrine of the Two 
 
 Swords) 93 
 
 1 : The Church and Greek Philosophy 93 
 
 2: The Philosophy of St. Augustine 94 
 
 3: The Philosophy of Thomas Aquinas 98 
 
 4: The Tenet of the Two Swords 101 
 
 § 22. Economic and Social Restrictions 103 
 
 1 : The Yeoman and the Citizen Class 103 
 
 2: The Economic Influence of the Church 104 
 
 3: The Crafts and Trades 106 
 
 § 23. More Liberal Trends of the Middle Ages 108 
 
 1: Dante Alighieri 108 
 
 2: William of Occam 108 
 
 3: Marsilius of Padua and the Sovereignty of the 
 
 People 109 
 
 4: Nicholaus Cusanus 109 
 
 5 : The Writings of Niccolo Machiavelli 110 
 
 CHAPTER V 
 
 Civic Emancipation: The Rise and Decline of 
 
 "Natural Law" 
 
 § 24. The Reformation as a Stimulus to Individualism 113 
 
 § 25. Hugo Grotius 115 
 
 § 26. The Rebellion against Tyranny 118 
 
 § 27. Legal Philosophy of the Seventeenth Century 122 
 
 1: Hobbes 122 
 
 2: Pufendorf 124 
 
 3: Spinoza 127 
 
 4: Thomasius : 132 
 
 5 28. Legal Philosophy in England 134 
 
 1: Locke 134 
 
 2: Bentham 137 
 
 3: Mill; Austin 139 
 
 S 29. Legal Philosophy in France 141 
 
 1 : Montesquieu 141 
 
 2: Rousseau 143 
 
 3: Diderot 152 
 
 4: Godwin 155 
 
lii CONTENTS 
 
 § 30. Legal Philosophy in Germany 156 
 
 1^ Leibnitz 156 
 
 2: Wolff 160 
 
 3: Frederick the Great , 162 
 
 § 31. Mercantilists and Physiocrats 165 
 
 1: The System of Colbert 165 
 
 2: Quesnay and other Physiocrats 167 
 
 I 32. The Classical Economists: Adam Smith; Ricardo . . . 170 
 1: Industrial Development: the Economics of 
 
 Adam Smith 170 
 
 2: Ricardo 174 
 
 3: Say 178 
 
 4: Malthus 178 
 
 1 33. Kant; Fichte; Schopenhauer 180 
 
 1: Kant 180 
 
 (a) The Historical Position of Kant 180 
 
 (6) Kant's Ethics 181 
 
 (c) Kant's Philosophy of Law 189 
 
 (d) The Origin and the Purpose of the State 187 
 
 (e) The Present Significanceof Kant'sPhilosophy 188 
 2: Fichte 192 
 
 (a) The Position of Fichte 192 
 
 (b) Fichte's Philosophy of Law; 194 
 
 (c) Fichte's Philosophy of Economics 198 
 
 (d) Lawand Culture 200 
 
 (e) Fichte as a Statesman 201 
 
 3 : Schopenhauer 201 
 
 § 34. Schelling and the Historical School 204 
 
 1: Schelling 204 
 
 2: Other Representatives of the Historical School 211 
 
 § 35. Hegel and the Hegelians 215 
 
 1 : Hegel's Philosophy of Law 215 
 
 2: Lawand the Human Will 217 
 
 3 : Hegel's Dialectic 219 
 
 4 : Hegel's Conception of the State 223 
 
 5: Fundamental Legal Ideas: Person, Property, 
 
 Injury, and Crime 224 
 
 6: A Critical Verdict of Hegel 228 
 
 7: The Hegelians 232 
 
CONTENTS liii 
 
 § 36. Recent Systems of Legal Philosophy 233 
 
 1 : Stahl 233 
 
 2: Trendelenburg 238 
 
 3: Krause , 240 
 
 4: Ahrens 245 
 
 5: Herbart 248 
 
 6: Dahn 252 
 
 7: Lasson 255 
 
 CHAPTER VI 
 
 The Emancipation of the Proletariat. Encroach- 
 ment UPON THE Philosophy of Law by 
 Economic Realism 
 
 § 37. French Communism 260 
 
 1 : Saint-Simon 260 
 
 2: Fourier 264 
 
 3: Louis Blanc 265 
 
 4: Communism, Anarchism, and Socialism 267 
 
 § 38. German Socialism 269 
 
 1: Marx 269 
 
 2: Lassalle 274 
 
 3: Engels 276 
 
 4: Rodbertus 276 
 
 5: Bebel 278 
 
 6: Kautsky 279 
 
 7: Bernstein 280 
 
 8 : A Survey of the Process of Emancipation 281 
 
 § 39. Anarchism 287 
 
 1 : Proudhon; the Older View 287 
 
 2: Stirner; Extreme Individualism 289 
 
 3: Krapotkin; the Communistic View 291 
 
 4: Bakunin; the Position of Violence 292 
 
 5: Tucker and Tolstoi; Moderate Anarchism .... 297 
 
 ! 40. Further Types of Socialism 298 
 
 1: Menger 298 
 
 2: Loria 303 
 
 3: Sombart 304 
 
liv CONTENTS 
 
 CHAPTER VII 
 
 The Sociological Reconstruction of Legal 
 Philosophy 
 
 § 41. The Development of Sociology 308 
 
 1 : Comte and the Beginnings of Sociology 308 
 
 2: Positivism and Sociology 313 
 
 3: The Sociology of Spencer 317 
 
 § 42. Sociological and Social-ethical Extremist? 323 
 
 1: The Conception of "Society" 323 
 
 2: Social Ethics 331 
 
 3: Sociological Ideals 333 
 
 I 43. Social Utilitarianism 336 
 
 1 : Shaftesbury 336 
 
 2: Ihering ■ 337 
 
 § 44. The Sociological School 351 
 
 1 : Its Distinctive Position 351 
 
 2 : Its Precursors 352 
 
 3: Gumplowicz 356 
 
 4: Ratzenhofer 358 
 
 5: Recent Representatives: Tonnies, Kloppel, 
 
 Bergemann 365 
 
 6: Critical Summary of the Sociological Position .. 368 
 
 7: Applications of the Sociological Position 369 
 
 (a) To Corporations 369 
 
 (b) Penology 372 
 
 § 45. Realistic and Historical Trends in Political Economy 
 
 and Sociology 375 
 
 § 46. The Theory of Norms 381 
 
 § 47. Ethnological Jurisprudence 387 
 
 §48. The Reinstatement of Kant and Hegel; V. Hartmann 392 
 
 1 : Neo- Kantianism 392 
 
 2: Neo-Hegelianism 422 
 
 3: Hartmann 427 
 
 §49. Psychological Aspects of Law and Economics 431 
 
 1: The Psychological Basis 431 
 
 2: Zitelmann 435 
 
 3: Jellinek 435 
 
 4: Criminal Psychology 442 
 
CONTENTS 
 
 § 50. Recent Surveys of Fundamental Problems 446 
 
 1 : Merkel and his Followers 446 
 
 2: Schmidt 450 
 
 3: Paulsen 451 
 
 4: Bauman 453 
 
 5: Schuppe 454 
 
 1 51. The Influence of the Principles of Evolution 456 
 
 1: Social Aristocracy; Nietzsche 456 
 
 2: Evolutionary Monism; Haeckel 458 
 
 3: Evolutionand Socialism 461 
 
 562. ClassandState 466 
 
LIST OF JOURNALS, ETC., REFERRED TO IN NOTES 
 
 Griinhut's Zeitschrift fiir das Privat- und Offentliche Recht der 
 
 Gegen wart : Griinh. Z. 
 Zeitschrift fiir Vergleichende Rechtswissenschaf t : Z. f. v. Rechtsw. 
 Hirth's Annalen des Deutschen Reichs: Hirth's Ann. 
 Beling's Strafrechtliche Abhandlungen : Beling's Abh. 
 Zeitschrift fur die Gesammte Straf rechtswissenschaft : Z. f. d. G. Str. 
 Von Holtzendorff-Kohler, Enzyklopadie der Rechtswissenschaft: 
 
 Enzyklopadie. 
 SchmoUer's Jahrbuch : Sch. Jahrb. 
 Conrad's Jahrbuch: Conrad's Jahrb. 
 Braun's Archiv fiir Soziale Gestezgebung und Statistik: Braun's 
 
 Archiv. 
 Avenarius, Vierteljahrsschrift fiir Wissenschaftliche Philosophie: 
 
 Avenarius. 
 
The World's Legal Philosophies 
 
The World's Legal Philosophies 
 
 INTRODUCTION 
 
 CONCEPTION OF THE PHILOSOPHY OF LAW. — LITERATURE OF 
 THE PHILOSOPHY OF LAW. — CONCEPTION OF THE PHILOSOPHY 
 OF ECONOMICS. — DEMARCATION OF THE PHILOSOPHY OF LAW 
 FROM "NATURAL LAW." GENERAL JURISPRUDENCE, COMPARA- 
 TIVE LAW, AND LEGAL SOCIOLOGY: (1) PHILOSOPHY OF LAW 
 AND "NATURAL LAW"; (2) PHILOSOPHY OF LAW AND GENERAL 
 JURISPRUDENCE; (3) PHILOSOPHY OF LAW AND COMPARATIVE 
 LAW; (4) PHILOSOPHY OF LAW AND LEGAL SOCIOLOGY. — DEMAR- 
 CATION OF THE PHILOSOPHY OF ECONOMICS FROM POLITICAL 
 ECONOMY, SOCIAL ECONOMY, AND SOCIAL ETHICS. —THE METHOD 
 OF THE PHILOSOPHY OF LAW. — LAW AND ECONOMICS. 
 
 § 1. Conception of the Philosophy of Law. The 
 philosophy of law is the critical study of formulated 
 law.* Leaving to practical jurisprudence the deter- 
 mination of what is lawful, the philosophy of law pro- 
 poses the problem of the nature of the law itself. It is 
 
 • Parallel definitions are given by Cicero, "De legibus," I, 5: "Non 
 ergo a praetoris edicto, ut plerique nunc, neque a duodecim tabulis, 
 ut superiores, sed penitus ex intima philosophia hauriendam juris 
 disciplinamputas." See also "De legibus," I, 4, at the end. Others 
 interpret differently. Hegel, "Grundlinien der Philosophic des 
 Rechts'' (§ 1, p. 22), remarks: "The philosophy of law has fdr its 
 subject the idea of law, the conception of law and its realization." 
 Stahl, "Die Philosophic des Rechtes," Vol. 1, second edition, 1847, 
 (p. 1): "The philosophy of law is the science of justice." See also 
 Slahl's preface to the first edition, 1830, p. xi. Geyer, "Geschichte 
 und System der Rechtsphilosophic in Grundzugen," Innsbruck, 
 1863, while not offering a definition, says: "Philosophy is the 
 
2 INTRODUCTION 
 
 a division of legal science, yet belongs equally to prac- 
 tical philosophy. The jurist considers the structure 
 and function of law; the philosopher, its underlying 
 principles and causes. The interest of the former is 
 centered upon the content of the law ; of the latter, upon 
 
 science that supplements all other sciences and brings them to 
 completion" (p. 1); "The philosophy of law is a division of ethics" 
 (p. 3); "The philosophy of law proposes an ideal which the actual 
 order is to attain, not the law as actually prevailing" (p. 3). 
 Ahrens, "Naturrecht," sixth edition, Vienna, — 1870 (Vol. 1, p. 1): 
 "The philosophy of law or natural law is the science which derives 
 the supreme principle or conception of law from the nature and des- 
 tiny of man and of human society, and develops a system of legal 
 principles for all the divisions of private and public law." Ahrens, 
 "Cours de droit naturel," VIII, Leipzig, 1892 (Vol. I, p. 1): "The 
 philosophy of law or natural law is the science that sets forth the 
 first principles of law as conceived by reason and as based upon the 
 nature of man considered in itself and in its relations with the uni- 
 versal order of things." What is thus characterized is not legal 
 philosophy in general, but the legal philosophy of Krause and 
 Ahrens. DaAre, "UberWerdenund WesendesRechts" (II),inZ.f. v. 
 Rechtsw., Vol. 111,1881, pp. 3 seq., §6,designates the problem of the 
 philosophy of law as that "of establishing the idea of law and the 
 several products and manifestations of legal activity as a mode of 
 manifestation of the absolute law. Legal philosophy thus attempts 
 to determine and present the inherent logical element in the law." 
 ("Rechtsphilosophischer Historismus.") See also Dahn, "Die Ver- 
 nunft im Recht," Berlin, 1879, pp. 13-15. Also §36. Lasson, 
 "System der Rechtsphilosophie," Berlin and Leipzig, 1882 (pp. 1 and 
 10): "The philosophy of law is a division of ethics, and is the doc- 
 trine of the realization of the idea of the good in human will. . . . 
 Ethics embraces in addition to the philosophy of law the co-ordinate 
 divisions of the philosophy of customs, of moral philosophy or the 
 doctrine of virtue, and the doctrine of morality or the moral per- 
 sonality. . . . The problem of the philosophy of law is to interpret 
 existing law as an expression of reason and in its connection with 
 other tendencies and phenomena of life." Harms, "Begriff, For- 
 men, und Grundlegung der Rechtsphilosophie," edited by von Wiese, 
 Leipzig, 1889 (p. 21): "Accordingly the philosophy of law is the 
 science of the presuppositions and fundamental conceptions of an 
 
PHILOSOPHY OF LAW 3 
 
 "the spirit of the law." ' The philosophy of law^ stands 
 in intimate relation to political science — to governmen- 
 tal, social, punitive, commercial, agricultural, and tariff 
 regulations.' Politics considers how new legislative situa- 
 
 empirical study of law." Bergbohm, "Jurisprudenz und Rechts- 
 philosophie: Kritische Abhandlungen," Vol. 1, Leipzig, 1892 (p. 103) : 
 "We expect the philosophy of law to inform us as to the inner 
 nature and ultimate basis of the law as it exists. It attempts to 
 furnish the key to all the problems presented by legal phenomena." 
 /. Kohler, "Enzyklopadie der Rechtswissenschaft,'' 1902 (p. 3): 
 "The philosophy of law is a branch of the philosophy of humanity, 
 that is, of that philosophy which is to determine the position of 
 man and of human civilization in the world and in worldly activi- 
 ties. The expressions of human culture reach their highest point 
 in philosophy in that they thus receive their interpretation as a 
 part of the cosmos; the same is true of the law. The philosophy 
 of law must envisage man as the bearer of culture; and as culture 
 constantly advances, if man and the world are not to stagnate, the 
 philosophy of law is the problem of interpreting law as a constantly 
 developing evolutionary process." And again (p. 9): "We must 
 place the results of the history of law in connection with the general 
 history of culture; we must attempt to determine the significance 
 of the history of culture in the cosmos, and further to determine 
 the operation of legal institutions and of their history in the develop- 
 ment of culture, and thus in the evolution of the cosmos. Only in 
 this manner, as I conceive it, is a legal philosophy possible." Eisler, 
 ''Worterbuch der Philosophischen Begriffe und Ausdriicke," Berlin, 
 1900 (p. 633) : "The philosophy of law is the systematic study of the 
 origin, content, and import of the conception of law in connection 
 with the consideration of the principles of government." 
 
 ' The term "spirit of the law" ("esprit des lois") appears first in 
 the title of JfontogMi'eM'i well-known work. See below, §29. Ihering 
 (d. 1890) adopted it for his work, "Geist des Romischen Rechts 
 auf den verschiedenen Stufen seiner Entwickelung." 
 
 * The philosophy of law is related to the encyclopedia of law 
 which furnishes a systematic survey and arrangement of the 
 material of law, and to general jurisprudence which presents a state- 
 ment of the most important general legal principles and institutions 
 as they occur in civilized communities. 
 
 ^See below, § 4. 
 
4 INTRODUCTION 
 
 tions — such as those created by the telephone, the 
 automobile, by arbitration, by colonial relations — may 
 be met; it faces such problems as measures of imme- 
 diate regulation — "de lege ferenda." The philosophy 
 of law is concerned with the "ratio legis," with the gen- 
 eral aspects of the end in view, and of the ideal concep- 
 tion of legislation. The two, however, are not sharply 
 differentiated. 
 
 In courses and compendiums of law the philosophical 
 aspects are commonly considered in connection with 
 specific legislation: thus the philosophy of punishment 
 is considered in connection with the laws of punishment, 
 or as a criticism of the theory of punishment; the 
 philosophy of government is treated in the study 
 of the general principles of government. Political 
 economy interprets the philosophy of government in con- 
 nection with social theories and with politics as applied 
 to the problems of society and government; ecclesias- 
 tical law has likewise philosophical problems to con- 
 sider, such as the canonical proscription of interest, or 
 the relation of Church and State ; and similar legal prob- 
 lems enter into every comprehensive system of ethics. 
 
 Comparative law supplements the philosophy of 
 law in so far as it proceeds beyond the collation of 
 laws, and attempts to derive ethnologically general 
 conceptions of law from the material which it collects 
 ethnographically.' 
 
 § 2. Literature of the Philosophy of Law} The more 
 important works upon the philosophy of law will be 
 
 ' See below, § 4. 
 
 ^ For the less important works on "natural law" belonging to the 
 early nineteenth century, see Geyer, "Geschichte und System der 
 Rechtsphilosophie," pp. 60 seq; and Warnkonig, "Philosophiae juris 
 delineatio," Tubingen, 1855, Appendix: Bibliotheca philosophije 
 juris et doctrinae politicse selecta. 
 
PHILOSOPHY OF ECONOMICS 5 
 
 mentioned in connection with the separate legal 
 problems.^ 
 
 § 3. Conception of the Philosophy of Economics. While 
 the science of law as an independent branch of knowledge 
 is of great antiquity, economics as an independent 
 science is relatively recent. Legal philosophy was well 
 developed in early days, particularly among the Greeks 
 and Romans, but a philosophy of economics still awaits 
 formulation. The present renewal of interest in philo- 
 sophical study and the growing attention to economic 
 relations, owing to the increasing complexity of com- 
 mercial life and the differentiation of class interests, 
 furnish favorable conditions for a scientific study of the 
 problems of economics. Recent contributions show a 
 decided breadth of interest and philosophic insight, 
 notably in the favorite field of sociology. 
 
 Law and economics are here presented in close affilia- 
 tion, as form and content, as shell and kernel; yet, thus 
 viewed, economics must not be confined to the study of 
 the production, exchange, and consumption of human 
 products, but should be extended to a general economics 
 of cultural relations, comprising alike material and 
 intellectual interests. The study of human industry 
 leads to a philosophy of economics quite as readily as a 
 study of legislation leads to a philosophy of law; it 
 supplies the material setting, the content of legislation. 
 Thus the philosophy of economics becomes the material 
 or "content" aspect of the philosophy of law. The 
 chief concern of the latter is the establishment of justice 
 on the formal side, while the philosophy of economics 
 relates to the same interests in their material aspects. 
 
 ' [The author's partial bibliography of general systematic and 
 historical worlcs which appears in the original is omitted; the works 
 are mentioned for the most part in later bibliographical footnotes. 
 — Trans.] 
 
6 INTRODUCTION 
 
 § 4. Demarcation of the Philosophy of Law from 
 Natural Law, General Jurisprudence, Comparative Law, 
 and Legal Sociology. 1: Philosophy of Law and "Nat- 
 ural Law." Philosophy of law was made equivalent to 
 "natural law," "jus naturse," by the Greeks and Romans, 
 but more specifically by Grotius and his followers. 
 The supporters of this position assume a natural law 
 independent of statutory law — at times coincident with 
 it, more often diverging from it, and representing an 
 ideal just law. As conceived by this school, it is the pur- 
 pose of the philosophy of law to establish natural law 
 upon a philosophical basis, by deriving it deductively 
 from fundamental principles.^ 
 
 The historical school, anticipated by Hugo and 
 founded by Savigny and Puchta under the influence of 
 Schelling, was the first to break from the assumption 
 of a natural law as something absolute, fixed, and 
 unalterable.^ It recognized as law, positive law alone; 
 yet in discarding the principle of natural law, it did not 
 reject the advances based thereupon.' No constructive 
 
 ^Stahl, "Die Genesis der gegenwartigen Rechtsphilosophie," 1830 
 (pp. 68 seq.): "The question as to how I recognize what is just and 
 what is unjust implies the underlying question as to what makes 
 justice and injustice. What is the nature of this distinction? What 
 is the source of all obligation? The answer is thus decisive for 
 ethics. Philosophy, which is limited to the recognition of the 
 issues of reason can look for the source of this ethical element only 
 in reason. Such is the character of 'natural law.'" See also pp. 70-77. 
 
 2 See § 34. At present the doctrine of natural law has been 
 generally discarded. Thus Dahn, "Uber Werden und Wesen des 
 Rechtes," Vol. II (Z. f. v. Rechtsw., 1881, Vol. Ill, p. 8, § 16): 
 "As law is the peaceful regulation of a group of men there can be no 
 natural law. What is held in common is the idea of law. The 
 form which it takes is everywhere conditioned by national and 
 historical circumstances." 
 
 ' Consult Bergbohm, "Jurisprudenz und Rechtsphilosophie," Vol. 1, 
 Introduction. Part I, "Das Naturrecht der Gegenwart." Leipzig, 
 
DEMARCATION OF THE PHILOSOPHY 7 
 
 principles were proposed in its place. The spirit of 
 the times was inhospitable to philosophic study; the 
 success of inductive methods in the natural sciences 
 had discredited pure deduction. Accordingly an empiri- 
 cal position was taken, deriving law from historical 
 considerations, primarily from Roman law, from the 
 ensuing Germanic development, and from the later 
 evolution upon these foundations. The older deductive 
 system based upon "natural law" had lost its hold; 
 but the modern philosophy of law had not yet appeared. 
 The need of a philosophical study of law became 
 apparent with the questioning of the value of merely 
 empirical results. For however valuable in extending 
 the data of their several sciences may be the microscope 
 of the bacteriologist, the retort of the chemist, the pre- 
 cise instruments of the physicist, the paleontological 
 restorations of the geologist, and the exact findings of 
 biologist, physiologist, and psychologist, they afford but 
 an inadequate insight into the causes and relations 
 involved; and a comprehensive view was sought that 
 
 1892. Bergbohm's work, though seriously criticized — especially by 
 Bernatzik in Sch. Jahrb., 1896, XX, pp. 653 seq. — is most important 
 despite its one-sided development. See also Adolf Merkel, "Uber 
 das Verhaltnis der Rechtsphilosophie zur 'positiven' Rechtswis- 
 senschaft und zum allgemeinen Teil derselben." (Griinh. Z., 1874, 
 Vol. 1, p. 1.) "Since legal philosophy, despite its officially pronounced 
 death-warrant, has continued to survive in a transparent disguise 
 and to exercise its influence quietly and, indeed, has extended it, 
 it has become an object of embarrassment. Having supposed that 
 it was happily disposed of, it is embarrassing to find that it must 
 still be reckoned with." Concerning the influence of the doctrine 
 of ''natural law," upon the study and determination of fundamental 
 economic conceptions in the manner of v. Hermann' s "Staatswirth- 
 schaftliche Untersuchungen," second edition, 1870, see Berolz- 
 heimer: "Das Vermogen, juristische Festlegung einiger Wirtschafts- 
 grundbegriffe" (Hirth's Annalen, 1904, pp. 437 seq.). On "natural 
 law" see SlIso Bonar: "Philosophy and Political Economy," London, 
 
 1893, pp. 184-196 (Natural rights and law of nature). 
 
8 INTRODUCTION 
 
 should reflect the results of empirical science and yet 
 pass beyond them. These tendencies influenced the 
 philosophy of law. Historical research proved the limi- 
 tations of its own data. Induction established the basic 
 concepts (such as law, government, endeavor, causality, 
 error, customary law) but could not account for them. 
 There thus arose the need for more thorough funda- 
 mental principles. 
 
 There is a further important aspect of the philosophy 
 of law ■ — its constructive or synthetic side. It became 
 necessary to establish the criteria of efficient legislation 
 in general, and again specifically as applied to such laws 
 as those of contract, of punishment, etc. Principles 
 were needed rightly to judge the numerous proposed 
 reforms and innovations brought forward on all sides; 
 political policy appeared as a substitute for legal philoso- 
 phy. The conception of justice, or at least of what satis- 
 fies the sense of justice, must ever remain the point of 
 departure of the philosophy of law. Strictly interpreted 
 legal philosophy is concerned with the problem of the 
 analysis of justice — a problem recently considered by 
 the Neo-Kantians, especially by Stammler. Such an 
 inquiry does not disregard general jurisprudence or 
 legal sociology, which are clearly of direct service to 
 legal progress, and may indeed have a larger sphere of 
 influence than belongs to a more theoretical pursuit. 
 Legal philosophy likewise finds in general jurisprudence 
 and in legal sociology important data for the successful 
 pursuit of its problems, as well as significant illustra- 
 tions of its principles; yet the method and interests 
 of philosophy differentiate it from these related disci- 
 plines. The modern philosophy of law thus discards 
 the conception of an original natural law,^ and holds 
 
 ^Stahl, "Die Philosophie des Rechtes," Vol. 1, 1830, p. 1. Ahrens, 
 "Cours de droit naturel," Vol. 1, p. 5: "The philosophy of law is 
 
DEMARCATION OF THE PHILOSOPHY 9 
 
 fast to constituted law as conditioning the nature and 
 origin of justice, in contrast to the older conception in 
 which an ideal absolute law was set up as supreme, and 
 positive law was made a derivative product. The 
 modern view recognizes positive law alone, "• but seeks to 
 find in it and through it the permanent ideal concept 
 of justice. The two thus present a common content 
 but divergent attitudes.^ 
 
 2: Philosophy of Law and General Jurisprudence. 
 A recent movement advocates an abstract legal science 
 in place of a philosophy of law. It is represented by 
 Binding,' the founder of the "theory of norms," and by 
 
 the science of justice." "The philosophy of law sets forth the funda- 
 mental principles of law and determines the mannner in which human 
 relations should be established in conformity with the idea of j ustice. ' ' 
 
 ^Bierling, "Juristische Prinzipienlehre," Vol. 1, pp. 1 seq. The 
 older natural law "attempted to determine not merely the general 
 formal character of the law but also a certain general content grow- 
 ing out of human nature, and thus found its point of departure not 
 merely in the study of actually existing laws, but as well in an 
 inherent assumption of an ideal legal content, presumably under- 
 lying all positive law. Modern legal philosophy attempts to point 
 out, in the problems which the human mind has had to solve, the 
 special phases which belong to law, and to investigate what from 
 this point of view may be regarded as generally applicable or as 
 applicable under given conditions." Again (p. 5), "If it was an 
 error of the theory of natural law to assume a certain though mini- 
 mum content as determined once for all, it follows that the prin- 
 ciples and conceptions which according to our view form the subject 
 of juridical science can only be formal." 
 
 'Bergbohm, "Jurisprudenz, etc.," Vol. 1, p. 80: "Until some 
 other assumption is made untenable for jurists and legal philoso- 
 phers, it must continue to be emphasized that the characteristic of 
 legal norms lies in their mode of operation. Whatever operates as 
 a law, and only what thus operates, is law without exception." 
 
 'Binding, "Die Normen und ihre tjbertretung. Eine Unter- 
 suchung iiber die rechtmassige Handlung und die Arten des Delikts." 
 Vol. I, first edition, Leipzig, 1872, second edition, Leipzig, 1890; 
 Vol. n, Leipzig, 1877. See also Binding, "Handbuch des Straf- 
 
10 INTRODUCTION 
 
 Bierling,' Adolf Merkel, and Jellinek.^ Concerning the 
 view that the philosophy of law is only general legal 
 science, MerkeP remarks that "philosophy is an indis- 
 pensable factor of the pursuit of science; to question 
 whether philosophy is of importance for practical jus- 
 tice is to question its status as a science." Yet he pro- 
 ceeds: "To give the term philosophy of law a place 
 conformable to its accredited usage requires that it be 
 transferred to the abstract phases of legal science. This 
 procedure would seem to be justified by tradition in 
 
 rechts,'' 1, Leipzig, 1885, pp. 155-222 {Binding, "Handbuch der 
 deutschen Rechtswissenschaf t , " VII, 1, 1); Binding, "Grundriss 
 des gemeinen deutschen Strafrechts," 1, fifth edition, Leipzig, 1897, 
 pp. 58-72. A development of the theory of norms appears in Than, 
 "Rechtsnorm und subjectives Recht," Weimar, 1878. M. E. 
 Mayer, "Rechtsnormen und Kulturnormen'' (Beling's Abh. Vol. 50, 
 1903), influenced by KoUer, proposes to replace the "Rechtsnor- 
 men" by the richer and more vital "Kulturnormen." See also 
 below, § 46. 
 
 ^Bierling, "Zur Kritik der juristischen Grundbegriffe," 2 vols. 
 Gotha, 1877, 1883. "Juristische Prinzipienlehre," 2 vols., Freiburg 
 and Leipzig, 1894, 1898. 
 
 Upon the relation of the latter work to the former, Bierling thus 
 comments ("Juristische Prinzipienlehre", Vol. 1, Preface, p. v): 
 "This work is designed to present in systematic form a course of 
 thought which I pursued in a different manner in my earlier and 
 incomplete studies, 'Zur Kritik der juristischen Grundbegriffe.' 
 The subject of the present book is thus in part identical with tha^ 
 of the former work." Concerning Bierling, see also § 46. 
 
 2 Jellinek, "Die rechtliche Natur der Staatenvertrage, Vienna. 
 1880. "Die Lehre von den Staatenverbindungen," Vienna, 1882. 
 "Gesetz und Verordnung, Staatsrechtliche Untersuchungen auf 
 rechtsgeschichtlicher und rechtsvergleichender Grundlage," Frei- 
 burg, i/B, 1887. "System der subjektiven offentlichen Rechte," 
 Freiburg, i/B, 1892. 
 
 ' Merkel, "Uber das Verhaltnis der Rechtsphilosophie zur 'posi- 
 tiven' Rechtswissenschaft und zum allgemeinen Teil derselben." 
 (Grunh. Z., Vol. 1, Vienna, 1874, pp. 1-10, 402-421). 
 
DEMARCATION OF THE PHILOSOPHY II 
 
 that such a science assumes the functions and meets the 
 needs hitherto satisfied by the philosophy of law."^ 
 But abstract legal science yields merely basic juridical 
 conceptions, and no more affords a philosophy of law 
 than does general physiology afford a philosophy of 
 nature; in both cases the constructive material is pro- 
 vided but nothing more.^ The two disciplines differ 
 both in content and in intent. Jurisprudence comprises 
 fundamental legal conceptions apart from their specific 
 concrete formulation; the philosophy of law applies 
 
 ' Paul Muller, "Die Elemente der Rechtsbildung und des Rechts 
 zur Grundlegung fur die realistische Begriindung des Rechts," 
 Leipzig, 1877 (pp. 38seq.). In this he brusquely eliminates philoso- 
 phy from legal science. "The renewed attempts of philosophy to 
 gain a direct and decisive influence upon legal science, or to under- 
 take the foundation thereof, must be considered as an unwarranted 
 presumption in the light of recent developments. A department of 
 learning that itself lacks established principles can obviously not 
 offer useful principles to other sciences. A department of learning 
 whose own development rests upon uncertain ground can clearly 
 not provide a serviceable basis for the teachings and the content 
 of a legal science that is striving for an objective basis. It is better 
 to have no foundations than to have poor ones." But in a later 
 connection (p. 43), Muller says: "In an indirect way [that is, 
 through the study of philosophical writings on the part of 
 jurists] philosophy may exert an influence upon legal science and 
 law but not by direct transference of its principles and the con- 
 clusions resulting therefrom." It thus appears that the legal 
 philosopher is to be philosophically trained, but to what extent he 
 is to make use of this training, Muller does not state. 
 
 ^Bierling, "Juristische Prinzipienlehre" (Vol. 1, p. 1) aptly 
 says: "The study of legal principles considers the systematic pres- 
 entations of those legal conceptions and fundamental positions which 
 are essentially — that is in their permanent nucleus — independent 
 from the special peculiarities of any particular concrete expression 
 of positive law." Bierling continues: "Here belong in the first 
 place the conception of law itself and its necessary consequences; 
 secondly, those conceptions and fundamental positions which are 
 del ived from the essentially uniform psychological nature of man as 
 
12 INTRODUCTION 
 
 to the field as a whole as well as to its divisions. ^ The 
 jurist critically analyzes the fundamental conceptions 
 within the field of jurisprudence and stops where the 
 true work of the philosopher begins; that is, with the 
 establishment of the relations between the juridical con- 
 ceptions and the general philosophic systems in which 
 they are comprised, and from which they are derived. 
 Jurisprudence considers the formal constructive side of 
 such conceptions ; the philosophy of law considers their 
 material basis and essential nature. 
 
 3 : Philosophy of Law and Comparative Law. Under 
 the leadership of Kohler the new and vigorous science 
 of comparative law^ has contributed the descriptive 
 ethnographical data ; and these in turn have been philo- 
 sophically interpreted by Post and Kohler. Compara- 
 tive law' proposes to further our insight into the nature 
 of legal institutions and the spirit of their laws. It is 
 vain to expect comparative* law to solve all the problems 
 
 bearing upon the theory and practice of law. To this must be 
 added that all these conceptions and fundamental positions with 
 which the study of legal principles deals, or at any rate such as 
 properly make up its subject-matter, are of merely formal nature." 
 
 ^Lingg's definition of the nature and problems of legal philosophy 
 is to be rejected for the reason that it does not specifically distin- 
 guish between legal philosophy and general legal science. Lingg, 
 "Wesen und Aufgaben der Rechtsphilosophie" (Grunh. Z., Vol. 18, 
 1890, pp. 47, seq.): "Philosophy is the science of principles; legal 
 philosophy is the study of the principles of law." 
 
 2 See below, § 47. Also § 5. 
 
 'Bekker, "Uber den RechtsbegrifF" (Z. f. v. Rechtsw., Vol. 1, 
 1878, p. 95), says: "That branch of legal science which we call the 
 philosophical might properly be expected to advance the compara- 
 tive study of law." In regard to Schuppe's view as against the 
 comparative school, in "Die Methoden der Rechtsphilosophie" 
 (Z. f. V. Rechtsw., Vol. V, 1884, pp. 209, 274), see below § 6. 
 
 *Bernhdft, "Uber Zweck und Mittel der vergleichenden Rechts- 
 wissenschaft" (Z. f. v. Rechtsw., Vol. 1, p. 36), says: "Comparative 
 law sets forth how peoples of a common origin have independently 
 
DEMARCATION OF THE PHILOSOPHY 13 
 
 of legal philosophy. There is a tendency to overrate 
 the value of the former for the latter.^ Until vitalized 
 by the force of philosophical principles, the most valuable 
 materials are merely building-stones awaiting the design 
 of the architect.^ ' 
 
 4: Philosophy of Law and Legal Sociology. The 
 philosophy of law and legal sociology supply stand- 
 ards both for the criticism of existing laws and for 
 shaping future laws. The two are intimately related but 
 do not coincide. "To judge the value of legislation is to 
 test whether it furthers the purposes which the law pur- ^ 
 
 developed the traditional legal conceptions; how a people modifies 
 the institutions which it inherits according to its own views; and 
 thus how, without any material connection, the legal systems of 
 different nations develop according to common evolutionary prin- 
 ciples. Briefly it attempts to discover the idea of law in the several 
 legal systems." 
 
 1 Kohler, in "Enzyklopadie," Vol. I, sixth edition, Leipzig and 
 Berlin, 1902 (p. 14): "Without a general history of law there can 
 be no' adequate philosophy of law, just as without a general history 
 there can be no philosophy of humanity, and without linguistics no 
 philosophy of language." See also pp. 17-20. 
 
 ^Schuppe, "Die Methoden der Rechtsphilosophie, " (Z. f. v. 
 Rechtsw., Vol. V, 1883, pp. 209-274). 
 
 ^ Such terms as "AUgemeines Staatsrecht" or "Allgemeine 
 Staatslehre" are usually interpreted as the philosophy of govern- 
 ment or a philosophic public law. Thus Gumplowicz calls tne sec- 
 ond edition of his philosophical public law "AUgemeines Staatsrecht." 
 Accordingly this latter term refers to a body of knowledge that 
 cannot be adequately presented merely by a comparative study of 
 law. I cannot endorse the view expressed by A. Affolter, "Staat 
 und Recht, Versuche uber allgemeines Staatsrecht" (Hirth's Ann., 
 Vol. 36, 1903, p. 51): "It cannot fail to be recognized that the 
 essential content of what was, and still is taught as general public 
 law ('AUgemeines Staatsrecht') is a comparative study of law; freed 
 from the bias of natural law it becomes comparative public law 
 ('Staatsrecht')." If one endorsed AffoUer's view, the conclusion 
 would be reached that "Allgemeines Staatsrecht" may and should 
 omit the consideration of the philosophical questions concerning the 
 
14 INTRODUCTION 
 
 sues, or, more accurately, whether it is a serviceable 
 means to the achievement of a justifiable end. It is the 
 function of the philosophy of law to establish the funda- 
 mental postulates and purposes of law." ^ The assump- 
 tion that the philosophy of law in its critical and reform- 
 atory aspects becomes one with legal sociology leads to 
 the position developed by Ihering^ in his "Zweck im 
 Recht," wherein he holds that the end in view determines 
 law, that all legislation serves social interests, and that 
 the welfare of society is the chief and final purpose of 
 law. The philosophy of law is thus resolved into the 
 correct understanding of social welfare, and becomes one 
 with the politics of law. This position, which gained 
 prominence in the last quarter of the nineteenth cen- 
 tury, is in a measure a re-formulation of eudemonism. 
 It presents a one-sided and false interpretation of the 
 scope of legal sociology, which, as applied to law, is 
 by no means the same as that of philosophy of law. 
 In the preface I have indicated their common ground 
 and their relation to existing institutions, conceived 
 not as fixed but as subject to constant develop- 
 ment. Both disciplines must consider the interests of 
 
 origin and nature of the State and the position of the individual 
 in the State; but this position would dismiss the most important 
 questions. 
 
 Rehm, "Allgemeine Staatslehre'' (pp. 1-8), considers the con- 
 ception of his subject in detail. Agreeing with Mohl and G. Meyer 
 he expresses the following view (p. 7): "'Allgemeine Staatslehre' is 
 the study of government in general, of the State as a whole and not 
 of its parts. "■> This definition appears to me too broad and not 
 sufficiently precise, for the subject also considers the divisions of the 
 State, such as the distribution of authority within the State, the 
 rights of freedom, of citizens, etc. 
 
 ^Liepmann, "Die Rechtsphilosophie des Jean Jacques Rousseau," 
 pp. 14-16. 
 
 ' See below, § 43. 
 
DEMARCATION OF THE PHILOSOPHY 15 
 
 the future and direct opinion. Their chief difference 
 lies in the relations which they emphasize and in the 
 attitudes which they assume.^ The philosophical aspect 
 of law considers the broad and far-reaching policies 
 somewhat after the manner of the great problems of 
 finance ; the political aspect considers the immediate and 
 lesser interests, the smaller currency of everyday ex- 
 change. This difference of outlook inevitably induces 
 an emphasis by the former of ideal theoretical considera- 
 tions derived from the concept of law ; and by the latter, 
 of the concrete, more immediate practical purposes.^ 
 The relation of the philosophy of law — ■ concerned with 
 the mastery of its own problems — • with legal socio! ?gy 
 brings it about that legal philosophical doctrines, so far 
 as they are directed to the shaping of policy for the future, 
 have but a relative validity and not an absolute value ; 
 thus considered, the philosophy of law becomes the 
 formulation of the economic tendencies of a given period.^ 
 
 * Kohler (Enzyklopadie, pp. 15, 16) confirms this view of the 
 relationship between the philosophy of law and legal sociology; 
 he very correctly denies the identity of the two disciplines, and says: 
 "The philosophy of law is related to 'Rechtspolitik' in that it gives the 
 latter its proper warrant and foundation; in particular it shows the 
 error of positivism in law." But he gives no sharp differentiation of 
 the two disciplines. See also Bluntschli, "AUgemeine Staatslehre," 
 Preface, p. v; Rehm, "AUgemeine Staatslehre" (pp. 8-10), whose 
 definition applies to politics and not specifically to 'Rechtspolitik.' 
 He says (p. 9): "Politics as a science is the science of politics as 
 activity." J?. Schmidt, "AUgemeine Staatslehre," Vol. 1, pp. 2.5- 
 33; Fan Co/yfee?', "Politik als Wissenschaft." Festrede, January 27, 
 1898, Strassburg, 1898, pp. 12-21. 
 
 ' Legal sociology likewise extends into the philosophy of law 
 as soon as it undertakes a thorough consideration of its principles. 
 This appears in the recent writers on criminal sociology, especially 
 V. Liszt. See below, § 44. 
 
 ' One may further formulate the difference and the relation 
 between the philosophy of law and legal sociology by saying that 
 
16 INTRODUCTION 
 
 § 5. Demarcation of the Philosophy of Economics from 
 Political Economy, Social Economy, and Social Ethics. 
 The relation of the philosophical to the political aspect of 
 economics is parallel to that which obtains in law. It is 
 through the larger outlines of general principles and the 
 formulation of postulates that political economy attains 
 a philosophy of economics. Political economy has a near 
 range, and regards the needs of the moment; the 
 philosophy of economics deals with larger periods and 
 more permanent interests; yet the boundaries of the 
 one overlap those of the other. 
 
 Social economy is a subdivision of political economy, 
 the latter being understood as extending beyond mate- 
 rial economic interests to the inclusion of the cultural 
 interests dependent upon economic conditions. It is 
 "politics considered from a social point of view";' its 
 material problems are included in political economy, and 
 its philosophical problems in the philosophy of economics. 
 
 Social ethics is a subdivision of ethics, which in turn 
 is a philosophical discipline intimately related in its 
 applications to economics and law. From their combina- 
 tion there emerges the modern attitude, which in the 
 interests of personal liberty tempers the strict require- 
 ments of the law by ethical considerations. 
 
 § 6. The Method of the Philosophy of Law. Reflect- 
 ing the influences of the development in general philoso- 
 phy, the philosophy of law proceeds by no one method 
 but shows several distinctive tendencies. From the 
 Middle Ages on there appear in salient contrast the 
 theological method of scholasticism; the Renaissance 
 philosophy of "natural law" framed upon classical 
 
 the latter is the philosophy of the current situation, and that phil- 
 osophy is a permanent politics. 
 
 '■ Jastrow, "Sozialpolitik und Verwaltungswissenschaft," Berlin, 
 1892, pp. 3-27. 
 
METHOD OF PHILOSOPHY 17 
 
 models; the more speculative philosophy of "natural 
 law," from Kant's critical idealism to the dialectics of 
 Hegel; and the historical school, philosophically spon- 
 sored by Hegel's theory of development, established by 
 Schelling, and juridically developed by Hugo, Savigny, 
 and Puchta. The speculative tendency survives; and 
 though the doctrine of natural law has been abandoned, 
 the views of Kant and Hegel are still influential in gen- 
 eral law.^ The historical school prevails in private law.* 
 
 '■Bergbohm, "Jurisprudenz und Rechtsphilosophie,'' Vol. 1; 
 Pachmann, "Uber die gegenwartige Bewegung in der Rechtswis- 
 senschaft," an Address, Berlin, 1882. Kohler, "Rechtsgeschichte 
 und Weltentwickelung," Z. f. v. Rechtsw., Vol. V, 1884, pp. 321-334; 
 Schuppe, "Die Methoden der Rechtsphilosophie," Z. f. v. Rechtsw., 
 Vol. V, 1884, pp. 209-274; Liregg, "Wesen und Aufgaben der Rechts- 
 philosophie," Griinh. Z., Vol. 18, pp. 42-63: JelUnek, "Das Recht 
 des modernen Staates," Vol. I, Berlin, 1900, pp. 23^8; Wundt, 
 "Logik," second edition, Vol. II, pp. 477-499, 533-588. 
 
 ''The same holds of penology. See particularly Richard loening, 
 "Uber geschichtliche und ungeschichteliche Behandlung des deut- 
 schen Strafrechts," an address delivered April 29, 1882, published 
 in Z. f. d. g. Str., Vol. Ill, 1888, pp. 219-375. He strenuously 
 contends against all forms of speculation and in favor of a purely 
 historical treatment. "It is the problem of German penology, if it 
 aims at a real understanding of the present criminal law and the 
 several factors thereof, to place the study of its history in the fore- 
 ground, and particularly to study the history of the essential part 
 thereof upon which everything else depends, namely the subjective 
 claims of punishment, the subjective justification attaching to vio- 
 lations of the law" (p. 228). "The objection is made to the his- 
 torical method that it does not afford in ready and final form the 
 ultimate and persistent bases of law that prevail independently 
 of their historical expression, and overlooks that the implied demand 
 is one nowhere available for human satisfaction. The historical 
 method does not raise any such claim to supply absolute philosophi- 
 cal values. But what the historical method thus admittedly fails 
 to provide is beyond the scope of any method, unless those who em- 
 ploy it had previously divested themselves of their human nature" 
 (p. 239). "Present-day penology shows not alone a lack of thehistor- 
 
18 INTRODUCTION 
 
 A newer movement is presented by the sociological' 
 and comparative^ school, which has largely invaded the 
 field of criminal law and has influenced both the theory 
 of punishment and of criminal reform. The compara- 
 
 ical method but of what is more serious, a lack of all definite and cer- 
 tain method; it is open to every manner of surmise. . . . The only- 
 means gradually to overcome the prevalent detachment from posi- 
 tive law, and gradually to restore the sympathy between it and 
 science, seems to me to consist in a radical break with the scientific 
 traditions of the preceding century. This must be done in two re- 
 spects: first negatively, by an abandonment of all speculations and 
 considerations 'de lege ferenda' that rest upon any other founda- 
 tions than that of the positive law; and again positively by a 
 thorough and unprejudiced study of the historical development of 
 German criminology. ... I may sum up the conclusion in these 
 words: No penology except that founded upon existing positive law, 
 and no science of positive law without historical foundation" (pp. 
 260-262). See also R. Loening, "Geschichte der strafrechtlichen 
 Zurechnungslehre," Vol. 1, Jena, 1903, pp. ix, seq. 
 
 ^ See below, §44, concerning criminal sociologists — the "posi- 
 tive" school of penology: v. Liszt, Ferri and others. 
 
 ^ See below, §47. In "Die Methoden der Rechtsphilosophie" 
 (Z. f. V. Rechtws., Vol. V, 1884, pp. 209-274), Schuppe treats the 
 problem of the scope of comparative law in detail. His comments 
 upon the comparative school are pertinent, although a fundamental 
 error underlies his attitude. He says (p. 227): "After this 
 psychological digression I return to the position which has been 
 demonstrated. If it be the problem of the philosophy of law to 
 determine the nature of law, to determine the factor by virtue of 
 which an action or a circumstance is declared to be right or wrong, 
 then the comparative method — if we mean thereby that we can 
 only determine actions as right or wrong through comparison — 
 most illogically assumes what is to be proven. There must always 
 be some indication of the point to be established in order to ascer- 
 tain what is pertinent to a comparison." The philosophy of law 
 seeks the meaning of the nature of law; the comparative position 
 believes it possible to determine it by comparing the various systems 
 of positive law or a representative group thereof. The comparative 
 study of law may be said to attempt to determine the nature of 
 
METHOD OF PHILOSOPHY 19 
 
 tive method has also been profitably applied in the field 
 of jurisprudence;^ the influence of psychology and of 
 other tendencies is apparent. 
 
 In such diversity of view we recognize a trait of a 
 period of transition,, which is likewise evidenced by the 
 discontent with tradition, and by the many proposals 
 for reform. Such profusion of doctrines is more dis- 
 turbing than illuminating; and this is true in art and 
 literature as well as in philosophy. Equally distinctive 
 is the constructive weakness, the absence of originality 
 in construction or presentation, wherein the older ideals 
 may be incorporated and advanced. Yet above this 
 diversity of effort and opinion there emerges a distinc- 
 tive and newer idealism — an idealism loyal to the reali- 
 ties, and, in so far, a realistic idealism. The old idealism, 
 that had spent its force towards the middle of the nine- 
 teenth century, failed by its lack of a sense of reality — 
 
 law as would a student of natural science who undertook to deter- 
 mine the nature of mammalia or of trees by comparing a sufficient 
 number of species of mammals or trees, and finding their common 
 characteristics. Comparative law looks upon positive law as its 
 sole and complete means of study. The purpose of comparison is 
 the discovery of essential or general common traits. Whether the 
 purpose can be achieved by mere comparison is debatjible; and I 
 agree with Schuppe in maintaining the negative of the proposition; 
 but the argument advanced by him seems to me untenable; yet 
 his concluding observations may be endorsed. "It is hoped that 
 the preceding considerations have made it clear that the philosophy 
 of law, apart from experience and comparison, is a fiction; but that 
 the insight cannot be attained directly as a result of comparison; 
 that accordingly the mere volume and completeness of material is 
 not indispensable, but that the main point is the thorough observa- 
 tion and analysis of the salient phenomena; and that such thorough 
 observation and analysis do not discover the important distinctions 
 by any method that may be taught, but is essentially a matter of 
 individual endowment" (p. 267). 
 
 ' See below, § 49. 
 
20 INTRODUCTION 
 
 a criticism as applicable to classicism in art and literature 
 as to speculative philosophy. In accordance with the 
 historical principle by which an extreme movement in 
 one direction induces a reaction in the opposite direc- 
 tion, idealism was superseded by an equally uncompro- 
 mising realism, a stern materialism of thought and deed. 
 The sense of reality, once aroused, overreached itself to 
 the exclusion of the theoretical and the constructive. 
 Reality was limited to what the senses could perceive 
 and the reason infer. Ideals were discarded as illusions. 
 Theology was banished from the cosmic conception. 
 Art and literature were invaded by naturalism, as was 
 philosophy by empiricism. Similar influences replaced 
 philosophy in the field of law by historical and ethno- 
 logical research, and again by the economic materialism 
 of Marx and his followers. With the inevitable reaction, 
 idealism once more returned as a permanent factor in 
 the view of nature and life. Nonetheless, the interven- 
 ing period of materialism had itself served the 
 purposes of culture, in that the reconstructed 
 idealism, unlike its precursors, was not given to ex- 
 travagant speculation, but took close account of 
 realities. Neo-idealism developed an idealistic con- 
 ception of human activity upon vital issues, avoid- 
 ing both the one-sidedness of idealism and the self- 
 sufficiency of realism. In the domain of law it 
 rejected the principle of natural law as well as all ex- 
 treme speculative tendencies, and interpreted the his- 
 torical, ethnological, and economic data from a broader, 
 more idealistic point of view. 
 
 § 7. Law and Economics. During the dominance 
 of the doctrine of natural law the sense for exact 
 historical research remained dormant; yet deductive 
 conclusions were not naively mistaken for historical 
 truths, not even by so thorough-going a defender of 
 
LAW AND ECONOMICS 21 
 
 "natural law" as Rousseau.^ The advocates of "natural 
 law" found the doctrine well-adapted to their political 
 views and position ; for apart from the fact that no other 
 serviceable formula was available, it permitted the 
 assumption of any number of prerogatives and privileges 
 as natural rights lying within the scope of the primitive 
 social compact, thus supporting the political positions 
 which it was important to justify. When later, under 
 the influence of Hegel and Schelling, the historical sense 
 was aroused, the doctrine of natural rights, having served 
 its economic and philosophic functions, declined. The 
 study of history furnished the foundations for the 
 political ideal of nationalism ; next came the intermediate 
 influence of economic materialism ; and then was ushered 
 in the present dominant sociological period in social and 
 economic philosophy. Inasmuch as society is a world- 
 wide and world-old institution, preceding government 
 though developed by it, it remained for the comparative 
 method to supply an all-embracing conception of its 
 nature. Thus each period brought forward the legal 
 and economic conceptions needed for the validation of 
 its political views and positions. Each method in turn 
 — ■ the natural, the historical, and the comparative — 
 incorporated the scientific advantages of its predecessors. 
 The philosophical, the historical, and the comparative 
 method must now be developed and applied to the 
 modern State composed of free industrial classes. For 
 such purposes a method reflecting the closely allied inter- 
 ests of law and economics is alone adequate.^ 
 
 > "Contrat social," Vol. 1, 1: "Man is born free and everywhere 
 he is in fetters. . . . How has this transformation come about? 
 I do not know. What can justify it? This question I think I am 
 able to solve." 
 
 ^Stammler, "Wirthschaft und Rerht nach der materialistischen 
 Geschichtsauffassung. Eine sozialphilosophische Untersuchung.'' 
 Leipzig, 1896; Berolzheimer, "Das Vermogen, juristische Festlegung 
 
22 INTRODUCTION 
 
 Economics and law considered as static phenomena are 
 related as content and form; but both are subject to 
 change — the one continuously, the other from time to 
 time. In considering their development and interaction, 
 it is well to recall that the materialistic conception of 
 history has proved itself untenable. Economic move- 
 ments do not of themselves change laws. The laboring 
 classes in England would have continued to be oppressed, 
 had not Karl Marx impressively portrayed their wretched 
 condition. Ricardo had set forth that the "iron law 
 of wages" must ever place a heavy burden upon these 
 classes; and in India and China the coolies still remain 
 contentedly adjusted to their condition. A spark is 
 needed to light the powder. The material condition of the 
 oppressed classes served to re-enforce the fervid appeal 
 of high-minded reformers. Without the appeal to liberty 
 and the enlightening influence of the Encyclopedists, 
 the economic abuse on the part of the ruling classes, 
 despite the oppressed condition of the masses, would 
 not have brought on the French Revolution. Economic 
 changes, particularly in a society in a wholesome, respon- 
 sive condition, lead to legislative reconstruction. It is 
 also true that law acts as an inhibitory force to check too 
 rapidly assertive economic movements; yet changes in 
 the law also react upon economic conditions and render 
 them unstable. If we may conceive the evolutionary wave 
 as formed of single stable points, then it would be true 
 of each such point, statically considered, that economics 
 and law at any given moment are one and the same. 
 
 einiger Wirtschaftsgrundbegriffe," Hirths Ann., 1904, pp. 437-453, 
 516-552, 592-606; W. Ed. Biermann, "Staat und Wirtschaft," Vol. 1, 
 Berlin, 1905; Lamprecht, "Deutsches Wirtschaftsleben im Mittel- 
 alter," Vol. 1, 1, Leipzig, 1886 (Recht und Wihischaft zur frankischen 
 Stammeszeit, pp. 3-60); especially "Die gegenseitigen Beziehungen 
 von Recht und Wirtschaft," pp. 19-51. See also 5 52. 
 
LAW AND ECONOMICS 23 
 
 The conception of economics must not be a narrow 
 one; it must not be applied solely to products together 
 with their manufacture, distribution, and consumption; 
 nor yet wholly be limited to the idealistic, spiritual, and 
 cultural factors in society. Economics comprises both 
 institutions and intellectual movements. It is some- 
 what surprising that so conspicuous a truth as the inter- 
 action of economics and law should have waited so long 
 for recognition — a recognition by no means universal. 
 Some of those who question it maintain the independence 
 and self-sufi&ciency of law, while others maintain that of 
 economics. The most distinguished representative of 
 the former group is Binding, who holds that all law is by 
 nature "imperative, a norm, a command." The norms 
 are the result of regulation — of the supremacy of the 
 State. The opposite view is represented by the mate- 
 rialists, who hold that economic conditions exclusively 
 determine the development of history in general, and 
 with it, that of law. 
 
 In reality law and economics are ever and everywhere 
 complementary and mutually determinative, like form 
 and content. The philosophy of law is furthered by a 
 knowledge of its economic aspects; for without the 
 vitalizing embodiment furnished by a living society, legal 
 conceptions would be bare and dead. The alliance of 
 economics with law gives economic values a firm hold' 
 through legal enforcement; it is indispensable to the 
 proper establishment of philosophical principles, which 
 alone are capable of dispelling the inconsequent vague- 
 ness to which social, reformatory, and ethical teachings, 
 when unsupported by a solid theoretical basis, are apt 
 
 On the method of economics see Wundt, "Logik,'' Vol. 11, pp. 
 499-533; and on the method of the social sciences, pp. 436-630. 
 
 ^Berolzheimer, "Das Vermogen" (Hirth's Ann., 1904, pp. 437- 
 448, 531-540, 601-606). See also § 45. 
 
24 INTRODUCTION 
 
 to degenerate. With the aid of this composite approach 
 we reach the threshold of a comprehensive development 
 of legal economics. The great struggle for emancipa- 
 tion begun in ancient times found its expression in the 
 infusion of law with the ethical spirit, and closed with 
 the emancipation of the fourth estate. The same 
 ethico-legal spirit may serve as the foundation for a new 
 alliance of law and economics, which shall similarly 
 further the influence of each and their common purpose. 
 Their joint pursuit will advance the recognition of the 
 essential community of economics and law by providing 
 the law with a basis adequate to meet progressive eco- 
 nomic conditions.^ 
 
 ' See below, § 52. 
 
ANCIENT EGYPT 25 
 
 CHAPTER I 
 THE ORIGINS OF ORIENTAL CIVILIZATION 
 
 ANCIENT EGYPT. — BABYLONIA AND ASSYRIA: (1) BABYLONIAN 
 AND ASSYRIAN CIVILIZATION, (2) THE CODE OF HAMMURABI.— 
 THE VEDIC ARYANS.— THE JEWISH STATE.— THE PHCENICIANS. 
 
 § 8. Ancient Egypt. The civilization of ancient 
 Egypt influenced all later civilizations.^ Greeks and 
 Romans drew from it, and the Mosaic code was devel- 
 oped upon its soil. Certain Egyptian customs and views 
 of an ethical or legal import are quite modern in sugges- 
 tion, bringing to mind the austere spirit of Western 
 Europe in the eighteenth century, or even the utilita- 
 rian attitude of our own day, rather than an established 
 civilization upon the ancient and distant shores of the 
 Nile. A defiant sphinx-like quality attaches to many 
 phases of that ancient culture. 
 
 ' The works of the French Egyptologist, Eugene Revillout, are espe- 
 cially important. "Cours de droit egyptien," Vol. I, Part 1; "L'etat 
 des personnes," Paris 1884; "Les Obligations en droit egyptien 
 compart aux autres droits de I'antiquite (suivies d'un appendice sur 
 le droit de la Chaldeeau XXIIP et au VP siecleavant J. C), "Paris 
 1886. The appendix is by Victor and Eugene Revillout. "La pro- 
 priete ses demembrements la possession et leurs transmissions en 
 droit egyptien compare aux autres droits de I'antiquite," Paris 
 1897; "La cteance et le droit commercial dans I'antiquite," Paris 
 1897. 
 
 Revillout has made important original contributions, and has, 
 translated the legal records of ancient Egypt. These relate for the 
 most part to the later Egyptian period, being written in the demotic 
 script. 
 
26 ORIENTAL CIVILIZATION [Ch. I 
 
 The meagerness of the sources of Egyptian philosophy 
 makes it difficult to interpret the nature of institutions, 
 whose outward form is described, but whose deeper 
 import remains uncertain. Our knowledge thereof is 
 derived from accounts of the daily life, from records of 
 legal transactions, and from inscriptions upon tombs. 
 The histories of ancient Egypt describing its customs 
 and usages were prepared by foreigners, such as Herodo- 
 tus and Diodorus Siculus, who naturally dwelt upon 
 conditions contrasting with those of Greece or Rome; 
 and who, moreover, accepted uncritically legends and 
 traditions, which were, in turn, uncritically repeated by 
 later writers. 
 
 Religion so dominated the culture of Egypt that its 
 bearing upon the philosophy of law, though indirect, is 
 illuminating.^ In this religion may be distinguished the 
 veneration of personified forces of nature, and the 
 symbolic worship of animal life. Greek writers, not 
 unlike modern Egyptologists, explain this worship by 
 the belief in the transmigration of human souls into the 
 bodies of animals. Yet it is difficult to maintain that 
 the fear of injuring the soul of a departed fellow-man 
 would account for the punishment by death of even the 
 accidental killing of a sacred animal, and for the extreme 
 resentment incident to such an offense. It may be urged 
 that the spirit of Egyptian religion is more correctly 
 interpreted by emphasizing the principle of energy, of 
 life and generation and fertility, as divine. In this 
 view animal life represents the divine forces conferring 
 benefit upon man. The polytheistic worship is addressed 
 to the supreme sun-god Rg, and to all other superhuman 
 sources of energy and life ; and the monuments dedicated 
 
 > Wilkinson, "The manners and customs of the ancient Egyp- 
 tians," Vol. II, pp. 454-491, 509-515; Vol. Ill, particularly p. 
 363, also pp. 364-426, 427 seq. 
 
§8] ANCIENT EGYPT 27 
 
 to the gods, like the stupendous pyramids, by suggest- 
 ing heroic efforts, become the mighty symbol of the 
 divine order. Yet it must be admitted that the promi- 
 nence of animal worship is difficult to explain. Histori • 
 cal considerations are helpful; and the Egyptian civili- 
 zation, standing between primitive culture everywhere 
 characterized by fetishism and an intimate regard for 
 animal life, and the later, more anthropomorphic atti- 
 tude of Greek thought, presents a transition embodying 
 alike the older and the newer conceptions. It may fur- 
 ther be suggested that the belief in transmigration was 
 not the cause of animal worship but the means utilized 
 by Egyptian ethics to enforce its ideals of self-restraint. 
 There is no systematic work bearing upon the ethics 
 or law and political economy of the Egyptians. Their 
 views must be inferred from their legislation, which con- 
 tains a most comprehensive prescription for every detail 
 of life ■ — a minute policing and regulation that may well 
 be called petty. Although the king was rated as the 
 son of the most supreme, of the sun-god R^, his functions 
 were by no means those of a tyrant or despot, but his 
 daily life was regulated to the minutest detail ; ^ and such 
 limitations illustrate the purpose of the establishment of 
 a just sovereignty, which is to realize the conception of 
 law through the perfect conduct of the subjects, to whom 
 the king is an exemplar of virtue. The throne was 
 hereditary ; and the people were confined to rigid heredi- 
 
 ' Compare Diodorus, Book 1, pp. 69-72. The care of the king's 
 person was in charge of the highest nobles, in order that he might 
 not be evilly influenced by his environment. His activities by day 
 and night were precisely regulated. Even his food was regulated 
 by law to avoid intemperance and drunkenness. In connection 
 with every sacrificial act the practice of self-control, piety, mercy, 
 and justice was enjoined. Upon the position of the king see Uhle- 
 mann, "Handbuch der ges. agyptischen Altertumskunde," Vol. II, 
 pp. 48-55. 
 
28 ORIENTAL CIVILIZATION [Ch.i 
 
 tary occupations. ^ Questionable as may be the advan- 
 tages or disadvantages of such extreme regulation, it 
 was demanded by a legislation that accepted as its goal 
 the maximum subjection of the will of the individual 
 to legal prescription. In addition to the class of free 
 citizens there were slaves. Slavery was looked upon as 
 "the inevitable and direct issue of war." ^ Yet in pro- 
 gressive times, notably under the sovereignty of the 
 
 1 The Egyptians did not acknowledge rigidly exclusive castes such 
 as obtained in India; but the vocational classes, particularly the 
 warriors and priests, were organized upon a caste basis. This, 
 however, has been contested. See Revillout, "Cours de droit 
 egyptien," Vol. I, pp. 131-150. "I regard it as useless to give here 
 the concordant evidence of the ancients — Solon, Herodotus, 
 Plato, Aristotle, Socrates, Diodorus, Dicaearchus, Strabo. All these 
 authors, whether contemporary or later, distinctly record the exist- 
 ence of Egyptian castes and the inheritance of the same functions 
 in the same families. They differ only in a more or less complete 
 enumeration of these castes. Were they all mistaken? The opinion 
 prevails among many Egyptologists that they were." (p. 131.) 
 See particularly Revillout, "La propriete," etc., Paris 1897, Part 1, 
 p. 56: "The Egyptian caste was a right of succession of sons from 
 their father, and it was not, as in India, an absolute barrier placed 
 upon the sons to prevent their leaving the status of their father." 
 
 The Egyptian priestly caste was, however, legally divided into 
 several classes which were distinct, and membership in which was 
 hereditary, so that a transfer from one class to another was not 
 possible. See Twesten, "Die religiosen, politischen und sozialen 
 Ideen der asiatischen Kulturvolker und der Agypter," Vol. I, p. 
 355. 
 
 The Egyptian caste system, in contrast to that of India, depended 
 "essentially upon the practical position that vocation was heredi- 
 tary. The idea expressed in this inheritance of an occupation was 
 that the calling, like every other possession, belonged not to the 
 individual but to the family; that like a social office it was at once 
 a privilege and a duty." Twesten, p. 371. See also UUemann, 
 "Handbuch," etc. 
 
 • "A direct and enforced result of war." Revillout, "Cours," etc., 
 1, p. 62. 
 
§ 8] ANCIENT EGYPT 29 
 
 Pharaohs, slaves were humanely treated. They were 
 permitted to marry; and if married, the union was not 
 interfered with. They attained to positions of trust; 
 as commercial agents, or as agricultural tenants, they 
 enjoyed comparative independence. Herodotus men- 
 tions places of refuge for slaves, and modes of procedure 
 for terminating the slave relation. ^ 
 
 The agriculture of a country depends primarily upon 
 climatic conditions.- The natural fertility of the soil of 
 Egypt was further increased by a system of canals, and 
 invited to the pursuit of agriculture, which was so 
 highly esteemed that the care of the fields was made a 
 public function.^ The remarkable fertility of the soil 
 made possible a rate of interest,' which, judged by our 
 standards, would amount to usury, but which was justi- 
 fied by the conditions. The altruism of Egyptian civili- 
 zation appears in the consideration of the economically 
 and socially dependent. Humane provisions were made 
 
 ' "It is by virtue of a religious rite that a slave maltreated by his 
 master could terminate his sufferings." Revillout, "La creance," 
 etc., p. 84; also p. 85. Herodotus, II, 113; Revillout, "Cours," 
 etc., 1, pp. 61-114; "La creance," etc., pp. 84r-86, 137-154, 155- 
 178; Pierret, "Dictionnaire d'archeologie egyptienne," p. 211. 
 
 ^Revillout, "Lapropriete,"etc.,pp. 49-72; Pierret, "Dictionnaire," 
 etc., pp. 11-13. See also Wilkinson, "Manners," etc., Vol. IV, 1; 
 Revillout, "La creance,'' etc., p. 125. 
 
 Only officials and the class of warriors were exempt from agri- 
 cultural service, and even this privilege was at times not available. 
 See Revillout, "Cours," etc.. Vol. I, p. 130. 
 
 'The freedom of the people from pressing needs, due to the mild 
 climatic conditions, was an additional factor. See Wilkinson, 
 "Manners," etc.. Vol. I, p. 312: "The necessary expenses of the 
 Egyptians were remarkably small, less indeed than of any people, 
 and the food of the poorer classes was of the cheapest and most 
 simple kind." This condition persists almost unaltered to the 
 present day. See "Description of Egypt," Vol. II, Part II, p. 408: 
 "Frugality is the virtue of the inhabitants of Egypt." 
 
30 ORIENTAL CIVILIZATION [Ch. I 
 
 in behalf of the debtor ; ^ the position of woman^ was 
 in general on a par with that of man: as maiden, wife, 
 or widow, she enjoyed full legal rights and freedom of 
 action. The Code of Bocchoris' provided in the mar- 
 riage contract for a general lien in the wife's behalf 
 upon the available and future property of the husband. 
 It stipulated that if the husband take an additional 
 wife, he must convey the property to the oldest son by 
 the first wife, investing him with a one-third interest 
 as manager and partner. Polygamy seems thus never 
 to have been legally abolished among the Egyptians. 
 Under the Ptolemies the claims of the wife upon the 
 property of the husband were restricted because of 
 the prevalence of fictitious debts of the husband to the 
 wife, which, through the rapid accumulation of interest, 
 frequently led to bankruptcy. A tutelage ("quasi- 
 tutelle" *) for the wife was established under Grseco- 
 Macedonian influence. 
 
 As already indicated, the ethics of the Egyptians was 
 directed to the protection of the economically weaker 
 classes.^ 
 
 ' The legal maximum rate of interest was thirty per cent. This 
 high rate is explained by the fertility of the soil and presumably the 
 correspondingly high profit of business enterprises. Interest beyond 
 the double value of the capital was prohibited. See Wilkinson, 
 "Manners," etc.. Vol. I, pp. 310-312; Revillout, "Les Obligations," 
 etc., pp. 44, 53, 65-89; "Cours," etc., Vol. I, p. 53. 
 
 'Revillout, "Cours," etc.. Vol. I, pp. 62-54, 195-226; "La 
 creance," etc., p. 6; Pierret, "Dictionnaire," etc., pp. 221 seq., 245 
 seq.; also Uhlemann, "Handbuch," Vol. II, pp. 272 seq. 
 
 ' Bocchoris-Bak-en-ran-w; consult Pierret, "Dictionnaire," etc., 
 p. 82. 
 
 * Revillout, "Cours," etc.. Vol. I, p. 198. 
 
 ^Revillout, "La creance," etc., pp. 3 seq.: The remarkable Egyp- 
 tian code of morals "prohibited the abuse of authority, of social sta- 
 tion, of the power attaching to a title, an honor, or a magistracy, 
 prevented the doing of wrong to anyone, the abuse of the weak, or 
 
§8] ANCIENT EGYPT 31 
 
 In the Egyptian religion and morals the love of truth 
 is a supreme dutyi^ truth and justice appear in indis- 
 soluble relation and are expressed by the same term 
 "Ma," personified in the goddess Ma, who guides the 
 dead to the judgment seat of Osiris.^ Ancient Egyptian 
 law absorbed its attitudes through a religious medium.^ 
 
 the enrichment of one at the expense of another. These principles 
 were diametrically the opposite of those which served as the basis 
 of the constitution and law of the Roman people." See also pp. 55, 
 82-86, 102, 114, 202-214, 277. "In fact duty and charity were 
 the two fundamental ideas that dominated Egyptian law and 
 morality." (p. 82.) 
 
 ' Pierret, "Dictionnaire," etc., pp. 561 seq; also Revillout, "Cours," 
 etc., Vol. I, p. 43. 
 
 ''Pierret, "Dictionnaire," etc., pp. 311 seq. The goddess of 
 truth was "the daughter of Re" (Ma set Ra). SeeLepsius, "Denk- 
 maler aus Agypten." Text by Naville (with the co-operation of 
 Bochardt and Sethe) . Vol. Ill, 1900, p. 181. Leist, "Grseco-italische 
 Rechtsgeschichte," Jena 1884, p. 673: "Truth, in the Egyptian 
 conception, was the law, according to which verdicts were pro- 
 nounced in the divine court of the dead, and approximately, in human 
 courts. For this reason the presiding officer of the highest Egyp- 
 tian tribunal wore suspended from his neck the badge of office called 
 Truth, similar to the badge of office worn by the Jewish high priest." 
 Also pp. 739 seq.' 
 
 ^ Remllout, "Cours," etc.. Vol. I, p. 43. "Diodorus Sicullus in- 
 forms us that the older Egyptian laws formed a code divided into 
 eight books. Accordingly in the Egyptian law the religious concep- 
 tion and the written regulations lyere inseparable. Verdicts were 
 rendered equally in the name of the code and in the name of the 
 Gods. . . . Even in the contracts of sale at a relatively low period 
 of culture — the originals of which have been preserved on papyrus 
 with their attests and lists of witnesses — • there frequently appears a 
 religious oath in addition to the purely civil formalities." "In 
 ancient Rome as in Egypt, religion and law were at the outset one 
 and the same. The conservators of religious rules were also the 
 conservators of legal rites." (p. 48.) See Revillout, "La creance," 
 etc., pp. 84, 114. 
 
32 ORIENTAL CIVILIZATION [Ch. I 
 
 The moral obligations of children towards their parents, 
 their support when in need, and the veneration of ances- 
 tors, developed upon a religious foundation. Such 
 obligations were considered as "duties not alone towards 
 men but towards God."^ This highly developed legis- 
 lation and ethics naturally made Egyptian civilization 
 the point of departure and the model for the economic 
 institutions of Greece and Rome. 
 
 §9. Babylonia and Assyria. 1: Babylonian and As- 
 syrian Civilization. The civilization of Babylonia was 
 presumably older than that of Egypt. Tradition places 
 the origin of the human race in the vicinity of Babylon, 
 where agriculture early drove out the nomadic shep- 
 herds; and this may be the symbolic meaning of the 
 story of the killing of Abel, the shepherd, by Cain, 
 the peasant. Babylonia reached a considerable 
 economic and industrial development, but in mili- 
 tary position was later excelled by Assyria, notable 
 for the triumphs of its generals from Sardanapalus to 
 Assarhaddon. 
 
 Conformably to the spirit of ancient civilizations, the 
 king was revered; he was the high priest, the vicar of 
 the divine upon earth. Slavery was a well-developed 
 institution. The captive slaves were drafted for the 
 building of palaces. In later periods a portion of the 
 slaves attained a more independent position, becoming 
 merchants and the creditors of freemen.^ As evidenced 
 by Babylonian tablets, women were qualified for trade 
 
 ^ Revillout, "La. creance," etc., p. 215; also pp. 202-222. Revil- 
 lout, "La propriete,'' etc., pp. 179 seq. 
 
 ^ Kohler Siud Peiser, "Aus dem babylonischen Rechtsleben," Vol. I, 
 pp. 1-7; Vol. Ill, p. 8; Vol. IV, pp. 17 seq. Revillout, "Les obliga- 
 tions," etc., pp. 57-64. Also Revillout, "La creance," etc., pp. 137- 
 178; "Les obligations," etc., appendix, pp. 367-370. On slavery 
 in general, up to p. 373. 
 
§9] BABYLONIA AND ASSYRIA 33 
 
 and business;^ and married or unmarried were on 
 occasion creditors and debtors, buyers and sellers, as 
 well as bondsmen.2 Yet along with these privileges, as 
 a record of the thirteenth year of Nabuchudurusur 
 shows, the sale of women had not been completely 
 abolished.^ 
 
 In Egypt the transfer of ownership was made at the 
 time of sale, and required immediate payment ; in Baby- 
 lonia purchase was in the nature of a contract, and as 
 in any other obligation, payment could be postponed 
 as arranged.^ This more advanced type of transaction 
 makes it probable that while the Romans derived their 
 "jus civile" from an Egyptian model, their praetorian 
 and commercial law was derived from Babylonian 
 sources.^ The Chaldeans ^ were the first to develop 
 trade by instituting specific commercial forms and facili- 
 ties, marking the beginning of a political economy.' The 
 modem word "capital," in the sense of a principal that 
 
 ' Kohler and Peiser, "Aus dem babylonischen," etc., Vol. I, pp. 
 7-9; Vol. Ill, pp. 8,10-16; Vol. IV, pp. 10-13. Revillout, "Lesobli- 
 gations," etc., appendix, pp. 318-321, 329-360, 367. 
 
 2 Revillout, "La creance," etc., p. 6. 
 
 ^ Kohler and Peiser, "Aus dem babylonischen,'' etc.. Vol. 1, p. 7. 
 Also Kohler and Peiser, "Hammurabi's Gesetz," Vol. I, Leipzig 
 1904, p. 118. 
 
 * Revillout, "La creance," etc., p. ii. 
 
 ^ On the development of Babylonian commerce and commercial 
 law see Revillout, "Les obligations," etc., appendix, pp. 374-530. 
 
 'Upon the meaning and development of the designation, Chal- 
 dean, see rwei/ew, "Diereligiosen, politischen," etc., Vol. II, p. 416. 
 At present Chaldean stands for the same as Babylonian. 
 
 ' Reiiillout, "La creance," etc., p. 102, says: "Monetary science 
 was the basis of Chaldean law; the principles of morality were the 
 basis of the Egyptian law." Consult also pp. 55, 113, 114, 215- 
 222, 277, 278-283. 
 
34 ORIENTAL CIVILIZATION [Ch. I 
 
 bears interest, is of Chaldean origin — the Chaldean 
 "Kakkadu" being rendered by the Roman "caput,"' 
 a business term and not a legal one. The economic pros- 
 perity and the rich return of the soil made possible a 
 high rate of interest, in Nineveh reaching a maximum of 
 twenty-five per cent, thirty-three and one-third per cent, 
 or even fifty per cent per annum, ^ according to the 
 risk involved. Compound interest, prohibited in Egypt, 
 was customary in Chaldea.' 
 
 The Assyrians were not unacquainted with the pre- 
 cepts of a progressive ethics. An inscription extolling 
 the good works of the Assyrian king Sargon (722-705 
 B.C.) records his agricultural measures, his system of irri- 
 gation and dams, and his provision of repositories for 
 grain, against famine; but mentions as well his sense of 
 justice in allowing full value for all property condemned, 
 in holding medicinal oil to the lowest price, in checking 
 speculation in sesame and corn, and, in general, "in 
 maintaining law and justice, protecting the helpless, and 
 not oppressing the weak."^ 
 
 2: The Code of Hammurabi.* Our knowledge of 
 Babylonian and Assyrian civilization was markedly 
 and unexpectedly enriched by the French excavations 
 in Susa in 1901-1902, conducted by the archaeologists, 
 De Morgan and Scheil. They found and deciphered a 
 tablet with the inscription of the Book of Laws of the 
 sovereign Hammurabi, who reigned in Babylonia about 
 2250 B.C. This codex contains legislation concerning 
 prosecution and punishment; concerning civil law, 
 
 ' Revilloul, "La creance," etc., pp. S6, 59. Berolzheimer, "Das 
 Vermogen," etc., in Hirth's Ann., 1904, p. 596, note 2. 
 ^ Revillout, "La propriete," etc., p. 111. 
 ' Revillout, "La creance," etc., p. 65. 
 ^Lyon, " Keilinschrif ten Sargon's,'' pp. 31-51. 
 ' Robert Harper, "Code of Hammurabi." 
 
§9] BABYLONIA AND ASSYRIA 35 
 
 including family and inheritance law; a series of regu- 
 lations corresponding to our commercial and industrial 
 law; measures bearing upon water-rights, rights of pas- 
 turage, rights of tenure, also a public law, including 
 sacramental enactments.^ The resemblance of this 
 code to the Mosaic legislation is so striking as to deprive 
 the laws of Moses of their originality and claim to an 
 inspired origin, but by no means of their comprehensive 
 historical importance.^ The interpretation of the Code 
 of Hammurabi has been much disputed, but such dis- 
 cussion is hardly germane to our purpose. It appears 
 to be a book of instruction for judges, or a book of infor- 
 mation for the people, for laws are in constant need of 
 formulation to become practically available. Further- 
 more, as originally promulgated, ancient laws were uni- 
 formly theocratic; but this code is distinctly not of 
 such character. It does not set forth general precepts, 
 but is a summary of practical measures. It contains the 
 decisions of mooted points, thus suggesting an interpre- 
 tation of the general laws — much in the spirit in which 
 the Talmud serves as a commentary upon the Scriptural 
 text. The Code of Hammurabi would thus not be an 
 independent or exhaustive code, but an administrative 
 version of a series of general enactments which have been 
 lost, 
 
 While the Mosaic legislation presents many points 
 of community and resemblance with the Babylonian 
 legislation at the time of Hammurabi, it also shows essen- 
 
 ' Kohler-Peiser, "Hammurabi's Gesetz," pp. 137-139, 174- 
 188 seq. See also David Heinrich Miiller, "Uber die Gesetze 
 IJammurabis." Lecture, March 23, 1904. 
 
 ' Upon the relation between the Codex and the Bible see particu- 
 larly Miiller, "Uber die Gesetze Hammurabi's," p. 45; Oeltli, "Das 
 Gesetz Hammurabi's und die Thora Israels," pp. 30-38, 35, 85 
 seq.; Kohler-Peiser, "Hammurabi's Gesetz," p. 126, note 2. 
 
36 ORIENTAL CIVILIZATION [Ch. I 
 
 tial differences. That Jewish law, as also Jewish civili- 
 zation in general, was influenced by Babylonian, as well 
 as by Egyptian culture, may be regarded as established. 
 The historical value of the Mosaic legislation is not 
 thereby impaired ; for it remains true that in many essen- 
 tial respects, notably in its social ethics, the Torah is 
 pervaded by a humane spirit that appears but sporadi- 
 cally and imperfectly in the laws of Hammurabi. 
 
 § 10. The Vedic Aryans. Our knowledge of the life, 
 customs, and laws of the ancient people of India is de- 
 rived from the Vedas.' The Vedic Aryans, at the time 
 when their wanderings led them to the Indus and the 
 Punjab, were a pastoral people, but were passing over 
 to agriculture and permanent occupation. They lived 
 in communal settlements ; ^ their political organization 
 may be considered as resembling that of the old Ger- 
 manic peoples — as a group of independent tribes 
 associated for pillage or defense. The government of 
 the tribe, in turn composed of clans occupying different 
 districts, was monarchical. The king as "sat-pati" held 
 superior authority in war. There were assemblages of 
 the people, of the village, the district, and the clan.' 
 
 1 On the meaning of Veda see Vol. I, p. 1, note 2. The poets of 
 the Indian Vedas lived about 3000 or 4000 years before Siyana 
 Ak4rya, who assembled the ancient commentaries upon the Rig- 
 veda. Sayana Akirya lived about 1400 A.D. 
 
 ^ "Grama," village, together with the cultivated and improved 
 land attached to it. Its opposite is "Aranya," wilderness, which 
 is uncultivated land, partly woodland. Zimmer, "Altindisches 
 Leben," p. 141; Leist, "Alt-Arisches Jus gentium,'' pp. 31-44. 
 Upon the economic life of the Aryans see Zimmer, "Alt-indisches," 
 etc., pp. 221-235 (Cattle-raising); pp. 235-243 (Agriculture); 
 243-245 (The Chase); pp. 245-255 (Industry, etc.); pp. 255-260 
 (Commerce and Navigation). 
 
 'Zimmer, "Alt-ind.," etc., pp. 119 seq., 158 seq. Kuhn, "Zur 
 altesten Geschichte der indogermanischen Volker,'' in Weber's 
 
§10] THE VEDIC ARYANS 37 
 
 While it is uncertain whether the castes of India existed 
 in Vedic times, ' it is well to bear in mind the four castes 
 — the Brahmins,^ the highest and the most privileged ; 
 the second, the military nobility or knights — both of 
 these living at the expense of the third caste — the 
 Vaisya or Arya, to which the mass of the people belonged ; 
 and the lowest, the Sudra, whose rights were limited 
 to bare existence.^ Though polygamy was legally sanc- 
 tioned, monogamy was the rule; and upon the death 
 of the head of the family the eldest son succeeded.* 
 
 Closely connected with the religious and philosophical 
 views of the Aryans are certain fundamental positions 
 in regard to the philosophy of law, which in turn became 
 the antecedents of later legal and ethical developments 
 among the Greeks and Romans. Foremost among these 
 philosophical conceptions is "rita," which is at once 
 the organized principle of the universe and the divine 
 ordering of earthly life; as the former it regulates the 
 appearance of sun and moon, of day and night, and 
 embodies the unchangeable principle that pervades the 
 succession of phenomena ; as the latter it is affiliated with 
 
 "Indische Studien," Vol. I, pp. 321-363; 332: "Gopa was originally 
 the cowherd, later protector and guardian, — particularly as an 
 appellation of the gods, — and finally the king.'' 
 
 ^Zimmer, "Alt-ind.," etc. Upon the meaning and origin of the 
 word casle see Max Miiller, "Essays," Vol. II, "Beitrage zur ver- 
 gleichenden Mythologie und Ethologie," pp. 265-315. 
 
 ' Brahmand refers to the posterity of the wise and of the priestly 
 bards (Brahmin). See Weher, "tjber Haug's Aitareya-Brihmana," 
 in Weber's "Indische Studien," Vol. IX, 1865, p. 352; Zimmer, 
 "Alt-ind.," p. 205. 
 
 ^Twesten, "Die religiosen," etc., Vol. II, pp. 173-251; Zimmer, 
 "Alt-ind," etc., pp. 205-216. 
 
 ^Zimmer, "Alt-ind.,'' etc., pp. 305-336; Twesten, "Die religiosen,'' 
 €tc., p. 292; Bernhojt, "Altindische Familienorganisation" (in 
 Z. f. V. Rechtsw., Vol. IX, pp. 1-45), declares his belief that poly- 
 andry existed among the primitive Aryans. 
 
38 ORIENTAL CIVILIZATION [Ch. I 
 
 purpose and human benefit, and is exemplified in the 
 flow of the rivers which fertilize the fields; in the cattle 
 useful to men; in the institutions of marriage, of the 
 monarchical state, of the patriarchal home; and in 
 man's sense of responsibility for his sins. 
 
 The derivative conceptions of "vrata," "dharma," 
 "dhama" (OefiK), "svadha" ^ i^dos), represent special 
 aspects of "rita"; thus "vrata" refers to any special- 
 ized embodiment of "rita"; "svadha" to whatever is 
 sanctioned by law, as custom or practice; "dhama" ^ 
 is the realized cosmos corresponding to "rita" as a con- 
 ception; while "dharma" refers specifically to the 
 moral function of rewarding good and punishing evil. 
 
 The last has special bearings upon legal and ethical 
 rights and duties. Under its dominion the gods are 
 honored and offered sacrifice, so that an equivalent 
 reward may follow. As all law is subject to the divine 
 regulation, so the State, the family, the social structure 
 conforms to a ritual. "Dharma" thus acquires the 
 several meanings of the just, or of the customary, or of 
 conformity to standards and usage. Specifically 
 "dharma" becomes the sum total of pious duties. The 
 four commandments, together with five injunctions, 
 form the core of Aryan ethics. The four command- 
 ments read: Thou shalt honor the gods; Thou shalt 
 honor thy parents; Thou shalt honor thy country; 
 Thou shalt honor the guest, especially when he stands 
 in need of protection. To these are added the five 
 
 '■Leist, "Grseco-italische Rechtsgeschichte,'' Jena 1884, pp. 175 
 seq.; 187-199; 199-205; 221; "Alt-Arisches Jus civile," Part II 
 p. 6. 
 
 ^Leist, "Grseco-italische Rechtsgeschichte,'' pp. 197 seq.; 218; 
 "Alt-Arisches Jus gentium," p. 673; "Alt-Arisches Jus civile," 
 Part I, pp. 16-23. Also Bluntschli's article, "Recht, Rechtsbegriff 
 ina Deutschen Staatsworterbuch," in the German Dictionary. 
 Bluntschli and Brater, Vol. VIII, pp. 483-485. 
 
§9] THE VEDIC ARYANS 39 
 
 injunctions: Thou shalt keep thyself clean; Thou shalt 
 hold thy senses in check, in particular, not violate; 
 Thou shalt not kill; Thou shalt not steal; Thou shalt 
 not lie.i Such commands are directed primarily to 
 the holder of property, to the head of a family as its 
 representative, who exercises the authority to judge and 
 punish within the circle of the home.^ Dharma thus 
 acquires the meaning of what is just and customary in 
 conduct.^ 
 
 The explicit formulation of moral precepts is familiarly 
 not a guarantee of moral practice; indeed the moral 
 consaousness is commonly emphasized where temptation 
 is strong and transgression common. While the Vedic 
 writings extol the virtues of pure water and simple, whole- 
 some living, the people were given to excesses ; wealth was 
 eagerly sought and highly prized,^ and crimes due to 
 avarice were common. Appeals were constantly made 
 
 ^Leist, "Alt-Arisches Jus gentium," pp. 172-384; "Alt-Arisches 
 Jus civile," Part I, pp. 16-23; 61-468. 
 
 "Leist, "Alt-Arisches Jus gentium," pp. 59-171; 385-567. 
 
 'Benfey, "Sanskrit English Dictionary," p. 432, gives eleven 
 meanings to "dharma" — abbreviated form of "dharman" — virtue, 
 merit, right, law, duty, justice, character, or quality, resemblance, 
 sacrifice, personified justice; and as "yama", the judge of the dead. 
 See also Bernhoft, "tjber die Grundlagen der Rechtsentwickelung 
 bei den indogermanischen Volkern" (Z. f. v. Rechtsw., Vol. II, 
 p. 266). The following regulations of trade and industry from the 
 Code of Manu are interesting, and aim to fix just prices: (p. 401) 
 "The king shall set the price for purchase and sale of all commodi- 
 ties according to the place of origin and destination, the period dur- 
 ing which they have been on the market, the profit of the seller, and 
 the expenses of the purchaser." (p. 402) "Once in five days or in a 
 fortnight, the king shall publish the price of commodities in the 
 market." (p. 403) "Every scales and every weight shall be adjusted 
 and shall be tested at intervals of six months." See Jolly, "Die 
 juristischen Abschnitte aus dem Gesetzbuch des Manu," Z. f. v. 
 Rechtsw., Vol. IV, p. 339. 
 
 * Hirzel, "Gleichnisse und Metaphern im Rigveda," pp. 406-408. 
 
40 ORIENTAL CIVILIZATION [Ch. I 
 
 to the gods for protection against robbery and deceit, 
 against slander and false witness. 
 
 Of interest to penology is the fact that the institution 
 of outlawry, which is prominent in Germanic law, 
 appears in Aryan law. The offender was excluded from 
 communal privileges, and was forced to flee beyond the 
 pale of jurisdiction. In cases of lesser transgression 
 bodily punishment was applied. In difficult issues of 
 law the gods were appealed to for a decision; and, as 
 usual in ancient practice, civil, moral, and legal guilt 
 were not differentiated.' 
 
 § IL The Jewish Stated The Mosaic dispensation 
 is historically important, not alone because of the 
 measures and institutions which it established among 
 the Jewish people, but because of the extensive circula- 
 
 ^Zimmer, "Altindisches," etc., pp. 272-276, 283-287; 177 
 seq.; p. 185; pp. 181-183. On page 181 he says; "The true con- 
 ception of guilt is "rna": "rnavan," guilty and beset with guilt is the 
 gambler (Rv. 10, 34, 10), who brings his family into misfortune 
 and attempts to appropriate another s wealth under cover of the 
 night. "Rna," guilty, is designated the thief "tayu"; Rv. 6, 12, 5. 
 "Rna'' frequently has the special sense of debt in connection with 
 loans. 
 
 ■ It is difficult to decide to what extent the Mosaic commonwealth 
 may be described as a theocracy. The reference of the tribal dis- 
 pensation, as well as of the behests of law, morality, and ritual to 
 divine origin, the fact that the king, the leader in war, likewise 
 exercised the highest priestly office, that the voice of God was heard 
 in the words of the prophets advising and admonishing upon affairs 
 of states — all this supports the theocratic interpretation. But it 
 must be borne in mind that the spirit of the period and of the 
 Oriental attitude, as well as the trend of the cultural stage through 
 which the people of Israel were passing, were sympathetic with, 
 if not conducive to allied views, particularly as bearing upon tribal 
 and national protection and fortune. The insight of Moses as a 
 lawgiver appears in his anticipation of the inevitable organization 
 of his people under a kingdom, and his provisions for the onset of 
 such a transformation as a just and legal consummation. Yet it 
 is evident that the dominance of the monotheistic conception, 
 
Ill] THE JEWISH STATE 41 
 
 tion of Scriptural ideas. Moreover the fundamental 
 features of Jewish institutions were ethical, and these 
 ethical concepts in turn shaped the teachings of Chris- 
 tianity. That the Mosaic provisions were themselves 
 influenced by the institutions of Egypt and Babylonia 
 is evident, though the central and pervading conception 
 of monotheism imbues them with a distinctive, and in 
 large measure, theocratic ^ trend. By the Jews them- 
 selves the Mosaic dispensation was regarded as divinely 
 inspired ; the people of Israel were held to be the chosen 
 people of God, and the several precepts were enforced 
 by their promulgation as God's will and command. 
 The dominance of the monotheistic ^ belief appears 
 in its emphasis by Moses as the keynote of a national 
 religion: ' there is but one God and his name is Jahweh.* 
 
 exemplified in the peculiar mystery and sanctity attaching to the 
 appellation of'the deity, influenced the entire range of the political 
 and economic prescriptions and gave the religious aspect of philo- 
 sophical conceptions a commanding position in the intellectual and 
 practical as well as in the religious life of the people. [Translator's 
 note condensed from omitted portions of the text.] 
 
 ^ Michaelis, "Mosaisches Recht," Part I, §§35, 36. Wellhausen, 
 "Prolegomena zur Geschichte Israels," Vol. I, pp. 435-451. "Die 
 Theokratie als Idee und als Anstalt." 
 
 ^ Twesten, "Die religiosen," etc.. Vol. II, p. 578: "We cannot re- 
 gard the doctrine of the unity of God as a Mosaic creation for 
 it is doubtless much older, but we may regard as Mosaic the plan 
 to free this doctrine from the esoteric obscurity of the priests and 
 to elevate it to the dominant religion of an entire people." 
 
 'Compare with Rsnan, "Geschichte des Volkes Israel," Vol. I, 
 pp. 69-106. 
 
 * Renan, "Geschichte," etc., Vol. I, p. 101: "It was in all proba- 
 bility a foreign importation (though this is not significant) that 
 Jahweh could arise in Egypt, while in Assyria, and particularly in 
 the neighboring regions, Padan-Aram, of the Chaldeans, who were 
 affected by Aramaic influence, the word Jahou or Jahweh seems to 
 have been used as a designation of the divinity." This comment 
 of Renan's is certainly not an explanation. 
 
42 ORIENTAL CIVILIZATION [Ch. 1 
 
 The limitation of Jewish ethics in social practice 
 appears in that the precept, "Love thy neighbor as 
 thyself," was applied primarily within the fold;^ 
 but when thus applied, it assumed the character of an 
 obligatory assistance of those in need. The poor were 
 cared for, but beggary was frowned upon. In a similar 
 spirit the taking of interest was forbidden as usury, for 
 it was the exploiting of another's need.^ 
 
 The practical regulations of the Mosaic dispensation 
 center about the economic status of an agricultural 
 people.' Their practical prescriptions and proscriptions 
 embody an underlying principle, at times carried to an 
 extreme and semi-symbolic form. The purity of agri- 
 cultural products and of animal strains was to be main- 
 tained. It was forbidden to sow with mixed seeds,* to 
 mate different animal species, and even to wear a garment 
 
 ' Leviticus XIX, 18. "Reg" is the neighbor in the sense of every- 
 one "with whom I have any relation either good or bad"; thus 
 including the relation of plaintiff and defendant. See Michaelis, 
 "Mos.," etc., II, §72, p. 16. He there (p. 15) attempts to explain, 
 though unsuccessfully, why this provision is placed among the 
 civic laws. The command of neighborly love is based upon the 
 philosophical interpretation which I have given. For this reason 
 it is directly related to the law. 
 
 "Deuteronomy XXIV, 13; Exodus XXII, 24; Leviticus XXV, 
 35-37; Psalms XV, 5; Ezekiel XVIII, 8, 13, 17; Deuteronomy 
 XV, 7-11. See also Michaelis, "Mos.," etc.. Part I, p. 20; Part 
 III, §§ 152-156. The acceptance of interest from strangers was 
 allowed; Deuteronomy XXIII, 21. 
 
 For the right of the poor to glean, see Leviticus XIX, 9, 10; 
 Deuteronomy XXIV, 19, 20, 21; Ruth II, 2-19. In regard to the 
 produce of the field in fallow years see Leviticus XXV, 5,6; Deuter- 
 onomy XII, 5-12, 17, 19; XIV, 22-29; XVI, 10, 11; XXVI, 
 12, 13. See also Oettli, "Das Gesetz," etc., p. 88. 
 
 ^Michaelis, "Mos.," etc., I, §§38-44. 
 
 ^ Deuteronomy XXII, 9, and Leviticus XIX, 19. Michaelis, IV, 
 §§ 218, 219. Leviticus XIX, 19. Michaelis IV, § 220. 
 
§11] THE JEWISH STATE 43 
 
 partly of linen and partly of wool. The Jewish race 
 was to be kept pure ' ; sexual excesses were punished by 
 stoning; debilitating luxuries were to be avoided; the 
 daily life was to be kept clean. Offspring were looked 
 upon as the blessing of God; to the first-born were 
 reserved special privileges,^ both in the religious and the 
 economical institutions,^ but the daughters were excluded 
 from inheritance.* 
 
 Among the more special economic provisions the regu- 
 lation of land tenure is characteristic. It is to be noted 
 that the Mosaic dispensation applied to a people who 
 were about to take possession of a land, free from the 
 complications of ancestral rights or constituted privi- 
 leges. The land was to be divided among the people of 
 Israel by lot, thus preventing concentration of ownership 
 in large estates; but all possession was conditioned by 
 the institution of the year of Jubilee.^ Once in fifty years 
 the land reverted to the original owner, ° so that in prin- 
 ciple it was not the land that was sold but only its returns 
 
 I Leviticus XX, 18. Michaelis, V, § 271. 
 
 ^Michaelis, "Mos.," etc., II, §84. Deuteronomy XXI, 17. 
 Michaelis, II, § 79. Anders, "Codex Hammurabi," §§ 165, 167. 
 See above § 9, pp. 51 seq. 
 
 ' Moses was unable to exterminate the prevalent polygamy. 
 He so modified it that the abuses attaching to the practice were 
 as far as possible minimized. See Michaelis, "Mos.," etc., II, §§ 94- 
 97. 
 
 ■• They had no share in the father's house and were regarded 
 as strangers. Genesis XXXI, 14, 15. Numbers XXVII, 2, 3, 4. 
 Upon this point and its exceptions see Michaelis, "Mos.," etc., II, 
 §78. Anders, "Codex Hammurabi," §§180, 181, 183, 184. See 
 above § 9, pp. 51 seq. 
 
 ^ From "Jobel," a musical instrument with which the fiftieth year 
 was heralded on December 10th, or more correctly from "Jabal" 
 (Syrian) to succeed; Jubal, succession. Michaelis, "Mos.," etc., 
 II, p. 20, note *. 
 <■ Leviticus XXV. 
 
44 ORIENTAL CIVILIZATION [Ch. I 
 
 until the next ensuing year of Jubilee.^ Similarly once 
 in seven years, by divine command, the land was to lie 
 fallow;^ and as among an agricultural people a debtor 
 was dependent upon his crops to repay his loan, no pay- 
 ment was exacted during such sabbatical year.^ The 
 spirit of consideration thus inculcated extended to the 
 humane care of animals,* to leniency towards the un- 
 fortunate, and to charity towards the dependent.^ 
 Though the agricultural pursuits of peace determined 
 the economical regulation, the contingencies of war were 
 prepared for. At stated periods a census of all the people 
 was taken; and military service was exacted of all male 
 adults above twenty years of age, the Levites alone being 
 exempt. It is, however, but natural that, despite its 
 ethical and cultural provisions, the Mosaic dispensation 
 should reflect the dependence of Jewish civilization upon 
 ancient tradition and usage. Thus slavery, though mod- 
 erated in its exactions, was retained; and the purchase 
 of wives, though not universal, was customary.' The 
 right of retaliation for bodily injury and the institution 
 of vengeance by the near of kin were likewise sanctioned ; ^ 
 
 1 Leviticus XXV, 14-16; Leviticus XXV, 23. According to the 
 Egyptian model in which Pharaoh is the owner of the land, see 
 Genesis XLVII, 20. 
 
 2 Leviticus XXV, 1-8. 
 
 ' Deuteronomy XV, 1, 2. Michaelis, "Mos.," etc., Ill, § 157. 
 
 * Deuteronomy XXII, 10; the prohibition of yoking an ox to 
 an ass for ploughing; Deuteronomy XXV, 4; "Thou shalt not 
 muzzle the ox when he treadeth out the corn." Michaelis, "Mos.," 
 etc., Part II, § 130. 
 
 ^Oettli, "Das Gesetz," etc., pp. 30-38; 35. 
 
 6 Genesis XXIX, 15, 29; XXXIV, 12. Also Genesis XXXI, 
 15, 16. Michaelis, "Mos.," etc., II, §§85, 86. 
 
 'Exodus XXI, 23-27; Leviticus XXIV, 19, 20. Deuteronomy 
 XIX, 19. Michaelis, "Mos.," etc., V, §§ 240-242. 
 
§12] THE JEWISH STATE 45 
 
 though here again the spirit of equity is indicated by the 
 estabUshment of places of refuge for unintentional 
 murder."^ 
 
 § 12. The Phosnicians? In older civilizations com- 
 merce was limited to within the country or to the adjoin- 
 ing territory. The rocky coast of Phoenicia gave little 
 opportunity for agriculture or cattle raising, and the 
 Phoenicians turned their energies to maritime trade,' 
 serving the ancient world as the mediaries of international 
 exchange, and laying the basis for a prosperous merchant- 
 class, that, through the power of capital, was destined 
 to overshadow that of the productive artisan. Therein 
 lies the importance of the Phoenicians for the student of 
 the philosophy of law and economics. Indirectly the 
 great economic development following upon the enlarge- 
 ment of trade made necessary an extension of legal regu- 
 lations ; and this in turn culminated in the constitutional 
 model of the Greek city-state, the "polls." 
 
 1 Genesis IX, 5, 6; Exodus XXI, 12, 13, 14; Numbers XXXV; 
 Deuteronomy XXIX, 1-10. Michaelis, "Mos.," etc., 7, 11, §§ 131- 
 137. Concerning the law of blood vengeance of the Egyptians and 
 the Jews, see aXsoLeist, "Greeco,'' etc., note 29 to § 53, pp. 742-751. 
 
 ^ Twesten, "Die religiosen," etc.. Vol. II, pp. 637-544. 
 
 ' It is not known when the Phoenician voyages began; they were 
 well established in the fifteenth century before Christ. Later the 
 Phoenicians were repulsed by the Greeks. SeeEduard Meyer, "Ges- 
 chichte des Altertums," Vol. I, Stuttgart 1884, pp. 230, 311, 336 seq. 
 
46 GREEK CIVILIZATION [Ch. II 
 
 CHAPTER II 
 
 THE ANCIENT COMMONWEALTH: GREEK 
 CIVILIZATION 
 
 THE GREEKS BEFORE PLATO: (1) FUNDAMENTAL GREEK CON- 
 CEPTIONS; (2) SUBJECTIVISM AND OBJECTIVISM; (3) THE PYTHA- 
 GOREAN PHILOSOPHY; (4) THE PHILOSOPHY OF HERACLITUS; (o) 
 THE SOPHISTS; (6) THE SOCRATIC PHILOSOPHY. — PLATO: (1) THE 
 PLATONIC CONCEPTION OF VIRTUE; (2) PRACTICAL JUSTICE AND 
 SOCIAL VIRTUE; (3) THE IDEAL AND THE REAL STATE; (4) THE IN- 
 FLUENCE OF PLATO.— ARISTOTLE: (1) THE BASIS OF ETHICAL CON- 
 DUCT; (2) THE GREEK ARISTOCRAT; (3) SOCIETY AND THE STATE; 
 (4) JUSTICE AND EQUITY; (5) THE ORIGIN OF CIVIC LIFE.— THE 
 POST- ARISTOTELEAN PERIOD: (1) THE CYNICS; (2) THE CYRENAICS; 
 (3) THE STOICS; (4) THE EPICUREANS; (5) THE SCEPTICS; (6) THE 
 NEO-PLATONISTS. 
 
 § 13. The Greeks before Plato. 1 : Fundamental Greek 
 Conceptions. Philosophical conceptions were current 
 in Greece before its philosophers formulated their views 
 upon the nature of law and the origin and purpose of 
 government. Among these energy or nature, as already 
 noted in considering Egyptian culture, was the object 
 of reverence. "Nature," or the "natural order" or "con- 
 formity to nature" is a philosophical conception ; it bears 
 upon the philosophy of law, and makes it pertinent to 
 consider how it was conceived by the Greeks. "$u'(ns" 
 is the quality or disposition of nature, the essence of a 
 person or thing, as derived from the conception of its 
 growth, genesis, or development.' Accordingly <^u'tns 
 
 ' Vanicek, "Griechisch-Iateinisches etymologisches Worterbuch," 
 Vol. II, Leipzig 1877, pp. 640, 633. 
 
§13] GREEKS BEFORE PLATO 47 
 
 is the order or constitution of nature — nature as a 
 generating creative force, developing from the spontane- 
 ous energy inherent in material objects without the in- 
 tervention of human artificial agencies. Nature is natural 
 energy. What the Vedic Aryans expressed as "rita" 
 became "<f>v(ns" to the Greeks.^ While the ancient Aryans 
 made it a distinctively religious or divine quality, the 
 Greeks, with their analytic insight, recognized it as the 
 underlying basis of natural growth, as energy. 
 
 To the Aryan "dhama" there corresponds the Greek 
 "6ilj.t,s." In the Greek conception, Themis, as a phase 
 of the natural order, comprises the fact of sex and gen- 
 eration, marriage, and the filial relation. These were 
 conceived as divinely established, as in general a divine 
 decree underlies all that is expressed in Themis. It 
 was by virtue of the revelation by Zeus in Dodona, and 
 by the oracle of the Delphic Apollo through which the 
 "de[u<TTes" of Zeus were proclaimed, that Themis became 
 the possession of mankind. The earthly representatives 
 of Themis are the "Dicaspoloi" in the Agora. The pro- 
 tection of the stranger likewise falls to the province of 
 Themis.^ 
 
 Co-ordinate with Themis, the humane and worldly Dike 
 exercises influence upon Greek law and practice. Dike, 
 deified as a daughter of Zeus, holds sway in the Agora, 
 and secures for the litigants a lawful and just procedure 
 in civil as well as in criminal cases. To her is accorded 
 the like divine authority that belongs to Themis; and 
 
 ' See, above, § 10. 
 
 2 See Zeist, "Gr£eco-ital.," etc., pp. 205-211, 211-216, 662, and 
 the references there found. Also Vanicek, "Griechisch.," etc.. Vol. I^ 
 p. 377; Curtius, "Grundzuge der griechischen Etymologie," fifth 
 edition, Leipzig 1879, p. 254; Bernhoft, "Uber die Grundlagen der 
 Rechtsentwickelung bei den indogermanischen Volkern," Z. f. v. 
 Rechtsw., Vol. II, p. 283; Leist, "Alt-Arisches Jus civile," Part I, 
 p. 90; Part II, pp. 4, 56, 87. 
 
48 GREEK CIVILIZATION [Ch. II 
 
 Zeus supports her plea whenever she approaches his 
 throne in behalf of clemency. "^ 
 
 Hybris^ appears as the source of all evil ; it is the rebel- 
 lion of men against the gods, presumption, the over- 
 stepping of the limits set to human conduct, whence 
 arises the rebellious mood and the resulting wrongdoing. 
 
 The Erinyes,' prompt and ready to reprove, and the 
 Eumenides to reward, stand as the protectors of the 
 eternal order of things; they are the \ forces of nature 
 and life personified in feminine form. In conjunction 
 with the ancient Greek conception of spiritual atone- 
 ment, the expiation of a threatened or accomplished dis- 
 honor, there arises the duty of vengeance. Such pious 
 
 ^Leist, "Graeco," etc., pp. 211, 508-515, 662; Curtius, "Grund- 
 ziige," etc., p. 134; Vanicek, "Griechisch," etc., pp. 328 seq. 
 
 * Upon Hybris see Curtius, "Grundziige,'' etc., p. 540; Leist, 
 "Alt-Arisches Jus civile," p. 95; Hildenbrand, "Geschichte und 
 System der Rechts- und Staa'tsphilosophie," I, p. 63. Lassalle, 
 "Die Philosophie Herakleitos des Dunklen von Ephesos," Berlin 
 1858, Vol. II, pp. 445 seq. 
 
 ^Plutarch, "Isis et Osiris," c. 48. K. 0. Miiller, "Aeschylos' 
 Eumeniden," pp. 126-151. Hildenbrand, "Geschichte," etc., I, 
 p. 63. leist, "Grseco,"' etc., pp. 286-423. Curtius, "Grundziige," 
 etc., p. 344. S,chcemann, "Griechische Altertumer, " Vol. II, 
 pp. 337-354. Pfleiderer, "Religionsphilosophie auf geschichtlicher 
 Grundlage," second edition. Vol. II; "Genetisch-speculative 
 Religionsphilosophie," Berlin 1884, p. 500. Rohde, "Psyche," I, 
 pp. 259-277; II, pp. 101, 405. Bachofen, "Das Mutterrecht. 
 Eine Untersuchung iiber die Gynaikokratie der alten Welt nach 
 ihrer religiosen und rechtlichen Natur," Stuttgart 1861, §| 25-29, 
 pp. 44-58: (p. 51) " 'EptviJS is thus the name of the divinity residing 
 upon the earth. The Erinyes are the powerful forces within the 
 earth, — children of the night. They bring forth all life in the dark 
 depths of matter. What the earth brings forth in its growths 
 is their gift, their generation. Men and animals they nourish; 
 they make the fruit of the womb prosper. If they are displeased 
 then all decays, the fruit of the earth, the offspring of men and 
 animals." 
 
5 13] GREEKS BEFORE PLATO 49 
 
 obligation towards a murdered kinsman was recognized 
 by the Greeks, especially by the Athenians. The Erinyes 
 were pictured as relentlessly pursuing their victim, and 
 became the active personification of a guilty conscience. 
 
 According to Homer, Nemesis' is the displeasure which 
 the disobedience of Themis calls forth; according to 
 Aristotle, * Nemesis is the' spirit of resentment against 
 good fortune. Nemesis thus becomes a retributive jus- 
 tice equalizing the fortunes of men. 
 
 2: Subjectivism AND Objectivism. While the thought- 
 processes of primitive man are primarily perceptive, 
 civilized man conceives the world in terms of ideas. 
 Early cultures stand closer to the thought-habits of primi- 
 tive man; in them the perceptual view of things domi- 
 nates while the conceptual attitude is yet to be developed. 
 To the contrast of perception and conception as applied 
 to the sensory apprehension of the material world, there 
 corresponds the like contrast of feeling and thought as 
 applied to the cultivation of the beautiful, the moral, 
 and the just. At the lower cultural levels commendation 
 proceeds upon an instinctive feeling, and the socially 
 and traditionally acceptable; while civilized man judges 
 and determines the beautiful, the ethical, and the just, 
 by the aid of reason and philosophy.^ Yet in a last analy- 
 sis all ideas growing out of a knowledge of the material 
 world are derived from experience, and, in so far, from 
 perceptions; for otherwise they would be illusory, with- 
 
 ' Upon Nemesis see SchelUng, "Philosophie der Mythologie." 
 Collected works, II, 2, p. 143. Bernhoft, "Uber die Grundlagen," 
 etc., Z. f. V. Rechtsw, II, p. 284. 
 
 'Aristotle, Rhet. IX (Sylb. 80, 7): ei yap icm to v€/xecrav 
 XevTreCiBcu, iirl to! <jxuvoiJ,ev(o dva^ieos ivirpayciv. 
 
 'Compare pp. 178-215 in Vol. I of Berolzheimer, "System der 
 Rechts- und Wirtschaftsphilosophie" ("Kritik des Erkenntnisin- 
 haltes"). 
 
50 GREEK CIVILIZATION [Ch. II 
 
 out real foundation. Practical philosophy, despite its 
 intellectualistic setting, proceeds upon an empirical and 
 impressionistic foundation. In a more advanced civil- 
 ization the conceptual aspect of things, distinctive of 
 an enlightened attitude, predominates; and the strong 
 emotional factor, prevalent in a less developed civili- 
 zation, declines. In all primitive stages of culture, 
 ethical and legal values are established under conditions 
 dominated by the emotional attitude, and practical phil- 
 osophy appears in religious guise — a stage of develop- 
 ment observable in Greek thought. 
 
 When in Greece the educated classes freed themselves 
 from traditional religion, and natural philosophy was 
 developed, the fundamental conceptions of ethics and 
 law, which until then were enforced by religion, were 
 no longer secure ; and a different foundation was sought. 
 Philosophy, by thus realizing the alternative either of 
 assuming the possibility of an objective standard of 
 conduct or of approaching the inquiry wholly without 
 prejudice, was confronted by the fundamental problem 
 of the existence of an objective criterion of right and wrong. 
 
 Continuously from their Greek beginnings the two 
 trends persist, though with shifting import and applica- 
 tion. The contrast involved may be described as that 
 of idealism and realism, or of dogmatism and scepticism. 
 Yet all such appellations are misleading by reason of 
 the very different philosophical implications which the 
 terms now carry; they increase rather than remove con- 
 fusion. The terms "objectivism" and "subjectivism" 
 seem preferable. Objectivism holds in general that an 
 objective standard of right action exists; subjectivism, 
 that there is no such standard, but that right action is 
 determined by human choice. 
 
 Of the distinctive changes that objectivism and sub- 
 jectivism have undergone in the history of the philosophy 
 
§13] GREEKS BEFORE PLATO 51 
 
 of law, the following may be noted : in Greek philosophy 
 the problem appeared as the question whether right 
 action was ordained by nature or by human enactment; 
 in the mediaeval attitude it appeared as the expression 
 of the divine spirit through the medium of the dogma 
 of the Catholic Church, and subjectivism became equiv- 
 alent to impiety or heresy; in the doctrine of Natural 
 Law objectivism claimed to have found a principle of 
 right action and of natural right ; in the modern philos- 
 ophy of law the idealistic position becomes objective, 
 and assumes the existence of an inherent conception of 
 right ("Rechtsidee"), while realism stands for the posi- 
 tion that might is right. 
 
 The Greek statement of the distinction between what 
 is ordained by nature or by custom, "<l>vaa — vojjlio 
 BiKatov," ' fails to indicate the most general bearing of 
 the problem, and in the first member of the alternative 
 (Nature) somewhat anticipated the solution. For in 
 this alternative the objective basis of right action is 
 made equivalent to that which is ordained in and ex- 
 pressed through the natural order of things. In support 
 of the assumption of an ideal or standard of right action, 
 the objectivist position must be able to refer to an ad- 
 mittedly or presumably conclusive principle. This is 
 found in the sense of right as part of the psychological 
 endowment of human nature. While variously expressed 
 at different periods, this is its common and consistent, 
 though at times but vaguely recognized, basis. ^ 
 
 3: The Pythagorean Philosophy. Objectivism finds 
 its first development in Pythagoras^ (about 582-500 
 
 1 See below, § 16. Also Ahrens, "Naturrecht," p. 36. 
 
 ^ This belongs to the sentiments; " Erkenntnisgefiihl." See 
 Vol I ol Berolzheimer, "System," etc., pp. 310-317. 
 
 ' Rilter, "Geschichte der pythagoreischen Philosophie," Hamburg 
 1826, particularly pp. 87 seq. 
 
52 GREEK CIVILIZATION [Ch. II 
 
 B.C.) as a direct issue of the Pythagorean philosophy 
 of numbers. Like all symbolic systems, the symbolism 
 of number is open to attack. While in the symbolic 
 philosophy itself the ascribed quality is understood to 
 be a mere symbol, yet it leads the symbolist to accept 
 the appearance for the reality, and thus makes the pro- 
 totype or analogy the real essence that adequately ac- 
 counts for the thing itself. ' Again the disciples, if 
 not the founder of a symbolic system, drift to fanciful 
 analogies, and arbitrarily combine wholly unrelated 
 conceptions on the basis of a superficial relation or 
 resemblance. Both faults are found in the Pythagoreans; 
 the first in Pythagoras himself and the other in his 
 followers. For example, there are assumed to be ten 
 virtues corresponding to the ten celestial spheres. 
 
 Yet the valuable and significant part of the Pythago- 
 rean doctrine is found not in its symbolism but in its 
 treatment of justice. For the first time an attempt is 
 made to establish an objective justice in the spirit of 
 that conception. Pythagoras calls justice the "equal 
 multiple of itself." This phrase is transmitted through 
 Aristotle, "dpt^/^os lo-axts IVos." ^ It is regularly referred 
 to as the square number.' Hegel interprets it by say- 
 ing that "justice is called the 'equal multiple (or power) 
 of itself in that it ever retains a like quality. So 
 
 • Upon the Egyptian influence upon Greek philosophy, especially 
 upon the Pythagorean, see Wilkinson, "The manners and customs of 
 the ancient Egyptians," Vol. II, pp. 491-510; a.lso Bachofen, "Das 
 Mutterrecht." Upon the Indian influence on the Pythagorean 
 philosophy, especially the belief in the transmigration of the soul, 
 seeL. V. Schroeder, "Pythagoras und die Inder. Eine Untersuchung 
 iiber Herkunft und Abstammung der pythagoreischen Lehren," 
 Leipzig 1884. 
 
 'Aristolle, "Magna Moralia," I, 1, 6. 
 
 ' 5. Hildenbrand, "Geschichte und System der Rechts- und 
 Staatsphilosophie," I, p. 55. 
 
§13] GREEKS BEFORE PLATO 53 
 
 justice was determined by that number which, itself 
 even, when multipHed by itself, remained even (equal)." ' 
 From Aristotle we learn that the Pythagoreans 
 considered reparation or retribution, "To avmrsTrovOos," 
 the absolute objective justice j^ and thus the "doubly 
 equal number" is interpreted as retribution.' Erdmann, 
 in support of the Pythagorean procedure but without 
 a detailed elucidation of the phrase, "dptS/ios to-a/cts IVos," 
 comments: "That for which Aristotle criticized the 
 Pythagoreans, namely, their mathematical formula of 
 justice, is to be commended as consistent; even their 
 designation of "dpt^/Aos iVd/cts I'o-os" is intelligible when 
 it is recalled that they conceived justice as retributive."* 
 I confess that these interpretations impress me much 
 as the splendor of the king's apparel appeared to the 
 naive lad in Andersen's fairy tale: where all the rest 
 gazed and admired, he could see only the naked fact. 
 Accepting "dpi^os to-d/cis I'o-os" as "the square number," 
 one is met by the obvious fact that there is no 
 such thing as the square number; there is not a single 
 or unique square number, but innumerable ones: 1, 4, 
 9, 16, 25, etc. Nor is it likely that the series as a whole 
 is referred to. Hegel's interpretation, "A number itself 
 when multiplied by itself remains even (equal)," is not 
 apposite. For in the first place "equal" is not the same 
 as "even"; and secondly, every even number when mul- 
 tiplied by itself remains even. Therefore, if the meaning 
 had been, "The number which, itself even, when multi- 
 plied by itself, remains even," it would have been enough 
 
 ' "Vorlesungen iiber die Geschichte der Philosophie," I, Collected 
 Works 13, p. 273. 
 
 'Aristotle, "Ethic. Nicom.," V, 5 (8), 1: "Soxei 8e ricrt to dvTwre. 
 TTOV^os eTvai aTrXcus Stxacov, alcTTre/) ot TivOayopuoi e(j>a<Tav. 
 
 ' Ritter, "Geschichte der pythagoreischen Philosophie," p. 88. 
 ^Erdmann, "Grundriss der Geschichte der Philosophie," I, p. 33. 
 
54 GREEK CIVILIZATION [Ch. II 
 
 to say "even numbers." Moreover "apiOfjLosla-a.Ki'sia-oi" 
 does not mean "multiplied by itself" (or a square num- 
 ber), but literally means "equally equal," or, more freely 
 and clearly translated, "an equal multiple of itself." But 
 equal multiples of themselves are all numbers whose 
 factors are all the same and are present an equal num- 
 ber of times with the digit itself; or simply, the powers 
 of a number equal to the number. Thus the second 
 power of two, 2X 2=4; the third power of three, 3X3 
 X 3 = 27 ; the fourth power of four, 4X4X4X4= 256, 
 etc. 
 
 As noted, justice is not to be symbolized by a series 
 of numbers but by a specific number; accordingly but 
 one of the series is to be selected as its symbol, and this 
 may well be the number four. In the first place the 
 Pythagorean philosophy of numbers is confined chiefly 
 to the digits, 1 to 10. And the number 10 itself, "deka," 
 is derived from "four" in that 10= 1-}- 2-f 3+ 4. Again 
 "four" answers to the definition, an "equal multiple 
 of itself," ' that is, the power whose exponent (2) is 
 the same as its base (2). The "apid/j-oi ia-a.KK to-os" is thus 
 presumably four, that is, not any square number, but 
 specifically the square of 2. 
 
 In the Pythagorean philosophy retribution indicates 
 the spirit of justice and is not restricted to punishment.^ 
 The word is not used in the sense ordinarily conveyed 
 
 1 Passow, "Handworterbuch der griechischen Sprache,'' Vol. I, 
 Part 2. This view of mine is not new but its establishment may be 
 so. L. V. Schroder, in "Pythagoras und die Inder," actually observes, 
 but without proof (p. 80) : "Four is the symbol of justice"; (p.81): 
 "They (the Pythagoreans) said that justice consisted in the equally 
 equal or the square number, because it returns like for like, and 
 they designated four, being the first square number, or nine, as 
 the first uneven square number, justice." 
 
 ' See the admirable exposition in Hildenbrand, "Geschichte," 
 etc., p. 56. 
 
§ 13] GREEKS BEFORE PLATO 55 
 
 in penology, but means the fixing of an equivalent repara- 
 tion. ^ This conception, however, bears upon an impor- 
 tant view of justice, or the concept of right, which 
 reappears repeatedly in the historical survey of the phil- 
 osophy of law. In addition the Pythagorean school is 
 notable for the formulation of a practical ethical reg- 
 ulation of life, and along with Aristotle,^ for its 
 advancement of ethical principles. 
 
 4 : The Philosophy of Heraclitus. The Pythagorean 
 position would favor an objective basis of justice in so 
 far as an objectively expressed justice would imply its 
 objective establishment, and thus its independence of 
 human convention. On the other hand a philosophy 
 that sceptically questions the reality of the world itself 
 would, if consistent, deny the objective basis of justice. 
 In thisrespectthephilosophyof Heraclitus,^ the Obscure 
 (about 535-475 B.C.), is not consistent. His philosoph- 
 ical position is indicated in the formula, -irdrra pet. 
 
 According to him nothing is real ; there is only a becom- 
 ing and a decaying; nothing is abiding and real except 
 change itself. Thus mutability is made real, while the 
 reality of the world is denied. 
 
 In a sense the philosophical position of Heraclitus 
 reappears in the dominant trend of later nineteenth 
 century thought. For the philosophy of evolution, ex- 
 pressed idealistically by Schelling and Hegel,* and real- 
 
 ' See Berolzheimer, "Die Entgeltung im Strafrechte," Munich 
 1903, pp. 14-16, 30-39, 86, 129, 131-133, 135, 141 seq., 153-158, 
 167 seq., 177 seq., 191 seq., 203-205, 261, 318 seq., 433, 440, 446 
 seq., 449, 454, 458 seq., 472, 478^80, 488 seq., 491, 508-518. 
 
 2 "Magna Moralia," I, 1. 
 
 ' On Heraclitus consult Lassalle, "Die Philosophie Herakleitos 
 des Dunklen von Ephesos,'' 2 vols., Berlin 1858. Hildenbrand, 
 "Geschichte," etc., I, pp. 62-66. 
 
 * See below, §§ 34, 35, 48 (Kohler). The Hegelian Lassalle places 
 the following citation from Hegel as the motto of his work upon 
 
56 GREEK CIVILIZATION [Ch. II 
 
 istically by Spencer and Darwin/ is founded upon a 
 denial of fixed points of arrest in the natural world. If 
 carried to its logical conclusion — and this applies to 
 the philosophy of law — this position becomes pure 
 nihilism (negation) .^ There are no fixed points of arrest, 
 but only constant and endless evolutionary series; not 
 a being but only a becoming. Either the evolutionary 
 position remains consistent and puts an end to philoso- 
 phy, or abandons consistency at one point or another, and 
 in that case denies its own validity. Heraclitus chooses 
 the second course. He accepts an eternal order pro- 
 tected by the Erinyes against the aggressiveness of 
 the individual. Between the individual and the universal 
 there obtains a harmony by virtue of which the individ- 
 ual derives his vitality from the universal; and con- 
 versely, by what he yields, strengthens the organic force 
 of the whole. Yet this sound and vitalizing thought is 
 quite positivistic in trend, and is opposed to the doc- 
 trine of flux, "iTOLVTa ptt"; impiety, "vftpK," is the vio- 
 lation of this established harmony through the aggres- 
 sive attitude of the individual, and thus becomes the 
 supreme offense ethically as well as legally.' 
 
 5 : The Sophists.* As affecting the philosophy of law, 
 subjectivism reaches emphatic and explicit develop- 
 
 Heraclitus: "In Heraclitus the philosophical idea first appears 
 in its speculative form. . . . Here we are upon safe ground; there 
 is no proposition of Heraclitus that I have not incorporated into my 
 logic." 
 
 'See below, §§41, 51. 
 
 ' "Physically, logically, and ethically, being has lost its value 
 for Heraclitus." Lassalle, "Die Philosophie," etc.. Vol. II, pp. 437 
 seq. 
 
 'Lassalle, "Die Philosophie," etc., Vol.11 (pp. 427 seq.), pp. 445 
 seq. Hildenbrand, "Geschichte," etc., p. 63. 
 
 * Consult Ptoo'i "Protagoras," and Plato's "Gorgias." Hilden- 
 brand, "Geschichte," etc., I, pp. 66-80. 
 
§13] GREEKS BEFORE PLATO 57 
 
 ment in the Sophists. They were the exponents of the 
 intellectualism of their day. Sophistry is but the reflex 
 of the spirit of transition. The belief in and reverence 
 for the gods, as of the customs based thereupon, were 
 disappearing, while the newer philosophic positions had 
 not yet matured. Such transitional periods commonly 
 present the marks of a dissolution; they reveal a lack 
 of fundamental and reliable principles to support the 
 spiritual outlook; all objective standards seem to be 
 questioned. This is philosophically formulated in the 
 fundamental position of Protagoras (481P-411 B.C.) 
 that "man is the measure of all things."^ The practical 
 man loses all objective ethical criteria to guide his con- 
 duct. The individual posits his own personality as a 
 final purpose, and his personal advantage as the goal 
 of endeavor. Each may do as he pleases; might alone 
 prescribes limitations and makes right. The right of the 
 stronger prevails. There is no objective justice, but 
 right is determined arbitrarily by human enactment.^ 
 
 6 : The Socratic Philosophy. The extreme subject- 
 ivism of Sophistry had replaced objective principles by 
 an eclecticism ; and through such lack of positive stand- 
 ards the incentive to the practical appreciation of ethi- 
 cal factors was wanting. Socrates (469-399 B.C.) 
 found philosophy and ethics in a condition at once 
 chaotic and complacent; in this period of decline he 
 appeared as the great teacher. By his life and teachings 
 he pointed out a new guide for conduct, and established 
 
 ' Plato, "Theaetetos," p. 152. "^rp). yap iron, irdvTtov ■)(priix.a.T(ov 
 /iirpov avOpta-irov etvai, tS)v jxiv ovrtuv As Ictti, tSiv SI fJirj ovtwv d)S 
 ovK t(TTiv." "Diog. Lae'rt.," IX, 51. 
 
 ^ Aristotle, Sophist, elench. 12. Callicles in Plato, "Gorgias," 482. 
 Polus in Plato, "Gorgias,'' 470. Thrasymachus in Plato, "De 
 Republica," I, 338. Plato, "Gorgias," pp. 482 seq. "Thestetos," 
 p. 167. "De legib.," X, 889. 
 
58 GREEK CIVILIZATION [Ch. II 
 
 a path of virtue for the masses. He was the exponent 
 of popular education, or, as we have altered but not im- 
 proved the phrase, of social pedagogics. This aspect 
 of the Socratic attitude must be clearly recognized, for 
 it holds the key to his method as well as to his general 
 philosophy. It accounts for the seemingly strange prin- 
 ciple of his practical philosophy that '"virtue is 
 teachable." 1 
 
 The same supreme value which the founders of religions 
 placed upon faith, this philosophic reformer placed 
 upon wisdom, and for a like reason: that it may become 
 the source and support of life. The doctrine that virtue 
 may be taught is not to be interpreted as an abstract 
 theorem, but as a practical postulate; man must learn 
 virtue, and it may be learned because it is teachable. 
 The philosopher makes his appeal to the understanding 
 and to insight, while the founder of a religion appeals 
 to the emotions and to faith. When the ethical command- 
 ments of the ancient gods had been destroyed, Socrates 
 proclaimed new ones, but the people had first to be 
 taught to read the new message. He therefore preached 
 to them upon the text: "Learn the virtue which we 
 teach you." He replaced passive resignation by active 
 endeavor, and substituted a consistent system for the 
 confusion of the teachings of the Sophists. According 
 to Socrates, virtue is not determined by the subjectivism 
 of the individual. It is true that the ethical basis re- 
 mains subjective in form, but the subjective consensus 
 of the community replaces individual judgment. 
 
 ' Xenophon, "Memorabilia," III, 9, 4: "'E<^j; 8e koI rrjv 8iKaio- 
 (Tvirqv KoX TTjV aXXr/v Trdcrav aperr/v crocj>iav eivai. Aristotle: "Eth. 
 Nicom.," VI, 13: "SaiKparr^s /icv ovv Aoyovs, ras dperas ucto 
 ttvai, cirto-Tij/xas yap eivac Tracras." "Magna Moralia,'' I, 1, 
 " {'SiiOKpa.Tijs) Toi dpcTcts ema-TT^iMK iTrouu." Aristotle, "Eth. 
 Nicom.," Ill, 11; VII, 3. 
 
§ 13] GREEKS BEFORE PLATO 59 
 
 Socrates could find no available conception of virtue. 
 The religious positions had failed, and the teachings of 
 the Sophists had yielded no positive construction. So 
 he proceeded to establish virtue with reference to a nor- 
 mal type, the nature of which he derived empirically. 
 He followed the same procedure in ethics which the 
 Romans pursued in the philosophy of law. They assumed 
 a normal man, who became the "bonus" (or "diligens") 
 "paterfamilias," the Roman citizen performing his civic 
 duties. Socrates set up the ethically normal man as an 
 exemplar; and such he found in the Greek citizen. Soc- 
 rates could not reach an absolute determination and 
 definition of the good. Its basis, as among the Sophists, 
 remained subjective, but in place of the arbitrary sub- 
 jectivity of the individual, there appears the quasi-ob- 
 jective judgment of all good citizens, exemplified in the 
 type of the virtuous citizen. Self-knowledge becomes 
 the most important instrument of personal education. 
 By comparing his own character with that of the normal, 
 the individual is to find the incentive to overcome his 
 faults and shortcomings. The laws of the State deter- 
 mine right action and represent what is right. The un- 
 written and universal divine decrees determine morality 
 and lie beyond the sphere of law. He is just who obeys 
 the laws of the State; the virtue of justice is a matter 
 of wisdom — as is all virtue — and thus presupposes 
 a knowledge of the reason for obedience to the laws of 
 the State. Such obedience is not to be taken for granted, 
 but is the result of reflection. The prerequisite of all 
 government is self-government; the end of government 
 is the welfare of the citizens; and the best government 
 is that by laws.' 
 
 1 Xenophon, "Memorabilia," II, 1; IV, 4, 5 seq.; 12: "^iqiA yap 
 iylo TO vo/uvov 8iKaiov elvai," IV, 15; IV, 14; III, 9, 5; II, 1, 1 
 seq.; Ill, 2, 1 seq.; IV, 6, 12. 
 
60 GREEK CIVILIZATION [Ch. II 
 
 § 14. Plato. 1: The Platonic Conception OF Virtue 
 AND Justice. The influence of Socrates persisted after 
 his death; through Plato (429-348 B. C), pre-eminent 
 among his pupils, his doctrines became the common 
 possession of the intellectual world. In the philosophy 
 of Plato, Greek thought reached its culmination. He 
 stands as the aristocrat among the philosophers of ancient 
 days, an elect spirit of surpassing greatness. In his 
 works Greek civilization finds its purest philosophical 
 expression. The center of Greek culture was man, yet 
 not man unqualified, but the noble man — man aesthet- 
 ically considered. The notable unity of Greek culture 
 appears in the selection of its noblest exemplar as the 
 central subject of art, of philosophy, and of practical 
 life. To the Greeks the subject of art was not man lit- 
 erally and realistically represented, with spot and blem- 
 ish, disfigured by wrinkles and lines, worn by the cares 
 and trials of life, but man aesthetically idealized — • an 
 abstraction of his realistic counterpart, man in the form 
 he might assume were he to lead a godlike existence. 
 Similarly, philosophy considered the ideal ty^Q of a 
 moral man, not the average man, imperfect and 
 tainted, bearing the marks of a restless struggle for 
 existence and of a life of constant toil. Morality 
 in the Greek view of life became equivalent to 
 nobility of disposition. 
 
 Unless this attitude be clearly grasped, it is impossible 
 to enter into the spirit of Platonism, or sympathetically 
 to understand and reproduce its deeper content, how- 
 ever readily one may construe and repeat the statements 
 of Plato's ethics or of his social philosophy. It would 
 have been wholly impossible for Plato to conceive of a 
 social philosophy devoted to the welfare of the artisan 
 class as its central interest. Any such treatment would 
 have impressed him as belonging to the crude unculti- 
 
§ 14] PLATO 61 
 
 vated phases of human hfe, which only the modern 
 drama has accepted as worthy of presentation. 
 
 To the elect of the ancient Greeks the central interest 
 of their culture was the noble man. The entire Platonic 
 ethics and the social and legal philosophy derived there- 
 from grew around this conception. The noble man was 
 likewise the moral man. Morality is the active virtue 
 of a refined character. Therefore the cardinal virtue 
 is a-oKJipoavvr]," which is not to be interpreted as a 
 plebeian sort of prudence, but as the aristocratic 
 virtue of a poised self-sufhciency. It comprises all vir- 
 tues, moderation in all things — the "aequa mens" of 
 Horace,^ including, as the prime virtue, justice. But 
 virtue is not a natural inheritance; it must be acquired 
 through moral education, training of character, and 
 strengthening of the will. Education in virtue is accom- 
 plished primarily through the State; hence the close 
 association of ethics and social philosophy, and hence 
 the characteristic Greek view of the effacement of the 
 individual in the interests of the State. 
 
 From these positions there follows the distinctive 
 Platonic conception of the relation between virtue and 
 justice, and between ethics and law. The foundation 
 of the practical life is virtue or morality, and the basis of 
 philosophical principles is an ethical one. The vir- 
 tuous man is equally the just man. Justice becomes 
 significant as a derivative of virtue. Legal and social 
 philosophy is likewise based upon ethics, of which, in 
 turn, the philosophy of law is a subdivision. 
 
 The origin and development of Plato's ethics disclose 
 its social limitations. It cannot become universal and 
 
 ' In the conception of Augustine: "Ilia (scil. virtus), qu£e Graece 
 (Tuxjipoavvri Latine temperantia nominatur, quS carnales frenantur 
 libidines, ne in quseque flagitia mentem consentientem trahant." 
 Augustine, "De civitate Dei," lib. XIX, c. 4. 
 
62 GREEK CIVILIZATION [Ch. II 
 
 embrace all mankind, as does the ethics of Christianity; 
 for the practice of Platonic virtue is the moral code of 
 the noble man, and thus presupposes a certain measure 
 of personal and economic independence. It is a prerog- 
 ative of the Greek citizen, of the nobility of the Greek 
 State; hence the contempt for manual labor, for accord- 
 ing to the Greek view, common labor does not ennoble 
 but alienates man from ethical ideals and diminishes his 
 capacity to aspire to virtue. Plato approved of slavery 
 unreservedly, finding it a necessary condition for the 
 maintenance of the proper status of the citizen. The 
 presence of an efficient slave class was necessary to the 
 economic welfare of the State, and to the relesise of the 
 citizen from manual and menial service. Thus in 
 the maritime and industrial states there was a large 
 slave class; in Corinth, 460,000; in Aegina, 470,000; in 
 Attica (according to the census of 309 B.C.) 400,000.' It 
 was thus made possible for the many prosperous citizens 
 to devote themselves unrestrictedly to art, science, and 
 culture. 
 
 The obligation of the individual to fulfill his highest 
 duty — the practice of virtue — cannot adequately be 
 met in and through the State alone. The State must 
 indeed retire to give play to the free spontaneous activ- 
 ities of its citizens; these do not grow out of the laws 
 enacted by the State, which secure the enforcement of 
 rights and the preservation of liberty. In contrast to 
 governmental regulation, the ideal of independent and 
 spontaneous development of the members of the com- 
 monwealth gains in significance; through this ideal 
 there was eventually established a conception of 
 society destined to overshadow the importance of the 
 State itself. 
 
 ^Gilbert, "Handbuch der griechischen Staatsaltertiimer," I, pp. 
 163, 287-292. 
 
§ 14] PLATO 63 
 
 2: Plato's General Philosophy. From the considera- 
 tion of Plato's ethics and philosophy of law in their 
 relation to Greek culture, we may turn to the correla- 
 tion of his ethics with his general philosophy. His ethics 
 stand in close connection with his theory of knowledge. 
 According to Plato * the real world, the absolute, the 
 Kantian "thing in itself," is not the world as it appears 
 to our perceptions. The true essence of things consists 
 in ideas to be apprehended only directly through their 
 phenomenal reflection. Ideas alone are real, eternal, 
 and true. Man himself is real only in so far as he be- 
 comes the embodiment of the idea. The evolution of 
 mortal man from his earthly condition to a higher plane 
 of existence is graphically and pointedly portrayed in 
 the following passage from Rohde,^ who describes it as 
 "a cleansing, by which the soul frees ' itself from the 
 distortion attaching to its earthly life, and restores the 
 divine in man in its true light. Such purification makes 
 the true philosopher immortal and divine while yet on 
 earth ; * in so far as he is able to move in the realm of 
 rational knowledge and the understanding of the eternal, 
 he shares in the life of the 'isles of the blessed.'^ By 
 laying aside all that is transient and mortal, he may 
 
 ' Consult Vol. I of Berolzheimer , "System der Rechtswissenschaf t, " 
 etc., pp. 8-10. 
 
 ^ "Psyche," second edition, Vol. II, pp. 285 seq. 
 
 2 "Aijetv T^v ^vyyjv," of the body and of sensory perception: 
 "Phffido," 83 A/B; 65 A; 67 D, "kvirii koli KaOapixos," of the soul 
 through "i^iXocroijiia" ; "Phaedo," 82 D; "\v(tis koL laani rStv Setr/Aoiv,' 
 of the body, "koi ttjs a<j>pocrvvr]'S." "Rep.," 7, 515 C. 
 
 * "©eios £ts TO &vvaTov avOpwtrw yiyveTat," the true philosopher; 
 "Rep.," 6, 500 D. "aJdavaTos"; "Symp.," 212 A. 
 
 ^ "Rep.," 6, 619 C; 540 B: "T^s tov ovtos Oca's, oiav yjhovrjv ex", 
 c&vvaTov oXXai." "Rep.," 9,582 C (compare "Phileb."): "ytyaicTQai 
 irXrjv Tw <^tAocro<^<i)." 
 
64 GREEK CIVILIZATION ICh. II 
 
 become more and more 'like unto the gods' ; ^ and upon 
 the final release of his soul from earthly confines, he 
 may more and more closely attain to the divine, the 
 unseen, the pure, to the condition of an immortal, incor- 
 poreal soul, forever to dwell with others of his kind. 
 But language, limited to the world of sense, becomes 
 helpless to express this state.* A spiritual goal is thus 
 indicated that lies out of relation to sense, or space, or 
 time, in an eternal present, without past or future."^ 
 
 3: Practical Justice and Social Virtue. Inthederiva- 
 tion of the idea and practice of theoretical justice, Plato 
 shows his dependence upon Socrates. Alcibiades, in the 
 dialogue bearing his name, recognizes popular convic- 
 tion, the collective sense of right, as the source of jus- 
 tice;* Anytos, in the dialogue "Meno," regards it as 
 set by tradition;^ Protagoras, in the dialogue "Pro- 
 tagoras," views it as a gift of Zeus conferred upon all 
 citizens ; ^ but Socrates is represented as holding that 
 only the mediation of philosophy and the resulting 
 knowledge can illuminate the nature of justice. Upon 
 this is based the strange opinion of Plato that the phil- 
 osopher should govern the State,' as though theoretical 
 insight and practical ability were always combined. 
 
 Plato was not content to establish the principles of 
 justice theoretically, but outlined their practical realiza- 
 tion in the constitution of a just State. He stood for 
 
 1 The flight, "ivOevSe. eKeio-e," induces " oft-oiaxriv de<5 Kara to 
 Swarov." "Theaetet.," 176 B: "o/xoiovcrdaL 6tiS." "Rep.," 10, 613 
 A ("to) KaTavooVjU,e'v(u To Karawovv i^o/jLoiSicrai." "Tim.," 90 D). 
 
 2 "Oil paBiov Sr/XScrat. " "Pheed.," 114 C. 
 
 ' The "diStos ovcrui, to cctti /xovov Kara tov oXtjOtj Xoyov 
 rrpoa-fjKU." "Tim.," 37 E. 
 * "Alcibiades," I 110 D. 
 
 5 "Meno," 81 A. 
 
 6 "Protagoras," 320. 
 
 ' "Euthydemos," 291 A; "De Republ.," V, 473. 
 
§ 14] PLATO 65 
 
 the true Greek culture as opposed to the decadent ten- 
 dencies of his day. He repudiated the political doctrine 
 of the Sophists that "might makes right," and recog- 
 nized the need of order and reasonable regulation.^ He 
 considered lawlessness the greatest of evils; that the 
 just man respects right and law;^ that only by recog- 
 nizing the dominion of law does man rise above the con- 
 dition of the animal creation and reach a state of culture.' 
 He held that the source of law lies in God and nature, 
 and its essence is reason, and that the same is true of 
 justice. Owing to the more complex formal relations 
 involved, justice is more readily conceived in terms of 
 the community than of the individual.* As the just 
 service of the individual, "SiKaLocrvvrj avSpos," consists in 
 having each spiritual factor perform its function, so the 
 just service of the State, "SiKOLocrvvri iro'Xeus," requires 
 that each class performs its proper work. As the 
 Romans enunciated the "suum cuique tribuere," the 
 rendering to each of his own, as a principle of jus- 
 tice, so Plato upon an ethical basis formulated a parallel 
 duty of just conduct: "TaavTovirpaTTav," every man must 
 do his part. "Sw^poo-uvi;," wisdom of action, which is the 
 leading principle of virtue, becomes as well the criterion 
 of justice as a social virtue.' 
 
 4: The Ideal and the Real State. Plato set forth 
 two conceptions of the State: the one as a legal institu- 
 tion, and the other as an ideal. The ideal State is a 
 beautiful dream of the golden age which might be real- 
 ized were the gods to descend to earth. It represents 
 
 1 "De Republica," I, 351. 
 " "Gorgias," 470 seq., 477 seq., 504 seq. 
 ' "De Legibus," IV, 716; IX, 874; X, 889. 
 <"De Republ.," II, 368; "De Leg.," Ill, 689 B, 702 A; VIII, 
 828 D; IV, 427 C seq., 433 D. 
 « "De Leg.," Ill, 696 D, E. 
 
66 GREEK CIVILIZATION (Ch. II 
 
 the imaginative ideals of Plato the poet, and not the 
 real conditions to be considered by the constructive 
 philosopher. The State as legally constituted is also 
 an ideal, but an attainable one, and develops in response 
 to political needs. The State as an institution of social 
 betterment must strengthen and revitalize the cultural 
 ideals of the people. 
 
 5: The Influence of Plato. Plato's ethics and social 
 philosophy brought the divine torch of enlightenment 
 to mankind. Released from the bondage of the old 
 religion, every man was to find the norm for the develop- 
 ment of his character and conduct in himself. As the 
 embodiment of the idea, as an emanation of the infinite 
 through his own will and conduct, man, despite his frailty, 
 may transcend his inferior self. In so far as he accepts 
 the guidance of "crw^pocnjvri," moderation, "aequa mens," 
 he remains self-possessed, restrains his too eager im- 
 pulses, his hasty resolves, and becomes the embodiment 
 of the man of justice performing his duty and fulfilling 
 his destiny. These two principles of Platonic ethics — 
 "cr(o<l>poa-vvrj," as the regulating, restraining, negating 
 principle, and "raavTov ■TrpdrTav," the active fulfillment 
 of one's duty as the positive tenet — made possible 
 an ethics free from a theological bias; and classical 
 ethics, no less than classical art, became the model 
 and exemplar for remote generations. 
 
 In contrast to the religious trend of the older civiliza- 
 tions (such as the Egyptian, the Jewish, and the early 
 Greek), Plato's ethics was thoroughly humanitarian. 
 The precepts of a religion addressed to its votaries alone 
 was transformed into a philosophic appeal to all educated 
 men. But even the genius of Plato could not transcend 
 human limitations. In the restriction of ethical ideals 
 to the privileged citizen, and again in the complete sub- 
 jugation of the individual to the State, he shows that 
 
§ 15] ARISTOTLE 67 
 
 he is the product of his age. Christianity was the first 
 to recognize and proclaim the universality of ethical 
 law; and it remained for the more advanced position 
 of later days to establish the freedom of the individual 
 within the State. 
 
 § 15. Aristotle. 1: The Basis of Ethical Conduct. 
 Aristotle (384-320 B.C.) transferred Plato's social and 
 political teachings from the Utopia of the poet's imagina- 
 tion to the prosaic world of daily life. His development 
 of the Platonic philosophy was not always to its advan- 
 tage; but his presentations have the merit of clearness 
 and ready comprehensibility. The ethics of Aristotle — • 
 as presented in the "Nicomachean Ethics" and the 
 "Magna Moralia" — follows Socrates and Plato, the 
 modifications being more in form than in substance. 
 Aristotle agrees with them in making the ethical end 
 not one of extraneous utility, but an independent absolute 
 good in itself. But while Socrates and Plato propose 
 to educate man through instruction, Aristotle emphasizes 
 the direct influence of motives. He sets forth that every 
 human act is due to a purpose which finds a place 
 in a graded series. The highest or final purpose is the 
 rational perfection of man through the control of the 
 intellect over the senses. "^ The concomitant issue of 
 virtue is happiness, "Eudaimonia." The virtuous man 
 is happy, but he does not aspire to virtue for the sake 
 of happiness. Happiness is the correlative ^ of perfec- 
 
 ' In the view that all human action has a general purpose, the 
 Aristotelean ethics is psychologically faulty. It is not correct that 
 all human acts are undertaken as a means to an end. Some are 
 merely emotional or sentimental expressions, such as hate, love, 
 duty, with no reference to purpose ; and moral action is particularly 
 of this emotional and not purposeful order. See Berolzkeimer, 
 "Rechtsphilosophische Studien," Munich 1903, pp. 143-148. 
 
 'Lasson, "System," etc., p. 56. "*vx^s evepyeta Kar aptTrjv." 
 ("Eth. Nicom,," VII.) 
 
68 GREEK CIVILIZATION [Ch. II 
 
 tion.i Aristotle, in contrast to his predecessors, holds 
 that knowledge has but slight influence upon character, 
 which finds its determination in the will. The question 
 whether Aristotle's freedom of the will implied the mod- 
 ern meaning of indeterminism has until recently been 
 answered in the affirmative. In his valuable work on 
 Aristotle, Loening has shown that Aristotle regarded 
 the operation of the will as a definite psycho-mechani- 
 cal process; yet the motives of the will remain purely 
 psychic qualities. "Viewing man as a whole one may 
 say that he himself determines his will, that he is him- 
 self the cause of his will, but only in the sense in which 
 Aristotle looks upon man as the source of his own con- 
 duct and the cause of his acts." ^ In its nature the 
 will is ethically neutral; the ethical aspect appears 
 through the development of character. Every man has 
 the problem of transforming his natural character into 
 a moral one. Such training of the will is accomplished 
 through habit and through the co-operation of others. 
 The State supplies the external medium and trains men 
 to virtue. Thus Aristotle establishes the connection 
 between ethics and social philosophy. The State is an 
 institution for directing ethical aims towards the per- 
 fection of the individual while yet the individual remains 
 completely subservient to the State. 
 
 2: The Greek Aristocrat. In the Greek view the 
 efifacement of the individual in, and in behalf of the State, 
 is not an undesirable issue but a necessary and natural 
 relation. The State appears asan all-embracing organism, 
 
 1 "Eth. Nicom.," I. 
 
 ° R. Loening, "Geschichte der strafrechtlichen Zurechnungslehre," 
 I, pp. 311, 130 seq., 273-318. Loening supports his expositions by 
 numerous citations from the works of Aristotle. On this point, too, 
 John Stuart Mill judges in a similar manner to Aristotle. See below, 
 § 28, and note 18 in § 28. 
 
§16] ARISTOTLE 69 
 
 the members of which are individual men, quite as the 
 several human organs serve to compose the human or- 
 ganism. The presence of a social consciousness in the 
 minds of the people is divinely ordained and provided ; 
 the law of nature similarly pervades and conditions 
 philosophy. In the Aristotelean conception the State 
 exists theoretically prior to its components, just as the 
 whole exists prior to the parts. The State exists by 
 virtue of natural law, and by virtue of the same law man 
 is a social being, who can find his complete realization 
 only in and through the State.' This close association 
 of the individual with the State is explained by the fact 
 that in the ethical and social philosophy of the Greeks 
 the typical member of society is the citizen of the ruling 
 class. Moreover society was compact, and emphasized 
 the sense of solidarity, the community of origin and 
 environment, in a manner not possible in modern coun- 
 tries subject to heterogeneous cultural conditions 
 and a shifting population. To appreciate the strong 
 civic spirit of the ancient Greek citizen in his city-state, 
 one must have in mind the status of the select citizens 
 or aristocracy in more modern parallels; such as the 
 Hanseatic republics, or the free imperial cities of Frank- 
 furt, Nuremberg, etc., or the provincial sovereignty in 
 Switzerland. In these the citizens, inspired by an ardent 
 local loyalty, rule and conduct the government. There 
 is a strong solidarity and responsiveness between the 
 individual and the community, between the Republic 
 
 ' "Polit.," 1, 1,9: "'^v€pov oTi ^iJo-ei 17 ttoXis ivrl kol oti av^powros 
 <l>v(Tei TToXiTLKov ^S>ov." § 11: "Kai irpoTtpov 8^ t^vati TrdAts ^ 
 tKacTTOS ■^/j.Siv i(TTiv. To yap oXov irporepov avayKaiov elvai 
 Toil fxepovs. Avaipovp.€vm) yap tov oXov ovk Icrrot ttovs ovBi X"'P" 
 "De part, anim.," II, c. 1: "Ta yap, vcTTtpa T'g yevecrai irpore.pa 
 Trjv <})V(nv ifTTL Kal irputTOV to Trj yevecrei TeXtVToXttv. 
 
 Compare with this the pertinent exposition by JelUnek in "Allge- 
 meine Staatslehre,'' pp. 282 seq. 
 
70 GREEK CIVILIZATION [Ch. II 
 
 and the citizen. A similarly constituted civic environ- 
 ment developed the sentiments and views of Greek social 
 philosophy, as reflected in the expressions of their great 
 philosophers, Plato and Aristotle. The individual felt 
 himself so unhampered as a part of the whole, so inti- 
 mately of the community in fibre and tissue, that he 
 had no occcision or inducement to desire a moral or legal 
 detachment from the State or withdrawal from its liberal 
 rule. 
 
 In considering the origin of government, modern polit- 
 ical philosophy is fond of referring to the Aristotelean 
 dictum, "avSjowTTos ■TToXiTLKov t,a>ov," "man is a social being." 
 The "iToXiTiKov ^<oov" is commonly interpreted in the 
 sense of a social being whose nature leads him to a 
 socialized life ; but this is misleading. The Aristotelean 
 political economy is not applicable to large modern 
 countries but to compact city-states and the civic spirit 
 characteristic thereof. Moreover the 'VoXctikoV" of 
 Aristotle does not refer to the social nature of man, but 
 to that quality by virtue of which man reaches his full 
 cultural status only within the State. At best the asso- 
 ciation of "iroXiTiKov" and "^oiov" does not express a phil- 
 osophical principle, but a natural consequence; and 
 in turn not one applicable to all circumstances (including 
 the slaves), but only to the ruling class whose lives are 
 conditioned materially and intellectually by the State. 
 
 3 : Society and the State. Aristotle's views concern- 
 ing the constitution and administration of government 
 are derived from Greek conditions, and stand in contrast 
 with the modern treatment of legal problems in which 
 economic questions are uppermost. In ancient Greece 
 the political aspects prevailed. Its Republics were estab- 
 lished in a thoroughly aristocratic spirit; while modern 
 governments (monarchies included), are saturated with 
 democratic tendencies. The economic questions were 
 
S 15] ARISTOTLE 71 
 
 definitely settled for the educated Greek citizens by 
 the conservatism of society. They were convinced 
 that in every society there must be grades — masters 
 and servants, the privileged and the unprivileged, the 
 upper and the lower classes. The fully privileged citizen 
 alone participated in the exercise of government and 
 in all public functions. In the Greek view of life the 
 extreme emphasis of class distinctions, the profound 
 contempt for the class of artisans engaged in manual 
 labor, and the approval of slavery,^ are all due to the 
 imperfect development of ethical ideas, which in pre- 
 Christian times had not yet attained a general human- 
 itarian application. But these harsh and severe views 
 were due, for the most part, to the attitude and privi- 
 leged position of the Greek citizen. In other respects 
 Aristotle showed, as Plato had done before him, an 
 adequate economic judgment^ in his approval of private 
 ownership, in his recognition of class interests, in his 
 appreciation of the prosperous citizen as representing 
 the sinews of the State.' 
 
 The economic situation was secure, but on the politi- 
 cal side the Greek citizen was exposed to dangers. The 
 menace to the welfare of the Greek State was not the 
 problem of bread, but of political ambition — tyranny; 
 the prevention of tyranny was to Aristotle the chief 
 problem of statesmanship. 
 
 ' "Polit.," Ill, 1, 4: "MtT^xav Kpitrews Koi dpx^s," I, 13; III, 5; 
 IV. 11; I, chaps. 3-7. Also ffiWeMftrared, "Geschichte,"etc.,pp.395- 
 406; Wallon, "Histoire d'esclavage dans I'antiquite," pp. 371-393. 
 According to Aristotle slavery is just when it arises from so marked a 
 difference between master and slave that the former appears as the 
 regulating will and the latter as the material instrument; for then 
 it is justified by nature. 
 
 2 "Polit.," II, 2-7; IV, 11. 
 
 ' On Aristotle's position as reflecting Greek culture, see "Polit.," 
 I, 4, 7. 
 
72 GREEK CIVILIZATION [Ch. II 
 
 According to Aristotle there are three legitimate con- 
 stitutional forms of government suitable to varying con- 
 ditions: Monarchy, Aristocracy, and Polity; and three 
 tyrannical kinds of government: Tyranny, Oligarchy, 
 and Democracy.! -pijg equitable government is that 
 according to laws which limit the power of the governing; 
 for the State is founded upon justice, and justice is its 
 essence. Only on the basis of justice does the State ful- 
 fill its noble purpose, its ethical mission of fostering the 
 perfection of its citizens.^ The State must be founded 
 upon right and not upon arbitrary power ; law must pre- 
 vail and the ruler but supplement the law wherever the 
 latter fails to provide. By such measures the moral 
 purpose of the State is attained: "to ^tjv evSaLfiovtas Kal KoXois," 
 "a happy and beautiful life."' 
 
 4: Justice and Equity. Plato is the acknowledged 
 master exponent of ethical principles; the leadership 
 of Aristotle appears in his immortal masterpiece — the 
 treatise on Justice. The Aristotelean principle that 
 justice is equality is reached through the conception of 
 virtue. As all virtue consists in moderation, so justice 
 consists in the avoidance of too much or too little; the 
 just is the equal. The equality of justice is partly an 
 absolute direct equality, partly a relative equality. 
 Absolute equality is expressed in the adjustments of pri- 
 vate law as fairness, equity — a justice that compensates, 
 offsets, or equalizes, "SiKatov Siopdu)T ikov." Relative 
 equality appears in a distributive justice, in the distri- 
 bution of goods, "SUaioy SiavtfjirjTiKov," according to the 
 principle of relative standards; in the retribution which 
 
 » "Polit.," Ill, 6, 9; IV, 4, 8, 11. "Eth. Nicom.," VIII, 12. 
 2"Polit.," Ill, 17; V, 5-10; I, 2; I, 1 seq.; 111,9,10; VII, 8. 
 Also"Eth. Nicom.," Ill, 1,7; 11,2; X, 10. 
 ' ' According to "Polit.," Ill, 5, 13, the State is "^ ''"^ *" iv" kolvid. 
 
 VM." 
 
§151 ARISTOTLE 73 
 
 the offender must make for his crime, as determined, 
 not by an absolute standard of equality (thus opposing 
 the principle of literal retaliation), but by the degree of 
 guilt. The formula of absolute justice reads : — To every 
 man let there be accorded the same; that of relative 
 justice; to those on a par, let there be a parity of treat- 
 ment, but for those unlike in circumstance there shall 
 be unlike treatment, according to merit and service, 
 according to worth or guilt. 
 
 Where formal justice would work material injustice, 
 it must be supplemented by equity. The equitable is 
 "eTTtetKcs," the just, which deviates from mere legality 
 by becoming a corrective thereof through the media- 
 tion of standards resulting from the conception of 
 justice. For while justice is of natural origin, law is 
 due to enactment; it is changeable, and if defective, 
 may be improved. Legal prescription, "vo/juvov," and 
 material justice, as alike issues of ethical precepts, should 
 indeed coincide; but in reality, in any actual and 
 imperfect legislation, they are likely to diverge. Where 
 the provisions of the law, which must be general and 
 adjusted to ordinary circumstances, "to ws ewt to ttXcW," 
 would result in an injustice, owing to the special circum- 
 stances of a particular case, the law is to be supplemented 
 by equity, " iiravopOoi/ja." ^ 
 
 5: The Origin of Civic Life. Less distinctive are 
 Aristotle's views of the evolution of the State and law; 
 in them he substantially followed the Greek conception 
 that life in cities was preceded by that of the village 
 community. He derived the city or "'polis" from a col- 
 lection of villages, 'Volfu;," ^ which in turn grew out 
 of the individual house, "oIkio." or homestead. The 
 
 1 "Eth. Nicora.," V, 2, 10; 14; 1-3, 5, 9, 13. "Rhetor.," I, 10; 
 13. 15. 
 •"Pol.," I, 1. Leist, "Altarisches jus gentium," pp. 24-31. 
 
74 GREEK CIVILIZATION [Ch. II 
 
 salient point in this development, however, he over 
 looked ; for while the formation and extension of human 
 groups is explained by the socializing spirit, the latter 
 does not account for the origin of the State, or of com- 
 munal right and government. According to Aristotle, 
 law, like the State itself, is a product of the rational 
 nature of man.^ In this he likewise followed the Greek 
 view which made human nature the central interest in 
 art, as well as in philosophy. Human nature, quite 
 too commonly held responsible for all sorts of qualities 
 and conditions, can at best account for the social nature 
 of customs, but hardly for the existence of the State 
 and the evolution of law.^ 
 
 §16. The Post-Aristotelean Period. 1: The Cynics. 
 After Aristotle there ensued a period of decline in social 
 and legal philosophy. Beginning with Antisthenes 
 (b. 444 B. C.) a disciple of Gorgias, later a disciple and 
 friend of Socrates, the Cynics make the virtue of the 
 wise consist in the freedom from needs. They advocate 
 a return to nature ; they repudiate the results of civiliza- 
 tion, such as government, marriage, property. In this 
 reactionary attitude they anticipate the position of 
 Rousseau or Tolstoi. Their merit lies in fostering the 
 spiritual development of the less fortunate classes, who, 
 in these views, found a philosophical consolation for 
 their fate. 
 
 ' "Eth. Nicom.," VIII, III, 15,16; V, 10; X, 10, "Pol.," I, III, 6- 
 This view of Aristotle became decisive for the philosophy of law and 
 has been reinstated, though in my view falsely, particularly in modern 
 times since the days of Grotius. See Berolzheimer, "Rechtsphiloso- 
 phische Studien," pp. 149-151. 
 
 ^ See Stammler, "Wirtschaft und Recht,'' p. 535; also Berolz- 
 heimer, "Rechtsphil.,"' etc., pp. 150-152. Even if the Aristotelean 
 explanation were correct, it would be merely causal and not philo- 
 sophical. The origin of a phenomenon does not of itself provide its 
 meaning and justification. 
 
§ 15] POST-ARISTOTELEAN PERIOD 75 
 
 2: The Cyrenaics. Prominent among the Cyrenaics 
 is Aristippus (b. about 435 B.C.), who followed the 
 teachings of the Sophists in favoring a hedonistic basis 
 for conduct, and in holding that justice is the result not 
 of nature but of enactment. ^ Another Cyrenaic, Theo- 
 DORUS, carried this view to the extreme. He held that 
 circumstances might justify the wise man in disregarding 
 artificial statutes, and in committing theft, adultery, 
 or sacrilege.^ 
 
 3 : The Stoics. The Stoic school (founded by Zeno 
 about 310 B.C.) was an outgrowth of the Cynic school, 
 and had an important influence upon the Roman philoso- 
 phy of law. The Stoic ethics proclaims the principle of 
 natural living — of a life in harmony with the rational 
 laws of nature. Such a life is in accord with reason and 
 thereby with virtue. The Stoic sage is characterized by 
 "aTapaiia," a condition beyond the influence of fear 
 and hope. He is the embodiment of "an individual- 
 istic self-sufficiency,"^ standing for himself and by him- 
 self; he holds himself aloof from desire and action. If 
 consistently applied, the Stoic principle would result in 
 the paralysis and stagnation of economic life. The mon- 
 istic position of the Stoics — meaning by this term their 
 conception of the unity of law and natural reason — 
 culminated in the social conception of cosmopolitanism. 
 The Stoic ideal is a universal State. In its analysis of 
 justice the Stoic philosophy holds that it is based not 
 upon enactment but upon nature. The older formula- 
 tion of the contrast of "<^vo-a BUaiov" and "vo/xw BiKaiov" 
 is modified by the Stoics, for whom "vo/nos" is equiva- 
 lent to the rational law of the natural world, and who 
 
 1 "Diog. Laert.," II, 93: "Mr/SeV re eivat <f>va-€i. Sucaiov 17 koXov fj 
 al(r)(p6v dAAa vofjLw Kal tdei." 
 
 2 "Diog. Laert.," II, 99. 
 
 ' Hildenbrand, "Geschichte," etc.. p. 507. 
 
76 GREEK CIVILIZATION [Ch. II 
 
 thus contrast "^vuei StWiov" with "Oicra BiKaiov." ^ The 
 "(ftva-ti ScKoiov" of the Stoics is not a principle of constituted 
 law, but natural law as applied to life in its legal aspects. 
 
 4: The Epicureans. Epicurus (341-270 B.C.) taught 
 the doctrine of the State contract. While Aristotle 
 regarded men as members of an inclusive group, and 
 derived the State from the affiliation of the several 
 groups, Epicurus held that all men were originally 
 individualistic and independent. The community thus 
 arose not by a process of nature but by enactment, by 
 voluntary association and contract. The purposes 
 sought in such association, particularly the need of pro- 
 tection, formed the motive force inducing individuals 
 to combine. Government and law were comprehensive 
 contracts in the interest of security. Utility was the 
 principle of human conduct, and happiness was its goal. 
 Law became inefficient as soon as it no longer worked 
 to advantage.^ 
 
 This simple doctrine seems to illustrate the tendency 
 for periods of philosophical decline to favor systems 
 based upon an individual or social utilitarianism: wit- 
 ness Hobbes, Bentham, Ihering. The exponents of 
 such viewF overlook the inconsistency of their psy- 
 chology w'tl history. Historically it is not the case that 
 men federatec by contract: and psychologically, man 
 is not a coldly calculating machine regulated by utility, 
 but an emotionally responsive being. Utilitarianism 
 fails to account for government or law, not alone by 
 reason of the many residual phenomena that refuse 
 
 ' "Plutarch de Stoicorum repugnantibus" (Ilept %t<iiiku>v ivavrioi. 
 
 [JLaTOlv) . 
 
 9. "Diog. Laert.'' VII, 128; "to BUaiov tjma-L <f>va-€i etvai kol ju,^ 
 Oea-ei." 
 
 2 "Diog. Laert.," X, 150. Compare with this "Diog. Laert.," X, 
 118; "Epicurus," Kvpiai So'^et, 31-33; "Cicero de finibus," 1, 13, 16. 
 
§ 15] POST-ARISTOTELEAN PERIOD 77 
 
 to tally with this view, but because of the inherent diffi- 
 culty of reaching an acceptable definition of utility.^ 
 
 5: The Sceptics. The Sceptics fell back upon the 
 fallacies of the Sophists; their position was that of a 
 rational resignation. They denied the existence of an 
 inherent justice and based their denial mainly upon 
 the evidence of the conflicting conceptions of law in 
 different times and lands. From this they inferred the 
 impossibility of a universal basis of right action.^ Timon 
 (about 325-about 235 B.C.) maintained that in reality 
 there is neither justice nor injustice and that men 
 judge merely according to custom and tradition, "vofua 
 Sk Kol Wei." Carneades (214-129 B.C.) reasserted the 
 doctrine that right is the expression of the power of 
 the stronger. To deal justly is in his view to sacri- 
 fice personal advantage to an imaginary ideal. Obedi- 
 ence to the law of the State is based not upon a sense of 
 justice but upon a shrewd policy that considers its own 
 advantage. 
 
 6 The Neo-Platonists. The Neo-Platonists were the 
 last representatives of Greek philosophy. Their philoso- 
 phy was essentially mystic, and held that by withdrawal 
 from the world of sense, men may come to know the 
 divine upon earth through the understanding. The 
 extreme transcendentalism of the Neo-Platonists, reject- 
 ing everything earthly, removes them from the field of 
 social and legal philosophy. Their most notable rep- 
 resentative was Plotinus, the Ascetic (204^269 A.D.).^ 
 
 ^Berolzheimer, "Die Entgeltung im Strafrechte," Munich 1903, 
 pp. 180 seq. and "Rechtsphil.," etc., p. 147. 
 
 'Zeller, "Die Philosophic der Griechen," Part 3, Division 2, fourth 
 edition, pp. 1-81. Scepticism likewise has found a disciple in 
 modern times, namely, Montaigne. See Rossbach, "Die Perioden 
 der Rechtsphilosophie," p. 45. 
 
 » Upon Plotinus see Zeller, "Die Philosophic," etc., pp. 500-734, 
 520-685. 
 
78 THE CIVIC EMPIRE [Ch. Ill 
 
 CHAPTER III 
 
 THE CIVIC EMPIRE OF ANCIENT ROME AND 
 THE MORALIZATION OF ROMAN LAW 
 
 THE ROMAN PEASANT STATE; THE "JUS CIVILE": (1) SUBJECTIVE 
 RIGHT, ABSENCE OF ETHICAL FACTORS; (2) THE "PATERFAMILIAS" 
 AS THE CENTER OF ROMAN LAW.— THE ROMAN-ITALIAN STATE: 
 THE REJUVENATION OF LAW THROUGH "AEQUITAS."— THE ROMAN 
 EMPIRE; INTRODUCTION OF THE PHILOSOPHY OF LAW THROUGH 
 CICERO.— THE DECLINE OF THE ANCIENT EMPIRE: CHRISTIAN 
 ETHICS. 
 
 § 17. The Roman Peasant State: the "Jus Civile." 
 1: Rights: Absence of Ethical Factors. The origin 
 of the Roman Empire may be traced to the Roman 
 peasant state. The life of the tiller of the soil was 
 sturdy and rigorous, and his laws were of like tenor, — 
 austere, rigid, and unyielding, severe in their provisions, 
 and oppressive towards those falling under their author- 
 ity. In the early stages of the development of law an 
 explicit philosophy is lacking; hence the histories of 
 the philosophy of law make slight mention of the early 
 Roman period, which is characterized by the codification 
 of the Twelve Tables (451-449 B.C.). But the character 
 of the laws themselves inevitably reflects a philosophical 
 conviction; and ancient Roman civil law is philo- 
 sophically instructive by reason of its contrast to other 
 periods and to our own attitudes. Such contrast serves 
 to set in relief the progressive spirit of law and its his- 
 torical development. 
 
§17] ROMAN PEASANT STATE 79 
 
 The distinctive mark of Roman law, as contrasted with 
 later codes, lies in the complete absence of an ethical 
 element; it illustrates the course of law antecedent to 
 its association with ethics. By contrast it permits the 
 modem student to realize the large dependence of legal 
 principles upon ethical ones. Its advantage for such 
 illustration lies in its thorough legal elaboration, its 
 accredited standing, and, as noted, its freedom from the 
 intrusion of ethical influences. An essential principle of 
 law not yet permeated by the ethical idea, that is non- 
 ethical or ethically indifferent, is the unconditionality or 
 restrictedness of rights. Such apparently obvious posi- 
 tions as that all rights involve a corresponding duty, 
 and that there are no rights without legal restrictions, 
 do not appear in the non-ethical periods of law; they 
 are of ethical origin and the product of constructive 
 ethics. 
 
 The absolutism of early Roman civil law appears 
 throughout. The owner of the farm, the "paterfamilias," 
 is absolute monarch in the domain of private law. He 
 lords it over his possessions, and the "familia" is un- 
 conditionally subject to his control. To him belong 
 "personse in mancipio," "uxor in manu," "fiilii" and 
 "filise familias," over whom he exercises the "jus vitae 
 ac necis"; and again the "res mancipi," with which he 
 may deal and dispose according to his pleasure. Prop- 
 erty is not restricted by social considerations. There 
 is no formulated law of the family — which is ever the 
 issue of ethical factors — but only an undefined pre- 
 rogative of the head of the household. Equally abso- 
 lute is the law of indebtedness; the debtor who falls 
 in arrears assumes an unconditional liability ("nexum"), 
 even to the forfeiture of liberty and life.- There is 
 
 » XII, tab. Ill, 1-4; 6. 
 
80 THE CIVIC EMPIRE [Ch. Ill 
 
 likewise no law of inheritance ^ in the modern sense. 
 The "familia" continues in unbroken succession, the 
 aggregate property and rights of the deceased pass on 
 as a whole, and there are no personal claims of the 
 individual members of the family. 
 
 The non-ethical character of Roman civil law appears 
 likewise in the constitution of the family, which is not 
 determined by the ethical concept of a natural relation- 
 ship, but is conceived from the legal point of view that 
 only juristically relevant facts establish or dissolve it. 
 Hence the restriction of kinship to the agnates, and hence 
 the possibility of an artificial kinship through "arroga- 
 tion," as well as of dissolution of kinship through 
 juristic acts. 
 
 The legal principles of early Roman law are in general 
 terms; they take no consideration of the particular 
 circumstances of a case, and provide for no concession 
 in view thereof. 
 
 2: The "Paterfamilias" as the Center of Roman 
 Law. To speak of early Roman law as non-ethical 
 describes it negatively, as unaffected by ethical considera- 
 tions, as purely legal. Yet it presents a positive side. 
 It was rigorous ; it regulated the life of the Roman citi- 
 zen in the interests of the conservation of vigor. The 
 early Romans were a yeomanry, and their laws were 
 designed to support the yeomanry in undiminished 
 vigor. The ancient Aryan householder, as the center 
 of domestic life, was the upholder of a cult and of the 
 ethical relations to which it gave rise. In contrast, the 
 Roman view of the head of the family was primarily a 
 legal one. He represented the center of private individ- 
 ual authority. The early Roman State was built upon 
 
 1 L. 62 D. de R. J. 50, 17; L. 24 D. de V. S. 50, 16; L. 37 D. de 
 
 adqu. her. 29, 2. 
 
§17] ROMAN PEASANT STATE 81 
 
 the "familia" as the artificial unit of authority; its 
 foundation was not the individual, but the 
 "familia" represented by the "paterfamilias"; to 
 him all legislation was directed and from him it 
 emanated. 
 
 The status of the "paterfamilias" was important for 
 constructive legal development. Law secured order, 
 and order furthered efficiency. The fundamental neces- 
 sity of order in human life led to the search for a regu- 
 lative principle; and this the Romans found in and 
 through the central position occupied by the "bonus, 
 diligens paterfamilias," the ideal type of the Roman 
 citizen. The "paterfamilias" was the point of con- 
 centration of the legal provisions, the nucleus from 
 which emanated the several divisions of the law. 
 By setting the question, "How shall the ideal 
 Roman citizen think and act?" the basis for the 
 development of law and legislation was attained. 
 The model Roman citizen furnished the constructive 
 basis of law. 
 
 The power and authority of law as embodied in laws, 
 and especially as realized in personal prerogative, was 
 clearly present to the Roman mind. This may be in- 
 ferred from the evidence — in part accredited as histori- 
 cal and in part circumstantial — that in the primitive 
 Roman conception of law the acquisition of personal 
 rights was not a matter of arbitrary assumption, but 
 was established, either by means of a mutual agreement 
 or contract, or by a unilateral act such as a testamentary 
 disposition. Consequently in the olden times private 
 claims could be established only under the same condi- 
 tions as validated law, namely, by consent of the popular 
 assembly. Vestiges of this original form of the sub- 
 jective or personal right are to be found in the ancient 
 Roman ceremonial of calling to witness — a requirement 
 
82 THE CIVIC EMPIRE [Ch. Ill 
 
 not easily accounted for on any other ground. ' The 
 underlying idea is that the collective interests of the 
 State suffer through the litigation of private individuals, 
 which accordingly require the consent of the community. 
 In more developed and established communities such 
 litigation but slightly affects the welfare of the State; 
 and the consent thereto became a notification through 
 the popular assembly, and was ultimately reduced 
 to the merely formal presence of witnesses, who stand 
 as the survival of the assembly of the people. 
 
 §18. The Roman-Italian State: the Rejuvenation of 
 Law through "Mquitas." In temper the Greeks were 
 artistic and philosophical, the Romans practical and 
 constructive. The legal system of the Romans furnishes 
 a brilliant example of unerring practical insight and 
 notable constructive talent. The common opinion that 
 the Romans contributed little to the philosophy of law 
 is erroneous, and may be due to the exclusive considera- 
 tion of Roman works upon legal philosophy. These, 
 it is true, do not present any markedly original ideas; 
 philosophizing was not a strong point with the Romans. 
 Yet the contributions of their legal authorities should 
 not be considered to the exclusion of the evidence sup- 
 plied by the law itself ; the true spirit of Roman philoso- 
 phy and culture is reflected in the monument which 
 Roman civilization has erected in the system of Roman 
 law. The Romans contributed a classic and enduring 
 model for the philosophy of law, quite as clearly as the 
 Greeks supplied the prototype of ethical views. The 
 two special contributions due to Roman legislation and 
 practice are, in the first period, the establishment of the 
 "bonus (diligens) paterfamilias" as the standard relation 
 
 ' A more detailed exposition is found in Berolzheimer, "Rechtsphil.," 
 etc., pp. 19-23. [See Maine, "Ancient Law," London 1909, on the 
 Calatary will in Roman law, p. 210. — Editor's Note.] 
 
§18] ROMAN-ITALIAN STATE 83 
 
 for the development of private and criminal law; and, 
 in the second period, the "jus sequum," as embodying 
 law conformably to the principle of equity. 
 
 The principle of "jequitas" was expressed in the words: 
 "summum jus summa injuria." Aristotle had already 
 found that the stern conception of legal right must 
 yield to considerations of equity. In Roman law such 
 concessions were extended; and the older rigid legisla- 
 tion was encroached upon by the spirit of "aequitas." 
 The Roman yeoman right became a law of universal 
 scope; the foundations of this development were laid 
 in the Roman-Italian period. 
 
 The renaissance of Roman law was accomplished 
 practically by means of the prsetorian edict, and theo- 
 retically through the philosophical principle of "Ratio," 
 ("ratum").' It meant to the Romans what the Egyp- 
 tians figured as "Ra," natural energy deified, or the 
 ancient Aryans as "Rita," the regulative principle of 
 the world and nature.^ "Ratio" is not identical with 
 the spirit of national law; for the latter is variously 
 influenced by local and personal relations, by economic 
 conditions, and by historical events. For this reason 
 the Roman jurists speak of "ratio" in the sense of the 
 Aryan "rita" as "naturalis ratio" ; side by side therewith 
 was the national Roman law reflecting its popular 
 origin ' as "civilis ratio." Thus to the Romans "natura- 
 lis ratio" was not equivalent to the sum total of the 
 sentiments and consciousness of right action common 
 
 ' See the bibliography noted by Leist, "Graeco-ital.," etc., p. 199, 
 note a, and p. 221, note f. 
 
 2 See the confirmatory passages noted by Leist, "Graeco-ital.," 
 etc., p. 199. Note particularly Cicero, "De natura Deorum," 2, 
 16, 20, 37: "Tusculanarum disputationum libri quinque," 5, 24; 
 In Verrem 2, 2, 52; Seneca, epist., 66; see also below, § 19. 
 
 ^Leist, "Graeco-ital.," etc., p. 609. 
 
84 THE CIVIC EMPIRE [Ch. Ill 
 
 to all men, but signified the objective and external 
 order of nature.' Yet such order must serve as the basis 
 of just laws; and, following the Stoic argument, the 
 legal construction based upon "ratio" becomes the 
 artificial counterpart of the cosmic order. 
 
 The practical operation of "sequitas" belongs to the 
 history of law. As to its conception and nature three 
 views may be noted. The older view is that the quality 
 of equity consists in the detailed consideration of the 
 individual circumstances of a concrete case. Yet this 
 most common application of "sequitas" does not ade- 
 quately suggest its sphere of operation or its nature. 
 For instance, it is due to the conception of "sequitas" 
 that the principle of the "cognate" (maternal) relationship 
 was established alongside and eventually in place of the 
 "agnate" (paternal) relationship and succession. This 
 may not be historically verifiable because the "sequitas" 
 as applied to inheritance was not formulated as a legal 
 institution but prevailed as a prsetorian "bonorum 
 possessio." 
 
 The view represented by Voigt is that the principle 
 of equity would apply to new laws and legal regulations 
 so long as these represent merely the positions of their 
 proposers and have not yet become a constituent part 
 of formulated law. In this sense "sequitas" in each 
 period would be the most progressive expression of a 
 developing legal consciousness. There would be sev- 
 eral varieties thereof: a popular "sequitas," representing 
 the demands growing out of the development of such 
 consciousness in the people, and a scientific "sequitas," 
 corresponding to similar demands due to the develop- 
 ment of conceptions among scholars and legal practi- 
 tioners. The distinction might also be made between 
 
 ^Leist, "Grseco-ital.," etc., pp. 664-668. (Opposed to Samgny, 
 and in later days to Bernhoft.) 
 
§ 18] ROMAN-ITALIAN STATE 85 
 
 general and special "aequitas," according as it was 
 applied to the entire field, or pertained only to a particu- 
 lar division of the subject. Voigt's interpretation of 
 "aequitas" gives no objective definition of its nature, 
 but merely indicates the subjective influences affecting 
 its development. Nor is it the case that maturing legal 
 convictions, under all conditions, times, and places, find 
 representation in "gequitas." It applies historically to 
 the growing consciousness and general development of 
 the legal sense in the Roman evolution of law; but this 
 is not a philosophical interpretation, and sheds no light 
 upon the nature of "aequitas." * 
 
 The third view is that "aequitas" represents a "prac- 
 tical concession as the directive principle of a progres- 
 sive legal development which finds itself in opposition 
 to the strict civil law.^ This view may be endorsed, but 
 requires to be amended, "^quitas" is the expression 
 in Voigt's sense of a progressive legal attitude; but 
 philosophically its significance lies not in its furtherance 
 of a growing theoretical position, but in its introduc- 
 tion of the principle of practical justice into the province 
 of law. This view must be supplemented by the con- 
 sideration of the origin of the objective factors by 
 virtue of which practical justice prevailed over formal 
 justice. This objective factor was supplied by ethics. 
 Ethics was first introduced in Roman law through the 
 encroachment of "aequitas" upon the older severer 
 conception of legal right. It may be that the introduc- 
 tion of "aequitas" came by way of the growing relations 
 of the Romans with foreign peoples; but its formal 
 legal introduction was due to the authority of the praetors. 
 
 * Hildenbrand, "Geschichte," etc., says (p. 624): "It was not 
 'aequitas' because it was commanded by the spirit of the times, but 
 was approved by that spirit because it was 'sequitas.' " 
 
 2 Hildenbrand, "Geschichte," etc., p. 624. 
 
86 THE CIVIC EMPIRE [Ch. Ill 
 
 The subjective factor was the growing legal consciousness; 
 but its objective ground and support was the ethical 
 conception. Summarizing the result in simple terms, 
 one may speak of it as the recognition that laws exist 
 for the sake of man; or in philosophical terms, as the 
 introduction of the conception of humanity in Roman law. 
 In the later development of the philosophy of law, 
 "bonum" and "sequum" were co-ordinate, "jus est ars 
 boni et aequi";^ and the entire field of law, as indeed 
 of culture in general, was pervaded by thespiritof equity.^ 
 Early law recognizes only holders of rights and not 
 men as legal subjects. The subject of early Roman law 
 was not the man as such, but merely the "persona." 
 Man came into legal existence when he stepped upon the 
 stage of the law and assumed the artificial role or mask 
 of the "persona."^ Accordingly the Roman citizen was 
 alone prominently considered as a subject of law, and the 
 paternal, "agnate," relationship was supreme. Early 
 law recognized only legal transactions; conduct and its 
 material consequences were non-existent for the law so 
 long as they did not come under the formal require- 
 ments of legal provisions; but the reconstructed law 
 reflected the principle: "Nemo cum damno alterius 
 locupletior fieri debet."* Through this means legal 
 
 ' I, 1, pr. D. I, 1; and § 1 eod.: "Justitiam . . . colimuset boni 
 et cEqui notitiam profitemur, aequum ab iniquo separantes." [See, in 
 this connection, Maine, "Ancient Law" (Cliapt. iii. Law of Nature 
 and Equity), p. 48; and Sir Frederick Pollock's notes at pp. 73, 77. 
 — Editor's Note.] 
 
 ^L. 90, D. L. 17; and 1. 52 § 3 D. H, 14; L 32 pr. D. XV, 1; 
 L 2 § 5 D. XXXIX, 3; I. 8 C. 3, 1. 
 
 ^Berolzheimer, "Rechtsphil." etc., pp. 104 seq. 
 
 ^Fr. 206 D. L., 17: "Jure naturae sequum est, neminem cum al- 
 terius detrimento et injuria fieri locupletiorem." See also Cicero, 
 "De ofRciis," 11, 22 § 78: "Aequitas omnis toUitur. <d-habere suum 
 cuique non licet." 
 
I 19] THE ROMAN EMPIRE 87 
 
 procedure became more liberal on its formal side, and 
 more just on its material side. 
 
 §19. The Roman Empire: Introduction of the Philoso- 
 phy of Law Through Cicero. Cicero (106-43 B. C.) was 
 the leading spirit in Roman legal philosophy. He holds 
 this position not by reason of his command of original and 
 fundamental ideas, but as the intermediary of the tradi- 
 tional philosophy of Greece, which he made accessible 
 to his generation and adapted to the conditions of 
 Roman law. As an eclectic he drew from the several 
 philosophies what appeared to him useful, and with 
 literary skill fused their several contributions. His 
 works bearing upon legal philosophy are the fragment, 
 "Librorum de republica sex quae supersunt" ; and "De 
 legibus libri tres" and "De officiis." In his method 
 he was influenced by Aristotle, and in his position by 
 the Stoic philosophers. To him the highest good was 
 to live according to nature, "secundum naturam vivere" ; '■ 
 the highest virtues were the Stoic ones of prudence, 
 justice, magnanimity, and temperance — "prudentia," 
 "justitia," "magnanimitas," "moderatio." ^ 
 
 The virtue of "justitia," which includes "bene- 
 ficientia" or willingness to make sacrifices for 
 communal interest — in modern phraseology, par- 
 ticipation in the social consciousness — is practically 
 set forth in true Roman fashion by enumerating 
 the duties and standards resulting therefrom, such 
 as to offend no one, "neminem Isede," to live hon- 
 estly, "honeste vive," to render to each his own, 
 
 1 "De finibus bonorum et malorum," V, 9; III, 7, 26; IV, 10, 26; 
 V, 9, 24, 26; "De officiis," III, 3, 13; I, 4, 14; I, 6, 14. "De finibus," 
 V, 21, 58, 60; V, 23, 67. "Deinventione," II, 53, 168, 160. "Tuscu- 
 lanarum disputationum" libri quinque, IV, 15, 45. 
 
 2"De off.," I, 4, 14, 1,7, 20-23; "De fin.," V, 23, 65, 67; "De 
 inv.," II, 63, 160. 
 
88 THE CIVIC EMPIRE [Ch. Ill 
 
 "suum cuique tribuere";^ maxims that gained accept- 
 ance throughout the Roman empire. The basis of this 
 philosophy of justice was the "naturalis ratio," the 
 natural order as applied to ethics and law. Cicero 
 uses a series of synonyms for this conception: "lex 
 naturae," "lex naturalis," "natura," "lex," "lex summa," 
 "coelestis," "divina et humana."^ ' * Law and govern- 
 ment are not derived from arbitrary enactments of man 
 but from objective factors, from the moral spirit inher- 
 ent in the natural order.^ The recognition of the "lex 
 naturalis," which is "sapientia," leads to an insight into 
 the connection of human affairs with divine decree: 
 "rerum divinarum atque humanarum scientia."^ In 
 so far as practical conduct is infused with such knowl- 
 edge, man is led to harmonize his activities with the 
 "lex naturalis"; he confirms the "honestas," and exer- 
 cises "justitia."' The law as applied consists of the 
 "jus gentium," valid for all peoples, and of the "jus 
 civile,"^ which is conditioned by special local and tem- 
 poral considerations. 
 
 Following the example of Aristotle, Cicero recognizes 
 the principle of justice as that of equality; and likewise 
 
 i§3. J. I, 1, and 1,10 § I, D. I, 1: "Juris prsecepta sunt hac : 
 honeste vivere, alteram non laedere, suum cuique tribuere." 
 
 2 "De leg.," I, 6; 11,24; 1,6; 11,4. 
 
 3"Deoff.," 111,6, 17; 5. 
 
 " "De natura deorum," I, 14. 
 
 s "De rep.," II, 1. "De leg.," II, 4. 
 
 « "De off.," I, 43, 153. Compare with this § 1, J. I, 1: "Juris- 
 prudentia est divinarum atque humanarum rerum notitia, justi 
 atque injusti scientia." On "naturalis and civilis ratio," see B. W. 
 Leisl, "Zivilistische Studien," I, pp. 76-99, and his sources, pp. 77 
 seq.; also IV, (Jena 1877,) pp. 1-13; 35-37; 56-60; 170-174; 174- 
 176; 221 seq. 
 
 ' "De off.," I, 4, 14; 155; 111,7,17; 11,12; 1,17. 
 
 8"Derepubl.,"III, 22; I, 32; 25; XXXII, 48. 
 
§20] CHRISTIAN ETHICS 89 
 
 makes the social impulse the incentive for the formation 
 of the community, which in turn grows from its simplest 
 form in the family to its more complex stages through 
 the State up to the "societas hominum," the universal 
 brotherhood of the Stoics, and the "societas hominum 
 atque deorum," the cosmic commonwealth. The essen- 
 tial function of the State is to serve as the fountain- 
 head of law, and as the welfare of the people, "quid est 
 enim civitas nisi juris societas?" "^ 
 
 Seneca, the Stoic (3 B.C.-65 A.D.), was likewise influ- 
 ential in transferring the doctrine of human equality 
 and liberty to the sphere of law and government.^ 
 
 § 20. The Decline of the A ncient Empire : Christian Ethics. 
 The period of the decline of the Roman Empire wit- 
 nessed the advancement of Christianity to an estab- 
 lished national religion. Christianity displaced the 
 Greek mythology, and through its ethics influenced the 
 development of law, the organization of government, and 
 the freest expansion of both. It is this cultural signif- 
 icance of Christian ethics that must first be considered. 
 There is a certain analogy between the symbolic per- 
 sonifications revered as gods or as representatives of the 
 divine idea, and the distinctive purposes of ethics. Prim- 
 itive man made a fetish of some phase of inanimate 
 nature or natural energy conceived as a symbol of the 
 divine, such as the power of fire, or the vast, silent, mys- 
 terious majesty of the grove. At such a stage of culture 
 explicit ethical ideals are lacking. The Egyptians in 
 
 1 "De leg.," II, 4, 5; III, 12. 
 
 2 "De beneficiis," I, III, chap. 20: "Errat, si quis existimat servi- 
 tutem in totum hominem descendere: pars melior eius excepta est. 
 Corpora obnoxia sunt, et adscripta dominis: mens quidem sui 
 juris." "Opera omnia." T. II, Lipsiae 1877, p. 164) Epistola XLVII: 
 "Servisunt? immo homines'' ("Opera omnia," T. Ill, Lipsiae 1878, 
 p. 106). 
 
90 THE CIVIC EMPIRE [Ch. Ill 
 
 turn held certain animals as sacred, and accorded them 
 a greater ethical consideration than they gave to their 
 own kind. Mosaic Judaism looked upon its God, if not 
 exclusively, yet primarily, as the God of Israel; and 
 Jewish ethics in general applied to the people of Israel 
 alone. 
 
 The Greek ideal was the Hellenic aristocrat, cultivated 
 sptritually and physically; and the gods were modeled 
 upon this type. Greek ethics was aristocratic, like the 
 Greek gods, who, in turn, were not free from the failings 
 of polite Greek society. In contrast Christian monothe- 
 ism aspired to universality. The God of the New Tes- 
 tament was proclaimed the Father and Protector of all, 
 the Consolation and Support of the weak and the needy. 
 Christian ethics embraced mankind in its totality, and 
 made the individual a member of an enlightened fellow- 
 ship, a spiritual being endowed with the potency of ideal 
 conceptions. Ethics thus reached its highest expression. 
 From the appearance of Christianity, mankind has en- 
 deavored to apply a universal humanitarian ethics to 
 the practical problems of life, society and government. 
 But the conception was limited to a Christian article 
 of faith so long as the absence of temporal power de- 
 prived it of access to law and government. And therein 
 lies the fundamental significance of the elevation of 
 Christianity to an established religion within the Roman 
 Empire. 
 
 Communists have ever contended that their teachings 
 are the logical issue of Christianity; that Christian 
 charity is realized in communism. This view is hardly 
 in accord with historical fact. The social ethics of 
 Christianity forms the last link in the chain of ancient 
 moral systems, each in turn growing out of the religious 
 views of the people and intimately bound up with them. 
 Early ethical systems aim to hold self-seeking in check: 
 
§20] CHRISTIAN ETHICS 91 
 
 this is the basic principle of the sacrificial cult of primi- 
 tive peoples, which is continued under the form of 
 sacrifice to the gods from the abundance of temporal 
 possessions. But the form of the sacrifice constantly 
 changes, becoming ever more refined and spiritualized. 
 The Israelitic cult made a step in advance by the abolition 
 of human victims, as set forth in the story of Abraham's 
 sacrifice. The spirit of Greek ethics appears in the 
 condemnation of "Hybris," offensive to men and gods, 
 in the vanquishing of an unbounded egoism, and in the 
 myth of the Ring of Polycrates. Christian ethics spirit- 
 ualized the entire sacrificial conception by transferring 
 it from matter to spirit. It appeared in the precept of 
 neighborly love, exercised not selfishly, or limited to 
 one's own family, but as an expression of humanitariaa 
 sympathy. A universal ethics, embracing all humanity, 
 required a world-empire for its development. 
 
 Considered theoretically, law and ethics are cultural 
 forces that confer upon men an increased efficiency by 
 introducing order into the communal life, by securing 
 a sphere of action for the freewill of the individual within 
 the community, and by checking the overweening course 
 of personal power — thus avoiding "Hybris," and setting 
 limits to arbitrary authority. In this alliance ethics be- 
 comes a higher, more powerful force than law; for law 
 ever requires the support of an efficient external or- 
 ganization to give it valid authority and enforcement. 
 Ethics directly affects the training of human personality 
 through moral motives without the intervention of exter- 
 nal aid. Ethics is thus the more comprehensive cultural 
 development. 1 
 
 ' Mechanically expressed, if ethics attains the same power or 
 efficiency without additional means as law attains only with the 
 instrument of legal compulsion, then is ethics mork powerful in com- 
 parison with law by as much as the additional means increases the 
 power. 
 
92 THE CIVIC EMPIRE [Ch. Ill 
 
 The ethics of Christianity, compared with all pre- 
 ceding systems, assumes a higher cultural status and 
 influence through its extension of salvation to all 
 humanity and through its emancipation of the larger 
 relations of human welfare. 
 
§21] SPIRITUAL DOMINANCE OF ROME 93 
 
 CHAPTER IV 
 THE BONDAGE OF MEDIEVALISM 
 
 THESPIRITUAL DOMINANCE OF ROME: ST. AUGUSTINE, THOMAS 
 AQUINAS, THE DOCTRINE OF THE "TWO SWORDS": (1) THE CHURCH 
 AND GREEK PHILOSOPHY; (2) THE PHILOSOPHY OF ST. AUGUSTINE; 
 (3) THE PHILOSOPHY OF THOMAS AQUINAS; (4) THE DOCTRINE OF 
 THE "TWO SWORDS."— ECONOMIC AND SOCIAL RESTRICTIONS: (1) 
 THE YEOMAN AND THE CITIZEN CLASS; (2) THE ECONOMIC 
 INFLUENCE OF THE CHURCH; (3) THE CRAFTS AND TRADES.— 
 THE LIBERALIZING TRENDS OF THE MIDDLE AGES: (1) DANTE; 
 (2) WILLIAM OF OCCAM; (3) MARSILIUS OF PADUA AND THE 
 SOVEREIGNTY OF THE PEOPLE; (4) NICHOLAUS CUSANUS; (5) 
 MACCHIAVELLI. 
 
 § 21. The spiritual Dominance of Rome (St. Augus- 
 tine; Thomas Aquinas ; The Doctrine of the Two Swords). 
 1: The Church and Greek Philosophy. After the de- 
 struction of the Roman Empire the domination of Rome 
 became stronger than ever; the ancient empire had held 
 sway over the bodies of men ; the empire of the Church 
 dominated their souls. The mediaeval, attitude towards 
 the law was centered upon the position to be assumed by 
 the faithful towards the material interests of the State, 
 which was ruled by law and devoted to industrial pur- 
 suits. Such position was not determined on the basis 
 of comprehensive philosophic principles. Mediaeval 
 learning was not concerned with the interpretation and 
 justification of the complex economic world of affairs, 
 but with the adjustment of existing institutions to the 
 purposes of an all-embracing Church; hence its 
 
94 BONDAGE OF MEDIyEVALISM [Ch. IV 
 
 philosophy of law was a philosophy of compromise. 
 The Church doctrine, as expressed in the Scriptures, 
 supplied one of the factors necessary for such construc- 
 tion; the other, the philosophy of earthly order and 
 economy, was likewise accepted from established sources. 
 Ancient Greece offered such an harmonious system ; the 
 only serious choice was that between Plato and Aris- 
 totle, and the decision was not difficult to reach. If 
 the purpose sought in Greek philosophy was the loftiest 
 expression of eternal truth, Plato would unhesitatingly 
 be recognized as its chief exponent; if the object was a 
 practical philosophic construction adequate to the needs 
 of life, then Aristotle would inspire greater confidence. 
 And thus the Aristotelean doctrines were accepted by, 
 or rather welded to, the ecclesiastical system. The 
 requisite amalgamation was accomplished in the main 
 by the important activities of two leaders : Augustine ^ 
 in the early period, and Thomas Aquinas ^ in the later 
 period of the Middle Ages. 
 
 2: The Philosophy of St. Augustine. The funda- 
 mental doctrine of Augustine (353-430) was that the 
 Church has unconditional sovereignty over the State. 
 
 ' "De civitate Dei," libri XXII. I cite from the edition issued by 
 Teubner of Leipzig, in two volumes, 1877. 
 
 ^ Summa theologiae prima secundje qu. 90-97, secunda secundae 
 qu. 57-80, 120, 122 (edition Lugduni 1677). "De regimine prin- 
 cipum," libri IV, 1509 (Books I and II by Thomas, the rest by 
 Ptolemaeus Lucensis). I have before me two editions, ■ — "Divi 
 Thomse Aquinatis, Tomus XVII complectens opuscula omnia, 
 Antverpiae 1612, Opusculum XX, De regimine principum ad regem 
 Cypri" (pp. 161-193); and, "Divi Thomae Aquinatis opera, editio 
 altera Veneta, Tomus 19 complectens opusc. theolog. Venetiis 
 1754, Opusc. XX. De regimine principum ad regem Cypri" (pp. 
 524-619). In some editions this work is published under the title 
 of "De rebuspublicis et principum institutione," libri IV; for 
 instance, in the Lugduni Batavorum edition, 1602. 
 
§21] SPIRITUAL DOMINANCE OF ROME 95 
 
 The Church secures eternal salvation; the State but 
 temporal protection. Yet Church and State are both 
 conceived as "civitas," corresponding to the Greek 
 "woXis," though the term "civitas" is to be undM-stood 
 metaphorically or even metaphysically ("mystice").i 
 Subordinate to the "civitas Dei" ("cselestis") is the 
 "civitas terrena." At the end of time the "civitas 
 Dei" will alone prevail, and the "civitas terrena" will 
 be dissolved. The State is justified as a necessary 
 means of keeping peace on earth; for this reason the 
 laws of the State must be obeyed. While Augustine 
 thus justifies the existence of the State, yet in certain 
 passages he rejects and renounces it. These several 
 statements of Augustine are not in reality contradictory.^ 
 The spirit of mediaeval teaching justifies the State so far 
 as it favored the service of the Church, but otherwise 
 was opposed to it. A Christian State was pleasing to 
 God, but a heathen State was the work of Satan. 
 
 Augustine's doctrine of evil is characteristic. Accord- 
 ing to him evil is not substance,' but the dissolution of 
 substance, the withdrawal of good, "privatio et cor- 
 ruptio boni." It thus consists in the lack of character; 
 its nature is wholly negative or privative.^ In this con- 
 
 iSee "De civ. D.," XV, chap. I; XIX, chap. 11. Stahl, in 
 "Die Geschichte der Rechtsphilosophie" (p. 46), renders the expres- 
 sion "mysticum" by the word "symbolic." See also Renter, 
 "Augustinische Studien," pp. 128, 131. 
 
 ^Geyer, "Geschichte und System der Rechtsphilosophie in Grund- 
 ziigen," p. 25. Only the second conception is given by Mohl, 
 "Die Geschichte und Literatur der Staatswissenschaften," p. 225. 
 
 'For example s&e Augustine, "Decontinentia," 21 ("Corpus scrip- 
 torum ecclesiasticorum latinorum," Vol. XL, sect. V, Part III, 
 Pragse, Vindobonae, Lipsise 1900, p. 166): "ibi omnibus erit clarum 
 atque perspicuum, quod nunc a fidelibus multis creditur, a paucis 
 intelligitur, malum non esse substantiam." 
 
 * "De civitate Dei," XIX, 13. See Scipio, "Des Aurelius Augus- 
 tinus Metaphysik," pp. 80-69. 
 
96 BONDAGE OF MEDIEVALISM [Ch. IV 
 
 ception Augustine proves himself more successful than 
 Spinoza, whose pantheism could not completely recon- 
 cile the antagonism of evil with the purposes of culture. 
 Augustine also anticipates the Hegelian conception that 
 only what is rational is real: injustice is not real, but 
 the mere negation of justice. 
 
 The most important place in Augustine's philosophy 
 of law is occupied by the doctrine of "Pax." * "Pax" is 
 not peace, but that which brings peace, the blissful, 
 sacred order. ^ Every organism and every part thereof 
 has its own objective assigned order: the body, in rela- 
 tion to its parts and members, "pax corporis"; the 
 unreasoning creation in the regulation of their instincts, 
 "pax animse in rationalis"; rational beings in the har- 
 mony between their activities and knowledge, "pax 
 animae rationalis ordinata cognitionis actionisque con- 
 sensio"; and so on. In like manner there is a principle 
 of order for the State, namely, "ordinata imperandi 
 atque oboediendi concordia civium"; and no less so for 
 the "cgelestis civitas," namely, "ordinatissima," min- 
 utely regulated; "et concordissima," in complete 
 accord, "societas fruendi Deo et invicem in Deo." ^ 
 
 The concept of "Pax," which forms the immortal con- 
 tribution of Augustine, became an essential part of 
 mediaeval philosophy. What Augustine sets forth as 
 "Pax" appears to have been a possession of all cultures. 
 We may recall that to the Vedic Aryans the central 
 philosophic conception of organized nature was "rita," 
 which included the natural and the human order. A 
 
 •Compare with this Scipio, "Des Aurelius," etc., pp. 44 seq.; 
 and Bernheim, "Politische Begriffe des Mittelalters irn Lichte der 
 Anschauungen Augustins," pp. 3-6, 13 seq. 
 
 2 "De civ. D.," lib. XIX, chap. 13: "pax omnium rerum tran- 
 quillitas ordinis." 
 
 2 "De civ. D.," lib. XIX, chap. 13, introduction. 
 
§21] SPIRITUAL DOMINANCE OF ROME 97 
 
 closely related conception was "dhama." ^ The Greeks, 
 by emphasizing the creative energy, made of "rita," 
 "<j>vai<s," and of "dhama," "eiiiK." ^ The Romans,, 
 through the Greeks, derived from "rita" their central 
 conception "ratum," "ratio," "naturalis ratio";' and 
 Augustine christianized "rita" into "Pax." Order is 
 the universal bond ^ that holds the world together; 
 order assigns a place to all created things; it is a direc- 
 tive and distributive justice. ° Order is universally 
 sought and esteemed. The opponents of order are not 
 opposed to the principle; they renounce the existing 
 order of things but not order itself.* 
 
 "Pax" acquires a special significance for ethics. It 
 becomes the regulating principle which as " (Toi^potrvvq" 
 protects man from "v/SpK," from an overweening 
 egoism. It sets limits to individual assertion and 
 makes man a concordant member of the cosmos — at 
 peace with himself and with God, protecting him from 
 earthly misfortune and securing his salvation.' "Pax" 
 is the supreme source of energy from which civilization 
 
 ' See above § 10. 
 
 ^ See above, § 13. 
 
 'See above, §§10, 18, 19. 
 
 * "De pace universal!, quae inter quaslibet perturbationes privari 
 non potest lege naturae." The heading of chapterlS, Book 19. 
 
 ^ "Ordo est parium dispariumque rerum sua cuique loca tribuens 
 dispositio." "De civ. D.," lib. XIX, chap. 13. One is reminded 
 of the Roman, "Justitia est constans et perpetua voluntas jus suum 
 cuique tribuens" (pr. Inst. I, 1). But this is merely an expression 
 of "ordo" in general — the application of "ordo" to distributive 
 justice. 
 
 ' "De civ. D.," lib. XIX, chap. 12: "Nam et illi qui pacem, 
 in qua sunt, perturbari volunt, non pacem oderunt, sed earn pro 
 arbitrio sue cupiunt commutari. Non ergo ut sit pax nolunt, sed 
 ut ea sit quam volunt." 
 
 ' "De civ. D.," lib. XIX, chaps. 4, 10, 11, 13, 14; lib. XXI, 
 chap. 25. 
 
98 BONDAGE OF MEDIEVALISM [Ch. IV 
 
 proceeds; as the earthly order, it proceeds from the 
 cultivation of law ; as the harmony of man's spiritual life 
 and his physical activity, it becomes the goal of ethical 
 cultivation. Thus Augustine, despite his theology, his 
 religious dependence, and his narrow dogmatism, 
 shows a deep and comprehensive recognition of the 
 philosophical basis of law. 
 
 3: The Philosophy of Thomas Aquinas. The legal 
 philosophy of the Middle Ages culminated in Thomas 
 Aquinas (1228-1274), who presented and defended the 
 Catholic position with extraordinary keenness and 
 insight. He begins with a dualistic principle; he con- 
 ceives the principle of evil as the temptation by the 
 devil, and the principle of good as God. God inclines 
 men to good by fostering knowledge through law, and 
 by strengthening their will by his mercy. "^ Hence the 
 nature of law must be understood. Accepting the 
 position of Augustine, Aquinas assumes a "summa 
 ratio," a "lex aetema," derived from the divine reason, 
 and expressed in the principle of temporal rule. From 
 the absolute rule of God arises natural law, "lex natu- 
 ralis." The latter may appear superfluous: "Sufficienter 
 enim homo gubematur per legem setemam." In reality 
 Aquinas recognizes natural law, from which men and 
 States without a "lex scripta" derive the knowledge of 
 good and evil. The "lex naturalis" is the "partici- 
 patio" of mankind in the "lex aetema," by virtue of 
 which men, despite the limitations of human knowledge 
 through the fall of man, derive the distinction of good 
 and evil, "secundum quam bonum et malum dis- 
 cernunt." ^ In addition to the law of thedivine regulation 
 
 ' II, 1 qu. 90: "Principium . . . exterius ad malum inclinans est 
 diabolus. . . . Principium . . . exterius movens ad bonum est 
 Deus, qui et nos instruit per legem, et juvat per gratiam.'' 
 
 Ml, Iqu. 91, art. 1; qu. 93. II, 1 qu. 91, art. 2. II, 1 qu. 91, 
 art. 2, conclus. ; qu. 94, arts. 2 and 3. 
 
§ 21] SPIRITUAL DOMINANCE OF ROME 99 
 
 of the world, the "lex aetema," and of the natural law,,the 
 "lex naturalis," there is a third, a positive law, the "lex 
 queedam ab hominibus inventa." Positive law carries 
 out in detail the principles of natural law.^ The purpose 
 of the law is the perfection of man, "homines facere 
 bonos." The master should rule justly, "bene imperare" ; 
 and the subject's primary duty is to be justly obedient,^ 
 "subditorum propria virtus." Positive law should be 
 founded upon justice : should be in harmony with morality, 
 "legem . . . honestam"; adapted to what is feasible, 
 "possibilem" ; concordant with the natural order, "se- 
 cundum naturam"; considerate of local tradition, "se- 
 cundum patriae consuetudinem" ; responsive to condition 
 and circumstance, "necessariam" ; useful and concise, 
 meeting public needs.' It must consider the imper- 
 fection of humanity, and must define the range of for- 
 bidden conduct more narrowly than do the precepts of 
 ethics. The law specifies only the more serious offenses, 
 "non . . . omnia vitia cohibere, sed graviora tantum," 
 that menace human society, and from which most men 
 are able to refrain, "a quibis possibile est majorem 
 partem multitudinis abstinere." ^ 
 
 Aquinas sets forth the distinction between what is 
 moral and what the law forbids and punishes. As the 
 Roman jurists found the norm or central point of their 
 system, to which all enactments converged in the "bonus 
 paterfamilias," so Aquinas finds in the average nature 
 of man the limitations of legal restraint. He is thus the 
 first philosopher to establish an appropriate penological 
 
 1 "Secundum quam (in other words, of the positive law) dispo- 
 nunter quae in lege naturae continentur," II, 1 qu. 91, art. 3. See 
 also II, 1 qu. 93, arts. 3 and 6, qu. 95, art. 2. 
 
 ^ II, 1 qu. 92. 
 
 3 II, 1 qu. 95, art. 3. Also qu. 96, art. 1; II, 2 qu. 57. 
 
 * II, 1 qu. 96, art. 2. 
 
100 BONDAGE OF MEDIEVALISM [Ch. iv 
 
 principle, and correctly to determine its application. 
 He recognizes custom as a source of law, but limits its 
 domain. 1 Positive law should be modified only for 
 sufficient grounds, either by reason of necessity or of 
 notable benefit; for otherwise the harm, the insecurity 
 brought about by constant change of the law, would 
 outweigh the advantage.^ 
 
 Justice, which Aquinas defines in conformity with 
 its place in Roman jurisprudence,' is one of the four 
 cardinal virtues, "temperantia, prudentia, fortitude, 
 justitia."^ Justice is either "justitia generalis" or 
 "justitia particularis." "Justitia generalis" comprises 
 all earthly virtues. ^ "Justitia particularis" ^ is divided 
 into "justitia commutativa," and "distributiva." ' 
 The principle, "medium," by means of which "justitia 
 particularis" finds application is, in agreement with 
 Aristotle, "aequalitas." * From "justitia commuta- 
 tiva" arises the obligation of restitution to prevent 
 unwarranted acquisition.^ "Equalitas justitise" be- 
 comes superior to the prescriptions of the positive law 
 
 1 II, 1 qu. 97, art. 3. 
 
 = II, 1 qu. 97, art. 2. 
 
 ' II, 2 qu. 58, art. 1, conclus. See also pr. Inst. I, 1. 
 
 < II, 2 qu. 58, art. 3, § 3, and conclus. 
 
 5 II, 2 qu. 58, arts. 3, 5, 6. 
 
 ° II, 2 qu. 58, arts. 7, 8. 
 
 ' II, 2 qu. 61. 
 
 * II, 2 qu. 58, art. X: "^quale autem est realiter medium inter 
 majus et minus." In distributive justice the application of justice 
 proceeds by geometrical proportions, in commutative by arithmeti- 
 cal. II, 2 qu. 61, art. 2. See also Baumann, "Die Staatslehre des 
 h. Thomas von Aquino," pp. 190-192. 
 
 "II,2qu. 62. 
 
.^:fJ^-^>. 
 
 §21] SPIRITUAL DOMINANCE OF ROME 
 
 through "sequitas," ' "supplendo ex recta ratione, g 
 verbis scriptarum legum deest." The right of punish 
 ment is considered casuistically and indeterminately in 
 respect to the several theories of punishment. Usury, 
 "usura," is denounced on the ordinary scholastic 
 ground; "cum pecuniae usus sit illius consumptio ac 
 destructio, injustum et illicitum est pro eius usu aliquid 
 accipere." ^ 
 
 4 : The Doctrine of the Two Swords. In the later 
 mediaeval conception of the State, two opposed influences 
 meet: the vigorous Roman Empire of the Caesars, con- 
 served in the Roman-German Empire, as the bearer 
 of the older culture through which the authority of the 
 Pope was established, confronts the Catholic Church 
 which had usurped control of all temporal power. The 
 Church found its philosophic support in Augustine's 
 doctrine of the "civitas terrena"; while the Aristotelean 
 philosophy favored a more restricted conception of 
 ecclesiastical rule. It was agreed that temporal and 
 spiritual power are alike conferred by God, but there 
 arose a violent conflict of opinion and doctrine as to 
 whether the temporal sword is conferred upon the 
 ruler directly by God or through the mediacy of the 
 Pope. Upon this question Guelphs and Ghibellines 
 were divided; and the old Saxon law took the side 
 of the temporal power in opposition to the old Suabian 
 law. 
 
 The doctrine of the "two swords" typifies the most 
 important political issue of mediaevalism. Upon it W. 
 
 1 II, qu. 120. "Epiikeia" of ArisMle. 
 
 ^ II, 2 qu. 78, art. 1, conclus. See also Berolzheimer, "Das Ver- 
 raogen (Hirth's Ann., 1904, pp. 601 seq.). Baumann, "Die Staatsl.," 
 etc., pp. 196-203. Aug. Oncken, "Geschichte der Nationalokon- 
 omie," I, pp. 132-135. 
 
102 BONDAGE OF MEDIEVALISM [Ch. IV 
 
 Grimm comments: ' "Christ bade his disciples buy a 
 sword, and when they brought two, he said, 'It is enough.' 
 Who would have thought that the biassed interpreta- 
 tion of these simple words, in which no unprejudiced 
 mind could suspect covert allusion, should for centuries 
 serve to justify the rival claims of the two greatest 
 of earthly powers!" The doctrine of the two swords 
 is a clear confirmation of the importance of "illusion" 
 in the practical or applied philosophy of law, which is 
 politics. A formal reasoning, in itself untenable, is used 
 to support a political view in reality growing out of 
 very different considerations. The Church party did 
 not limit itself to the fictitious establishment of its 
 position; and it welcomed the pseudo-Isidorian forgery 
 in support of its claims. 
 
 In the work "De regimine principum," Aquinas sets 
 forth the conception that the State is the product of 
 human needs and of the social nature of man. It is 
 justified in the interests of worldly virtue and general 
 welfare and would have existed regardless of the fall 
 of man. Monarchy is the best form of government; 
 it affords the largest security against tyranny. There 
 is no right of rebellion against the ruler ; but the omnipo- 
 tence of the Church stands superior to the State. The 
 State serves finite purposes; the Church ministers to 
 the soul, to morality, to eternal salvation. All earthly 
 kingdoms are subject to the Pope, and all rulers are 
 vassals of the Church.^ 
 
 Among the representatives of this doctrine, Augus- 
 tinus Triumphis (1243-1328) may be mentioned. He 
 sets forth the reasons why the power of the Pope alone 
 
 ^ Preface to Vridanke's "Bescheidenheit," Gottingen 1834, p. 
 LVII. See also pp. LVII-LXII. 
 
 2 "De regimine principum," lib. I, chaps. 1, 2, 6, 6, 8, 14; lib. 
 II, chap. 9; lib. Ill, chaps. 1-7; lib. IV, chap. 3. 
 
§22] SOCIAL RESTRICTIONS 103 
 
 is derived from God; while the temporal power is 
 conferred upon the earthly rulers through the Pope: 
 "in ministerium." ^ This position is also distinctly 
 presented by Peter de Andlo.^ 
 
 § 22. Economic and Social Restrictions. 1 : The Yeo- 
 man AND THE Citizen Class. Characteristic of the 
 internal political structure of the mediaeval State was 
 the class system and its economic bondage. The re- 
 sulting stratification of society affected the entire range 
 of human relations. The economic organization of the 
 Middle Ages was comprehensive, constituting at once 
 a legal, an economic, and a social bond. Any member 
 of a corporate guild was provided for; but at the same 
 time he was much more essentially a member of the 
 guild than he was his own master. In the course of 
 events there resulted a shifting of power of the several 
 classes within the State. Side by side with the feudally 
 organized nobles and large proprietors, there appeared 
 a new class — the middle class, as we should now call 
 them — a third party, composed in part of the yeomanry, 
 but mainly of citizens. The yeomen were essentially 
 freemen who had advanced from a dependent to an 
 independent class, from tenants to small farmers owning 
 
 ' Principal work: "Summa de potestate papse'' (about 1320). 
 The edition I refer to is "Summa Augustini de Ancona de potestate 
 ecclesiastica," 1473. See also Friedberg, "Die mittelalterlichen 
 Lehren iiber das Verhaltnis von Staat und Kirche," pp. 93-110. 
 Lasson, "System der Rechtsphilosophie,'' p. 81. 
 
 ' Petri de Andlo, "De imperio Romano, regis et augusti creatione, 
 inauguratione . . . libri duo; ad Fridericum III imp. scripti, 
 Argentorati 1603." Characteristic are lib. I, chap. 1, and lib. II, 
 chap. 9: "An maiestatis Imperialis auctoritas derivetur in Caesarem 
 immediate a Deo, vel illam accipiat ab eius vicario summo." See 
 especially p. 107. 
 
 Consult also Stahl, "Geschichte der Rechtsphilosophie," pp. 57, 
 63; Rehm, "Geschichte der Staatsrechtswissenschaft," p. 204. 
 
104 BONDAGE OF MEDIEVALISM [Ch. IV 
 
 their own estates. Yet in many cases they remained 
 \^ithin the dependent classes, and subject to the eco- 
 nomic organization of the village community. The 
 importance of the citizen class, however, steadily in- 
 creased with the appearance and growth of a new eco- 
 nomic condition, which brought about the transition 
 from an economics based upon natural commodities 
 to one based upon finance; or, inasmuch as these terms 
 express merely the external medium of exchange, it is 
 better to call the transition one from simple agriculture 
 to agriculture combined with commerce and industry. 
 The prosperity of the cities and the development of the 
 citizen class to a powerful and wealthy class of the 
 community followed upon the growth of industry and 
 commerce. 1 
 
 2: The Economic Influence of the Church. The 
 spirit of the mediaeval Church influenced all social 
 strata. The Church of those days was Janus-faced, at 
 once a tender protector and a cruel foe, an instrument of 
 civilization and an obstacle to true progress, forbearing 
 and likewise harshly intolerant. Those who acknowledged 
 the power of the Church shared in its blessings; 
 but a relentless persecution pursued those who, in 
 large or small issues, questioned the prerogative of 
 spiritual rule. The cultural influence of the mediaeval 
 Church was exercised through instruction in the 
 schools of the monasteries, through the maintenance of 
 libraries, ministrations to the sick, and aid to the poor. 
 The cultural and ethical functions of the State, although 
 a temporal service, were exercised by the Church. The 
 
 ' V. Inama-Slernegg, "Deutsche Wirthschaftsgeschichte," III 
 2, p. 234: "The political economy of the German cities is domin- 
 ated throughout by the idea that industry and trade can prosper 
 only under local co-ordination and the legal regulation of the civic 
 commonwealth. ' ' 
 
§22] SOCIAL RESTRICTIONS 105 
 
 Church suppressed every independent agitation hostile 
 to the dominance of the priesthood over the emotional 
 life; and thus apostasy, heresy, and schism became 
 crimes. The papal excommunication outlawed and 
 ruined its victims, inasmuch as its ban affected all 
 economic and social ties. The papal power could bind 
 or relcELse; it could cancel even the oath of the vassal. 
 Even the emperor, if under the ban, would be without 
 rights — a helpless, detached stranger in his own country. 
 The Church adapted its measures to the coarse 
 manners of the times. The lords and serfs of the Middle 
 Ages enjoyed a superabundance of physical energy and 
 strong nerves. The public infliction of punishments, 
 cruel and disfiguring, seems to have been a gratifying 
 spectacle to a sensation-loving populace; the surplus 
 energies of the lords and their retinue were thus diverted. 
 The Crusades became welcome outlets for the overflow 
 of unemployed energy. Pillaging expeditions to the 
 Orient took the place of the bouts of the knights and 
 their followers, and enjoyed the papal favor as under- 
 takings for the greater glory of God; through them 
 the countries of central Europe became acquainted with 
 the resources of the Orient. The spoils of war turned 
 out to be valuable merchandise. Luxury increased and 
 extended; precious stuffs, choice pearls, jewels and orna- 
 ments were highly prized. The Crusades gradually 
 assumed the character of commercial raids; they became 
 huge caravans bent upon spoliation.' Along with treas- 
 ures, the plague made its disastrous entry into Europe. 
 
 ^Laurent, "La feodalite et I'eglise," p. 630: "The feudal system 
 recognized no other mission for society than warfare. For two 
 centuries it found its ideal and immortal glory in an organized 
 pillage of the Orient. The Crusades, which began as expressions 
 of religious fervor, were in the end conducted in the commercial 
 spirit and for the satisfaction of luxury.'' 
 
106 BONDAGE OF MEDI/EVALISM [Ch. iv 
 
 When its devastations began to decimate the population, 
 when want and failure of crops brought the discontent 
 of the masses to a ferment, the resentment of the mul- 
 titude was diverted; witches and conjurors were burned; 
 Jews were persecuted, abused, and put to death, and 
 their property, acquired by usury, plundered by the 
 mob. The oriental raids were carried on at home. 
 
 3 : The Crafts and Trades. The economic activities 
 of the city were directed by a corporate spirit. The 
 city as a whole became an organized body divided into 
 a group of minor corporations. The artisans of every 
 craft were associated in guilds; and each guild formed 
 a power in the community, bringing to its members 
 at once influence and income, esteem and prosperity, 
 while the independent craftsman had no standing. ^ 
 
 Politically organized industry was far more powerful 
 than the growing commerce. Commerce was younger, 
 enjoyed less esteem at home, and was largely in the 
 hands of Jews. Furthermore the nature of commerce 
 did not lend itself to so rigid an organization as the 
 crafts. In commerce individuality was more prominent ; 
 and for this reason civic economics was mainly devoted 
 to the interests of the crafts, and the nucleus of the 
 new third party was formed by the crafts guilds. The 
 merchants were enjoined to maintain a ' 'justum praetium," 
 a fair price. They were permitted to earn a livelihood 
 for themselves and their families, but not to exploit the 
 productive classes. A minutely organized police regu- 
 lated the market to maintain a fair proportion between 
 
 'V. Inama-Slernegg, "Deutsche," etc., Ill, 1, p. 83: " Anv 
 artisan who did not acquire the right to belong to a guild was so- 
 cially and economically debarred. As an industrial interloper or 
 the like (in modern phraseology, 'scab,' German, 'Bonhase') he 
 was not reckoned as a citizen. Indeed the toleration of his presence 
 in the city was often in doubt." 
 
1 22] SOCIAL RESTRICTIONS 107 
 
 service rendered and price demanded. ' The organized 
 trades flourished briskly while commerce grew but 
 slowly, mainly by wholesale export of wine and fruits 
 from the South to the North, and by exchange, at the 
 great fairs, of the products of Orient and Occident. 
 
 While the powerful organization of the guilds repre- 
 sented the economic bonds within the community, the 
 civic community became the economic unit as against 
 foreign territories. The requirement of the artisan to 
 join a guild was supplemented by a control of the market. 
 This was of value at once for the purchaser and for the 
 seller. "Just as the city producer had an exclusive 
 market for his product within the city and seignorial 
 limits, so the city consumer demanded within these 
 limits an exclusive right of purchase as against outsiders." 
 A consequence of such policy and of the resulting eco- 
 nomic situation was that concessions and a fair market 
 became valuable assets and definite objects of trade." 
 
 Economic advance in the Middle Ages was parallel 
 with that of law and general culture. Civilization is 
 ever homogeneous; the Church, the law, and industry 
 jointly secured to loyal citizens an adequate livelihood, 
 and gave them a share in the gay mediaeval festivals, 
 preserved to us in the pictorial representations of those 
 times. It was only as a member of the corporate body 
 and as a permanent part thereof that the individual made 
 an impression. He enjoyed a recognized place in the 
 community as a part of the whole, not as an independent 
 personality. Reactionary agitations did not arise, or 
 
 ^Lamprecht, "Deutsches Stadteleben am Schluss des Mittel- 
 alters," p. 121; Georg Adler, "Der Kampf gegen den Zwischen- 
 handel" ("Die Zukunft," 1896, Vol. 15), pp. 548 seq. August 
 Oncken, "Geschichte der National-okonomie, I, pp. 129-132. R. 
 Kaulla, "Die Lehre vom gerechten Preis in der Scholastik." Z. f. d. 
 ges. Staatsw., edited by Bucher, Vol. 60, 1904, pp. 579-602. 
 
108 BONDAGE OF MEDI.EVALISM [Ch. IV 
 
 if they arose, were put down by the temporal or eccle- 
 siastical authorities. 
 
 § 23. More Liberal Trends of the Middle Ages. 1 : Dante 
 Alighieri (1265-1321)1 was the philosopher-poet of 
 romantic medisevalism. In "De Monarchia" he con- 
 sidered the establishment of a world empire, but made 
 the Roman people the medium thereof, and looked to 
 the emperor to renew the ancient Roman universal 
 sovereignty.^ The relation between Pope and Emperor 
 was not that of sun and moon, nor was the doctrine of 
 the two swords applicable. Constantine's donation [the 
 supposed historical basis of the temporal power of the 
 papacy] was likewise null and void. The emperor de- 
 rived his authority from God and was thus not subject 
 to the Pope.' Dante, loyal to the Catholic faith, was 
 imbued with a modern attitude towards economic inter- 
 ests, though under the sway of the romantic appeal of 
 the ancient Roman Empire. 
 
 2: William of Occam ^ (1270-1347) proceeds on the 
 basis of "natural law." Before the existence of the 
 State all property was communal. Natural law led 
 humanity by way of contract to found the State; and 
 thereby was created the authority of government. But 
 
 ^ On this period see Zorn, "Zur Geschichte des Verhaltnisses von 
 Staat und Kirche am Ausgange des Mittelalters," Preussische 
 Jahrb., Vol. 45, 1880, pp. 439-470. Prutz, "Staatengeschichte des 
 Abendlandes im deutschen Mittelalter von Karl dem Grossen bis 
 auf Maximilian," Vol. 2, Berlin 1887. 
 
 2 "De Monarchia," libs. I and II. 
 
 ' "De Monarchia," lib. Ill: "Come I'officio del monarca, ovvero 
 dell' impero, dipende immediatemente da Dio." It is similar in 
 the edition of 1740: "Qualiter officium Monarchae, sive Imperii 
 dependet a Deo immediate." 
 
 ^ "Disputatio super praelatis ecclesiae atque principibus terrarum 
 commissa, temporibus Bonifacii VIII. pont. Rom. scripta sub 
 forma dialogi inter clericum et militem (about 1303)." 
 
§23] THE MIDDLE AGES 109 
 
 the public rights are invested in the people as against 
 the ruler; and theirs, too, are the Church rights as 
 against the Pope. The temporal power is established 
 through the people, yet its source rests with God since 
 it is based upon accord with the divine order. 
 
 3 : Marsilius of Padua and the Sovereignty of the 
 People. In collaboration with his friend, John Gian- 
 done, Marsilius of Padua (d. 1328) wrote the famous 
 "Defensor Pads." In it is advocated the doctrine of 
 the sovereignty of the people. All political power is 
 vested in the people; the ruler is chosen by them, and 
 should he overstep the authority vested in him by the 
 people, he may be deposed. "^ The Church is subject 
 to the temporal authority and has no temporal powers.^ 
 The temporal power is derived from God; there is no 
 authority superior to the "legislator humanus."' 
 
 LupoLD VON Bebenburg is another exponent of the 
 doctrine of the sovereignty of the people. Hierynomus 
 Balbus appraises critically the arguments for and against 
 the independence of Emperor and Pope. He concludes 
 that the papal and imperial sovereignty are collateral 
 and independent, and extend over different spheres of 
 influence. The imperial power is in reality conferred 
 by election, the coronation being but a formality that 
 confers no new rights. ^ 
 
 4 : NicHOLAus CusANUs (1401-1464) , whose chief work 
 is the "Concofdantia Catholica," takes an independent 
 position. According to him the State is established by 
 the voluntary subjection of individuals through con- 
 
 » I, chaps. 3, 4, 6, 9, 12, 15, 18. 
 
 2 II, chaps. 8, 9, 13, 17, 20, 28. 
 
 3 II, chap. 21. 
 
 ^"DeCoronatione," pp. 16-38; 38-46; 58-64, 68-71. It was 
 also not necessary that the coronation should take place in Rome, 
 de cor., pp. 71 seq. 
 
no BONDAGE OF MEDIEVALISM [Ch. IV 
 
 sensus of action. The monarch is the representative 
 of the collective will of the people. The Pope is urged 
 to restore the temporal inheritance of St. Peter to the 
 Emperor, and to place the Church under the powerful 
 protection of temporal authority. 
 
 5: The writings of Niccolo Machiavelli (1469-1527) 
 stand apart from those of his predecessors alike in form 
 and content. In feeling and thought he no longer be- 
 longs to the Middle Ages, but is the issue of a different 
 phase of culture; he belongs to the Renaissance, and 
 must be judged and appreciated by its standards. He 
 is the Colleoni of politics. In his "Prince" he portrays 
 a ruler after the model of Caesar Borgia, a monarch 
 who acquires control over a servile State through bold 
 intrigue and determination. Ethical motives are disre- 
 garded; whatever makes for power is permissible. In 
 his portrayal of brute force, of self-seeking ambition 
 pushing its way in the struggle for p'ower, Machiavelli 
 shows himself a brilliant writer and a master of 
 expression. 
 
 The "Prince" was written to serve as a recommendation 
 to Lorenzo de Medici. In this connection it was unfor- 
 tunate that Machiavelli had previously expressed his 
 views in his historical work upholding, on philosophical 
 and political grounds, the constitution of the ancient 
 Roman Republic as the model for all good government, 
 and especially for the city-republics of Italy. To every 
 critic of Machiavelli the inconsistency of these two posi- 
 tions is perplexing, and leads to wide diversities of opin- 
 ion. A bourgeois morality, quite aside from time or 
 place, would unreservedly condemn Machiavelli; for 
 by its standards, talent would be of no avail if unsup- 
 ported by good intentions. Machiavelli certainly ex- 
 hibits an unparalleled lack of principle, a shocking 
 frankness in expressing what others would hardly dare 
 
123] THE MIDDLE AGES 111 
 
 to think; yet the serious charge against him is his con- 
 temptible lack of principle in deserting one cause for 
 another; and that for adventitious reasons. The his- 
 torian comes to Machiavelli's rescue, and suggests that 
 the salvation of Italy from the perils of the day seemed 
 to Machiavelli to require the drastic measures of a tem- 
 porary despotism. Thus considered the "Prince" be- 
 comes a patriotic document. The historian of culture 
 looks upon Machiavelli as a classic expression of his 
 times, as the morally emancipated man of the Renais- 
 sance for whom power and might were supreme, and in 
 whom were combined notable failings. The student 
 of the philosophy of law recognizes in him a reversion 
 to ancient views in which the ethical ideal had not yet 
 been awakened; he thus becomes representative of a 
 transitional civilization that had freed itself from the 
 shackles of the Church, but had not yet assumed the 
 obligation of a humanitarian ethics. 
 
112 CIVIC EMANCIPATION [Ch. V 
 
 CHAPTER V 
 
 CIVIC EMANCIPATION: AND THE RISE AND 
 DECLINE OF "NATURAL LAW" 
 
 THE REFORMATION AS A STIMULUS TO INDIVIDUALITY.— GRO- 
 TIUS.— THE REBELLION AGAINST TYRANNY,— LEGAL PHILOSOPHY 
 OF THE SEVENTEENTH CENTURY: (1) HOBBES; (2) PUFENDORF; 
 (3) SPINOZA; (4) THOMASIUS.— LEGAL PHILOSOPHY IN ENGLAND: 
 (1) LOCKE; (2) BENTHAM; (3) MILL, AUSTIN.— LEGAL PHILOSOPHY 
 IN FRANCE: (1) MONTESQUIEU; (2) ROUSSEAU; (3) DIDEROT; (4) 
 GODWIN.— LEGAL PHILOSOPHY IN GERMANY: (1) LEIBNITZ; (2) 
 WOLFF; (3) FREDERICK THE GREAT.— MERCANTILISTS AND PHYSI- 
 OCRATS: (1) THE SYSTEM OF COLBERT; (2) QUESNAY AND OTHER 
 PHYSIOCRATS.— THE CLASSICAL ECONOMISTS: ADAM SMITH, RIC- 
 ARDO (1) INDUSTRIAL DEVELOPMENT, THE ECONOMICS OF ADAM 
 SMITH; (2) RICARDO; (3) SAY; (4) MALTHUS.— KANT, FICHTE, SCHO- 
 PENHAUER: (1) KANT— (a) THE HISTORICAL POSITION OF KANT, 
 (b) KANT'S ETHICS, (c) KANT'S PHILOSOPHY OF LAW, (d) THE ORIGIN 
 AND THE PURPOSE OF THE STATE, (e) THE PRESENT SIGNIFICANCE 
 OF KANT'S PHILOSOPHY; (2) FICHTE — (a) THE POSITION OF FICHTE, 
 (b) FICHTE'S PHILOSOPHY OF LAW, (c) FICHTE'S PHILOSOPHY OF 
 ECONOMICS, (d) LAW AND CULTURE, (e) FICHTE AS A STATESMAN; 
 (3) SCHOPENHAUER.— SCHELLING AND THE HISTORICAL SCHOOL: 
 
 (1) SCHELLING; (2) OTHER MEMBERS OF THE HISTORICAL SCHOOL.— 
 HEGEL AND THE HEGELIANS: (1) HEGEL'S PHILOSOPHY OF LAW; 
 
 (2) LAW AND THE HUMAN WILL; (3) HEGEL'S DIALECTIC; (4) HEGEL'S 
 CONCEPTION OF THE STATE; (5) FUNDAMENTAL LEGAL IDEAS, 
 PERSON, PROPERTY, INJURY, CRIME; (6) A CRITICAL VERDICT OF 
 HEGEL; (7) THE HEGELIANS.— RECENT SYSTEMS OF LEGAL PHILOS- 
 OPHY: (1) STAHL; (2) TRENDELENBURG; (3) KRAUSE; (4) AHRENS; 
 (5) HERBART; (6) DAHN; (7) LASSON. 
 
I 24] STIMULUS TO- INDIVIDUALITY 113 
 
 § 24. The Reformation as a Stimulus to Individuality. 
 The interest of the historian of the Reformation is di- 
 rected to the conditions that made possible so profound 
 an intellectual readjustment; to such an interest the 
 series of underlying changes are of prime importance. 
 But for the philosopher the significant fact is the cul- 
 tural mission of that intellectual awakening. The Refor- 
 mation inaugurated not merely a new epoch, but the 
 modern spirit itself as extending to and finding its cul- 
 mination in our own day. The distinctive characteristic 
 of the Middle Ages may be said to be the bondage, 
 social and spiritual, of the individual; by contrast the 
 period of the Reformation is characterized by the eman- 
 cipation of classes and individuals. A survey of this 
 process of emancipation, unique in history and extending 
 over four centuries, discloses the limitations and inad- 
 equacy of the materialistic view of history ; for it is ever 
 a great idea that vitalizes and fertilizes the soil in which 
 important economic changes mature. It must be con- 
 ceded that circumstances — that is, the prevalent eco- 
 nomic and cultural state of affairs — must be favorable 
 to the growth of the new idea; but the decisive condi- 
 tion ever remains the creation and formulation of the 
 attitude itself. Intellectually and spiritually the pro- 
 cess of emancipation began with the Reformation; the 
 French Revolution, proclaiming the rights of man, 
 developed it formally; and its economic and social 
 consummation was reserved for the social-ethical 
 movement at the close of the nineteenth century. 
 
 In the sixteenth century the Teutonic spirit revolted 
 against the yoke of Rome. It was by virtue of the popu- 
 lar appeal in Luther's language and teachings, and by 
 virtue of the Germanic^ spirit in his mental attitude, 
 
 ' Harnack, "Das Wesen des Christentums," p. 177: "As the 
 oriental phase of Christianity is called the Greek, and the mediaeval 
 
114 CIVIC EMANCIPATION [Ch. V 
 
 that he won adherents to the new cause. The tutelage 
 of Rome was becoming oppressive, and the corruption 
 and decadence of church officials were peculiarly objec- 
 tionable to Teutonic feelings. The Roman faith wa? made 
 to suffer for the faults of its priests. The weaknesses of the 
 emperors brought on the destruction of the ancient Roman 
 empire, and the sins of the popes that of the new. 
 
 In this connection attention may be called to the influ- 
 ence of "illusion" in history; for it seems to be the case 
 that the issues of great historical movements are not 
 the ends proposed, but the fulfillment of a cultural mis- 
 sion which they undesignedly serve. The deliberate 
 purpose of the Reformation was the reform of religion — 
 an end imperfectly attained in Teutonic countries, and 
 hardly at all in those under Roman dominion. The cul- 
 tural mission of the Reformation was to vitalize individ- 
 ual freedom, and this end was indeed first achieved by 
 the Reformation. The Reformation broke the power 
 of the Church by placing the individual in direct rela- 
 tion with God. Through Luther's translation of the 
 Bible, the word of God was made available to the people; 
 celibacy was abolished; the overweening dominance of 
 the priests was swept aside; men were liberated from 
 the oppression of the Church;^ the dominion of the tem- 
 poral power was restored. 
 
 occidental phase the Roman, so one may call the Protestant phase 
 Germanic; and this despite Calvin, who indeed was a disciple of 
 Luther and whose influence has been most permanent not among 
 the Latin races but among the English, Scotch, and Dutch.'' See 
 a.\so Laurent, "La feodalite et reglise,"p. 455: "As a man of action 
 Zwingli is inferior to Luther, for the latter had that admirable 
 sense that distinguishes practical men — the sense for the possible. 
 Zwingli demanded of humanity more than it was able to give in 
 the sixteenth century." 
 
 1 Harnack, "Das Wesen des Christentums," p. 172. "Protestan- 
 tism looks upon the Gospel as so simple, divine, and therefore truly 
 
§25] HUGO GROTIUS 115 
 
 § 25. Hugo Grotius. Grotius (1583-1645) may be re- 
 garded as the Descartes of legal philosophy. As the 
 Cartesian "cogito ergo sum" became the point of de- 
 parture of rationalistic philosophy, so the establish- 
 ment of government and law upon reason made Hugo 
 Grotius the founder of an independent and purely ration- 
 alistic system of natural law.^ The conception of "nat- 
 ural law" was not wholly novel but appeared vaguely 
 in the later Middle Ages. According to Grotius, "natural 
 law" is unrelated to the will and existence of God;^ for 
 the State is a human institution and is based upon con- 
 tract.' Law is a human creation and arises from the 
 social impulse — as Aristotle* had indicated — and from 
 
 human, that it is most assured of acceptance when free to make its 
 own appeal, and produces upon all essentially the same experi- 
 ences and convictions." See also Bergemann, "Ethik als Kultur- 
 philosophie," p. 199. 
 
 'On "'natural law'' in general see Bergbohm, "Jurisprudenz und 
 Rechtsphilosophie," I; Jellinek, "Allgemeine Staatslehre," pp. 314- 
 323; Stammler, "Wirthschaft und Recht," pp. 169-188; "Die 
 Lehre von dem richtigen Rechte," pp. 93 seq. 
 
 *"De jure belli ac pacis." Proleg. : "Et haec quidem quse iam 
 diximus, locum haberent (i.e., the existence and the compelling power 
 of natural law) etiamsi daremus, quod sine summo scelere dari 
 nequit, non esse Deum, aut non curari ab eo negotia humana." 
 "De jure belli ac pacis," I, 1, 10: "Est autem jus naturale adeo 
 immutabile, ut ne a Deo quidem mutari queat." 
 
 •1,4, 7 seq.: "Notandum est . . .homines . . . sponte adductos 
 experimento infirmitatis familiarum segregum adversus violentiam, 
 in societatem civilem coiisse." 
 
 ^Grotius frequently refers to Aristotle, still more frequently to 
 Cicero, and occasionally to Seneca. Grotius does not consistently 
 adhere to the social impulse as the basis for the formation of 
 the State. For example, in the following definition, which shows 
 the direct influence of Cicero: "The State is a perf-ect association 
 of free men, established for the benefits of law and the common 
 welfare." 
 
116 CIVIC EMANCIPATION [Ch. V 
 
 reason, that is, from the rational nature of man.i For 
 Grotius the formal philosophical problem and end is to 
 determine the source of the law of nations; for, as this 
 is not due to positive legislation, its basis must be found 
 in "natural law." The basis of the doctrine of "natural 
 law" is that the origin of the State, and of all that is 
 brought into being by the State, is due to contract. This 
 assumption carries with it any and all political positions 
 that one may desire to establish, and was frequently used 
 to establish the sovereignty of the people. 
 
 In his science of justice Grotius makes a distinction 
 between two orders of justice;^ the one division of legal 
 norms refers to legal relations of parity between equals, 
 and the other to the legal relations of ruler and subject.' 
 In judging the position of Grotius, we must bear in mind 
 that his purpose was to prove that a law of nations exists. 
 He was thus led to accept the postulate of "natural law," 
 since there was no recognized positive law between 
 nations. He attempted to prove his case by a study of 
 the legal issues of war; which appeared in the very title 
 of his work, "De Jure Belli ac Pacis." This approach 
 influenced the character of his entire presentation. The 
 problems of legal philosophy and of legal science were 
 not considered in themselves, but in their bearing upon 
 the legal aspects of war, its justification and its pro- 
 
 1 Particulariy I, 1, 10, 12. 
 
 2 "De jure belli ac pacis," I, 1, 3: "Sicut autem societas alia est 
 sine inaequalitate, ut inter fratres, cives, amicos, federates: alia 
 inaequalis ut inter patrem et liberos . . .: ita justum aliud 
 est ex aequo inter se viventium, aliud eius qui regit et qui regitur, 
 qua tales sunt: quorum hoc jus Rectorium, illud /Equatorium . . . 
 vocabimus." 
 
 ^ Upon the meaning given to punishment by Grotius ("malum 
 passionis quod infligitur ob malum actionis"), see Berolzheimer, 
 "Rechtsphil. Studien," pp. 86-92; and "Die Entgeltung im Straf- 
 rechte," pp. 130-133. 
 
§25] HUGO GROTIUS 117 
 
 cedure. The plan pursued was first to determine what 
 constitutes war, and then to consider the further ques- 
 tion as to what constitutes law as thus applied. 
 
 It must not be inferred from the prominence of wai 
 as the basis of legal principle that Grotius derives the 
 nature of law from its violation, that is, a positive con- 
 cept from its infringement or negation.^ Schopenhauer,- 
 reflecting his antagonism to Hegel, repeatedly sets forth 
 that wrong is the fundamental, primary, positive con- 
 cept, and that the concept of righfarises from it merely 
 as the negation or absence of wrong; and he refers for 
 support to "the first exposition of the concept as given by 
 Hugo Grotius, the founder of philosophic jurisprudence: 
 'Jus hie nihil aliud, quam quod justum est, significat, idque 
 negante magis sensu, quam aiente, ut jus sit, quod in- 
 justum non est.' "^ But in Grotius this passage is imme- 
 diately followed by the statement: "Est autem injustum 
 quod naturae societatis ratione utentium repugnat." If 
 this expression occurred at the outset of a systematic 
 work devoted to the philosophy of law, it would be fair 
 to conclude that the author derived the concept of right 
 from that of wrong. But in reality the statement, as it 
 occurs in Grotius, forms the transition from the defini- 
 tion of the concept of war to the consideration of justice. 
 According to Grotius "jus" has a threefold significance: 
 first as "justum," that which is just; second as "qualitas 
 moralis personae competens ad aliquid juste habendum 
 
 ^Geyer, "Geschichte und System der Rechtsphilosophie in Grund- 
 ziigen," p. 31: "Grotius thus begins with the concept of right in 
 the objective sense. He says, 'That is lawful which is not unlawful, 
 that is unlawful which by its nature is contrary to the interests of 
 reason and society.' Accordingly what makes rational and social 
 relations impossible — such as conflict and strife — is wrong." 
 
 2 See § 33, C. 
 
 ^ Schopenhauer: "Preisschrift uber die Grundlage der Moral," 
 Vol. 3, p. 598, § 17. 
 
118 CIVIC EMANCIPATION [Ch. V 
 
 vel agendum," that is, legal right in the concrete sense, 
 or claim; third as "lex," positive law, as constituted 
 law. "Lex" must here be understood in its broadest 
 sense as "rectum. "^ The "jus naturale" comes under the 
 third meaning of "jus," and forms the decisive factor 
 in the conception and nature of law. But the "jus nat- 
 urale" Grotius derives from the social impulses of man. 
 Whatever conforms to this social impulse is right; what- 
 ever opposes it is wrong. Wrong consists in that which 
 disturbs or interferes with the natural and social har- 
 mony. Hence to Grotius the positive conception is the 
 social unity or solidarity and the justice and law in 
 accord with it. Injustice and wrong become the true 
 negatives, and like all that deviates from the normal, 
 their assertiveness makes them conspicuous just because 
 they form a departure from the social harmony of life. 
 
 § 26. The Rebellion against Tyranny. For three 
 centuries the leaders of the movement of enlightenment 
 growing out of the religious struggles in France and 
 Scotland in the sixteenth century, who preached the 
 right of active rebellion and even of assassination against 
 tyrannical rulers, have borne the name of anti-monarch- 
 ists ("monarchomachs").^ The vogue of the appellation 
 illustrates the ready acceptance of an apt phrase even 
 by scholars. Yet it is somewhat misleading and fails 
 to express the inherent nature of the movement. The 
 hostility is directed not against the ruler but against 
 the tyrant; so that anti-tyrannical ("tyrannomach") 
 would be the more appropriate term. The monarch is 
 
 ' Compare the use made by Pufendorf of the word "recte" 
 ("De Jure Naturae et Gentium," I, 1, 20). 
 
 ''Gierke, "Johannes Althusius," Breslau 1880, p. 3, note 3, 
 comments (the expression is derived from Guil. Barclaius (Barclay) : 
 "De regno et regali potestate adversus Buchananum, Brutum, 
 Boucherium et reliquos Monarchomachos," libri sex, 1600. 
 
§26] REBELLION AGAINST TYRANNY 119 
 
 distinguished from the tyrant; the tyrant is the ruler 
 who oppresses the country and the people, the royal 
 exploiter, the despot.' The Reformation made war 
 upon the exclusive possession of men's souls by the 
 Church; "tyrannomachs" made war upon the enslave- 
 ment of men's bodies by their temporal masters; and 
 in this aspect of the campaign lay its cultural mission. 
 
 Two parties appear among the representatives of the 
 "tyrannomachs": the clerical or Jesuitical, eager to 
 break the tyrannical autocracy in the interests of the 
 Church; and the democratic, striving for the emanci- 
 pation of the people. Both parties find support in the 
 same authorities, partly in Scripture, and partly in 
 human reason. By both the rights of the people are 
 formulated substantially in the same terms, though 
 their arguments differ in detail. 
 
 The central doctrine of the political philosophy of 
 the "tyrannomachs" is the principle of the sovereignty 
 of the people. While this idea was frequently advanced 
 in ancient times, and was well developed in the Middle 
 
 ^ Thus Bodin, in "Les six livres de la Republique," in Book II, 
 chap. Ill, devotes a chapter to "La monarchie Royale,'' and in chap- 
 ter 4 considers in contrast thereto "La monarchie tyrannique"; 
 this he defines (p. 211) as "a monarchy in which the monarch vio- 
 lates the laws of nature, abuses the liberty of free subjects as of his 
 slaves, and the property of others as well as his own." (p. 212): "But 
 the most marked distinction between the king and the tyrant is 
 that the king obeys the laws of nature and the tyrant runs counter 
 to them." See also pp. 212-218. In chapter 6 the question is dis- 
 cussed as to "whether it is legitimate to attack the person of the 
 tyrant and after his death to annul and abrogate his ordinances." 
 Althusius, in chapter 38, pp. 650 seq., of his "Politica," discusses 
 some remedies against tyranny: "Tyranny is therefore contrary 
 to a right and just administration." p. 651: "A tyrant therefore 
 is one who by violating his oath of faith and religion attacks and 
 breaks the ties and foundations of the body-politic." On pp. 652- 
 658, the several kinds of tyranny are then distinguished. 
 
120 CIVIC EMANCIPATION [Ch. V 
 
 Ages, its use to further political revolution, and as a 
 text from which to preach the destruction of tyrants, 
 was reserved for more modern times. The religious 
 foundation of the doctrine, characteristic of mediaeval- 
 ism, is retained; yet at the same time it is supplemented 
 by arguments derived from the newer doctrine of 
 "natural law." The two tendencies unite in this 
 transitional period: the Bible is referred to for support, 
 but the appeal is to reason ; the evidence of faith gradu- 
 ally recedes, and that of theoretical principle comes 
 forward. 
 
 It will not be necessary to present the views of the 
 several "tyrannomachs." The important men of the 
 period, in addition to Junius Brutus, were Bodin and 
 Althusius. Gierke ' regards Althusius as the direct 
 precursor of Rousseau, and thus makes him an indirect 
 influence in bringing on the French Revolution; but 
 this view has been contested. Junius Brutus,^ in his 
 "Vindicice contra Tyrannos," discusses the right of 
 resistance against tyrants, and defends it on the basis 
 of casuistic and comprehensive arguments. The service 
 of Bodin (1530-1597) for philosophy lies in his analysis of 
 the conception of sovereignty as the distinctive char- 
 acteristic of the State. To him "sovereignty is the 
 highest, most permanent, unlimited, and hence in- 
 
 ^Gierke, "Johannes Althusius,'' p. 76, regards Althusius as the 
 founder of the theory of the social contract. In opposition thereto, 
 see JelUnek, "Allgemeine Staatslehre," p. 183. Liepmann, "Die 
 Rechtsphilosophie des Jean Jacques Rousseau," p. 22, holds that 
 Rousseau showed clearly the influence of Althusius. 
 
 ' Junius Brutus was formerly regarded as the pseudonym of 
 Hubert Languet. It is now held that the author of the "Vindiciae 
 contra Tyrannos" is Du Plessis-Mornay. The proof of this was fur- 
 nished by Lossen, "Die Vindicise contra Tyrannos des angeblichen 
 Stephanus Junius Brutus," Munich 1887, Sitzungsberichte der 
 bayer. Akademie der Wissenschaften, 1887, 2, pp. 215-242. 
 
§ 26] REBELLION AGAINST TYRANNY 121 
 
 divisible power, comprising the entire State, and 
 permeating all its functions. Such functions are the 
 power of making laws without being bound by laws; 
 the right to declare war; the deliverance of juridical 
 decisions as a last resort; arid the right of pardon, 
 taxation, coinage. The power of the State is limitless, 
 and thus not divisible." ^ Bodin properly emphasizes 
 the close connection between public and private au- 
 thority. He makes the existence of personal rights 
 the basis of the power of the State: "II n'y a 
 point de chose publique s'il n'y a quelque chose de 
 propre." ^ 
 
 In the systematic discussion of the theory of State and 
 society by Althusius (1557-1638), he distinguishes 
 between the contract of alliance, by which a community 
 is formed, and the contract of sovereignty, which forms 
 the foundation of public authority and of the coercive 
 nature of law.' The latter has the quality of a public 
 decree. The people, like every associated group, 
 "universitas," has the right to place at its head execu- 
 tives and to confer upon them full authority while yet 
 limiting it. When the people exercise such privilege, 
 the representatives whom they nominate under this 
 contract of sovereignty become merely administrators 
 of the governmental authority belonging to the com- 
 munity.* It is only by virtue of such a public com- 
 mission of the authority, which belongs wholly to the 
 people, that a legitimate government and regulation 
 
 ^Stintzing, "Geschichte der deutschen Rechtswissenschaft,'' 
 1884, II, pp. 34 seq. Bodin, I, 10: "Des Vrayes Marques de la 
 Souverainete." Five essential traits ("marques") of sovereignty are 
 there portrayed. 
 
 M, 1. 
 
 3 "Politica," chaps. I, 5, 10, 18. 
 
 <"Politica," chap. 18, §§ 1-14. 
 
122 CIVIC EMANCIPATION [Ch. V 
 
 can be maintained.' The government should never 
 become absolute, but always be limited by consideration 
 for the people, the true supreme and authoritative 
 master.^ By this means, will the sovereignty of the 
 people be strictly conserved, and their privileges 
 maintained. 
 
 § 27. Legal Philosophy of the Seventeenth Century. 
 1 : HoBBES. The evidence of men's distrust of one 
 another is everywhere apparent. Though at peace with 
 their neighbors, countries guard their frontiers and cities 
 by troops, walls, gates, and sentinels ; even in the interior, 
 where law and justice prevail and punishment awaits 
 evil-doers, the citizens go about armed. While States 
 and individuals thus show their fear and distrust, their 
 theories, contradicting . their actions, refuse to admit 
 fear as the motive of human conduct. "Studio contra- 
 dicendi aliis, contradicunt sibimet ipsis . . ." are the 
 words of Hobbes (1588-1679) addressed to the reader 
 in the preface to his "De Cive." The establishment of 
 government cannot be derived from the social nature 
 of man. The motive that has brought men together 
 socially must be sought in their practical intercourse.^ 
 Each individual regards his own interest and advantage ; 
 and self-interest alone is responsible for social institutions.^ 
 
 i"Politica," chap. 18, §§ 15-31, 84, 104, 123 seq., and chap. 
 19 § 2 seq.; chap. 38, §§ 121-129. 
 
 2 "Politica,"chap. 18, §§ 28-46, 105, 106; chap. 19, § 2 seq.; chap. 
 38, |§ 121 seq., 128-130. 
 
 ^ "De Cive," I, 2: "Quo . . . consiHo homines congregentur, 
 ex iis cognoscitur quae faciunt congregati." 
 
 *"De Cive," I, 2: "Omnis igitur societas vel commodi causa, vel 
 gloriae, hoc est, sui, non sociorum amore contrahitur. . . . Statuen- 
 dum igitur est, originem magnarum et diuturnarum societatum non 
 a mutua hominum benevolentia, sed a mutuo metu exstitisse." 
 
 Upon "Fear as Protection," Leonardo da Vinci has thus expressed 
 himself: "As enmity is a menace to life, so fear is a security." 
 
§ 27] THE SEVENTEENTH CENTURY 123 
 
 L.ife is the choicest of all possessions, and to minister to 
 its needs is the chief purpose of man ; ^ hence the general 
 prerequisite of all self-seeking activity is protection 
 and security, "pax queerenda." ^ This fundamental 
 requisite, due to fear, leads mankind from the troublous 
 state of nature, in which every man preys upon 
 the other, "homo homine lupus," and every man's 
 hand is raised against his neighbor, "bellum omnium 
 contra omnes," up to the civic state, whose central 
 function is to provide security by keeping faith, "pacta 
 servanda prsestanda." ' 
 
 The State does not deprive the individual of his natural 
 freedom, but merely relieves the terrors and anxieties 
 incident to savagery ; it maintains a comprehensive police 
 system. Yet in so holding Hobbes overlooks the fact 
 that the State, while notably lessening the uncertainties 
 of primitive conditions, introduces other artificial perils 
 of legally regulated intercourse. Hobbes' philosophy of 
 law reflects his personal view of life. His deep distrust 
 of human nature is increased by a keen observation 
 of human frailties and susceptibilities. He particularly 
 scores envy and vanity: whatever one man has or 
 
 "Leonardo da Vinci der Denker, Forscher und Poet," Marie Herz- 
 feld, Leipzig 1904, p. 120. 
 
 See also "Leviathan," chap. 13 (De religione): "Atque hinc 
 fortasse erat, quod veterum Poetarum aliquis, Deos primos a Timore 
 factos esse dixerit." 
 
 ' "De Give," I, 7: "Neque enim Juris nomine aliud significatur 
 quam libertas, quam quisque habet facultatibus naturalibus secun- 
 dum rectam rationem utendi. Itaque Juris naturalis fundamentum 
 primum est, ut quisque vitam et membra sua quantum potest tueatur." 
 
 "Leviathan," chap. 13: "Passiones quibus homines ad pacem 
 perduci possunt, sunt Metus, praesertim vero Metus Mortis 
 violentse." 
 
 ^ "De Give," \, 15; II, 2; III, 31; "Leviathan," chaps. 13, 14. 
 
 ' "Leviathan," chap. 15; "Le Gorps Politique," I, chap. 3, 1. 
 
124 CIVIC EMANCIPATION [Ch. V 
 
 strives for, the rest covet;' "Ubi enim non prsecessit 
 Pactum, ibi Jus nullum est translatum, sed omnia 
 omnium sunt." ^ Such a conception of government 
 and law leaves no place for the reserved rights of the 
 citizen. The State is an institution for protection, and 
 exercises its protective functions as completely as 
 power is concentrated in its hands. Accordingly, all 
 privileges and powers must be transferred to the State 
 by contract; for the State must rule absolutely and, 
 like the Leviathan, encompass all living things. Such 
 is the demand of despotism exercised in the interests 
 of subjects whose welfare is the conscientious concern 
 of the ruler.' 
 
 2: PuFENDORF. Hobbes marks a step backward in 
 the history of civic emancipation. Samuel von Pufen- 
 DORF'* (1623-1694) aims to combine the views of Hobbes 
 and Grotius, yet inclines to the position of the former. 
 According to Grotius the social impulse urges men to 
 socialize their condition, to found a State and to develop 
 law; according to Hobbes it is fear of mutual exter- 
 mination that drives men from the troublous primitive 
 condition to the security of civic order. Pufendorf 
 analyses man's natural disposition or nature, and finds a 
 strong natural egoism antagonizing his social impulses ; ^ 
 hence the social impulse cannot be accepted unre- 
 servedly as giving rise to the State, ^ especially as man 
 is equally endowed with ant -social inclinations: "in 
 
 1 "De Cive," I, 6; I, 2. 
 
 ^"Leviathan," chap. 15. 
 
 ' "De Cive," chaps. 10 seq. "Le Corps Politique," I, chap. 2; II, 
 chap. 9. 
 
 ^ "De Jure Nature et Gentium," libri octo, 1672. "De Officio 
 Hominis et Civis," 1693. Also works noted by E. Landsberg, "Ge- 
 schichte der deutschen Rechtswissenschaft," III, p. 19. 
 
 5 "De Jure Naturae et Gentium," I, VII, chap. 1, § 2. 
 . s "De Jure Nat.," I, VII, chap. 1, § 3. 
 
§27] THE SEVENTEENTH CENTURY 125 
 
 homine multa sunt vitia, civilem societatem perturban- 
 tia." ^ Nor is necessity an adequate ground for the 
 formation of the State ;^ it is the helplessness of man, 
 his exposure to the manifold perils of primitive con- 
 ditions, and his desire to avoid future ills, that consti- 
 tute the decisive factor.' In place of Hobbes' motive 
 of fear, Pufendorf advances concern for the future.* 
 While Hobbes regards the State as an instrument of 
 protection, Pufendorf regards it as a preventive alliance; 
 the distinction, however, is not a radical one. Yet 
 Pufendorf shows a sociological insight absent in his 
 followers; for, contrary to the usual presentation of 
 the doctrine of "natural law," the foundation of the 
 State is not derived by Pufendorf from the action of 
 the individual, but from the family, the"patres familias," 
 uniting together.^ While following Hobbes in his view 
 of the origin of "natural law," Pufendorf is opposed to 
 him in other matters. He regards the State as the result 
 of a series of contracts; such as a contract of alliance 
 in the interests of socialization; and a contract for the 
 constitution of the State, which in turn consists of the 
 
 1 "De Jure Naturae," I, VII, chap. 1, § 4: To the "avaritia," 
 "superbia," "crudelitas," "Deorum negligentia," "ambitio," men- 
 tioned by Sallust, Pufendorf adds, "Ineradicable remembrance of an 
 injury suffered, and fierce vengeance" ("Acceditvivacissimainjuria- 
 rum memoria et vindictae ardor"). 
 
 2 "De Jure Nat.," I, VII, chap. 1, § 6. 
 
 ' "De Jure Nat.," I, VII, chap. 1, §7: "Genuina igitur, et princeps 
 causa, quare patresfamilias, deserta naturali libertate, ad civitates 
 constituendas descenderint, fuit, ut prsesidia sibi circumponerent 
 contra mala, quae homini ab homine imminent.'' 
 
 * "De Jure Nat.," I, VII, chap. 1, §7: "Conspirant nobiscum, qui 
 causam civitatum metum statuunt; per quem hautquidquam intel- 
 ligitur perturbatio trepidantis et consternati animi, sad quaevis 
 prscautiofuturimali." See also De Jure Nat.," I, VII, chap. 2, §§ 
 1-5. 
 
 6 "De Jure Nat.," I, VII, chap. 1, |§ 6-12 
 
126 CIVIC EMANCIPATION [Ch. V 
 
 contract for the constitutional form of government; 
 and again the contract providing for the subjection of 
 the governed to the governing classes. ' The last, 
 according to Pufendorf, is not a one-sided contract, 
 investing the State with all the rights of the individual, 
 but a mutual contract; it insists equally upon the duty 
 of the governing classes to care for the common weal, 
 and thus constitutes a moderate absolutism.^ 
 
 Pufendorf 's ethics is essentially theological; the will 
 of God determines what is good and what is bad.^ 
 Pufendorf's relation to Grotius, as represented in his 
 exposition of the doctrines of natural law, was similar 
 to that, in a later period, of Wolff to Leibnitz. He 
 developed the system for which Grotius laid the founda- 
 tions; but in his hands Grotius' philosophy of law lost 
 through his utilitarian^ and theological^ tendencies. 
 As is commonly true of conventional and superficial exposi- 
 tions, Pufendorf's philosophy of law, despite its lesser 
 originality, found popular favor and maintained its 
 vogue for nearly a century. 
 
 1 "De Jure Nat.," I, VII, chap. 2, §§ 4-13. 
 
 It may here be noted that the distinction made by Rousseau 
 between "la volonte generale" and "la volonte de tous" is found 
 in Pufendorf, "De Jure Naturae," VII, 2, 8: "What therefore the 
 individual citizens desire, that the people as such does not desire; 
 and what the individual citizens do, is not to be regarded as the 
 action of the people; and vice versa." 
 
 2 "De Jure Nat.," VII, 2, 8 seq.; "De Officio Hominis et Civis," 
 I, II, chap. 11, § 3; "Generalis lex summorum imperantium est haec: 
 Salus populi suprema lex esto.'' 
 
 3 "De Jure Nat.," I, 1, chap. 6, § 9; "DeOffic. Hom. et Civis," I, 
 1, chap. 2, §§ 1-5. See aXso Zimmermann, "Das Rechtsprinzip bei 
 Leibniz," Vienna 1852, p. 3. 
 
 < "De Jure Nat.," I, II, chap. 3, §§ 14, 15. 
 
 ' "De Jure Nat.," 1, I, chap. 6, §§ 9-11: 1, II, chap. 3, §§ 19, 20. 
 "De Offic. Hom. et Civis," 1, I, chap. 2, §§ 1-5. 
 
§27] THE SEVENTEENTH CENTURY 127 
 
 3: Spinoza. Spinoza^ (1632-1677) contributed a not- 
 able doctrine to metaphysics, but also a fundamental 
 philosophical error. He stands out as a defiant rocky 
 headland, suggestive of power, but wholly aloof from 
 human interests. His distinctive philosophic contribu- 
 tion is the conception of pantheism. Schelling put 
 in the place of a realistic pantheism an idealistic one; 
 Goethe returned to the pantheistic position; while to 
 Hegel, pantheism resolved itself in universal reason. 
 Pantheism still forms the keynote of the modern opposi- 
 tion to realism. 
 
 The fundamental error of Spinoza's system is his un- 
 remitting adherence to pantheism carried to the con- 
 sideration of the details of the physical world and of 
 human action and purpose. Pantheism may be accepted 
 as a point of departure and as a goal, but is not to be 
 insisted upon in the procedure of scientific investigation. 
 Human knowledge begins where the conception of a chaos 
 giving way to cosmos through a pantheistic interven- 
 tion, is abandoned, and is replaced by the gradual 
 differentiation of the realms of knowledge.^ The panthe- 
 istic view discloses each individual object, not as inde- 
 pendent, but as an indispensable part of the cosmos. 
 The scientific attitude postulates the detachment of 
 objects from their meanings, and attempts their explana- 
 tion and interpretation, not in terms of an ultimate 
 purpose, "sub specie aeternitas," but in terms of their 
 specific nature, "principium individuationis."' By rea- 
 
 ^ Spinoza's works are: "Tractatus theologico-politicus," 1670. 
 "Tractatus politicus," a fragment, 1678, published after Spinoza's 
 death. "Ethica ordine geometrico demonstrata," 1677. (I cite 
 from the edition: Benedicti de Spinoza opera quotquot reperta sunt 
 recognoverunt van Vloten et Land, I, Hagae 1882. 
 
 ^Berolzheimer, "System der Rechts-und Wirtschaftsphilosophie," 
 Vol. I, pp. 131-135, and pp. 23-29. 
 
 ^ Berolzheimer,."System," etc., Vol. I, pp. 307 seq. 
 
128 CIVIC EMANCIPATION [Ch. V 
 
 son of his insistent adherence to the pantheistic prin- 
 ciple, Spinoza reaches a fatalistic determinism; a legal 
 philosophy and a science of politics are made impos- 
 sible, and attain an apparent reality by sacrifice of 
 consistency. 
 
 God is substance and there is no other substance than 
 God; all that is real rests in God.' Accordingly 
 Spinoza's view requires the world and its phenomena, 
 including man and his operations, to be conceived 
 as parts of nature ; he inevitably takes a position opposed 
 to the rationalistic philosophy which preceded and 
 followed him. In other philosophies man was set apart 
 as a phenomenon by himself; and nature was conceived 
 as an independent reality on the one hand, and man, 
 with his desires, aims, and considerations, equally self- 
 sufficient, on the other. The relation was conceived 
 as though man were the absolute master of his actions, 
 and as though his presence would disturb the order of 
 nature rather than be subjected to it as part to whole.^ 
 This detachment of man from nature, and self-sufficient 
 view of human activity, has at times led philosophers to 
 disown or to slight human impulses and emotions, 
 "affectus," instead of attempting an interpretation of 
 their true meaning. It is clearly a part of the problem 
 of philosophy to respect human passions and to give 
 them a place in a philosophical system.' 
 
 As a fact human desire and action are partly determined 
 by emotion, and partly by reason. In so far as man is 
 swayed by emotion he becomes a slave; and in so far 
 
 1 "Ethica," p. I, props. 11, 14, 15. 
 
 " "Ethica," p. Ill preface: "Namhominem Naturseordinemmagis 
 perturbare quam sequi, ipsumque in suas actiones absolutam habere 
 potentiam nee aliunde quam a se ipso determinari credunt." 
 
 Compare with this "Ethica," p. IV appendix, chaps. VII and I. 
 
 '"Ethica,'' p. Ill preface. 
 
§27] THE SEVENTEENTH CENTURY 129 
 
 as he is guided by reason he becomes free.' In his 
 ethical view Spinoza thus anticipates Kant; but the 
 development of his ethics suggests Aristotle and the 
 Stoics. While his insistence upon the ethical value of 
 knowledge is at once Socratic and Aristotelean, his ad- 
 herence to the equanimity conferred by wisdom is Stoic. 
 Spinoza distinguishes three orders of knowledge:^ the 
 highest refers and reduces everything temporal and in- 
 dividual to God. As the mind of man considers human 
 existence and activity "sub eeternitas specie," and gains 
 insight into the connection of every individual phenome- 
 non with the system of the universe, the stronger becomes 
 his conviction of the absolute inevitableness of events, 
 and the greater is the power which his will acquires over 
 his passions; the more deeply he feels himself at one 
 with the cosmos, the firmer his inalienable love of God 
 prevails over the vicissitudes of life.' The free moral 
 man entertains no depressing ideas of death; he is up- 
 right, and sympathetic with his neighbors; he is free 
 from the desires of passion, and is thus superior to the 
 ideas of good and evil.* Significant in Spinoza's pan- 
 
 ' "Eth.," p. IV: "De servitute humana seu de affectuum viribus"; 
 "Eth.," p. V: "De potentia intellectus, seu de Hbertate humana." 
 We here note the same ethical consideration which later made 
 Kant's ethics famous. Kant posits as an ethical fundamental 
 principle that man should develop his natural character into a 
 moral one; the natural character is not free, the moral character 
 is free. Spinoza as a determinist refrains from a moral sermon 
 and is content with establishing the correct data: the man who is 
 shaped by his passions, impulses, and desires, is their slave; the 
 man who is guided by reason is free, is master of himself. See also 
 "Eth.," p. V preface; p. IV, props. 63,67, 68, and the demonstrations 
 pertaining thereto. 
 
 ^Berohheimer, "System," etc., Vol. I, pp. 28 seq. 
 
 3 "Eth.," p. V props. 14-16, 22-33; p. IV, appendix, cap. IV, 
 p. II, prop. 44, cor. 2. 
 
 * "Eth.," p. V, props. 63, 67, 68, 71, 72. 
 
130 CIVIC EMANCIPATION [Ch. V 
 
 theism is his view of the identity of the favoring desire, 
 "virtus," and capacity, "potestas"; the placing on a 
 par of the conceptions, perfection, reality, and conduct, 
 in which conduct is identical with activity.' 
 
 Carried to a consistent conclusion, Spinoza's ethics 
 would hardly lead to a political organization; it might 
 lead to solipsism (subjective idealism) or autarchy (self- 
 sufficiency), to a passionless life of contemplation, to 
 a Stoic worldly wisdom, or to the detachment more 
 recently advocated by Stirner. But Spinoza was con- 
 fronted by the fact of political life as legally organized, 
 and attempted to solve the problem of bringing the 
 State and law under his pantheistic system, though 
 naturally with some violence to these conceptions. 
 
 Rationalistic philosophers assume a "natural law" 
 which they derive, not objectively from a consideration 
 of nature, but anthropocentrically from the rational or 
 social nature of man, from certain of his qualities, or 
 from the complex of human traits, dispositions, and 
 considerations. Spinoza, however, proceeds from a "nat- 
 ural law" derived from objective nature, from the 
 
 constitution of the universe: "Per jus Naturae in- 
 
 telligo ipsas Naturse leges seu regulas, secundum quas 
 omnia fiunt, hoc est ipsam Naturae potentiam." ^^ 
 
 ' "Eth.," p. V, prop. 40, deraonstrat. ; compare with this, "Eth.," 
 p. IV, prop. 54. 
 
 2 "Tractatus Politicus," chap. 2, § 4. Stahl, "Die Genesis der 
 gegenwartigen Rechtsphilosophie," p. 63, is wrong when he states 
 that "the later philosophers carry through definite, rationalistic 
 systems. Spinoza has established the canon of rationalism." 
 
 ^ In this foundation of "Naturrecht" Spinoza appears as a pure 
 Stoic, but the consistent adherence to Stoicism proves to be untenable. 
 He therefore finds a way out to convention, advantage, and epi- 
 cureanism. It is thus not correct to regard Spinoza simply as an 
 Epicurean, as does W. Ed. Biermann, "Staat und Wirthschaft," 
 I, pp. 7, 9. For Spinoza, epicureanism is a necessary makeshift, 
 a departure from his own system, an inconsistency. 
 
§27] THE SEVENTEENTH CENTURY 131 
 
 The study of nature teaches us that every creature 
 lives according to the laws of its kind. Fish are designed 
 to swim, and the larger ones to swallow the smaller ones. 
 In like manner man needs a sphere for the exercise of 
 his powers; and whatever man can achieve and accom- 
 plish, whether for good or for evil, is his natural right. 
 Whatever happens, takes place by virtue of the laws of 
 nature, and accordingly by a natural right. Everyone 
 has "a supreme right to all that he can achieve." What- 
 ever happens is right and in accord with right, for there 
 is no wrong; the wrong would be the impossible. So 
 far Spinoza is consistent; and his consistency leaves 
 no place for natural right. Right is might; there is no 
 order of right separable from the order of nature; 
 everyone may do what he can do, and that alone is 
 forbidden which nature makes objectively impossible — 
 in reality, nothing whatever. ' 
 
 Drawing upon Epicurus and Hobbes, Spinoza finds 
 a way out of this tangle. Utility, which demands the 
 choice of the lesser evil, leads mankind from an intol- 
 erable subjection to nature, to convention. The State 
 and the law are results of conventional association, ^ 
 and are determined and justified wholly by the utility 
 which apparently they secure. As, however, no legally 
 constituted law follows from natural law — ^not even 
 Hobbes' principle that "Pacta esse prsestanda" — util- 
 ity becomes the sole test, not alone for the establish- 
 ment, but as well for the validity and maintenance of 
 
 1 "Tract. Theol.-Pol.," chap. 16; "Tract. Pol.," chap. II, §§40 
 seq.; "Tract. Theol.-Pol.," chap. XVI: "Ex quibus sequitur, 
 Jus et Institutum Naturae, sub quo omnes nascuntur, et maxima 
 ex parte vivunt, nihil, nisi quod nemo cupit et quod nemo potest, 
 prohibere." 
 
 ^ For this Spinoza uses the phrases: "In unum conspirare"; 
 "pacisci"; "omne jus potestatem transferre." 
 
132 CIVIC EMANCIPATION [Ch. V 
 
 State and law.i Accordingly the government must pro- 
 vide for the common welfare, for otherwise there would 
 be danger of revolution and destruction of the State; 
 government is the sole surety against tyranny and abso- 
 lutism.^ As will readily be understood, this doctrine 
 exercised no influence upon political conditions. As com- 
 pared with the absolutism of Hobbes, Spinoza's view 
 of the State presents a point of advance in his emphasis 
 that a tyrannical absolutism carries the seed of its own 
 destruction; and in his further emphasis that no one 
 can relinquish his own human dignity; for which reason 
 authority should not and cannot be transferred to the 
 governing authorities.^ 
 
 4: Thomasius. The secularizing of legal philosophy, 
 undertaken by Grotius, was completed by Thomasius* 
 (1655-1728); a leader^ in the intellectual Renaissance, 
 and a popularizer of scientific learning. Utilitarianism 
 
 ^ "Tract. Theol. -Pol," chap. 16; chap. II, §§ 4 seq. See also 
 "Eth.," p. IV, props. (20), (38), 40, 73 (append., chaps. 15, 16). 
 In "Tract. Pol.," VI, I, III, 9, the constitutional agreement falls 
 into the background. See Menzel, "Wandlungen in der Staats- 
 lehre Spinoza," Festschrift der Rechts-und Staatswissenschaft- 
 lichen Fakultat der Universitat Wien fur linger, Stuttgart 1898, 
 pp. 57, 59-63, 83-85. The explanations made by Menzel are 
 somewhat extreme. The change is of no essential importance, as 
 the entire politics of Spinoza, as indicated in the text, is not derived 
 organically from his philosophy, but is merely attached to it on the 
 basis of Hobbes' principle of utility. 
 
 2 "Tract. Pol," chap. 4, § 6; "Tract. Theol.-Pol," chap. 16. 
 
 = "Tract. Theol," chap. 17. 
 
 ^ "Fundamenta Juris Naturae et Gentium," 1705. "Institutiones. 
 Jurisprudentiae Divinae," Francofurti et Lipsiae, 1688. The first 
 work furnishes a good standard for judging the philosophical and 
 legal standing and importance of Thomasius. 
 
 ^Whether and how far Thomasius, with reference to his later 
 works, was influenced by the study of Locke (see following pages) 
 cannot be definitely determined. 
 
§27] THE SEVENTEENTH CENTURY 133 
 
 is his ethical "• principle, yet does not occupy a notable 
 position in the development of his legal philosophy. 
 He divides law, "rectum," into three kinds: justice, 
 "justum," morality, "honestum," and propriety, "de- 
 corum." 2 The distinction is based upon the nature 
 of justice, which is made to consist in its external rela- 
 tion, not in the inner disposition, and may accordingly 
 be forcibly executed. The "lex positiva divina," as a 
 prescription that cannot be imposed, falls beyond the 
 pale of the law. There is a natural law^ and a positive 
 law.* The foundations of natural law Thomasius, like 
 Pufendorf, derives from a divine decree. But according 
 to Thomasius, natural laws are not issued by God as 
 commands, "ut legislator despoticus," but as a wise 
 admonition, "ut Pater, Consiliarius, Doctor,"^ addressed 
 to the heart.* 
 
 1 "Fundam. Jur. Nat. et Gent.," I, 1, chap. 6, §§21 seq.; chap. 
 4, §38. L. I, chap. 6, §21; "Norma universalis quarumvis actionum 
 et fundamentalispropositio juris naturae et gentium late sicdicti est: 
 Facienda esse, quae vitam hominum reddunt et maxime diuturnam 
 et f elicissimam ; et evitanda, quae vitam reddunt infelicem et 
 mortem accelerant." 
 
 2 "Fundam. Jur. Nat. et Gent.," I, 1, chap. 6, §§32^3,64, 66, 74, 
 75; I, 1, chap. 4, §§ 89-91; I, 1, chap. 5, § 47. Thomasius, in his 
 "Bericht von den kiinftigen Thomasischen CoUegiis und Schriften," 
 renders "honestum," by the German "Ehrbarkeit," and "decorum," 
 by "Wohlanstandigkeit." Lasson, "System der Rechtsphilosophie," 
 p. 74, translates "decorum," "dasSchickliche"; E. Landsberg,"Ges- 
 chichte der deutschen Rechtswissenschaft," p. 93, chooses the word 
 "Anstand" for "decorum." 
 
 ^ Which Thomasius derives from "ex sensu communi," as likewise 
 he designates his chief work, "Fundam. Jur. Nat. et Gent, ex Sensu 
 Communi Deducta." 
 
 * "Fundam. Jur. Nat. et Gent.," I, 1, chap. 4, |§ 54 seq., 77-83. 
 
 ' "Fund.," etc., I, 1, chap. 5, §§ 51, 52. 
 
 » "Fund.," etc., I, 1, chap. 6, § 15. 
 
134 CIVIC EMANCIPATION [Ch. V 
 
 In contrast to Hobbes, Thomasius takes the position 
 that, in themselves, contracts have no binding force.^ 
 He assumes innate rights ^ and also innate duties; 
 "obligatio connata." ^ As instances of the former he 
 mentions "libertas, communio primseva"; and of 
 acquired rights, "imperium, dominium." * He pro- 
 poses a formula of justice, which reads, "Do not to 
 another what you would not have another do to you." * 
 This principle is notable for the reason that Kant 
 derived from it his categorical imperative.^ Whether 
 this dictum has any further claims to consideration will 
 be examined in the survey of the Kantian philosophy. 
 The principle appears as an ethical precept in the early 
 Jewish-Christian writings. In the Book of Tobit (IV, 
 15) it is written, "Do that to no man which thou 
 hatest"; and again in St. Matthew (VII, 12), "All 
 things therefore whatsoever ye would that men should 
 do unto you, even so do ye also unto them: for this is 
 the law and the prophets"; and again in St. Luke 
 (VI, 31), "And as ye would that men should do to you, 
 do ye also to them likewise." 
 
 § 28. Legal Philosophy in England. 1 : Locke.' In 
 Locke's (1632-1704) theory of knowledge, sensation 
 
 '"Fund.," 1, 1, chap. 4, § 98: "Pactum non obligat immediate sed 
 mediante et praesupposito consilio et imperio juris naturae et posi- 
 tive." § 99; I, 1, chap. V, § 27: "Jam notatum fuit, pactum perse 
 non obligare, ergo nee potest per se jus aut producere, aut confirmare." 
 
 2 "Fund.," etc., I, 1, chap. 5, §§ 11, 12, 14, 27. 
 
 3 "Fund.," etc., I, 1, chap. 5, §§ 13, 14. 
 ^ "Fund.," etc., I, 1, chap. 5, § 12. 
 
 ^ "Fund.," etc., 1, 1, chaps. 6, 42; "(scil. primum principium) Justi: 
 Quod tibi non vis fieri, alteri ne feceris." 
 
 ° "Act only according to such maxims as would enable you to 
 will that they may become universal laws." "Grundlegung zur 
 Metaphysik der Sitten." "Collected Works," edition in 10 volumes, 
 Vol. 4, Leipzig 1838, p. 43. 
 
 '' Berolzheimer, "System," etc.. Vol. 1, pp. 29-33. 
 
§28] LEGAL PHILOSOPHY IN ENGLAND 135 
 
 or experience is made the source of all knowledge; 
 hence his philosophy of law and economics ^ proceeds 
 upon an empirical and not upon a rationalistic basis. 
 In contrast to the preceding systems of "natural law," 
 his procedure shows an essential advance, in that he 
 derives the condition antecedent to the State from the 
 study of the State as constituted, and eliminates there- 
 from whatever is presumably the result of the develop- 
 ment of the State itself and of the several institutions 
 within the State. This procedure is suggestive of the 
 Biblical account of the creation. Locke reaches the 
 following conclusions: Inasmuch as in the state of 
 nature it appears that creatures of the same kind and 
 of the same stage of development are born to like privi- 
 leges and equipped for the enjoyment of like capacities, 
 are free and equal without the one being subject to the 
 other, it follows that privilege or rule must have been 
 due to explicit assertion and direct establishment.^ 
 According to Locke, property exists in the state of 
 nature. God gave man dominion over the earth and 
 endowed him with reason, which he was to use to his 
 advantage and to the improvement of his manner of 
 life. God gave the world to men as a common right. 
 This was not a communal grant such as would apply to 
 the common land of a province or community, but 
 constituted a special type of ownership. The world was 
 a common possession; and everyone could acquire 
 property through labor and through occupation. To 
 
 '■Locke, "Two Treatises on Government," 1680. I cite from the 
 tenth edition of Locke's works. Vol. 5, London 1801. "Two Treatises 
 of Government." Book I, "Of Government," is of a polemical 
 nature, against Robert Filmer and his disciples; Book II, "Of 
 Civil Government," contains Locke's system of the philosophy of 
 state. 
 
 2 "Two Treatises," Book II, chap. 2. 
 
136 CIVIC EMANCIPATION [Ch. V 
 
 whatever degree anyone could make property service- 
 able, his possession extended.^ The condition antece- 
 dent to the State discloses a primitive form of the 
 acquisition of right. In such condition there exists 
 freedom, and on the basis of individual control over 
 possessions, ownership. So long as the natural condi- 
 tion persists, everyone is free; freedom, however, does 
 not mean license, but independence, and as such belongs 
 to all. To make possible the independence of all, the 
 assertiveness of each individual must be restricted. 
 Accordingly no one must so abuse his liberty as to "de- 
 stroy himself," or "harm another in his life, health, 
 liberty, or property." In order to avoid or check such 
 injury, "everyone has a right to punish the trans- 
 gressors of that law to such a degree as may hinder its 
 violation." ^ 
 
 In a state of nature, in which as yet there is no barter 
 and trade, legal relations lack security — a guaranty 
 which only the State can secure by the enforcement of 
 law. The desire to acquire such regulated security 
 leads to the establishment of the State. Consequently 
 there would be no object in having individuals sacrifice 
 more of their liberty and assign more of their rights 
 to the State than is necessary to secure the governmental 
 
 • "Two Treatises," Book II, chap. 5. The same conception is 
 found in Bluntschli, "AUgemeine Staatslehre," sixth edition, revised 
 by R. Loening, Stuttgart 1886, p. 287: "Private property, that is, 
 the control by the individual of material things, is as old as man 
 himself. When the first men gathered fruit from the trees, and used 
 it as food, they consciously exercised a dominion over it; that is, 
 they took it as their property. When they chose a cave and pre- 
 pared a regular, though transient abode, they also took possession 
 of it; when they covered their nakedness with leaves and threw 
 the skin of an animal over their body, they again acquired property. 
 Property was not created by the State. ' ' 
 
 " "Two Treat.," Book II, chap. 2. 
 
§ 28] LEGAL PHILOSOPHY INENGLAND 137 
 
 guaranty of right. In the contract with the State, 
 men assign only the power to punish, the right of 
 legislation and legal jurisdiction; and assign these only 
 so far as they may be requisite to secure individual 
 freedom and private ownership. The State thus serves 
 the interests of the common welfare; and the sphere 
 of its authority does not extend beyond this service. ^ 
 The authority of the government is derived from the 
 people. They make the laws and are the supreme 
 power. The monarch is only the executive. Unjust 
 laws are not binding. If the authority of the monarch 
 be abused, it may be repealed. ^ 
 
 There are two traits appearing in Locke's philosophy 
 of government and law that are characteristic of the 
 English attitude and mode of thinking in regard to the 
 relation of the individual to the State ^ — an attitude 
 that has found a more pronounced expression in English 
 legislation than in any other. The one is the high 
 regard for individual liberty, and the other the respect 
 for individual property. Locke's philosophy seems to 
 anticipate the constitutional State ("Rechtsstaat"), and 
 specifically, the English constitutional State, the Man- 
 chester State ("laissez faire" State). The high regard 
 for personal liberty' which appears in Locke is a con- 
 spicuous trait of the English national character ; and no 
 less so is the vigorous defense of private property. In 
 the construction and in the conclusions of his position, 
 Locke proves himself a thorough representative of his 
 national civilization. His ideas crystallize the attitude 
 and temperament of the English mind. 
 
 2: Bentham. As Pufendorf popularized the utili- 
 tarianism of Grotius, and Wolff that of Leibnitz, so a 
 
 i"Two Treat.," Book II, chaps. 11, 14, 18, 19. 
 
 2 "Two Treat.," Book II, chaps. 9, 11, 12, 15. 
 
 ' 'Two Treat.," Book I, chap. 1, and Book II, chaps. 2, 6, 8, 9. 
 
138 CIVIC EMANCIPATION [Ch. V 
 
 century later Jeremy Benthami supplemented Locke. 
 And as the mass of mankind hold to the fallacy that man 
 dwells upon the earth for his own happiness, Bentham's 
 doctrine of "the greatest happiness of the greatest 
 number" attained a popularity not accorded to the 
 sterner views of Locke. Bentham (1748-1832) cham- 
 pions an epicurean, individual type of utilitarianism.^ He 
 reduces the principle to the simple formula of the maxi- 
 mum summation of happiness — the greatest happi- 
 ness ^ of the greatest number. He combines a clear 
 insight with balance. He regards man not as a cultural 
 product, but as an automatic calculating machine, 
 mechanically registering the advantages and disadvan- 
 tages of every action; pleasures and pains* are entered 
 
 ^Bentham's chief legal philosophical work I consulted in the 
 French edition published by his scholar Dumont: "Traites de Legis- 
 lation Civile et Penale," 3 vols., Paris 1802. The new editions, Lon- 
 don 1858 and 1871, were not accessible to me. 
 
 " "Traites de Legislation," I, chap. 1, begins: "The public good 
 should be the object of the legislator; general utility should fur- 
 nish the basis of his arguments"; in regard to utility, he says (p. 
 13), that it "expresses the property or tendency of a thing to 
 prevent some evil or to procure some good. Evil is pain, or the 
 cause of pain; good is pleasure, or the cause of pleasure." 
 
 3 Vol. I, chap. 12, p. 98: "Morality in general is the art of directing 
 the actions of men so as to produce the greatest possible sum of 
 good. Legislation should have the same object." In the following 
 citations the limits between morality and law are developed. "Of 
 two opposite methods of action, do you desire to know which should 
 have the preference? Calculate their effects for good and evil, 
 and prefer that which promises the greater sum of good" (Vol. \, 
 chap. 13, p. 140). "He who adopts the principle of utility esteems 
 virtue to be good only on account of the pleasures which result 
 from it; and vice is an evil only because of the pains which it pro- 
 duces." (Vol. I, chap. 1, p. 4.) 
 
 ^ Bentham thus deduces a penological principle: Actions which by 
 their nature presumably or actually do more harm than good are 
 forbidden by legislation; an action thus forbidden is called a crime; 
 
§28] LEGAL PHILOSOPHY IN ENGLAND 139 
 
 and the balance brought forward.^ But in fact a 
 human being is neither a calculating machine nor a 
 walking ledger; he is a thinking organism. The human 
 mind is too complex and its motives too profound to be 
 reduced to a simple formula. Bentham ignores the true 
 ethical impulses in human nature unaffected by utility 
 and unrelated to prospective pleasure or pain.^ Ben- 
 tham's influence may be due, in large measure, to the fact 
 that he brought into ethics the embodiment of the 
 Anglo-Saxon practical sense. 
 
 3: Mill; Austin. The doctrines of Bentham were 
 developed by John Stuart Mill' (1806-1873). Utili- 
 tarianism remains the leading principle, yet Mill's posi- 
 tion is utilitarian only in its fundamental formula that 
 
 and to render the prohibition effective, punishment must be imposed. 
 Preventive measures against crime are assigned a large place. Vol. I, 
 chap. II, p. 89, and Vol. Ill, pp. 1-158. It is also notable that 
 the conception of property is affected by the utilitarian view. 
 "Property is merely the basis of expectation, the expectation deriv- 
 ing certain advantages from the thing possessed by virtue of the 
 relations established in regard to it." Vol. II, p. 33. 
 
 • Bentham's work, "Panopticon, or the Inspection House," 3 
 vols., 1791, stands for reform of punishment. Postscript, Parts I, II, 
 London 1791. "Panopticon" or the "Inspection House," written 
 1787, Dublin 1791. Compare with this "Traite de Legislation," 
 Vol. Ill, pp. 209-272. The German cellular prisons (at Moabit, 
 Nuremberg, etc.) were built upon the construction of the Panop- 
 ticon system first proposed by Bentham. 
 
 ^ From Bentham's point of view the opinion of a modern satirist 
 would be correct, namely, that sin is an emotional expression for 
 bad business. 
 
 'Among J. S. Mill's works it is not those dealing with political 
 economy — "Essays on some Unsettled Questions of Political 
 Economy," first edition, 1844; "Principles of Political Economy," 
 first edition, 1848 — that are most to be considered, but particularly 
 "On Liberty," second edition, London 1859, "Considerations on 
 Representative Government," 1861; "Utilitarianism," second edit., 
 London 1864; "System of Inductive and Deductive Logic," 2 vols. 
 
140 CIVIC EMANCIPATION [Ch. v 
 
 morality consists in the furtherance of the happiness of 
 all sentient beings.^ For Mill, man is not a calculating 
 biped, but a being endowed with an ethical nature. 
 This appears first in his emphasis of the fact that the 
 sympathetic qualities of man, the contacts of man and 
 man, are not exclusively determined by considerations of 
 utility, but as well by emotional factors which find their 
 origin in unconscious human impulses ; ^ and again in 
 his view that man has the power to modify and refine 
 his character. Human actions are determined, but not 
 inevitably and minutely. The will is free in so far 
 as man has the power to regulate desire by ideas and 
 motives, and so direct the will to accepted proper ends. 
 Human character is thus recognized as something grow- 
 ing, developing, as amenable to the moral motives of 
 self-culture.' The conclusions drawn by Mill from his 
 psychological analysis lead in practice to the abandon- 
 
 ' "Utilitarianism,'' chap. 2 ("What Utilitarianism is"), pp. 9 seq.: 
 "The creed which accepts as the foundation of morals utility or 
 the greatest happiness principle, holds that actions are right in pro- 
 portion as they tend to promote happiness, wrong as they tend to 
 produce the reverse of happiness. By happiness is intended pleas- 
 ure, and the absence of pain ; by unhappiness, pain, and the privation 
 of pleasure. . . . Some kinds of pleasure are more desirable than 
 others." 
 
 ' "Utilitarianism," chap. 3, pp. 39-51, chap. 5, pp. 62 seq. 
 
 ' "Utilitarianism," pp. 59-61. "Will, the active phenomenon, is a 
 different thing from desire, the state of passive sensibility." "Cor- 
 rectly conceived, the doctrine called Philosophical Necessity is 
 simply this: that, given the motives which are present to an indi- 
 vidual's mind, and given likewise the character and disposition of 
 "the individual, the manner in which he will act may be unerringly 
 inferred." ("Logic," p. 522.) "He has, to a certain extent, a power 
 to alter his character. . . . His character is formed by his circum- 
 stances . . . ; but his own desire to mould it in a particular way, is 
 one of those circumstances, and by no means one of the least influ- 
 ential." ("Logic," p. 524.) 
 
§29] LEGAL PHILOSOPHY IN FRANCE 141 
 
 ment cf utilitarianism. In his essay, "On Liberty," Mill 
 considers the limits of the authority of society over the 
 individual, and outlines the sphere of freedom for the 
 several portions of the community. In his "Considera- 
 tions on Representative Government, "^ he attempts to 
 establish representation as the best form of govern- 
 ment, and sets forth its nature and development.^ 
 
 John Austin ^ (d. 1859) was the founder of the Eng- 
 lish analytical school of jurisprudence, to which, so far 
 as he may be considered a jurist, John Stuart Mill also 
 belonged. The contributions of this school are charac- 
 terized by clearness and precision of thought; however, 
 they consider the fundamental questions of legal science 
 rather than those of legal philosophy.* 
 
 § 29. Legal Philosophy in France. 1 : Montesquieu. 
 Montesquieu ^ (Baron de la Brede, 1689-1755) is the 
 most striking example, in the history of legal philosophy, 
 
 ' Chap. 3: "That the ideally best form of government is repre- 
 sentative government." 
 
 ^ On Mill's "Law of Causation," see Berolzheimer, "System," etc., 
 Vol. I, pp. 133-135, 237 seq., 252. See also Berolzheimer, "Die 
 Entgeltung im Straf rechte, " pp. 40-109, 350-352, and the litera- 
 ture there cited; and also Berolzheimer, "Rechtsphil. Studien," 
 pp. 1-14. 
 
 ^ His chief works are: "Lectures on Jurisprudence or the Philoso- 
 phy of Positive Law" (fourth edit. rev. & ed. by Rob. Campbell, 
 London 1873), fifth edition, rev. & ed. by Rob. Campbell, 2 vols., 
 London 1885. 
 
 * For a list of the most important of these writings see Bergbohm, 
 "Jurisprudenz und Rechtswissenschaft," Leipzig 1892, p. 14, note. 
 
 ^"L'Esprit des Loix," 1748; new edit., Amsterdam 1755. My 
 citations are from this later edition. 
 
 The term "Esprit des Loix" Montesquieu interprets as "the sev- 
 eral relations which the law may have with various interests." 
 These relations he proposes to study; particularly the relation of the 
 laws "with the nature and principle of every form of government." 
 (Book I, chap. 3.) 
 
142 CIVIC EMANCIPATION [Ch V 
 
 of the fact that the formulators of fundamental political 
 principles exert a more decisive influence than do the 
 most eminent theorists. In a last analysis, Montesquieu's 
 ideas go back to Aristotle, but are decidedly modified 
 by the example of English legislation as interpreted in 
 France. He demands a threefold division of authority 
 in the State, "puissance legislative, executive, et de 
 juger," 1 and holds that these safeguard political liberty. 
 Such a division of authority preserves the dynamic 
 balance of power, automatically checks abuse, and makes 
 impossible the imperiling of civil liberty.^ This system, 
 
 ' "Esprit," etc., Book XI, chap. 6 ("De la Constitution 
 d'Angleterre"). 
 
 ^ "The political liberty of a citizen consists in that peacefulness 
 of mind arising from the feeling of security; and to have this free- 
 dom the government must be such that no citizen shall fear another." 
 (Book XV, chap. 6.) Montesquieu then sets forth that such security 
 against abuse of political power and against tyranny can be estab- 
 lished only by a proper division of authority. For Montesquieu the 
 general purpose of government is to secure political freedom. "In 
 order that authority shall not be abused, matters must be so 
 arranged that one authority shall check another. " (Book XI, chap. 
 5.) 
 
 The advantage of political freedom is set forth in Book XIX, 
 chap. 27; compare also Book XXVI, chap. 15. "These first laws 
 (political) gave men their liberty." See also Sorel, as cited above, 
 pp. 102, 103. In regard to the foundation of the State, Montesquieu 
 follows the principle of "natural law." "I have not derived my 
 principles from my prejudices but from the nature of things." 
 (Preface, p. iv.) In speaking of the laws of nature (Book I, chap. 2) 
 he says: "Fundamentally these laws are natural ones and are so 
 called because they are derived wholly from the constitution of our 
 nature. To understand them one must consider man in a condition 
 antecedent to the establishment of society. The laws of nature 
 will be those which he acquired in that state." (See also Book I, 
 chap. 3.) 
 
 Montesquieu refers to the influence of climate upon legislation, 
 especially in its bearing upon political freedom. The title of Book 
 XVII reads: "The relation of the laws of political slavery to the 
 
§29] LEGAL PHILOSOPHY IN FRANCE 143 
 
 however, is barren in that it is negative and makes the 
 protection of the citizen against tyranny ^ the sole 
 basis of government. Furthermore such protection is 
 to be secured mechanically, as though governors, offi- 
 cials, judges, and administrative officers were machines, 
 and laws and ordinances were physical instruments. 
 The success of his system shows how in the progress of 
 politics an argument resting upon an "illusory" basis may 
 exert an influence, when the political end which such 
 faulty reasoning supports, is approved. 
 
 2 : Rousseau. Opinions differ widely as to the value 
 of Rousseau's^ (1712-1778) position, as well as to its 
 sources and influence. His peculiar mind and tem- 
 perament must be taken into account. His personality, 
 character, and genius suggest a comparison with Schopen- 
 hauer. Both show the querulous hesitant temperament 
 of the neurasthenic, with its favorable as well as unfavor- 
 able influence upon intellectual development; both 
 display brilliance of thought, expressed in clear, terse, 
 artistic form; in both the larger and smaller irritations 
 of life were confronted morosely, with a self-centered 
 egotism; witness Schopenhauer's celibacy, and Rous- 
 
 nature of the climate." In Book XIX, chap. 27, he says: "I do 
 not say that the cHmate has produced a large share of the laws, cus- 
 toms, and manners of this nation, but I say that its manners and 
 customs may well have a decided bearing on its laws." 
 
 '■Siahl, "Die Genesis der gegenwartigen Rechtsphilosophie," 
 p. 218. Geyer, "Geschichte und System der Rechtsphilosophie in 
 Grundzugen," p. 47. R. v. Mohl, "Die Geschichte und Literatur 
 der Staatswissenschaften," Vol. Ill, p. 387; while recognizing 
 Montesquieu, Mohl says: "The world would have been saved many 
 a false step and disaster if he had not brought the doctrine of the dis- 
 tribution of authority into a long-enduring predominance." 
 
 ^ I cite from the edition of his works that lies before me: "Oeuvres 
 Completes," 13 volumes, Paris, Hachette, 1884-1887 (Vol. XIII con- 
 tains the analytical table of his complete works). 
 
144 CIVIC EMANCIPATION [Ch. V 
 
 seau's abandonment of his children to a foundling 
 asylum, and their common advocacy of detachment from 
 life. But while Schopenhauer proclaimed disdain for 
 life as the ultimate aim of a practical philosophy, Rous- 
 seau — like Tolstoi in our own day — • rejected the claims 
 of civilization, and advocated return to nature as the 
 complete salvation. But the "nature" of Rousseau, 
 under the shelter of which salvation and re-creation are 
 to be found, is not at all the nature of things as they are. 
 Rousseau's imaginary retreat is not to nature wild, 
 savage and turbulent, but to nature in rosy coloring, 
 a Watteau-like, peaceful, calm, pastoral idyll. While 
 Schopenhauer's negation of life is modeled upon the 
 Buddhistic "nirvana," Rousseau proposes the abandon- 
 ment of the struggle for life, and the withdrawal from 
 every manifestation of energy, from the daily toil, from 
 self-assertion, and from one's individual advancement 
 above his fellow-men. By annihilating self-interest, the 
 inequality of men, which is the greatest of all evils, is to 
 be removed. 
 
 The prize offered by the Academy of Dijon was the 
 occasion for Rousseau's diatribe against the economic 
 and legal inequality of human fortunes. The thesis 
 proposed by the Academy was, "What is the origin of 
 the inequality of men? Can it be justified, 'autoriste,' 
 by the law of nature, 'la loi naturelle' "? In Rousseau's 
 reply, "Discours sur I'origine de I'indgalit^ parmi les 
 hommes" (1775), he argues that the physical inequality 
 of men is determined by nature, but that their political 
 inequality, "in^galit^ morale ou politique," if not due 
 to convention, "le consentement des hommes," has at 
 all events been legalized by it, "autoris6e." Primitive 
 man in his savage state was acquainted with but one 
 instrument for all service — • his own body. There were 
 no considerations of good and evil, for as yet morality 
 
§29] LEGAL PHILOSOPHY IN FRANCE 145 
 
 and duty were unknown. Now how, from such a state 
 of savagery, did a civil State arise? "The man who first 
 enclosed a bit of ground and gave notice by saying, 
 'This is mine,' and found people simple enough to believe 
 him, was the true founder of civil society." "Le premier 
 qui ayant enclos un terrain s'avisa de dire Ceci est a moi, 
 et trouve des gens assez simples pour le croire, fut le 
 vrai fondateur de la societe civile." So long as men were 
 content to live, each on the product of his own labors, 
 "tant qu'ils ne s'appliquerent qu'a des ouvrages qu'un 
 seul pouvoit faire," they remained free, healthy, 
 kindly, and happy; but as soon as one man needed the 
 aid of another, human equality disappeared; the rights 
 of property became established, and work became a 
 task. The use of metals and the cultivation of the soil 
 revolutionized man's lot: "For the poet it is gold and 
 silver that have civilized men and destroyed humanity, 
 but for the philosopher iron and wheat have effected 
 this"; "Pour le poete, c'est I'or et I'argent; mais pour 
 le philosophe, ce sont le fer et le bl6 qui ont civilis^ 
 les hommes et perdue le genre humain." TheSe inven- 
 tions were succeeded by others. The multitude of 
 desires and needs created the master and the slave: the 
 man of wealth required the labor of another, the poor 
 man, his assistance. Three stages of increasing inequality 
 were brought about through the legal establishment of 
 private ownership, through the institution of govern- 
 ment, "r institution de la magistrature," and through 
 the change of legal power into arbitrary rule, "change- 
 ment du pouvoir legitime en pouvoir arbitraire." 
 The first stage produced wealth and poverty; the second, 
 rulers and subjects; and the third, masters and slaves. 
 These fundamental considerations form the approach 
 of Rousseau's philosophical masterpiece, "Du Contrat 
 Social, ou Principe du Droit Politique." A further point, 
 
146 CIVIC EMANCIPATION [Ch. V 
 
 strangely and constantly neglected by critics, but which 
 is important in any appreciation of Rousseau as a writer 
 on social institutions and on the philosophy of law, is the 
 radical change that took place in his development.' 
 The Rousseau of the "Contrat Social" and the Rousseau 
 of the "Discours" are altogether different persons. The 
 latter is a supreme idealist preaching a return to nature.^ 
 Rousseau could not have composed the "Contrat Social" 
 in the spirit of the "Discours," for the "Discours" 
 pursued to its logical and practical consequences could 
 
 * Even Liepmann, who interprets Rousseau with insight, has failed 
 to observe this. He, along with Stammler, first drew attention 
 to the fact that Rousseau — who, in the theme set by the Academy 
 for the "Discours" followed in "traditional \mts" [Liepmann, "Die 
 Rechtsphilosophie des Jean Jacques Rousseau," p. 65) — distinctly 
 discarded the historical approach in the "Contrat Social." It was 
 through Liepmann's emphasis of this point that my attention was 
 called to the change of front in Rousseau's viewpoint. 
 
 It would be of interest, but does not fall within the compass of 
 my survey, to show, in regard to the other works of Rousseau, a 
 like contrast between the dualism of his idealistic social philosophy 
 in his first period, and the objective position of the later period. 
 
 ''Upon the "Discours sur les Arts et les Sciences," and the "Dis- 
 cours sur L'Inegalite parmi les Hommes," the opinion of Maugras, 
 "Voltaire et J. J. Rousseau," is apt. He says (p. 39): "Voltaire 
 was the most brilliant incarnation of his times. The civilization, 
 the art, the science that Rousseau considered as the bane of society, 
 Voltaire regarded as its source of illumination." 
 
 The opinion of Frederick the Great upon the Rousseau of the 
 "Discours" is given in a letter to Lord Marischal — "Oeuvres de 
 Frederic le Grand," Berlin, Rod. Decker, 20 vols., pp. 288, 
 289, and mentioned by Du Bois-Reymond, "Friedrlch II und Jean- 
 Jacques Rousseau," Paris 1886, p. 337. "I consider that true 
 philosophy consists in condemning abuse without interfering with 
 use. One must be able to dispense with everything yet not give 
 up one's claim to anything. It is ridiculous to preach that all are 
 equal and that therefore we must live as do the savages, without 
 laws, without society, and without police; that the fine arts have 
 been harmful to morals, and other equally vain paradoxes." 
 
§29] LEGAL PHILOSOPHY IN FRANCE 147 
 
 lead to no positive construction; it is a negation of law, 
 of government, and of civilization. A mind such as 
 Rousseau's would at once have perceived this inconse- 
 quence when confronted with the attempt to evolve 
 a philosophy of law and government. As a fact he broke 
 radically with his former position, of which the following 
 well-known citation gives evidence: "Man is born free, 
 yet everywhere lives in fetters. In so far as he believes 
 himself master of others, he is more enslaved than 
 they. How does this change of status come about? That 
 I need not consider. But what has legitimized it? This 
 I believe I have set forth." "L'homme est n6 libre, et 
 partout il est dans les fers. Tel se croit le maitre des 
 autres, qui ne laissent pas d'etre plus esclave qu'eux. 
 Comment ce changement s'est-il fait? Je I'ignore. 
 Qu'est-ce qui pent le rendre legitime? Je crois pouvoir 
 r^soudre cette question." 
 
 This passage of the"Contrat Social" Liepmann ^ makes 
 the focus of his defense of Rousseau's philosophy. He 
 maintains that Rousseau thus states that he is not claim- 
 ing an historical warrant for his social philosophy, but 
 is merely engaged with its philosophic interpretation. 
 This may be conceded; and if Rousseau had not also 
 written the "Discours," Liepmann's argument might 
 stand. But Rousseau has actually presented an his- 
 torical evolution of the State, of law, and of society, 
 describing how, in his opinion, law and the State arose. 
 What then is the reason for the rejection of the histori- 
 cal basis which he had earlier framed? In his work on 
 Rousseau — presumbly written under the influence of 
 Stammler — Haymann ^ calls attention to the fact that 
 
 1 "Die Rechtsphilosophie des Jean Jacques Rousseau," pp. 95- 
 105. Stammler, too, notes the changed problem in "Die Theorie 
 des Anarchismus," p. 14. 
 
 2 This work is dedicated to Stammler. 
 
148 CIVIC EMANCIPATION [Ch. V 
 
 Rousseau admits the historical position in other passages 
 of the "Contrat Social" itself.^ 
 
 The phrase "Je Tignore," at the beginning of the "Con- 
 trat Social," cannot be interpreted to mean, "I recognize 
 no historical development," but "I do not accept any"; 
 it becomes a disavowal of the historical solution which 
 Rousseau in his earlier writings had given. This change 
 of opinion is accounted for by supposing that Rousseau, 
 as he gradually elaborated and clarified his opinions 
 in the course of writing the "Contrat Social, "had reached 
 the conclusion that a legal and social philosophy could 
 not be established on the basis of the ' ' Discours. ' ' Through 
 the topic proposed for its prize by the Academy, Rous- 
 seau's attention was directed specifically to the prob- 
 lem of political inequality; and government and law 
 were not then taken into consideration. Meanwhile 
 Rousseau had turned to the general philosophic prob- 
 lems among which he considered prominently the con- 
 ception of the nature of political liberty. In his view 
 of liberty Rousseau shows the influence of the classic 
 conception and of the "tyrannomachy," enmity to ty- 
 rants, derived therefrom. Liberty is the absence of 
 tyranny; it is not lawlessness or license; it is the con- 
 dition of complete obedience to the law, and of complete 
 
 1 Haymann, "Jean Jacques Rousseau's Sozialphilosophie," p. 3. 
 The significance Haymann attaches to "Je I'ignore," namely, that 
 it is as if Rousseau were to say that at the very climax of his system 
 he wished to have nothing to do with the historical development; 
 that as a legal philosopher he knew nothing about it and had no 
 obligation to consider it, that the present considerations need not 
 make any assumptions in regard to those fundamentally different 
 branches of knowledge ; — this view is merely a forced explanation 
 for lack of a better, and does not hold. For Rousseau rejects the 
 historical evolutionary method and justification not only at this point 
 of the "Contrat Social," but discards herein in general the historical 
 presentation laid down in the "Discours." 
 
§29] LEGAL PHILOSOPHY IN FRANCE 149 
 
 absence of any rulership outside of law. In order that 
 liberty shall exist, the law itself must be the product 
 of liberty; not of the self-interested authority of a 
 tyrant,! but the product of a common will, — -in his own 
 words "volonte g^n^rale," in contrast to the will of the 
 collective individuals, "volont6 de tous," — thus ex- 
 pressing the sovereignty of the people.^ 
 
 "L'homme est ne libre, et partout il est dans les 
 fers." To the exposition of this complete change of 
 opinion the first book of the "Contrat Social" is devoted. 
 Neither the social order nor the law is due to nature. 
 Might never can make right. Hence the legality of 
 right must be based upon convention.' The central 
 problem which the "Contrat Social" attempts to solve 
 is the determination of a communal bond, "trouver 
 une forme d' association," that shall protect and secure 
 the social service of the person and property of every 
 citizen, and yet leave the individual, through his asso- 
 ciation with his fellow-men, "s'unissent k tous," 
 subject to himself alone, and as free as ever. Every 
 infraction of the social compact, "pacte social," would 
 invalidate or destroy this contract. In case he were 
 thereby to lose the regulated liberty resulting from the 
 compact, and for the sake of which he gave up his 
 natural liberty, each party to the contract would resume 
 his former rights and regain his natural liberty.^ 
 
 > "Contrat Social," I, 8. 
 
 2 "Contrat Social," II, 1; 11,6; "EmiIe,"I, 5; "Lettre 6me de 
 la montagne" ("Oeuvres" III, p. 203). See the citations used by 
 Haymann, "]. J. Rousseau's," etc., p. 41, note 3, and pp. 85 seq. . 
 
 ^ "Contrat Social," I, 2, 4. "The regulative character of the 
 law is of a conventional type." Liepmann, "Die Rechtsphil.," etc., 
 p. 101. 
 
 * "Contrat Social," I, 6. As a fact it is the complete enslave- 
 ment and deprivation of rights of the individual as against the 
 State which Rousseau, following ancient examples, advocates. 
 
150 CIVIC EMANCIPATION [Ch. V 
 
 The nature of Rousseau's social compact may be thus 
 rendered: each individual subjects his person and his 
 operations to the superior control of the common will, 
 "volonte generale," and in so far each becomes an 
 indissoluble member of the whole. Such association 
 replaces the individual contracting party by a legal 
 corporate personality, "corps moral et collectif," 
 termed the State when in a static condition, "quand il 
 est passif," and the sovereign, as a political power, 
 "quand il est actif," and authority, "puissance," 
 with reference to the subjects, "en le comparant a ses 
 semblables." The subjects of the State collectively 
 are called the people. They are to be called citizens in 
 so far as they have a share in political power, "comme 
 participant k I'autorit^ souveraine." They are to be 
 called subjects as subject to the laws of the State. 
 These distinctions are drawn in accordance with the 
 specified relations, but the terms are not always pre- 
 cisely used."^ 
 
 The welfare of the people is the most important end 
 of government. It is to be secured by carrying out the 
 communal will in all respects.^ The law, to justify its 
 existence, must serve common interests.' The demands 
 of the law should coincide with those of utility.* Gov- 
 ernment is to equalize the more pronounced inequalities 
 of fortune, "I'extrSme Vnegalit6 des fortunes," but 
 must not do so by despoiling the wealthy to build homes 
 
 Rousseau's conception of freedom is the freedom of the community 
 as against tyranny, but along with it an enslavement of the individual 
 as against the community ■ — a situation suggestive of modern social- 
 ism. See also Maugras, "Voltaire," etc., p. 176. 
 
 ' "Contrat Social," I, 6. 
 
 " "Contrat Social," II, 11; ";ficonomie Politique" ("Oeuvres,'' III), 
 p. 283. 
 
 ' "Lettre 6me de la montagne," p. 203. 
 
 ^ "Contrat Social," Introduction. 
 
§29] LEGAL PHILOSOPHY IN FRANCE 151 
 
 for the poor, but through preventive measures.^ The 
 most suitable forms of government are democracy for 
 small States, a:ristocracy for those of medium size, and 
 monarchy for large ones.^ 
 
 A critical estimate of Rousseau cannot claim that his 
 writings have directly advanced- the theory of govern- 
 ment and the philosophy of law,' but rather that they 
 were of far-reaching influence in supplying the basis of 
 political positions. In this respect the "Discours" must 
 be considered apart from the "Contrat Social." In 
 content the former is far superior, but the influence of 
 the latter was decidedly greater. The answer to the 
 question whether Rousseau is to be looked upon as the 
 precursor and intellectual sponsor of the fanatical struggle 
 for liberty of the French Revolution will depend upon 
 whether one has in mind the Rousseau of the "Discours" 
 or the Rousseau of the "Contrat Social." With equal 
 justice it may be answered in the affirmative or in the 
 negative. If we consider Rousseau, the philosopher of 
 the "Contrat Social," the answer must be "no," * for 
 therein he does not advocate absolute political equality; 
 if we consider the Rousseau of the "Discours," the 
 answer must be "yes," for the outspoken singleness of 
 purpose of the "Discours" was a suitable medium to 
 influence the minds of the masses. The masses are 
 ever led by striking phrases, by smooth and simple 
 formulae; and the lure of universal equality completely 
 served its political purpose. 
 
 1 "ficonomie Politique," pp. 290, 291; "Contrat Social," II, 11. 
 
 2 "Contrat Social," III, 2, 8. 
 
 ' Indirectly, however, in that Rousseau had a decided influence 
 upon Kant's views of the State. See below, § 33. 
 
 *JelHnek, "Die Erklarung der Menschen und Burgerrechte 
 (Ein Beitrag zur modernen Verfassungsgeschichte),'' JelUnek- Meyer, 
 "Staats-und Volkerrechtliche Abhandlungen, " Vol. I, Part 3, Leipzig 
 1895, pp. 4-6. 
 
152 CIVIC EMANCIPATION [Ch. V 
 
 3: Diderot. The career of Diderot^ (1713-1784) as 
 a publicist formed an essential factor in the antecedents 
 of the French Revolution. His influence was exerted 
 partly through the popularity of his philosophic writings, 
 but mainly through the Encyclopedia ''■ which he edited. 
 The former, sceptical in tone, at first assumed a deistic 
 position, but later an explicitly atheistical one;' the 
 latter assembled the destructive elements in the intel- 
 lectual undermining of the leading minds of France. 
 Diderot's strength lay in destructive rather than in 
 constructive criticism. His style was brilliant and 
 attractive. He adapted .freely the moral philosophy of 
 Shaftesbury ; ^ he contributed some passages to Rous- 
 seau's "Discours sur I'inegalite;^ and he commented 
 upon Beccaria's "Dei Delitti e delle Pene";^ his own 
 views of punishment, expressed in regard to the divine 
 exercise of punitive judgment, support the theory of 
 
 ' "Oeuvres Completes'' de Diderot, 20 vols. Assezat and Tour- 
 neux, Paris, 1875-1877. 
 
 2 "Encyclopedie, ou Dictionnaire Raisonne des Sciences, des Arts 
 et des Metiers," Paris, 1751-1767, 17 vols., besides two vols, of 
 illustrations. 
 
 ^ "Pensees Philosophiques" ("Oeuvres Completes," I, pp. 123-170) 
 "La Promenade du Sceptique ou les Allees" ("Oeuv.," pp. 171-257) 
 "De la Suffisance de la Religion Naturelle" ("Oeuv.," pp. 259-273) 
 "Lettre sur les Aveugles, h. L'Usage de ceux qui Voient," and "Lettre 
 sur les Sourds et Muets." 
 
 * "Principes de la Philosophie Morale ou Essai sur la Merite de la 
 Vertu," par Mylord S. (Shaftesbury), translated from the English. 
 ("Oeuv.," I, pp. 3-121.) 
 
 '"Oeuv.," IV, pp. 100-104: "Morceau de Diderot insere dans le 
 discours sur I'inegalite des conditions parmi les hommes de J. J. 
 Rousseau" (1754). 
 
 « "Oeuv.," IV: "Des Delitset des Peines," pp. 51-69 (pp. 53-60, 
 Letter of Ramsay's on Beccaria's work) ; pp. 60-63, "Des Recherches 
 sur le Style," by Beccaria; pp. 63-69; notes by Diderot on the 
 treatment of offenses and punishments. 
 
§29] LEGAL PHILOSOPHY IN FRANCE 153 
 
 general prevention. i In his "Code de la Nature" he 
 advocates, in a somewhat transcendental form, the 
 Stoic ^ principle of living according to nature. His 
 "Principes de Politique des Souverains" ^ contains 
 maxims and aphorisms, with frequent classical allusions 
 — the whole, at times suggestive of Machiavelli's 
 "Prince" — that form a compilation of political prin- 
 ciples for absolute * monarchs. Diderot makes no 
 attempt to conceal his opinion of such rulers, and gives 
 to one of his maxims the title "Maxime detestable," to 
 another, "Perfidie abominable," and to a third, "Un 
 role perfide et vil." While Diderot thus expounds the 
 best principles for absolutism, he at the same time 
 
 "• "Pensees Philosophiques," III, with reference to divine punish-' 
 ment. "What relation is there between the offender and the 
 offense, and what between the offense and the punishment? Just 
 a mass of absurdities and cruelties." "Oeuv.," chap. I, p. 165. "La 
 Promenade du Sceptique" ("Oeuv.," I, p. 213), speaking of divine 
 punishment he says: "One cannot say that punishment occurs for 
 the sake of example, for there is no one whom punishment can 
 intimidate. If our sovereigns inflict punishment it is in the hope 
 of deterring those who may be tempted to imitate the culprit." 
 
 ^ "Oeuv.," IV, pp. 107-117: "Abrege du code de la nature extrait 
 du systeme de la nature du baron d'HoIbach." (P. 116): "The 
 morality of nature is the only religion which the interpreter of 
 nature offers to his fellow-citizens. The friend of man can never 
 be the friend of the gods. (P. 117): "Oh nature ! sovereign of all 
 beings, and you, adorable daughters, Virtue, Reason, Truth I may 
 you ever be our only divinities; to you is due all the worship and 
 homage of the earth. Then show us, oh Nature, what man shall 
 do to obtain that good fortune which you desire for him. May the 
 beneficent fires of Virtue inspire him, may Reason guide his uncer- 
 tain steps in the paths of life, may the Torch of Truth light his way! 
 Oh helpful deities, combine your power to support our hearts, banish 
 from your minds error, malice, trouble; and let knowledge, goodness, 
 and serenity, reign in their place." 
 
 3 "Oeuv.," II, Paris 1875, pp. 461-502. 
 
 ^ "Oeuv.," II, p. 461, note 1. 
 
154 CIVIC EMANCIPATION [Ch. V 
 
 expresses a severe disapproval of the absolutist program, 
 and indicates its weakness.^ Further excursions into 
 
 ^ "Look upon all ambitious persons as your born enemies. . . . 
 The most dangerous are the high and mighty, the poor, and those in 
 debt, who have all to gain and nothing to lose by a revolution." 
 II; In Diderot there follows a citation from Tacitus' "Annals," 
 BookXIV, chap. LVII. "Sulla inops, undepreecipuaaudacia." Com- 
 pare with this, Shakespeare, "Julius Caesar," 1, 2, Cassar on Cassius. 
 "It is easy to obtain justice in small affairs; for that seems to 
 confer the right to infringe with impunity in big affairs: "Maxime 
 Detestable," III. 
 
 "When you are plotting against your sovereign, place a spy in his 
 service." XVII. 
 
 "To make citizens of slaves is a very good thing, but it would 
 have been better not to have had any slaves." XXXIII. 
 
 "Always put the name of the senate before your own {Ex 
 senalusconsuUo , et auctoritate Cmsaris) . It will matter little if there 
 is no senate." XXXV. 
 
 "Let it be agreed that the laws are made for all, for the sovereign 
 as well as for the people; but do not believe it." XLI. 
 
 "Always respect the laws that do not trouble you, but trouble 
 others. It is still better to respect all the laws." XLIV. 
 
 "Liberate the slaves when you need their testimony against a 
 master whom you want to ruin." XLVI. 
 
 "Whatever is respected in a monarchy alone is merely a patent 
 of slavery." LIX. 
 
 "Whoever is not master of a soldier controls nothing." LXV. 
 
 "For yourself you want slaves; the nation needs free men." 
 LXXIX. 
 
 "Satire and complaint should be permitted; suppressed hatred 
 is more dangerous than open hatred." LXXXVI. 
 
 "Sacrifice all for the military.'' XCI. 
 
 "Let there be no ministers abroad, only spies." XCVII. 
 
 "Let there be no ministers at home, but clerks." XCVIII. 
 
 "Be the first soldier of the army." CI. 
 
 "My subjects are only slaves under a more honorable name." CV. 
 
 "A king is neither father, son, brother, kin, husband, nor friend. 
 What is he then? He is a king, even when he sleeps." CXXX. 
 
 "In the State there is but one refuge for evil doers — -the palace 
 of the king." CLXXIV. 
 
 "Let him persuade his subjects that the evil done unto them is 
 for their good." CLXXXIV. 
 
§29] LEGAL PHILOSOPHY IN FRANCE 155 
 
 politics are to be found in his "Refutation suivie de 
 I'ouvrage d'Helvetius intitule rhomme." ' 
 
 4: Godwin. The most important of the works of 
 William Godwin^ (1756-1836) is his "Enquiry con- 
 cerning Political Justice and its Influence on Morals and 
 Happiness." In this work Godwin appears as an 
 advocate and defender of political liberty ^ and equality * 
 before the law. The work also contains ethical studies 
 and opinions ^ concerning certain legal issues, such as 
 those involved in suicide, duelling, etc.^ Godwin 
 conceives the community as built up of individual 
 components.' He attempts to establish as a political 
 ideal an anarchistic state of society in which the power 
 of the State shall be abolished, and in which there shall 
 be no property in the sense of legal title. An equal 
 distribution of property, with due consideration of 
 equity, shall replace property legally secured and un- 
 equally divided. The principle guiding the measures 
 of society and applicable to the distribution of property 
 is that of the good of the community. Godwin believed 
 that such anarchistic state of society could be brought 
 about by convincing men of the necessity of abolishing 
 
 1 Diderot, "Oeuvres Completes," II, pp. 275-456. Particularly 
 pp. 380-382, 388-390, 419, 442, 443^50. 
 
 2 1793, translated also in German. I cite from the second edit. 
 2 vols., London, 1798. 
 
 'See particularly Vol. I, pp. 96-105. "The real enemies of 
 liberty in any country are not the people, but those higher orders 
 who find their imaginery profit in a contrary system" (p. 105); 
 pp. 249-306, "Of resistance, revolutions, tyrannicide"; Vol. II, 
 pp. 1-207. 
 
 « Vol. I, pp. 144-148. 
 
 'Vol. I, Book IV, chap. X. "Of self-love and benevolence"; 
 p. 425, "On the origin of benevolence." 
 
 ^ Vol. I, Book II, chap. 2, beginning. 
 
 'Vol. I, p. 137: "Society is nothing more than an aggregation of 
 individuals." 
 
156 CIVIC EMANCIPATION [Ch. V 
 
 the State and the law in the interest of the common 
 good, in which view Godwin differs from the true 
 anarchists and approaches the position of the Utopians. 
 And indeed, upon the founders of anarchy, Proudhon ' 
 and his successors, Godwin exercised no influence. It 
 may be added that his wife, Mary Wollstonecraft (1759- 
 1797) was the author of the "Vindication of the Rights 
 of Women," ^ a work in the interests of the feminist 
 movement, the trend of which reflects the agitations of 
 the French Revolution. 
 
 § 30. Legal Philosophy in Germany. 1 : Leibnitz. 
 The legal philosophy of Leibnitz (1646-1716) is built 
 upon the model of Roman law, yet with suggestions of 
 Greek influence. In Roman law the interest is focussed 
 upon the "paterfamilias"; Leibnitz similarly empha- 
 sizes the position of the "vir bonus." By this is meant 
 the average man endowed with due reason, "sapiens," 
 and in a cultured state, "qui amat omnes, quantum 
 ratio permittit." The virtue with which the "vir 
 bonus" is endowed, the cjuXavOpoiirta of the Greeks, is 
 "justitia." ^ But "amare" signifies "felicitate alterius 
 delectari," or "felicitatem alienam asciscere in suam." 
 Accordingly, Leibnitz's "vir bonus" comprises the 
 "social" man of Grotius; but ethically the concept goes 
 beyond it. "Jus" is "qusedam potentia moralis," 
 while "obligatio" is "necessitas moralis"; but for the 
 
 'London 1792; German translation hy Salzmann, 1793, 2 vols. 
 In regard to the authoress see Helen Zimmern, "Mary Wollstone- 
 craft," "Deutsche Rundschau," Vol. 60, Berlin 1889, pp. 247-259. 
 
 ^Therefore "justitia" is "charitas sapientis, hoc est sequentem 
 sapientiae dictata." "De notionibus juris et justitiae," Leibnitz, 
 edited by J. E. Erdmann, Berlin 1840, p. 118. See also "Definitiones 
 Ethicae," Erdmann, edit. p. 670: "Justi scientiam voco seu ejus 
 quod viro bono possibile est," "scientiam officiorum voco seu ejus 
 quod viro bono impossibile et necessarium, id est ommissu impos- 
 sibile est." Mollat, "Rechtsphilosophisches aus Leibnizens un- 
 
§30] LEGAL PHILOSOPHY IN GERMANY 157 
 
 "vir bonus," "moralis" and "naturalis" ^ are one. 
 Here the "jus naturae" has its origin; it appears in three 
 stages, "gradus": "jus striatum" as referring to "justi- 
 tia commutativa" ; "squitas," with regard to "justitia 
 distributiva" ; and "pietas (vel probitas)," applicable to 
 "justitia universalis." From these are developed the 
 three fundamental legal injunctions: "neminem Isedere," 
 "suum cuique tribuere," and "honeste (vel potius 
 pie) vivere." ^ In contrast to Pufendorf, Leibnitz 
 secularizes ethics and associates it intimately with law. 
 The wise man is the just man. Justice leads to neigh- 
 borly love as well as to personal happiness,' and happi- 
 ness is a "constant state of- pleasure." * As applied to 
 
 gedruckten Schriften," Leipzig 1885, appendix, p. 85. See also 
 "Brief an Conring" (Gerhardt edition, I, p. 160): "homo prudens 
 debet semper agere quod justum est." 
 
 ' "De Notionibus Juris et Justitiae," Erdmann edition, p. 118. 
 
 ^ "De notionibus Juris et Justitiae," pp. 119, 120. "Initium 
 institutionum juris perpetui," Mollat, "Rechtsphil.," etc., p. 6; 
 "De tribus juris naturae et gentium gradibus," Mollat, pp. 13-21. 
 
 2 "Definitiones Ethicae," Erdmann edition, p. 670: "Justitia est 
 caritas sapientis. Caritas est benevolentia generalis. . . . Quis- 
 quis est sapiens, amat omnes. . . . Omnis sapiens multis prodest. 
 Omnis sapiens Deo amico est. Omnis Dei amicus est felix. Quo 
 quis sapientior hoc felicior in potentia pari. Omnis sapiens est 
 Justus. Omnis Justus est felix." ("Sapientia," so often emphasized 
 by Leibnitz, originates with Cicero.) "Wisdom is merely the science 
 of happiness that teaches us how to achieve happiness." "Von der 
 Gltickseligkeit," Erdmann edit., p. 671. "Justitia est caritas sapien- 
 tis." "De Justitia," 1; Mollat, "Rechtsphil.," etc., p. 36. "Caritas 
 est habitus amandi omnes seu benevolentia universalis suis tamen 
 gradibus pro ratione objecti discreta." "De Justitia," 3; Mollat, 
 "Rechtsphil.," etc., p. 37. "Quia Deus existit, ideo sapienti licet 
 liberrime exercere caritatem." "De Justitia," 8; Mollat, "Rechts- 
 phil.," etc., p. 40. "Et tanto quisque magi Justus est, quanto magis 
 delectatur communi bono. . . ." "Initium institutionum juris 
 perpetui," Mollat, "Rechtsphil.," etc., p. 3. 
 
 * "Von der Gltickseligkeit," Erdmann edit., p. 671. 
 
158 CIVIC EMANCIPATION [Ch. V 
 
 the principles of human conduct the will of God and 
 human reason coincide.^ Leibnitz's definition of human 
 justice is far more subtle than that of Thomasius: 
 "Justus ea voluntate praeditus erit, qualem omnes eius 
 esse vellent, qui ipsos regit." ^ His formulation of 
 "aequitas" ^ approaches that of Thomasius for justice: 
 "Quod tibi non vis fieri, aut quod tibi vis fieri, neque 
 aliis facito aut negato." * Yet Leibnitz holds to the 
 utilitarian principle of the happiness of the greatest 
 number: "Summa juris regula est: quicquid publice 
 utile est, illud faciendum est." ^ In contrast to Spinoza's 
 stern principle of causality, Leibnitz emphasizes the 
 teleological factor. Yet he is far from being a utili- 
 tarian in the ordinary sense. He distinguishes between 
 justice, which in his view belongs to ethics, and politics, 
 for which the test of utility is decisive: "Scientia . . . 
 Juris naturae . . . Ethica est, de justo, . . . Politica 
 
 ' "Voluntas Dei easdem quas sapientia nobis agendi regulas 
 prascribit." "De Justitia," 7; Mollat, "Rechtsphil.," etc., p. 39. 
 "It is a weakness to rejoice in the misfortune of anotiier, and it is a 
 virtue to rejoice in the good fortune of another. This principle 
 means that God himself acts according to justice and would be 
 blameable ill he would act otherwise, although he has nothing to 
 fear or to hope from the issue. This principle applies also to men." 
 "Axiomes ou principes du droit"; Mollat, "Rechtsphil.,"' etc., p. 54. 
 See also "Meditation sur la notion commune de la justice"; Mollat, 
 "Rechtsphil.," etc., pp. 56-81 on p. 62, "Justice is merely that 
 which conforms to wisdom and mercy combined." 
 
 '^ "Initium institutionum juris perpetui"; Mollat, "Rechtsphil.," 
 etc., p. 3. 
 
 ' "The principle of equity, or what amounts to the same, equality"; 
 "the rule of equity or equality." "Meditation sur la notion com- 
 mune de la justice"; Mollat, "Rechtsphil.," etc., p. 70. 
 
 * "Meditation sur la notion de la justice"; Mollat, "Rechtsphil.," 
 etc., p. 70. 
 
 ' Mollat, "Rechtsphil.," etc., appendix II, p. 86. 
 
§30] LEGAL PHILOSOPHY IN GERMANY 159 
 
 est, de utili . . ." i Three motives, "principia," impel 
 man to right action, "ad juste agendum": the familiar 
 self-interest, "utilitas propria"; altruism on the basis 
 of sympathetic emotion, "sensus humanitatis atque 
 honesti"; and religion, "religio." ^ The freedom of the 
 will is defined by Leibnitz as the spontaneous activity 
 of a rational being. 
 
 Under the pseudonym, Caesarinus Furstenerius, Leib- 
 nitz wrote the "Tractatus de jure suprematus, ac lega- 
 tionum principum Germaniae." ' The author as a 
 Christian and patriot advocates a political ideal of an 
 imperial world-monarchy. The leading ideas of the 
 work are thus summarized:^ (1) "Imperatorem atque 
 imperium in orbe Christiano non tantum dignitatis 
 prserogativam habere, sed et jus Advocati Ecclesiae 
 Universalis, eoque nomine quandam potestatem extra 
 Imperii quoque ditiones sese extendentem" ; (2) "Elec- 
 tores recte sequiparari Regibus"; (3) "Non debere 
 negari Electoribus ac principibus Imperii primariis quod 
 conceditur principibus Italis quos non minus Imperio 
 nostro obnoxios obstrictosque esse constat." ^ 
 
 ' I, "Brief an Conring" (Gerhardt edit., I, p. 159). 
 
 ' Mollat, "Rechtsphil.," etc., appendix V, pp. 95, 96. 
 
 3 First edit., 1677. This is reprinted in Klopp's Edit., Vol. 4, 
 pp. 9-305. See also "Leibnitii ad Caesarini Furstenerii de suprematu 
 librum explicandum atque defendendum opuscula," Klopp, Vol. 4, 
 pp. 309-363; Hartmann, "Leibniz als Jurist und Rechtsphilosoph" 
 (Festgabe der Tiibinger Juristenfakultat fur Ihering, August 2, 
 1892), pp. 51-60. 
 
 * "De Caesarino Furstenerio judicium," Klopp, Vol. 4, pp. 324, 
 325. Also "Tractatus," chaps. XXXI-XXXVI. See also "Brief 
 von Leibniz an Hobbes," July 13-22, 1670 (Gerhardt edit., I, p. 83) : 
 "Cum Deus sit omnium Monarcha communis." 
 
 ^ In the letter to Conring of Jan. 3, 1678, Leibnitz expresses him- 
 self approvingly of the book, the authorship of which he does not 
 acknowledge. "Multa alia in iUo libello non contemnenda dnim- 
 adverto; sunt tamen et alia crepera non nihil et dubitationi ob- 
 
160 CIVIC EMANCIPATION [Ch. V 
 
 Leibnitz makes the freedom of the will equivalent to 
 the spontaneous expression of a being endowed with 
 reason .1 
 
 2 : Wolff. The influence of Leibnitz's philosophy of 
 law and government was due to the form given it by 
 Christian Wolff (1679-1754). His great work on natural 
 law ^ appeared in nine large volumes; but he also 
 published in his "Institutionen"' a summary of this 
 tediously diffuse treatise. Wolff's philosophy of law is 
 closely connected with his ethics.* The primary ethical 
 principle is the highest earthly good. "As nature makes 
 it incumbent upon men to perfect themselves ^ and their 
 condition, and to avoid whatever detracts from such 
 perfection,^ there arises the precept, as a rule of nature, 
 to do that which makes for the improvement of one's 
 self and one's condition, and to avoid that which makes 
 against it." ' This moral principle he regards as 
 applying to all practical life, including the province of 
 
 noxia (!)," and he emphasizes, "Mihi in hoc libello illud in primis 
 placet, quod monstrat Principes nostros nihilo inferiores habendos 
 Principibus Italiee'' (Gerhardt edit.), I, pp. 188 seq. 
 
 ^ "Libertas est spontaneitas intelligentis, itaque, quod spon- 
 taneumo est in bruto vel alia substantia intellectus expeite, id in 
 homine vel in alia substantia intelligente, altius assurgit et liberum 
 appellatur." "De libertate," Erdmann edit., p. 669. 
 
 ^ "Jus naturae methodo scientifica pertractatum," 1740-1749. 
 
 ^ Institutiones juris nalurm et gentium, "in quibus ex ipsa hom- 
 inis natura continue nexu omnes obligationes et jura omnia dedu- 
 cuntur." Halae Magdeburgicae 1754. 
 
 * Wolff, "Verniinftige Gedanken von der Menschen Tun und Las- 
 sen, zur Beforderung ihrer Gliickseligkeit den Liebhabern der 
 Wahrheit mitgeteilt." Fifth edit., Frankfurt and Leipzig, 1736. 
 
 * "Verniinftige," etc., preface, p. 1: "Unhappy times are 
 the fruit of vice, and happy times the fruit of virtue. Both state- 
 ments are established in present deed." 
 
 « "Verniinftige," etc., pp. 78-116. 
 
 ' "Verniinftige," etc., p. 16, § 19. Also §§ 12, 17. 
 
§30] LEGAL PHILOSOPHY IN GERMANY 161 
 
 law. "Natural law" thus arises upon an ethical basis, 
 and specifically from the sense of duty. The command 
 of nature, "Perfect thyself," "Perfice te ipsum," is at 
 once a direction for physical and moral self-development 
 and the fundamental principle of justice.^ Duties are 
 divided into those towards ourselves, towards our 
 fellow-men, and towards God.^ But a duty also involves 
 a right; and man may claim respect for these rights 
 because the right is involved in the duty,' and indeed 
 is an issue thereof. Hence human duties have their 
 correlatives in inherent and inalienable human rights.* 
 Compulsory duties fall to the province of law and 
 justice.* The principle is "quod jure tuo tibi non vis 
 fieri ab altero, id nee alteri faciendum esse, et quod jure 
 vis fieri, id alteri quoque faciendum." ^ 
 
 The State arises from contract,' its object is to pro- 
 mote peace, security, and the self-sufficiency of all its 
 members, "sufhcientia ;" and to grant abundantly, 
 "abundantia," the satisfaction of the needs and con- 
 veniences of life. The common weal, "salus civitatis," 
 rests upon the enjoyment of a contented life of peace and 
 security.^ This conception of self -content introduces 
 an unexpected idyllic flavor into the philosophy of law. 
 The practical importance of Wolff's philosophy is due 
 to its acceptance as a philosophic foundation of an 
 enlightened absolutism, pervaded by the spirit of ethical 
 discipline and a closely regulated paternalism. 
 
 iSee"JusNaturse," P. I., §§173,609; "Institutiones," etc., §36. 
 
 2 "Institutiones," P. I., chaps. IV, V, VI. 
 
 3 "Jus Nature," P. I., §§170, 608 seq.; "Institutiones," P. I., 
 chaps. IV, V, VI. 
 
 « "Jus Nature," P. I., §§ 23 seq., 64, 72; chaps. II, III, IV. 
 
 ' "Inst.," P. I., chaps. Ill seq. 
 
 8 "Inst.," P. I., chap. Ill, § 73. 
 
 '"Inst," §§972 and 836. 
 
 8 "Inst.," §§ 972 and 836, 87, 837- 
 
162 CIVIC EMANCIPATION [Ch. V 
 
 The emancipation of the third estate was brought about 
 by three distinct factors; as the demand of revolution- 
 ary violence, sponsored philosophically by Rousseau in 
 his "Discours"; as the free concession of monarchs 
 concerned in the welfare of their subjects, brought 
 about by Wolff's philosophy; and in compliance with 
 the demands of justice as theoretically formulated by 
 Kant in his conception of the legally constituted State. 
 These three factors — arbitrary injustice, benevo- 
 lence, and an ethical sense of justice — formed the 
 psychological motives which led to the establishment 
 of the liberty and rights of the third estate, and to 
 the recognition in modern times of an independent 
 citizen-class. 
 
 3 : Frederick the Great. Frederick the Great (1712- 
 1786) has left his impress upon legal philosophy through 
 his writings, through the principles which he applied 
 as a ruler, and through the code of the common law of 
 Prussia compiled at his instigation. In the "Anti- 
 machiavel (1739), "^ Frederick combats Machiavelli's "II 
 Principe." As a criticism it fails of its purpose in that 
 Frederick shows no appreciation of the Italian author 
 as a distinctive type of the Renaissance; but his philo- 
 sophic grasp of governmental institutions is clearly 
 shown. He expresses his firm opposition to the self-cen- 
 tered attitudes held by the princes of his time. His 
 own position is summed up in his familiar saying that 
 "the prince is not the absolute ruler of his people but its 
 
 * This is printed in French in the "Oeuvres de Frederic le Grand," 
 Vol. VIII, Berlin 1848, pp. 69-162: "L'Antimachiavel ou examen 
 du prince de Machiavel"; and with this, pp. 163-299 "Refutation 
 du prince de Machiavel." One edition, AmstelsEdami 1743, is 
 edited in Latin by Johannes Fridericus Behrendt, and is dedicated 
 to Frederick the Great. Its title is "Anti-Machiavellus, sive speci- 
 men disquisitionum ad principem Machiavelli. " 
 
§30] LEGAL PHILOSOPHY IN GERMANY 163 
 
 foremost servant";' the prince is the protector of jus- 
 tice.^ * The same thought, that the welfare of the 
 State does not turn upon the interests and desires of its 
 ruler, but upon the consideration of an organically 
 united people, pervades his earlier work: "Considera- 
 tions sur I'etat du corps politique de I'Europe," as well 
 as his later works: "Miroir des princes"* (1744), 
 "Memoires pour servir k I'histoire de la maison de 
 Brandebourg" ^ (1751), and the "Essai sur les formes 
 du gouvernement et sur les devoirs des souverains"^ 
 (1777). He became an exemplar to princes by replacing 
 the inconsiderate self-seeking of the absolute ruler 
 
 '"It is true that the sovereign, far from being the absolute 
 master of the people who are under his rule, is but their foremost 
 servant." "Oeuvres," Vol. VIII, pp. 65 seq., "Antimachiavellus," 
 cap. I: "Rex tantum abest, ut pleni arbitrii dominus sit populorum 
 dictioni suae subjectorum, ut primi tantum magistratus locum 
 tueatur." 
 
 *"One may then say that it is justice that should be made the 
 chief concern of the sovereign ; it is the welfare of the people that 
 should determine what he is to prefer above all other interests.'' 
 "Oeuvres," Vol. VIII, p. 65. "Antimachiavellus," chap. I: "In 
 justitia igitur administranda maxima Principiis cura versatur, 
 commoda ergo, quibus praeest, populorum, omnibus aliis utilitatum 
 rationibus praeferet." 
 
 '"Memoires de Brandebourg," "Oeuvres," Vol. I, p. 123: "A 
 prince is the first servant and the first magistrate of the State." 
 
 * "Miroir des princes ou instruction du roi pour le jeune due 
 Charles-Eugene de Wurtemberg," "Oeuvres," Vol. IX, Berlin 1848, 
 pp. 1-7. 
 
 ' I am using the edition in three volumes, Berlin 1846. The 
 "Memoires" also appear in Vol. I of the "Oeuvres de Frederic le 
 Grand," Berlin 1846. Their contents are mainly cultural and 
 historical. 
 
 6 "Oeuvres," Vol. IX, pp. 193-210; particularly pp. 199-201; 
 pp. 200 seq.: "The prince is to the society which he governs what 
 the head is to the body; he should see, think, and act for the whole 
 community in order to secure all available advantage." 
 
164 CIVIC EMANCIPATION [Ch. V 
 
 by the ideal of a monarch inspired by a consciousness of 
 the important duties of his exalted position. His politi- 
 cal views are in harmony with his general system of 
 ethics, from which doubtless they arose. In his "Epitre 
 au marechal Keith" he sets forth that the pre-eminent 
 value of virtue lies in its disinterested exercise and not 
 in its extraneous advantage.'- 
 
 Frederick did not stop at theory but exemplified his 
 principles in his actions. His reign was dignified 
 throughout by the fundamental purpose to strengthen 
 Prussia. He was able by means of necessary wars to 
 make Prussia a respected figure in the European concert 
 of nations. In his internal policy he carried forward 
 various governmental measures, pursuing them with 
 extraordinary energy. He promoted the development 
 of the economic and intellectual resources of the country, 
 maintained justice and order, increased the comfort of 
 his subjects, and improved and extended their produc- 
 tive activities. Frederick became the first successful 
 defender of the form of government not very happily 
 styled "enlightened despotism or absolutism"- — for the 
 despot ever remains the tyrannical ruler, while Frederick 
 was an absolutist cherishing the interests of his people. 
 He had a care for freedom of thought and conscience, 
 and encouraged a more enlightened view of political 
 offenses. He became the sponsor for the intellectual 
 culture of his day. 
 
 The Prussian code, "Landrecht," which was completed 
 and introduced (1794) after Frederick's death, was the 
 first attempt to combine the principles of Roman law 
 with the Teutonic legal attitude, and served as a model 
 for later efforts. Despite its spirit of benevolent pater- 
 nalism and its somewhat needless argumentative exposi- 
 tion, the Prussian code is a notable contribution to 
 
 »"Oeuvres," Vol. X, Berlin 1894, pp. 194-203. 
 
§31] MERCANTILISTS AND PHYSIOCRATS 165 
 
 legislation in that it is permeated with the spirit of justice. 
 It is a law considerate of conditions, awarding to each his 
 due, and inspired with that spirit of freedom of conscience' 
 that leaves to the individual ample scope for social and 
 intellectual initiative. The Prussian code practically 
 solved the avowed purpose of providing "good and fair 
 laws, clearly and definitely drawn." It is an organic 
 document, inspired by a singleness of purpose. Its 
 language is clear, simple, and intelligible, very different 
 from the technical phraseology of modern German law. 
 Owing to these advantages of content and form, the 
 principles and definitions of the Prussian "Landrecht" 
 entered into the consciousness of the people. The code 
 formed a legislation for the people, while the present 
 German Civil Code ("Das Biirgerliche Gesetzbuch") 
 will ever remain the special property of jurists. 
 
 §31. Mercantilists and Physiocrats. 1: The Sys- 
 tem OF Colbert. From the time when political economy 
 began to be a science to the days of Smith and Ricardo, 
 its classical representatives, the various systems exhibit 
 errors and misleading deductions in detail as well as 
 in general theoretical and practical issues. But they 
 had the advantage over the economic science of today 
 in recognizing that the prosperity of economic relations 
 depends upon property;^ that the subject of economics 
 is national wealth; and that national economics must 
 accept the national welfare as its first and chief con- 
 cern. The misleading, artificial and false notion that 
 human needs furnish the basis for a science of economics 
 first appeared towards the end of the nineteenth and the 
 
 1 Freedom of conscience is specifically guaranteed by the Prussian 
 "Landrecht," Vol. II, Tit. 11, §§ 30 seq.; Tit. 12, §§ 10, 11. See 
 also Vol. I, Tit. 4, § 9. 
 
 ^ See Berolzheimer, "Das Vermogen," Hirth's Ann. 1904, pp. 437- 
 441. 
 
166 CIVIC EMANCIPATION [Ch. V 
 
 beginning of the twentieth century, a period of feeble 
 philosophic insight and misapplied constructive effort. 
 
 So far back as the mercantile system associated with 
 the name of Colbert — which prevailed from the six- 
 teenth to the end of the eighteenth century - — the lead- 
 ing question was that of national welfare; and the 
 increase of the assets of the people was regarded as the 
 worthiest purpose of economics. Accordingly an attempt 
 was made to determine the fundamental factors of pros- 
 perity. In those days men proceeded not upon scientific 
 or theoretical arguments, but upon a consideration of 
 practical ends. Princes needed money to carry on wars 
 and to meet the luxury of extravagant courts. For the 
 mercantile system national prosperity was equivalent 
 to a full treasury for State and Court; and the primary 
 problem, as likewise the worthiest object of economics, 
 was to bring prosperity and gold to the country. Out 
 of this need grew the protection of those days — a 
 favoring of trade and of the productive industries, and 
 likewise the restrictive policy, the interdiction of ex- 
 portation of raw materials and precious metals. The 
 economic life was not conceived as that of a living or- 
 ganism but as a mighty reservoir to supply the public 
 and private expenditures of the rulers. 
 
 The principles of this political policy were not theoreti- 
 cally taught but practically followed. Of the literary 
 contributions, the so-called "political testaments," of 
 which there are three, should be mentioned; one is 
 attributed to Cardinal Richelieu (1585-1642) ; another 
 to Colbert (1619-1683); and a third to Louvois (1641- 
 1691). 1 The genuineness of the first is disputed; the 
 
 '■ "Testament politique du Cardinal-due de Richelieu,'' 1688. 
 The edition before me is the eighth, in two volumes. The Hague 
 1740. 
 
 "Testament politique de Jean Baptiste Colbert," The Hague 
 1693. 
 
§ 31] MERCANTILISTS AND PHYSIOCRATS 167 
 
 other two were composed by Sandras de Courtilz,^ and 
 are more in the nature of questionable historical sketches 
 than of pohtical works. ^ In the ninth chapter of the 
 "testament," attributed to Colbert, the ruler is urged 
 to win the regard of his subjects;' but the precept 
 leads to no notable consequences. 
 
 2: QuESNAY AND OTHER PHYSIOCRATS. The physi- 
 ocrats,* particularly Quesnay (1694-1774), the founder of 
 this school, transferred the position of the Stoics to the 
 theory of economic forces. Just as Spinoza, in so far as he 
 is consistent, applied the laws of nature to the conduct 
 of men and to "natural law," just as more recently 
 Gumplowicz looked upon the individual as coming under 
 the dominion of objective laws, so Quesnay believed 
 in natural laws, by virtue of which the economic con- 
 ditions and changes were definitely determined. Such 
 a naturalistic conception tends to favor fatalism and 
 determinism and a policy of resignation. For if mate- 
 rial laws constitute the decisive factors affecting the 
 growth and nature of human effort, the individual be- 
 comes the helpless and impotent plaything of natural 
 
 "Testament politique du Marquis de Louvois," 1693. The edition 
 I am using is Cologne 1695; in that Part I, pp. 1-381, give a purely 
 historical exposition. 
 
 ' R. V. Mohl, "Die Geschichte und Literatur der Staatswissen- 
 schaften," 3 vols., p. 405. 
 
 ^ Co/ieri'i "Testament" bears in the very title the remark : "Testa- 
 ment pol. ... in which appears all the events of the reign of Louis 
 le grand up to the year 1684. With remarks on the government of 
 the kingdom." The first six chapters are historical, and the others 
 contain not much else. 
 
 ' Chapter IX treats of the love which the monarch owes to his 
 subjects (and also of taxes!). See p. 444: "A prince should seek 
 to reign in the hearts of his subjects rather than to subdue their 
 wills by the fear of his authority." 
 
 * See Turgot's chief work, "Reflexions sur la Formation et la Dis- 
 tribution des Richesses." 
 
168 CIVIC EMANCIPATION [Ch. V 
 
 forces, — a passive instrument of a universal natural 
 order. Quesnay, however, used the assumption of an 
 all-conditioning "natural law" as an incentive to efTort, 
 as a means for establishing an intellectual ideal and for 
 determining the measures which shall advance men 
 towards that ideal. This aspect of the physiocratic sys- 
 tem favors the suspicion that their "natural" economics 
 was something different from what its literal interpre- 
 tation seemed to indicate; and such is really the case. 
 The basis of the physiocratic position is negation. It 
 is primarily a protest against the system of protection and 
 trade restriction of the mercantilists. For the correct com- 
 prehension of this system an introductory consideration 
 is necessary. Quesnay's doctrine holds that the effort 
 of rulers and their officials to regulate the economic 
 life according to their standards are futile and perni- 
 cious, for no human interference can permanently and 
 enduringly influence the operation of natural laws and the 
 prescribed order and relation of economic forces. In- 
 stead of attempting to correct such natural laws, the 
 proper goal is to place economics in harmony with them ; 
 thereby will the "ordre naturelle" be achieved. Such 
 a condition would be the most favorable, for it would 
 be in accord with "natural law."^ Thus interpreted, 
 the physiocratic doctrine becomes an economic declara- 
 tion of independence directed against the protective 
 and exclusive dominance of self-seeking monarchical 
 rule.^ 
 
 The doctrine of the dominance of natural law in 
 human affairs is the "illusion" by means of which the 
 
 1 "The physical laws which constitute the natural order most 
 advantageous for the human race and which confirm the natural 
 law of all men." . . . Quesnay, "Oeuvres," by A. Oncken, p. 645. 
 
 ^ Bauer, "Zur Entstehung der Physiokratie," emphasizes that the 
 views of the physiocrats "grew upon the soil of the Revolution." 
 
§31] MERCANTILISTS AND PHYSIOCRATS 169 
 
 economic freedom of the citizens or subjects, as against 
 the authority of the monarch, was first explicitly real- 
 ized. From this follows the fundamental position cf the 
 physiocrats that the State should in no manner inter- 
 fere with economic life, but should permit freedom of 
 unrestrained competition: "The natural safeguard of 
 business lies in the free and unrestrained competition 
 that secures for every people the largest possible num- 
 ber of buyers and sellers, and the most advantageous 
 price for its sales and purchases." "La police naturelle 
 du commerce est done la concurrence libre et immense, 
 qui procure k chaque nation le plus grand nombre pos- 
 sible d'acheteurs et de vendeurs, pour lui assurer le 
 pris le plus avantageux dans ses ventes et dans ses 
 achats."^ In general the State should limit its activity 
 to the protection of the country from external attack, 
 and to the security of law within its borders. The watch- 
 word of the physiocrats is contained in the phrase of 
 MiRABEAU (1715-1789) : "Laissez faire et laissez passer." ^ 
 Agriculture ^ was conceived to be the root of national 
 
 ^Qtiesnay, "Oeuvres," by A. Oncken, p. 656. 
 
 'Oncken, "Geschichte der Nationalokonomie,'' I, p. 404. Mira- 
 beau, "L'ami des Hommes," III, chaps. 3 and 5. In the latter 
 the removal of restrictions is demanded by reason of justice and 
 utility (pp. 218 seq., 290-292). The principle of justice is that 
 formulated by Thomasius: "Do not to another what you would 
 not have another do unto you" (p. 218). 
 
 The Physiocrats believed that the course of trade was best left to 
 organize itself, and, too optimistically, considered that self-interest 
 and justice were in most cases identical. /. Bonar, "Philosophy 
 and Political Economy," p. 145. 
 
 ^Quesnay, Article "Fermiers," Extrait de I'Encyclopedie (Ques- 
 nay, "Oeuvres par Oncken," p. 159) : "Farmers are those who establish 
 and give value to the wealth of the country and who procure the 
 most essential and valuable resources for the maintenance of the 
 State." 
 
170 CIVIC EMANCIPATION [Ch. V 
 
 wealth:' "La terre est I'unique source des richesses"; 
 the cultivation of the soil must accordingly be relieved 
 of all burdens and taxes. The attempts of Turgot 
 (1727-1781) at legislative reform in the direction "of the 
 physiocratic position failed by reason of the opposition 
 of the French ruling classes. It was in China'' that 
 Quesnay thought to have found a model State 
 incorporating the physiocratic views; and therefore 
 he looked upon despotism as it existed in the Chinese 
 Empire as the ideal government. It was because of 
 such views that his political influence during the period 
 of the French Revolution was lessened;' in England, 
 however, his views found favor. 
 
 § 32. The Classical Economists: Adam Smith: Ri- 
 cardo. 1: Industrial Development: the Economics of 
 Adam Smith. The mercantile system looked upon the 
 monarch as the central point of governmental interest; 
 
 Art. "Grains" (pp. 193-249). Included therein are "Maximes 
 de Gouvernement .ificonomique" ; pp. 233 seq. Industrial labor does 
 not increase wealth (p. 233). The wealth of the tillers of the soil 
 create the wealth of civilization (p. 235). See also pp. 299-304, 
 305 seq., 379-383, 384-395. 
 
 Industry is never productive. See '.'L'ordre Naturel et Essentiel 
 des Societes Politiques" (in regard to the author of this work see 
 below, note 13), Vol. II, chaps. 52, 53. 
 
 ^Quesnay, "Oeuvres," p. 337. Also Miraheau, "L'ami des 
 Hommes," I, chaps. 1, 3, 5, 8. One must increase the fertility of 
 agriculture in order to extend the population. "L'ami des Hommes," 
 I, chaps. 1, 2. Also II, chap. VIII, p. 577. 
 
 '"Despotisme de la Chine" {Quesnay, "Oeuvres par Oncken," pp. 
 563-660). The work of Mercier de la Riviere, which was influenced 
 by Quesnay or upon which he collaborated, is of like tendency. See 
 alao Elster in "Handworterbuch der Staatswissenschaften," Vol. II, 
 pp. 717 seq. "L'ordre Naturel et Essentiel des Societes Politiques." 
 (Anonymous, 2 vols., London 1767.) See especially Vol. I, chaps. 
 9-12. 
 
 'Bauer, "Zur Entstehung," etc., p. 157, note 2, gives the opinions 
 of Diderot and the Encyclopedists. 
 
§32] CLASSICAL ECONOMISTS 171 
 
 accordingly the wealth of the nation was dependent 
 upon the national exchequer. The physiocrats attempted 
 to assimilate human activity to the type of a depersonal- 
 ized nature ; for them the most important occupation was 
 that closest to nature. National prosperity was accord- 
 ingly made dependent upon agriculture. In England 
 particularly, there emerged a new productive class, 
 the industrial class, whose status was greatly developed 
 and transformed through the introduction of machinery. 
 Adam Smith (1723-1790)i became its prophet, and 
 Ricardo its most notable advocate. According to Adam 
 Smith, labor is the basis for the satisfaction of human 
 needs and for supplying the necessaries and conveniences 
 of life; 2 and free industrial competition becomes the 
 fundamental economic principle. 
 
 It may be that unconsciously the political or partisan 
 attitude of the student eventually shapes his economic 
 position. To realize the exceptional significance for 
 
 '■Adam Smith's well-known work is "An inquiry into the nature 
 and causes of the Wealth of Nations" (5 books), 4 vols., 1776. I 
 cite from the fourth edition, Basle 1801. Lectures on justice, police, 
 revenue, and arms. Delivered in the University of Glasgow by 
 Adam Smith. Reported by a student in 1763 and edited by Edwin 
 Cannan, Oxford 1896. (See Article, "Adam Smith," in Handwor- 
 terbuch der Staatswissenschaften, Vol. 6, p. 756.) 
 
 2 "Wealth of Nations," Vol. I, p. 1. "The annual labor of every 
 nation is the fund which originally supplies it with all the neces- 
 saries and conveniences of life which it annually consumes, and which 
 consist always either in the immediate produce of that labor, or in 
 what is purchased with that produce from other nations." 
 
 Hence the importance of studying the organization of labor and 
 the best division of labor to increase productivity. See "Wealth of 
 Nations," Book I, chaps. 1-3, and "Lectures by Adam Smith," edited 
 by Cannan, pp. 161-173. 
 
 A further source of national wealth is thrift. See Skarzynski, 
 "Adam Smith als Moral Philosoph," etc., Berlin 1878, p. 372, where 
 he particularly emphasizes this source of national wealth. 
 
172 CIVIC EMANCIPATION [Ch. V 
 
 economic philosophy cf Adam Smith and Ricardo, it is 
 necessary to appreciate how enormously the economic 
 influence of industry has been extended and developed 
 since their day, and to appreciate further that the inter- 
 vening political development has been one vast economic 
 struggle. The conflict is twofold : the struggle of indus- 
 trial capital for supremacy and recognition in law and 
 economics, and the economic emancipation of the 
 industrial laborer. 
 
 The interests of the rapidly developing industries of 
 England were directed not alone to the provision of the 
 needs of home consumption, but also to the extension 
 and conquest of a world-market. For this there was 
 needed the protection of the State against hostile attacks, 
 and a guaranty of peace and of the trade and commerce 
 that flourish under peace. There was needed also a legal 
 protection from within; for the free circulation of 
 industrial products requires a prompt and certain jus- 
 tice. There were needed cheap provisions for the masses ; 
 for the smaller the expenditure upon which the laborer 
 can supply his livelihood, the lower, other things be- 
 ing equal, may his wages be maintained, and the more 
 favorable will be the competitive industrial condition; 
 hence the corn tax, which raised the price of bread, was 
 abolished. Finally there was needed freedom of con- 
 tract to place the capitalists in the position of vantage 
 as against the economically weak laborer. Such, in 
 outline, are the essential positions upon which the advo- 
 cates of free trade since the days of Adapi Smith base 
 their economic demands. The free traders demand a 
 State of negative legal function, "Rechtsstaat," so that 
 industrial interests may flourish. The anti-protectionist 
 views of the physiocrats supported the political policies 
 demanded by English industrialism. In view of Adam 
 Smith's personal acquaintance with Quesnay, it is pos- 
 
§ 32] CLASSICAL ECONOMISTS 173 
 
 sible that he was influenced by the physiocrats ; it may, 
 however, be that he derived his economic position 
 directly from the "natural law" of the preceding school ; ^ 
 yet the question has but an historic interest. In reality 
 Adam Smith's doctrine of economic freedom of oppor- 
 tunity formed a new protectionism in behalf of working 
 capital, especially of industry, including trade. While 
 previously, prohibition or restriction of trade sought 
 the economic protection of privileged industrial classes, 
 industrial freedom was now to be made further service- 
 able by protecting class interests. This principle of the 
 classical school was fundamental and distinctive; and 
 its importance is not altered by the fact that Adam 
 Smith regarded a protective tariff as justified ^ under 
 certain conditions. The protection of industry, and of 
 working capital in particular, under the plea of industrial 
 freedom, was not a pure and undisguised expression of 
 class interest, but was made to assume the illusory form 
 of a plea for justice. According to Adam Smith and his 
 school, the economic freedom that makes possible free 
 competition is a fundamental and natural right. "All 
 systems either of preference or of restraint, therefore, 
 being thus completely taken away, the obvious and 
 simple system of natural liberty establishes itself of 
 its own accord. Every man, so long as he does not 
 violate the laws of justice, is left perfectly free to pursue 
 his own interest in his own way, and to bring both his 
 industry and capital into competition with those of 
 any other man, or order of men."' 
 
 ^Hasbach, "Untersuchungen uber Adam Smith," p. 207, and (in 
 connection with Hasbach) W . Ed. Bierman, "Staat und Wirthschaft," 
 p. 61. 
 
 ''Book IV, chap. 2. See also Schiiller, "Die klassische Nationalo- 
 konomie und ihre Gegner,"pp. 59 seq. ; and W. Ed. Bierman, "Staat," 
 etc., pp. 64 seq., 75. 
 
 3 "Wealth of Nations," Book IV, chap. 9 (Vol. 3, p. 308), and in 
 other places. 
 
174 CIVIC EMANCIPATION [Ch. V 
 
 2: RiCARDO. The formulation of the principle of 
 industrial freedom as one of justice is emphasized by 
 RiCARDO ^ (1772-1823). In his theoretical views and eco- 
 nomic position 2 he agrees entirely with Adam Smith, 
 and advances the same arguments. He, too, stands for the 
 economic liberty of the individual and for non-inter- 
 ference of the State in the affairs of economics. His 
 importance consists in his position as a pioneer in estab- 
 lishing an economic order on the basis of natural law. 
 The advocates of natural law had assumed its existence, 
 and on this assumption had founded what to them 
 seemed a just model State. In a similar spirit Ricardo, 
 as an economic philosopher, undertakes to outline a 
 natural economic order and to determine the natural 
 laws of economics, which were also to be the laws of 
 justice. Ricardo represented the economic philosophy 
 of natural law par excellence ; Adam Smith prepared the 
 foundations therefor, but it remained for Ricardo to 
 complete the structure. 
 
 '■Schmoller, "Die Gerechtigkeit in der Volkswirthschaft,'' 1880 
 (first appearance in SchmolIer's"Jahrbuch") Vol. V, 1881, p. 19; and 
 reprinted in Schmoller "Zur Sozial-und Gewerbepolitik der Gegen- 
 wart" (Reden und Aufsatze), Leipzig, 1890, p. 205. He aptly says: 
 
 "No one was more convinced than Adam Smith, Turgot, and 
 some of their true disciples, that the reforms which they demanded 
 would bring about a more absolutely just distribution of property. 
 The faith in the justice of their demands was the strong point of the 
 economics of 'natural law.' It is as a logical consequence of 'natural 
 freedom and justice' that Adam Smith demanded free trade and 
 unrestricted commerce. Free individual competition. ... is pre- 
 sented by Ricardo, the most distinguished disciple of Adam Smith, 
 as a demand of justice towards all working men." See also Berolz- 
 heimer in "Hirth's Annalen," 1904, p. 523. 
 
 ^ His chief work is "Principles of Political Economy and Taxa- 
 tion." The edition from which I cite is "The works of David Ricardo" 
 by McCuttoch, London 1846. (See the introduction by the editor on 
 Ricardo's life and writings, pp. XV-XXXIIL) 
 
§ 32] CLASSICAL ECONOMISTS 175 
 
 An attempt to trace the complex economic life back 
 to a relatively small group of economic laws, and to 
 combine in a simple formula the intricate relations in- 
 volved, cannot cover all concrete situations. Reality 
 presents an indefinite number of grades and shades. 
 This intricacy of actual relations Ricardo did not ignore. 
 On the basis of his commercial experience he had occa- 
 sion to confirm what he well knew, that the natural 
 value and price of every article of economic trade were 
 subject to large fluctuations. But Ricardo's method 
 was not to determine statistically the average of the 
 actual fluctuations in value, and to establish an ideal 
 average of the just range of prices. On the contrary he 
 undertook in a purely deductive fashion to determine 
 their natural values. His procedure suggests that of 
 the physicist, who does not determine the law of gravity 
 empirically, nor questions the correctness of the law which 
 he deduces, because in the actual phenomena, the law of 
 gravity in consequence of friction does not strictly 
 apply. Every fluctuation of the market price, as com- 
 pared with the natural value and price, is based upon the 
 effect of supply and demand. Under fluctuating condi- 
 tions the market price varies above the natural price, 
 according to the relation of current demand and supply. 
 If conditions were steady, and supply and demand 
 remained in a state of balance, then the market price 
 would coincide with the natural price and value.^ By 
 reason of competition the market price ever tends to 
 approximate to the natural value. In the determination 
 of these natural values Ricardo proceeds upon Adam 
 Smith's principle that only labor produces value. Accord- 
 ingly labor, that is, the average quantity and quality of 
 labor expended upon an object, determines the value 
 
 '"Principles," chap. IV. 
 
176 CIVIC EMANCIPATION [Ch. V 
 
 of economic commodities. ^ The central doctrine of 
 Ricardo's system is his theory of value, which forms the 
 introduction to his "Principles." Adam Smith had 
 taught that a distinction should be made between the 
 "value in use" and the "value in exchange." Apart 
 from objects that cannot be duplicated at pleasure, 
 and to which their rarity lends value — notably works 
 of art — and which form but a small portion of the 
 articles of exchange, and considering only such products 
 as may be indefinitely reproduced, it follows that the 
 value of every useful article of every kind of wares, and 
 "of every commodity or the quantity of any other 
 commodity for which it will exchange," will be deter- 
 mined by the amount of labor necessary for the produc- 
 tion of such article without regard to the scale of wages 
 paid for its production.^ As part of the labor involved 
 in the production of an article must be considered not 
 alone the labor expended directly upon that article, 
 but also a pro rata charge upon the tools, machinery, 
 and manufacturing plant used in its production.' The 
 natural value of commodities, in so far as machinery is 
 involved, will be influenced by the fixed and working 
 capital and by the permanence of such fixed capital.* 
 Accordingly the cost of production determines the 
 natural value of every commodity, and in this general 
 law of value Ricardo includes the value of labor. The 
 natural value of labor thus consists in the cost of pro- 
 duction of the labor itself, that is, in the cost of the 
 necessary maintenance of the laborer and his family. 
 
 ^"Labour is the foundation of the value of commodities, of the ex- 
 changeable value of all things. This is Ricardo's guiding principle." 
 See "Principles," chap. I, p. 10; chap. IV, p. 47. 
 
 ^ "Principles," chap. I, § 1. 
 
 ^ "Principles," chap. I, § 3. 
 
 * "Principles," chap. I, §§4, 5. 
 
§ 32] CLASSICAL ECONOMISTS 177 
 
 The natural wage is the equivalent of the minimum 
 cost of livelihood of the laborer necessary for the proper 
 enjoyment of his life and provision for his family.^ 
 Owing to the law of supply and demand, the market value 
 in Ricardo's opinion can never permanently rise above, 
 or fall below the natural value in terms of labor; and 
 this for the reason that every long-continued increase 
 of the market value of labor above the natural value of 
 labor will result in an increased size of the family, and 
 later an increase in the supply of labor; and on the 
 other hand, any permanent lowering of the market 
 value of labor below the natural price will decimate the 
 ranks of the laborer, and result in a lowered supply of 
 the commodity, labor, and consequently an increase 
 in the market price thereof. This iron wage-law, "eherne 
 Lohngesetz," condemns the laborer permanently to a 
 bare existence wage, to a slavery under productive 
 capital. This explicit and definite fixation of the natural 
 wage, and the resulting legitimized exclusion of the great 
 mass of the people from the good things of life, has been 
 decidedly influential in awakening the class conscious- 
 ness of the proletariat, in leading laborers to form 
 organizations, so that they may successfully demand their 
 just share of the profits of their labor. Indeed the posi- 
 tion of Adam Smith and Ricardo, that labor alone pro- 
 duces value, supports the position of the socialists in 
 their demand for an adequate compensation for the 
 wage earner. In the development of his economic 
 
 ijn his essay on Ricardo in the "Hand, der Staatswis.," Diehl 
 notes that Ricardo does not regard the natural wage as the physio- 
 logical minimum of existence and has not carried out "the iron- 
 bound" law of wages consistently. However, the introduction of 
 machinery resulted, for quite a time, in limiting the development of 
 the wages of the industrial laborer to a minimum existence wage. 
 Practice went even beyond theory. 
 
178 CIVIC EMANCIPATION [Ch. V 
 
 theory, Ricardo endorses Bentham's utilitarian philoso- 
 phy of which he became an adherent. The position 
 that the self-interest of the individual coincided with the 
 general welfare was for him an indisputable doctrine. 
 The economic philosophy of Ricardo is a utilitarian 
 bourgeois philosophy reduced to simple terms. 
 
 3: Say. J. B. Say^ (1767-1832) cannot be regarded 
 as the author of an influential and original economic 
 theory. His relation to his eminent predecessors, Adam 
 Smith and Ricardo, is similar to that of Lasalle to Marx. 
 Say popularized the teachings of the English free trade 
 school and introduced them into France. In a measure 
 opposed to his English predecessors, Say repeatedly 
 emphasizes that the desire for gain is not the exclusive 
 motive to be considered in the economics of human 
 affairs. 
 
 4: Malthus. The name of Malthus^ (1766-1834) is 
 associated with an important factor in the growth of 
 population — a factor furthermore entailing grievous 
 consequences. The chief work of Malthus, "An Essay 
 on the Principle of Population," contains the important 
 statement that population has a tendency to increase 
 more rapidly than the means of subsistence necessary 
 to its maintenance. This is the Malthusian law.' 
 
 'Say's chief works are. "TraitS D'Economie Politique, ou Simple 
 Exposition de la Maniere dont se Forment, se Distribuent et se Con- 
 somment les Ricliesses,"3 vols., first edition, Paris 1880. I cite from 
 the fifth edit., Paris 1826. "Catechisme D';ficonomie Politique." 
 "Cours Complet D'ficonomie Politique," 6 vols., Paris 1828-29. 
 
 ^On the principles of the Malthusian law in Adam Smith see 
 Skarzynski, "Adam Smith als Moralphilosoph und Schopfer der 
 National-okonomie." Berlin 1878, pp. 362-364. 
 
 '"Supposing the present population equal to a thousand millions, 
 the human species would increase as the numbers 1, 2, 4, 8, 16, 32, 
 64, 128, 256, and subsistence as 1, 2, 3, 4, 5, 6, 7, 8, 9." (Bk. I, chap. 
 II, p. 15.) 
 
§ 32] CLASSICAL ECONOMISTS 179 
 
 Moral restraint, as well as vice and poverty, are the 
 factors which will equalize the increase of population 
 and adjust it to the available means of subsistence.^ 
 
 It is as an application of this idea that the Neo-Mal- 
 thusians advocate the restriction of the family — the 
 so-called "two-child" policy — and in several countries, 
 notably in France, this has checked the increase of the 
 population to such an extent as is likely in the course of 
 time to be momentous for the manning of those coun- 
 tries for defense. The teachings of Malthus are also 
 responsible for the misleading doctrines which for a 
 considerable time sought to check the increase of the 
 population in the interest of public welfare. 
 
 Malthus represents a transition from the classic 
 school to the modern social-ethical movement, in that 
 he emphasizes altruism in economic policy as an equaliz- 
 ing and mitigating measure. He recognizes the hard- 
 ships and injuries that arise from the operation of 
 economic self-interest, and studies the mutual relations 
 of self-interest and altruism.^ He belongs to the new 
 movement in national economics for the additional 
 reason that he pursues his investigations upon an his- 
 torical and empirical foundation. 
 
 ' In Book I, chap. II (pp. 33, 34), Malthus presents the following 
 propositions: "1. Population is necessarily limited by the means of 
 subsistence; 2. Population invariably increases where the means of 
 subsistence increase, unless prevented by some very powerful and 
 obvious checks; 3. These checks, and the checks which repress the 
 superior power of population, and keep its effects on a level with 
 the means of subsistence, are all resolvable into moral restraint, 
 vice, and misery." Malthus repeats this principle literally in Book 
 II, chap. XIII, Vol. II, p. 216, in the last chapter of his historical 
 considerations. 
 
 ' "An Essay on the Principles of Population," Book IV, chap. X, 
 "Of the Direction of our Charity." Also Bk. IV, chap. I, "Of Moral 
 Restraint." 
 
180 CIVIC EMANCIPATION [Ch. V 
 
 § 33. Kant, Fichte, Schopenhauer. 1 : Kant, (a) The 
 Historical Position of Kant. In the consideration of 
 Kant's ^ (1724-1804) philosophy of law and ethics a 
 distinction must be made between the material content 
 and the form — meaning by the lat1 er the course and 
 the procedure by means of which the result is construc- 
 tively obtained. In its content, Kant's philosophy of 
 law is influenced by Thomasius, Leibnitz, and, despite 
 Kant's antagonism to Wolff's hedonism, by Wolff 
 himself. In its form, Kant's practical philosophy is 
 affiliated with the position of "natural law," and the 
 interpretation derived therefrom, and bears traces of 
 the distinctive Kantian method as embodied in the 
 "Critique of Pure Reason." Kant's ethics is but a^ 
 secularization of the ethics of Christianity, which, , 
 indeed, is hardly improved by his formulation. In 
 developing his practical philosophy, Kant incorporated 
 Thomasius' ^ philosophy of law, including his definition 
 of justice; he also built upon the "vir bonus" of Leib- 
 nitz — characterized as "sapiens" and "Justus." He 
 was antagonistic to the hedonism of Wolff and to the 
 utilitarianism of Hobbes; for these doctrines seemed to 
 him too insecure, and the emotion of happiness too 
 subjective and intangible, to afford a durable basis for 
 an ethical system. In thus definitely holding aloof 
 from the hedonistic principle, Kant's ethics and legal 
 
 'The following works of Kanl are here pertinent: "Idee zu einer 
 allgemeinen Geschichtein weltbiirgerlicher Absicht, "1784. "Grund- 
 legung zur Metaphysik der Sitten," 1785. "Kritik der Praktischen 
 Vernunft," 1788. "Ueber den Gemeinspruch : Das mag in der 
 Theorie richtig sein, taugt aber nicht fiir die Praxis," 1793, II. 
 "Vom Verhaltnis der Theorie zur Praxis im Staatsrecht," "Zum 
 ewigen Frieden," 1795. "Metaphysische Anfangsgriinde der 
 Rechtslehre," 1797. I cite from the edition in 10 vols, Vols. 4, 5, 
 Leipzig 1838. 
 
 ^ See above. 
 
§33] KANT, FICHTE, SCHOPENHAUER 181 
 
 philosophy pursued a course diametrically opposed to 
 that of Wolff; ethics regained its objective foundation, 
 and was released from an inadequate psychological 
 motive — the pursuit of happiness. Kant returned to 
 the older view that the essence of ethics lies in sacrifice 
 — a view developed by Christianity in the spiritual form 
 of the altruistic sentiment -of neighborly love ; ^ and he 
 interprets disinterestedness as a moral duty. In his 
 philosophy of government Kant rejected the theories 
 of popular welfare and paternalism, and emphasized the 
 function of the State as an institution of law and justice. 
 In these considerations he showed the influence of 
 Rousseau. 
 
 (5) Kant's Ethics. The "Grundlegung der Meta- 
 physik der Sitten" aims to define morals in so large a 
 philosophic sense as to include the concept of law.^ The 
 "vir bonus" served Leibnitz as his point of departure; 
 similarly Kant begins with "what alone may be con- 
 sidered unreservedly good," namely, good will or intent. 
 This good will, "though with reservations and limita- 
 tions," is expressed in the concept that "occupies a fore- 
 most place in the judgment of conduct, and conditions 
 all relations" — the concept of duty. Actions acquire 
 moral value only when they arise, not from inclination, 
 but from a sense of obligation. An action performed for 
 an ulterior purpose, or in response to selfish impulse, 
 cannot be called moral. Moral value may be ascribed 
 only to actions resulting "from the conception of a self- 
 sufficient law." Such direction of the will towards the 
 good, determined through appreciation of the nature 
 of principle or law, is possible only to "rational beings." ' 
 But what is the nature of the principle itself? "As I 
 
 1 See above, § 20. 
 
 '^ "Grundlegung zur Metaphysik der Sitten," Vol. 4, p. 8. 
 
 5 "Grundlegung," pp. 10, 11, 14, 16, 19, 20, 28. 
 
182 CIVIC EMANCIPATION [Ch. V 
 
 have deprived the will of all impulses which it might 
 have obtained through dependence upon a specific law, 
 there is nothing left but the one motive of loyalty to 
 law itself. This, indeed, is the only proper motive for 
 the will to act upon; in other words, I should never so 
 act that I cannot will that my rule of conduct may be- 
 come a universal law." ^ 
 
 The conception of a principle that determines the will 
 is called by Kant "a command" or a "formal command," 
 which implies that the principle thus conceived is, as to 
 its content, an imperative. The imperatives are of two 
 kinds; the hypothetical imperative presents the neces- 
 sity of an act as a means towards a desired end; "the 
 categorical imperative is that which presents an act 
 as of itself objectively necessary, ^ without reference to 
 any ulterior end." This categorical imperative refers 
 only to the form and to the principle in virtue of which . 
 the act results; it is the imperative of the moral.' As 
 the categorical imperative comprises "in addition to 
 the law, the obligation that the rule of conduct shall be 
 in accord with the law, while the law involves no limit- 
 ing condition, there remains nothing beyond the law in 
 general to which the rule of conduct shall conform." 
 The term "maxim," or rule of conduct, represents the 
 subjective principle of action and is to be distinguished 
 from the objective principle, which the practical law 
 specifies. Hence the conception of the categorical im- 
 perative involves its content; and this reads: "Act 
 so that your rule of conduct permits you to desire that 
 it may become a universal law." * 
 
 •"Grundlegung," p. 20. "Act according toa principle which may 
 also serve as a general law." ("Metaphysische," etc. "Collected 
 Works," 5, p. 25.) 
 
 ^ "Grundlegung," p. 35. 
 
 ^"Grundlegung," p. 38. 
 
 * "Grundlegung," p. 43. 
 
§ 33] KANT, FICHTE, SCHOPENHAUER 183 
 
 If such categorical imperative is to govern the human 
 will, there must exist a supreme principle which is a 
 "purpose unto itself," and thus constitutes an objective 
 principle for the will, and accordingly may become a 
 universal practical law. The basis of this principle lies 
 in itself, and constitutes the self-sufhcient character of 
 the rational nature. "The rational nature is a purpose 
 unto itself." Pursuant to this rational basis man con- 
 siders his own existence ; hence the action upon principle 
 becomes the subjective principle of human action. By 
 virtue of the same basis every other rational creature 
 forms the conception of its own existence. The prin- 
 ciple thus becomes at once an objective one, from which 
 "as the supreme practical principle we should be able to 
 derive all the laws of the will." The practical impera- 
 tive therefore reads: "Act so that you treat humanity, 
 whether expressed in your own person, or in the person 
 of another, ever as an end, never merely as a means." ' 
 In other words, respect yourself and your neighbor as a 
 rational being, as one amenable to culture. Here may 
 be detected the germ. of the "Kulturstaat," as outlined 
 by Fichte, and elaborated by Hegel. 
 
 In Kant's view the categorical imperative becomes 
 valid only on the assumption of human freedom. The 
 ^autonomy of the will is the supreme principle of morality ; 
 it is that "quality which makes the will a law unto 
 itself," independent of the nature of the objects of its 
 desire. Hence the principle of autonomy is "never to 
 choose otherwise than that the rule of conduct of your 
 choice may likewise be willed as a general law." ^ To 
 be autonomous the human will must be free. "The 
 conception of freedom is the key to the understanding 
 
 * "Grundlegung," pp. 52 seq. 
 '"Metaphysische," etc., pp. 57, 66. 
 
184 CIVIC EMANCIPATION [Ch. V 
 
 of the autonomy of the will." ^ "The difference between 
 the laws of nature, to which the will is subject, and a 
 nature subject to a will, consists in the fact that in the 
 latter case objects must be the causes of the concepts 
 determining the will, while in the former the will is the 
 cause of the objects, the causal relation thereof being 
 resident in the capacity for pure reason, which, on that 
 account, may also be called a practical reason." ^ In 
 other words, by virtue of the rational will, man is master 
 of himself, a free man, free. 
 
 Kant thus determines the relation between the law 
 of morality and free will. The existence of the moral 
 law — which has but one meaning if men are capable 
 of pursuing it — leads to the inference of the free will ; 
 for freedom is the material assumption of the moral 
 law. "Freedom is the basis of man-made moral law, 
 and the latter becomes the means of knowing freedom." ' 
 The freedom of the will cannot be inferred or established 
 theoretically, but is a practical inference from the very 
 existence of the moral law. 
 
 (c) Kant's Philosophy of Law. Law is "the aggre- 
 gate of the conditions under which the arbitrary will 
 of one individual may be combined with that of another 
 under a general inclusive law of freedom."* Law in 
 contrast to morality thus refers to external practical 
 affairs. Accordingly the general principle of justice 
 reads: "So conduct your affairs that the free use of your 
 will is compatible under a general law with the freedom 
 of everyone else."^ 
 
 i"Metaphys.," etc., pp. 73-93. 
 
 ^"Kritik der praktischen Vernunft," "Collected Works," IV, p. 
 149. 
 
 ^ Falckenberg, "Geschichte der neueren Philosophie," fifth edit., 
 p. 342. 
 
 ^"Metaphys.," etc., "Complete Works," V, p. 30. 
 
 ^"Metaphys.," etc., p. 31. 
 
5 33] KANT, FICHTE, SCHOPENHAUER 185 
 
 '^ According to Kant a State is "an association of men 
 under a system of laws.''^ Were it not for their dis- 
 tinctive phraseology, Kant's expressions^ on the origin 
 of the State would read like the words of Rousseau: 
 "The action whereby the people constitute themselves 
 into a State, but in reality form only the conception 
 thereof — the conception determining how the conform- 
 ity to law shall be thought of — is the original contract. 
 By such contract, each and all of the people give up 
 their external freedom in order to resume it again as 
 members of a common body — of the people considered 
 as a State. It is not proper to say that the individual 
 for a purpose has sacrificed to the State a part of his 
 inherent liberty, but that he has abandoned a crude 
 lawless freedom, in order again to resume it unimpaired 
 in a law-abiding dependence, in a legal condition — and 
 this because such dependence originates from his own 
 law-determining will." This in substance is Rousseau's 
 "Social Contract."' But the difference between the 
 position of "natural right" in Kant, and in pre-Kantians, 
 consists in that in the legal philosophy of the former, 
 the development from the pre-legal condition — a state 
 of lawlessness, "status justitia vacuus," — to the civic 
 condition which the State brings about, is an issue of 
 reason, a conception of the understanding.^ A further 
 merit of Kant is his rejection of Hobbes' view that 
 
 V in entering the State men give up all their rights.^ This 
 Spinoza had already set forth in his view that the free- 
 
 ' "Metaphys.," etc., p. 145. 
 
 '"Metaphys.," etc., p. 148. 
 
 ' See above, § 29. 
 
 * "Metaphys.," etc., pp. 144 seq.; "Vom Verhaltnis der Theorie," 
 etc., "Collected Works," V, p. 391. 
 
 'The essay "Vom Verhaltnis," etc., bears in its title the words, 
 "against Hobbes." "Collected Works," V, p. 382. 
 
186 CIVIC EMANCIPATION [Ch. V 
 
 dom of man was necessary to his dignity and is inalien- 
 able. Kant solves the problem of legal coercion by 
 holding that by the establishment of the State, human 
 freedom is made secure. This again is the same prob- 
 lem which Rousseau had set himself in the "Contrat 
 Social," and is essentially the same solution. Kant fur- 
 ther agrees with Rousseau in regarding this solution as 
 not historically but theoretically applicable.^ 
 
 According to Kant the warrant of legal freedom of 
 each member of the State is implicitly contained in the 
 principle of law, and reaches a general expression in the 
 law. In detail three a priori principles^ form the basis 
 of the legal condition: first, the freedom of every mem- 
 ber of the community as a man; second, the equality 
 of each with every other as a subject (as a consequence 
 of this idea of equality, every citizen is eligible to any 
 office, "to every rank of position in the commonwealth 
 to which his talents, his industry, and his fortune may 
 bring him," thus setting aside all hereditary privilege); 
 third, the independence of each member in the State 
 as a citizen. From this follows the right of serving as 
 a legislator. Anyone having a right of vote in legisla- 
 tion becomes a citizen, "citoyen," "Staatsbiirger.' The 
 conception of the legal State, "Rechtsstaat," finds clear 
 expression in these principles and is furthermore con- 
 sidered under legislation. "The only permanent con- 
 stitution is that in which the law is supreme and depends 
 
 'In addition to what has been cited see also "Metaphys.," etc., 
 p. 176: "It is futile to trace the historical origin of this govern- 
 mental mechanism; that is, one cannot reach the period at which 
 civil society begins." 
 
 ^ "These principles are not laws derived from the State as estab- 
 lished, but laws determining how the establishment of the State, 
 in accordance with the rational principles of objective human law, 
 is alone possible." "Vom Verhaltnis," etc., p. 383. 
 
 '"Vom Verhaltnis," etc., pp. 383-391. 
 
§33] KANT, FICHTE, SCHOPENHAUER 187 
 
 on no individual person. The ultimate purpose of all 
 public law is a condition of affairs in which each individ- 
 ual absolutely receives that to which he is entitled." ^ 
 
 In the controversy with Hobbes, Kant again distinctly 
 opposes the principle of happiness, "which in fact does 
 not amount to a definite principle," in these words: 
 "The sovereign desires to make the people happy accord- 
 ing to his own views, and becomes a despot. The people 
 are unwilling to yield the universal claim to happiness 
 and become rebellious."^ 
 
 In his philosophy of punishment, Kant approves the 
 theory of retribution. "Judicial punishment can never 
 be merely a measure to further the good of another, either 
 of the offender himself or of society, but must always 
 be applied because the law has been violated." Kant 
 distinctly rejects the view of punishment as a means to 
 an end. "Punitive law represents a categorical impera- 
 tive, and woe to him who pretends to find in the mazes 
 of Hedonism an excuse for exemption from punishment 
 on the ground of a larger advantage. For if justice fails 
 there is no value in human life." "Even if civil society, 
 with the consent of all its members, were to be dissolved, 
 the last murderer confined in prison would first have to 
 be executed."' 
 
 In the work, "Zum ewigen Frieden," Kant outlines 
 and establishes the preliminary and definite provisions 
 for a permanent peace among nations.* 
 
 (d) The Origin and the Purpose of the State. The 
 philosophy of Kant presents a transition from the period 
 of "natural law" to that of modern legal philosophy. 
 According to the former position the State is established 
 
 1 "Metaphys.," etc., p. 178. 
 
 2 "Vom Verhaltnis," etc., p. 397. 
 ' "Metaphys.," etc. pp. 166-173. 
 
 < "Collected Works," IV, pp. 411-466. 
 
188 CIVIC EMANCIPATION [Ch. V 
 
 by conscious intent. The constitution of the State is 
 to be conceived in analogy with the foundation of an 
 association. Individuals come together and for definite 
 purposes found the State. This' position Kant never 
 wholly outgrew; yet his conception is far superior to 
 that of the position of "natural law," in that he undertakes 
 to prove that the State was founded not by human will 
 but by the reason as immanent in human will, the estab- 
 lishment being a response to the demands of reason. The 
 decisive motive thus becomes, not the material welfare 
 which the State is to further, but the ideals and commands 
 of practical reason. By assuming this position Kant 
 solved, from the point of view of "natural law," three 
 difficult and fundamental legal problems of philosophy. 
 First: the foundation of the State appears as an objec- 
 tive necessity. The problem which Spinoza had formu- 
 lated but failed to solve, namely, the objective conformity 
 of the State and law to nature, is satisfactorily answered. 
 Second : the establishment of legal coercion by the State," 
 which for Rousseau was the decisive problem, Kant dis- 
 posed of much as Rousseau had done. He concluded 
 that freedom is not destroyed by the State, but is re-es- 
 tablished therein, and elevated to true freedom. Third: 
 through these steps the political life of the State is 
 developed. The constitution and legislation of the State 
 proceed not in response to the ends of utility or happi- 
 ness, but to the idea of freedom. The State, inspired 
 with the spirit of freedom, is one in which there is no 
 form of despotism, but one in which legal rights are 
 protected, "Rechtsstaat." Freedom becomes equiva- 
 lent to the comprehensive dominion of law; so long as 
 law prevails the dignity of man is secure. 
 
 (e) The Present Significance of Kant's Philosophy. 
 The question arises as to the present significance of 
 the Kantian philosophy. When a century hence the 
 
§33] KANT, FICHTE, SCHOPENHAUER 189 
 
 historian of civilization looks back to our time, he 
 might readily conclude, in view of the many memorial 
 volumes contributed at the beginning of the twentieth 
 century to commemorate the centennial of Kant's phil- 
 osophy, that we stood completely under the influence of 
 Kant. Such an impression must be resolutely removed. 
 Kant's greatness is limited to his day and generation. 
 Viewed from our present position, Kant's metaphysics 
 must be pronounced fundamentally false ; his philosophy 
 of law is that belonging to the outgrown position of 
 the "Rechtsstaat"; his ethics is sound only in its formal 
 trend, that is, in itsrejection of Hedonism. The Kantian 
 philosophy presents a dual aspect. It represents at 
 once the beginning of a new era, but more especially 
 the concluding moment, the last great uprising of ration- 
 alism in general philosophy, and of the doctrine of 
 "natural law" in legal philosophy. The decline of 
 "natural law," both in its mode of presentation and in 
 its formal content, begins with Kant. 
 
 Up to his time philosophy employed the technical 
 language of the scholar. The literature was in Latin or 
 French ; though the English wrote in their own language, 
 German was not employed by the Germans. Leibnitz 
 published only some scattered essays in German, and 
 Wolff used the language for such writings as were ad- 
 dressed to a large circle of readers and were not con- 
 ceived in a strictly scientific temper. Kant made the 
 German language available for philosophy, but his German 
 was not the language of the people, such as characterizes 
 Luther's translation of the Bible. It was the language 
 of the specialist, conceived in Latin, in a Latin style, and, 
 through its abundance of technical terms, removed from 
 the common comprehension. The important problem 
 of post-Kantian philosophy should naturally have been 
 to simplify the philosophic diction, to clarify it, and to 
 
190 CIVIC EMANCIPATION JCh. V 
 
 Teutonize it. This mission was accepted only by 
 Schopenhauer, and by those following in his footsteps, 
 such as von Hartmann, Diihring, and Nietzsche; for 
 what, in contrast to the literary philosophy — "Salons- 
 philosophie" — of Schopenhauer, may be called the scien- 
 tific tendency of the post-Kantian philosophy of Fichte, 
 Hegel, and the Hegelians, is yet more difficult, abstruse, 
 and artificial in expression. Since the days of Kant 
 the unfortunate tradition has become legitimized in 
 philosophic writings to use such involved language that 
 the uninformed reader acquires a profound respect for 
 the depth of the philosopher; and instead of gaining an 
 impression of the unprofitableness of the philosophic 
 author, he infers his own incapacity to follow so lofty 
 a train of thought. From the days of Kant the fallacy 
 has prevailed that it is not philosophical to write clearly 
 and simply. Consider by way of contrast the pre- 
 Kantian philosophy; when couched in Latin, the 
 language is simple and clear; the French works are 
 even elegant and spirited, and those in English are not- 
 ably lucid. Until the days of Kant, philosophy was the 
 common property of the educated classes and a source 
 of inspiration for all science; since his day philosophy 
 has become increasingly the specialty of a guild, and has 
 lost in general significance. 
 
 These defects in form stand in close relation to the 
 mode of logical procedure of philosophy from Kant to 
 Hegel. Kant was presumably in earnest in attempting 
 to exclude experience and the results of experience from 
 philosophy. Pure or experienceless reason alone was 
 considered adequate to yield philosophic knowledge. 
 Inasmuch as in reality this postulate could not be carried 
 through without condemning philosophy to a barren 
 sterility, and confining it to mere elementary deductions, 
 the results of experience are furtively introduced. They 
 
§33] KANT, FICHTE, SCHOPENHAUER 191 
 
 must disown their empirical character by appearing as 
 rational products, by a transformation into the products 
 of reason. This wearisome transformation and the 
 artificial procedure which it necessitates find a welcome 
 instrument in an artificial language; and the legacy of 
 this linguistic artifice in large measure persists in modern 
 philosophical writings, although the present-day phil- 
 osopher has little need of such contrivances, except 
 perhaps to conceal how meager or how unphilosophically 
 simple is his stock of ideas. 
 
 We here reach an additional evidence of decline in 
 much of the post-Kantian philosophy, and particularly 
 in the ethics and the philosophy of law; though this 
 applies with many exceptions, notably that of Hegel's 
 construction of a universal science, upon an historical 
 basis. Pre-Kantian philosophy in large measure derived 
 its data from the rich mine of a many-sided life ; it drew 
 its resources from the inexhaustible font of experience. 
 Philosophy was worldly wisdom. The accredited phil- 
 osophers of the day were for the most part men notable 
 in contemporary movements, responsive to the events, 
 of their time, and to the wealth of experience and 
 manifold personal relations of a full life. Military 
 leaders and statesmen, politicians and practical jurists, 
 drew from the wealth of complex experience the positive 
 data from which a philosophic interpretation might be 
 derived. But after Kant, philosophy became, in the 
 '^ain, a specialty; and men wrote upon ethics without 
 knowing human kind, and on the philosophy of law 
 without a thorough knowledge of law; hence the de- 
 tachment of philosophy from worldly widom and its 
 scholastic development. In due course a reaction set in. 
 A philosophic naturalism came forward, finding its sup- 
 port in the natural sciences, advocating an empiricism 
 which recognized natural laws and natural products 
 
192 CIVIC EMANCIPATION [Ch. V 
 
 alone, and to which man was nothing more than a most 
 delicately organized mechanism. A materialistic em- 
 piricism replaced philosophy, and ushered in a period, 
 the conclusion of which we are now witnessing, but 
 which is as yet not wholly superseded. We still suffer 
 from the reaction which followed upon the dissolution 
 of the doctrine of "natural law" and upon the post- 
 Kantian decline of philosophy. 
 
 It would thus appear that Kant has slight significance 
 for the present legal philosophy and particularly for 
 economics, which is in large measure being replaced by 
 a wholly practical sociology, with a program of social 
 utilitarianism, seeking the welfare of society. This 
 sociology follows Ihering in viewing the end sought as 
 the purpose of the law. This "social welfare" philoso- 
 phy is clearly unrelated to the position of Kant. It is 
 in a measure a reinstatement of the position of WolfT, a 
 reconstruction of his paternally regulated State, in which 
 the social spirit of the law takes the place of the benevo- 
 lence of the absolute monarch and his decrees. In so 
 far as an independent philosophy of law is today recog- 
 nized, it stands in diametrical opposition to the philoso- 
 phy of Kant; for the latter is thoroughly rationalistic, 
 a priori, based upon pure reason, while the former is 
 inductive and empirical, and proceeds upon the data of/ 
 history and comparative law. 
 
 2: FiCHTE (1762-1814). (a) The Position of Fichte. 
 In the development of Fichte's ^ practical philosophy two 
 
 ' "Johann Gottlieb Fichte's Werke," published by J. H. Fichte, 
 vols. 3, 4, 6, 7, Berlin 1845-1846. "Posthumous Works," published 
 by /. H. Fichte, 2 vols., Bonn 1834. "Zuriickforderung der Denk- 
 freiheit von den Ftirsten Europas, die sie bisher unterdruckten," Rede 
 aus dem Jahre 1793. ("Collected Works," VI, pp. 3-35.) "Beitrag 
 zur Berichtigung der Urteile des Publikums fiber die franzosische 
 Revolution," 1793. ("Collected Works," VI, pp. 39-288.) "Grund- 
 lage des Naturrechts nach Prinzipien der Wissenschaf tslehre, " 1798. 
 
§33] KANT, FICHTE, SCHOPENHAUER 193 
 
 periods are clearly distinguishable. In the first period, 
 Fichte as a Kantian reasserts the "Rechtsstaat," the 
 constitutional State, but shows the influence of Rous- 
 seau in providing a nullification clause in the civic 
 contract. In the second period Fichte goes beyond the 
 "Rechtsstaat" and regards the State and the members 
 thereof not as fixed and unalterable, but as subject to 
 evolution. Fichte advances from the conception of the 
 State as the embodiment of law, "Rechtsstaat," to the 
 State accepting the mission of culture, "Kulturstaat." 
 In this he anticipates Hegel, and in his consideration of 
 the human race in its entirety, and in its development, he 
 foreshadows Schelling. Equally notable is Fichte's 
 career as a statesman, the awakener of the German na- 
 tional consciousness. The transition from the first to the 
 second period is marked by the formulation of the State 
 of economic protection. Fichte undertakes an economic 
 construction in which the factor of personal dignity, 
 emphasized by Kant, shall be practically embodied in 
 
 ("Collected Works," Vol. Ill, Part 2 A, "Zur Rechts- und Sittenlehre, " 
 Vol. I, p. 385.) "Das System der Sittenlehre nach den Prinzipien 
 der Wissenschaftslehre," 1798, "Collected Works," IV (Part 2 A, 
 Vol. 2, pp. 1-365). "Dergeschlossene Handelsstaat. Ein philosoph- 
 ischer Entwurf als Anhang zur Rechtslehre und Probe einer kunftig zu 
 liefernden Politik," 1800. ("Collected Works," Vol. Ill (II, part A, 
 Vol. I, pp. 388-513.) "Die Grundziige des gengenwartigen Zeital- 
 ters," 1804. ("Collected Works," Vol. VII, pp. 3-256.) "Reden an 
 die deutsche Nation," 1808. ("Collected Works," VII, pp. 259- 
 499.) "Anhang zu den Reden an die deutsche Nation," written in 
 1806, but never published independently. ("Collected Works," 
 VII, pp. 503-516.) "Politische Fragmente aus den Jahren 1807, 
 1813. ("Collected Works," VII, 597-604.) "DasSystem der Rechts- 
 lehre in Vorlesungen," 1812. ("Posthumous Works," II, pp. 493- 
 652.) "Die Staatslehre oder uber das Verhaltnis des Urstaats zum 
 Vernunftreich in Vorlesungen," gehalten im Sommer, 1813, auf der 
 Universitat zu Berlin; published Berlin 1820. ("Collected Works," 
 Vol. IV, pp. 367-600.) 
 
194 CIVIC EMANCIPATION [Ch. V 
 
 the economic relations. The State must be so organized 
 that each individual may be recognized as an economic 
 factor. In the development of this conception Fichte 
 falls into a strange Utopian socialism. 
 
 (6) Fichte's Philosophy of Law. Fichte's "Grund- 
 lage des Naturrechts nach Prinzipien der Wissenschafts- 
 lehre" was written before the appearance of Kant's 
 "Metaphysische Anfangsgriinde der Rechtslehre," and 
 in complete independence of the latter's views. Influ- 
 enced by Rousseau, Fichte made human freedom cen- 
 tral. "Every man is by nature free, and no one but he 
 himself has the right to impose a law upon him." "Every 
 man again becomes free as soon as he so desires, and 
 has the right to withdraw from obligations which he 
 has imposed upon himself." Such are the words in the 
 "Beitrag zur Berichtigung der Urteile des Publikums 
 iiber die franzosische Revolution." ^ Freedom and 
 human dignity form the text of this address, in which 
 is demanded "a restitution of the rights of free thought 
 on the part of the rulers of Europe, by whom they had 
 been refused." In speaking of the human conscience, 
 Fichte calls it "the divine spark in human nature that 
 elevates man above the brute creation, and makes him 
 a citizen of the world, of which the first member is 
 God. His conscience commands him directly and uncon- 
 ditionally to will one thing and not to will another — 
 and this freely and of his own volition, without external 
 compulsion." "To be able to think freely is the dis- 
 tinctive difference between the human and the animal 
 mind." "Civil society" is based upon the free act of 
 will of those participating in the common organization. 
 
 1 "Collected Works," VI, pp. 262, 263. Lasson in "J. G. Fichte im 
 Verhaltnis zu Kirche und Staat," p. 167, comments as follows: "The 
 dominant temper of this work may be most simply indicated by 
 calling it Jacobin, while admitting the presence of other factors." 
 
§33] KANT, FICHTE, SCHOPENHAUER 195 
 
 "Civil legislation becomes valid for the individual only 
 in so far as he freely accepts it" — by what token is 
 immaterial — and "thus freely imposes the law upon 
 himself."! 
 
 In the "Grundlage des Naturrechts," the influence of 
 Rousseau is in part obscured by the Kantian train of 
 thought. In tracing the origin of the State and the 
 law, and the State as embodying the law, Fichte proceeds 
 upon the model supplied by Kant. The purpose of the 
 conception of law is to provide an association between 
 free individuals. The law must be so formulated that 
 in principle each member of spciety may be conceived as 
 restricting his external freedom by the exercise of an 
 inner freedom so that all may likewise be free. Hence 
 the obligation to restrict one's individual freedom by 
 reference to the concept of the freedom^ of all others with 
 whom relations are maintained. Yet this postulate 
 merely sets forth the condition under which alone the 
 State and law are possible. The existence of a law- 
 abiding community depends upon the mutual restraint 
 of the freedom of the component individuals. But this 
 condition of itself is not adequate to the establishment 
 of the State. Its necessity^ is not yet proven. Such 
 necessity is a postulate of the practical reason. "If 
 reason is to be realized in the world of experience, 
 then it must first be made possible for several rational 
 
 ' "Collected Works," VI, pp. 11-13. 
 
 2 "Collected Works," III, pp. 9-11, 17-56, 89. "The deduced 
 relation between rational beings through which each limits his 
 freedom by the consideration of making possible the freedom of 
 others, provided that others likewise will restrict their freedom, may 
 be called the legal relation; and the formula thus enunciated is 
 the principle of law." p. 52. 
 
 ' "Up to this point no absolute reason has been advanced why 
 anyone should accept the legal formula as the law of his own will 
 and action." 
 
196 CIVIC EMANCIPATION [Ch. V 
 
 beings to live together."' Consistently with Fichte's 
 theoretical philosophy,^ law becomes a condition of 
 individual self-consciousness. The individual cannot 
 become conscious of himself without at the same time 
 positing the existence of other rational beings. For 
 Fichte, as for Kant, law, and through it the State, is 
 the direct product of reason. In contrast to the mate- 
 rialistic conception, the civil contract, by means of 
 which the State is instituted, has no decisive significance. 
 Strictly speaking, it is of formal, not substantive, conse- 
 quence; it is not constitutive, but declaratory. The 
 civil contract need not necessarily be agreed to; any 
 manner of recognition of the State, even the consent 
 of silence, is sufficient. 
 
 The maintenance of law and the State are dependent 
 upon an almighty superhuman will loyal to the principle 
 of law. There must be assumed "a will which becomes 
 an actual power infallibly when it resolves to realize 
 law."' There must be a guaranty that within the 
 State no injustice shall fall upon any member thereof. 
 Such guaranty must be absolute, and cannot be resident 
 in any human authority. The absolute efficiency of 
 the guaranty can be secured only by having the law, 
 which is the embodiment of right, automatically make the 
 community sensitive to any arbitrary action, to any 
 injustice to an individual. For this purpose Fichte, 
 following Rousseau, would so organize the State that the 
 civil contract may be nullified. The relation must be 
 so constituted that every injustice, however minute, 
 against an individual shall also, and by the same token, 
 become an injustice against all; that every form of 
 
 1 "Collected Works," III, p. 92. 
 
 ''Berolzheimer, "System," etc.. Vol. I, pp. 74-89, particularly 
 pp. 87-89. 
 
 ' "Collected Works," III, pp. 92-106. 
 
§33] KANT, FICHTE, SCHOPENHAUER 197 
 
 violation of the civil contract shall, by that very fact, 
 nullify it, and by the very mechanism of the law shall 
 justice be automatically secured.' 
 
 In theory this automatism of the law is beautifully 
 conceived. To Fichte the State becomes so complete 
 and balanced a construction that any disturbance, how- 
 ever slight, of its equilibrium would bring disaster; and 
 assuredly all would be zealously mindful of the law lest 
 the State be endangered. Viewed practically in consid- 
 eration of governments and laws as they are, the notion 
 becomes an absurdity in which Fichte's extreme ideal- 
 ism and his insistent pursuit of an idea, once assumed to 
 be correct, have here, as elsewhere, imposed upon his 
 judgment. 
 
 The superiority of Fichte's view to the doctrine of 
 natural law consists in his clear recognition of the non- 
 existence of any law antecedent to or outside of the State 
 — that accordingly the assumption of "natural law," 
 of a primitive or original law, serves only as a scientific 
 hypothesis. ' 'There are no primitive or inalienable human 
 rights. Man acquires rights only as a member of a 
 community. Primitive right ('Urrecht') is thus a mere 
 fiction required by science." ^ Thus conceived, the prim- 
 itive right is, in accord with Kant, the respect of per- 
 sonality, in deference to which man never becomes 
 morally a means, but must be regarded and dealt with 
 as an end. Fichte thus formulates primitive right: "It 
 is the absolute right of the individual to be but a cause 
 or agent,' 'Urasache' [that is, not an effect], in the 
 world of experience." As, strictly speaking, outside of 
 the State there is no law, so equally there is no universal 
 citizenship. It is true that Fichte assumes it, but he 
 
 1 "Collected Works," III, pp. 106-111, 120-149, 150-187. 
 
 2 "Collected Works," III, p. 112. 
 
 3 "Collected Works," III, p. 113. 
 
198 CIVIC EMANCIPATION [Ch. V 
 
 makes of it merely the shadow of a right, limited to the 
 privilege of moving about and asserting one's personal- 
 ity. "The right of the world-citizen consists in the right 
 to walk about freely on earth, and to establish legal 
 associations."^ 
 
 Fichte distinguishes between what is legal and what 
 is moral. The requirements of the law are limited to 
 what is legal; the mechanism of the law, through the 
 right of nullification in the civil contract, makes it incum- 
 bent upon the will to desire only what is loyal to the 
 principle of law, and thus automatically supplies the 
 place of a well-disposed will.^ 
 
 In his "System of Ethics according to the Principles 
 of Science," Fichte makes it a moral and conscientious 
 duty of each one to associate himself with others in 
 the State.' He makes law, not a self-sufficient product 
 existing for its own sake, but a means towards the moral 
 education of man. The legally constituted State is a 
 matter of necessity. It is in and through the law that 
 men are arrayed against one another, for government 
 itself involves a certain mistrust. In order that the 
 moral ideal may properly contribute to the improvement 
 of man, the State dominated by mere legality must be 
 transformed into the State dominated by rationality. 
 The highest phase of the evolution would be a "com- 
 munity of saints," in which State and Church might 
 be dispensed with as no longer necessary.* 
 
 (c) Fichte's Philosophy of Economics. In his work 
 on "The Closed Commercial State," Fichte develops 
 his economic philosophy. Of its fundamental principles 
 the first is found in Fichte's philosophy of property, 
 
 » "Collected Works," III, p. 384. 
 
 2 "Collected Works,'^ III, pp. 140-142. 
 
 » "Collected Works," IV, pp. 206 seq., 238 seq. 
 
 ' "System der Sittenlehre, " "Collected Works," IV, pp. 238-241. 
 
§33] KANT, FICHTE, SCHOPENHAUER 199 
 
 in his "Grundlage des Naturrechts." He there assumes 
 that the general civil contract contains a contract of 
 guaranty of property, and in addition, a guaranty of 
 protection. Each man stakes his entire possessions as a 
 pledge that he will not infringe upon the property of 
 others; but the absolute inalienable possession of all men 
 consists in their ability to live by their labor. If anyone 
 cannot earn a livelihood by his labor, then, in his case, 
 the property contract is broken, and he is no longer 
 bound thereby; it becomes void, and with it, the general 
 civil contract is set aside. "^ 
 
 A second fundamental principle arises from the trans- 
 fer to the economic field of Kant's doctrine of the dig- 
 nity of the individual; thus transferred, it follows in an 
 economic respect that every man must be regarded as 
 a self-sufficient individual, as a personal end. It must 
 further be noted that in Fichte's time the liberal agita- 
 tion arising in France was spreading throughout Europe, 
 and that the ideas of the French Revolution deeply 
 impressed him, as appears in his writings and in the 
 influence of Rousseau upon his philosophy. 
 
 Upon these principles Fichte developed his economic 
 philosophy. The essential postulate of the closed com- 
 mercial State is that the State must guarantee every- 
 one the right of existence. "The purpose of human 
 activity is to enable one to live; and all who have been 
 granted life by nature have the same claim to this privi- 
 lege. The division of rights must thus first be so arranged 
 that all may be able to exist. Live and let live!"* 
 Fichte, however, does not confine himself to this postu- 
 late, but sets forth as a desirable end an equal division 
 of the means of subsistence among all members of 
 
 1 "Grundlage des Naturrechts," "Collected Works," III, pp. 195 
 seq., 210 seq. 
 
 ' "Der Geschlossene Handelsstaat," "Collected Works," III, p. 402. 
 
200 CIVIC EMANCIPATION [Ch. V 
 
 the industrial State. ^ His proposals for carrying out 
 these ideals are so wholly impracticable, so little worthy 
 of discussion, so ill-suited to bring about the desired 
 results, that their further presentation may be omitted.^ 
 (d) Law and Culture. In his later contributions 
 to the philosophy of law, Fichte goes beyond the con- 
 ception of the legally regulated State, and, in a measure, 
 anticipates the views which Schelling and Hegel empha- 
 sized and developed. The legally regulated State exists 
 for the benefit of the individual. Fichte's command of 
 the historical spirit led him to see that the center of 
 interest and development was not the individual but 
 the human race as a whole. In his "Grundziige des 
 Gegenwartigen Zeitalters," it is the race and not the 
 individual that appears as the object of the State. The 
 State is no longer conceived as static but as a member of 
 an evolutionary series and at once the issue thereof; 
 the "Rechtsstaat" becomes the "Kulturstaat";' the 
 interests of culture outweigh the importance of law. 
 Historically conceived, evil is presented as the converse 
 of that which makes for right.^ In his "System der 
 Rechtslehre," law appears as the necessary condition 
 of morality, and the State becomes a means to secure 
 freedom. Its final purpose is morality; which, achieved, 
 
 1 "Der Geschlossene Handelsstaat," Collected Works," III, pp. 
 402 seq. 
 
 ' "Der Geschlossene Handelsstaat," "Collected Works," III, pp. 
 408 seq. 
 
 ^ "Die Grundziige des Gegenwartigen Zeitalters," "Collected 
 Works," VII, p. 143-170, 187 seq., 221. 
 
 * "Die Staatslehre," "Collected Works," IV, pp. 431-496, 497-600. 
 "The extension of the dominion of reason over nature advances by 
 degrees; this dominion must be attained up to a certain point by a 
 co-operative effort and from such a point further progress is pos- 
 sible to a yet greater conquest, and to a clear conception of purpose 
 on the part of the human race." (p. 585.) 
 
§33] KANT, FICHTE, SCHOPENHAUER 201 
 
 in so far tends to make law superfluous and to bring 
 about its own dissolution.' 
 
 (e) Fichte as a Statesman. In his "Reden an die 
 Deutsche Nation," Fichte appears as a statesman. He 
 pleads for an efhcient training and conscious pursuit of 
 character to build up a new generation that shall be of 
 the nation and for the nation. He pleads for a national 
 Germanic consciousness that shall discard all narrow 
 limitations within German lands so that there may 
 arise a unified Germany composed of sturdy men. "I 
 speak for Germany and of Germans, and I decline to 
 recognize, indeed, I ignore and repudiate, all dis- 
 sensions and factions which unfortunate events have foi 
 centuries produced among those in reality forming a 
 single nation." ^ In these addresses he proved himself 
 an enthusiastic patriot, proclaiming the German national 
 spirit, and an effective champion in the contest for 
 German national development — as the protagonist of 
 a German empire and German nation. These addresses 
 form his enduring monument; in them appears the 
 greatness of the man as a patriot and as a spiritual 
 leader of his people. 
 
 3 : Schopenhauer. The importance of Schopenhauer 
 (1788-1860) as a philosopher is at present apt to be 
 overrated; however, his treatment of the freedom of 
 the will ' must be considered in its bearing on the 
 philosophy of law, especially because it has recently^ 
 and to my mind falsely, been regarded as of large in. 
 
 ' "Das System der Rechtslehre in Vorlesungen," "Posthumous 
 Collected Works," II, pp. 499 seq., 515 seq., 640-642. 
 
 2 "Reden an die Deutsche Nation," "Collected Works," VII, p. 
 266. 
 
 ' "Preisschrift fiber die Freiheit des Willens. Die beiden Grund- 
 probleme der Ethik," second edit., pp. 11 seq. (Schopenhauer's 
 Works in six vols., Grisebach edit., Vol. Ill, pp. 391 seq.) See also 
 Berolzheimer, "Die Entgeltung im Strafrechte," pp. 40-48, 78, 97 seq. 
 
202 CIVIC EMANCIPATION [Ch. V 
 
 fluence upon the theories of punishment. ^ Schopen- 
 hauer adapted and, as he thought, demonstrated Kant's 
 doctrine that the will is not free in the world of experi- 
 ence, and is free only in the world of intellect.^ The 
 sense of responsibility, according to Schopenhauer, finds 
 its roots in character: "Operari sequitur esse." The 
 intellectually free will is reflected in character. Scho- 
 penhauer liked to be regarded as a disciple of Kant; 
 as, however, he upheld the absolute unalterability of 
 character, he placed himself in diametric opposition to a 
 principle of Kant's ethics, which postulates the trans- 
 formation of the will or character from the natural to 
 the moral will. In his prize essay "Uber die Grundlage 
 der Moral," Schopenhauer takes Kant's ethics as his 
 point of departure; but influenced by Buddhism, he 
 accepts the doctrine of resignation, the negation of the 
 will to live, and pessimism.^ Schopenhauer's paradox 
 that injustice is the positive conception as opposed to 
 justice was doubtless directed against his successful 
 contemporary, Hegel, who regarded injustice as the 
 mere negation of justice. "Injustice or wrong consists 
 in tlie injury of another; hence the conception of wrong 
 is positive, and is antecedent to that of right, which is 
 its negative, and merely refers to such actions as one 
 may practice without injuring others; that is, without 
 committing wrong." ^ The existence of a natural law 
 
 ^ Berolzheimer, "Die Entgeltung," etc., pp. 100-109. 
 
 ^ "Die beiden Grundprobleme," etc., pp. 483 seq. 
 
 ^Schopenhauer, "Die Welt als Wille und Vorstellung," Vol. I, 
 Book 4 ("Der Welt als Wille zweite Betrachtung: bei erreichter 
 Selbsterkenntnis Bejahung und Verneinung des Willens zum Leben"), 
 and Vol. II, Book 4 (supplements to Book 4 of the first volume). 
 
 A supplement to both of these writings is found in the essay "Zur 
 Ethik," chap. VIII, Vol. II of "Paralipomena." * 
 
 ^ "Preisschrift iiber die Grundlage der Moral," § 17. (Grise- 
 bach edition, Vol. Ill, p. 598.) 
 
 * Grisebach edition, Vol. V, pp. 205-246. 
 
1 33] KANT, FICHTE, SCHOPENHAUER 203 
 
 is thus presented by Schopenhauer. "The conceptions 
 wrong and right, as equivalent to injury and non-injury, 
 to which latter also belongs prevention of injury, are 
 obviously independent of positive legislation, and 
 antecedent to it. There thus exists a pure ethical law, 
 or natural law, and a pure science of law independent 
 of all statutes." ^ With reference to punishment he 
 advocates a position combining the view that it is 
 inflicted in fulfillment of the law ("Bewahrungstheorie") 
 with the view that its purpose is the prevention of 
 crime. ^ 
 
 See also Schopenhauer, "Die Welt als Wille, etc.," Vol. I, Book 4, 
 § 62, p. 400. (Grisebach edition, Vol. I, pp. 437 seq.) "Parerga 
 und Paralipomena," Vol. II, chap. 9, "Zur Rechtslehre und Politik" 
 (Grisebach edition, Vol. V, pp. 247 seq.). See also Ed. v. Hartmann, 
 "Phanoraenologie des sittlichen Bewusstseins,," Berlin 1879, pp. 
 506-512; Berolzheimer, "Die Entgeltung im Strafrechte," p. 231. 
 At one point Schopenhauer refers to a passage in Grotius which, 
 however, he wrongly interprets. See above. 
 
 ' "Preisschrift tiber die Grundlage der Moral," § 17 (Grisebach 
 edition). Vol. Ill, p. 598. 
 
 See also Schopenhauer, "Die Welt als Wille," etc.. Vol. I,, Book 
 IV, § 62, Grisebach edition. Vol. I, p. 440. 
 
 2 "On the other hand it is certain that apart from the State there 
 is no right of punishment. All right to punishment is based upon 
 the positive law alone, which before the offense has determined a 
 punishment for it, the threat of which, as a counter-motive, is in- 
 tended to outweigh all possible motives for the offense. This posi- 
 tive law is to be regarded as sanctioned and recognized by all the 
 citizens of the State. . . . Consequently the immediate purpose of 
 punishment is, in the particular case, the fulfillment of the law as a 
 contract. But the one purpose of the law is deterrence from the 
 infringement of the rights of others. It is in order that every one 
 may be protected from suffering wrong that men have combined 
 to form a State. . . . Thus the law and the fulfillment of it, the 
 punishment, are essentially directed to the future, not to the past. 
 This distinguishes punishment from revenge; for the motives which 
 instigate the latter are solely concerned with what has happened, 
 and thus with the past as such." ("Die Welt als Wille und Vorstel- 
 lung." Haldane's translation. Vol. I, p. 448.) 
 
204 CIVIC EMANCIPATION [Ch. V 
 
 § 34. Schelling and the Historical School. 1: Schel- 
 LiNG. ^ Schelling's (1775-1854) influence upon the phil- 
 osophy of law lies in the foundation which his contri- 
 butions supplied for the historical school, representing 
 the definitive break with the position of "natural law." 
 Yet Schelling's importance for the philosophy of law is 
 not confined to his doctrines bearing especially upon 
 this field. His work, "Die neue Deduktion des Natur- 
 rechts," ^ consists of a series of principles and brief 
 considerations which in the main present, in an altered 
 form,' Kant's and Fichte's legal philosophy; it reflects 
 Schelling's extreme idealism, yet contains many sug- 
 gestive passages bearing upon the nature of law. "Exist 
 in the highest sense of the word; cease to be a mere 
 appearance; strive to become a real being: such is 
 the supreme demand of practical philosophy." * To 
 be such a real being, or "absolutely free," man must 
 strive untrammeled, and be independent of any power 
 other than his own autonomy.* Autonomy as experi- 
 
 *The writings of Schelling here pertinent are: "Neue Deduktion 
 des Naturrechts," 1795, "Collected Works," Part I, Vol. I, Stutt- 
 gart and Augsburg 1856, pp. 245-280. "Ueber die Methode des 
 akademischen Studiums," Tubingen 1803, second edition, Stutt- 
 gart and Tubingen 1813. "System des transzendentalen Ideal- 
 ismus," Tubingen 1800. "Philosophische Untersuchungen (iber 
 das Wesen der menschlichen Freiheit und die damit zusam- 
 menhangenden Gegenstande, " 1809, "Col. Works,'' Part I, Vol. 7, 
 1860, pp. 331^16. "Einleitung indie Philosophic der Mythologie," 
 6. Vorlesung, "Col. Works," Part II, Vol. I, pp. 94-118. 
 
 ^ Schelling himself designates in an appendix his "Neue Deduk- 
 tion des Naturrechts," as aphorisms. He had in prospect a com- 
 mentary thereon. "Collected Works," Part I, Vol. I, p. 280. 
 
 ' Corresponding to Schelling's general philosophy of his first period 
 which in content is essentially Fichtean. See Berolzheimer, 
 "System," etc., Vol. I, pp. 89-92. 
 
 * "Neue Deduktion," etc., § 3. 
 
 '"Neue Deduktion," etc., §§4-8. 
 
§34] THE HISTORICAL SCHOOL 205 
 
 enced is life or the active causality of the subject.' The 
 expression of the subject is restricted by the physical 
 antagonism of nature and also by other subjects in the 
 moral world.^ It is the problem of ethics to maintain 
 the freedom of each through the freedom of all. "The 
 individual will is limited by the general will only in that 
 it becomes absolute through such restriction";' and it 
 is absolute only " in that it is restricted by the limita- 
 tion of the general will." According to Schelling, "the 
 supreme command of ethics is to conduct yourself in 
 such manner that your will may become absolute will, 
 that the whole moral world — that is, the world of 
 intellectual individuals — can will your action in con- 
 tent and form. So conduct yourself that through your 
 action no rational being is made a mere object, but 
 always a co-operative subject." * In their highest stages 
 ethics and law coincide. "Ethics solves the problem 
 of the absolute will in that it makes the individual will 
 identical with the general will; the science of law solves 
 the problem in that it makes the general will identical 
 with the individual will. Were each completely to 
 solve its respective problem, they would cease to be 
 opposed sciences." ^ For the rest, law and ethics are 
 distinct: the ethical is subject to the command of 
 duty; the legal is what is authorized. In developing 
 the nature of law on this basis, Schelling rightly recog- 
 nized that law constitutes 'he primary warrant. "What- 
 ever is theoretically possible I have the power to do; 
 whatever is practically possible I may do; what I may 
 do corresponds with what is right, as the term is ordinarily 
 
 1 "Neue Deduktion," etc., § 9. 
 2"Neue Deduktion," etc., §§ 10-24. 
 3 "Neue Deduktion," etc., § 44, §§ 30-44. 
 * "Neue Deduktion," etc., § 45. 
 6 "Neue Deduktion," etc., § 72. 
 
206 CIVIC EMANCIPATION [Ch. V 
 
 used; and the practical possibility by means of which 
 anything becomes right is what is meant by law." ^ 
 
 He further distinguishes between the content and 
 form of the permissible, the lawful. The content of 
 the permissible, or the content of law, is the law as 
 sanctioning; that is, the authorization which is created 
 by the law for the conduct of the individual. But the 
 law is at the same time a limiting force, or a restricting 
 norm;^ and this fundamental function of the law Sch el- 
 ling terms the form of the permissible or of the legal. 
 Every rightly permissible action is, according to Schelling, 
 at first a general permission, and secondly, also a limited 
 permission.' This general permission furnishes the 
 content of the law; the limitation or restriction within 
 a given realm of what is permitted is the form of the law. 
 Thus the content of legally permitted action is limited 
 by the law. "The content of the law is determined by 
 the form of the law and not vice versa.^ 
 
 Schelling distinguishes the individual from the general 
 will ; ^ the former corresponds to what in his, and Fichte's 
 theoretical philosophy, becomes the ego; the general 
 will corresponds to the absolute.^ 
 
 The most direct principle of the law enunciates that 
 "you may do anything whereby you express the con- 
 tent of your will in so far as it is conditioned by the 
 
 ^ "Neue Deduktion," etc., § 65. 
 
 2 "Neue Deduktion," etc., §§ 77, 78, 79, and so on. 
 
 ^Schelling's expression is as follows ("Neue Deduktion,'' § 78): 
 "Ich darf uberhaupt, und ich darf etwas." "I am permitted to act, 
 and I am permitted to act in a specific way." One may thus dis- 
 tinguish between the content and the form of the permission. 
 
 ^"Neue Deduktion," etc., §§ 79 with 77. 
 
 '"Neue Deduktion," §§ 79 seq. 
 
 'Berolzheimer, "System," etc., Vol. I, pp. 85-92; Schelling, 
 "System des Transzendentalen Idealismus," pp. 80 seq. 
 
§34] THE HISTORICAL SCHOOL 207 
 
 form thereof." ^ All problems of legal philosophy are 
 concerned with the possibility of expressing the form 
 of the will,^ and must be derived from the contrast of 
 the form to the content of the will. The analysis of 
 the chief legal principles yields the following: "The 
 right of moral freedom in contrast to the general will, 
 that is, the complete right of the individual will with 
 reference to law-abiding as well as law-defying actions 
 on their content side; right in contrast to the individual 
 will, that is, the right of formal equality, or the right 
 of the self-assertion of the ego, — the right to express 
 one's own individuality in opposition to that of any 
 other; right in contrast to will in general, that is, the 
 right to the world of experience, to things and objects 
 in general, or natural right in the narrower sense." ^ 
 Schelling follows Kant ^ in not assuming the freedom 
 of the will in the world of experience, and in holding it 
 not valid for that world, but only for the intelligent 
 subject or ego, which for Schelling is the world of reason. 
 "Free action follows directly from the intelligent factor 
 in man." ^ 
 
 In the fifth lecture of the "Einleitung in die Philoso- 
 phie der Mythologie," Schelling raises the question as 
 to the origin of races. Such a question would be made 
 superfluous either by the assumption that "races have 
 always existed," or by the opposite assumption that 
 "races originated spontaneously." According to Schel- 
 ling only the second is worthy of discussion, and would 
 
 1 "Neue Deduktion," § 88. 
 
 ^ "Neue Deduktion," §§ 91 seq. 
 
 ' "Idealism first placed he doctrine of freedom in the realm in 
 which alone it is intelligible." "Philosophische Untersuchungen 
 iiberdas Wesen derMenschlichenFreiheit," etc., "Collected Works," 
 I, Vol. 7, p. 383. 
 
 ^ "Untersuchungen," etc., "Collected Works," I, Vol. 7, p. 384. 
 
 = "Neue Deduktion," § 140; also §§ 96-109, 110-140. 
 
208 CIVIC EMANCIPATION [Ch. V 
 
 imply that races spontaneously arose from the constant 
 increase of generations. But this assumption will not 
 hold; for by such process there would arise only tribes, 
 and not races. ^ The essential criterion of the diversity 
 of races is that the different races represent hetero- 
 geneous divisions of humanity. But the decisive factors 
 in the origin of such diversity could only have been 
 'internal causes, that is, causes spontaneously arising 
 within a homogeneous humanity." ^ 
 
 Schelling's views on the study of history and juris- 
 prudence — the association of the two being significant — 
 form the subject of a lecture in his "Vorlesungen fiber 
 die Methode des Akademischen Studiums." It is 
 commonly assumed that the events of nature are neces- 
 sarily fixed, but that this does not apply to human 
 history. History merely repeats and copies nature 
 in the ideal; to nature in the real world there corre- 
 sponds history in the ideal.' History may be con- 
 sidered either empirically, or from the point of view of 
 the absolute, in which latter case events are presented 
 as the mere appearance of the absolute. The empirical 
 treatment of history may proceed either pragmatically, 
 or by mere determination of facts — historical re- 
 search, which includes but one part of historical science. 
 The pragmatic method in history sets forth the histori- 
 cal material "in a special, not a general aspect," whereby 
 the universality of history is destroyed. History as a 
 science consists in the synthesis of facts with ideas 
 so that facts become the expression of ideas. Such 
 
 » "Collected Works," Part II, Vol. I, p. 94. 
 
 * "Collected Works," II, I, pp. 95 seq. 
 
 ' "Vorlesungen uber die Methode des Akad.," etc., pp. 213 seq. 
 "If pure substance ("an sich")' could be recognized in both (that 
 is, in nature and in history), we would see pictured before us what is 
 ideal in history to be real in nature." 
 
§34] THE HISTORICAL SCHOOL 209 
 
 phase of history is not philosophy, because philosophy 
 "holds aloof from reality and is wholly ideal while 
 history, though pertaining to the world of reality, must 
 also remain ideal." This preferred method of treating 
 history, "the third and absolute point of view of his- 
 tory," is the historical art.' 
 
 The practical sciences, including the science of law, 
 are distinguished from philosophy by their empirical 
 content, "by the historical factor." Only such phases of 
 the historical part of jurisprudence fall within the field 
 of science, "as constitute a statement of ideas. Thus 
 it is not that phase which is finite in nature, as are all 
 forms of laws, that depends solely upon the external 
 machinery of the State. The latter comprises most of 
 what is at present taught as the science of law, and in 
 which the spirit of public affairs but very sparingly 
 persists." ^ 
 
 A type of study that is not merely pragmatic, but 
 artistic and historical, is applicable to the form of public 
 life; for such life "presents necessary issues and may 
 be conceived according to its particular conditions as 
 the opposition of the incoming to the outgoing forms." 
 Private life, however, including private law, is detached 
 from the public phases thereof, and in such detachment 
 retains so little of absoluteness "as in nature attaches 
 to the existence of individual bodies and their particular 
 relations to one another." ^ In this statement, which goes 
 somewhat beyond his purpose, Schelling expresses an im- 
 portant thought. The modern development of law, from 
 the Renaissance to the last quarter of the nineteenth 
 century, under the favorable influence of an individual- 
 
 1 "Vorlesungen," etc., pp. 214-224; "System des transz. Ideal- 
 ismus," p. 420. 
 
 * "Vorlesungen," etc., pp. 226 seq. 
 
 • " Vorlesungen, " etc., pp. 228 seq. 
 
210 CIVIC EMANCIPATION [Ch. V 
 
 istic view of natural law, has tended to separate private 
 from public law, so that each seems to maintain an inde- 
 pendent existence in the State. It is only under the 
 influence of socialism that there has appeared an intimate 
 association of public and private law, and likewise a per- 
 meation of private law with the spirit of social ethics. 
 Yet this is but a transitional stage, and one of the 
 foremost problems of every future philosophy of law 
 will consist in reinstating the philosophical connection 
 between private and public law. According to my view 
 of legal philosophy the common issue of the two realms 
 is determined by the possibility of such distribution of 
 force within the State that the artificial legal position of 
 vantage of the individual throug'h his status in private 
 law shall at the same time increase the position of 
 vantage of the State. The modern attainment of indi- 
 vidual freedom thus appears safeguarded as against the 
 community, and at the same time there is established 
 the intimate association of public and private law, and 
 the elevation of private rights from their significance to 
 the individual to a matter of interest to the political 
 community, to the State. According to Schelling legal 
 science deserves the name only in so far as it is open to 
 an historical and not merely pragmatic study, that is, in 
 so far as it may be set forth in its legal determination 
 as a component of the absolute, as the expression of a 
 supreme idea.^ 
 
 In nature the absolute exists in itself, "an sich"; in 
 history it exists for a purpose, "fiirsich"; it becomes 
 objective. The issues of history are thus parts of the 
 organism of the absolute. Inasmuch as all objects are 
 products of the mind, and unconscious mind is an un- 
 consciously realizing purpose, all objects appear as parts 
 of a progressive organization whose highest aim is free- 
 
 1 "Vorlesungen," etc., pp. 227-229. 
 
§34] THE HISTORICAL SCHOOL 211 
 
 dom. The State is likewise an organic construction — 
 like man, an organism within the cosmic organism. ^ 
 Schelling conceives the philosophy of law not as an issue 
 of natural law already attained, and in course of develop- 
 ment, thus at once breaking with the naturalistic 
 point of view and establishing the foundations for the 
 historical school of law.^ The idea of the perfect State 
 will be achieved "whenever the particular and the gen- 
 eral form an absolute unity, whenever all that is neces- 
 sarily free and all that freely occurs also necessarily 
 occurs." The State must be primarily conceived as a 
 realized organization.' 
 
 2: Other Representatives of the Historical School. 
 Under the stimulus of Herder's* ideas upon historical^ 
 
 ' "System des Transz. Ideal.," especially pp. 322-451, 593-597; 
 also "Phil. Unters. uber das Wesen der Menschl. Freiheit," "Col- 
 lected Works," I, I, pp. 382-387. 
 
 * "System des Transz. Ideal.," p. 232: "The first effort of every 
 one who desires to attain a free understanding of the positive science 
 of law and government must be to acquire, by means of philosophy 
 and history, a vital view of the modern world and of the forms of 
 public life which it demands. One can hardly foresee what means 
 of culture may be available in this science if it could be treated in 
 an independent spirit, free from any bearing upon practice." 
 
 '"Vorlesungen," etc., pp. 229, 234; "System des Transz. Ideal- 
 ismus," pp. 411 seq., 422 seq. 
 
 Jurisprudence is therefore not a part of ethics, nor indeed of any 
 practical science, but is a purely theoretical discipline "which serves 
 the function for freedom which mechanics serves for motion, in 
 that it merely deductively sets forth the natural mechanism under 
 which free beings may be thought of in interaction — a mechanism 
 which doubtless can be attained only through freedom and to which 
 nature contributes nothing." "System des Transc. Ideal.," p. 406. 
 
 * Herder, "Ideen zur Philosophie der Geschichte der Mensch- 
 heit," Riga and Leipzig, 1785-1792, Part I, pp. 294 seq. 312 seq.; 
 Part II, pp. 189 seq., 301 seq. 
 
 'On the historical school in general see Stahl, "Geschichte der 
 Rechtsphilosophie," pp. 563-582. Geyer, "Geschichte und System 
 
212 CIVIC EMANCIPATION [Ch. V 
 
 development, Hugo (1768-1844) rejected "natural 
 law," became the founder of the historical school, and 
 foreshadowed the organic conception of the genesis of 
 law and government. Hugo interprets the philosophy 
 of positive law to be the "rational conception of what 
 may be legally right." ^ Metaphysical deductions are 
 pertinent only on their formal side; the content must 
 be derived from experience and history.^ 
 
 These views, which reflect Schelling's philosophy, 
 attain their most distinctive and characteristic develop- 
 ment in the brilliant jurist, Savigny' (1779-1861), 
 and in Puchta* (1798-1846); and likewise in Niebuhr 
 and Eichhorn. Savigny and Puchta made a thorough 
 study of the origin and development of positive law. 
 Savigny held that in primitive conditions civil rights 
 are as characteristic of the status of a people as are their 
 language, their customs, their constitution. Such phe- 
 nomena are not detached results, but "appear only as 
 one of several expressions and activities of a people, 
 which are really one, and become separate only in our 
 
 der Rechtsphilosophie in Grundziigen," pp. 96-99. Ahrens, "Natur- 
 recht," I, pp. 169-178. Lasson, "System der Rechtsphilosophie," 
 pp. 18 seq. 
 
 ' "Lehrbuch eines Zivilistischen Kursus," Vol. I, containing the 
 juridical Encyclopedia, Berlin 1799, 4th edit., 1811, 2 vols. "Lehr- 
 buch des Naturrechts als einer Philosophie des positiven Rechts," 
 Berlin 1799. 
 
 2"Lehrbuch des Naturrechts," §§ 48, 52, 53. Also "Lehrbuch 
 des Naturrechts," § 123. "Enzyklopadie," 4th edit., §§20, 21. 
 
 ' "Vom Beruf unsrer Zeit fiir Gesetzgebung und Rechtswissen- 
 schaft," 3d edit., Heidelberg 1840, pp. 8-15 ("Entstehung des 
 positiven Rechts"). "System des heutigen Romischen Rechts," 
 Vol. I, Berlin 1840, pp. XIII-XVI, 13-18 ("AUgemeine Entstehung 
 des Rechts"). 
 
 ^"Das Gewohnheitsrecht," I, Erlangen 1828, pp. 133-143 
 ("Entstehung des Rechts iiberhaupt. Kursus der Institutionen"). 
 Vol. I, Leipzig 1841, pp. 23-27, 35-37. 
 
§ 34] THE HISTORICAL SCHOOL 213 
 
 study thereof. What binds them together in a whole 
 is the common conviction of a people, the same sense 
 of inner compulsion that excludes any thought of an 
 accidental or arbitrary origin." ^ Law, like language, 
 stands in organic connection with the nature or charac- 
 ter of a people and evolves with the people. "Law grows 
 as the people grow, develops with the people, and de- 
 clines when the people lose individuality."^ As sum- 
 marized by Savigny, "Law arises according to what the 
 prevalent, though not quite pertinent phrase calls 
 'customary law,' that is, it is first produced by custom 
 and popular belief, and then re-enforced by jurisprudence. 
 Throughout it is the result of inner, silently working 
 forces, not of the arbitrary will of a law-giver."^ Accord- 
 ing to Savigny, positive law may also be called popular 
 law because it lives in the common consciousness of the 
 people; but it there prevails, not as abstract regula- 
 tion, but as "the living conception of legal institutions 
 in their organic connection."* 
 
 Quite similarly Puchta presents law as the expression 
 of a popular spirit, as the result of popular activity, 
 which "legally establishes not the individual as such, 
 nor as a member of the family, but as a member of the 
 people — the legal function thus belonging exclusively 
 to the people." In this respect law is set off against moral 
 conviction, which may be entertained by the individual, 
 the family, or the people. The entire body of the law 
 is a national possession and a national product; and 
 the conviction of the people is its source.^ 
 
 ' "Vom Beruf unsrer Zeit," etc., p. 8. 
 2 "Vom Beruf," etc., p. 11. 
 ' "Vom Beruf," etc., pp. 13 seq. 
 
 * "System," I, pp. 14, 16. "Kursus der Institutionen," p. 35. 
 ' "Das Gewohnheitsrecht," I, pp. 138 seq., 141-143. "Kursus 
 der Institutionen," pp. 24, 29, 35. 
 
214 CIVIC EMANCIPATION [Ch. V 
 
 Harms' (1819-1880) may be mentioned as a later 
 adherent of this "organic" theory of law,^ by reason of 
 his view that "popular law, due to custom, is further 
 developed by the legislation of the State, by experience, 
 and by the reactions of consciousness and will. The 
 several stages of law present the same relation as obtain 
 elsewhere in historical development, between the 
 natural issues of habit and the rational processes of 
 consciousness and will." 
 
 The historical conception has superseded the natural- 
 istic or purely speculative position so far as concerns 
 the principles or systems of law, but not in their scientific 
 application. Bekker^ points out that Savigny's sys- 
 tem of natural law "still retains a small reserved area" 
 where "natural law" persists; for he continues to con- 
 struct his system deductively, and derives many of his 
 positions "from the nature of things." Similarly Berg- 
 bohm observes that the conception of natural law was 
 but officially driven out of legal science, and under a 
 disguised name has continued to exert a directive influ- 
 ence. Yet he goes a little too far in his view that such 
 terms as the "sense of justice" ("Rechtsgefiihl") and 
 the idea of right ("Rechtsidee") and similar permanent 
 and necessary terms of legal philosophy should be re- 
 jected as metaphysical or naturalistic conceptions.* 
 
 ' "Begriff, Formen, und Grundlegung der Rechtsphilosophie," 
 pp. 126-134. 
 
 2 "Begriff," etc., p. 134. 
 
 ' "Uber den Streit der Historischen und der Philosophischen 
 Rechtsschule," Akad. Rede, Heidelberg 1886, p. 19. 
 
 * "Jurisprudenz und Rechtsphilosophie," Leipzig 1892, p. IX, 
 109-552. ("Das Naturrecht der Gegenwart.") Stammler: "Uber 
 die Methode der Geschichtlichen Rechtstheorie, " Halle a/S 1888, pp. 
 28^8, undertakes to prove that the historical theory of law has 
 not superseded "natural law." 
 
§ 35] HEGEL AND THE HEGELIANS 215 
 
 The historical treatment of law, which nowadays under 
 the influence of the historical school in legal science 
 and philosophy has become the dominant one, is applied 
 to penal philosophy by R. Loning, who emphasizes that 
 an adequate treatment of the philosophical problems 
 is possible only on the basis of a comprehensive histori- 
 cal study.' On the other hand, Jacques Stern, in a 
 recent contribution, ^ pleads for the recognition of ra- 
 tional law ("Vernunftsrecht"), side by side with posi- 
 tive law. ' 
 
 § 35. Hegel and the Hegelians. 1 : Hegel's Philoso- 
 phy OF Law. In the preface * to his philosophy of law 
 Hegel ^ (1770-1831) has well expressed the purpose of 
 the philosophic statesman, which is, not to construct an 
 
 ^ "Uber Geschichtliche und Ungeschichtliche Behandlung des 
 Strafrechts," in "Z. f. ges. Strafr.," Vol. Ill, 1883, pp. 219-375. 
 
 2 "Rechtsphilosophie und Rechtswissenschaft," Berlin 1904. 
 
 ' To the law of reason and as well to positive law belong the con- 
 ception or idea of law, the general legal conceptions (legal principles 
 and institutions), and the general legal conceptions adopted by 
 legislation (legal principles and institutions). On the other hand 
 the law of reason in contrast to the old natural law is not to include 
 specific legal principles. But where is the point of division? In 
 this respect the laws of civilized countries more or less diverge on 
 the basis of fundamental questions. So far as this is not the case 
 it is due to the historical fact of the common influence of Roman law. 
 
 Stern thus defines the law of reason: "The law of reason is the 
 conception which strives to be realized as the idea of law and does 
 so not under the moral point of view of a subjective attitude but 
 under the objective point of view of purpose considered as an order- 
 ing principle and as justice protected by the moral reliability of 
 coercion." 
 
 This definition will scarcely gain for Stern favor for a new model 
 law, however limited it may be to general considerations. 
 
 * "Grundlinien," etc., pp. 18 seq. 
 
 ' "Grundlinien der Philosophie des Rechts, oder Naturrecht und 
 Staatswissenschaft im Grundrisse," "Collected Works," Vol. 8, Ber- 
 lin 1833. 
 
216 CIVIC EMANCIPATION [Ch. V 
 
 ideal State, nor to inlortn the government how it should 
 be conducted, but to set forth how a comprehension of 
 the nature of the State shall be acquired, how it shall be 
 critically interpreted. In the Hegelian philosophy this 
 postulate assumes a characteristic form ; — to know the 
 State is to prove its rationality. "To understand that 
 which exists is the problem of philosophy; for whatever 
 exists is reason."^ Heretofore the State and law had 
 been conceived as established and stable. Schelling 
 emphasized the developmental factor in law; law itself 
 was fixed, and it was only the laws — the legal system — 
 that were subject to change. Hegel showed that gov- 
 ernment and law were to be conceived as plastic, as in the 
 course of evolution. He approached philosophy as an 
 historian, and as a philosopher of history he was con- 
 fronted with the philosophy of government. It was his 
 philosophy of history as applied to law and government 
 that became his philosophy of law. 
 
 The subject of evolution is the human will, which at 
 the beginning of the historical development is subjective, 
 and in successive stages reaches an objective status. 
 The subjective will is the arbitrary, non-moral will of 
 the individual ; the objective will is the moral collective 
 will.^ Morality, however, is freedom, and not merely 
 freedom as a conception, but a realized freedom — and 
 moreover freedom, not merely as existing in the world, 
 but as the content of the world and of the human mind.' 
 
 ' "Grundlinien," etc., p. 19. 
 
 2 "Grundlinien," etc., §§ 1-33; particularly 4, 7, 11, 22, 29, 33. 
 
 ' "Grundlinien," etc., § 142, p. 210. "Morality is the idea of free- 
 dom, of the conception of freedom as attained through self -conscious- 
 ness in relation to the world as presented, and to nature." With this 
 compare "Grundlinien," etc. § 129, p. 171: "The good is the idea 
 conceived as the unity of the will, and of the particular will in which 
 the abstract right, as well as welfare and subjectivity of the will and 
 
§ 36] HEGEL AND THE HEGELIANS 217 
 
 Morality is the world with freedom established — free- 
 dom of the community as well as of the individual. 
 Through morality or realized freedom the individual 
 transcends his accidental or individual existence and 
 becomes a part of the whole, so that his individual 
 detachment is absorbed and dissolved in the whole. 
 But through this process the individual persists in his 
 true nature, in his real ego. His true nature thereby 
 becomes realized. In this dissolution of the individual 
 in the community lies "the absolute final purpose" of 
 the world. ^ The history of the world is the process of 
 the emancipation of humanity. Humanity is forcibly led 
 to freedom in the State and through the State. In 
 Asiatic States the individual is wholly without freedom ; 
 in the State of the Greeks and Romans he is partly 
 free; in modern States he is quite free. 
 
 2: Law AND THE Human Will. In Hegel, as in Kant and 
 Fichte, government and law find their justification not 
 in any external grounds but because they are "the 
 absolute demands of the practical reason."^ The source 
 of law is the will, and the will is free. To will, means 
 the capacity to reach a free decision.' Freedom consti- 
 tutes the substance and determination of the will.* The 
 subjective will which exists antecedent to the State is 
 only free in itself; it is a natural or immediate will, 
 being immediate because only direct impulses form 
 efficient and determining motives, such as instincts, 
 desires, dispositions. While in the Hegelian panthe- 
 
 the circumstance of objective being, are conceived as independent, 
 while yet in their nature contained and containing. It is freedom 
 realized, the absolute final purpose of the world." 
 
 ' "Grundlinien,"' etc., §129; see previous note 5. 
 
 ^Lasson, "System der Rechtsphilosophie," p. 104. 
 
 ' Hegel might have referred to the etymology, which derives 
 "Wollen" from "Wahlen." 
 
 * Hegel, "Grundlinien," etc., § 4. 
 
218 CIVIC EMANCIPATION [Ch. V 
 
 istic system this form of will must also be rational, yet 
 its rationality is relative. The will as antecedent to 
 the State has indeed a content derived from "the ration- 
 aHty of the will," but is "not yet rational in form." 
 Form and content are as yet distinct. It is rational in 
 regard to the willing subject, but it is not yet wholly 
 rational with reference to the community. It is "a will 
 finite in itself." "^ The will transcends its limitation 
 through the "purification of the instincts"; it achieves 
 universality and becomes the absolutely rational or 
 moral will, "in that it contains within itself universality 
 as the infinite form of its content and purpose. It 
 becomes the free will, the true idea, not only in itself 
 but also for itself."^ The will thus elevated from the 
 natural to the moral state is absolutely free. It is a 
 will existing in and for itself. It is infinite, real, rational. 
 It exists and has reality. Such existence of the free 
 will is guaranteed by the law ; ' fundamentally the law is 
 but the realization of the free will, and by virtue thereof 
 is itself real. "The law is holy because it is the realF- 
 zation of the absolute conception of self-conscious 
 freedom."^ 
 
 "A legal system is the realm of realized freedom."* 
 The structure of the law will vary according to the stage 
 of evolution which the process of the emancipation of 
 the will in humanity has attained. The several stages 
 of the evolution of the will correspond to the several 
 stages of the development of freedom, and concur with 
 the several periods of legislation. The higher the stage 
 
 ' "Grundlinien,'' etc., § 11. 
 2 "Grundlinien," etc., § 21, also §§ 19, 20, 22. 
 ' "Grundlinien," etc., § 29: "This which is being in general, the 
 being of a free will, is law." 
 * "Grundlinien," etc., § 30. 
 ^ See above. 
 
§ 35] HEGEL AND THE HEGELIANS 219 
 
 that the will has obtained in its development, the richer 
 and more adequate is its legal counterpart.' Thus 
 Hegel demonstrates the rationality of law, and brings 
 the fact of constantly changing legal construction under 
 his universally rationalized system. This position forms 
 a distinctive break with the doctrine of natural law. 
 Natural law recognizes only a model law. Hegel shows 
 the rationality of the law to be one which, though vary- 
 ing in its changeable forms, presents each successive legal 
 construction as rational in that it corresponds to a 
 definite stage of evolution of the will. 
 
 3: Hegel's Dialectic. This comprehensive and 
 fundamental position of the Hegelian philosophy of 
 government and law is not presented and deduced by 
 Hegel in the manner of my c position. His presentation 
 contains mannerisms that seem to be inevitable accom- 
 paniments of the dialectic method. 
 
 Hegel is the last great rationalist. The "Cogito" of 
 Descartes, with which rationalism made its appearance 
 in modern philosophy, has in Hegel become an impersonal 
 thinking, — "Es denkt." The Hegelian reason appears 
 "as an absolute, subjectless, universal reason. It is pure 
 thought, that is, without a thought of object. It is self- 
 sufficient thought, 'substantielles,' that is, without a 
 thinking subject. It is thought containing in itself its 
 own laws which the philosopher but discovers by his 
 dialectical method; while thought derives, creates, pro- 
 duces from within itself, the conception which it bears 
 and which constitutes its nature." 
 
 The cosmic evolutionary process, and the form which 
 
 ' Hegei, "Grundlinien,'' etc., §30: "The formalism of law, however, 
 (and later of duty), arises from the difference in the development of 
 the conception of freedom as against the more formal, that is, the 
 more abstract, and therefore the more limited law ; there is a sphere or 
 stage of the mind which attains a yet higher law in which it carries to 
 definition and reality the further factors contained in the idea." 
 
220 CIVIC EMANCIPATION [Ch. V 
 
 it assumes in government and law, are, according to 
 Hegel, notobjectiveprocesses but rational or logical ones. 
 It is pure impersonal thought which in Hegel's idealistic 
 pantheism comprises the world in itself. The problem of 
 the legal philosopher is not to derive the process of 
 development from the empirical world, but to deter- 
 mine the laws of pure thought, to comprehend pure 
 thought in its dialectic process of evolution. Philosoph- 
 ical or true knowledge finds "in the concept alone the 
 basis of its nature."' The philosopher must trace to 
 their source the dialectic movements of the conception; 
 and these are "pure autonomous movements which one 
 might call souls, were it not that the conception thereof 
 indicates something superior."- The general forms 
 and determinations of pure or objectless thought, which 
 contains thought in itself without being directed to an 
 object, are the conceptions of being, not-being, quality, 
 quantity, cause, action, etc. They are, to speak fig- 
 uratively, the members by means of which pure thought 
 moves. Pure thought, however, requires a method of 
 progression. This method is an oscillation. The con- 
 cept posits itself constituting "the abstract moment," 
 and at once goes over to its opposite and thus dissolves 
 itself, constituting "the dialectic moment." But out of 
 such affirmation, which is also denial, being the concept 
 of an object and of its opposite, arises a third, — the 
 unity of these mutual dissolutions as the truth of both, 
 constituting "the speculative or positive rational 
 moment." The dialectic method serves not merely for 
 analysis but to make possible a synthetic construction.* 
 
 ' Hegel, "Phanomenologie des Geistes," "Collected Works," II, 
 pp. 6 seq. 
 
 ^ "Phanomenologie," p. 46. 
 
 8 "Grundlinien," §31, with "Enzyklopadie," I, §§ 61-78 "(Col- 
 lected Works," VI). See in this connection Berolzheimer, "System," 
 Vol. I, pp. 99-103, and the references there found. 
 
§ 35 ] HEGEL AND THE HEGELIANS 221 
 
 No one any longer believes in the legitimacy of this 
 dialectic method, and a harsh judgment might pro- 
 nounce it self-deception or worse. It is indeed a futile 
 procedure ; for in reality, the dialectician puts into the 
 dialectic mill so much of experience and of the material 
 resulting from a non-dialectical consideration, that the 
 desired result eventually emerges. Hegel's dialectic 
 is the consistent elaboration of Kant's rationalism with 
 a Fichtean tone ; and it is easy to make Hegel respon- 
 sible for the sins of others. Yet the dialectic contains 
 a profound truth, which is, however, different from what 
 Hegel had in mind. It is the fact that objects come into 
 full consciousness as independent realities only through 
 their opposites. Such conceptions as beauty, bright- 
 ness, greatness, attain a meaning in the world of ex- 
 perience through the concomitant consciousness of their 
 opposites — ugliness, dullness, smallness. Whoever has 
 not experienced sorrow and unhappiness may be in a 
 fortunate position, but the consciousness of happiness 
 is not his. All things are limited by their opposites and 
 thus come to consciousness. Objects and their opposites 
 are detached and fixed only in our conceptions. If we 
 suppose the human capacity for knowledge to disappear, 
 then all differentiation disappears, and there remains 
 chaos and complete vagueness. To know means to 
 differentiate. The world, as it is reflected in the human 
 mind , is in fact a product of human differentiation — 
 the positing of objects in human conception, each ob- 
 ject revealing nothing in itself, and being crystallized 
 and unified only through its opposite. But the recog- 
 nition of this reciprocity in the realm of concepts is 
 incapable of serving for the construction of a practical 
 philosophy;! ;^ q^j^ jg^d only to viewing the actual 
 world as an absolute vagueness, as chaos, as the undif- 
 
 ^Berolzheimer, "System," Vol. I, pp. 222-226. 
 
222 CIVIC EMANCIPATION [Ch. V 
 
 ferentiated. It must then be noted that in the Hegelian 
 theory of knowledge the stages of evolution do not con- 
 stitute realities, but are merely emanations of the con- 
 cept of pure thought or logical processes. Paulsen ^ aptly 
 says that the Hegelian philosophy is a "philosophy 
 that attempts nothing short of a reconstruction of the 
 world of thought. Indeed the creation finds its true 
 consummation only in such thought; without it the 
 world remained a mere blind fact, though in itself a 
 rational one. It finds illumination in speculative philos- 
 ophy; there it recognizes itself as what it is, as a unified 
 existent system of thought." 
 
 According to Hegel the evolution of the human mind 
 shows six stages: consciousness, self-consciousness, 
 reason, spirit, religion, and absolute knowledge.^ The 
 development of "the idea of the free will existing in and 
 for itself," presents three stages. In the first the will 
 is direct or immediate; to this there corresponds the 
 sphere of abstract or formal law. The second stage 
 shows "the will turned back into itself," "as a subjective 
 individuality contrasted with the universal". Here the 
 idea is divided, and exists in separate elements. This is 
 the sphere of morality.' The third stage is the unity 
 and truth of both previous abstract moments, — the 
 realization of the idea of the good, — "the idea of 
 morality in its independent general existence, "an und 
 fiir sich." Law, ethics, and morality are the three 
 stages in the development of the objective mind. 
 
 * "Immanuel Kant. Sein Leben und seine Lehre," second and 
 third edit., Stuttgart 1899, pp. 389 seq. (I was not able to consult 
 the fourth edit.) 
 
 ' "Phanomenologie," pp. 73 seq.; see also Berohheimer, "Sys- 
 tem," Vol. I, pp. 103 seq. 
 
 ' In Hegel the term "Moralitat" is given a special meaning apart 
 from morality as "Sittlichkeit." 
 
I 35] HEGEL AND THE HEGELIANS 223 
 
 Together they constitute the objective mind; in them 
 the mind achieves objectivity. The moral substance — 
 "Substanz," likewise shows three stages: the natural 
 spirit, the family; the civil society, or spirit in its dual 
 existence and mere appearance; the State, the complete 
 unity of the individual and the universal. ' 
 
 4: Hegel's Conception of the State. Through the 
 mediacy of civil society • — not in the sociological sense 
 of a primary association between family and State ^ — 
 the State is shaped to a career of noble destiny.' The 
 State is the supreme expression of morality. "It is the 
 realization of the moral ideal, of the moral spirit, of the 
 will, self-revealing, self-conscious, efficient, thinking and 
 knowing, and carrying its knowledge into action." * 
 This abstract form of expression seems strange because 
 it is phrased in the language of the Hegelian philosophy ; 
 it involves a double meaning, the two factors of different 
 import. Translated from his language to the vernacu- 
 lar, Hegel's definition implies: first, that the State is 
 the complete development of morality; and second, that 
 
 * "Grundlinien," § 33. 
 
 2 Hegel, "Grundlinien," § 182, p. 246: "Civil society expresses 
 the difference that arises between the family and the State, even 
 though in the course of evolution the resultant becomes the develop- 
 ment of the State itself. For the distinction presupposes the exis- , 
 tence of the State as an independent institution. The creation of 
 a civil society is characteristic of the modern world which overcomes 
 all the limitations of the idea." 
 
 ' The principles of civil society are determined by Hegel as fol- 
 lows ("Grundlinien," § 182, p. 246): "The concrete person, who for 
 himself is a particular purpose, an aggregate of needs, and a mix- 
 ture of natural necessity and free will, is the sole principle of civil 
 society. But the particular person is considered in relation to others 
 of like status, so that each becomes valid and satisfied and his being 
 mediated only through the rest, and as well, is realized only through 
 the form of the universal, which is the other principle." 
 
 ' "Grundlinien," § 257, p. 312. 
 
224 CIVIC EMANCIPATION [Ch. V 
 
 the State ever meets the problems of culture as they are 
 present to the consciousness of a given period. Hegel 
 thus disposes of the seeming contradiction — applicable 
 to the State as to law — that the State represents abso- 
 lute reason in its supreme development while the activities 
 of the governmental functions are decidedly varied at 
 different times and stages of development. The State 
 is the supreme form of reason or the rational, while yet 
 it is not something fixed but ever in the process of 
 formation. This conception places Hegel in advance 
 of Kant and allies him to the world of present thought. 
 For Hegel the State is no longer the constitutional 
 State, "Rechtsstaat," but the State ready to accept the 
 mission of culture, "Kulturstaat." Yet Hegel's concep- 
 tion of the State cannot be accepted. For, to begin with, 
 the State is not the embodiment of morality. Hegel's 
 assumption that it is so, recalls the Greek view of life. 
 Greek idealism regarded the State as an ethical institu- 
 tion, but the modern conception is characterized by its 
 detachment of law from the "ethos," the moral dispo- 
 sition of the community, by the separation of the State 
 from spiritual community. Again, Hegel has no appre- 
 ciation, indeed no suspicion, of the true nature of the 
 State as the original source of law, and thus of its artificial 
 legal status. Hegel's philosophy of law, despite the 
 eccentricity of his system and its manifold errors, reveals 
 the greatness of the man. His views are thoughtfully 
 elaborated and bear the impress of his personality. He 
 is not content to repeat the views of others, but infuses 
 every detail with a vital individual spirit, with a reflex 
 of his own thought. 
 
 5: Fundamental Legal Ideas: Person, Property, 
 Injury, and Crime. Hegel's comments upon the relation 
 and difference between the laws of nature and of positive 
 law may be cited by way of further contributions bear- 
 
S 35] HEGEL AND THE HEGELIANS 225 
 
 ing upon fundamental legal ideas. * The former are 
 absolute, and it is only our knowledge of their mode of 
 working that is capable of extension. Positive laws are 
 "established, instituted by man. With these conscience 
 may conflict or accord." ^ In studying the nature of 
 wrong Hegel comments upon a phase but little regarded, 
 which he calls "unpremeditated wrong," ^ "unbe- 
 fangenes Unrecht," that condition or action which is 
 objectively unwarranted, without, however, involving 
 blame; an objective wrong without subjective guilt.'* 
 Of more importance is Hegel's doctrine of "the person." ^ 
 Law transforms men into persons. The law does not 
 deal with men as subjects, but rather the subjects of 
 the law are always persons. This apt observation 
 applies to Roman law. The owner of a legal right is 
 not the man as man, but the man as a member of the 
 legal organization — "the persona." Hegel's doctrine 
 of "the person" is applied in his theory of the State. 
 It there leads to the conception of the State as a person- 
 ality in the legal sense. The State has a personality 
 as a complete concrete realization of the will, as the 
 manifestation of reason realized in the will. The 
 sovereignty therefore belongs to the State and not to 
 the people. The personality of the State is realized as 
 
 ^Hegel's view is set forth by A. Affolter, "Naturgesetze und 
 Rechtsgesetze," Munich 1904. 
 
 ' "Grundlinien," p. 8, note. 
 
 ' Hegel, "Grundlinien," pp. 128-130. For this Lasson uses the 
 term "Schuldloses Unrecht," "blameless wrong." ("System der 
 Rechtsphilosophie," § 44.) 
 
 * Berolzheimer, "Die Entgeltung im Strafrechte," pp. 119, 166, 
 168. 
 
 ^ Berolzheimer, "Rechtsphil. Studien," pp. 104-113. The fund- 
 amental principle of law ("Das Rechtsgebot"), according to Hegel, 
 reads ("Grundlinien," § 36): "Be a person and respect others as 
 persons." 
 
226 CIVIC EMANCIPATION [Ch. V 
 
 a person in the monarch. The State is an organism; 
 that is, an idea developed to its differentiations. The 
 State exists as a concrete individual State, derived from 
 a particular folk-spirit, as the outcome of the self- 
 consciousness of a people, and particularly of its religious 
 convictions. The State is "the real and organic spirit 
 of a people" and is further extended by the relation "of 
 particular folk-spirits to the higher development in a 
 universal spirit of absolute reason of which law is the 
 supreme expression." '■ 
 
 Hegel's doctrine of "the person" is peculiarly important 
 in private law; and in this field there has not been 
 accorded to him an adequate appreciation. His train 
 of thought may be thus reproduced: Through law a 
 human being attains the dignity of a person. This 
 attribute of a person is expressed in property. Property 
 is the legally artificial cloak under whose protection the 
 power of man is extended through the State and law 
 above his natural status. Just as other cultural factors 
 show their beneficial effect by increasing human effi- 
 ciency, so law stimulates and increases the artificial 
 efficiency of each individual and of the community. 
 "The word 'Vermogen' is etymologically related to 
 'vermogen'; that which one can do is his property. 
 In the course of development there was derived from 
 this general conception of capacity a narrower one, and 
 'vermogen,' in the narrower economic and legal sense 
 means what anyone as a legal subject may do. It 
 has thus been transferred to a legal economic sense. 
 In its nature the State is the embodiment of legal power 
 internally and externally. At the same time the State 
 would be an empty concept, a shadowy essence, were it 
 not that this concept of legal authority is brought to 
 expression by investing the State with a material reality. 
 
 ' "Grundlinien,'' pp. 312 seq. 
 
§ 35] HEGEL AND THE HEGELIANS 227 
 
 This material investiture is made effective by property. 
 The conception of private property thus also confers 
 legal and economic power upon the State; and in this 
 fundamental constructive significance, and in this alone, 
 lies the justification of private ownership and property." ^ 
 I must at once add that this interpretation of the 
 meaning of "vermogen," as quoted above, will in vain 
 be sought in Hegel. The quotation, although taken 
 from one of my own earlier writings, is substantially 
 contained in Hegel's view of the philosophy of private 
 ownership, and in the recognition of ownership or 
 property as representing the legal economic efficiency 
 of the individual. In the resulting support of the 
 State by the individual, lies the justification of ownership 
 and private property. The reason why this interpre- 
 tation of Hegel's views on property has not been hitherto 
 advanced may be due to the fact that the recognition of 
 property as an economically efficient factor has not 
 hitherto been adequately established. There may be 
 another and more important reason; it may be due to 
 the fact that Hegel does not speak of property, "Ver- 
 mogen," which includes both real rights and obligations, 
 but of ownership, "Eigentum." Ownership is the legal 
 term for the right to material things, and is thus but a 
 sub-division of one's property, "Vermogen." Fully to 
 appreciate Hegel's presentation of property the word 
 "Eigentum," which he employs, must not be under- 
 stood in the legal sense, but must be replaced by the 
 economic term, property, "Vermogen." ^ There will 
 thus be introduced a pertinent meaning into Hegel's 
 exposition. "The free will, in order not to remain 
 abstract, must proceed to secure an existence; and the 
 perceptible embodiment of such existence are things; 
 
 ^ Berolzheimer, "Das Vermogen," 1904, p. 519. 
 
 ' Berolzheimer, "Das Vermogen," pp. 440 seq., 546 seq. 
 
228 CIVIC EMANCIPATION [Ch. V 
 
 that is, external objects. This first form of freedom is 
 what we may call ownership, 'Eigentum,' the sphere of 
 formal and abstract law, to which belong equally owner- 
 ship in its indirect form of agreement, and the right to 
 regard the infringement of ownership as a punishable 
 crime." ^ The following passage is apposite: "The 
 person must attain an outer sphere for freedom in order 
 to exist as an idea."^ And later, in regard to agree- 
 ment:* "Ownership, of which the aspect of existence or 
 externality is no longer merely an object, but contains 
 within itself the factor of a will, arises through agree- 
 ment; and agreement is a procedure by which the 
 contradiction is both presented and mediated, that I, 
 as a self-existent owner, standing apart from the wills 
 of others, am and remain such, in so far as I cease to be 
 an owner by making my will identical with others." 
 The infraction of the law in general, and crime in parti- 
 cular, are externally something positive, but are in them- 
 selves negative. The inherent negative character of wrong 
 appears in that the right persists despite the infringe- 
 ment, and in that the infringement, in its negative 
 character, is overcome and removed by the punishment. 
 Punishment is thus the negation of the negation of 
 right — a just retribution, the establishment of the 
 equilibrium ^ of the State which the criminal has dis- 
 turbed; it is a logical postulate.^ 
 
 6: A Critical Verdict on Hegel. A definitive judg- 
 ment upon Hegel's philosophy of government and law 
 is not summarily to be reached. It seems the irony of 
 
 I Hegel, "Grundlinien," p. 70. 
 
 ' "Grundlinien," pp. 78, 78-114 (influence of Fichte). 
 = "Grundlinien," pp. 114 seq., 114-126. 
 
 ^ Berohheimer, "Die Entgeltung im Strafrechte," p. 32 and other 
 places. 
 
 » Hegel, "Grundlinien," pp. 126-147. 
 
§35] HEGEL AND THE HEGELIANS 229 
 
 fate that his own phrase of the identity of opposites 
 applies to Hegel himself. While recognizing his supreme 
 intuition, his keen philosophic sense, and his originality 
 — which places him well above Kant, who in many ways 
 still clings to the fetters of the traditional — one cannot 
 disguise the fact that his dialectic method at times ad- 
 vances conclusions and opinions that come close to 
 nonsense, and are, at the least, conspicuously inconse- 
 quential. If Kant's idealistic philosophy may be said 
 to have dwelt in a magic garden, then Hegel's is sug- 
 gestive of the intricate paths of a maze. It is easy to 
 understand why the estimates of Hegel have varied from 
 one extreme to another, from fanatic enthusiasm to 
 absolute contempt, and even to the consideration of 
 his philosophy and dialectic as a hair-splitting topsy- 
 turvydom. Recently — notably through the influence of 
 Kuno Fischer and Kohler — Hegel has again been recog- 
 nized as a star of the first magnitude in the philosophical 
 firmament. But the grounds for this appreciation are 
 not the same as formerly obtained. The keenness of 
 his speculations, the breadth of his ideas, and the cogency 
 of his dialectic argument and treatment of the historical 
 material as a whole, were the qualities of Hegel's philoso- 
 phy that brought reputation to its author. His phil- 
 osophy was admired for its art, its deductive perfection, 
 its ingenuity of construction, and its proportion of 
 execution. Today it is the baroque style of his philoso- 
 phic architecture that repels. It is the intrinsic value 
 of his thought that forms the basis of the modern appre- 
 ciation. When the massive walls of the Hegelian struc- 
 ture are removed, and the bare skeleton, the iron 
 framework, stands revealed, — or, to drop the figure, the 
 shrewd observations and the astute opinions upon issues 
 large and small which reflect his historical sense, — it is 
 the latter that represent the enduring value of his phil- 
 
230 CIVIC EMANCIPATION [Ch. V 
 
 osophy. It is only in style that Hegel is baroque; to a 
 generation that has advanced beyond naturalism, he is 
 distinctly modern in content. ' 
 
 The evolutionary idea, dimly suggested by Heracli- 
 tus, attained its renaissance in the nineteenth century; 
 not without precedent, it appeared in a dual aspect. 
 In its realistic formulation it led to the doctrine of 
 evolution as expressed in natural science, represented 
 by Goethe, Lamarck, Darwin, Spencer, and Hackel; its 
 idealistic formulation appears in Schelling, Hegel, and 
 Kohler. It is Hegel's greatest merit as a political 
 philosopher to have replaced the "Rechtsstaat" by the 
 "Kulturstaat," to have accomplished the affiliation of 
 law with culture, and to have established the justifica- 
 tion of the several evolutionary stages of law and 
 government. 
 
 It has frequently been noted, more commonly by 
 way of adverse criticism, that Hegel's philosophy of 
 law and government was directed to the theoretical 
 justification of the Prussian State of his day. In a 
 measure such is the case. Just as Rousseau in his "Dis- 
 cours" afforded a philosophic foundation for the French 
 Revolution; as Wolff became the theoretical repre- 
 sentative of enlightened absolutism, and Kant the apolo- 
 gist of the State as a legal institution; as Fichte, the 
 statesman, and Schelling, the romanticist, aroused the 
 German national spirit; so Hegel's philosophy of law 
 sounded the keynote for the intellectuals of the rejuve- 
 nated and awakened Prussian State. The environment, 
 the spiritual temper, from which Hegel's philosophy of 
 law emerged, was likewise the culture to which the 
 Prussian State owed its growth and consummation in the 
 recognition of the State as the supreme representative 
 
 ' The resurrection of Hegel appears in such a contribution as 
 Kohler's "Philosophy of Law." 
 
§ 35] HEGEL AND THE HEGELIANS 231 
 
 of moral force and strength — the recognition that the 
 State is designed and called to fill a mission of culture, 
 and to fill it in such manner that the State shall not 
 exist for the individual, nor yet the individual for the 
 State, but that State and citizens shall enter in common 
 the service of a definite cultural ideal, whereby the com- 
 munity and the members thereof shall advance, each 
 according to his capacity, the progress of man. Simply 
 expressed, Hegel conceived the State as the bearer of 
 culture, and thus supplied the theoretical foundation of 
 the "Kulturstaat," which was accepted as the ideal 
 of the newly awakened Prussia.^ 
 
 The weakness of Hegel's position is that attaching 
 to the doctrine of universal flux. In a system in which 
 everything is set forth as in course of evolution, 
 there are lacking fixed points of attachment in the 
 eternal stream. As an historian Hegel may retrospec- 
 tively divide the stream of phenomena into periods ; but 
 as a political philosopher he fails to find a basis for 
 government and law. The position of vantage accru- 
 ing to the community and the individual through gov- 
 ernment and law, the vitality of the law, is a truth 
 momentarily revealed in Hegel's philosophy of ownership ; 
 but no sooner does it appear than it again is lost. For 
 this truth contrasts sharply with Hegel's entire position 
 in so far as his philosophy divests government and law 
 of reality, and reduces them to a mere emanation of an 
 abstract dialectic movement. As a legal philosopher 
 Hegel advanced many significant truths; but his 
 abstract train of thought brought him, in many respects, 
 in direct contradiction with the facts of the law and its 
 evolution. However, taken all in all, Hegel was one 
 of the greatest men that the philosophy of any age pro- 
 
 • Compare with former divisions of this section. 
 
232 CIVIC EMANCIPATION [Ch. V 
 
 duced — great in his achievements, and great in his 
 defects. 
 
 7: The Hegelians. Of the three groups into which 
 we may divide the HegeUans, we mention first the scien- 
 tific group. It was their purpose to develop the system 
 which Hegel had outlined and which was indeed but the 
 framework of a comprehensive philosophical construc- 
 tion. Foremost in this group are Gans, and Lassalle, 
 the author of "Das System der Erworbenen Rechte."^ 
 It may be noted that Hegel's philosophy of law bears the 
 title of "Outlines"; Lassalle looked upon it as such, 
 and regarded the mission of the younger Hegelians to be 
 "to carry the project to its completion, to prepare a 
 philosophy of private law, and to trace the development 
 of the actual institutions connected therewith." ^ Cans' 
 (1798-1839) endeavored to carry forward Hegel's phil- 
 osophy of law. He undertook a comprehensive work, 
 "Das Romische Erbrecht," in which he traced the histor- 
 ical development of the law of inheritance. In it the 
 wide learning of its author, and his complete absorption 
 and comprehension of the intricate system of Hegel's 
 
 ' ' 'Das System der Erworbenen Rechle. Eine Versohnung des Posi- 
 tiven Rechts und der Rechtsphilosophie." Part I: "Die Theorie 
 der Erworbenen Rechte und die Kollision der Gesetze, unter beson- 
 derer Beriicksichtigung des Romischen, Franzosischen und Preus- 
 sischen Rechts dargestellt." Part II, Divisions 1 and 2. "Das 
 Wesen des Romischen und Germanischen Erbrechts in historisch- 
 philosophischer Entwickelung. Unter besonderer Beriicksichtigung 
 des Romischen, Franzosischen und Preussischen Rechts dargestellt." 
 {Ferdinand Lassalle," CoWected "Works." Only edition published by 
 Erich Blum, 4, 5 vols., Leipzig 1901.) I, preface, p. xi. 
 
 ^ "Das System der Erworbenen Rechte," 
 
 ^Eduard Gans, "Das Romische Erbrecht in seiner Stellung zu 
 vor- und nachromischem. Eine Abhandlung der Universalrechts- 
 geschichte," Vol. I, Berlin 1824, "Das Erbrecht in weltgeschicht- 
 licher Entwickelung. Eine Abhandlung der Universalrechtsge- 
 schichte," Vol. II, Berlin 1825. Four volumes have appeared. 
 
§ 36] RECENT SYSTEMS 233 
 
 philosophy, appears. It had, however, no influence upon 
 the development of legal philosophy. Lassalle's work^ 
 attracted considerable attention, by reason not of 
 its philosophical but of its political importance, due to 
 its excursions into politics. 
 
 Although Stahl conducted a controversy against 
 Hegel's pantheism, his philosophy of law and govern- 
 ment may be regarded as a theological variation of 
 Hegel's system, reflecting also the influence of Schelling. 
 (For Stahl's position consult § 36.) 
 
 The economic philosophy of Karl Marx, and that of 
 his pupil, Lassalle, may be regarded as the materialistic 
 aspect of Hegel's philosophy, taking its mode of demon- 
 stration from Hegel's dialectic method.^ 
 
 § 36. Recent Systems of Legal Philosophy. 1 : Stahl. 
 The majority of orthodox legal philosophers at- 
 tempted to show that a philosophy of law based upon 
 ecclesiastical foundations was rational, and thus freed 
 it from its religious forms and limitations. By a con- 
 verse procedure J. Stahl' (1802-1861) divested the 
 philosophy of law and government of its rationalistic 
 foundations and reconstructed it upon a Protestant 
 Christian basis. Whether Stahl has any claim to recog- 
 nition as a scientific contributor to the philosophy of 
 government and law, or whether he is to be dismissed 
 as a partisan, is an open question. It is but fair that 
 
 ^Lassalle, "System," I, pp. (157) 164 seq., 180-186, 279 seq., 
 361-386; Part II, Division 2, pp. 593-596. 
 
 2 See below, § 38. 
 
 '"Die Philosophie des Rechts" Vol. 1 (third edit., Heidelberg 
 1856). "Geschichte der Rechtsphilosophie," 2 vols. "Rechts- und 
 Staatslehre auf der Grundlage Christlicher Weltanschauung," Part 1, 
 containing the general laws and private law (third edit., 1854); 
 Part 2, "Die Staatslehre und die Prinzipien des Staatsrechts" (third 
 edit., 1856). Vol. 2, Part 1, alone was accessible to me in the third 
 edit., for the rest I cite from the second edition. 
 
234 CIVIC EMANCIPATION [Ch. V 
 
 he be judged by the intellectual standards of his day. 
 Rationalism, though not superseded, was on the decline. 
 From the days of Descartes to those of the three great 
 luminaries, Kant, Fichte, and Hegel, the mainstay of 
 German philosophy had been the position that reason, 
 or experienceless thought, yields genuine truth and philo- 
 sophic knowledge. English empiricism was unable to 
 assert itself, owing partly to its tendency to dissipate 
 into a shallow utilitarianism. Though m his first 
 period Schelling was bound by the rationalism and 
 idealism of Kant and Fichte, it was through his influence 
 that rationalism began to decline; and Hegel himself, 
 the greatest of rationalists, who traced dialectically 
 the growth of pure subjectless and objectless thought 
 of a de-personalized agent, through his recognition of 
 evolutionary doctrines, helped to dig the grave of ration- 
 alism. Stahl carried forward the program outlined by 
 Schelling and Hegel for a withdrawal from the philosophy 
 of reason. As an opponent of rationalism he sought a 
 different basis for his philosophy of law and govern- 
 ment. Had Stahl lived a few decades later, it is probable 
 that he would have followed the prevalent tendency and 
 would have become an empiricist, a sensationalist upon an 
 evolutionary basis. But Stahl lived in a period in which 
 the only scientifically approved philosophical method 
 was that of a pure deductive derivation of principles as 
 conclusions of a supreme, unquestioned major premise. 
 As Stahl abandoned the dogma of reason, he had no 
 choice but to accept the dogma of faith; his philoso- 
 phy of law represents the Protestant counterpart of 
 the Catholic philosophy of Schelling's later period. 
 
 An unprejudiced view of the great rationalistic sys- 
 tems of Kant, Fichte, and Hegel discloses that in fact 
 empirical types of knowledge were forced into the ration- 
 alistic mould. Had those great minds not first had 
 
§ 36] RECENT SYSTEMS 235 
 
 recourse to experience, and transferred the material 
 thus inductively obtained to deductive premises, they 
 would have been blocked at the outset, and would have 
 failed to find a transition from pure reason to the realities 
 of law and government. Critical idealism may be de- 
 scribed as an ambitious philosophical edifice set with 
 noble columns, which, however, carry no burden; indeed 
 they have only the form of supports, while actually 
 ornaments suggestive of the vagaries of the baroque 
 period. Stahl's theological deductions likewise carry 
 no burden; the true supports of his view were supplied 
 by Hegel and Schelling. 
 
 Schelling took over pantheism from Spinoza; but 
 instead of the dogmatic pantheism of the latter, he 
 advanced a critical pantheism. Spinoza's pantheism 
 is thorough -going ; to him the world is the emanation and 
 consists of universal substance. Schelling's pantheism 
 went through the stages of the critical idealism of Kant 
 and Fichte, and assumed a critical form. The world, 
 or the absolute, became the mere accident of a rational 
 ego. The philosophy of Spinoza and that of Schelling 
 favored the doctrine of identity; that is, they assumed 
 the identity or unity of subject and object. But Spinoza 
 placed such unity in the absolute object, while Schelling 
 placed it in the absolute subject. Stahl once more 
 endowed pantheism with a personal God, and yet occa- 
 sionally fell back upon a rationalistic basis. For Stahl 
 reason, though not the source, is yet the means of 
 recognizing justice; accordingly, the material content 
 of law reaches human consciousness ^ through reason. 
 
 Law and custom, according to Stahl, are derived from 
 the will of God. Ethics is objective or communal cus- 
 tom, "ethos," in so far as the divine design applies to 
 
 ' Vol. II, Part 1, pp. XVIII-XXV, 7-69, 233-238 (opposed to 
 this, p. 241). 
 
236 CIVIC EMANCIPATION [Ch. V 
 
 the human race as a whole; ethics is morality or sub- 
 jective custom ("ethos") in so far as the individual may 
 be said to be formed in the image of God.* This dual 
 aspect of the "ethos" reflects the position of Greek 
 national ethics. 
 
 The interest of the maintenance of the objective 
 existence of the moral world requires an external and 
 enforcing temporal power, which is the law^ — a law 
 enforced against all opposition. "The divine order as 
 applied to the human race must maintain human society 
 through the human order which it establishes, and which 
 imposes its authority upon all individuals; and such 
 order is the law." The law becomes realized in the 
 State ;^ it arises in the consciousness of the people,^ but 
 in the last analysis "it is the power of the divine order 
 which creates law and endows it with its dignity."' 
 "Criminal law is a retributive justice, and is designed to 
 establish the realm or the glory of the moral power 
 through the destruction or suffering of those who 
 oppose it."^ 
 
 While private law is based upon the idea of personality, 
 public law is based upon the idea of a moral and intel- 
 lectual realm. The idea of such a moral realm is the 
 supreme ethical conception, and pervades every relation 
 of human condition; it is its "universal and absolute 
 purpose," "tcAos." Its perfect realization lies, according 
 to the Christian religion, in the hereafter, in the king- 
 
 1 Vol. II, Part 1, pp. 70 seq., particularly 76-79. 
 
 2 Vol. II, Part I, pp. 191 seq., 192. 
 
 3 Vol. II, Part 1, p. 210. 
 <Vol. II, Part 1, pp. 233-238. 
 5 Vol. II, Part 1, p. 241. 
 
 ' Vol. II, Part 1, p. 165. The right of the State to punish is but 
 objective, just as the moral dominion of the State is in general but 
 objective. 
 
§36] RECENT SYSTEMS 237 
 
 dom cf God. But even upon earth the moral world is 
 a moral realm; it but lacks a visible outward form.' 
 
 The supreme institution of public law, its institution 
 par excellence, is the State. "The State is the perfect 
 moral intellectual realm which men should establish 
 upon earth." It is based upon the common character 
 of the people, and not upon that of the individual. The 
 State must be legally regulated, but not restricted to 
 the function of the law; it must become a moral com- 
 monwealth. The State is accordingly a "realm of ideas 
 and intelligent purposes, realized and to be realized, 
 established in the moral order of the world of which men 
 are the self-appointed servants." The consequence of 
 this conception of the State as a moral intellectual 
 realm is to make its chief purpose the perfection of 
 human communal life, and pursuant thereto, the free- 
 dom and right of each individual. The efficiency of 
 the State extends to all parts of the common life, which 
 reduces to the view that the State must assume a mis- 
 sion of culture. 
 
 From the nature of the State as a moral realm it fol- 
 lows that it must exercise a moral authority over the 
 people and "must become conscious of itself and of its 
 power as a personal force ; such is the purpose ("reXos") of 
 the temporal kingdom. It is established in order that 
 there shall be dominion over men, personal, consistent, 
 self-sustained, not of human origin, worthy, authorita- 
 tive, regulative, sacred, awe-inspiring. The dominion 
 of the State, and thus the State itself, becomes personal 
 in its king." In an hereditary monarchy the esteem of 
 the ruler rests "not alone upon a general command and 
 decree of God, as is true of all supremacy, but at the 
 same time upon a very special divine provision. This is 
 
 1 Vol. II, Part 1 (second edit., 1846), pp. l,seq.; pp. 12, 102-105, 
 106-109, 112-123, 208 seq. 
 
238 CIVIC EMANCIPATION [Ch. V 
 
 the principle of legitimacy which is peculiar to the 
 hereditary monarchy."'- The nature of a kingdom 
 involves the primacy and independence of authority, 
 but does not involve the absoluteness thereof; such 
 would be against the order of nature and against the 
 inviolability of the kingdom. The sovereignty of the 
 monarch is co-ordinate with that of the constitution, 
 just as the supremacy of the people is co-ordinate with 
 that of the estates. The constitution must not be 
 ooked upon as the source of sanctity, but only as pro- 
 viding "the legal and moral ties which form its content." 
 The principle of representation leads to the institution 
 of representatives as against the estates, by virtue of 
 which the representatives are not chosen from among 
 special classes, but from the people, and are called to 
 represent not the interests of the estates, but the general 
 interests of the people.^ It is upon these three prin- 
 ciples — that of legitimacy, that of the constitution, 
 and that of representation — ■ that Stahl founds the Chris- 
 tian State. His position may be said to form the theo- 
 retical basis of the conservative party in Prussia. 
 
 2: Trendelenburg. Adolf Trendelenburg' (1802- 
 1872) proposes to determine the underlying idea of 
 
 1 Vol. II, Part 2, pp. 219, 220: "The divine right and legitimacy 
 are thus diverse but related conceptions; the former implies that 
 the authority by virtue of which the king rules is of divine origin, 
 and the latter that his accession to the throne is likewise divine. 
 They form the Christian principle of the State." 
 
 2 Vol. II, Part 2, pp. 221 seq.; 241, 238-247; 244; 314-321. 
 
 ' "Naturrecht auf dera Grunde der Ethik," second edit., Leip- 
 zig 1868. Lasson, "System der Rechtsphilosophie," Berlin and 
 Leipzig 1882 (p. 108), thus comments: "Trendelenburg attempts 
 to derive his position from Aristotle, though not always very clearly; 
 and at the same time takes account in part of the notable achieve- 
 ments of modern science; but despite many suggestive comments, 
 he does not attain to a clear presentation of principles." 
 
§36] RECENT SYSTEMS 239 
 
 the law; by the idea he means "the conception in which 
 is contained the final determination of the inner pur- 
 pose." In agreement with Plato and Aristotle, and 
 in contrast to the "modem separation of the juridical 
 and ethical, of the legal and moral," Trendelenburg 
 reaches the position that "the conception of law stands 
 in an essential and intimate relation to the content of 
 morality." Following Plato and Aristotle, he further 
 determines the idea of ethics as the fulfillment of the 
 idea of human nature, and finds the ethical problem in 
 "the realization of man as man." * This idea is to be 
 realized only in the community. "The strengthening 
 of individuals and their affiliation as a whole" proceed 
 hand in hand as the law of every ethical community. 
 "The realization of the ideal in the communal man and 
 in the individual" becomes the ethical principle. Through 
 the association of duties and ethical privileges, as also 
 of duty and law, Trendelenburg reaches the following 
 conception of law: "The law in the moral community 
 is the conception of such universal limitations of actions 
 resulting in the maintenance and furtherance of the 
 ethical whole and its parts. The ethics of an immanent 
 teleology yields this concept of law and no other." * 
 
 Trendelenburg proceeds to consider the physical aspect 
 of law, that is, its power of enforcement and its logic 
 or method.' He continues with an "outline of legal 
 relations on the principle," of a deductive construction 
 of the entire field of law in the spirit of a teleological 
 ethics. His view of the State is thus given: "I conceive 
 
 • "Naturrecht," pp. 6, 22, 94 seq. "Construed in a most gen- 
 eral sense, ethics pertains to the larger domain, and law is derived 
 from it." 
 
 » "Naturrecht," pp. 41 seq., 45, 48-70, 71-100, 123-160; histori- 
 cal, pp. 100-118. 
 
 ' For the logical aspect in the origin of law see "Naturrecht,"' 
 pp. 160-173; and for the application of the law, pp. 173-191. 
 
240 CIVIC EMANCIPATION [Ch. V 
 
 of the State as a whole, which in turn falls into special 
 divisions, and its distinctive trait is that of exercising 
 supreme legislation from within and independence 
 from without, thus protecting right by might." The 
 idea of the State is "to realize universal man in the 
 individual form of the people." The problem of the 
 State is "ethically determined by the welfare of 
 the parts through the whole and of the whole through 
 the parts." It is therefore "the design of the State that 
 man in the State, and man in the parts thereof, shall 
 ever remain or become human." "It is therefore the 
 object of all governmental regulation to embody a 
 mutual relation of the parts to the whole, and the 
 closest and most favorable unity of disposition, insight, 
 and authority of which the actual conditions permit." ' 
 
 3: Krause. Karl Chr. Fr. Krause 2(1781-1832) is 
 associated with the transition from the position of 
 natural law to the modern philosophical view of govern- 
 ment and law.' He proceeds deductively, deriving 
 them from "pure reason." While his point of view is 
 fundamentally that of the adherents of "natural law," 
 he recognizes the historical development in legal 
 philosophy. 
 
 In developing his practical philosophy, Krause avoids 
 
 1 "Naturrecht," pp. 192 seq., 325 seq., 348, 481-485. 
 
 2 Krause, "Grundlage des Naturrechts, oder Philosophischer 
 Grundriss des Ideals des Rechts," Part I, Jena and Leipzig 1803. 
 Mollat edited a second edition of Parts I and 2 (new material) from 
 the posthumous manuscript, Leipzig 1890. I cite from this edition. 
 Krause, "Das Urbild der Menschheit," Dresden 1811. "Abriss 
 des Systems der Philosophic des Rechtes oder des Naturrechtes," 
 Gottingen 1828. "Lebenslehre oder Philosophic der Geschichte zur 
 Begrundung der Lebenskunstwissenschaft." Vorlesungen (at the 
 University of Gottingen, 1828-1829), first edit., 1843, Karl Hermann 
 V. Leonhardi, second edit., P. Hohlfeld and August Wunsche, Leipzig 
 1904. 
 
 ' "Abriss des Systems, pp. 1 seq., 8. 
 
§36] RECENT SYSTEMS 241 
 
 the danger attaching to a consistent pantheism, namely, 
 the non-recognition of the personaUty of the individual 
 man. In Spinoza's philosophy, God alone is substance, 
 and all phenomena are attributes of substance. Like 
 Spinoza, Krause assumes an all-pervasive omnipresent 
 substance which he calls being — "Wesen"; the indi- 
 vidual phenomena and the individuals, however, are 
 not mere attributes, but likewise share in this quality 
 of being; they are beings, and God is the original 
 Being — "Urwesen." Krause calls this philosophical 
 conception Panentheism, the doctrine of all in God. 
 It differs from the Jewish-Christian position only in the 
 pantheistic conception of the divine being. Krause's 
 philosophy forms an advance upon Spinoza, a position 
 the more readily attainable through the reconstruction 
 of Spinoza's pantheism in a subjective form in Schelling's 
 philosophy of identity; it there became a critical pan- 
 theism operative in the intellectual subjective world. 
 The later development of his doctrine likewise shows 
 the influence of Spinoza. Spinoza came to the conclu- 
 sion that whatever occurs is fundamentally a natural 
 process, and that accordingly all human action is right 
 because it is a constituent part thereof. Wrong would 
 be what none would attain and none desire. The practi- 
 cal untenability of this conclusion leads Spinoza to a 
 breach with his own system, and to an affiliation with the 
 utilitarianism of Hobbes. Reflecting the influence of 
 the Stoics, and likewise of Hegel, Krause approaches the 
 problem by assuming that every individual has a destiny, 
 and that it is the purpose bi the individual, as of the 
 community, to attempt to fulfill such mission, to assume 
 a place in the constitution of the world, and to assert 
 it.' Every individual is thus an infinite problem for 
 
 ' "Grundlage des Naturrechts,"!, pp. 23-34, with the note on 
 p. 21. "Abriss des Systems," pp. 12-i2. 
 
242 CIVIC EMANCIPATION [Ch. V 
 
 knowledge as for conduct. The individual cannot fully 
 attain his destiny, but must strive for it as an ideal. 
 This ideal is to recognize the law of the world and to 
 enforce it. The criterion, the medium of knowledge, 
 by which the ind vidual is put into accord with his 
 destiny, is conscience. The voice of conscience is 
 revealed as "the longing of love." Love is conditioned 
 by the knowledge of the human value of others. Love 
 leads to the recognition of other individualities, and 
 elevates man above extreme self-assertion. ' The nature 
 of God is revealed as the bounty of God. In His end" 
 less bounty lies "the one good, the one highest posses- 
 sion." The realization of this good is therefore "the 
 one law of life of every finite rational being — the 
 destiny of life." ^ 
 
 In his ' ' Grundlage des Naturrechts, ' ' Krause approaches 
 the problem of law essentially upon the position of 
 Fichte. Law is a postulate of reason, and thus "refers 
 to the establishment of the external conditions of reason 
 which exist, and which should be maintained independ- 
 ently of the freedom of the will and of natural forces." 
 "The law thus seeks to make freedom a natural force 
 and issue, without, however, destroying such freedom." 
 There are as many types of rights as there are ideals 
 of reason; a right to wisdom, religion, love, art, and, 
 as a means of attaining a rational ideal, "a right to 
 the maintenance of a bodily personality and to the 
 inherent conception of earthly utility." Further- 
 more, "as law is to be independent of the bad or good 
 intent, there is also the right of coercion," and for the 
 enforcement of authority, a right of punishment, and 
 
 • "Grundlage des Naturrechts," I, pp. 34-39. "Das Urbild der 
 Menschheit," pp. 100-126. "Abriss des Systems, " pp. 61-63. 
 "Lebenslehre, pp. 90-98. 
 
 ^ "Abriss des Systems," pp. 36 seq. 
 
§ 361 RECENT SYSTEMS 243 
 
 consequently, "the right of supervision and correction 
 of all individuals." In principle all enjoy the same legal 
 rights. Law and morality are correlated and directed 
 to the same end. Law is "a condition of morality." "■ 
 
 In his "Abriss des Systems der Philosophie des Rechts," 
 Krause describes law as a definite and necessary rela- 
 tion of life, which must and should be established through 
 free will and action as a definite possession and a definite 
 good. Consequently "the one law of morality contains 
 within itself the definite law to establish that relation 
 to life which is right." Here law appears as a subordi- 
 nate content of the moral law. The law is accordingly 
 "an organic whole, a structure or organism of a timeless 
 condition of the life of the absolute reason ; or the abso- 
 lute limitation of reason." Krause's term, "timeless," 
 in reality implies the opposite of its literal meaning. 
 Timeless means unlimited in time, that is, "in regard 
 to time, quite free." 
 
 "Humanity, in so far as it realizes, lives, or individ- 
 ually establishes the law, becomes the legally regulated 
 State of humanity, 'Menschheit-Rechtsstaat;' or the 
 State of humanity, 'der Menschheitsstaat ;' or simply 
 the State without further connotation." ^ Krause looks 
 upon the State, as upon law, as an organism. This con- 
 ception, which he derived from Schelling, he develops, 
 particularly in his "Urbild der Menschheit"' (1811), 
 
 1 "Grundlage des Naturrechts,"!, pp. 43, 44-48. 
 
 2 "Abriss des Systems," pp. 5, 8, 46 seq., 154-177, 177 seq. 
 
 ' Pp. 99-100, 295-304, & 327 seq. "Independence and harmoni- 
 ous interaction form the fundamental principles of the structure 
 of the world, of life and beauty." ("Das Urbild der Menschheit," 
 p. 90) : "Accordingly the relation in which all creatures are placed 
 with one another must be so conditioned that all participating in 
 the relation may yet persist therein with the retention of their 
 peculiar nature; and that in and through such relation the har- 
 mony, for the sake of which the relation is constituted, is maintained 
 
244 CIVIC EMANCIPATION [Ch. V 
 
 and in his biological work, "Lebenslehre." ^ In the latter 
 he reaches a pertinent and clear conception of the nature 
 of law, namely, that the norm of primary assent or 
 authorization has but secondary application as a limit- 
 ing norm for human action.^ 
 
 The "Naturrecht" ^ of Ahrens, published simultane- 
 ously in German and French, incorporated Krause's 
 philosophy of law, elaborated and improved it, and gained 
 for it a wider circle of readers. Krause failed to gain 
 this popularity because of his peculiar terminology which 
 made the approach to his philosophy difficult, and per- 
 haps also because of the unjust fate by virtue of which 
 the discovery of a new truth seems commonly to be 
 credited, not to the discoverer, but to his successor. In 
 addition to Ahrens, Roder is to be mentioned as a 
 disciple of Krause. 
 
 in conformity with the peculiar nature of the participants and of 
 the eternal laws of the world. In every such relation all the partic- 
 ipants therein must prosper and flourish each in itself and all in 
 harmony furthered by God. As the harmony of all creatures of the 
 world is one, so also must all the relations thereof and the several 
 resultant individual harmonies be concordant within the one great 
 harmony of universal life in God." ("Das Urbild der Menschheit," 
 p. 91.) 
 
 ' "Lebenslehre,'' pp. 82-90, upon the organic nature of law. (p. 
 85): "The law itself is one, the one temporally free condition of 
 the unified life of God." The organic nature of the State is discussed 
 on pp. 183-213. 
 
 ^ "Lebenslehre," pp. 189 seq. 
 
 ' "Naturrecht oder Philosophic des Rechts und des Staates. Auf 
 dem Grund des ethischen Zusammenflusses von Recht und Kultur," 
 2 vols., sixth edit., Vienna 1870-1871 (the last edition is in Ger- 
 man). "Cours de Droit Naturelou de Philosophic du droit," 2 vols, 
 eighth edit., Leipzig, reissued after the death of the author upon 
 the basis of the sixth edition, but thoroughly revised and supple- 
 mented by the theory of public law and of international law.' In 
 the French edition the historical portion up to the close of the 
 Middle Ages has been omitted. 
 
§ 36] RECENT SYSTEMS 245 
 
 4 : Ahrens. Following the example of Plato and Cic- 
 ero, Ahrens (1808-1874) derived law from the inner 
 nature of man; for law belongs to those ideas or con- 
 ceptions of the human consciousness that involve 
 obligation, and thus could not have been derived from 
 experience. The law becomes operative in consciousness 
 as a guiding principle* in accord with which one may 
 critically judge the existing conditions and seek their 
 improvement. The idea of the good, the moral, and 
 the just, constitute the content of the common moral 
 law. The idea of good is the most general, and comprises 
 that of the moral and the just. For everything is good 
 "which is in accord with the rational nature of man and 
 his perfection, and thus is worthy to be striven for. 
 Morality and law are rooted in the nature of man ; they 
 are worthy to be striven for, and form the essential 
 values of human life." Morality and law differ in that 
 morality refers to the motives of actions, and law to the 
 actions themselves, to the objective relations of life, 
 which are for the most part property relations. Accord- 
 ingly law is a "norm which regulates the use of freedom 
 in accordance with the relations of human life and 
 property." 
 
 The quality that elevates man above other beings 
 is personality. Man alone is a person; and the cri- 
 terion of personality is reason. It is through reason that 
 the mind recognizes laws, and that thinking, feeling, 
 and willing are elevated to the realm of the absolute, 
 and the will becomes free will. Reason is the capacity 
 of indefinite improvement. "Through the infinite power 
 and disposition of God, all men are equal. Every man 
 by possibility of endowment is humanity. Every man 
 should therefore attempt to bring to ever more complete 
 realization the idea and the ideal of humanity." Krause 
 makes the good ("Das Gute") equal to goods ("Das 
 
246 CIVIC EMANCIPATION [Ch. V 
 
 Gut"); similarly Ahrens makes "Gut" (possession) 
 "everything essential to man and worthy of human 
 effort — everything that is in accord with true human 
 needs ■ — that is serviceable to the effort for perfection." 
 Ethics is the science of that which is good and of 
 its realization through the free will. It is divided 
 into the doctrine of values ("Giiter"), and its two off- 
 shoots, morality and law. The good or the supreme 
 good is the complete development of the divine in human 
 nature in every direction in which life may contribute to 
 the kingdom of God; that is, to a kingdom of all that is 
 good in the human, modeled upon the divine. Without 
 sacrifice of its unity, the supreme good divides into the 
 several goods which attain this quality through the person- 
 ality ; it includes such as are inherent in the fundamental 
 relations in which man stands towards the order of his life 
 and being. These personal values are life, health, dignity, 
 honor, liberty, together with such relations as become ob- 
 jects of practical endeavor by virtue of thinking, feeling, 
 and willing. The values of the second order, or cultural 
 values, express the trait of humanity, the susceptibility to 
 human culture upon a divine model . They include religion, 
 science, fine and applied art — the latter a combination 
 of science and art — as well as education, morality, and 
 law. 
 
 The more precise formulation of law involves an 
 appreciation of the realm in which property is realized. 
 These realms, according to Krause and Ahrens, are the 
 realm of personality and the realm of property. The 
 realm of personality comprises life in all essential aspects ; 
 and the stages thereof are individual personality, mar- 
 riage and the family, the community, the race or the 
 union of races into a nation or State, and finally, 
 "the federation of peoples which nations are destined 
 to form." The domain of property regulation and of 
 
§36] RECENT SYSTEMS 247 
 
 culture is characterized by the dominant pursuit of a 
 special purpose. Law is the regulative principle of 
 personal and proprietary interests. Law is the organic 
 ordering principle applied to the various relations of 
 life. The legal relations are merely relations of prop- 
 erty in so far as these are considered from their legal 
 side. Every legal realm and institution must be devel- 
 oped from a uniform principle. Law and morality seek 
 to realize the good. They differ in that law is chiefly 
 directed to outer and enforcible transactions, — to the 
 legality of the transaction^ — while morality is directed 
 to the intent or disposition. Morality includes a more 
 extensive domain is so far as what is legally prescribed 
 or forbidden is also ethically prescribed or forbidden. 
 Morality demands an ethical motive for right action, 
 demands that it shall be done "with pure motives for 
 the sake of the right itself, as a part of the human and 
 divine order without coercion or penalty." ' Law and 
 justice in the last analysis depend upon God.^ The 
 relation of the idea of law, the true expression of justice 
 and material law to positive or formal law, is expressed 
 in the requirement of justice that all law shall be in 
 accord with right. The subject, or the medium of the 
 law, is man "as one who, by virtue of his rational quality, 
 is an end to himself, and who can utilize material things 
 as a means for his life's purpose." The object or con- 
 tent of law is whatever may be made serviceable to 
 rational purposes.' 
 
 In the second volume of the "Naturrecht," the legal 
 relations bearing upon the theory of values are further 
 
 » "Naturrecht," I, pp. 223-283, 297-316 ("Cours de droit nat- 
 urel," I, pp. 158-167, with note I, p. 158). 
 
 2 "Naturrecht," I, pp. 316-322, 221 seq. Ahrens distinctly 
 rejects Hegel's pantheism. "Naturrecht," I, p. 187 
 
 '"Naturrecht," I, 322-337, 348-351. 
 
248 CIVIC EMANCIPATION [Ch. V 
 
 developed and for the most part in the modern spirit; 
 yet there is no real progress, no tangible result; indeed, 
 essentially, nothing is added. Law and its institutions 
 are set forth as available and useful; in brief the phil- 
 osophy of law follows the science of law, instead of illumi- 
 nating critically the content of the law and of attempting 
 its further development as a contribution to civilization. 
 
 As Dahn properly notes, ^ the legal philosophy of 
 Krause and Ahrens is based upon an equivocal use of 
 terms, in that the good ("bonum, ayaOov") is also prop- 
 erty, "das Gut," and in that property is likewise viewed 
 and valued as the good. The merit of his legal phil- 
 osophy lies in the first place in its development and 
 elaboration of the Hegelian "Kulturstaat," and again 
 in the emphasis of the relative independence of the 
 several realms of law — the realms of legal authority, 
 which, since Ahrens, and on the basis of his terms, have 
 been called "Rechtsgiiter," (legally protected interests). 
 By this means fixed points were established in the 
 general field of government and law, with due consid- 
 eration of the part played by the individual in the 
 State.2 
 
 5: Herbart. The practical philosophy of Herbart 
 (1776-1841) is founded upon his doctrine of ideas.' 
 The moral ideas are the ideas of inner freedom, of per- 
 
 ' "Zur Rechtsphilosophie,'' pp. 368 seq. 
 
 "Berolzheimer, "Die Entgeltung im Strafrechte," pp. 162-168; 
 'Rechtsphilosophische Studien," pp. 100-103. 
 
 'Herbart, "Allgemeine Praktische Philosophie,'' "Collected 
 Works," Hartenstein edit., 8 vols., Leipzig 1851, pp. 3-212. 
 "Analytische Beleuchtung des Naturrechts und der Moral," "Col- 
 lected Works," 8, pp. 215^05. "Aphorismen zur Praktischen Phil- 
 osophie," "Collected Works," Hartenstein edit., vol. 9, Leipzig 1851, 
 pp. 389-449. Of special interest also are "tjber einige Beziehungen 
 zwischen Psychologic und Staatswissenschaft," "Collected Works," 
 9, pp. 199-219. "Uber die Unmoglichkeit personliches Vertrauen 
 
§ 36] RECENT SYSTEMS 249 
 
 fection, of charity, of justice, of mercy. The ideas form 
 exemplars for human conduct. They appeal to the 
 human will, to the "stronger and the weaker wills, 
 which are more or less well developed copies of the 
 ideas." "Strife offends," and hence the idea of dis- 
 approval.^ "Unrewarded and unpunished deedsoffend," 
 hence the idea of equity demanding reward and punish- 
 ment.^ In Herbart the ideas of law and equity, and 
 thus of the philosophy of law in general, assume a 
 complete ethical form, and become a division of ethics. 
 Herbart's ethics rests upon a psychological basis. It 
 appeals to the will and is determined by the "moral 
 sensibility." ' From these primary ideas Herbart 
 
 im Staate durch kiinstliche Formen entbehrlich zu machen," "Col- 
 lected Works," 9, pp. 221-240. "Zur Lehre von der Freiheit des 
 menschlichen Willens," "Collected Works," 9, pp. 243-385. 
 
 • "Allgemeine Praktische Philosophie," pp. 33-60, p. 30, pp. 49, 
 71. Herbart thus shows an agreement with Schopenhauer's posi- 
 tion which, in opposition to Hegel, recognizes the positive, and in 
 principle, the more fundamental conception in the wrong, the right 
 being its negation. In his "Analytische Beleuchtung des Nat- 
 urrechts," §65 ("Collected Works," 8, pp. 267 seq.), Herbart rei^rs 
 to Grotius: "Hugo Grotius shows that law must have originated from 
 dissatisfaction of conflict, for he refutes the contention that advan- 
 tage was the source of law, and restricts his entire dissertation to 
 the consideration of war. . . . He had hardly need to say that 
 strife displeases. This displeasure pervades his entire admirable 
 work." 
 
 * "Allgemeine Praktische Philosophie," pp. 55, 63-60: "Justice 
 and equity as traits of character must have been acquired in con- 
 sequence of displeasure with strife and unpunished deeds." ("Ana- 
 lytische Beleuchtung," etc, § 136, "Collected Works," 8, p. 344. 
 
 '"Allgemeine," etc., "Collected Works," 8, pp. 3-24. Also "Ana- 
 lytische," etc., § 54, pp. 262-266. The five original ideas — of 
 subjective freedom, of perfection, benevolence, right, and equity — 
 are not to be derived from a single supreme idea. The contraction 
 of these original ideas in the unity of the person gives rise to vir- 
 tue. "Allgemeine," etc., p. 109. 
 
250 CIVIC EMANCIPATION [Ch. V 
 
 develops the derivative ideas. "When one thinks of a 
 number of persons assembled within a given area, the 
 varied products of which invite and engage their atten- 
 tion, and when one offers each of these products to all 
 of the candidates, the natural and expected result is 
 that these persons, filled with desire, will quarrel; but 
 such strife is to be avoided, and the means of avoid- 
 ing it leads to the idea of a society dominated by 
 law." 1 
 
 "Strife may arise; this emergency requires either a 
 compromise so that it may not arise, or a settlement 
 so far as it has arisen." Concession, that is, a division 
 of the contested property, may avoid strife.^ Thus 
 Herbart reaches the establishment of real rights 
 through the principle of avoidance of conflict. "If, 
 however, conflict has broken out, if actions contrary to 
 law have been committed, the next step is to minimize 
 the consequences thereof." The disapproval of un- 
 atoned deeds brings about punishment of the offender 
 and the reward of good actions.' The administration 
 of the community arises from benevolence. It seeks 
 the "general good, that is, the highest possible amount 
 of satisfaction for all." "Benevolence is not restricted 
 to merit; it welcomes every sympathetic advance." A 
 mutual spiritual sympathy binds the members of a 
 community into a cultural unity. "When the individ- 
 uals are animated by a single spirit, which no one 
 feels as his exclusively, and to which no one feels alien, 
 the situation may be regarded as that of a single soul 
 
 ' P. 76. In some of his minor writings Herbert likewise notes 
 that "the presupposition of a legal society is that each individual 
 desires to avoid conflict." "Aphorismen, " etc., p. 400. 
 
 2 Pp. 78, 78-83. 
 
 ' "AUgemeine," etc., pp. 83-90. "Analytische," etc., pp. 315- 
 320. "Aphorismen," etc., p. 415. 
 
§ 36] RECENT SYSTEMS 251 
 
 that has its Ufe in all of them collectively." Thus the 
 community becomes a "spiritual community." ^ 
 
 "If society is to have a basis of continuity it requires 
 an external bond." "The State is characterized by its 
 coercive power." "Legal duties are emphasized by 
 coercion." Inasmuch as not every association "con- 
 sidered in itself alone can establish an authority, and 
 through such authority protect itself," it follows that 
 "the entire country, affected as it may be by conflicting 
 interests, should be governed by the same authority. 
 Thus arises a State which comprises a number of smaller 
 and differently disposed groups."^ "TheState is an asso- 
 ciation protected by authority; and its interests include 
 the interests of all associations which have been formed, 
 or will be formed, within its sphere of influence." "The 
 three factors of the conception of the State are private 
 will, institutions, and authority." "Private will estab- 
 lishes society." The institutions are those provisions 
 "which would have to exist in society even though 
 society were not formed into a State." The most im- 
 portant of such institutions are the laws.' 
 
 » Pp. 90-96, 96-101, 101-106. The statesman is not an edu- 
 cator, but "he may seek the common spirit wherever he finds it, 
 particularly in the minor social relations." "Thereby the will of 
 men transcends the ordinary selfishness and reaches a higher sphere 
 in which a common endeavor is vitalized and justified." "Further- 
 more the statesman may have a concern for the largest and most 
 general interests; thus men acquire respect for the totality." 
 ("Analytische," etc., §§ 173, 174, p. 366.) 
 
 Politics and pedagogy are branches of the science of virtue. The 
 education of the young is directed to the development of virtue, 
 and for this end awakens a many-sided interest and the development 
 of a stable character. ("Allgemeine," etc., pp. 143 seq.; "Analy- 
 tische," etc., §§ 124 seq., 169-172.) 
 
 2 Pp. 129; 77; 183; 130 seq. 
 
 3 "Analytische," etc., § 177; "Col. Works," 8, pp. 367 seq. Also 
 "Aphorismen," etc., "Col. Works," 9, p. 406. 
 
252 CIVIC EMANCIPATION [Ch. V 
 
 August Geyer (1831-1885), in his clear and well- 
 written compendium of the philosophy of law entitled 
 "Geschichte und System der Rechtsphilosophie in 
 Grundziigen," applied the philosophy of Herbart to 
 legal science.^ 
 
 6: Dahn. Felix Dahn^ (b. 1834) a disciple of Professor 
 Prantl, presents an idealistic legal philosophy. To philos- 
 ophize, he says, means to seek principles. The problem 
 of the philosophy of law thus becomes "to express abso- 
 lute law in the concept of law, and in the resulting 
 legislation, as well as in the several phenomena of life. 
 The philosophy of law must seek and prove the rational 
 and necessary element of law." ' 
 
 Just as language, family, art, and religion, so likewise 
 are morality, law, and the State, characteristic of 
 "human qualities," and such qualities are the phenomena 
 in the life of peoples which appear "uniformly at all 
 stages of culture) though with everchanging expressions." 
 These qualities arise from an inner factor which "in its 
 last analysis is inexplicable," namely, the rational char- 
 acter; and from an external source, the aggregate of the 
 "historical conditions operative in space and time." 
 Individual and social psychology reveal among the 
 human qualities a tendency towards law and govern- 
 ment, which are made manifest in the realization of law 
 
 ^Geyer, "Die Lehre von der Notwehr, eine Strafrechtliche Abhand- 
 lung," Jena 1857, p. iv of the preface; pp. 8-18 outline the develop- 
 ment of Herbart's philosophy of law. 
 
 ^The writings of Dahn here pertinent are : "Die Vernunft im Recht. 
 Grundlagen der Rechtsphilosophie," Berlin 1879 (which developed 
 from a criticism of Ihering's "Zweck im Recht," Vol. I). "Uber 
 Wesen und Warden des Rechts," "Z. f. v. Rechtsw.," Vol. II, 1879, 
 pp. 1-10; Vol. Ill, Stuttgart 1881, pp. 1-16 (a philosophy of law 
 presented in theses). 
 
 '"Vom Wesen u. Werden des Rechts," §§ 1-6; "Die Vernunft 
 im Recht," pp. 13 seq. 
 
§36] RECENT SYSTEMS 253 
 
 and government. The actual origin of law and govern- 
 ment lies in physical necessity, which leads men to the use 
 of natural resources, and to social co-operation. The 
 ideal origin is "an inner logical necessity, the logical 
 or rational need to bring the individual under the gen- 
 eral; hence there result laws and the law. To bring 
 about the complete realization of the idea of law, the 
 State upholds the law, which in turn rests upon the 
 strong idealistic impulse of patriotism.' Law thus 
 becomes "a rational peaceful ordering of a community 
 of men in their outward relations to one another and to 
 things." ^ The State becomes "the communal expres- 
 sion of a unified people for the protection and fostering 
 of law and culture." ' The oldest form of law is that 
 through usage — "the law as crystallized custom." 
 Property arises through "the protection of possessions, 
 even though detention has ceased through the acknowl- 
 edgment of the ownership on the part of the community. 
 Such acknowledgment also played a part in the law of the 
 family, especially in regard to marriage and paternal 
 authority, and thus transforms what were originally 
 relations of material fact into legal relations. 
 
 Upon the origin of the State, and upon the relation 
 of State and law, Dahn concludes that "the State arises 
 neither through explicit nor implicit contract, nor 
 through superhuman intervention, but instinctively from 
 the kindred clan and the community. Its sources lie in the 
 natural impulse towards law, and in racial gregariousness. 
 The tendency towards government is the idealized form 
 
 >"Vom Wesen," etc., §§ 8, 9, 10, 11, 12. 
 
 2 "Vom Wesen," etc., § 8, nos. 6, 13; "Die Vernunft," etc., p. 14. 
 
 ' "Vom Wesen," etc., § 14. Dahn here advocates the "Kultur- 
 staat" as against the "Rechtsstaat." "Zur Rechtsphilosophie," 
 p. 335. "The State is both 'Rechtsstaat und Kulturstaat."' ("Die 
 Vernunft," etc., pp. 60, 60-64.) 
 
254 CIVIC EMANCIPATION [Ch. V 
 
 of the trend towards nationality. The State does not 
 create law but is its prerequisite; it is the setting that 
 provides the secure establishment of the law. His- 
 torically the State is distinguished from the kindred 
 association and community, not absolutely, but relatively ; 
 that is, through the greater emphasis of the national 
 interests, of the more conscious external contrast, and 
 practically through the larger number of common 
 purposes." 
 
 According to Dahn, punishment, viewed objectively, 
 is "the assertion by repression that maintains a rational 
 peace against irrational attack." Ethics and law differ 
 in principle. Morality is the idea of the good ; it is the 
 rational means of internal peace; while law is the 
 rational means of external peace in the relations of 
 men to one another. From this it follows that legal 
 duties can be enforced, but that ethical commands 
 cannot be enforced; and likewise that the disposition 
 of the ethical spirit prevails above conformity of the 
 law. "Under normal circumstances" every breach of 
 the law is also a breach of morals. ^ 
 
 Dahn calls his position "Historism," or "the specula- 
 tive development of the older historical school."^ He 
 presents a synthesis of Hegel and .Schelling, a dialectic 
 
 >"Vom Wesen," etc., §§19, 34, 35, 36, 31, 18, and § 8, no. 5. 
 
 '"In the combination of 'Historism' with dialectical speculation, 
 and along with a modest recognition of the relativity of all human 
 knowledge, I perceive the future trend of all legal philosophy." 
 In this statement Dahn attempts to avoid the error of the "histori- 
 cal school (of Savigny), which looked upon a nation merely as an 
 association in which law arises and through which its character 
 is determined, . . . whereas it is evident that the impulse towards 
 law, and the conception of law, are realized by virtue of an ideal 
 necessity and a real need, long before the appearance of the nation 
 in the narrower affiliations of the family, the clan, the horde, the 
 community." Dahn, "Die Vernunft," etc., p. 12. 
 
136] RECENT SYSTEMS 255 
 
 or idealistic "Historism." According to Dahn, the 
 philosophy of law is to be developed by the application 
 of a philosophical method in combination with a com- 
 parative study of law. He denies the position of "nat- 
 ural law"; there is no ideal model law, for law is 
 always the rational and peaceful ordering of the external 
 relations of a particular and concrete human society. 
 
 7: Lasson. The position that Adolf Lasson'- (1832-) 
 assumes is that of Hegel's "Kulturstaat." Like Dahn, 
 he withdraws wholly from the doctrine of "natural law." 
 He combines speculative considerations with historical 
 study. In his view the problem of the philosophy of 
 law is "to interpret the prevailing law in its inner nature 
 and in its relation to other movements and phenomena 
 of life." ^ Of the historical school he says, "To under- 
 stand law and government scientifically means to under- 
 stand their historical genesis, which justifies their neces- 
 sary development and their organic connection with 
 the soil on which they grew. The historical is likewise 
 the rational method. Law can only be that which pre- 
 vails, which lives and finds its source in human con- 
 sciousness." Lasson defines law as the aggregate of 
 the governmental prescriptions enforced by the State. 
 Therefore law and the State are inseparable. 
 
 In developing his legal philosophy Lasson offers an 
 analysis of man according to his bodily and mental 
 nature, including a study of "human relations," 
 and a consideration of "human interests." In the 
 analysis of the human mind Lasson is led to assume a 
 free will in Kant's sense. "The will is autonomous so 
 
 ' "System der Rechtsphilosophie," Berlin and Leipzig 1882i 
 p. 19. 
 
 ^ "System," etc., p. 10. Lasson conceived the philosophy of 
 law as a division of ethics, as the science of the realization of the 
 idea of good in the human will. (p. 1.) 
 
256 CIVIC EMANCIPATION [Ch. V 
 
 far as it evolves its own law spontaneously from the form 
 of its own rationality. That is good which corresponds 
 to the practical reason, and that will is a good will which 
 desires the good, and desires it for no other motive than 
 because it is good. The good will that comes to be in 
 permanent sympathy with the nature of the subject 
 is the truly free will." "The elevation of the natural will 
 from a natural to a free will proceeds by training the 
 will, by education." The highest stage of the eman- 
 cipation of the will is to be called morality only 
 when it is directly allied to the holy will of God; 
 but the objective organ of morality is the Church. "' 
 Among the human relations Lasson emphasizes the 
 faniily and the people. The interests of men he divides 
 into the material or economic individual interests and 
 the social interests.^ 
 
 Such is Lasson's view of the law, and of its relation 
 to the "practical reason" and the "natural will." In 
 this connection the will appears as "a variety of the 
 rational will which is assumed to be still in the stage of 
 the natural will, and is moved by impulses and desires 
 to which reason is added at first merely as an external 
 limiting and restricting influence." In a later connec- 
 tion he characterizes law as "the statutory order," and 
 finally as a limiting norrn, as "the limit of authority." 
 The principles of law are justice and liberty.' Inas- 
 much as positive law is an external ordering of a more 
 
 1 "System," etc., pp. 19, 21, 22, 113-161, 162-174, 174-192 
 154, 141-161, 159-161. 
 
 2 "System," etc., p. 187: "The human community in so far as it 
 affords the setting for the interplay of all interests which all indi- 
 viduals or groups thereof pursue may be called society, or more 
 exactly civil society." 
 
 8 "System," etc., pp. 193-198, 198-207, 207-216, 215-242, 
 242-282. 
 
136] RECENT SYSTEMS 257 
 
 or less accidental historical character, justice becomes 
 the adequate expression of the practical reason, and as 
 compared with the law, is an "ideal demand" that never 
 can be fully realized. 
 
 The supreme function of law consists in its service 
 as at once the expression and the medium for the inner 
 life and the spiritual growth of the people. As a reflec- 
 tion of the subconsciously active cultural forces of a 
 particular national spirit, the law becomes an harmon- 
 ious expression of the relation between the inner life 
 and needs of the community and the outer forms of 
 regulation of the life of the community. By this means 
 law "attains its value and its high positive significance 
 for the cultural life of nations. By obeying their own 
 positive laws nations attain their freedom, and men 
 living in communities acquire the warrant of their 
 human dignity." 
 
 The State is "a human association possessing an organ- 
 ized supreme authority as the ultimate source of all 
 coercion." To the State belong the people, the land, 
 the sovereignty. The authority of the State and the 
 coercion which it exercises are at the service of law. 
 Hence there is no law without government, and govern- 
 ment has for its purpose the maintenance of the law.^ 
 In its origin the State is at once a product of nature and 
 a necessary result of the rational disposition of man.^ 
 In its origin the State is remote from the will of the 
 people. "The sovereignty of the people is a meaning- 
 less term." ^ The State is the realized legal order and 
 
 1 "System," etc., pp. 231, 242 seq., 283, 287. 
 
 ' "System," etc., pp. 298-300. Jellinek accordingly regards 
 Lasson as an advocate of the "psychological" theory of the origin 
 of the State. {Jellinek, "Allgemeine Staatslehre," p. 195, note 1.) 
 
 '"System," etc., pp. 293-311. 
 
258 CIVIC EMANCIPATION [Ch. V 
 
 its function is to make order real."^ According to Lasson 
 the activity of the State in the course of historical devel- 
 opment shows a tendency to coniine itself to the mini- 
 mum sphere, to leave the largest play to the free 
 activity of all forces, and to intervene as a restraining force 
 only when the maintenance of the State is in any manner 
 endangered. The view thus expressed without modifica- 
 tion is hardly correct. The problems and the sphere of 
 governmental functions in administration are of variable 
 scope according to the general cultural trend of a par- 
 ticular people at a particular time. In reality the State 
 exists always and only as a positive historical phenome- 
 non. From the point of view of civilization the highest 
 form of State is the national State, and in consideration 
 of the civilizing influences of Christianity, it is proper 
 to speak of a Christian State. The ideal purpose of 
 government not always realized is the advancement of 
 law towards material justice. "Justice in its applica- 
 tion to the fundamental relations of the State offers the 
 ideals of freedom and equality as the goal for such 
 development." ^ 
 
 In Lasson's view international law has no true legal 
 status; it is not "a true law of a formal and a positive 
 character." ' 
 
 Hegel proposed the conception of a wrong without 
 dishonest intention, an objective violation in deed, or 
 relation without subjective blame. Lasson adopts this 
 conception and calls it blameless wrong. Justice re-es- 
 
 ^ Lasson does well to substitute the word "function" for that of 
 "purpose" ("Zweck"); for the latter at once suggests a utilitarian 
 conception as though the State existed for the purpose of serving 
 certain interests. ("System," etc., pp. 310 seq., 313 seq.) 
 
 2 "System," etc., pp. 310-350, 670-686, 350-368, 368-380. 
 
 ' "System," etc., pp. 405, 394^07. See also Berolzheimer, 
 "Rechtsphilosophische Studien," pp. 45 seq. 
 
§36] RECENT SYSTEMS 259 
 
 tablishes right when wrong has been committed. 
 A notable passage in regard to property occurs in Las- 
 son's philosophy of private law. He holds that the 
 institution of property is not established through the 
 utility which the possession of property provides. The 
 supreme consideration in the regulation of property 
 relations is justice. Justice, however, does not consist 
 in the equal distribution of property. "To make men 
 equal would be to invert nature and to invite 
 destruction." ' 
 
 1 "System," etc., 484, 51S, 518 seq., 598, 596, 592-615. 
 
260 ECONOMIC REALISM [Ch. VI 
 
 CHAPTER VI 
 
 THE EMANCIPATION OF THE PROLETARIAT: 
 
 ENCROACHMENT UPON THE PHILOSOPHY 
 
 OF LAW BY ECONOMIC REALISM 
 
 FRENCH COMMUNISM: (1) SAINT-SIMON; (2) FOURIER; (3) LOUIS 
 BLANC; (4) COMMUNISM, ANARCHISM, AND SOCIALISM.— GERMAN 
 SOCIALISM: (1) MARX; (2) LASSALLE; (3) ENGELS; (4) RODBERTUS; 
 (5) BEBEL; (6) KAUTSKY; (7) BERNSTEIN; (8) A SURVEY OF THE 
 PROCESS OF EMANCIPATION.— ANARCHISM: (1) PROUDHON, THE 
 OLDER VIEW; (2) STIRNER, THE EXTREME INDIVIDUALISM; (3) 
 KRAPOTKIN. THE COMMUNISTIC VIEW; (4) BAKUNIN, THE POSI- 
 TION OF VIOLENCE; (5) TUCKER AND TOLSTOI, MODERATE ANAR- 
 CHISM.— FURTHER TYPES OF SOCIALISM: (1) MENGER; (2) LORIA; 
 (3) SOMBART. 
 
 § 37. French Communism. 1 : Saint-Simon. The 
 significance of the writings of Count Claude Henri de 
 Saint-Simon^ (1760-1825), and of communism lies less 
 in the positive construction of the communistic doctrine 
 than in the questioning of existing conditions and in 
 
 ' The writings of Saint-Simon that are here pertinent are: "Organ- 
 isateur," 1819-20. "Systeme Industriel," 1821-22. "Catechisme 
 des Industriels," 1822-23. "Nouveau Christianisrae," 1825. 
 
 The writings, instructions, and letters of Saint-Simon and the 
 Saint-Simonists are pubHshed together as "Oeuvres de Saint-Simon 
 et d'Enfantin," second edition, 25 volumes, Paris 1865-1872. "Du 
 Systeme Industriel" is in vols. XXI-XXIII (1869); "Nouveau 
 Christianisme" is also in vol. XXIII, p. 97. "L'organisateur" 
 (from November, 1819, to February, 1820) is in Vol. XX (1869). 
 "Parabole Politique" is in vol. XX, pp. 17-26; Vol, I also contains 
 the "Parabole." 
 
§37] FRENCH COMMUNISM 261 
 
 the political movement of socialism, to which they gave 
 rise. The object was the emancipation of the fourth 
 estate — the liberation of the laboring class and particu- 
 larly of the industrial laborer. While the emancipation 
 of the third estate, the establishment of a free class of 
 citizens, was essentially a political movement, and pro- 
 ceeded by overcoming the dominance of the Catholic 
 Church, by abolishing the feudal system, and by giving 
 all citizens a share in the government, the emancipation 
 of the fourth estate was essentially an economic one. 
 The issue in the former was primarily that of a political, 
 in the latter, that of an economic, enfranchisement. 
 The motive of the civic emancipation was the desire 
 for power; the emancipation of labor, at least in its 
 origins, grew out of the struggle for existence. The 
 several political agitations, from the beginning of the 
 sixteenth to the close of the eighteenth century, as 
 likewise the uprising in the year 1848, aimed to secure 
 a proper recognition of the citizen in the government. 
 The purpose of the economic political movement that 
 was inaugurated towards the close of the eighteenth 
 century was to protect the proletariat from material 
 and moral starvation ; yet naturally this economic trend 
 was not uniformly prominent in the several expressions 
 of the movement. 
 
 The first issue of the "Organisateur" of Saint-Simon, 
 1819-1820, contains the "Parabole Politique," which 
 gained him his acquittal in the Court of Assizes. This 
 parable inaugurates a new era in presentation. The 
 method there introduced is still followed in the litera- 
 ture dealing with the problems of government, society, 
 law, economics, and history. It presents an issue upon 
 which opinions are divided, namely, the use of the 
 causal conception in political science. Saint-Simon's 
 application of the conception differs from that later 
 
262 ECONOMIC REALISM [Ch. VI 
 
 employed by Marx and others. He proceeds from the 
 position that the political value of each class is deter- 
 mined by its productivity, its indispensability in the 
 State and to the State. In his parable Saint-Simon 
 speculates as to what might happen were France to 
 lose its most valuable productive class — its scholars, 
 artists, proprietors, manufacturers, merchants, etc.* — 
 and were further to lose its capitalists, together with 
 the royal family and the higher officials. The former 
 contingency, he concludes, would really seriously affect 
 France, which, by such a loss, would become "a body 
 without a soul";^ in the second case others would 
 assume the vacated places.^ Labor and talent are 
 personally valuable; rank and money are without 
 personal value. 
 
 Proceeding historically, Saint-Simon, in his "Cat6- 
 chisme des Industriels," attempts to establish the indus- 
 trial class as the true core of the community. In his 
 view, "industry" implies labor, which provides the 
 community with the means of satisfying its needs and 
 desires. Ultimately everything depends upon industry, 
 and for that reason everything must be done for industry. 
 The most useful and valuable, as well as most numerous 
 members of society, are those of the industrial class. In 
 this class, however, the true industrial element, the 
 laborers themselves, owing to their need of credit, are 
 reduced to a secondary position, subservient to the 
 
 • "In all the three thousand most noted scholars, artists and arti- 
 sans of France." "Oeuvres," I, 1865, pp. 83, 84; XX, pp. 17-19. 
 
 ' "The nation would become a body without a soul as soon as 
 these would be lost." "Oeuvres," I, p. 85; XX, pp. 19 seq. 
 
 ' "But this loss of the thirty thousand distinguished and promi- 
 nent individuals of the State would produce no disturbance except 
 in a purely sensational relation, for it would result in no political 
 injury to the State." "Oeuvres," I, pp. 85, 86; XX, p. 21. 
 
§37] FRENCH COMMUNISM 263 
 
 property-owning class, the bankers. A worthy civiliza- 
 tion demands a social reform which shall place the 
 industrial class — the workers in the largest sense — in 
 the position of vantage. This view Saint-Simon pre- 
 sents in his "Syst^me Industriel." In "Nouveau 
 Christianisme" he proposes the establishment of a new 
 Christian community,^ based upon the interests of the 
 working classes; yet the work contains little that is 
 positive in construction. 
 
 The leading principles of Saint-Simon's doctrine and 
 of his school may be thus summarized : ^ ' 'AH social 
 institutions should have for their object the amelio- 
 ration of the moral, intellectual, and physical condition 
 of the most numerous and the poorest class." "To each 
 according to his capacity, to each capacity according 
 to its achievements." 
 
 His doctrines were developed by his disciples, of 
 whom the most important was Enfantin (1796-1864). 
 After a period of success, extending to about 1831, the 
 views of Saint-Simon fell into decline, and finally into 
 
 '"God has said: 'Men should behave towards one another as 
 brothers.' This sublime principle contains all that is divine in the 
 Christian religion." ("Nouveau Christianisme," "Oeuvres," XXIII, 
 p. 108. Also pp. 159, 173.) It is from this principle that all insti- 
 tutions of the new Christian dispensation are to be derived ("Nouv. 
 Christ.," "Oeuvres," XXIII, pp. 113, 173). "Religion must guide 
 society towards the great end of improving as rapidly as possible the 
 condition of the poorest class.'' ("Nouv. Christ.," "Oeuvres," 
 XXIII, p. 117.) 
 
 Saint-Simon opposes Catholicism as well as Protestantism, be- 
 cause, and in so far as they both fail to give proper consideration 
 to this principle. ("Nouv. Christ.," "Oeuvres," XXIII, pp. 116- 
 191.) 
 
 * "Oeuvres," I, p. VII. See also "Nouv. Christ.," "Oeuvres," 
 XXIII, p. 173: "Society must labor for the improvement of the 
 moral and physical condition of the poorest class; society must be 
 organized in a manner most suitable to attain this great end." 
 
264 ECONOMIC REALISM [Ch. VI 
 
 oblivion. This was due in part to the eccentricities of 
 its advocates, particularly of Enfantin, and in part to 
 dissensions among its leaders; but mainly to the in- 
 herent untenability of the doctrine itself. The most 
 permanent contribution of Saint-Simon was the substi- 
 tution of the conception of the State by that of society. 
 It was from this that Comte derived the foundations 
 for his Sociology. 
 
 2: Fourier. Fourier ^ (1777-1837) was a man of 
 genius, rather given to romantic dreams for the future 
 of society. By training he was a mathematician and 
 physicist, which may account for his fondness for 
 quantitative forms of expression. In his system the 
 fundamental number is twelve. Man has twelve funda- 
 mental instincts or natural traits which, by various 
 combinations, form the individual character. The 
 social order of the future is to bring about the har- 
 monious development of these natural traits. He 
 divides the community into a number of economic groups. 
 Every such group, "phalanx," was to comprise from 
 1800 to 2000 persons, was to be assigned about a square 
 mile of land, and was to occupy a large communal 
 edifice called "Le Phalenst^re." Agriculture and in- 
 dustry were to be the pursuits followed. Four-twelfths 
 of the income was to be applied to capital, five-twelfths 
 to wages, and three-twelfths to talent.^ Here again the 
 number twelve plays a decisive part. 
 
 The importance of Fourier for the emancipation of 
 the fourth estate lies in his advocacy of the right to work 
 as a political demand — a position previously urged by 
 Fichte on other grounds. Somewhat after the manner 
 
 ' Fourier's chief works are "TraitS de L'Association Domestique 
 Agricole," 2 vols., 1822 (second edition, 1841); "LeNouveau Monde 
 Industriel et Societaire," 1829. 
 
 ' "Le Nouveau Monde," etc., 1829, pp. 364 seq. 
 
§ 37] FRENCH COMMUNISM 265 
 
 of the advocates of "natural law," Fourier assumes a 
 natural state of affairs in which there are four funda- 
 mental economic rights. Society, in which the natural 
 resources are already disposed of, must grant an equiva- 
 lent for these rights. Without making any sharp dis- 
 tinction Fourier calls such equivalent the right to work 
 or the right to a minimum existence,^ and prophesies a 
 period of "guaranteeism" in which every man will be 
 guaranteed by society a minimum livelihood, .and pri- 
 marily, the right to work. These ideas were further 
 developed by his pupils. 
 
 3: Louis Blanc. The most modern and the most 
 reasonable of the communists is Louis Blanc ^ (1811- 
 1882), and so far as concerns the practical influence 
 of his efforts, he is likewise the most successful. The 
 problem which particularly engaged his attention was 
 that of the unemployed. It seems a justifiable demand, 
 alike from the position of legal philosophy and of social 
 ethics, that the State or the community shall protect 
 all men from starvation. The poor and the incapaci- 
 tated should be a concern for public care ; but the assist- 
 ance of those able to work becomes charity, and is 
 immoral. It encourages parasitism, and saps the moral 
 force of the beneficiaries and of the community. It is 
 familiar that the mediaeval Church did much to favor 
 such demoralization. Assistance of this type should be 
 temporary, the main need being to provide work — a 
 function now exercised by communal and corporate 
 
 ' In regard to the right to work see "Traite," etc., pp. 137 seq., 143. 
 In regard to the right for a minimum wage see "Traite," etc., pp. 
 126, 135; "Le Nouveau Monde," etc., pp. 4, 12, 38, 42, 74, 185, 
 328, 333, 373, 420, 430. 
 
 ^ Apart from the manifold contributions to periodical literature 
 and important historical works, Blanc is notable for his tractate, 
 "Organisation du Travail," 1840. (I cite from the ninth edition, 
 Paris, 1850.) 
 
266 ECONOMIC REALISM [Ch. VI 
 
 institutions. Insurance against unemployment is simi- 
 larly helpful. 
 
 The duty of the State, growing out of its ethical nature, 
 to provide work according to their capacity for those 
 willing and able to work, appears in Louis Blanc, as in 
 Fourier, as a natural demand, applicable without reser- 
 vation. The question^ whether competition serves to 
 secure work to the poor he tests by the observation of 
 economic conditions. Reflecting the influence of the 
 Malthusian position, he concludes that competition of 
 labor depresses wages below the minumum of existence, 
 supplies the manufacturer with the cheapest labor — 
 child labor — fails to provide the means of subsistence, 
 and starves or pauperizes the laboring classes. In oppo- 
 sition to Adam Smith and Say, who regarded free compe- 
 tition as conducive to the welfare of the community 
 and of the individual, Louis Blanc maintains that it 
 reduces workmen to a condition of wretched poverty, 
 and further maintains that it injures the citizen-class 
 through the resulting cheapening of commodities. In 
 another connection he sets forth that even political 
 relations are undermined by free competition, which 
 eventually will lead to a deadly conflict between France 
 and England. He proposes to avoid the pernicious 
 effect of unlimited freedom by going to the other ex- 
 treme and establishing the right to labor by govern- 
 mental aid, or, in communistic phrase, by the social 
 organization of labor. Society is to establish public 
 industrial work-shops and a public system of agricul- 
 
 ' "Organisation du Travail," Book I, chap. II, pp. 26, 25-56. 
 On p. 56 Blanc thus summarizes his position: "As statistics show, 
 competition produces poverty. As statistics show, the poor are 
 extremely prolific. As statistics show, the fecundity of the poor 
 throws upon society the unfortunates who need work but cannot 
 find it. Under these circumstances society has the alternative of 
 killing off the poor or of supporting them — -either brutality or folly." 
 
§37 FRENCH COMMUNISM 267 
 
 ture, through which the several classes of labor are to 
 be communistically organized. But other callings are 
 also to be publicly provided for, such as the literary pro- 
 fession, which even in those days brought no golden 
 profits.^ It is familiar that after the "Revolution of 
 February" an attempt was made to realize Blanc's 
 ideas by establishing national labor centers, but, as was 
 to be expected, this proved a failure. 
 
 4: Communism, Anarchism, and Socialism. Com- 
 munism, which in the main was originated and developed 
 in France, has traits in common with socialism and with 
 the communistic trend of anarchism; yet each move- 
 ment presents points of contrast. The three positions 
 agree in what they reject. They decidedly and radically 
 reject the existing legal order and the resulting economic 
 situation. They diverge in the positive construction 
 of their doctrines, in their view of the conditions which 
 are to replace the existing state of affairs. However, 
 this is not the essential difference; the distinctive 
 criterion dividing communism, anarchism, and socialism, 
 is, so to speak, the political subsoil upon which the three 
 tendencies grow. The theoretical foundations serving 
 the intellectual leaders of these several movements are 
 but incidentally determined by the practical purposes 
 sought. 
 
 Communists, anarchists, and socialists regard the 
 present conditions of labor and industry as thoroughly 
 unjust. Communism believes that labor and ability 
 are at a disadvantage; it proposes radically to reform 
 the economic situation without prejudice or favor. 
 Everyone who is efficient shall be justly rewarded; 
 no class shall be favored; the actual abuses and injus- 
 tices in the distribution of property and income shall be 
 
 ' "Organisation," etc. Book I, chaps. Ill, IV, V, Book II, chap. 
 IV; Book III, chap. III. 
 
268 ECONOMIC REALISM [Ch. VI 
 
 abolished. In so urging, communism is politically neu- 
 tral; it does not desire to favor or disfavor one class in 
 the State at the expense of other classes or economic 
 groups, but attempts by radical measures to bring about 
 a thorough and permanent improvement. 
 
 Anarchism goes a step farther. It questions whether 
 law and government, the economic order and capital, 
 can ever produce satisfactory economic and political 
 conditions. Anarchism does not regard the existing 
 laws and economic order as the cause of the unsatis- 
 factory state of affairs, but regards as such the existence 
 of law itself, with its power of coercion, and the exis- 
 tence of capital, which is assumed to be its inseparable 
 concomitant. While communism rejects the existing law, 
 anarchism rejects law in general. It is opposed not only 
 to the established law but to every form of legal coercion. 
 It believes that the natural altruistic tendencies of men 
 would come into unrestricted play, were law and govern- 
 ment to be abolished. 
 
 In contrast to communism and anarchism, socialism, 
 in the name of justice, represents the interests of the 
 laboring classes. Socialism is judge and advocate in 
 one. The income belongs by right to the one, and to 
 him alone, who creates the productive value, who 
 labors, and whose labor is productive. But labor alone 
 is productive; hence, the laborer should receive the 
 lion's share of the product of his labor. While anarchism 
 desires to set aside law altogether, and thus dispense 
 with the governmental institution, and while commun- 
 ism is politically indifferent, socialism represents the 
 legal and economic philosophy of class-interests of the 
 laborer. In place of the legal State, "Rechtsstaat," 
 and the culture State, "Kulturstaat," socialism proposes 
 a coercive State, "Zwangsstaat," in the interests of the 
 laborer. Such a coercive State socialism calls society. 
 
§ 38] GERMAN SOCIALISM 269 
 
 § 38. German Socialism. 1 : Marx. The founder of 
 German socialism, the chief pillar of the socialistic doc- 
 trine, was the Hegelian, Karl Marx i (1818-1883). He 
 proposed to apply philosophy to economic relations. 
 His most permanent service was his formulation of the 
 philosophy of history. Saint-Simon, in the "Parabole 
 Politique," applied the principle of causality to the com- 
 munity in the State; Marx applied it to the method of 
 history. He regarded the decisive factors of historical 
 development as the economic^ ones; the factors that 
 
 ' Marx's chief work is "Das Kapital. Kritik der Politischen 
 Okonomie," fourth edition, edited by Friedrich Engels. Vol. I, 
 Book I, "Der Produktionsprozess des Kapitals," Hamburg 1890. 
 Vol. II, Book II, "Der Zirkulationsprozess des Kapitals," second 
 edition, Hamburg 1893. Vol. Ill, Part I, Book III, "Der Gesamrat- 
 prozess der Kapitalistischen Produktion," chaps. 1-28, Hamburg, 
 1894. Vol. Ill, Part II, Book III, chaps. 29-52. Hamburg 
 1894, incomplete. A preliminary work, "Zur Kritik der Politischen 
 Okonomie," Berlin 1859, is likewise of great importance. 
 
 Marx, "Theorien iiber den Mehrwert," published by K. Kautsky, 
 from the manuscript material of "Zur Kritik der Politischen Okono- 
 mie." 1. "Die Anfange der Theorie vom Mehrwert bis Adam 
 Smith," Stuttgart 1905. 
 
 ^ See the summary ("Zur Kritik, d. pol. Okonomie," preface, 
 p. v): "The aggregate of conditions of production at any given 
 stage of development of material resources constitutes the economic 
 structure of society, the real basis upon which a legal and political 
 superstructure is built, and to which correspond definite types of 
 social consciousness. The manner of production of the needs of 
 material existence, conditions the social, political, and intellectual 
 mode of living. It is not the consciousness of man that conditions 
 his being, but conversely his social life conditions the consciousness." 
 That Marx was influenced by the materialism of the Hegelian 
 Feuerbach is noted by Masaryk, "Die Philosophischen und Soziolo- 
 gischen Grundlagen des Marxismus," pp. 1-89, also pp. 92-101. 
 
 In this connection Marx has merely formulated more definitely 
 the conception of history first put forward by Saint-Simon. Engels 
 gave to this Conception the name of "the material conception of 
 I'.istory." 
 
270 ECONOMIC REALISM [Ch. VI 
 
 had been unduly ignored. New ideas are ever likely 
 to receive a biassed and exaggerated consideration, and 
 the socialistic position over-emphasized the material 
 conception of history in terms of economic factors. In 
 the last analysis the issue between the materialistic and 
 idealistic conception of history depends upon the atti- 
 tude assumed towards the problem of causality. If the 
 cause be regarded as equivalent to the aggregate of the 
 antecedent conditions, then, as is true of other efficient 
 forces, the economic factors constitute the condition, but 
 not the exclusive condition. If, however, the cause be 
 regarded as equivalent to the distinctive and decisive 
 condition, then the study of history shows that the ideal- 
 istic conception is correct. Every progress, every real 
 advance in the history of the emancipation of mankind, 
 has been due to the initiative of leading minds. It is 
 true that these find response on the part of their con- 
 temporaries only when the cultural conditions of a given 
 period — which comprise the material as well as the 
 intellectual factors — furnish a suitable atmosphere. 
 Powder alone without a spark is powerless to produce 
 an explosion. 
 
 It is not possible to summarize a work of eight hun- 
 dred pages in a few sentences. I must be content to 
 select from his "Capital" the gist of Marx's economic 
 philosophy. A fundamental position in its develop- 
 ment is his theory of Increment, which was not, as for- 
 merly held, original with Marx, but was borrowed from 
 the English socialists, particularly from Thompson.^ 
 According to Marx the mechanism of exchange operates 
 in such a manner that the producer receives gold (G) 
 for his wares (W) and with the income produces new 
 wares (^^). In this process of exchange, represented 
 
 '■Anton Menger "Das Recht auf den vollen Arbeitsertrag in 
 Geschichtlicher Darstellung," p. 97, note 1, and pp. 39-58. 
 
138] GERMAN SOCIALISM 271 
 
 by the formula W-G-W, the W at the beginning is the 
 same as the W at the end — the laborer has given and 
 received equivalent values. If, however, the capitalist 
 puts his gold (G) in circulation, buys wares (W), and 
 again sells them, he is not content to receive an income 
 equal to his original investment (G) — for in that 
 event the whole transaction would have no meaning 
 and be useless — but he always obtains a higher income 
 (Gl). In the process of exchange indicated by the for- 
 mula G-W-Gl, the increment of value consists in so much 
 as Gl exceeds G. This increment, which the capitalist 
 pockets, is unearned by him; it was the laborer who 
 earned the increment, for only labor is productive.' 
 Capitalists thus unjustly exploit labor. While the lab- 
 orers are limited to the minimum wage, the capitalists 
 amass great fortunes, until eventually a very small num- 
 ber of the exploiters are in turn dispossessed by the 
 great mass of the exploited. This process of disposses- 
 sion will spontaneously occur by virtue of natural devel- 
 opment.'' Under a socialistic regime society will con- 
 
 ' "Das Kapital," Vol. I, pp. 69 seq. ; Vol. II, pp. 1 seq. 
 
 2 Marx, "Das Kapital, I, pp. 727 seq. ("tjber die Geschichtliche 
 Tendenz der Kapitalistischen Akkumulation") : "As soon as this 
 process of transformation has sufficiently decomposed the old 
 society from top to bottom, as soon as the laborers are turned into 
 proletarians, their means of labor into capital, as soon as the capi- 
 talist mode of production stands on its own feet, then the further 
 socialisation of labor and further transformation of the land and 
 other means of production into socially exploited and, therefore, 
 common means of production, as well as the further expropriation 
 of private proprietors, takes a new form. That which is now 
 to be expropriated is no longer the laborer working for himself, 
 but the capitalist exploiting many laborers. This expropriation is 
 accomplished by the action of the immanent laws of capitalistic , 
 production itself, by the centralization of capital. . . . Centraliza- 
 tion of the means of production and socialization of labor at last 
 reach a point where they become incompatible with their capitalist 
 
272 ECONOMIC REALISM [Ch. VI 
 
 duct manufacture and justly apportion the distribu- 
 tion of the proceeds.^ 
 
 As already noted, according to the Marxian philosophy 
 of history, the economic status at any given period is 
 decisive for the form which society assumes, that is, 
 for the material content of government and law, or its 
 economics. Economic relations always produce two 
 distinct classes in the community, the exploiters and 
 the exploited. It is the purpose of the socialistic order 
 of society to replace this perpetual conflict and enslave- 
 ment of the economically weak by order and justice. 
 The community is to regulate production and give to 
 each his due. "The goal of development would be the 
 complete unity of the State and society."^ In place 
 of a formal legal equality there shall be a material eco- 
 nomic justice; and this is possible only in that supreme 
 
 integument. This integument is burst asunder. The knell of 
 capitalist private property sounds. The expropriators are expro- 
 priated." (Moore's translations, p. 788.) 
 
 1 W. Ed. Biermann ("Staat und Wirthschaft," pp. 107-125, Vol. I) 
 opposes the view expressed by Anion Menger and others that the 
 position of Marx favors a strong State control. Biermann urges 
 that Marx looked upon the State as a great brutal expression and 
 not as the assertion of authority. This interpretation of Biermann 
 is not justified. It seems to me that Biermann does not observe 
 the peculiar terminology of socialism. Marx regards the State 
 as a capitalistic, brutal expression of power, but regards socially 
 organized society as a just economic order. Yet what the Marxians 
 call society is in truth the State, in that their society exercises the 
 coercive power of the State, and determines the legal economic 
 order. This social, or more properly, governmental order, as the 
 socialists advocate it, ascribes to the State a comprehensive and 
 omnipotent sphere as against the dependent individual, such as has 
 not been advocated since ancient times. 
 
 Moreover Lassalle ("Arbeiterprogram," pp. 40-42) clearly and 
 explicitly speaks of the State and of its problem as the emanci- 
 pation of the working classes. 
 
 * Jellinek, "Allgemeine Staatslehre," p. 81. 
 
§ 38] GERMAN SOCIALISM 273 
 
 and comprehensive socialistically organized form of gov- 
 ernment, which is called society. 
 
 The doctrine of Marx, holding to the position of the 
 classic school of economics that only labor produces 
 wealth ' — and for the Marxians only the labor of the 
 laboring classes is regarded as productive — has been 
 thoroughly and definitely refuted, not only by science, 
 but by the actual development of affairs. The impor- 
 tance of Marxism lies in the fact that through its 
 agitation the emancipation of the laboring classes was 
 stimulated and accomplished. It was the outrageous 
 spectacle of the harsh exploitation of the laborers by 
 the manufacturers — particularly in England — through 
 excessive hours of labor, through starvation wages, 
 through the truck system and the sweating system, and 
 through overwork of women and children, that aroused 
 the protest of Marx. The abolition of this slavelike 
 treatment of the laboring classes has been accomplished 
 by the socialistic movement, which grew out of the 
 work of Marx, and which has extended to all civilized 
 countries. The formal goal of Marxism was a socialistic 
 coercive State that should control and regulate the pro- 
 duction and distribution of income; and the result 
 actually accomplished is the enfranchisement of the 
 wage-earner. 
 
 The communistic manifesto of the year 1848, issued 
 jointly by Marx and Friedrich Engels, had large polit- 
 ical influence. Of Marx's minor writings of the earlier 
 period may be mentioned "Zur Kritik der Hegel'schen 
 Rechtsphilosophie," of the year 1843. The conclusion 
 of the dialectic development of the economic revolution 
 
 1 This principle is incorporated in the party platform. For 
 example, see the Program of the socialistic labor party of Germany, 
 May 1876, I: "Labor is the source of all wealth and of all culture." 
 Reprinted in Conrad's "Jahrb.," 3d series, I, p. 235. 
 
274 ECONOMIC REALISM [Ch. VI 
 
 is thus described:^ "The proletariat begins to asiert 
 itself in Germany through the invasion of the industrial 
 movement; for it is not poverty of natural origin but 
 poverty artificially created, that makes the proletariat. 
 If the proletariat heralds the dissolution of the present 
 social system, it is but delivering the secret of its own 
 being, for it is in fact the dissolution of the social order. 
 If the proletariat demands the abolition of private own- 
 ership, then it but elevates to a principle of society what 
 society has already accepted as its principle, what with- 
 out its aid has been embodied in society as a negative 
 result." 
 
 2: Lassalle. Ferdinand Lassalle^ (1825-1864), a 
 political agitator and brilliant orator, introduced the 
 Marxian ideas among the laboring classes in Germany. 
 He emphasized the political side of socialism, and directed 
 attention to the economic and political representation 
 of the interests of the laborer.^ From the philosophical 
 point of view he gives the socialistic conception of the 
 State a greater definiteness of expression. He does not 
 use the confusing expression, "society," when he speaks 
 of the State, but calls it the State. He opposes the con- 
 
 1 "Collected Works," published by Mehring, Vol. I, pp. 397 seq. 
 
 ' The political writings of Lassalle are edited by Erich Blum, 
 Leipzig 1899. Of special import are "Arbeiterprogram," Zurich 
 1863. (Blum's edition, I, pp. 156-200.) "OfTenes Antwortschreiben 
 an das Zentral-Komite zur Berufung eines AUgemeinen Deutschen 
 Arbeiter-Kongresses zu Leipzig," Zurich 1863 (pp. 1-39). "Macht 
 und Recht, Offenes Sendschreiben," 1863. (pp. 101-106.) 
 "Arbeiter-Lesebuch." (II, pp. 59-144.) A survey of the writings 
 of Lassalle is found in the "Handworterbuch der Staatswissen- 
 schaften," second edition. Vol. V, pp. 630 seq. 
 
 ^ "Oflenes Antwortschreiben," p. 7 (Blum's edition, I, p. 7), 
 36 seq. (Blum's ed., I, p. 37). "Arbeiterprogram," pp. 32 seq. 
 (Blum's ed., I, pp. 195 seq.), "Arbeiter-Lesebuch," Blum's ed., II, 
 pp. 96, 110, 128, 139 seq. 
 
1 38] GERMAN SOCIALISM 275 
 
 ception of the Manchester school that assigns to the State 
 the role of a night watchman, i and in opposition to the 
 view of Adam Smith thus develops the socialistic con- 
 ception of the State: "History is the struggle with 
 nature, with misery, ignorance, poverty, helplessness, 
 and slavery, to which the human race was subject at 
 the beginning of history. The development of freedom 
 is the story of the progressive conquest of this helpless- 
 ness. To the State belongs the function of furthering 
 the development of the human race to a state of freedom. 
 It is the purpose of the State, through the alliance which 
 it forms, to place the individual in such a position and 
 to attain such purposes and such a stage of existence 
 as individuals of themselves could not attain; to reach 
 a position of culture, power and liberty which would 
 be unattainable to them as individuals. It is the func- 
 tion of the State to bring the human race to a condition 
 of positive progress, to realize the culture of which the 
 human race is capable. It is the education and evo- 
 lution of the human race to a state of freedom." ^ 
 
 Although with a socialistic trend, Lassalle presents 
 the Hegelian "Kulturstaat" with a clearness of expres- 
 sion too often absent in socialists and sociologists alike.' 
 
 • This Manchester conception of the State is conceived of under 
 the metaphor of "a night-watchman whose entire function is that 
 of preventing robbery and burglary." (" Arbeiterprogram, " p. 39.) 
 
 " "Arbeiterprogram," p. 40. 
 
 ' In the Program of the socialistic party the State is identified 
 in part, but in part only, with society. In the Program of the 
 social-democratic party (August 1869), § 1 reads as follows: "The 
 social-democratic labor party strives to establish a free State of 
 the people." In the Program of May 1875, § 2, it is affirmed: "The 
 socialistic labor party aims at a free State and a socialistic type of 
 society." In § 1 it is further stated that "the total product of labor 
 belongs to society, that is, to all parts thereof." What is meant by 
 society, and what by the members of society, unless it be the State 
 and the members of the State? 
 
276 ECONOMIC REALISM [Ch. VI 
 
 The State is explicitly described and is not masked under 
 cover of society. 
 
 3: Engels. Fr. EngelsI (1820-1895), the friend 
 and political associate of Marx, is known both as the 
 editor of "Kapital" and as an independent writer. His 
 chief works are "Ursprung der Familie, des Privat Eigen- 
 tums und des Staats," ^ and "Herr Duhring's Umwal- 
 zung der Wissenschaft."' In these he popularizes and 
 develops the ideas of Marx. He thus defines the material 
 conception of history: "The determining factor in his- 
 tory is the direct production and reproduction of life." 
 This in turn proceeds in two ways ; first, by the produc- 
 tions of the means of subsistence, — of clothing, dwellings, 
 tools, — and again by the reproduction of the species. 
 "The social institutions under which men live at a given 
 historical period and in a given country are conditioned 
 by both forms of production, by the stage of develop- 
 ment of labor on the one hand, and that of the family 
 on the other." * According to Engels the State is "a 
 product of society at a given stage of evolution. It is 
 a confession that such society stands at the moment in 
 an insoluble contradiction with itself, is divided by 
 irreconcilably opposed forces which it is powerless to 
 control." 
 
 4: RoDBERTUs. Rodbertus-Jagetzow (1805-1875) 
 maintained the Marxian view of the theory of incre- 
 
 ' In addition to the principal writings of Engels as above cited, 
 there are considerable contributions in periodical form, including 
 numerous essays in "Die Neue Zeit." For the earlier writings of 
 Engels, see the collected edition of his publications dating from the 
 years 1841-1847, arranged by Mehring. 
 
 ' In connection with Lewis H. Morgan's "Forschungen," 1884, 
 second edition, Stuttgart 1886. 
 
 ' First edition, Leipzig 1878; second edition; Zurich 1885; third 
 edition, Stuttgart 1894. 
 
 * "Der Ursprung der Familie," pp. iv, 135. 
 
§38] GERMAN SOCIALISM 277 
 
 ment. He developed his theory independently of Marx, 
 though both were indebted to previous socialists. His 
 point of departure is the statement that all economic 
 values, in contrast to natural values, cost labor and 
 labor alone. Accordingly the time expended in labor 
 affords an economic standard of value. Interest he 
 interprets as the income from property without labor. 
 The rent yielded by real estate is ground rent, and 
 the rent yielded by capital is interest. Rodbertus 
 assigns two reasons as the origins of rent — the eco- 
 nomic reason is that under existing conditions labor yields 
 a surplus above the minimum necessity of livelihood of 
 the laborer ; the second reason lies in the legal principle 
 of interest, namely, the private ownership of land and 
 capital. Rodbertus, like Marx, in the consistent devel- 
 opment of his views, holds that all value depends upon 
 labor, and thus regards the income from rent as the 
 exploitation of labor and of the product of the labor of 
 others. He ascribes the existence of poverty and in- 
 dustrial crises to the tendency of wages to decline.' 
 
 To remedy the existing social distress Rodbertus de- 
 mands the introduction by the State of standard hours 
 of work and of a standard output.^ It is not his inten- 
 tion entirely to dispossess the capitalist of the increment 
 of value. Incomes of ground rent and capital are in 
 principle to remain, but the wages of labor are to be 
 generally improved. Rodbertus is not a true socialist 
 but a State socialist. The State is to conduct whatever 
 
 ' "Soziale Briefe an v. Kirchmann." 
 
 ' Rodbertus, "Der Normal- Arbeitstag," 1871 ("Kleine Schriften," 
 pp. 337-359), particularly p. 338: "The normal working day of 
 many hours must first be advanced to a working day of so much 
 work; it must be standardized, not merely in terras of time but 
 particularly in terras of labor." This is further considered on pp. 
 339 seq. 
 
278 ECONOMIC REALISM [Ch. VI 
 
 business is by nature public, and only by official dele- 
 gation is business to be conducted by private capital, 
 which in turn is to be operated from the public point 
 of view.' 
 
 5: Bebel. The workof Bebel^ (b. 1840), "Die Frau 
 und der Sozialismus," is a popular scientific work dealing 
 primarily with the social position of woman in the past, 
 present, and future; it is at the same time a propagan- 
 dum for the socialistic cause. The enormous success 
 of this book — in 1904 it had reached its thirty-sixth and 
 thirty-seventh edition — which attempted to enlist 
 women in favor of socialism, is in large measure due to 
 its effective treatment of social wrongs in the past and 
 present. It is not free from exaggerations, and holds the 
 "capitalistic order of society" responsible for evils that 
 are inevitable. Bebel proclaims the emancipation of 
 woman through the socialistic order:' "In the new 
 society woman will be completely independent, socially and 
 economically. She will be subject to no form of domi- 
 nation and exploitation . She will be mistress of her fate . ' ' 
 Socially and legally, so far as sex does not involve neces- 
 sary differences, woman is to be placed upon complete 
 equality with man. Woman will be free in the choice 
 of profession, in expenditure, as also in the choice of a 
 mate. By his advocacy of free love he placed a weapon 
 in the hands of the opponents of the socialistic doctrines, 
 
 •See particularly "Das Kapital" ("Literary Remains," II, pp. 77 
 seq.)" 
 
 * "Die Frau und der Sozialismus." Thirty to thirty-third edi- 
 tion (unaltered after the Jubilee edition), Stuttgart 1899-1902; 
 thirty-sixth to thirty-seventh edition, unaltered after the thirty- 
 fourth edition, Stuttgart 1904. (I cite from the twenty-seventh 
 edition unaltered after the Jubilee edition, Stuttgart 1896.) The 
 remaining writings of Bebel are far less important and less influen- 
 tial than this work. 
 
 ' "Die Frau," etc., pp. 427 seq., 441-463, 464^70. 
 
§ 38] GERMAN SOCIALISM 279 
 
 who were not disposed to find fault with his economic 
 and social views. 
 
 Bebel discountenances the fear of over-population 
 and the neo-Malthusian position. He offers some per- 
 tinent remarks upon "over -population of intelligence" 
 which in Germany has produced "an uncommonly large 
 number of proletariat scholars and artists" — "a strong 
 proletariat in the so-called liberal professions." For 
 these, despite their higher education, can find no satis- 
 factory professional income, and are justly embittered; 
 all of which leads inevitably to political radicalism. 
 
 6: Kautsky. Kautsky^ (b. 1854) devotes his book, 
 "Die Agrarfrage," to the interests of the rural laborer, 
 the agriculturist and the independent farmer. He dis- 
 cusses in detail the social democratic politics of the 
 agrarian position, and offers pertinent comments and 
 proposals upon the public administration of schools, 
 the care of the poor, the maintenance of roads, and the 
 gratuitous conduct of lawsuits. The last is hardly 
 likely to reduce the number of pettifogging lawsuits 
 among farmers. To win over the independent farmer 
 to the socialistic movement, Kautsky holds that the 
 existence of the agricultural intermediary is necessary, 
 quite apart from the parasitic intermediary; and that it is 
 not part of the socialistic program to dispossess "the 
 non-parasitic intermediary in agricultural business, who 
 fills an important function in economic life."^ "The 
 farmer need have no concern for the welfare of his home. 
 The socialistic regime will not fail to leave its influence 
 
 • His writings are "Die Agrarfrage. Eine Ubersicht iiber die 
 Tendenzen der modernen Landwirtschaft und die Agrarpolitik der 
 Sozialdemokratie," Stuttgart 1899; and various essays and contri- 
 butions in "Die Neue Zeit." 
 
 2 "Die Agrarfrage," pp. 301 seq., 414^17, 417-420, 436-439, 
 440-451, 451. 
 
280 ECONOMIC REALISM [Ch. VI 
 
 upon it; but the changes which it will produce will be 
 in the direction of sanitary and aesthetic improvements 
 to the advantage of the rural homestead." 
 
 7: Bernstein. Eduard Bernstein ' (b. 1850) opposes 
 the "theory of catastrophe," the view "that we are 
 rapidly approaching a collapse of civil society, and that 
 social democracy should shape its campaign by the 
 prospect of such imminent social catastrophe, or adjust 
 its actions to such contingency."^ His book, "Die 
 Voraussetzung des Sozialismus und die Aufgaben der 
 Sozialdemokratie,"^ a collection of his essays which, 
 for the most part, appeared in the periodical, "Die Neue 
 Zeit," is devoted to the presentation of a scientific basis 
 of his position and his unqualified repudiation of the 
 Marxian view. In his philosophy, as evidenced in this 
 and other writings, he shows a leaning towards Kant, 
 
 1 His writings are "Zur Theorie und Geschichte des Sozialismus,' 
 Berlin-Berne 1901. "Probleme des Sozialismus," "Die Neue Zeit,' 
 1896-97, XV, Vol. I, pp. 164-171 (204-213), 303-313, 772-783; 
 Vol. II, pp. 100-107, 138-143. "Der Kampf der Sozialdemokratie 
 und die Revolution der Gesellschaft," "Die Neue Zeit," 1897-98, 
 XVI, Vol. I, pp. 484^97, 548-557. "Kritisches Zwischenspiel," pp. 
 740-751. "Das Realistische und das Ideologische Moment im 
 Sozialismus." ("Probleme des Sozialismus," second series, II A) 
 "Die Neue Zeit," XVI, Vol. II, pp. 225-232, 388-395. ("Die Prob- 
 leme des Sozialismus" are reprinted in "Zur Theorie und Geschichte 
 des Sozialismus," pp. 167-286.) 
 
 ^"Social democracy neither sanctions nor desires the prompt 
 collapse of the present economic position as a result of a great 
 sweeping industrial crisis.'' "Der Kampf der Sozialdemokratie 
 und die Revolution," "Die Neue Zeit,"XVI,Vol. I, p. 556. Belfort- 
 Bax, "Der Sozialismus eines gewohnlichen Menschenkindes gegen- 
 iiber dem Sozialismus des Herrn Bernstein,"" Die Neue Zeit," XVI, 
 I, pp. 824-829, contends against Bernstein in behalf of a future 
 governmental "goal and movement." 
 
 'See likewise Bernstein, "Der Kampf," etc., pp. 406-416, the 
 treatise, "Abwehr wider Kautsky's Schrift: Bernstein und das 
 sozialdemokratische Programm," a rejoinder to Kautsky. 
 
§38] GERMAN SOCIALISM 281 
 
 and may be regarded as a neo-Kantian emphasizing the 
 idealistic factors in evolution as against an extreme 
 materialism.^ 
 
 8 : A Survey of the Process of Emancipation. At the 
 present time the newer socialism seems to have receded 
 from the main positions of Marx's socialism. It is not 
 possible here to review the several varieties of socialism. 
 Marx's theory of deterioration, "Verelendung," which is 
 not in accord with the facts of development, was made 
 the subject of a critical study by Julius Wolf. Basing 
 his arguments upon the statistics of expenditure and 
 income, upon those of poverty and crime, upon the 
 inheritance tax and bank deposits, he proved that the 
 middle classes were not being reduced to a proletariat.' 
 It is only necessary to contemplate the economic life 
 of the present with an intelligent understanding to detect, 
 in the higher salaried positions in the large mercantile, 
 industrial, insurance, and financial enterprises, the rise 
 of a new middle class. 
 
 Were present-day socialism to accept as its scientific 
 basis the doctrines of the Hegelian Marx, it would be 
 burdened by an obsolete, devitalized heritage of the 
 past, much as would be the present conservative party 
 if it accepted as its theoretical foundation the philosophy 
 of the Hegelian theologian, Stahl. Marx and Stahl 
 represent a superseded point of view. Although the 
 socialistic party, as likewise the conservative party, has 
 
 > See particularly, "Das Realistische und Ideologische Moment 
 im Sozialismus," "Die Neue Zeit," XVI, 2, pp. 225-232,388-395. 
 Opposed thereto, see Belfort-Bax, "Synthetische contra Neumarxis- 
 tische Geschichtsauffassung," "Die Neue Zeit," XV, I, pp. 171-177. 
 "Kautsky, Bernstein und die Materialistische Geschichtsauffassung," 
 "Die Neue Zeit" 1898-99, XVII, 2, pp. 4-16. 
 
 ^Julius Wolf, "System der Sozialpolitik," Vol. I, "Grundlegung." 
 "Sozialismus und Kapitalistische Gesellschaftsordnung," Stuttgart 
 1892. 
 
282 ECONOMIC REALISM [Ch. VI 
 
 acquired a more powerful position than it held when 
 the philosophy of Hegel and the economics of Marx 
 prevailed, its present influential position is presumably 
 due to a very different and more practically significant 
 political principle. Social democracy is the political 
 expression of the laboring classes, who form an important 
 economic constituency of the State, much as the"Bauern- 
 bund" and the conservative party represent the political 
 position of the landholding constituency, and of the 
 affiliated economic and social classes. As representing 
 important economic interests, these several parties justly 
 exercise a considerable power, and represent an essen- 
 tial group in the development of the modem "class- 
 state"; it is this "Klassenstaat" that, as an ideal, is 
 gaining the support of many intelligent socialistic leaders."^ 
 It appears in Bernstein's opposition to the theory of 
 catastrophe, as also in Kautsky. "Whether it will be 
 
 'In the year 1880 the word "legal" was canceled from the 
 Program of 1875. "Proceeding upon these principles the social- 
 istic labor party of Germany aims to establish a free State and a 
 socialistic society by means of legal measures." The striking out 
 of this word assumed the importance of a political demonstration, 
 of a protest against the socialist laws. (1878-1890.) In contrast, 
 later proceedings of the party (Dresden 1904) clearly demonstrated 
 that social democracy was rapidly becoming an efficient radical 
 labor party on the basis of the present governmental and economic 
 order, with slight consideration of an ideal future State. It is not 
 surprising that in so large- a party there should be marked diver- 
 gences among the leaders — a more radical (Marxian) and a more 
 civic tendency favoring revision. These differences have less 
 practical importance, inasmuch as the leaders of a pure Marxism 
 are influenced by considerations of party interest to hold rather 
 tenderly to the Marxian position. Every religious or political 
 party dealing with large masses of the people presents this tendency 
 towards dogmatism. For the masses want simple slogans ("Schlag- 
 worte") which they can use and do not easily relinquish. But it 
 would be unfortunate, particularly in the interests of labor, to have 
 social democracy become catholic. 
 
§38] GERMAN SOCIALISM 283 
 
 possible to win the peasantry to the ranks of social democ- 
 racy by advocating such an agragian policy may be 
 doubted. Social democracy will ever remain in essence 
 a proletarian , urban party, — a party of economic progress. 
 In the conservative farmer, to whom city life is alien, 
 and who holds fast to the patriarchal form of family, 
 it will ever encounter a deeply rooted prejudice, and 
 will never make the same appeal as that made by the 
 agrarian party, which not only stands closer to his 
 interests but is ready to promise larger advantage." 
 A party of three million voters can obviously not be 
 expected to change its political allegiance in a day. 
 But careful attention to the views of the leaders in the 
 socialistic camp convinces me that the withdrawal from 
 revolutionary trends in favor of the interests of organ- 
 ized labor is slowly but steadily gaining. Social democ- 
 racy has doubtless favored atheism and materialism; 
 yet it deserves the credit of supplying the masses with 
 an idealistic basis for their reflection and action; like- 
 wise is it to be remembered that nowadays, quite irre- 
 spectively of socialism, atheism and materialism are 
 independently taking hold of large masses of the people. 
 The great cultural importance of social democracy lies 
 in its service to the masses of the laboring people, to 
 whom it gave an intellectual stimulus, and whom it 
 elevated to a higher spiritual level through the medium 
 of political agitation. While Marx's "Capital" forms 
 the cornerstone of socialism, the communistic manifesto,' 
 
 1 The manifesto of the communistic party published in February, 
 1848, London, printed in the office of the Comminists' League. Its 
 motto is "Proletarians of all countries unite.'' 
 
 The manifesto begins with these words: "A specter is hovering 
 over Europe, the specter of communism!" The emphasis of the 
 document is placed upon the fact that the history of all previous 
 society has been the history of class conflicts (p. 3), and that all 
 previous society has been organized on the basis of the opposition 
 
284 ECONOMIC REALISM [Ch. VI 
 
 which he issued jointly with Engel in February, 1848, 
 is far more significant for the emancipation of the fourth 
 estate and for the cultural development of modern 
 times. This manifesto was the general alarum which 
 awakened the dispossessed — the slaves oppressed under 
 the yoke of the capitalists — to a self-consciousness, 
 to a class-consciousness, to a conscious solidarity. "Let 
 the ruling classes tremble in view of the impending 
 communist revolution. Theworkingclasseshavenothing 
 to lose but their chains. They have a world to win. 
 Workingmen of all countries, unite!" ^ This appeal, 
 which forms the closing words of the manifesto, brought 
 into being the present German socialism. It contains 
 the philosophical basis of the cultural movement which 
 socialism introduced, the goal of which has now been 
 reached • — ■ the emancipation of the fourth estate. 
 
 Herewith the series of the great recent movements 
 for emancipation is completed. Since the close of the 
 Middle Ages the watchword of the philosophy of law 
 and economics has been "freedom." In earlier days the 
 intellect was set free from the ban of the Catholic Church 
 through the heroic efforts of Luther. Grotius released 
 the law from its scholastic fetters ; he brought rationalism 
 to earth, and his contract theory contains the germ of 
 the idea of popular sovereignty. In the same temper 
 the "Tyrannomachs" led the fight against tyranny. In 
 these efforts it was at times forgotten that freedom 
 represents a cultural ideal and does not consist in the 
 complete independence of all conditions, but in throw- 
 
 of the oppressors and the oppressed (p. 10). "When capital shall 
 have been transformed into a capital that belongs in common to 
 all members of society, it does not follow that personal property 
 will have been transformed into social property. It is only the 
 social character of the possession that is changed; it loses its class 
 character" (p. 12). 
 1 "Manifesto," p. 23. 
 
§38] GERMAN SOCIALISM 285 
 
 ing off the yoke of slavery; license was mistaken for 
 liberty. Such an extreme and extravagant conception 
 of freedom assumed equality as a rightful demand on 
 the basis of "natural law"; and by way of Rousseau's 
 "Discours" and the destructive philosophy of the En- 
 cyclopedists, it led to the French Revolution. The 
 aftermath of the Revolution, supported by the ethical 
 philosophy of Wolff, brought about an enlightened abso- 
 lutism. But the people, released from their fetters, ex- 
 changed them for leading strings. It was through Kant 
 that the citizen was made to realize his right to freedom 
 and equality; the great revolutionary philosopher was 
 more radical than the provincial Robespierre. The 
 latter was an extremest in action, but Kant was an 
 extremist in thought. The issue of the French Revolu- 
 tion, as affecting freedom and equality, was destructive, 
 nihilistic; Kant's philosophy was comprehensively syn- 
 thetic. He erected a splendid edifice for freedom and 
 equality — the "Rechtsstaat" ; and its economic com- 
 plement was contributed by the physiocrats and by 
 Adam Smith. With these advances the process cf eman- 
 cipation, which brought law and government out of 
 the bondage of the mediaeval Church to the freedom 
 of the modem world, would have been completed 
 if it were the fact — as rationalism had naively assumed 
 in the theory of contract — that the law was an inde- 
 pendent institution. But the law is not something 
 fixed, unalterable, and absolute; it is flexible and subject 
 to change, as was recognized by Schelling and Hegel. 
 The study of its fluctuations, which condition legal 
 advance and legislative reforms, led to the science of 
 economics. In Marx and Lassalle a period of economic 
 materialism set in, and a new emancipation became 
 necessary, because a new class had been awakened to 
 a class-consciousness. 
 
286 ECONOMIC REALISM [Ch. VI 
 
 The emancipation at the close of the Middle Ages and 
 at the beginning of modem times was directed by tem- 
 poral interests against the spiritual aggrandisement of 
 the popes and their subordinates. The emancipation 
 of the legal philosophers, from the "Tyrannomachs" to 
 Kant, was centered upon the people. But the people, 
 the subjects, the ruled classes, were, or appeared to be, 
 the citizens in the cities, and the independent farmers 
 in the rural districts. The oppressors were the lords, 
 the rulers, the ruling classes, together with the aristoc- 
 racy of the feudal system. In the Kantian movement 
 the people gained their freedom. But it appeared that 
 such freedom was for the benefit only of the citizen 
 class, — the property owners, the capitalists. The free- 
 dom and equality which the law guaranteed were legally 
 and formally for the benefit of all, but actually and 
 economically existed only for the property-owning 
 classes. This disparity between formal legal freedom 
 and economic enslavement became evident through the 
 spread of a new form of production, that of machine 
 labor. There thus arose a new great class which was 
 enslaved by the very medium of the law itself, which 
 was exploited by the class of citizens who themselves 
 had just attained their own free development. There 
 became necessary a still newer and last process of eman- 
 cipation through economic measures. 
 
 Reviewing this order, there appeared, in succession, 
 temporal freedom as against ecclesiastical bondage; the 
 freedom of legal government as against tyrannical rule; 
 the freedom of private law as against the economic 
 enslavement of the citizen and the peasant; economic 
 freedom as against the abuse of the capitalistic power 
 of the middle class : thus the circle of the great emanci- 
 pation was completed. The process of emancipation 
 of ancient days was concluded by the formal legal 
 
1 39] ANARCHISM 287 
 
 moralization of private rights; the process of emanci- 
 pation of modern times by their material and economic 
 socialization. 
 
 §39. Anarchism. 1: Proudhon; the Older View. 
 The position of anarchism is variously presented by 
 its adherents. Their common points may be said to 
 include the unconditional opposition to the State, to 
 all authority and coercion, and a like opposition to 
 capital, the presence of which makes the equal consid- 
 eration of all a myth.i Their common, though negative 
 purpose, is the abolition, indeed the destruction of gov- 
 ernment and of governmental control and authority. 
 The second part of their program is to work for this 
 end by the use of violence, inasmuch as at present those 
 in authority will not yield peaceably. The anarchists 
 are divided into two chief camps on the issue of the end 
 to which endeavor is to be directed, and of the means 
 to be employed in reaching it. 
 
 Yet if all compulsory enforcement is abolished, and 
 if society is freed from capital, what then? What shall 
 
 ' ' 'According to the expression of an influential capitalist interested 
 in the distribution of justice, the important point is to equalize 
 opportunity for all who have to face the chances of life.'' (EHsee 
 Rectus, "L'evolution, la revolution at I'ideal anarchique," third 
 edition, Paris 1898. "Bibliotheque Sociologique, " No. 19, p. 121.) 
 The supreme power of capital is emphasized by anarchists on all 
 sides. (Rectus, "L'evolution," etc., pp. 85-90, 201. "Money in 
 the present state of society is the open sesame" {Grave, "La Societe 
 Future," p. 338). See also Krapotkin, "La Conqu6te du Pain," 
 pp. 47-63, 93. Capital is the chief cause of crime. (Grave, "La 
 Societe Future," pp. 138-142.) Mackay, "DieAnarchisten," p. 267, 
 says that "it may be shown that the crimes of the State produce 
 crime." The argument in regard to the exploitation of the labor- 
 ing classes on the part of the citizens, used by the socialisits, is often 
 advanced by the anarchists. (Grave, "La Societe Future," p. 24, "The 
 citizen class has become parasitic; it lives at the expense of those 
 who are busy at work, and is itself losing the power to produce." 
 
288 ECONOMIC REALISM [Ch. VI 
 
 be put in their place? Here opinions diverge. The older 
 tr°nd is in the main represented by Proudhon (1809- 
 1865). In the name of justice ' he discards law, govern- 
 ment,' and property ^ — -the last by reason of its irra- 
 tional and disturbing consequences.' For all he sub- 
 stitutes anarchy,^ which is based upon the only valid 
 law,^ namely, that contracts must be kept.* Herein 
 appears the influence of the doctrine of "natural law." 
 His brilliant and eloquent presentations, his pertinent 
 definitions and arguments, found favor, particularly as 
 his views were flattering to the spirit of the times. His 
 definition of business appealed directly to the masses, 
 envious of the possessions of others. "The definition 
 of business is familiar; it is the art of buying at three 
 francs what is worth six, and of selling at six francs what 
 is worth three." The universal acceptance of Proud- 
 
 ' "De la Justice,'' I, pp. 182-185, new edition, second essay, pp. 
 86-91. p. 87: "Justice is the respect of human worth spontaneously 
 exercised and mutually guaranteed for every person and for every 
 situation and at whatever risk its defense entails." "Id^e Genferale," 
 pp. 235, 342, 343. 
 
 2 "Qu'est-ce que la Propri6t6," I, pp. 239-245 (p. 240): "A king- 
 dom may be good when it is the only possible form of government, 
 but it never can be legitimate." (p. 242): "The authority of man 
 over man is in inverse ratio to his intellectual development." See 
 in this connection, "De la Justice," new edition, I, fourth essay, 
 pp. 13, 18, 108-110, 111-128, 134-143. 
 
 » "Qu'est-ce que la Propri^t^?" I, pp. 129-193. 
 
 * "Qu'est-ce que la Propriete?" I, p. 237. "I am an anarchist." 
 (p. 242): "Anarchy, the absence of a master, of a sovereign, this 
 is the form of government which we are approaching day by day." 
 
 ' Idee Gfcerale," pp. 149 seq., 235. 
 
 ' "Idee Generale," pp. 343, 235: "In order that I may remain 
 free there must be eliminated all that remains of the divine in the 
 government of society, and the structure must be rebuilt upon the 
 human idea of contract." Proudhon has in mind Rousseau, who, 
 however, was not consistent in the development of his thought. 
 
§39] ANARCHISM 289 
 
 hon's phrase — though the idea is not originally his^ — ■ 
 that property is theft ^ is a telling example of the carry- 
 ing power of neat phrases. 
 
 The older anarchism, beginning with Proudhon and 
 including Bakunin, is but partly communistic or coUec- 
 tivistic. In contrast to the newer, thoroughly communis- 
 tic anarchism, it. is individualistic: that is, property 
 as income, as possession, or as conferring advantage, 
 is rejected; but property as ownership is retained 
 and made accessible to all, though not under the legal 
 title of ownership, but under the terms of a party to a 
 con tract. 2 
 
 2: Stirner: Extreme Individualism. Max Stirner 
 (1806-1856), a pseudonym for Kaspar Schmidt, is an in- 
 dividualist maintaining that everyone should stand on 
 his own footing. He carries his individualistic views 
 consistently to the extreme, and represents the purely 
 atomistic position. The individual exists for his own 
 sake alone ; he must express his own activity, be allowed 
 to live his individual life; he must be his own master, 
 a State in himself, a man of nature. Stirner accepted 
 and developed in an original manner the doctrine of 
 
 1 "Qu'est-ce que la Propriete?" I, p. 233; pp. 2, 229-234. 
 
 ^Adler, "Nord und Sud," p. 372; Zenker, "Der Anarchismus," 
 pp. 26, 41, and others take the position that Proudhon did not un- 
 conditionally reject property. Eltzbacher, "Der Anarchismus,'' 
 p. 70, opposes this view: "He (Proudhon) rejects property uncon- 
 ditionally without restriction of space or time. Indeed he looks 
 upon it as a legal relation which is peculiarly adverse to justice.'' 
 The entire content of "Qu'est-ce que la Propriete?" seems to support 
 Eltzbacher in this contention; for this work is a constant 
 tirade against property. Eltzbacher is however not correct in so far as 
 Proudhon did not carry to its extreme consequences this antagonism 
 to property. He rejects property, but reintroduces it in his 
 anarchical system under another term. His private property 
 becomes a share in the social goods in a contractual society. This 
 is not property by name, but is so for all intents and purposes. 
 
290 ECONOMIC REALISM [Ch. VI 
 
 personal and economic freedom advanced by Adam 
 Smith and Ricardo. He called attention to the fact 
 that freedom is but a negative quality, the release from 
 bondage, the removal of restraint. To supply a positive 
 ideal, Stimer accepted the formula: "Be your own mas- 
 ter, live for yourself, in accord with your own individual- 
 ity." ^ Dispensing with its anarchistic setting, Nietzsche 
 
 1 The unusual emphasis of individuality and of individual free- 
 dom, which it is held that the State and the present social order 
 suppress, forms an important argument of the anarchists, including 
 those belonging to the communist group. ThusGrave, "La Societe 
 Future," p. 155: "But if the individual is compelled to live in society 
 it must not be hastily concluded that he must sacrifice himself in 
 such association''; or again, p. 157: "For the anarchist, society 
 has a reason to exist and develop only if it brings about an improved 
 condition for man considered individually as well as collectively; 
 if it contributes to his advancement and permits a larger extension 
 of his powers without demanding any restrictions unfavorable to 
 his personality other than such as already exist by virtue of the 
 natural conditions of existence in the environment in which he finds 
 himself." 
 
 Again, p. 166: "Hence society has no reason to exist except upon 
 condition that those who form part of it find therein a greater devel- 
 opment of their welfare and self-expression." See also Rectus, "L'evo- 
 lution," etc., p. 121: "We claim everything, all that is possible to 
 the development of our powers and our physical health in their 
 fullest expression." 
 
 Mackay: "Die Anarchisten," p. 286: "The freedom of labor once 
 achieved by the abolition of the State, which will then no longer 
 monopolize money, paralyze credit, withdraw capital, check the 
 circulation of goods, or in brief, shall no longer be able to control 
 the affairs of the individual • — ■ when once this shall have become a 
 fact, the sun of anarchy will have arisen"; and again, p. 281: "All 
 forms of slavery had to be experienced. Peoples ever struggled in 
 search of freedom, but found in every change the same lack of free- 
 dom. At last the truth was found that all outer forms involving 
 coercion were to be rejected. Force began to decline." 
 
 The anarchistic dream of freedom is clearly set forth by Mackay, 
 "Die Anarchisten," p. 122: "A condition of equal opportunity, 
 for every free, independent, sovereign individual — whose sole 
 
§ 39] ANARCHISM 291 
 
 developed this extreme individualistic doctrine into 
 the will to prevail, — "Wille zur Macht." 
 
 3 : Krapotkin : the Communistic View. The counter- 
 part of individualistic anarchism is to be found in 
 communistic anarchism, which is advocated by the Rus- 
 sian Prince, Peter Krapotkin (b. 1842). Considering 
 that the individual man is powerless and helpless in 
 the face of natural forces, it is evident that he needs 
 social co-operation ' to maintain himself, yet under the 
 
 demand upon society consists in claiming respect for his freedom, 
 and whose sole self-imposed law is the respect for the freedom of 
 others — such is the ideal of anarchy." Grave (as above, p. 306): 
 "But if man cannot live in isolation, if he cannot overcome the ob- 
 stacles imposed by the precarious conditions of existence in which 
 he finds himself, it is clear that such association, if it is to endure, 
 must be based upon the condition of perfect equality among the 
 contracting parties"; and again (p. 400): "But we have also such 
 a thirst for justice and liberty that we desire a society without 
 judges, governors, and all those parasites that constitute the mon- 
 strous social organism with which humanity has been afflicted since 
 the beginning of history." Upon the individualistic anarchism as 
 opposed to communistic socialism, see Mackay, "Die Anarchisten," 
 pp. 109-142. 
 
 ^ The communistic tendency is at present dominant. See Grave, 
 "La Socifetfe Future," VII edit., Paris 1895 ("Bibliotheque Sociolo- 
 gique. No. 8), p. 147: "The anarchists know that man cannot live in 
 isolation; they know that he must combine forces in order to obtain 
 the maximum benefit; it is for this reason that they desire a society 
 based upon solidarity and not upon conflict." Again, p. 149: "The 
 purpose of the social state is to enable man to disengage himself 
 from natural obstacles, is a means of extending the field of his activ- 
 ity, of developing his self-expression, of decidedly increasing his 
 strength in overcoming difficulties." (p. 155): "Association is thus 
 a human necessity. It is one of the indispensable conditions of 
 man's intellectual development." (p. 166): "Hence society has 
 no reason to exist except upon condition that those who form part 
 of it find therein a greater development for their welfare and self- 
 expression." See also Krapotkin, "La Conqultedu Pain," pp. 21- 
 29, 31-45. 
 
292 ECONOMIC REALISM [Ch. VI 
 
 condition of retaining his personal freedom. "Free- 
 dom is the absence of aggressive force or coercion." 
 "The State is the power of might organized; its nature 
 is violence and its privilege is robbery; its maintenance 
 is due to the robbing of one for the benefit of another."^ 
 
 Communistic anarchism and communistic socialism 
 are closely related. It may be said that the two coin- 
 cide economically and diverge politically. The anar- 
 chists provide a freer position of the individual as against 
 the community, the communists desire organization 
 without rule, without force, — organization, but not au- 
 thority.^ The communistic anarchists maintain that 
 communism will lead to the prosperity of the 
 community.' 
 
 4: Bakunin: the Position of Violence. The anar- 
 chists are agreed that only violence can lead to their 
 
 ^ Mackay, "Die Anarchisten," p. 111. 
 
 2 Gmiie, "La Societe Future," pp. 201-211. (p. 201): "What we 
 understand by organization is the relation that comes to obtain 
 between individuals associated in a common work in virtue of their 
 interests; it is the mutual relations that arise from daily contact 
 which all the members of a society are forced to have with one an- 
 other." See also Krapotkin, "La Conqulte du Pain," pp. 31-45, 
 213-234. (Does not this assume that harmony can ensue without 
 the dominion of authority?) 
 
 'Gra»e, "La SocieteFuture, pp. 51-56. p. 51: "True wealth is the 
 most perfect adaptation of the world to our needs." (p. 53): 
 "There are in Europe immense territories unproductive by reason 
 of the aridity of the soil, and on the other hand rivers carrying to 
 the sea not alone millions of cubic metres of water, but also fertil- 
 izing deposits taken from the soil in their course and encumbering 
 navigation at their outlets." 
 
 Krapotkin, "La ConquSte du Pain," preface by Reclvs, p. vii: 
 "The forces at our disposal should be applied not to useless or inef- 
 fective works but to the production of everything that is necessary 
 to feed men, for their housing and use and comfort, and to the study 
 of the sciences, and the cultivation of the arts." See also Krapot- 
 kin, "La Conqulte du Pain, pp. 17 seq. 
 
139] ANARCHISM 293 
 
 desired goal ; ' but as to how this violence is to be exer- 
 cised, opinions differ. The scientific group, the theoret- 
 ical socialists, advocate an international revolution as 
 the radical solution without giving much thought as to 
 how and when and where this revolution is to occur. 
 This group is represented in the ofhcially circulated 
 literature of anarchism. The other party constitutes the 
 "propagandists of action," the "terrorists," who, by 
 intimidation and attacks upon crowned heads or other 
 
 ^Elisee Reclus, "L'^volution, la revolution et I'ideal anarchique," 
 pp. 147-154, argues against those who optimistically "hope that 
 everything will come about by itself," that capital will yield only to 
 force, that it spoils the character, that whoever comes into money 
 or power realizes his authority. In concluding Reclus says (p. 289) : 
 "Let us not be self -deceived. We know that the final victory will 
 cost much blood, labor, and suffering. The international organiza- 
 tion of the oppressed will be counteracted by a similar organization 
 of the oppressors.'' 
 
 Similarly Grave, "La Societe Future," p. 85: "Revolution will be 
 inevitable, for the privileged classes will never abdicate of their own 
 accord." Again, p. 113: "There is a fatal stage to cross." That 
 revolution can be effective only if it be international is emphasized 
 by Grave, "La Societe Future," pp. 61-70. 
 
 The necessity of expropriation by revolution is urged by Krapot- 
 kin, "La ConquSte du Pain," pp. 21-26; see also the Preface by Reclus. 
 (pp. 21 seq.): "But this problem will never be solved by way of 
 legislation; that is an idle dream. There has been an evolution 
 brought about in the mental attitude in the course of the last half 
 century but it has been checked by the minority, that is, by the 
 dominant classes; and having no outward embodiment, it must 
 remove obstacles by force and establish itself by the violence of 
 revolution." Godwin (see above, § 30) is not an advocate of force; 
 and Tucker (see below) rejects the use of force for reasons of political 
 policy. 
 
 Even women must take part in the revolution. "For the woman 
 of the proletariat, legal marriage affords but illusory guaranties 
 against the man who wishes to desert her and her children. The 
 woman of the proletariat, like the laborer, can become free only by 
 social revolution." Grave, "La Society Future," pp. 338 seq. 
 
294 ECONOMIC REALISM [Ch. VI 
 
 conspicuous figures in government and society, wish 
 to force a change of social condition in accord with the 
 anarchistic plans. The former advocate war, but the 
 latter practise a guerilla warfare; the one present a 
 program, the other deeds.' 
 
 Of considerable importance in the anarchistic move- 
 ment, and particularly for the advocates of action, is 
 the principle of agitation. Among the anarchistic agita- 
 tors Bakunin^ (1814-1876) is most promiment. 
 
 Many anarchists are moved by an emotional philan- 
 thropy, a deep sympathy with the distress and poverty 
 under which large numbers suffer. Such conditions as 
 obtain in the poorest London slums, with their squalor 
 and degradation, are painted in lurid colors, and are 
 regarded as standard, with the direct implication that 
 society and government are responsible* for them. Like 
 the socialists, the anarchists would like to banish pov- 
 erty and misery from the world^ and yet guarantee 
 
 ^ The majority of theorists seem, however, favorably disposed 
 towards the terrorists. Grave, "La Societe Future," pp. 393 seq.: 
 "Force appeals to force, terror brings forth terror. It is not for us 
 to judge those who agitate, many of whom pay by their life and 
 their liberty for their errors, if they are in the wrong." See also 
 Mackay, "Die Anarchisten," pp. 185-215, on the trial of the 
 anarchists in Chicago. 
 
 ^On Bakunin set Zenker, "Die Anarchisten," pp. 100-110. Eltz- 
 bacher, "Die Anarchisten," pp. 102-124. Liidwig Stein, "Die soziale 
 Frage im Lichte der Philosophic," pp. 392 seq. W. Ed. Biermann, 
 "Staat und Wirthschaft," I, p. 102. 
 
 ' Mackay, "Die Anarchisten," pp. 143-184, 245-262. 
 
 * This idea constantly recurs in the projects of communistic 
 writers, particularly in Crave, "La Societe Future." See the above 
 citations from this work. See also Krapotkin, "La Conquite du 
 Pain," in general, and the Preface by Reclus, pp. vi seq.: "The 
 title of the work, 'La ConquSte du Pain,' should be understood in the 
 largest sense; for man does not live by bread alone. We must be 
 able to assure to all a complete satisfaction of their needs and enjoy- 
 
§ 39] ANARCHISM 295 
 
 freedom of conduct, a good income, and a maximum of 
 happiness. If the anarchistic program were to be real- 
 ized, the result would be a retrogression from the present 
 high stage of culture to a much lower one. The influences 
 of culture would be paralyzed and deprived of their 
 sphere of operation. It would result in the worst form 
 of demagogic rule, an appeal to the ineradicable vanity 
 of men, in a futile rivalry for popular favor. No less 
 deceptive are the measures that anarchy advocates. 
 The baseness of a terrorism that, to establish its con- 
 ception of humanity and the recognition of individuality, 
 proceeds forcibly to destroy innocent individuals, hardly 
 needs proof. Such vagaries of a morbid imagination 
 correct themselves. The plea for a general international 
 revolution amounts to massacre ■ — and that not, as at 
 present, restricted to a few conspicuous individuals. 
 
 It is a vain attempt of Reclus to divest the idea of 
 revolution from its inherent terrors, and its accompany- 
 ing horrors, by explaining that revolution is but an evo- 
 lution on a large scale,' and differs from the latter only 
 in the degree of evolutionary change. But the quanti- 
 tative difference, here as elsewhere, conditions the 
 qualitative one.^ One might just as well say that the 
 crop-destroying hail or the destructive cloudburst is but 
 quantitatively different from a fruitful rain. Evolution 
 is the unfoldment of energy, — is life; revolution is the 
 destruction of energy, — is death. Finally, with reference 
 
 ments." On p. xiv is considered the reawakening of "a natural 
 friendliness among men," "when there will be neither rich nor poor." 
 See also pp. 15-29: "L'aisance pour tous"; as well as the ideals 
 of the future considered from p. 65 to the end of the volume. 
 
 ' "L'evolution, la revolution et I'ideal anarchique," pp. 3-5, 
 14-19. Also Grave, "La Societe Future," inclines to minimize the 
 importance of revolution, and notes that "social revolution pro- 
 ceeds by evolution." 
 
 2 Berolzheimer, "System," Vol. I, pp. 216-221. 
 
296 ECONOMIC REALISM [Ch. VI 
 
 to its philosophical appreciation, it is not the conse- 
 quence to which anarchism leads that is- decisive, but 
 the faultiness of its theoretical foundation. Anarchism 
 proceeds upon a false conception of freedom. Freedom 
 has been the purpose and goal of civilization for the 
 last two thousand years. But the freedom thus sought, 
 and at present substantially attained, is the emancipa- 
 tion from every type of slavery and oppression on the 
 part of the State and the law. And the means whereby 
 freedom has been secured is the legal absorption of the 
 ethical principle, the recognition of the conception of 
 humanity, the moralization of the law. 
 
 As against this result, the anarchists propose an abso- 
 lute conception of freedom under which everyone shall 
 be subject only to his own will; and in consistent pur- 
 suit of this idea, they naturally reject every form 
 of coercion, of authority, of subjection.' As, however, 
 the radical and absolute execution of this idea would 
 lead the undisciplined will to reject all culture, and to 
 the deterioration of humanity, — for anarchism, if 
 consistent, would likewise abolish education, — the 
 anarchist leaders, with the exception of Stimer, take 
 refuge in some form of association which they term 
 society, but which in reality would be tantamount to 
 the dominance of the people,— a society that rejects 
 all authority of the State and through the State, and 
 replaces it by mob rule.^ The anarchists take their 
 
 » "Proudhon, "Qu'est-ce que la Propriete?" I, p. 244: "The land- 
 holder, the thief, the hero, the sovereign — for these all mean the 
 same thing — imposes his will as law, and suffers no contradiction 
 or check." (The italics are mine.) 
 
 ' Ludwig Stein gives a pertinent refutation of anarchism in his essay 
 "De L'autorite" (see above), wherein he shows that governmental 
 control is an absolute necessity for bringing people to a state of 
 civilization, and indeed represents the chief condition of culture. 
 Thus on p. 7: "Authority is the indispensable school of the human 
 
§39] ANARCHISM 297 
 
 position upon the principle of pure might: Might is 
 right.^ If this holds, then the present wielders of au- 
 thority might consistently resolve upon the forcible 
 suppression of anarchistic agitation and expression, and 
 their complete annihilation and destruction, 
 
 5: Tucker and Tolstoi; Moderate Anarchism. 
 Tucker 2 turns anarchism away from the position 
 of self-assertion and utilitarianism. Nominally the law 
 is to remain, but it is to be made so plastic that the courts, 
 somewhat after the manner of the Roman praetor, will 
 decide upon the applicability or inappropriateness of 
 the law in concrete cases, according to the principle of 
 justice. The anarchistic order of society is to be 
 brought about by refusal of compliance, by passive resis- 
 tance to the governmental laws on the part of those 
 convinced of the truth of the new doctrine. Tucker 
 does not reject terrorism in principle, but disavows it 
 through considerations of prudence. 
 
 The Russian Count, Leo Tolstoi (1828-1910), by 
 
 race." (p. 8): "The forms under which authority is exercised 
 among a people become refined and perfected in direct ratio to 
 their progress in civilization." (p. 14): "On the other hand we 
 are forced to conclude that races that persist in their primitive 
 anarchy are incapable of civilization, (p. 17): "The most solid 
 reason for the necessity of authority is the evidence supplied by 
 itself." (p. 18): "Authorities may change but authority persists," 
 pp. 21, 23. 
 
 1 Reclus, "L 'evolution," etc., p. 206, puts the sentiment, "Let 
 force rule," in the mouths of the opponents of anarchy, the defenders 
 of the present regime. Similarly Gra»e, "La Societe Future," p. 42: 
 "You yourselves have said that victory belongs to the strong." 
 See also pp. 25-42. Mackay, "Die Anarchisten," p. 267: "It was 
 our purpose to show that the State was a privileged power and that 
 force maintained it, that it was the State that converted the harmony 
 of nature into the disharmony of coercion." 
 
 2 Tucker, "Instead of a Book," pp. 25, 52, 60, 104, 158, 167, 312, 
 413, 427, 429. 
 
298 ECONOMIC REALISM [Ch. VI 
 
 the trend of his teachings belongs to the anarchists, 
 but judged by the theoretical basis of his views he must 
 be classed as a social moralist with a religious turn. 
 His intense ethical and social sympathy and his romantic 
 impressionism led him to take a stand against the State. 
 He does not advocate the use of violence, but of pas- 
 sive resistance towards civic duties. In view of his later 
 writings he has frequently been compared to Rousseau. 
 The comparison is pertinent in so far as both advocate 
 a return to nature; but while Rousseau as a rationalist 
 presents the state of nature as desirable, Tolstoi accepts 
 the primitive Christian religious attitude, the goal of 
 which is the establishment of universal love. But Tol- 
 stoi, like Rousseau, is saturated with the extreme 
 culture of his social environment. As a whole, the 
 Russian people are not troubled by an excess of 
 civilization; and like the rest of mankind they can 
 well afford to strive for further culture. However 
 highly one may estimate Tolstoi as an author, Tolstoi 
 as a social philosopher may be dismissed without 
 further notice. 
 
 n § 40. Further Types of Socialism. 1 : Menger. Of 
 the writings of Anton Menger (b. 1841) there are to be 
 considered, "Das Recht auf den voUen Arbeitsertrag,"^ 
 "Das Burgerliche Recht und die besitzlosen Klassen," * 
 and "Die neue Staatslehre." ' In the first Menger pro- 
 poses "to consider the fundamental ideas of socialism 
 
 ' "Das Recht auf den voUen Arbeitsertrag in geschichtlicher 
 Darstellung," Stuttgart 1886, third edition, 1904. (I cite from the 
 first edition.) 
 
 ^ Third edition, Tubingen 1904. I cite from the original which 
 appeared in Braun's "Archiv fur Soziale Gesetzgebung und Statis- 
 tik," Vol. II, Tiibingen 1889, pp. 1-73, 419-482; Vol. Ill, Tubingen 
 1890, pp. 57-74. 
 
 ^ First edition, 1902; second edition, Jena 1904. 
 
§40] SOCIALISM: FURTHER TYPES 299 
 
 from the legal side" ; ^ he presents the legal phjises of 
 socialistic doctrines historically .^ His concluding con- 
 sideration proposes the question: "What is the prac- 
 tical significance, for present-day movements, of the two 
 new legal conceptions which, in the course of a century, 
 have gradually been formed in the consciousness of the 
 great laboring classes — 'that of the right to the entire 
 proceeds of labor, and the right of existence? It is 
 Menger's view that our social development is gradually 
 approaching the realization of these demanjds. The 
 communal duty of providing for the poor is an example, 
 though a sad one, of a substitute for a right to existence. 
 Compulsory education guarantees to an extent the in- 
 tellectual training of minors. In regard to the right of 
 existence, present legislation simply checks the worst 
 forms of exploitation of the laborer; and these, in the 
 main, only as concerns the industrial laborer. Accord- 
 ing to Menger the realization of the right to work, to 
 which the prevalent political attitude is favorably dis- 
 posed, might appropriately be a first step in the new 
 economic order — a transition to the socialistic form of 
 the State. Menger sets forth two legislative ends as 
 particularly desirable and attainable. Legislation should 
 take care not to establish any further forms of income 
 without labor, and not to extend existing forms of such 
 income. Yet more important is it that legislation should 
 not forcibly transfer the ground rent or interest of capi- 
 tal from one class of. the people to another. As an ex- 
 ample of such measures may be cited the redemption 
 of agricultural mortgages at the cost of the State; this 
 would constitute a fundamental breach of the law in 
 that the ground rent which would accrue in the cities 
 would be taken away from them, and given by the State 
 to the landholders. 
 
 • "Das Recht auf den vollen Arbeitsertrag," p. Ill 
 2 Pp. 12-162, 163 
 
300 ECONOMIC REALISM [Ch. VI 
 
 In the second work, "Das Biirgerliche Recht und die 
 besitzlosen Klassen," Menger criticizes, from the very 
 interesting point of view of those without means, the 
 outline of the civil law of the German Empire. This 
 work was merely the forerunnerof "DieneueStaatslehre;" 
 for Menger was well aware that "the purpose and task 
 of the author of the compendium was to prepare it upon 
 the basis of private law," for which reason "every profit- 
 able criticism must consider the work with reference 
 to the actual state of affairs."^ He restricts himself to 
 proposals for improvement within the province of pri- 
 vate law. He sets forth that the compendium, which 
 he criticized in his former work, follows, as do all com- 
 pendiums fqr the use of the laity, the principle of pri- 
 vate ownership, of freedom of contract, and of the right 
 of inheritance. Yet current individualistic forms of 
 treatment of property rights may also be considered 
 socialistically. According to the socialistic views these 
 three principles are converted into their opposites. The 
 legal system of private right is psychologically based 
 upon self-seeking; the socialistic, upon the communal 
 impulses. Menger then undertakes in detail to socialize 
 the conditions of property rights of the "Compendium," 
 and to transform the content of legislation in the in- 
 terests of the economically dependent classes. 
 
 In "Die Neue Staatslehre" Menger bases his socialistic 
 teachings upon the legal foundation of a "popular labor 
 state," "Arbeitsstaat." He sets up the socialistic 
 legal order as against the modern "Kulturstaat," which 
 everywhere bears the impress of the individualistic 
 State. "The individualistic form of government may 
 be termed the ruling and commanding State, or the 
 State of authority, and the socialistic order of govern- 
 ment may be termed the State of the working classes, 
 » Braun's "Archiv," Vol. II, p. 2. 
 
§40] SOCIALISM: FURTHER TYPES 301 
 
 or the popular Labor-State." Even in the latter State 
 a certain amount of governmental force would be neces- 
 sary, but a much smaller amount than obtains in the 
 present State. "When the welfare of all shall actually 
 become the purpose of our social institutions, and when 
 the masses of the people through these institutions shall 
 be educated to a higher degree of insight and of personal 
 sacrifice, then it will be possible to leave far more to 
 their initiative than we slaves of convention deem pos- 
 sible." The individualistic State, "the hereditary form 
 of government, has developed with substantial uni- 
 formity in all countries on the basis of the military and 
 political authority." To it Menger opposes the "social- 
 istic or popular 'Labor-State'; and this, reduced to its 
 most general formula, consists in making the individual 
 interests of the masses of the people the chief concern 
 of the government." He regards as of primary import 
 the economic side of the people's interest, "the mainte- 
 nance and fostering of individual life, the preservation of 
 the species, and the security of life and health"; while 
 such matters as political rights, participation in the 
 government of the State, are assigned a secondary place 
 as "means to an end." ■• For the masses the prime con- 
 sideration is the question of bread. Menger does not 
 allow that the State exists for itself, and considers only 
 the ends for which the authorities work.^ Right is 
 might; legal questions are questions of might.' He 
 
 1 "Neue Staatslehre," pp. 17, 15, 20 seq., 75-154 (93-198 of the 
 first edition). 
 
 * "Neue Staatslehre," p. 157: "States as such have no purpose. 
 It is only their rulers who have." 
 
 ' "Neue Staatslehre," p. 164: "The legal order is the prevalent 
 conception of the permanently recognized authorities in the land." 
 "The sovereignty is the highest actual power in the State." Who- 
 ever is sovereign in the State takes his stand according to historical 
 experience. 
 
302 ECONOMIC REALISM [Ch. VI 
 
 distinguishes four types of authority: first, the supreme 
 authority in the State, the monarch and his family, or 
 the administration in Republican States; they seek 
 power and pomp; second, the nobility and the higher 
 clergy, with their striving for preferment; third, the 
 citizen and the farmer class, who are anxious to possess 
 material goods and intellectual opportunity; fourth, 
 the unpropertied classes of the people, who, in general, 
 form the working classes. "Their interests coincide 
 with the fundamental objects of life, and are thus directed 
 to personal security, to the maintenance of a life worthy 
 of a human being and to a regulated family life. Their 
 energies go to secure the conditions of existence. "'^ 
 
 Menger's views in regard to government and law are 
 the most sensible that have been advanced from the 
 socialistic standpoint. He divests socialism of its dis- 
 guise — a service not gratefully accepted by the Marx- 
 ians. He shows socialism in its true nature to be the 
 emphatic, and deliberate, and likewise the partisan ad- 
 vocacy, of the interests of the working classes. Such 
 advocacy looks upon the material and economic interests 
 of labor as the center of governmental concern, and 
 desires to make law and governmental institutions ser- 
 viceable exclusively to the economic interests of the 
 fourth estate.^ 
 
 ' "Neue Staatslehre," pp. 157-160. 
 
 ^ Gumplowicz pertinently refutes Menger's conclusions on the 
 basis of the latter's acknowledged premises. He says ("Die soziolo- 
 gische Staatsidee," Graz 1892, p. 116): "The State is either 'the 
 aggregate of permanently recognized authorities,' or it is not; if 
 it be so, which even Menger recognizes, the inequality is inherent, 
 for there can be relations of authority only where inequality pre- 
 vails. Where perfect equality exists, there can be no relations of 
 authority." The comment of Gumplowicz upon the economic 
 value of the laboring classes is also pertinent. (Jiid. p. 46): "The 
 laborers can at best organize a strike and thereby paralyze industry. 
 
§40] SOCIALISM: FURTHER TYPES 303 
 
 2: LoRiA. LoRiA^ (b. 1857) approaches socialism and 
 communism with a radical distrust of capital. Some- 
 what reminiscent of Rousseau, he makes the assumption 
 of a condition of government in which all are free; it 
 is cupidity that brings a proprietary class into existence. 
 This supposition^ is not put forward as an historical 
 fact, but serves to express his view that morality, law, 
 and political institutions grow upon an economic basis 
 and are determined by economic relations. By virtue 
 of the dynamic force of economic laws, the various forms 
 of income lead men into class conflicts. In summarizing 
 his position he advocates the replacement of the capi- 
 talistic order by an "equalizing and associative econom- 
 ics." The advantages of this form of society as against 
 the capitalistically organized State are set forth in the fol- 
 lowing words: "In an equalizing and associative type 
 of economy, the social organism, being in perfect equilib- 
 rium by virtue of its nature, will have no need of finding 
 the guaranty of its permanence in perverting the expres- 
 sions of human nature, which, if persisted in, are likely 
 to repress the legitimate and moral development of men. 
 In the economic stage morality will be the natural and 
 spontaneous expression of the enlightened self-interest 
 of man; law will be reduced to a guaranty to the pro- 
 
 but they cannot establish industries. They and their labors, though 
 forming an integral part of the State, form but a part." 
 
 1 "Les Bases ficonomiques de la Constitution Sociale," second 
 edition, translated from the Italian by A. Bouchard ("Bibliotheque 
 Historique et Politique"), Paris 1893. The first edition appeared 
 in Italian in Turin 1886. The French edition was translated into 
 German by Karl Griinberg, with the title, "Die wirthschaftlichen 
 Grundlagen der herrschenden Gesellschaftsordnung," Freiburg i/B 
 and Leipzig 1895. There is also an English translation. 
 
 ^Barth, "Die Philosophie der Geschichte als Soziologie," Leip- 
 zig 1897, p. 336: "It is indeed peculiar that Loria presents not an 
 historical but a constructive development of economics." 
 
304 ECONOMIC REALISM (Ch. VI 
 
 ducer of the proceeds of his labor, and there will be no 
 need to have recourse to severe penalties to enforce 
 its decrees. Finally, the political constitution will be 
 the expression of the universal consensus and the aggre- 
 gate of the institutions necessary to secure the collec- 
 tive welfare. The capitalistic spirit of these relations 
 will give way to a social or humane attitude. Morality, 
 law, and politics will still remain the associative institu- 
 tions of society, but instead of being put to the service 
 of one class and of their economic interests, these insti- 
 tutions will have for their end the advantages of all men 
 and the realization of their highest destiny."' 
 
 3: SoMBART. Werner SoM BART ^ (b. 1863) favors the 
 materialistic conception of history. "Human history is 
 either a struggle for food or a struggle for the feeding 
 places of the earth." Every social class is the result of 
 a particular type of production ; the proletariat is the 
 result of capitalistic production. "The history of the 
 origin of the proletariat is accordingly the history of 
 capitalism. Capital cannot exist or develop without pro- 
 ducing a proletariat. ' ' The modem social movement is 
 an inevitable result. The important point is to plan the 
 social conflict as a legal struggle, and to conduct it with 
 propriety, and without malice.' In his chief work» 
 
 1 "Les Bases ficonomiques," pp. 9, 13-74, 77-122, 423, etc., pp. 
 125-392; pp. 423^30; pp. 424, 425. 
 
 ^ His chief work is "Der moderne Kapitalismus," 2 vols., Leip- 
 zig 1902. Vol. I, "Die Genesis des Kapitalismus," Vol. II, "Die 
 Theorie der Kapitalistischen Entwickelung." Otherworks, "Sozial- 
 ismus und soziale Bewegung im 19. Jahrhundert," Jena 1896. 
 I cite from the fourth edition (the 18th to 23d thousand), Jena 1901. 
 "Die Volkswirthschaft im neunzehnten Jahrhundert" (Schlenther, 
 "Das neunzehnte Jahrhundert in Deutschlands Entwickelung," 
 Vol. VII, Berlin 1903.) 
 
 ' "Sozialismus und soziale Bewegung im 19. Jahrhundert," fourth 
 edition, pp. 2, 1, 4, 96-100. 
 
§40] SOCIALISM: FURTHER TYPES 305 
 
 "Der moderne Kapitalismus," Sombart considers the 
 alternative between a causal and a teleological pro- 
 cedure ; he decides for the former. In the social sciences 
 the consideration of historical development must fur- 
 nish the clue to the immediate future development. 
 
 Since the decay of ancient culture there have been 
 three great economic periods, — the peasant feudal order, 
 the artisan order or industrial development, and the 
 capitalistic order, characterized by the dominance of 
 mercantile life. The first indicationsof the fourth period, 
 that of a socialistic form of association, are now evi- 
 dent. The earlier portions of the work trace the course 
 of development up to the point at which the capitalistic 
 economics prevailed over previous systems and became 
 the dominant influence.' These volumes set forth the 
 organization of industry in the artisan group ;^ and at 
 greater length, the rise of capitalistic production' and 
 its further development. In considering the "modern 
 reconstruction of economic life," Sombart observes that 
 this renaissance is characterized by three factors: mod- 
 ern ^aw, modern technology, and modern standards of 
 living. Modern law is described as industrial freedom, 
 or as the system of the individualistic legal order of free 
 competition. The guiding principle of the new legal 
 order is freedom of acquisition, or industrial freedom 
 in the narrower sense; freedom of contractual asso- 
 ciation; of property; the transfer of ownership, of sale, 
 and of the debtor relation ; freedom of willing and general 
 protection of legitimately acquired private rights. He 
 believes that the importance of economic laws for the 
 
 1 "Der moderne Kapitalismus," I, pp. XIII seq., XVI seq., 
 XXXI seq. 
 
 * Book I: "Die Wirthschaft als Handwerk," pp. 75-192. 
 
 'Book II: "Die Genesis des modernen Kapitalismus," pp. 195 
 seq. 
 
306 ECONOMIC REALISM [Ch. VI 
 
 development of the several economic forms is overrated. 
 The new technical methods were established through the 
 application of machinery. Machinery increased the 
 human output above the maximum attainable by any in- 
 dividual effort, and therein, and not in the saving of 
 human labor, lay its essential advantage. The new 
 methods appeared further in the application of science to 
 technology through the replacement of empirical skill by 
 rational or scientific procedure. The new standards of 
 economic life appear in the increased cost of living, and in 
 the increasing dominance of the factor of material produc- 
 tions over other interests. Towards the close of the work 
 Sombart describes the rise of modern agriculture; the 
 origin and character of the modern city; modern needs, 
 and their extension, concentration and refinement; the 
 consolidation and uniformity of expenditure in the cities ; 
 the wholesale expression of conformity, as in the de- 
 mands of fashion; the transformation of the commercial 
 market. He continues with the "theory of industrial 
 competition." In the victory of the capitalistic indus- 
 trial order over the artisan organization, the point at 
 issue was not the opposition between business on a large 
 or a small scale, but between the organization of manual 
 labor and of capital. The latter proved the stronger; 
 first in the competition for the quality of the products, 
 and again in the competition of prices. The several fac- 
 tors in the competition for efficiency of production were, 
 first, the attractiveness and appeal of the goods. The 
 capitalistic enterprise was better able to meet the grow- 
 ing demand for wholesale production and prompt deliv- 
 ery. It could manufacture upon demand, and supply 
 a fresh stock, always marketable, up-to-date, and attrac- 
 tive. Second, the quality of the product. Capitalistic 
 enterprise, as opposed to hand labor, produced better, 
 more durable, stylish, artistic, and uniform goods. It 
 
§40] SOCIALISM: FURTHER TYPES 307 
 
 was the development of taste that deprived manual 
 labor of its existence; for though the artist continues 
 to serve his art, yet the form in which his service 
 reaches the public is controlled by capitalistic enter- 
 prise. In the conflict of prices, likewise, capitalistic 
 enterprise got the better of manual labor. Capitalistic 
 superiority was able to assert itself despite sporadic 
 checks and the hopes of the trades-unions.^ 
 
 >"Der moderne Kapitalismus," Vol. II, pp. 25-89, 91-420, 421 
 seq., 430, 432^62, 463-539, 540 seq., 544-560. 
 
308 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 CHAPTER VII 
 
 THE SOCIOLOGICAL RECONSTRUCTION OF 
 LEGAL PHILOSOPHY 
 
 THE DEVELOPMENT OF SOCIOLOGY: (1) COMTE AND THE BEGIN- 
 NINGS OF SOCIOLOGY; (2) POSITIVISM AND SOCIOLOGY; (3) THE 
 SOCIOLOGY OF SPENCER. — SOCIOLOGICAL AND SOCIAL-ETHICAL 
 EXTREMISTS: (1) THE CONCEPTION OF "SOCIETY"; (2) SOCIAL 
 ETHICS; (3) SOCIOLOGICAL IDEALS. — SOCIAL UTILITARIANISM: 
 
 (1) SHAFTESBURY; (2) IHERING. — THE SOCIOLOGICAL SCHOOL: (1) 
 ITS DISTINCTIVE POSITION; (2) ITS PRECURSORS; (3) GUMPLOWICZ; 
 (4) RATZENHOFER' (5) RECENT REPRESENTATIVES — TONNIES, 
 KLOPPEL, BERGEMANN; (6) CRITICAL SUMMARY OF THE SOCIOLOG- 
 ICAL POSITION; (7) APPLICATIONS OF THE SOCIOLOGICAL POSITION! 
 (a) CORPORATIONS; (b) PENOLOGY. — REALISTIC AND HISTORICAL 
 TRENDS IN POLITICAL ECONOMY AND SOCIOLOGY. — THE THEORY 
 OF NORMS. — ETHNOLOGICAL JURISPRUDENCE. —THE REINSTATE- 
 MENT OF KANT AND HEGEL: V. HARTMANN: (1) NEO-KANTIANISM; 
 
 (2) NEO-HEGELIANISM; (3) THE PHILOSOPHY OF V. HARTMANN.— 
 PSYCHOLOGICAL ASPECTS OF LAW AND ECONOMICS: (1) THE 
 PSYCHOLOGICAL BASIS; (2) CRIMINAL PSYCHOLOGY. — RECENT 
 SURVEYS OF FUNDAMENTAL PROBLEMS: (1) MERKEL AND 
 HIS FOLLOWERS; (2) SCHMIDT; (3) PAULSEN; (4) BAUMANN; (5) 
 SCHUPPE.— THE INFLUENCE OF THE PRINCIPLES OFEVOLUTION: (1) 
 SOCIAL ARISTOCRACY — NIETZSCHE; (2) EVOLUTIONARY MONISM — 
 HAECKEL; (3) EVOLUTION AND SOCIALISM; CLASS AND STATE. 
 
 § 41. The Development of Sociology. 1 Comte and 
 THE Beginnings of Sociology. Auguste Comte ^ (1798- 
 
 ' Comte's chief work is "Cours de Pliilosophie Positive," 6 vols., 
 1830-1842. Vols. IV, V, "Physique Sociale"; Vol VI contains the 
 
§ 41] DEVELOPMENT OF SOCIOLOGY 309 
 
 1857) is the founder of a philosophy of experience 
 which he calls positivism. It holds that knowledge is 
 limited to the phenomenal world, to the relations of 
 phenomena to one another, which are to be studied from 
 the point of view of natural science or natural philosophy. 
 From the same point of view it attempts to interpret 
 the nature of government and to derive the phenomena 
 of political life. But government and law are not amen- 
 able to this naturalistic treatment; accordingly Comte, 
 accepting the term of Saint-Simon, makes the object 
 of his study not the institutions of government and law, 
 but society. 
 
 He distinguishes three stages of human development 
 characterized by different philosophies and methods. 
 The theological or "mythical" stage is the oldest; under 
 its dominance every object is personified and made a 
 fetish. It is succeeded by the metaphysical or abstract 
 stage. The gods — or in the monotheistic system, 
 God — are replaced by the concepts of the thinkers 
 whose faith invests them with reality. The third and 
 final stage is reached in the conception of a positive or 
 scientific philosophy.* Its point of departure is the 
 conviction that the ultinlate nature of things is unknow- 
 able. Man can merely study phenomena and their 
 mutual relations inductively ; all knowledge is empirical 
 and is based upon inductive reasoning ; all scientific con- 
 clusions proceed from inductions; the law of causality, in 
 the last analysis, is the result of an induction. Such 
 approximate knowledge is adequate for human needs. 
 Positive science is content to determine the laws of 
 
 complement of the social philosophy. I cite from the third edition, 
 Paris 1869. 
 
 ^ "Cours," Vol. I, p. 8. Comte describes the three stages as "the 
 theological or mythical, the metaphysical or abstract, the scientific 
 or positive stage." 
 
310 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 nature; it renounces the hope of an ultimate explana- 
 tion, and stops with an understanding of the opera- 
 tions of laws of nature. In his philosophy Comte 
 subjects the several sciences to a "positive" interpre- 
 tation. Proceeding from the simpler fundamental 
 sciences to the more complex, he considers Mathema- 
 tics, Astronomy, Physics, Chemistry, Biology; the 
 latter including the three main groups of the phe- 
 nomena of organic life, of animal life, and of intel- 
 lectual and moral life dependent upon the nervous 
 system. The last of these groups should presumably 
 include law and government; but in the positive phil- 
 osophy these become the great independent discipline 
 of sociology, or "physique sociale"; for, according to 
 Comte, the nature of a science does not determine its 
 method, but the method determines the science. It 
 is because government and law are not amenable to the 
 methods of natural science that the State is replaced 
 by society, and law and economics by social life. Thus 
 Comte became the founder of the new social science, 
 calling it first Social Physics — "Physique Sociale," — 
 and later Sociology — "Sociologie."^ In time sociology 
 encroached upon, and more or less absorbed, the phil- 
 osophy of government and law. 
 
 Following the dissertation on method and the con- 
 sideration of the relation of social physics to the other 
 positive sciences, Comte treats of social statics and 
 dynamics — the method again determining the nature of 
 the conclusions. In his biology, environment is accorded 
 the largest influence.^ The nature and development 
 
 ' "Cours," Vol. IV, p. 185. Comte uses the term "sociology" for 
 his own original phrase, "physique sociale." 
 
 = "Cours," Vol. Ill (Biology), p. 209, note 1: "It will be super- 
 fluous, I hope, to justify the frequent use which I shall hence- 
 forth make in biology of the term 'environment' to designate briefly 
 
§41] DEVELOPMENT OF SOCIOLOGY 311 
 
 of living creatures are determined by environment. 
 Carrying this principle into sociology, the individual 
 is made the resultant of his social conditions. Social 
 statics treats of the nature and relations of social phe- 
 nomena, which it presents as crystallized. Its funda- 
 mental law is that of organic dependence. The primary 
 social unit is the family. "^ Social dynamics treats of the 
 laws of genesis and normal development of social phe- 
 nomena in their process of evolution. Comte applies 
 the three stages — theological, metaphysical, and posi- 
 tive — to tho phenomena of social life. Society is an 
 organism which shows its stage of progress by the degree 
 to which its higher activities prevail above the lower. 
 If the entire social life were completely determined by 
 natural law, and man were absolutely conditioned by 
 his environment, then fatalism is inevitable. This is 
 not Comte's conclusion. He seeks a mode of escape for 
 social politics from the absolute determinism of nature. 
 He holds that the development and perfection of the 
 human species is the goal of all endeavor; and by this 
 conception gives positivism a practical value. 
 
 No work of the nineteenth century had so ominous, 
 not to say fatal, an influence upon the course of the 
 political sciences as Comte's "Cours de Philosophie Posi- 
 tive," an influence at once socialistic and sociological. 
 So far as concerns socialism it was comparatively easy 
 to separate the chaff from the wheat and hold the scien- 
 tific interests intact. But the science of government, 
 including the philosophy of law, was ousted by sociology 
 and is still suffering from the confusion and vagueness 
 
 and summarily, in particular not alone the medium in which the 
 organism is immersed, but in general the sum total of external 
 circumstances of whatever character necessary to the existence of 
 each special organism." 
 > "Cours," Vol. IV, pp. 398 seq. 
 
312 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 of thought thus induced. For "society" became an 
 insistent concept, absorbing law, government, and 
 economics, or relegating them to wholly subordinate 
 positions. "Social welfare" was made the goal of devel- 
 opment, though the term was not clearly and critically 
 defined. It was left undetermined in what welfare con- 
 sists, or what group of persons was referred to by the 
 unassimilated aggregate, so diversely concerned in public 
 welfare. Indeed from the nebulous background of sociologi- 
 cal principles there emerges little more than an uncritical 
 tendency towards democratic or demagogic hedonism. 
 
 Positivism, like the philosophy of Kant, accepts the 
 impossibility of knowing the ultimate nature of things. 
 It confines itself to the world of phenomena, is limited 
 by experience, and proceeds by the method of natural 
 science. Whatever transcends experience is rejected. 
 Comte's positive philosophy is hardly a philosophy 
 at all; and his sociology is not a philosophy of 
 law, government, and society, but a collection of facts 
 and descriptions of logical relations. He deals with 
 mere empirical consequences, such as that from a fol- 
 lows h, and if there is no a, there is no h; and social 
 philosophy as well as social ethics becomes the embodi- 
 ment of a general mechanical fatalism. Events follow 
 from a natural necessity. There is no place for ethical 
 norms and moral obligations. The severe logicality of 
 positivism may be adequate to the scientific breeding of 
 dogs, but hardly to the education of human beings. 
 Positivism leaves the individual without rules of con- 
 duct, and society without guides for its orderly devel- 
 opment. Even Gumplowicz, though a supporter of 
 sociology, admits that it leads to a fatalistic resignation 
 alike in practice and in theory. Sociology does not solve, 
 or try to solve, the fundamental problems of the phil- 
 osophy of law and government; it merely evades them. 
 
§41] DEVELOPMENT OF SOCIOLOGY 313 
 
 This radical defect is not due to the expositors of sociol- 
 ogy, but is inherent in the sociological attitude. When 
 sociology attempts to be more than a purely descrip- 
 tive discipline dealing with its subject from the point 
 of view of ethnology and race-psychology, and attempts 
 to be a social philosophy serving as a philosophical 
 basis for law and government, it fails by reason of an 
 inappropriate method. Sociology as a social philosophy 
 approaches the solution of the problems of law and gov- 
 ernment by the method of the natural sciences. Mod- 
 ern criticism would not tolerate an attempt to present 
 natural philosophy from the legal point of view, would 
 hardly approve the interpretation of the laws of nature 
 from the point of view of the laws of justice. The con- 
 verse procedure is not more commendable. Sociology 
 proceeds from the concept of socialization in its most 
 comprehensive aspect. Every form of associated group 
 is considered — the State and its economic institutions 
 form one of these groups, as a species of the genus society. 
 Here we touch upon the basal misconception or evasion 
 of sociology. For whether or not the State is more than 
 a form of socialization is a fundamental question of the 
 science of law and government. Positivism assumes 
 it to be so; the difference between it and other forms 
 of socialization lies merely in its distinctive position, 
 its power of legal coercion. Consequently right is simply 
 might. For the positivist this is an inevitable conclu- 
 sion because it is an implicit presupposition; in the 
 Kantian terminology, it is the positivist's analytic judg- 
 ment. That is all there is to the positivist's legal 
 philosophy: simply that right is might. Natural law 
 prevails in the social sphere. Science may study laws, 
 but men must yield to them. 
 
 2: Positivism and Sociology. The objection to a 
 sociological philosophy is not limited to the practical 
 
314 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 and personal one of its issue in fatalism ; its fundamental 
 position is misleading. Comte regarded himself as the 
 first contributor to true science; but in reality the 
 philosophical bases of positivism are quite uncritical. 
 The most tangible, and presumably most certain fact 
 of our environment, as revealed to our perceptions, is 
 the nature of the world of objects, which Descartes 
 proposed as the starting point of philosophical inquiry. 
 For him the essence of matter was extension. This 
 solution of the problem seemed too superficial to Leib- 
 nitz, who regarded the essence of matter as force or 
 energy ; in Spinoza's pantheism the problem lost its per- 
 tinence; Kant relied upon the efficiency of pure reason, 
 space and time being considered a priori concepts, 
 and space as antecedent to human experience and as 
 a medium for the location of objects. Kant did not 
 inquire critically as to the nature of objects, but only 
 to what extent the conception of space belonged to 
 pure reason ; he concluded that the conception of space 
 preceded experience, but that spatial content was a 
 matter of experience. The question whether and how 
 far knowledge can transcend experience, positivism 
 relegates to the domain of faith, which deals with the 
 world that lies beyond the province of science. But 
 positivism is not thorough-going enough to examine 
 seriously the nature of this external world of things. 
 Since Leibnitz, no philosopher has given adequate atten- 
 tion to this primary and urgent problem of metaphysics 
 and the theory of knowledge. The world of experience, 
 the world as apprehended by our senses, appears pri- 
 marily as composed of objects. Hence philosophy asks: 
 What is an object? And if we begin with number as 
 most certain and concrete, the question becomes: What 
 is unity, the unity of experience? In the first volume 
 of my work I presented a solution which may be inade- 
 
1 41] DEVELOPMENT OF SOCIOLOGY 315 
 
 quate, imperfect, perhaps even erroneous, but which is 
 a serious and critical attempt. Positivism, like most 
 other empirical systems of philosophy, passes lightly 
 over the fundamental questions* of the nature of the 
 elementary facts of experience. But in the light of 
 this problem, the inadequacy of the positivistic hypoth- 
 esis is evident; and with the proof of its failure, the 
 positivist social philosophy likewise crumbles, and its 
 sociology falls to the level of a descriptive science, as 
 little suited to replace a philosophy of law and govern- 
 ment as is anthropology or biology or any other of the 
 natural sciences dealing with man. 
 
 Positivism is uncritical, self-contradictory, and opposed 
 to the facts of history. It attempts to derive all knowl- 
 edge from experience, which it regards as the exclusive 
 source of human knowledge. Yet the material of Comte's 
 biology and sociology is not the world of experience as 
 it actually is, but our interpretation of it, growing out 
 of a false view of the law of causality. In Comte's biol- 
 ogy the most important principle is that environment 
 determines development. Every object is the result 
 of the forces and factors to whose influence it is sub- 
 jected; and this he applies to human associations. The 
 nature and development of the individual is determined 
 by the group to which he belongs. This view disregards 
 the most fundamental fact of history — • the emanci- 
 pation of man. History shows a constant process of 
 emancipation of man from the control of environment. 
 At first helpless in the presence of the world of objects, 
 man eventually conquers nature through the processes 
 of culture. As development proceeds, the dependence 
 upon natural endowment diminishes. Emotion replaces 
 instinct, and reason replaces emotion; the organism 
 acquires artificial capacities. As culture progresses, 
 differentiations increase in refinement, human individual- 
 
316 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 ity becomes more marked and more assertive, and the 
 influence of circumstances recedes. As illustrations of 
 natural forces, the falling stone, the reactions of plants 
 to stimuli, the response of animals to impulses and sit- 
 uations, and the rational behavior of man, are all on 
 a par. But such a statement disregards the fact that 
 in each step of this series the analogy weakens for the 
 reason that the initiative of the subject constantly 
 increases and the influence of the objective situation 
 diminishes. Human history shows the same process, 
 the constant growth and assertiveness of subjective 
 spontaneity. Positivism is a naturalistic corollary of 
 Spinoza's pantheism. In both systems the individuality 
 is lost and absorbed, — in Spinoza, in the divine ; in 
 Comte, in the natural world. 
 
 Comte and the sociological school did not discover, but 
 they adequately emphasized the fact that men ha\'e ever 
 been associated in groups, and the further fact that the 
 impulses towards the establishment of government and 
 law originated not in the isolated individual but in the 
 social group; and this forms their permanent contri- 
 bution. Comte is the last of the writers who found it 
 necessary to antagonize the view that the individual 
 forms the objective point of "natural law," and that 
 society is built upon an individualistic basis. The cen- 
 tral position of the social unit is established, and Comte's 
 share therein must be acknowledged. Beyond this but 
 little of Comte's system will be retained. In course of 
 time it will be recognized that the principle that social 
 welfare is the determining motive in the development 
 of government and law is but a revival of Wolff's posi- 
 tion, in which the paternalism of benevolent law re- 
 places the benevolent absolutism of the monarch, and 
 an undisguised hedonism is replaced by the doctrine 
 of social welfare. 
 
§41] DEVELOPMENT OF SOCIOLOGY 317 
 
 3: The Sociology of Spencer. In the nineteenth 
 century the theory of evolution was reconstructed 
 deductively, inductively, and by combination of the two 
 procedures, thus again indicating that method is second- 
 ary to the dominant intellectual trend. In his speculative 
 philosophy Hegel employed the deductive method, and 
 restated in modern phraseology the principle of the Her- 
 aclitean flux. Lamarck and Darwin studied the pro- 
 cesses of evolution inductively. I The combined method 
 forms the basis of the system of Herbert Spencer 
 (1820-1903). In the history of ideas an extreme move- 
 ment in one direction is apt to induce a reaction in the 
 other. The older philosophy was so intensely occupied 
 with "being" that it disregarded "becoming"; contem- 
 porary philosophy everywhere detected growth and 
 evolution, and fixed relations disappeared. This ex- 
 treme assertiveness of the idea of evolution, and of an 
 all-pervading evolutionary philosophy, has reacted dis- 
 advantageously upon the development of legal philos- 
 ophy. It is overlooked that evolution itself consists 
 of an infinite series of momentary points of arrest, and 
 that the study of evolution must be supplemented by 
 a consideration of the static moments embodied in 
 governmental and economic institutions. For individuals 
 realize themselves as static units, and their interests 
 claim the available benefits of the protective institutions 
 of government, of law, of ethics, and of civilization in 
 general. 
 
 The "sociology" of Herbert Spencer is under obliga- 
 tions to Comte, yet is the direct issue of evolutionary 
 principles.^ It reflects the common failing of sociolog- 
 
 1 For Spencer's principles of evolution see Berolzheimer, "System," 
 Vol. I, pp. 124-128, especially pp. 127 seq. Hensel, "Hauptprob- 
 leme der Ethik," Leipzig 1903, pp. 17-i2, gives a good exposition 
 and criticism of the theory of evolution. 
 
318 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 ical systems — that of regarding the State merely as 
 a type of social alliance. In the first volume of his 
 "Principles of Sociology," under the heading, "The 
 Data of Sociology," Spencer brings together consid- 
 erable ethnographical and anthropological material. 
 Societies resemble individual organisms; they originate 
 in small beginnings and, as they develop, become more 
 and more complex in structure; the mutual dependence 
 of the constituents of societies constantly increase, 
 while society as a whole becomes more independent of 
 the units of which it is composed. Yet the social or- 
 ganism presents large differences from individual organ- 
 isms, and Spencer applies the term "superorganic""^ to 
 the evolution of society. The phenomena of social 
 evolution are conditioned partly by the external influ- 
 ences acting on the "social aggregate," and partly by the 
 character of its constituent parts. Both groups of evo- 
 lutionary factors are subject to progressive variations. 
 ' 'While the fear of the living becomes the root of the polit- 
 ical control, the fear of the dead becomes the root of 
 the religious control."^ 
 
 The second part of the work establishes the organic 
 nature and functions of society.' The third part de- 
 scribes domestic institutions;* the fourth, ceremonial 
 institutions; the fifth, political institutions, including 
 those of the church, of the professions, and of the 
 industries. Thus government and law are completely 
 
 ' Ch. I. 
 
 ' Ch. 27, § 209, p. 521. 
 
 ' "Sociology," Part II, "The Inductions of Sociology." Apple- 
 ton edition, 1890. This biological conception of society is stated 
 by Spencer in "Social Statics" and again in "The Social Organism," 
 and in the "Study of Sociology" (chap. XIV). 
 
 * Under the title, "The Domestic Relations." 
 
§41] DEVELOPMENT CF SOCIOLOGY 319 
 
 incorporated in sociology, and are considered merely as 
 sociological factors. 
 
 In the chapter on "Political Organization in General," 
 Spencer concludes that "political organization [is] to 
 be understood as that part of social organization which 
 consciously carries on directive and restraining func- 
 tions for public ends." An important principle appears 
 in the political differentiation of men and women; what 
 was originally a "domestic relation between the sexes 
 passes into a political relation, such that men and women 
 become in militant groups the ruling class and the sub- 
 ject class; so does the relation between master and slave, 
 originally a domestic one, pass into a political one as 
 fast as, by habitual war, the making of slaves becomes 
 general. It is with the formation of a slave class that 
 there begins that political differentiation between the 
 regulating structures and the sustaining structures, 
 which continues throughout all higher forms of social 
 evolution." In short, masters and slaves are necessary 
 factors in political society. Neglecting the small nomadic 
 groups, class differentiations still persist and go back 
 to the beginnings of social life. A study of the "polit- 
 ical forms and forces" reveals three essential factors 
 in the community: a small group of the powerful, a 
 large group of the weak, and one individual, — the chief- 
 tain, the ruler, — emerging by reason of his superiority 
 from the ranks of the powerful. "In its primitive form, 
 then, political power is the feeling of the community 
 acting through an agency which it has either informally 
 or formally established." History furthermore shows 
 the force of conservatism whereby "a government is in 
 the main but an agency which works the force of public 
 feeling, present and past." To a large extent the ruler 
 is the instrument executing the will of the dead past. 
 Spencer emphasizes the decisive influence of the feeling 
 
320 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 of the community or of its dominant classes in develop- 
 ing and maintaining power, so that "in its widest accep- 
 tation the feeling of the community is the sole source 
 of political power," at least in those communities 
 which are not under foreign domination. The position 
 of the ruler rests upon superior ability, usually com- 
 bined with courage.' In later parts of his work Spencer 
 analyzes, or rather describes, the political forms and 
 forces; the representative bodies, the ministries, the 
 local governing agencies; military systems; judicial 
 and executive systems. But these descriptive studies 
 yield little of value for the philosophy of law and 
 government. 
 
 "Law, whether written or unwritten, formulates the 
 rule of the dead over the living." This dominance of 
 the past results from the belief in Animism; it leads to 
 regulation and law; and the law, by virtue of its sup- 
 posedly sacred origin, attains its inviolable and perma- 
 nent character.^ "Such being the origin and nature 
 of laws, it becomes manifest that the cardinal injunc- 
 tion must be obedience." It is thus by an ethnological 
 approach that Spencer reaches Binding's "Theory of 
 Norms." Law arises from four sources: "inherited 
 usages which have a quasi-religious sanction" ; "special 
 injunctions of deceased leaders, which have a more dis- 
 tinct religious sanction"; "the will of the predominant 
 man," either by reason of ability or power; and "aggre- 
 gate opinion." At a later stage, laws are differentiated 
 into sacred ,and secular; again into laws designed to 
 uphold the authority of the heads, and "those which, 
 directly and irrespective of authority, conduce to social 
 welfare." As laws change in form, the sentiments which 
 
 1 "Sociology," Part V, chap. VI: "Political heads — chiefs, 
 kings," etc. 
 
 * Part V, chap. XIV, treats of the laws. 
 
141] DEVELOPMENT OF SOCIOLOGY 321 
 
 they arouse in the community Hkewise change. With 
 such changes the theory of legal sanction also changes; 
 in a theocratic State the laws are regarded as the eman- 
 ation of the divine will ; in- States in which an absolute 
 form of government in centered in the hands of a single 
 person or of a few, the source of the law is the will of the 
 rulers. As progress is made towards popular govern- 
 ment, it becomes more generally agreed that the ulti- 
 mate sanction of the law is the popular will. Yet the 
 last view is but a transitional stage towards the view 
 which Spencer defends, namely, "that the source of 
 legal obligation is the consensus of individual interests 
 itself, and not the will of the majority determined by 
 their opinion concerning it, which may or may not be 
 right." Already, even in legal theory, ' especially as 
 expounded by French jurists, natural law or law of 
 nature is recognized as a source of formulated law : the 
 admission being thereby made that, primarily certain 
 individual claims, and secondarily the social welfare 
 furthered by enforcing such claims, furnish a warrant 
 for law, anteceding political authority and its enact- 
 ments. Already in the qualification of common law 
 by equity, which avowedly proceeds upon the law of 
 "honesty and reason and of nations," "there is involved 
 the presupposition that as similarly constituted beings, 
 men have certain rights in common, maintenance of 
 which, while directly advantageous to them individually, 
 indirectly benefits the community; and that thus the 
 decisions based on equity have a sanction independent 
 alike of customary law and parliamentary resolves." 
 
 Spencer thus assumes that "natural law" becomes 
 operative when "natural law" as a principle has been 
 superseded and is but occasionally referred to; fur- 
 thermore he holds that law is based on the "consensus 
 of individual interests" — in a measure a strange con- 
 
322 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 elusion, as it conflicts with the sociological doctrine of class 
 diff^erentiation. It is a sad commentary upon the in- 
 evitable result of making the philosophy of law an appen- 
 dix to sociology,* that nothing more notable than this 
 is reached in the chief work of a pre-eminently great 
 thinker writing at the end of the nineteenth century. 
 
 Spencer's sociological bias affects unfavorably his 
 treatment of property. He does not distinguish between 
 private possession and private ownership, and uses the 
 two terms indiscriminately. Both Spencer's insight 
 into human nature and his evolutionary principles dis- 
 pose him unfavorably towards socialism. "While the 
 doctrines of the socialists are evidently not consoling 
 biologically, they are at the same time psychologically 
 absurd. They assume an impossible intellectual en- 
 dowment." According to Spencer socialism would bring 
 about a compulsory association in which "the directors 
 would pursue personal advantage with undiminished 
 self-seeking," just as is done in the present State by the 
 employers, and there would be "no strong union of free 
 laborers to oppose them," — a condition undesirable in 
 the interests of the laborer ^nd from the point of view 
 of evolution. 2 
 
 Spencer transfers a valuable observation from the 
 field of biology to that of sociology: "Social evolution 
 in the distant future, as social evolution in the past, 
 must submit to leave many lower forms untouched, as 
 it develops step by step new forms of society." The 
 
 ' Spencer himself speaks of the legal philosophical basis which he 
 sets forth in § 534 as "a somewhat parenthetical discussion." (§ 535.) 
 
 ^ "From Freedom to Bondage," p. 15, in Introduction to Thomas 
 Mackay": "A Plea for Liberty," N.Y. 1891. (German ed. by Bode, 
 p. 17.) "Metamorphosis is the universal law exemplified through- 
 out the Heavens and on the Earth: especially throughout the 
 organic world; and above all in the animal division of it." 
 
§42] SOCIOLOGICAL EXTREMISTS 323 
 
 fact that rudimentary vestiges of lower stages of cul- 
 ture survive in higher stages shows clearly the falsity 
 of a utilitarian philosophy of law and government as 
 well as of a utilitarian ethics. Law, government, ethics, 
 society are cultural phenomena whose function it is to 
 increase human efficiency. The stronger presupposes 
 the weaker element; along with the powerful there must 
 always be the weaker. The weaker represents the waning 
 survivals from earlier stages.* 
 
 § 42. Sociological and Social-ethical Extremists. 1 : 
 The Conception of "Society. ' ' Current scientific phrases 
 are but vaguely understood by the majority, have a 
 definite meaning to a small minority, and are correctly 
 grasped only by the select few. In the period following 
 the Middle Ages the phrases "sovereignty of the people," 
 "liberty," "reason," were current; they represented a 
 composite of vagueness, error, and truth. Since Saint- 
 Simon, "society" has enjoyed a similar vogue. As used 
 by Saint-Simon, the term was a proper substitution 
 for State, for it was his purpose to establish an earthly 
 kingdom governed by neighborly love, without legal 
 coercion, and consequently without a State. He defines 
 society as a communal association organized without 
 legal or governmental coercion. The term "society" 
 is likewise justified when applied to the ideal community 
 by communistic anarchists, who believe that with the 
 abolition of government, law and capital, men would 
 regain their natural innate good will which the State 
 has corrupted. But the use of the term by the socialists, 
 
 ^ In regard to these rudimentary organs in the human organism 
 which in the biological, and partly in the social sense, are no longer 
 useful but harmful, see Metchnikoff, "Studien fiber die Natur des 
 Menschen. Eine Optimistische Philosophie." Authorized edition 
 from the French. Introduction by Wilhelm Ostwald, Leipzig 1904. 
 Pp. 3-177 ("Die Disharmonien der Natur des Menschen"). Metch- 
 nikoff is a professor in the Pasteur Institute at Paris. 
 
324 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 as applied to their prospective State, is false, for the 
 socialistic State is not a free State but a Leviathan. 
 They propose to regulate production and consumption 
 by law, and use the term "society" as a demagogic 
 device; for the proposal to abolish the present form of 
 the State sounds more inviting if the proposed substi- 
 tute does not bear the name of State. Sociologists use 
 the term "society" for all types of human association, 
 including the State as a social group ; and they use the 
 term "sociology" as equivalent to political science in 
 other than its formal legal aspects. The term "society" 
 is thus used to designate very differently constituted 
 groups; it is applied to the associations peculiar to an 
 age antecedent to the establishment of the State, and 
 to the State itself after its establishment and develop- 
 ment as a society regulated by law. If the affiliations 
 within the horde or tribe, out of which the State was 
 formed, are to be called society, then such early types 
 of society must not be used interchangeably for society 
 as a constituent of the State. In current usage society 
 stands indiscriminately for pre-governmental affiliations, 
 for the community as shaped by law and government, 
 for the several independent associative groups within 
 the State, and for them collectively. The evolution of 
 society is constructed by tracing the stages of growth 
 from the pre-governmental groups to the State as at 
 present constituted. That is a convenient mode of 
 avoiding the fundamental problems of law and govern- 
 ment: the State is simply set down as a differentiated 
 highly developed form of society as compared with the 
 pre-governmental social groups. This looseness of usage 
 is paralleled and still further favored by the elastic 
 meaning attached to the term, "social ethics." 
 
 In view of the violence thus done to the concept of 
 "society," it seems necessary to assign to it its proper 
 
§42] SOCIOLOGICAL EXTREMISTS 325 
 
 meaning. Robert v. Mohl ' (1799-1875) was the 
 first to undertake a critical analysis^ of "society." He 
 concludes:' "It has thus been set forth that these 
 affiliations based on community of interest are distinc- 
 tive, and not to be confused or compared with the products 
 of individual interests, nor with a corporate relation 
 to the State; they require a distinctive term, and the 
 term 'society' fulfills the need. Social affiliations or 
 organizations are accordingly the separate associations 
 that severally develop from a given set of interests, 
 whether formally or informally organized; and social 
 conditions are the results of such association, as they 
 affect the participants directly, and all others indirectly. 
 Society thus becomes a comprehensive concept embrac- 
 ing the combined social institutions of a given region, 
 such as of a State or a country." This view correctly 
 represents society as the spontaneous expression of 
 human interests, not in response to law or coercion, 
 but by individuals or by associations independent of 
 governmental direction. 
 
 LoRENZ V. Stein (1815-1890) contributed to the study 
 of the nature of society. He held that "if society is 
 
 1 The conception of civil society in Hegel has no relation to the 
 ambitious modern conception. See above. 
 
 These comments of Ahrens ("Naturrecht," sixth edition, Vol. II, 
 pp. 253-262) are not important. 
 
 ^"Die Geschichte und Literatur der Staatswissenschaften,'' I, 
 pp. 72-110. See also Bluntschli, "tjber die neuen Begriindungen der 
 Gesellschaft und des Gesellschaftsrechtes" ("Uberschau der Deut- 
 schen Gesetzgebung und Rechtswissenschaft," Vol. Ill, Munich 
 1856, pp. 247-251). v. Treitschke, "Die Gesellschaftswissenschaft. 
 Ein kritischer Versuch," Leipzig 1859, pp. 65 seq. According to 
 Treitschke the State is unified organized society (pp. 87 and 81-84). 
 ■Gumplowicz, "AUgemeines Staatsrecht," Innsbruck 1897, pp. 176- 
 178. Jellinek, "AUgemeine Staatslehre," pp. 81 seq. 
 
 ' "Die Geschichte und Literatur," etc., pp. 100 seq. 
 
326 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 in fact something more than an unorganized and acci- 
 dental aggregate, and is an independent and distinctive 
 expression of human interests, then it will be possible 
 to fix upon a single and unified definition combining its 
 varied issues; such a dominant concept is that of 
 'society.' " "Every association of men is in a sense a 
 society; all societies, however different, must contain 
 a common factor." ^ "The social order as shaped by 
 the distribution of human problems and advantages, 
 safeguarded by the law, and secured in perpetuity by 
 property and the family, constitutes human society."^ 
 "Through modern society the quantity and quality of 
 the most desirable aids to life, as v/ell as the advantages 
 of life, have been made available and perfected to an 
 unprecedented measure, and nations have been made 
 wealthy and free beyond anything known in the past. 
 But the distribution of the possessions of wealth and 
 of liberty is not determined by the principle of the 
 highest development of the individual, but is regulated 
 by the law which controls the use of capital in enter- 
 prises; namely, that the social order rests upon the 
 supremacy of capital over labor without capital."' 
 In another connection* he says: "In addition to the 
 
 1 "Der Sozialismus und Kommunismus des heutigen Frankreichs," 
 second edition, p. 15. The first part of the book bears the sub- 
 title: "Die Gesellschaft und das Proletariat." 
 
 Compare with Stein's interpretation of the concept of society 
 Cumplowicz, "Allgemeines Staatsrecht," pp. 176, 182-185. Jel- 
 Knek, "Allgemeine Staatslehre,'' p. 81. 
 
 ^ "Der Sozialismus," etc. p. 23. 
 
 ^ "Der Sozialismus," etc., pp. 38 seq. 
 
 * In his work on the social movement in France: "Von 1789 bis 
 auf unsere Tage," 3 vols. Leipzig 1850. Vol. I: "Der Begriflf der 
 Gesellschaft und die soziale Geschichte der franzosischen Revolu- 
 tion bis zum Jahre 1830." 
 
§42] SOCIOLOGICAL EXTREMISTS 327 
 
 direct action and expression of the State there is a 
 life of the State." This life is "society." i 
 
 The objects of ownership, and consequently owner- 
 ship itself, are of three kinds: landed property, money, 
 and industrial wealth, or so-called standing or fixed 
 capital. These in turn may be subdivided. "Among 
 the well-to-do the kind of wealth affects the sphere of 
 the individual's activity; the amount of wealth affects 
 his station." Labor presents similar distinctions ; "even 
 more than wealth it forces the individual to accommo- 
 date himself to its demands; and the kind of labor 
 conditions the type of personal development." The 
 mode of living as conditioned by material possessions 
 in turn conditions the general range and manner of life, 
 and is perpetuated through the family from one genera- 
 tion to another. "This organic unity of life conditioned 
 by the distribution of wealth, mediated by the organiza- 
 tion of labor, sustained by human needs, and fixed by 
 legal institutions and family tradition, is human society." 
 In v. Stein's exposition the conception ^ of society shows 
 the modern tendency unduly to extend its meaning, and 
 to include the functions of government and law and 
 national economics. In the works ' of R. Gneist 
 (1816-1895), the celebrated writer on public law, the 
 sphere of society is considered. "French precedent 
 gives the term 'society' the meaning of the relation of 
 
 ' "Der Begriflf der Gesellschaft und die Gesetze ihrer Bewegung- 
 Einleitung zur Geschichte der sozialen Bewegung Frankreichs seit 
 1789." Of special import are pp. XXIV-XXVIII. 
 
 ^"Die Volkswirthschaftslehre," second edition, Vienna 1878, 
 pp. 458 seq. 
 
 3 "Self-government Kommunalverfassung und Verwaltungs- 
 gerichte in England," third edition, Berlin 1871, pp. 879 seq.; 
 "Der Rechtsstaat und die Verwaltungsgerichte in Deutschland," 
 second edition, Berlin 1879, pp. 1 seq. See alsoGumplowicz, "Allge- 
 meines Staatsrecht," p. 185. 
 
328 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 man to material possessions, and gives the term 'social 
 relations' the meaning of the aggregate of men's rela- 
 tions to one another. Amid all the complexities of 
 social organization, two principles may be adhered to: 
 the one, that, since every kind of wealth results in the 
 dependence of those who are without it, those who 
 have it will do all in their power to establish and con- 
 tinue such dependence; the other, that the dependent 
 will equally endeavor to diminish and, if possible, to do 
 away with such dependence. The clash of class interests 
 can be adjusted only through State regulation. Hence 
 society and the State are permanently opposed. The 
 State, especially in its service as a communal self- 
 government, serves to unite ^ the interests of society." ^ 
 Following v. Stein and Gneist some contemporary 
 writers conceive society as an organism, as the body 
 social, as an independent reality;^ but others, such as 
 Gumplowicz,* recognize the presence of varied interests 
 
 1 "Self-government," pp. 880, 881; "Der Rechtsstaat," p. 10. 
 
 ' For Tonnies and Kloppel see below, § 44. See also the article by 
 Gothein in "Handworterbuch der Staatswissenschaften" on "Gesell- 
 schaft und Gesellschaftswissenschaft," Vol. IV, pp. 200-216; for 
 the concept of society, 200-203. 
 
 ' The organic and superorganic conception of society is set forth 
 by Schaffle, Worms, Giddings ("The Principles of Sociology," New 
 York 1896, pp. 420), and others. See below, § 44. See aXso Zenker , 
 "Die Gesellschaft," 2 vols., Berlin 1903, pp. 27-80. (pp. 36-52 
 are upon the "objective existence of social structures.") 
 
 *Gumplowicz, "Grundriss der Soziologie," Vienna 1885, p. 139: 
 "If one considers the aggregate of the several groups, circles, classes, 
 and occupations that reach their development in the State, and 
 their mutual actions and reactions, one may give to this totality 
 the general name of society, in contrast to the State. In this 
 sense society is not something different from the State but the State 
 itself from another point of view. In the narrower and stricter 
 sense society refers to every one of such groups that is distinctive 
 
§42] SOCIOLOGICAL EXTREMISTS 329 
 
 as represented by those interested, but do not regard 
 such interests as independent of the State and State 
 interests, though admittedly the two are occasionally 
 divergent, nor as justifying their consideration as a 
 distinctive organic unity. 
 
 If it were only a matter of substituting another word 
 for a vague or unjustifiable concept, the opposition to 
 the extreme extension of the term "society" would be 
 a mere academic effort. The question of terms is of 
 slight importance ; writers on government and economics 
 may, if they choose, call the interests of political economy 
 those of "society," or use any other preferred expression. 
 But it is a different matter when the misleading term 
 leads to a false theoretical construction. In my some- 
 what heretical opinion such is the fact; and I shall 
 venture to state briefly my objections to the prevailing 
 view of "society." That a notable change of material 
 conditions has taken place as a result of the increase of 
 working capital and of the exploitation of the laboring 
 classes consequent upon the introduction of machinery, 
 is clear; but that such change invalidates legal pro- 
 cedures and principles of government is yet to be shown. 
 It is far more likely that the present reconstruction of 
 economics will prove to be a stage of transition, which, 
 in due course, will furnish a theoretical support for the 
 improvement of the lot of a class whose legal and political 
 status has been unduly neglected. It is a further 
 objection to the prevalent interpretation of sociology 
 that its procedure was modeled upon that of the natural 
 sciences. A philosophy of government and law which, 
 judged by the spirit of its procedure, may be applied 
 
 by virtue of its common interest or interests. In brief, it is a group 
 held together by one or more interests." See also Gumplowicz, 
 "Soziologie und Politik," Leipzig 1892, pp. 49-66, 72-75. "AU- 
 gemeines Staatsrecht," pp. 170-198. See also below, § 44. 
 
330 SOCIOLOGICAL PHILOSOPHIES [Ch. Vll 
 
 biology, or ethnology, or indeed anything but philosophy, 
 may properly be viewed with suspicion. 
 
 Government, law, and ethics have a place among the 
 distinctive factors of culture. We may call the affilia- 
 tions of men as they existed before government was 
 instituted, society, — the term thus standing for the 
 social alliances of men in uncivilized and semi-civilized 
 stages, — but to call human alliances existing under the 
 State and the rule of law one species of this same genus, 
 and the forms of animal society yet another, is to adopt 
 a zoological or biological procedure, and not a philo- 
 sophical one. To consider society organized under 
 government and pre-govemmental society as contrasted 
 but not co-ordinate, is no more pertinent than to classify 
 man as a species of the genus animal or mammal; for 
 the purposes of the natural history of man this is legiti- 
 mate, but not for the philosophical interpretation of 
 culture. The student of government or law can no more 
 assume that man is merely a more highly organized 
 animal, without running the risk of reaching strange 
 conclusions, than can the historian of civilization or 
 the moralist. If we except the reactionaries, such as 
 Rousseau in his earlier period, and Stirner, and perhaps 
 Tolstoi, and the strenuous Nietzsche, legal philoso- 
 phers are agreed that the pre-governmental condition 
 demands consideration merely as an evolutionary stage 
 in the historical development of government, of law, 
 of ethics, of civilization. Quite independently of the 
 question of desirability, the conditions as organized 
 within the State, and those that prevailed where no 
 government existed, cannot be regarded as of parallel 
 status. It is equally idle to construct a new legal dis- 
 pensation based on the assumed claims of social welfare. 
 State, law, economics, and society must be conceived 
 and interpreted as cultural developments according to 
 
§42] SOCIOLOGICAL EXTREMISTS 331 
 
 the standards of our existing civilization, and not accord- 
 ing to those of another world, which, however preferable, 
 is unreal and visionary. In the world as it is, govern- 
 ment and law give the setting and conditions for economic 
 operations. The residual phenomena, representing so- 
 ciety and social interests, are the aggregate of the 
 situations, associations, and activities, directed to 
 freely developing interests, the manifold operations 
 and relations of all citizens, apart from those fostered 
 and maintained by governmental or legal organization. 
 Subtract from the collective activity of a community 
 under governmental organization the direct issues 
 secured and conditioned by the law, and the rest 
 is society.^ The weaknesses of sociology are doubt- 
 less those of a youthful science. In older views and 
 conditions, the interests and service of social organiza- 
 tions had been neglected ; it is natural that a movement 
 aiming to assert the value of these social interests should 
 in its enthusiasm overshoot the mark. 
 
 2: Social Ethics. The practical bearing of the socio- 
 logical attitude finds expression in what is commonly 
 known as "social ethics." The principle of economic 
 materialism, and particularly of socialism, drew the 
 attention of central Europe to the question whether, in 
 fact, formal equality before the law resulted in economic 
 justice. There was much evidence that a rigid adherence 
 to a formal legal equality, and the unrestricted pursuit 
 of commerce, had resulted in the oppression and exploita- 
 tion by unscrupulous capitalists of the economically 
 weaker classes, the industrial laborer, and of the economi- 
 cally weaker individuals subject to the exactions of the 
 
 1 See the admirable account of Jellinek, "AUgemeine Staatslehre," 
 pp. 84-89. Jellinek is one of the few economic philosophers 
 who recognize the extreme and ambitious conception of society, 
 advanced by the sociologists. 
 
332 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 stronger. The situation induced a powerful movement 
 in the direction of social reform ; in Germany it brought 
 about the labor insurance laws (inaugurated through the 
 initiative of Bismarck by the imperial messages of Nov. 
 17, 1881, and April 14, 1883), as well as other reforms 
 of industrial legislation for the protection of the laborer. 
 The commendable purposes of social reform may be 
 said to consist of the economic liberation through legal 
 reforms of the economically dependent classes, and the 
 infusion of the law with the ethical spirit, by framing 
 laws to prevent the exploitation of the economically 
 dependent.^ Every friend of progress will regard with 
 sympathy all efforts in behalf of the economically 
 weaker classes and individuals, and every attempt to 
 check the exploitation that takes shelter under the law. 
 But the thoughtful student views with misgiving the 
 brand of practical philosophy now in vogue and its 
 dire possibilities. The words "social reform" and 
 "social ethics" are bandied about by all sorts and condi- 
 tions of men; and even the intelligent among them, 
 including political economists and officers and adminis- 
 trators of the law, connect no definite notion with these 
 terms which, indeed, seem to stand for a tendency to 
 favor the man without property and without means, 
 especially if he belongs to the laboring classes, as against 
 the economically stronger capitalist; and to do so only 
 
 ' See the account of the recent movement in behalf of political 
 welfare in Van der Borght, "Grundziige der Sozialpolitik" (Franken- 
 stein- Heckel, "Hand- und Lehrbuch der Staatswissenschaft," I, 15), 
 Leipzig 1904 (Part II: "Arbeiter-Wohlfahrtspolitik," pp. 87^45; 
 Part IV: "Wohlfahrtspolitik in Bezug auf sonstige Personen in 
 unselbstandiger Arbeitsstellung," pp. 483-519). Bibliography, pp. 
 620-566. See also in "Handworterbuch der Staatswissenschaften," 
 second edition, Vol. II, pp. 921-923, 930-939, the article "Bismarck" 
 (by H. Dietzel), the division "Sozialpolitik," and Vol. VI, pp. 828- 
 848, the article "Sozialkonservative Bestrebungen" (by G. Uhlhorn). 
 
§42] SOCIOLOGICAL EXTREMISTS 333 
 
 because he is the under dog. He is to be favored in 
 legislation, in judicial decisions, in administration, in 
 business, in contracts, and in daily intercourse. The 
 sound principle of social ethics, that the law must afford 
 protection against economic enslavement or exploitation, 
 is to be made over into a feeble and indefensible prin- 
 ciple of social compassion, a principle the more willingly 
 enforced as it is exercised at another's expense. Neither 
 in theory nor in practice can this extreme application 
 of the social-ethical attitude be justified. Its accep- 
 tance is due to an unwarranted extension of the concep- 
 tion of society, and as well to the lack of clear views of 
 political economy among those not affected by the 
 socialistic movement. It may be referred to the exten- 
 sion of the spirit of romanticism into political economy, 
 swayed by an emotional antagonism to capital. Its 
 purposes are as uncertain as its foundations; and the 
 outcome of this social-ethical sentimentality cannot be 
 viewed with complacency.^ 
 
 3: Sociological Ideals. The comprehensive and thor- 
 ough survey of Ludwig Stein ^ (b. 1859), "Die Soziale 
 Frage im Lichte der Philosophic," graphically pre- 
 sents, with a wealth of illustrative material, the views on 
 sociological questions of philosophers and economists 
 from the earliest times up to the present day. Stein 
 represents a social optimism.' Optimism cannot be 
 justified on the principle of hedonism. "Any balance 
 
 ^ See below, § 45. 
 
 2 The following works of Ludwig Stein are here pertinent: "Die 
 soziale Frage im Lichte der Philosophie," Stuttgart 1897, second 
 edition, 1903. "An der Wende des Jahrhunderts. Versuch einer 
 Kulturphilosophie," Freiburg i/B 1899. "Der soziale Optimismus," 
 Jena 1905. 
 
 '"Die soziale Frage," etc.. Lecture 41: "Der soziale Optimis- 
 mus," pp. 563-584. Stein, "Der soziale Optimismus," pp. 1-27, 
 126-154, 218-238. 
 
334 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 struck between pleasure and displeasure is illusory." ^ 
 Optimism is not to be demonstrated logically; the 
 optimistic tendency is "the great pledge of future joys, 
 a KTrj/M €is de', an inalienable possession of mankind."^ 
 The movement of human ideas as revealed by the 
 comparative study of history is spiral; it advances at 
 once forward and upward. "The evolutionary optimism, 
 which is characteristic of Hegel, no less than of Leibnitz 
 before him, and of Eduard v. Hartmann after him, 
 projects the movement of ideas not as a circle but as a 
 spiral." To social optimism the alternative between 
 the individual or the race is not final; neither the 
 extreme individualism of Nietzsche, nor the extreme 
 communistic view of life, will hold good.^ 
 
 The moralist cannot escape the question: Are there 
 any ultimate purposes? Why should we lead a moral 
 life? In order to be happy. How shall we be moral? 
 By recognizing the connection between the cosmos and 
 human destiny, between the world of nature and the 
 world of spirit. "The insight into this connection 
 imbues man with strength to curb his selfish impulses, 
 to refine his instincts, and thereby to eliminate every 
 vestige of his original predatory nature." The goal of 
 evolution is the refinement of the human type.* The 
 goal of external politics is to make our civilization 
 prevail universally ; ^ this will become realized through 
 a world federation, while the goal of internal politics 
 
 ' "Die soziale Frage," pp. 563-570. 
 
 = "An der Wende des Jahrhunderts," pp. 336-347, 211, 212- 
 230. "Die soziale Frage," pp. 563-584. 
 
 5 "An der Wende des Jahrhunderts," pp. 233, 270 seq., 240, 233- 
 241. 
 
 * "Die soziale Frage," pp. 583 seq. 
 
 * "An der Wende," etc., pp. 391 seq. "Die soziale Frage," pp. 
 562 seq. 
 
§42] SOCIOLOGICAL EXTREMISTS 335 
 
 is to bring about a reign of peace through unceasing 
 social effort. 1 
 
 Paul Bergmann's "Ethik als Kulturphilosophie" ^ 
 presents substantially the same views as Stein, but re- 
 turns to Kant for support of the fundamental basis. The 
 supreme injunction is thus expressed: "On all occasions 
 do your individual and social duty"; or expressing the 
 two separately: "Always act in complete accord with 
 yourself as a moral personality"; and, "Always place 
 yourself at the service of the community to which you 
 belong."^ The object of morality is the completest 
 realization of the ideal of culture,^ the participation in, 
 and furtherance of the progress of civilization. 
 
 Van Calker^ (b. 1864) makes human perfection 
 the guide of political endeavor. He bases it on the sense 
 of evidence- — ■ "Gefiihl der Evidenz" — the innate trend 
 which makes the idea of perfectibility appear as a com- 
 mendable aim. This ethical principle should be applied 
 in penology ; ^ the penal law should be made to conform 
 to the standard of a just retribution. Van Calker's 
 principle of perfection has been applied to penology by 
 Netter.' 
 
 ^ "An der Wende," etc., pp. 392 seq., 410 seq. "Die soziale 
 Frage," pp. 551-562, 457^96, 496 seq. 
 
 2 Leipzig 1904, especially pp. 274-475. 
 
 ' "Ethik als Kulturphilosophie, " pp. 474 seq. 
 
 ' See below, § 44. 
 
 ' "Politik als Wissenschaft," Address of January 27, 1898, 
 Strassburg 1898, pp. 16-21, 37, 20. 
 
 ^S. van Calker, "Strafrecht und Ethik,'' Leipzig 1897, pp. 12- 
 16, 16-22. Also Berolzheimer, "Die Entgeltung im Strafrechte," 
 pp. 99 seq. 
 
 ' "Das Prinzip der VervoUkommnung als Grundlage der Straf- 
 rechtsform," Berlin 1900, especially pp. 346 seq. Pp. 253-260 
 contain the historical presentation of the principle of perfection. 
 On V. Calker's influence see pp. 355 and preface, p. VL 
 
336 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 §43. Social Utilitarianism. 1: Shaftesbury. Shaftes- 
 bury ^ (1671-1713), the English moralist, bases his ethics 
 on the following considerations: "Every creature [has] 
 a private good and interest of his own," what Diderot 
 calls "un int^ret priv6, un bien-etre qui lui est propre," 
 representing the satisfaction of his desires as determined 
 by his nature. If the natural expressions of inclination, 
 emotion, or passion are thwarted, it reacts disturbingly 
 upon the welfare of the organism; and if the untoward 
 status of its emotional life reacts to the disadvantage 
 of other beings, the result is likewise unfavorable to the 
 general welfare. If the same disturbed emotional state 
 affects the vital interests both of the being primarily 
 concerned and of others who cross his path, and if the 
 favorable regulation of his natural disposition would 
 servehisown welfare and thatof others, then the favorable 
 interest of others coincides with concern for his own 
 welfare, and private interest is in harmony with mor- 
 ality.^ Accordingly virtue not only leads to the happi- 
 ness of the virtuous but likewise to the welfare of the 
 community. Vices make the individual unhappy and 
 weaken the bond that attaches him to the community.' 
 
 ^Shaftesbury, "An inquiry concerning Virtue and Merit," 1699. 
 I cite from the collected works of Shaftesbury, "Characteristics of 
 Men, Manners, Opinions, Times, withaCoUectionof Letters," Vol.11, 
 Basle 1790; translated into French by Diderot under the title 
 "Principes de la Philosophie Morale ou Essai sur le Merite de la 
 Vertu, par Mylord S." . . . (Shaftesbury). A German translation 
 from the French bears the title "Uber Verdienst und Tugend, ein 
 Versuch von Shaftesbury," Leipzig 1780. 
 
 ^Bookll, Part II, §1. 
 
 ^Book II, Part II, § 1: "How unfortunate must it be for a crea- 
 ture, whose dependence on society is greater than any others, to 
 lose that natural affection by which he is prompted to the good and 
 interest of his species and community? . . . For whoever is un- 
 sociable, and voluntarily shuns society or commerce with the world, 
 must cf necessity be morose and ill-natured." 
 
§431 SOCIAL UTILITARIANISM 337 
 
 Briefly, vices are anti-social impulses. Shaftesbury 
 traces vices to three sources: to weak and defective natu- 
 ral affections ; to the predominance of private interests ; 
 or to the fact that the natural affections tend neither 
 to the special interest of the individual nor to the gen- 
 eral welfare of the species.' Vice disturbs individual 
 well-being as well as the welfare of the community; 
 while the social inclinations, or the communal feeling 
 which is inherent in human nature, form the source of 
 ethical values. 
 
 This same emphasis upon the concurrence of private 
 with communal welfare appears in the social philosophy 
 of Ihering; he, however, does not assign the decisive 
 part to the ethical sentiment and its practical expres- 
 sion, but to the self-centered impulses which are directed 
 to personal welfare and at the same time further the 
 welfare of the community. 
 
 2: Ihering. Ihering's ^ (1818-1892) chief work, 
 "Der Zweck im Recht," was preceded by the "Geist 
 
 See Book II, Part II, § 2, beginning with the words: "We are 
 now to prove, that by having the self-passions too intense or strong, 
 a creature becomes miserable." This is then proven by various 
 illustrations. 
 
 ' Book II, Part II, § 3. Shaftesbury, as he notes at the end of 
 the section, proposes to establish the following thesis: — 
 
 I. "That to have the natural, kindly, or generous affections 
 strong and powerful towards the good of the public, is to have the 
 chief means and power of self-enjoyment," and "That to want them, 
 is certain misery and ill." 
 
 II. "That to have the private or self-affections too strong, or 
 beyond their degree of subordinacy to the kindly and natural, is 
 also miserable." 
 
 III. And, "That to have the unnatural affections, viz., such as are 
 neither founded on the interest of the kind, or public, nor of the 
 private person or creature himself, is to be miserable in the highest 
 degree." 
 
 'The works here pertinent are "Zweck im Recht," 1 vol., third 
 edition, Leipzig 1893; Vol. II, second edition, 1886, third edition. 
 
338 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 des Romischen Rechts,"^ which formed a notable con- 
 tribution to the study of Roman law, and of its histori- 
 cal and philosophical evolution. Though neither work 
 was completed, the earlier work may be regarded as 
 finding its complement in the later, which begins by 
 considering the nature of human conduct. The law 
 of causality, which acts mechanically in the natural 
 world, when applied to the human will becomes a psycho- 
 logical law. A stone falls because, deprived of its sup- 
 port, it must fall. "Human conduct is determined not 
 by a 'because' but by a 'for,' by a purpose to be effected; 
 the 'for' is as indispensable for the will as is the 'because' 
 for the stone. The stone cannot move without a cause; 
 no more can the will operate without a purpose." Hence 
 the law of causality, as applied to the human will, becomes 
 the psychological law of purpose, "Zweck-gesetz." The 
 purpose is the motivating incentive of the human will. 
 The will does not act without a purpose; to act, and to 
 act as a means to an end, are one and the same. 
 
 The direction of desire exclusively to self-interest is 
 called egoism. Such self-seeking is incompatible with 
 larger ends, but is utilized by these ends in that they 
 "enlist it in their service by paying it the wages which 
 it demands." The larger interests secure the co-opera- 
 tion of the individual by interesting him in their pur- 
 poses. Every phase of human life — government, society, 
 
 1898. (The third edition, from which I cite, was published by v. 
 Ehrenberg after the author's death.) Fourth edition (the first in 
 popular form), 2 vols., Leipzig 1905. , 
 
 "Der Kampf urns Recht," fifteenth edition, Vienna 1903. (I 
 cite from the thirteenth edition, Vienna 1897.) 
 
 1 "Geist des Romischen Rechts auf den Verschiedenen Stufen 
 seiner Entwickelung," Part I, fifth edition, Leipzig 1894; Part II, 
 Division I, fifth edition, Leipzig 1894; Part II, Division II, fifth 
 edition, Leipzig 1899; Part III, Division I, fourth edition, Leipzig 
 1888. 
 
§43] SOCIAL UTILITARIANISM 339 
 
 commerce, and business — depends upon the interrela- 
 tion of individual purposes with the interests of others. 
 If there is no concurrence of selfish individual interests 
 with the general purpose, it must be brought about 
 artificially. In all human intercourse, including that 
 of social life, the "lever of interest" may be brought 
 to bear upon those unaffected as well as those directly 
 affected. The same is true of communal purposes, among 
 which organized purposes are of the greatest practical 
 importance; that is, purposes which have an adequate 
 instrument in a permanent and regulated association 
 of those interested. Organized purposes reach their 
 highest expression in the State; the characteristic of 
 such purposes is their extensive utilization of the law. 
 In some cases the law acts as a direct mechanical co- 
 ercion — as the attachment of property of a debtor ; 
 in others it acts indirectly as a psychological coercion — 
 as by the threat of a penalty or legal disability. Psy- 
 chological coercion is indirect ; it appeals to the interest 
 of the individual will which is subjected to the influences 
 of the law. 
 
 Human purposes are either individual or communal, 
 that is, social. The purposes "emanating from and 
 acting upon the individual" are the selfish ones. They 
 are of three kinds — the assertion of the physical, of 
 the economic, and of the legal self; or briefly, the asser- 
 tion of the individual or the ego. The purposes of the 
 communal life, including the objects of the State, are 
 the social ones. The activities of the individual in 
 the furtherance of these communal purposes are appro- 
 priately called "social." The individual is stimulated 
 to social conduct by an appeal to two kinds of impulses: 
 first, by an appeal to self-interest — "The means which 
 the State and society employ to enlist the individual in 
 their service are reward and punishment," — and second, 
 
340 SOCIOLOGICAL PHILOSOPHIES [Ch. Vil 
 
 by an appeal to the ethical self, that is, "to the ethical 
 feeling in regard to the purpose of man's existence, the 
 conviction that his life is to be lived not for himself 
 alone but for the service of mankind." The ethical 
 nature can alone account for self-denial. 
 
 The individual's place in the world will be determined 
 by his attitude towards the three following propositions, 
 which reflect his loyalty to public spirit and to law: / 
 exist for myself: or, The world exists for me: or, / exist 
 for the world. The egoistic or individual self-assertion 
 leads to concern for physical well-being. To provide 
 for more than the needs of the moment, men accumulate 
 the means of subsistence for future use. This gives rise 
 to the amassing of property as a form of economic self- 
 assertion. To safeguard life and property, law is insti- 
 tuted. "Without law there is no security of life and 
 property." It is not logical consistency but practical 
 purposes that lead from law to government. The law 
 affects every phase of individual life. The maintenance 
 of the position which the law secures is legal self-asser- 
 tion. It concerns life, honor, property, family, and pub- 
 lic rights. 
 
 Next to the demands of self-assertion, life must be 
 viewed "as it concerns others or society"; all civil- 
 ization depends upon making the individual serviceable 
 to the communal purposes. No man exists for himself 
 alone but for the sake of all. "As each individual exist- 
 ence is due to others, so likewise he exists for others, 
 whether with his intent or not." It is by virtue of the 
 influence which the individual exerts beyond the limits 
 of his own existence that the progress of human culture 
 becomes possible ; the legal aspect of the influence upon 
 posterity takes the form of inheritance. "Society is 
 the realization of the position that every man exists 
 for the world, and the world exists for every man." 
 
§43] SOCIAL UTILITARIANISM 341 
 
 Theoretically society in part overlaps the sphere of the 
 State, "but in part only, that is, to the extent to which 
 the needs of society require the coercive power of the 
 State." Legal coercion serves the subsidiary purpose 
 of protecting the social order from injury. Geographically 
 the sphere of society is not limited by the boundaries 
 of the State. Society has the quality of personality, 
 though the law cannot accord it the legal status of a 
 person. "Yet society should not be denied personal 
 value because it may not serve legally as a person." 
 
 Social mechanics, "the levers of the social movement," 
 are the means whereby society makes the individual 
 subservient to its purposes. Of such social levers, two — 
 reward and coercion — appeal to self-interest ; and two 
 are ethical — the sense of duty and sympathy. Trade 
 may be regarded as an organized means of "satisfying 
 human needs by the lever of reward." The needs sup- 
 ply the motive, the reward is the means, and the organ- 
 ization of the relation between the two constitutes trade. 
 Trade is not carried on upon the basis of benevolence. 
 When we are told that in ancient Rome the intellectual 
 professions were practised without compensation, this 
 means only that the service was not paid for directly. 
 The compensation came in an ideal form by way of 
 honor, respect, popularity, influence, power; the reward 
 was not economic but moral ; but there was a compensa- 
 tion. For the fundamental principle of trade is "quid 
 pro quo." "The expression 'contract of exchange,' 
 'Tauschvertrag,' which legally is confined to the barter of 
 one article for anoth'er, applies to whatever has value." 
 The fact that our needs differ leads to exchange ; the fact 
 that they are in part the same, leads to co-operation, 
 when the purpose sought exceeds the power of the indi^ 
 vidual, or can be attained more economically by co-opera- 
 tion. The legal correlative of this is "Sozietatsvertrag," 
 
342 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 partnership agreement. The reward of a contract is 
 determined by the relative value of the individual inter- 
 ests of the contracting parties. "The point of equilib- 
 rium at which the interests of the parties balance is 
 the equivalent or price agreed upon. The equivalent 
 represents the embodiment of the idea of justice in trade." 
 The social regulation of self-interest is accomplished by 
 competition. When social regulation of private interest 
 fails, possibly by reason of a temporary monopoly, 
 individual interest is nonetheless regulated by "a 
 consideration for the future"; as, for example, the con- 
 sideration that future business interests might be compro- 
 mised by exploiting a momentary advantage. But when 
 both these regulations of private interest fail, and the 
 contract in question threatens to give an undue advan- 
 tage to one party, the law enters as a preventive or ad- 
 justing agent in the form of legal taxes, restriction of 
 the rate of interest, penalty for usury. But the action 
 of the law alone is commonly inadequate. Equitable 
 compensation is determined and insured through a 
 standard in consideration of the general conditions affect- 
 ing a given occupation. Pay is not determined by the 
 individual services alone, but compensation depends 
 upon the status of the occupation for instance, the prep- 
 aration which it requires, and the trouble and expense 
 which it involves. Organized trade finds a means of 
 economic compensation through credit, particularly 
 commercial credit. There are honorary compensations, 
 such as ofHce and reputation, as well as material ones. 
 Under the social organization, compensation is expressed 
 through trade, and coercion through the State and law. 
 Coercion is either mechanical or psychological. "Accord- 
 ing to the purpose sought, that is, whether it is negative 
 or positive, coercion is propelling or compelling. The 
 former aims to prohibit, and the latter to ensure a given 
 
143] SOCIAL UTILITARIANISM 343 
 
 action. Self-defense propels, self-help compels." Law 
 is governmental coercion organized; side by side with 
 it there is an unorganized "social form of coercion", — 
 the moral. To settle differences by establishing a "modus 
 vivendi" binding upon both parties, to restrain power 
 within limits, is the function of law. In the early estab- 
 lishment of the social order the might that prevails plays 
 a great part. In tracing the influence of might in the 
 beginnings of social order, Ihering remarks: "We can- 
 not rely upon history, which tells us nothing concerning 
 this point, but must accept purpose as our guide. The 
 study of purpose will show how, in order to prevail, human 
 ends depend upon might." In a regulated state of society 
 propelling coercion becomes operative in the form of the 
 right and duty of defense, and again as self-defense; 
 and in ancient systems of law, in taking the law in your 
 own hands. Compulsive coercion, as legally expressed, 
 appears in the authority of the father over his family, 
 and in contracts of ever increasing scope. Purposes so 
 regulated can become effective only through the coercive 
 organization of the law. Such legal coercion is indis- 
 pensable; the important point, however, is not whether 
 it is indispensable, but whether it is successful. The 
 social organization of force, concentrated in the law, is 
 effective only when "the balance of power is transferred 
 to the side of the law." This result is attained through 
 association, "Sozietat," which is the "automatic mechan- 
 ism of power, measured in terms of law." But socializa- 
 tion through associations of all sorts would not suffice 
 to guarantee the complete success of legal coercion. That 
 requires the coercive power of the State. "The State 
 is society exercising coercion." The State is "the organ- 
 ization of social coercion." The cultivation of the law 
 is the "vital function" of the State; and legal coercion 
 is the "absolute monopoly" of the State. The external 
 
344 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 quality of law is force ; its inner quality is its normalizing 
 power. Law makes for order and equality. The prac- 
 tical aim of justice is to establish equality. Moreover, 
 the aim of material justice, that is, justice viewed pri- 
 marily as the moral duty of the legislator, is to establish 
 inner or subjective equality, the balance of merit and 
 reward, or punishment and guilt. The fundamental 
 object of formal justice, which primarily means law 
 practically administered, is to establish outer equality; 
 that is, uniform application to all cases of an established 
 rule of action. But equality before the law is not an 
 object in itself. It is desirable only because such equality 
 is a condition for the welfare of society. The inner 
 guaranty of justice is the sense of right; the outer 
 guaranty is the administration of the law. 
 
 Norms or rules of action and coercion are thus the 
 factors of the law. But these are formal only, and 
 decide nothing as to the content of the law, which is 
 determined by its purpose; hence the law must regulate 
 the social conditions. This accounts for the constantly 
 shifting character of the legal content, which varies with 
 social conditions and is subject to constant change. The 
 purpose of law is to secure the conditions which society 
 demands. From the point of view of content, therefore, 
 law is the form in which the coercive power of the State 
 attains and secures the conditions requisite for the social 
 life. In intent this is ever the purpose of the law; 
 naturally the lawmaker may err in the choice of the 
 means, as the physician in the choice of a remedy. 
 
 The fundamental conditions of existence of society 
 are the preservation and propagation of the species, 
 labor, and trade. Normally these coincide with the 
 fundamental conditions of existence of the individual; 
 in so far as they tend to conflict, it is the province of 
 the law to intervene. Ihering extends this view to 
 
§43] SOCIAL UTILITARIANISM 345 
 
 other realms of the law, and attempts to show that the 
 impelling motive of legal forms is the welfare of society, 
 the securing of the conditions of existence, in which 
 process he emphasizes the subjective intent as a factor 
 of the law.^ 
 
 Crime has been defined as an act subject to public 
 punishment, or an act that breaks the law. But this is •^ 
 merely an external definition. Ihering tries to find the 
 underlying principle that makes an action subject to 
 punishment, or the legislative principle defining crime. 
 "The purpose of the penal law is no different from that 
 of any other law: to secure the conditions of existence 
 of society. It employs a distinctive means, which is 
 punishment, in the pursuit of this object. And why?" 
 The reason cannot lie in the non-observance of the law, 
 for not all kinds of non-observance of the law result 
 in punishment. Crime is a menace to the conditions of 
 existence of society which legislation recognizes as pre- 
 ventable only through punishment. The menace is not 
 that of the specific action but the abstract menace inherent 
 in all that type of action. The problem of legislative 
 regulation of punishment thus becomes a problem in 
 
 I social politics. The decisive principle is that "punish- 
 ment must be applied in all cases in which society 
 cannot do without it." The more valuable the social 
 advantage, the more severe must be the punishment 
 for its injury. "The scale of punishment measures the 
 
 i"Der Zweck im Recht," I, pp. 3-25; 32-40; 40-46; 47-61; 67; 
 62-76, especially pp. 65, 73; 77-92; 81; 92; 89; 192 seq.; 93-97; 97; 
 100-115; 116-120, especially pp. 123 seq.; 124-127, 208-225; 131-140, 
 133 seq., 135, 136, 137, 231 seq. ; 140-156; 166-181; 181-193, 194-208; 
 193 seq., 234-258; especially 234-236, 245, 248, 268; 268-262; 262- 
 264; 264-270; 270-291; 291 seq.; 296, 291-307; 309, 307-312; 318, 
 312-320; 320-329; 329 seq.; 352-369; 369; 379 seq.; 435 seq.; 443; 
 446-450, 449; 453 seq.; 485. Ihering considers criminology under 
 the title "Crime" in Vol. I, pp. 483-504. 
 
346 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 value of social possessions." In assigning penalties 
 there must be considered not only the objective factor 
 of the menace to social possession, but the subjective 
 factor of the danger attaching to the criminal disposition, 
 to the actual commission of crime; such factors as 
 intent or negligence; crimes of passion or premeditated 
 crimes; conspiracy; organizing criminal gangs. Iher- 
 ing classifies crimes according to the nature of the 
 object menaced, such as crimes affecting the person 
 — injury to life, body, or health; crimes affecting 
 economic conditions, such as crimes affecting property; 
 moral relations, such as attacks upon honor, family; 
 crimes affecting the State, such as threaten its exis- 
 tence, its economic position, or its ideal purposes, whether 
 through its official representatives or through the 
 citizens whose co-operation the State requires, such 
 as defiance of the authorities, refusal to serve as juror 
 or witness, resistance to, or neglect of , civic duties, etc.; 
 crimes affecting society in its material welfare, such 
 as threaten the security of life through devastation by 
 fire or flood ; or again as affecting society in its economic 
 relations, such as threaten the security of trade, for 
 example, counterfeiting and forgery; and thirdly, crimes 
 as affecting society in its ideal relations, as threatening 
 the moral and religious foundations; for example, 
 perjury, and offenses against religion or morality. 
 
 The net outcome is that law is the realization of the 
 conditions required by the body social in a liberal sense 
 of that term, and as secured by governmental force: 
 all this from the point of view of society. Society, 
 however, is merely the sum of individuals, and the 
 question arises whether the individual's welfare is se- 
 cured along with the welfare of society. The price 
 which the individual pays in order to participate in the 
 privileges of the law represents "the legal pressure 
 
§43] SOCIAL UTILITARIANISM 347 
 
 upon the individual." The individual has legal obliga- 
 tions of several kinds towards the community. To begin 
 with, he furthers all social ends by bearing his share of 
 the taxes. "The taxes tell what society costs in bare 
 cash." In addition there is personal service, as in the 
 army, or on juries, and submission to police and penal 
 regulations. But these do not include all the occasions 
 on which society interferes with the legal privileges of 
 the individual. Society has established restrictions 
 which the individual must accept in the interest of the 
 community. These include the duty of providing for 
 children, and the limiting of the exercise of the right to 
 participate in, or withdraw from educational privileges. 
 What applies to the family applies no less to property. 
 Did not private interest suffice to ensure systematic 
 cultivation of the soil, and the construction of buildings 
 by the owners of land, society would have to establish 
 these as legal duties. The many legal restrictions of 
 individual rights prove the falsity of "the individualistic 
 theory of property," which regards property from the 
 point of view of the individual, and the correctness 
 of the "social theory of property," which regards it 
 from the point of view of social interests. All private 
 rights have a social bearing; though their immediate 
 purpose may be the safeguarding of individual interests, 
 they nevertheless are influenced by social considerations. 
 However, the interference of society with the individual 
 as an organized restraint must have its limits; and 
 this makes the problem of governmental control of 
 individual freedom. Such limits must ever remain 
 elastic. As the purposes of society grow in compre- 
 hensiveness, the conceptions of the individual's obliga- 
 tions towards society will expand. The welfare of the 
 individual is never a purpose in itself, but ever a means 
 for securing social welfare; therefore when an individual 
 
348 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 is forced to an action conducive to his happiness, it is 
 not done in his own interests but in the interest of 
 society. The relation between the authority of the State 
 and the freedom of the individual cannot be determined 
 "by an abstract theoretical formula but by practical 
 considerations. ' ' 
 
 The claims which the law makes upon the individual, 
 have as their correlative the services of the State in 
 behalf of the individual. The State affords protection 
 against encroachments from without and from within 
 — the protection of the law ■ — and establishes public 
 institutions in the interest of society. The balance 
 between the social claims made, and the social services 
 rendered, is merely a theoretical matter; in reality the 
 interests of the individual and society are one. In the 
 law the individual finds a means of defense and asser- 
 tion. Nevertheless legal coercion becomes necessary 
 for two reasons: first, because of inadequate insight, 
 for not everyone recognizes the concurrence of his 
 personal interest with that of society, — "law may be 
 defined as the combination of the wise and the far- 
 seeing against the short-sighted"); second, because of 
 the inherent divergence of private and public interest. 
 This divergence is at once the source of the strength 
 of the law and of its weakness: of its weakness, because 
 of the more intimate hold of private interest upon the 
 individual; of its strength, because the common interest 
 combines all against each partisan of special interests. 
 
 1 While thus insisting upon the social indispensability of 
 coercion, Ihering observes that society cannot ade- 
 quately coerce. Crimes occur despite it. The social 
 measures of reward and coercion are not adequate and 
 require the complementary pressure of morality. "^ 
 
 » I, pp. 485-487; 490 seq.; 492; 494 seq. ; 495-504; 511 seq.; 512-515; 
 616-536, 526 seq., 532, 534 seq.; 536 seq.; 545 seq; 550 seq.; 551- 
 559; 560-568; 570. 
 
§43] SOCIAL UTILITARIANISM 349 
 
 The second portion of the work is devoted to morality. 
 In order to attain an insight into the nature of ethics, 
 Ihering draws upon the evidence of language, in which, 
 however, he relies too much upon contemporary usage 
 to the neglect of the early stages and growth of language. 
 His etymological argument leads him from morality, 
 "Sittlichkeit," to custom, "Sitte," which in turn leads 
 to a study of custom. His thesis is that morality finds 
 its source in social utilitarianism. "^ Morality and law 
 have but a relative validity, depending at every stage 
 upon the existent needs of society. 
 
 In his popular work, "Der Kampf urn's Recht," Ihering 
 contends that the aim of law is peace, and the way to 
 secure peace is through war. Law is ever the result of 
 struggle. The issue in legal contentions is not the 
 particular case but the "ideal purpose or principle at 
 issue, the assertion of the individual or of his sense of 
 justice." Hence to fight for one's rights is a duty. 
 "Every man is a champion of the law in the interests 
 of society."^ 
 
 Ihering carries his readers by the convincing quality 
 of his style. It is his mode of viewing and of dealing 
 with the philosophical aspects of legal problems, together 
 with his emphasis of purpose as a pervading principle, 
 that accounts for his wide influence upon writers, upon 
 the sociological penologists most of all.' Yet his 
 theory is psychologically faulty. It is not the case that 
 all human conduct comes under the law of purpose. 
 It is true that all action involves the contemplation of 
 a purpose ; yet a considerable share of human actions are 
 not actually done with a view to a purpose; the con-| 
 sciousness of the end, and the striving for it, are not the 
 
 ' II, pp. 20-57, 241 seq.; 177-241. 
 
 2 "Der Kampf urn's Recht," pp. 1; 18; 20; 62 
 
 3 See below, § 44. 
 
350 SOCIOLOGICAL PHILOSOPHIES [Ch. Vll 
 
 decisive and determining psychological factors of the 
 action; but the action arises from an emotional condi- 
 tion, and this emotional factor is decisive — ■ all of which 
 is particularly true of moral actions. ^ Nor is Ihering's 
 view justified by history. A consideration of the histori- 
 cal evolution of law shows that actions, carried out with- 
 out conscious reference to a purpose, play an important 
 part therein; and that frequently the intention and the 
 accomplishment diverge. 
 
 The fundamental fallacy of Ihering's legal philosophy, 
 which is fundamental enough to undermine his ambitious 
 construction, is inherent in his basal assumption. 
 Considerations of purpose and use cannot serve to define 
 the nature of law, government, or morality; and this, 
 first, because these concepts represent nothing objective. 
 What must be determined is the objective nature of law 
 and government, how their objective forms may be 
 justified. But the concepts, purpose, and use, have 
 meaning only with reference to a human subject. If 
 we take away from purpose the purpose-conceiving 
 individual, or from use its beneficiary, nothing remains. 
 In the second place, even though thus regarded as sub- 
 jective factors, purpose and use do not afford an insight 
 into law and economics; by their nature they look to 
 the direct result, the immediate effect. If a law — and 
 the same is true of the action of an individual* — seeks a 
 purpose or use, it considers and influences only the 
 immediate or slightly remote consequences; and if it 
 succeeds, it has a temporary, never a durable effect. 
 Furthermore purpose and use have not the same field 
 of operation as law and government. Acting for an 
 end makes for constant endeavor and complete satis- 
 faction. If it were the nature of law and government 
 and ethics to realize purposes, they would either fail 
 
 '■Berolzheimer, "Rechtsphilosophische Studien," pp. 146-148. 
 
§44] SOCIOLOGICAL SCHOOL 351 
 
 of their ends, that is, not conform to their purpose 
 (in which case Ihering's theory would be deprived of its 
 basis), or they would actually attain their purposes, 
 in which case the regulation of life by law would involve, 
 that under the dominion of law, and with the acceptance 
 of ethics, wrong and crime could not exist. Govern- 
 ment and ethics would preclude rebellion against govern- 
 mental authority or commission of crime, etc. Law, 
 politics, and government, viewed with reference to 
 ends, are ever imperfect; there are always unassimilated 
 remnants. But any interpretation of law and govern- 
 ment that pretends to be a real solution must be all 
 comprehensive. My own position urges that this condi- 
 tion is fulfilled in the theory of forces, the view that 
 government, law, and morality are cultural forces. 
 Along with force there must be weakness, just as light 
 involves shade. Purpose is economical; force in its 
 abundance is extravagant and implies a surplus. 
 
 Welfare, use, happiness, do not give the cardinal 
 directions to human ends and endeavors. Happiness 
 rarely finds its home among the upper levels of human 
 attainment; it abides at the lower levels. The poet 
 may proclaim an idyllic peace, but the evolution of 
 human culture is dramatic, full of stress and strain. 
 
 § 44. The Sociological School. 1: Its Distinctive 
 Position. The sociological school that developed upon 
 the basis of the doctrines of Comte and Spencer makes 
 man primarily and distinctively a social being, a mem- 
 ber of a composite community. Its position stands in 
 direct contrast to the individualistic trend, which attained 
 its marked development in the seventeenth and eight- 
 teenth centuries. For Hobbes, Rousseau, and other 
 adherents of "natural law," the fundamental problem 
 was this: What disposes men collectively to form a 
 State, and subject themselves to governmental coer- 
 
352 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 cion? The sociologists frame, or rather answer the ques- 
 tion from a different standpoint. They reply : the State 
 is not formed by the combination of individuals, but 
 at the outset men are naturally united in larger or smaller 
 groups. Like many types among the higher animals, 
 primitive men formed a gregarious band. It is the merit 
 of sociology to have established this generally accepted 
 view of prehistoric life and to have appreciated its 
 significance. 
 
 A further distinction of sociology — though this is 
 limited to Gumplowicz and his followers — relates to 
 the manner in which the State presumably arose. It 
 is held that the means by which the larger collective 
 associations in primitive culture were maintained, up 
 to the point of their consolidation into a State, were 
 those of conflict — a struggle and rivalry for power. 
 Such an antagonism between two groups, as hordes, 
 tribes, or the social aggregates leading to the relation of 
 master and servant, forms the underlying situation lead- 
 ing to government. Such antagonism may be more or 
 less pronounced ; the exploitation of the enslaved by the 
 dominant class may be regulated by law, or it may be 
 the result of social and economic circumstances; at all 
 events there remains a more or less sharply defined dual- 
 ism, separating the State into strata, and this fact is 
 emphasized by the sociologic theory of the formation 
 of the State. The individual is represented as with- 
 drawing in favor of the class and as completely absorbed 
 by it, intellectually, socially, and politically. 
 
 2: Its Precursors. Gumplowicz regards Ferguson 
 (1723-1816) as the forerunner of the sociological school. 
 In 1767 Ferguson published "An Essay on the History 
 of Civil Society," ^ which has received greater attention 
 
 ' "An Essay on the History of Civil Society." I cite from the 
 third edition, London 1768. 
 
§44] SOCIOLOGICAL SCHOOL 353 
 
 in recent times than it obtained upon its appearance. 
 Ferguson's claim to a position in the sociological school 
 is based upon his conclusion that men have always been 
 associated in groups; that even before a State was es- 
 tablished they did not live in isolation but were social- 
 ized.^ As evidence he adduces the accounts of travelers 
 in American and other contemporary accounts of con- 
 ditions among primitive peoples.^ He further points 
 out that by virtue of a fundamental trait ,^ struggle leads 
 to progress ; for danger makes men combine, and struggle 
 promotes the interests of culture.^ He also refers to 
 
 'See Ferguson, "History of Civil Society," Part I. "Of the 
 general Characteristics of Human Nature," § 1. "Of the question 
 relating to the State of Nature," pp. 1-16. p. 6: "Mankind are to 
 be taken in groups, as they have always subsisted." §3. "Of 
 the principles of Union among Mankind," pp. 26-31. p. 26: "Man- 
 kind have always wandered or settled, agreed or quarreled, in troops 
 and companies. The cause of their assembling, whatever it be, 
 is the principle of their alliance or union." p. 27: "Man is born in 
 society," says Montesquieu, "and there he remains. The charms 
 that detain him are known to be manifold." 
 
 2 "History of Civil Society," Part II. "Of the History of Rude 
 Nations." §2: "Of Rude Nations prior to the Establishment of 
 Property," pp. 133-157. See also §3: "Of Rude Nations under 
 the Impressions of Property and Interest," pp. 158-177. 
 
 3 "Hist, of Civil Society," Part I, § 4. "Of the Principles of War 
 and Dissension." p. 33: "Mankind . . . appear to have in their 
 minds the seeds of animosity, and to embrace the occasions of- 
 mutual opposition, with alacrity and pleasure." 
 
 " "Hist, of Civil Society," Part I, § 4, pp. 32^1. p. 39: "Without 
 the rivalship of nations, and the practice of war, civil society 
 could scarcely have found an object, or a form. Mankind might 
 have traded without any formal convention, but they cannot be 
 safe without a national concert. The necessity of a public defense 
 has given rise to many departments of state, and the intellectual 
 talents of men have found their busiest scene in wielding their 
 national forces." 
 
354 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 the trait later emphasized by Gumplowicz/ namely, the 
 complete moral subjection of the individual to his group. 
 
 Although Schleiermacher's^ (1768-1834) philoso- 
 phy and ethics differ from that of the sociological 
 school, he must be mentioned in this connection by 
 reason of his psychological treatment' and his accept- 
 ance of the primitive horde* as the element which led 
 to the establishment of the State. He held that this 
 occurred whenever the antagonism between ruler and 
 subjects became manifest.^ The State arose whenever 
 custom passed into law and made justice possible.^ 
 
 Albert E. F. v. Schaffle' (1831-1903) is the author 
 of a comprehensive system ^ of general sociology which 
 
 ^ Gumplowicz, "Die Soziologische Staatsidee," Graz 1892, p. 68' 
 I have not been able to deduce this principle from Ferguson's work, 
 at least not explicitly. 
 
 2 "Die Lehre vom Staat," "Col. Works," Part III. "Zur Philoso- 
 phie," 8 vols. Literary remains. "Zur Philosophic," 6 vols., 
 Berlin 1845, published by Chr. A. Brandis. The book is complete, 
 but the manuscript is not perfected for publication; it is in the 
 form of detailed sketches and notes for lectures on the subject. 
 
 ' "Die Lehre vom Staat," p. 2: "These lectures are regarded as 
 wholly physiological; their purport is to consider the nature of the 
 State as living and the several functions in their mutual relations." 
 
 ■• "Die Lehre vom Staat," p. 3, note **: "The race is earlier than 
 the State." See also pp. 2-4, 7-10. 
 
 ^ "Die Lehre vom Staat," p. 3: "The contrast of ruler and sub- 
 ject. Wherever that obtains there is government, and vice versa." 
 
 ^ "Die Lehre vom Staat," pp. 8 seq. : "Let us place side by side 
 the last stage where there is as yet no State, and the first stage at 
 which the State comes into being, and ask what is the change. 
 The transformation is merely the explicit expression of custom as 
 law, and thus a transition from an unconscious to a conscious state 
 of community." See also the fourth lecture, pp. 6 seq., the subject 
 of which is that "the State exists only to guarantee law." 
 
 'Austrian "Minister of Commerce" in 1871. 
 
 * For his writings see ' Handworterbuch der Staatswissenschaften," 
 second edition, 6 vols., pp. 507 seq., and Schafile's work itself, "Aus 
 meinem Leben," Beriin 1905, Vol. II, pp. 244-247. 
 
§44] SOCIOLOGICAL SCHOOL 355 
 
 be describes as "a philosophy of the several social sci- 
 ences in so far as such a system may at present be at- 
 tempted.' ' In addition his work contains a special system 
 of sociology.' 
 
 SchafHe portrays the body social as a more complex, 
 more highly developed and differentiated organism, the 
 nature and variety and activities of which are to be 
 traced by analogy with the natural characteristics of 
 animal and plant life. He calls it a hyperorganism in 
 view of the complexity of its organization through gov- 
 ernment and law, which transcend the natural and spon- 
 taneous group-formations.^ The social affiliations are 
 by structure and functions superorganic. In carrying 
 out in detail this analogy, he sets forth "likenesses and 
 differences between organic and social bodies."' Thus 
 the family becomes "a fundamental physiological trait 
 of thesocial body," * supported by "primary association." 
 The several gregarious and communal associations in- 
 stituted by society are treated as "social tissues," or 
 social histology, and so on. 
 
 Schaffle's ambitious project was not worth the effort. 
 His painstaking analogies are after all merely analogies, 
 comparisons, and figures of speech. To call society a 
 
 1 See Schaffie, "Neue Beitrage zur Grundlegung der Soziologie," Z. 
 f. d. g. Staatsw., Vol. LX, 1904, pp. 103-204. Also Vol. LIX, 1903, 
 pp. 294 seq., 479 seq. (in Schaffle's essay: "Die Notwendigkeit 
 exackt entwickelungsgeschichtlicher Erklarung und exakt entwickel- 
 ungsgeschichtlicher Behandlung unserer Landwirtschaftsbedrang- 
 nis," pp. 255-340, 476-552). 
 
 ^ "Bau und Leben des sozialen Korpers," Vol. I, p. 1. 
 
 ' "Bau und Leben," I, pp. 8-18, 18-23; 26-85; 86-124, 124-137. 
 
 * "Avenarius Vierteljahrschrift fiir wissenschaftliche Philoso- 
 phie," Vol. II, 1878, pp. 38-67; p. 53: "Law without authority 
 cannot exist. Law which has not the power to maintain itself 
 cannot be permanently esteemed and therefore cannot endure. 
 Law and custom must be looked upon as forces, as living powers." 
 
356 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 "hyperorganism" adds nothing to our knowledge of 
 society, nor does it in any way increase our sociological 
 insight. The same criticism applies to Schaffle's essay 
 on "Law and Custom, Considered as a Sociological 
 Expansion of Artificial Selection," though the essay is 
 valuable for its recognition of law and custom as social 
 forces. 
 
 3: GuMPLOWicz. Among the foremost leaders of 
 the sociological school is Gumplowicz' (1838—1910). 
 He commands a large range of illustrative material with 
 which he enriches the principles of sociology, and sets 
 forth their bearing with exceptional clearness and effec- 
 tiveness. His style is at once vigorous and engaging, 
 and appeals to the literary sense. This talent, and the 
 individuality of his position — somewhat withdrawing 
 him from the dominant sympathies of German investi- 
 gators — may account for his immoderate indulgence 
 in controversy. 
 
 According to Gumplowicz the State "is a social phe- 
 nomenon due to the natural action of social factors, and 
 whose development is dependent upon their further 
 operations."^ The essential characteristics of the State 
 
 'The works of Gumplowicz here pertinent are: "Rasse und 
 Staat, Eine Untersuchung iiber das Gesetz der Staatenbildung," 
 Vienna 1875. This smaller volume contains the nucleus of the legal 
 economic views of Gumplowicz. See especially pp. 6-8, 13-15, 
 26, 30, 50. "Der Rassenkampf, Soziologische Untersuchungen," 
 Innsbruck 1882 (translated into French by Charles Baye, Paris 
 1893, "La Luttedes Races," and into Spanish, "La Lucha de Razas," 
 Madrid 1894), "Grundriss der Soziologie," Vienna 1885. "Philoso- 
 phisches Staatsrecht" (in the second edition the title was changed 
 to "Allgemeines Staatsrecht," Innsbruck 1897). "Die soziologische 
 Staatsidee," Festschrift der k. k. Karl-Franzens-Universitat zur 
 Jahresfeier am November 15, 1892. Graz 1892. "Soziologie und 
 Politik," Leipzig 1892. "Geschichte der Staatstheorien," Inns- 
 bruck 1905 (pp. 434-436, 446^91, 559 seq.). 
 
 * "Grundriss der Soziologie," p. 113. 
 
§44] SOCIOLOGICAL SCHOOL ' 357 
 
 are the same as those enumerated by Schleiermacher : 
 "Rulers or a ruUng class and subjects; the governing 
 authorities and the governed classes: these are the eter- 
 nal, unchangeable, fixed factors of the State. There 
 never was, nor does there now exist, a State v/ithout this 
 antagonism." 1 ^ The nature of the State is expressed 
 as "a division of labor made and maintained by coercion 
 among a number of social elements organically united 
 into a whole. The development of this composite unit 
 proceeds by a struggle among its constituents for 
 the purpose of determining their relative powers — the 
 issue in each case being expressed in law and statutes."^ 
 
 The constructive factor of the State and of its evolu- 
 tion is not the individual nor the family, but the social 
 group involving the dualism of the ruler and the ruled. 
 "The elements of the State are not human atoms, nor 
 family cells, but human groups or races; in them the 
 State originates, and through them it continues. Those 
 who emerge from the struggle as victors, form the ruling 
 classes; the conquered and subjugated form the labor- 
 ing and serving classes."* 
 
 Gumplowicz does not favor the socialistic principle 
 which becomes operative as class conflict, but gives a 
 sociological interpretation to the struggle of races which 
 anthropology reveals. In so doing he was influenced 
 by the anthropological investigations of Count Gobin- 
 eau,^ and may have drawn a suggestion from the racial 
 
 1 "Allgeraeines Staatsrecht," pp. 33 seq. ; see also "Rasse und 
 Staat," pp. 6-8, 13-15, 26, 30, 50. 
 
 ^Gumplowicz, "Grundriss der Soziologie,'' pp. 115 seq. and 127. 
 
 ' "Die soziologische Staatsidee," p. 65. 
 
 * "AUgemeines Staatsrecht," p. 116. See particularly pp. 110- 
 136; "Grundriss der Soziologie," pp. 115 seq., 127-135. 
 
 ^Gobineau, "Essai sur I'lnegalite des Races Humaines," 4 vols., 
 first edition, Paris 1853-1855. 
 
358 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 factions in Austria. He thus makes sociology the study 
 of the "interactions of social groups, which obey natural 
 laws as unalterable as those controlling the movements 
 of the sun and planets. . . . Sociology is not concerned 
 with judgments of value." ^ For "individual actions 
 are based not upon physiological but upon social motives. 
 The influence of environment always and in all situa- 
 tions determines the action of the individual."^ 
 
 4: Ratzenhofer. Gustav Ratzenhofer's (d. 1904) 
 work, "Die Soziologische Erkenntnis,"* is based upon 
 that of Gumplowicz. He holds that when^ "two com- 
 munities become one, the victorious tribe annihilates 
 the conquered, not objectively, but politically, so far 
 as concerns its existence as an independent social factor. 
 . . . Despite this subjection, the conquered tribe con- 
 tinues its social life; in the reorganized community it 
 constitutes a lower stratum of society, and social inequal- 
 ity becomes established. The subjugated group be- 
 comes a slave, or at least, a laboring class; and the 
 conquerors assume a privileged position. This relation 
 between the dominant and the subject class is the exter- 
 nal expression of the communal bond. . . .Through the 
 
 In "Der Rassenkampf," p. 38, note 1, Gumplowicz mentions that 
 he was influenced by Gobineau's essay, and makes a long citation 
 therefrom, with the conclusion, "Let us compare not men but 
 groups." 
 
 ^Gumplowicz, "Soziologie und Politik," pp. 54, 53-57, 67-100, 
 89, 89-95. See also Gumplowicz, "Die soziologische Staatsidee," 
 pp. 40, 56. 
 
 ^ It is not possible within the compass of this work to refer to the 
 extremely voluminous literature of sociology. It will be sufficient 
 to mention the more important works. 
 
 ' "Positive Philosophie des sozialen Lebens," Leipzig 1898. 
 
 * "Die soziologische Erkenntnis," pp. 156-164. 
 
§44] SOCIOLOGICAL SCHOOL 359 
 
 inequality thus resulting, law replaces custom as a regu- 
 lative force."' 
 
 Ratzenhofer's "Positive Ethik, die Verwirklichung 
 des Sittlich-SeinsoUenden," a philosophy of "monistic 
 positivism,"^ ' regards ethics sociologically, and trans- 
 fers the principles of sociology to ethics. "A significant, 
 though formal requisite of ethical interpretation" is 
 the proposition "that moral obligation is derived from 
 the evolution of primitive might, that immorality is 
 a disturbance of such evolution, and that the ethical 
 will reflects the inherent spirit of such evolution." 
 This is the Stoic "living according to nature," restated 
 in terms of modern evolution. 
 
 The ethical sense originates in the tribal feeling which 
 transfers "the individual's effort to develop his individ- 
 uality to a community of kin." The essence of the ethical 
 sense is "renunciation exercised by the individual in 
 favor of the species." Evil is what is useful to the indi- 
 vidual and harmful to the community, and good is what 
 is beneficial to all. The ethical principle demands the 
 "development from what is useful to the individual to 
 what is useful to the community." 
 
 According to positive ethics based upon human nature, 
 the source of morality is not the will but the develop- 
 ment of inherent natural interest. Self-interest presents 
 the following varieties: physiological interests directed 
 towards the end of normal physical development; racial 
 interests arising from the family relation, and directed 
 
 ' "Die soziologische Erkenntnis," pp. 157 seq. 
 
 2 His other works are: "Wesen und Zweck der Politik." Part of 
 the "Soziologie und Grundlage der Staatswissenschaften," 3 vols., 
 Leipzig 1893. (Preliminary to "Soziologische Erkenntnis.") "Der 
 Positive Monismus und das einheitliche Prinzip aller Erschein- 
 ungen," Leipzig 1899. (Preliminary to "Positive Ethik.") 
 
 3 "Positive Ethik," Leipzig 1901. 
 
360 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 towards the maintenance and perpetuation of the species; 
 individual interests or self-interest, by the extension 
 of the physiological; social interests, by the extension 
 of the racial interests, including all manner of communal 
 interests reflected in social institutions; transcendental 
 interests, which arise through the idealistic expansion 
 of individual and social interests, and through which 
 the individual "feels himself consciously at one with 
 the enduring primal motive force." 
 
 Each of these five spheres of interest is further devel- 
 oped in its ethical aspects. Sociology teaches that indi- 
 vidual and social prosperity depends upon adaptation to 
 natural processes, among which Ratzenhofer includes 
 the facts of sociological evolution. These must direct 
 the expressions of the will. The desirable and the moral 
 are thus prefigured in the nature of the primal force. 
 "Virtues, whether individual or social, express limita- 
 tions within the sphere of the will exercised under nat- 
 ural laws." Christian ethics disregards the ethical sense 
 of the individual as directed towards himself; utilitar- 
 ianism disregards it as directed towards others, and 
 ignores the social requirements. Neither tendency can 
 harmonize the several interests. "The harmony of in- 
 terests is based upon the interests of the individual 
 directed towards his bodily, intellectual, and moral im- 
 provement, and upon racial interests directed towards 
 the common purposes of social institutions. Of these 
 the individual is a part, and in their behalf he is ready 
 to bring larger sacrifices according as they make a closer 
 racial and cultural appeal; these, in turn, he forms into 
 a transcendental interest, thereby feeling his partici- 
 pation in the laws of the primal force." Ratzenhofer 
 finds the most durable guaranty of a harmony of interests 
 in the moral and intellectual concordance of the motives 
 inspiring ideals. The monistic position, based upon a 
 
§ 44] SOCIOLOGICAL SCHOOL 361 
 
 positive knowledge of nature in its ethical bearing, 
 furthers a harmony of interests' and collective purposes. 
 Every expression of the will is guided by a moral 
 norm, which in the concrete is prescribed by natural 
 laws favoring the interests of the race. "What is con- 
 formable to natural law represents the absolutely desir- 
 able, and what is collectively beneficial to mankind 
 represents the morally desirable, which coincides with 
 human purposes as ordained by nature." In addition 
 to the morally desirable there is the relatively desirable, 
 that is, "the moral norm which is acknowledged as col- 
 lectively beneficial at a given stage of intellectual devel- 
 opment and as established by custom and reason." The 
 relatively desirable represents the current stage of 
 morality "since it is not possible, and indeed harmful, 
 and therefore immoral, to attempt to short-circuit stages 
 of development. Every period and every people has its 
 morality; and radically to depart therefrom may pro- 
 duce moral results as undesirable as would departure 
 from the laws of nature." Conscience represents the 
 ethical force of man. The appeal of the relatively 
 desirable to human endowment awakens "moral sugges- 
 tions ; and these, in so far as they contain the rudiments 
 of an ethical principle, lead to the moral sense or con- 
 science. Conscience is a product of the development 
 of innate interest, and asserts itself as soon as racial 
 interests show signs of social interest." Conscience 
 gives rise to the sense of responsibility as exercised 
 towards one's own aff'airs, or towards others ; and from 
 it arises the appearance of free action. Conscience is 
 to be developed by the education of the young, and 
 the enlightenment of the mature. Conscience is the ethi- 
 cal regulator in all relations of life; in personal service, 
 in the relation of the sexes, in business, in politics, in 
 science, and in art. It is developed in school and 
 
362 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 through the moralizing influence of labor. The expres- 
 sions of conscience are the virtues. 
 
 Side by side with the moral qualities of the individual 
 are those due to social organization. Sociology teaches 
 that men adapt the expression of their desires to a 
 general purpose. "The social organization thus acquires 
 an active will which is more than the aggregate of 
 individual wills, and is indeed the resultant of the forces 
 of the constituent wills." "This distinction between 
 the social will and the will of the individual has induced 
 many writers to speak of a 'folk-soul,' and to accept a 
 racial psychology, — such acceptance in some cases 
 being inspired by hostility to sociology, and by a desire 
 to replace sociology, which is slowly attaining a proper 
 scientific insight, by something novel and barely 
 intelligible." This criticism of Ratzenhofer's is not 
 merely unjust but is based upon a serious error. The 
 distinction between the will of society and the aggregate 
 of individual wills is neither new nor a contribution of 
 sociology. Rousseau spoke of a "volonte gen6rale," 
 and a "volenti de tous"; and racial psychology is older 
 than Gumplowicz. Indeed the first volume of the "Zeit- 
 schrift fiir Volkerpsychologie und Sprachwissenschaft" 
 appeared in 1859-60. 
 
 The origin of the social will according to Ratzenhofer 
 lies not in the spontaneous conscious processes of the 
 individual, but in external influences, — alike in the pre- 
 vailing purposes and expressions of one's fellow men, 
 and in prevalent conditions. Social virtues are such as 
 family feeling, racial and national consciousness, the 
 latter growing into patriotism. Social consciousness 
 represents the consummation of a complete morality. 
 However strong his communal sense, every man, in 
 following the precepts of positive ethics, must retain 
 his legitimate personal interests, and protect them while 
 
§44] SOCIOLOGICAL SCHOOL 363 
 
 yet bringing them into accord with the communal 
 interests. 
 
 Viewed historically, the sociological characteristic of 
 ethical development is thus expressed: "Through the 
 struggle to gain favorable conditions of life, mankind 
 rises from a mere instinctive expression of the social 
 nature to an individualization of interest as yet without 
 a conscience, but making morality necessary; in turn 
 conscience is awakened and directs self-interest into 
 social channels, and — the conditions of life having been 
 satisfied — makes possible the reign of morality by 
 subjecting vices to an ideal moral control." To make 
 a nation successful in a struggle for existence there is 
 no better way than to accept the aims and purposes 
 which positive ethics recognizes as morally desirable.^ 
 
 Ratzenhofer's sociological ethics aims to show that 
 social utilitarianism is in accord with nature and natural 
 law. As to the practical value of his sociological posi- 
 tion as endorsed by Gumplowicz, a few objections may 
 be noted. Positive ethics, as every form of utilitarian- 
 ism, fails to find a proper support in the facts; it is 
 likewise inconsistent with sociological principles. For 
 such principles, holding that social evolution proceeds 
 according to natural laws, would lead to fatalism, 
 resignation, the acknowledgment of human impotence 
 in the presence of the mighty forces of nature ; in which 
 case it is futile to enlarge upon what may be ethically 
 desirable. Spinoza was unable to construct an ethics 
 upon the Stoic position, and found a way out by recourse 
 to individual utilitarianism. Similarly Ratzenhofer, in 
 an attempt to construct an ethical system, draws upon a 
 social utilitarianism, and reaches a compromise which 
 
 > "Positive Ethik," pp. 34, 60 seq.; 36; 51; 66; 67; 68-113; 113- 
 115; 116-121; 121-128; 128-131; 138-211, 231-291; 212-223, 223- 
 230; 292 seq.; 304-318, 304, 309, 317; 327, 333. 
 
364 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 is hardly a philosophic solution; thus again showing 
 the failure of sociology to hold consistently to its funda- 
 mental principle of accordance with natural law.^ 
 
 1 Of the most recent contributions to sociology the following may 
 be referred to: The writings of Alb. Herm. Post, for which see 
 §47; those of G. Tarde, § 49; of Adolf Bastian, whose contri- 
 butions are mainly ethnological, serving to illustrate the descriptive 
 data; of Paul v. Lilienfeld, whose position is similar to that of 
 Schdffle; of Gustave le Bon, who applies to sociology the principles 
 of psychology and mental evolution; of Letourneau, who em- 
 phasizes the comparative study of social organization in animal 
 societies and among primitive peoples; of Roberly, who treats 
 sociology philosophically; of Lippert, who approaches the subject 
 with a special interest in the science of religion; of Worms, who 
 considers society a distinctive organism; of Giddings, who regards 
 society as a complexly organized expression of psychological forces, 
 and says, on p. 420 of his "Principles of Sociology": "Certainly 
 it is not a physical organism. Its parts, if parts it has, are physi- 
 cal relations. ... A society is an organization, partly a product 
 of unconscious evolution, partly a result of conscious planning. An 
 organization is a complex of physical relations"; of Ludwig Stein, 
 who has touched upon several phases of sociology as reflected 
 in philosophy, in law, and in practical movements; oi Ernst Victor 
 Zenker, who traces the development of society from its most 
 primitive stages to its most complex differentiation in the interests 
 of a general philosophical interpretation; of Coste, who emphasizes 
 the objective character of sociology, which finds its material in 
 history and ethnology ("Society must be studied as though we 
 formed no part in it, as though we were not men belonging 
 to this planet"); of Heinrick Schurtz, who traces the fundamen- 
 tal forms which society assumes; of Friedrich v. Baerenbach, who 
 presents a convenient survey of the sociological positions; of Paul 
 Barth, who takes a sociological view of the history of culture, 
 and of the phenomena of comparative psychology; of Lester F. 
 Ward, who interprets the movements and forces of modern society 
 as illustrations of comprehensive sociological principles. (See also 
 bibliographical note in § 51.) As a bibliographical guide to these 
 writers, reference may be made for Le Bon to his "L'Homme et les 
 Societ^s, leursOrigines et leur Histoire." Parti: "L'Homme, D6vel- 
 oppement Physique et Intellectuel." Part II: "Les Societfes, leurs 
 Origines et leur Developpement," Paris 1881 (particularly pp. 287- 
 
§ 44] SOCIOLOGICAL SCHOOL 365 
 
 5: Recent Representatives: Tonnies, Kloppel, Berge- 
 MANN. The distinction of Ferd. Tonnies ^ rests upon 
 his separation of the terms "community," "Gemein- 
 schaft," and "society," "Gesellschaft," and upon his 
 original development of these conceptions as expressions 
 of the human will. Every contact of human wills has a 
 mutual effect. In so far as each tends to support the 
 other, they are affirmative, make for a "unity in the 
 
 317, 344-392); for Letourneau, "La Sociologie d'apres I'Ethnogra- 
 phie," Paris 1880; for Roberty, "La Sociologie, Essai de Philosophie 
 Sociologique, Paris 1881; f or ii'^^eri, Der Seelenlcult in seinen Bezie- 
 liungen zur althebraischen Religion," Berlin 1881; "Die Religionen 
 der europaischen Kulturvolker, der Litauer, Slaven, Germanen, 
 Griechen und Romer, in ihrem geschichtlichen Ursprung," Berlin 
 1881; "Allgemeine Geschichte des Priestertums," 1883, 1884; and, 
 "Die Geschichte der Familie," Stuttgart 1884; for Worms, "Organ- 
 isme et Societe," Paris 1896 (particularly pp. 17-41); iorCiddings, 
 "Principles of Sociology," New York 1896; ior Ludwig Stein, "Die 
 soziale Frage im Lichte der Philosophie," second edition 1903, and, 
 "Wesen und Aufgabe der Soziologie," an address at the third 
 sociological congress in Paris, 1897; for Zenker, "Die Gesellschaft," 
 Vol. I, 1899, Vol. II, 1903; for Coste, "Les Principes d'une Sociologie 
 Objective," Paris 1899 (particularly pp. 26-51, 104-111); for 
 Heinrich Schurtz, "Altersklassen und Mannerbiinde," Berlin 1902 
 (particularly pp. 173-189); for Friedrich v. Baerenbach, "Die Sozial- 
 wissenschaften," Leipzig 1882; for Paul Barth, "Die Philosophie der 
 Geschichte als Soziologie," Leipzig 1897. A suitable introduction 
 to the study of sociology is that by R. Eisler, "Soziologie. Die 
 Lehre von der Entstehung und Entwickelung der menschlichen 
 Gesellschaft," Leipzig 1903. In addition, the "Archiv fiir soziale 
 Gesetzgebung und Statistik," Vol. I to XX; N. S. Vols. I and II, 
 1904-05, contains a survey of the social conditions of all lands. 
 The first 18 volumes were edited by Heinrich Braun, and the later 
 volumes by Sombart, Max Weber, and Edgar Jaffe. 
 
 1 His chief works are: "Gemeinschaft und Gesellschaft. Abhand- 
 lung des Kommunismus und des Sozialismus als efnpirischer Kultur- 
 formen," Leipzig 1887. Also "Uber die Grundtatsachen des sozialen 
 Lebens" ("Ethisch-sozialwissenschaftliche Vortragskurse,'' published 
 by the Swiss society for ethical culture. Vol. VII), Bern 1897. 
 
366 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 plurality, or a plurality in the unity." The group 
 resulting from this positive relation is called an associa- 
 tion. "The relation itself, and hence the association, 
 is to be regarded either as a real and organic life, which 
 is characteristic of the community, or as an ideal and 
 mechanical formation, which is the concept of society." 
 A community is the primitive living together of men 
 as conditioned by natural lines of kinship, — community 
 of blood or propinquity, community of habitat. The 
 communal relations extend from the home to the village, 
 tribe, nation, and city. Within the city appear dis- 
 tinctive communal relations based upon community of 
 worship, fraternal orders, the religious congregation, 
 "Gemeinde," "the last being the supreme expression of 
 the idea of community." 
 
 In comparison with community, society is an artificial 
 and external product of civilization. "Society is an 
 aggregate formed by convention and natural law, and 
 is conceived as a composite of individuals bound by 
 natural and artificial ties, whose wills and spheres of 
 activity are variously related, and yet remain inde- 
 pendent without reciprocal subjective influence." So- 
 ciety is the world of affairs, particularly of business, 
 dealing with contract, trade, money, credit, etc. Society 
 tends towards the world's markets and great cities. 
 
 For Tonnies the will or intent is the standard cri- 
 terion differentiating between community and society. 
 The will develops in two directions, either as a natural 
 will, "the psychological equivalent of the human body 
 or the principle of the unity of life," or as an artificial 
 product, as "the issue of thought." The first of these 
 phases he calls "Wesenwille," the will as it is by nature, 
 the second, "Willkiir," arbitrary will. The natural 
 will spontaneously leads or disposes to community, while 
 the arbitrary will leads to society. All social phenomena 
 
§44] SOCIOLOGICAL SCHOOL 367 
 
 are derived either from the natural will or from the 
 arbitrary will. The community expresses itself in law 
 primarily as it affects the individual, "the self," or 
 "subjective agent of the natural will," and as it affects 
 possession, real estate, and the family. Society appears 
 in law as it affects the person, that is, recognition of 
 personality in the legal sense, as it affects assets, money, 
 and rights of obligation. Whatever the human will 
 produces, including the law, is at once natural and arti- 
 ficial. The trend of national development is towards an 
 increasing social complexity.^ 
 
 In his address, "Uber die Grundtatsachen des sozialen 
 Lebens," Tonnies makes marriage and property the 
 fundamental facts of social life. 
 
 KlQppel takes a most comprehensive view of society. 
 "Every variety of communal association among men 
 belongs to the relations comprised under the term 
 "society." Society as constituted, or "natural society," 
 represents "the totality of all relations of authority and 
 dependence among men." The social struggle creates 
 positions of vantage. The law intervenes to set limits 
 to these positions of social vantage growing out of 
 economic conditions. Historical development shows 
 that the purpose of governmental authority is the 
 establishment and maintenance of law and order for 
 the promotion of public welfare.^ 
 
 Paul Bergemann may be classed among the sociolo- 
 gists by reason of his "Ethik und Kulturphilosophie," ' 
 in which he represents the ethos as the resultant of the 
 
 1 "Gemeinschaft und Gesellschaft," pp. 3; 9-45, 27, 284-287, 
 289 seq., 290-292; 46-95, 287-290; 99-194, 99 seq., 183, 206-209, 
 212 seq., 230; 212-217; 227 seq., 245 seq., 289 seq. 
 
 2 "Staat und Gesellschaft," Gotha 1887, pp. 6; 9; 153 seq., 281 
 seq. 
 
 3 Leipzig 1904, pp. 69-72. 
 
368 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 rivalry between two classes. "Out of this struggle 
 there emerges the moral 'pathos,' . . . and ultimately 
 there prevails, as morality, as custom sanctioned by 
 morals, the platform of the victorious party — whether 
 liberal, adjusted to the newer conditions, or conserva- 
 tive of the older traditions." "• 
 
 6: Critical Summary of the Sociological Position. 
 The meritorious service of the sociological school consists"! 
 in its dispossession of the individualistic position of the 
 older doctrines through its emphasis of the importance of 
 the group, the class, the social solidarity. Nor is it 
 fair to minimize this service, as Adolf Merkel and others 
 have done, by objecting that the group or class is com- 
 posed of individuals, and that these are the true agents 
 of the processes which sociology ascribes to the group. 
 The group as such represents a social point of vantage, 
 
 — a surplus of power above that of the individuals com- 
 posing the group. The correct emphasis of this fact 
 remains to the credit of sociology. The serious fault 
 of the sociological school, particularly as expounded by 
 Gumplowicz, is its one-sidedness. This appears first in 
 the complete absorption of the individual in the class. 
 His position and efficiency as an individual, apart from 
 his status as a member of the group, are completely 
 ignored or denied. The individual is considered fatal- 
 istically, as determined by inherited or imposed in- 
 fluences; his spontaneity and initiative are not taken 
 into consideration. Although sociology replaces the\ 
 doctrine of natural law ■ — according to which the State I 
 is composed of individuals all occupying a like position V 
 
 — by the correct view according to which mankind was | 
 always socialized, it nonetheless falls into an errory 
 analogous to that of the naturalistic conception. For 
 while natural law regards the State as composed of 
 
 1 "Ethik und Kulturphilosophie, p. 70. Also above, § 42. 
 
§ 44] SOCIOLOGICAL SCHOOL 369 
 
 units, Gumplowicz regards it as similarly composed of 
 aggregates or groups; and the State becomes the con- 
 flict of groups. The independent existence of the 
 State and of economics for their own ends disappears. 
 Of the three, the individual, the group, and the State, 
 Gumplowicz recognizes only the group. For socialism 
 the economic group is everything, and the State and the 
 individual are nothing; so with Gumplowicz, the indi- 
 vidual and the State disappear in the ethnological group. 
 In the second place, the State is slighted by the sociol- 
 ogist in that its functions are replaced by the so-called 
 social functions, which in reality form a part of national 
 and public life. Thirdly, the sociological school over- 
 emphasizes the factor of conflict in the rivalry of the 
 several classes for supremacy and vantage. The factors 
 of morality which antagonize conflict are not recognized 
 and acknowledged in their true importance.' Man is 
 made merely a more highly organized type of animal, 
 and his desire for power, his most distinctive charac- 
 teristic, the commanding importance of the ethical 
 side of his nature, is disregarded. 
 
 The service of greatest practical value rendered by 
 Gumplowicz is his emphasis, as against the levelling 
 tendencies of modern social ethics, of the importance 
 of classes, and of the tendency inherent in each class to 
 assert itself in its conflict with other classes. His 
 failure lies in the one-sided exaggeration of what, in its 
 place, is a fundamental sociological truth. . 
 
 7: Applications OF THE Sociological PosiTioixt. (a) To 
 Corporations. Otto Gierke's (b. 1841) "Genossen- 
 schaftstheorie" forms a corollary to sociology. While 
 in appearance a contribution to the history of law, 
 it is primarily a contribution to sociology from the 
 
 'They are regarded and considered only as supporting factors. 
 See Gumplowicz, "Die soziologische Staatsidee," pp. 57 seq. 
 
370 SOCIOLOGICAL PHILOSOPHIES [Ch. Vll 
 
 point of view of the professional jurist. His theory 
 bears the same relation to the jurisprudence of his day 
 as sociology bears to political economy based upon the 
 individualistic position.' "What man is he owes to 
 association among men." These introductory words 
 express the thought which is elaborated into the central 
 conception of Gierke's work. 
 
 The importance of association had been neglected 
 except by Beseler^ (1809-1888), a forerunner of Gierke. 
 In German law the association has always been an 
 important legal institution. Association falls under 
 the generic type of the corporation; as opposed to a 
 partnership, a corporation in the legal sense is based 
 upon a permanent co-operation. Hereby the corpora- 
 tion acquires "a certain organic character which quali- 
 fies it to participate permanently in the life of the 
 State and in the law." Corporations are of two kinds: 
 they are either communities or associations. This is 
 Beseler's fundamental principle,' and is the position 
 developed by Gierke. In its narrow and technical 
 sense an association according to Gierke is "any cor- 
 
 ^ In addition to "Das deutsche Genossenschaftsrecht," 3 vols., 
 Berlin 1868, 1873, 1881, are to be noted: Gierke, "Die Genossen- 
 schaftstheorie und die Deutsche Rechtssprechung," Berlin 1887. 
 "Das Wesen der menschlichen Verbande," an address of October 
 15, 1902, Leipzig 1902 (particularly pp. 7 seq.). "Die Grundbe- 
 griffe des Staatsrechts und die neuesten Staatsrechtstheorien" 
 ("Z. f. d. g. Staatsw.," Vol. XXX, 1874, pp. 153-198, 265-335). 
 "tjber Laband's Staatsrecht und die deutsche Rechtswissenschaft" 
 ("Sch. Jahrb." VII, Vol. IV, 1883, pp. 1-99, particularly pp. 29 seq.). 
 See also Berolzheimer, "Rechtsphilosophische Studien," pp. 104- 
 115; 111, note 2; 112, note 1. 
 
 2 "Volksrecht und Juristenrecht," Leipzig 1843; especially "Das 
 Recht der Genossenschaft," pp. 158-194; "Begriff und Arten der 
 Genossenschaften," pp. 161-169. See also Gierke, "Das deutsche 
 Genossenschaftsrecht," I, p. 5. 
 
 ^Beseler, "Volksrecht und Juristenrecht," pp. 161 seq. 
 
§44] SOCIOLOGICAL SCHOOL 371 
 
 poration voluntarily formed, that is, an association 
 that has independent legal personality." In a larger 
 sense, communities ^ and the State ^ itself may be 
 ranged under the term "association." But State and 
 community are more than associations; their functions 
 and nature go beyond those of an association.' "As 
 against the 'persona ficta' the theory of association 
 sets up the conception of a corporation which treats 
 it as a real corporate personality; and this is the 
 essence of the theory of association." * The human 
 individual and the human community are true realities 
 possessing a unity of nature.* To this doctrine are 
 due the modern theories which oppose the assumption 
 of a legal fiction in regard to juristic persons — a fiction 
 surviving through inertia. 
 
 ^ "Das deutsche Genossenschaftsrecht," I, pp. 207 seq. 
 
 'Gierke, "Die Grundbegriffe," etc., Vol. XXX, pp. 304 seq.; 
 "Among the social institutions of men the State is conspicuous. 
 The essence of association within the State consists in its supreme 
 power to carry out the general will. It represents the collective 
 political life. Its essence is the general will; its manifestations, 
 organized authority; its purpose, conscious action." Accordingly 
 the State has "a real and peculiar nature" (p. 305). "The law of 
 the State invests its personal representatives, and corporate law 
 invests the personality of corporations, with the qualities derived 
 from the nature of the State or of the corporation, which give such 
 personal representation the value of a collective personality" 
 (p. 321). Gierke, "Das Wesen der menschlichen Verbande," etc., 
 p. 12:' "The organic view regards the State and other associations 
 as social organisms; it posits the existence of composite organisms 
 (the parts of which are human beings) as above individual organ- 
 isms." See also Gierke, "Laband's Staatsrecht und die deutsche 
 Rechtswissenschaft," p. 31. 
 
 ^Gierke, "Das deutsche Genossenschaftsrecht," I, p. 5. 
 
 * Gierke, "Die Genossenschaftstheorie und die deutsche Recht- 
 sprechung," p. 5. 
 
 ^ "Die Grundbegriffe des Staatsrechts und die neuesten Staats- 
 theorien" ("Z. f. d. g. Staatsw.," Vol. XXX, p. 301). 
 
372 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 The law dealing with the individual has its co-ordinate 
 counterpart in the law of association.'- This law is 
 social law when applied to the largest social interests, 
 culminating in the law of the State. The two great 
 varieties of social organizations in German law are 
 associations and the foundations which form their 
 complement. The theory of association is completed 
 by the theory of foundations. 
 
 Gierke clarifies the legal character of associations in 
 German law, and throws light, from more than a techni- 
 cal aspect, upon the importance of the social structures 
 which are legally organized and co-ordinate with, as 
 well as in part transcending, the status of the individual 
 and his legal rights. 
 
 (&) Penology. The dominant tendency in crim- 
 inology is sociological.^ Ferri ^ (b. 1856) may be 
 considered the founder of the sociological or positive 
 criminology, and von Liszt ^ (b. 1851) its leading 
 
 * "Die Genossenschaftstheorie," etc., pp. 6 seq., 10, 10 seq. 
 
 ^v. Liszt, "Lehrbuch des Deutschen Straf rechts, " twelfth and 
 thirteenth edition, Berlin 1903, pp. 65-88. Auer, "Soziales Straf- 
 recht, Ein Prolog zur Straf rechtsreform." Munich 1903, pp. 1-8. 
 Berolzheimer, "Die Entgeltung im Strafrechte,'' Munich 1903, pp. 
 136-145, 153-158, 446^80. 
 
 The sociological school, in the persons of its founders Ferri and 
 Garofalo, took its origin from Lombroso's criminal anthropology. 
 The anthropological phase of the subject, which considered the 
 physical and psychological deviations of the criminal from the 
 average man as its fundamental position and the basis for classifica- 
 tion of criminals, has a further value for penological reform in so 
 far as its conclusions are responsible for the recognition in legal 
 procedure of states of diminished responsibility — a problem brought 
 forward by the sociological criminologists. 
 
 'The chief works here pertinent are Ferri, "Das Verbrechen als 
 soziale Erscheinung'' (the German version by Kurella), "Bibliothek 
 f. Sozialwissenschaften," Vol. VIII, Leipzig 1896. 
 
 * Articles to be specially noted are "Der Zweckgedanke im 
 Strafrecht,""Z.f.d.g. Str.,"Vol. Ill, 1883, pp. 1-47. "Die psycho- 
 
§44] SOCIOLOGICAL SCHOOL 373 
 
 exponent. Its most distinguished representatives are 
 Prins (Brussels), G. A. van Hamel (Amsterdam), and 
 von Liszt. These men are the founders of the "Inter- 
 national Union of Criminal Law," which affords a 
 opportunity for all interested in criminal sociology to 
 unite in practical efforts with theoretical students inter- 
 ested in the administration of punishment. To the 
 above names there should be added Finger ^ (b. 1858), 
 von Lilienthal^ (b. 1853), the psychiatrist Aschaffen- 
 burg,3 Garofalo,* Sighele,^ Karl Stooss« (b. 1849) and 
 
 ogischen Grundlagen der Kriminalpolitik, "Z. f. d. g. Str.," Vol. 
 XVI, 1896, pp. 477-517. "Lehrbuch des Deutschen Stratrechts," 
 pp. 65-88. V. Liszt is one of the founders and publishers of the 
 "Zeitschrift fur die gesamte Strafrechtswissenschaft.'' 
 
 ^ "Das Strafrecht" ("Kompendien des Osterreichischen Rechtes," 
 Vol. I), Berlin 1894, pp. 2-26. "Lehrbuch des Deutschen Straf- 
 rechts," Berlin 1904, pp. 1-45. 
 
 ' "Der Stooss'sche Entwurf eines schweizerischen Strafgesetz- 
 buchs" ("Z. f. g. Str.," Vol. XV, 1895, pp. 97-158, 250-356. v. 
 Lilienthal is associate editor of this journal. 
 
 ' "Die verminderte Zurechnungsfahigkeit," "Artzliche Sachver- 
 standige Zeitung," V, p. 397. "Alkoholgenuss und Verbrechen, eine 
 Kriminalpsychologische Studie" ("Z. f. d. g. Str."), Vol. XX, pp. 80- 
 100. "Das Verbrechen und seine Bekampfung, Kriminalpsycholo- 
 gie fur Mediziner, Juristen und Soziologen, ein Beitrag zur Reform 
 der Strafgesetzgebung," Heidelberg 1903. 
 
 The "Monatschrift fur Kriminalpsychologie und Strafrechts- 
 reform," Vol. I, Heidelberg 1904-05, is edited by Aschaffenburg, 
 assisted by Alf. Klotz, xj. Lilienthal and v. Liszt. 
 
 * "Criminologia" ("Bibliotheca Anthropologico-Giuridica," Sen \, 
 Vol. H), 1885. 
 
 ' "Psychologie der Massenverbrechen" (trans, by Kurella), 
 Dresden and Leipzig 1897.. See also below, § 49. For Tarde, see also 
 §49. 
 
 ' " Vorentwurf zu Einem Schweizerischen Strafgesetzbuch." Gen- 
 eral Part: Prepared by Karl Stooss (translated at the same time by 
 Alfred Gautier into French), Basle and Geneva 1893. "Motiv zu 
 dem Vorentwurf des Schweizerischen Strafgesetzbuchs." General 
 Part. Karl Stooss, Basle and Geneva 1893. The position of this 
 
374 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 Lammasch 1 (b. 1853). This school considers crime 
 as a social phenomenon, as an anti-social act that must 
 be suppressed by society. The function of the law is to 
 protect social interests. The penal law is the inten- 
 sive protection of those interests that stand in peculiar 
 need of protection, that is, of legally recognized property. 
 Doubtless the sociological position as applied to 
 penology cannot be completely established;^ and the 
 discussions by penologists on the old and ever insoluble 
 question of the freedom of the will — which is made 
 necessary by the issue of determinism, and which has 
 caused a sharp division in the ranks of criminologists' 
 — recall the scholastic disputations. Nonetheless it is 
 
 project is given by Stooss (p. 84) in this statement: "A penal law 
 accomplishes its purpose only when it proves effective in reducing 
 crime." 
 
 Stooss, "Der Kampf gegen das Verbrechen," Lecture 1894. 
 "Schweizerisches Strafgesetzbuch," Basle and Geneva 1894. Stooss 
 is the editor of "Schweizerische Zeitschrift fiir Strafrecht." 
 
 'The works oiLammasch here pertinent are the following: "Krimi- 
 nalpolitische Studien" ("Im Gerichtssaal," Vol. XLIV, 1891, pp. 147- 
 248); and various smaller essays). 
 
 2 Article II of the Constitution of the I. K. V. (International 
 Union of Criminal Law) in a series of theses states the position of 
 the society. The first thesis expresses the fundamental purpose: 
 "The purpose of punishment is to make war upon crime as a social 
 phenomenon." Punishment, however, is not the sole instrument in 
 this movement. (Thesis 3.) 
 
 The statutes vary as recorded in the proceedings of the Inter- 
 national Union (Vol. I, Berlin and Brussels 1889). See below 
 § 47 for "Die Strafgesetzgebung der Gegen wart in Rechtsvergleich- 
 ender Darstellung." Kitzinger gives an account of the workings 
 of the International Union in "Die Internationale Kriminalistische 
 Vereinigung. Betrachtungen iiber ihr Wesen und ihre Bisherige 
 Wirksamkeit," Munich 1905. 
 
 ^Berolzheimer, "Die Entgeltung im Strafrechte," pp. 40-109, 157, 
 351 seq., 437 seq., 441, and the bibliography there referred to. 
 Also Berolzheimer, "Rechtsphilosophische Studien," pp. 10-14. 
 
§45] REALISTIC TRENDS 375 
 
 generally recognized that, especially in its practical pro- 
 posals, this school represents the progressive party in 
 penology. 
 
 § 45. Realistic and Historical Trends in Political 
 Economy and Sociology. Modern political economy 
 depends for its material upon history, observation, and 
 statistics; in other words, upon the empirical study of 
 facts. This the survey of recent literature abundantly 
 indicates. Confining the presentation to its chief repre- 
 sentatives, we may mention as earliest Knies* (1821- 
 1898), who distinctly takes the historical position; and 
 L. Brentano^ (b. 1844), who, commenting upon the failure 
 of the classical school, concludes that "the only method is 
 that of direct observation of economic phenomena." 
 Accordingly, "special or practical economics must be 
 emphasized, and the general or theoretical considerations 
 must be assigned a subordinate place. Indeed there is no 
 general economics. Any given economic relation is based 
 either upon agriculture, or industry, or commerce, or 
 
 1 Knies, "Die Politische Okonomie vom Geschichtlichen Stand- 
 punkte," a new edition of "Politische Okonomie vom Stand- 
 punkte der Geschichtlichen Methode," Braunschweig 1883, p. 23: 
 "The historical development of political economy has up to the 
 present been considered merely as a subject of historical investi- 
 gation and presentation. . . . One must be prepared for the 
 question, 'What purpose is served nowadays by tracing the historical 
 evidence for the theoretical opinions, ends, and arguments of former 
 ages,' since all such contributions have long since been superseded and 
 are now regarded as negligible or unsound. . . . The complete reply 
 to this objection will appear in due course. At the moment I note 
 that the lack of consideration of the historical development of eco- 
 nomic conditions, as well as of the principles of political economy, 
 must affect disadvantageously the position and service of a science 
 that is closely dependent upon an understanding of reality and which 
 must conceive its purpose in an historical evolutionary spirit." 
 
 ^L. Brentano, "Die Klassische Nationalokonomie." An address 
 delivered April 17, 1888 (Leipzig 1888, pp. 20-28, 28 seq.). 
 
376 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 trade, or service, or capital; and economic observations 
 are possible only in these several fields. Hence the large 
 number of studies in Germany in applied economics 
 during the last decades. Theoretical economics has 
 not been slighted, but the reconstruction of the science 
 has required fresh material. Those who accept this 
 position will naturally regard the historical study of 
 economic development and the description of present 
 economic conditions as of prime importance; and this 
 not because concrete conditions are decisive, or because 
 the theory of economics is to be replaced by its history, 
 but because economics requires the same change of front 
 which led the natural sciences to abandon a priori deduc- 
 tions in favor of an account of facts and processes." 
 For Brentano notes in his address entitled "Ethik und 
 Volkswirthschaft in der Geschichte,"* that the direct 
 observation of concrete phenomena leads to an insight 
 into "what in a given phenomenon is due to the inherent 
 nature of things, and what to accidental circumstances." 
 "All influence (of the State) upon the social life may be 
 regarded as desirable and just, only in so far as it does 
 not oppose the nature of things of which natural evolu- 
 tion is a part." Empiric obser\'ation leads to "a dis- 
 tinction between necessary factors and accidental 
 circumstances."^ Overlooking the fact that this view 
 contains a suggestion of the Stoic or the physiocratic 
 position in its assumption of a "recognized nature of 
 things" and of "necessary factors," one may ask 
 how shall the observer of economic development sep- 
 arate the essential from the accidental or abnormal? 
 How can observation determine whether, and to what 
 extent, socialism, or miners' strikes, or combinations, 
 or trusts, or general strikes, are justified? A study 
 
 1 November 28, 1901 ; second edition, Munich 1902. 
 
 2 Pp. 33, 38. 
 
§ 45] REALISTIC TRENDS 377 
 
 of facts can merely determine facts, but does not 
 afford a standard for a critical view of actual conditions 
 nor a proper basis for reform. While Schmoller (b. 
 1838), the most distinguished political economist of 
 the present day, endorses the point of view of the his- 
 torical school,* Carl Menger^ (b. 1840), and his Austrian 
 associates, maintain that economics at present under- 
 values constructive analysis and precise determina- 
 tion of fundamental concepts; and this criticism is 
 pertinent. The dominant school of political economy 
 is not yet free from the fetters of economic empiricism. 
 The collection and selection of material through histori- 
 cal and statistical study too completely absorb atten- 
 tion, and the fundamental theoretical problems are 
 slighted. The conviction must sooner or later be reached 
 that an extreme attention to the uninterpreted facts 
 can result in no permanent advance. Such conviction 
 would perhaps have been more promptly attained had 
 not idealism entered the field of political economy through 
 the dubious portal of social ethics. 
 
 The social-ethical formulation of political economy 
 certainly does not provide a satisfactory substitute. If 
 it holds to its own purposes,^ social ethics in reality 
 is applicable only to a limited field. If disposed as it is 
 
 • "Zur Methodologie der Staats- und Sozialwissenschaften" ("Sch 
 Jahrb." Vol. V, Part IV, 1883, pp. 239-258); p. 247: The historical 
 school represents "a return to a scientific conception of reality in 
 place of vague abstractions lacking all reality." 
 
 ^Carl Menger, "Untersuchungen uber die Methode der Sozial- 
 wissenschaften und der Politischen Okonomie insbesondere, " Leip- 
 zig 1883; "Die Irrtiimerdes Historismus in der Deutschen National- 
 okonomie," Vienna 1884. (This is a strongly personal reply to 
 SchmoUer's attack.) Schiiller, "Die Klassische Nationalokonomie 
 und ihre Gegner. Zur Geschichte der Nationalokonomie und 
 Sozialpolitik seit A. Smith," Berlin 1895. 
 
 ' See above, § 42. 
 
378 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 at present to encroach upon the entire domain of law 
 and economics, it is likely to obstruct a sound legal and 
 economic philosophy, and to obscure and distort by 
 vague phrases the fundamental principles of the philos- 
 ophy of law and economics. For it is pertinent and 
 important to consider that the social phenomena form 
 but a section of the larger sphere of government and 
 economics. The State is the source of law, and supplies 
 the formal bond of the law which embraces and holds 
 together the community. If the State were to dis- 
 appear, law would likewise go, for it originates and 
 develops only in and through the State ; without it society 
 would be nothing but a loosely bound aggregate. Eco- 
 nomics represents the content aspect of government — 
 the conditions under which law finds its application. 
 It is the economic life that makes government and law 
 something more than empty terms, and endows them 
 with a vital meaning. If law were to disappear, then 
 government and economics would likewise disappear 
 both in form and substance, and what would remain 
 would be society; or, expressing the same thought posi- 
 tively, social life consists of the free spontaneous ex- 
 pressions, activities, and operations of individuals and 
 of their associations so far as these are not an outcome of 
 the law. The members of the community in their spon- 
 taneous activities form society, and the part which 
 society plays is thus limited. The importance of society 
 lies in its supplementing of government and law in sit- 
 uations which the latter cannot and should not cover; 
 and again, in the cultural preparation which it supplies, 
 in the currents of interest which it starts, that in turn 
 lead to changes in government and law. 
 
 However there are many good reasons why "society" 
 should be assigned a large efficiency and scope, inde- 
 pendent of whether we agree or not that the govern- 
 
§45] REALISTIC TRENBS 379 
 
 mental functions shall likewise be considered as in part 
 belonging to its domain. Such extension of its influence 
 is favored by historical study, which shows that the 
 State is not built up of single individuals but is composed 
 of group formations representative of "'society." Yet 
 it is not to be overlooked that such communal groups 
 as existed previous to the establishment of government 
 and law, for which we use the term "society," are some- 
 thing wholly different from the "society" of the present 
 day. Primitive conditions, it is true, furnish the fac- 
 tors necessary for the foundation of government and 
 law. For primitive times, primitive society satisfied the 
 needs which at present require the joint activities 
 of government and society. The society of primitive 
 times embraced the entire range of communal interests, 
 while the "society" of the twentieth century represents 
 such communal interests as are sustained apart from 
 government and law. Pre-governmental society and 
 society within an established State are wholly distinct. 
 
 The socialistic position favors the view of society as 
 absorbing the State; it replaces the State as it now is 
 by the State as it will come to be; yet such a State of 
 the future is no longer a State in the technical sense, 
 but the replacement of the State by "society." Social- 
 ism regards the State as a systematic economic and polit- 
 ical oppression of the working classes by the minority 
 of capitalists and ruling interests. In place of this 
 autocracy based upon the arbitrary and unrestricted 
 control by capital, it advocates the associative organiza- 
 tion of manufactures and resources, the regulation of 
 labor, and the fair distribution of wages. The whole 
 of public economic life is to be comprehended in a sort 
 of universal company, organized to control all public 
 affairs ; and such a company would be "society." Accord- 
 ingly the socialistic State of the future, which socialism 
 
380 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 regards as a just State, by absorbing the State in "so- 
 ciety," would replace capitalistic control, and establish 
 a just law instead of class legislation. Thus society 
 assumes its place in the philosophy of government as 
 the supposed representative of a just economic order 
 and organization — with the implication that govern- 
 ment and law, as at present formulated, involve injus- 
 tice. These socialistic views of justice make social ethics, 
 social politics, social reform, the true expression of a 
 righteous social order; they stand for the higher and 
 the better, as against the unjust defective government 
 and law of the present. This, however, is the converse 
 of the true relation; instead of considering society as 
 a division of the State, the State is made to appear as 
 subordinate to society, and in addition, as an imperfect 
 unregenerate institution. 
 
 Finally, the exaggerated importance attached to "so- 
 ciety," and to "social ethics" resulting therefrom, is, 
 in my humble opinion, due to the fact that too many 
 non-jurists occupy themselves with the philosophy of 
 government and law, and therefore are disposed to re- 
 place the definite, though complex and difficult concep- 
 tion of government and law, by the more elastic and 
 vague one of society. "Society" is more readily man- 
 aged ; it is like a lay figure upon which any sort of gar- 
 ment may be neat'.y fitted. The defiiniteness of legal 
 concepts gives way to the foggy confusion of social- 
 political, social-reformatory, and social-ethical discus- 
 sions, fertile in proposals that prove to be valueless and 
 ineffective when philosophically tested. A return to 
 legal and economic philosophy remains the sole scien- 
 tific procedure. 
 
 This digression was necessary to make clear the weak- 
 nesses of social ethics. The classical political economy 
 regarded too slightly the realities and was too much 
 
§ 46] THEORY OF NORMS 381 
 
 given to speculation; the historical-empirical school 
 kept so closely to the facts that it slighted the theoretical 
 foundations of economic principles. And though it is 
 true that this school regarded the collection and order- 
 ing of its material as a preparatory procedure to supply 
 the data for a later philosophical construction, it is 
 much to be feared that if the material thus collected 
 is all that is available, the construction will be indefinitely 
 postponed. Like brick and mortar, facts need the well- 
 devised plan of an architect; the plan cannot be derived 
 from the building materials alone. 
 
 § 46. The Theory of Norms. Binding's (b. 1841) 
 "theory of norms" is derived from criminal law and 
 belongs primarily to general legal science. ^ It is, how- 
 ever, of import for the philosophy of law and govern- 
 ment, in that it upholds governmental authority dis- 
 tinctively as the type of the legal imperative. Binding 
 holds that what the criminal transgresses is not the 
 particular statute applicable to his offense, but the under- 
 lying norm or principle which finds expression in such 
 statute.^ Criminal statutes are in the nature of imper- 
 atives or regulating principles, designed "to provide 
 penal regulations and to determine their content . . . 
 as affecting two classes of persons: those possessing the 
 
 , ^Binding, "Die Normen und ihre Ubertretung. Eine Unter- 
 suchung iiber die Rechtmassige Handlung und die Arten des Delikts.'' 
 Vol. I: "Normen und Strafgesetze" (1872), second edition, Leipzig 
 1890; Vol. II: "Schuld und Vorsatz," Leipzig 1877. 
 
 Binding, "Handbuch des Strafrechts," Vol. I. {Binding, "Hand- 
 buch der Deutschen Rechtswissenschaft," VII, I, 1) Leipzig 1885, 
 pp. 155-222. "Grundriss des Geraeinen Deutschen Strafrechts," 
 I, fifth edition, Leipzig 1897, pp. 58-72. (The sixth edition, Leip- 
 zig 1902, was not accessible t6 me.) 
 
 2 "To be liable to punishment involves that the offender must 
 have acted as set forth in" [that portion of the law which] 
 "specifically characterizes punishable actions." "Normen," I, p. 4. 
 
382 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 right of punishment [that is, the right of criminal sanc- 
 tion], and those against whom it is directed." Criminal 
 laws attempt to "regulate . . . the relation between 
 the State and the offender; and pertain primarily to 
 the State as the maker of criminal laws, and secondly 
 to the offender under such laws. . . . Criminal statutes 
 include all legal principles which standardize the con- 
 ditions of application, the nature and the consequences 
 of violation, of the legally established duties of criminal 
 law." It is the legal nature of these norms that Bind- 
 ing unfolds, and ably and effectively develops. 
 
 The governmental authority exercises a "right to 
 exact conformity." Such authority is forcibly directed 
 against those who do not "conform." As against the 
 transgressor "the law that is transgressed takes the 
 form of a right to coercion by reason of such transgres- 
 sion. The person of the one who disregards the law 
 becomes forcibly subject to the power of the law, so that 
 it may be felt and known which is master — ■ the will of 
 the law or the will of the individual. This subjection 
 to coercion in behalf of the maintenance of the law, this 
 enforced conformity, which is somewhat inaptly de- 
 scribed as an enforced retribution or satisfaction, is 
 public punishment as history discloses it." "The 
 relation of [legal] norms to acts, is like that of a condition, 
 and what is affected by the condition; the latter must 
 be adapted to the former." ^ 
 
 Binding's theory of norms has gained more opponents 
 than adherents.^ The most notable criticism of his 
 
 1 "Normen," I, pp. 19-21, 423-426; II, p. 54. 
 
 'Adolf Merkel, "tJber Binding's Handbuch des Strafrechts," 
 Vol. I ("Z.f.d.ges.Str.,"VoI.VI,1886,pp.512seq.). {Merkel/'Kin- 
 terlassene Fragmente und Ges. Abh.," II, 2, pp. 509-534): "Be- 
 sprechung von K. Binding 'Die Normen und ihre tjbertretung,' " 
 second edition of Vol. I (Merkel, "Hinterlassene," etc., II, 2, pp. 
 
§46] THEORY OF NORMS 383 
 
 position is that of Adolf Merkel. He and his followers 
 not unjustly charge the theory with an extreme emphasis 
 of the formal side.' While it is conceded that law is 
 the result of governmental supremacy, this statement 
 establishes merely an external criterion of the nature 
 of government and law. The legislating State that 
 formulates an enforcible law on the basis of unwritten 
 norms does not assume the dictatorial position of the 
 wielder of such power, setting up an individual will and 
 pleasure against the will of subjects, and suppressing the 
 expression of any rebellious will. The purpose of the 
 State is not primarily to secure obedience to its suprem- 
 acy, but to direct legislation toward the maintenance 
 of individual rights. The legal order is intended not to 
 restrict, but primarily, to maintain rights. 
 
 The problems of the philosophy of law and govern- 
 ment cannot be mastered from the position of the theory 
 
 679-686). II. Liszt, "Rechtsgut und Handlungsbegriff im Binding- 
 'schen Handbuche." ("Z. f. d. g. Str.," Vol. VI, pp. 670-672.) Hugo 
 Heinemann, "Die Binding'sche Schuldlehre, ein Beitrag zu ihrer 
 Widerlegung." ("Abh. des Krirainalistischen Seminars zu Marburg," 
 edited by v. Liszt, Vol. I, Part IV) Freiburg i/B 1889. v. Weinrich, 
 "Strafrecht und Kriminalpolitik. Ein Beitrag zur Kritik der 
 Normentheorie und der Neuesten Reformbestrebungen." "Z. f. d. 
 ges. Str.," Vol. XVII, 1897, pp. 779 seq. Berolzheimer, "Die Entgel- 
 tung im Strafrechte," pp. 126-129, 159-168, and the bibliography 
 there noted. 
 
 Zitelmann, "Irrtum und Rechtsgeschaft," Leipzig 1879, p. 221, 
 contests the imperative value of norms. Opposed to Zitelmann 
 see Heinemann, "Die Binding'sche Schuldlehre," pp. 40 seq. 
 
 The function of the norms as a legal protection is considered in 
 detail hyOetker, "Rechtsgiiterschutz und Strafe" ("Z. f. d. g. Str.," 
 Vol. XVII, pp. 493 seq.). See also Oetker, "Besprechung von Bind- 
 ing's Normen," Vol. I, second edition ("Z. f. ver. Rechtsw.," Vol. 
 XVII, pp. 141-154). 
 
 ' Ihering, "Der Zweck im Recht," I, p. 435: "Norms and coercion 
 are purely formal factors that afford no knowledge as to the content 
 of the law." 
 
384 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 of norms; for this theory is misleading in that it sets 
 up the law as an isolated institution. But Binding's 
 fundamental idea that the imperative norm forms the 
 essence of law is a permanent contribution to legal 
 philosophy; for, though one-sided, the theory of 
 norms is thoroughly sound on its own ground. So 
 far as concerns the second of the two functions of 
 the legal order — that of safeguarding rights and 
 that of restricting license — the theory offers a satis- 
 factory position. 
 
 ThonI (b. 1839), in "Die Norm und die Rechtsfolgen 
 ihrer Ubertretung," pursues the study of norms in the 
 spirit of Binding. Norms are imperatives. "The law 
 of a community expresses its will; and such expression 
 aims to regulate the conduct of those regarded as subject 
 thereto. All laws are imperatives." The legal conse- 
 quences of transgressing the norm likewise become 
 "the introduction of new, or the abolition of existing 
 imperatives." Accordingly "the aggregate law of a 
 community is merely a complex of the imperatives which 
 are bound up with one another in so far as the violation 
 of one constitutes the assumption for the requirement 
 to another." The norms are differentiated according to 
 the purposes which legislation pursues in the establish- 
 ment of its imperatives. One group comprises the 
 norms to which is attached the legal consequence that 
 anyone violating them is subject to punishment; the 
 second group attempts so far as possible to make good 
 a wrong, either by restitution ^ or compensation or 
 security. 
 
 ' "Rechtsnorm und Subjectives Recht. Untersuchungen zur 
 Allgemeinen Rechtslehre," Weimar, 1878 p. 69; 1, 8, 7 seq., 69 
 seq. 
 
 ' This is Thon's expression; what is meant is a consequent neces- 
 sity of restitution through the legal order. 
 
§46] THEORY OF NORMS 385 
 
 BiERLiNG^ (b. 1841) modifies the theory of norms ^ by 
 his view that "the constituent factor of law, and espe- 
 cially of the constituted law, is merely the acknowledg- 
 ment on the part of those who share it as the norm of 
 their social life." * "Accordingly legislation imposes 
 nothing more than a duty because, and in so far as 
 it is recognized as a binding social norm by the members 
 of the State. An unconditioned general obUgation 
 towards the laws of the State can only exist because, 
 and in so far as a general norm is acknowledged which 
 shall be binding upon legislation; or in other words, 
 in so far as a norm exists to which every act of legisla- 
 tion is subject or appears to be so." * "The funda- 
 
 ^His works are: "Zur Kritik der Juristischen Grundbegriffe, " 
 I, II, Gotha 1877, 1883. Revised and enlarged under the title 
 "Juristische Prinzipienlehre," 2 vols. Freiburg i/B and Leipzig 
 1894, Freiburg, Leipzig and Tubingen 1898. 
 
 ^ Bierling defines the limits of jurisprudence as against the philoso- 
 phy of law as follows: "The science of juristic principles, in the 
 sense here used, is limited to a definite part of the philosophical 
 elaboration of law. It is limited to the determination of certain 
 formal conceptions and principles, operative in legal practice, and 
 more or less recognized in the several divisions of jurisprudence, 
 and makes these the object of special investigation, seeking to 
 establish the basis, the meaning, and the limits of their validity. 
 All further questions connected with this position, that undertakes 
 to interpret law in the narrower sense with reference to a general 
 view of things, in other words, that attempts to show the place 
 and the significance attaching to law in the collective order of the 
 universe, — all questions of this kind, the science of jurisprudence 
 leaves untouched. . . . But such problems constitute the peculiar 
 domain of the philosophy of law." 
 
 '"Zur Kritik der Juristischen Grundbegriffe," I, p. 66. (p. 92): 
 "That this living together [in the family] becomes a true living 
 together, a true communal life only through the norms recognized 
 by those participating therein." See pp. 121, 134 seq., 158; Vol. II, 
 pp. 33 and Appendix B, pp. 351-364. See also below, p. 386, note 3. 
 
 * "Zur Kritik," etc., I, p. 138. Also "Juristische Prinzipien- 
 lehre," Vol. II, pp. 3-45: "Uber die Entstehung, Auflosung und 
 
386 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 mental point is to establish the imperative nature of 
 law"; and to this the latter portion of "Die Juristische 
 Grundbegriffe" is devoted. The conception of the 
 permissible ("Diirfen") offers considerable difficulty in 
 this treatment because it seems to stand in contradiction 
 to the theory of norms. Bierling considers it as a mis- 
 take to derive the conception of duty, of what is enjoined 
 or forbidden, from what is permitted. It is nearer the 
 truth that "what is permitted or allowed, is simply 
 what is not prohibited, or more correctly speaking, what 
 does not stand in opposition to the requirements of the 
 law." * "All law consists of norms, and whatever 
 cannot be reduced to a norm does not in reality belong 
 to the law." ^ The norm becomes a legal norm "by 
 the acknowledgment thereof on the part of the members 
 of the community as their communal norm." Legal 
 acknowledgment is "an acknowledgment of the norms 
 as communal, and as applying between one member of 
 the community and another." ' Hence the law is 
 "whatever men who live together in any form of com- 
 munal life mutually recognize as the norm and regula- 
 tion of such communal living." * 
 
 Veranderung der Rechtsnormen und ihre Beziehung zur Entste- 
 hung und Aufhebung der Rechtsnormen." 
 
 i"Zur Kritik," etc., II, pp. 8, 18; I, p. 157; Vol. II, Appendix A 
 pp. 307-350. 
 
 ^ "Juristische Prinzipienlehre," Vol. I, p. 30. On Norms, see 
 pp. 30-40; for various kinds of legal norms, see pp. 71-144; for 
 legal norms as the content of legal relations, see pp. 145-200. 
 
 ^"Zur Kritik," etc., II, p. 33. See also the citation in note 10. 
 Also "Juristische Prinzipienlehre," Vol. I, p. 19; Vol. II, p. 103, 
 note 39, pp. 103-116. 
 
 ■* "Juristische Prinzipienlehre," I, p. 19. On restitution, see pp. 
 41-53. Schuppe, in "Die Methoden der Rechtsphilosophie" ("Z. f. v. 
 Rechtsw.," Vol. V, p. 270), agrees with Bierling with the condition 
 that the principle of acknowledgment requires to be perfected. 
 
§ 47] ETHNOLOGICAL JURISPRUDENCE 387 
 
 The work of Max Ernst Meyer, entitled "Rechts- 
 normen und Kulturnormen," i presents a happy com- 
 bination of the legal philosophy of Kohler and Binding. 
 Kohler, following Hegel, emphasizes the quality of the 
 law as a cultural phenomenon, and the dependence of 
 legislation upon the prevalent general culture.^ M. E. 
 Meyer sets these cultural norms, which thus become 
 vitalized with a new content, in the place of legal norms. 
 The objection to be urged against the theory of norms 
 in its several formulations, from Binding to Meyer, is 
 its one-sidedness, its view of the law merely as an im- 
 perative, as a restricting force; it recognizes the law 
 merely as imposing obligation, while the phase of the 
 law that acknowledges, confirms and safeguards is 
 neglected. Yet the latter phase is really the essential 
 one. For example, the nature of property does not 
 consist in the fact that the encroachment thereon by 
 another is forbidden, but in its conferring of right, 
 in legally empowering the one justly entitled to it to 
 use it, to enjoy it, and to dispose of it. 
 
 §47. EthnologicalJurisprudence. The study of foreign 
 law as a basis for the improvement of legislation is not 
 an innovation. The laws of ancient Egypt served as a 
 model to other countries. In such service lies the 
 origin of comparative law. Yet the study that is now 
 called "comparative law," and the collation of laws 
 for professional purposes, differ widely from these 
 earlier essays. Comparative law is not exclusively or 
 primarily directed to application, but pursues the 
 theoretical purpose of finding a sounder foundation for, 
 
 1 "Beling's Strafrechtliche Abhandlungen," Heft L, Breslau 1903. 
 
 '' V. Holtzendorff- Kohler' s"Enzyklopa.die der Rechtswissenschaft," 
 p. 6: "Cultural demands supply the ideal which the law of a 
 given period attempts to meet. The law thus rests upon the basis 
 of culture." See also below, §48. 
 
388 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 and a deeper insight into, the fundamental conceptions 
 of law. Again, such comparison is systematic and 
 comprehensive, aiming at universal principles. It is 
 in these interests that a reference to the results of 
 comparative law is here pertinent. By such systematic 
 and comprehensive study the philosophy of law, as well 
 as general legal science, has acquired a new method, 
 comparable in value with that of comparative linguistic 
 study to philology. Yet neither in philology nor in 
 law can the comparative method be expected to pro- 
 vide a universal solution of problems. The peculiarly 
 important philosophical problem of the origin of law 
 and government, comparative law cannot be expected 
 to solve, if for no other reason than that it ever finds 
 the presence of law and government as a prerequisite 
 for its study; similarly comparative philology cannot 
 remove the obscurity attaching to the origin of language. 
 One of the founders and important contributors to the 
 ethnological ' study of law is J. J. Bachofen (1815- 
 
 ^ As a matter of terminology the division of the modern science 
 of law treated in this section is in part ethnographical, in part 
 ethnological, and in part both. Ethnography is the inductive and 
 descriptive study and presentation of any group of facts from the 
 life of peoples. Ethnology is the deductive, synthetic interpreta- 
 tion of ethnographical results; it is the synthetic elaboration and 
 derivation of general laws of the life of peoples. See 5. Giinther, 
 "Ziele, Richtpunkte und Methoden der Modernen Volkerkunde," 
 Stuttgart 1904, pp. 11 seq. 
 
 Upon the import of comparative law seeBernhoft, "Uber Zweck und 
 Mittel der Vergleichenden Rechtswissenschaft ("Z. f . v. Rechtsw."), 
 Vol. I, Stuttgart 1878, pp. 1-38. Dahn, "Vom Wesen und Werden 
 des Rechts" ("Z. f. v. Rechtsw.", Vol. II, Introduction. "Die Rechts- 
 vergleichung als Grundlage der Rechtsphilosophie,'' pp. 1-10. 
 Bernhoft, "tjber die Grundlagen der Rechtsentwickelung bei den 
 Indogermanischen Volkern" ("Z. f. v. Rechtsw.," Vol. II, 1879, pp. 
 (253-328), 254 seq. Ernst Schuster (London), "Die Praktische 
 Bedeutung der Vergleichenden Rechtswissenschaft fiir das Familien- 
 
§47] ETHNOLOGICAL JURISPRUDENCE 389 
 
 1887), who is the author of "Das Mutterrecht," a study 
 of matriarchal government in the ancient world in its 
 religious and legal aspect (Stuttgart 1861). With pa- 
 tient industry this author gathers and correlates all 
 forms of legal institutions and enactments that lead to 
 the conclusions that a matriarchy, which assigns prece- 
 dence in civilization as in domestic arrangements, to 
 the child-bearing member of the family, (survivals of 
 which may be found in most recent times,) preceded 
 the patriarchical form of government, which gives prece- 
 dence to the masculine factors in government, civiliza- 
 tion, and law, and makes the father of the family the 
 central authority. He finds such evidence in myths 
 and sagas, in cults, in the accounts of ancient authors, 
 and in the Greek drama. 
 
 Similarly directed is the other extensive work of 
 Bachofen, ' Antiquarische Briefe," bearing particularly 
 upon our knowledge of the ancient forms of relationship 
 (2 vols., Strassburg 1880, 1886). There should likewise be 
 mentioned Bachofen's "Die Sage von Tanaquil," a study 
 of Orientalism in Rome and Italy. (Heidelberg 1870.) ' 
 
 und Erbrecht" ("Jahrb. der inter. Vereinigung f. ver. Rechtsw. 
 und Volkswirthschaftslehre," Vol. II, 1896, Berlin 1897, pp. 71-97.) 
 For what follows see especially Kohler, "Enzyclopadie," pp. 14-20. 
 ' See the comments on method by Kohler on J. J. Bachofen, "Die 
 Sage von Tanaquil," end "Antiquarische Briefe," I-XXX, Strass- 
 burg 1880 ("Z.f.v. Rechtsw." IV), Stuttgart 1883, pp. 266-277 (pp. 
 275 seq.): "The proper path which ethnological jurisprudence 
 must pursue is that of studying the several races by the aid of all 
 material bearing upon law, and then proceed to further correlations, 
 particularly to the treatment of myths and sagas from the point of 
 view of legal ethnology. This procedure is more certain because 
 observation yields more exact results than the study of dubious 
 tradition which is never pure, but is ever affected in its uncertain 
 course by biased editing. This method I propose to pursue in my 
 work upon the legal relations of primitive peoples, and hope thus 
 to establish the principle upon a firm basis." 
 
390 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 J. KoHLER (b. 1849) is at present the recognized 
 leader of the school for the comparative study of law. 
 He is the author of numerous ethnographical and ethno- 
 logical studies, and is associate editor of the "Zeitschrift 
 fiir Vergleichende Rechtswissenschaft." In relation to 
 our present topic his works that are of special importance 
 are: "Shakespeare vor dem Forum der Jurisprudenz," 
 Wiirzburg 1884; "Rechtsvergleichende Studien iiber 
 Islamitische Rechte, das Recht der Berbem,das Chine- 
 sische Recht, und das Recht auf Ceylon," Berlin 1889; 
 "Zur Urgeschichte der Ehe, Totemismus, Gruppenehe, 
 Mutterrecht" ("Z. f. v. Rechtsw.," Vol. XII, pp. 187- 
 353).^ Kohler's ethnological position is more accurately 
 set forth in his essay "Recht, Glaube, und Sitte," ^ and 
 in Holtzendorff' s "Enzyklopadie"' for which he prepared 
 a new edition in 1904. 
 
 Alb. Herm. Post (d. 1895) was a notable represent- 
 ative of the ethnological school of law. In a series of 
 writings he investigates the original form and appear- 
 ance of law. His works are: "Das Naturgesetz des 
 Rechts," an introduction to a philosophy of law on 
 the basis of a modern empiric science, Bremen 1867; 
 "Die Geschlechtsgenossenschaft der Urzeit und die 
 Entstehung der Ehe," a contribution to a general com- 
 parative science of government and law, Oldenburg 
 1875; "Der Ursprung des Rechts," an introduction to 
 a general comparative science of law, Oldenburg 1876; 
 "Die Anfange des Staats- und Rechtslebens," a contri- 
 bution to general comparative history of government 
 
 1 Kohler, "Rechtsenzyklopadie," p. 20, note 1, gives a partial 
 list of Kohler's works. 
 
 2 In Grunh., Z., Vol. 19, Vienna 1892, pp. 561-612. 
 
 ' Pp. 14 seq., 17-20. See also Kohler, "Zur Ethnologischen Juris- 
 prudenz, Rezensionsabhandlungen" ("Z. f. v. Rechtsw.," VI, pp. 
 (407-429) 407. 
 
§47] ETHNOLOGICAL JURISPRUDENCE 391 
 
 and law, Oldenburg 1878 ; "Bausteine fur eine AUgemeine 
 Rechtswissenschaft auf Vergleichende Ethnologischer 
 Basis," Vol. I, Oldenburg 1880 (see pp. 1-8 for the 
 comparative method in law); Vol. II, 1881; "Die 
 Grundlagen des Rechts und die Grundziige seiner 
 Entwickelungsgeschichte," suggestions for a general 
 science of law upon a sociological basis, Oldenburg 
 1884; "Einleitung in das Studium der Ethnologischen 
 Jurisprudenz," Oldenburg 1886; "Afrikanische Juris- 
 prudenz," ethnological -juridical contributions to the 
 science of indigenous law in Africa (two parts in one 
 volume), Oldenburg and Leipzig 1887; "Studien zur 
 Entwickelungsgeschichte des Familienrechtes," a con- 
 tribution to a general comparative science of law on an 
 ethnological basis, Oldenburg and Leipzig 1890; "Uber 
 die Aufgaben einer AUgemeinen Rechtswissenschaft," 
 Oldenburg 1891. 
 
 In this field B. W. Leist (b. 1819) has contributed the 
 following works: "Graeco-italische Rechtsgeschichte," 
 Jena 1884; "Alt-Arisches Jus Gentium," Jena 1889; 
 "Alt-Arisches Jus Civile," Part I, Jena 1892; Part II, 
 Jena 1896. He insisted that his works were not to be 
 considered as belonging to comparative law but rather 
 to the history of law, as the title "Arische Stammrechts- 
 geschichte" indicates. "^ Nonetheless he proceeds upon 
 the comparative method. His studies of the legal 
 conceptions of ancient India, Greece, and Rome, as 
 bearing upon the government, civilization, and science 
 of these peoples, have great merit; and their conclu- 
 sions have been largely utilized in the first chapters of 
 the present work.^ 
 
 * "Alt-Arisches Jus Gentium," pp. 6-11. 
 
 ^ There may be added the contributions of F. Meili: "Die Neuen 
 Aufgaben der Modernen Jurisprudenz" (1892) ; and the compendium 
 entitled, "Institutionen der Vergleichenden Rechtswissenschaft" 
 
392 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 § 48. The Reinstatement of Kant and Hegel: v. 
 Hartmann. 1: Neo-Kantianism. The neo-Kantians 
 represent the position that the further development of 
 the work of critical idealism and the independent 
 advance of systematic philosophy will mutually further 
 and condition one another. ^ Hermann Cohen ^ (b. 1842) 
 
 (1898); of Bernhoft: "Die Inschrift von Gortyn" (Stuttgart 1885); 
 together with articles in the "Z. f. v. Rechtsw.," and in the " Jahrbuch 
 der Intern. Ver. fur verg. R.," of both of which he is co-editor; of 
 5. R. Steinmeiz: "Ethnologische Studien zur Ersten Entwickelung 
 der Strafe," 2 vols. (Leyden 1894); "Bearbeitung des Fragebogens 
 der Internationalen Vereinigung fur Vergleichende Rechtswissen- 
 schaft und Volkswirtschaftslehre (Berlin 1903); of Henry Sumner 
 Maine: "Ancient Law" (London 1861); "Lectures on the Early 
 History of Institutions" (London 1875); "Dissertations on Early 
 Law and Custom" (London 1883); oi Lewis H. Morgan: "Systems 
 of Consanguinity and Affinity of the Human Family" (Washington 
 1871); of Friedrich Boden: "Mutterrecht und Ehe im Altnordis- 
 chen Recht" (Berlin and Leipzig 1904) ; oiLahriola: "Del Concetto 
 Teoricodella Societcl Civile" (Rome 1901); "Revisione Critica delle 
 piu Recenti Teorie su le Origini del Diritto'' (Rome 1901). 
 
 The "Z. f. V. Rechtsw." (established 1878), and the "Jahrb. d. I. 
 Ver. f. verg. Rechts. und Volksw." (established 1895), contain 
 numerous articles upon various aspects of comparative law by 
 Dargun, Friedrichs, Max Schmidt, and others. For penology a 
 similar service is performed by "Die Strafgesetzgebung der Gegen- 
 wart in Rechtsvergleichender Darstellung," of which the first vol- 
 ume appeared in 1894, the second in 1899, and others of which are 
 to follow. 
 
 The work of Ernst Neukamp, "Entwickelungsgeschichte des 
 Rechts" (Berlin 1895), belongs in part to this group, but is distinctive 
 by reason of his advocacy of an evolutionary trend in the develop- 
 ment of legal systems. The comparative study is to afford the 
 data from which the discovery of the actual laws of evolution are 
 to be derived. 
 
 1 Cohen, "Kant's Begriindung der Ethik," preface, p. III. See also 
 Berolzheimer, "System," Vol. I, pp. 128 seq. 
 
 ^ To be noted are: "Kant's Theorie der Erfahrung," Berlin 1871. 
 "Kant's Begriindung der Ethik," Berlin 1877. "System der Philoso- 
 phie," Part I: "Logik der Reinen Erkenntnis," Berlin 1902 (pp. 
 
§ 48] NEO-KANTIANISM 393 
 
 may be termed the father of the movement; and asso- 
 ciated with him are Natorp, Stammler, Eduard Bern- 
 stein. In Cohen's "Kant's Theorie der Erfahrung," he 
 interprets Kant's views of purpose and idea, making 
 the idea of cause that of purpose. Previous to Kant, 
 the teleological position looked upon purpose or design 
 as itself a creative force; but in Critical philosophy, 
 purpose "enters only when causes have been exhausted ; 
 but the analysis of causes should in reality never cease. 
 Purpose is the extension of cause." The categorical 
 imperative was developed under the influence of this 
 conception of purpose ("Zweck"), or means to an end. 
 "The noumenon or essence of freedom is contained in 
 the ethical principle that the moral character, the 
 autonomous nature, is such purpose existing for 
 its own sake, as a final purpose." Kant's princi- 
 ple of freedom .is to be supplemented in the spirit 
 of Kant by the statement: "I mean by freedom not 
 an exemption from the law of causality, but an ex- 
 emption from any intermediate mechanism or any 
 purposive limitation." 
 
 "In the position that ethics is the study of duty, of 
 things as they should be ('Sollen'), there is an am- 
 biguity that confuses the conception of ethics." For 
 science considers the actually existent, while ethics, 
 according to this principle, is directed to that which 
 should be. But appearances are deceptive. Ethics 
 must establish the legitimacy of the moral ideal, must 
 show the real nature of moral effort as it appears in 
 human experience. A moral ideal is necessary to 
 moral endeavor; hence ethics is concerned with moral 
 endeavor. 
 
 172-175); Part II: "EthikdesReinenWillens," Berlin 1904. FotH. 
 Cohen see Ueberweg- Heinze, "Grundriss," IV, pp. 219-221 (on p. 219 
 is a list of Cohen's writings). 
 
394 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 The formulation of moral laws is to be derived from 
 the conception of pure will. Pure will implies that the 
 moral law is "excluded as an objective motive." If 
 one were to posit pleasure or pain as the material condi- 
 tion of the will, then jnorality would not have an a 
 priori, but an empirical foundation, and this would not 
 lead to a moral law. "The form of general legislation 
 considered as the sole condition of pure practical 
 reason is the community of autonomous beings which 
 is ever thought of and utilized 'as an end, never merely 
 as a means.' The mere form of legislation in accordance 
 with the general meaning of form as law, is the autonomy 
 of the end ; the a priori goal is found in the community. 
 Thus the 'formal' a priori procedure finds so favorable 
 a reality that the moral nature of the individual appears 
 to be derived from that which is common to all moral 
 natures. In the last analysis the moral law consists 
 in the conception of such community." Upon this 
 position Stammler develops his social philosophy. The 
 idea of moral law is equivalent to the idea of humanity. 
 "Eoth ideas are realized in the realization of humanity 
 in man." Cohen further sets forth, in the spirit of 
 Kant, how the moral law, with due allowance for human 
 nature, may be practically and psychologically realized.* 
 
 In his "Ethik des Reinen Willens," Cohen elaborates 
 and develops the conception of humanity. Man as a 
 moral being is not man in the psychological sense, not 
 man as a self-contained individual, but man as the 
 conception of humanity, as a participator in immor- 
 tality. The view that the State is the chief ethical 
 expression of the moral consciousness suggests Hegel. 
 "The State as a self-conscious expression is the unity of 
 
 1 Cohen, "Kant's Theorie der Erfahrung," pp. 231-233. "Kant's 
 Begrundung der Ethik," pp. 233 seq., pp. 117 seq., pp. 154 seq., 
 163, 168, 172, 176, 198, 201, 273, 275 seq. 
 
§ 48] NEO-KANTIANISM 395 
 
 subject and object in the will." i The view that in the 
 supremacy of the State the individual finds his exemplar 
 suggests the Platonic position. Morality implies an 
 ideal ; there must ever remain a gap between the moral 
 status of man and the moral idea in its complete purity. 
 Hence government and law are neither dispensable nor 
 replaceable. "Justice must be maintained as a guide 
 to virtue; and its constant progress is possible only 
 through the instrument of law and government." The 
 State as it actually is, is the State of the estates and 
 the ruling classes. It is not a State based upon justice. 
 "The State as the instrument of justice is guided solely 
 by moral consciousness. The authority which it 
 acquires is directed to this end. The self -consciousness 
 of the State is the self-consciousness of its members. 
 Justice makes universal brotherhood the self-appointed 
 purpose of mankind.^ 
 
 Natorp's' (b. 1854) "Sozialpadagogik" considers the 
 problem of the relations of education and society. He 
 distinguishes three stages of conduct — instinct, will 
 in the narrower sense, and rational will. Will is 
 instinct concentrated; rational will is "the highest 
 
 i"Ethik des Reinen Willens," pp. 7, 21, 595; pp. 76, 231 seq., 
 241, 232. The State unites men "in an ideal unity of all." "This 
 unity of a universality forms the State. The moral, and conse- 
 quently, the political conception of the State, rests upon the unity 
 formed by this totality." "The true conception of the State is 
 embodied and vitalized in the conception of society." "The 
 conception of the State is the ethical phase of the conception of cul- 
 ture." "The State alone presents the self-consciousness of man." 
 "Ethik des Reinen Willens," pp. 76, 173, 241, 242. 
 
 »"Ethik des Reinen Willens," pp. 568,270-306, 307 seq., 565, 582 
 seq., also 603. 
 
 * For Natorp see Ueberweg- Heinze, "Grundriss der Geschichte der 
 Philosophic," Vol. IV, pp. 221 seq., where will be found a survey 
 of Natorp's works. Labriola, "Revisione Critica Delle piu Recenti 
 Teorie su le Origini del Diritto," Roma 1901, p. 99. 
 
396 SOCIOLOGICAL PHILOSOPHIES [Ch. Vll 
 
 concentration of practical capacity in general." As is 
 true of the individual, so is it true of society which 
 affects the individual, that "only by work and by 
 discipline of the will, can there be progress toward the 
 law of reason," "progress from a mere formal aggregation 
 to a spiritual community," and progress from external 
 rule, heteronomy, to self-rule, autonomy, in Kant's 
 sense. The social instruments for the education of the 
 will are the home and the school; and for adults, the 
 education afforded by the communal life. Practice and 
 study are the means of training the will. Ethics, 
 aesthetics, and religion also have a share in its education.* 
 Introductory to the discussion of the methods of the 
 education of the will, Natorp sets forth the foundations 
 of ethics and social philosophy. The individual vir- 
 tues are truth as the virtue of reason; courage or moral 
 efficiency as the virtue of the will; purity or modera- 
 tion as the virtue of instinct; and lastly justice as "the 
 individual basis of social virtue."^ The moral constitu- 
 tion of social life must exhibit a complete parallelism in 
 its nature and operation to the individual life, and must 
 equally comprise the three fundamental factors of human 
 conduct. The individual virtues are equally social vir- 
 tues; the love of truth is the dominance of conscience 
 in the social order, the pervasion of the body social with 
 a sense of truthfulness ; courage is the condition of law 
 and order; temperance is the complete harmonious 
 regulation of the social instincts, that is, the organiza- 
 
 ' "Sozialpadagogik," pp. 77; 54-96; 217-388; 99-214. 
 
 ^ "Under justice as an individual virtue I understand the aspect 
 of all virtues belonging to the individual that bear upon the com- 
 munity; and the essence of such virtue is already completely con- 
 tained in the relation that what morahty requires is again required 
 in a newer and larger sense by the interests of the community. The 
 virtue thus transferred brings with it no distinctive content.'' 
 "Sozialpadogogik," p. 135. 
 
148] NEO-KANTIANISM 397 
 
 tion of labor and the enjoyment of the fruits of labor 
 on a sound basis, "including a comprehensive organiza- 
 tion upon the basis of equality and co-operation." Jus- 
 tice is the cardinal social virtue, embracing all the rest. 
 Social justice is characterized as the widest application 
 of command to render to each his own; in principle the 
 maintenance of the same law for all, ■ — -a just partici- 
 pation on the part of each "in education, in the govern- 
 ment, and in service, jointly, and in their inherent and 
 established relation to one another." 
 
 Social regulation requires as a higher legal standard 
 practical reason, and in the form of communal reason. 
 The fundamental law of social development is "the law 
 by virtue of which the ideal relation of the three factors 
 of the social life become immutably one, valid and stable 
 for a given period"; and this law becomes established 
 by the "adjustment of the idea to experience." "The 
 rational ordering of social life can be realized only by 
 means of social regulation, which represents the formal 
 will of social life. In its application this refers to indus- 
 trial labor and its technical organization, but the prog- 
 ress of such technical procedure depends directly upon 
 the progress of science." Social life requires the assump- 
 tion that the laws of nature "in the last analysis must 
 be one and the same, so far as they bear upon the issues 
 of consciousness, because the root thereof lies in the 
 fundamental laws of consciousness itself." Accepting 
 Kant's method as an exemplar, we reach "the idea of a 
 universally valid functional connection among the essen- 
 tial factors of social life — the connection resting upon 
 a community of method, and designed ultimately to 
 establish a comprehensive connection in the human con- 
 sciousness between the laws to which ideas are subject 
 and the general law of nature. For the two are inherently 
 related by an original community of origin, and like- 
 
398 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 wise appear in close connection in human consciousness. 
 This connection is established by a systematic adapta- 
 tion of natural properties to the purposes of social 
 technology, making economics a part of governmental 
 concern, and bringing both under the direction of practical 
 reason, that is, of creative activity. Yet all this takes 
 place with constant and conscious consideration of an 
 orderly progress towards that solidarity which results 
 from the supremacy of reason, which in turn determines 
 its direction. This consummation furthers the interests 
 of the individual and of his associations; it places 
 in relation the several interests requiring correlation, 
 while also serving the individual as a member of the 
 community.* 
 
 Among the most important contributions to the mod- 
 ern philosophy of law are those of the neo-Kantian, 
 Rudolf Stammler (b. 1856). Of his two chief works, 
 the one, "Wirthschaft und Recht," furnishes the foun- 
 dation of his social philosophy, and the other, "Die Lehre 
 von dem Richtigen Rechte," contains a searching examin- 
 ation of the philosophy of law. Both are notable works; 
 the latter particularly has failed to receive the apprecia- 
 tion which it deserves.^ 
 
 Stammler was influenced in the direction of neo- 
 Kantianism by Cohen, and Natorp. In ' 'Wirthschaft und 
 Recht" he developsasocial philosophy as Kant might have 
 done, had he undertaken the problem. Stammler holds 
 the error of former systems of legal philosophy to have 
 been the acceptance of law as the underlying principle. 
 This is quite as misleading as would be the theoretical 
 formulation of natural science upon the conception of 
 gravity. "Wirthschaft," the economic life, Stammler 
 likewise considers unsuitable as the point of departure; 
 
 • "Sozialpadagogik," pp. 202-214, 180, 182, 182 seq., 192, 200. 
 ' See also his recent "Theorie der Rechtswissenschaft," 1911. — Ed. 
 
§ 48] NEO-KANTIANISM 399 
 
 it is the social life that constitutes the underlying prob- 
 lem, and with it we must begin. 
 
 The method of generalization upon historical data 
 proves to be as inadequate as the comparative study 
 of law; and a general legal science is equally unable to 
 solve the fundamental problem of social philosophy.^ 
 The problem is the determination and analysis of the 
 principles of social life, in which, as it is realized, law 
 forms but one factor, though an important one. Instead 
 of studying individual social phenomena the attempt 
 must be made to establish "a systematic co-ordination 
 of the several phenomena under a comprehensive prin- 
 ciple." In other words, "the object of social philosophy 
 is the ordering of the social life of man as such"; while 
 the object of general legal science is "the determination 
 of the common content of different legal systems." To 
 obtain a clear view of the general conditions of social 
 science a critical philosophical survey is necessary. The 
 material conception of history is the first that seriously 
 undertook to interpret the law-abiding character of the 
 history of man. Social materialism attempts to explain 
 the orderly development of human society on the basis 
 of economic phenomena, yet does so inadequately be- 
 cause it fails to explain what "the economic relations 
 really are." 
 
 Law, society, and economics. Rejecting Spencer's 
 analogy of sociology to the natural sciences, Stammler 
 holds that the social life of man is far more than a mere 
 physical gregariousness. The significant difference be- 
 tween the two is the regulation of intercourse and 
 communal life, which is of human (artificial) origin. 
 Social life is thus an externally regulated living together 
 
 1 "Wirthschaft und Recht," pp. 22, 7 seq., 8-11, 13, 15, 14, 17, 
 22-80, 78 seq., 245-263. The materialistic conception of history 
 likewise stands without proof (pp. 624-633). 
 
400 SOCIOLOGICAL PHILOSOPHIES [Ch. Vll 
 
 of men.i An external regulation of human intercourse 
 is one which in spirit is quite independent of any indi- 
 vidual motive to conform to it. In this, social regulation 
 differs from ethical regulation. 
 
 Of the several meanings attached to the word social, 
 two must at once be considered; first, social as, applied 
 to what is regulated from without, in contrast to human 
 action considered as that of an isolated individual; and 
 second, as regulated from without but conformably to 
 human nature, "thus contrasting to an unnatural 
 standardization of communal life." Two classes of 
 social laws may be distinguished,- — -legal enactments, and 
 the norms of propriety — custom, fashion, usage, — 
 which Stammler includes under convention.^ The dis- 
 tinction between these two classes of norms does not 
 consist in the fact that the State makes the laws, and 
 that social intercourse gives rise to conventions; the 
 real distinction lies in "the spirit of the requirement in 
 which the regulation concerned was formed." The law 
 claims obedience as by compulsion; convention claims 
 obedience by an appeal to the consent of those conform- 
 ing to it.' Law and convention together constitute 
 the form or external phases of social life. 
 
 The expression of social life is co-operation directed 
 to the satisfaction of needs ; such co-operation Stammler 
 
 1 "Wirthschaft und Recht," pp. 83-88, 89 seq., 93 seq., 97 seq., 
 100, 101 seq., 104, 108, 111, 257, 259-263; p. 108: "Social life is a 
 living together of men regulated by externally uniting norms.'' 
 p. 257: "There is no other form of social association than that 
 established by human rules." 
 
 ""Wirthschaft und Recht," pp. 105, 105 seq., 115-124, 122, 
 125 seq. 
 
 'The distinction is not an historical, but a logical one. In a 
 formal sense la-vv aims to prevail as a coercive measure, while con- 
 ventional prescription has but an hypothetical validity. ("Wirth- 
 schaft und Recht," pp. 125-135, especially pp. 129, 132.) 
 
§48] NEO-KANTIANISM 401 
 
 calls social economics, and urges that it should be more 
 fully conscious of its obligation to supply a scientific 
 interpretation of the social life of man.i "A rule with- 
 out application is vain; the conception of a social 
 economics without consideration of the definite order- 
 ing of communal life is futile." Yet a theoretical con- 
 sideration of formal principles is legitimate if held 
 within bounds. The doctrine of natural law followed 
 a false clue, for there is no such law that can be estab- 
 lished a priori in terms of its positive content. Only 
 such statutes may be considered to be natural laws as 
 embody a theoretically just law under empirically 
 conditioned circumstances, — ■ "a natural law with 
 variable content." ^ On the other hand the material 
 of social life does not afford an underlying principle 
 unless it is conceived in its general aspects. Social- 
 economic study must proceed on the basis of definite 
 external regulations. There are no self-sufficient prin- 
 ciples of social economics. 
 
 The relation of law and social economics is by no 
 means adequately characterized by the statement that 
 the former exercises an influence upon the latter. Legal 
 regulation and social economics are not related as 
 cause and effect; "for this would imply that law and 
 economics are independent and contrasted, which is not 
 the case; socially considered they are two inherently 
 related expressions of one and the same phenomenon." 
 Law is not self-sufficient; every legal regulation implies 
 the application to underlying social operations. "Laws 
 represent the formal side of the one comprehensive 
 object of social science, namely, social life." "From 
 
 » "Wirthschaft und Recht," pp. 136-162, especially pp. 137, 
 152 seq., 157, 158. 
 
 2 "Wirthschaft und Recht," pp. 165, 165-188, especially pp. 184, 
 185. 
 
402 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 the point of view of social science, there is always pre- 
 sented a definitely regulated co-operation directed to the 
 satisfaction of human needs. Accordingly, social econ- 
 omics is not the effect of law as a cause ; but objectively 
 there is presented the one object of social consideration, 
 namely, a definite situation of a social-economic 
 type." * What we call an economic phenomenon is 
 merely "a homogeneous composite of legal relations." 
 
 The philosophical issues: causality or teleology. Stamm- 
 ler's philosophical position is based upon a monistic 
 conception. "Monism, as applied to social phenomena, 
 seeks a unitary basis of causal relations in the solidarity 
 of social life. The monistic view holds that the legal 
 order and social economy are but form and content of 
 one and the same phenomenon; and that all social 
 movements, including the directive causes of changes 
 in the law as they arise and become effective, are com- 
 prised in the one and the same orderly principle. Monism 
 explains all social changes as "movements of the content 
 of the social life." The interpretation of the social life 
 requires the determination of a regulating principle; 
 there are two available ones, — the principle of causality 
 and that of purpose. "It is unfortunate that modern 
 usage makes conformity to law and causality the same." 
 One's own action or that of another may be considered 
 "either as causally produced from without or as due to 
 the agent." The latter case implies a purpose: "Pur- 
 pose is an object to be effected; the conception of an 
 object as something to be effected brings it within the 
 sphere of the will." Will is not a force, but a direction 
 of consciousness. It is not correct to speak (as does 
 Ihering) of a psychological law of causality; for the 
 
 » "Wirthschaft und Recht," pp. 188-219, 220-228, 229-244, 229. 
 230, 231. See also the article "Recht" in. "Handworterbuch,"' 
 Vol. VI, pp. 333-337. 
 
§48] NEO-KANTIANISM 403 
 
 law of purpose is not causal but teleological. Teleology 
 is conformity to law in terms of desire. "A will which 
 is exercised in the direction of an ideal, and accepts the 
 universally valid point of view of purpose, is a good 
 will; and its law of action (as Hermann Cohen aptly 
 remarks), may be summarized in the precept: 'Let your 
 actions be free.' " 
 
 Only such purpose is justified as makes for the un- 
 conditioned final goal of human endeavor; but there 
 arises the difficulty of the application of purpose to 
 human endeavor and activity, as concretely exemplified. 
 Teleology seems to fail through "the irrevocableness of 
 the law of causality." But this contradiction is apparent 
 only, and is due to the false conception of free will. The 
 freedom of the will must be understood in Kant's sense ; 
 it does not imply an exemption from the law of causal- 
 ity, but only the independence of the will from "the 
 subjective content of the end to be attained. It is the 
 regulation of desire ; it is the thought of an unconditioned 
 goal as the standard for the determination of purposes; 
 it is the idea of an absolute final purpose which imparts 
 to every individually sought end a unity and univer- 
 sality. It thus justifies the concretely chosen end: 
 'Think as though you were to act; this is the practical 
 precept which the idea of freedom inculcates.'" But 
 the conception of the good is derived from human 
 experience; and there emerges an objective criterion 
 of endeavor and conduct by the standard of an universal 
 law of approved desire. 
 
 Social materialism, if it carried out its position con- 
 sistently, would result in a teleological principle, which, 
 in turn, convincingly refutes materialism. For material- 
 ism finds its only philosophical support in the mistaken 
 supposition that there is no order in the social life 
 except the irrevocable dominance of the law of cause 
 and effect. 
 
404 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 The fundamental orderliness of the social life refers 
 only to the form or regulation thereof. The principle 
 of such social order is a supreme unity of purpose, em- 
 bracing all individual ends of the social order. Hence 
 the law of such order can be found only in purpose. The 
 point is to determine the supreme object of social life, 
 to determine the answer to the problem: To what 
 universal ends do men use the instrument of the social 
 order? The principle of the social order must be one 
 that considers the interests and purposes of those 
 affected by social ties, and must be expressed with 
 reference to those coming under its influence. We thus 
 return to the two types of social regulation : to law, which 
 exercises a coercion upon the individual, and to con- 
 vention, which rests upon the consent of those conform- 
 ing to it. By its nature, law attributes to itself the 
 quality of compulsion ; in the light of history this claim 
 is properly made. Law, therefore, cannot be derived 
 from the will of those subject to it. The question arises: 
 How is the coercive character of law to be justi- 
 fied? Coercive dispositions, promulgated as law between 
 man and man, may be justifiable, and thus become 
 "legal measures of force"; or lack justification, and be- 
 come "arbitrary measures." What is the basis of the 
 distinction? 
 
 Stammler does not propose to answer this question 
 a priori. His aim is to determine, from experience, in 
 what connection the conception of law arises, and what 
 are its essential criteria as differentiated from arbitrari- 
 ness. The answer cannot be in terms of any particular 
 content of social regulation, but must be in terms of the 
 formal definition of law. He finds "the desired criterion 
 in the determination of whether or not the commands 
 have a mere personal bearing, and serve merely 
 to express a personal caprice." The opposite of arbi 
 
§ 48] NEO-KANTIANISM 405 
 
 trariness results "when the promulgator of the com- 
 mand is also bound by it. Both [ruler and subjects] 
 must be bound by the same command ; if such is not the 
 case then there is sheer arbitrariness. There is no in- 
 violable command, and thus no true law." If the 
 spirit of the proposed norms implies that they are not 
 binding upon those invested with the authority of estab- 
 lishing them, then such law is arbitrary; but if their 
 spirit is such that until these proposed regulations are 
 abrogated, no action in opposition thereto is permissible, 
 then such law is just. Law raises the presumption of 
 inviolability, therefore law is "in spirit, the inviolable 
 coercive regulating of the communal life." ^ 
 
 The justification of legal coercion. Thus law is formally 
 distinguished from arbitrary power as embodied in the 
 form of laws; but the questions still remain: Why is 
 this intermediary between free convention and arbitrary 
 force necessary? Why should there be legal enforce- 
 ment? The reply must consider mainly the under- 
 lying principle in law and not its incorporation in any 
 set legislation; the problem must be considered as that 
 of justifying legal coercion, of justifying the existence 
 of law in general, and not of specific legislation, of 
 justifying precisely what the anarchists regard as 
 unjustifiable. 
 
 Such coercion cannot be based upon contract or the 
 consent of those affected by it; for history shows that 
 law demands the obedience of its subjects, without 
 reference to their consent or to consideration of their 
 wishes or desires. To put it briefly, the issue is "the 
 
 1 "Wirthschaft und Recht," pp. 263-284, 264, 284-304, 305-345, 
 315, 324 seq., 349-356, 349, 351 seq., 354, 357-380, 369, 380-394, 
 381, 392, 395-448, 449-184, 485-523, 487 seq., 491, 496, 497 seq. 
 See also article "Recht" in "Handworterbuch der Staatswissen- 
 schaften," Vol. VI, pp. 327 seq. 
 
406 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 right of law to exist," ^ its justification. Convention 
 likewise regulates social relations but does not require 
 such justification. Its validity is conditioned by the 
 will of those submitting to it. It says: Do thus and so 
 if you please; but the law demands unconditional 
 obedience. 
 
 The necessity of legal coercion must be proven. But 
 necessity may be understood in two senses: the causal, 
 or the teleological. The discussion of the question is 
 readily affected by the philosophical error of conceiving 
 necessity in the sense of causal necessity. In judging 
 the attempts to establish a philosophical basis for legal 
 coercion, one must distinguish between such as aim to 
 prove it to be a causal consequence, and those that 
 present it "as the indispensable means to a necessary 
 end." The latter attempt a teleological justification 
 of legal coercion, regarding the law either as a means to 
 the maintenance of the human race or as a means to 
 the interests of morality. The former justifications, 
 which Stammler also called the dynamic, are variously 
 expressed. Some justify legal coercion "by a recourse 
 to a psychological cause, to the necessity of obeying 
 certain commands." Such a social impulse — as sug- 
 gested by the "^Zov ttoXltikov" of Aristotle, or the "appeti- 
 tus socialis" of Grotius — would explain merely the 
 fact of socialization but not the coercive authority of 
 the law in contrast to convention. Other dynamic 
 theories urge that those who issue social regulations are 
 impelled by natural causes, by irresistible influences, to 
 invest their dispositions with the quality of legal com- 
 mands. The evidence for such a view would not bear 
 upon the principle of coercion, upon the coercive power 
 as such, but only upon a given concrete law of one kind 
 
 ' "Das Recht des Rechtes" is the last (the fifth) book of the work, 
 (pp. 585 seq.) 
 
§481 NEO- KANTIANISM 407 
 
 or another. Finally, one may have recourse to the 
 empirical fact that legal enforcement is as old as any 
 record of human culture. But this fact does not pro- 
 vide a scientific foundation of legal coercion; and the 
 question of justification of such coercion in the future — 
 which is what the anarchists deny — remains unsolved. ' 
 
 The teleological arguments are likewise various. 
 Hobbes justifies coercion on the ground that without it 
 there would be the danger of war of all against all. 
 This is hardly in point; for the question at issue is not 
 the justification of social regulation in general, but of 
 the special quality of legal coercion as part of social 
 regulation. The second type of teleological argument 
 makes the law the necessary condition of morality; 
 here again the legal order is incorrectly regarded as 
 equivalent to the social order in general. 
 
 Convention makes its appeal to the individual. Those 
 who conform to it, do so of their own accord. If social 
 life were organized exclusively upon the basis of con- 
 vention, it would affect only "certain men with certain 
 qualifications." Hence convention does not account 
 for the entire range of social life. "Convention alone 
 cannot produce an orderly social life or even approxi- 
 mate it." Legal coercion alone has within it the capacity 
 to regulate all phases of social life; and therein lies 
 its justification — "as a necessary means to the es- 
 tablishment of the principle of order in the social life of 
 man." ^ 
 
 1 "Wirthschaft und Recht," pp. 524-533, 533-541, 641-547. 
 See also article "Recht" in "Handworterbuch," Vol. VI, pp. 330- 
 333 (on p. 333: "Kritische," foundation of the coercive power of 
 the law). 
 
 s "Wirthschaft und Recht," pp. 547-561, 551-571, 553, 554, 557. 
 See also Stammler, "Die Theorie des Anarchismus," p. 43: "I base 
 the legality of law in its formal phase upon the consideration thc.t 
 
408 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 Thus is legal coercion established; but this applies 
 only to the justification of law in general. It deter- 
 mines nothing as to the content which the law is to 
 express. Inasmuch as the spirit of the legal order con- 
 sists in the attainment of a certain form of co-operation 
 and mutual intercourse of men, the justification of its 
 positive legal construction will be determined by "its 
 success in finding in its material embodiment the right 
 means to the right end of the social life of man." Such 
 an objective end of social life must be a universal one. 
 The requirement of universal validity as the absolute 
 end cannot be met by any particular and more limited 
 purpose. The ultimate goal of social existence turns 
 upon "a formal idea which in unrestricted unity of 
 purpose directs all subsidiary purposes; and from it 
 alone every empirical variety of social purpose must 
 derive its warrant." ' Good will is the unconditional 
 law of human intercourse applied to the social life; it 
 results in "a community of free agents, and such com- 
 munity is the unconditional final purpose of social 
 life." Legal enactments imposed from without must 
 concur with the autonomous law governing the desires 
 of the subjects as expressed from within — ■ a conclusion 
 that reflects the social philosophy of Rousseau,^ Kant, 
 
 the legal organization is the only one open to all men without dis- 
 tinction of peculiar and accidental qualities. 
 
 "Organization means to unite under regulation. Such regulation 
 of human intercourse is a means to an end, an instrument in the 
 service of the pursuit of the ultimate purpose, the maximum perfec- 
 tion of man. Accordingly, only such regulation of human collective 
 life can lay claim to a universal recognition which embraces compre- 
 hensively all men without regard to their subjective and individual 
 peculiarities, and that alone is represented by the law. Yet in a 
 bad law the legal coercion, considered in itself, appears to be well 
 justified." 
 
 > "Wirthschaft und Recht," pp. 572 seq., 575. 
 
 'For this and the "inconsequence" of Rousseau see Stammler, 
 "Wirthschaft und Recht," pp. 605 seq. See also above, §§29, 33 
 
§ 48] NEO-KANTIANISM 409 
 
 and Fichte. "The community of free agents, in the 
 sense ascribed to the phrase, is admittedly merely an 
 ideal, yet it forms the guide to experience." It is the 
 regulative principle for the objective justification of 
 social coercion. 
 
 Stammler is an opponent of social hedonism. He 
 reaches a general interpretation of social ideals ^ by a 
 different route. The thesis maintained is expressed in 
 the statement that "the social ideal is a unitary formal 
 idea which is to serve as the standard and guide for all 
 empirical efforts in social life, by conformity to which 
 any concrete desire, involving the retention or altera- 
 tion of any legal enactment, is to be legitimately and 
 objectively justified; but which itself never enters, and 
 never can enter, as an empirical datum of social life as 
 experienced." 
 
 Regulative principles: justice and morality. The 
 next question concerns "the practical application of 
 social ideals to existing society." In every social- 
 economic order there are attempts to re-enforce or 
 modify the existing situation. In judging such efforts, 
 "a clear distinction must be drawn between the material 
 phases of social purposes and the formal principle direct- 
 ing them." Three questions arise: What is the origin 
 of social effort? When is it objectively justified? and. 
 In what measures are the right means for the improve- 
 ment of social conditions to be found? Social struggle 
 and endeavor appear in connection with situations 
 which develop under uniform conditions and affect 
 collective interests. Such social efforts are justified as 
 accord with the spirit of the social ideal, which is the 
 spirit of a community of free agents. The right means 
 
 •"Wirthschaft und Recht," pp. 576, 584-588, 576-584, 588- 
 613. See also article "Recht" in "Handworterbuch," Vol. VI, 
 pp. 340 seq. 
 
410 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 for the improvement of social conditions "require such 
 regulation of the social life as would bring the situations 
 in which men live in accord with the ideal of a com- 
 munity of free agents." 
 
 The socialists of the type of Marx regard the communal 
 distribution of the means of subsistence as a social 
 necessity; but whether they mean a causal or a teleo- 
 logical necessity is not indicated. If it be causal 
 it will in due course make its appearance; if it be teleo- 
 logical, then, according to the above principles, it is 
 warranted only if it proves to be the right means, under 
 actual existing conditions, to serve the social ideals of 
 a community of free agents. A convincing proof that 
 communism meets this requirement is as yet lacking. 
 
 Stammler emphasizes the comprehensiveness of the 
 social ideal which his philosophy advocates. Social 
 philosophy must "establish a fundamental regulative 
 social principle in accordance with which minor concrete 
 principles may be determined and applied." The social 
 problem can never be solved, "for that would imply a 
 realization of the social ideal." By its nature this ideal 
 can never be absolutely attained but only approximately 
 realized. The social philosopher will have solved his 
 problem when he shall have furnished a social ideal 
 which will guide the statesman in his political course.^ 
 
 The problem of the philosophy of "natural law" 
 was to establish a natural law, that is, an absolute jusc 
 model law, the law par excellence. But the evidence of 
 history makes against any such assumption. Stammler 
 reinstated this fundamental problem of natural law, 
 while yet avoiding the error of the older position. 
 Stammler's problem in "Die Lehre von dem Richtigen 
 Rechte" is not the determination of an absolute law, 
 
 » "Wirthschaft und Recht," pp. 588 seq., 613, 613-624, 614, 616, 
 616, 617, 624-633, 629, 634-640. 
 
§48] NEO-KANTIANISM 411 
 
 but of the absolute idea of law. After specifically not- 
 ing that he is not an adherent of "natural law," he 
 explains that his purpose "is not to supply an ideal 
 code, but to consider the law as it has historically 
 developed ; not to determine the origin of law as though 
 this could be evolved out of one's inner consciousness, 
 but to subject every law within the range of experience 
 to the test of investigation. The question of the specific 
 mode of origin of law is not pertinent." Stammler's 
 study of the justice inherent in law becomes a mode of 
 procedure which, by "maintaining a self-consistency," 
 prepares the way for the determination of the nature 
 of a just law; the justness is that quality of a law, 
 "which in a particular relation accords with the funda- 
 mental idea of law in general." The science that 
 attempts such formulation is a formal one; that is, 
 "it is a study, the results of which set the conditions for 
 other knowledge." 
 
 What is the relation of constituted positive law to 
 the "just law"? Positive law ever intends to be 
 just or right but is not always so. In its tendency 
 positive law "is a coercive effort towards justice." But 
 there are unjust laws; there are even "consciously 
 recognized unjust laws," that is, legal tolerance of rela- 
 tions or affairs that stand in contradiction to the idea 
 of justice. 1 
 
 In legal transactions and decisions there occur a 
 series of expressions defining the just law, specifying 
 the nature of the quality of justice. Among the Romans 
 there are the terms "bonum et aequum," "bona fides," 
 "sequitas," "jus naturale" or "naturalis ratio," "boni 
 mores" or "mos," "benevolentia," "humanitas," "pu- 
 dor," "pietas" or "ofificium pietatis," "justa causa," 
 "arbitrium boni viri," "justitia." In the legal language 
 
 ^ [See below.] 
 
412 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 of today, we have such terms as "good faith" in the 
 performance of financial obligations, avoidance of "abuse 
 of power" (in the family law of the BOB), "cogent 
 ground" for the dissolution of a legal relation, "intelligent 
 appreciation of the facts of the case" in the avoidance 
 of declarations of intention, while the designation 'good 
 faith" expresses a legitimate alteration of an obligation 
 which, as it is, is a binding obligation; the term "equity 
 or fair appraisal" is applied when the point at issue is to 
 find the limits of a given cause which can only be deter- 
 mined by equity. 1 
 
 The content of just law cannot be derived from ethics. 
 Moral teachings are directed to improve the disposition; 
 the legal order is directed to the regulation of conduct. 
 Yet this contrast is not decisive. It may be said that 
 in regard to their material, the justice of law and morality 
 bear upon the same domain; yet their problems and 
 methods are different. This difference, however, is not 
 an absolute one, for law, as well as morality, "is directed 
 to what is right, and to influencing human desire, and 
 thus must be subject to the same regulative principle." 
 The moral law is based upon that conception of humanity 
 whereby man is to be regarded as a rational being, as 
 ever his own final purpose. The term moral has four 
 meanings: first, as equivalent to all right desires of 
 man in general, whether based on inclination or conduct, 
 and in this sense the social question may be termed a 
 moral one ; secondly, as equivalent to moral in the sense 
 of pure inclination, the "ethos"; thirdly, as equivalent 
 to the norm of conduct thus objectified, representing the 
 rule of justice ■ — such a rule, for example, as that gifts 
 expressing a recognition of a moral duty may not be 
 recalled; fourthly, as equivalent to the right conduct 
 
 ' "Die Lehre von dem Richtigen Rechte,'' pp. 38-44, especially 
 pp. 40 seq. 
 
§ 48] NEO-KANTIANISM 413 
 
 in matters of sex; in this sense the term "offense against 
 morality" is used. That the formulation of the just 
 principle of law has its own problems is made clear by 
 the fact that agitation for the correct regulation of 
 social life is always necessary, however much the moral 
 condition of men may improve. Moral relations cannot 
 be maintained wholly by mutually accepted regulations 
 among men. Political questions as such do not belong 
 directly to the moral law but to the law of justice. The 
 moral law has likewise its own problems, which are 
 directed to the inner life. The idea of perfection in 
 Christian ethics refers to the mental attitude.' But 
 the distinction between the law of justice and morality 
 is only one of direction of approach; their purposes 
 must converge. The law of justice must be supple- 
 mented by the law of morality ; and the law of morality, 
 in order to be realized, requires the law of justice. 
 "Justice without love is vain, and pity without just rule 
 lacks discernment." ^ 
 
 Stammler proceeds to a critical examination of "natural 
 law," the existence of which he denies.' Rousseau first 
 made clear the detachment of natural law from human 
 nature. There are no innate human rights; there is, 
 however, a "limit to the power of tyranny, to the 
 exercise of control by a legal sovereign." Yet this can- 
 not be deduced from human nature, "but only from the 
 idea of a justly ordered life. What may be established 
 is not natural law, but only principles involved in the 
 
 1 "Die Lehre von dem Richtigen Rechte," pp. 12, 93-121, 13-15, 
 8, 19-168, 21-27, 27-32, 268-270. Article "Recht" in "Handworter- 
 buch," Vol. VI, pp. 337 seq. See also Berolzheimer, "Die Entgel- 
 tung im Strafrechte," p. 165, note 2. 
 
 2 "Die Lehre von dem Richtigen Rechte," pp. 51, 52-57, 60, 
 63 seq., 70-75, 72, 73, 74, 76-83, 80 seq., 84-92, 85, 87, 90. 
 
 3 § 3, "Richtiges Recht und Naturrecht," pp. 93-121. 
 
414 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 nature of law." ^ The object is to find a generally valid 
 formal method by means of which the underlying content 
 of law, though subject to a constant change, may be 
 tested by the criterion of material justice. Mercy 
 should be exercised only upon the basis of an inner 
 justification and in the interests of material justice, or 
 by reason of uncertainty, or to rectify the positive law, 
 or in consideration of the consequences of applying the 
 law. Mercy then becomes "the exercise of the law of 
 justice without coercion, merely upon the basis of 
 moral duty." But to thus exercise mercy presupposes 
 the law of justice and the power of the moral will ade- 
 quate to carry out what is recognized to be just. So 
 the first requirement is to determine how the law of 
 justice shall proceed. It must not be the expression of 
 a natural sense of legal justice based on judicial decision; 
 nor the legal consciousness of the folk-spirit; nor of 
 popular sentiment, which may be right in intent but 
 uncritical in its application; nor of the morality of 
 special classes; nor of the personal judgment of the 
 judge. Every legal regulation relates necessarily to 
 an end to be effected, to a purpose; and the problem 
 becomes that of finding the regulative principle of 
 purpose: "to establish a generally valid method that 
 enables one to divide the content of contemplated 
 purposes into two classes, those of just and of unjust 
 content." The principle to be applied to the purposes 
 that determine conduct is not that of freedom and 
 equality; for equality before the law implies merely 
 
 ' "Die Lehre von dem Richtigen Rechte," pp. 93-98, 97 seq. 
 Natural law incorrectly opposes positive law by the assumption of 
 an a priori natural law. But all law arises from experience. The 
 difference is based merely upon the mode of considering law; law is 
 considered either as granted or is made part of a teleological series, 
 (pp. 99-103, 117.) 
 
§ 48] NEO-KANTIANISM 415 
 
 the like treatment of one and all; nor is this principle 
 that of welfare and happiness; but the true principle 
 of the law of justice is the social ideal of the community 
 of free agents. "The content of a norm of conduct is 
 just when it conforms in a particular situation to the 
 social ideal attitude." 
 
 Stammler attempts to determine the just law by 
 developing the underlying principles. This cannot be 
 done by "casual historical observation," nor empirically; 
 the social ideal determines it and demands that the 
 individual shall not be coerced in his legal relations to 
 forego his recognized interests, and yet that each indi- 
 vidual give evidence of his sense of community with 
 his fellows. "While the one demand is directed to 
 the consideration of the individual in his own right 
 action, the other leads to the consideration of the social 
 community and to participation in its affairs. Every 
 one is called upon to bear his own burden; yet this 
 does not contradict the injunction, that he shall bear 
 the burden of another." From this there follow four 
 principles of the law of justice. The two principles of 
 respect are: "One's wishes must not arbitrarily inter- 
 fere with the will of another," and, "Every legal demand 
 can exist only in so far as he who is obliged remains 
 one's equal." The two principles of participation are: 
 "No one under legal obligation shall be arbitrarily ex- 
 cluded from common advantages," and "every legally 
 assigned power is exclusive only in so far as the one 
 excluded may still remain one's equal." These prin- 
 ciples do not imply that by their means legal rules may 
 be directly established; they merely set limitations. 
 The historical development of law should fall within 
 the limits set by these principles. In so far as it does 
 so, it makes for a just law. So the material of justice 
 is the law as history reveals it, the positive law in its 
 
416 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 transformations; but the form is the unity of the 
 permanent element. The form conditions the content 
 in theological, not in the causal sense. 
 
 The extent to which the relations of life may be regu- 
 lated through usage and custom, and not through legal 
 force, is determined by the legal order itself. Regulation 
 through mere custom or usage is legitimate so long as 
 the conventional regulation of certain relations accords 
 with the principles of the law of justice. The teachings 
 of the theory of justice do not coincide with the social- 
 ethical tendency in economics; for the latter affects 
 directly the material of the social life, while the former 
 bears upon the content of justice, and affects economics 
 only through it.' 
 
 Applications: the mission of the law. Stammler next 
 considers the means of establishing the law of justice. 
 The two possible extremes would be either that the legis- 
 lator shall himself determine the regulation, or that the 
 legislator leave it to the individual "voluntarily to make 
 his contributions to the maintenance and development 
 of the social life." The extent to which the central 
 regulation shall control, and how far the members of 
 the community may set their own rules, cannot be laid 
 down in general principles. Limitations can be set only 
 in concrete cases, but ever with reference to the desired 
 end of establishing a just law.^ 
 
 iPp. 116-121, 122-137, 137-141, 142-145, 146-168, 171-187, 
 187-191, 191-195, 196-200, 201-204, 204-208, 208-210, 211-213, 
 213-215, 216-234, 234-239, 239-244, 245-275. 
 
 2 Pp. 245-252. Stammler places as the heading of this section 
 "Einheitswirtschaft und Freie Beitrage" ("Individual Economy and 
 Free Contributions"). I do not find this simile well chosen nor per- 
 tinent to the content. It reflects Stammler's deductive mode of 
 treatment. The history of man is a continuous process of emanci- 
 pation. The stage of civilization attained at any given moment 
 furnishes the basis for the sphere of free action of the individual as 
 
§48] NEO-KANTIANISM 417 
 
 Just law is a law that tends to "determine in advance 
 a justice that is generally applicable to future dis- 
 putes," while merciful law leaves it "to the parties — 
 the counsellor, the judge," to determine the proper so- 
 lution in the individual case.^ A further contrast is 
 that of actual and formal law. The latter is established 
 law, which, in order to strengthen the legal security, 
 may depart in its application from the principles of 
 justice. Such are the provisions relating to the public 
 credit attaching to the land registry book; the statute 
 of limitations; the rules of civil procedure.^ Con- 
 sciously unjust law Stammler calls the toleration by 
 the law of unjustifiable conditions and actions. Analogy 
 to supply omissions in the law has only a subsidiary 
 place.^ 
 
 While the principles of justice should lead deductively 
 to its determination, "it is the problem of the ideal of the 
 law of justice to make concessions" to the "status quo" 
 by the consideration of "legal conditions set by the 
 situation." The ideal of the law of justice must, how- 
 
 against the community. The important point is not how much the 
 central authority and how much the individual contributes to 
 social regulation, but how heavily the central authority bears upon 
 the individual, or how much free play it leaves for the expression 
 of individuality. 
 
 'Pp. 252-261. Stammler refers to the model set by Aristotle: 
 "BiKoioavvrj-i'TneiKaa". The German translation into "gelind" 
 (lenient) is taken from Luther. 
 
 2 Pp. 262-268. This point of Stammler's is to be commended. 
 The conflict with the conception of law which may arise from the 
 formal nature of law was formerly not sufficiently considered and 
 elucidated by legal philosophy. See Berolzheimer, "Die Entgeltung 
 im Strafrechte," pp. 189-191, 270-327. The formal prescription, 
 and the proof, as well as the burden of proof or presumption, give 
 rise to positive law which in an individual case may seem unjust. 
 
 3 "Die Lehre von dem Richtigen Rechte," pp. 268-271. See also 
 Berolzheimer, "Die Entgeltung im Strafrechte," pp. 165, 168, 495. 
 
418 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 ever, not be itself empirically conditioned, but must be 
 of general validity. It must accordingly effect "a 
 correlation of the empirical material which shall be 
 independent of the details thereof." Consequently "the 
 ideal of justice" in its "formula and function" must be 
 derived from the idea of just law. 
 
 "The model considered by the law of justice is that 
 of a select community — the principle of selection itself 
 determined by the just law"; such community is 
 naturally not a reality but merely an aid to constructive 
 thought.^ One must put the hypothetical question: 
 With whom shall I in thought ally myself in a select 
 community? or. Whom shall I consider to be my neigh- 
 bor? The reply varies and includes in one relation 
 narrower, and in another, wider groups of persons of 
 affiliated interests. 
 
 Under the phrase "Types of Performance," Stammler 
 sets forth that the idea of a select community involves 
 that every participant may demand of every other, 
 consideration and participation. The principles of 
 consideration and participation are thus maintained in 
 the legal relations of a number of persons bound together 
 by a common legal tie, and likewise in the relation of 
 such persons to third persons. In its legal aspect the 
 value of performance rendered must be determined; 
 its value must be objectively stated. The formula 
 proposed by Marx will not hold; for value "sets an 
 independent standard apart from legal control." Value 
 can be rightly determined only in accord with the 
 principles of justice, as based on objective facts. When 
 thus considered the law of justice will be available for 
 practice. 
 
 > "Die Lehre von dem Richtigen Rechte," pp. 271-275, 276-280, 
 281-284, 285-291, 292-298, 311-598. Stammler's comments upon 
 usury should be noted. 
 
§ 48] NEO-KANTIANISM 419 
 
 The part of Stammler's work that considers the 
 practice of the principles of justice makes a first attempt 
 to indicate how it may be applied. The subject is 
 divided as follows: (1) The just administration of legal 
 relations, including performance in good faith, the 
 avoidance of abuse of family rights, performance under 
 the formula "if it can be done," performance according 
 to an equitable standard. (2) The limits of the freedom 
 of contract. The theory of justice prescribes the chief 
 limitations. (3) The duties of justice, that is, the legal 
 duties obligatory upon the parties concerned, arising 
 directly from the idea of the just law;^ thus, per- 
 formances in compliance with moral duty or the rules 
 of social propriety, equitable compensation, intentional 
 injuries contrary to good morals, acceptance of per- 
 formances offensive to good morals. (4) The establish- 
 ment of a just content of acts in the law. Under this 
 head are considered the real will of the parties, a reason- 
 able understanding of the facts, interpretation according 
 to good faith supplementing incomplete contracts. 
 (5) The termination of legal relations. Legal relations 
 that are permanent, like marriage, or entered into for 
 long periods, may under certain conditions be dis- 
 solved. The principles of the law of justice furnish 
 directions for the legitimate circumstances. 
 
 The conclusion of the book is devoted to the mission 
 of the theory of justice. The principles of justice are 
 necessary "for uniformity in every social consideration." 
 It is only through the principles of justice that sociology 
 attains uniformity.^ It alone makes possible an insight 
 into the regulative principle of social history, which is 
 
 ^ "The question is ... to what actions and restraint men are 
 in justice bound without the necessity of a legal enactment forcibly 
 demanding such compliance" (p. 247). 
 
 2 Pp. 447-496, 497-553, 554-598, 601-627. 
 
420 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 not causal, but teleological. The purpose of evolution 
 is set by the conception of the community as a real and 
 just co-operation, and can be realized only through the 
 standards of justice.' This law forms the fundamental 
 determining condition for social economics, and forms 
 "one of the necessary stages" to a true philosophy.^ 
 
 A critical view. Stammler's importance as a legal 
 philosopher is not adequately recognized. Most writers 
 decline to accept his theory of legal coercion or dispose 
 of it with brief criticism. But such an attitude over- 
 looks the importance of the correct statement of a 
 problem, in which consists Stammler's special claim to 
 consideration. He is the first since Rousseau seriously 
 to consider the problem of the coercive pwDwer of the law. 
 He may have been led to this by the position of anarch- 
 ism, which denies the justification of coercion altogether, 
 as well as by his radical modification of the material 
 conception of history. Yet this is not important ; every 
 student is influenced by others, and frequently by those 
 of opposite opinion. Stammler has clearly conceived 
 and formulated the specific problems of the law. Even 
 such luminaries as Aristotle and Grotius have so con- 
 sidered the problems of government and law that their 
 solutions merely account for — and this imperfectly — 
 the socialization of man, and do not analyze the nature 
 of the legal association which the law establishes. 
 Rousseau as well as Kant and Fichte considered the 
 nature of law and government, but not from the in- 
 herently legal aspect of the problem, but from that of 
 its counterpart, freedom. Their problem was not. How 
 is legal coercion to be accounted for? but. What elements 
 
 ' "Die GeEellschaftliche Entwickelungslehre." ("Die Lehre von 
 dem Richtigen Rechte," pp. 607-620.) 
 
 ^ "Orthosophie." ("Die Lehre von dem richtigen Rechte," 
 pp. 621-627, 626.) 
 
§48] NEO-KANTIANISM 421 
 
 of freedom must be conserved by the law in order that 
 the law shall be justified? Stammler, with a subtle 
 logic, analyzes the nature of legal coercion in itself, 
 and independently of any particular form or content of 
 the law. His solution is as follows : The coercive power 
 of the law is justified by its necessity to the social life. 
 The answer is in part inadequate and in part false ; inade- 
 quate in that it is not unconditionally necessary that 
 all humanity shall be socially united ; and false, or rather 
 no solution at all, in that the attempt to dispense with 
 legal coercion is conceivable. Apart from his results, 
 Stammler's method is open to criticism, for teleology 
 involves a subjective or anthropocentric factor. Tele- 
 ology recognizes law only in its subjective aspect, its 
 value for humanity. But the true question relates to 
 the objective nature of law, irrespective of the opinion 
 of society. To my mind Stammler's deductive pro- 
 cedure unfavorably affects the value of his conclusions; 
 nonetheless I regard them as not far removed from the 
 correct result. Legal coercion is in fact a necessity, 
 though a relative and not an absolute one. Like custom 
 and morality it is a cultural necessity, because it artifi- 
 cially restores and increases that power which humanity 
 has sacrificed in culture and through culture, that is, 
 the natural exercise of impulses, lost or enfeebled in the 
 course of civilization. 
 
 Stammler's conception of the relation between law 
 and economics, though open to objection, is helpful. 
 What he calls social life or social economics is sub- 
 stantially economics as the material content of law ; but 
 inasmuch as Stammler regards all social life as regulated 
 by the law or by the conventional rules of custom, he 
 fails to consider — which Jellinek and Gothein especially 
 object to — the true social expressions, the spontane- 
 ous expressions of the members of the community. 
 
422 SOCIOLOGICAL PHILOSOPHEIS [Ch. VII 
 
 which are not determined by hard and fast conven- 
 tional rules. 
 
 Stammler's studies are notable in the philosophy of 
 law by reason of his restatement of the fundamental 
 problem raised by "natural law," the problem of deter- 
 mining the principle of justice, the criterion of the legal 
 ideal. His contributions enrich important problems in 
 the general theory of law and economics. He reinstates 
 the conceptions of the older philosophy of law and of 
 historic legislations; he frequently refers in his applica- 
 tions of the principles of justice to what the Romans 
 called "aequitas" or "naturalis ratio," and what the 
 modern legislation of the German code terms equity or 
 equitable standards, performance in good faith, etc., 
 or to express it in a single phrase, the idea of a balanced, 
 concordant law. 
 
 2; Neo-Hegelianism. J. Kohler (b.' 1849) is a neo- 
 Hegelian, holding with Hegel that law is to be considered 
 as a cultural phenomenon; but while Hegel regards a 
 philosophy of law as the product of deduction, Kohler 
 proceeds empirically, leaning upon history and eth- 
 nology; and this is a great step in advance. Kohler 
 rejects the principle of hedonism. The sentiment with 
 which he begins his work, "Recht, Glaube, und Sitte," 
 reads: "The world does not exist for our pleasure." ^ 
 The culture of a people determines the development 
 and form of its laws. "The law of a people can be 
 interpreted only in the light of its entire culture; which, 
 in turn, is to be interpreted, as extending beyond the 
 material economic factors, to include the ethical and 
 religious views which the law reflects. Laws are not 
 shaped consciously or unconsciously by considerations 
 
 ' Grunh., Z., Vol. XIX, p. 561 ; also pp. S61-565, 609, 612, on which 
 will be found views against utilitarianism and social eudemonism. 
 See also the excellent presentation in the "Enzyklopadie," p. 10. 
 
§481 NEO-HEGELIANISM 423 
 
 of utility. The general view of life influences the law, 
 and from such composite cultural forces the law arose. 
 The law establishes the channels through which the 
 stream of culture flows, and the course and nature of 
 the channels take their character from the cultural 
 trends, which in large measure are sustained by the 
 prevalent beliefs in regard to the spiritual life and the 
 divine rule." ^ Kohler compares the religious origins 
 of legal institutions and enactments and thus concludes : * 
 "What I wish to set forth is that in the shaping of the 
 law there have been operative very different forces than 
 the pursuit of temporal welfare, very different efforts 
 than those aiming at happiness. The religious attitude 
 is responsible primarily for the majority of legal insti- 
 tutions; the law finds its sanction in the command of a 
 higher realm. The origin of primitive law lies in ani- 
 mistic conceptions; but even after primitive beliefs 
 have declined, and survive only in superstitions, the law 
 retains its religious tenor; even when law is apparently 
 non-religious in that it treats all religious communions 
 upon an equal footing, it becomes not irreligious but 
 
 1 Grunh., Z., Vol. XIX, p. 561. Also Kohler, "Zur Ethnologischen 
 Jurisprudenz" ("Z. f. v. Rechtsw.," VI, p. 407): "Law is no dead 
 product of the understanding but a living creation of iiuman 
 civilization which is firmly rooted in the mental soil prepared by 
 religion, custom, and education, by faith, love, and individual 
 efforts." "Rechtsgeschichte und Weltentwickelung" ("Z. f. v. 
 Rechtsw.," V, pp. 328 seq.: "As in every cultural development so 
 also in the development of law, the unconscious plays the largest 
 part; inasmuch as the development does not proceed, or at least 
 not notably, according to the desire and expectation of those partici- 
 pating therein. Evolution has its own organic laws. That there 
 is an unconscious rationality in the history of civilization is the 
 supreme principle supplied by the history of law." See also "Enzy- 
 klopadie," p. 6, § 3. "Recht als Kulturerscheinung." Also 
 "Shakespeare vor dem Forum der Jurisprudenz," pp. 84 seq., 239. 
 
 1 "Recht, Glaube und Sitte," p. 610. 
 
424 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 religiously neutral as affecting the several religious con- 
 fessions. The belief, arising from the deep conviction 
 that the destiny of humanity is not determined by the 
 goal of personal happiness, persists in the law. The 
 law remains primarily moral and not merely hedonistic. 
 The law has its ideals, as nations have their ideals; and 
 it is these ideals and not the sense of utility that have/ 
 brought forth legal institutions." 
 
 Kohler's position appears in his conception that "the 
 process of the formation of the law can be understood 
 only as part of the general development of a people. 
 A history of law that disregards the racial element would 
 be like a history of art that neglects the cultural forces 
 from which the art-impulse and its expression were 
 derived." "The philosophy of law must set forth how 
 at every stage of development definite legal institutions 
 have embodied the cultural ideals then maintained." ' 
 
 The State is justified by the indispensable part that 
 it plays in the development of culture; its existence is 
 necessary because only an association of the govern- 
 mental type can meet the needs of civilization." The 
 Hegelian view makes the State a requirement of the 
 rational nature of man and rejects the limitation of the,. 
 State to the interests of law.^ Historically the State 
 appears first as a "Totem-State," the totems or clans 
 growing out of the family, and further associated by 
 
 ' "Recht, Glaube und Sitte," pp. 564, 611. "Enzyklopadie," 
 § 8, pp. 14 seq.; p. 14: "Without a universal history of law there 
 cannot be any adequate philosophy of law, just as without a uni- 
 versal history there can be no philosophy of humanity, and without 
 linguistics, no philosophy of language. See also § 11, pp. 17-20. 
 
 ""Enzyklopadie," §40, pp. 55-57. "Einfiihrung in die Rechts- 
 wissenschaft," second edition, pp. 109-112. P. 110: "The State is 
 a legal personality existing for the purpose of advancing through 
 their inherent value the chief cultural efforts of men, within certain 
 realms.'' 
 
§ 48] NEO-HEGELIANISM 425 
 
 intermarriage; and the resulting alliances strengthened 
 by a common headship. Common forays for pillage and 
 booty led to their organization under a chief; and with 
 the support of the priestly class, the chieftainship be- 
 came a kingship. States based upon community of race 
 were transformed by the addition of foreign elements 
 into a State based upon territorial boundaries. 
 
 In the domain of family law, as in law in general, men 
 at first formed a compact communal body; it is only 
 in later stages that the individual emerges to a position 
 of legal and moral self-assertion. In primitive times the 
 family bond was that of religion, the emblem of the 
 common totem being usually that of an animal form, 
 and the totem itself maintained by restrictions of mar- 
 riage alliances. The restriction of marriage under the 
 totem was based upon a matriarchy, which in turn, 
 as a consequence largely of the capture and sale of 
 wives, gave way to a patriarchy, the process aided by 
 the ruling position of the chief. Marriages restricted 
 to the communal group step by step gave way to the 
 freedom of individual marriage. ^ 
 
 Freedom of action may lead to wrongdoing; and 
 wrongdoing to atonement. Punishment is justified as 
 an atonement, which restores the individual who under- 
 goes the punishment, through the atoning and purify- 
 ing quality of pain, and through him the effect reacts 
 upon humanity. "Humanity, which suffers through 
 misdeed, is saved, and the poison which sin brings to 
 men is counteracted by an antidote."* Law as retrib- 
 utive justice — a principle still operative — grows out 
 of blood vengeance, the right of revenge. Punishment 
 is not to be upheld for its effect upon the individual; 
 
 1 "Enzyklopadie," § 38, pp. 51-54; § 39, pp. 54 seq.; §§ 17-23, 
 pp. 27-34. 
 
 2 "Das Wesen der Strafe," pp. 6-19, 9. 
 
426 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 punishment must be strictly differentiated from com- 
 pulsory educational and protective measures. ^ 
 
 Men began with a communal law, and the right of 
 the individual was a much later issue; yet social insti- 
 tutions continue to restrain self-assertion and the per- 
 sonal exploitation of others. A return to a communal 
 form of life and a communal economics is out of the 
 question. The principle of individual right is firmly 
 established. "So far as we can foresee, the ultimate goal 
 of human evolution is not personal happiness, but the 
 maximum development of culture, on the one hand 
 towards the conquest of worldly power, and again 
 towards the dominion of the spiritual life. Legal theory 
 as well as legal practice, the philosophy, the history, 
 the doctrine, and the art of law, are similarly indispen- 
 sable as means to the comprehensive advancement of 
 human destiny. The law partakes of the divine and as 
 such will endure." ^ 
 
 Kohler's philosophy and its development upon the 
 legal side is the most important, and perhaps the most 
 valid contribution to legal philosophy since Hegel. His 
 researches, ethnological and legal, may be said to have 
 made possible the reinstatement of the philosophy of 
 law as a worthy philosophical discipline. The modern- 
 ization of the Hegelian philosophy, the presentation of 
 the law as a cultural expression, is a most valuable and 
 permanent service not as yet sufficiently appreciated. 
 Certain of his critics comment disparagingly on his 
 versatility, forgetting that broadness of view is a com- 
 
 1 "Enzyklopadie," §§41^6, pp. 67-63; "Einfiihrung in die 
 Rechtswissenschaft," second edition, pp. 148-152. 
 
 ' "Enzyklopadie,'' § 51, pp. 68 seq. ("Kiinftige Bildungen"). 
 Also "Rechtsgeschichte und Weltentwickelung" ("2. f. v. Rechtsw.," 
 V, pp. 328-330; "Die Rechtsphilosophie des 20. Jahrhunderts" 
 ("Deutsche Juristenzeitung"), 1904, pp. 29 seq. 
 
§ 48] V. HARTMANN 427 
 
 mon sign of capacity. His position as a student of the 
 historical and technical aspects of law has been more 
 generally recognized then has his merit as a legal phil- 
 osopher. It may be that the artistic and literary tem- 
 ■'per of his writings has detracted from the judgment 
 of their scientific value; but the more important criti- 
 cism relates to his view of legal and economic institutions, 
 as constantly shifting, as lacking all points of arrest, 
 which deprives his philosophy of practical application. 
 We are part of an endless stream of development, invol- 
 untary instruments of a rational idea, in which we 
 believe, but which we cannot direct. Instead of encourag- 
 ing the efforts of the individual and of the community 
 in their guidance of the ship of State towards the real- 
 ization of a practical justice, instead of supporting a 
 rational direction of the forces of evolution, instead of 
 thus affording an effective objective goal of endeavor, 
 philosophy invites the distracted pursuit of a constantly 
 shifting purpose. If the philosophy of law is to be fruit- 
 ful it must become a practical discipline, must provide 
 norms of human action. The Hegelian view, as an expres- 
 sion of culture, must be supplemented by considering 
 that the purpose of culture, including the cultural aspects 
 of law and ethics, is to increase human efficiency. 
 
 3: Hartmann. Ed. v. Hartmann' (b. 1842) in his 
 study of the moral consciousness observes the existence 
 of a psuedo-morality which is egoistic, seeking individ- 
 ual happiness; and again, of an altruistic pseudo-morality 
 
 'The works of Ed. v. Hartmann to be noted are: "Phanomeno- 
 logie des Sittlichen Bewusstseins. Prolegomena zu Jeder Kunftigen 
 Ethik," Berlin 1879. The second edition bears the title, "Das 
 Sittliche Selbstbewusstsein. Eine Entwickelung Seiner Mannigfalti- 
 gen Gestalten in Ihrem Innerlichen Zusammenhang mit Besonderer 
 Rucksicht auf Brennende Soziale und Kirchliche Fragen der Gegen- 
 wart." Selected works, 2 vols., Leipzig 1886. "Die Sozialen 
 Kernfragen," Leipzig 1894. "Ethische Studien," Leipzig 1898. 
 
428 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 represented by moral principles enforced by authority. 
 The former is inconsistent with self-denial which sets 
 the negative lower limit of ethical action; the latter 
 derives its power from the authority of the head of the 
 family, or of the State through its legislation, or of 
 custom as unconscious morality, or of religion as expres- 
 sive of God's will or that of the Church. 
 
 Moral principles can be derived only from the moral 
 consciousness of the individual. "The attempt to bring 
 about an action of subjective ethical value by the im- 
 position of a foreign will is as misdirected as would be 
 the increase of one's own rations for the purpose of 
 adding to another's weight." If there be such a thing 
 as true morality, it must grow out of the moral autonomy 
 on the basis of the voice of conscience; yet conscience 
 "is not a simple and original datum but a very compli- 
 cated result of all the several impulses, feelings, opinions, 
 prejudices, tastes, reasonings, etc., that participate in 
 the formation of the ethical consciousness." 
 
 As motives of morality, or subjective moral principles, 
 must be considered a series of factors which v. Hart- 
 mann groups according to their aesthetic, emotional, 
 and rational foundations. Among the emotional motives 
 of moral action are the moral principles of reciprocity 
 and the social impulse. Dissenting from Kant's view, 
 Hartmann regards the sense of duty merely as a tendency, 
 as a decisive inclination, provided that the sense of 
 duty is strong enough to lead to action. Among the 
 rational motives of moral action are the principles of 
 freedom and equality, including moral freedom. Here 
 also belong righteousness and justice and equity. To 
 bring about the general recognition of order, morality 
 must be transformed into positive enactments ; and from 
 this necessity arises the legal order. Morality is older 
 than the legal order in which it finds its issue. 
 
§48] V. HARTMANN 429 
 
 It is false to regard the power of coercion as the cri- 
 terion, differentiating law and morality; the distinction 
 fails in that the enforcement may not always be real- 
 ized ; for crime may go undetected and injury may not 
 have compensation. Coercion is not an essential ele- 
 ment of the law. "It is not the physical coercion, but 
 the right to exercise it, that is an integral part of the 
 law, and it is a confusion of the two to accept physical 
 coercion as the essential factor." The legal order re- 
 flects the expressions of the moral consciousness, in 
 so far as these have become clearly realized and def- 
 inite and amenable to formal regulation. Hence "the 
 legal order ever lags a little behind the general level 
 of the moral consciousness." 
 
 Law must have the support of might, but must never 
 rest upon it. The position of "natural law" cannot be 
 sustained; but we may accept as established its under- 
 lying ideas that the legal structure is not accidental 
 but necessary, proceeding from a natural trend of 
 human nature, and that the legal order requires 
 guidance in its developmental advance. 
 
 Schopenhauer's view that wrong is the positive con- 
 ception, and the conception of right is derived there- 
 from, will not hold. To the obligation of obedience 
 on the part of the citizen subject to the law, there 
 corresponds that of justice on the part of the judge as 
 guardian of the law. Righteousness and justice are 
 the dominant virtues of men. "Where women have 
 influence, there favoritism obtains." The intervention 
 of reason in supplement of the law constitutes equity. 
 As ends of morality or objective moral principles there 
 have been proposed social hedonism, evolution, "the 
 moral principle of cultural development," and the 
 moral order of the universe. The primitive basis of 
 morality, or the moral principles, appear as the monistic 
 
430 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 principle which is equivalent to the essential unity of 
 the individuals; as the religious moral principle which 
 is equivalent to the identity with the absolute; as the 
 absolute moral principle which is that of an absolute 
 teleology or self-sufficiency; and as the moral principle 
 of salvation which is the negative absolute hedonistic 
 principle. 
 
 The moral consciousness finds its satisfaction in the 
 absolute moral principle, according to which all moral 
 ideas appear as strict logical consequences. The abso- 
 lute moral principle is all-embracing. "It appears on the 
 one hand as the real principle and basis of development 
 of the subjective and objective moral order, as also of 
 the moral instincts, ideas, and institutions; and on the 
 other hand it is the conception of this real principle as 
 the rational basis of all relative moral principles and of 
 all moral problems." Through the absolute moral 
 principle the identity of the individual with absolute 
 being is secured. Yet the conviction is lacking that the 
 absolute process is teleological. If the individual, on 
 the basis of his identity with the absolute, accepts the 
 absolute teleology, he does so in the expectation that the 
 moral services of the individual will accrue to the benefit 
 of the absolute. But this is the case only when the 
 relative purpose furthered by the individual is a means 
 to the absolute end, and when the absolute end also 
 accrues to the benefit of the absolute. The first of these 
 conditions is fulfilled "when the absolute becomes strictly 
 logical and self -determining" ; the second only when 
 "the absolute purpose of the supreme unity is absolute 
 and hedonistic, that is, when the super-moral end which 
 all moral means serve, is the happiness of the absolute." 
 The negative absolute hedonistic principle,^ considered 
 
 * On the relation of Hartmann's ethics to eudemonism see Hart- 
 mann, "Ethische Studien," pp. 160-227. 
 
§49] PSYCHOLOGY AND LAW 431 
 
 as the absolute, is as follows: "The salvation of the 
 absolute from its transcendental misery ('Unseligkeit') 
 through the immanent toil of the world-process. It 
 may be more briefly termed the moral principle of 
 salvation, obviously only in the absolute sense." 
 
 This view combines the positions of Schopenhauer 
 and Hegel. The individual as a corporeal being finds 
 the salvation of which he is capable, spontaneously, in 
 the course of nature, through death after the surcease 
 of vital processes; the world finds its salvation "only 
 through consummation of the world-process, that is, 
 through the salvation of the absolute by means of the 
 fulfillment of the world-purpose. Only through the 
 construction of a moral world-order on the part of 
 reasoning self-conscious individuals can the world- 
 process be directed towards its goal; and only through 
 an ultimate consciousness of the negative absolute 
 hedonistic meaning of this purpose can the end itself 
 be attained. Real being is the incarnation of divinity. 
 The world-process is the history of the passion of the 
 incarnated God and at the same time the path to the 
 salvation of Him crucified in the flesh. But morality 
 is co-operation in the reduction of this path of sorrow 
 and salvation." ^ 
 
 §49. Psychological Aspects of Law. 1: The 
 Psychological Basis. Wilhelm Wundt^ (b. 1832) may 
 
 ' The sources of these principles will readily be traced in the succes- 
 sive chapters of the "Phanoraenologie des Sittlichen Bewusstseins.'' 
 
 * The works of Wundt to be noted in this connection are: "Logik," 
 second edition, 2 vols., 2 parts, Stuttgart 1895, pp. 477-499, 633- 
 588. "Ethik, Eine Untersuchung der Tatsachen und Gesetze 
 des Sittlichen Lebens," 2 vols., third edition, Stuttgart 1903. 
 "Volkerpsychologie, Eine Untersuchung der Entwickelungsgesetze 
 von Sprache, Mythus und Sitte,'' Vol. I, "Die Sprache," Parts I 
 and II, Leipzig 1900. (See Berolzheimer, "System," Vol. I, p. 118, 
 note 23, and pp. 117 seq., for bibliography.) 
 
432 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 be regarded as the most influential philosopher 
 of the day. The experimental psychology which he 
 emphasized forms the most important division of 
 philosophy considered as a science of investigation and 
 not merely of description. This dominant psychologi- 
 cal trend may be called neo-Socratic in that it aims to 
 establish philosophical truths by a study of the content 
 of the human mind. 
 
 The origin of law is according to Wundt an issue 
 of the psychology of races. i "Like language, myth and 
 custom, law is not the issue of an arbitrary consen- 
 sus, but is a natural product of consciousness firmly 
 rooted in the emotions and desires arising from the com- 
 munal life of man. "2 Wundt proposes as the formal 
 definition of law "the aggregate of privileges and duties 
 which the superior will of a community acknowledges 
 as incumbent upon the individual members of such com- 
 munity and upon itself." There is no natural law, and 
 law is ever a concrete positive law.^ From the mode of 
 the origin of law Wundt, in his "Logik," concludes that 
 the law is not necessarily attached to the State. Law 
 may rise in communities and in societies, indeed in 
 every form of association * "that is capable of develop- 
 ing a communal will through a sufficient consensus of 
 conceptions, efforts and interests." Law has external 
 and internal characteristics; the former appear as ex- 
 pressions of the will, the latter relate to "the conform- 
 
 1 Wundt, "Logik," second edition. Vol. II, Part II, pp. 533-542, 
 533, 543, 542-561. 
 
 ^This was also the position of the historical school, though only 
 as bearing upon communal interests. See above, § 34. 
 
 ' "Logik," p. 542: "There is accordingly as little an abstract law 
 as there is a universal speech or a universal custom." 
 
 * "Logik," II, 2, pp. 543, 545-559, 546, 553. 
 
§49] PSYCHOLOGY AND LAW 433 
 
 ability of the order instituted by the will as expressed 
 in law, and the justice thereof." ^ 
 
 Wundt proceeds to construct an ethical system upon 
 a psychological basis, by reference to the data of the 
 moral consciousness and to historical consideration and 
 criticism of moral philosophies.^ His procedure is induc- 
 tive but is not confined to a merely empirical study. 
 Experience shows that moral conceptions vary widely 
 and thus cannot be determined a priori. Yet moral 
 development does not depend upon mere chance; it 
 reveals an ethical aspiration, a striving toward a higher 
 purpose. Moral conceptions are consistent issues of 
 general culture. Side by side with the individual will 
 exists the general will of the community. When such 
 a collective will asserts itself, it is a real force ; it comes 
 to prevail above individual wills and develops a cultural 
 efficiency, expressed in such social products as speech, 
 custom, law, and morality. The formulated purpose 
 and the one attained are often quite diverse. The pur- 
 pose is generally more extensive than the conscious 
 intent. This Wundt explains by the fact that the indi- 
 viduals are themselves representatives of a larger cul- 
 tural movement; as such they have the ethical task of 
 bringing their individual purposes into harmony with 
 those of a general progress. Such evolution Wundt 
 accepts as the true ethical goal,' which can be completely 
 
 ^ This factor of the will in the formulation of law is also empha- 
 sized by Schuppe, but the further development of his view is so 
 bound up with his ethics that it cannot properly be considered in 
 this connection. See below, § 50. 
 
 ^ The data of the moral life, that is, language and moral concep- 
 tions, religion and morality, custom and social life, the nature and 
 cultural conditions of moral development. "Ethik," I, pp. 20- 
 279, Vol. I, pp. 280 seq., is historical — the development of moral 
 conceptions. 
 
 ' "Ethik," II, pp. 27-30; pp. 31 seq. is on the racial psychological 
 basis of this ethical theory. 
 
434 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 realized, not in terms of the individual, but of the race. 
 Considering that for "the life according to nature" of 
 the Stoics there is substituted the injunction to shape 
 the purposes of the will in accord with the development 
 of culture, we may call the position a stoicism upon a 
 racial-psychological basis. 
 
 The moral life includes the individual personality, 
 society, the State, humanity. With regard to the ulti- 
 mate moral purpose of the law, in terms of content, the 
 objective law may be described "as the inclusive con- 
 ception of all individual rights and duties, which the 
 law, as expressing the general moral will, secures as a 
 right. It secures them in its own behalf and in behalf 
 of the individual wills subordinated to it in order to aid 
 them in their pursuit of moral purposes ; and it imposes 
 them as a duty for the protection of such laws." ' 
 
 Externally law and the legal order appear as "the 
 operations of the will of the State, which, as such, have 
 enforcing power over the individual wills and over all the 
 more limited general wills, which belong to the com- 
 munity as legally instituted. Law embraces the pur- 
 poses which the will of the State pursues and the 
 regulation of the means by which such purposes are to be 
 attained." ^ Wundt considers the functions of the State 
 with reference to communal ownership and economics, 
 to law as a common possession, to the social community, 
 and to the cultural community. Punishment is the 
 natural reaction of the general will against the attempted 
 infringement on the part of the ill-disposed individual 
 will against the general will. It is a special type of 
 reaction, related to retribution and reformatory pur- 
 
 i"Ethik," 11, pp. 224 seq., 208; on Justice, see pp. 209-211; on 
 Equity, pp. 211 seq. 
 
 ^ "Ethik," II, p. 206. The definition is faulty in that the one un- 
 known, will, is given as the explanation of the other unknown, law. 
 
§ 49] PSYCHOLOGY AND LAW 435 
 
 poses but not identical with them. The essential 
 factors of punishment are discipline, atonement, and 
 educational influences.' 
 
 2: ZiTELMANN. ZiTELMANN (b. 1852) Contributes 
 an important study of will, reason and consciousness. 
 In his work, "Irrtum und Rechtsgeschaft,"^ he con- 
 cludes that "will is that operation of the mind which 
 acts directly upon the motor nerves and thus causes a 
 distinctive bodily movement. The will is in itself neither 
 conscious nor unconscious; it becomes the one or the 
 other according as it is accompanied by the perception 
 of its content or not."* Zitelmann proceeds to study 
 the relation of perception and will with regard to acts, 
 the juristic act, "Rechtsgeschaft" ; the relation of 
 mistake to juristic acts in general; and the kinds of 
 mistake in the several divisions of juristic acts in 
 particular. The compass of this work does not make 
 possible the further consideration of his suggestive 
 treatment. 
 
 3: Jellinek. Georg Jellinek* (1851-1911) is an im- 
 portant contributor to the philosophy of government. 
 
 1 "Ethik," II, pp. 306-350, 144-157, 152-156. 
 
 ' "Eine Psychologisch-Juristische Untersuchung," Leipzig 1879, 
 pp. 34-79, 83 seq. 
 
 '"Irrtum und Rechtgeschaf t, " p. 79. 
 
 ^The works of Jellinek here pertinent are: "Die Sozialethische 
 Bedeutung von Recht, Unrecht und Strafe,'' Vienna 1878. "Die 
 Rechtliche Natur der Staatenvertrage," Vienna 1880. "Gesetz und 
 Verordnung, Staatsrechtliche Untersuchungen auf Rechtsgeschicht- 
 licher und Rechtsvergleichender Grundlage," Freiburg i/B 1887, 
 pp. 189-225. "System der Subjectiven Offentlichen Rechte," Frei- 
 burg i/B 1892. "Tiber Staatsfragmente," Heidelberg 1896, pp. 
 11 seq. "Das Recht des Modernen Staates," Vol. I, "Allgemeine 
 Staatslehre," Berlin 1900, pp. 3^8, 96-101, 121-258, 302-341, 
 394-460, 544-572, 696-719, 725. See aXsoLudwig Stein, "Die soziale 
 Frage im Lichte der Philosophie, " second edition, pp. 411-415, for 
 an estimate of Jellinek. 
 
436 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 Without prejudice to other writers, his "AUgemeine 
 Staatslehre" may be said to be the most illuminating of 
 recent works in this field. He approaches the problems 
 critically and is under no inclination to yield to the 
 allurement of the social philosophy that in recent years 
 has inveigled so many able minds. 
 
 The State is intimately bound up with all social phe- 
 nomena, but is nonetheless a man-made institution; 
 accordingly "the analogy between a communal State 
 and animal societies rests upon a confusion of the 
 necessary consequences of physical organization and 
 instinctive psychological expressions with the operations 
 of ethical forces." There are indeed animal societies, 
 but no animal States. The conception of society 
 implies the existence of independent institutions inter- 
 mediate between the individual and the State. ' 'Society, 
 in the largest sense, refers to the totality of the psycho- 
 logical associations among men that find external 
 expression. In this sense it is identical with a corpora- 
 tion, which consists of a large number of separate 
 permanent or transitory relations between individuals. 
 This conception, however, is so broad that it cannot be 
 made the basis of profitable scientific study. The 
 materials upon which modern sociology bases its con- 
 clusions are often but a deceptive cover for a priori 
 constructions based upon inadequate inductions." Such 
 a conception of society is valuable only as a corrective 
 to biased theories of government. 
 
 In the narrower sense society denotes "the sum total 
 of human associations, that is, of groups of men held 
 together by some common factor." A hard and fast 
 differentiation of State and society is not possible. The 
 State is itself a form of social product, and at once the 
 condition as well as the issue thereof. "No social group 
 can be conceived as existing beyond the range of the State 
 
§49] PSYCHOLOGY AND LAW 437 
 
 or without it. One may, therefore, question the validity 
 of this conception of society, since a separation of State 
 and society is possible only as an abstract conception." 
 On the one hand all social groups are influenced directly 
 and indirectly by the State; and on the other hand 
 the State itself forms such groups. "To avoid con- 
 fusion a third and still narrower conception of society 
 must be proposed that shall include the social groups 
 with the exception of the State." "It is a permanent 
 merit of the socialists, and of those who have profited 
 by their teachings, to have directed attention to the 
 connection between the progress of the law and social 
 movements. Yet science must protest against the 
 attempt to explain the entire range of political problems 
 upon a narrow socialistic basis." * 
 
 The State is often termed an historical necessity ; but 
 if the view is to be scientifically acceptable, the term 
 necessity must be interpreted as a psychological one." 
 
 1 "Allgemeine Staatslehre," pp. 74-90, 74 seq., 84, 86 seq., 88 
 seq. 
 
 ^ In Jellinek's earlier writings the psychological moment center- 
 ing about the will is conspicuous in his theory of the State, but in 
 "Allgemeine Staatslehre" it is relatively subordinate. See Jellinek, 
 "Die Rechtliche Natur der Staatenvertrage," pp. 16 seq.; "System 
 der Subjectiven Offentlichen Rechte, p. 28: "The will of the State, 
 which in this respect is but a special case of a collective person, is 
 no figment, but exists by virtue of the same logical necessity by which 
 associated permanent and unitary purposes, pursued co-operatively 
 by groups of men, appear as an association or, as we may say, a 
 unity. If such unitary personality be admitted in behalf of practi- 
 cal thought, it has also its own will, in so far as it is constant and 
 single in purpose, coherent, and exercising its will in the fostering of 
 its purposes. The same logical necessity through which we make 
 unity of plurality appears in this constant active will directed to 
 the attainment of its purposes as a distinctive will, not merely as 
 the voluntary phase of a physical volition." See also "Gesetz und 
 Verordnung," p. 190: "The State is a dominant organization sup- 
 ported by a powerful will." 
 
438 SOCIOLOGICAL PHILOSOPHIES [Ch, VII 
 
 The psychological view, foreshadowed by Aristotle — 
 and in some respects the ethical view of society — • in- 
 cludes the position of "natural law," which regarded 
 certain human traits as directly responsible for the 
 establishment of government. 
 
 Jellinek does not consider that this psychological and 
 historical position justifies the exercise of coercion by 
 the State. If the object of all society is civilization, 
 its regulation, which means a permanent voluntary 
 association of defense and offense, must likewise be 
 recognized. Without some form, however defective, 
 of legal order, there would be a state of war of all against 
 all. The problem of government is substantially the 
 same as that of law. Jellinek regards the position of 
 Aristotle as most acceptable : man, improved by govern- 
 ment, is a worthy creation, but unrestrained by law and 
 order, he is far from being so. Government as such is 
 thus justified, but not any special form of government, 
 nor any special typa of distribution of authority within 
 the State. The philosophy of government must ever 
 be directed to the State of the present and to the growing 
 institutions of the immediate future. The State in its 
 concrete development can only be justified by the ends 
 which it accomplishes. 
 
 According to Jellinek the State is characterized by 
 a unity of purpose. The social politics resulting from 
 this conception must set forth the purposes by which 
 the manifold interests combined in the State shall 
 appear as one. "The existence of such purposes may be 
 deduced from the incontestable psychological fact that 
 the life of the State consists of an uninterrupted series of 
 human actions, each of which is necessarily conditioned 
 by a motive, and thus, by a purpose." The problem of 
 the purposes of the State cannot be solved deductively. 
 Even the demand that the purpose of the State shall 
 
§ 49] PSYCHOLOGY AND LAW 439 
 
 be the realization of law, tells one nothing concerning 
 the content of the law, and through it of the State's 
 purpose. After a review of the several theories of pur- 
 pose, Jellinek reaches the formulation of his theory of 
 relative State purposes. A simple psychological reflec- 
 tion will show that the State cannot enforce what 
 belongs to the inner life of man; therefore the sphere 
 of the State includes only "collective human expressions. 
 Such purposive collective human expressions belong 
 distinctively to the State. They may be reduced to 
 the three great categories, of protection, regulation, 
 support. The greater the joint interests, the more does 
 the State serve for their satisfaction; the more uni- 
 fied the purposive organization that is needed for its 
 protection, the more completely does it become the 
 concern of the State. Such solidarity is a dynamic 
 force, differently expressed in the several spheres of 
 communal development at different times and among 
 different peoples. The detailed formulation of the 
 principle must be adapted to the prevalent stage of 
 culture." 
 
 Among the most important interests conducive to 
 social solidarity is the development of individuality. 
 Jellinek pertinently remarks that the "vague idea of 
 furthering welfare yields no insight" as to the nature of 
 the problems of the State. The final purpose of all 
 governmental activity is to further the progressive 
 development of the individual members of society and 
 of the race. "As justified by its purpose, the State is a 
 complex associative expression of a people. Its opera- 
 tions are designed and centralized; and its institutions 
 utilize the activities of individuals, of the nation, of 
 humanity. It possesses a dominating legal personality, 
 and directs collective interests towards a progressive 
 development." This conception of the State is a 
 
440 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 functional one: along with it must be considered the 
 legal conception in which the State is the subject of law. 
 Under the legal conception, the State is "the corporate 
 expression of an established people with an autonomous 
 sovereignty," or "an autonomous corporation exercising 
 territorial sovereignty." ^ The factors of the State 
 are its territory ("Staatsgebiet"), the people ("Staats- 
 volk"), and authority ("Staatsgewalt").^ Sovereignty 
 is "the negation of every subjection or restriction of the 
 State through an alien power." The sovereign authority 
 of the State is therefore "at once the independent and 
 supreme authority." Sovereignty is no essential char- 
 acteristic of the governmental authority.' 
 
 The question as to the origin of the State falls into 
 two subsidiary problems: the historical beginning of 
 governmental institutions, and the formation of new 
 States within the existing governmental development. 
 As to the former, only hypotheses are possible. The 
 developed form of communal life, which we today 
 designate "the State," is dependent upon permanence of 
 settlement. Such permanence of settlement is closely 
 
 '"AUgemeine Staatslehre," pp. 195-204, 205-238, 209, 213, 
 224, 226 seq., 228, 235, 236, 237, 121-161, 149-151, 161. See also 
 "System der Subjectiven Rechte," pp. 12-39, 13, 20, 26. 
 
 On the etymology and change of meaning of the word "State" 
 see "Allgemeine Staatslehre," pp. 115-120. 
 
 ^ "Allgemeine Staatslehre," pp. 355-393. "Uber Staatsfrag- 
 mente," p. 12: "A state is accordingly a collectivity with its own 
 sphere, its own subjects, and its own authority, which is either in- 
 dependent of any external authority, that is, sovereign, or is in some 
 respects limited by the authority of a still higher sovereign State 
 and is thus not sovereign. All three elements are necessary for 
 the existence of the State; if any one is lacking then there is no 
 State, but merely some form of organization subordinate to the 
 State." 
 
 = "Allgemeine Staatslehre," pp. 394-460, 431 seq., 442 seq. 
 Also "Gesetz und Verordnung," pp. 197-201, 201-205. See also 
 note 18, above. 
 
§49] PSYCHOLOGY AND LAW 441 
 
 connected with the pursuit of agriculture ; but the phases 
 of its early stages of evolution are uncertain. The 
 consolidation of human intercourse is aided by "a 
 natural tendency of regulated uniformity of action." 
 The incentives for the formation of the State are thus 
 also the incentives for the formation of law. 
 
 The problem of law may be approached either through 
 metaphysical speculation, that is, through its concep- 
 tion "as a force independent of man, and involved in the 
 objective nature of phenomena"; or psychologically, 
 that is, by its study as a subjective phenomenon of 
 human expression. Jellinek adopts the second proce- 
 dure. The law consists of regulations for human con- 
 duct. It is further to be distinguished from other norms, 
 such as those of religion, morality and custom. Its 
 specific character lies in the following characteristics 
 of legal norms: "They are norms for the external rela- 
 tions of men to one another; norms that issue from a 
 recognized external authority; and norms whose bind- 
 ing force is guaranteed through external authority." 
 The essential characteristic of law is that it shall pre- 
 vail; for this, it is necessary that its psychological 
 efficiency be guaranteed. "The operation of a law is 
 guaranteed when the motive power of its prescriptions 
 is so re-enforced by social psychological influences, that 
 the expectation is justified that the norms which the 
 law enforces will be able to assert themselves as motives 
 of conduct against the opposing individual motives."' 
 If the term "State" is to be understood as the developed 
 
 i"Allgemeine Staatslehre," pp. 239-254, 241, 302-341,302, 
 302 seq., 304. "Die Sozialethische Bedeutung von Recht, Unrecht 
 und Strafe" (The social ethical meaning of right, wrong, and pun- 
 ishment), p. 116: "Acts, undertaken by society, and in a developed 
 state of civilization, by the State, against the perpetrator of a wrong, 
 through which the effects, injurious socially and psychologically, 
 resulting from the wrong, are equalized, is punishment.'' 
 
442 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 State in the modern sense, then law existed even before 
 the State ; but if the term implies the supreme and sov- 
 ereign corporation of any period, then the law will find 
 only in and through such dominant organization, the 
 necessary external guaranty for the realization of legal 
 norms. But the State is not the exclusive source of 
 law; Jellinek maintains that even at the present time 
 there are numerous associations independent of the 
 State (such as the Church), that create laws; but this 
 view may be questioned. * 
 
 George Simmel^ (b. 1858), in his "Einleitung in die 
 Moralwissenschaft," makes a careful analysis of the 
 fundamental ethical conceptions from the psychological 
 point of view. In his "Philosophie des Geldes"^ the 
 problem of values and the social and cultural signifi- 
 cance of possession are considered in detail.* 
 
 4: Criminal Psychology. Gabriel Tarde^ (b. 
 1843) holds that the psychological impulse, expressed 
 
 1 "AUgemeine Staatslehre, " pp. 329-331. 
 
 ^Von Simmel: "Bemerkungen zu Sozial-Ethischen Problemen," 
 Vol. 12, 1888, pp. 32^9. "tjber Soziale Differenzierung, Soziolo- 
 gische und Psychologische Untersuchungen" (Schmoller's "Staats- 
 und Sozialwissenschaftliche Forschungen," Vol. 10, Part I), Leipzig 
 1890. "Einleitung in die Moralwissenschaft, eine Kritik der Ethis- 
 chen Grundbegriffe," 2 vols. Stuttgart and Berlin, 1892-1893. 
 Anastatic reprint, Stuttgart 1904. "Philosophie des Geldes," 
 Leipzig 1900. Kant, "16 Vorlesungen an der Berliner Universitat,'' 
 Leipzig 1904. 
 
 See Ueberweg- Heinze, "Grundriss der Geschichte der Philoso- 
 phie,'' IV, p. 347, for an estimate of Simmel. 
 
 ' "Philosophie des Geldes," pp. 3-87. The significance of money 
 is to represent the economic relativity of things (pp. 82-87). In 
 addition there is the material value of money (pp. 88-112). 
 
 < "Philosophie des Geldes," pp. 279-454, 455-554. 
 
 ^The writings of Tarde here pertinent are: "Les Lois de I'lmita- 
 tion. fitude Sociologique." Second edit., Paris 1895 ("Bibliotheque 
 de Philosophie Contemporaine," 146). "La Logique Sociale ("Bibl.," 
 
§49] PSYCHOLOGY AND LAW 443 
 
 in the law of imitation, is the important trait leading to 
 social solidarity. He interprets rational behavior as 
 psychological. He bases ethical and legal responsibility 
 upon the sense of social similarity. ^ He was the first 
 to emphasize and illustrate in detail the importance for 
 the social life of conscious imitation and subconscious 
 assimilation. 2 He aims to establish logic as a psycho- 
 logical phenomenon.' Tarde finds followers in Sighele, 
 Aschaffenburg, Krause, and others.* 
 
 etc., 124), Paris 1895. "La Philosophie Penale," eighth edit., Lyon- 
 Paris 1904. (I cite from the 1900 edition, the one accessible to me.) 
 
 i"La Philosophie Penale," pp. 83-213 (Chap. Ill: "Theorie 
 de la Responsabilite," pp. 83-148; Chap. IV: "Theorie de la Irre- 
 sponsabilite," pp. 149-213). See also Berolzheimer, "Die Entgeltung 
 im Strafrechte," 92-97, 102, 206, 319. 
 
 ^ See particularly "Les Lois de I'lmitation," second edit. Chap. 
 II, "Les Similitudes Sociales et limitation (pp. 46-65); Chap. Ill, 
 "Qu'est-ce qu'une Societe?" (pp. 66-98); Chap. V, "Les Lois 
 Logiques de I'lmitation (pp. 158-212); Chaps. VI & VII, "Les Influ- 
 ences Extra-Logiques" (pp. 213-266, 267-396). P. 73: "Hence 
 arises this definition of the social group: a collection of individuals 
 so far as they are disposed to imitate one another or in so far 
 as without actual imitation they resemble one another and their 
 common traits are older copies of the same model." P. 95 : "Society 
 is imitation; and imitation is a kind of somnambulism; such is 
 the epitome of this chapter." 
 
 ^"LaLogiqueSociale," Parti, Chap. I, "La Logique Individuelle," 
 pp. 1-86. Chap, II, "L'esprit Social ("Logique Sociale Statique),'' 
 pp. 87-133. Chap. Ill, "La Serie Historique des etats Logiques 
 ("Logique Sociale Dynamique"), pp. 135-150. Chap. IV, "Les Lois 
 de rinvention ("Logique Sociale Dynamique, suite"), pp. 151-223. 
 Part II: "Applications; La Langue; La Religion; Le Coeur; I'Eco- 
 nomie Politique; I'Art. 
 
 * For further references see Wahlberg, "Gesammelte Kleinere 
 Schriften und Bruchstucke," Vol. II, Vienna 1877. "Die Moral- 
 statistik und die Strafrechtliche Zurechnung," p. 295. Havelock 
 Ellis, "Verbrecher und Verbrechen" (Kurella's translation), Leipzig 
 1894, pp. 310-315. Hans Gross, "Kriminalpsychologie," Graz 
 1898, pp. 566-569. Lombroso, "Die Ursachen und Bekampfung 
 
d44 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 J. Mark Baldwin's "Social and Ethical Interpre- 
 tations in Mental Development" ^ shows the influence 
 of Tarde. The following is Earth's^ comment upon 
 it: "In the present work Baldwin develops the view that 
 the psychological analogy, as already proposed by others, 
 between the mental life of the individual and that of 
 society, between the egoistic and altruistic actions, 
 should also be made the problem of psychology. He 
 maintains that external actions referring to persons, 
 whether to one's own person or another's, spring from 
 the thought of the self, from our conception of human 
 personality in general; and that in our actions we are 
 by no means always conscious of ourselves or whether 
 the personality is our own or belongs to another." Such 
 considerations affecting human action Baldwin calls 
 sanctions,* which in turn are in part personal, in part 
 
 des Verbrechens," translated by Kurella and Jentsch, Berlin 1902, 
 pp. 188 seq. 
 
 Scipio Sighele's 'Psychologic des Auflaufs und der Massenver- 
 brechen" (translated by Kurella: Dresden and Leipzig, 1897, espe- 
 cially pp. 41-106) is influenced by Tarde. For Aschaffenburg see 
 above, § 44. The sociological school of penology emphasizes the 
 study of criminal motives. See A. Krauss, "Die Psychologie des 
 Verbrechens, ein Beitrag zur Erfahrungsseelenkunde,'' Tubingen 
 1884, and Andreas Thomsen, "Untersuchungen fiber den Begriff 
 des Verbrechensmotivs," Munich 1902. See also the symposium, 
 "Zur Psychologie der Gefangenschaft. Untersuchungshaft, Gefang- 
 nis- und Zuchthausstrafe Geschildert von Entlassenen," compiled 
 by Fritz Auer, describing phases of prison life as portrayed by dis- 
 charged prisoners. Munich 1905. 
 
 ' "Social and Ethical Interpretations in Mental Development" 
 (translated from the second English edition by R. Ruedemann, 
 with a preface by PaulBarth, Leipzig 1900). Baldwin's other writings 
 are not pertinent here. 
 
 ' Preface to the German edition, p. x. 
 
 ' "Das Soziale und Sittliche Leben," pp. 285 seq. 
 
§49] PSYCHOLOGY AND LAW 445 
 
 social. 1 "A sanction is any ground or reason which 
 is adequate to initiate action, whether the action be 
 conscious or not that this is the ground or reason of the 
 resulting action." ^ Baldwin sets forth that man is fre- 
 quently not fully aware of the motives of his actions, 
 that he may even be deceived as to the motives; or 
 that the unconscious exerts more or less important in- 
 fluence upon the content of the conceptions that serve 
 as motives.^ 
 
 Bearing upon the last consideration is Georg Adler's 
 position in his "Bedeutung der Illusionen fiir Politik 
 und Soziales Leben."* He sets forth that in politics 
 and social movements, and notably in modern socialism, 
 the cause assigned and the actual cause bringing about 
 collective movements frequently diverge, and that fal- 
 
 » German edition , pp. 285-322, 322-354. The institutions through 
 which these sanctions are expresssd are divided into four groups — 
 natural Sanctions, pedagogical and conventional sanctions, civil 
 sanctions, ethical and religious sanctions. 
 
 2 P. 288 (German edition) ; first English edition, p. 361. 
 
 3 See especially pp. 285-289. 
 
 ■* Jena 1904. See also above, preface, p. XLII, Note 1. In this 
 work Adler refers to his former writings in which he has developed 
 this thought. The idea was first explicitly formulated by Adler; 
 others had previously expressed the same general view. See Schmoller, 
 "Die Gerechtigkeit in der Volkswirtschaft" {Schmoller, "Zur Sozial- 
 und Gewerbepolitik der Gegenwart," Leipzig 1890, p. 205): "No 
 great social or economic reform can overcome the inert opposition 
 that it arouses by proof of its utility. It is only when what is de- 
 manded can be set forth as just, that the claim is vitalized and starts 
 a movement. I have for years observed how and when the question 
 of justice was introduced in public discussion and in economic 
 publications, and I found that it occurs involuntarily in almost all 
 cases." See also Alex. Tille, "Volksdienst," Berlin and Leipzig 1893, 
 p. 110. 
 
446 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 lacy and illusion exercise an important beneficial influ- 
 ence in the history of civilization. "^ 
 
 § 50. Recent Surveys of Fundamental Problems. 1 : 
 Merkel and his Followers. The writings of Adolf 
 Merkel^ (1836-1896) are notable for their wealth of perti- 
 nent observations and keen analysis. They present an 
 idealism based upon an appreciation of actual conditions 
 which gives promise of a fruitful development of the 
 philosophy of law. Though not forming a system of 
 legal philosophy, Merkel's writings are important for 
 their thorough treatment of the fundamental problems 
 of law and punishment. 
 
 There is an inherent human interest in the apportion- 
 ment of what men deserve and what they secure. There 
 is a deep-rooted conviction that in some manner for- 
 tune and merit must be brought into relation. This 
 conviction permeates popular religious and moral con- 
 ceptions ; it gives rise to a popular proverbial philosophy. 
 The demands of morality require a presumable con- 
 nection between good or ill-fortune and the laws of com- 
 pensation. In this sense of moral adjustment lies the 
 source of the legal demand for retributive justice.^ 
 
 ' Masaryk: "Die Philosophischen und Soziologischen Grundlagen 
 des Marxismus, ' ' Vienna 1899, p. 156, and Eisler: "Soziologie, " 
 Leipzig 1903, pp. 63 seq. (see above, § 44, p. 381), emphasize the 
 psychological phase of social origins and relations. Bergemann, 
 "Ethik als Kulturphilosophie," Leipzig 1904, pp. 367^75 (see 
 above, §§44 and 42), considers the social-psychological factor in 
 addition to the personal factor in the genesis of morality. Karl 
 Kniess in "Der Kredit," Berlin 1876, p. 138, had already noted the 
 "psychology of the masses" as a contributing social force. 
 
 ^ Adolf Merkel, "Hinterlassene Fragmente und Gesammelte 
 Abhandlungen." Part I: "Fragmente zur Sozial Wissenschaft," 
 Strassburg 1898. Part II, 1 and 2: "Gesammelte Abhandlungen 
 aus dem Gebiet der Allgemeinen Rechtslehre und des Strafrechts," 
 edited by Rudolf Merkel, Strassburg 1899. 
 
 '"Tiber Vergeltende Gerechtigkeit" ("Hinterlassene Fragm.." 
 
§ 50] RECENT SURVEYS 447 
 
 The philosophy of law has to do only with positive 
 law.^ Law is "the standard which a community estab- 
 lishes with reference to the relation of its members to 
 others and to itself, as well as to the expressions of its 
 own activity." Law is the principle of order. ^ "A 
 certain element of authority is inherent in all law. It is 
 itself a form of authority to which certain superior 
 qualities are attached." This applies as well to law 
 as to rights. The conception of rights involves the 
 actual power to exercise them. The starting-point of 
 law is self-help ; hence, so far as bears upon its efficiency, 
 law depends upon the means of enforcement which the 
 claimant is able to put into operation. In so far as this 
 principle of self-help holds, "the success of rights in any 
 given case depends upon the contest of power between 
 the claimant and his adversary, and thus individual 
 right and individual power are closely associated." 
 This applies also to the acquisition of rights. The 
 primitive mode of such acquisition seems to have been 
 seizure; in primitive stages of legal development, the 
 legal status of possession was substantially independent 
 of the manner in which it was acquired.' 
 
 Progress in the forms of acquiring rights and of legal 
 contests and standards was very gradual. Instead of 
 the trial of strength between the litigants, a procedure 
 of proof, presented to the constituted authority, was 
 introduced; in the weighing of evidence "the distinctive 
 
 etc.), II, 1, pp. 1-14, 2, 3, 6. See also "Lehrbuch des Deutschen 
 Strafrechts," pp. 9-29. 
 
 ' "Uber das Verhaltnis der Rechtsphilosophie zur 'Positiven' 
 Rechtswissenschaft und zum Allgemeinen Teil Derselben" ("Fragm.," 
 etc., II, 1, pp. 291-323, 308 seq. See above; also Merkel, 
 "Elemente der Allgemeinen Rechtslehre, § § 12-14. 
 
 " "Elemente der Allgemeinen Rechtslehre," § 1. 
 
 3 "Recht und Macht" ("Fragm.," etc., II, L, pp. 400^28, 403. See 
 also "Elemente der Allgemeinen Rechtslehre," § 7. 
 
448 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 position of legal authority appears with ever extending 
 importance. The question of law comes to be more 
 nearly a question of the better cause in view of the 
 interests and considerations which have instituted the 
 power of the law. The acknowledgment of a claim 
 comes to have an equally legitimate bearing upon past 
 and future interests. It involves an ethical judgment 
 of the past circumstances which underlie the presented 
 claim." In such development the contrast of status 
 between the strong and the weak in the realm of the 
 law is diminished. Indeed in many respects the law 
 becomes the protection and defense of the weak and 
 thus restores the balance of power. Were it possible 
 to find a harmonizing principle applicable to all human 
 interests, it would serve as the basis for a universally 
 recognized law. But the law will never be able to 
 satisfy all the several legitimate interests and attitudes 
 and feelings, as well as the demands growing out of them. 
 The law thus bears throughout "the character of a 
 compromise." ^ 
 
 In his development of general jurisprudence Merkel 
 approaches the position of the theory of norms. But 
 in contrast to Binding, Merkel denies the autonomy' 
 of the law. "The law does not carry its purpose within 
 itself," nor does it exist for the sake of the ethical satis- 
 faction which arises from the operation of justice. 
 Merkel, in common with Ihering, inclines to regard the 
 end in view ("Zweck") as creating the law. The law 
 is the organ of social interests. Law and the State 
 arose together and had a common development. But 
 the State could not create law, nor does the legal quality 
 belong to all the expressions of the State. For "every 
 
 1 "Recht und Macht," pp. 407-411, 410, 411-420, 411, seq., 420 
 seq., 420-422. See also "Elemente der Allgemeinen Rechtslehre," 
 §11: "Die Kompromissnatur des Rechts." 
 
§ 50] RECENT SURVEYS 449 
 
 community which possesses the power to regulate 
 independently the relations of its members to one 
 another and to the State may establish its own laws." 
 Whether it does so by virtue of governmental delegation 
 is a question of fact. And on the other hand the State 
 is not merely a legal institution. In this opinion Merkel 
 has in mind the governmental operation of industrial 
 institutions in the emergency of war. 
 
 The factors of the State are the State authority, the 
 State territory, and, in the classical as well as in the 
 modern State, the unlimited legal power of regula- 
 tion within the sphere of the State. The State is the 
 "organization of a community or the sum total of 
 institutions by means of which the regulated activities 
 of the common life of a people finds its realization." 
 "Associations of various types" precede the State. The 
 chief occasion leading to the formation of the State is 
 war; it is through the suppression of feuds, or again 
 in the interests of a common defense, and for the forcible 
 subjection of a foreign tribe, that the State is established 
 through the medium of war. With reference to the nature 
 of the State, Merkel inclines to the organic evolutionary 
 conception thereof, yet with due recognition of the free 
 self-assertion of the individual.* 
 
 By retribution Merkel understands "a counteraction 
 to offset evil or good transactions, which, as affecting 
 their authors, bring about an equalization of the dis- 
 proportion between the status of those involved actively 
 and passively in the transaction." ^ He holds that as 
 affecting punishment, retribution and the effect upon 
 the individual, "Zweckstrafe," are not exclusive. The 
 sources of the feeling of responsibility are based upon 
 
 ' "Elemente der AUgemeinen Rechtslehre," §§ 4, 6, 39 seq., 
 2, 14, 15-17, 18, 19. 
 
 2 "Lehrbuch des Strafrechts," p. 187. 
 
450 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 the consciousness of being the cause of one's own acts, 
 and likewise upon the traditional ethical conceptions 
 of value which remain uninfluenced by the deterministic 
 attitude which Merkel supports. ^ 
 
 Merkel's view of the philosophy of punishment is 
 represented and developed by M. Liepmann.^ Like 
 Merkel ' he sees no incompatibility between punish- 
 ment as retribution and for its effect upon the individual 
 ("Zweckstrafe") . The incompatibility would apply 
 only as against a view which determined the treatment 
 of criminals according to their menace to society. He 
 likewise finds no incompatibility between retribution 
 and determinism.^ 
 
 The penological theory of social disapproval of von 
 Bar ^ (b. 1836) is likewise similar to the position of 
 Merkel. 
 
 2: Schmidt. Richard Schmidt^ (b. 1862) is the 
 author of an "AUgemeine Staatslehre." The problem 
 
 ^ "Vergeltungsidee und Zweckgedanke im Strafrecht" ("Hinter- 
 lassene Fragm.," II, 2, pp. 687-723, 692, 710, 716-720. "Lehrbuch," 
 pp. 72-78. See a.\so Berolzheimer, "Die Entgeltung im Strafrechte,'' 
 pp. 97-99, 103, 139. 
 
 ^ "Einleitung in das Strafrecht. Eine Kritik der Kriminalistischen 
 Grundbegriffe," Berlin 1900. See also Liepmann ("Z. f. g. Str.," Vol. 
 XVII, pp. 691 seq.). Also Berolzheimer, "Die Entgeltung im Straf- 
 rechte," pp. 99, 151 seq. 
 
 '"Einleitung in das Strafrecht,'' pp. 196-212: "Die Aufgaben 
 der Strafe," p. 196. 
 
 * "Einleitung in das Strafrecht," pp. 197-204, 204. 
 
 ^v. Bar, "Geschichte des Deutschen Strafrechts und der Straf- 
 rechtstheorien," Berlin 1882, pp. 311 seq., especially pp. 316, 323, 
 327; "Probleme des Strafrechtes," an address, Gottingen 1896. 
 See also Berolzheimer, "Die Entgeltung im Strafrechte," pp. 151 seq. 
 
 ^ For his views on penology favoring the principle of general pre- 
 vention, see Rich. Schmidt, "Die Aufgaben der Strafrechtspflege," 
 Leipzig 1895. See also Berolzheimer, "Die Entgeltung im Straf- 
 rechte," pp. 155 seq. 
 
§50] RECENT SURVEYS 451 
 
 of the origin of the State he regards as insoluble in so 
 far as the attempt to trace a systematic evolution of 
 the oldest forms of alliance has failed. But the problem 
 as to the conditions which lead to the establishment of 
 the State may be answered substantially as follows: 
 "One may regard a governmental association as arising 
 whenever a group of men, acting in the main as a body, 
 dispose of their common interests based upon their 
 communal life. The State is thus independent of the 
 family and the clan." The functions of the State 
 cannot be defined in explicit principles. The general 
 problems of welfare fall but in subsidiary manner within 
 the sphere of the activity of the State ; the maintenance 
 of security belongs to it primarily, and with the prece- 
 dence of the State as against individuals and groups. 
 The functions of the law are "the consolidation and regu- 
 lation of human cultural interests as furthered by the 
 intercourse of members of society." 
 
 The scientific study of the origin of the law has de- 
 cided limitations; observation shows that the legal 
 norms gradually emerge from "the primitive manifes- 
 tations of men," and become differentiated from the 
 norms of religion, custom and morality. It may be said 
 that "the law as a whole is the average standard of legis- 
 lation which, through the public guaranty of the State, 
 becomes ,an established part of the morality and cus- 
 toms of the people."^ Yet this need not apply to indi- 
 vidual legislative acts. 
 
 3: Paulsen. For present interests Paulsen's (b. 1846) 
 "System der Ethik" is the most important of his 
 writings.^ To Paulsen, welfare is "the supreme good, 
 
 • "AUgemeine Staatslehre," Vol. I, pp. 116-121, 121-123, 122, 
 145-156, 167, 168, 170, 238 seq. 
 
 ' "System der Ethik mit einem Umriss der Staats- und Gesell- 
 schaftslehre," 2 vols., sixth edition, Stuttgart 1903. (I cite from 
 
452 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 the ultimate point of reference of all judgments of 
 value of human relations, and at the same time the 
 ultimate goal of the normal will." But wherein does 
 welfare or the supreme good consist? Two views are 
 possible, the hedonistic or the dynamic. "The former 
 regards pleasure as the supreme good; the latter makes 
 it an objective perfection of one's nature and of one's 
 functional efficiency." Paulsen advocates a dynamic 
 view of ethics. The most general formula of this posi- 
 tion makes the goal of endeavor of every living being 
 the normal development of its functional efficiency as 
 determined by its nature. In agreement with Aris- 
 totle happiness or welfare appears as "the realization 
 of all virtues and capacities, and particularly those of 
 the highest types." 
 
 Paulsen assumes the freedom of the will essentially 
 in the sense of Spinoza and Kant. "The freedom of man 
 is the dominance of his rational nature, and the slavery 
 of man is the dominance of his animal desires." The 
 dynamic and teleological ethics of Paulsen may be termed 
 a more thorough elaboration and refinement of social 
 utilitarianism. Justice is a virtue and an ethical duty. 
 The general fornmla of the duty of justice is when posi- 
 tively worded, "Observe and protect the law"; or in 
 another version: "Do no wrong, and so far as lies in 
 your power, do not permit wrong to be done." From 
 the idea of the welfare of the community, there follows 
 the duty of the community to provide for its self-preser- 
 vation; and this justifies the application of legal coer- 
 cion. The purpose of punishment is to maintain peace 
 and security in the community. 
 
 The forms of the communal life are the family, socia- 
 
 the fifth edition, 1900.) Also "Einleitung in die Philosophie," 
 eleventh and twelfth edition, Stuttgart 1904: "Philosophia Militans 
 gegen Klerikalismus und Naturalismus," five essays, Berlin 1901. 
 
§ 50] RECENT SURVEYS 453 
 
 bility, and friendship, the economic life and society, 
 and the State. By society, Paulsen understands "the 
 spontaneously arising organization of the people for 
 economic purposes ; the co-operative production of com- 
 modities and the exchange thereof form the chief object 
 of its operations." The State is the organization of the 
 people into a supreme unity of will, authority and law. 
 The purpose of the State is to further the life interests 
 of the people in their external relations, and the pres- 
 ervation of an inner peace; and in support of the free 
 activity of the individual, the fostering of culture and 
 of material welfare.^ 
 
 4: Baumann. Joh. Julius Baumann^ (b. 1837) 
 regards the problem of the philosophy of law as the 
 establishment of the ultimate principles comprised under 
 the term law. This problem cannot be solved by a 
 comparative study of law, for such comparison affords 
 merely a formal conception of law. The object of the 
 legal philosopher is to determine whether there exists 
 a general equitable content of law, how such is formed, 
 and for what reasons it is not everywhere the same. 
 
 "The institutions, which the free association of men 
 with one another makes possible and necessary for the 
 development of such communal life, constitute the law; 
 or otherwise expressed, the law is the underlying con- 
 ception of the demands between one man and another 
 which are indispensable to freedom of intercourse." 
 
 1 "System der Ethik," I, pp. 209-235, 235-269, 235, 253, 424- 
 442, 442; II, 128-163, 128, 134, 134-139, 314-512, 512 seq., 323, 
 512-516. 
 
 2 The writings of Baumann here pertinent are: "Sechs Vortrage 
 aus dem Gebiete der Praktischen Philosophie," Leipzig 1874 (III, 
 IV, and V, pp. 46-142). "Handbuch der Moral nebst Abriss der 
 Rechtsphilosophie," Leipzig 1879. "Realwissenschaftliche Begrun- 
 •dung der Moral, des Rechts und der Gotteslehre," Leipzig 1898. 
 
454 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 All law has reference to the community. Baumann 
 proceeds to consider the most important legal relations — 
 such as those resulting from property, incorporeal own- 
 ership, contract, marriage, inheritance — which repre- 
 sent the more individualistic rights in which the 
 individual is uppermost, together with those phases of 
 the law in which the interests of society dominate. The 
 State appears as the most general legal corporation; 
 and its essential characteristics are a permanent pur- 
 pose, fixed institutions, exemption from change in mem- 
 bership, and "the free activity of the individual or of 
 particular groups of individuals, but ever within the 
 law and thus in subordination to the whole." If in 
 consideration of these attributes the State is termed 
 an organism, care should be taken that the analogy 
 produces no false impression. "The State must be 
 conceived as composed of conscious and free men, and 
 not as an organic natural product ; for of the fundamental 
 nature of organic processes — so far as they are not 
 the results of mechanical laws — we know nothing, and 
 tend to ascribe them by analogy to human action." ^ 
 
 5: ScHUPPE. From an ethical position W. Schuppe 
 (b. 1836) concludes that "it is through their inner nature 
 that men feel the need of communal life and are designed 
 to live together." If ethical requirements were volun- 
 tarily met, if perfect insight and love prevailed, law 
 and legislation would be superfluous. But as men are 
 ever morally imperfect, government and law are neces- 
 sary institutions.^ "Law is the will which arises from 
 the judgment of the concrete consciousness as such,"* 
 
 i"Handbuchder Moral," pp. 372,374-391,383, 392-423, 424-445, 
 426 seq. 
 
 ^ "Grundziige der Ethik und Rechtsphilosophie," pp. 276, 276 seq., 
 382. 
 
 ' "Die Spezifische Differenz im Begriffe des Rechts," pp. 194 
 seq. In this essay the distinction between law and ethics is upper- 
 
§ 50] RECENT SURVEYS 455 
 
 in which the term concrete consciousness is the concrete 
 ego of the individual man.' Schuppe says of his con- 
 ception of law that it denotes "the inner incentive in 
 all legal institutions, and does not present a bare for- 
 mulation of the content, but makes the material realiza- 
 tion dependent upon the actually existing factors; and 
 thus there can be no ideal of law valid for all times." ^ 
 A legal right is a power, and finds its necessary comple- 
 ment in duty.' The State exists for cultural and eco- 
 nomic interests.* 
 
 most. The essay, "Der Begriff des Rechts," which was inspired by 
 Zitelmann's "Irrtum und Rechtsgeschaft, " deals mainly with the 
 will in its relation to the law. 
 
 1 "Die Spezifische Differenz im Begriffe des Rechts," p. 168. 
 See also "Der Begriff des Subjektiven Rechts," pp. 2 seq., 5-8, and 
 "Das Gewohnheitsrecht," pp. 17 seq. 
 
 2 "Die Spezifische Differenz im BegrifTe des Rechts," pp. 195 seq.; 
 See also "Das Gewohnheitsrecht," pp. 17-51. 
 
 3 "Grundzuge der Ethik," pp. 292-294. See also "Der Begriff 
 des Subjektiven Rechts," pp. 8-10. 
 
 ^"Grundzuge der Ethik," pp. 292, 315-334, 384-389. P. 292: "A 
 State as a legal institution and nothing else is an anomaly; for to 
 desire and realize law in the narrower sense is possible and justifi- 
 able only by virtue of the desire to make real that which is the source 
 ofalllaw — namely, the cultural mission of the State." P. 315 In 
 addition to its legal function the State has the positive purpose "of 
 service to inherently ethical ends." P. 318: The ethical will is 
 absolute and the governmental will but relative and dependent. 
 P. 320: "The State stands for the furthering of the moral and intel- 
 lectual perfection of each individual in material and spiritual rela- 
 tions; its interests extend to the highest spiritual as well as material 
 values." 
 
 See also Schuppe, "Rechtswissenschaft und Rechtsphilosophie," 
 p. 234: "The goal of the legal will is limited by the principles of 
 equality and individual freedom, and as well by racial and national 
 character, by historical vicissitudes and all such outer conditions 
 of life as determine the trend of mental evolution, and also deter- 
 mine what in one situation or another will be regarded as desirable 
 to welfare. The legal norms acquire their content through . such 
 external factors." 
 
456 . SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 The problem of punishment is in the last analysis 
 directed to the question of the justification of inflic- 
 tion of evil; it consists "in the contradiction between 
 the universally recognized presence of immorality, to- 
 gether with the injustice of inflicting pain, and the widely 
 disseminated and traditional sentiment which in par- 
 ticular cases, requires such infliction and does so with the 
 appearance of justice and law." The infliction of pain 
 appears as immoral by virtue of the command of neigh- 
 borly love; and yet the position is relatively justified 
 by which the personality should only be valued in terms 
 of its actual accomplishment. It is not the law of moral- 
 ity, but a moral sense that demands the punishment of 
 the offender. Freedom is a condition of responsibility. 
 What deserves to be punished is the evil disposition. * 
 
 § 5L The Ivfluence of the Principles of Evolution. 
 1 : Social Aristocracy ; Nietzsche. I n his assertive period 
 consequent upon emancipation from Schopenhauer, 
 Friedrich Nietzsche (1844-1900) came to look upon the 
 prevalent Christian morality as the gospel of the 
 decline, decadence, and degradation of the individual. 
 Against this slave or herd morality Nietzsche, under 
 the influence of Stirner and of the theory of evolution, 
 set up the morality of man as his own master, of the 
 human ego standing upon its own footing. The self- 
 assertion of the individual appears characteristically 
 in a striving for power — • "Wille zur Macht," the will 
 to prevail.^ The goal of ethical culture is a breeding 
 
 1 "Grundzuge der Ethik," pp. 339-382, 349-361, 366 seq., 370, 
 376-378. 
 
 ^ "Wherever I found life there I found the will to prevail, and even 
 in the will for service I found the will to be master. . . . And 
 wherever there is sacrifice and service and affection there also is the 
 will to be master. By devious paths the weaker creeps into the 
 castle, and even into the heart of the more powerful and there 
 
151] PRINCIPLES OF EVOLUTION 457 
 
 of a higher type of man, the creation of a super- 
 man.* At the close of the ultra-democratic nineteenth 
 century, Nietzsche appeared as a prophet of social 
 aristocracy. 
 
 Nietzsche misapprehends the nature of ethics; he 
 regards Christian ethics from without, and not in its 
 historical setting. His argument would read: Inas- 
 much as Christian ethics is the prevalent ethics and 
 stands for asceticism, and as asceticism means the denial 
 of the will to achieve power, which in turn is the 
 suppression of individuality, it all results in the advocacy 
 of slave or herd morality and in the checking of cultural 
 progress. To this Nietzsche opposes his ethical ideal, 
 the breeding of the superman, in whom will be repre- 
 sented a new morality, above the sphere of good and 
 evil, which shall afhrm the will to live and to achieve 
 power — in brief, shall affirm the autonomy of the 
 individual, through which shall result the larger human 
 progress mediated by the breeding of the superman. 
 In the prevailing ethics Nietzsche sees only the denial 
 of life, a check to extreme individualism, and ignores 
 the significance of ethics as a dominant cultural force. 
 His emphasis of power is sound; but his narrow per- 
 spective gives it a false development, in that he regards 
 ethical power as equivalent to austerity, and political 
 force as equivalent to might. The evolution of history 
 is against him. 
 
 steals power." "Also Sprach Zarathustra," p. 167. "Zur Genea- 
 logie der Moral," pp. 397 seq. "Der Wille zur Macht," pp. 265 seq. 
 "Nachgelassene Werke," Part II, Vol. XII, pp. 101 seq. 
 
 • "Jenseits von Gut und Bose," pp. 233 seq. "Gotzendam- 
 merung," pp. 145 seq. ''Also Sprach Zarathustra," pp. 16-18, 51, 
 72, 287-313. "Nachgelassene Werke," Part II, Vol. XI, p. 131, 
 No. 418; Vol. XII, p. 188, No. 403; p. 205, No. 437; p. 209, No. 
 443. 
 
458 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 Alexander Tille, in his popular scientific book, ' ' Volks- 
 dienst," ^ advocates the position of social aristocracy 
 as against socialism. The motto, "A like wage for 
 all," would be but a temporary solution for existing 
 inequalities. "Natural selection is, so to speak, thor- 
 oughly aristocratic." "All selection is aristocratic, for 
 no one chooses to perpetuate the worst." "Men, like 
 animals, are by inheritance efiQcient or inefficient, but 
 efficient and inefficient alike develop their working 
 capacity through social means; and thus he who 
 through his innate efficiency in the field of work pro- 
 duces more than another, may in a favorable sense 
 be called a social aristocrat, and the condition, in 
 which property, influence, and power are dependent 
 wholly upon service, may be called a social aristocracy." 
 Social aristocracy leads to a new rank, to the creation 
 of estates of performance. 
 
 2 : Evolutionary Monism ; Haeckel. Ernst Haeckel 
 (b. 1834), the distinguished zoologist and early protag- 
 onist of evolution, was largely influential in making 
 Darwin's teachings available to Germany. In one of 
 the later chapters of "Die Lebenswunder" ^ he applies 
 the doctrine of monism to all realms of science, to 
 physics, chemistry, mathematics, astronomy, geology, 
 biology, anthropology, psychology, linguistics, history, 
 medicine, psychiatry, hygiene, technology, pedagogy; 
 furthermore to ethics, sociology, politics, jurisprudence, 
 and theology. In the accompanying note * I have 
 
 • "Volksdienst.'' By a social aristocrat, Anonymous. Publisher, 
 Tille, Berlin and Leipzig 1893, pp. 112 seq., 110-133, 134-153. 
 
 ^ Pp. 531 seq. 
 
 * The ethics of monism attempts to supplement the metaphysical 
 foundations of morality by assuming a free will and an inherent 
 moral consciousness on the basis of a physiological ethics, supported 
 by the laws of biology in general, and of evolution in particular. 
 
 'Die Lebenswunder," p. 548. 
 
§61] PRINCIPLES OF EVOLUTION 459 
 
 expressed almost literally Haeckel's position so far as 
 it is here pertinent, in order that the reader may form an 
 opinion of its value. Haeckel predicts a new future for 
 the science of law as soon as legislation shall be exclu- 
 sively guided by reason. This position does away 
 entirely with natural law. A further condition to the 
 salvation of the philosophy of law is the acceptance of 
 determinism, which already dominates in the sociological 
 
 Sociology proceeds monistically by referring "the laws regulating 
 society to the natural laws of heredity and selection." "While 
 in social intercourse many educated men still hold to dualistic pre- 
 judices, how little truth and nature are 'valued in our refined and edu- 
 cated society?' How much deception and untruthfulness determines 
 standards is shown conclusively by Max Nordau in his well-known 
 book, 'Die Konventionellen der Kulturmenschheit' " (Die Lebens- 
 wunder, pp. 548 seq.). 
 
 Upon monistic politics Haeckel remarks ("Die Leben," p. 549): 
 "Internal politics is regulated in civilized States by constitutions, 
 and external politics by international relations. According to the 
 monistic view, pure reason should determine issues in both fields; 
 the mutual relations of citizens to each other and to the State should 
 be regulated by the same ethical laws as prevail in the personal 
 intercourse of one citizen with another. It is obvious that in mod- 
 ern civic life we are very far from having reached this ideal goal. 
 External politics still shows the prevalence of brutal self-seeking. 
 Every nation is thinking only of its own advantage and devotes the 
 largest share of its resources to military equipment, while interna' 
 politics is for the most part under the dominion of the barbarous 
 prejudices of the Middle Ages. Constitutional struggles are directed 
 to a contest for power on the part of the government on the one 
 hand, and of the mass of the people on the other. Parties are ranged 
 in unprofitable strife; yet the vital issue is not as to the forms of 
 government but as to whether reason prevails in their operations. 
 Whether a constitution is that of a monarchy or that of a republic, 
 whether aristocratic or democratic, is quite subordinate to the 
 main issue, which is, whether, as a modern civilized country, it is 
 spiritually or worldly minded. The question is whether it shall be 
 ruled under the theocratic dominance of unreasoning dogma and 
 clerical control or under the rational dominance of unreasonable 
 laws and civil rights." ("Weltratsel," p. 11.) 
 
460 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 school of penology. Speaking of desirable reforms in eco- 
 nomics and law, Haeckel urges that legal science wou d 
 be advanced by the study of biology. Biology, however, 
 was introduced into the philosophy of society, govern- 
 ment, and law in the nineteenth century, without contri- 
 buting more than certain analogies to nature of rather 
 doubtful value. Is it not plausible that familiarity with 
 economic life will be more profitable for the jurist and 
 
 The postulate of monistic jurisprudence Haeckel finds wholly 
 unsolved. He maintains that dualistic principles still prevail. "In 
 this field likewise the dualism of Kant's practical reason still pre- 
 vails with unfortunate consequences. The false conceptions of 
 the immortality of the soul, of the freedom of the will, and of a 
 personal God as lawgiver and supreme Judge, influence legislation 
 and legal minds, and determine the views of lawyers as well 
 as of statesmen. There are moreover many carefully conserved 
 vestiges of mediaeval superstition which modern legislation merely 
 transforms. The powerful influence of religious prejudice and 
 ecclesiastical dogma aff^ects the situation unfavorably. We are con- 
 stantly reading in newspapers of strange decisions of the higher and 
 the lower courts which are amazing to any sound understanding. 
 In this domain improvement will ensue only when jurists are thor- 
 oughly grounded in anthropology and psychology and understand 
 the laws of life." ("Die Lebenswunder," p. 550.) 
 [ n speaking of the harmony of monism, Haeckel in conclusion 
 (p. 557) says that where "a fully consistent mode of thinking applies 
 the highest principles to the totality of the cosmos- — -including 
 the organic and the inorganic world - — the opposition of theism 
 and pantheism, of vitalism and mechanism, will dissolve, and the 
 two views converge. But it must be admitted that consistent 
 thought is a rare phenomenon." Haeckel then continues: "Of the 
 reality of this reconciliation and dissolution of opposing views, I 
 am more and more fully convinced. The insight is gaining ground 
 that the dualism of Kant must gradually give way to the metaphys- 
 ical monism of Goethe and the growing pantheistic trend of thought. 
 In this consummation our ideals are by no means lost. On the 
 contrary, an objective view of the world shows that ideals are deeply 
 rooted in human nature. While we cultivate the world of ideals 
 in art and poetry, and our emotional nature finds pleasure in their 
 pursuit, we still retain the firm conviction that the world of reality 
 
§ 51] PRINCIPLES OF EVOLUTION 461 
 
 legal philosopher than a knowledge of biology? And one 
 may ask, how is Haeckel's demand for the limitation of 
 egoism in the relation of the States to one another, 
 consistent with the struggle for existence and the theory 
 of selection? 
 
 3: Evolution and Socialism. Haeckel's proposal to 
 apply J;he teachings of Darwinism to political economy 
 
 can only be truly known and become an object of science, by the 
 purely rational exercise of experience and thought. 'Wahrheit und 
 Dichtung' will unite in the complete harmony of monism." 
 
 That Haeckel's views have been the subject of decided protest 
 is familiar. His somewhat contemptuous opposition and judgment 
 of philosophical dualism and the sharp polemical tone of his writings 
 has as usual brought about an equally keen retort, of which Paul- 
 sen's "Philosophia Militans" (pp. 179 seq.) may be cited as an 
 example. In fact Haeckel is a fanatic, and fanaticism is always intol- 
 erant. If Haeckel were conversant with the history of philosophy, 
 he would know that dualism and monism were opposed to one another 
 long before Kant, and that in general views of the world, differences 
 of position are more common and justifiable than in the exact 
 sciences. Paulsen shows that the absolute certainty which Haeckel 
 believes he possesses in regard to the solution of the "Riddle of Exist- 
 ence" was already claimed in the nineteenth century by Hegel in 
 his philosophical system. "There is but a slight difference between 
 the old and the new position. In Hegel's monism reality is conceived 
 as reason, in Haeckel's monism it is conceived as unreason." "Phil- 
 osophia Militans," p. 180: "Haeckel's true purpose, his ultimate 
 goal, is suggested by the names of Bruno, Spinoza, Goethe. He 
 strives to attain an outlook which shall present life, and mental 
 life, not as something in reality external, foreign, and accidental, 
 but as something inherently belonging to it, as the reverse, the 
 inner side of its being. Haeckel really wishes to say that every 
 closed system of material processes contains a system of spiritual 
 processes; all things are by nature psychological. . . . This is 
 Haeckel's real meaning, but he stops at the very approach in that 
 he speaks of the souls of atoms and cells but has not the courage 
 to follow the principle of analogy thus suggested and speak as well 
 of earth-souls and world-souls." {Paulsen, "Philosophia Militans," 
 pp. 189 seq.) The doctrine of universal souls was proposed by Fech- 
 ner {See Berolzheimer, "System," Vol. I, pp. 119 seq.). 
 
462 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 and sociology has been followed in various directions. 
 The collection, "Natur und Staat," consists of prize 
 essays ^ (edited by H. E. Ziegler, Conrad, and Haeckel) 
 in competition upon the theme: "What may we learn 
 from the principles of evolution with reference to the 
 political development and legislation of States?" 
 
 Matzat,^ who follows Stammler in his mode of approach 
 to the problems of law, explains the origin and mainte- 
 nance of law as "an adjustment of objective conduct to 
 a foreign will." Accordingly a legal relation is "a 
 relation of mutual adjustment between two or more 
 persons, in which a part of the conduct of the first 
 party must be conditioned by the will of the second, and 
 a part of the conduct of the second party by the will 
 of the first." He defines the State as "a community of 
 men in a legal relation in which a part of the conduct 
 of all members thereof is conditioned by the will of the 
 individual member, and a part of the conduct of the 
 individual is conditioned by the will of all the members, 
 such relation not being subject to alterations by any 
 foreign will." The fundamental functions of the State 
 are protection and the maintenance of the law. The 
 
 ' These prize essays bear the following titles: Heinrich Matzat, 
 "Philosophie der Anpassung,'' with special reference to law and the 
 State; also an Introduction to the general work, "Natur und Staat," 
 by H. E. Ziegler, Jena 1903. A. Ruppin, "Darwinismus und Sozial- 
 wissenschaft," Jena 1903. Schallmeyer, "Vererbung und Auslese 
 im Lebenslauf der Volker,'' a sociological study on the basis of the 
 newer biology, 1903. Hesse, "Natur und Gesellschaft," a critical 
 investigation of the significance of the theory of descent for the social 
 life, 1904. Kurt Michaelis, "Prinzipien der Natiirlichen und Sozialen 
 Entwickelungsgeschichte des Menschen," "Anthropological and 
 Ethnological Studies," 1904. A. Eleutheropulos, "Soziologie," 1904. 
 As announced in "Natur und Staat," Part I, Introduction, pp. 22- 
 24, the remaining volumes are as yet unissued. 
 
 2 "Philosophie der Anpassung," pp. ' 131-190, 155, 169, 207, 
 205, 308, 309 seq., 303, 282-310, 308. 
 
§51] PRINCIPLES OF EVOLUTION 463 
 
 State may also assume other functions. To what extent 
 it may proceed is determined by the principle of "adjust- 
 ment." "The activity of the State is decreasing and 
 must decrease, is so far as the restriction of individual 
 thought and desire is involved (for example, in the 
 religious domain). It increases and must increase so 
 far as it bears upon the objective conduct of men." 
 Such adjustment is the natural character of govern- 
 ment. The lowest stage of adjustment consists in the 
 elimination of conflict. "But conflict can be eliminated 
 only by mutual adjustment of one's conduct to another's 
 will, and another's conduct to one's own will, and 
 thus by relations of adjustment which are legal relations." 
 
 Arthur Ruppin, in his "Darwinismus und Sozialwissen- 
 schaft," studies the four principles of the theory of 
 evolution — heredity, adaptation, natural selection, and 
 sexual selection, — with reference to their application to 
 the social life of men.^ 
 
 H. E. ZiEGLER^ attempts to show that socialism' 
 
 1 Here belong some of the works mentioned in § 44, particularly 
 Lilienfeld; also Schdffle's essay, "Uber Recht und Sitte vom Stand- 
 punkt der Soziologischen Erweiterung der Zuchtwahltheorie," 
 (in "Avenarius," II, 1878, pp. 38-67); Otto Amman's "Die Gesell- 
 schaftsordnung und Ihre Natiirliche Grundlagen," an outline of a 
 social anthropology for the use of all educated persons interested 
 in social problems, Jena 1895, third edition, Jena 1900; Joh. Speck, 
 "Gesetz und Individuum. Ein Beitrag zur Individuellen und Sozialen 
 Entwickelungsgeschichte des Menschen," Hanau 1904, pp. 112- 
 143. This attempts to apply the theory of evolution, in the sense 
 of Goethe's idealism or law of harmony, to the study of government 
 and law. 
 
 ''"Die Naturwissenschaft und die Sozialdemokratische Theorie, 
 ihr Verhaltnis Dargelegt auf Grund der Werke von Darwin und 
 Bebel." This is also a contribution to the scientific criticism of the 
 theories of current social democracy. Stuttgart 1893. 
 
 ' In "Freie Wissenschaft und Freie Lehre," a reply to an address 
 delivered in Munich by Rudolf Virchow on "Die Freiheit der Wis- 
 
464 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 finds no support in Darwinism. He compares the 
 several fields of natural science with the social demo- 
 cratic theory, particularly with regard to marriage, 
 struggle for existence, property, and the State. 
 
 Otto Ammon ^ also opposes socialism from the po- 
 sition of Darwinism. He emphasizes the social-aristo- 
 cratic value of the several classes of society, which value, 
 the socialistic regime would destroy." "The existence 
 of classes continues the work of natural selection in man 
 and establishes a natural improvement of the species 
 in Darwin's sense." The educated classes should oppose 
 social democracy "because the dominance of the masses 
 
 senschaft im Modernen Staat," Stuttgart 1878, pp. 9-50, 61-69, Ernst 
 Haeckel outlines the principles of the theory of evolution, and then 
 replies to Virchow's attack upon the socialistic character of the 
 doctrine of evolution, and particularly of the theory of selection. 
 "Darwinism is anything but socialistic," is his contention (pp. 
 73, 70-77). 
 
 ' "Der Darwinismus gegen die Sozialdemokratie. Anthropolo- 
 gische Plaudereien," Hamburg 1891. (A collection of short essays.) 
 "Die Gesellschaftsordnung und Ihre Natiirlichen Grundlagen, 
 Entwurf einer Sozial-Anthropologie zum Gebrauch fur alia Gebilde- 
 ten, die Sich mit Sozialen Fragen Befassen," Jena 1895, second 
 edition 1896 (third edition 1900). See also in this connection 
 Ferd. Tonnies, "Jahresbericht tiber Erscheinungen der Soziologie 
 ausden Jahren 1895 und 1896" ("Archiv fiir Systematische Philoso- 
 phic"), Vol. IV, 1898. pp. 237-239. 
 
 2 "Der Darwinismus," etc., p. 74: "Social division is a natural 
 division based upon the Darwinian law of natural selection in the 
 struggle for existence." P. 76: "If Darwin's doctrine is not an idle 
 invention then the fourth estate can never attain leadership, and 
 certainly not supremacy in human society, despite such endowments 
 as they may have; and if the fourth estate were ever to triumph 
 by means of applying their crude strength, the success would be but 
 temporary." Pp. 97-102: "Panmixie as the opposite of natural 
 selection." "Die Gesellschaftsordnung und Ihre Naturlichen Grund- 
 lagen," pp. 62-66, on the social mechanisms for the natural selection 
 of individuals; pp. 90-96, 104-127, 156-163, 177-186, 363 seq., 
 370-390. 
 
§51] PRINCIPLES OF EVOLUTION 465 
 
 is irreconcilable with the natural principles of every 
 order of society, and would lead to the destruction of 
 all." "The law of natural selection is operative every- 
 where, for example, in the army, in official, commercial, 
 and laboring classes." "The general conclusion is that 
 a true social and national politics cannot issue from 
 the masses, but only from the educated classes." ^ 
 On the other hand, Enrico Ferri,^ an Italian follower 
 of Karl Marx, attempts to show that socialism is not in- 
 consistent with Darwinism in that the law of the struggle 
 for existence may also be operative, though weakened 
 in force in the socialistic State. At best his arguments 
 lead to the conclusion that there is no essential relation 
 between socialism and Darwinism. 
 
 Under the title, "Natiirliche Grundlagen des Rechts 
 und der Politik," a contribution to the philosophical 
 and critical appreciation of the theory of evolution,' 
 L. KuHLENBECK presents a condensed survey of the 
 natural theory of descent of Lamarck, Goethe, Geoffroy, 
 St. Hilaire, Darwin, Weismann and Haeckel. He 
 accepts the theory of evolution, though not the material- 
 ism often associated with it. He applies biological 
 laws to government and society, in the course of which 
 he considers the history of the evolution of society and 
 of the origin of the State in general, with special con- 
 sideration of the racial, class, and caste elements in the 
 State, and of the further development of special classes, 
 such as the professions, the clergy, and the learned 
 classes, etc. He considers the significance of racial 
 
 1 "Die Gesellschaftsordnung," etc., pp. 94, 372, 377, 388. 
 
 ^ "Sozialismus und Moderne Wissenschaft" (German translation, 
 Kurella), 1895, pp. 11, 27, 30, 35-37, 83. See also Gumplowicz, 
 "Geschichte der Staatstheorien," pp. 496 seq. 
 
 3 "Thuringische Verlags-Anstalt Eisenach und Leipzig" [1905], 
 pp. 6-54, 57 seq., 170-222, 223 seq., 232. 
 
466 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 stock as a factor of internal political development, and 
 of such forces as tradition, social adjustment, and the 
 bearing of biological laws upon individual fields of the 
 law — such as trial procedure, punishment as a means 
 of social selection, etc. Throughout, the treatment 
 emphasizes the place of economic forces in the political 
 careers of nations. 
 
 Kuhlenbeck is opposed alike to socialism with its ultra- 
 democratic and retrogressive tendencies, and to the 
 materialism represented by capitalistic interests. He 
 advocates a social-aristocratic idealism, "a conscious 
 social aristocracy that shall so regulate the struggle for 
 existence, particularly the selection among nations, 
 that a nobler type of mankind may emerge." 
 
 § 52. Class and State. Viewing retrospectively the 
 stages of development of legal philosophy from the 
 close of the Middle Ages to the present, we observe a 
 continuous process of emancipation gradually brought 
 to completion. The Reformation achieved the libera- 
 tion of State supremacy from the fetters of ecclesiastical 
 dominance and the papal throne. The Tyrannomachs 
 abolished the civic enslavement by an appeal to reason 
 and to Scriptural faith ■ — at once rationalistic and 
 theological; later, through the mediation of the spirit 
 of Rousseau and the Encyclopedists, the great French 
 Revolution swept away despotism, and paved the way, 
 in republics, for the rule of the middle classes, and in 
 other governments, for the prosperity of the third estate 
 under the beneficent regime of an enlightened abso- 
 lutism. Of similar import were the eff^orts of Adam 
 Smith in behalf of economic freedom, and of Kant in 
 behalf of the "Rechtstaat," the State as the embodi- 
 ment of law. Step by step the third estate reached the 
 position of political supremacy and economic control 
 under legal regulation of private interests, which, while 
 
§ 52] CLASS AND STATE d67 
 
 formally proclaiming the freedom of the laboring classes, 
 actually favored their economic subjection. At this 
 juncture the fourth estate came to its own. The labor- 
 ing classes agitated for an economic emancipation to 
 be attained under the red badge of communism and 
 socialism. In the closing quarter of the nineteenth 
 century this last great act of emancipation was accom- 
 plished, and with its accomplishment we approach a 
 new and far-reaching development. 
 
 The history of such movements never presents a 
 radical break with the old and an immediate assimila- 
 tion of the new; transitional conditions ever intervene 
 in which the vestiges of the period meeting its decline, 
 persist side by side — and at times in sharp contrast — 
 with the ^rst beginnings of the new. Nature never 
 advances by leaps and bounds. Such a period of 
 transition, in which the symptoms of the decline of the 
 older and of the onset of the newer ideas are evident, 
 still prevails. 
 
 The movement of emancipation of the last century 
 was not limited to the liberation of the great classes 
 that suffered most from mediaeval oppression. When 
 we observe that in the course of four centuries the 
 temporal power was emancipated from the spiritual 
 power, and the civic estates from despotism, and the 
 laboring classes from the capitalistic yoke, we equally 
 note that the emancipation was always that of classes 
 as such. It is true that with the liberation of a given 
 class the individual members thereof also were set 
 free, but the movement was centered upon the over- 
 throw of the class burden, leaving the individual within 
 the class in complete dependence. A clear example 
 thereof is afforded by the course of social democracy, 
 which imposes upon its adherents a discipline of such 
 severity, and demands of the individual such large 
 
468 SOCIOLOGICAL PHILOSOPHIES [Ch. Vll 
 
 sacrifices in behalf of class interests, as would make 
 every form of governmental or capitalistic paternalism 
 seem mild in comparison. The masses never really 
 attained true freedom; they merely got rid of one 
 burden to assume another. The change induced a 
 feeling that the oppression was gone, but in reality it was 
 only that the yoke had been shifted. The emancipation 
 of the classes had yet to find its complement in the 
 emancipation of the individual. The classes concerned 
 form a mere collectivity of men, constituting not a 
 political nor an economic, but merely a social class, 
 sharing the same real or apparent restrictions. 
 
 Another phase of accomplished emancipation is that 
 relating to the status of the Jews. This began in the 
 last quarter of the eighteenth century, but was formally 
 completed in Germany only by the enactment of 
 1848 and the imperial law of July 3, 1869, proclaim- 
 ing the civic and political equality of all religious 
 confessions. 
 
 At present the emancipation of woman is coming to 
 the front. The claim seems a just one that such women 
 as do not seek or find the possibility of marriage should 
 have open to them a larger number of callings and 
 intellectual opportunities. Under the influence of the 
 feminist movement the legal position of the married 
 woman has been decidedly improved in the German 
 code. While the husband remains the acknowledged 
 head of the family, the wife enjoys co-ordinate rights. 
 She is protected against abuses of the husband's au- 
 thority; and her rights ^ as a wife and a widow are 
 safeguarded.'' 
 
 1 Particularly laws concerning education: "Parent's control" of 
 §§ 1626, 1684 seq., of the BGB, instead of the "paternal" control 
 derived from Roman law. See also §§ 1356 seq., 1365-1371. 
 
 2 See, for instance, §§ 1357, Part II, 1391-1394, 1406 BGB. 
 
§52] CLASS AND STATE 469 
 
 The woman's movement likewise aims to improve the 
 political status of women, demanding that they shall 
 have like political rights with men. When thus 
 comprehensively expressed, the demand cannot be 
 conceded — and that for historical, political, and practi- 
 cal reasons: in the first place, because so tremendous a 
 change as that from political absence of rights to politi- 
 cal equality would violate every principle of historical 
 evolution; secondly, because at present the granting of 
 political rights to women, in view of the preponderance 
 of the laboring classes, would mean an enormous 
 strengthening of the political influence of these classes, 
 which, as things are, is already unduly strong; finally, 
 because the great majority of women have no interest 
 in public affairs, and by virtue of their physiological 
 and psychological endowment, and of their relations to 
 the family, naturally have a larger inclination and 
 understanding for family cares and the household than 
 for questions of general interest. On the other hand it 
 is not justifiable to exclude a woman pursuing a pro- 
 fession from political life, nor desirable to deny the 
 feminine mind a participation in public affairs. Practi- 
 cable proposals are more likely to be brought forward 
 as soon as the general political development will have 
 advanced from the present transitional stage to a clearer 
 view of the situation. 
 
 An offshoot of the general "woman's movement" is that 
 for the abolition of the "white slave" trafific. It may be 
 admitted that every form of prostitution indicates a 
 cultural retrogression. But for many reasons it seems 
 difficult to avoid the toleration,* though not the official 
 recognition, of prostitution. The "abolitionists" may 
 well limit their war against prostitution to social in- 
 
 ^ Berolzheimer, "Die Entgeltung im Strafrechte," pp. 168, 495- 
 500, and the bibliography on p. 483. 
 
470 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 fluences, and in this way are likely to produce a whole- 
 some effect. By advocating legislative regulation the 
 movement has conducted a successful campaign against 
 the "white slave" traffic.i 
 
 A further outcome of the movement for the emanci- 
 pation of woman is the agitation for an improved social 
 status for children born out of wedlock. It proceeds 
 upon the humanitarian sentiment that condemns the 
 social branding of these innocent victims; it also urges 
 the practical consideration that, as experience shows, the 
 mothers of illegitimate children, as well as the girls 
 thus born, are frequently led into prostitution; while 
 statistics show that illegitimate children furnish the 
 largest percentage of criminals. In fact there seems no 
 reason why illegitimate children in general, or at least 
 in cases where the mother is faithful to one man, should 
 not socially and legally be given such position as is 
 now granted in general to the mother and her offspring. 
 The words of the German code read: "An illegitimate 
 child has, in relation to the mother and to the mother's 
 relatives, the same legal status as a legitimate child." ^ 
 
 The great process of emancipation of the laboring 
 classes is today substantially accomplished, but prob- 
 lems of detail remain. Social democracy has brought 
 
 • See § 48 of the laws of the German Empire upon emigration, 
 June 9, 1897. See also Berolzheimer, "Die Entgeltung im Straf- 
 rechte," pp. 39, 483, 499, and the bibliography there cited. 
 
 ^Berolzheimer, "Die Entgeltung im Strafrechte," p. 500. Also 
 Shakespeare, King Lear I, 2: — 
 
 "Why brand they us 
 With base? with baseness? bastardy? base 
 Who, in the lusty stealth of nature, take 
 More composition and fierce quality 
 Than doth, within a dull, stale, tired bed. 
 Go to the creating a whole tribe of fops. 
 Got 'tween asleep and wake?" 
 
§ 62] CLASS AND STATE 471 
 
 to the polls a body of no less than three million voters. 
 It requires a bugle blast to reach this enormous army 
 of recruits. Among so many leaders dissensions are 
 inevitable; yet, despite factions and the differences of 
 the older and the newer social democracy, there is a 
 practical unanimity of sentiment among its leaders. 
 This applies not alone to Germany; the international 
 character of socialism is now more marked than in the 
 days of Marx and Lassalle. It has affected the economic 
 interests of middle Europe and North America, and 
 recently those of Russia. The socialistic labor party 
 is strongly asserting itself in behalf of the establishment 
 and extension of its economic and political position. 
 The dream of a Utopia is giving way to the attainment 
 of an effective direction of government, economics, and 
 the law in the interests of the laboring classes. Organ- 
 ized labor is demanding and receiving a share in the 
 government; in France it is represented by a member 
 of the ministry; in Germany it has many representatives 
 in the Reichtstag, and is represented as well in govern- 
 mental and municipal counsels. In the United States, 
 in England, in Belgium, France, Germany, powerful 
 labor unions protect the economic interests of the 
 laboring classes. Such legislation as insurance against 
 accident, sickness, and incapacity, indicates the scope 
 of the measures now adopted for the protection of labor. 
 The same applies to laws for the improvement of the 
 hygienic condition of the laboring classes, the erection 
 of homes for workingmen in healthful locations, with 
 proper sanitary equipment, of sanatoriums, and recrea- 
 tion homes. Sanitary conditions in factories and work- 
 shops are insisted upon. There are laws that prescribe 
 safety devices to eliminate accidents; insurance laws 
 that protect children, pregnant and nursing women; 
 factory inspection that secures the observance of laws 
 
472 SOCIOLOGICAL PHILOSOPHIES [Ch. Vll 
 
 and ordinances and minimizes abuse: and if, despite 
 these provisions, the laboring classes believe that 
 they have occasion for dissatisfaction, they threaten 
 or declare a strike or boycott, and do not hesitate 
 to intimidate by demonstration and sympathetic 
 strikes. 
 
 Reviewing this general state of affairs from an un- 
 prejudiced outlook, one may reach a critical estimate 
 of the social democracy of the present. The State of 
 the future — ^ whether as a consummation of hope or 
 of fear — is but a pretext, or at most, a point of appeal 
 for agitation. Socialism is essentially the party of 
 labor, strenuously representing the political interests of 
 the laboring classes. The gains of socialism are due 
 to its enlistment of the industrial workers and of the 
 portions of the population socially and economically 
 affiliated with them. It appeals to the agricultural 
 laborers, to the overworked and underpaid employees. 
 Socialism has become a significant political force as the 
 platform of a radical party; as such it attracts bright 
 and energetic leaders of the intellectual type, who 
 would not be drawn to it as the representatives of 
 labor interests. 
 
 These considerations suggest the future importance 
 of socialism and the position which, in their own interests, 
 the ruling classes must assume towards it. It will be 
 conceded that mere labor is justified in advancing its 
 special class interests with all legally legitimate and 
 socially available measures. By so doing it advances the 
 interests of civilization; it undertakes to complete 
 the emancipation of the fourth estate, and to outline 
 the proper status of the working classes in the State 
 of the future, which will be organized on the basis of 
 class interests. It is, however, a short-sighted view of 
 affairs to interpret the position of social ethics and 
 
§ 52] CLASS AND STATE 473 
 
 social reform, as is now commonly done by professional 
 writers, as representing the special interests of labor 
 alone. On the theoretical side economics, sociology, 
 and political economy, and on the practical side legis- 
 lation and administration, should understand the pur- 
 poses and motives of the socialistic movement, and 
 shape their policies accordingly. The socialism of today 
 is the partisan representation of the class interests of 
 the fourth estate, and of the wage earner in particular. 
 As such it considers the legitimate class interests of 
 labor; under these circumstances it is no less important 
 that the professional and commercial classes shall be 
 similarly represented and brought to efficient expression. 
 The socialism of the laboring classes thus appears as 
 at once the last stage of the great process of emancipa- 
 tion extending from the Middle Ages to the present, 
 and as the forerunner of the new period of the modem 
 class-State. 
 
 The differentiation of class interests is furthermore 
 distinctly favored by the tendency towards centraliza- 
 tion, as against free competition in industrial enterprise. 
 While until recently manufacturers and dealers entered 
 into a fierce competition with one another, they have 
 learned, through the experience of the ruin of some of 
 their number by excessive competition, that the com- 
 mon interests of the manufacturers of a given trade 
 when centralized can secure the prosperity of all. There 
 have thus developed selling agreements, pools, trusts, 
 and various other consolidations of interests. Legis- 
 lation cannot ignore these conditions. As I have else- 
 where indicated,^ legislation must face the problem "of 
 
 ^Berolzheimer, "Zur Kartellfrage. Legislativpolitische Betrach- 
 tungen." .Appendix: "Entwurf Eines Gesetzes betreffend die 
 Kartellierungen" ("Juristische Vierteljahresschrift des Deutschen 
 Juristenvereins"), Prague, 35 vols., N. S., 19 vols., Parts III and IV, 
 Vienna 1903, pp. 97-149, 101. 
 
474 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 finding a proper legal embodiment for these economic 
 conditions, so that they shall no longer be forced to 
 resort to subterfuges and irregular procedures to retain 
 an appearance of conformity to the law. Legisla- 
 tion must likewise devise means to prevent abuse 
 and exploitation on the part of the consolidation of 
 interests." 
 
 It may not be amiss to observe that the organization 
 of syndicates and other forms of consolidation forms a 
 practical argument against the socialistic position of 
 Marx and his followers in their views of the present 
 form of the State. For socialism urges that a capitalis- 
 tically organized society will never be able to regulate 
 production ; that periods of over-production will inevita- 
 bly be followed by crises due to under-production; and 
 that the socialistic order alone can properly regulate 
 these interests. It has been shown that when the 
 situation arises, the State, as at present organized, can 
 successfully deal with the problem. As representatives 
 of class interests there must further be considered the 
 very influential landholding class, and again, the inde- 
 pendent middle classes, which, since the rise of the 
 great mercantile and industrial enterprises, have changed 
 their character and been replaced by a new middle class, 
 composed of the higher grade employees of the great 
 industries, and of business men. 
 
 Recent legislation has considered the interests of 
 special classes and passed laws in behalf of the members 
 of one or another economic class. Labor has been repre- 
 sented in the legal recognition of its claims to a share 
 in the organization of industry, and again in labor 
 insurance laws. Special provisions for employers and 
 laborers, as well as for clerks and apprentices, have 
 been established in connection with courts devoted 
 specifically to industrial and mercantile affairs. The 
 
§52] CLASS AND STATE 475 
 
 restrictions of the privileges of the stock exchange,' 
 laws for the prevention of unfair competition, ^ regula- 
 tions for medical practitioners, and so on, are further 
 examples of class legislation. In so far as these laws 
 emphasize the affiliation of the members of particular 
 callings, industries, or occupations, they serve to re- 
 enforce the stratification of society, and present examples 
 of the influence of legislation upon social and economic 
 phenomena. 
 
 Parallel to the development in law and economics, 
 there proceeds a transformation of an intellectual order, 
 which, in its effect upon religious belief, is especially 
 noteworthy. This intellectual unrest, characteristic 
 of our day, has produced an extraordinary upheaval cf 
 religious faith. All possible attitudes find their repre- 
 sentatives. Leaders abound and disciples are few. 
 The absence of uniform cultural standards is evident 
 aesthetically in the many adaptations of the styles of 
 former periods, and in the failure to originate an ade- 
 quate style expressive of present needs. Out of this 
 period of intellectual and moral disruption there is 
 gradually emerging a new unity and solidarity. The 
 psychological factor that is tending towards the forma- 
 tion of the "Klassenstaat," the class-State, is the dis- 
 organization of our culture, and the consequent desire 
 for peace of mind and material stability. But there 
 
 ' See § 10 of the laws of the Stock Exchange of June 22, 1896 
 ( Borsen-Ehrengericht) . 
 
 2 There is a sharp conflict of opinion regarding the character of the 
 law for the prevention of unfair competition, of May 27, 1896. 'The 
 conception which I suggested and established is as follows: 'The 
 regulations in regard to unfair competition constitute a disciplinary 
 law for the trades within the scope of the adjective and substan- 
 tive divisions of the common law." See also Berolzheimer, "Die 
 Entgeltung im Strafrechte,'' pp. 213-217, 214; also p. 232, notes 
 6 and 9, for the references to my presentations in former writings. 
 
d76 SOCIOLOGICAL PHILOSOPHIES [Ch. VII 
 
 can be no progress without struggle. The newer 
 materialism or monism, an intolerance of a mediaeval 
 type, an enlightened tolerant Protestantism, and other 
 related trends of an idealistic philosophy, are all com- 
 peting for favor. To the observant student of civiliza- 
 tion there will hardly be a doubt as to which of these 
 tendencies represents an advance to the cultural achieve- 
 ment of the future. 
 
 CONCLUSION 
 
 The stages of the evolutionary series thus presented 
 may be summarized as follows : the universal absolutism 
 of the Church; the absolutism of the ruling nobility; 
 enlightened absolutism; absolutism of the law; and 
 the limited absolutism of the law. Here enters a new 
 series, the first stages of a new evolution typified by the 
 modern class-State, the "Klassenstaat." Though this 
 finds its parallel in certain phases of mediaeval and later 
 conditions, yet, in contrast, the new classes are essen- 
 tially economic in nature: they are free, and tend to 
 express themselves in a free, spontaneous, not legally 
 prescribed form of association. ^ 
 
 What the ultimate form of the class-State is to be, 
 cannot be predicted. Prophecies in the field of economics 
 are likely to be vain. But it is certain that the class- 
 State, founded as it is upon an economic basis, must 
 bring about political changes. The change of economic 
 conditions must sooner or later involve a fundamental 
 change of the law, and particularly of public law. Par- 
 liamentary representation of the people will pave the 
 way for legislation in the interest of the new class 
 interests. The answer to the great political problem 
 
 ' What is decisive is not merely the pursuit, but the publication 
 and emphasis of class interests, and the growing recognition of the 
 validity of such endeavors. 
 
§ 52] CONCLUSION 477 
 
 as to which class will gain supremacy may perhaps 
 read: The free economic classes as recognized by the 
 law of the future. 
 
 It is a significant symptom that the proprietary and 
 educated classes are asserting their rights. Such asser- 
 tion, it may be hoped, will counteract the extreme 
 democratization of social ethics, which threatens to 
 make the interest of the lower classes equivalent to the 
 welfare of the State, and in its ultimate consequences 
 leads to the economic oppression of the upper classes, 
 as clearly as the influence of Rome is aiming at the 
 spiritual enslavement of the lower classes. 
 
 The original problem of legal philosophy, which Rous- 
 seau formulated and Kant accepted, was the manner 
 of association of the community through law and govern- 
 ment, both as an expression and as a guaranty of 
 individual freedom. This problem now demands a 
 restatement in consideration of altered economic condi- 
 tions and intellectual outlook. Present-day interests 
 sound a note of warning to the effect that the emanci- 
 pation of the fourth estate must not result in an enslave- 
 ment of the upper classes, must not permit the intellectual 
 gains which European civilization has achieved since the 
 days of the Reformation, to be placed at the mercy of 
 the powers of darkness. 
 
 The legal representation of the legitimate interests 
 of every economic class, and the legal guaranty of 
 intellectual freedom, alone can secure for every class 
 within the State, and for every individual within his 
 class, the self-assertion, influence, and freedom which 
 are necessary to the complete expression of each class 
 and of its individual members as such. It is only 
 by such means that a people can attain its efficient 
 development and a position of influence in the common- 
 wealth of nations. 
 
INDEX 
 
 [The numbers refer to the pages.] 
 
 Absolutism, 132; 153. 
 
 Adier, Georg, xliv, note 1; 107, 
 
 note; 445; 445, note 3. 
 Adler, Max, 289, note 2. 
 Affolter, 13, note 3; 225, note 1. 
 Ahrens, xlii, note 1; 2, note; 8, 
 note; 51, note 1; 211, note 5; 
 244; 245-248; 325, note 1. 
 Althusius, Johannes, 118, note 2; 
 119, note; 120; 120, note 1; 
 121. 
 Ammon, Otto, 463, 464; 463, note 
 
 1. 
 Anarchism, 267 seq.; 287 seq. 
 
 violence in, 292 seq. 
 Anders, 43, note 4. 
 Antisthenes, 74. 
 
 Aquinas, Thomas, 94; 94, note 2; 
 98-101; 98, notes 1, 2; 99, 
 notes 1, 2, 3, 4; 100, notes 1-9; 
 101, note 1. 
 Aranya, 36, note 2. 
 Aristippus, 75. 
 
 Aristotle, 28, note 1; 49, note 2; 
 52, note 2; 53, note 2; 57, 
 note 2; 67 seq.; 68, note 2; 
 71, note 3; 72, notes 1, 2, 
 3; 73, notes 1, 2; 74, notes 
 1, 2; 76; 94; 100; 101, note 
 1; 115; 142; 239; 417, note 
 1 ; 420. 
 ethical concepts in, 67; 68. 
 Greek institutions in, 68—72; 
 
 73. 
 justice in, 72. 
 philosophy of, 67 seq. 
 Aryans, Vedic. See Vedic Aryans. 
 Aschaffenburg, 373; 443; 444, note. 
 Association of American Law 
 
 Schools, V. 
 Assyria. See Babylonia and As- 
 syria. 
 Auer, Fritz, 372, note 2; 444, note. 
 Augustine triumphans, 102. 
 
 Augustine, St., 61, note; 94 seq.; 
 
 94, note 1; 95; 95, notes 1, 3, 
 
 4; 96, notes 2, 3; 97, notes 5, 
 
 6,7. 
 Austin, John, xiii; 141; 141, note 3. 
 Babylonia, 33. See also Baby- 
 lonia and Assyria. 
 Babylonia and Assyria, 32 seq. 
 Bachofen, 48, note 3; 52, note 1; 
 
 388-389. 
 Bakunin, 289; 292-294. 
 Baldwin, J. Mark, 444r-445. 
 Bar, von, 450. 
 Barclay, 118, note 2. 
 Barenbach, Friedrich von, 364, note. 
 Barth, Paul, 303, note 2; 364, 
 
 note; 444; 444, note 1. 
 Bastian, 364, note. 
 Bauer, 168, note 2; 170, note 3. 
 Baumann, J. J., 101, note 2; 453- 
 
 454. 
 Bebel, 278-279; 463, note 2. 
 Beccaria, 152. 
 Bekker, 12, note 3; 214. 
 Belfort-Bax, 280, note 2; 281, 
 
 note 1. 
 Benfey, Th., 39, note 3. 
 Bentham, xiv; 76; 137-139; 138, 
 
 notes 1, 2, 3, 4; 139, notes 
 
 1, 2. 
 Bergbohm, xii, note 3; xiv; 3, 
 
 note; 6, note 3; 9, note 2; 
 
 17, note 1; 141, note 4; 214. 
 Bergemann, 114, note; 335; 367; 
 
 446, note 1. 
 Bernatzik, 7, note. 
 Bernheim, 96, note 1. 
 Bernhoft, 12, note 4; 37, note 4; 
 
 39, note 3; 47, note 2; 49, 
 
 note 1; 84, note; 388, note; 
 
 392, note. 
 Bernstein, Eduard, 280; 282; 393. 
 Berolzheimer, vii; xiii, note 3 
 
 XV ; xviii; xxi; xxii; xxiii; xxiv 
 
 xxxix; 7, note; 21, note 2 
 
480 
 
 INDEX 
 
 [The numbers refer to the pages.] 
 
 Berolzheimer — {continued) . 
 
 23, note 1; 34, note 1; 49, 
 note 3; 51, note 2; 55, note 1; 
 63, note 1; 67, note 1; 74, 
 notes 1, 2; 77, note 1; 82, 
 note; 86, note 3; 101, note 2; 
 116, note 3; 127, notes 2, 3; 
 129, note 2; 134, note 7; 141, 
 note 2; 165, note 2; 174, 
 note 1; 196, note 2; 201, note 
 3; 202, note 1; 203, note 1; 
 204, note 3; 206, note 6; 220, 
 note 3; 221, note; 222, note 2; 
 225, notes 4, 6; 227, notes 
 
 1, 2; 228, note 4; 248, note 2; 
 295, note 2; 317, note; 335, 
 note 6; 350, note; 370, note 1; 
 372, note 2; 374, note 3; 383, 
 note; 392, note 1; 417, notes 
 
 2, 3; 450, notes 1, 2, 5, 6; 
 461, note; 469, note; 470, 
 notes 1, 2; 473, note; 475, 
 note 2. 
 
 Beseler, 370; 370, note 1. 
 Bierling, 9, note 1; 10; 10, note 1; 
 
 11, note 2; 385-386, and 
 
 notes. 
 Biermann, W. Ed., 22, note; 130, 
 
 note 3; 173, note 2; 272, note 
 
 1;294, note 2. 
 Binding, 9, note 3; 23; 320; 381- 
 
 384; 387; 448. 
 Bismarck, 332. 
 Blanc, Louis, 265-267. 
 Blum, Erich, 274, note 2. 
 Bluntschli, 15, note 1; 38, note 2; 
 
 136, note 1;325, note 2. 
 Bocchoris, 30. See also Code of. 
 Boden, Friedrich, 392, note. 
 Bodin, 119, note; 120; 121, note 1. 
 Bonar, J., 7, note; 169, note 2. 
 Borght, V. d.,332, note. 
 Bouchard, 303, note 1. 
 Brahmin, 37. 
 
 Braun, Heinrich, 365, note. 
 Brentano, L., 375. 
 Bruno, 461, note. 
 Buddhism, 202. 
 CEesarinus, Furstenerius. See 
 
 Leibnitz. 
 
 Calker. van, 15, note 1; 335; 335, 
 
 note 7. 
 Capital, 270seq.;277. 
 
 and Labor. See Labor. 
 Caput, 34. 
 Carneades, 77. 
 Castes, 37, note 1. 
 
 in Egypt, 28, note 1. 
 in India, 37 seq. 
 Castillejo y Duarte, xvii, note 3. 
 Catholic Church, 51. 
 
 and Greek philosophy, 93; 
 
 94. 
 and State, 95-97; 102; 119. 
 doctrines of, 101 seq. 
 Pax, 96-98. 
 
 Two Swords, 101 — philoso- 
 phy of 102. 
 St. Augustine, 94 seq. 
 Thomas Aquinas, 98 seq. 
 sovereignty in, 107 seq. 
 Chaldea, 33; 34. See also Baby- 
 lonia and Assyria. 
 China, 22. 
 
 Christianity. See also Catholic 
 Church, 
 ethical view of, 89-90. 
 Cicero, 1, note; 83, note 2; 86, 
 note 4; 87-89; 87, notes 1, 2; 
 
 88, notes 1, 2, 3, 4, 5, 6; 
 
 89, notes 1,2; 115, note 3. 
 Civic emancipation, 124 seq.; 162. 
 Code — 
 
 of Bocchoris, 30. 
 
 of Hammurabi, 34 seq. See 
 also Hammurabi. 
 
 of Manu, 39, note 3. 
 
 Prussian, 164. 
 Codex Hammurabi. See Ham- 
 murabi. 
 Coercion. See Law, and Coercion. 
 Cohen, Hermann, 392-395; 392, 
 
 notes 1,2; 398; 403. 
 Colbert, 165; 166. 
 Communal will. See Community. 
 Communism, 260 seq;. 291 seq. 
 
 and anarchism, 267 seq. 
 
 and communists, 90. 
 
 and socialism, 267 seq. 
 
 French, 260 seq. 
 
INDEX 
 
 481 
 
 [The numbers refer to the pages.] 
 
 Community — 
 
 organization of, 365 seq. ; 367. 
 Comte, xix; 308-316; 351. 
 Conrad, 462. 
 Corporation, 370 seq. 
 Coste, 364, note. 
 Crime. See Punishment. 
 Croce, xvii, note 4. 
 Crusades. See Economic organi- 
 zation and the Crusades. 
 Culture — 
 
 conception of, xvii seq. 
 
 stages of, xli; xlii. 
 Curtius, 48, notes 1, 2, 3. 
 Cynics, 74. 
 Cyrenaics, 75. 
 Dahn, xlii, note 3; 2, note; 6, note 
 
 2; 248; 252-255. 
 Dante, 108; 108, notes 2, 3. 
 Dargun, 392, note. 
 Darwin, xvii; 56; 230; 317; 458; 
 
 463, note 2; 464; 464, notes 
 
 1, 2; 465. 
 Dauriac, xx, notes 1, 2. 
 De Morgan, 34. 
 Descartes, 115; 234; 314. 
 De Tocqueville, iii. 
 Dhama, 38; 97. 
 Dharma, 38; 39. 
 Dialectics, 17. 
 
 i n Hegel, 219-223. 
 Dicaspoloi, 47. 
 
 Diderot, 152-155, and notes; 170, 
 note 3; 336. 
 
 his maxims, 154, note. 
 Diehl, 177, note. 
 Dietzel, 332, note. 
 Dike, 47. 
 Diodorus Siculus, 26; 27, note 1; 
 
 28, note 1;31, note 3. 
 Diogenes Laertius, 76, notes 1, 2. 
 Dodona, 47. 
 
 Du Bois-Reymond, 146, note 2. 
 Dflhring, 190. 
 Dumont, 138, note 1. 
 Du Plessis-Mornay, 120, note 2. 
 Economic organization, 328 seq. 
 
 and the church, 104-106. 
 
 and the Crusades, 105. 
 
 crafts and trades, 106-108. 
 
 Economic organization — {con- 
 tinued) . 
 
 influence of Jews upon, 106. 
 
 in Middle Ages, 103 seq. 
 Economics — 
 
 and industry, 172 seq. 
 
 and law, 20 seq.; 399 seq. 
 
 conception of, 23. 
 
 classical, 170 seq. 
 
 Egyptian, 27 seq. 
 
 Mosaic, 43 seq. 
 
 of labor. See Labor. 
 
 philosophy of, 16; 375 seq. 
 conception of, 5. 
 in Fichte. See Fichte. 
 Egypt, 25 seq. 
 Eichhorn, 212. 
 Eisler, R., 3, note; 365, note; 446, 
 
 note 1. 
 Eleutheropulus, 462, note 1. 
 Ellis, Havelock, 443, note 4. 
 Elster, 170, note 2. 
 Eltzbacher, 289, note 2 ; 294, note 2. 
 Emancipation, 281 seq.; 286; 315; 
 
 467 seq. 
 Enfantin, 263. 
 Engels, Fr., xiv; 269, note 1; 273; 
 
 276; 284. 
 Epicureans, 76. 
 Epicurus, 76; 131. 
 Erdmann, Joh. Ed., 53; 53, note 4. 
 Erinyes, 48; 49; 56. 
 Ethics, xxiv; xliii. See also Law, 
 ethical concepts in. 
 
 Egyptian, 26 seq. 
 
 Greek, 47 seq.; 91. 
 
 Kantian, 181-184. 
 
 of the Vedic Aryans, 38 seq. 
 Ethos, 38. 
 Eumenides, 48. 
 Evolution, xvii; 456 seq.; 458 seq.; 
 
 461 seq.; 463 seq. 
 Exchange. See Supply and De- 
 mand. 
 Falckenberg, 184, note 3. 
 Fechner, 461 , note. 
 Federal Supreme Court, v. 
 Ferguson, xlv, note 1 ; 352-354. 
 Ferri, 18, note 1; 372; 465. 
 Feudal system. Sea Economic 
 
 organization. 
 
482 
 
 INDEX 
 
 [The numbers refer to the pages.] 
 
 Feuerbach, xiv; 269, note 2. 
 Fichte, J. G., 183; 192-201, and 
 
 notes; 221; 230; 234; 235; 
 264; 409; 420. 
 philosophy of law of, 194-198. 
 
 philosophy of economics of, 
 198-200. 
 Finger, 373. 
 Fischer, Kuno, 229. 
 Flux — - 
 
 Heraclitean, xviii. 
 Fourier, 264r-265. See also Com- 
 munism. 
 Fourth Estate, xxv. 
 Frankenstein, 332. 
 Frederick the Great, 146, note 2; 
 
 162-165, and notes. 
 Freedom, and Free Will, 194; 362. 
 
 concept of, 218. 
 in anarchism, 296. 
 in Hegel, xvi; 218 seq 
 in Kant, 183 seq. 
 Free Trade, 172; 178. 
 French Revolution, 22; 113; 152; 
 
 170; 199; 285; 466. 
 Friedberg, 103, note 1. 
 Friedlander, xiii, note 1. 
 Friedrichs, 392, note. 
 Gans, 232; 232, note 3. 
 Gareis, xiii, note 4. 
 Garofalo, 372, note 2; 373. 
 Gary, Elbert H., viii. 
 Geyer, 1, note; 4, note 2; 95, note 
 
 2; 117, note 1; 143, note 1; 
 
 211, note 5; 252; 252, note 1. 
 Ghibellines, 101. 
 Giddings, 364, note. 
 Gierke, 118, note 2; 120; 120, 
 
 note 1; 369-372; 370, notes 
 
 1, 2; 371, notes. 
 Gilbert, G., 62, note. 
 Gneist, 327 seq. 
 Gobineau, 357, note 5. 
 Godwin, W., 155. 
 Goethe, 127; 230; 461, note; 465. 
 Gopa, 37, note 1. 
 Gothein, 328, note 2; 421. 
 Government, xliii. 
 
 and liberty, 148, 149. 
 
 and popular welfare, 150. 
 
 and popular will, 150. 
 
 Government — (continued). 
 in Egypt, 27. 
 in India, 36. 
 sovereign in, 121; 162-164; 187, 
 
 Grama, 36, note 2. 
 
 Grave, J., 287, note; 290, note 
 291, note; 292, notes 2, 3 
 293, notes 1, 2; 295, note 1 
 297, note 1. 
 
 Gray, vi. 
 
 Greek Institutions. See Institu- 
 tions, Greek. 
 
 Greek Law. See Law, Greek. 
 
 Greek Philosophy. See Philoso- 
 phy, Greek. 
 
 Grimm, W., 102. 
 
 Gross, H., 443, note 4. 
 
 Grotius, Hugo, xlv, note 1; 6; 
 74, note 1; 115-118; 115, 
 notes 2, 3, 4; 116, notes 1, 2, 
 3; 117, note 1; 126; 156; 284; 
 420. 
 
 Griinberg, 303, note 1. 
 
 Guelphs, 101. 
 
 Gumplowicz, xxi; 13, note 3; 167; 
 302, note 2; 312; 325, note 2; 
 326, note 1; 327, note 3; 328, 
 note 4; 352; 354; 354, note 1; 
 356-358, and notes; 362; 363; 
 368; 369; 369, note; 465, 
 note 2. 
 
 GUnther, S., 388, note 1. 
 
 Haeckel, Ernst, xvii; 230; 458- 
 462; 465. 
 
 Hamel, van, 373. 
 
 Hammurabi, 34, 35. 
 
 Haney, xiii, note 2. 
 
 Harms, xvi, note 3; 2, note; 214. 
 
 Harnack, 113, note; 114, note. 
 
 Harper, Robert, 34, note 5. 
 
 Hartmann, Ed. von, 190; 334;427- 
 431. 
 
 Hasbach, W., 173, note 1. 
 
 Haymann, F., 147; 148, note; 149, 
 note 2. 
 
 Hegel, XV. seq.; 1; 1, note; 17; 52; 
 53; 55; 117; 127; 183; 
 190; 191; 215-232; 249, 
 note 1; 254; 255; 258; 282; 
 285; 317; 334; 387; 422; 
 431; 461, note. 
 
INDEX 
 
 483 
 
 [The numbers refer to the pages.] 
 
 Hegel— {continued) . | 
 
 conception of the State, 223- 
 224. 
 
 critical verdict of, 228-232. 
 
 dialectics of, 219-223. 
 
 ethics of, 217-219. 
 
 legal ideas, 224^228. 
 
 philosophy of law, 215-217. 
 Hegelians, xxi, seq.; 216; 232- 
 
 233. 
 Heinemann, 383, note. 
 Hensel, 317, note. 
 Heraclitus, 55; 56; 230. 
 
 philosophy of, 55; 56. 
 Herbart, 248-251; 248, note 3; 
 
 249, notes 1, 2, 3; 250, note 1; 
 
 251, notes 1,2, 3. 
 Herder, 211-213. 
 Hermann, Fr. B. W. von; 7, note. 
 Herodotus, 26; 28, note 1; 29, 
 
 note 1. 
 Hesse, A., 462, note 1. 
 Hieronymus Balbus, 109. 
 Hildenbrand, 48, notes 2, 3; 52, 
 
 note 3; 54, note 2; 55, note 3; 
 
 56, notes 2, 3; 71, note 1; 
 
 75, note 3; 85, notes 1, 2. 
 Hirzel, 39, note 4. 
 Historism, 254, 255. See also 
 
 Law, Historical School of. 
 Hobbes, 76; 122-125; 131; 132; 
 
 180; 185; 241; 351. 
 Homer, 49. 
 Hugo. 6; 17; 212. 
 Hume, xix. 
 Hybris, 48;91;97. 
 Idealism, 50. 
 Ihering, von, v;xv,note 1; xliii; 3, 
 
 note 1; 14; 76; 129; 337-351; 
 
 337, note 2; 345, note; 383, 
 
 note 1;448. 
 Illusion — 
 
 principle of , xii ; xliii; xliv, note 
 1; 102; 168; 445. 
 Inama-Sternegg, von, 104, note; 
 
 106, note. 
 India, 22. 
 
 Individualism, 289 seq. 
 Industry. See Labor. 
 
 Institutions — 
 
 Greek, 67 seq. 
 
 the aristocrat, 68-70. 
 society, 70-72. 
 Roman, 78 seq. 
 
 paterfamilias, 80 seq. ; 82. 
 property in, 81. 
 Roman-Italian State, 82 
 
 seq. 
 Yeoman, 103. 
 Jaffe, Edgar, 365, note. 
 Jahweh, 41; 41, note 4. 
 Jastrow, I., 16, note 1. 
 Jellinek, 10; 10, note 2; 17, note 1; 
 69, note; 115, note 1; 120, 
 note 1; 151, note 4; 257, note 
 2; 272, note 2; 325, note 2; 
 326, note 1; 331, note; 421; 
 435-442. 
 Jewish State. See Law, mosaic. 
 Jews. See Economic organization, 
 
 influence of Jews upon. 
 Jolly, Julius, 39, note 3. 
 Junius Brutus, 120; 120, note 2. 
 Jurisprudence, iv; 6; 9 seq.; 11; 
 385, note 2; 431 seq.; 448. 
 and history, 208 seq. 
 ethnological, 387 seq., 424. 
 ■Jus civile, xxv. 
 
 Jus naturse. See Natural law. 
 Justice, 116; 117; 214; 411 seq.; 
 417 seq. 
 and morality, 409 seq.; 452, 
 seq. 
 Kakkadu, 34. 
 
 Kant, xi; xi, notes 2, 3; xii; xiii 
 seq.; xiii, note 1; xv, note 1; 
 xlvii, note; 17; 129; 129, 
 note 1; 134; 134, note 6; 
 180-192; 195; 196; 199-200; 
 202; 221; 222, note 1; 229; 
 234; 235; 255; 286; 312; 
 314; 393; 408; 420; 428; 
 452; 460, note; 466; 477. 
 conception of the State, 187; 
 
 188. 
 ethics of, 181-184 
 philosophy of law, 184-187. 
 Kantian, xxi seq; 189-192. 
 Kaulla, 107, note. 
 Kautsky, K., 269, note 1 ; 279; 282. 
 
484 
 
 INDEX 
 
 Kitzinger, 374, note 1. 
 Klassenstaat, 282; 473; 475; 476; 
 
 466 seq,; 473 seq.; 476 seq. 
 Kloppel, 328, note 2; 367. 
 Klotz, 373. 
 
 Knies, 375; 446, note 1. 
 Kohler, xvi; xvii seq; xvii, notes 
 
 1, 2, 3, 5; xviii, notes 1, 4; 
 
 xix, note 2; xliii, note; xliv, 
 
 note 3; 3, note; 10, note; 
 
 12; 13, note 1; 15, note 1; 
 
 17, note 1; 32, note 2; 53, 
 
 notes 1, 3; 35, notes 1, 2; 55, 
 
 note 4; 229; 230; 230, note; 
 
 387; 387, note 2; 389, note 1; 
 
 390; 422-427. 
 Krapotkin, 287, note; 291-292; 
 
 293, note 2; 294, note 4. 
 Krause, Karl Chr. Fr., 2, note; 
 
 240-244; 240, note 2; 246; 
 
 248; 443. 
 Krauss, A., 444, note. 
 Kuhlenbeck, 465—466. 
 Kuhn V. Fairmont Coal Co., v. 
 Kuhn, 36, note 3. 
 Kulturnormen, 10, note. 
 Kulturstaat, 183; 193; 200; 224; 
 
 231; 255; 268; 275; 300. 
 Laband, Paul, xxxix. 
 Labor, 172; 261; 266; 270 seq. 
 
 and capital. See Capital. 
 
 economics of, 270 seq.; 305; 
 471; 474 seq. 
 Labriola, 392, note; 395, note 3. 
 "Laisser faire," xiii; xlvii. 
 Lamarck, 230; 317; 465. 
 Lammasch, 374. 
 
 Lamprecht, K., 22, note; 107, note. 
 Landrecht. See Code, Prussian. 
 Landsberg, 124, note 4 ; 133, note 2. 
 Languet, Hubert, 120, note 2. 
 Lassalle, xlv, note 1; 48, note 2; 
 
 55, notes 3, 4; 56, notes 2, 3; 
 
 178; 232; 232, note 1; 233; 
 
 233, note 1 ; 274-276; 285; 471. 
 Lasson, xxii; 2, note; 67, note 2; 
 
 133, note 2; 194, note; 211, 
 
 note 5; 217, note 2; 255-259. 
 Laurent, 105, note; 114, note. 
 
 [The numbers refer to the pages.] 
 
 Law. See also Legislation. 
 
 and coercion, 405 seq. ; 429. 
 and economics, 20 seq. ; 399 
 
 seq.; 418, 421. See also 
 
 Economics, philosophy of. 
 and society. See Social or- 
 ganization. 
 and the human will, 217 seq.; 
 
 343. 
 commerical — 
 
 in Babylonia, 33. 
 
 in Egypt, 33. 
 comparative, 6; 12; 18; 387 
 
 seq.; 390 seq. 
 constituted, 4; 98; 133; 411 
 
 seq. 
 customary, 8. 
 ecclesiastical, 4. 
 Egyptian, 25 seq. 
 ethical concepts in, 134; 157 
 158; 160; 181-183; 198 
 
 202; 203; 205-207; 236 
 
 238 seq.; 248 seq.; 258; 259 
 334 seq.; 336-337; 338 seq. 
 
 359 seq.; 409 seq.; 412 seq. 
 
 415; 422 seq.; 425, 427 
 
 seq.; 433 seq.; 446 seq.; 451 
 
 seq.; 454 seq.; 456 seq. 
 historical school of, 6-7; 17; 
 
 21; 204 seq.; 254; 375. 
 Mosaic, 35; 40 seq. 
 natural. See Natural Law. 
 Oriental. See Egyptian, 
 origin of , 213 ; 320 seq. ; 390. 
 philosophy of, iv; xxiv seq.; 
 xlvi ; 8 seq. ; 383 ; 422 seq. ; 
 424; 441. 
 
 conception of, 1-4; 180; 184 
 seq.; 216; 217; 447; 477. 
 
 in Ahrens, 244 seq. 
 
 in America, v seq. 
 
 in Europe, vii. 
 
 in Fichte, 194-198. 
 
 in Germany, xxiii. 
 
 in Greece, 46 seq. 
 
 in Ihering, 350; 351. 
 
 in Kant, 188 seq. 
 
 in Krause, 240 seq. 
 
 in Lasson, 255 seq. 
 
 in Schelling, 204 seq. 
 
INDEX 
 
 485 
 
 [The numbers reier to the pages.] 
 
 Law, philosophy of- — {continued). 
 
 method of, 16-20; 398 seq. 
 
 or recent systems, 233 seq. 
 
 psychological aspects of, 431 
 
 seq. ; 442 seq. 
 Roman, 7; 79 seq.; 156. 
 aequitas in, 83 seq. 
 and Christian ethics, 89 
 
 seq. 
 justice In, 100. 
 persona in, 86. 
 precepts of, 99. 
 Twelve Tables in, 78. 
 statutory. See Law, consti- 
 tuted. 
 Vedic Aryan, 36. 
 Le Bon, Gustave, 364, note. 
 Legislation — 
 in Egypt, 28. 
 Mosaic, 35. 
 Leibnitz, 126; 156-160; 180; 181; 
 
 314; 334. 
 Leist, B. W., 31, note 2; 36, note 
 2; 38, notes 1, 2; 39, notes 1, 
 2; 47, note 2; 48 notes 1, 2, 3; 
 83, notes 1, 2, 3; 84, note; 
 88, note 6; 391. 
 Leonardo da Vinci, 122, note 4. 
 Lepsius, C. R., 31, note 2. 
 Leroy, iv. 
 
 Letourneau, 364, note. 
 Lex. See Law. 
 Liberty. See Government and 
 
 liberty. 
 Liepmann, 14, note 1; 120, note 1; 
 146, note 1; 147; 149, note 3; 
 450. 
 Lilienfeld, P. von, 364, note; 463, 
 
 note 1. 
 Lilenthal, von, 373. 
 Lingg, 12, note 1; 17, note 1. 
 Lippert, 364, note. 
 Liszt, von, 15, note 2; 18, note 1; 
 372, and notes; 373; 373, 
 note 3; 383, note. 
 Locke, 312, note 4; 134-137; 135, 
 
 note 1; 136, note 1; 138. 
 Loening, Richard, 17, note 2; 68, 
 
 note 2; 136, note 1;215. 
 Lombroso, 443, note 4. 
 
 Loria, 303-304. 
 
 Lossen, 120, note 2. 
 
 Lupoid v. Bebenburg, 109. See 
 
 Bebenburg. 
 Luther, 113; 114; 114, note; 189; 
 
 284; 417. 
 Lyon, 34, note 4. 
 Ma, 31. 
 
 Macchiavelli, 110; 111. 
 Mackay. 287, note; 290, note; 294, 
 
 notes 1, 3; 297, note 1; 322, 
 
 note 2. 
 Maine, Sir Henry Sumner, xiv, 
 
 note 5; 82, note; 86, note 1; 
 
 392, note. 
 Manchester School, 275; 275, note 
 
 1. 
 Manifesto of 1848, 283 seq ; 283, 
 
 note. 
 Manu. See Code of Manu. 
 Marsilius of Padua, 109; 109, 
 
 notes 1, 2, 3. 
 Marx, xiv; xlv, note 1; 20; 22; 
 
 178; 262; 269-274; 276; 277; 
 
 281; 282; 282, note; 283; 283, 
 
 note; 285; 302; 410; 418; 
 
 465; 471; 474. 
 Masaryk, 269, note 2; 446, note 1. 
 Motzat, H.. 462-463. 
 Maugras, G.,146,note2; 150, note. 
 Mayer, Max Ernst, 10, note; 387. 
 McCulloch, 174, note 2. 
 Medisevelism, 93 seq.; 113; 120. 
 
 and the Renaissance, 110. 
 Medici, Lorenzo de, 110. 
 Meili, F., 391, note 2. 
 Menger, Anton, 270, note; 272, 
 
 note 1; 298-302. 
 Menger, Carl, 377. 
 Menzel, Ad., 132, note 1. 
 Mercantilists, 165 seq.; 170. See 
 
 also Economics. 
 Merkel, Adolf, 7, note; 10; 10 
 
 note 3; 368; 382, note 2; 446- 
 
 450. 
 Merkel, Rudolf, 446, note 2. 
 Metschnikoff, 323, note. 
 Meyer, Ed., 45, note 3. 
 Meyer, G., 14, note. 
 
486 
 
 INDEX 
 
 [The numbers refer to the pages.] 
 
 Michselis, Kurt, 41, note 1; 42, 
 
 notes 1, 2, 3, 4; 43, notes 1, 2, 
 
 3, 4, 5; 44, notes 2, 4, 6, 7 
 
 45, note 1; 462, note 1. 
 Mill, John Stuart, 68, note 2 
 
 139-141; 139, note 3; 140 
 
 notes 1, 2, 3; 141, notes 1, 2 
 Mirabeau, Victor Riquetti, 169 
 
 170, note 1. 
 Miraglia, vii. 
 Mohl, R. von, 14, note; 95, note 2; 
 
 143, note 1; 167, note 1; 
 
 325. 
 Mollat, 156, note 2; 157, notes 
 
 2, 3; 158, notes 1, 2, 3, 4, 5; 
 
 159, note 2. 
 Monarchomach. See Tyranny, 
 
 rebellion against. 
 Monism. See Evolution. 
 Monogamy. See Woman, position 
 
 of. 
 Montaigne, 77, note 2. 
 Montesquieu, xliii, note 1; 3, note 
 
 1; 141-143; 141, note 5; 142, 
 
 notes 1, 2; 143, note 1. 
 Morality. See Ethics, also Law, 
 
 ethical concepts in. 
 Morgan, Lewis H., 276, note 2; 
 
 392, note. 
 Mosaic, 25; 35; 36; 40; 40 note 
 2; 41; 42; 43; 44. 
 
 law. See Law, mosaic. 
 
 religious view, 90. 
 Miiller, David H., 35, notes 1, 2. 
 Miiller, K. O. 48, note 3. 
 Miiller, Max, 37, note 1. 
 Miiller, Paul, 11, note 1. 
 Natorp, 393; 395-398; 395, note 
 
 3; 398. 
 Natural Law, xiv; xxii; 6; 21; 98 
 
 115; 116; 120; 130; 133; 144 
 
 167; 168; 174; 195; 197; 209 
 
 247; 321; 413; 422. 
 Naville, 31, note 2. 
 Nemesis, 49. 
 Neo-Hegelian, xi; xv; xix; xxiv; 
 
 xxxix. 
 Neo-Kantian, xi; xiii, xxi seq.; 8; 
 
 392 seq. 
 Neo-Platonists, 77. 
 Netter, 335. 
 
 Neukamp, 392, note. 
 Nicholaus Cusanus, 109. 
 Niebuhr, 212. 
 Nietzsche, xliv, note 2; 190; 290; 
 
 330; 334; 456-457. 
 Nordau, 459, note. 
 Norms, Theory of, 9; 381-384; 384- 
 
 388; 412; 448. See also Bind- 
 ing. 
 Objectivism, 49 seq. 
 CEtker, 383, note. 
 CEttli, 35, note, 2; 42, note, 2; 44, 
 
 note 5. 
 Oncken, Aug., 101, note 2; 107, 
 
 note; 169, note 2. 
 Osiris, 31. 
 
 Ostwald, W., 323, note. 
 Ownership. See Property. 
 Pax. See Catholic Church, phil- 
 osophy of, doctrines of. 
 Pachmann, 17, note. 
 Pantheism, xvi; 127. 
 Passow, 54, note 1. 
 Patersen, iv. 
 Paulsen, xii, note; 451^53; 461, 
 
 note. 
 Peiser, 32, note 2; 33, notes 1, 3; 
 
 35, notes, 1, 2. 
 Penology, 17, note 2; 372 seq. 
 Persena, 224^227. 
 Peter de Andlo, 103; 103, note 2. 
 Pfleiderer, 48, note 3. 
 Philosophy — 
 
 general, 313 seq;. 393 ; 402 seq. 
 ethical concepts in, 128 seq; 
 393 seq. 
 
 legal — 
 
 in England, 134 seq. 
 in France, 141 seq. 
 
 post-Aristotelean. See Cynics, 
 Cyrenaics, Stoics, Epicu- 
 reans, Sceptics, Neo-PIa- 
 tonists. 
 
 Roman — 
 
 ethical concepts in, 79; 83; 
 85-87; 87-89; 90-91. 
 in Cicero, 87 seq. 
 Phoenicia, 45. 
 Physis, 46; 47. 
 Physiocrats, 167 seq. See also 
 
 Economics and Mercantilists. 
 
INDEX 
 
 487 
 
 [The numbers refer to the pages.] 
 
 Pierret, 29, note 1; 30, notes 2, 3; 
 
 31, notes 1, 2. 
 Plato, xlvii, note; 28, note 1; 46; 
 
 57, notes 1, 2; 60 seq.; 63, 
 
 notes 3, 4, 5; 64, notes 4, 5, 
 
 6, 7; 65, notes 1, 2, 3, 4, 5, 
 
 95; 239. 
 Platonism, 60 seq. 
 
 ethical concepts in, 61; 62; 
 64; 65. 
 
 Greek institutions in, 62; 65. 
 
 ideas and ideals in, 63. 
 Plotinus, 77; 77, note 3. 
 Plutarch, 48, note 3; 76, note 1. 
 Politics, xlvil. 
 Polygamy. See Woman, position 
 
 of. 
 Positive Law. See Law, consti- 
 tuted. 
 Positivism — 
 
 and positivists, xi; xix seq.; 
 308 seq. See also Conite. 
 
 and sociology, 133 seq. 
 Post, Alb. Herm., 12; 364, note; 
 
 390. 
 Pound, Roscoe, xiii, note 2; xiv, 
 
 note 1; xvi, note 4; xx. 
 Pragmatism, xx. 
 Prins, 373. 
 
 Property, 226-228; 246; 322; 327. 
 •Protagoras, 57. 
 Protection, 173. 
 Proudhon, 287-289; 289, note 2; 
 
 296, note 1. 
 Prutz, 108, note 1. 
 Ptolemies, 30. 
 Puchta, 6; 17; 212; 213. 
 Pufendorf, 118, note 1; 122-126; 
 
 126, note 1; 133; 157. 
 Punishment, 187; 203; 346; 382; 
 434; 442 seq.; 449^50. See 
 also Penology. 
 
 in Egypt, 26. 
 Pythagoras, 51; 52 seq. 
 
 his philosophy, 51 seq. 
 symbolism in, 52-54. 
 justice in, 52, 53, 54. 
 Quasi-tutelle, 30. 
 Quesnay, F., 167; 168; 169, notes 
 
 1, 3; 170; 170, notes 1, 2; 
 
 172. 
 
 Ratio — 
 
 legis, 4; 83; 84. 
 naturalis, 97. 
 
 Rationalism, xvii. 
 
 Ratzenhofer, 358-364, and notes. 
 
 Rg, 26;27. 
 
 Realism, 50. 
 
 Rechtsnormen, 10, note. 
 
 Rechtsstaat, 137; 186; 188; 189; 
 192 seq.; 200; 224; 268; 285; 
 466. 
 
 Reclus, Elisee, 287, note; 290, 
 note; 293, note 1; 295; 297, 
 note 1. 
 
 Reformation, 113; 114; 119. 
 
 Rehm, 14, note; 15, note 1; 103, 
 note 2. 
 
 Religion, xliii. 
 
 Egyptian, 26 seq. 
 
 Renaissance, 111. 
 
 Renan, 41, notes 3, 4. 
 
 Reuter, H., 95, note 1. 
 
 Revillout, Eugene, 25, note 1; 28, 
 notes 1, 2; 29, notes 1, 2; 30, 
 notes 1, 2, 4, 5; 31, notes 1, 
 3; 32, notes 1, 2; 33, notes 1, 
 2, 4, 5, 7; 34, notes 1, 2, 3. 
 
 Revillout, Victor, 25, note 1. 
 
 Ricardo, 22; 174-178; 290. 
 
 Richelieu, 166. 
 
 Ritter, 51, note 3; 53, note 2. 
 
 Rigveda, 36, note 1; 39, note 4. 
 
 Rita, 37; 38; 83; 97. 
 
 Rna, 40, note 1. 
 
 Roberty, 364, note. 
 
 Rodbertus-Jagetzow, 276-278. 
 
 Roder, 244. 
 
 Rohde, 48, note 3. 
 
 Roman dominion, 114. 
 
 Roman institutions. See Institu- 
 tions, Roman. 
 
 Roman law. See Law, Roman. 
 
 Roman philosophy. See Philos- 
 ophy, Roman. 
 
 Rossbach, 77, note 2. 
 
 Rousseau, J. J., 21; 120, note 1; 
 143-151, and notes; 186; 188; 
 199-201; 230; 285; 288, note 
 6; 298; 330; 351; 362; 408; 
 420; 466; 477. 
 
488 
 
 INDEX 
 
 [The numbers refer to the pages ] 
 
 Rousseau — (continued). 
 
 origin of State, 147. 
 
 social contract, 147-150; 148, 
 note. 
 
 social organization, 144^147. 
 Ruedemann, R., 444, note 1. 
 Ruppin, 462, note 1 ; 463. 
 Saint-Simon, 260-264; 309; 323. 
 Salzmann, 156, note 1. 
 Sandras de Courtilz, 167. 
 Sat-pati, 36. 
 Savigny, 6; 17; 84, note; 212; 213; 
 
 214. 
 Say, J. B., 178; 266. 
 Sayana Akarya, 36, note 1. 
 Sceptics, 77. 
 SchafHe, 328, note 3; 354-356; 
 
 354, notes 7, 8; 364, note; 
 
 463, note 1. 
 Schallmeyer, 462, note 1. 
 Scheil, 34. 
 Schleiermacher, 354; 354,notes2, 3, 
 
 4, 5, 6. 
 Schelling, 6; 17; 49, note 1; 55; 
 
 127; 204-211; 230; 234; 235; 
 
 243; 254; 285. 
 Schmidt, Kaspar. See Stirner. 
 Schmidt, Max, 392, note. 
 Schmidt, Rich., 15, note 1; 450- 
 
 451. 
 Schmoller, 174, note 1; 377; 445, 
 
 note 3. 
 Schoemann, 48, note 3. 
 Scholasticism, 16. 
 Schools — 
 
 of philosophy of law, xxi seq. 
 Schopenhauer, xv, note 1; 117; 
 
 117, note 3; 143; 144; 190; 
 
 201-204. 
 Schreiter, 431;456. 
 Schroder, L. von, 52, note 1 ; 54, 
 
 note 1. 
 SchuUer, Rich., 173, note 2; 377, 
 ( note 2. 
 
 Schuppe, W., 12, note 3; 13, note 
 
 2; 17, note 1; 18, note 2; 
 
 386, note 4; 433, note 1; 454^ 
 
 456. 
 Schurtz, Heinrich, 364, note. 
 Scipio, K., 95, note 4; 96, note 1. 
 Seneca, 89; 115, note 3. 
 
 Shaftesbury, 336-337, 336, notes; 
 
 337, notes. 
 Shakespeare, 154; 470, note 2. 
 Sighele, Scipio, 373, 443; 444, 
 
 note. 
 Simmel, George, 442. 
 Skarzynski, von, 171, note 2; 178, 
 
 note 2. 
 Slavery, 146; 149; note 4; 319. 
 
 in Babylonia and Assyria, 32. 
 
 in Egypt, 28. 
 
 in Greece, 62; 71; 71, note 1. 
 Smith, Adam, 170-174; 171, notes 
 
 1, 2; 178, note 2; 266; 275; 
 
 285; 290; 466. See also Ri- 
 
 cardo. 
 Social aristocracy, 456 seq. 
 Social contract, 185; 186; 199. 
 Social democracy, 283 seq. ; 472seq., 
 
 See also Socialism. 
 Social economics, 399 seq. 
 Social ethics, 331 seq.; 339 seq.; 
 
 347; 380. 
 Socialism, 267 seq.; 277 seq.; 298 
 seq. ; 323 ; 461 seq. ; 463 seq. ; 
 472 seq. 
 
 German, 269 seq. 
 
 varieties of, 298 seq. 
 Social organization, xliii; 315 seq.; 
 
 318 seq.; 322 seq.; 325 seq.; 
 
 328 seq.; 341 seq.; 344; 367; 
 
 379; 399 seq.; 436 seq. 
 Social regulation, 342 seq.; 395 
 seq. 
 
 in Middle Ages, 103 seq. 
 Society. See Social organization. 
 Sociological School, xxi; 308 seq.; 
 
 348; 351 seq.; 368 seq. 
 Sociology, 458 seq. 
 
 and ethics, 349 seq.; 356; 361; 
 363; 366; 377 seq. 
 
 and positivism, 313 seq. 
 
 development of, 308 seq.; 352 
 seq. See also Comte, and 
 Spencer. 
 
 ideals in, 333 seq. 
 
 legal, 6; 13-15; 15, notes 2, 3. 
 Socrates, iii; 28, note 1; 57 seq.; 
 60; 64. 
 
 ethical concepts in, 58; 59. 
 
 his philosophy, 57 seq. 
 
INDEX 
 
 489 
 
 [The numbers refer to the pages.] 
 
 Solon, 28, note 1. 
 Sombart, 303-307; 365, note. 
 Sophists, 56; 59. 
 
 Sovereignty, 120; 121; 357; 438 
 seq. 
 and the people, 121; 358. 
 Speck, J., 463, note 1. 
 Spencer, Herbert, xx; 56; 230; 
 
 317-323; 351 399. 
 Spinoza, 96; 127-132; 127, note 1; 
 129, note 1; 130, notes 2, 3; 
 131, note 2; 132, note 1; 158; 
 167; 185; 188; 235; 241; 314; 
 316; 363; 452; 461, note. 
 Stahl, 1, note; 6, note 1; 8, note; 
 95, note 1; 103, note 2; 130, 
 note 2; 143, note 1; 211, note 
 5; 233-235; 281. 
 Stammler, xiv; xlv, notes 2, 3, 4; 
 XV, note 1; 8; 21, note 2; 74, 
 note 2; 115, note 1; 147; 147, 
 notes 1, 2; 214, note 4; 393; 
 398-422. 
 State. See also Klassenstaat, 
 Kulturstaat, Rechtsstaat, 
 Zwangstaat. 
 and contract, 125; 385. 
 
 foundation of, 124-126; 
 135; 147; 161; 185; 186; 
 187; 188; 196; 197; 237; 
 451. 
 nature of, 122 seq.; 136; 137; 
 210; 211; 223; 224; 252- 
 254; 257; 258; 347 seq.; 
 357 seq.; 369; 378; 394 seq.; 
 436 seq.; 462 seq.; 466 seq. 
 psychological motives, 128 
 
 seq. 
 purpose of, xiii; 199; 266; 275. 
 Stein, Lorenz von, 325-331. 
 Stein, Ludwig, 294, note 2; 296, 
 note 2; 333-335; 364, note; 
 435, note 4. 
 Steinmetz, S. R., 392, note. 
 Stern, Jacques, 215; 215, note 3. 
 St Hilaire, Geoffrey, 465. 
 Stintzing, 121, note 1. 
 Stirner, 130; 289-291; 296; 330; 
 
 456. 
 Stoics, 75; 87-89; 129; 130; 241; 
 434. 
 
 Stooss, Karl, 373; 373, notes 2, 6. 
 
 Subjectivism, 49 seq. 
 
 Sudra, 37. 
 
 Supply and demand, 175 seq. 
 
 Susa, 34. 
 
 Svadha, 38. 
 
 Tacitus, 154. 
 
 Tarde, 364, note; 442-443; 444; 
 
 444, note. 
 Tariff, xxv. 
 Theodorus, 75. 
 Themis, 38; 47. 
 Thomasius, 132-134; 132, note 5; 
 
 133, note 3; 169, note 2; 180. 
 Thompson, 270. 
 Thomsen, Andreas, 444, note. 
 Thon, 384. 
 
 Tille, Alex., 445, note 3; 458. 
 Timon, 77. 
 
 Tolstoi, 144; 297-298; 330. 
 Tonnies, Ferd., 328, note 2; 365- 
 
 367; 464, note 2. 
 Treitschke, von, 325, note 2. 
 Trendelenburg, 238-240. 
 Tucker, Benj. R., 297. 
 Turgot, 167, note 4; 170. 
 Twesten, 28, note 1; 33, note 6; 
 
 37, notes 3, 4; 41, note 1; 45, 
 
 note 2. 
 Two Swords. See Catholic Church, 
 
 philosophy of, doctrines of. 
 Tyranny — 
 
 rebellion against, 118-121, 148. 
 Tyrannomach, 286 : 466. See Tyr- 
 anny, rebellion against. 
 Uhlemann, 28, note 1; 30, note 2. 
 Uhlhorn, 332, note. 
 Utilitarianism, 138-141. 
 
 and utility, 131. 
 
 social, 336; 337. 
 Vanicek, 46, note 1; 47, note 2; 48, 
 
 note 1. 
 Vaisya, 37. 
 
 Value. See Supply and demand. 
 Vanni, Icilio, xx. 
 Veda, 36; 36, note 1. 
 Vedic Aryans, 36; 47; 96. 
 Virchow, 463, note 3. 
 Voigt, Moritz, 84; 85. 
 Voltaire, 146, note 2. 
 Urata, 38. 
 
490 
 
 INDEX 
 
 [The numbers 
 
 Vridanke, 102, note 1. 
 Wage, 177. See Labor. 
 Wahlberg, 443, note 4. 
 Wallon, 71, note 1. 
 War — 
 
 legal relations of, 116-118. 
 Ward, Lester F., 364, note. 
 Warnkonig, 4, note 2. 
 Weber, A., 37, note 2. 
 Weber, Max, 365, note. 
 Weiiu-ich, von, 383, note. 
 Weissmann, 465. 
 Wallhausen, J., 41, note 1. 
 Will. See Freedom and Free Will. 
 William of Occam, 108; 108, note 4. 
 Wilkinson, 26, note 1; 29, notes 2, 
 
 3; 30, note 1; 52, note 1. 
 Windelband, Wilh., xii, note, and 
 
 note 2; xvi; xix, note 1. 
 Wolf, Jul., 281; 281, note 2. 
 Woffi, Chr. von, 126; 160-162, and 
 
 notes; 180; 189; 285. 
 Wollstonecraft, Mary, 156. 
 
 refer to the pages.] 
 
 Worms, 328, note 3; 364, note. 
 Woman — 
 
 position of, 468 seq. 
 
 in Babyloniaand Assyria, 33. 
 in Egypt, 30. 
 in India, 37. 
 Wundt, 17, note 1; 23, note; 431- 
 
 435. 
 Xenophon, 58, note; 59, note. 
 Zeno, 47; 48; 75. 
 Zeller, 77, notes 2, 3. 
 Zenker, 289, note 2; 294, note 2; 
 
 328, note 3; 364, note. 
 Ziegler, H. E., 462; 463. 
 Zimmer, 36, notes 2, 3; 37, notes 
 
 1, 2, 3 4; 40, note 1. 
 Zimmermann, R., 126, note 3. 
 Zimmern, Helen, 156, note 1. 
 Zitelmann, 383, note; 435; 454, 
 
 note 3. 
 Zorn, 108, note 1. 
 Zwangstaat, 268. 
 Zweck im Recht. See Ihering.