Again:

"Various forces being always in conflict, they become fused in the effort to obtain expression, and their fusion creates a corpus juris, the corpus inclining in the direction of the predominant force in the precise degree in which it predominates.

The sovereign being only a vent or mouthpiece, the form the mouthpiece takes, or the name given it, is immaterial. Whether the social resultant expresses itself through a prophet like Moses, or an emperor like Cæsar, or a moneyed oligarchy like the modern British Parliament, the result is the same. The dominant class, whether it be priests or usurers or soldiers or bankers, will shape the law to favor themselves, and that code will most nearly approach the ideal of justice of each particular age which favors most perfectly the dominant class.” 12

This is precisely the position of the mechanical period of sociology, a period long outgrown in the social sciences other than jurisprudence.13 Professor Small says aptly that

"The sociological fashion set by Spencer was to treat social forces as though they were mills of the gods which men could at most learn to describe, but which they might not presume to organize and control." 14

Thus in one of his earlier writings Gumplowicz, in discussing the aristocratic order, argues that criticism is futile.

"Sociology," he says, "must refrain from all such criticism of nature. For sociology, only the facts and their conformity to laws have an interest." His reason is that Social phenomena follow necessarily from the nature of men and from the nature of their relationships." 15

In this very spirit, the jurist I have been quoting says:

"With the moral or political aspects of this controversy, we, as lawyers, have nothing to do, for professionally the function of the lawyer is to accept that which exists and deal with exigencies as they arise. We are only concerned with the effect of the struggle upon the corpus juris,

12 Id. 63-64.

13 See Small, General Sociology, 80-87.

14 Id. 84. Again: "While the Spencerian influence was uppermost, the tendency was to regard social progress as a sort of mechanically determined redistribution of energy which thought could neither accelerate nor retard." Id. 82.

15 Grundriss der Sociologie, 133 (1885). I have used Professor Small's translation, in General Sociology, 86.

since the law, being the resultant of the forces in conflict, must ultimately be directed in the direction of the stronger, and be used to crown the victor." "' 16

All that has been said as to the practical effects of the analytical and the historical methods, when made, as they usually come to be, the basis of a theory of legislation, applies with even greater force to this type of sociological jurisprudence.17 Law is an inevitable resultant; in making or finding it, legislator or judge is merely bringing about "conformity to the de facto wishes of the dominant forces of the community." 18 The eighteenth-century doctrine, although it put the fundamenta beyond reach of change, at least moved us to scan the details of the superstructure and to endeavor to make each part conform to the fixed ideal plan. It admitted that legislator and jurist had each a function. The historical school denied any real function to the former. The positivist denies it to the latter. To the doctrine of legislative futility, which he accepts, though for other reasons, he adds a doctrine of juristic futility. Hence the achievements of this school have been purely negative. They have helped to clear away, but they have built nothing. For the "declaration of the dominant social organism by which a legal standard is created or imposed" 19 may or may not establish itself in the legal system. The Roman law of juristic acts has not become the law of the world nor is the Anglo-American law of torts becoming a law of the world because either has behind it a dominant social force. Much that has such a force behind it leaves but a faint mark upon the law. A theory that leaves out of account the quest of jurists and judges for an ideal of an absolute, eternal justice, well or ill conceived, to which they seek to make the rules enforced in tribunals approximate so far as possible, and juris

16 Centralization and the Law, 132–133.

17 The mechanical sociology has been so thoroughly criticized from so many quarters, and by none more effectively than by sociologists themselves, that even its persistence in a type of recent juristic thinking cannot justify giving much space to what is no more than a belated phase. But a reference to James, The Will to Believe, 216 (Great Men and their Environment), may be worth while.

18 Holmes, J., in Lochner v. New York, 198 U. S. 45, 75, 25 Sup. Ct. 539, 547 (1905). Here, however, the Spencerian jurisprudence is invoked against the traditional historical jurisprudence. The notion that social forces working through legislation cannot make law is met by the proposition that they can and will make the law, the means of expression being wholly immaterial, and that it is not for the lawyer to interfere. 19 Gareis so defines legislation. Science of Law (transl. by Kocourek), 80.

tic tradition, that is traditional principles and traditional modes of reasoning therefrom, ignores the chief influences in determining the bulk of the rules actually in force in any legal system at any given time. No doubt the ideal of justice is affected by training and associations which reflect class-interest. On the other hand the conscious endeavor to adhere to the ideal is a powerful check on the operation of class-interest.20 Self-interest of the dominant class in the community for the time being affects chiefly the imperative element in legal systems, that is, legislation. Perhaps for that very reason legislation, as a means of making law, has played the least part in legal development.2

21

If, however, the earlier type of sociological jurist on one side brought us by another path to the position of the futility of effort to which the historical school had led us, on another side he performed a service which Berolzheimer rightly pronounces invaluable.22 This service was twofold: (1) in displacing the individualist starting-point and the atomistic standpoint of nineteenth-century jurisprudence by insisting upon the importance of the group, of the class, of "the compact plurality," and (2) in compelling us to relate the law more critically to other social phenomena. In urging that the form of social organization was not an arbitrary and artificial fact, that society was not a mere human invention, that the development of society took place according to fixed principles analogous to those which govern the physical universe, and hence that laws and legal institutions develop in accordance with similar principles, they drove the other schools to seek a broader foundation and furnished much of the impetus which produced the socialphilosophical school.

2. THE BIOLOGICAL STAGE.24

In the last third of the nineteenth century many jurists began to look at all things literally or figuratively in terms of biology.

20 See particularly Professor Burdick's demonstration of this in his paper, Is Law the Expression of Class Selfishness?, 25 HARV. L. REV. 349.

21 An excellent critique of the theory of law as the expression of the interest of the dominant class may be found in Tanon, L'évolution du droit et la conscience sociale, 3 ed., 180-189.

22 System der Rechts und Wirthschaftsphilosophie, II, 384.

23 Berolzheimer, loc. cit.

24 Berolzheimer, System der Rechts und Wirthschaftsphilosophie, II, §§ 47, 51;

The epoch-making work of Darwin had made evolution the central idea in scientific thought. From the natural sciences the conception invaded and remade philology, was applied to the history of social and religious institutions, and ultimately came into jurisprudence. A natural science of the state and a natural science of the law succeeded the attempts to work out a physical science of the state. A biological sociology succeeded the mechanical sociology. For a time, indeed, the two overlapped. This is true of Spencer's sociology, which, as has been pointed out by many critics, was not at all evolutionist.25 It is true also of the first attempts at sociological jurisprudence from the biological standpoint. Jurists were attracted by the conception of natural selection. The struggle for existence seemed to afford a fundamental principle for jurisprudence which confirmed the beliefs they had formed under the influence of the historical school or of the positivists. Accordingly they brought us to the same position to which the latter had led us previously, but by this route: The end of law is to give free play in an orderly and regulated manner to the elimination of the unfit, to further selection by a well-ordered social struggle for existence. Revolt of the social conscience against such theories has been an important factor in the juristic movement for the socialization of law.26

In its biological stage, sociological jurisprudence exhibits four types: (1) a mechanical type, which has just been considered, (2) an ethnological type, (3) a philosophical type, and (4) an organismic type. The three last deserve special consideration.

Attempts to develop and apply theories of evolution led for a time to exaggerated reliance upon primitive law. A school of jurists Kuhlenbeck, Natürliche Grundlagen des Rechts; Matzat, Philosophie der Anpassung mit besonderer Berücksichtigung des Rechtes und des Staates; Ruppin, Darwinismus und Sozialwissenschaft; Hasse, Natur und Gesellschaft; Michaelis, Prinzipien der natürlichen und sozialen Entwickelungsgeschichte des Menschen; Coker, Organismic Theories of the State, chaps. 3, 4; Tourtoulon, Principes philosophiques de l'histoire du droit, 80-173; Letourneau, Evolution juridique; D'Aguanno, La genesi e l'evoluzione del diritto civile; Cogliolo, Saggi sopra l'evoluzione del diritto privato; Cogliolo, La teoria dell' evoluzione darwinista nel diritto privato.

25 "While Spencer was popularizing the notion of evolution, he was also circulating a theory of society which was in effect as fatalistic as the hyper-Calvinistic dogma of foreordination. . . . Society, in Spencer's version, was simply a gigantic organism endowed with an unalterable amount of energy, and this energy would inexorably redistribute itself according to laws lodged in itself." Small, The Meaning of Social Science, 82.

26 See especially Tanon, L'évolution du droit et la conscience sociale, 116-166.

arose who expected study of the social and legal institutions of the most primitive peoples to reveal the fundamental data of jurisprudence and the fundamental laws of jural development. They conceived that they could find in primitive man all the materials which were needed to explain the social man in general, and hence in primitive social institutions the materials needed to explain the legal systems of today. I have referred elsewhere to the writings of this school and to the good work its adherents did in broadening the historical and philosophical schools.27 Here it is enough to say that their influence gave rise on the one hand to attempts to interpret jurisprudence and legal history in terms of race, considered in another connection heretofore,28 and on the other hand to an opinion that the true method of jurisprudence was that which sociologists have called the demographic; that legal science was to be founded upon generalization from a descriptive sociology.29 The kernel of truth in each case is that juristic study in the past, both historical and philosophical, had been too restricted in its materials.30 Beyond this, ethnological and demographic methods are no more the chief tools of the sociological jurists than they have proved to be in the case of the general sociologists. As one of the latter says:

ment

It is a grotesque hallucination that men in stages of arrested developmen about whom, moreover, all available evidence is woefully - furnish the only clues to human nature." 31

meager

It is no less grotesque to suppose that the social institutions of such men furnish the only or even the chief clues to the principles of legal systems. Yet the reaction recently from the exaggerated

27 24 HARV. L. REV. 614-617.

28

25

HARV. L. REV. 165. See also Tourtoulon, Les principes philosophiques de l'histoire du droit, 85-86.

29 "There are determinate laws according to which all organic structures, which are formed over men in the human race, are developed, and these laws may be disclosed by comparison of the corresponding periods of development of all the generic organisms upon the earth, living and past. To determine these laws is the next task of the political and legal science of the future. For the determination of these laws, a mighty mass of material lies before us which needs only collection and collation in order to produce the most fruitful ideas for the jurisprudence of the future." Post, Der Ursprung des Rechts, 7 (1876).

30 See Del Vecchio, Sull' idea di una scienza del diritto universale comparato, 11: Kohler, Rechtsphilosophie und Universalrechtsgeschichte, §§ 8, 11.

31 Small, General Sociology, 100.